Private Property

Nollan v. California Coastal Commission (1987)

Case background and primary source documents concerning the Supreme Court case of Nollan v. California Coastal Commission. Dealing with whether or not regulations restricting property owners’ actions on their own property are protected by the Fifth Amendment, this lesson asks students why property rights are sometimes referred to as a “bundle of sticks”.

Founding Principles

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Property Rights image

Property Rights

The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

Case Background

Concerned about increasing development along the California shoreline, the California Coastal Commission sought to protect public views of the beaches. James and Marilyn Nollan wished to replace a small (521-squarefoot) beachfront bungalow with a 1,674-square-foot home. The much larger house would block public view of the beach from the street. Property use restrictions required that, before a property owner could receive a permit for new construction, s/he must agree to allow the public permanent use of the beach through an easement on the property. The easement would have allowed beach-goers to pass over a strip of land on Nollan’s private beach in order to access the public beaches. The Nollans argued that this restriction on their property use was a taking requiring just compensation under the Fifth and Fourteenth Amendments.

Six years later the Court would hear a similar case: Dolan v. Tigard. Florence Dolan wanted to pave the parking lot and enlarge her store in the city’s busy commercial district. A creek ran across a corner of Dolan’s property. Before it would grant a permit to Dolan to improve her property, the City Planning Commission required her to dedicate a portion of the lot along the creek for two purposes: 1. a public greenway that would minimize potential flooding, and 2. a public pedestrian/bicycle pathway to relieve traffic congestion in the central business district.

In each of these cases, the Supreme Court was asked to decide whether the regulations imposed on property owners amounted to a “taking” of their property. If so, the Fifth Amendment requires that they be paid for the property that was taken.

Key Question

Why are property rights sometimes referred to as a “bundle of sticks”?

Directions

Read the Case Background and Key Question. Then analyze the Documents provided. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of the Documents as well as your own knowledge of history.

Learning Objectives

  • Students trace historical background of government power to take private property for public use.
  • Students analyze modern examples of government regulation and/or taking of private property for public use.

Activities

  1. To set the stage for this lesson, have students brainstorm a list of actions they would expect to be able to take with land that they own. Responses might include:
    • Build structures
    • Plant a garden or trees
    • Sell it
    • Rent it
    • Store items on it
    • Build a fence around it
    • Start and operate a business on it (depending on zoning restrictions)
    • Build a path or sidewalk
    • Prevent others from entering it without permission

    Discuss the principle that no one has a right to use private property in ways that threaten the rights of others. (e.g.: indiscriminate burning, unsightly trash piles, loud music, illegal businesses, etc.)

  2. Assign appropriate documents for student analysis.
  3. Have students complete the handout Graphing Property Rights—Nollan DBQ.
  4. Use Key Question, “Why are property rights sometimes referred to as a “bundle of sticks”? for class discussion or writing assignment, focusing on the constitutional principles involved in the cases.
  5. Discuss
    • Compare the Court’s decisions in the cases addressed to your responses in Activity 1 above.
    • To what extent do you think the Supreme Court majority in each case correctly interpreted the constitutional principles involved?
    • What are the main arguments addressed in the dissenting opinions?

See RESOURCES for additional Graphic Organizers.

Materials

  1. Magna Carta Excerpts (1215)
  2. Blackstone’s Commentaries on the Laws of England (1765)
  3. The Fifth Amendment (1791)
  4. James Kent, Commentaries on American Law, Volume 2 (1827)
  5. Kaiser Aetna v. U.S. (1979), Majority Opinion
  6. Loretto v. Teleprompter Manhattan CATV Corp. (1982), Majority Opinion
  7. The Nollans’ Bungalow and New Home
  8. Nollan v. California Coastal Commission (1987), Majority Opinion
  9. Nollan v. California Coastal Commission (1987), Dissenting Opinion
  10. Dolan v. City of Tigard (1993), Majority Opinion
  11. Dolan v. City of Tigard (1993), Dissenting Opinion

Background Information

Document B: Blackstone’s Commentaries on the Laws of England (1765)
Sir William Blackstone (1723 – 1780) was an English lawyer and judge whose Commentaries on the Laws of England provided an explanation of English common law. Blackstone’s work was very influential in the thinking of America’s Founders, and continues to be frequently used in modern legal reasoning.

Document F: Loretto v. Teleprompter Manhattan CATV Corp. (1982), Majority Opinion (6-3)
A New York law required that landlords allow cable television companies to install permanent mounts for cable equipment on apartment buildings. In 1970, the owner of a five-story apartment building at 303 West 105th Street in New York City agreed to allow Teleprompter Corporation to install equipment to provide cable television services to residents. Installation of the cable components mostly on the roof, included boxes, bolts, and screws, and began in June that year. In 1971, Jean Loretto purchased the building. In 1976, she sued Teleprompter, maintaining that the installation was a trespass and the New York law requiring for it was a taking without just compensation. (She also demanded 5% of the cable company’s gross revenue from the building.) Did this law amount to a “taking” as addressed by the Fifth and Fourteenth Amendments, thereby requiring that government compensate the property owner for this use of the property? The Court said “Yes,” in a 6-3 decision authorized by Justice Thurgood Marshall.

Document J: Dolan v. City of Tigard (1994), Majority Opinion (5-4)
To facilitate flood control and traffic improvements, the City of Tigard, Oregon had adopted land use plans that affected new construction in the Central Business District. Florence Dolan wanted to pave the parking lot and enlarge her plumbing and electric supply store in the city’s busy commercial district. Fanno Creek ran across a corner of Dolan’s property. In order to grant the permit to Dolan to improve her property, the City Planning Commission required her to dedicate a portion of the lot along the creek for two purposes: 1. a public greenway that would minimize potential flooding, and 2. a public pedestrian/bicycle pathway to relieve traffic congestion in the central business district. The goal of the pathway was to encourage people to walk or ride bikes for short trips, rather than driving their cars. The required dedication comprised about ten percent of Dolan’s lot, and she believed the permit conditions amounted to an uncompensated taking of her property. She maintained that the public benefit of the land dedication requirements would not justify the limits on her proposed development of the property. The Land Use Board of Appeals ruled that there was a sufficient relationship between both of the permit requirements and her proposed improvements. First, the larger building and parking area increased the amount of runoff into the creek, thereby increasing the likelihood of flooding. Secondly, the Land Use Board of Appeals argued that the larger store would lead to increased traffic, making the pedestrian/ bike pathway an important alternative artery of transportation.

Justice Scalia had written for the Majority in the 5-4 Nollan v. California Coastal Commission decision in 1987. The majority called for an “essential nexus,” or close connection, between permit requirements and the projected results of proposed property developments. In Dolan v. Tigard, six years later, the Court would provide a more specific explanation regarding just how close that connection needed to be. The vote once again was 5-4, with Chief Justice Rehnquist writing for the Majority.

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