Saturday, April 23, 2005

Beach takings in California

An article in the New York Times opens:
The media mogul David Geffen has agreed to allow public access to the beach in front of his multimillion dollar home in Malibu, Calif., ending along-running battle with the state and nonprofit groups. As part of the agreement, Mr. Geffen will pay the California Coastal Coastal Commission and the State Coastal Conservancy $300,000 . . .

According to state law, all beaches are open to the public up to the mean high tide line. But I thought the Fifth Amendment protected individual's from public taking without just compensation. It seems to me that Geffen is being charged to allow the state to orchestrate a public taking of his beach property, up to the mean high tide line at least. How could this be possible?

Well, thanks to the ruling in Nollan v. California Coastal Commission (1987) the state can do this. Justice Scalia delivered the opinion of the Court and noted that it "has long recognized that land-use regulation does not effect a taking if it 'substantially advances legitimate state interests' and does not 'deny an owner economically viable use of his land.'" Although the Court defended Nollan's rights it noted if the state employs such a law it may do so and is within its rights to do so only if one of the following three purposes or legitimate interests are behind the law. The law was put in effect to (1) Protect the public ability to see the beach, (2) Assist the public is overcoming a perceived psychological barrier to using the beach, and (3) Prevents beach congestion.

This doesn't seem right to me. I think the language of the Fifth Amendment is clear and this is just another example of a Supreme Court blunder. They had the chance to strike the law down in 1987 and instead let one special case out from under it, doing nothing to preserve justice in the future.


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