Nollan v. California Coastal Commission

Justices Blackmun, Brennan, Stevens, and Marshall all dissented. Of the dissenting opinions, the one filed by Brennan, with which Marshall joined, was by far the longest and most forceful. Brennan urged greater flexibility for states to make rules affecting private property, and criticized the Court's "cramped standard" of interpreting restrictions on state authority. As for Scalia's claim that the easement was invalid because it had nothing to do with the condition it was supposed to address, Brennan held that the state was responsible for all aspects of public access to the public tidewaters. This included "visual access" (in the commission's words) from the road, as well as "lateral access" from beach to beach. To Brennan, this wide-ranging authority constituted "flexibility" on the state's part, and "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."

Instead of expecting so much from the states, Brennan suggested, the Court should turn its attentions to another quarter: "The Court's demand for this precise fit," he wrote,

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.

In any case, "[t]he physical intrusion permitted by the deed restriction is minimal," and the Court had declared in Pruneyard Shopping Center v. Robins (1980) that physical access to private property could be permitted as long as it did not "unreasonably impair the value or use of [the] property."

In Brennan's view, California had done at least as much for the Nollans as the Nollans had done for California. It had allowed them to replace their tiny one-story bungalow home with a two-story house three times its size. Thus they had enjoyed an increase in their property values even with the easement--an increase that, in Brennan's eyes, the state had given the Nollans by allowing them to spend their money on building the house. Furthermore, by imposing deed restrictions on other landowners along the beach, the commission had made it possible for the Nollans to walk wherever they chose. If California had allegedly deprived the Nollans of the full value of their development, the problem was that the Nollans had flawed expectations, since the commission "was under no obligation to approve" the couple's proposal for the development of their property. In any case, Brennan wrote, quoting Andrus v. Allard (1979), "the interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests."

Justices Blackmun and Stevens also issued dissenting opinions, though theirs were less clearly critical of the Nollans' claim that they had full rights to their property. Blackmun took issue chiefly with the Court's concern for a "necessary correlation between the burden created by a development and a condition imposed pursuant to the State's police power to mitigate that burden," which he described as "an `eye for an eye' mentality."

Stevens, with whom Blackmun joined, made note of the Court's "remarkable ruling" in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987), when it held that "local governments and officials must pay the price for the necessarily vague standards" of zoning and development laws. As Stevens noted, in San Diego Gas & Electric Co. v. San Diego (1981), Justice Brennan had proposed then that officials who made mistakes which hurt citizens--mistakes such as the Coastal Commission had apparently made--they should be liable for "temporary taking" of property and should be punished severely. (Given the fact that Brennan was one of the dissenters in that case, however, it is likely that he meant this to be taken in some way other than literally--perhaps simply to make a point about a ruling with which he disagreed.) Stevens, observing that "I like the hat that Justice Brennan has donned today better than the one he wore in San Diego," concluded that he agreed with Brennan in the present case.