We have sad news to share: our client Patrick Nollan, the courageous plaintiff of Nollan v. California Coastal Commission, the PLF’s first Supreme Court victory – died earlier this month at the age of 76. We offer the Nollan family our deepest condolences. Patrick Nollan’s portrait hangs in our office as an inspiring reminder of his battle for property rights. In the photo, Pat smiles in the sunshine, standing on the coast where he won his right to build his house.
We’ve pulled stories from our archives that help paint a picture of who Pat was and what his historic case meant for the country.
Since Sword and Scales“How a California Family Man Beat Bureaucrats Stopping Him From Building His Dream Home and Changed Property Rights Law Forever,” Summer 2020
By Jaclyn Boudreau, PLF Creative Director
One hour each way, five days a week, was the time Patrick Nollan traveled from his family’s beach home in Ventura County to his job in Los Angeles, where he worked in the district attorney’s office. the city. That’s 70 miles each way, 10 hours a week in the car, at least.
It was definitely worth it, he thought. He could still be home in time to watch the sun go down over the Pacific Ocean from his terrace, which has one hell of a view.
Pat and his wife Marilyn had rented the beach property, with its direct shore access and stunning ocean views, as a weekend getaway. But they liked it so much that at the end of the lease, they exercised their option to buy the land, with the idea of making it their permanent residence. This necessitated replacing the existing one-story structure on the beach lot with a slightly larger two-story house to accommodate the family.
County permits for reconstruction were not difficult to obtain. But because the land was in the coastal zone, reconstruction also required CCC approval. The commission was (and still is) notorious for placing extreme demands on homeowners looking to build anything even remotely near the coast. Patrick Nollan knew it. What he didn’t know, when he submitted his application in February 1982 to demolish the bungalow and build the new house, was that he was beginning a fight that would consume the next half-decade of his life.
The CCC granted the permit, but with quite a large demand. The commission said the proposed second floor on the Nollans’ property created a “psychological barrier” to the ocean. The CCC required, as a condition of the permit, that the Nollans grant an easement to the state for public access to the beach.
This meant that the Nollans would be required to dedicate the entire beach of the property to public access. It would be their gift to the State of California, so to speak, and the CCC had no intention of compensating them.
Pat didn’t like the case – this “psychological barrier” case, in particular, sounded like vague nonsense. But the CCC had an almost unbeaten record in court. So he agreed to their terms and signed the license agreement.
Yet the demands of the CCC stuck in his throat. And then, only after submitting the signed license agreement, did Pat come across an appeal decision detailing a case that the CCC had actually lost in court. So he thought: if they lost once, they could lose again.
Pat called the law firm that won this case on appeal, Pacific Legal Foundation, and asked if they would take her case. The PLF’s lawyers were interested, but since he had already signed the license agreement with the CCC, there was nothing they could do. If he hadn’t signed, the lawyers explained, they could sue, but now he was out of luck.
So Pat took matters into his own hands. He went to the CCC office and told the secretary that he screwed up his permit application. She handed him the unprocessed request, he took it, walked out and tore it to shreds. And remember, this is the 1980s, long before everything was computerized, so destroying this paper application meant it no longer existed. The slate was clean.
Then he called PLF back: “OK, I just tore up my permit application. Will you take my case now? Patrick Nollan had entered the fight.
Since The Los Angeles Times“High Court to decide beach access issue», March 29, 1987
“If the state can just take your property, I don’t think that’s right. It’s a fundamental question of fairness, ”said Patrick Nollan, assistant attorney for the city of Los Angeles, sitting on his terrace. “The way I read the Fifth Amendment, if the public wants property, they have to pay for it.”
When the Nollans decided in 1982 to demolish a cottage on their land and replace it with a three-bedroom house, Coast Commission officials said they had to sign a deed of restriction giving the public the right to “pass and iron” on the dry and sandy earth. beach in front of their house.
According to common law dating from Roman times, the public owns the coastline up to the mean high tide line. In California and most other states, however, the dry portion of the beach above the high water mark may be private property.
Nollan challenged the restriction of the act, first in a Coast Commission hearing and then in state courts. Two courts disagreed on whether building a larger house on the same property was a development that should drive the public away from the beach.
A Ventura court, on behalf of Nollan, said no. “The commission can constitutionally require a public access permit only when the facts of the case before it show that a development project will impose a burden on public access to the coast,” a judge said.
A state appeals court disagreed. He said any development, no matter how small, can be seen as “a brick in a wall” between the public and the beach. The California Supreme Court upheld this decision.
Nollan’s lawyers say that under this theory, the government can do whatever it wants whenever someone wants to build on their property.
“California courts have created a convenient fiction that allows the state to acquire private property without paying,” said the Pacific Legal Foundation, which appealed Nollan’s case to the Supreme Court.
Since Sword and Scales“Drawing a Line in the Sand for Private Property Rights,” Fall 2017
By Robert Best, PLF Trustee and Senior Counsel at Nolan
Presentation of the Nolan the Supreme Court case was a major challenge. There was no compelling precedent. We were asking the Court to make a new law. Because the Court recognized broad powers for the states to regulate land use, we had to establish that the commission was confiscating Patrick Nollan’s right to property to exclude others from his land. He did not regulate the use of his lands.
We pointed out in argument that the distinguishing factor between lawful dedications and unlawful exactions is “whether or not the owner creates a charge, and the exaction is only for the purpose of alleviating that charge”. Judge Stevens, who wrote a dissent, repeatedly pushed the idea that there is no real difference between a by-law prohibiting the erection of a no trespassing sign and the surrender of property required of Nollan. My answer thankfully won the day with the majority of the Court.
“Judge Stevens, I want to emphasize, the Nollans feel that there is a big difference between being told not to do something on their property and being told to allow someone else to do something on their property.”
In the end, we made a new law, to benefit landowners across the country. The opinion of the Court held the exaction demanded by the comission was unconstitutional because Nollan had created no burden for the public that the exaction would alleviate. In the words of the Court, demanding a transfer of property in this circumstance would amount to “extortion”.
In the opinion of the Supreme Court in Nollan v. California Coastal Commission (1987)
By Judge Antonin Scalia
It is quite impossible to understand how requiring people already on public beaches to be able to walk across the Nollans’ property reduces the barriers to viewing the beach created by the new house. It’s also impossible to understand how it lowers any “psychological barrier” to using public beaches, or how it helps alleviate any additional congestion on them caused by the construction of the Nollans’ new home. We therefore find that the comissions the imposition of the permit condition cannot be considered an exercise of its power to use the land for any of these purposes.
Since Sword and Scales“How the PLF still paves the way for property rights”, Fall 2017
By Jim Burling
The government cannot steal. This was the essence of Justice Scalia’s majority opinion in Nollan v. California Coastal Commission. If the government requires someone’s property in exchange for a permit, then the taking of the property must reduce serious harm caused by the permitted development. It is not enough for the government to want the property for “the public good”. Instead, the take must directly reverse harm that would otherwise be caused by the development.