Real property rights in California, both past and future
In the wake of the death of U.S. Supreme Court Justice Antonin Scalia, the news has been flooded with articles focused on the late jurist. Amid the unbridled speculation regarding the circumstances of his passing, the bitter political debate over the appointment of his successor, and the magisterial grandeur of his funeral services, one truth endures: Justice Scalia’s forceful views about constitutional rights were the most significant contribution to his legacy, on and off the Court.
It may well be true that much of the attention paid to Justice Scalia’s work on the Supreme Court has been on its more flamboyant aspects. Some analysts may argue that Scalia’s opinion for the Court in District of Columbia v. Heller, firmly recognizing a personal right protected by the Second Amendment, was the zenith of his tenure on the bench. Others may assert that his most meaningful and passionate positions regarding the Constitution were expressed in vigorous, even splenetic, dissent. However, it is his substantial influence on real property rights in California, both past and future, that I shall address here today.
Nollan v. California Coastal Commission.
Most of you are likely aware of the 1987 U.S. Supreme Court ruling in Nollan v. California Coastal Commission. In that case, the California Coastal Commission had required beachside property owners to dedicate portions of their land for public access to the ocean as a condition of granting a permit to rebuild a home on that property. Writing for the Court’s majority, Justice Scalia held the Commission’s imposition of this condition to be an invalid exercise of its police power, on the ground that the interest served by providing public access to the beach did not advance the Commission’s interest in issuing the permit, and thus constituted an impermissible taking under the Fifth and Fourteenth Amendments. As such, any meaningful discussion about development regulations in California must now account for the “nexus” between the impacts of the development and the governmental conditions imposed on the development.
While Nollan established the necessity for a “nexus” between impacts caused by a project and conditions placed on that project, the scope of that obligation remained uncertain. This situation was resolved by the Court in 1994 in another regulatory dispute, Dolan v. City of Tigard. In that case, the property owner sought a permit to expand and pave the parking lot on her property, and the City of Tigard conditioned its approval on the property owner’s dedication of portions of her property for (1) a public greenway to mitigate flooding exacerbated by that parking lot and (2) a public bicycle and pedestrian pathway to relieve local traffic congestion. Expanding and clarifying the “nexus” requirement found by Justice Scalia in the Nollan case, Chief Justice Rehnquist, joined by Justices Scalia, O’Connor, Kennedy and Thomas, held that, once the requisite “nexus” was found to exist, the Fifth Amendment demands that there be a “rough proportionality” between the impact and the conditions, in concluding that the conditions imposed in this case constituted an uncompensated taking. Along with this decision, Justice Scalia’s ruling in Nollan broke new ground for the court in its analysis and treatment of property rights under the takings clause, and imposed broad restrictions on the power of governmental agencies to impose development conditions.
Development and regulation
This tension between development and regulation continues apace in California, fueled by the state’s unbalanced economic and population growth. In particular, the shortage of affordable housing in many areas around the state has led to statewide efforts to encourage the development of low-cost housing, and expanded initiatives by local governments to increase the stock of such housing through the imposition of set-asides and in-lieu fees on market rate housing developments. One such effort is the City of San Jose’s “inclusionary housing ordinance,” enacted in 2010 and then immediately challenged in the courts as an unconstitutional taking. I wrote a blog article about this case late last year, when the parties challenging this ordinance filed a petition for writ of certiorari with the U.S. Supreme Court, seeking review of the California Supreme Court’s decision upholding the validity of the ordinance.
The challengers’ petition is presently awaiting a conference vote by the Court, which requires approval by four of the justices in order for the Court to hear this case. Given Justice Scalia’s interest in real property rights, he would likely have voted to grant certiorari in this matter, but with his passing, the chances that there are four justices who would vote to allow review have been lessened. Even in death, Justice Scalia may still leave a lasting mark on property rights in California.
