MO)N)AY. I1)1 (. 111 K 22. 1986
TI NATIONAL lW -I -MW"
New Ground for Sui.
Just Whose Land
Is It Anyway?
BY FRHF STRASSt R
\Lt..tll .l.l I Jor< .ll l l.sI|rt R(l.,l| lll, l
THE LEGAL battlefield that James and Marilyn
Nollan call home is an enviable stretch of Pacific
beachfront with everything the couple ever wanted.
Including a 37-foot-
long stretch of sand.
But property no
longer is a simple
matter on the Cali- MIT
fornia coast or in
a growing number bu
of other areas t
around the country
where local govern-
ments are exercis-
ing new muscle.
learned that when
they decided to re-
place a weekend
cottage with a year-
round house. As a PhotSt
condition for a PhooSve Dys
building permit, A beachfront dispute now Is
state authorities de- In the U.S. Supreme Court.
meanded the family
open their backyard t ql__
beach to the public.
Can the government trade a permit fur permanent
public access to private property without compensa-
tion, the Nollans asked in a lawsuit. Whose beach is
Their Grip on Land Use
When the U.S. Supreme Court agreed
it would try to answer their questions
this term and took two other land-
use cases u well the Nolians' two-
story contemporary landed squarely
atop a legal fault line. Notin v. Cali/or-
aia Coastal Commisson, M-133.
For. while California's Coastal Com-
mission. and its courts which reject-
ed the Nollans' plea are known to be
unusually zealous on the subject of
state power over private property, the
clash symbolized in the couple's com-
plaint can be heard with growing fre-
quency across the country.
Everywhere cities, counties and states
are tightening their grips on land use
these days, bringing traditional regu-
latory power to bear more forcefully
on such problems as environmental
protection and suburban traffic.
At the same time. land Lue attorneys
- bolster by a reaurgenc in conser-
vative legal theory and encouraged by
the Reagan administration's hitting
*tance on key questions are learning
to turn cases about regulations, prop-
erty and compensation into constitu-
Two forces are likely to keep the
First. developers who have tied up
huge sums of money In a project today
are seeking compensation when regu-
lations later ruled unlawul, cause delay.
Second, governments at all levels.
facing stagnant or shrinking revenues
from taxes, are trying to pay for pro-
grams by linking development permits
to a variety of special fees and rules.
That sort of "linkage" the constl-
tutonality of which lies at the heart of
the Nollan cae ts the "the hottest
topic and the newest legal terrain,"
says Robert H. Freilich, a land-use
lawyer and professor at the University
of Missouri-Kansas City School of Law.
His firm, Kansas City, Mo.'s Herrick.
Feinstein knows that well s cOUB1,-
In Saraota. Fla., for example, the
firm is helping draft plans to have de-
velopers share the cost of building new
schools, while in Richardson, Texas,
Mr. Freilich is advising the city on a
scheme to finance about $89 million in
road improvements through tees on 35
million square feet of potential office
Other cites already have programs
in place. In such booming downtown
a Boston's and san Francisco's. ofi-
cials are compelling developers to help
fund low-income housing, day-are cen-
ters and job-training programs as a
condition for launching new projects.
Cities considering similar programs
include Chicago; Denver; Hartford.
Conn; New York and Washington, D.C.
In such fast-growing suburbs as
Montgomery County, Md., bordering
Washington. the right to build a home
is accompanied by a big, one-time fee
for construction of roads used by all
the county's residents and evenly
Other localities have gone further.
seeking to link development permits
with a new roof on city hall. a fleet of
tire trucks or a staff of urban planners.
The legal issue raised by such spe-
cial conditions is an old one: the extent
to which government can reduce the
value of private property for public
It is sharpened by the increasing
number of environmental and plan-
nin restrictions ranging from open
space set-asldea and agricultural pre-
serves to limiting the use of property
surrounding a bald eagle's nest. These
restrictions, in turn, lead to additional
questions. At what point does a regula-
tion become, la effect. a condemnation.
requiring "jlut compensation" under
the Comstitution's Fifth Amendment?
And finally. if a regulation does turn
out to be invalid. is the property owner
entitled to compensation for losses suf-
fered while the regulation remained in
effect, or is invalidation Itelt the only
These questions, which have bedev-*
lied courts for most of the last decade.
are critical to developers and local-
"In any fact situation no one can give
sound legal advice." obeervee Frank
Ichnidman, a former law professor
and now senior fellow at Boston's Un-
coln Institute of Land Policy. "That's a
difficult situation for a developer deal-
Ing with a bank or for a local gover-
ment that can't afford a lawsult
"Ii make, both overly eautlous," he
adds "Projects that shouldn't be ai,
prn ved are and proposals that doo
make the best use of a site get made
When serious conflict does arise. de
velopment lawyers contend it springs
from the new world of high land costs,
multilayered permitting and slow-mo-
"You can't get a swift declaration
and go about your business," argues
Michael M. Berger of Santa Monica,
Calif.'s Fadem, Berger & Norton, a
leader in the push for compensation
for unlawful regulatory action. "So
people get more interested In being
For planners, the stakes are perhaps
even higher. A membership survey of
the National Association of County Plan-
ners in 1980, at about the time the first
zoning compensation case reached the
high court, found that 8 percent of the
respondents who favored a hypotheti-
cal regulation said they would oppose
It if the measure might result in big
money damages against their
The chance to thwart so much regu-
lation with a single shift in judicial
doctrine has made raising the compen-
sation issue a favorite strategy of con-
servative legal activists. The Nollans.
for example, are represented by the
probusiness Pacific Lgal Foundation
which also pressed the high court's
first modern regulatory taking case in
1960. Agwm v. City of 'iburo 47 UA 25.
Similar groups are handling other
cases locally, such as the bald eagle
case, in which the Southeastern Legal
Foundation is seeking compensation
for property owner near alaneville,
Fla, who have been barred by a county
ormlnnoe from doing anything on their
land within 70 feet o an eagle's nest.
OGliso v. Alachua County., -26.
Few Ideegical IAes
But although the Issue is a favorite
of conrvatives n the Supreme Court'
grappling with compensation -. four
case In the last six years with no clear
deciilons Ideologial lines are hard
The two justices most often regarded
as liberals, William J. Brennan Jr. and
Thurgood Marshall have been the most
active In supporting expanded rights
"I a polloeman mut know the Coa-
sttution, tIth why not a planDr" Ju-
tce BPrmnan wrote In 1 21 l1aaeue
ease. S M. Diegfo Ga.s # le*ofv. Is
Diepo, MU.S. 'U. It
"The issue is like ee" a ya Qus aB
Bauman. litigation ounpsl In Wash-
ington for the National Asociation of
Homebuilders. "People have public
views, private views, quirky view."
"Land use raises questions about the
right to housing, property values, the
power of the state, the meaning of con-
servation, where we live, play, and
work and who we do It with." adds Mr.
Three Supreme Court Case
The Nollans' case is the third land-
use dispute that the high-court will
consider this term, each having the po-
tential to radically affect the way land-
use planners make their decilons.
The court also will be asked to rule
on the compensation claim of a LAs
Angeles church that was blocked by a
county ordinance from building on part
of a mountain retreat soned as a flood
district. First elgUh EvanveUcal Lu-
theran Church v. County of Los An*e-
le. 861199. .
The state court found the ordinance
was a legitimate attempt to protect
public safety, but refused to consider
compensation, noting the Issue had not
been resolved by the Supreme Court.
tI a third ceas. Pennsylvania see
companies are seeking to Invalidate a
-I state statute requiring them to
leave coal In the ground to prevent
land above the mines from caving In.
eiystone Bituminous Coal A.socia
v. DeBeuedictl, 5-1002.
The high court In 19 sd a similar
Pennsylvania regulation wa a taklag.
State offiIal say ths caseM difrnt.L
"Between theee three ses there
could be some amwer" says Mr.
aers. who rpreebas Fit nalish
vangelloal Althersa Church. "We've
got a specific prohibition of use In t.-
church ease, which brings In compen
ton, regulatory prohibition for the
miners and linkage In Nolans."
The ossue of linking government ap-
proval for development to special fees
and condition. lawyers say, i Ulkely to
appear more often a result of the
simple arithmetic of public finance, a
local government suffer from tax cap
and reduced federal aid.
According 4o a survey released La
June by the National Lague of Cities
SM perept of the 0 eitiMe surveyed
esmpe ed gperabng deftit thU yur.
.-acre 4h 4oAeO the preMtaO in
In addition to the challenges to link-
age in the Nollan ea, developers in
an Francisco have challenged a-
pects of that city's program, perhaps
the country's most far-reachin.
The city requires developers of office
buildings of 50,000 square feet or more
either to make direct contributions for
construction or rehabilitation of exist-
ing housing units, or to provide rental
subsidies or low-Interest housing loan
to low-income neighborhoods.
The formula for the contribution is
based on the assumptions that office
use in the city generates one employee
per 20 gross square feet of space, that
40 percent of all office employees re-
aide in the city and that 1 working
adults occupy eacb dwelling unit. De-
velopers must also pay $10 per square
foot for mawg-transit Improvements.
and ordinances adopted this year add-
ed new exactions for day-care centers.,
open Space and art enrichment.
Another attack on binkagea heing
considered by some land-use lawyers
Involves the Costitution's equal pro-
In Moatgomery County. Md. for ex-
ample, officials lat April began at-
taching a uO00 road-improvement fee
to tbuadlr permits tn area served by
verrwded major thoroughtans.
1" thi thee is a possible constitu-
tional problem of equal protection lo
that." says John J. Delaney of LAnowes
and Bierh In Sulver Spring, Md a T
lawyer land-ue firm primarily repre-
senting developer. "Is it fair to traat
the new eonmmer diwaerly" he Sa
-I think the homeowner is being de-
prived of property by a scheme that
requires the new buyer to pay a dispro-
portionate share of public improve-
ments." says Mr. Delaney. "There was
no impact fee when I bought my house.
Taxes paid for road. What's happen-
ing is that people are being denied af-
A key lssue in the linkage cases Is
what the courts have called "rational
For 80 years, courts have accepted
the notion that municipalities can le-
gitimately use police powers to pry
"subdivision exactions" from builders
if they are trying to meet needs gener-
ated clearly by the subdivision. Com-
monly. these actions include land for a
neighborhood park or school.
In the Nollans' case, lawyers argue
there is no reasonable relationship be
tween the state's demand for a public
right of way and the home that has
replaced the beach cottage. The new
structure has had no Impact whatso
ever on public access to the beach, they
say, ad forcing them to accept public
a s isL therefore. unconstitutional.
The tate. however, contends that
the cumulative effect of building laong
the coat is to limit citlens' use of the
shore, a right guaranteed by Califor-
Similarly, In the San Franelsco chal-
lenges, some builders argue that the
contributions the city demands lack an
adequate connection to their projects
because the funds go to programs only
marginally related to the impact of the
developments The courts, however, have
ided with the city. terminal Plau
o a V.SMAenic, 21 CaL App. d .
In Seattle, developers have ha# me
success challenging the linkage in a
15 housing-preservaton ordinance.
The measure requires anyone plan-
ning demolition of an apartment build-
ing to replace the units, form a Joint
venture to replace them, or pay the
city's housing replacement fund $0
pr square foo. Hf a developer opts to
ld low-Income rather than at-mr-
hit-rate bcding. the retlacmet r-
quir aent decline to mperm eIta
G. Richard Hill of Seattle's Poster,
Pepper & Riviera, the lawyer who
challenged the ordinance in the lower
courts, say the measure "overlaps
with taking property by regulation"
because "the fees so great that it
leaves you with no value in your
Mr. Hill's client had paid 1 million
for a I0-unit, turn-of-the-century apart-
ment building on the outskirts of Seat-
tle before the city approved the housing
preservation ordinance, intending to
build office space. Suddenly, he says,
the client faced a demolition fee of
Mr. Hill argued the fee was an unau-
thorized tax under Washington law,
and that only In exceptional circum-
stances could municipalities impose
fees on development. The city main-
tained It had Imposed a regulation of
demolition, not a tax on development.
The cae ti now on appeal to the Wash-
Ington Supreme Court. San Telmo As-
sociates. v. Seattle, 52978-7.
In 1985. Seattle also approved a new
downtown zoning code that includes a
controversial device to encourage de-
velopment of low-income houpinl If a
developer builds low-income housing
downtown, planning officials will
waive zoning restrictions and permit
It is a scheme that conservatives ay
argues forfully for their contention
tat courts should eamline.Sar more
cotsely eor Mn o taking b gulalton
"When they mpose oning restric-
tine, the authorities claim It is not a
taking" says Prof. Richard A. Ipstea
of the University of Chicago Law
School, the author of the 185 book.
"Takings: Private Property and the
Power of Eminent Domain."
"But the moment they use the aume
regulations for compensation or Re-
ward," he says. "it magically bpooanp
property again. It's a racket."
Prof. Daniel R. Mandelker of St. Lou-
is' Washington University School of
Law and a self-described "liberal, po-
lice-power hawk," disagrees. "If It can
be shown that building offices down-
town creates a need for housing, then
the city is entitled to give a bonus to
the builder for meeting a need he ee-
ates. It is also entitled not to give a
Meanwhile, back on the California
coast, James Nollan, a deputy city at-
torney in Los Angeles, expects to get
back his beach.
"My only question about the court's
decision" says te lawyer, who other-
wise aas On behalf of government.
-Is how wide t are going t make It"