Court rules `no trespassing' on property rights. Two Supreme Court rulings upheld the constitutional rights of landowners - to the delight of developers and the dismay of public planners

CALIFORNIA homeowners James and Marilyn Nollan believe that the right to control the use of their own property is constitutionally protected. So the Nollans went to court and invoked the Fifth Amendment when the California Coastal Commission informed them that, if they wanted a permit to build a new structure on their ocean-front land, they would have to allow public access to the beach.

The Fifth provides, in part, that no ``private property shall be taken for public use, without just compensation.''

James Nollan said that he and his wife were happy to let the public pass through their property to the beach - as long as the users were well behaved and not obnoxious. ``But that's our choice,'' he insisted. Nollan didn't want the government to order him to do so.

The Nollans - and other landowners - were big winners in the United States Supreme Court in late June. The justices, in a close vote (conservatives overruled liberals by one), limited the power of local governments to force homeowners to give public access to their property in return for a building permit.

Associate Justice Antonin Scalia said that if the state ``wants an easement across the Nollans' property, it must pay for it.''

The court's newest member further suggested that if a government agency - such as the Coastal Commission - wants to place limits on owners' use of their property, these restrictions had to be for a specific public purpose related to the agency's mandate.

``In short,'' Mr. Scalia wrote, ``unless the permit condition serves the same government purpose ... the building restriction is not a valid regulation of land use but `an out-and-out plan of extortion.'''

This ruling, as might be expected, brought cheers from property owners, land developers, and the business community at large. It prompted a spokesman for the conservative Pacific Legal Foundation to applaud it as a ``further reaffirmation of the US Supreme Court's role as a defender of private property rights.''

The Wall Street Journal hailed Justice Scalia's reasoning in the case. And it predicted a nationwide ``renaissance of property rights.''

Conversely, land planners sounded an alarm that the decision could inhibit future coastline regulation or zoning in the public interest. The Coastal Commission had argued that there was really no ``taking'' because the public-access condition of the permit did not deprive the Nollans of reasonable use of their property or seriously interfere with their investment-related expectations.

The Nollan ruling came on the heels of another important Supreme Court victory for property owners over government regulators.

Here the justices upheld a claim for ``just compensation'' by a southern California church that was prevented from developing its mountain retreat property by county regulations aimed at flood control.

Invoking the Fifth Amendment, Chief Justice William Rehnquist - writing for a 6-to-3 majority - said that ``government action that works a taking of property rights necessarily implicates the constitutional obligation to pay just compensation.''

In this case, ideology played little part - with arch-liberals William Brennan and Thurgood Marshall voting with Mr. Rehnquist and Scalia. Lewis Powell, since retired, and Byron White filled out the majority.

Associate Justices Harry Blackmun, Sandra Day O'Connor, and John Paul Stevens dissented, with Mr. Stevens suggesting that the court had ``fired a loose cannon'' that questions all zoning regulation and is likely to spawn ``a great deal of ... unproductive litigation.''

Developers are almost gleeful at the ruling. A representative of the National Association of Home Builders called it the ``biggest land-use decision from the Supreme Court since 1926,'' when the court, in a landmark decision, upheld the concept of zoning.

Government officials, however, say the result could force them to reevaluate practices in areas such as coastal management, flood plain restrictions, and open space development. Also likely to be affected is the now-common practice of government's requiring developers to donate land for parks, day care, and other beneficial public uses.

The property- rights issue may take yet another turn next fall when the Supreme Court weighs the authority of communities to impose rent-control laws that require landlords to charge lower rents to low-income tenants.

A Thursday column

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