NOLLAN ET UX. v. CALIFORNIA COASTAL COMMISSION
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT

No. 86-133.

Argued March 30, 1987
Decided June 26, 1987

The California Coastal Commission granted a permit to appellants to replace a small bungalow on their beachfront lot with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located between two public beaches. The County Superior Court granted appellants a writ of administrative mandamus and directed that the permit condition be struck. However, the State Court of Appeal reversed, ruling that imposition of the condition did not violate the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment.

Held:

      1. Although the outright taking of an uncompensated, permanent, public-access easement would violate the Takings Clause, conditioning appellants' rebuilding permit on their granting such an easement would be lawful land-use regulation if it substantially furthered governmental purposes that would justify denial of the permit. The government's power to forbid particular land uses in order to advance some legitimate police-power purpose includes the power to condition such use upon some concession by the owner, even a concession of property rights, so long as the condition furthers the same governmental purpose advanced as justification for prohibiting the use. Pp. 831-837.

      2. Here the Commission's imposition of the access-easement condition cannot be treated as an exercise of land-use regulation power since the condition does not serve public purposes related to the permit requirement. Of those put forth to justify it - protecting the public's ability to see the beach, assisting the public in overcoming a perceived "psychological" barrier to using the beach, and preventing beach congestion - none is plausible. Moreover, the Commission's justification for the access requirement unrelated to land-use regulation - that it is part of a comprehensive program to provide beach access arising from prior coastal permit decisions - is simply an expression of the belief that the public interest will be served by a continuous strip of publicly accessible beach. Although the State is free to advance its "comprehensive program" by exercising its eminent domain power and paying for access easements, it cannot [483 U.S. 825, 826]   compel coastal residents alone to contribute to the realization of that goal. Pp. 838-842.

177 Cal. App. 3d 719, 223 Cal. Rptr. 28, reversed.

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 842. BLACKMUN, J., filed a dissenting opinion, post, p. 865. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 866.

Robert K. Best argued the cause for appellants. With him on the briefs were Ronald A. Zumbrun and Timothy A. Bittle.

Andrea Sheridan Ordin, Chief Assistant Attorney General of California, argued the cause for appellee. With her on the brief were John K. Van de Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, Anthony M. Summers, Supervising Deputy Attorney General, and Jamee Jordan Patterson. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Ayer, Deputy Assistant Attorneys General Marzulla, Hookano, and Kmiec, Richard J. Lazarus, and Peter R. Steenland, Jr.; and for the Breezy Point Cooperative by Walter Pozen.

Briefs of amici curiae urging affirmance were filed for the Commonwealth of Massachusetts et al. by James M. Shannon, Attorney General of Massachusetts, and Lee P. Breckenridge and Nathaniel S. W. Lawrence, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, John Steven Clark of Arkansas, Joseph Lieberman of Connecticut, Charles M. Oberly of Delaware, Robert Butterworth of Florida, Warren Price III of Hawaii, Neil F. Hartigan of Illinois, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Robert M. Spire of Nebraska, Stephen E. Merrill of New Hampshire, W. Cary Edwards of New Jersey, Robert Abrams of New York, Lacy H. Thornburg of North Carolina, Nicholas Spaeth of North Dakota, Dave Frohnmayer of Oregon, James E. O'Neil of Rhode Island, W. J. Michael Cody of Tennessee, Jim Mattox of Texas, Jeffrey Amestoy of Vermont, Kenneth O. Eikenberry of Washington, Charles G. Brown of West Virginia, and Donald J. Hanaway of Wisconsin; [483 U.S. 825, 827]   for the Council of State Government et al. by Benna Ruth Solomon and Joyce Holmes Benjamin; for Designated California Cities and Counties by E. Clement Shute, Jr.; and for the Natural Resources Defense Council et al. by Fredric D. Woocher.

Briefs of amici curiae were filed for the California Association of Realtors by William M. Pfeiffer; and for the National Association of Home Builders et al. by Jerrold A. Fadem, Michael M. Berger, and Gus Bauman. [483 U.S. 825, 827]

JUSTICE SCALIA delivered the opinion of the Court.

James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property. 177 Cal. App. 3d 719, 223 Cal. Rptr. 28 (1986). The California court rejected their claim that imposition of that condition violates the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. Ibid. We noted probable jurisdiction. 479 U.S. 913 (1986).

I

The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary.

The Nollans originally leased their property with an option to buy. The building on the lot was a small bungalow, totaling 504 square feet, which for a time they rented to summer vacationers. After years of rental use, however, the building had fallen into disrepair, and could no longer be rented out. [483 U.S. 825, 828]

The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so, under Cal. Pub. Res. Code Ann. 30106, 30212, and 30600 (West 1986), they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, 1982, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood.

The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side, and their seawall on the other side. This would make it easier for the public to get to Faria County Park and the Cove. The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement. App. 31, 34.

On June 3, 1982, the Nollans filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition. They argued that the condition could not be imposed absent evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case to the Commission for a full evidentiary hearing on that issue. Id., at 36.

On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a `wall' of residential structures" that would prevent the public "psychologically . . . from realizing a stretch of coastline exists nearby that they have every right [483 U.S. 825, 829]   to visit." Id., at 58. The new house would also increase private use of the shorefront. Id., at 59. These effects of construction of the house, along with other area development, would cumulatively "burden the public's ability to traverse to and along the shorefront." Id., at 65-66. Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. Id., at 47-48.

The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, in which they argued that imposition of the access condition violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their favor on statutory grounds, finding, in part to avoid "issues of constitutionality," that the California Coastal Act of 1976, Cal. Pub. Res. Code Ann. 30000 et seq. (West 1986), authorized the Commission to impose public access conditions on coastal development permits for the replacement of an existing single-family home with a new one only where the proposed development would have an adverse impact on public access to the sea. App. 419. In the court's view, the administrative record did not provide an adequate factual basis for concluding that replacement of the bungalow with the house would create a direct or cumulative burden on public access to the sea. Id., at 416-417. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck.

The Commission appealed to the California Court of Appeal. While that appeal was pending, the Nollans satisfied [483 U.S. 825, 830]   the condition on their option to purchase by tearing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action.

The Court of Appeal reversed the Superior Court. 177 Cal. App. 3d 719, 223 Cal. Rptr. 28 (1986). It disagreed with the Superior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 10% larger than that of the house it was replacing be conditioned on a grant of access. Id., at 723-724, 223 Cal. Rptr., at 31; see Cal. Pub. Res. Code Ann. 30212. It also ruled that that requirement did not violate the Constitution under the reasoning of an earlier case of the Court of Appeal, Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148, 212 Cal. Rptr. 578 (1985). In that case, the court had found that so long as a project contributed to the need for public access, even if the project standing alone had not created the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. 177 Cal. App. 3d, at 723, 223 Cal. Rptr., at 30-31; see Grupe, supra, at 165-168, 212 Cal. Rptr., at 587-590; see also Remmenga v. California Coastal Comm'n, 163 Cal. App. 3d 623, 628, 209 Cal. Rptr. 628, 631, appeal dism'd, 474 U.S. 915 (1985). The Court of Appeal ruled that the record established that that was the situation with respect to the Nollans' house. 177 Cal. App. 3d, at 722-723, 223 Cal. Rptr., at 30-31. It ruled that the Nollans' taking claim also failed because, although the condition diminished the value of the Nollans' lot, it did not deprive them of all reasonable use of their property. Id., at 723, 223 Cal. Rptr., at 30; see Grupe, supra, at 175-176, 212 Cal. Rptr., at 595-596. Since, in the Court of Appeal's view, there was no statutory or constitutional obstacle to imposition [483 U.S. 825, 831]   of the access condition, the Superior Court erred in granting the writ of mandamus. The Nollans appealed to this Court, raising only the constitutional question.

II

Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) "a mere restriction on its use," post, at 848-849, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain 2.11. (Rev. 3d ed. 1985), 2 id., 5.015.; see 1 id., 1.429., 2 id., 6.14. Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). In Loretto we observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see 458 U.S., at 432 -433, n. 9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public [483 U.S. 825, 832]   benefit or has only minimal economic impact on the owner," id., at 434-435. We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises. 1

JUSTICE BRENNAN argues that while this might ordinarily be the case, the California Constitution's prohibition on any individual's "exclu[ding] the right of way to [any navigable] water whenever it is required for any public purpose," Art. X, 4, produces a different result here. Post, at 847-848, see also post, at 855, 857. There are a number of difficulties with that argument. Most obviously, the right of way sought here is not naturally described as one to navigable water (from the street to the sea) but along it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, several California cases suggest that JUSTICE BRENNAN's interpretation of the effect of the clause is erroneous, and that to obtain easements of access across private property the State must proceed through its eminent domain power. See Bolsa Land Co. v. Burdick, 151 Cal. 254, 260, 90 P. 532, 534-535 (1907); Oakland v. Oakland Water Front Co., 118 Cal. 160, 185, 50 P. 277, 286 (1897); Heist v. County of Colusa, 163 Cal. App. 3d 841, 851, 213 Cal. Rptr. 278, 285 (1984); Aptos Seascape Corp. v. Santa Cruz, 138 Cal. App. 3d 484, 505-506, 188 Cal. Rptr. 191, 204-205 (1982). (None of these cases specifically addressed [483 U.S. 825, 833]   the argument that Art. X, 4, allowed the public to cross private property to get to navigable water, but if that provision meant what JUSTICE BRENNAN believes, it is hard to see why it was not invoked.) See also 41 Op. Cal. Atty. Gen. 39, 41 (1963) ("In spite of the sweeping provisions of [Art. X, 4], and the injunction therein to the Legislature to give its provisions the most liberal interpretation, the few reported cases in California have adopted the general rule that one may not trespass on private land to get to navigable tidewaters for the purpose of commerce, navigation or fishing"). In light of these uncertainties, and given the fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest its decision on Art. X, 4, post, at 865, we should assuredly not take it upon ourselves to resolve this question of California constitutional law in the first instance. See, e. g., Jenkins v. Anderson, 447 U.S. 231, 234 , n. 1 (1980). That would be doubly inappropriate since the Commission did not advance this argument in the Court of Appeal, and the Nollans argued in the Superior Court that any claim that there was a pre-existing public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrative Mandamus, No. SP50805 (Super. Ct. Cal.), p. 20, which the Commission, possessing no claim to the easement itself, probably would not have had standing under California law to bring. See Cal. Code Civ. Proc. Ann. 738 (West 1980). 2   [483 U.S. 825, 834]

Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land," Agins v. Tiburon, 447 U.S. 255, 260 (1980). See also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127 (1978) ("[A] use restriction may constitute a `taking' if not reasonably necessary to the effectuation of a substantial government purpose"). Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter. 3 They have made clear, however, that a [483 U.S. 825, 835]   broad range of governmental purposes and regulations satisfies these requirements. See Agins v. Tiburon, supra, at 260-262 (scenic zoning); Penn Central Transportation Co. v. New York City, supra (landmark preservation); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (residential zoning); Laitos & Westfall, Government Interference with Private Interests in Public Resources, 11 Harv. Envtl. L. Rev. 1, 66 (1987). The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so - in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction) 4 would substantially impede these purposes, [483 U.S. 825, 836]   unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Transportation Co. v. New York City, supra.

The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house - for example, a height limitation, a width restriction, or a ban on fences - so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing sport on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the [483 U.S. 825, 837]   owner an alternative to that prohibition which accomplishes the same purpose is not.

The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "an out-and-out plan of extortion." J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981); see Brief for United States as Amicus Curiae 22, and n. 20. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S., at 439 , n. 17. 5   [483 U.S. 825, 838]

III

The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The Nollans' new house, the Commission found, will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans' house to use the beach, thus creating a "psychological barrier" to "access." The Nollans' new house will also, by a process not altogether clear from the Commission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a requirement that the Nollans provide "lateral access" to the beach.

Rewriting the argument to eliminate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them [483 U.S. 825, 839]   caused by construction of the Nollans' new house. We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land-use power for any of these purposes. 6 Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts. See Parks v. Watson, 716 F.2d 646, 651-653 (CA9 1983); Bethlehem Evangelical Lutheran Church v. Lakewood, 626 P.2d 668, 671-674 (Colo. 1981); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn. 109, 117-120, 273 A. 2d 880, 885 (1970); Longboat Key v. Lands End, Ltd., 433 So.2d 574 (Fla. App. 1983); Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N. E. 2d 799, 802 (1961); Lampton v. Pinaire, 610 S. W. 2d 915, 918-919 (Ky. App. 1980); Schwing v. Baton Rouge, 249 So.2d 304 (La. App.), application denied, 259 La. 770, 252 So.2d 667 (1971); Howard County v. JJM, Inc., 301 Md. 256, 280-282, 482 A. 2d 908, 920-921 (1984); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976); State ex rel. Noland v. St. Louis County, 478 S. W. 2d 363 (Mo. 1972); [483 U.S. 825, 840]   Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182, 187-188 (1964); Simpson v. North Platte, 206 Neb. 240, 292 N. W. 2d 297 (1980); Briar West, Inc. v. Lincoln, 206 Neb. 172, 291 N. W. 2d 730 (1980); J. E. D. Associates v. Atkinson, 121 N. H. 581, 432 A. 2d 12 (1981); Longridge Builders, Inc. v. Planning Bd. of Princeton, 52 N. J. 348, 350-351, 245 A. 2d 336, 337-338 (1968); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966); MacKall v. White, 85 App. Div. 2d 696, 445 N. Y. S. 2d 486 (1981), appeal denied, 56 N. Y. 2d 503, 435 N. E. 2d 1100 (1982); Frank Ansuini, Inc. v. Cranston, 107 R. I. 63, 68-69, 71, 264 A. 2d 910, 913, 914 (1970); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807 (Tex. 1984); Call v. West Jordan, 614 P.2d 1257, 1258-1259 (Utah 1980); Board of Supervisors of James City County v. Rowe, 216 Va. 128, 136-139, 216 S. E. 2d 199, 207-209 (1975); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 617-618, 137 N. W. 2d 442, 447-449 (1965), appeal dism'd, 385 U.S. 4 (1966). See also Littlefield v. Afton, 785 F.2d 596, 607 (CA8 1986); Brief for National Association of Home Builders et al. as Amici Curiae 9-16.

JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post, at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach and that a person looking from the road would not be able to see it at all. App. 57-59.

Even if the Commission had made the finding that JUSTICE BRENNAN proposes, however, it is not certain that it would [483 U.S. 825, 841]   suffice. We do not share JUSTICE BRENNAN's confidence that the Commission "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post, at 862, that will avoid the effect of today's decision. We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a "substantial advanc[ing]" of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective.

We are left, then, with the Commission's justification for the access requirement unrelated to land-use regulation:

      "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." App. 68.

That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose," [483 U.S. 825, 842]   see U.S. Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it.

      Reversed.

Footnotes
[ Footnote 1 ] The holding of PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), is not inconsistent with this analysis, since there the owner had already opened his property to the general public, and in addition permanent access was not required. The analysis of Kaiser Aetna v. United States, 444 U.S. 164 (1979), is not inconsistent because it was affected by traditional doctrines regarding navigational servitudes. Of course neither of those cases involved, as this one does, a classic right-of-way easement.

[ Footnote 2 ] JUSTICE BRENNAN also suggests that the Commission's public announcement of its intention to condition the rebuilding of houses on the transfer of easements of access caused the Nollans to have "no reasonable claim to any expectation of being able to exclude members of the public" from walking across their beach. Post, at 857-860. He cites our opinion in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), as support for the peculiar proposition that a unilateral claim of entitlement by the government can alter property rights. In Monsanto, however, we found merely that the Takings Clause was not violated by giving effect to the Government's announcement that application for "the right to [the] valuable Government benefit," id., at 1007 (emphasis added), of obtaining registration [483 U.S. 825, 834]   of an insecticide would confer upon the Government a license to use and disclose the trade secrets contained in the application. Id., at 1007-1008. See also Bowen v. Gilliard, ante, at 605. But the right to build on one's own property - even though its exercise can be subjected to legitimate permitting requirements - cannot remotely be described as a "governmental benefit." And thus the announcement that the application for (or granting of) the permit will entail the yielding of a property interest cannot be regarded as establishing the voluntary "exchange," 467 U.S., at 1007 , that we found to have occurred in Monsanto. Nor are the Nollans' rights altered because they acquired the land well after the Commission had begun to implement its policy. So long as the Commission could not have deprived the prior owners of the easement without compensating them, the prior owners must be understood to have transferred their full property rights in conveying the lot.

[ Footnote 3 ] Contrary to JUSTICE BRENNAN's claim, post, at 843, our opinions do not establish that these standards are the same as those applied to due process or equal protection claims. To the contrary, our verbal formulations in the takings field have generally been quite different. We have required that the regulation "substantially advance" the "legitimate state interest" sought to be achieved, Agins v. Tiburon, 447 U.S. 255, 260 (1980), not that "the State `could rationally have decided' that the measure adopted might achieve the State's objective." Post, at 843, quoting Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981). JUSTICE BRENNAN relies principally on an equal protection case, Minnesota v. [483 U.S. 825, 835]   Clover Leaf Creamery Co., supra, and two substantive due process cases, Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487 -488 (1955), and Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952), in support of the standards he would adopt. But there is no reason to believe (and the language of our cases gives some reason to disbelieve) that so long as the regulation of property is at issue the standards for takings challenges, due process challenges, and equal protection challenges are identical; any more than there is any reason to believe that so long as the regulation of speech is at issue the standards for due process challenges, equal protection challenges, and First Amendment challenges are identical. Goldblatt v. Hempstead, 369 U.S. 590 (1962), does appear to assume that the inquiries are the same, but that assumption is inconsistent with the formulations of our later cases.

[ Footnote 4 ] If the Nollans were being singled out to bear the burden of California's attempt to remedy these problems, although they had not contributed to it more than other coastal landowners, the State's action, even if otherwise valid, might violate either the incorporated Takings Clause or the Equal Protection Clause. One of the principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens [483 U.S. 825, 836]   which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. 40, 49 (1960); see also San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 656 (1981) (BRENNAN, J., dissenting); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123 (1978). But that is not the basis of the Nollans' challenge here.

[ Footnote 5 ] One would expect that a regime in which this kind of leveraging of the police power is allowed would produce stringent land-use regulation which the State then waives to accomplish other purposes, leading to lesser realization of the land-use goals purportedly sought to be served than would [483 U.S. 825, 838]   result from more lenient (but nontradeable) development restrictions. Thus, the importance of the purpose underlying the prohibition not only does not justify the imposition of unrelated conditions for eliminating the prohibition, but positively militates against the practice.

[ Footnote 6 ] As JUSTICE BRENNAN notes, the Commission also argued that the construction of the new house would "`increase private use immediately adjacent to public tidelands,'" which in turn might result in more disputes between the Nollans and the public as to the location of the boundary. Post, 851, quoting App. 62. That risk of boundary disputes, however, is inherent in the right to exclude others from one's property, and the construction here can no more justify mandatory dedication of a sort of "buffer zone" in order to avoid boundary disputes than can the construction of an addition to a single-family house near a public street. Moreover, a buffer zone has a boundary as well, and unless that zone is a "no-man's land" that is off limits for both neighbors (which is of course not the case here) its creation achieves nothing except to shift the location of the boundary dispute further on to the private owner's land. It is true that in the distinctive situation of the Nollans' property the seawall could be established as a clear demarcation of the public easement. But since not all of the lands to which this land-use condition applies have such a convenient reference point, the avoidance of boundary disputes is, even more obviously than the others, a made-up purpose of the regulation.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

Appellants in this case sought to construct a new dwelling on their beach lot that would both diminish visual access to the beach and move private development closer to the public tidelands. The Commission reasonably concluded that such "buildout," both individually and cumulatively, threatens public access to the shore. It sought to offset this encroachment by obtaining assurance that the public may walk along the shoreline in order to gain access to the ocean. The Court finds this an illegitimate exercise of the police power, because it maintains that there is no reasonable relationship between the effect of the development and the condition imposed.

The first problem with this conclusion is that the Court imposes a standard of precision for the exercise of a State's police power that has been discredited for the better part of this century. Furthermore, even under the Court's cramped standard, the permit condition imposed in this case directly responds to the specific type of burden on access created by appellants' development. Finally, a review of those factors deemed most significant in takings analysis makes clear that the Commission's action implicates none of the concerns underlying the Takings Clause. The Court has thus struck down the Commission's reasonable effort to respond to intensified development along the California coast, on behalf of landowners who can make no claim that their reasonable expectations have been disrupted. The Court has, in short, given appellants a windfall at the expense of the public.

I

The Court's conclusion that the permit condition imposed on appellants is unreasonable cannot withstand analysis. First, the Court demands a degree of exactitude that is inconsistent [483 U.S. 825, 843]   with our standard for reviewing the rationality of a State's exercise of its police power for the welfare of its citizens. Second, even if the nature of the public-access condition imposed must be identical to the precise burden on access created by appellants, this requirement is plainly satisfied.

A

There can be no dispute that the police power of the States encompasses the authority to impose conditions on private development. See, e. g., Agins v. Tiburon, 447 U.S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); Gorieb v. Fox, 274 U.S. 603 (1927). It is also by now commonplace that this Court's review of the rationality of a State's exercise of its police power demands only that the State "could rationally have decided" that the measure adopted might achieve the State's objective. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (emphasis in original). 1 In this case, California has [483 U.S. 825, 844]   employed its police power in order to condition development upon preservation of public access to the ocean and tidelands. The Coastal Commission, if it had so chosen, could have denied [483 U.S. 825, 845]   the Nollans' request for a development permit, since the property would have remained economically viable without the requested new development. 2 Instead, the State sought to accommodate the Nollans' desire for new development, on the condition that the development not diminish the overall amount of public access to the coastline. Appellants' proposed development would reduce public access by restricting visual access to the beach, by contributing to an increased need for community facilities, and by moving private development closer to public beach property. The Commission sought to offset this diminution in access, and thereby preserve the overall balance of access, by requesting a deed restriction that would ensure "lateral" access: the right of the public to pass and repass along the dry sand parallel to the shoreline in order to reach the tidelands and the ocean. In the expert opinion of the Coastal Commission, development conditioned on such a restriction would fairly attend to both public and private interests.

The Court finds fault with this measure because it regards the condition as insufficiently tailored to address the precise [483 U.S. 825, 846]   type of reduction in access produced by the new development. The Nollans' development blocks visual access, the Court tells us, while the Commission seeks to preserve lateral access along the coastline. Thus, it concludes, the State acted irrationally. Such a narrow conception of rationality, however, has long since been discredited as a judicial arrogation of legislative authority. "To make scientific precision a criterion of constitutional power would be to subject the State to an intolerable supervision hostile to the basic principles of our Government." Sproles v. Binford, 286 U.S. 374, 388 (1932). Cf. Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491 , n. 21 (1987) ("The Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens . . . in excess of the benefits received"). As this Court long ago declared with regard to various forms of restriction on the use of property:

      "Each interferes in the same way, if not to the same extent, with the owner's general right of dominion over his property. All rest for their justification upon the same reasons which have arisen in recent times as a result of the great increase and concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. State legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than the courts to determine the necessity, character, and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable." Gorieb, 274 U.S., at 608 (citations omitted).

The Commission is charged by both the State Constitution and legislature to preserve overall public access to the California coastline. Furthermore, by virtue of its participation in the Coastal Zone Management Act (CZMA) program, the [483 U.S. 825, 847]   State must "exercise effectively [its] responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone," 16 U.S.C. 1452(2), so as to provide for, inter alia, "public access to the coas[t] for recreation purposes." 1452(2)(D). The Commission has sought to discharge its responsibilities in a flexible manner. It has sought to balance private and public interests and to accept tradeoffs: to permit development that reduces access in some ways as long as other means of access are enhanced. In this case, it has determined that the Nollans' burden on access would be offset by a deed restriction that formalizes the public's right to pass along the shore. In its informed judgment, such a tradeoff would preserve the net amount of public access to the coastline. The Court's insistence on a precise fit between the forms of burden and condition on each individual parcel along the California coast would penalize the Commission for its flexibility, hampering the ability to fulfill its public trust mandate.

The Court's demand for this precise fit is based on the assumption that private landowners in this case possess a reasonable expectation regarding the use of their land that the public has attempted to disrupt. In fact, the situation is precisely the reverse: it is private landowners who are the interlopers. The public's expectation of access considerably antedates any private development on the coast. Article X, 4, of the California Constitution, adopted in 1879, declares:

      "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so [483 U.S. 825, 848]   that access to the navigable waters of this State shall always be attainable for the people thereof."

It is therefore private landowners who threaten the disruption of settled public expectations. Where a private landowner has had a reasonable expectation that his or her property will be used for exclusively private purposes, the disruption of this expectation dictates that the government pay if it wishes the property to be used for a public purpose. In this case, however, the State has sought to protect public expectations of access from disruption by private land use. The State's exercise of its police power for this purpose deserves no less deference than any other measure designed to further the welfare of state citizens.

Congress expressly stated in passing the CZMA that "[i]n light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate." 16 U.S.C. 1451(h). It is thus puzzling that the Court characterizes as a "non-land-use justification," ante, at 841, the exercise of the police power to "`provide continuous public access along Faria Beach as the lots undergo development or redevelopment.'" Ibid. (quoting App. 68). The Commission's determination that certain types of development jeopardize public access to the ocean, and that such development should be conditioned on preservation of access, is the essence of responsible land-use planning. The Court's use of an unreasonably demanding standard for determining the rationality of state regulation in this area thus could hamper innovative efforts to preserve an increasingly fragile national resource. 3   [483 U.S. 825, 849]

B

Even if we accept the Court's unusual demand for a precise match between the condition imposed and the specific type of burden on access created by the appellants, the State's action easily satisfies this requirement. First, the lateral access condition serves to dissipate the impression that the beach that lies behind the wall of homes along the shore is for private use only. It requires no exceptional imaginative powers to find plausible the Commission's point that the average person passing along the road in front of a phalanx of imposing permanent residences, including the appellants' new home, is likely to conclude that this particular portion of the shore is not open to the public. If, however, that person can see that numerous people are passing and repassing along the dry sand, this conveys the message that the beach is in fact open for use by the public. Furthermore, those persons who go down to the public beach a quarter-mile away will be able to look down the coastline and see that persons have continuous access to the tidelands, and will observe signs that proclaim the public's right of access over the dry sand. The burden produced by the diminution in visual access - the impression that the beach is not open to the public - is thus directly alleviated by the provision for public access over the dry sand. The Court therefore has an [483 U.S. 825, 850]   unrealistically limited conception of what measures could reasonably be chosen to mitigate the burden produced by a diminution of visual access.

The second flaw in the Court's analysis of the fit between burden and exaction is more fundamental. The Court assumes that the only burden with which the Coastal Commission was concerned was blockage of visual access to the beach. This is incorrect. 4 The Commission specifically stated in its report in support of the permit condition that "[t]he Commission finds that the applicants' proposed development would present an increase in view blockage, an increase in private use of the shorefront, and that this impact would burden the public's ability to traverse to and along the shorefront." App. 65-66 (emphasis added). It declared that the possibility that "the public may get the impression that the beachfront is no longer available for public use" would be "due to the encroaching nature of private use immediately adjacent to the public use, as well as the visual `block' of increased residential build-out impacting the visual quality of the beachfront." Id., at 59 (emphasis added).

The record prepared by the Commission is replete with references to the threat to public access along the coastline resulting from the seaward encroachment of private development along a beach whose mean high-tide line is constantly shifting. As the Commission observed in its report: "The Faria Beach shoreline fluctuates during the year depending on the seasons and accompanying storms, and the public is not always able to traverse the shoreline below the mean [483 U.S. 825, 851]   high tide line." Id., at 67. As a result, the boundary between publicly owned tidelands and privately owned beach is not a stable one, and "[t]he existing seawall is located very near to the mean high water line." Id., at 61. When the beach is at its largest, the seawall is about 10 feet from the mean high-tide mark; "[d]uring the period of the year when the beach suffers erosion, the mean high water line appears to be located either on or beyond the existing seawall." Ibid. Expansion of private development on appellants' lot toward the seawall would thus "increase private use immediately adjacent to public tidelands, which has the potential of causing adverse impacts on the public's ability to traverse the shoreline." Id., at 62. As the Commission explained:

      "The placement of more private use adjacent to public tidelands has the potential of creating use conflicts between the applicants and the public. The results of new private use encroachment into boundary/buffer areas between private and public property can create situations in which landowners intimidate the public and seek to prevent them from using public tidelands because of disputes between the two parties over where the exact boundary between private and public ownership is located. If the applicants' project would result in further seaward encroachment of private use into an area of clouded title, new private use in the subject encroachment area could result in use conflict between private and public entities on the subject shorefront." Id., at 61-62.

The deed restriction on which permit approval was conditioned would directly address this threat to the public's access to the tidelands. It would provide a formal declaration of the public's right of access, thereby ensuring that the shifting character of the tidelands, and the presence of private development immediately adjacent to it, would not jeopardize [483 U.S. 825, 852]   enjoyment of that right. 5 The imposition of the permit condition was therefore directly related to the fact that appellants' development would be "located along a unique stretch of coast where lateral public access is inadequate due to the construction of private residential structures and shoreline protective devices along a fluctuating shoreline." Id., at 68. The deed restriction was crafted to deal with the particular character of the beach along which appellants sought to build, and with the specific problems created by expansion of development toward the public tidelands. In imposing the restriction, the State sought to ensure that such development would not disrupt the historical expectation of the public regarding access to the sea. 6   [483 U.S. 825, 853]

The Court is therefore simply wrong that there is no reasonable relationship between the permit condition and the specific type of burden on public access created by the appellants' proposed development. Even were the Court desirous of assuming the added responsibility of closely monitoring the regulation of development along the California coast, this record reveals rational public action by any conceivable standard.

II

The fact that the Commission's action is a legitimate exercise of the police power does not, of course, insulate it from a takings challenge, for when "regulation goes too far it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). Conventional takings analysis underscores the implausibility of the Court's holding, for it demonstrates that this exercise of California's police power implicates none of the concerns that underlie our takings jurisprudence.

In reviewing a Takings Clause claim, we have regarded as particularly significant the nature of the governmental action and the economic impact of regulation, especially the extent to which regulation interferes with investment-backed expectations. Penn Central, 438 U.S., at 124 . The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast. The physical intrusion permitted by the deed restriction is minimal. The public is permitted the right to pass and repass along the coast in an area from the seawall to the mean high-tide mark. App. 46. This area is at its widest 10 feet, id., at 61, which means that even without the permit condition, the public's right of access permits it to pass on average within a few feet of the seawall. Passage closer to the 8-foot-high rocky seawall will make the [483 U.S. 825, 854]   appellants even less visible to the public than passage along the high-tide area farther out on the beach. The intrusiveness of such passage is even less than the intrusion resulting from the required dedication of a sidewalk in front of private residences, exactions which are commonplace conditions on approval of development. 7 Furthermore, the high-tide line shifts throughout the year, moving up to and beyond the seawall, so that public passage for a portion of the year would either be impossible or would not occur on appellant's property. Finally, although the Commission had the authority to provide for either passive or active recreational use of the property, it chose the least intrusive alternative: a mere right to pass and repass. Id., at 370. 8 As this Court made [483 U.S. 825, 855]   clear in Prune Yard Shopping Center v. Robins, 447 U.S. 74, 83 (1980), physical access to private property in itself creates no takings problem if it does not "unreasonably impair the value or use of [the] property." Appellants can make no tenable claim that either their enjoyment of their property or its value is diminished by the public's ability merely to pass and repass a few feet closer to the seawall beyond which appellants' house is located.

Prune Yard is also relevant in that we acknowledged in that case that public access rested upon a "state constitutional . . . provision that had been construed to create rights to the use of private property by strangers." Id., at 81. In this case, of course, the State is also acting to protect a state constitutional right. See supra, at 847-848 (quoting Art. X, 4, of California Constitution). The constitutional provision guaranteeing public access to the ocean states that "the Legislature shall enact such laws as will give the most liberal construction to this provision so that access to the navigable waters of this State shall be always attainable for the people thereof." Cal. Const., Art. X, 4 (emphasis added). This provision is the explicit basis for the statutory directive to provide for public access along the coast in new development projects, Cal. Pub. Res. Code Ann. 30212 (West 1986), and has been construed by the state judiciary to permit passage over private land where necessary to gain access to the tidelands. Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148, 171-172, 212 Cal. Rptr. 578, 592-593 (1985). The physical access to the perimeter of appellants' property at issue in this case thus results directly from the State's enforcement of the State Constitution.

Finally, the character of the regulation in this case is not unilateral government action, but a condition on approval of a development request submitted by appellants. The State has not sought to interfere with any pre-existing property interest, but has responded to appellants' proposal to intensify development on the coast. Appellants themselves chose to [483 U.S. 825, 856]   submit a new development application, and could claim no property interest in its approval. They were aware that approval of such development would be conditioned on preservation of adequate public access to the ocean. The State has initiated no action against appellants' property; had the Nollans' not proposed more intensive development in the coastal zone, they would never have been subject to the provision that they challenge.

Examination of the economic impact of the Commission's action reinforces the conclusion that no taking has occurred. Allowing appellants to intensify development along the coast in exchange for ensuring public access to the ocean is a classic instance of government action that produces a "reciprocity of advantage." Pennsylvania Coal, 260 U.S., at 415 . Appellants have been allowed to replace a one-story, 521-square-foot beach home with a two-story, 1,674-square-foot residence and an attached two-car garage, resulting in development covering 2,464 square feet of the lot. Such development obviously significantly increases the value of appellants' property; appellants make no contention that this increase is offset by any diminution in value resulting from the deed restriction, much less that the restriction made the property less valuable than it would have been without the new construction. Furthermore, appellants gain an additional benefit from the Commission's permit condition program. They are able to walk along the beach beyond the confines of their own property only because the Commission has required deed restrictions as a condition of approving other new beach developments. 9 Thus, appellants benefit both as private landowners and as members of the public from the fact that new development permit requests are conditioned on preservation of public access. [483 U.S. 825, 857]

Ultimately, appellants' claim of economic injury is flawed because it rests on the assumption of entitlement to the full value of their new development. Appellants submitted a proposal for more intensive development of the coast, which the Commission was under no obligation to approve, and now argue that a regulation designed to ameliorate the impact of that development deprives them of the full value of their improvements. Even if this novel claim were somehow cognizable, it is not significant. "[T]he interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests." Andrus v. Allard, 444 U.S. 51, 66 (1979).

With respect to appellants' investment-backed expectations, appellants can make no reasonable claim to any expectation of being able to exclude members of the public from crossing the edge of their property to gain access to the ocean. It is axiomatic, of course, that state law is the source of those strands that constitute a property owner's bundle of property rights. "[A]s a general proposition[,] the law of real property is, under our Constitution, left to the individual States to develop and administer." Hughes v. Washington, 389 U.S. 290, 295 (1967) (Stewart, J., concurring). See also Borax Consolidated, Ltd. v. Los Angeles, 296 U.S. 10, 22 (1935) ("Rights and interests in the tideland, which is subject to the sovereignty of the State, are matters of local law"). In this case, the State Constitution explicitly states that no one possessing the "frontage" of any "navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose." Cal. Const., Art. X, 4. The state Code expressly provides that, save for exceptions not relevant here, "[p]ublic access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects." Cal. Pub. Res. Code Ann. 30212 (West 1986). The Coastal Commission Interpretative Guidelines make clear that fulfillment of the Commission's constitutional and statutory duty [483 U.S. 825, 858]   requires that approval of new coastline development be conditioned upon provisions ensuring lateral public access to the ocean. App. 362. At the time of appellants' permit request, the Commission had conditioned all 43 of the proposals for coastal new development in the Faria Family Beach Tract on the provision of deed restrictions ensuring lateral access along the shore. Id., at 48. Finally, the Faria family had leased the beach property since the early part of this century, and "the Faria family and their lessees [including the Nollans] had not interfered with public use of the beachfront within the Tract, so long as public use was limited to pass and repass lateral access along the shore." Ibid. California therefore has clearly established that the power of exclusion for which appellants seek compensation simply is not a strand in the bundle of appellants' property rights, and appellants have never acted as if it were. Given this state of affairs, appellants cannot claim that the deed restriction has deprived them of a reasonable expectation to exclude from their property persons desiring to gain access to the sea.

Even were we somehow to concede a pre-existing expectation of a right to exclude, appellants were clearly on notice when requesting a new development permit that a condition of approval would be a provision ensuring public lateral access to the shore. Thus, they surely could have had no expectation that they could obtain approval of their new development and exercise any right of exclusion afterward. In this respect, this case is quite similar to Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). In Monsanto, the respondent had submitted trade data to the Environmental Protection Agency (EPA) for the purpose of obtaining registration of certain pesticides. The company claimed that the agency's disclosure of certain data in accordance with the relevant regulatory statute constituted a taking. The Court conceded that the data in question constituted property under state law. It also found, however, that certain of the data had been submitted to the agency after Congress had [483 U.S. 825, 859]   made clear that only limited confidentiality would be given data submitted for registration purposes. The Court observed that the statute served to inform Monsanto of the various conditions under which data might be released, and stated:

      "If, despite the data-consideration and data-disclosure provisions in the statute, Monsanto chose to submit the requisite data in order to receive a registration, it can hardly argue that its reasonable investment-backed expectations are disturbed when EPA acts to use or disclose the data in a manner that was authorized by law at the time of the submission." Id., at 1006-1007.

The Court rejected respondent's argument that the requirement that it relinquish some confidentiality imposed an unconstitutional condition on receipt of a Government benefit:

      "[A]s long as Monsanto is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of a registration can hardly be called a taking." Id., at 1007.

The similarity of this case to Monsanto is obvious. Appellants were aware that stringent regulation of development along the California coast had been in place at least since 1976. The specific deed restriction to which the Commission sought to subject them had been imposed since 1979 on all 43 shoreline new development projects in the Faria Family Beach Tract. App. 48. Such regulation to ensure public access to the ocean had been directly authorized by California citizens in 1972, and reflected their judgment that restrictions on coastal development represented "`the advantage of living and doing business in a civilized community.'" Andrus v. Allard, supra, at 67, quoting Pennsylvania Coal Co. v. Mahon, 260 U.S., at 422 (Brandeis, J., dissenting). The deed restriction was "authorized by law at the [483 U.S. 825, 860]   time of [appellants' permit] submission," Monsanto, supra, at 1007, and, as earlier analysis demonstrates, supra, at 849-853, was reasonably related to the objective of ensuring public access. Appellants thus were on notice that new developments would be approved only if provisions were made for lateral beach access. In requesting a new development permit from the Commission, they could have no reasonable expectation of, and had no entitlement to, approval of their permit application without any deed restriction ensuring public access to the ocean. As a result, analysis of appellants' investment-backed expectations reveals that "the force of this factor is so overwhelming . . . that it disposes of the taking question." Monsanto, supra, at 1005. 10

Standard Takings Clause analysis thus indicates that the Court employs its unduly restrictive standard of police power rationality to find a taking where neither the character of governmental action nor the nature of the private interest affected raise any takings concern. The result is that the Court invalidates regulation that represents a reasonable adjustment [483 U.S. 825, 861]   of the burdens and benefits of development along the California coast.

III

The foregoing analysis makes clear that the State has taken no property from appellants. Imposition of the permit condition in this case represents the State's reasonable exercise of its police power. The Coastal Commission has drawn on its expertise to preserve the balance between private development and public access, by requiring that any project that intensifies development on the increasingly crowded California coast must be offset by gains in public access. Under the normal standard for review of the police power, this provision is eminently reasonable. Even accepting the Court's novel insistence on a precise quid pro quo of burdens and benefits, there is a reasonable relationship between the public benefit and the burden created by appellants' development. The movement of development closer to the ocean creates the prospect of encroachment on public tidelands, because of fluctuation in the mean high-tide line. The deed restriction ensures that disputes about the boundary between private and public property will not deter the public from exercising its right to have access to the sea.

Furthermore, consideration of the Commission's action under traditional takings analysis underscores the absence of any viable takings claim. The deed restriction permits the public only to pass and repass along a narrow strip of beach, a few feet closer to a seawall at the periphery of appellants' property. Appellants almost surely have enjoyed an increase in the value of their property even with the restriction, because they have been allowed to build a significantly larger new home with garage on their lot. Finally, appellants can claim the disruption of no expectation interest, both because they have no right to exclude the public under state law, and because, even if they did, they had full advance notice that new development along the coast is conditioned on provisions for continued public access to the ocean. [483 U.S. 825, 862]

Fortunately, the Court's decision regarding this application of the Commission's permit program will probably have little ultimate impact either on this parcel in particular or the Commission program in general. A preliminary study by a Senior Lands Agent in the State Attorney General's Office indicates that the portion of the beach at issue in this case likely belongs to the public. App. 85. 11 Since a full study had not been completed at the time of appellants' permit application, the deed restriction was requested "without regard to the possibility that the applicant is proposing development on public land." Id., at 45. Furthermore, analysis by the same Lands Agent also indicated that the public had obtained a prescriptive right to the use of Faria Beach from the seawall to the ocean. Id., at 86. 12 The Superior Court explicitly stated in its ruling against the Commission on the permit condition issue that "no part of this opinion is intended to foreclose the public's opportunity to adjudicate the possibility that public rights in [appellants'] beach have been acquired through prescriptive use." Id., at 420.

With respect to the permit condition program in general, the Commission should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access produced by new development. Neither the Commission in its report nor the State in its briefs and at argument highlighted the particular threat to lateral access created by appellants' [483 U.S. 825, 863]   development project. In defending its action, the State emphasized the general point that overall access to the beach had been preserved, since the diminution of access created by the project had been offset by the gain in lateral access. This approach is understandable, given that the State relied on the reasonable assumption that its action was justified under the normal standard of review for determining legitimate exercises of a State's police power. In the future, alerted to the Court's apparently more demanding requirement, it need only make clear that a provision for public access directly responds to a particular type of burden on access created by a new development. Even if I did not believe that the record in this case satisfies this requirement, I would have to acknowledge that the record's documentation of the impact of coastal development indicates that the Commission should have little problem presenting its findings in a way that avoids a takings problem.

Nonetheless it is important to point out that the Court's insistence on a precise accounting system in this case is insensitive to the fact that increasing intensity of development in many areas calls for farsighted, comprehensive planning that takes into account both the interdependence of land uses and the cumulative impact of development. 13 As one scholar has noted:

      "Property does not exist in isolation. Particular parcels are tied to one another in complex ways, and property is [483 U.S. 825, 864]   more accurately described as being inextricably part of a network of relationships that is neither limited to, nor usefully defined by, the property boundaries with which the legal system is accustomed to dealing. Frequently, use of any given parcel of property is at the same time effectively a use of, or a demand upon, property beyond the border of the user." Sax, Takings, Private Property, and Public Rights, 81 Yale L. J. 149, 152 (1971) (footnote omitted).

As Congress has declared: "The key to more effective protection and use of the land and water resources of the coastal zone [is for the states to] develo[p] land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance." 16 U.S.C. 1451(i). This is clearly a call for a focus on the overall impact of development on coastal areas. State agencies therefore require considerable flexibility in responding to private desires for development in a way that guarantees the preservation of public access to the coast. They should be encouraged to regulate development in the context of the overall balance of competing uses of the shoreline. The Court today does precisely the opposite, overruling an eminently reasonable exercise of an expert state agency's judgment, substituting its own narrow view of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the 20th century. I can only hope that today's decision is an aberration, and that a broader vision ultimately prevails. 14

I dissent.

[ Footnote 1 ] See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 487 -488 (1955) ("[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it"); Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 423 (1952) ("Our recent decisions make it plain that we do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. . . . [S]tate legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare").

Notwithstanding the suggestion otherwise, ante, at 834-835, n. 3, our standard for reviewing the threshold question whether an exercise of the police power is legitimate is a uniform one. As we stated over 25 years ago in addressing a takings challenge to government regulation:

      "The term `police power' connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of `reasonableness,' this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U.S. 133, 137 (1894), is still valid today: . . . `[I]t must appear, first, that the interests of the public . . . require [government] [483 U.S. 825, 844]   interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.' Even this rule is not applied with strict precision, for this Court has often said that `debatable questions as to reasonableness are not for the courts but for the legislature . . . .' E. g., Sproles v. Binford, 286 U.S. 374, 388 (1932)." Goldblatt v. Hempstead, 369 U.S. 590, 594 -595 (1962).

See also id., at 596 (upholding regulation from takings challenge with citation to, inter alia, United States v. Carolene Products Co., 304 U.S. 144, 154 (1938), for proposition that exercise of police power will be upheld if "any state of facts either known or which could be reasonably assumed affords support for it"). In Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211 (1986), for instance, we reviewed a takings challenge to statutory provisions that had been held to be a legitimate exercise of the police power under due process analysis in Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U.S. 717 (1984). Gray, in turn, had relied on Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976). In rejecting the takings argument that the provisions were not within Congress' regulatory power, the Court in Connolly stated: "Although both Gray and Turner Elkhorn were due process cases, it would be surprising indeed to discover now that in both cases Congress unconstitutionally had taken the assets of the employers there involved." 475 U.S., at 223 . Our phraseology may differ slightly from case to case - e. g., regulation must "substantially advance," Agins v. Tiburon, 447 U.S. 255, 260 (1980), or be "reasonably necessary to," Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127 (1978), the government's end. These minor differences cannot, however, obscure the fact that the inquiry in each case is the same.

Of course, government action may be a valid exercise of the police power and still violate specific provisions of the Constitution. JUSTICE SCALIA is certainly correct in observing that challenges founded upon these provisions are reviewed under different standards. Ante, at 834-835, n. 3. Our consideration of factors such as those identified in Penn Central, supra, for instance, provides an analytical framework for protecting the values underlying the Takings Clause, and other distinctive approaches are utilized to give effect to other constitutional provisions. This is far different, however, from the use of different standards of review to address the threshold issue of the rationality of government action.

[ Footnote 2 ] As this Court declared in United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985):

      "A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself `take' the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent `economically viable' use of the land in question can it be said that a taking has occurred."

We also stated in Kaiser Aetna v. United States, 444 U.S. 164, 179 (1979), with respect to dredging to create a private marina:

      "We have not the slightest doubt that the Government could have refused to allow such dredging on the ground that it would have impaired navigation in the bay, or could have conditioned its approval of the dredging on petitioners' agreement to comply with various measures that it deemed appropriate for the promotion of navigation."

[ Footnote 3 ] The list of cases cited by the Court as support for its approach, ante, at 839-840, includes no instance in which the State sought to vindicate preexisting rights of access to navigable water, and consists principally of cases involving a requirement of the dedication of land as a condition of subdivision approval. Dedication, of course, requires the surrender of [483 U.S. 825, 849]   ownership of property rather than, as in this case, a mere restriction on its use. The only case pertaining to beach access among those cited by the Court is MacKall v. White, 85 App. Div. 2d 696, 445 N. Y. S. 2d 486 (1981). In that case, the court found that a subdivision application could not be conditioned upon a declaration that the landowner would not hinder the public from using a trail that had been used to gain access to a bay. The trail had been used despite posted warnings prohibiting passage, and despite the owner's resistance to such use. In that case, unlike this one, neither the State Constitution, state statute, administrative practice, nor the conduct of the landowner operated to create any reasonable expectation of a right of public access.

[ Footnote 4 ] This may be because the State in its briefs and at argument contended merely that the permit condition would serve to preserve overall public access, by offsetting the diminution in access resulting from the project, such as, inter alia, blocking the public's view of the beach. The State's position no doubt reflected the reasonable assumption that the Court would evaluate the rationality of its exercise of the police power in accordance with the traditional standard of review, and that the Court would not attempt to substitute its judgment about the best way to preserve overall public access to the ocean at the Faria Family Beach Tract.

[ Footnote 5 ] As the Commission's Public Access (Shoreline) Interpretative Guidelines state:

      "[T]he provision of lateral access recognizes the potential for conflicts between public and private use and creates a type of access that allows the public to move freely along all the tidelands in an area that can be clearly delineated and distinguished from private use areas. . . . Thus the `need' determination set forth in P[ublic] R[esources] C[ode] 30212(a)(2) should be measured in terms of providing access that buffers public access to the tidelands from the burdens generated on access by private development." App. 358-359.

[ Footnote 6 ] The Court suggests that the risk of boundary disputes "is inherent in the right to exclude others from one's property," and thus cannot serve as a purpose to support the permit condition. Ante, at 839, n. 6. The Commission sought the deed restriction, however, not to address a generalized problem inherent in any system of property, but to address the particular problem created by the shifting high-tide line along Faria Beach. Unlike the typical area in which a boundary is delineated reasonably clearly, the very problem on Faria Beach is that the boundary is not constant. The area open to public use therefore is frequently in question, and, as the discussion, supra, demonstrates, the Commission clearly tailored its permit condition precisely to address this specific problem.

The Court acknowledges that the Nollans' seawall could provide "a clear demarcation of the public easement," and thus avoid merely shifting "the location of the boundary dispute further on to the private owner's land." Ibid. It nonetheless faults the Commission because every property subject to regulation may not have this feature. This case, however, is a challenge [483 U.S. 825, 853]   to the permit condition as applied to the Nollans' property, so the presence or absence of seawalls on other property is irrelevant.

[ Footnote 7 ] See, e. g., Bellefontaine Neighbors v. J. J. Kelley Realty & Bldg. Co., 460 S. W. 2d 298 (Mo. Ct. App. 1970); Allen v. Stockwell, 210 Mich. 488, 178 N. W. 27 (1920). See generally Shultz & Kelley, Subdivision Improvement Requirements and Guarantees: A Primer, 28 Wash. U. J. Urban and Contemp. L. 3 (1985).

[ Footnote 8 ] The Commission acted in accordance with its Guidelines both in determining the width of the area of passage, and in prohibiting any recreational use of the property. The Guidelines state that it may be necessary on occasion to provide for less than the normal 25-foot-wide accessway along the dry sand when this may be necessary to "protect the privacy rights of adjacent property owners." App. 363. They also provide this advice in selecting the type of public use that may be permitted:

      "Pass and Repass. Where topographic constraints of the site make use of the beach dangerous, where habitat values of the shoreline would be adversely impacted by public use of the shoreline or where the accessway may encroach closer than 20 feet to a residential structure, the accessway may be limited to the right of the public to pass and repass along the access area. For the purposes of these guidelines, pass and repass is defined as the right to walk and run along the shoreline. This would provide for public access along the shoreline but would not allow for any additional use of the accessway. Because this severely limits the public's ability to enjoy the adjacent state owned tidelands by restricting the potential use of the access areas, this form of access dedication should be used only where necessary to protect the habitat values of the site, where topographic constraints warrant the restriction, or where it is necessary to protect the privacy of the landowner." Id., at 370.

[ Footnote 9 ] At the time of the Nollans' permit application, 43 of the permit requests for development along the Faria Beach had been conditioned on deed restrictions ensuring lateral public access along the shoreline. App. 48.

[ Footnote 10 ] The Court suggests that Ruckelshaus v. Monsanto is distinguishable, because government regulation of property in that case was a condition on receipt of a "government benefit," while here regulation takes the form of a restriction on "the right to build on one's own property," which "cannot remotely be described as a `government benefit.'" Ante, at 834, n. 2. This proffered distinction is not persuasive. Both Monsanto and the Nollans hold property whose use is subject to regulation; Monsanto may not sell its property without obtaining government approval and the Nollans may not build new development on their property without government approval. Obtaining such approval is as much a "government benefit" for the Nollans as it is for Monsanto. If the Court is somehow suggesting that "the right to build on one's own property" has some privileged natural rights status, the argument is a curious one. By any traditional labor theory of value justification for property rights, for instance, see, e. g., J. Locke, The Second Treatise of Civil Government 15-26 (E. Gough, ed. 1947), Monsanto would have a superior claim, for the chemical formulae which constitute its property only came into being by virtue of Monsanto's efforts.

[ Footnote 11 ] The Senior Lands Agent's report to the Commission states that "based on my observations, presently, most, if not all of Faria Beach waterward of the existing seawalls [lies] below the Mean High Tide Level, and would fall in public domain or sovereign category of ownership." App. 85 (emphasis added).

[ Footnote 12 ] The Senior Lands Agent's report stated:

      "Based on my past experience and my investigation to date of this property it is my opinion that the area seaward of the revetment at 3822 Pacific Coast Highway, Faria Beach, as well as all the area seaward of the revetments built to protect the Faria Beach community, if not public owned, has been impliedly dedicated to the public for passive recreational use." Id., at 86.

[ Footnote 13 ] As the California Court of Appeal noted in 1985: "Since 1972, permission has been granted to construct more than 42,000 building units within the land jurisdiction of the Coastal Commission. In addition, pressure for development along the coast is expected to increase since approximately 85% of California's population lives within 30 miles of the coast." Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148, 167, n. 12, 212 Cal. Rptr. 578, 589, n. 12. See also Coastal Zone Management Act, 16 U.S.C. 1451(c) (increasing demands on coastal zones "have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion").

[ Footnote 14 ] I believe that States should be afforded considerable latitude in regulating private development, without fear that their regulatory efforts will often be found to constitute a taking. "If . . . regulation denies the private property owner the use and enjoyment of his land and is found to effect a `taking,'" however, I believe that compensation is the appropriate remedy for this constitutional violation. San Diego Gas & Electric Co. v. San [483 U.S. 825, 865]   Diego, 450 U.S. 621, 656 (1981) (BRENNAN, J., dissenting) (emphasis added). I therefore see my dissent here as completely consistent with my position in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987). [483 U.S. 825, 865]

JUSTICE BLACKMUN, dissenting.

I do not understand the Court's opinion in this case to implicate in any way the public-trust doctrine. The Court certainly had no reason to address the issue, for the Court of Appeal of California did not rest its decision on Art. X, 4, of the California Constitution. Nor did the parties base their arguments before this Court on the doctrine.

I disagree with the Court's rigid interpretation of the necessary correlation between a burden created by development and a condition imposed pursuant to the State's police power to mitigate that burden. The land-use problems this country faces require creative solutions. These are not advanced by an "eye for an eye" mentality. The close nexus between benefits and burdens that the Court now imposes on permit conditions creates an anomaly in the ordinary requirement that a State's exercise of its police power need be no more than rationally based. See, e. g., Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981). In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public access to the beach. Coastal development by its very nature makes public access to the shore generally more difficult. Appellants' structure is part of that general development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants' construction permitting public passage that ensures access along the beach.

Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, [483 U.S. 825, 866]   has a nonexistent economic effect on the value of appellants' property. No investment-backed expectations were diminished. It is significant that the Nollans had notice of the easement before they purchased the property and that public use of the beach had been permitted for decades.

For these reasons, I respectfully dissent.

JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.

The debate between the Court and JUSTICE BRENNAN illustrates an extremely important point concerning government regulation of the use of privately owned real estate. Intelligent, well-informed public officials may in good faith disagree about the validity of specific types of land-use regulation. Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), local governments and officials must pay the price for the necessarily vague standards in this area of the law.

In his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981), JUSTICE BRENNAN proposed a brand new constitutional rule. * He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should automatically give rise to pecuniary liability for a "temporary taking." Id., at 653-661. Notwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment [483 U.S. 825, 867]   and the public welfare, six Members of the Court recently endorsed JUSTICE BRENNAN'S novel proposal. See First English Evangelical Lutheran Church, supra.

I write today to identify the severe tension between that dramatic development in the law and the view expressed by JUSTICE BRENNAN's dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flexibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante, at 846-848. I like the hat that JUSTICE BRENNAN has donned today better than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his position prevailed in this case, however, it would be of little solace to landuse planners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case demonstrates, the rule of liability created by the Court in First English is a shortsighted one. Like JUSTICE BRENNAN, I hope that "a broader vision ultimately prevails." Ante, at 864.

I respectfully dissent.

[ Footnote * ] "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a `taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the `taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." 450 U.S., at 658 . [483 U.S. 825, 868]

______________________________________

FIRST ENGLISH EVANGELICAL LUTHERAN CHURCH OF GLENDALE v. COUNTY
OF LOS ANGELES, CALIFORNIA
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
No. 85-1199.

Argued January 14, 1987
Decided June 9, 1987

In 1957, appellant church purchased land on which it operated a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children. The land is located in a canyon along the banks of a creek that is the natural drainage channel for a watershed area. In 1978, a flood destroyed Lutherglen's buildings. In response to the flood, appellee Los Angeles County, in 1979, adopted an interim ordinance prohibiting the construction or reconstruction of any building or structure in an interim flood protection area that included the land on which Lutherglen had stood. Shortly after the ordinance was adopted, appellant filed suit in a California court, alleging, inter alia, that the ordinance denied appellant all use of Lutherglen, and seeking to recover damages in inverse condemnation for such loss of use. The court granted a motion to strike the allegation, basing its ruling on Agins v. Tiburon, 24 Cal. 3d 266, 598 P.2d 25, aff'd on other grounds, 447 U.S. 255 , in which the California Supreme Court held that a landowner may not maintain an inverse condemnation suit based upon a "regulatory" taking, and that compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Because appellant alleged a regulatory taking and sought only damages, the trial court deemed the allegation that the ordinance denied all use of Lutherglen to be irrelevant. The California Court of Appeal affirmed.

Held:

      1. The claim that the Agins case improperly held that the Just Compensation Clause of the Fifth Amendment does not require compensation as a remedy for "temporary" regulatory takings - those regulatory takings which are ultimately invalidated by the courts - is properly presented in this case. In earlier cases, this Court was unable to reach the question because either the regulations considered to be in issue by the state courts did not effect a taking, or the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. Here, the California Court of Appeal assumed [482 U.S. 304, 305]   that the complaint sought damages for the uncompensated "taking" of all use of Lutherglen by the ordinance, and relied on the California Supreme Court's Agins decision for the conclusion that the remedy for the taking was limited to nonmonetary relief, thus isolating the remedial question for this Court's consideration. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 ; Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 ; San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 ; and Agins, all distinguished. Pp. 311-313.

      2. Under the Just Compensation Clause, where the government has "taken" property by a land-use regulation, the landowner may recover damages for the time before it is finally determined that the regulation constitutes a "taking" of his property. The Clause is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. "Temporary" regulatory takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings for which the Constitution clearly requires compensation. Once a court determines that a taking has occurred, the government retains the whole range of options already available - amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. But where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Invalidation of the ordinance without payment of fair value for the use of the property during such period would be a constitutionally insufficient remedy. Pp. 314-322.

Reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in Parts I and III of which BLACKMUN and O'CONNOR, JJ., joined, post, p. 322.

Michael M. Berger argued the cause for appellant. With him on the briefs was Jerrold A. Fadem. [482 U.S. 304, 306]

Jack R. White argued the cause for appellee. With him on the brief were DeWitt W. Clinton, Charles J. Moore, and Darlene B. Fischer. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the American College of Real Estate Lawyers by Robert O. Hetlage, David A. Richards, Eugene J. Morris, and John P. Trevaskis, Jr.; for the California Association of Realtors by William M. Pfeiffer; for the California Building Industry Association by Gideon Kanner; for the National Association of Home Builders by Kenneth B. Bley and Gus Bauman; for the National Association of Realtors by William D. North; and for the Pacific Legal Foundation et al. by Ronald A. Zumbrun and Robert K. Best.

Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Ayer, Deputy Assistant Attorneys General Marzulla, Hookano, and Kmiec, and Edwin S. Kneedler and Peter R. Steenland, Jr.; for the State of California et al. by John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, and Craig C. Thompson and Richard M. Frank, Deputy Attorneys General, joined by the Attorneys General for their respective States as follows: Harold M. Brown of Alaska, John Steven Clark of Arkansas, Jim Smith of Florida, Corinne K. A. Watanabe of Hawaii, Neil F. Hartigan of Illinois, James E. Tierney of Maine, Francis X. Bellotti of Massachusetts, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, William L. Webster of Missouri, Stephen E. Merrill of New Hampshire, Robert Abrams of New York, Nicholas J. Spaeth of North Dakota, Michael Turpin of Oklahoma, T. Travis Medlock of South Carolina, Mark V. Meierhenry of South Dakota, Jim Maddox of Texas, David L. Wilkinson of Utah, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Kenneth O. Eikenberry of Washington, Archie G. McClintock of Wyoming, and Hector Rivera Cruz of Puerto Rico; for the city of Los Angeles et al. by Gary R. Netzer, Claudia McGee Henry, and Anthony Saul Alperin; for the National Association of Counties et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Beate Bloch; and for the Conservation Foundation et al. by Fred P. Bosselman and Elizabeth S. Merritt.

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

In this case the California Court of Appeal held that a landowner who claims that his property has been "taken" by a land-use regulation may not recover damages for the time before [482 U.S. 304, 307]   it is finally determined that the regulation constitutes a "taking" of his property. We disagree, and conclude that in these circumstances the Fifth and Fourteenth Amendments to the United States Constitution would require compensation for that period.

In 1957, appellant First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of the Middle Fork of Mill Creek in the Angeles National Forest. The Middle Fork is the natural drainage channel for a watershed area owned by the National Forest Service. Twelve of the acres owned by the church are flat land, and contained a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across the creek. The church operated on the site a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children.

In July 1977, a forest fire denuded the hills upstream from Lutherglen, destroying approximately 3,860 acres of the watershed area and creating a serious flood hazard. Such flooding occurred on February 9 and 10, 1978, when a storm dropped 11 inches of rain in the watershed. The runoff from the storm overflowed the banks of the Mill Creek, flooding Lutherglen and destroying its buildings.

In response to the flooding of the canyon, appellee County of Los Angeles adopted Interim Ordinance No. 11,855 in January 1979. The ordinance provided that "[a] person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon . . . ." App. to Juris. Statement A31. The ordinance was effective immediately because the county determined that it was "required for the immediate preservation of the public health and safety . . . ." Id., at A32. The interim flood protection area described by the ordinance included the flat areas on either side of Mill Creek on which Lutherglen had stood. [482 U.S. 304, 308]

The church filed a complaint in the Superior Court of California a little more than a month after the ordinance was adopted. As subsequently amended, the complaint alleged two claims against the county and the Los Angeles County Flood Control District. The first alleged that the defendants were liable under Cal. Govt. Code Ann. 835 (West 1980) 1 for dangerous conditions on their upstream properties that contributed to the flooding of Lutherglen. As a part of this claim, appellant also alleged that "Ordinance No. 11,855 denies [appellant] all use of Lutherglen." App. 12, 49. The second claim sought to recover from the Flood Control District in inverse condemnation and in tort for engaging in cloud seeding during the storm that flooded Lutherglen. Appellant sought damages under each count for loss of use of Lutherglen. The defendants moved to strike the portions of the complaint alleging that the county's ordinance denied all use of Lutherglen, on the view that the California Supreme Court's decision in Agins v. Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979), aff'd on other grounds, 447 U.S. 255 (1980), rendered the allegation "entirely immaterial and irrelevant[, with] no bearing upon any conceivable cause of action herein." App. 22. See Cal. Civ. Proc. Code Ann. 436(a) (West Supp. 1987) ("The court may . . .[s]trike out any irrelevant, false, or improper matter inserted in any pleading").

In Agins v. Tiburon, supra, the California Supreme Court decided that a landowner may not maintain an inverse condemnation suit in the courts of that State based upon a "regulatory" taking. 24 Cal. 3d, at 275-277, 598 P.2d, at 29-31. In the court's view, maintenance of such a suit would allow a landowner to force the legislature to exercise its power of eminent domain. Under this decision, then, compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory [482 U.S. 304, 309]   relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Based on this decision, the trial court in the present case granted the motion to strike the allegation that the church had been denied all use of Lutherglen. It explained that "a careful rereading of the Agins case persuades the Court that when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is by way of declaratory relief or possibly mandamus." App. 26. Because the appellant alleged a regulatory taking and sought only damages, the allegation that the ordinance denied all use of Lutherglen was deemed irrelevant. 2

On appeal, the California Court of Appeal read the complaint as one seeking "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855 . . . ." App. to Juris. Statement A13-A14. It too relied on the California Supreme Court's decision in Agins in rejecting the cause of action, declining appellant's invitation to reevaluate Agins in light of this Court's opinions in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981). The court found itself obligated to follow Agins "because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to nonmonetary relief . . . ." App. to Juris. Statement A16. It accordingly affirmed the trial court's decision to strike the allegations concerning appellee's ordinance. 3 The California Supreme Court denied review. [482 U.S. 304, 310]

This appeal followed, and we noted probable jurisdiction. 478 U.S. 1003 (1986). Appellant asks us to hold that the California Supreme Court erred in Agins v. Tiburon in determining that the Fifth Amendment, as made applicable to the States through the Fourteenth Amendment, does not require compensation as a remedy for "temporary" regulatory takings - those regulatory takings which are ultimately invalidated by the courts. 4 Four times this decade, we have considered similar claims and have found ourselves for one reason or another unable to consider the merits of the Agins rule. See MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985); San Diego Gas & Electric Co., supra; Agins v. Tiburon, supra. For the reasons explained below, however, we find the constitutional claim properly presented in this case, and hold that [482 U.S. 304, 311]   on these facts the California courts have decided the compensation question inconsistently with the requirements of the Fifth Amendment.

I

Concerns with finality left us unable to reach the remedial question in the earlier cases where we have been asked to consider the rule of Agins. See MacDonald, Sommer & Frates, supra, at 351 (summarizing cases). In each of these cases, we concluded either that regulations considered to be in issue by the state court did not effect a taking, Agins v. Tiburon, 447 U.S., at 263 , or that the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. MacDonald, Sommer & Frates, supra, at 351-353; Williamson County, supra, at 188-194; San Diego Gas & Electric Co., supra, at 631-632. Consideration of the remedial question in those circumstances, we concluded, would be premature.

The posture of the present case is quite different. Appellant's complaint alleged that "Ordinance No. 11,855 denies [it] all use of Lutherglen," and sought damages for this deprivation. App. 12, 49. In affirming the decision to strike this allegation, the Court of Appeal assumed that the complaint sought "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855." App. to Juris. Statement A13-A14 (emphasis added). It relied on the California Supreme Court's Agins decision for the conclusion that "the remedy for a taking [is limited] to nonmonetary relief . . . ." App. to Juris. Statement A16 (emphasis added). The disposition of the case on these grounds isolates the remedial question for our consideration. The rejection of appellant's allegations did not rest on the view that they were false. Cf. MacDonald, Sommer & Frates, supra, at 352-353, n. 8 (California court rejected allegation in the complaint that appellant was deprived of all beneficial use of its property); Agins v. Tiburon, supra, at 259, n. 6 (same). Nor did the court rely on the theory that regulatory measures such as [482 U.S. 304, 312]   Ordinance No. 11,855 may never constitute a taking in the constitutional sense. Instead, the claims were deemed irrelevant solely because of the California Supreme Court's decision in Agins that damages are unavailable to redress a "temporary" regulatory taking. 5 The California Court of Appeal has thus held that, regardless of the correctness of appellant's claim that the challenged ordinance denies it "all use of Lutherglen," appellant may not recover damages until the ordinance is finally declared unconstitutional, and then only for any period after that declaration for which the county seeks to enforce it. The constitutional question pretermitted in our earlier cases is therefore squarely presented here. 6

We reject appellee's suggestion that, regardless of the state court's treatment of the question, we must independently evaluate the adequacy of the complaint and resolve the [482 U.S. 304, 313]   takings claim on the merits before we can reach the remedial question. However "cryptic" - to use appellee's description - the allegations with respect to the taking were, the California courts deemed them sufficient to present the issue. We accordingly have no occasion to decide whether the ordinance at issue actually denied appellant all use of its property 7 or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations. See, e. g., Goldblatt v. Hempstead, 369 U.S. 590 (1962); Hadacheck v. Sebastian, 239 U.S. 394 (1915); Mugler v. Kansas, 123 U.S. 623 (1887). These questions, of course, remain open for decision on the remand we direct today. We now turn to the question whether the Just Compensation Clause requires the government to pay for "temporary" regulatory takings. 8   [482 U.S. 304, 314]

II

Consideration of the compensation question must begin with direct reference to the language of the Fifth Amendment, which provides in relevant part that "private property [shall not] be taken for public use, without just compensation." As its language indicates, and as the Court has frequently noted, this provision does not prohibit the taking of private property, but instead places a condition on the exercise of that power. See Williamson County, 473 U.S., at 194 ; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 297 , n. 40 (1981); Hurley v. [482 U.S. 304, 315]   Kincaid, 285 U.S. 95, 104 (1932); Monongahela Navigation Co. v. United States, 148 U.S. 312, 336 (1893); United States v. Jones, 109 U.S. 513, 518 (1883). This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. Thus, government action that works a taking of property rights necessarily implicates the "constitutional obligation to pay just compensation." Armstrong v. United States, 364 U.S. 40, 49 (1960).

We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of "`the self-executing character of the constitutional provision with respect to compensation . . . .'" United States v. Clarke, 445 U.S. 253, 257 (1980), quoting 6 P. Nichols, Eminent Domain 25.41 (3d rev. ed. 1972). As noted in JUSTICE BRENNAN's dissent in San Diego Gas & Electric Co., 450 U.S., at 654 -655, it has been established at least since Jacobs v. United States, 290 U.S. 13 (1933), that claims for just compensation are grounded in the Constitution itself:

      "The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States." Id., at 16. (Emphasis added.) [482 U.S. 304, 316]

Jacobs, moreover, does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution. See, e. g., Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 5 (1984); United States v. Causby, 328 U.S. 256, 267 (1946); Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 304 -306 (1923); Monongahela Navigation, supra, at 327. 9

It has also been established doctrine at least since Justice Holmes' opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), that "[t]he general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Id., at 415. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. In Pumpelly v. Green Bay Co., 13 Wall. 166, 177-178 (1872), construing a provision in the Wisconsin Constitution identical to the Just Compensation Clause, this Court said:

      "It would be a very curious and unsatisfactory result, if . . . it shall be held that if the government refrains from the absolute conversion of real property to the uses of [482 U.S. 304, 317]   the public it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use."

Later cases have unhesitatingly applied this principle. See, e. g., Kaiser Aetna v. United States, 444 U.S. 164 (1979); United States v. Dickinson, 331 U.S. 745, 750 (1947); United States v. Causby, supra.

While the California Supreme Court may not have actually disavowed this general rule in Agins, we believe that it has truncated the rule by disallowing damages that occurred prior to the ultimate invalidation of the challenged regulation. The California Supreme Court justified its conclusion at length in the Agins opinion, concluding that:

      "In combination, the need for preserving a degree of freedom in the land-use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that on balance mandamus or declaratory relief rather than inverse condemnation is the appropriate relief under the circumstances." 24 Cal. 3d, at 276-277, 598 P.2d, at 31.

We, of course, are not unmindful of these considerations, but they must be evaluated in the light of the command of the Just Compensation Clause of the Fifth Amendment. The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations. See, e. g., Kirby Forest Industries, Inc. v. United States, supra; United States v. Dow, 357 U.S. 17, 26 (1958). Similarly, a governmental body may acquiesce in a judicial declaration that one of its ordinances has effected an unconstitutional taking of property; the landowner has no right under the Just Compensation Clause to insist that a "temporary" taking be deemed a permanent taking. But we have [482 U.S. 304, 318]   not resolved whether abandonment by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land.

In considering this question, we find substantial guidance in cases where the government has only temporarily exercised its right to use private property. In United States v. Dow, supra, at 26, though rejecting a claim that the Government may not abandon condemnation proceedings, the Court observed that abandonment "results in an alteration in the property interest taken - from [one of] full ownership to one of temporary use and occupation. . . . In such cases compensation would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. v. United States, 338 U.S. 1 1949.; United States v. Petty Motor Co., 327 U.S. 372 1946.; United States v. General Motors Corp., 323 U.S. 373 1945.." Each of the cases cited by the Dow Court involved appropriation of private property by the United States for use during World War II. Though the takings were in fact "temporary," see United States v. Petty Motor Co., 327 U.S. 372, 375 (1946), there was no question that compensation would be required for the Government's interference with the use of the property; the Court was concerned in each case with determining the proper measure of the monetary relief to which the property holders were entitled. See Kimball Laundry Co. v. United States, 338 U.S. 1, 4 -21 (1949); Petty Motor Co., supra, at 377-381; United States v. General Motors Corp., 323 U.S. 373, 379 -384 (1945).

These cases reflect the fact that "temporary" takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. Cf. San Diego Gas & Electric Co., 450 U.S., at 657 (BRENNAN, J., dissenting) ("Nothing in the Just Compensation Clause suggests that `takings' must be permanent and irrevocable"). It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forcing some [482 U.S. 304, 319]   people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S., at 49 . See also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 123 -125 (1978); Monongahela Navigation Co. v. United States, 148 U.S., at 325 . In the present case the interim ordinance was adopted by the County of Los Angeles in January 1979, and became effective immediately. Appellant filed suit within a month after the effective date of the ordinance and yet when the California Supreme Court denied a hearing in the case on October 17, 1985, the merits of appellant's claim had yet to be determined. The United States has been required to pay compensation for leasehold interests of shorter duration than this. The value of a leasehold interest in property for a period of years may be substantial, and the burden on the property owner in extinguishing such an interest for a period of years may be great indeed. See, e. g., United States v. General Motors, supra. Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Cf. United States v. Causby, 328 U.S., at 261 ("It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken"). Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a "temporary" one, is not a sufficient remedy to meet the demands of the Just Compensation Clause.

Appellee argues that requiring compensation for denial of all use of land prior to invalidation is inconsistent with this Court's decisions in Danforth v. United States, 308 U.S. 271 (1939), and Agins v. Tiburon, 447 U.S. 255 (1980). In Danforth, the landowner contended that the "taking" of his property had occurred prior to the institution of condemnation proceedings, by reason of the enactment of the Flood Control Act itself. He claimed that the passage of that Act had diminished [482 U.S. 304, 320]   the value of his property because the plan embodied in the Act required condemnation of a flowage easement across his property. The Court held that in the context of condemnation proceedings a taking does not occur until compensation is determined and paid, and went on to say that "[a] reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project," but "[s]uch changes in value are incidents of ownership. They cannot be considered as a `taking' in the constitutional sense." Danforth, supra, at 285. Agins likewise rejected a claim that the city's preliminary activities constituted a taking, saying that "[m]ere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are `incidents of ownership.'" See 447 U.S., at 263 , n. 9.

But these cases merely stand for the unexceptional proposition that the valuation of property which has been taken must be calculated as of the time of the taking, and that depreciation in value of the property by reason of preliminary activity is not chargeable to the government. Thus, in Agins, we concluded that the preliminary activity did not work a taking. It would require a considerable extension of these decisions to say that no compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid. 10   [482 U.S. 304, 321]

Nothing we say today is intended to abrogate the principle that the decision to exercise the power of eminent domain is a legislative function "`for Congress and Congress alone to determine.'" Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 240 (1984), quoting Berman v. Parker, 348 U.S. 26, 33 (1954). Once a court determines that a taking has occurred, the government retains the whole range of options already available - amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. Thus we do not, as the Solicitor General suggests, "permit a court, at the behest of a private person, to require the . . . Government to exercise the power of eminent domain . . . ." Brief for United States as Amicus Curiae 22. We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.

We also point out that the allegation of the complaint which we treat as true for purposes of our decision was that the ordinance in question denied appellant all use of its property. We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us. We realize that even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land-use planners and governing bodies of municipal corporations when enacting land-use regulations. But such consequences necessarily flow from any decision upholding a claim of constitutional right; many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities, and the Just Compensation Clause of the Fifth Amendment is one of them. As Justice Holmes aptly noted more than 50 years ago, "a strong public [482 U.S. 304, 322]   desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S., at 416 .

Here we must assume that the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years, and we hold that invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy. The judgment of the California Court of Appeal is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

      It is so ordered.

Footnotes
[ Footnote 1 ] Section 835 of the California Government Code establishes conditions under which a public entity may be liable "for injury caused by a dangerous condition of its property. . . ."

[ Footnote 2 ] The trial court also granted defendants' motion for judgment on the pleadings on the second cause of action, based on cloud seeding. It limited trial on the first cause of action for damages under Cal. Govt. Code Ann. 835 (West 1980), rejecting the inverse condemnation claim. At the close of plaintiff's evidence, the trial court granted a nonsuit on behalf of defendants, dismissing the entire complaint.

[ Footnote 3 ] The California Court of Appeal also affirmed the lower court's orders limiting the issues for trial on the first cause of action, granting a nonsuit on the issues that proceeded to trial, and dismissing the second cause of action - based on cloud seeding - to the extent it was founded on a theory [482 U.S. 304, 310]   of strict liability in tort. The court reversed the trial court's ruling that the second cause of action could not be maintained against the Flood Control District under the theory of inverse condemnation. The case was remanded for further proceedings on this claim.

These circumstances alone, apart from the more particular issues presented in takings cases and discussed in the text, require us to consider whether the pending resolution of further liability questions deprives us of jurisdiction because we are not presented with a "final judgmen[t] or decre[e]" within the meaning of 28 U.S.C. 1257. We think that this case is fairly characterized as one "in which the federal issue, finally decided by the highest court in the State [in which a decision could be had], will survive and require decision regardless of the outcome of future state-court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 480 (1975). As we explain infra, at 311-313, the California Court of Appeal rejected appellant's federal claim that it was entitled to just compensation from the county for the taking of its property; this distinct issue of federal law will survive and require decision no matter how further proceedings resolve the issues concerning the liability of the Flood Control District for its cloud seeding operation.

[ Footnote 4 ] The Fifth Amendment provides "nor shall private property be taken for public use, without just compensation," and applies to the States through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).

[ Footnote 5 ] It has been urged that the California Supreme Court's discussion of the compensation question in Agins v. Tiburon was dictum, because the court had already decided that the regulations could not work a taking. See Martino v. Santa Clara Valley Water District, 703 F.2d 1141, 1147 (CA9 1983) ("extended dictum"). The Court of Appeal in this case considered and rejected the possibility that the compensation discussion in Agins was dictum. See App. to Juris. Statement A14-A15, quoting Aptos Seascape Corp. v. County of Santa Cruz, 138 Cal. App. 3d 484, 493, 188 Cal. Rptr. 191, 195 (1982) ("[I]t is apparent that the Supreme Court itself did not intend its discussion [of inverse condemnation as a remedy for a taking] to be considered dictum . . . and it has not been treated as such in subsequent Court of Appeal cases"). Whether treating the claim as a takings claim is inconsistent with the first holding of Agins is not a matter for our concern. It is enough that the court did so for us to reach the remedial question.

[ Footnote 6 ] Our cases have also required that one seeking compensation must "seek compensation through the procedures the State has provided for doing so" before the claim is ripe for review. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 194 (1985). It is clear that appellant met this requirement. Having assumed that a taking occurred, the California court's dismissal of the action establishes that "the inverse condemnation procedure is unavailable . . . ." Id., at 197. The compensation claim is accordingly ripe for our consideration.

[ Footnote 7 ] Because the issue was not raised in the complaint or considered relevant by the California courts in their assumption that a taking had occurred, we also do not consider the effect of the county's permanent ordinance on the conclusions of the courts below. That ordinance, adopted in 1981 and reproduced at App. to Juris. Statement A32-A33, provides that "[a] person shall not use, erect, construct, move onto, or . . . alter, modify, enlarge or reconstruct any building or structure within the boundaries of a flood protection district except . . . [a]ccessory buildings and structures that will not substantially impede the flow of water, including sewer, gas, electrical, and water systems, approved by the county engineer . . .; [a]utomobile parking facilities incidental to a lawfully established use; [and] [f]lood-control structures approved by the chief engineer of the Los Angeles County Flood Control District." County Code 22.44.220.

[ Footnote 8 ] In addition to challenging the finality of the takings decision below, appellee raises two other challenges to our jurisdiction. First, going to both the appellate and certiorari jurisdiction of this Court under 28 U.S.C. 1257, appellee alleges that appellant has failed to preserve for review any claim under federal law. Though the complaint in this case invoked only the California Constitution, appellant argued in the Court of Appeal that "recent Federal decisions . . . show the Federal Constitutional error in . . . Agins[ v. Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979)]." App. to Appellant's Opposition to Appellee's Second Motion to Dismiss A13. The Court of Appeal, by applying the state rule of Agins to dismiss [482 U.S. 304, 314]   appellant's action, rejected on the merits the claim that the rule violated the United States Constitution. This disposition makes irrelevant for our purposes any deficiencies in the complaint as to federal issues. Where the state court has considered and decided the constitutional claim, we need not consider how or when the question was raised. Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134 (1914). Having succeeded in bringing the federal issue into the case, appellant preserved this question on appeal to the California Supreme Court, see App. to Appellant's Opposition to Appellee's Second Motion to Dismiss A14-A22, which declined to review its Agins decision. Accordingly, we find that the issue urged here was both raised and passed upon below.

Second, appellee challenges our appellate jurisdiction on the grounds that the case below did not draw "in question the validity of a statute of any state . . . ." 28 U.S.C. 1257(2). There is, of course, no doubt that the ordinance at issue in this case is "a statute of [a] state" for purposes of 1257. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 207 , n. 3 (1975). As construed by the state courts, the complaint in this case alleged that the ordinance, by denying all use of the property, worked a taking without providing for just compensation. We have frequently treated such challenges to zoning ordinances as challenges to their validity under the Federal Constitution, and see no reason to revise that approach here. See, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Agins v. Tiburon, 447 U.S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). By holding that the failure to provide compensation was not unconstitutional, moreover, the California courts upheld the validity of the ordinance against the particular federal constitutional question at issue here - just compensation - and the case is therefore within the terms of 1257(2).

[ Footnote 9 ] The Solicitor General urges that the prohibitory nature of the Fifth Amendment, see supra, at 314, combined with principles of sovereign immunity, establishes that the Amendment itself is only a limitation on the power of the Government to act, not a remedial provision. The cases cited in the text, we think, refute the argument of the United States that "the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government." Brief for United States as Amicus Curiae 14. Though arising in various factual and jurisdictional settings, these cases make clear that it is the Constitution that dictates the remedy for interference with property rights amounting to a taking. See San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 655 , n. 21 (1981) (BRENNAN, J., dissenting), quoting United States v. Dickinson, 331 U.S. 745, 748 (1947).

[ Footnote 10 ] Williamson County Regional Planning Comm'n, is not to the contrary. There, we noted that "no constitutional violation occurs until just compensation has been denied." 473 U.S., at 194 , n. 13. This statement, however, was addressed to the issue whether the constitutional claim was ripe for review and did not establish that compensation is unavailable for government activity occurring before compensation is actually denied. Though, as a matter of law, an illegitimate taking might not occur until the government refuses to pay, the interference that effects a taking might begin much earlier, and compensation is measured from that time. See Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 5 (1984) (Where Government physically occupies land without condemnation proceedings, "the owner has a right to bring an `inverse condemnation' suit to [482 U.S. 304, 321]   recover the value of the land on the date of the intrusion by the Government"). (Emphasis added.)

JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join as to Parts I and III, dissenting.

One thing is certain. The Court's decision today will generate a great deal of litigation. Most of it, I believe, will be unproductive. But the mere duty to defend the actions that today's decision will spawn will undoubtedly have a significant adverse impact on the land-use regulatory process. The Court has reached out to address an issue not actually presented in this case, and has then answered that self-imposed question in a superficial and, I believe, dangerous way.

Four flaws in the Court's analysis merit special comment. First, the Court unnecessarily and imprudently assumes that appellant's complaint alleges an unconstitutional taking of Lutherglen. Second, the Court distorts our precedents in the area of regulatory takings when it concludes that all ordinances which would constitute takings if allowed to remain in effect permanently, necessarily also constitute takings if they are in effect for only a limited period of time. Third, the Court incorrectly assumes that the California Supreme Court has already decided that it will never allow a state court to grant monetary relief for a temporary regulatory taking, and [482 U.S. 304, 323]   then uses that conclusion to reverse a judgment which is correct under the Court's own theories. Finally, the Court errs in concluding that it is the Takings Clause, rather than the Due Process Clause, which is the primary constraint on the use of unfair and dilatory procedures in the land-use area.

I

In the relevant portion of its complaint for inverse condemnation, appellant alleged:

      "16

      "On January 11, 1979, the County adopted Ordinance No. 11,855, which provides:

      "`Section 1. A person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon, vicinity of Hidden Springs, as shown on Map No. 63 ML 52, attached hereto and incorporated herein by reference as though fully set forth.'

      "17

      "Lutherglen is within the flood protection area created by Ordinance No. 11,855.

      "18

      "Ordinance No. 11,855 denies First Church all use of Lutherglen." App. 49.

Because the Church sought only compensation, and did not request invalidation of the ordinance, the Superior Court granted a motion to strike those three paragraphs, and consequently never decided whether they alleged a "taking." 1   [482 U.S. 304, 324]   The Superior Court granted the motion to strike on the basis of the rule announced in Agins v. Tiburon, 24 Cal. 3d 266, 598 P.2d 25 (1979). Under the rule of that case, a property owner who claims that a land-use restriction has taken a property for public use without compensation must file an action seeking invalidation of the regulation, and may not simply demand compensation. The Court of Appeal affirmed on the authority of Agins alone, 2 also without holding that the complaint had alleged a violation of either the California Constitution or the Federal Constitution. At most, it assumed, arguendo, that a constitutional violation had been alleged.

This Court clearly has the authority to decide this case by ruling that the complaint did not allege a taking under the Federal Constitution, 3 and therefore to avoid the novel constitutional [482 U.S. 304, 325]   issue that it addresses. Even though I believe the Court's lack of self-restraint is imprudent, it is imperative to stress that the Court does not hold that appellant is entitled to compensation as a result of the flood protection regulation that the county enacted. No matter whether the regulation is treated as one that deprives appellant of its property on a permanent or temporary basis, this Court's precedents demonstrate that the type of regulatory program at issue here cannot constitute a taking.

      "Long ago it was recognized that `all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.'" Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491 -492 (1987), quoting Mugler v. Kansas, 123 U.S. 623, 665 (1887). Thus, in order to protect the health and safety of the community, 4 government may condemn unsafe structures, [482 U.S. 304, 326]   may close unlawful business operations, may destroy infected trees, and surely may restrict access to hazardous areas - for example, land on which radioactive materials have been discharged, land in the path of a lava flow from an erupting volcano, or land in the path of a potentially life-threatening flood. 5 When a governmental entity imposes these types of health and safety regulations, it may not be "burdened with the condition that [it] must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." Mugler, supra, at 668-669; see generally Keystone Bituminous, supra, at 485-493.

In this case, the legitimacy of the county's interest in the enactment of Ordinance No. 11, 855 is apparent from the face of the ordinance and has never been challenged. 6 It was enacted [482 U.S. 304, 327]   as an "interim" measure "temporarily prohibiting" certain construction in a specified area because the County Board believed the prohibition was "urgently required for the immediate preservation of the public health and safety." Even if that were not true, the strong presumption of constitutionality that applies to legislative enactments certainly requires one challenging the constitutionality of an ordinance of this kind to allege some sort of improper purpose or insufficient justification in order to state a colorable federal claim for relief. A presumption of validity is particularly appropriate in this case because the complaint did not even allege that the ordinance is invalid, or pray for a declaration of invalidity or an injunction against its enforcement. 7 Nor did it allege any facts indicating how the ordinance interfered with any future use of the property contemplated or planned by appellant. In light of the tragic flood and the loss of life that precipitated [482 U.S. 304, 328]   the safety regulations here, it is hard to understand how appellant ever expected to rebuild on Lutherglen.

Thus, although the Court uses the allegations of this complaint as a springboard for its discussion of a discrete legal issue, it does not, and could not under our precedents, hold that the allegations sufficiently alleged a taking or that the county's effort to preserve life and property could ever constitute a taking. As far as the United States Constitution is concerned, the claim that the ordinance was a taking of Lutherglen should be summarily rejected on its merits.

II

There is no dispute about the proposition that a regulation which goes "too far" must be deemed a taking. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922). When that happens, the government has a choice: it may abandon the regulation or it may continue to regulate and compensate those whose property it takes. In the usual case, either of these options is wholly satisfactory. Paying compensation for the property is, of course, a constitutional prerogative of the sovereign. Alternatively, if the sovereign chooses not to retain the regulation, repeal will, in virtually all cases, mitigate the overall effect of the regulation so substantially that the slight diminution in value that the regulation caused while in effect cannot be classified as a taking of property. We may assume, however, that this may not always be the case. There may be some situations in which even the temporary existence of a regulation has such severe consequences that invalidation or repeal will not mitigate the damage enough to remove the "taking" label. This hypothetical situation is what the Court calls a "temporary taking." But, contrary to the Court's implications, the fact that a regulation would constitute a taking if allowed to remain in effect permanently is by no means dispositive of the question whether the effect that the regulation has already had on the [482 U.S. 304, 329]   property is so severe that a taking occurred during the period before the regulation was invalidated.

A temporary interference with an owner's use of his property may constitute a taking for which the Constitution requires that compensation be paid. At least with respect to physical takings, the Court has so held. See ante, at 318 (citing cases). Thus, if the government appropriates a leasehold interest and uses it for a public purpose, the return of the premises at the expiration of the lease would obviously not erase the fact of the government's temporary occupation. Or if the government destroys a chicken farm by building a road through it or flying planes over it, removing the road or terminating the flights would not palliate the physical damage that had already occurred. These examples are consistent with the rule that even minimal physical occupations constitute takings which give rise to a duty to compensate. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

But our cases also make it clear that regulatory takings and physical takings are very different in this, as well as other, respects. While virtually all physical invasions are deemed takings, see, e. g., Loretto, supra; United States v. Causby, 328 U.S. 256 (1946), a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property's value. See Keystone Bituminous, 480 U.S., at 493 -502; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 296 (1981); Agins v. Tiburon, 447 U.S. 255, 260 (1980). This diminution of value inquiry is unique to regulatory takings. Unlike physical invasions, which are relatively rare and easily identifiable without making any economic analysis, regulatory programs constantly affect property values in countless ways, and only the most extreme regulations can constitute takings. Some dividing line must be established between everyday regulatory inconveniences and those so severe that they constitute takings. The diminution of value [482 U.S. 304, 330]   inquiry has long been used in identifying that line. As Justice Holmes put it: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal, supra, at 413. It is this basic distinction between regulatory and physical takings that the Court ignores today.

Regulations are three dimensional; they have depth, width, and length. As for depth, regulations define the extent to which the owner may not use the property in question. With respect to width, regulations define the amount of property encompassed by the restrictions. Finally, and for purposes of this case, essentially, regulations set forth the duration of the restrictions. It is obvious that no one of these elements can be analyzed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred. For example, in Keystone Bituminous we declined to focus in on any discrete segment of the coal in the petitioners' mines, but rather looked to the effect that the restriction had on their entire mining project. See 480 U.S., at 493 -502; see also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 137 (1978) (looking at owner's other buildings). Similarly, in Penn Central, the Court concluded that it was error to focus on the nature of the uses which were prohibited without also examining the many profitable uses to which the property could still be put. Id., at 130-131; see also Agins, supra, at 262-263; Andrus v. Allard, 444 U.S. 51, 64 -67 (1979). Both of these factors are essential to a meaningful analysis of the economic effect that regulations have on the value of property and on an owner's reasonable investment-based expectations with respect to the property.

Just as it would be senseless to ignore these first two factors in assessing the economic effect of a regulation, one cannot conduct the inquiry without considering the duration of the restriction. See generally Williams, Smith, Siemon, [482 U.S. 304, 331]   Mandelker, & Babcock, The White River Junction Manifesto, 9 Vt. L. Rev. 193, 215-218 (1984). For example, while I agreed with the Chief Justice's view that the permanent restriction on building involved in Penn Central constituted a taking, I assume that no one would have suggested that a temporary freeze on building would have also constituted a taking. Similarly, I am confident that even the dissenters in Keystone Bituminous would not have concluded that the restriction on bituminous coal mining would have constituted a taking had it simply required the mining companies to delay their operations until an appropriate safety inspection could be made.

On the other hand, I am willing to assume that some cases may arise in which a property owner can show that prospective invalidation of the regulation cannot cure the taking - that the temporary operation of a regulation has caused such a significant diminution in the property's value that compensation must be afforded for the taking that has already occurred. For this ever to happen, the restriction on the use of the property would not only have to be a substantial one, but it would also have to remain in effect for a significant percentage of the property's useful life. In such a case an application of our test for regulatory takings would obviously require an inquiry into the duration of the restriction, as well as its scope and severity. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 190 -191 (1985) (refusing to evaluate taking claim when the longterm economic effects were uncertain because it was not clear that restrictions would remain in effect permanently).

The cases that the Court relies upon for the proposition that there is no distinction between temporary and permanent takings, see ante, at 318, are inapposite, for they all deal with physical takings - where the diminution of value test is inapplicable. 8 None of those cases is controversial; the state [482 U.S. 304, 332]   certainly may not occupy an individual's home for a month and then escape compensation by leaving and declaring the occupation "temporary." But what does that have to do with the proper inquiry for regulatory takings? Why should there be a constitutional distinction between a permanent restriction that only reduces the economic value of the property by a fraction - perhaps one-third - and a restriction that merely postpones the development of a property for a fraction of its useful life - presumably far less than a third? In the former instance, no taking has occurred; in the latter case, the Court now proclaims that compensation for a taking must be provided. The Court makes no effort to explain these irreconcilable results. Instead, without any attempt to fit its proclamation into our regulatory takings cases, the Court boldly announces that once a property owner makes out a claim that a regulation would constitute a taking if allowed to stand, then he or she is entitled to damages for the period of time between its enactment and its invalidation.

Until today, we have repeatedly rejected the notion that all temporary diminutions in the value of property automatically activate the compensation requirement of the Takings Clause. In Agins, we held:

      "The State Supreme Court correctly rejected the contention that the municipality's good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants' enjoyment of their property as to constitute a taking. . . . Even if the appellants' ability to sell their property was [482 U.S. 304, 333]   limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are `incidents of ownership. They cannot be considered as a "taking" in the constitutional sense.'" 447 U.S., at 263 , n. 9, quoting Danforth v. United States, 308 U.S. 271, 285 (1939). 9

Our more recent takings cases also cut against the approach the Court now takes. In Williamson, supra, and MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), we held that we could not review a taking claim as long as the property owner had an opportunity to obtain a variance or some other form of relief from the zoning authorities that would permit the development of the property to go forward. See Williamson, supra, at 190-191; Yolo County, supra, at 348-353. Implicit in those holdings was the assumption that the temporary deprivation of all use of the property would not constitute a taking if it would be adequately remedied by a belated grant of approval of the developer's plans. See Sallet, Regulatory "Takings" and Just Compensation: The Supreme Court's Search for a Solution Continues, 18 Urb. Law. 635, 653 (1986). [482 U.S. 304, 334]

The Court's reasoning also suffers from severe internal inconsistency. Although it purports to put to one side "normal delays in obtaining building permits, changes in zoning ordinances, variances and the like," ante, at 321, the Court does not explain why there is a constitutional distinction between a total denial of all use of property during such "normal delays" and an equally total denial for the same length of time in order to determine whether a regulation has "gone too far" to be sustained unless the government is prepared to condemn the property. Precisely the same interference with a real estate developer's plans may be occasioned by protracted proceedings which terminate with a zoning board's decision that the public interest would be served by modification of its regulation and equally protracted litigation which ends with a judicial determination that the existing zoning restraint has "gone too far," and that the board must therefore grant the developer a variance. The Court's analysis takes no cognizance of these realities. Instead, it appears to erect an artificial distinction between "normal delays" and the delays involved in obtaining a court declaration that the regulation constitutes a taking. 10

In my opinion, the question whether a "temporary taking" has occurred should not be answered by simply looking at the reason a temporary interference with an owner's use of his property is terminated. 11 Litigation challenging the validity of a land-use restriction gives rise to a delay that is just as "normal" as an administrative procedure seeking a variance [482 U.S. 304, 335]   or an approval of a controversial plan. 12 Just because a plaintiff can prove that a land-use restriction would constitute a taking if allowed to remain in effect permanently does not mean that he or she can also prove that its temporary application rose to the level of a constitutional taking.

III

The Court recognizes that the California courts have the right to adopt invalidation of an excessive regulation as the appropriate remedy for the permanent effects of overburdensome regulations, rather than allowing the regulation to stand and ordering the government to afford compensation for the permanent taking. See ante, at 319; see also Yolo County, supra, at 362-363, and n. 4 (WHITE, J., dissenting); San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 657 (1981) (BRENNAN, J., dissenting). The difference between these two remedies is less substantial than one might assume. When a court invalidates a regulation, the Legislative or Executive Branch must then decide whether to condemn the property in order to proceed with the regulatory scheme. On the other hand, if the court requires compensation for a permanent taking, the Executive or Legislative Branch may still repeal the regulation and thus prevent the permanent taking. The difference, therefore, is only in what will happen in the case of Legislative or Executive inertia. Many scholars have debated the respective merits of the alternative approaches in light of separation-of-powers concerns, 13 but our only concern is with a state court's decision on [482 U.S. 304, 336]   which procedure it considers more appropriate. California is fully competent to decide how it wishes to deal with the separation-of-powers implications of the remedy it routinely uses. 14

Once it is recognized that California may deal with the permanent taking problem by invalidating objectionable regulations, it becomes clear that the California Court of Appeal's decision in this case should be affirmed. Even if this Court is correct in stating that one who makes out a claim for a permanent taking is automatically entitled to some compensation for the temporary aspect of the taking as well, the States still have the right to deal with the permanent aspect of a taking by invalidating the regulation. That is all that the California courts have done in this case. They have refused to proceed upon a complaint which sought only damages, and which did not contain a request for a declaratory invalidation of the regulation, as clearly required by California precedent.

The Court seriously errs, therefore, when it claims that the California court held that "a landowner who claims that his property has been `taken' by a land-use regulation may not recover damages for the time before it is finally determined that the regulation constitutes a `taking' of his property." Ante, at 306-307. Perhaps the Court discerns such a practice from some of the California Supreme Court's earlier decisions, but that is surely no reason for reversing a procedural judgment in a case in which the dismissal of the complaint was entirely consistent with an approach that the [482 U.S. 304, 337]   Court endorses. Indeed, I am not all that sure how the California courts would deal with a landowner who seeks both invalidation of the regulation and damages for the temporary taking that occurred prior to the requested invalidation.

As a matter of regulating the procedure in its own state courts, the California Supreme Court has decided that mandamus or declaratory relief rather than inverse condemnation provides "the appropriate relief" for one who challenges a regulation as a taking. Agins v. Tiburon, 24 Cal. 3d, at 277, 598 P.2d, at 31. This statement in Agins can be interpreted in two quite different ways. First, it may merely require the property owner to exhaust his equitable remedies before asserting any claim for damages. Under that reading, a postponement of any consideration of monetary relief, or even a requirement that a "temporary regulatory taking" claim be asserted in a separate proceeding after the temporary interference has ended, would not violate the Federal Constitution. Second, the Agins opinion may be read to indicate that California courts will never award damages for a temporary regulatory taking. 15 Even if we assume that such a rigid rule would bar recovery in the California courts in a few meritorious cases, we should not allow a litigant to challenge the rule unless his complaint contains allegations explaining why declaratory relief would not provide him with an adequate remedy, and unless his complaint at least complies with the California rule of procedure to the extent that the rule is clearly legitimate. Since the First Amendment is not implicated, the fact that California's rule may be somewhat "overbroad" is no reason for permitting a party to complain about the impact of the rule on other property owners [482 U.S. 304, 338]   who actually file complaints that call California's rule into question.

In any event, the Court has no business speculating on how the California courts will deal with this problem when it is presented to them. Despite the many cases in which the California courts have applied the Agins rule, the Court can point to no case in which application of the rule has deprived a property owner of his rightful compensation.

In criminal litigation we have steadfastly adhered to the practice of requiring the defendant to exhaust his or her state remedies before collaterally attacking a conviction based on a claimed violation of the Federal Constitution. That requirement is supported by our respect for the sovereignty of the several States and by our interest in having federal judges decide federal constitutional issues only on the basis of fully developed records. See generally Rose v. Lundy, 455 U.S. 509 (1982). The States' interest in controlling land-use development and in exploring all the ramifications of challenge to a zoning restriction should command the same deference from the federal judiciary. See Williamson, 473 U.S., at 194 -197. And our interest in avoiding the decision of federal constitutional questions on anything less than a fully informed basis counsels against trying to decide whether equitable relief has forestalled a temporary taking until after we know what the relief is. In short, even if the California courts adhere to a rule of never granting monetary relief for a temporary regulatory taking, I believe we should require the property owner to exhaust his state remedies before confronting the question whether the net result of the state proceedings has amounted to a temporary taking of property without just compensation. In this case, the Church should be required to pursue an action demanding invalidation of the ordinance prior to seeking this Court's review of California's procedures. 16   [482 U.S. 304, 339]

The appellant should not be permitted to circumvent that requirement by omitting any prayer for equitable relief from its complaint. I believe the California Supreme Court is justified in insisting that the owner recover as much of its property as possible before foisting any of it on an unwilling governmental purchaser. The Court apparently agrees with this proposition. Thus, even on the Court's own radical view of temporary regulatory takings announced today, the California courts had the right to strike this complaint.

IV

There is, of course, a possibility that land-use planning, like other forms of regulation, will unfairly deprive a citizen of the right to develop his property at the time and in the manner that will best serve his economic interests. The "regulatory taking" doctrine announced in Pennsylvania Coal places a limit on the permissible scope of land-use restrictions. In my opinion, however, it is the Due Process Clause rather than that doctrine that protects the property owner from improperly motivated, unfairly conducted, or unnecessarily protracted governmental decisionmaking. Violation of the procedural safeguards mandated by the Due Process Clause will give rise to actions for damages under 42 U.S.C. 1983, but I am not persuaded that delays in the development of property that are occasioned by fairly conducted administrative or judicial proceedings are compensable, except perhaps in the most unusual circumstances. On the contrary, I am convinced that the public interest in having important governmental decisions made in an orderly, fully informed way amply justifies the temporary burden on the citizen that is the inevitable by-product of democratic government. [482 U.S. 304, 340]

As I recently wrote:

      "The Due Process Clause of the Fourteenth Amendment requires a State to employ fair procedures in the administration and enforcement of all kinds of regulations. It does not, however, impose the utopian requirement that enforcement action may not impose any cost upon the citizen unless the government's position is completely vindicated. We must presume that regulatory bodies such as zoning boards, school boards, and health boards, generally make a good-faith effort to advance the public interest when they are performing their official duties, but we must also recognize that they will often become involved in controversies that they will ultimately lose. Even though these controversies are costly and temporarily harmful to the private citizen, as long as fair procedures are followed, I do not believe there is any basis in the Constitution for characterizing the inevitable by-product of every such dispute as a `taking' of private property." Williamson, supra, at 205 (opinion concurring in judgment).

The policy implications of today's decision are obvious and, I fear, far reaching. Cautious local officials and land-use planners may avoid taking any action that might later be challenged and thus give rise to a damages action. Much important regulation will never be enacted, 17 even perhaps in [482 U.S. 304, 341]   the health and safety area. Were this result mandated by the Constitution, these serious implications would have to be ignored. But the loose cannon the Court fires today is not only unattached to the Constitution, but it also takes aim at a long line of precedents in the regulatory takings area. It would be the better part of valor simply to decide the case at hand instead of igniting the kind of litigation explosion that this decision will undoubtedly touch off.

I respectfully dissent.

[ Footnote 1 ] The Superior Court's entire explanation for its decision to grant the motion to strike reads as follows:

      "However a careful rereading of the Agins case persuades the Court that when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is by way of declaratory relief or possibly mandamus." App. 26.

[ Footnote 2 ] The Court of Appeal described the Agins case in this way:

      "In Agins v. City of Tiburon (1979) 24 Cal. 3d 266, the plaintiffs filed an action for damages in inverse condemnation and for declaratory relief against the City of Tiburon, which had passed a zoning ordinance in part for `open space' that would have permitted a maximum of five or a minimum of one dwelling units on the plaintiffs' five acres. A demurrer to both causes of action was sustained, and a judgment of dismissal was entered. The California Supreme Court affirmed the dismissal, finding that the ordinance did not on its face `deprive the landowner of substantially all reasonable use of his property,' (Agins, supra, 24 Cal. 3d, at p. 277), and did not `unconstitutionally interfere with plaintiff's entire use of the land or impermissibly decrease its value' (ibid.). The Supreme Court further said that `mandamus or declaratory relief rather than inverse condemnation [was] the appropriate relief under the circumstances.' (Ibid.)." App. to Juris. Statement A14.

[ Footnote 3 ] "The familiar rule of appellate court procedure in federal courts [is] that, without a cross-petition or appeal, a respondent or appellee may support the judgment in his favor upon grounds different from those upon which the court below rested its decision." McGoldrick v. Compagnie Generale, 309 U.S. 430, 434 (1940), citing United States v. American Railway Express Co., 265 U.S. 425, 435 (1924); see also Dandridge v. Williams, 397 U.S. 471, 475 -476, n. 6 (1970). It is also well settled that this Court is not bound by a state court's determination (much less an assumption) that a complaint states a federal claim. See Staub v. City of Baxley, 355 U.S. 313, 318 (1958); First National Bank of Guthrie Center v. Anderson, [482 U.S. 304, 325]   269 U.S. 341, 346 (1926). Especially in the takings context, where the details of the deprivation are so significant, the economic drain of litigation on public resources is "too great to permit cases to go forward without a more substantial indication that a constitutional violation may have occurred." Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1026 (CA3), cert. denied, post, p. 906.

[ Footnote 4 ] See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 485 -493 (1987) (coal mine subsidence); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (rock quarry excavation); Miller v. Schoene, 276 U.S. 272 (1928) (infectious tree disease); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (emissions from factory); Mugler v. Kansas, 123 U.S. 623 (1887) (intoxicating liquors); see also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 145 (1978) (REHNQUIST, J., dissenting) ("The question is whether the forbidden use is dangerous to the safety, health, or welfare of other"). Many state courts have reached the identical conclusion. See Keystone Bituminous, supra, at 492, n. 22 (citing cases).

In Keystone Bituminous we explained that one of the justifications for the rule that health and safety regulation cannot constitute a taking is that individuals hold their property subject to the limitation that they not use it in dangerous or noxious ways. 480 U.S., at 491 , n. 20. The Court's recent decision in United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987), adds support to this thesis. There, the Court reaffirmed the traditional rule that when the United States exercises its power to assert a [482 U.S. 304, 326]   navigational servitude it does not "take" property because the damage sustained results "from the lawful exercise of a power to which the interests of riparian owners have always been subject." Id., at 704.

[ Footnote 5 ] See generally Plater, The Takings Issue in a Natural Setting: Floodlines and the Police Power, 52 Tex. L. Rev. 201 (1974); F. Bosselman, D. Callies, & J. Banta, The Taking Issue 147-155 (1973).

[ Footnote 6 ] It is proper to take judicial notice of the ordinance. It provides, in relevant part:

      "ORDINANCE NO. 11,855.

      "An interim ordinance temporarily prohibiting the construction, reconstruction, placement or enlargement of any building or structure within any portion of the interim flood protection area delineated within Mill Creek, vicinity of Hidden Springs, declaring the urgency thereof and that this ordinance shall take immediate effect.

      "The Board of Supervisors of the County of Los Angeles does ordain as follows:

            . . . . .

      "Section 4. Studies are now under way by the Department of Regional Planning in connection with the County Engineer and the Los Angeles County Flood Control District, to develop permanent flood protection areas for Mill Creek and other specific areas as part of a comprehensive flood plain management project. Mapping and evaluation of flood data has progressed to the point where an interim flood protection area in Mill [482 U.S. 304, 327]   Creek can be designated. Development is now occurring which will encroach within the limits of the permanent flood protection area and which will be incompatible with the anticipated uses to be permitted within the permanent flood protection area. If this ordinance does not take immediate effect, said uses will be established prior to the contemplated ordinance amendment, and once established may continue after such amendment has been made because of the provisions of Article 9 of Chapter 5 of Ordinance No. 1494.

      "By reason of the foregoing facts this ordinance is urgently required for the immediate preservation of the public health and safety, and the same shall take effect immediately upon passage thereof." App. to Juris. Statement 31-32.

[ Footnote 7 ] Because the complaint did not pray for an injunction against enforcement of the ordinance, or a declaration that it is invalid, but merely sought monetary relief, it is doubtful that we have appellate jurisdiction under 28 U.S.C. 1257(2). Section 1257(2) provides:

      "(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity."

Even if we do not have appellate jurisdiction, however, presumably the Court would exercise its certiorari jurisdiction pursuant to 28 U.S.C. 1257(3).

[ Footnote 8 ] In United States v. Dow, 357 U.S. 17 (1958), the United States had "entered into physical possession and began laying the pipe line through [482 U.S. 304, 332]   the tract." Id., at 19. In Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), the United States Army had taken possession of the laundry plant including all "the facilities of the company, except delivery equipment." Id., at 3. In United States v. Petty Motor Co., 327 U.S. 372 (1946), the United States acquired by condemnation a building occupied by tenants and ordered the tenants to vacate. In United States v. General Motors Corp., 323 U.S. 373 (1945), the Government occupied a portion of a leased building.

[ Footnote 9 ] The Court makes only a feeble attempt to explain why the holdings in Agins and Danforth are not controlling here. It is tautological to claim that the cases stand for the "unexceptional proposition that the valuation of property which has been taken must be calculated as of the time of the taking." Ante, at 320 (emphasis added). The question in Danforth was when the taking occurred. The question addressed in the relevant portion of Agins was whether the temporary fluctuations in value themselves constituted a taking. In rejecting the claims in those cases, the Court necessarily held that the temporary effects did not constitute taking of their own right. The cases are therefore directly on point here. If even the temporary effects of a decision to condemn, the ultimate taking, do not ordinarily constitute a taking in and of themselves, then, a fortiori, the temporary effects of a regulation should not.

[ Footnote 10 ] Whether delays associated with a judicial proceeding that terminates with a holding that a regulation was not authorized by state law would be a "normal delay" or a temporary taking depends, I suppose, on the unexplained rationale for the Court's artificial distinction.

[ Footnote 11 ] "[T]he Constitution measures a taking of property not by what a State says, or what it intends, but by what it does." Hughes v. Washington, 389 U.S. 290, 298 (1967) (Stewart, J., concurring). The fact that the effects of the regulation are stopped by judicial, as opposed to administrative decree, should not affect the question whether compensation is required.

[ Footnote 12 ] States may surely provide a forum in their courts for review of general challenges to zoning ordinances and other regulations. Such a procedure then becomes part of the "normal" process. Indeed, when States have set up such procedures in their courts, we have required resort to those processes before considering takings claims. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985).

[ Footnote 13 ] See, e. g., Mandelker, Land Use Takings: The Compensation Issue, 8 Hastings Const. L. Q. 491 (1981); Williams, Smith, Siemon, Mandelker, & Babcock, The White River Junction Manifesto, 9 Vt. L. Rev. 193, 233-234 [482 U.S. 304, 336]   (1984); Berger & Kanner, Thoughts on the White River Junction Manifesto: A Reply to the "Gang of Five's" Views on Just Compensation for Regulatory Taking of Property, 19 Loyola (LA) L. Rev. 685, 704-712 (1986); Comment, Just Compensation or Just Invalidation: The Availability of a Damages Remedy in Challenging Land Use Regulations, 29 UCLA L. Rev. 711, 725-726 (1982).

[ Footnote 14 ] For this same reason, the parties' and amici's conflicting claims about whether this Court's cases, such as Hurley v. Kincaid, 285 U.S. 95 (1932), provide that compensation is a less intrusive remedy than invalidation, are not relevant here.

[ Footnote 15 ] The California Supreme Court's discussion of the policy implications in Agins is entirely consistent with the view that the court was choosing between remedies (invalidation or compensation) with respect to the permanent effect of a regulation, and was not dealing with the temporary taking question at all. Subsequent California Supreme Court cases applying the Agins rule do not shed light on this question.

[ Footnote 16 ] In the habeas corpus context, we have held that a prisoner has not exhausted his state remedies when the state court refuses to consider his [482 U.S. 304, 339]   claim because he has not sought the appropriate state remedy. See Woods v. Nierstheimer, 328 U.S. 211, 216 (1946); Ex parte Hawk, 321 U.S. 114, 116 -117 (1944). This rule should be applied with equal force here.

[ Footnote 17 ] It is no answer to say that "[a]fter all, if a policeman must know the Constitution, then why not a planner?" San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 661 , n. 26 (1981) (BRENNAN, J., dissenting). To begin with, the Court has repeatedly recognized that it itself cannot establish any objective rules to assess when a regulation becomes a taking. See Hodel v. Irving, 481 U.S. 704, 713 -714 (1987); Andrus v. Allard, 444 U.S. 51, 65 (1979); Penn Central, 438 U.S., at 123 -124. How then can it demand that land planners do any better? However confusing some of our criminal procedure cases may be, I do not believe they have been as openended and standardless as our regulatory takings cases are. As one commentator concluded: "The chaotic state of taking law makes it especially likely that availability of the damages remedy will induce land-use planning [482 U.S. 304, 341]   officials to stay well back of the invisible line that they dare not cross." Johnson, Compensation for Invalid Land-Use Regulations, 15 Ga. L. Rev. 559, 594 (1981); see also Sallet, The Problem of Municipal Liability for Zoning and Land-Use Regulation, 31 Cath. U. L. Rev. 465, 478 (1982); Charles v. Diamond, 41 N. Y. 2d 318, 331-332, 360 N. E. 2d 1295, 1305 (1977); Allen v. City and County of Honolulu, 58 Haw. 432, 439, 571 P.2d 328, 331 (1977).

Another critical distinction between police activity and land-use planning is that not every missed call by a policeman gives rise to civil liability; police officers enjoy individual immunity for actions taken in good faith. See Harlow v. Fitzgerald, 457 U.S. 800 (1982); Davis v. Scherer, 468 U.S. 183 (1984). Moreover, municipalities are not subject to civil liability for police officers' routine judgment errors. See Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). In the land regulation context, however, I am afraid that any decision by a competent regulatory body may establish a "policy or custom" and give rise to liability after today. [482 U.S. 304, 342]

___________________________________________________

Surfside Colony, Ltd. v. California Coastal Com. (1991) 226 Cal.App.3d 1260 , 277 Cal.Rptr. 371
[No. G007940. Fourth Dist., Div. Three. Jan. 15, 1991.]

SURFSIDE COLONY, LTD., Plaintiff and Appellant, v. CALIFORNIA COASTAL COMMISSION, Defendant and Respondent.

(Superior Court of Orange County, No. 412278, William F. Rylaarsdam, Judge.)

(Opinion by Sills, P. J., with Sonenshine and Moore, JJ., concurring.)

COUNSEL

Hill, Farrer & Burrill, Jack R. White, Arthur B. Cook and Dean E. Dennis for Plaintiff and Appellant.

Ronald A. Zumbrun and Edward J. Connor, Jr., as Amici Curiae on behalf of Plaintiff and Appellant.

John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard M. Frank, Chief Assistant Attorney General, and Steven H. Kaufmann, Deputy Attorney General, for Defendant and Respondent.

Freilich, Stone, Leitner & Carlisle, Katherine E. Stone and Philip A. Seymour as Amici Curiae on behalf of Defendant and Respondent.

OPINION

SILLS, P. J.

[1] Surfside Colony, Ltd. (Colony) appeals from a judgment of the superior court upholding the decision of the California Coastal Commission (the Commission) requiring Colony to grant public access to its private beach in return for permission to build a revetment. fn. 1 Colony presents two arguments. First, it contends the superior court should have used the "independent judgment test" instead of the "substantial evidence test" in making its decision. [2] Had the superior court done so, it would have had a better chance of convincing the court the public access requirement really was a "taking" fn. 2 of its property [226 Cal.App.3d 1263] without compensation. fn. 3 Second, Colony contends the Commission should not have prevailed even under the "substantial evidence test." It asserts there was no substantial evidence to support the Commission's decision.

We agree with Colony's second argument. Under Nollan v. California Coastal Comm'n (1987) 483 U.S. 825 [97 L.Ed.2d 677, 107 S.Ct. 3141], there must be a solid connection between the public burden created by coastal construction and the necessity for a public easement. As explained below, there was no substantial evidence of any such connection in this case. We therefore do not need to decide whether the superior court erred by using the wrong test. The public access requirement cannot be upheld regardless of what test the superior court would have used.

Facts

Surfside Beach lies just north of Sunset Beach and just south of Anaheim Bay in the City of Seal Beach (hereafter sometimes city). fn. 4 In the mid-1940's, the Navy built two jetties on each side of Anaheim Bay. The jetties converge on each other like sides of a triangle which do not quite meet.

The jetties narrow the entrance to Anaheim Bay. They also block the natural southward flow of sand, preventing the replenishment of Surfside Beach. Additionally, they reflect waves coming in from the ocean. These reflected waves strike the beach sideways rather than head on. As a result, [226 Cal.App.3d 1264] the reflected waves abnormally erode the beach just south of the southern jetty.

Behind Surfside Beach lies Colony-a private, gated, residential community of about 250 homes. The homes are nestled in a narrow strip about half a mile long between Surfside Beach and Pacific Coast Highway. On the other side of Pacific Coast Highway lie the waters of Anaheim Bay. Colony owns the beach to the boundary line of the ordinary high-water mark as established by an earlier boundary agreement with the State of California. This boundary line extends about 100 feet toward the ocean at the southern end of the community. At the northern end of the community the boundary extends only about 65 feet toward the ocean. [3] The rest of the beach is public property, owned by the State of California. fn. 5

Because of Surfside Beach's unique erosion problem, the amount of Surfside Beach available for public use tends to diminish over time, though some sand may come back in the summer time when waves tend to be smaller. Accordingly, every six to eight years the Army Corps of Engineers replenishes the sand on the beach at Surfside. This replenishment also helps replace natural erosion occurring at beaches as far south as Newport. If the Army Corps of Engineers does not act quickly enough, or if erosion between replenishments is excessive, the amount of beach available for public use can shrink to nothing. In the mid-1950's erosion was allowed to eat away the beach to the point where Colony houses were lost.

By the early 1980's, erosion once again threatened Colony homes. Waves had formed a vertical scarp 6 to 12 feet in height along 2,000 feet of beach extending south from the Anaheim jetties toward Sunset Beach. By August 1982, only 30 feet of beach remained between the first house on the north side of Colony to the edge of the scarp.

With winter storms coming, Seal Beach officials feared an impending local disaster with certain loss of property and tax revenue. City officials demanded the federal government immediately replenish the beach with sand. The Army Corps of Engineers, however, told the city it would take no action until the first home was lost.

The city declared a state of local emergency. It applied to the Commission for an emergency permit to place sandbags on the beach. The Commission granted the emergency permit. [226 Cal.App.3d 1265]

The sandbags afforded only a temporary solution to the problem. The city then applied for an emergency permit to install a rock revetment in front of Colony's beachfront homes. Colony also applied to the Commission for a standard permit to construct a rock revetment on its property. The revetment was to be about 16 feet high and 800 feet long. On November 4, 1982, the Commission issued an emergency permit to allow immediate installation of the revetment. The city built the revetment and Colony's homes were saved. fn. 6

The Commission proceeded to process the application for the standard permit. Its staff recommended approval, but with four conditions:

-Colony dedicate an easement for public access and passive recreational use along its private beach. (The parties refer to this as a "lateral access" requirement.)

-Colony dedicate an easement for the future construction of a boardwalk to extend the length of the revetment on Colony's side.

-Colony dedicate an easement for pedestrian and bicycle access across its property from Pacific Coast Highway to the beach. (The parties refer to this as a "vertical access" requirement.)

-Colony post conspicuous signs to inform the public of its right to cross the community's property to the beach.

The Commission's staff report relied on several scientific studies on the effects of revetments and seawalls generally on coastal erosion. fn. 7 These studies show revetments and seawalls typically exacerbate erosion of the beach in front of them. The beach receives less "nourishment" from the sand behind the structure. This lack of nourishment causes more waves to break on shore. The extra energy of the additional onshore waves tends to scour the sand from the base of the structure. The beach in front becomes steeper and narrower.

On the other hand, one of the studies pointed out beach erosion is often the result of local wave conditions. According to this study, one must have [226 Cal.App.3d 1266] knowledge of the "specific" beach before one can make a "rational" estimate of any erosion problem. fn. 8

The Commission held public hearings on the revetment application. In support of its application, Colony submitted an expert report asserting the revetment did not exacerbate erosion. In fact, the revetment supposedly mitigated the impact of the reflecting waves on the beach by absorbing wave turbulence. The Commission also considered its staff report and several photographs of the beach after the revetment had already been built. Three of the pictures were taken in January 1983. They showed, according to the testimony of one Commission staff member, a "perched beach"-that is, a beach in an apparently eroded condition. The Commission also saw a picture of the beach in July 1983. The picture showed sand to have come back and covered over the revetment so that it was not then visible. Despite the photographs, and apparently in reliance on the scientific studies, the Commission voted eight to four in favor of the staff report recommendations. fn. 9

Colony then filed a petition with the superior court for a writ of mandate. Colony asked the court to command the Commission to delete the special conditions it had imposed. The petition charged these conditions amounted to an unconstitutional taking of the Colony's property without payment of compensation.

About five years later, the case came to trial in the superior court. Using the "substantial evidence test" the court determined three of the four special conditions amounted to an unconstitutional taking. These conditions were the installation of the boardwalk, the right of the public to cross Colony from the public highway during daylight hours to get to the beach (vertical access), and the posting of signs advertising that right. The court upheld the condition allowing the public to use the private beach (lateral access).

Colony then filed this appeal, challenging the lateral access condition. [226 Cal.App.3d 1267]

Discussion

In Nollan v. California Coastal Comm'n, supra, 483 U.S. 825, the United States Supreme Court examined the issue of when the requirement of an easement for public access as a condition for a coastal construction permit would amount to a "taking" of private property without compensation. Essentially, the court held there must be a substantial connection, or "nexus" between the public burden created by the construction and the necessity for the easement. fn. 10 Without such a connection, there is an inference the government is simply trying to expropriate property without paying for it. fn. 11

In Nollan, two homeowners owned a beachfront lot. The building on the lot was a small bungalow which had fallen into disrepair. The owners sought to demolish the bungalow and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Commission, however, would only permit the owners to replace the structure if they granted an easement allowing the public to cross a portion of their property. The owners challenged the Commission's requirement, and the case eventually came before the United States Supreme Court. In a five-to-four decision written by Justice Scalia, the Supreme Court held the lack of "nexus" between the public burden created by the proposed new construction and the condition required by the Commission (allowing the public to pass over the property) meant the Commission was, in effect, taking the homeowner's property without compensation. [226 Cal.App.3d 1268]

The Supreme Court noted the proposed new construction did not block access to the publicly owned shoreline or nearby beaches. From this fact the high court reasoned there was some other, more sinister, purpose to the requirement the owners allow the public to cross over their property. This purpose was the obtaining of an easement by the government without paying for it. The court thus concluded requiring relinquishment of the owners' right to exclude others from their private beach as a condition of the proposed construction amounted to virtual extortion. (See 483 U.S. at p. 837 [97 L.Ed.2d at p. 689].)

[4a] Nollan thus requires a substantial relationship between the public burden posed by proposed construction and conditions imposed by the government to permit that construction. This was also the way the dissent understood the case. Justice Brennan criticized the majority opinion for insisting on a "precise fit" between burden and condition. (483 at p. 847 [97 L.Ed.2d at pp. 695-696].) In this case, the Commission had before it two basic categories of evidence: the expert studies and the photographs. Of the expert studies, only one dealt with Surfside Beach-the one submitted by Colony. That report, of course, does not support the Commission's decision. According to that report, the revetment tends to mitigate erosion at Surfside. fn. 12 Of the remaining studies, none of them show this revetment will cause erosion at this beach. They either deal with erosion at other beaches with different wave conditions, or with the effects of revetments and other such structures generally. One of those studies even goes so far as to say one cannot make a "rational" estimate of erosion without knowledge of the wave conditions at a "specific problem site."

Nor do the photographs show any erosion being caused by the revetment in this case. At best (from the Commission's point of view), the photographs show a change for the better consistent with seasonal fluctuations. At worst, they are strong evidence the revetment reversed erosion.

The need for "site-specific" evidence appears to be particularly important in this case. Surfside is unusual, if not unique. Most beaches do not have long jetties to their immediate north changing the normal direction of incoming waves. fn. 13

Revetments and seawalls may have different effects at different beaches. (See Barrie v. California Coastal Com. (1987) 196 Cal.App.3d 8 , 23-24 [241 [226 Cal.App.3d 1269] Cal.Rptr. 477] ["The Homeowners have not established that the two beaches are identical as to either their natural or manmade conditions and therefore may justify different treatment."].) We cannot say, as a matter of law, all revetments will exacerbate erosion. Here, the Commission had no evidence at all establishing this revetment would cause erosion at this beach.

We must therefore conclude no substantial evidence exists to justify a "nexus" between the revetment and the public access requirement. Under Nollan the access requirement must be deemed a "taking" of Colony's property.

The Commission relies on Whaler's Village Club v. California Coastal Com. (1985) 173 Cal.App.3d 240 [220 Cal.Rptr. 2]. Whaler's Village indeed held nonsite-specific expert studies on the general effects of revetments on beaches could be substantial evidence in support of a Commission easement requirement. (173 Cal.App.3d at pp. 260-261.) fn. 14

The Commission's reliance on Whaler's Village is misplaced. First, the facts are distinguishable. There is nothing in Whaler's Village to suggest the beach in that case was unusual, save possibly its susceptibility to erosion along with other beaches in Ventura County. There is no suggestion its wave patterns were different than other beaches. Moreover, in Whaler's Village the administrative record apparently did not contain affirmative evidence about the necessity to have knowledge of a specific beach in order to make a "rational" estimate of any erosion problem. [226 Cal.App.3d 1270]

Second, Whaler's Village employed a mere "rational basis" test in deciding nonsite-specific evidence would be sufficient to pass constitutional muster in a "taking" case. Given such a test, Whaler's Village assumed no need for a "direct nexus" between the burden and the condition. It was enough the project incurred "incidental" effects on the public's right to shoreline access. fn. 15

Nollan, however, changed the standard of constitutional review in takings cases. Whether the new standard be described as "substantial relationship, fn. 16 or "heightened scrutiny," fn. 17 it is clear the rational basis test employed by Whaler's Village no longer controls. fn. 18 While general studies may be sufficient to establish a mere rational relationship between revetments and erosion, Nollan requires a "close connection" between the burden and the condition. fn. 19 [5] At the very least, a "close connection" entails evidence more "substantial" than general studies which, because of unique or unusual wave conditions, may not even apply to the case at hand. Substantial evidence must be reasonable in nature, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557 , 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) Evidence which may not necessarily even apply to the case at hand hardly meets such a definition. [226 Cal.App.3d 1271]

Third, Whaler's Village is not persuasive on the merits as to the use of nonsite-specific studies. The question raised by the homeowners in Whaler's Village was whether there was substantial evidence their "particular" revetment created a public burden because seawalls "in general" tend to increase erosion. fn. 20 The opinion, however, never directly answered this question. Rather, the opinion referred to "surveys of the Army Corps of Engineers and other experts concerning shoreline erosion along the California coast and, in particular, beach erosion in Ventura County," pointed out "opinion evidence" is a "permissible basis for decision," noted the "competency" of the record had been stipulated to, and then concluded, as an afterthought while discussing another subject, fn. 21 the easement condition was "supported by the evidence in the record." (Whaler's Village, supra, 173 Cal.App.3d at p. 261.)

[4b] Whaler's Village thus assumed it was enough to cite "opinion evidence" about beach erosion to refute the homeowners' contention. But this was not enough. It was still necessary to show the particular revetment before the court created at least some burden on public access. This the opinion did not do. Rather, the opinion assumed such a burden (albeit a "small" one) without ever proving it. To have proven the existence of the burden, the opinion would have had to demonstrate one of two things: either the "opinion evidence" established there would be exacerbated erosion in every possible case where a revetment were built or (2) the opinion evidence showed the particular revetment at issue would cause exacerbated erosion. fn. 22 The opinion, however, did neither. It is therefore not persuasive on the subject of the substantiality of nonsite-specific evidence.

Accordingly, Whaler's Village does not compel a contrary result in this case. [226 Cal.App.3d 1272]

Conclusion

Without any site-specific evidence supporting the Commission's decision, we cannot say the Commission had "substantial evidence" justifying the need for an easement over Colony's property. We therefore reverse with directions to the trial court to modify the judgment in accord with the views expressed herein. fn. 23

Sonenshine, J., and Moore, J., concurred.

? FN 1. A revetment is a kind of built-up embankment or barricade, often made of rock.

? FN 2. The Constitutions of both California and the United States require the government to pay for any private property it "takes." (Cal. Const., art. I, § 19 ["Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner."]; U.S. Const., 5th Amend. ["nor shall private property be taken for public use, without just compensation"].)

? FN 3. There are two ways a court may review the decision of an administrative agency-either the "substantial evidence test" or the "independent judgment test." (See Code Civ. Proc., § 1094.5, subd. (c).) If the court uses the "substantial evidence test," the chances are greater the agency decision will be upheld. This is because under the substantial evidence test, the court must resolve reasonable doubts in favor of the administrative decision and uphold the decision if there is "any" substantial evidence to support the findings. (See Smith v. County of Los Angeles (1989) 211 Cal.App.3d 188 , 198 [259 Cal.Rptr. 231]; see also Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 , 514-515 [113 Cal.Rptr. 836, 522 P.2d 12].) Under the independent judgment test, the court would be free to independently weigh the evidence and resolve conflicts against the agency. (See Cerberonics, Inc. v. Unemployment Ins. Appeals Bd. (1984) 152 Cal.App.3d 172 , 175-176 [199 Cal.Rptr. 292].)

? FN 4. In reality, Orange County beaches do not run either north-south or east-west. They run northwest-southeast. This makes describing local landmarks somewhat awkward, and has prompted at least one commentator to satirically suggest the local board of supervisors legislate a 90-degree compass correction. "Instead of setting the clock back or forward we'll turn the compass 90 degrees to the left to align the county with the cosmic order of things. [¶] That will put the ocean to the west and L.A. to the north where they belong. [Fn. omitted.]" (Bedsworth, Another Modest Proposal (1989) 31 Orange Co. Law. 6, 7.) (Actually, the compass need be corrected by only about 45 degrees to the left to achieve the desired result.) For purposes of this opinion, we describe Surfside Beach as if it ran north-south.

? FN 5. In California, the area seaward of the mean high tide line is public property, even though the rest of the beach may be privately owned. (See Marks v. Whitney (1971) 6 Cal.3d 251 , 257-261 [98 Cal.Rptr. 790, 491 P.2d 374].)

? FN 6. Colony later agreed to reimburse the city for half the cost. The issue of the impact of the public financing of the revetment is not before this court on appeal.

? FN 7. These included Saving the American Beach: A Position Paper by Concerned Coastal Geologists (March 1981); Shore Protection in California (1976), a publication of the state Department of Boating and Waterways; Christiansen, Economic Profiling of Beach fills (1977); Kuhn, Coastal Erosion Along Oceanside Littoral Cell, San Diego County (1981); and Inman, Man's Impact on the California Coastal Zone (undated), prepared for the state Department of Boating and Waterways.

? FN 8. Inman, Man's Impact on the California Coastal Zone (undated), prepared for the State Department of Boating and Waterways, at page 17: "No single cause can be attributed to beach erosion in California since it is often a result of localized wave conditions, the resistance of the bedrock, the presence of man made coastal structures, the lack of a sand supply, or a combination of these factors. [¶] As indicated previously, waves supply most of the energy to the coastline and some fraction of this energy is used to transport sediment in the nearshore environment. Thus, one must have a knowledge of the wave climate at a specific problem site before any rational estimate can be made of littoral sand transport."

? FN 9. The Commission voted to make one change in the staff report. This change dropped the requirement Colony allow access across its property from the street during night hours.

? FN 10. The strength of the connection required by Nollan is not spelled out in so many words, but appears to be at least a substantial one. At 483 U.S. at pages 834-835 [97 L.Ed.2d at pages 687-688] the court indicates the need for a "substantial" connection between the public burden imposed by the proposed construction and the condition imposed by the government: "Our cases have not elaborated on the standards for determining what constitutes a 'legitimate state interest' or what type of connection between the regulation and the state interest satisfies the requirement that the former 'substantially advance' the latter. [Fn. omitted.]" (Italics added.)

The footnote in the quoted language confirms the need for a "substantial" connection. The footnote is addressed to Justice Brennan's dissent, and distinguishes between the simple rational basis test appropriate for due process or equal protection analysis and the "substantial advancement" test which is more appropriate in the "takings field." The footnote states:

"Contrary to Justice Brennan's claim [page citation omitted], our opinions do not establish that these standards are the same as those applied to due process or equal protection claims. To the contrary, our verbal formulations in the takings field have generally been quite different. We have required that the regulation 'substantially advance' the 'legitimate state interest' sought to be achieved." (483 U.S. at p. 834, fn. 3 [97 L.Ed.2d at p. 688].)

? FN 11. See 483 U.S. at page 837 [97 L.Ed.2d at page 689]: "Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation.

? FN 12. Even under the substantial evidence test, the court must still examine the "whole record." (Code Civ. Proc., § 1094.5, subd. (c).)

? FN 13. Diagrams attached to the study done by Colony's expert show the effect of the reflected waves on Surfside. The waves appear to have the effect of redistributing sand from the extreme north end of the beach to a "bulge" somewhat farther south, but still at Surfside.

? FN 14. The operative language from Whaler's Village is found in two passages on pages 260 and 261 of the opinion:

"There is substantial evidence in the administrative record to support the staff's conclusion that seawalls and revetments tend to cause sand loss from beach areas in front of and adjacent to them even if they protect immediate structures. Studies cited in staff reports concerning other permit applications before the Commission confirm the staff's finding that 'by artificially building up the slope of the shore area, seawalls and revetments of this type tend to cause a landward retreat of the mean high tide line, potentially affecting the boundary between public and private lands along the beaches adjacent to the project as well as on the project site itself.' " (173 Cal.App.3d at p. 260.)

"The Commission had sufficient information before it to conclude that, due to construction of this revetment and others up and down the coast, the erosive nature of the beaches in Ventura County coupled with the tendency of seawalls and revetments to increase the sand loss on beaches with a tendency to recede constitutes a cumulative adverse impact and places a burden on public access to and along state tide and submerged lands for which corresponding compensation by means of public access is reasonable. [Citations omitted.] Staff reports concerning various applications before the Commission referred to surveys of the Army Corps of Engineers and other experts concerning shoreline erosion along the California coast and, in particular, beach erosion in Ventura County. Opinion evidence of experts in environmental planning or ecological sciences is a permissible basis for decision. [Citation omitted.]" (173 Cal.App.3d at p. 261.)

? FN 15. See generally 173 Cal.App.3d at pages 260-261, and in particular the following: "Thus, the validity of the condition is not destroyed because the development has no direct nexus to the condition, the benefit to the public is greater than to the developer, or future needs are taken into consideration. [Citation and fn. omitted.] It is enough that the project 'contributes, at least in an incidental manner' to the need for a particular extraction. [Citation omitted.]"

? FN 16. See Peterson, Land Use Regulatory "Takings" Revisited: The New Supreme Court Approaches (1988) 39 Hastings L.J. 335, 338: "Justice Scalia, writing for the majority of five, concluded that to pass muster under the just compensation clause, an enactment must bear a substantial relationship to a valid public purpose, not merely a rational relationship, the common standard in due process and equal protection challenges." (Fn. omitted.)

? FN 17. See The Supreme Court, 1986 Term (1987) 101 Harv. L.Rev. 7, 248-249: "Yet the Court expressly refused to adopt the standard of minimum rationality advocated by Justice Brennan and insisted instead that there must be a 'substantial advancing' of the government purpose. The Court thus articulated a standard of heightened scrutiny for regulations challenged under the takings clause." (Fn. omitted.)

? FN 18. See Michelman, Takings 1987 (1988) 88 Colum. L.Rev. 1600, 1606: "It was this lateral-passage condition that the Court found to constitute a taking. [¶] The Court so found by a course of reasoning that turned ... on subjecting the instrumental merit of the Commission's action to a distinctly more active and intensive judicial reexamination than the kind of desultory, 'rational basis' review that the Court has for the last half-century been applying to police-power regulations affecting economic interests, most notably including land-use regulations." (Fn. omitted.)

See also 101 Harv.L.Rev., supra, at p. 247: "The Nollan decision ... indicates that all regulations will now be subjected to a level of scrutiny far higher than the Court previously has used in assessing claims of regulatory takings."

? FN 19. See Peterson, 39 Hastings L.J., supra, at p. 358: "To pass muster, a governmental act will require careful documentation of legitimate purposes and a close connection between the purpose and the act itself."

? FN 20. See Whaler's Village, supra, 173 Cal.App.3d at page 259: "In point, respondent argues that the Commission found a public 'burden' because seawalls in general tend to cause additional sand scour on any historically eroding beach but did not find that this particular revetment caused such damage."

? FN 21. The other subject was whether there was a reasonable relationship between the goals of the coastal act and the easement condition. See Whaler's Village, supra, 173 Cal.App.3d at page 261: "Therefore, the condition of offering to dedicate an easement for public access was reasonably related to one of the principal objectives of the coastal act, which is to provide for maximum access to the coast by all the people in this state [citation omitted] and was supported by the evidence in the record."

? FN 22. There is a difference between opinion evidence about the effects of revetments generally and the effect of a particular revetment. The case at bar is a good example. Both sides offered "opinion evidence." Only one side, however, offered opinion evidence bearing on the particular revetment at issue.

? FN 23. In a petition for rehearing or modification of opinion, the Commission asks us to remand the matter back to the Commission for further proceedings. The Commission has apparently forgotten it stipulated before the trial court the matter not be returned for a second review.