| Nollan v. California Coastal Commission
(No. 86-133)
177 Cal.App.3d 719, 223 Cal.Rptr. 28, reversed. |
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| Syllabus
| Opinion
[ Scalia ] | Dissent
[ Brennan ] | Dissent
[ Blackmun ] | Dissent
[ Stevens ] |
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Nollan v. California Coastal Commission
APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT
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, [p866] 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.