Essential Nexus
The declaration of statutory nuisances or "nuisances in law" has increased exponentially during the past half-century. As a result, the Court has also had occasion to rule on the propriety of conditions of permit as they relate to the underlying police powers. In Nollan v. California Coastal Commission, 483 U.S. 825 (1987) Justice Scalia, in delivering the opinion of the Court, explained the necessary nexus between the conditions of use imposed by regulation and the actual amelioration or elimination of those aspects of the proposed use which are considered dangerous or injurious to the public:
..."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 spot 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 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. [Emphasis mine.]
In Dolan v. City of Tigard, No. 93-518 (1994), Chief Justice Rehnquist, delivering the opinion of the Court, further developed the rationale of Nolan in examining the proportionate balance of the regulatory conditions imposed upon use with the severity of the danger or injury the regulations were intended to ameliorate or eliminate:
... "Under the well-settled doctrine of 'unconstitutional conditions', the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Ed. of Township High School Dist., 391 U. S. 563, 568 (1968)."
..."In evaluating petitioner's claim, we must first determine whether the 'essential nexus' exists between the 'legitimate state interest' and the permit condition exacted by the city. Nollan, 483 U. S., at 837.If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. 483 U. S., at 838. Here, however, we must decide this question."
