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Justice Scalia’s Input Into Oregon’s Land Use System

Justice Antonin Scalia passed away last week after almost 30 years as a justice of the U.S. Supreme Court. Although his impact was felt throughout the country, it is worth pausing to look at how he affected the land use system more broadly and, in particular, Oregon’s system.

Prior to Justice Scalia’s opinion in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), the court really had not weighed in on the field of real property and property rights for decades. Although there were occasional forays into the field, such as Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), those decisions tended to be deferential to local governments and not provide much protection to property rights. Nollan signaled that the court was issuing a new era. Rather than taking a deferential look at the demands of a governmental entity, Scalia was downright confrontational about the Coastal Commission’s attempt to obtain an easement from the Nollans in exchange for the permission to build a new home in place of the existing ocean front bungalow. Scalia asserted that “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." Although the case did not directly affect Oregon, it sent shockwaves through the planning community as it shifted the balance between local governments and landowners.

Scalia followed Nollan with a case from across the county, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in which a state agency prohibited the development of an oceanfront lot on Isle of Palms. In that case, Scalia held that when a regulation prohibited all economic use of a property, it was a taking and the government owed compensation for that regulation, unless the limitation imposed by the regulation was inherent in the “background principles of the State's law of property”. Lucas was an important case in shaping land use and understanding the contours of regulatory takings, and makes a later appearance in Oregon, as discussed below.

Oregon took the spotlight in the Supreme Court’s decision in Dolan v. City of Tigard, 512 U.S. 374 (1994). Although the decision was written by Justice Rehnquist, it was Scalia’s work in Nollan and elsewhere that laid the groundwork for the court’s decision. In Dolan, a Tigard business wanted to expand, which the city approved and, conditioned on the dedication of an easement adjacent to Fanno Creek and improvement of a pathway along the creek. The court overturned those conditions, holding that a local government may not require the surrender of constitutional rights (i.e., just compensation under the Fifth Amendment) in exchange for discretionary benefits (i.e., approval of the expansion of a plumbing store), where the property to be dedicated has little or no relationship to the benefit conferred.

Finally, it may be worth celebrating the case where Justice Scalia did not get to write an opinion. In Stevens v. City of Cannon Beach, 317 Or 131, 854 P2d 449 (1993), the Oregon Supreme Court upheld the Oregon Beach Bill, which declared that the beaches are public throughout the state based on the doctrine of “custom,” i.e., that people had customarily used the beaches for travel and recreation and, therefore, that right to use the beaches was part of the state’s background principles of law. The Stevens were not happy with that result and appealed the Oregon court’s case to the U.S. Supreme Court. However, the U.S. Supreme Court denied review and Justice Scalia wrote a dissent arguing that the court should take review of the “land grab [that] may run the entire length of the Oregon coast.” Unluckily for the Stevens, but luckily for those who recreate at the Oregon Coast, Justice Scalia was not able to garner enough votes to take up the case and Oregon’s beaches continues to be open to the public.

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