Coastal Defense

The California Coastal Commission was a product of the extraordinary economic and population growth in California during the middle decades of the twentieth century. As California became the most populous state in the union (finally surpassing New York during the 1970 census), it set a national standard for rapid, automobile-centric development. Most of that development took place near the Pacific Ocean, around the port cities of San Francisco, Los Angeles, and San Diego. All this growth produced some not-so-pleasant side effects: snarled traffic, crowded beaches, unsightly new construction, and the loss of aging landmarks to the wrecking ball. California also suffered a major environmental catastrophe in 1969, when the blowout of an off-shore oil-drilling platform in the Santa Barbara Channel caused a massive spill off the coast of Southern California. For many Californians, the Santa Barbara disaster provided a dramatic illustration of the unintended consequences of unrestrained, unplanned economic growth, and they vowed to take measures to prevent future disasters. In 1972, Californians passed a statewide initiative creating a coastal-zone management commission; four years later, the state legislature added its own enabling legislation.^{Footnote 3}

From the beginning, the California Coastal Commission faced an enormous task. Californians asked the agency to protect the state’s shoreline from large-scale environmental disasters, especially future oil spills, and the slower-moving destruction of open and natural spaces by beachfront construction. They also asked the Coastal Commission to preserve public access to sandy beaches and scenic views, which were increasingly constrained by new development. But they did not give the commission a budget appropriation equal to those ambitions. As a result, the Coastal Commission faced significant constraints. Its jurisdiction overlapped with scores of local governments, some of which were hostile to its objectives and its authority. The commission also had to guard access to the coast and maintain the scenic qualities of the coastline, without spending much public money.^{Footnote 4}

The power at issue in the Consiglio case—the commission’s use of the building permit process to block or modify construction that interfered with some sort of public value—was designed to solve this problem. When it was first created, the Coastal Commission identified properties that it or the state legislature could purchase for the sake of access or preservation.^{Footnote 5} But its staff soon realized that the commission would never have the resources to buy up every property it deemed necessary to protect the state’s long coastline. So, employees of the commission began to think about how to fulfill their mandate some other way. Regulation offered an intriguing alternative. Rather than purchasing land outright, the commission could require that anyone planning new construction in the coastal zone accommodate the needs of all Californians, as expressed through the Coastal Act. That way, it could avoid costly payouts to landowners. And it could preserve, protect, or open up more of the state’s precious coastline, without returning to Sacramento, hat-in-hand, asking for new appropriations.

By relying on regulation, though, the Coastal Commission entered an area of long-standing uncertainty and tension within American law. The U.S. legal system recognizes individual rights to “life, liberty, and property,” which are enumerated in both the Fifth and the Fourteenth Amendments, including the former’s specific prohibition on government “taking” private property for public use without “just compensation.”^{Footnote 6} But U.S. law also recognizes a “police power”—the inherent authority of the state to regulate society in order to maintain order, protect public safety, and contribute to the general welfare.^{Footnote 7} At various times in U.S. history, judges have been called upon to explain when the action of a government agency exceeds the legitimate use of the police power and ends up violating a property right. In Pennsylvania Coal Company v. Mahon (1922), Justice Oliver Wendell Holmes explained that “while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking.” And, in Euclid v. Ambler (1926), the Court helped draw that line by allowing local authorities to “zone” land for certain kinds of development and exclude uses that were incompatible with the municipality’s long-term plan.^{Footnote 8} The Coastal Commission would argue that its building-permit rules and other regulations acted in the tradition of Euclid: they used the police power to rationalize development and plan for the public good.

The emergence of environmentalism in the 1960s and 1970s added new justifications for employing the police power more aggressively than it had been used in the past. By focusing public attention on threats to natural ecosystems—the web of mutually sustaining relationships between living organisms, soil, and water—environmentalists showed how changes to one parcel of land could have devastating effects far beyond the property line. Indeed, several leading intellectuals close to the environmentalist movement wondered whether traditional notions of property rights needed to be updated to take ecological knowledge into account. In a 1971 article for the Yale Law Journal, legal scholar Joseph Sax argued that the “abandon with which private resource users have been permitted to degrade our natural resources may be attributable in large measure to our limited conception of property rights.” Sax argued that it was past time to develop a new conception of property, one “founded on a recognition of the interconnectedness between various uses of seemingly unrelated pieces of property” instead of individual dominion. If we did that, Sax argued, “Much of what was formerly deemed a taking” requiring compensation under the Fifth Amendment, “is better seen as an exercise of the police power in vindication of what shall be called ‘public rights.’”^{Footnote 9} This sentiment was not limited to law professors or activist groups. A 1973 report from the Council on Environmental Quality asked the Supreme Court to reconsider Mahon in light of environmentalism.^{Footnote 10}

The increasing willingness of government agencies to use—and provide expansive justifications for—the police power made some people uncomfortable. Specific land-use decisions could seem unfair to property owners subjected to regulation, since those owners bore a disproportionate share of the costs while the public enjoyed nearly all the benefits. Developers and real-estate investors followed the not-completely-academic debate over “public rights” with trepidation. Who would want to finance investments in real property if regulators could swoop in midway through the process and ban development? They found their own champions in legal academia. San Diego law professor Bernard Siegan, for example, built a reputation by repeatedly raising the alarm about the threat to property rights posed by an expanding regulatory state. Siegan argued that theories of regulatory power put forth by the likes of Sax would “allow the government to reduce through regulation the prerogatives of ownership until the owner’s interest were reduced to the virtual scrap of a naked title.”^{Footnote 11} If governments had carte blanche to regulate land use, he argued, no piece of real estate would be safe from effective confiscation by the state.

In internal correspondence, the top management of the California Coastal Commission understood that they could face serious political and legal opposition. They admitted to one another that that working through regulation was largely an opportunity to do a big job on the cheap. “There are a number of advantages in relying on regulation as a major means for implementing the Coastal Plan,” chief planner E. Jack Schoop explained in a 1975 memo to his executive director. “Primary among them is that regulation does not require the immediate expenditures of large sums of public money as do acquisition techniques.”^{Footnote 12} They also knew that this course of action took them into a gray area in American law. One 1974 memo noted “the absence of a precise standard” or a “firm dividing line” that would explain when an effort to protect public values illegally infringed on private property rights.^{Footnote 13} But the commission’s leadership ultimately decided to push ahead and see what happened. When they did so, they began to encounter a concerted political and legal counter-mobilization.

Liberty and Property

The counter-mobilization was led, in no small part, by Pacific Legal Foundation. A nonprofit, “public-interest” legal foundation, Pacific was founded in 1973 by Ronald Zumbrun. As an aide to then-Governor Ronald Reagan, Zumbrun had helped coordinate the legal defense of a California welfare reform bill that Reagan had negotiated and signed. He soon decided that conservatives needed to balance the array of legal aid organizations, civil rights groups, and civil liberties advocates operating on the left wing of the political spectrum with a policy-oriented legal group of the right. Zumbrun drew up a prospectus and eventually convinced several former colleagues from the Reagan administration to join him in this new venture. His connections within the California GOP helped secure start-up funding. Prominent Los Angeles corporate attorney (and future attorney general) William French Smith put Zumbrun in contact with J. Simon Fluor, the head of a massive international construction concern. Fluor was furious that environmentalists had gone to court to delay an Alaskan oil pipeline and block the development of a proposed ski resort in California’s Mineral King Valley. In addition to providing some of the group’s first cash contributions, Fluor served as Pacific Legal Foundation’s first chairman of the board.^{Footnote 14}

Zumbrun initially expected that Pacific would focus primarily on welfare issues and disruptive protest on college campuses—two issues closely associated with Reagan’s two terms as governor. But the firm gradually developed a specialty in environmental litigation, with a focus on land-use cases like Consiglio’s. Its newsletters and donor correspondence echoed Siegan’s concern about property rights being eroded by the state. “Land in America is increasingly valued as a priceless resource,” the firm explained in one fund-raising appeal. “No longer is it seen as a commodity to be bought, sold, and used freely—but rather, it has earned respect as a resource to be conserved and managed in the public interest.”^{Footnote 15} That conceptual transformation now justified any number of hastily designed and inconsistent impositions on private rights. In another letter, Zumbrun argued that Americans had allowed their “guilt” at having “ignored environmental problems [grow] so strong that we are now allowing Congress, state legislatures and local governments to implement ‘panic regulations and controls’ which may destroy America in another fashion.” To “placate our guilty feelings,” he continued, “we are sacrificing the very foundations upon which America was built—the right of the individual.”^{Footnote 16}

Of course, the California Coastal Commission was but one government agency, with jurisdiction over but one part of one state (albeit a large one). But Pacific Legal Foundation understood the commission less as a specific challenge to California developers so much as the vanguard of a new liberalism. From World War II through the early 1970s, American liberals typically intervened in the economy in the hopes of producing consistent economic growth and growing the ranks of the comfortable middle class. But this brand of “growth liberalism” began to founder in the late 1960s, as prominent liberals and Democratic politicians became interested in addressing the major failings of the affluent society as much as—or more than—expanding affluence further.^{Footnote 17} Environmentalists noted that ever-greater growth and prosperity seemed to require ever-greater destruction of nature and production of waste. An emerging consumer movement exposed the shoddy quality and built-in dangers of the fruits of prosperity. A series of energy crises sparked a global debate about whether the U.S. and global economies might be approaching the limits of sustainable economic growth—and, if so, how to live with that possibility. Responding to these new concerns required new public policies; the government needed to protect Americans and the environment instead of investing in faster or broader economic growth.^{Footnote 18}

The new liberal policy agenda created different kinds of conflict over the proper size and use of the police power to regulate the economy. While the New Deal era certainly produced some high-profile constitutional showdowns over efforts to manage prices and production, those generally concerned the breadth of the federal government’s “commerce clause” power to regulate trade. The New Deal’s emphasis on public investment in future economic growth created very few ambiguities in subjects like land use. When the government condemned land to build a highway, reservoir, or hydroelectric dam, the government needed to physically occupy the property; the public nature of the project and the government’s intrusion onto once-private domain were both clear.^{Footnote 19} The new social regulation of the 1970s pushed the old tensions back on the agenda. Environmentalists and preservationists did not want to build new public improvements so much as to keep some things as they were—a marsh undrained, an open field fallow, a historic building still standing, a mountaintop unmined. And that could be accomplished without taking possession of anything. The government simply needed to “re-zone” a property for open space or designate it as “protected” from future change.^{Footnote 20}

For Zumbrun, this posed a serious problem. When the costs of achieving a perceived public good landed on just a few people, government faced few democratic checks on its power. California voters might not rise up electorally against an agency that seemed to offer them substantial benefits at negligible direct cost. Worse, they might not give that agency the same sort of scrutiny and public accountability that they would require if that agency relied on large public expenditures or subjected more people to red tape. That could allow the Coastal Commission to be tolerated by the voters even if its leadership held out-of-the-mainstream views. In its newsletter and legal filings, Pacific Legal Foundation regularly accused the Coastal Commission of political radicalism and aesthetic elitism. America, the legal group warned members, faced a future in which “an individual cannot own property. . . . It can only be held for the good of society as that good is perceived by a select few”—that is, the Coastal Commission staff.^{Footnote 21} And yet, for all the claims about out-of-touch elitism, lawyers for Pacific Legal Foundation realized that they, not the Coastal Commission, were usually running against the tide of public opinion. “Sometimes Pacific Legal Foundation is pictured as ‘the bad guy,’ challenging regulations for what would appear to be desirable objectives such as clean air, clean water and a healthy environment,” admitted an article in the group’s newsletter. They did so, Pacific argued, to “ensure that the government regulations for which the public pays are both necessary and worth the price—not just someone’s ‘good idea.’”^{Footnote 22} To defeat the Coastal Commission, Pacific Legal Foundation would have to shift public perceptions of good guys and bad guys, good ideas and bad ones.

Going to Court

Zumbrun and company began to take on the Coastal Commission through litigation, representing clients who felt that they had suffered unfairly at its hands—and strike a blow against the “social property enthusiasts” who seemed so happy to erode individual rights.^{Footnote 23} The foundation represented the Southern California city of Chula Vista, just south of San Diego, in a dispute with coastal authorities. In 1980, the Coastal Commission blocked a land-use and development plan enacted by the city on the grounds that it failed to preserve adequate open space and would fill in ecologically sensitive marshland. Chula Vista sued, on the grounds that the commission had exceeded its authority by substituting its own policy judgments for those of the city. The city prevailed in Superior Court, only to have the decision reversed at the appellate level. At that point, the commission and the city worked out a compromise. Then the Sierra Club and the League for Coastal Protection challenged that plan. They argued that the Coastal Commission had engaged in illegal, ex parte communications while negotiating with the city, and the legal process continued.^{Footnote 24}

Pacific Legal Foundation also represented a businessman named Marv Paoli after Paoli tried to build a partially underground motel along the Mendocino Coast. The Coastal Commission approved Paoli’s plan, but only if he agreed to dedicate part of his property to open space and restricted it, by deed, from future development. Initially, the commission demanded what Zumbrun called “a donut shape surrounding the proposed inn.” After Paoli complained, the commission made a second offer, which consisted of one-third of Paoli’s lot, though in a less-confining shape. Paoli said he planned to challenge the issue in court, so the commission withdrew its qualified approval, which placed the motel project in limbo.^{Footnote 25} Zumbrun argued that the dedication requirements were excessive and capricious. Meanwhile, his colleague Mary Jo Lambert filed a complaint against three employees of the Coastal Commission before the state personnel board. It accused those employees of failing to answer Paoli’s phone calls and of holding a hearing on the case without contacting him or notifying his attorney. The personnel board ultimately docked two Coastal Commission employees $1,000 and $650, respectively, for mistreating the businessman. The commission was forced to sue in order to restore its employees’ pay.^{Footnote 26}

The battle with the California Coastal Commission also went on outside the courts. Pacific’s lawyers used litigation to delay, frustrate, and hamstring the commission and prevent it from fulfilling its mission. Eventually, they hoped to build a case against the agency in law, politics, and public policy that would eventually lead to its abolition. The foundation assigned an attorney (and, eventually, multiple interns from its public-interest fellowship program) to investigate the commission and author an exposé. Pacific used a public records act to demand documents and threaten legal action when the commission was slow to respond. One typical request included: “4 [out of 14]. Please provide a copy of each and every report or memorandum outlining or dealing with the progress of the commission in complying with Section 30343 of the Public Resources Code. . . . The foregoing request is also made pursuant to Government Code §§ 6250, et seq., and therefore your response is anticipated within 10 days.”^{Footnote 27} The investigation resulted in a 109-page critique of the commission that blamed its directors for “the destruction of private property rights” and “intrusive, duplicative overregulation.” The report concluded on a note of spiritual angst. Thanks to overregulation, it asserted, “Californians again are experiencing a sense of loss and an acute apprehension for the future.”^{Footnote 28}

These tactics took advantage of already-existing divisions within the agency. By the late 1970s, the Coastal Commission faced a rift between the staff that helped to establish it and a late-arriving, more conciliatory top leadership. The former tended to be hard-charging environmentalists who chafed at authority and spoke of being “young, naïve, and proud.” The latter, including executive director Michael Fischer, hoped to reduce political resistance and build consensus. At the advice of an outside management consultant, Fischer steered the commission away from strong language, such as “enforcer” and “cop,” in hopes of building a broader base of support. (“Our Style: Cooperation Not Confrontation” announced the headline of one of the agency’s newsletters.) In response, staff members accused Fischer of “waffling” and being a “sellout.” Things got ugly. In 1978, commission employees trashed the desk of one of the commission’s chief planners, apparently in frustration at Fischer’s milquetoast leadership. Fischer’s consultant suggested that “part of the present problem stems from the installation of the shock troops (who got the CCC launched) as peacetime administrators.”^{Footnote 29}

The Coastal Commission also faced significant external constraints. During the tax revolts and recessions of the late 1970s and early 1980s, the commission was forced to freeze salaries and reduce its full-time staff. Cutbacks began in 1979, when Fischer was asked to eliminate “9.9 positions,” or roughly five percent of his full time staff, from the payroll. But the biggest cuts came in 1983, when a state budget negotiated by new Republican governor George Deukmejian removed $1.4 million of its $7.8 million in state funding and forced the commission to reduce its staff from 171 employees to 115.^{Footnote 30} A Republican former state attorney general, Deukmejian had pledged to abolish the Coastal Commission during his 1982 campaign for governor, although the commission enjoyed far too much support among state legislators in both parties for Deukmejian to keep his promise. But a smaller budget and staff made the commission’s job that much harder. The result was what one observer called “deregulation by proactive inaction”: the Coastal Commission gradually responded to constraints by making smaller demands. Property rights were secured less through conflict than through bureaucratic default.^{Footnote 31}

Given those institutional constraints, lawsuits and investigations instigated by Pacific Legal Foundation not only threatened individual decisions made by the commission but also its funding, independence, and autonomy. During the Chula Vista litigation, attorneys for the state worried in court about “a rising tide of litigation which threatens to interfere with coastal planning.”^{Footnote 32} After the state personnel board decided to dock employee pay over the mistreatment of Marv Paoli, Fischer complained about the “chilling effect upon staff members of any state regulatory body” that such a decision would have.^{Footnote 33} And commission employees grew angry when large document requests from Pacific appeared at the office. Staffer Peter Douglas blamed the tax revolt when the commission was slow to answer its public-records requests: “With budget reductions and a continuing heavy workload, it has become difficult for us to respond fully and quickly to extensive requests of the type you have made. For example, the staff person who handled all of the state mandated cost claims for processing under section 30340.5 has been terminated due to budget cut-backs.”^{Footnote 34} Lawyers for the state took note when they met their counterparts from Pacific in court. One internal memo celebrating the California Supreme Court’s decision to dismiss an appeal of a pro-commission decision concluded: “Incidentally, the attorneys for the Nollans were the Pacific Legal Foundation.”^{Footnote 35} Unfortunately for the Coastal Commission, that particular case would eventually find its way to a higher court—where it produced a legal precedent that further weakened its hand.

The Supreme Court Weighs In

Nollan v. California Coastal Commission began in January 1982, when James and Marilyn Nollan purchased a small, run-down beach house along the Pacific Coast Highway. As part of the sale agreement, the Nollans agreed to tear down the bungalow, which no longer met basic safety codes, and replace it with a new, three-bedroom home. Then the family applied for a building permit from the Coastal Commission. The commission approved the house, with a condition. Determining that a new structure would place a “burden” on public access to the beach below, create a “psychological” barrier between Californians and the ocean, and discourage walkers from enjoying the shoreline, the Coastal Commission demanded that the Nollans legally open their dry beach—the sandy area between a seawall and the mean high-tide line—to members of the public who wished to cross. James Nollan objected to the dedication requirement at a hearing. When the commission failed to relent, he contemplated a lawsuit.^{Footnote 36}

Of all the items in its complicated mandate, maintaining public access to beaches posed the most difficult political and legal challenge for the Coastal Commission. According to long-standing common-law tradition, oceans, bays, and navigable rivers are open to the public; private property only extends to the shore. California enshrined this principle into its foundational law by adding a right-of-access to navigable waterways to its state constitution. Beaches fall into a middle ground, since they are under water part of the time (during high tides and storms) and exposed at other times (such as low tide or calm weather). The common law resolved the beach problem by considering “wet beaches”—the area from the ocean to the “mean high-tide line”—to count as waterways and thus end up in the public commons. “Dry beaches,” even sandy ones, could be privately owned, presuming the land was not otherwise dedicated for public use.^{Footnote 37}

Of course, just because a tidal pool is part of the public domain does not ensure that any member of the public is able wade in it. By accident or design, many communities ring public beaches with private property, so that access can only be obtained by swimming in from a boat or passing through somebody’s private preserve. Shortly after the Coastal Act went into effect, the California Coastal Commission began to obtain property and secure rights-of-way in order to make more of the state’s beaches accessible to swimmers, surfers, and sunbathers. It faced immediate resistance from homeowners in many coastal communities. Some complained that the commission’s efforts to provide public access to the shoreline conflicted with its mandate to protect the environment, since day-trippers contributed to congestion and noise pollution, while straining public facilities and leaving behind litter. Others worried about crime and vandalism. “Considering the price we paid for the land and the restrictions and covenants governing the construction of single-family dwellings in this area, it should be a foregone conclusion that this kind of resident would better protect the environment of South Morro Bay than would public ownership,” one homeowner wrote to the commission. “All one has to do is look at other public-owned areas and note the trash and debris left by individuals, some of which with questionable backgrounds.”^{Footnote 38}

These battles came to a head in the wealthy enclave of Malibu, where locals relished their seclusion and the Coastal Commission played hardball to improve access. In 1978, a series of powerful winter storms damaged the seawall that protected beachfront homes in the region. Residents promptly began repairs, only to be sued by the Coastal Commission for failing to file the proper permits. “We have never taken issue with the need of the beachfront property owners in Malibu to protect their homes,” Fischer explained to Larry Hagman, a Malibu resident and a star of the popular television drama Dallas, after the actor and his wife complained about the lawsuit. “But a large, new seawall along a substantial portion of the beach in Malibu clearly needs a permit.”^{Footnote 39} Critics, including Pacific Legal Foundation, accused the commission of holding residents’ property and personal safety hostage to its open-beach policies. During the same winter, the firm represented two homeowners from Ventura County who were ordered to dedicate their sandy beach to public use in exchange for repairing and enlarging an inadequate seawall. Pacific won the case at the trial court and the commission eventually dropped its appeal, admitting to the court that the “record was not, upon further reflection, sufficient to support the imposition of such [a] condition.”^{Footnote 40}

The commission had more success in the courts when it made beach access a condition of new construction instead of necessary repairs—for example, when a property owner wanted to enlarge an existing home or change its use. (This particular use of state power is known as an “exaction” in U.S. legal jargon.) The agency successfully negotiated a public right-of-way from the coastal road to the Malibu shore when the owner of a beachfront parcel wanted to build a restaurant. In a fit of zany liberalism calculated to offend Malibu’s outsider-averse residents, the commission named the access-point “Zonker Harris Memorial Beach” after a rarely employed, ex-hippie sun-worshiper from the comic strip Doonesbury. (The right-of-way was later renamed “Zonker Harris Access Way” after locals defaced the original sign.)^{Footnote 41} And it successfully defended a lawsuit by Pacific Legal Foundation, brought on behalf of the legal foundation’s membership, which argued that all such public-access exactions were illegal. That lawsuit was dismissed by the California Supreme Court for failing the test of “ripeness” because it did not involve a specific case or controversy.^{Footnote 42} If property-rights advocates wanted to take on the commission’s policies of regulating by building permit, they would have to find a specific case on which to mount the challenge.

Nollan provided that opportunity. Soon after the California Coastal Commission denied them a building permit, the Nollans signed up with Pacific Legal Foundation, and lawyer Robert Best filed a lawsuit. A trial court in Ventura County ruled in the couple’s favor, on the grounds that the commission had failed to show that the proposed house would restrict public access to the beach. The family proceeded with construction. But the Coastal Commission appealed the ruling, and the California Court of Appeals eventually reversed. The appellate court ruled that the Coastal Zone Act did, in fact, permit the Coastal Commission to issue a “conditional” building permit when a renovation would increase the size of a beachfront structure by 10 percent or more. And it noted that, under California law, regulators could demand a public-use easement, such as the access-way across a beach, even when the concession was not directly related to any burdens caused by the development. The Nollans appealed to the California Supreme Court, which declined to hear their case. Then they appealed to the U.S. Supreme Court.^{Footnote 43}

In this final appeal, lawyer Best did not focus of the matters of statutory interpretation that preoccupied the California courts. Instead, he raised a single issue in U.S. constitutional law: Did the easement across the Nollans’ beach mean that the government effectively “took” the Nollans’ private property and needed to pay them “just compensation,” under the Fifth Amendment? By raising the question, Pacific Legal Foundation challenged the constitutional basis for one of the primary tools of the new social regulation: mandating public concessions from private parties in exchange for permits or licenses required for development. If Pacific prevailed, the statutory questions that preoccupied the California courts were ultimately moot. The commission would either have to use the formal process of eminent domain and find some way to compensate landowners on its dwindling budget, or it would no longer be able to regulate. Other, less controversial agents of the new social and environmental regulation might also face mounting constraints and costs.

Nollan did not necessarily present the perfect set of facts to mount this challenge. The easement demanded by the Coastal Commission was significantly less intrusive than the road-to-beach dedications that the commission had sought to exact from homeowners in Malibu. It did not require any new paths to be carved out of their property or new fences erected; and all of the land subject to the easement fell in a hard-to-measure space between the last manmade structure on the lot and the wet beach. Several of the Nollans’ neighbors had already provided access across their dry beach, which made it difficult for the family to enforce their perceived property rights, even if they had wanted to. There was also an inconvenient fact noted by the California courts. The Nollan house was not a “renovation” so much as a complete tear-down and reconstruction, which involved replacing a 521-square-foot bungalow with a brand-new, 1,674-square-foot house. That constituted a substantial change in the use of the property, one that would alter the built environment of the surrounding area.^{Footnote 44}

The case also had to get past another jurisdictional hurdle. The Nollans filed suit without making any attempt to enforce their property rights by excluding visitors. At an administrative hearing about the case, Coastal Commission representatives asked James Nollan if he had ever posted a “No Trespassing” sign along his property or made any other indication that the public could not pass through. (He had not.) The commissioner continued: “Now, many of your neighbors have given people lateral access rights to walk up and down the beach, as you are well aware, and sometimes the tides come up, making it difficult for people to stay between the mean high tide line and the surf. What’s your objection to letting people continue on their journey?”

Nollan responded that he had no practical objection, only “a difference in philosophy as to what the law requires me to give up, as a condition to build a new house. . . . It’s being required to give it up that I object to, as opposed to out of my own good conscience or good will.” But the Supreme Court is not required to wade into philosophical differences when they do not result in concrete matters in need of adjudication. This principle helps courts-of-last-resort maintain a reasonable workload while avoiding overreaching their authority. And the Nollans failure to enforce their perceived property rights potentially rendered their case moot.^{Footnote 45}

But the Supreme Court did not want to dismiss the case as unripe or kick it back down to the California courts for further consideration. Rather, Nollan offered some of the justices sitting on the bench in the late 1980s an irresistible opportunity to reconsider the relationship between private property and the police power. Among those eager to wade into the subject was Associate Justice Antonin Scalia, who had recently been appointed to the Court by President Reagan. A former law professor at the University of Chicago, Scalia had taught and written about administrative law and the relationship between government regulation and economic theory. He had been a regular columnist on legal affairs for Regulation, a magazine of the American Enterprise Institute. The original faculty mentor for the Chicago chapter of the Federalist Society for Law and Public Policy Studies, Scalia was particularly interested in the problems of economic incentives and regulatory overreach.^{Footnote 46} He would write the opinion of the Court.

Scalia’s decision in Nollan combined the narrow legal reasoning necessary to hold a majority with bold rhetorical strokes. He reaffirmed the Court’s precedents in two recent cases in which governments had restricted new construction—Penn Central Transportation Co. v. City of New York (1978) and Agins v. Tiburon (1980)—by distinguishing those cases from Nollan. In the earlier cases, Scalia explained, government policy had merely changed value of the property, while in Nollan the government interfered with a traditional right of property owners—the right to exclude others. And Scalia allowed that the commission might legitimately interfere with that sort of right if the “exaction” it required bore a close relationship to some sort of social harm. “The [Coastal] 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,” Scalia wrote. For example, the commission might have been justified if it wanted property for a scenic overlook, to compensate the public for the view of the ocean that the new house would block. But it could not justify an unrelated concession along the beach. Fellow Reagan appointee Sandra Day O’Connor, Chief Justice William Rehnquist, and associate justices Byron White and Lewis Powell agreed with Scalia’s reasoning, and the Nollans prevailed by a 5–4 majority.^{Footnote 47}

At the same time, Scalia framed his narrow points of law in strong, at times uncompromising, language. He complained that the condition placed on the Nollan’s building permit “utterly fails” to further the ends it was supposed to justify. He called the process of holding a building permit hostage for property-rights concessions an “out-and-out plan of extortion.” And he referred to the commission’s regulatory mission in quotation marks, as if to signal his skepticism about the very idea of land-use planning. California, Scalia wrote, should be “free to advance its ‘comprehensive program’ [of coastal regulation], if it wishes, by using its power of eminent domain for this ‘public purpose,’ . . . but if it wants an easement across the Nollans’ property, it must pay for it.” And that language signaled that Nollan might not be the final word from the Court on property and the police power. Newspaper articles after the decision was handed down noted how Nollan had “sharply limited the power of governments to force land owners to surrender part of their ownership rights.” The case would soon enter major casebooks on property and constitutional law and provided the basis for future litigation.^{Footnote 48}