| 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 STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
The debate between the Court and JUSTICE BRENNAN illustrates an extremely important point concerning government regulation of the use of privately owned real estate. Intelligent, well-informed public officials may in good faith disagree about the validity of specific types of land use regulation. Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304 (1987), local governments and officials must pay the price for the necessarily vague standards in this area of the law.
In his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621 (1981), JUSTICE BRENNAN proposed a brand new constitutional rule. [*] He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should automatically give rise to pecuniary liability for a "temporary taking." Id. at 653-661. Notwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment [p867] and the public welfare, six Members of the Court recently endorsed JUSTICE BRENNAN's novel proposal. See First English Evangelical Lutheran Church, supra.
I write today to identify the severe tension between that dramatic development in the law and the view expressed by JUSTICE BRENNAN's dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flexibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante at 846-848. I like the hat that JUSTICE BRENNAN has donned today better than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his position prevailed in this case, however, it would be of little solace to land use planners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case demonstrates, the rule of liability created by the Court in First English is a shortsighted one. Like JUSTICE BRENNAN, I hope that "a broader vision ultimately prevails." Ante at 864.
I respectfully dissent.
The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a "taking," the government entity must pay just compensation for the period commencing on the date the regulation first effected the "taking," and ending on the date the government entity chooses to rescind or otherwise amend the regulation.
450 U.S. at 658.