b'\x0cLand Use\n\nChristian Turner\nAssistant Professor of Law\nUniversity of Georgia School of Law\n\neLangdell\xc2\xae Press 2012\n\n\x0cAbout the Author\nChristian Turner teaches courses in property, land use, legal\ntheory, and the regulation of information. His research interests\nare in the public/private distinction and institutional analysis.\nDrawing from his mathematical training, he is interested in both\nthe logic and illogic of the law\xe2\x80\x94 and in understanding seemingly\ncomplex and diverse legal principles as consequences of basic,\ntrans-substantive ideas.\nPrior to joining the faculty at the University of Georgia, Christian\nwas a Visiting Assistant Professor at Fordham Law School,\nworked at Wiggin and Dana law firm in New Haven, and clerked\nfor Judge Guido Calabresi on the Second Circuit. He is a graduate\nof Stanford Law School and holds a Ph.D. in mathematics from\nTexas A&M University.\n\ni\n\n\x0cAbout eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the\nbetter. 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The cover art design is a copyrighted work of CALI,\n\niii\n\n\x0call rights reserved. The CALI graphical logo is a trademark and may\nnot be used without permission.\nShould you create derivative works based on the text of this book\nor other Creative Commons materials therein, you may not use this\nbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\nthereof, to imply endorsement or otherwise without written\npermission from CALI.\nThis material does not contain nor is intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney\nin their jurisdiction. The editors have endeavored to provide\ncomplete and accurate information in this book. However, CALI\ndoes not warrant that the information provided is complete and\naccurate. CALI disclaims all liability to any person for any loss\ncaused by errors or omissions in this collection of information.\nVersion 1: March 21, 2012\n\niv\n\n\x0cSummary of Contents\nAbout the Author ........................................................................ i\nAbout eLangdell Press ............................................................... ii\nNotices ...................................................................................... iii\nSummary of Contents .................................................................v\nTable of Contents .................................................................... vii\n1. Preface ..................................................................................... 1\n\n2. The Zoning System ................................................................5\n2.1. Introduction ..........................................................................5\n2.2. Variances ............................................................................ 29\n2.3. Special Use Permits............................................................ 63\n2.4. Comprehensive Planning ................................................... 74\n\n3. Judicial Review ....................................................................116\n3.1. Substantive Due Process ...................................................116\n3.2. Adjudication and Quasi-Adjudication ............................. 152\n3.3. Procedure ......................................................................... 182\n3.4. Discriminatory Zoning ..................................................... 232\n3.5. Anticompetitive Zoning ................................................... 243\n3.6. Spot Zoning ...................................................................... 276\n3.7. Contract Zoning ............................................................... 319\n3.8. Nonconforming Uses ....................................................... 329\n3.9. Vested Rights ................................................................... 364\n3.10. Neighbor Consent Provisions......................................... 399\n\n4. Regulatory Takings ............................................................ 451\n4.1. Origins .............................................................................. 451\n4.2. Theory .............................................................................. 474\n4.3. Doctrine ............................................................................ 497\n4.4. Procedural Issues ............................................................. 590\n\nv\n\n\x0c4.5. Exactions .......................................................................... 639\n4.6. German Takings Law....................................................... 679\n\nvi\n\n\x0cTable of Contents\nAbout the Author .......................................................................... i\nAbout eLangdell Press................................................................. ii\nNotices........................................................................................ iii\nSummary of Contents ...................................................................v\nTable of Contents ...................................................................... vii\n1. Preface ....................................................................................... 1\n\n2. The Zoning System..................................................................5\n2.1. Introduction ...........................................................................5\nA Sample State Zoning Enabling Act................................................... 5\nVilliage of Euclid, Ohio, et al. v. Ambler Realty Co. ....................... 12\n\n2.2. Variances .............................................................................. 29\nHarrison v. Mayor and Board of Alderman of the City of Batesville\n................................................................................................................... 29\nJanssen v. Holland Charter Twp. Zoning Board of Appeals .......... 39\nSimplex Technologies v. Town of Newington ................................. 46\nNote ......................................................................................................... 52\nKrummenacher v. City of Minnetonka .............................................. 54\n\n2.3. Special Use Permits ............................................................. 63\nJones v. City of Carbondale.................................................................. 63\nFSL Corp. v. Harrington....................................................................... 70\nNote ......................................................................................................... 73\n\n2.4. Comprehensive Planning ..................................................... 74\nHector v. City of Fargo ......................................................................... 74\nWolf v. City of Ely ................................................................................. 76\nPinecrest Lakes, Inc. v. Shidel.............................................................. 85\nNote ....................................................................................................... 114\n\nvii\n\n\x0c3. Judicial Review .....................................................................116\n3.1. Substantive Due Process .....................................................116\n3.1.1. Federal Courts............................................................................ 116\nNectow v. City of Cambridge et al. ................................................... 116\nConiston Corporation v. Village of Hoffman Estates ................... 120\n3.1.2. State Courts ................................................................................ 136\nTwigg v. County of Will,255 Ill. App.3d 490 .................................. 136\nAmberwood Development Corporation v. Board of Appeals of\nBoxford.................................................................................................. 143\n\n3.2. Adjudication and Quasi-Adjudication ............................... 152\nLouis J. Fasano et al., Respondents, v. The Board of County\nCommissioners of Washington County and A.G.S. Development\nCompany ............................................................................................... 152\nBoard of County Commissioners of Brevard County ................... 166\n\n3.3. Procedure ........................................................................... 182\nFrank S. Griswold v. City of Homer ................................................ 182\nIn re McGlynn ...................................................................................... 199\nMaxwell v. Carney ................................................................................ 208\nKearns-Tribune Corporation v. Salt Lake County Commission .. 209\nShanks v. Dressel ................................................................................. 225\n\n3.4. Discriminatory Zoning ...................................................... 232\nVillage of Willowbrook v. Olech,528 U.S. 562 ............................... 232\nAnup Enquist v. Oregon Department of Agriculture ................... 236\n\n3.5. Anticompetitive Zoning ..................................................... 243\nCity of Columbia et al. v. Omni Outdoor Advertising .................. 243\n\n3.6. Spot Zoning ....................................................................... 276\nFrank S. Griswold v. City of Homer ................................................ 276\nCovington v. The Town of Apex ...................................................... 296\nChrismon v. Guildford County ......................................................... 303\n\n3.7. Contract Zoning ................................................................. 319\nChrismon v. Gilford County .............................................................. 319\n\nviii\n\n\x0c3.8. Nonconforming Uses......................................................... 329\nCity of Red Bank v. Phillips ............................................................... 329\nSuffolk Asphalt Supply v. Board of Trustees of Village of\nWesthampton Beach ........................................................................... 342\nTrip Associates v. Mayor and City Council of Baltimore .............. 345\n\n3.9. Vested Rights ..................................................................... 364\nMetro. Dev. Comm\xe2\x80\x99n v. Pinnacle Media ......................................... 364\nValley View Industrial Park, Respondent, v. The City of Redmond,\nAppellant, .............................................................................................. 376\n\n3.10. Neighbor Consent Provisions .......................................... 399\nCity of Chicago v. Stratton ................................................................. 399\nEubank v. City of Richmond ............................................................. 408\nCary v. City of Rapid City ................................................................... 413\nBuckeye Community Hope Foundation v. City of Cuyahoga Falls\n................................................................................................................. 423\nCity of Cuyahoga Falls, Ohio v. Buckeye Community Hope\nFoundation ............................................................................................ 439\n\n4. Regulatory Takings ............................................................. 451\n4.1. Origins................................................................................ 451\nMugler v. Kansas .................................................................................. 451\nMiller v. Schoene.................................................................................. 469\n\n4.2. Theory ................................................................................ 474\nPennell v. City of San Jose.................................................................. 486\n\n4.3. Doctrine ............................................................................. 497\n4.3.1. Ad hoc Takings .......................................................................... 497\nPenn Central Transportation Co., v. New York City,.................... 497\n4.3.2. Per se Takings ............................................................................ 519\nLucas v. South Carolina Coastal ........................................................ 519\n4.3.3. Per se vs. Ad hoc ....................................................................... 546\nTahoe-Sierra Preservation Council, Inc. v. Tahoe Regional\nPlanning Agency................................................................................... 546\n\nix\n\n\x0cLingle, Governor of Hawaii, et al. v. Chevron U.S.A. Inc. ........... 578\n\n4.4. Procedural Issues ............................................................... 590\nWilliamson County Regional Planning Commission et al. v.\nHamilton Bank of Johnson City ........................................................ 590\nSan Remo Hotel, L.P. v. City and County of San Francisco ........ 613\n\n4.5. Exactions ........................................................................... 639\nDolan v. City of Tigard,512 U.S. 374 ............................................... 639\n\n4.6. German Takings Law ........................................................ 679\nSummary of German Law Relating to Compensation Resulting\nfrom Land Use Planning..................................................................... 679\nFrom the Basic Law for the Federal Republic of Germany .......... 679\nExcerpt from Gregory S. Alexander, Property as a Fundamental\nConstitutional Right? The German Example ........................................... 682\n\nx\n\n\x0c1. Preface\nThis text explores the laws governing the use of land. Sometimes\nnarrowly focused, often intensely local, land use regulation may\ngive the impression of a highly specialized field with small stakes.\nCity councils and zoning officials wrestling over municipal code to\ngovern second stories, lot size, or sewage connections fails in the\nabstract to arouse the passions of the legal battles over gay rights,\nabortion, or even the milder controversies of the law of torts.\nFirst impressions can be misleading. No matter how strongly\npeople may say they feel about the white hot issues of the day,\nnothing can pack a government building full of angry citizens like a\ndispute over zoning. From fighting the arrival of a Wal-Mart to the\nregulation of density in residential neighborhoods to the protection\nof wetlands and endangered species, it is the use of land that\nevokes many of our most deeply felt convictions about the line\nbetween private rights and public needs.\nTo appreciate the issues raised by disputes over land use and the\nadministrative and legal choices embedded in our legal system, this\ncasebook is organized in three major parts. A possible fourth part\nis left for the classroom.\nFirst, we will survey the ordinary, local administrative scheme of\nland use regulation. The cases in this section are intended to\nestablish what that system is and what its standards are. We begin\nwith zoning and its blessing by the Supreme Court in Euclid. The\nmain idea is this: that local communities will establish a\nheterogenous array of zones, that the map of the community will\nthen be painted with these different zones, and that regulations will\nbe uniform within zones and disparate among them. Nearly all else\nin the ordinary scheme is a series of footnotes to this structure.\nAnd the rest of the section provides many of these: variances,\nspecial use permits, and comprehensive planning.\nThe casebook does not cover directly a number of regulations that\ntypically fall within this scheme. We will see some of them in cases\nthat follow, and your instructor may, as I do, lecture on several of\n\n\x0cthem, including the regulation of subdivisions, historic\npreservation, and aesthetic regulation more generally. Once you\nunderstand the administrative scheme, none of these is difficult to\npick up, and the judicial review implications are hardly different.\nIn the second part of the course, we will turn our attention to cases\nillustrating litigation attacks on the ordinary administrative scheme.\nThe purpose here is not, as it was in the first part, to understand\nbetter the standards the administrators should apply, but to\nunderstand the constraints imposed on the contents of local laws,\nthe procedures of enactment and permitting, and the composition\nof local lawmaking bodies. In other words, we move from\nadministrative description to various kinds of state and federal\nConstitutional Law (recognizing that some constraints are not\ndescribed by courts applying them as emanating from a written\nconstitution - the point here is a more general one).\nThese attacks come in a number of flavors, and our problem with\nrespect to each is to discover the proper deference, if any, a court\nshould show the local bodies and what standard might best ole\nrationalize that. First, a litigant may attack a local regulation or its\napplication for its substance, essentially asserting its stupidity,\nwickedness, or, less dramatically, its inefficiency. A regulation that\nbarred shoe stores but allowed other clothing stores in a zone,\nwhere there was no explanation of what purpose this might serve,\ncould be an example of such a regulation.\nSecond, a litigant may attack the distributional unfairness of a law.\nEven if a law serves the public interest, it may do so by placing too\nmuch burden on a small number of landowners. That poorly\nallocated burden is an independent reason to consider setting such\na law aside.\nThird, a law may be efficient and its burdens relatively equally\nspread, and yet the law might be judged to impact too greatly\nimportant aspects of individual autonomy. Regulations of signs,\nreligious uses, adult businesses, and the like tend to raise this sort\nof concern.\n\n2\n\n\x0cIn addition to these three concerns \xe2\x80\x93 efficiency, distribution, and\nautonomy \xe2\x80\x93 we must recognize that deference to land use\nregulators ought to be affected by a number of variables. First is\nthe ordinary impetus to deference to legislative policy judgments\nthat any court should have. But, when the court is federal, we must\nconsider both what deference a court owes a legislator and how\nmuch the federal government should interfere in state and local\naffairs. This doubly layered deference explains why federal courts\ngenerally have very high bars to litigation that could be\ncharacterized as turning them into boards of zoning appeals.\nAs if these two dimensions of consideration are not enough, we\nmust also understand that local bodies perform different kinds of\nfunctions. They legislate. They make permit decisions, a bit like\nadjudication. They also tend to be composed of nonprofessional\ncommunity members, members who have jobs and relationships\nthat are very likely to be affected, at least indirectly, by the matters\nthe local government considers.\nKeep these three axes of problems in mind as we work through the\nsecond Part, covering litigation raising substantive limits,\nprocedural requirements, and principles of delegation.\nIn the third part of the course, we focus on the distributive\nconcerns raised by land use regulation. The regulatory takings\ndoctrine has gone from, literally, nothing, to wrestling to\ndisentangle distributive concerns from substantive ones, to trying\nto craft either rules or standards to identify regulations that go \xe2\x80\x9ctoo\nfar\xe2\x80\x9d and should be considered \xe2\x80\x9ctakings\xe2\x80\x9d within the meaning of the\nFifth Amendment. We will consider what the doctrine\xe2\x80\x99s purposes\nare, how it should be governed, and how it should be invoked as a\nprocedural matter.\nFinally, in a three-credit, one-semester course, I add three weeks\nof \xe2\x80\x9cspecial topics.\xe2\x80\x9d Each week features a different topic, and I\nuse the opportunity to apply the general framework for\nregulation and litigation to a particular set of disputes, in greater\ndepth. What topics I choose vary with the interests of the class.\nBut in the past, I have spent a week covering religious land uses\n\n3\n\n\x0cand the application of the Religious Land Use and\nInstitutionalized Persons Act. For that topic, the readings\ncomprised a DOJ report,1 excerpts from Greater Bible Way Temple\nv. City of Jackson, 478 Mich. 373 (2007), Sts. Constantine and Helen\nGreek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th Cir.\n2005), various news articles on disputes involving mosques, the\nbrief of the United States in Estes v. Rutherford County Regional\nPlanning Comm\xe2\x80\x99n,2 and the complaint in another mosque case.3 I\nhave also spent a special topics week on environmental law,\nfocusing both on federal and state environmental protection acts\nand the environmental impact statement and on the Endangered\nSpecies Act. For the latter, I have enjoyed using Stanford Law\nSchool\xe2\x80\x99s case study on the Delhi Sands Flower-Loving Fly.4\n\n1http://www.justice.gov/crt/rluipa_report_092210.pdf\n2\n\nhttp://www.justice.gov/crt/spec_topics/religiousdiscrimination/rutherford_amicu\ns_brief.pdf\n3\n\nhttp://religionclause.blogspot.com/2009/12/mosque-sues-to-challengerezoning.html\nThe description of this case study and links for those interested in obtaining\naccess can be found at:\n4\n\nhttp://www.law.stanford.edu/publications/casestudies/case_abstracts/#SLS9802\n1\n\n4\n\n\x0c2. The Zoning System\n2.1. Introduction\nA Sample State Zoning Enabling Act\nSection 1. Grant of Power\nFor the purpose of promoting health, safety, morals, or the\ngeneral welfare of the community, the legislative body of\ncities and incorporated villages is hereby empowered to\nregulate and restrict the height, number of stories and size\nof buildings and other structures, the percentage of lot that\nmay be occupied, the size of yards, courts, and other open\nspaces, the density of population and the location and use\nof buildings, structures and land of trade, industry,\nresidence or other purposes.\nSection 2. Districts\nFor any or all of said purposes the local legislative body\nmay divide the municipality into districts of such number,\nshape, and area as may be deemed best suited to carry out\nthe purposes of this act; and within such districts it may\nregulate and restrict the erection, construction,\nreconstruction, alteration, repair, or use of buildings,\nstructures , or land. All such regulations shall be uniform\nfor each class or kind of building throughout each district,\nbut the regulations in one district may differ from those n\nother districts.\nSection 3. Purposes in View\nSuch regulations shall be made in accordance with a\ncomprehensive plan and designed to lessen congestion in\nthe streets; to secure safety from fire, panic, and other\ndangers; to promote health and the general welfare; to\nprovide adequate light and air; to prevent the overcrowding\nof land; to avoid undue concentration of population; to\nfacilitate the adequate provision of transportation, water,\nsewerage, schools, parks, and other public requirements,\nSuch regulations shall be made with reasonable\n\n\x0cconsideration, among other things, to the character of the\ndistrict and its peculiar suitability for particular uses, and\nwith a view to conserving the value of buildings and\nencouraging the most appropriate use of land throughout\nsuch municipality.\nSection 4. Method of Procedure\nThe legislative body of such municipality shall provide for\nthe manner in which such regulations and restrictions and\nthe boundaries of such districts shall be determined,\nestablished, and enforced, and from time to time amended,\nsupplemented, or changed. However, no such regulation,\nrestriction, or boundary shall become effective until after a\npublic hearing in relation thereto, at which parties in\ninterest and citizens shall have an opportunity to be heard.\nAt least 15 days\xe2\x80\x99 notice of the time and place of such\nhearing shall be published in an official paper, or a paper of\ngeneral circulation, in such municipality.\nSection 5. Changes\nSuch regulations, restrictions, and boundaries may from\ntime to time be amended, supplemented, changed,\nmodified, or repealed. In case, however, of a protest against\nsuch change, signed by the owners of 20 per cent or more\neither of the area of the lots included in such proposed\nchange, or of those immediately adjacent in the rear thereof\nextending ______ feet there from, or of those directly\nopposite thereto extending ______ feet from the street\nfrontage of such opposite lots, such amendment shall not\nbecome effective except by the favorable vote of threefourths of all the members of the legislative body of such\nmunicipality. The provisions of the previous section\nrelative to public hearings and official notice shall apply\nequally to all changes or amendments.\n\n6\n\n\x0cSection 6. Zoning Commission\nIn order to avail itself of the powers conferred by this act,\nsuch legislative body shall appoint a commission, to be\nknown as the zoning commission, to recommend the\nboundaries of the various original districts and appropriate\nregulations to be enforced therein. Such commission shall\nmake a preliminary report and hold public hearings thereon\nbefore submitting its final report, and such legislative body\nshall not hold its public hearings or take action until it has\nreceived the final report of such commission. Where a city\nplan commission already exists, it may be appointed as the\nzoning commission.\nSection 7. Board of Adjustments\nSuch local legislative body may provide for the\nappointment of a board of adjustment, and in the\nregulations and restrictions adopted pursuant to the\nauthority of this act may provide that the said board of\nadjustment may, in appropriate cases and subject to\nappropriate conditions and safeguards, make special\nexceptions to the terms of the ordinance in harmony with\nits general purpose and intent and in accordance with\ngeneral or specific rules therein contained.\nThe board of adjustment shall consist of five members,\neach to be appointed for a term of three years and\nremovable for cause by the appointing authority upon\nwritten charges and after public hearing. Vacancies shall be\nfilled for the unexpired term of any member whose term\nbecomes vacant.\nThe board shall adopt rules in accordance with the\nprovisions of any ordinance adopted pursuant to this act.\nMeetings of the board shall be held at the call of the\nchairman and at such other times as the board may\ndetermine. Such chairman, or in his absence the acting\nchairman, may administer oaths and compel the attendance\n\n7\n\n\x0cof witnesses. All meetings of the board shall be open to the\npublic. The board shall keep minutes of its proceedings,\nshowing the vote of each member upon each question, or,\nif absent or failing to vote, indicating such fact, and shall\nkeep records of its examinations and other official actions,\nall of which shall be immediately filed in the office of the\nboard and shall be a public record.\nAppeals to the board of adjustment may be taken by any\nperson aggrieved or by any officer, department, board, or\nbureau of the municipality affected by any decision of the\nadministrative officer. Such appeal shall be taken within a\nreasonable time, as provided by the rules of the board, by\nfiling with the officer from whom the appeal is taken and\nwith the board of adjustment a notice of appeal specifying\nthe grounds thereof. The officer from whom the appeal is\ntaken shall forthwith transmit to the board all the papers\nconstituting the record upon which the action appealed\nfrom was taken.\nAn appeal stays all proceedings in furtherance of the action\nappealed from, unless the officer from whom the appeal is\ntaken certifies to the board of adjustment after the notice\nof appeal shall have been filed with him that by reason of\nfacts stated in the certificate a stay would, in his opinion,\ncause imminent peril to life or property. In such case\nproceedings shall not be stayed otherwise than by a\nrestraining order which may be granted by the board of\nadjustment or by a court of record on application on notice\nto the officer from whom the appeal is taken and on due\ncause shown.\nThe board of adjustment shall fix a reasonable time for the\nhearing of the appeal, give public notice thereof, as well as\ndue notice to the parties in interest, and decide the same\nwithin a reasonable time. Upon the hearing any party may\nappear in person or by agent or by attorney. The board of\nadjustment shall have the following powers:\n\n8\n\n\x0cTo hear and decide appeals where it is alleged there is error\nin any order, requirement, decision, or determination made\nby an administrative official in the enforcement of this act\nor of any ordinance adopted pursuant thereto.\nTo hear and decide special exceptions to the terms of the\nordinance upon which such board is required to pass under\nsuch ordinance.\nTo authorize upon appeal in specific cases such variance\nfrom the terms of the ordinance as will not be contrary to\nthe public interest, where, owing to special conditions, a\nliteral enforcement of the provisions of the ordinance will\nresult in unnecessary hardship, and so that the spirit of the\nordinance shall be observed and substantial justice done.\nIn exercising the above-mentioned powers such board may,\nin conformity with the provisions of this act, reverse or\naffirm, wholly or partly, or may modify the order,\nrequirement, decision, or determination appealed from and\nmay make such order, requirement, decision, or\ndetermination as ought to be made, and to that end shall\nhave all the powers of the officer from whom the appeal is\ntaken.\nThe concurring vote of four members of the board shall be\nnecessary to reverse any order, requirement, decision, or\ndetermination of any such administrative official, or to\ndecide in favor of the applicant on any matter upon which\nit is required to pass under any such ordinance, or to effect\nany variation in such ordinance.\nAny person or persons, jointly or severally, aggrieved by\nany decision of the board of adjustment, or any taxpayer, or\nany officer, department, board, or bureau of the\nmunicipality, may present to a court of record a petition,\nduly verified, setting forth that such decision is illegal, in\nwhole or in part, specifying the grounds of the illegality.\nSuch petition shall be presented to the court within 30 days\nafter the filing of the decision in the office of the board.\n\n9\n\n\x0cUpon the presentation of such petition the court may allow\na writ of certiorari directed to the board of adjustment to\nreview such decision of the board of adjustment and shall\nprescribe therein the time within which a return thereto\nmust be made and served upon the realtor\xe2\x80\x99s attorney,\nwhich shall not be less than 10 days and may be extended\nby the court. The allowance of the writ shall not stay\nproceedings upon the decision appealed from, but the\ncourt may, on application, on notice to the board and on\ndue cause shown, grant a restraining order.\nThe board of adjustment shall not be required to return the\noriginal papers acted upon by it, but it shall be sufficient to\nreturn certified or sworn copies thereof or of such portions\nthereof as may be called for by such writ. The return shall\nconcisely set forth such other facts as may be pertinent and\nmaterial to show the grounds of the decision appealed from\nand shall be verified.\nIf, upon the hearing, it shall appear to the court that\ntestimony is necessary for the proper disposition of the\nmatter, it may take evidence or appoint a referee to take\nsuch evidence as it may direct and report the same to the\ncourt with his findings of fact and conclusions of law,\nwhich shall constitute apart of the proceedings upon which\nthe determination of the court shall be made. The court\nmay reverse or affirm, wholly or partly, or may modify the\ndecision brought up for review.\nCosts shall not be allowed against the board unless it shall\nappear to the court that it acted with gross negligence, or in\nbad faith, or with malice in making the decision appealed\nfrom.\nAll issues in any proceeding under this section shall have\npreference over all other civil actions and proceedings.\n\n10\n\n\x0cSection 8. Enforcement and Remedies\nThe local legislative body may provide by ordinance for the\nenforcement of this act and of any ordinance or regulation\nmade there under. A violation of this act or of such\nordinance or regulation is hereby declared to be a\nmisdemeanor, and such local legislative body may provide\nfor the punishment thereof by fine or imprisonment or\nboth. It is also empowered to provide civil penalties for\nsuch violation.\nIn case any building or structure is erected, constructed,\nreconstructed, altered, repaired, converted, or maintained,\nor any building, structure, or land is used in violation of this\nact or of any ordinance or other regulation made under\nauthority conferred hereby, the proper local authorities of\nthe municipality, in addition to other remedies, may\ninstitute any appropriate action or proceedings to prevent\nsuch unlawful erection, construction, reconstruction,\nalteration, repair, conversion, maintenance, or use, to\nrestrain, correct, or abate such violation, to prevent the\noccupancy of said building, structure, or land, or to prevent\nany illegal act, conduct, business, or use in or about such\npremises.\nSection 9. Conflict with other Laws\nWherever the regulations made under authority of this\nact require a greater width or size of yards, courts, or\nother open spaces, or require a lower height of building\nor less number of stories, or require a greater percentage\nof lot to be left unoccupied, or impose other higher\nstandards than are required in any other statute or local\nordinance or regulation, the provisions of the regulations\nmade under authority of this act shall govern. Wherever\nthe provisions of any other statute or local ordinance or\nregulation require a greater width or size of yards, courts,\nor other open spaces, or require a lower height of\nbuilding or a less number of stories, or require a greater\n\n11\n\n\x0cpercentage of lot to be left unoccupied, or impose other\nhigher standards than are required by the regulations\nmade under authority of this act, the provisions of such\nstatute or local ordinance or regulation shall govern.\nVilliage of Euclid, Ohio, et al. v. Ambler Realty Co.\n272 U.S. 365 (1926).\nMr. James Metzenbaum, of Cleveland, Ohio, for appellants.\nMessrs. Newton D. Baker and Robert M. Morgan, both of\nCleveland, Ohio, for appellee.\nMR. JUSTICE SUTHERLAND delivered the opinion of the\nCourt.\nThe village of Euclid is an Ohio municipal corporation. It\nadjoins and practically is a suburb of the city of Cleveland.\nIts estimated population is between 5,000 and 10,000, and\nits area from 12 to 14 square miles, the greater part of\nwhich is farm lands or unimproved acreage. It lies, roughly,\nin the form of a parallelogram measuring approximately 3\n1/2 miles each way. East and west it is traversed by three\nprincipal highways: Euclid avenue, through the southerly\nborder, St. Clair avenue, through the central portion, and\nLake Shore boulevard, through the northerly border, in\nclose proximity to the shore of Lake Erie. The Nickel Plate\nRailroad lies from 1,500 to 1,800 feet north of Euclid\navenue, and the Lake Shore Railroad 1,600 feet farther to\nthe north. The three highways and the two railroads are\nsubstantially parallel.\nAppellee is the owner of a tract of land containing 68 acres,\nsituated in the westerly end of the village, abutting on\nEuclid avenue to the south and the Nickel Plate Railroad to\nthe north. Adjoining this tract, both on the east and on the\nwest, there have been laid out restricted residential plats\nupon which residences have been erected.\nOn November 13, 1922, an ordinance was adopted by the\nvillage council, establishing a comprehensive zoning plan\n\n12\n\n\x0cfor regulating and restricting the location of trades,\nindustries, apartment houses, two-family houses, single\nfamily houses, etc., the lot area to be built upon, the size\nand height of buildings, etc.\nThe entire area of the village is divided by the ordinance\ninto six classes of use districts, denominated U-1 to U-6,\ninclusive; three classes of height districts, denominated H-1\nto H-3, inclusive; and four classes of area districts,\ndenominated A-1 to A-4, inclusive. The use districts are\nclassified in respect of the buildings which may be erected\nwithin their respective limits, as follows: U-1 is restricted to\nsingle family dwellings, public parks, water towers and\nreservoirs, suburban and interurban electric railway\npassenger stations and rights of way, and farming, noncommercial greenhouse nurseries, and truck gardening; U-2\nis extended to include two-family dwellings; U-3 is further\nextended to include apartment houses, hotels, churches,\nschools, public libraries, museums, private clubs,\ncommunity center buildings, hospitals, sanitariums, public\nplaygrounds, and recreation buildings, and a city hall and\ncourthouse; U-4 is further extended to include banks,\noffices, studios, \xe2\x80\xa6 [etc.] U-6 is further extended to include\nplants for sewage disposal and for producing gas, garbage\nand refuse incineration, scrap iron, junk, scrap paper, and\nrag storage, aviation fields, cemeteries, crematories, penal\nand correctional institutions, insane and feeble-minded\ninstitutions, storage of oil and gasoline (not to exceed\n25,000 gallons), and manufacturing and industrial\noperations of any kind other than, and any public utility not\nincluded in, a class U-1, U-2, U-3, U-4, or U-5 use. There is\na seventh class of uses which is prohibited altogether.\nClass U-1 is the only district in which buildings are\nrestricted to those enumerated. In the other classes the uses\nare cumulative-that is to say, uses in class U-2 include those\nenumerated in the preceding class U-1; class U-3 includes\nuses enumerated in the preceding classes, U-2, and U-1;\n\n13\n\n\x0cand so on. In addition to the enumerated uses, the\nordinance provides for accessory uses; that is, for uses\ncustomarily incident to the principal use, such as private\ngarages. Many regulations are provided in respect of such\naccessory uses.\nThe height districts are classified as follows: In class H-1,\nbuildings are limited to a height of 2 1/2 stories, or 35\nfeet\xe2\x80\xa6 . To all of these, certain exceptions are made, as in\nthe case of church spires, water tanks, etc.\nThe classification of area districts is: In A-1 districts,\ndwellings or apartment houses to accommodate more than\none family must have at least 5,000 square feet for interior\nlots and at least 4,000 square feet for corner lots; \xe2\x80\xa6 . The\nordinance contains, in great variety and detail, provisions in\nrespect of width of lots, front, side, and rear yards, and\nother matters, including restrictions and regulations as to\nthe use of billboards, signboards, and advertising signs.\nA single family dwelling consists of a basement and not less\nthan three rooms and a bathroom. A two-family dwelling\nconsists of a basement and not less than four living rooms\nand a bathroom for each family, and is further described as\na detached dwelling for the occupation of two families, one\nhaving its principal living rooms on the first floor and the\nother on the second floor.\nAppellee\xe2\x80\x99s tract of land comes under U-2, U-3 and U-6.\nThe first strip of 620 feet immediately north of Euclid\navenue falls in class U-2, the next 130 feet to the north, in\nU-3, and the remainder in U-6. The uses of the first 620\nfeet, therefore, do not include apartment houses, hotels,\nchurches, schools, or other public and semipublic buildings,\nor other uses enumerated in respect of U-3 to U-6,\ninclusive. The uses of the next 130 feet include all of these,\nbut exclude industries, theaters, banks, shops, and the\n\n14\n\n\x0cvarious other uses set forth in respect of U-4 to U-6,\ninclusive.1\nAnnexed to the ordinance, and made a part of it, is a zone\nmap, showing the location and limits of the various use,\nheight, and area districts, from which it appears that the\nthree classes overlap one another; that is to say, for\nexample, both U-5 and U-6 use districts are in A-4 area\ndistrict, but the former is in H-2 and the latter in H-3\nheight districts. The plan is a complicated one, and can be\nbetter understood by an inspection of the map, though it\ndoes not seem necessary to reproduce it for present\npurposes.\nThe lands lying between the two railroads for the entire\nlength of the village area and extending some distance on\neither side to the north and south, having an average width\nof about 1,600 feet, are left open, with slight exceptions, for\nindustrial and all other uses. This includes the larger part of\nappellee\xe2\x80\x99s tract. Approximately one-sixth of the area of the\nentire village is included in U-5 and U-6 use districts. That\npart of the village lying south of Euclid avenue is\nprincipally in U-1 districts. The lands lying north of Euclid\navenue and bordering on the long strip just described are\nincluded in U-1, U-2, U-3, and U-4 districts, principally in\nU-2.\nThe enforcement of the ordinance is intrusted to the\ninspector of buildings, under rules and regulations of the\nThe court below seemed to think that the frontage of this property on Euclid\navenue to a depth of 150 feet came under U-1 district and was available only for\nsingle family dwellings. An examination of the ordinance and subsequent\namendments, and a comparison of their terms with the maps, shows very clearly,\nhowever, that this view was incorrect. Appellee\xe2\x80\x99s brief correctly interpreted the\nordinance: \xe2\x80\x98The northerly 500 feet thereof immediately adjacent to the right of way\nof the New York, Chicago & St. Louis Railroad Company under the original\nordinance was classed as U-6 territory and the rest thereof as U-2 territory. By\namendments to the ordinance a strip 630(620) feet wide north of Euclid avenue is\nclassed as U-2 territory, a strip 130 feet wide next north as U-3 territory and the\nrest of the parcel to the Nickel Plate right of way as U-6 territory.\n1\n\n15\n\n\x0cboard of zoning appeals. Meetings of the board are public,\nand minutes of its proceedings are kept. It is authorized to\nadopt rules and regulations to carry into effect provisions\nof the ordinance. Decisions of the inspector of buildings\nmay be appealed to the board by any person claiming to be\nadversely affected by any such decision. The board is given\npower in specific cases of practical difficulty or unnecessary\nhardship to interpret the ordinance in harmony with its\ngeneral purpose and intent, so that the public health, safety\nand general welfare may be secure and substantial justice\ndone. Penalties are prescribed for violations, and it is\nprovided that the various provisions are to be regarded as\nindependent and the holding of any provision to be\nunconstitutional, void or ineffective shall not affect any of\nthe others.\nThe ordinance is assailed on the grounds that it is in\nderogation of section 1 of the Fourteenth Amendment to\nthe federal Constitution in that it deprives appellee of\nliberty and property without due process of law and denies\nit the equal protection of the law, and that it offends against\ncertain provisions of the Constitution of the state of Ohio.\nThe prayer of the bill is for an injunction restraining the\nenforcement of the ordinance and all attempts to impose or\nmaintain as to appellee\xe2\x80\x99s property any of the restrictions,\nlimitations or conditions. The court below held the\nordinance to be unconstitutional and void, and enjoined its\nenforcement, 297 F. 307.\nBefore proceeding to a consideration of the case, it is\nnecessary to determine the scope of the inquiry. The bill\nalleges that the tract of land in question is vacant and has\nbeen held for years for the purpose of selling and\ndeveloping it for industrial uses, for which it is especially\nadapted, being immediately in the path or progressive\nindustrial development; that for such uses it has a market\nvalue of about $10,000 per acre, but if the use be limited to\nresidential purposes the market value is not in excess of\n\n16\n\n\x0c$2,500 per acre; that the first 200 feet of the parcel back\nfrom Euclid avenue, if unrestricted in respect of use, has a\nvalue of $150 per front foot, but if limited to residential\nuses, and ordinary mercantile business be excluded\ntherefrom, its value is not in excess of $50 per front foot.\nIt is specifically averred that the ordinance attempts to\nrestrict and control the lawful uses of appellee\xe2\x80\x99s land, so as\nto confiscate and destroy a great part of its value; that it is\nbeing enforced in accordance with its terms; that\nprospective buyers of land for industrial, commercial, and\nresidential uses in the metropolitan district of Cleveland are\ndeterred from buying any part of this land because of the\nexistence of the ordinance and the necessity thereby\nentailed of conducting burdensome and expensive litigation\nin order to vindicate the right to use the land for lawful and\nlegitimate purposes; that the ordinance constitutes a cloud\nupon the land, reduces and destroys its value, and has the\neffect of diverting the normal industrial, commercial, and\nresidential development thereof to other and less favorable\nlocations.\nThe record goes no farther than to show, as the lower court\nfound, that the normal and reasonably to be expected use\nand development of that part of appellee\xe2\x80\x99s land adjoining\nEuclid avenue is for general trade and commercial\npurposes, particularly retail stores and like establishments,\nand that the normal and reasonably to be expected use and\ndevelopment of the residue of the land is for industrial and\ntrade purposes. Whatever injury is inflicted by the mere\nexistence and threatened enforcement of the ordinance is\ndue to restrictions in respect of these and similar uses, to\nwhich perhaps should be added-if not included in the\nforegoing-restrictions in respect of apartment houses.\nSpecifically there is nothing in the record to suggest that\nany damage results from the presence in the ordinance of\nthose restrictions relating to churches, schools, libraries,\nand other public and semipublic buildings. It is neither\n\n17\n\n\x0calleged nor proved that there is or may be a demand for\nany part of appellee\xe2\x80\x99s land for any of the last-named uses,\nand we cannot assume the existence of facts which would\njustify an injunction upon this record in respect to this class\nof restrictions. For present purposes the provisions of the\nordinance in respect of these uses may therefore be put\naside as unnecessary to be considered. It is also unnecessary\nto consider the effect of the restrictions in respect of U-1\ndistricts, since none of appellee\xe2\x80\x99s land falls within that class.\nWe proceed, then, to a consideration of those provisions of\nthe ordinance to which the case as it is made relates, first\ndisposing of a preliminary matter.\nA motion was made in the court below to dismiss the bill\non the ground that, because complainant (appellee) had\nmade no effort to obtain a building permit or apply to the\nzoning board of appeals for relief, as it might have done\nunder the terms of the ordinance, the suit was premature.\nThe motion was properly overruled, the effect of the\nallegations of the bill is that the ordinance of its own force\noperates greatly to reduce the value of appellee\xe2\x80\x99s lands and\ndestroy their marketability for industrial, commercial and\nresidential uses, and the attack is directed, not against any\nspecific provision or provisions, but against the ordinance\nas an entirety. Assuming the premises, the existence and\nmaintenance of the ordinance in effect constitutes a present\ninvasion of appellee\xe2\x80\x99s property rights and a threat to\ncontinue it\xe2\x80\xa6 . .\nIt is not necessary to set forth the provisions of the Ohio\nConstitution which are thought to be infringed. The\nquestion is the same under both Constitutions, namely, as\nstated by appellee: Is the ordinance invalid, in that it\nviolates the constitutional protection \xe2\x80\x98to the right of\nproperty in the appellee by attempted regulations under the\nguise of the police power, which are unreasonable and\nconfiscatory\xe2\x80\x99?\n\n18\n\n\x0cBuilding zone laws are of modern origin. They began in\nthis country about 25 years ago. Until recent years, urban\nlife was comparatively simple; but, with the great increase\nand concentration of population, problems have developed,\nand constantly are developing, which require, and will\ncontinue to require, additional restrictions in respect of the\nuse and occupation of private lands in urban communities.\nRegulations, the wisdom, necessity, and validity of which,\nas applied to existing conditions, are so apparent that they\nare now uniformly sustained, a century ago, or even half a\ncentury ago, probably would have been rejected as arbitrary\nand oppressive. Such regulations are sustained, under the\ncomplex conditions of our day, for reasons analogous to\nthose which justify traffic regulations, which, before the\nadvent of automobiles and rapid transit street railways,\nwould have been condemned as fatally arbitrary and\nunreasonable. And in this there is no inconsistency, for,\nwhile the meaning of constitutional guaranties never varies,\nthe scope of their application must expand or contract to\nmeet the new and different conditions which are constantly\ncoming within the field of their operation. In a changing\nworld it is impossible that it should be otherwise. But\nalthough a degree of elasticity is thus imparted, not to the\nmeaning, but to the application of constitutional principles,\nstatutes and ordinances, which, after giving due weight to\nthe new conditions, are found clearly not to conform to the\nConstitution, of course, must fall.\nThe ordinance now under review, and all similar laws and\nregulations, must find their justification in some aspect of\nthe police power, asserted for the public welfare. The line\nwhich in this field separates the legitimate from the\nillegitimate assumption of power is not capable of precise\ndelimitation. It varies with circumstances and conditions. A\nregulatory zoning ordinance, which would be clearly valid\nas applied to the great cities, might be clearly invalid as\napplied to rural communities. In solving doubts, the maxim\n\n19\n\n\x0c\xe2\x80\x98sic utere tuo ut alienum non laedas,\xe2\x80\x99 which lies at the\nfoundation of so much of the common low of nuisances,\nordinarily will furnish a fairly helpful clew. And the law of\nnuisances, likewise, may be consulted, not for the purpose\nof controlling, but for the helpful aid of its analogies in the\nprocess of ascertaining the scope of, the power. Thus the\nquestion whether the power exists to forbid the erection of\na building of a particular kind or for a particular use, like\nthe question whether a particular thing is a nuisance, is to\nbe determined, not by an abstract consideration of the\nbuilding or of the thing considered apart, but by\nconsidering it in connection with the circumstances and the\nlocality. Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865. A\nnuisance may be merely a right thing in the wrong place,\nlike a pig in the parlor instead of the barnyard. If the\nvalidity of the legislative classification for zoning purposes\nbe fairly debatable, the legislative judgment must be\nallowed to control. Radice v. New York, 264 U. S. 292, 294.\nThere is no serious difference of opinion in respect of the\nvalidity of laws and regulations fixing the height of\nbuildings within reasonable limits, the character of materials\nand methods of construction, and the adjoining area which\nmust be left open, in order to minimize the danger of fire\nor collapse, the evils of overcrowding and the like, and\nexcluding from residential sections offensive trades,\nindustries and structures likely to create nuisances.\n[citations omitted]\nHere, however, the exclusion is in general terms of all\nindustrial establishments, and it may thereby happen that\nnot only offensive or dangerous industries will be excluded,\nbut those which are neither offensive nor dangerous will\nshare the same fate. But this is no more than happens in\nrespect of many practice-forbidding laws which this court\nhas upheld, although drawn in general terms so as to\ninclude individual cases that may turn out to be innocuous\nin themselves. Hebe Co. v. Shaw, 248 U. S. 297, 303; Pierce Oil\n\n20\n\n\x0cCorp. v. City of Hope, 248 U. S. 498, 500. The inclusion of a\nreasonable margin, to insure effective enforcement, will not\nput upon a law, otherwise valid, the stamp of invalidity.\nSuch laws may also find their justification in the fact that, in\nsome fields, the bad fades into the good by such insensible\ndegrees that the two are not capable of being readily\ndistinguished and separated in terms of legislation. In the\nlight of these considerations, we are not prepared to say\nthat the end in view was not sufficient to justify the general\nrule of the ordinance, although some industries of an\ninnocent character might fall within the proscribed class. It\ncannot be said that the ordinance in this respect \xe2\x80\x98passes the\nbounds of reason and assumes the character of a merely\narbitrary fiat.\xe2\x80\x99 Purity Extract Co. v. Lynch, 226 U. S. 192, 204.\nMoreover, the restrictive provisions of the ordinance in this\nparticular may be sustained upon the principles applicable\nto the broader exclusion from residential districts of all\nbusiness and trade structures, presently to be discussed.\nIt is said that the village of Euclid is a mere suburb of the\ncity of Cleveland; that the industrial development of that\ncity has now reached and in some degree extended into the\nvillage, and in the obvious course of things will soon\nabsorb the entire area for industrial enterprises; that the\neffect of the ordinance is to divert this natural development\nelsewhere, with the consequent loss of increased values to\nthe owners of the lands within the village borders. But the\nvillage, though physically a suburb of Cleveland, is\npolitically a separate municipality, with powers of its own\nand authority to govern itself as it sees fit, within the limits\nof the organic law of its creation and the state and federal\nConstitutions. Its governing authorities, presumably\nrepresenting a majority of its inhabitants and voicing their\nwill, have determined, not that industrial development shall\ncease at its boundaries, but that the course of such\ndevelopment shall proceed within definitely fixed lines. If it\nbe a proper exercise of the police power to relegate\n\n21\n\n\x0cindustrial establishments to localities separated from\nresidential sections, it is not easy to find a sufficient reason\nfor denying the power because the effect of its exercise is\nto divert an industrial flow from the course which it would\nfollow, to the injury of the residential public, if left alone, to\nanother course where such injury will be obviated. It is not\nmeant by this, however, to exclude the possibility of cases\nwhere the general public interest would so far outweigh the\ninterest of the municipality that the municipality would not\nbe allowed to stand in the way.\nWe find no difficulty in sustaining restrictions of the kind\nthus far reviewed. The serious question in the case arises\nover the provisions of the ordinance excluding from\nresidential districts apartment houses, business houses,\nretail stores and shops, and other like establishments. This\nquestion involves the validity of what is really the crux of\nthe more recent zoning legislation, namely, the creation and\nmaintenance of residential districts, from which business\nand trade of every sort, including hotels and apartment\nhouses, are excluded. Upon that question this court has not\nthus far spoken. The decisions of the state courts are\nnumerous and conflicting; but those which broadly sustain\nthe power greatly outnumber those which deny it altogether\nor narrowly limit it, and it is very apparent that there is a\nconstantly increasing tendency in the direction of the\nbroader view\xe2\x80\xa6.\nAs evidence of the decided trend toward the broader view,\nit is significant that in some instances the state courts in\nlater decisions have reversed their former decisions holding\nthe other way. For example, compare State ex rel. v.\nHoughton, supra, sustaining the power, with State ex rel.\nLachtman v. Houghton, 134 Minn. 226, State ex rel. Roerig v.\nCity of Minneapolis, 136 Minn. 479, and Vorlander v. Hokenson,\n145 Minn. 484, denying it, all of which are disapproved in\nthe Houghton Case (page 151 (204 N. W. 569)) last decided.\n\n22\n\n\x0cThe decisions enumerated in the first group cited above\nagree that the exclusion of buildings devoted to business,\ntrade, etc., from residential districts, bears a rational relation\nto the health and safety of the community. Some of the\ngrounds for this conclusion are promotion of the health\nand security from injury of children and others by\nseparating dwelling houses from territory devoted to trade\nand industry; suppression and prevention of disorder;\nfacilitating the extinguishment of fires, and the\nenforcement of street traffic regulations and other general\nwelfare ordinances; aiding the health and safety of the\ncommunity, by excluding from residential areas the\nconfusion and danger of fire, contagion, and disorder,\nwhich in greater or less degree attach to the location of\nstores, shops, and factories. Another ground is that the\nconstruction and repair of streets may be rendered easier\nand less expensive, by confining the greater part of the\nheavy traffic to the streets where business is carried on.\nThe Supreme Court of Illinois, in City of Aurora v. Burns,\nsupra, pages 93-95 (149 N. E. 788), in sustaining a\ncomprehensive building zone ordinance dividing the city\ninto eight districts, including exclusive residential districts\nfor one and two family dwellings, churches, educational\ninstitutions, and schools, said:\nThe constantly increasing density of\nour urban populations, the multiplying\nforms of industry and the growing\ncomplexity of our civilization make it\nnecessary for the state, either directly\nor through some public agency by its\nsanction, to limit individual activities\nto a greater extent than formerly. With\nthe growth and development of the\nstate the police power necessarily\ndevelops, within reasonable bounds, to\nmeet the changing conditions. \xe2\x80\xa6\n\n23\n\n\x0c\xe2\x80\xa6 The harmless may sometimes be\nbrought within the regulation or\nprohibition in order to abate or\ndestroy the harmful. The segregation\nof industries, commercial pursuits, and\ndwellings to particular districts in a\ncity, when exercised reasonably, may\nbear a rational relation to the health,\nmorals, safety, and general welfare of\nthe community. The establishment of\nsuch districts or zones may, among\nother things, prevent congestion of\npopulation, secure quiet residence\ndistricts, expedite local transportation,\nand facilitate the suppression of\ndisorder, the extinguishment of fires,\nand the enforcement of traffic and\nsanitary regulations. The danger of fire\nand the of contagion are often\nlessened by the exclusion of stores and\nfactories from areas devoted to\nresidences, and, in consequence, the\nsafety and health of the community\nmay be promoted. \xe2\x80\xa6\n\xe2\x80\xa6 The exclusion of places of business\nfrom residential districts is not a\ndeclaration that such places are\nnuisances or that they are to be\nsuppressed as such, but it is a part of\nthe general plan by which the city\xe2\x80\x99s\nterritory is allotted to different uses, in\norder to prevent, or at least to reduce,\nthe congestion, disorder, and dangers\nwhich often inhere in unregulated\nmunicipal development.\nThe Supreme Court of Louisiana, in State v. City of New\nOrleans, supra, pages 282, 283 (97 So. 444), said:\n\n24\n\n\x0cIn the first place, the exclusion of\nbusiness\nestablishments\nfrom\nresidence districts might enable the\nmunicipal government to give better\npolice protection. Patrolmen\xe2\x80\x99s beats\nare larger, and therefore fewer, in\nresidence neighborhoods than in\nbusiness neighborhoods. A place of\nbusiness in a residence neighborhood\nfurnishes an excuse for any criminal to\ngo into the neighborhood, where,\notherwise, a stranger would be under\nthe ban of suspicion. Besides, open\nshops invite loiterers and idlers to\ncongregate; and the places of such\ncongregations need police protection.\nIn the second place, the zoning of a\ncity into residence districts and\ncommercial districts is a matter of\neconomy is street paving. Heavy\ntrucks, hauling freight to and from\nplaces of business in residence\ndistricts, require the city to maintain\nthe same costly pavement in such\ndistricts that is required for business\ndistricts; whereas, in the residence\ndistricts,\nwhere\nbusiness\nestablishments are excluded, a cheaper\npavement serves the purpose. \xe2\x80\xa6.\nAside\nfrom\nconsiderations\nof\neconomic administration, in the matter\nof police and fire protection, street\npaving,\netc.,\nany\nbusiness\nestablishment is likely to be a genuine\nnuisance in a neighborhood of\nresidences. Places of business are\nnoisy; they are apt to be disturbing at\nnight; some of them are malodorous;\nsome are unsightly; some are apt to\n\n25\n\n\x0cbreed rats, mice, roaches, flies, ants,\netc. \xe2\x80\xa6\nIf the municipal council deemed any\nof the reasons which have been\nsuggested, or any other substantial\nreason, a sufficient reason for adopting\nthe ordinance in question, it is not the\nprovince of the courts to take issue\nwith the council. We have nothing to\ndo with the question of the wisdom or\ngood policy of municipal ordinances.\nIf they are not satisfying to a majority\nof the citizens, their recourse is to the\nballot-not the courts.\nThe matter of zoning has received much attention at the\nhands of commissions and experts, and the results of their\ninvestigations have been set forth in comprehensive\nreports. These reports which bear every evidence of\npainstaking consideration, concur in the view that the\nsegregation of residential, business and industrial buildings\nwill make it easier to provide fire apparatus suitable for the\ncharacter and intensity of the development in each section;\nthat it will increase the safety and security of home life,\ngreatly tend to prevent street accidents, especially to\nchildren, by reducing the traffic and resulting confusion in\nresidential sections, decrease noise and other conditions\nwhich produce or intensify nervous disorders, preserve a\nmore favorable environment in which to rear children, etc.\nWith particular reference to apartment houses, it is pointed\nout that the development of detached house sections is\ngreatly retarded by the coming of apartment houses, which\nhas sometimes resulted in destroying the entire section for\nprivate house purposes; that in such sections very often the\napartment house is a mere parasite, constructed in order to\ntake advantage of the open spaces and attractive\nsurroundings created by the residential character of the\n\n26\n\n\x0cdistrict. Moreover, the coming of one apartment house is\nfollowed by others, interfering by their height and bulk\nwith the free circulation of air and monopolizing the rays of\nthe sun which otherwise would fall upon the smaller\nhomes, and bringing, as their necessary accompaniments,\nthe disturbing noises incident to increased traffic and\nbusiness, and the occupation, by means of moving and\nparked automobiles, of larger portions of the streets, thus\ndetracting from their safety and depriving children of the\nprivilege of quiet and open spaces for play, enjoyed by\nthose in more favored localities-until, finally, the residential\ncharacter of the neighborhood and its desirability as a place\nof detached residences are utterly destroyed. Under these\ncircumstances, apartment houses, which in a different\nenvironment would be not only entirely unobjectionable\nbut highly desirable, come very near to being nuisances.\nIf these reasons, thus summarized, do not demonstrate the\nwisdom or sound policy in all respects of those restrictions\nwhich we have indicated as pertinent to the inquiry, at least,\nthe reasons are sufficiently cogent to preclude us from\nsaying, as it must be said before the ordinance can be\ndeclared unconstitutional, that such provisions are clearly\narbitrary and unreasonable, having no substantial relation to\nthe public health, safety, morals, or general welfare. Cusack\nCo. v. City of Chicago, supra, pages 530-531 (37 S. Ct. 190);\nJacobson v. Massachusetts, 197 U. S. 11, 30-31.\nIt is true that when, if ever, the provisions set forth in the\nordinance in tedious and minute detail, come to be\nconcretely applied to particular premises, including those of\nthe appellee, or to particular conditions, or to be\nconsidered in connection with specific complaints, some of\nthem, or even many of them, may be found to be clearly\narbitrary and unreasonable. But where the equitable remedy\nof injunction is sought, as it is here, not upon the ground of\na present infringement or denial of a specific right, or of a\nparticular injury in process of actual execution, but upon\n\n27\n\n\x0cthe broad ground that the mere existence and threatened\nenforcement of the ordinance, by materially and adversely\naffecting values and curtailing the opportunities of the\nmarket, constitute a present and irreparable injury, the\ncourt will not scrutinize its provisions, sentence by\nsentence, to ascertain by a process of piecemeal dissection\nwhether there may be, here and there, provisions of a\nminor character, or relating to matters of administration, or\nnot shown to contribute to the injury complained of,\nwhich, if attacked separately, might not withstand the test\nof constitutionality. In respect of such provisions, of which\nspecific complaint is not made, it cannot be said that the\nlandowner has suffered or is threatened with an injury\nwhich entitles him to challenge their constitutionality\xe2\x80\xa6 . .\n\xe2\x80\xa6 . Under these circumstances, therefore, it is enough for\nus to determine, as we do, that the ordinance in its general\nscope and dominant features, so far as its provisions are\nhere involved, is a valid exercise of authority, leaving other\nprovisions to be dealt with as cases arise directly involving\nthem.\nAnd this is in accordance with the traditional policy of this\ncourt. In the realm of constitutional law, especially, this\ncourt has perceived the embarrassment which is likely to\nresult from an attempt to formulate rules or decide\nquestions beyond the necessities of the immediate issue. It\nhas preferred to follow the method of a gradual approach\nto the general by a systematically guarded application and\nextension of constitutional principles to particular cases as\nthey arise, rather than by out of hand attempts to establish\ngeneral rules to which future cases must be fitted. This\nprocess applies with peculiar force to the solution of\nquestions arising under the due process clause of the\nConstitution as applied to the exercise of the flexible\npowers of police, with which we are here concerned.\nDecree reversed.\n\n28\n\n\x0cMR. JUSTICE VAN DEVANTER, MR. JUSTICE\nMCREYNOLDS, AND MR. JUSTICE BUTLER dissent.\n2.2. Variances\nHarrison v. Mayor and Board of Alderman of the City\nof Batesville\n73 So.3d 1145 (Miss. 2011)\nPaul B. Watkins, Jr., Pope S. Mallette, Oxford, attorneys for\nappellants.\nBenjamin E. Griffith, Daniel J. Griffith, Cleveland, Robert\nT. Jolly, E. Patrick Lancaster, Olive Branch, Michael S.\nCarr, Lauren Webb Carr, attorneys for appellees.\nLAMAR, JUSTICE, for the Court:\nIn this certiorari case, we consider whether the Mayor and\nthe Batesville Board of Aldermen (collectively the \xe2\x80\x9cBoard\xe2\x80\x9d)\nerred in granting a variance to allow mining in an area\nzoned single-family residential and community business.\nThe Mississippi Court of Appeals found that it had and\nreversed and rendered. However, its opinion provided little\ndiscussion of the applicable zoning ordinance governing\nvariances. That ordinance allows the Board to grant a\nvariance due to \xe2\x80\x9cpractical difficulties or unnecessary\nhardships.\xe2\x80\x9d While the Batesville Code does not define these\nterms, this language originated in the 1920s and is used in\nother jurisdictions. While the law and judicial\ninterpretations from other jurisdictions do not bind us, they\nare helpful in cases where we have no precedent of our\nown. Therefore, we look to those jurisdictions to aid us in\ndeciding whether the Board applied the correct legal\nstandard and whether its decision to grant the variance is\nsupported by substantial evidence.\nFacts\n\n29\n\n\x0cMemphis Stone & Gravel Company submitted to the\nBoard a variance request to mine sand and gravel from\neighteen acres leased from various property owners. This\ntract of land is zoned single-family residential (R-1) and\ncommunity business (C-2) and is contiguous with Memphis\nStone\xe2\x80\x99s existing plant operation located in the county.\nUnder the Batesville Code, mining only can be a\nconditional (as opposed to permitted) use in areas zoned\nagricultural and industrial.\nIn support of its zoning application, Memphis Stone\nattached maps of the area, promotional materials for the\ncompany, and an operations narrative. The operations\nnarrative provided general information on the project and\nmining process and also provided the following\ninformation:\nBased on national and local trends it\ntakes approximately 10 tons of\naggregate each year for new\nconstruction and to maintain our\nexisting infrastructure. The growth in\nTate County [sic] demands a good\nsource of local aggregate. Memphis\nStone & Gravel Company believes this\ndeposit will be an asset to the local\neconomy and will likely be lost to\nfuture residential development if not\nmanaged\nas\na\nresource\nfor\nconstruction material.\nThe variance request was first approved [unanimously] by\nthe City of Batesville Planning Commission\xe2\x80\xa6 . . Next, the\nBoard held a public hearing on the variance request [and\napproved the variance at the following meeting]. [A]t its\nnext meeting, a Board member moved to rescind the\nvariance grant, but the motion failed. The member then\nmoved to amend the order granting the variance so that it\nwould include various conditions. Before the Board\n\n30\n\n\x0cfinalized the conditions, it heard from Paul Watkins, the\nHarrisons\xe2\x80\x99 attorney. Watkins stated that the Board\xe2\x80\x99s\ndecision to grant a variance would change the character of\nthe land and constitute spot zoning, and that the record\nbefore the Board contained no reason for its approval. He\nasserted that Memphis Stone wanted the variance for\nfinancial gain and convenience, which are insufficient to\nshow practical difficulty or unnecessary hardship. Watkins\nalso placed in the record a copy of a letter that he\npreviously had sent the Board. In his letter, Watkins argued\nthe variance would have a negative effect on surrounding\nproperty, cause a nuisance, and fail to provide any\nadditional employment or tax base for the City.\nThe Board also heard from the president of Memphis\nStone, who addressed only the proposed conditions, one of\nwhich was reclamation of the land to its original state. The\npresident stated that reclamation to the original state was\n\xe2\x80\x9cimpossible\xe2\x80\x9d since his company would be \xe2\x80\x9ctaking out 40 to\n60 [feet] of material \xe2\x80\xa6 there is no way\xe2\x80\xa6 to meet the same\ntopography that is there now. I\xe2\x80\x99m going to have to create a\nlake out there.\xe2\x80\x9d Ultimately, the Board upheld the variance\nwith the following conditions: (1) a two-and-one-half-year\ntime limit with review every six months; (2) operations\nconfined to weekdays from 7:00 a.m. to 5:00 p.m.; (3) the\nerection and construction of berms to screen the project\nfrom neighboring property and the road; (4) the watering\nof objectionable dust; and (5) the imposition of fines for\nany violations of the conditions.\nThe Harrisons appealed the variance to the circuit court[,\nwhich] affirmed the Board\xe2\x80\x99s decision to grant the variance.\nIt found the Batesville Code required proof of \xe2\x80\x9cpractical\ndifficulties or unnecessary hardship\xe2\x80\x9d and that Memphis\nStone had provided \xe2\x80\x9cample evidence\xe2\x80\x9d to justify the\nvariance. It noted that Memphis Stone had presented\n\xe2\x80\x9cevidence of a public need for a good source of local\naggregate and the project would be a good asset for the\n\n31\n\n\x0clocal community\xe2\x80\x99s economy that will likely be lost to future\nresidential development based on the location of the\nproperty.\xe2\x80\x9d\n[T]he Court of Appeals reversed and rendered, finding the\nvariance constituted a \xe2\x80\x9cclassic case of spot zoning.\xe2\x80\x9d And\n\xe2\x80\x9c[n]otwithstanding that finding, [it went on to] determine\nwhether Memphis Stone proved that there was a public\nneed or a compelling reason for the variance.\xe2\x80\x9d It concluded\nthat the record lacked substantial evidence to support a\nfinding of public need or that the variance would be an\nasset to the local economy. It further found that the record\n\xe2\x80\x9clacks evidence of any \xe2\x80\x98practical difficulty or unnecessary\nhardship\xe2\x80\x99\xe2\x80\x9d without any analysis or explanation of those\nterms. We granted certiorari to clarify the standards that\nshould apply when a zoning ordinance uses the language\n\xe2\x80\x9cpractical difficulties or unnecessary hardships\xe2\x80\x9d for\ngranting a variance.\nDiscussion\nA variance generally is defined as the \xe2\x80\x9cright to use or to\nbuild on land in a way prohibited by strict application of a\nzoning ordinance.\xe2\x80\x9d The grant or denial of a variance is\nadjudicatory, rather than legislative\xe2\x80\xa6 . . This Court will\nreverse only if the decision \xe2\x80\x9c1) is not supported by\nsubstantial evidence, 2) is arbitrary or capricious, 3) is\nbeyond the scope or power granted to the agency, or 4)\nviolates one\xe2\x80\x99s constitutional rights.\xe2\x80\x9d We review questions of\nlaw under a de novo standard. [The court then decided that\neven an improper grant of a variance does not constitute\nillegal \xe2\x80\x9cspot zoning,\xe2\x80\x9d a concept we will study later.]\nThe Legislature has provided \xe2\x80\x9cthe governing authority of\nany municipality\xe2\x80\x9d with the power to enact zoning\nregulations \xe2\x80\x9cfor the purpose of promoting health, safety,\nmorals, or the general welfare of the community[.]\xe2\x80\x9d1 As\n1\n\nMiss.Code Ann. \xc2\xa7 17-1-3(1) (Rev.2003). Section 17-1-3(1) provides:\n\n32\n\n\x0cpreviously noted, the Board had zoned the land at issue as\nsingle-family residential and community commercial. But\nMemphis Stone requested a variance to change the use of\nthis zoned area. A \xe2\x80\x9cuse\xe2\x80\x9d variance is one of two types of\nvariances:\nWith a \xe2\x80\x98use\xe2\x80\x99 variance, the owner is\nallowed to engage in a use of the land\nprohibited by the zoning ordinance.\nWith a \xe2\x80\x98nonuse,\xe2\x80\x99 or \xe2\x80\x98area\xe2\x80\x99 variance, the\nowner must comply with the zoning\nordinance\xe2\x80\x99s limitations on use of the\nland but is allowed to build or\nmaintain physical improvements that\ndeviate from the zoning ordinance\xe2\x80\x99s\nnonuse limitations.\nAnd this Court noted the distinction in Drews:\nVariances were conceived initially as a\nmeans for granting relief from height,\nbulk, and location restrictions in the\nordinances which rendered use of the\nproperty impossible or impractical. No\nconceptual problems arise when the\nvariance is granted to authorize minor\ndepartures from the terms of the\nordinance; e.g. to permit a landowner\nto place the structure on his lot nearer\nthe lot line than is permitted by the\nset-back or side-yard requirements.\nfor the purpose of promoting health, safety, morals, or the\ngeneral welfare of the community, the governing authority\nof any municipality\xe2\x80\xa6 [is] empowered to regulate the\nheight, number of stories and size of building and other\nstructures, the percentage of lot that may be occupied, the\nsize of the yards, courts and other open spaces, the density\nof population, and the location and use of buildings,\nstructures and land for trade, industry, residence or other\npurposes\xe2\x80\xa6.\n\nId.\n\n33\n\n\x0cSuch relief does not authorize a use\ninconsistent with the ordinance and,\nconsequently, does not constitute\nrezoning under the guise of a\nvariance\xe2\x80\xa6.\nOn the other hand, serious questions\narise when a variance is granted to\npermit a use otherwise prohibited by\nan ordinance; e.g., a service station or a\nquick-stop grocery in a residential\ndistrict. The most obvious danger is\nthat the variance will be utilized to bypass procedural safeguards required\nfor valid amendment.\nIn reviewing the grant of a variance, we start with the\ngoverning zoning ordinances. \xe2\x80\x9cA city must follow its\nordinance when granting [a] variance to a zoning\nregulation.\xe2\x80\x9d The Batesville Code defines \xe2\x80\x9cvariance\xe2\x80\x9d as \xe2\x80\x9c[a]\ngrant of permission\xe2\x80\xa6 that authorizes the recipient to do\nthat which, according to the strict letter of this appendix, he\ncould not otherwise legally do.\xe2\x80\x9d The Batesville Code also\nprovides that the Board may \xe2\x80\x9cvary or modify the\napplication of any of the regulations or provisions of the\nordinance where there are practical difficulties or unnecessary\nhardships in the way of carrying out the strict letter of this\nordinance, so that the spirit of this ordinance shall be\nobserved, public welfare and safety secured and substantial\njustice done.\xe2\x80\x9d\nThe Batesville Code provides no definition or guidelines\nfor determining the meaning of \xe2\x80\x9cpractical difficulties or\nunnecessary hardships.\xe2\x80\x9d And neither the record nor the\nBoard\xe2\x80\x99s decision provides any insight into what criteria it\nused to determine the meaning of these terms. The Board\nsimply stated that the \xe2\x80\x9cvariance is necessary in order to\navoid practical difficulties or unnecessary hardship on the\nuse and development of said property be [sic] and it is\n\n34\n\n\x0chereby approved and said variance is hereby granted in said\napplication.\xe2\x80\x9d\nWhile arguably the imposed conditions show the Board\xe2\x80\x99s\neffort to comply with the \xe2\x80\x9cspirit of the ordinance\xe2\x80\x9d so that\n\xe2\x80\x9cpublic welfare and safety secured and substantial justice\n[be] done[,]\xe2\x80\x9d they fail to shed any light upon what \xe2\x80\x9cpractical\ndifficulties or unnecessary hardships\xe2\x80\x9d existed, authorizing\nthe Board to grant the variance. The Board merely\nprovided a conclusion with no findings of fact. As noted by\nanother jurisdiction when reviewing a variance grant,\n\xe2\x80\x9c[f]indings of fact which show the actual grounds of a\ndecision are necessary for an intelligent review of a quasijudicial or administrative determination.\xe2\x80\x9d Similarly, in Barnes\nv. Board of Supervisors, this Court ruled that Boards should\nmake findings of fact when granting or denying conditional\nuse permits, which are also quasi-judicial decisions.\nAlthough in Barnes we upheld the Board\xe2\x80\x99s decision despite\nits failure to make specific findings of fact, we did so\nbecause the record clearly supported the Board\xe2\x80\x99s decision.\nHere, the only \xe2\x80\x9cevidence\xe2\x80\x9d found in the record before this\nCourt was contained in Memphis Stone\xe2\x80\x99s operations\nstatement: (1) that ten tons of aggregate is needed each year\nfor new construction and to maintain existing\ninfrastructure; (2) that it believes the deposit will be an asset\nto the local economy; and (3) that the deposit would\notherwise be lost to future development.\nThe Harrisons argue that this does not constitute evidence\nof hardship, and that nothing in the record shows that the\nproperty is unsuitable for the purpose for which it is\nzoned\xe2\x80\x93residential and light commercial use. They further\nargue that Memphis Stone failed to show that it would\nsuffer unusual hardship or difficulty greater than any other\nresident in the city\xe2\x80\x99s R-1 and C-2 districts. Conversely, the\nBoard argues that it found the variance would provide a\ngood source of local aggregate and a benefit to the local\neconomy. It also argues that its decision was based on its\n\n35\n\n\x0ccommon knowledge of the land and familiarity with the\nordinance.\nThe language \xe2\x80\x9cpractical difficulties\xe2\x80\x9d and \xe2\x80\x9cunnecessary\nhardships,\xe2\x80\x9d as well as other aspects of the Batesville zoning\nordinance, originated in a 1920 amendment to the General\nCity Law of New York and the Standard Zoning Act\nprepared by the Department of Commerce in the 1920s.\nThe 1920 amendment provided that:\nWhere there are practical difficulties in\nthe way of carrying out the strict letter of\nsuch ordinance, the board of zoning\nappeals shall have the power to vary or\nmodify the application of any of the\nregulations or provisions of such\nordinance relating to the use,\nconstruction or alteration of buildings\nor structures, or the use of land, so that\nthe spirit of the ordinance shall be observed,\npublic safety and welfare secured and\nsubstantial justice done.\nAnd the Standard Zoning Act provided that:\nTo authorize upon appeal in specific\ncases such variance from the terms of\nthe ordinance as will not be contrary\nto the public interest, where, owing to\nspecial\nconditions,\na\nliteral\nenforcement of the provisions of the\nordinance will result in unnecessary\nhardship, and so that the spirit of the\nordinance shall be observed and substantial\njustice done.\nWhile some courts view the terms \xe2\x80\x9cpractical difficulty\xe2\x80\x9d and\n\xe2\x80\x9cunnecessary hardship\xe2\x80\x9d as interchangeable, other\njurisdictions follow New York\xe2\x80\x99s approach and hold that\n\xe2\x80\x9cpractical difficulty\xe2\x80\x9d applies to a nonuse or area variance\n\n36\n\n\x0cwhile \xe2\x80\x9cunnecessary hardship\xe2\x80\x9d applies to a use variance.\nJurisdictions that distinguish the two terms among nonuse\nand use variances do so because \xe2\x80\x9can area variance is a\nrelaxation of one or more incidental limitations to a\npermitted use and does not alter the character of a district\nas much as a use not permitted by the ordinance.\xe2\x80\x9d Even\nthose jurisdictions that construe \xe2\x80\x9cpractical difficulties or\nunnecessary hardships\xe2\x80\x9d together apply a more rigorous\nstandard for proving a use variance. Likewise, in Drews, we\nnoted the \xe2\x80\x9cserious questions\xe2\x80\x9d that arise when a Board\ngrants a use variance rather than a nonuse or area variance\nand insinuated that a higher burden (e.g., unnecessary\nhardship) applies to a use variance. Therefore, we follow\nthe New York approach and hold that the phrases\n\xe2\x80\x9cpractical difficulty\xe2\x80\x9d and \xe2\x80\x9cunnecessary hardship\xe2\x80\x9d apply to\nnonuse and use variances respectively, as the applicable\nzoning ordinance closely follows the 1920 New York\namendment. We adopt the following definition for\n\xe2\x80\x9cunnecessary hardship\xe2\x80\x9d:\n[T]he record must show that (1) the\nland in question cannot yield a\nreasonable return2 if used only for a\npurpose allowed in that zone; (2) that\nthe plight of the owner is due to\nunique3 circumstances [of the land for\nwhich the variance is sought] and not\nAs noted by the Missouri Supreme Court in adopting the New York definition,\nthe landowner must establish \xe2\x80\x9creasonable return\xe2\x80\x9d by submitting evidence that \xe2\x80\x9che\nor she will be deprived of all beneficial use of the property under any of the\npermitted uses\xe2\x80\x9d and this requires \xe2\x80\x9cactual proof, often in the form of dollars and\ncents evidence.\xe2\x80\x9d Matthew, 707 S.W.2d at 417.\n2\n\n\xe2\x80\x9c[U]niqueness does not require that only the parcel of land in question and none\nother be affected by the condition that creates the hardship. What is required \xe2\x80\xa6 is\nthat the hardship condition be sufficiently rare that if all similarly situated parcels in\nthe zoning district were granted variances the district would remain materially\nunchanged.\xe2\x80\x9d Gail Gudder, Rathkopf\xe2\x80\x99s the Law of Zoning and Planning, \xc2\xa7 58:11\n(Thomson/West Aug. 2006) (citing Matter of Douglaston Civic Ass\xe2\x80\x99n v. Klein, 51\nN.Y.2d 963, 435 N.Y.S.2d 705, 416 N.E.2d 1040 (N.Y.1980)).\n3\n\n37\n\n\x0cto the general conditions in the\nneighborhood which may reflect the\nunreasonableness of the zoning\nordinance itself; and (3) that the use to\nbe authorized4 by the variance will not\nalter the essential character of the\nlocality.\nWhether the hardship is self-created is also relevant to the\ndetermination of granting or denying a use variance.\nSimilarly, while not determinative of hardship, the Board\nshould consider the fact Memphis Stone entered into these\nleases with actual or constructive knowledge that the land\nwas zoned R-1 and C-2. The Board also must ensure that\nthe variance complies with \xe2\x80\x9cthe spirit of [the] ordinance\xe2\x80\x9d\nand that \xe2\x80\x9cpublic welfare and safety [be] secured and\nsubstantial justice done.\xe2\x80\x9d This requirement \xe2\x80\x9climits the\nauthority of the board only with respect to the scope and\ncharacter of the relief to be granted by way of the\nvariance.\xe2\x80\x9d5\nIn reviewing the record in this case, we find no evidence\nof \xe2\x80\x9cunnecessary hardship\xe2\x80\x9d as we now define that phrase.\nWe further find the definition for unnecessary hardship\ndoes not take into account \xe2\x80\x9cpublic need\xe2\x80\x9d as Memphis\nStone argues (and the trial court found), but instead\nfocuses on any alleged \xe2\x80\x9cpublic detriment.\xe2\x80\x9d6 Because this\nis a case of first impression, we vacate the decision of the\nCourt of Appeals and reverse the trial court, remanding\nthe case to the Board so the parties have the opportunity\nA board should grant a use variance only if it is the \xe2\x80\x9cminimum that will afford\nrelief.\xe2\x80\x9d Id. at \xc2\xa7 58.12.\n4\n\nGudder, Rathkopf\xe2\x80\x99s the Law of Zoning and Planning at \xc2\xa7 58:9. In other words, the\nBoard does not have to grant the variance as requested; it may impose conditions\nor otherwise modify the variance so that it is the \xe2\x80\x9cminimum that will afford relief.\xe2\x80\x9d\nSee fn.44 supra.\n5\n\nSee generally id. at \xc2\xa7 58:16 (public detriment is a factor in determining hardship,\nwhile public detriment and public benefit are considered under practical difficulties).\n6\n\n38\n\n\x0cto present it with evidence in compliance with this\nopinion. Any evidence presented should be made part of\nthe record, and the Board should provide specific\nfindings of fact and conclusions of law to support any\ndecision in this matter.\nJanssen v. Holland Charter Twp. Zoning Board of\nAppeals\n651 N.W.2d 464 (Mich. Ct. App. 2002)\nWarner Norcross & Judd, L.L.P. by John H. Logie, Mark\nK. Harder, and Christopher R. Uzpen, Holland, for John\nW. Janssen and others.\nScholten and Fant, P.C. by Ronald A. Bultje and Linda S.\nHowell, Grand Haven, for Holland Charter Township\nZoning Board of Appeals.\nCunnigham Dalman, P.C. by Andrew J. Mulder and Susan\nE. Vroegop, Holland, for Barker Brokerage &\nDevelopment, Inc. and others.\nPER CURIAM.\nJohn W. Janssen and others appeal by leave granted from\nthe March 22, 2000, order of the circuit court affirming the\ndecision of defendant Holland Charter Township Zoning\nBoard of Appeals (ZBA) granting a use variance permitting\nthe construction of a 250-unit residential development in\nan area zoned agricultural. We affirm.\nIn September 1996, appellees Henry A. and Doris J. Pyle\nand Baker Brokerage & Development, Inc., filed an\napplication with the Holland Charter Township Board\nrequesting that certain parcels of property consisting of\napproximately 115 acres be rezoned from the AAgricultural Zoning District to the R-1 Single Family\nResidential Zoning District. The township\xe2\x80\x99s planning\ncommission voted to recommend that the board deny the\nrezoning application. Subsequently, these appellees\namended their application by removing one fifteen-acre\n\n39\n\n\x0cparcel, which left two contiguous parcels consisting of\napproximately one hundred acres. Again, the planning\ncommission voted to deny the amended petition.\nThereafter, the Pyles and Baker filed a use variance request\nwith the ZBA. They sought to have the density\nrequirements changed so as to allow them to build a 400unit residential development on the property. After\nappellee Vistiana Properties, LLC, purchased the property,\nit and the Pyles filed an amended use variance petition, in\nwhich they reduced the number of residential units from\n400 to 250. Eventually, after holding public hearings, the\nZBA granted the use variance petition. Appellants then\ncontested the ZBA\xe2\x80\x99s decision in the circuit court, and the\ncourt upheld the ZBA\xe2\x80\x99s decision.\nAppellants first argue that the circuit court erred in\nconcluding that defendant ZBA\xe2\x80\x99s decision to grant the use\nvariance did not constitute impermissible rezoning because\na one hundred-acre parcel is too large a parcel of land to be\nthe subject of a use variance. Upon review de novo, we\ndisagree.\nThe rules that determine when a zoning board of appeals\nmay grant a use variance make no mention of the size of a\nparcel. A township zoning board of appeals is a municipal\nadministrative body whose duties include, among other\nfunctions, the granting of variances. M.C.L. \xc2\xa7 125.293\nprovides, in pertinent part, as follows:\nWhere there are practical difficulties or\nunnecessary hardship in the way of\ncarrying out the strict letter of the\nzoning ordinance, the board of appeals\nin passing upon appeals may vary or\nmodify any of its rules or provisions so\nthat the spirit of the ordinance is\nobserved, public safety secured, and\nsubstantial justice done.\n\n40\n\n\x0cLikewise, Holland Charter Township\xe2\x80\x99s zoning ordinance\nprovides as follows:\nSec. 20.2 Jurisdiction and powers.\nThe board of appeals shall have\nall powers and jurisdiction\ngranted by the zoning act, all\npowers\nand\njurisdiction\nprescribed in other articles of the\nordinance and the following\nspecific\npowers\nand\njurisdiction\xe2\x80\xa6.\nC. The jurisdiction and power\nto authorize, upon appeal, a\nvariance or modification of this\nordinance where there are\npractical\ndifficulties\nor\nunnecessary hardship in the\nway of carrying out the strict\nletter of this ordinance so that\nthe spirit of this ordinance shall\nbe observed, public safety\nsecured and substantial justice\ndone.\nThe plain and ordinary language of both the statute and the\nordinance do not set forth any limitations based on the size\nof the property owner\xe2\x80\x99s parcel of land. To conclude, as\nappellants urge, that the granting of a use variance to a large\nparcel of land constitutes de facto rezoning, we would have\nto, in effect, add an exclusion for such parcels to the above\nstatute and ordinance. \xe2\x80\x9cThis, however, is beyond our\nauthority because courts may not legislate.\xe2\x80\x9d Brandon Charter\nTwp. v. Tippett, 241 Mich.App. 417, 423, 616 N.W.2d 243\n(2000).\nAppellants next contend that the ZBA\xe2\x80\x99s decision to grant\nthe use variance was not supported by competent, material,\n\n41\n\n\x0cand substantial evidence on the record. We disagree. The\ndecision of a zoning board of appeals should be affirmed\nunless it is contrary to law, based on improper procedure,\nnot supported by competent, material, and substantial\nevidence on the record, or an abuse of discretion. Reenders v.\nParker, 217 Mich.App. 373, 378, 551 N.W.2d 474 (1996).\nA township zoning board of appeals has the authority to\nvary or modify any zoning ordinance to prevent\nunnecessary hardship if the spirit of the ordinance is\nobserved, the public safety is secured, and substantial\njustice is done. To conclude that a property owner has\nestablished unnecessary hardship, a zoning board of\nappeals must find on the basis of substantial evidence that\n(1) the property cannot reasonably be used in a manner\nconsistent with existing zoning, (2) the landowner\xe2\x80\x99s plight is\ndue to unique circumstances and not to general conditions\nin the neighborhood that may reflect the unreasonableness\nof the zoning, (3) a use authorized by the variance will not\nalter the essential character of a locality, and (4) the\nhardship is not the result of the applicant\xe2\x80\x99s own actions.\nJohnson v. Robinson Twp., 420 Mich. 115, 125-126, 359\nN.W.2d 526 (1984); Puritan-Greenfield Improvement Ass\xe2\x80\x99n v.\nLeo, 7 Mich.App. 659, 672-673, 677, 153 N.W.2d 162\n(1967). We conclude that the Pyle appellees presented\nsufficient evidence to establish each of these criteria.\n\xe2\x80\x9cWhether property used in trade or business or held for the\nproduction of income can reasonably be used for a purpose\nconsistent with existing zoning will, no doubt, ordinarily\nturn on whether a reasonable return can be derived from\nthe property as then zoned.\xe2\x80\x9d Puritan-Greenfield at 673-674,\n153 N.W.2d 162.11 Contrary to appellants\xe2\x80\x99 argument on\n\nThe Puritan-Greenfield Court, supra at 674, 153 N.W.2d 162, cautioned that there\nare circumstances where a \xe2\x80\x9creasonable return\xe2\x80\x9d analysis would be improper when\ndeciding the \xe2\x80\x9creasonable use\xe2\x80\x9d question. The example given was where the property\nin issue was a single-family residence. While we agree that the reasonable return\n1\n\n42\n\n\x0cappeal, the ZBA\xe2\x80\x99s conclusion that appellee Vistiana could\nnot receive a reasonable economic return was not based on\nsome \xe2\x80\x9chypothetical value.\xe2\x80\x9d Rather, the ZBA\xe2\x80\x99s finding was\nbased on an analysis of the rental income received and the\ntaxes assessed on the property as zoned. In concluding that\nthe applicants established by substantial evidence that they\ncould receive no reasonable economic return for the\nproperty as zoned, the ZBA noted that the annual rental\nincome for the farm was $6,000, and the annual rental\nincome for the two residences on the property yielded\n$12,900. The ZBA further pointed out that the 1998 taxes\non the property amounted to $7,867.42. Thus, the ZBA\nconcluded that the applicants could not realize a reasonable\neconomic return, given the rental income from leasing the\nfarm and the two houses. We hold that the ZBA\xe2\x80\x99s\nconclusion that the property cannot reasonably be used in a\nmanner consistent with existing zoning was supported by\ncompetent, material, and substantial evidence on the\nrecord. Reenders, supra at 378, 551 N.W.2d 474.\nWe also believe this evidence supports the finding that the\nhardship is not the result of the applicants\xe2\x80\x99 own actions.\nThe increasing taxable value of the property and the\ncomparatively low rental income derived are not \xe2\x80\x9cselfcreated\xe2\x80\x9d burdens.\nIn addition, we hold that there was competent, material,\nand substantial evidence to support the ZBA\xe2\x80\x99s conclusion\nthat the use authorized by the variance would not alter the\nessential character of the locality. In considering the\nessential character of this locality, one cannot, and should\nnot, just look at the immediate neighboring properties. The\ncharacter of the locality is defined in broader strokes than\nsuch a myopic viewpoint would provide.\n\nanalysis should not be relied on in certain cases, its application here is proper. Id.\nSee also Crawford, Michigan Zoning and Planning (3d ed.), \xc2\xa7 6.03, pp. 164-165.\n\n43\n\n\x0cThe underlying situation presented in the case at bar\ninvolves the changing circumstances and character of this\ncommunity. With the growing consolidation of farming\noperations throughout the country and the fewer children\nwilling to follow their parents into farming, the family farm,\nonce a mainstay of both the economic and cultural\nlandscape in rural America, has begun to disappear. See\nZeigler, Who will teach our farmers: Learning the value of mentor\nprograms from state and private programs, 5 Drake J. Agric. L.\n279, 280 (2000). Appellants and appellees have found\nthemselves caught in the tide of this rural transformation.\nIn other words, the essential character of this community is\nnot immutable, and is, indeed, in a state of transition.\nThe use to be made of the subject property not only\nrecognizes this unfolding change in circumstances, but it\nalso takes measured steps to balance the pressures inherent\nin this course of development. In granting the variance, the\nZBA explained that the proposed cluster housing\ndevelopment will provide \xe2\x80\x9ca large area of open space\naround the perimeter of the property, thereby maintaining a\nbuffer area between the proposed residential uses and the\nsurrounding agricultural property,\xe2\x80\x9d and further concluded\nthat this factor, as well as the other conditions imposed,\nwill ensure that the variance will not alter the locality\xe2\x80\x99s\nessential character. Included in the list of conditions is a\ndisclaimer to be included in all deeds conveying an interest\nin the subject property that informs purchasers of the\nneighboring farming activity and that further provides that,\nunder certain circumstances, the Michigan Right to Farm\nAct2 protects a farm or farm operation from being\nconsidered a public or private nuisance.\nThis leaves the question whether Vistiana\xe2\x80\x99s plight was\nunique to the property. The requirement that the\nlandowner\xe2\x80\x99s plight be due to unique circumstances does\n2\n\nM.C.L. \xc2\xa7 286.471 et seq.\n\n44\n\n\x0cnot mean that the circumstances must exclusively affect\nonly the single landowner.3 Rather, \xe2\x80\x9c[t]he courts have\nrepeatedly emphasized that the hardship to be unique is\n\xe2\x80\x98not shared by all others,\xe2\x80\x99\xe2\x80\x9d Beatrice Block Club Ass\xe2\x80\x99n v. Facen,\n40 Mich.App. 372, 381, 198 N.W.2d 828 (1972), quoting\nTireman-Joy-Chicago Improvement Ass\xe2\x80\x99n v. Chernick, 361 Mich.\n211, 216, 105 N.W.2d 57 (1960) (emphasis supplied by\nFacen Court).\nWhile the subject property has no defining physical\ncharacteristics such as size or topographical peculiarities\nthat make it unique, we do not believe this necessarily ends\nthe inquiry. See, e.g., Monaco v. Dist. of Columbia Bd. of Zoning\nAdjustment, 407 A.2d 1091, 1097 (D.C., 1979) (examining\nthe actions of the zoning authorities and the zoning history\nof the case). The uniqueness inquiry should not in all cases\nbe limited to an examination of whether there is a\nuniqueness that inheres in the land itself. See Capitol Hill\nRestoration Society, Inc. v. Dist. of Columbia Bd. of Zoning\nAdjustment, 534 A.2d 939, 942 (D.C., 1987).\nAppellees\xe2\x80\x99 claim of \xe2\x80\x9cuniqueness\xe2\x80\x9d invites consideration of\ntheir plight in light of the situation of other landowners in\nthe surrounding area. In making such a comparison, it\nquickly becomes evident that it is not the unreasonableness\nof the zoning ordinance that has led to appellees\xe2\x80\x99 plight. As\nthe circuit court recognized, when the use variance was\ngranted, the township\xe2\x80\x99s then current master plan\nenvisioned that, although zoned agricultural, the subject\nland should eventually be used for residential purposes.\nIndeed, before appellees\xe2\x80\x99 request, the township had\napproved approximately fifty other instances of residential\nuse of land in areas zoned agricultural. Thus, change in the\ncharacter of the locality has not only been countenanced by\nthe master plan, but the zoning history of the case reveals a\nsteady, incremental movement in that direction. We believe\n3\n\nCrawford, supra at \xc2\xa7 6.03, p. 165.\n\n45\n\n\x0cthat this shows that at the time the variance was sought, the\nhardship alleged was not due to the general conditions then\nexisting in the area. In other words, the remedy does not\nnecessarily lie in amendment of the zoning ordinance itself.\nGiven the master plan\xe2\x80\x99s recognition of potential future\ngrowth specifically on lands zoned agricultural, we believe\nthat restrained and managed development, in part through\nthe issuance of use variances as the changing conditions\ncreate unique hardships for those remaining agricultural\nlands, is a reasoned approach. It satisfies the goals of\nupholding the spirit of the ordinance, protects public\nsafety, and assures that substantial justice is done. Dowerk,\nsupra.Further, when a \xe2\x80\x9clandowner has made the requisite\nshowing of financial hardship and compatibility of the\nproposed use with the character of the neighborhood, the\nvariance should be granted since to deny it [solely] on the\nground that \xe2\x80\x98unique circumstances\xe2\x80\x99 have not been shown\ninvites a potentially successful assault on the zoning\nordinance as being confiscatory.\xe2\x80\x9d In re Family of Woodstock,\nInc., 225 A.D.2d 854, 856, 638 N.Y.S.2d 825 (1996).\nAffirmed.\nSimplex Technologies v. Town of Newington\n145 N.H. 727 (2001)\nGottesman and Hollis, P.A., of Nashua (Anna B. Hantz on the\nbrief), and Stebbins, Lazos & Van Der Beken, of Manchester\n(Henry B. Stebbins on the brief and orally), for the plaintiff.\nPeter J. Loughlin of Portsmouth, by brief and orally, for\ndefendant Town of Newington.\nBoynton, Waldron, Doleac, Woodman & Scott, PA., of\nPortsmouth, for defendant The Equitable Life Assurance\nSociety of the United States & The Fox Run Mall Joint\nVenture, filed no brief.\nH. Bernard Waugh, Jr., of Concord, by brief for the New\nHampshire Municipal Association, as amicus curiae.\n\n46\n\n\x0cNADEUA, J.\nThe plaintiff, Simplex Technologies, Inc. (Simplex), appeals\nfrom an order of the Superior Court (Galway, J.), affirming\na decision of the Town of Newington Zoning Board of\nAdjustment (ZBA) denying Simplex\xe2\x80\x99s request for a variance\nto develop a portion of its property that fronts Woodbury\nAvenue. The defendants are the Town of Newington and\nThe Equitable Life Assurance Society of the United States\nand the Fox Run Mall Joint Venture. We reverse and\nremand.\nSimplex owns ninety-two acres in Newington between the\nPiscataqua River and Woodbury Avenue. For more than\nthirty years Simplex has operated a manufacturing facility\non this land. Woodbury Avenue forms a boundary line\nbetween industrial and commercial zoning districts in\nNewington. All the property west of Woodbury Avenue,\nincluding two shopping malls, was once in the industrial\nzone but now lies within the commercial zone, across the\nstreet from the Simplex property.\nThere are three other commercial businesses also located\non the east side of Woodbury Avenue, within the\ncommercial zone. North of the Simplex property along\nWoodbury Avenue is a mini-mall located on a ten-acre lot\nthat was re-zoned for commercial use in 1983. A car\ndealership and an electronics retail store are located south\nof the Simplex property near the intersection of Woodbury\nAvenue and Gosling Road on thirteen acres of commercial\nproperty. The Bank of New Hampshire and the Great Bay\nSchool operate within the industrial zone, but not with\nindustrial purposes; the bank operates as a nonpermitted\nuse and the school operates as a nonconforming use.\nSeeking to develop 6.2 acres of its property abutting\nWoodbury Avenue with a Barnes & Noble bookstore and a\nfamily restaurant, Simplex requested use and area variances\nfor this property. The ZBA, determining that Simplex met\n\n47\n\n\x0cnone of the five criteria for a variance, denied its requests.\nSimplex appealed to the superior court, arguing that: (1) the\nZBA\xe2\x80\x99s decision was unreasonable; (2) the Town was\nestopped from enforcing the zoning ordinance against\nSimplex because it was acting in a discriminatory fashion;\nand (3) the zoning ordinance was unconstitutional on its\nface and as applied to Simplex. The superior court ruled\nthat the ZBA\xe2\x80\x99s determination was not unreasonable or\nunlawful because Simplex did not meet the hardship criteria\nfor a variance and rejected Simplex\xe2\x80\x99s municipal estoppel\nargument. The superior court also rejected Simplex\xe2\x80\x99s\nconstitutional arguments. This appeal followed.\n\xe2\x80\xa6.\nWe begin by looking at the present state of land use\nvariance law. To determine the validity of zoning laws, the\n\xe2\x80\x9cpolice power and the right to private property must be\nconsidered together as interdependent, the one qualifying\nand limiting the other.\xe2\x80\x9d Metzger v. Town of Brentwood, 117\nN.H. 497, 502, 374 A.2d 954, 957 (1977) (quotation\nomitted). The purpose of a variance is to allow for \xe2\x80\x9ca\nwaiver of the strict letter of the zoning ordinance without\nsacrifice to its spirit and purpose.\xe2\x80\x9d Husnander v. Town of\nBarnstead, 139 N.H. 476, 478, 660 A.2d 477, 478 (1995). By\nallowing variances \xe2\x80\x9clitigation of constitutional questions\nmay be avoided and a speedy and adequate remedy\nafforded in cases where special conditions\xe2\x80\x9d exist. Bouley v.\nNashua, 106 N.H. 79, 84, 205 A.2d 38, 41 (1964)\n(quotations omitted).\nAccording to RSA 674:33, I(b), a zoning board of\nadjustment may authorize a variance if the following\nconditions are met: (1) the variance will not be contrary to\nthe public interest; (2) special conditions exist such that\nliteral enforcement of the ordinance results in unnecessary\nhardship; (3) the variance is consistent with the spirit of the\nordinance; and (4) substantial justice is done. See RSA\n674:33 (1996 & Supp. 2000). In addition, the board may\n\n48\n\n\x0cnot grant a variance if it diminishes the value of\nsurrounding properties. See Ryan v. City of Manchester Zoning\nBoard, 123 N.H. 170, 173, 459 A.2d 244, 245 (1983). The\nZBA determined that Simplex failed to meet any of these\nconditions. The superior court affirmed the ZBA\xe2\x80\x99s\ndecision, analyzing only the question of unnecessary\nhardship.\nOur recent case law suggests that in seeking a variance, the\nhardship requirement is the most difficult to meet. To\nestablish hardship, property owners must show that an\nordinance unduly restricts the use of their land. See\nGovernor\xe2\x80\x99s Island Club v. Gilford, 124 N.H. 126, 130, 467 A.2d\n246, 248 (1983). In Governor\xe2\x80\x99s Island, we overturned the trial\ncourt\xe2\x80\x99s order affirming the ZBA\xe2\x80\x99s grant of a variance,\nstating: \xe2\x80\x9cFor hardship to exist under our test, the\ndeprivation resulting from application of the ordinance\nmust be so great as to effectively prevent the owner from\nmaking any reasonable use of the land.\xe2\x80\x9d Id.\nIn overturning the grant of a variance that allowed a\nlandowner to expand his pre-existing nonconforming\nmarina with a boat storage building, we stated: \xe2\x80\x9cThe\nuncontroverted fact that the Marina had been operating as\na viable commercial entity for several years prior to the\nvariance application is conclusive evidence that a hardship\ndoes not exist.\xe2\x80\x9d Grey Rocks Land Trust v. Town of Hebron, 136\nN.H. 239, 243, 614 A.2d 1048, 1050 (1992). As in other\ncases, we emphasized that \xe2\x80\x9c[t]he uniqueness of the land,\nnot the plight of the owner, determines whether a hardship\nexists.\xe2\x80\x9d Id. (quotation and citation omitted).\nDissenting in Grey Rocks, Justice Horton was critical of our\nrestrictive definition of hardship. He discussed the\nsimilarity between our definition and a \xe2\x80\x9csubstantial taking\xe2\x80\x9d\napproach. See id. at 247, 614 A.2d at 1052 (Horton, J.,\ndissenting). Under this approach, variances are very\ndifficult to obtain unless evidence establishes that the\nproperty owner cannot use his or her property in any way.\n\n49\n\n\x0cSee id. (Horton, J., dissenting). This approach \xe2\x80\x9crejects any\nclaim of right to use property as one sees fit, no matter how\nunobtrusive.\xe2\x80\x9d Id. (Horton, J., dissenting).\nThough variances have been granted, their numbers have\nbeen few, diminished undoubtedly by our reiterated and\nrestrictive definition of what constitutes an unnecessary\nhardship. See, e.g., Husnander, 139 N.H. at 478-79, 660 A.2d\n477 at 478-79.\nOur current restrictive approach is inconsistent with our\nearlier articulations of unnecessary hardship. In Fortuna v.\nZoning Board of Adjustment of Manchester, a car dealership was\ngranted a variance to expand its nonconforming use by\nadding a garage within an apartment zoning district. See\nFortuna v. Zoning Board of Manchester, 95 N.H. 211, 212, 60\nA.2d 133, 134 (1948). The record established that this\naddition would reduce traffic, but would not diminish the\nvalue of the surrounding properties. See id. at 212-13, 60\nA.2d at 135. We found unnecessary hardship existed\nbecause the ordinance interfered with the dealership\xe2\x80\x99s right\nto use its property as it saw fit and that its use did not\ninjure the public or private rights of others. See id. at 21314, 60 A.2d at 135.\nAlso, our restrictive approach is inconsistent with the\nnotion that zoning ordinances must be consistent with the\ncharacter of the neighborhoods they regulate. In Belanger v.\nCity of Nashua, the zoning board of adjustment denied a\nland owner a variance to expand a nonconforming\ncommercial use from one room of her house to the whole\nhouse. See Belanger v. City of Nashua, 121 N.H. 389, 430 A.2d\n166 (1981). The surrounding area had changed substantially\nsince it was zoned for single family residential use. See id. at\n393, 430 A.2d at 169. Emphasizing that municipalities must\ncoordinate their zoning ordinances to reflect the current\ncharacter of their neighborhoods, we upheld the trial\ncourt\xe2\x80\x99s order vacating the board\xe2\x80\x99s decision. See id.\n\n50\n\n\x0cFinally, our restrictive approach is inconsistent with our\nconstitutional analysis concerning zoning laws. To\nsafeguard the constitutional rights of landowners, we insist\nthat zoning ordinances \xe2\x80\x9cmust be reasonable, not arbitrary,\nand must rest upon some ground of difference having a fair\nand substantial relation to the object of the regulation.\xe2\x80\x9d\nTown of Chesterfield v. Brooks, 126 N.H. 64, 69, 489 A.2d 600,\n604 (1985) (quotation omitted).\nInevitably and necessarily there is a tension between zoning\nordinances and property rights, as courts balance the right\nof citizens to the enjoyment of private property with the\nright of municipalities to restrict property use. In this\nbalancing process, constitutional property rights must be\nrespected and protected from unreasonable zoning\nrestrictions. The New Hampshire Constitution guarantees\nto all persons the right to acquire, possess, and protect\nproperty. See N.H. CONST. pt. I, arts. 2, 12. These\nguarantees limit all grants of power to the State that deprive\nindividuals of the reasonable use of their land.\nWe believe our definition of unnecessary hardship has\nbecome too restrictive in light of the constitutional\nprotections by which it must be tempered. In consideration\nof these protections, therefore, we depart today from the\nrestrictive approach that has defined unnecessary hardship\nand adopt an approach more considerate of the\nconstitutional right to enjoy property. Henceforth,\napplicants for a variance may establish unnecessary\nhardship by proof that: (1) a zoning restriction as applied to\ntheir property interferes with their reasonable use of the\nproperty, considering the unique setting of the property in\nits environment; (2) no fair and substantial relationship\nexists between the general purposes of the zoning\nordinance and the specific restriction on the property; and\n(3) the variance would not injure the public or private rights\nof others.\n\n51\n\n\x0cWhile the trial court properly applied settled law, because\nof our departure from the existing definition of hardship,\nwe remand this case to the superior court to determine\nwhether Simplex can establish unnecessary hardship under\nthis new standard.\nSimplex also argues that the trial court erred in rejecting its\nclaim of municipal estoppel. Because Simplex did not raise\nthis issue in its notice of appeal or obtain leave of this court\nto add the question, Simplex has waived the issue of\nestoppel and we will not consider it. See SUP. CT. R.\n16(3)(b); see also State v. Peterson, 135 N.H. 713, 714-15, 609\nA.2d 749, 750-51 (1992).\nFinally, Simplex argues that the enforcement of the zoning\nordinance was unconstitutional because the restriction\nagainst commercial development was not equally applied to\nother Woodbury Avenue landowners. We decide cases on\nconstitutional grounds only when necessary. See Olson v.\nFitzwilliam, 142 N.H. 339, 345, 702 A.2d 318, 322 (1997).\nBecause we reverse and remand on other grounds, we\ndecline to address the merits of Simplex\xe2\x80\x99s constitutional\nclaims. See id.\nNote\nThe standards in Simplex were subsequently superseded by the\nNew Hampshire legislature. Discussing these new standards in\nHarborside Associates v. Parade Residence Hotel (N.H. 2011), the\nNew Hampshire Supreme Court stated:\nRSA 674:33, I(b) allows a zoning board to grant a variance if: (1)\n\xe2\x80\x9c[t]he variance will not be contrary to the public interest\xe2\x80\x9d; (2) \xe2\x80\x9c[t]he\nspirit of the ordinance is observed\xe2\x80\x9d; (3) \xe2\x80\x9c[s]ubstantial justice is\ndone\xe2\x80\x9d; (4) \xe2\x80\x9c[t]he values of surrounding properties are not\ndiminished\xe2\x80\x9d; and (5) \xe2\x80\x9c[l]iteral enforcement of the provisions of the\nordinance would result in unnecessary hardship.\xe2\x80\x9d\nRSA 674:33, I(b) contains two definitions of unnecessary hardship.\nSee RSA 674:33, I(b)(5)(A), (B). Under the first definition:\n\n52\n\n\x0c(A) \xe2\x80\xa6 \xe2\x80\x9c[U]nnecessary hardship\xe2\x80\x9d\nmeans that, owing to special\nconditions of the property that\ndistinguish it from other properties in\nthe area:\n(i) No fair and substantial relationship\nexists between the general public\npurposes of the ordinance provision\nand the specific application of that\nprovision to the property; and\n(ii) The proposed use is a reasonable\none.\nRSA 674:33, I(b)(5)(A). The first definition of unnecessary\nhardship is similar, but not identical, to the test that we adopted in\nSimplex Technologies v. Town of Newington, 145 N.H. 727, 73132 (2001). See Laws 2009, 307:5 (statement of legislative intent that\nfirst definition mirror Simplex test).\nThe statute provides that if an applicant fails to satisfy the first\ndefinition of unnecessary hardship, then it may still obtain a\nvariance if it satisfies the second definition. See RSA 674:33,\nI(b)(5)(B). Under the second definition:\n[A]n unnecessary hardship will be\ndeemed to exist if, and only if, owing\nto special conditions of the property\nthat distinguish it from other\nproperties in the area, the property\ncannot be used in strict conformance\nwith the ordinance, and a variance is\ntherefore necessary to enable a\nreasonable use of it.\nId. This definition of unnecessary hardship is similar, but not\nidentical, to the test for unnecessary hardship that we applied\nbefore Simplex. See, e.g., Governor\xe2\x80\x99s Island Club v. Town of\nGilford, 124 N.H. 126, 130 (1983); see also Laws 2009, 307:5\n\n53\n\n\x0c(statement of legislative intent that second definition mirror preSimplex test for unnecessary hardship \xe2\x80\x9cas exemplified by cases\nsuch as Governor\xe2\x80\x99s Island\xe2\x80\x9d).\nThe statute provides that these definitions apply \xe2\x80\x9cwhether the\nprovision of the ordinance from which a variance is sought is a\nrestriction on use, a dimensional or other limitation on a\npermitted use, or any other requirement of the ordinance.\xe2\x80\x9d RSA\n674:33, I(b). The legislature\xe2\x80\x99s statement of intent indicates that\nthe purpose of this provision was to \xe2\x80\x9celiminate the separate\n\xe2\x80\x98unnecessary hardship\xe2\x80\x99 standard for \xe2\x80\x98area\xe2\x80\x99 variances\xe2\x80\x9d that we\nadopted in Boccia v. City of Portsmouth, 151 N.H. 85, 92 (2004).\nLaws\n2009,\n307:5.\nKrummenacher v. City of Minnetonka\n783 N.W.2d 721 (Minn. 2010)\nPaul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain\nLaw Firm, Wayzata, MN, for appellant.\nGeorge C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar,\nP.A., Eden Prairie, MN, for respondent City of\nMinnetonka.\nJames M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd.,\nBloomington, MN, for respondent JoAnne Liebeler.\nSusan L. Naughton, St. Paul, MN, for amicus curiae League\nof Minnesota Cities.\nGILDEA, Justice.\nThis case involves the decision of respondent City of\nMinnetonka to grant a variance to respondent JoAnne\nLiebeler so that she could expand her nonconforming\ngarage. Appellant Beat Krummenacher is Liebeler\xe2\x80\x99s\nneighbor and he challenges the City\xe2\x80\x99s decision. The district\ncourt upheld the City\xe2\x80\x99s variance, and the court of appeals\naffirmed. See Krummenacher v. City of Minnetonka, 768 N.W.2d\n377, 384 (Minn.App.2009). Because we conclude that the\nCity applied the wrong standard to Liebeler\xe2\x80\x99s variance\n\n54\n\n\x0crequest, we reverse and remand to the City for\nreconsideration under the correct standard.\n\xe2\x80\xa6.\nKrummenacher argues that the City\xe2\x80\x99s decision was arbitrary\nand capricious because the City did not apply the proper\nstandard to determine whether Liebeler demonstrated\n\xe2\x80\x9cundue hardship\xe2\x80\x9d as defined in Minn.Stat. \xc2\xa7 462.357, subd.\n6. This provision allows a city to grant a variance \xe2\x80\x9cfrom the\nliteral provisions of the ordinance in instances where their\nstrict enforcement would cause undue hardship because of\ncircumstances unique to the individual property under\nconsideration.\xe2\x80\x9d Minn.Stat. \xc2\xa7 462.357, subd. 6.\nMinnesota Statutes \xc2\xa7 462.357, subd. 6, provides a definition\nof \xe2\x80\x9cundue hardship,\xe2\x80\x9d and that definition requires that three\nfactors be met. Specifically, the statute defines \xe2\x80\x9cundue\nhardship\xe2\x80\x9d as meaning,\nthe property in question cannot be put\nto reasonable use if used under\nconditions allowed by the official\ncontrols, the plight of the landowner is\ndue to circumstances unique to the\nproperty not created by the landowner,\nand the variance, if granted, will not\nalter the essential character of the\nlocality.\nId. To receive a variance, the applicant must show that he\nor she meets all of the three statutory requirements of the\n\xe2\x80\x9cundue hardship\xe2\x80\x9d test. Id. In addition to satisfying the\n\xe2\x80\x9cundue hardship\xe2\x80\x9d requirement, the statute allows\nmunicipalities to grant variances only \xe2\x80\x9cwhen it is\ndemonstrated that such actions will be in keeping with the\nspirit and intent of the ordinance.\xe2\x80\x9d Id. Krummenacher\nargues that Liebeler\xe2\x80\x99s application does not meet any of the\nrequirements for \xe2\x80\x9cundue hardship.\xe2\x80\x9d\n\n55\n\n\x0cThe first factor a variance applicant must establish to satisfy\nthe statute\xe2\x80\x99s definition of \xe2\x80\x9cundue hardship\xe2\x80\x9d is that \xe2\x80\x9cthe\nproperty in question cannot be put to reasonable use if\nused under conditions allowed by the official controls.\xe2\x80\x9d\nMinn.Stat. \xc2\xa7 462.357, subd. 6; see also Minnetonka City Code\n\xc2\xa7 300.07.1(a). Krummenacher argues that based on the\nplain and unambiguous language of the statute, a\nmunicipality may grant a variance only when the property\ncannot be put to any reasonable use without it. According\nto Krummenacher, Liebeler had a reasonable use for her\ngarage without the addition of a yoga studio and craft\nroom\xe2\x80\x93its current use as a storage space for vehicles.\nKrummenacher argues therefore that the City did not have\nthe statutory authority to grant the variance.\nThe court of appeals rejected this argument, relying on its\ndecision in Rowell v. Board of Adjustment of Moorhead, 446\nN.W.2d 917 (Minn.App.1989), rev. denied (Minn. Dec. 15,\n1989). The court in that case interpreted the \xe2\x80\x9cundue\nhardship\xe2\x80\x9d section of Minn.Stat. \xc2\xa7 462.357, subd. 6, as\nrequiring a variance applicant to show that the \xe2\x80\x9cproperty\nowner would like to use the property in a reasonable\nmanner that is prohibited by the ordinance.\xe2\x80\x9d Id. at 922.\nThe City urges that we should embrace the interpretation\nof \xe2\x80\x9cundue hardship\xe2\x80\x9d from Rowell, and it appears from the\nrecord that the Rowell \xe2\x80\x9creasonable manner\xe2\x80\x9d standard is the\nstandard the City used in evaluating Liebeler\xe2\x80\x99s request for a\nvariance. The City determined that the expansion of the\ngarage was a reasonable use of the property and that the\nrequest met the other requirements of the statute.\nSpecifically, as reflected in the City Council Resolution, the\nCity found that \xe2\x80\x9cthe proposal is reasonable\xe2\x80\x9d and with\nrespect to \xe2\x80\x9cundue hardship,\xe2\x80\x9d that \xe2\x80\x9c[t]here is an undue\nhardship due to the topography of the site, width of the lot,\nlocation of the driveway and existing vegetation.\xe2\x80\x9d\nThe plain language of the statute and our precedent compel\nus to reject the City\xe2\x80\x99s invitation to adopt Rowell\xe2\x80\x99s\n\n56\n\n\x0cinterpretation of \xe2\x80\x9cundue hardship.\xe2\x80\x9d The statute provides\nthat to prove \xe2\x80\x9cundue hardship,\xe2\x80\x9d the variance applicant\nmust show that \xe2\x80\x9cthe property in question cannot be put to\na reasonable use\xe2\x80\x9d without the variance. Minn.Stat. \xc2\xa7\n462.357, subd. 6. Notwithstanding this language, the court\nof appeals concluded that \xe2\x80\x9c[t]his provision does not mean\nthat a property owner must show the land cannot be put to\nany reasonable use without the variance.\xe2\x80\x9d Rowell, 446\nN.W.2d at 922. The court of appeals essentially rewrote the\nstatute to mean that a municipality may grant a variance\nwhen the \xe2\x80\x9cproperty owner would like to use the property in\na reasonable manner that is prohibited by the ordinance.\xe2\x80\x9d\nId. at 922. Although the Rowell \xe2\x80\x9creasonable manner\xe2\x80\x9d\nstandard has been used for over 20 years, we simply cannot\nreconcile that standard with the plain language of the\nstatute.\nThe Rowell standard is also inconsistent with our precedent.\nIn support of the application of a \xe2\x80\x9creasonable manner\xe2\x80\x9d\nstandard for determining \xe2\x80\x9cundue hardship,\xe2\x80\x9d Rowell cites\nCurry v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for\nthe proposition that a variance is \xe2\x80\x9crequired where a setback\nrequirement would force a property owner to build a much\nsmaller structure.\xe2\x80\x9d Id. at 922. The version of Minn. Stat. \xc2\xa7\n462.357 in effect when Curry was decided did not contain\nthe definition of \xe2\x80\x9cundue hardship\xe2\x80\x9d that is in the current\nversion of the statute. See Minn.Stat. \xc2\xa7 462.357 (1969).\nMoreover, while we discussed in Curry the dimensions of a\nstructure that could theoretically be built to comply with\nthe statutory requirements, we based our determination\nthat the variance was properly granted on the municipality\xe2\x80\x99s\nordinance. That ordinance required a showing of\n\xe2\x80\x9cparticular hardship,\xe2\x80\x9d and we concluded that the standard\nwas met because the \xe2\x80\x9cplaintiffs\xe2\x80\x99 lot, in the absence of a\nvariance, would be unusable for any purpose.\xe2\x80\x9d Curry, 285\nMinn. at 388-89, 396, 173 N.W.2d at 411, 415. The\nstandard we applied in Curry, is more rigorous than the\n\n57\n\n\x0c\xe2\x80\x9creasonable manner\xe2\x80\x9d standard adopted in Rowell, and\nappears consistent with the plain language of the first part\nof the \xe2\x80\x9cundue hardship\xe2\x80\x9d definition that is in the current\nstatute. See Minn. Stat. \xc2\xa7 462.357, subd. 6.\nIn addition, in formulating the \xe2\x80\x9creasonable manner\xe2\x80\x9d\nstandard, the court in Rowell appears to have relied on the\n\xe2\x80\x9cpractical difficulties\xe2\x80\x9d standard. See Rowell, 446 N.W.2d at\n922. But we have made a clear distinction between the\n\xe2\x80\x9cpractical difficulties\xe2\x80\x9d standard and the \xe2\x80\x9cundue hardship\xe2\x80\x9d\nstandard. See Stadsvold, 754 N.W.2d at 328-31. As we\nexplained in Stadsvold, the \xe2\x80\x9cpractical difficulties\xe2\x80\x9d standard\napplies to review of county decisions to grant area\nvariances, while the \xe2\x80\x9cundue hardship\xe2\x80\x9d standard applies to\nall municipal decisions to grant variances. Id. at 327-28 & n.\n2. Compare Minn.Stat. \xc2\xa7 462.357, subd. 6, with Minn.Stat. \xc2\xa7\n394.27, subd. 7 (2008).\nIn Stadsvold, we interpreted Minn.Stat. \xc2\xa7 394.27, subd. 7,\nwhich sets forth the statutory standard for county\nvariances. This statute contains both the \xe2\x80\x9cpractical\ndifficulties\xe2\x80\x9d standard and a \xe2\x80\x9cparticular hardship\xe2\x80\x9d standard.\nSpecifically, section 394.27 authorizes a county to grant\nvariances from \xe2\x80\x9cthe terms of any official control\xe2\x80\x9d but only\nwhen the property owner would face \xe2\x80\x9cpractical difficulties\nor particular hardship\xe2\x80\x9d in meeting \xe2\x80\x9cthe strict letter of any\nofficial control.\xe2\x80\x9d Minn.Stat. \xc2\xa7 394.27, subd. 7.1 We\nThe same dichotomy of language at issue in Stadsvold existed in the predecessor to\nthe municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted\nin 1929, repealed in 1965) granted municipalities the power to vary or modify the\napplication of a zoning regulation where there were \xe2\x80\x9cpractical difficulties or\nunnecessary hardship\xe2\x80\x9d in complying with the strict letter of the regulation.\nMinn.Stat. \xc2\xa7 462.22 (1961). In 1965, the legislature replaced Minn.Stat. \xc2\xa7 462.22\nwith Minn.Stat. \xc2\xa7 462.357. Act of May 22, 1965, c. 670, \xc2\xa7 7, 1965 Minn. Laws 995,\n1000-03. The new statute replaced the \xe2\x80\x9cpractical difficulties or unnecessary\nhardship\xe2\x80\x9d standard with the current single \xe2\x80\x9cundue hardship\xe2\x80\x9d standard. Id. \xe2\x80\x9cUndue\nhardship\xe2\x80\x9d was undefined in the statute until 1982, when the legislature, borrowing\nthe definition of \xe2\x80\x9chardship\xe2\x80\x9d from the county variance statute, Minn.Stat. \xc2\xa7 394.27,\nadded the current definition of \xe2\x80\x9cundue hardship\xe2\x80\x9d to the statute. Act of Mar. 22,\n1982, ch. 507, \xc2\xa7 22, 1982 Minn. Laws 592, 593\n1\n\n58\n\n\x0cdistinguished the \xe2\x80\x9cless rigorous \xe2\x80\x98practical difficulties\xe2\x80\x99\xe2\x80\x9d\nstandard that applies to area variance applications from the\nmore rigorous \xe2\x80\x9cparticular hardship\xe2\x80\x9d standard that applies\nto use variance applications. Stadsvold, 754 N.W.2d at 33031.\nAdopting the Rowell \xe2\x80\x9creasonable manner\xe2\x80\x9d standard would\nbe inconsistent with the distinction we made in Stadsvold\nbetween the \xe2\x80\x9cpractical difficulties\xe2\x80\x9d and \xe2\x80\x9chardship\xe2\x80\x9d\nstandards. The legislature defined the \xe2\x80\x9chardship\xe2\x80\x9d standard\nin the county statute the same way it defined the \xe2\x80\x9cundue\nhardship\xe2\x80\x9d standard in the municipal statute. Because the\nlegislature used the same language in both the county and\ncity variance statutes when defining \xe2\x80\x9chardship,\xe2\x80\x9d our\nanalysis in Stadsvold requires us to conclude that the \xe2\x80\x9cundue\nhardship\xe2\x80\x9d standard in Minn.Stat. \xc2\xa7 462.357, subd. 6, is\nmore demanding than the \xe2\x80\x9cpractical difficulties\xe2\x80\x9d standard\nthe court of appeals appears to have relied on in Rowell, 446\nN.W.2d at 922.\nMoreover, with respect to the \xe2\x80\x9cpractical difficulties\xe2\x80\x9d\nstandard, we identified in Stadsvold several factors the\ncounty should consider in assessing whether that standard\nwas met:\n(1) how substantial the variation is in\nrelation to the requirement; (2) the\neffect the variance would have on\ngovernment services; (3) whether the\nvariance will effect a substantial\nchange in the character of the\nneighborhood or will be a substantial\ndetriment to neighboring properties;\n(4) whether the practical difficulty can\nbe alleviated by a feasible method\nother than a variance; (5) how the\npractical difficulty occurred, including\nwhether the landowner created the\nneed for the variance; and (6) whether,\n\n59\n\n\x0cin light of all of the above factors,\nallowing the variance will serve the\ninterests of justice.\n754 N.W.2d at 331 (footnote omitted). Rowell\xe2\x80\x99s\ninterpretation of the \xe2\x80\x9cundue hardship\xe2\x80\x9d standard, requiring\nonly that the proposed use be \xe2\x80\x9creasonable,\xe2\x80\x9d would render\nthe \xe2\x80\x9cundue hardship\xe2\x80\x9d standard in section 462.357 less\nstringent than the \xe2\x80\x9cpractical difficulties\xe2\x80\x9d standard and\nmuch less stringent than the \xe2\x80\x9cparticular hardship\xe2\x80\x9d standard\nin the county variance statute, which the \xe2\x80\x9cundue hardship\xe2\x80\x9d\nstandard appears to parallel. See Stadsvold, 754 N.W.2d at\n331. In short, our analysis in Stadsvold simply does not leave\nroom for the Rowell \xe2\x80\x9creasonable manner\xe2\x80\x9d standard.\nWe recognize that the standard we apply today, while\nfollowed elsewhere, is not the universal rule.2 For example,\nin Simplex Technologies, Inc. v. Town of Newington, 145 N.H.\n727, 766 A.2d 713 (2001), the New Hampshire Supreme\nCourt provided a thorough and insightful review of the\ndevelopment of land use variance law, and its practical\nconstruction in modern times. The New Hampshire statute\ndid not contain a specific definition of \xe2\x80\x9cunnecessary\nhardship,\xe2\x80\x9d like our statute does, and the court concluded\nthat its prior definition of the statutory term \xe2\x80\x9cunnecessary\nhardship\xe2\x80\x9d \xe2\x80\x9cha[d] become too restrictive in light of the\nconstitutional protections by which it must be tempered.\xe2\x80\x9d\nId. at 717. The New Hampshire Supreme Court framed the\nissue in the following terms:\nInevitably and necessarily there is a\ntension between zoning ordinances\nand property rights, as courts balance\nWhile most jurisdictions use the phrase \xe2\x80\x9cunnecessary hardship\xe2\x80\x9d rather than\n\xe2\x80\x9cundue hardship\xe2\x80\x9d as the applicable standard, many jurisdictions appear to require\nthat the variance applicant establish real hardship if the variance is denied rather\nthan simply requiring that the applicant show the reasonableness of the proposed\nuse. [citations omitted]\n2\n\n60\n\n\x0cthe right of citizens to the enjoyment\nof private property with the right of\nmunicipalities to restrict property use.\nIn\nthis\nbalancing\nprocess,\nconstitutional property rights must be\nrespected and protected from\nunreasonable zoning restrictions.\nId. at 716-17. In light of these considerations, the New\nHampshire Supreme Court said that \xe2\x80\x9cunnecessary\nhardship\xe2\x80\x9d would, in the future, be established when a\nlandowner showed that (1) a zoning restriction as applied\ninterferes with a reasonable use of the property,\nconsidering the unique setting of the property in its\nenvironment; (2) no fair and substantial relationship exists\nbetween the general purposes of the zoning ordinance and\nthe specific restriction on the property; and (3) the variance\nwould not injure the public or private rights of others. Id. at\n717.\nHad the Minnesota Legislature not defined \xe2\x80\x9cundue\nhardship\xe2\x80\x9d in Minn.Stat. \xc2\xa7 462.357, subd. 6, we might\nconsider the approach articulated in Simplex. A flexible\nvariance standard allows municipalities to make modest\nadjustments to the detailed application of a regulatory\nscheme when a zoning ordinance imposes significant\nburdens on an individual, and relief can be fashioned\nwithout harm to the neighbors, the community, or the\noverall purposes of the ordinance. See David W. Owens,\nThe Zoning Variance: Reappraisal and Recommendations for Reform\nof a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 317\n(2004) (\xe2\x80\x9cIf the variance power is to be used both as a\nconstitutional safeguard and as a tool for flexibility, zoning\nenabling acts and local ordinances should be amended to\ndelineate these two purposes and set different standards for\neach. The failure to make such a distinction underlies much\nof the past controversy regarding variances. Courts and\ncommentators have traditionally viewed the variances as\n\n61\n\n\x0cthe former\xe2\x80\x93a very limited tool for avoidance of\nconstitutional infirmity in extraordinary cases. Most\nvariance petitions, and consequently most board of\nadjustment decision-making, have viewed the variances as\nthe latter\xe2\x80\x93a tool to provide flexible implementation rather\nthan constitutional infirmity.\xe2\x80\x9d).\nWe recognize that the Rowell \xe2\x80\x9creasonable manner\xe2\x80\x9d standard\nrepresents a longstanding interpretation of the undue\nhardship standard in Minn.Stat. \xc2\xa7 462.357, subd. 6, and that\nMinnesota municipalities have been granting variances\nunder the \xe2\x80\x9creasonable manner\xe2\x80\x9d standard for many years.\nWe also recognize that our decision will result in a\nrestriction on a municipality\xe2\x80\x99s authority to grant variances\nas compared with the \xe2\x80\x9creasonable manner\xe2\x80\x9d standard. But\nwhatever value we may find in a more flexible standard,\nparticularly with regard to area variances, we cannot ignore\nthe plain language of the statute. See State v. Peck, 773\nN.W.2d 768, 773 (Minn. 2009) (\xe2\x80\x9cWe have no opportunity\nto ignore part of the legislature\xe2\x80\x99s definition.\xe2\x80\x9d). We are\nunable to interpret the statutory language to mean anything\nother than what the text clearly says\xe2\x80\x93that to obtain a\nmunicipal variance, an applicant must establish that \xe2\x80\x9cthe\nproperty in question cannot be put to a reasonable use if\nused under conditions allowed by the official controls.\xe2\x80\x9d\nMinn.Stat. \xc2\xa7 462.357, subd. 6. Therefore, unless and until\nthe legislature takes action to provide a more flexible\nvariance standard for municipalities, we are constrained by\nthe language of the statute to hold that a municipality does\nnot have the authority to grant a variance unless the\napplicant can show that her property cannot be put to a\nreasonable use without the variance.\nBased on the plain language of the statute, and our\nprecedent interpreting language similar to \xe2\x80\x9cundue\nhardship\xe2\x80\x9d in the context of a local government\xe2\x80\x99s authority\nto grant variances, we reject the \xe2\x80\x9creasonable manner\xe2\x80\x9d\nstandard from Rowell. We hold that the City inaccurately\n\n62\n\n\x0capplied the first factor in the \xe2\x80\x9cundue hardship\xe2\x80\x9d definition\nof Minn.Stat. \xc2\xa7 462.357, subd. 6. Our resolution of this\nissue makes it unnecessary for us to resolve the other issues\nKrummenacher raises on appeal.\n\xe2\x80\xa6 . We reverse and remand the matter to the City for\nrenewed consideration of Liebeler\xe2\x80\x99s variance request in\nlight of our rejection of the \xe2\x80\x9creasonable manner\xe2\x80\x9d\nstandard\nfrom\nRowell.\n2.3. Special Use Permits\nJones v. City of Carbondale\n576 N.E.2d 909 (1991)\nPaul G. Schoen, Michael F. Dahlen, John S. Rendleman,\nIII, Feirich, Schoen, Mager, Green, Carbondale, for\nplaintiff-appellant.\nPatricia S. McMeen, Gilbert, Kimmel, Huffman & Prosser,\nLtd., Carbondale, for defendant-appellee.\nJUSTICE CHAPMAN delivered the opinion of the court:\nHill House, Inc., filed an application with the City of\nCarbondale (City) for a special use permit on May 30, 1989.\nThereafter, William Jones filed a petition seeking to invoke\nthe provisions of section 11-13-14 of the Illinois Municipal\nCode which provides in pertinent part:\n\xe2\x80\x9cIn case of a written protest against\nany proposed amendment of the\nregulations or districts, signed and\nacknowledged by * * * the owners of\n20% of the frontage immediately\nadjoining the frontage proposed to be\naltered, is [sic] filed with the clerk of\nthe municipality, the amendment shall\nnot be passed except by a favorable\nvote of two-thirds of the aldermen or\ntrustees of the municipality then\n\n63\n\n\x0cholding office.\xe2\x80\x9d (Ill.Rev.Stat.1989, ch.\n24, par. 11-13-14.)\nThe city council took no formal action on Jones\xe2\x80\x99 petition as\nit determined that section 11-13-14 was inapplicable to the\ngrant of a special use permit. On July 3, 1989, the city\ncouncil, by a simple majority, adopted a resolution which\ngranted the special use request submitted by Hill House,\nInc.\nJones then filed a two-count complaint for declaratory\njudgment in the circuit court. This appeal concerns the\ndisposition of count I; therefore, we will limit our\ndiscussion to that count.\nIn count I, Jones requested that the court: (1) declare the\nrights of the plaintiff to invoke the provisions of section\n11-13-14 of the Municipal Code; (2) declare the grant of the\nspecial use null and void; and (3) enjoin the City of\nCarbondale from issuing the special use certificate. In its\nanswer to the complaint, the city admitted: (1) that the\nobjection was filed by the requisite percentage of frontage\nowners; (2) that the city council took no formal action on\nJones\xe2\x80\x99 petition invoking the two-thirds majority provision\nof section 11-13-14; and (3) that the city council approved\nthe special use certificate by a vote of three in favor and\ntwo opposed.\nThereafter, Jones filed a motion for summary judgment as\nto both counts of his complaint. The city responded that\nthe granting of the special use was not a violation of either\nsection 11-13-14 of the Municipal Code or section 15-295.E of the Carbondale Revised Code because neither\nsection is applicable to a request for a special use permit.\nThe circuit court denied Jones\xe2\x80\x99 motion for summary\njudgment as to counts I and II. Jones thereupon requested\na finding of appealable interlocutory order as to count I of\nhis complaint, pursuant to Supreme Court Rule 308 (134\n\n64\n\n\x0cIll.2d R. 308). On May 8, 1990, the circuit court entered an\norder identifying the issue pursuant to Rule 308 as follows:\n\xe2\x80\x9cWhether the grant of a special use\npermit for property uses which are not\nprincipal permitted uses is an\namendment to the regulations or\ndistricts as contemplated by Section\n11-13-14 of the Municipal Code\nproviding for the requirement of\npassage by extra ordinary [sic]\nmajorities of the zoning authority.\xe2\x80\x9d\n\xe2\x80\xa6.\nZoning ordinances typically provide three mechanisms to\naccommodate circumstances for which the generalized\nordinance regulatory scheme is imperfect: the variance,\nzoning amendment, and special use permit. (Connor,\nZoning, in Illinois Municipal Law ch. 10, \xc2\xa7 10.16 (Ill.Inst. for\nContLegal Educ.1978).) While these tools are similar in that\nthey all deviate from the principal permitted uses of a\nzoning ordinance, they differ in their scope and purpose.\nA variance is a grant of relief to an owner from the literal\nrequirements of the ordinance where literal enforcement\nwould cause him undue hardship. (City of Clinton v. Glasson\n(1976), 35 Ill.App.3d 745, 748, 342 N.E.2d 229, 231.) It has\nbeen recognized that because the special use may have the\nsame impact upon neighboring property as a variance,\nprocedural safeguards similar to those prescribed for\nvariances might be desirable for special uses as well. (Kotrich\nv. County of Du Page (1960), 19 Ill.2d 181, 187, 166 N.E.2d\n601, 605.) However, the supreme court determined that the\nprocedural requirements for variances are not, without\nlegislative directive, imposed upon special uses. See Kotrich,\n19 Ill.2d at 188,166 N.E.2d at 605.\nAn amendment to a zoning ordinance changes or alters the\noriginal ordinance or some of its provisions. (Athey v. City of\n\n65\n\n\x0cPeru (1974), 22 Ill.App.3d 363, 367, 317 N.E.2d 294, 297.)\nIn the instant case Jones argues that because the special use\nauthorizes use of the property contrary to the ordinance, it\nis an amendment and the voting requirements attendant to\nan amendment apply. We disagree.\nThe ordinance at issue in this case is set forth in section 152-24 of the Carbondale Revised Code:\n\xe2\x80\x9cA. Statement of Intent: This district is\ncreated to provide land for purposes\ndevoted primarily to the production of\nagricultural products such as field\ncrops, livestock, fowl and other\nconventional agricultural pursuits.\nOther limited compatible uses are also\npermitted. This district is also created\nto assist in the conservation of the\nnatural\nresources\nwithin\nthe\njurisdiction of this Article by\nencouraging practices which will\nconserve soil, * * *. Uses not related to\nagriculture are discouraged. When the\npublic interest will be served and only\nwhen a contribution will be made to\norderly growth, portions of this district\nmay be rezoned for alternative uses.\nB. Permitted Principal Uses and\nStructures:\n1. all agricultural uses\n2. cemeteries\n3. churches[.]\n******\nC. Permitted Accessory Uses and\nStructures: Accessory uses and\n\n66\n\n\x0cstructures customarily incidental to\npermitted principal uses and on the\nsame parcel, including but not limited\nto:\n1. market facilities for sale of\nproducts grown on the\npremises\n2. artificial lakes[.]\n******\nD. Special Uses: After a public hearing\nbefore the Planning Commission, the\nCity Council may permit as special\nuses the following uses which are\nsubject to: (a) the \xe2\x80\x9cProcedures\xe2\x80\x9d as\nprescribed in 15-2-57; (b) the lot area,\nlot width, yards, and height limitations\nof this district unless specified\notherwise in the special use; (c) the\nperformance standards as prescribed in\nthis district for each special use (if\nany):\n1. commercial agricultural\nstorage operation\n2. commercial fishing,\nhunting lodge, gun club or\nrelated operation\n3. drive-in theater\n4. licensed home or\ninstitution which provides\nfor the care or custody or\neducation or welfare of\npersons, not including\nhospitals\n\n67\n\n\x0c******\n(Carbondale Revised Code (1990), section 15-2-24.)\nWe note that while the \xe2\x80\x9cstatement of intent\xe2\x80\x9d recommends\nthat the zoning district be used primarily for agricultural\nendeavors, the ordinance provides not only for permitted\nand accessory principal uses, but also provides for specific\nspecial uses.\nA special use is a permission by the Board to an owner to\nuse his property in a manner contrary to the ordinance\nprovided that the intended use is one of those specifically\nlisted in the ordinance and provided that the public\nconvenience will be served by the use. (Parkview Colonial\nManor Investment Corp. v. Board of Zoning Appeals of O\xe2\x80\x99Fallon\n(1979), 70 Ill.App.3d 577, 581, 26 Ill.Dec. 876, 878, 388\nN.E.2d 877, 879, citing Rosenfeld v. Zoning Board of Appeals of\nChicago (1958), 19 Ill.App.2d 447, 450, 154 N.E.2d 323,\n325.) As stated in Parkview:\n\xe2\x80\x9cWhere special exception uses are\nprovided for, they have their genesis in the\nordinance and the body to which the\npower of administering them is\ndelegated[] must look to the terms of\nthe ordinance itself for the measure of\nits power.\xe2\x80\x9d (Emphasis added.)\n(Parkview, 70 Ill.App.3d at 581, 26\nIll.Dec. at 878, 388 N.E.2d at 879.)\nThe very nature of a special use, whose origins come from\nthe ordinance itself, is contrasted sharply with the essence\nof an amendment\xe2\x80\x99s nature. A permitted special use\nauthorizes a use of the land pursuant to the existing zoning\nordinance. No change or alteration in the ordinance itself is\nrequired in order to effect a special use. When the special\nuse was granted in this case, section 15-2-24 of the\nCarbondale Revised Code was neither altered nor repealed.\nRather, the only action necessary was the invocation of that\n\n68\n\n\x0cportion of the ordinance which listed the permissible\nspecial uses.\nJones points out that the resolution adopted by the city\ngranting the special use requires the applicant to comply\nwith four conditions, none of which are contained within\nthe ordinance. The resolution requires that: (1) the city be\ngiven site plan approval; (2) building construction be done\nin accordance with Illinois and Carbondale building codes;\n(3) the applicant must connect to city water and sanitary\nsewer mains; and (4) the applicant must dedicate land to\nallow for street improvements. Jones argues that the city\nhas clearly amended the zoning regulations by imposing\nrequirements which are not otherwise imposed on other\nlandowners within the zoning district.\nThe Illinois Municipal Code provides in part that:\n\xe2\x80\x9ca special use shall be permitted only\nupon evidence that such use meets\nstandards established for such\nclassification in the ordinances, and\nthe granting of permission therefor\nmay be subject to conditions\nreasonably necessary to meet such\nstandards. * * *\xe2\x80\x9d (Ill.Rev.Stat. 1989, ch.\n24, par. 11-13-1.1.)\nThe ordinance at issue provides that a special use may be\npermitted subject to:\n\xe2\x80\x9c(a) the \xe2\x80\x9cProcedures\xe2\x80\x9d as prescribed in\n15-2-57; (b) the lot area, lot width,\nyards, and height limitations of this\ndistrict unless specified otherwise in\nthe special use; (c) the performance\nstandards as prescribed in this district\nfor each special use * * *\xe2\x80\x9d.\n(Carbondale Revised Code (1990),\nsection 15-2-24(D).)\n\n69\n\n\x0cWe have reviewed the procedures as prescribed in section\n15-2-57 of the Carbondale Revised Code and do not find\nthe four conditions imposed upon the special use applicant\ncontrary to the performance standards which are provided\nin \xe2\x80\x98section 15-2-57. Because the plaintiff has otherwise\nfailed to demonstrate how the four conditions imposed\nupon the special use applicant are not reasonably necessary\nto meet the standards as provided in the ordinance\n(Ill.Rev.Stat.1989, ch. 24, par. 11-13-1.1), we cannot find\nthat the imposition of the conditions constitute an\namendment of the ordinance.\n\xe2\x80\xa6.\nIn conclusion, we find that the grant of a special use permit\nfor property uses which are not principal permitted uses is\nnot an amendment to the regulations or districts as\ncontemplated by section 11-13-14 of the Municipal Code\nand does not require passage by extraordinary majorities of\nthe zoning authority.\nAffirmed.\nFSL Corp. v. Harrington\n262 Ga. 725 (1993)\nSchreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling,\nfor appellant.\nMcVay & Stubbs, Robert S. Stubbs III, for appellees.\nCLARKE, CHIEF JUSTICE.\nThe Superior Court of Forsyth County denied appellant\nFSL\xe2\x80\x99s petition for mandamus to require the Board of\nCommissioners (the Board) of Forsyth County to approve\na special-use permit for a sanitary landfill. Because the\nzoning ordinance authorizing the permit provides no\nascertainable limits on the Board\xe2\x80\x99s discretion to grant or\ndeny applications, we reverse the trial court\xe2\x80\x99s order.\n\n70\n\n\x0cFSL contracted to purchase property zoned for agricultural\nuse located in Forsyth County next to the county landfill in\na sparsely populated area along the Etowah River. The\nEtowah is a source of drinking water for the county. A\ncounty ordinance allows property zoned for agriculture to\nbe used as a sanitary landfill if a special-use permit is\nobtained from the Board after review by the County Health\nOfficer and the Forsyth County Planning Commission\n(Commission).\nAppellant FSL filed an application with the Forsyth County\nDepartment of Planning and Development on December\n20, 1991, for a special-use permit for a sanitary landfill. The\nCommission considered FSL\xe2\x80\x99s application at a public\nhearing on January 28, 1992. After the hearing, in which\nmany citizens expressed their disapproval, the Commission\nunanimously recommended the denial of the application.\nThe Board unanimously denied the application on February\n24, 1992.\nIn response to the denial of the application, FSL filed a\npetition for mandamus with the Superior Court of Forsyth\nCounty on March 24, 1992. FSL alleged that the Board\nbased its denial on an unconstitutionally vague ordinance\nthat provides no limits on the Board\xe2\x80\x99s discretion. The court\ndenied appellant\xe2\x80\x99s petition on May 27, 1992. We granted\nFSL\xe2\x80\x99s application for discretionary appeal on June 30, 1992.\nSection 14-1.1 (k) by itself lacks any objective criteria for\napproval of a special-use permit. Appellee argues that the\npreamble to the Comprehensive Zoning and Land Use\nResolution and Ordinance of Forsyth County contains the\ngeneral goals of the ordinance. The preamble provides as\nfollows:\nWHEREAS\nthe\nBoard\nof\nCommissioners wishes to lessen\ncongestion\nin\nthe\npublic\nthoroughfares, fire and health dangers,\n\n71\n\n\x0cand soil erosion and sedimentation;\nand\nWHEREAS\nthe\nBoard\nof\nCommissioners wishes to assure\nadequate light and air, and the sound\ndevelopment and use of land which\nprovides adequate transportation,\nwater supply, drainage, sanitation,\neducational\nopportunity\nand\nrecreation; and\nWHEREAS\nthe\nBoard\nof\nCommissioners wishes to classify land\nuses and the distribution of and uses;\nand\nWHEREAS\nthe\nBoard\nof\nCommissioners wishes to provide for\neconomically sound and stable land\ndevelopment by assuring the provision\nin land developments of adequate\nstreets, utilities, services, traffic access\nand circulation, public open spaces\nand maintenance continuity; and\nWHEREAS\nthe\nBoard\nof\nCommissioners wishes to assure\ncompliance with a comprehensive plan\n\xe2\x80\xa6\nThe appellee relies on the case of Phillips v. Mills, Civil\nAction No. 86-15,138 (May 29, 1986, Superior Court of\nForsyth County), aff\xe2\x80\x99d without opinion, 256 Ga. XXVIII\n(1987). The trial court in Phillips found that this preamble\ncontained sufficient guidelines for the Board and upheld\nthe ordinance against a vagueness challenge. In Dinsmore\nDev. Co. v. Cherokee County, 260 Ga. 727 (398 SE2d 539)\n(1990), we found that a purpose statement similar to this\npreamble contained no objective criteria upon which the\n\n72\n\n\x0czoning board could base its decision. We therefore reversed\nthe trial court\xe2\x80\x99s denial of mandamus. We hold that Dinsmore\nis controlling. The preamble to the ordinance \xe2\x80\x9ccontains\nonly a statement of general goals and purposes, and\nprovides no criteria to govern the [Board\xe2\x80\x99s] determination.\xe2\x80\x9d\nDinsmore, supra at 729. Provided all other requirements\nhave been met, appellant is entitled to approval for the\nspecial-use permit it seeks.\nNote\nSome other jurisdictions allow very broad discretion in ordinances\nproviding for special use permits. The Wisconsin Supreme Court,\nin Weber v. Town of Saukville (quotation marks and citations omitted),\nexplained:\n[C]onditional use standards often lack\nspecificity, since their purpose is to\nconfer a degree of flexibility in the\nland use regulations.\nIf it were possible to find a\nlegislative draftsman capable of\nperforming such a task\xe2\x80\x94of\ndrafting standards to govern the\nlikely as well as all possible\ncontingencies relating to a\nconditional use\xe2\x80\x94there would be\nno need to make the use a\nconditional one. In that case they\ncould be made part of the zoning\nordinance proper requiring no\nexercise of discretion on the part\nof anyone\xe2\x80\xa6 . If the purposes of\nzoning are to be accomplished,\nthe master zoning restrictions or\nstandards must be definite while\nthe provisions pertaining to a\nconditional\nuse\xe2\x80\xa6must\nof\nnecessity be broad and permit an\nexercise of discretion.\n\n73\n\n\x0c3 Edward H. Ziegler, Jr., Rathkopf\xe2\x80\x99s The Law of Zoning and\nPlanning \xc2\xa7 41.11, at 49 (4th ed. 1996).\n2.4. Comprehensive Planning\nHector v. City of Fargo\n760 N.W.2d 108 (N.D. 2009)\nJonathan T. Garaas, Garaas Law Firm, DeMores Office\nPark, Fargo, ND, for petitioners and appellants.\nMike Miller (argued) and Stacey Tjon Bossart (appeared),\nAssistant City Attorneys, Fargo, ND, for respondent and\nappellee.\nVANDE WALLE, CHIEF JUSTICE.\nFred and Earlyne Hector appealed from a district court\njudgment affirming the decision of the Fargo City\nCommission to deny their application for zoning map\namendments and growth plan modifications regarding their\nproperty located in south Fargo. We affirm, holding the\nCity did not act arbitrarily, capriciously or unreasonably\nwhen it denied the Hectors\xe2\x80\x99 zoning request. Furthermore,\nwe hold the district court did not err when it found the City\nhad adopted a comprehensive plan as required by N.D.C.C.\ns 40-47-03, and the City did not engage in illegal contract\nzoning with the Hectors.\n\xe2\x80\xa6.\nThe Hectors argue the City of Fargo violated North\nDakota statutes by not having a comprehensive plan for its\nzoning regulations. Specifically, the Hectors assert that, by\nthe absence of such a plan, there exists no properly\npromulgated set of standards by which to measure the\nactions of the City when making zoning decisions. The\nHectors further argue that no such comprehensive plan was\npassed under the required statutory procedures.\nSection 40-47-01, N.D.C.C., states that the governing body\nof a city may pass zoning regulations to promote the health,\n\n74\n\n\x0csafety, morals or general welfare of the community. The\nCode further dictates that such regulations:\n[B]e\nmade\nwith\nreasonable\nconsideration as to the character of\neach district and its peculiar suitability\nfor particular uses with a view to\nconserving the value of buildings and\nencouraging the most appropriate use\nof land throughout the city. The\ncomprehensive plan shall be a\nstatement in documented text setting\nforth explicit goals, objectives, policies,\nand standards of the jurisdiction to\nguide public and private development\nwithin its control.\nN.D.C.C. s 40-47-03 (2008). Zoning regulations must also\ngo through several formal procedures to be effective,\nincluding: copies of proposed regulations must be filed\nwith the city auditor, a public hearing must be held on the\nregulations, and notice of passed regulations must be\npublished in the official newspaper of the city. N.D.C.C. s\n40-47-04.\nHere, the City of Fargo points to a list of over 80 policy\nstatements as containing the goals, objectives, and\nstandards of the City pertaining to zoning regulations. This\nlist, called the \xe2\x80\x9cComprehensive Policy Plan,\xe2\x80\x9d provides\ndetailed plans for the Fargo community. However, the City\nof Fargo adopted the Policy Plan as a resolution rather than\nas an ordinance. This Court has previously noted the\ninformal nature of resolutions, and the tendency of such\nacts to fall short of establishing a formal, permanent rule of\ngovernment. See Mitchell v. City of Parshall, 108 N.W.2d\n12, 13-14 (N.D.1961) (reviewing the \xe2\x80\x9ctemporary\xe2\x80\x9d nature of\nresolutions which are generally in the form of the\nmunicipality or official body\xe2\x80\x99s opinions rather than binding\nlaw). Regardless of the stricture of the Policy Plan\xe2\x80\x99s\n\n75\n\n\x0cpassage, the policy statements embodied within the Plan\nwere later codified in Fargo\xe2\x80\x99s Land Development Code.\nThe Land Development Code satisfies the procedural\nguidelines set forth by N.D.C.C. s 40-47-04, and, like the\nPolicy Plan, contains the standards by which the City of\nFargo must adhere when making zoning decisions.\nIncluded within its provisions, the Land Development\nCode spells out what Fargo may do when zoning in extraterritorial areas (FMC s 20-0108), and denotes what\nactivities and buildings are permitted in certain zoning areas\n(FMC s 20-0401). When the Land Development Code\nrequires a land use to conform to specific standards, very\nstrict criteria must be met by any potential user. See FMC s\n20-0402 (setting out use-specific standards for several uses,\nincluding off-premise advertising signs, day care, religious\ninstitutions and adult entertainment centers). Furthermore,\nit was the Land Development Code which the Planning\nDepartment staff relied upon in its analysis recommending\ndenial of the Hectors\xe2\x80\x99 proposed amendments, which was\nthen relied upon by the City Commission when it denied\nthe Hectors\xe2\x80\x99 application.\nThrough its detailed standards and restrictions, the Land\nDevelopment Code formulates a comprehensive plan\nwhich informs builders and landowners of their rights and\nthe boundaries within which they must work when\nplanning their land use. The City of Fargo has complied\nwith the requirements of N.D.C.C. ss 40-47-03 and 40-4704.\n\xe2\x80\xa6.\nWolf v. City of Ely\n493 N.W.2d 846 (1992)\nRobert S. Hatala of Crawford, Sullivan, Read, Roemerman\n& Brady, P.C., Cedar Rapids, for appellant.\nGary J. Shea of Shea Law Offices, Cedar Rapids, for\nappellees.\n\n76\n\n\x0cConsidered en banc.\nANDREASEN, JUSTICE.\n\xe2\x80\xa6.\nJohn and Pat Wolf own three connecting parcels of land in\nor adjacent to the City of Ely that have been identified as\nparcels A, B and C. The Wolfs operate a salvage or\njunkyard on their property. Parcel A is located in an area\nthat was zoned manufacturing; parcel B is located in an area\nzoned commercial; and parcel C is located in an area zoned\nresidential or agricultural.\nOn May 6, 1987, Ely brought an action to enjoin the Wolfs\nfrom operating a salvage yard on parcel A. City of Ely v. John\nand Pat Wolf, Linn County, EQ 10962. On October 23,\n1989, district judge Paul J. Kilburg entered a decree\ninvalidating Ely\xe2\x80\x99s manufacturing (M-1) zoning classification\nand denying the City\xe2\x80\x99s request for injunctive relief. The\ncourt held the M-1 classification was invalid because the\n1978 ordinance constituted exclusionary zoning and was\nnot promulgated pursuant to a comprehensive plan as\nrequired by Iowa Code section 414.3 (1977). No appeal was\ntaken from the court\xe2\x80\x99s judgment.\nThe Wolfs filed the present action on April 9, 1990, seeking\na court judgment declaring the entire zoning ordinance\ninvalid and their use of their property (parcels A, B and C)\nlawful.1 The Wolfs allege the entire zoning ordinance is\ninvalid for two reasons. First, it was not adopted in\naccordance with a comprehensive plan. Second, it is\noverbroad and exclusionary in violation of their\nconstitutional due process rights.\nFollowing trial, district judge Thomas M. Horan entered a\nruling and judgment on June 3, 1991. The court concluded\nBecause no appeal was taken by the Wolfs from the district court judgment, we\nneed not address their request for issuance of a writ of mandamus contained in\ncount II of their petition.\n1\n\n77\n\n\x0cthe \xe2\x80\x9cordinance was not made in accordance with a\ncomprehensive plan as required by Section 414.3, the\nCode.\xe2\x80\x9d Accordingly, the court declared Ely\xe2\x80\x99s entire zoning\nordinance invalid.\n\xe2\x80\xa6.\nIt is said:\nComprehensive zoning is general\nzoning throughout a municipality\naccording to a comprehensive plan to\ncontrol and direct the use and\ndevelopment of property in the area by\ndividing it into districts according to\npresent and potential uses.\nBrackett v. City of Des Moines, 246 Iowa 249, 257-58, 67\nN.W.2d 542, 546 (1954). Iowa Code section 414.3 requires\nthat zoning regulations \xe2\x80\x9cshall be made in accordance with a\ncomprehensive plan.\xe2\x80\x9d The requirement of a comprehensive\nplan is found in the zoning law of those states that have\ntaken the standard state zoning enabling act as their model.\nVestal, Iowa Land Use and Zoning Law \xc2\xa7 3.01(d) (1979). The\nact was first drafted in the early 1920s and was adopted in\nwhole or in part by thirty-five states. Id. at n. 19. The act\ndid not define the term comprehensive plan.\nA majority of courts in states where zoning must be \xe2\x80\x9cin\naccordance with a comprehensive plan\xe2\x80\x9d hold a plan\nexternal to the zoning ordinance is not required. 2 The\nAmerican Law of Real Property, Planning and Zoning \xc2\xa7 12.02\n(1991). However, an increasing number of legislatures\nspecifically require that a plan be adopted. Id. The\n\xe2\x80\x9ccomprehensive plan\xe2\x80\x9d requirement was imposed to prevent\npiecemeal and haphazard zoning. Standard State Zoning\nEnabling Act (United States Department of Commerce, \xc2\xa7 3\nn. 22 (1922)). The word \xe2\x80\x9cplan\xe2\x80\x9d connotes an integrated\nproduct of a rational process; the word \xe2\x80\x9ccomprehensive\xe2\x80\x9d\nrequires something beyond a piecemeal approach. Kozesnik\n\n78\n\n\x0cv. Township of Montgomery, 24 N.J. 154, 166, 131 A.2d 1, 7\n(1957). We have suggested the purpose of a comprehensive\nplan is \xe2\x80\x9cto control and direct the use and development of\nproperty in the area by dividing it into districts according to\npresent and potential uses.\xe2\x80\x9d Plaza Recreation Ctr. v. Sioux\nCity, 253 Iowa 246, 258, 111 N.W.2d 758, 765 (1961); see\nalso Bell v. City of Elkhorn, 122 Wis.2d 558, 564-65, 364\nN.W.2d 144, 147 (1985) (list of objectives sought to be\nachieved through development of a comprehensive plan).\nIowa Code section 358A.5, relating to county zoning,\ncontains the identical requirement. In discussing this\nrequirement, we stated: \xe2\x80\x9cIf the Board gave full\nconsideration to the problem presented, including the\nneeds of the public, changing conditions, and the similarity\nof other land in the same area, then it has zoned in\naccordance with a comprehensive plan.\xe2\x80\x9d Montgomery v.\nBremer County Bd. of Supervisors, 299 N.W.2d 687, 695 (Iowa\n1980). The Iowa Court of Appeals commented, \xe2\x80\x9cnothing in\nChapter 358A requires a county to reduce a comprehensive\nplan to written form.\xe2\x80\x9d Webb v. Giltner, 468 N.W.2d 838, 840\n(Iowa App.1991). The comprehensive plan requirement is\nintended to ensure the county board acts rationally rather\nthan arbitrarily in exercising their delegated zoning\nauthority. Id. As suggested by the court of appeals, the\ngeneric standard in Montgomery would apply when a county\neither has no individualized comprehensive plan or has not\nreduced that plan to writing. Id.\nThe Wolfs challenged the 1978 zoning ordinance in both\nthe action brought by the City in 1987 and in their action\nagainst the City in 1990. In the 1991 decree, the district\ncourt concluded that a separate formal document called a\ncomprehensive plan was not required to validate the City\xe2\x80\x99s\nzoning ordinance. Nevertheless, the court found \xe2\x80\x9cthere is\nno evidence to indicate that the City engaged in any rational\nplanning before the adoption of the 1978 ordinance.\xe2\x80\x9d\n\n79\n\n\x0cThis declaratory judgment action was tried as an equitable\naction. Our scope of review is de novo. Iowa R.App.P. 4.\nIn our de novo review of the evidence, we carefully\nexamine the zoning ordinance and zoning map, the\ntestimony of witnesses who were involved in the adoption\nof the ordinances, and other relevant evidence.\nPrior to the adoption of the 1978 zoning ordinance, Ely\nhad established a planning and zoning commission. Under\na 1976 ordinance, the Ely planning and zoning commission\nhad authority to make such surveys, studies, maps, or plans\nwhich the commission believed bears a relation to the\ngeneral comprehensive plan. The ordinance provided for\nthe preparation of a comprehensive plan and directed that\nthe commission\nmake careful and comprehensive\nstudies of present conditions and\nfuture growth of the city and with due\nregard to its relation to neighboring\nterritory. The plan shall be made with\nthe general purpose of guiding and\naccomplishing\na\nco-ordinated,\nadjusted,\nand\nharmonious\ndevelopment of the city and its\nenvironments\nwhich\nwill,\nin\naccordance with the present and future\nneeds, best promote health, safety,\nmorals, order, convenience, prosperity,\nand general welfare, as well as\nefficiency and economy in the process\nof development.\nIt further provided that after adoption of a comprehensive\nplan by the commission an attested copy of the plan shall\nbe certified to the council. The council could then approve\nthe plan, and it would constitute the City\xe2\x80\x99s comprehensive\nplan. The City council could not take action until it had\n\n80\n\n\x0creceived the final report from the zoning commission. Iowa\nCode \xc2\xa7 414.6 (1977).\nContrary to the statutory and ordinance requirements, no\ncomprehensive plan was developed by the commission and\nappropriately presented to the council. At trial, Thomas M.\nTjelmeland, the mayor of Ely, admitted he was unaware of\nany written criteria used in development of the 1978 zoning\nordinance. He testified the comprehensive plan consisted\nof the City\xe2\x80\x99s zoning ordinance combined with its zoning\nmap. There were no other documents that he relied upon\nin interpreting the zoning ordinance.\nA councilman of the City testified that no single person had\nbeen designated as administrative officer responsible for\nthe administering of the zoning ordinance. The mayor and\nmembers of the Ely council would bring zoning matters to\nthe entire council on an ad hoc basis. The councilman\nfurther testified that, in making decisions as to whether a\nspecific use is allowed in a specific zone, he just listened,\nand if he thought it was right, he would go along with it.\nHe had not heard of a comprehensive zoning plan.\nThe City offered evidence that, in June of 1975, the Linn\nCounty Regional Planning Commission (county\ncommission) prepared a housing and community\ndevelopment study and a Linn County regional land use\npolicy plan. The study recommended Ely and other\nnonmetropolitan cities use the plan as a guide for future\ngrowth and development. Although mayor Tjelmeland\nrepresented the City of Ely on the county commission, he\ntestified he was unaware of any studies conducted when the\n1978 zoning ordinance was drafted. He was unaware of any\nwriting that set forth any proposed or future land use. He\ntestified the 1975 regional housing and land use policy\nplans were not used in any of Ely\xe2\x80\x99s planning or zoning\ndecisions.\n\n81\n\n\x0cThe 1978 zoning ordinance was developed by combining\ndifferent sections and provisions of two or more \xe2\x80\x9cmodel\xe2\x80\x9d\nmunicipal zoning ordinances. Throughout the ordinance,\nspecific provisions of the model ordinances were deleted,\nmarked \xe2\x80\x9comit\xe2\x80\x9d or additional provisions were added in\nlonghand. The ordinance established seven districts for\nspecific use: agricultural (A-1), residential (R-1, R-2, R-3),\ncommercial (C-1), industrial (M-1), and public (P-1). The\nordinance generally regulates the districts by identifying the\nprincipal permitted uses and special uses for each district.\nThe special uses are allowed only if the board of adjustment\nissues a special permit. The zoning ordinance refers to a\n\xe2\x80\x9czoning district map\xe2\x80\x9d that is made a part of the ordinance.\nAt least two, and possibly four, different zoning maps have\nbeen identified as the official city zoning map. The City\noffered a crayola-colored zoning map as the official zoning\nmap. This map was different than the zoning map\nidentified as Ely\xe2\x80\x99s official zoning map in the first trial in\n1989. One of the maps indicates the Wolfs\xe2\x80\x99 \xe2\x80\x9ctract C\xe2\x80\x9d was\nagricultural; the other indicates it was residential. The City\nacknowledges the 1978 zoning ordinance and zoning map\nhave not been officially amended, changed, modified, or\nrepealed.\nEly\xe2\x80\x99s zoning ordinance and zoning map do not suggest an\nintegrated product of rational planning. The ordinance\ncontains glaring omissions and serious structural problems.\nAlthough a significant portion of the land within the city\nlimits is identified as agricultural land, the zoning ordinance\nmakes no provisions regulating its use. Some words and\nterms that are defined in the ordinance are not used later in\nthe ordinance. Extensive provisions relating to mobile\nhomes are included in the definition section. Under the\nordinance provisions, mobile homes are permitted only in\nan approved mobile home park. However, a mobile home\npark is not a permitted use or special use in any of the\nseven districts. Junkyards are specifically defined, although\n\n82\n\n\x0cthey are not a permitted use or special use in any of the\ndistricts. In one part of the zoning ordinance, the City\nprohibits fences of over five feet; in another part it requires\na six-foot fence. The ordinance has twenty-eight separate\nparking classes for off-street parking, although the\npopulation of Ely was 275 in 1970 and 425 in 1980.\nThe structural problems in the zoning ordinance obviously\narose from a careless combining of two or more model\nordinances. Although such a clip-and-paste ordinance could\nproduce a valid ordinance if carefully and rationally\nprepared, here the structure and content of the ordinance\nsuggests a careless and irrational process was employed.\nOther evidence demonstrates the City\xe2\x80\x99s failure to adopt the\nzoning ordinance in accordance with a comprehensive plan.\nStudies and plans developed by the county commission in\n1975 were not considered by the council. The Ely Planning\nCommission failed to comply with the City ordinance\nrequirement that a comprehensive plan be certified to the\ncouncil as an attested copy of the plan. Although city\nrecords indicate the commission had presented a proposed\nzoning ordinance and zoning map in 1977, the records do\nnot identify the proposed ordinance and map. Because the\nofficial zoning map was not clearly identified, there was\nconfusion as to the limitation of uses to be applied to\ncertain parcels of land. Amendments or changes to the\nordinance and zoning map were reported in the city\nrecords, but council approval was made by resolution,\ncontrary to ordinance and statutory requirements.\nJudge Kilburg in his 1989 decree found there was no\ncomprehensive plan that would establish a basis for\nexcluding all junk or salvage yards within Ely\xe2\x80\x99s city limits.\nBased upon these deficiencies in the ordinance, the court\nstated: \xe2\x80\x9cIt is unfair to state that the City of Ely had at the\ntime of its passage, or has since had, a comprehensive plan\nin the M-1 district.\xe2\x80\x9d The court\xe2\x80\x99s observations have\napplication to the entire ordinance.\n\n83\n\n\x0cJudge Horan in his 1991 ruling and judgment found the\nevidence presented at trial indicates \xe2\x80\x9cvery little planning at\nbest.\xe2\x80\x9d We agree with the court\xe2\x80\x99s conclusion that the\nevidence failed to show any rational planning before the\nadoption of the 1978 zoning ordinance. We, like the district\ncourt, find the City failed to comply with the requirement\nthat zoning regulations be made in accordance with a\ncomprehensive plan. Therefore, we need not address the\nWolfs\xe2\x80\x99 argument that the ordinance validity issue was\nlitigated by the parties and decided by the court in its 1989\ndecree.\n\xe2\x80\xa6.\nAFFIRMED.\nAll Justices concur except LARSON, J., who dissents and is\njoined by HARRIS, J.\nLARSON, JUSTICE (dissenting).\nI dissent from Division III and the result.\nEly is a small town with limited financial resources, trying\nto maintain the aesthetic quality of a rural Iowa community.\nThis ruling unnecessarily frustrates that effort.\nOur cases hold, and the majority concedes, that no formal\nplan is required to satisfy the requirement of a\ncomprehensive plan as a prerequisite to zoning.\nEly\xe2\x80\x99s zoning ordinance is a part of a \xe2\x80\x9ccomprehensive\xe2\x80\x9d plan.\nDespite the informality of the plan, any reasonable reading\nof the town\xe2\x80\x99s ordinances, maps, and resolutions (which our\ncases say may constitute a comprehensive plan) should\nmake it clear: a junkyard in the middle of town was not to\nbe a part of its future development.\nI would reverse and remand.\nHARRIS, J., joins this dissent.\n\n84\n\n\x0cPinecrest Lakes, Inc. v. Shidel\n795 So.2d 191 (Fla. 2001)\nJack J. Aiello and Ernest A. Cox, III, of Gunster, Yoakley,\nValdes-Fauli & Stewart, P.A., West Palm Beach, for\nappellants.\nRichard Grosso, General Counsel, Environmental & Land\nUse Law Center, Fort Lauderdale, for appellee.\nStephen H. Grimes and Lawrence E. Sellers, Jr. of Holland\n& Knight, LLP., Tallahassee, for Amici Curiae, National\nAssociation of Home Builders, Florida Home Builders\nAssociation, Florida Association of Realtors, and\nAssociation of Florida Community Developers, Inc.\nMichael L. Rosen, Tallahassee, for Amicus Curiae, Florida\nLegal Foundation, Inc.\nTerrell K. Arline, Legal Director, Tallahassee, Thomas G.\nPelham, Kenneth J. Goldberg and Douglas W. Ackerman,\nTallahassee, for Amici Curiae, The Florida Chapter of the\nAmerican Planning Association, and 1000 Friends of\nFlorida, Inc.\nFARMER, J.\nThe ultimate issue raised in this case is unprecedented in\nFlorida. The question is whether a trial court has the\nauthority to order the complete demolition and removal of\nseveral multi-story buildings because the buildings are\ninconsistent with the County\xe2\x80\x99s comprehensive land use\nplan. We conclude that the court is so empowered and\naffirm the decision under review.\nSome twenty years ago, a developer11 purchased a 500-acre\nparcel of land in Martin County and set out to develop it in\nOriginally the developer was Pinecrest Lakes, Inc., the entity which planned and\nbuilt Phases One through Ten. In 1997, when we reversed the first appeal in this\ncase for a trial de novo, the corporation transferred title to Phase Ten to a limited\npartnership known as The Villas at Pinecrest Lakes. The trial court substituted the\nlimited partnership for the corporation as the developer. Consequently, when we\n1\n\n85\n\n\x0cphases. Development there is governed by the Martin\nCounty Comprehensive Plan (the Comprehensive Plan).2\nPhase One of the property was designated under the\nComprehensive Plan as \xe2\x80\x9cResidential Estate,\xe2\x80\x9d meaning\nsingle-family homes on individual lots with a maximum\ndensity of 2 units per acre (UPA). The Comprehensive Plan\nprovides that\n\xe2\x80\x9c[w]here single family structures\ncomprise the dominant structure type\nwithin these areas, new development\nof undeveloped abutting lands shall be\nrequired to include compatible structure\ntypes of land immediately adjacent to\nexisting single family development.\xe2\x80\x9d\n[e.s.]\nPhases One through Nine were developed as single-family\nhomes on individual lots in very low densities.\nThe subject of this litigation, Phase Ten, is a 21-acre parcel\nbetween Phase One and Jensen Beach Boulevard, a divided\nhighway designated both as \xe2\x80\x9cmajor\xe2\x80\x9d and \xe2\x80\x9carterial.\xe2\x80\x9d Phase\nTen was designated by the Comprehensive Plan as\n\xe2\x80\x9cMedium Density Residential\xe2\x80\x9d with a maximum of 8 UPA.\nThe developer sought approval of three different site plans\nbefore finally erecting the buildings that are the subject of\nthis litigation. In 1988, the developer first sought approval\nfor an initial scheme of 3-story apartment buildings with a\ndensity of just under 8 UPA. Karen Shidel, since 1986 an\nowner of a single-family residence in the adjoining area of\nPhase One, along with other residents, opposed the project\nuse the term \xe2\x80\x9cdeveloper\xe2\x80\x9d in this opinion, we refer either to the corporation or the\nlimited partnership or both as the context requires.\nSee \xc2\xa7 163.3167(2), Fla. Stat. (2000) (\xe2\x80\x9cEach local government shall prepare a\ncomprehensive plan of the type and in the manner set out in this act or shall\nprepare amendments to its existing comprehensive plan to conform it to the\nrequirements of this part in the manner set out in this part.\xe2\x80\x9d).\n2\n\n86\n\n\x0cproposed by the developer. This initial site plan for Phase\nTen was approved by the County but never acted upon.\nFive years later the developer changed the proposed\nscheme to single family residences, and the County\nCommission approved a revised site plan for 29 singlefamily homes with a density of 1.37 UPA. Two years after\nthat, however, the developer again changed its mind and\nreturned to its original concept of multi-family structures.\nThis time, the developer sought to develop 136 units in\ntwo-story buildings, with a density of 6.5 UPA. The\nCounty\xe2\x80\x99s growth management staff recommended that the\nCounty Commission approve this second revised site plan\nfor Phase Ten. Following a hearing at which a number of\npeople objected to the proposal, including Shidel, the\nCounty Commission approved the revision and issued a\nDevelopment Order3 for Phase Ten permitting the\nconstruction of 19 two-story buildings.\nClaiming statutory authority, Shidel and another Phase One\nhomeowner, one Charles Brooks, along with the\nHomeowners Associations for Phases One through Nine,\nthen filed a verified complaint with the Martin County\nCommission challenging the consistency of the\nDevelopment Order with the Comprehensive Plan,\nrequesting rescission of the Development Order.4 In\nSee \xc2\xa7 163.3164(7) and (8), Fla. Stat. (2000) (\xe2\x80\x9c\xe2\x80\x98Development permit\xe2\x80\x99 includes any\nbuilding permit, zoning permit, subdivision approval, rezoning, certification, special\nexception, variance, or any other official action of local government having the\neffect of permitting the development of land\xe2\x80\xa6. \xe2\x80\x98Development order\xe2\x80\x99 means any\norder granting, denying, or granting with conditions an application for a\ndevelopment permit.\xe2\x80\x9d).\n3\n\nSee \xc2\xa7 163.3215(4), Fla. Stat. (2000) (\xe2\x80\x9cAs a condition precedent to the institution of\nan action pursuant to this section, the complaining party shall first file a verified\ncomplaint with the local government whose actions are complained of, setting\nforth the facts upon which the complaint is based and the relief sought by the\ncomplaining party. The verified complaint shall be filed no later than 30 days after\nthe alleged inconsistent action has been taken. The local government receiving the\ncomplaint shall respond within 30 days after receipt of the complaint. Thereafter,\nthe complaining party may institute the action authorized in this section. However,\n4\n\n87\n\n\x0cresponse to the verified complaint, after a hearing the\nCounty Commission confirmed its previous decision to\nissue the Development Order.\nShidel and Brooks then filed a civil action in the Circuit\nCourt against Martin County under the same statutory\nauthority.5 They alleged that the Development Order was\ninconsistent with the Comprehensive Plan. The developer\nintervened. Shidel and Brooks argued that their statutory\nchallenge was a de novo proceeding in which the court\nshould decide in the first instance whether the\nDevelopment Order was consistent with the\nComprehensive Plan. Martin County and the developer\nargued that the proceeding was in the nature of appellate\nreview in which the County\xe2\x80\x99s determination was entitled to\ndeference and the court should consider only whether there\nwas substantial competent evidence supporting the\nDevelopment Order. Basing its decision solely on a review\nof the record created before the County Commission, the\ntrial court found that the Development Order was\nconsistent with the Comprehensive Plan and entered final\njudgment in favor of the developer.\nAt that point, the developer took stock of its position. It\nhad prevailed before the County Commission and\xe2\x80\x94at least\ninitially \xe2\x80\x94in the trial court. Technically, however, its\napproval for the project was not final. Developer\nconsidered whether to proceed to construct the buildings\nor instead await appellate review of the trial court\xe2\x80\x99s\ndecision. Ultimately the developer decided to commence\nthe action shall be instituted no later than 30 days after the expiration of the 30-day\nperiod which the local government has to take appropriate action.\xe2\x80\x9d).\nSee \xc2\xa7 163.3215(1), Fla. Stat. (1995) (\xe2\x80\x9cAny aggrieved or adversely affected party\nmay maintain an action for injunctive or other relief against any local government\nto prevent such local government from taking any action on a development order\n\xe2\x80\xa6 which materially alters the use or density or intensity of use on a particular piece\nof property that is not consistent with the comprehensive plan adopted under this\npart.\xe2\x80\x9d).\n5\n\n88\n\n\x0cconstruction, notwithstanding the pendency of an appeal.\nAccordingly, it applied for and received building permits\nfor construction of Buildings 8, 9, 10, 11 and 12, and\nstarted on each of those buildings while the case was under\nconsideration in court.6 When construction was just\nbeginning, Shidel and Brooks sent written notice to the\ndeveloper of their intention, should they prove successful\nin court, to seek demolition and removal of any\nconstruction undertaken while judicial consideration of the\nconsistency issue was pending.\nAppellate review did not produce the outcome for which\nthe developer had hoped. In 1997 we reversed the trial\ncourt\xe2\x80\x99s decision that the County\xe2\x80\x99s consistency\ndetermination complied with the Comprehensive Plan.\nPoulos v. Martin County, 700 So.2d 163 (Fla. 4th DCA 1997).\nSpecifically, we concluded that section 163.3215 required\nde novo consideration in the trial court on the consistency\nissue. Our opinion explained:\n\xe2\x80\x9cif section 163.3215 was intended to\nprovide for the circuit court to\nconduct an appellate review by\ncertiorari, then the statutory language\npermitting the filing of the action up\nto 90 days after the granting of the\ndevelopment order is in conflict with\nthe 30 day deadline outlined under the\nFlorida Rules of Appellate Procedure.\xe2\x80\x9d\n700 So.2d at 165. We further adopted an analysis by Judge\nWentworth as to the meaning of section 163.3215:\n\xe2\x80\x9cthe \xe2\x80\xa6 language in the statute \xe2\x80\xa6\nprovides only for a suit or action\nclearly contemplating an evidentiary\nWe express no view on the propriety of Martin County issuing building permits\nwhile the case was pending in court.\n6\n\n89\n\n\x0chearing before the court to determine\nthe consistency issue on its merits in\nthe light of the proceedings below but\nnot confined to the matters of record\nin such proceedings.\xe2\x80\x9d\n700 So.2d at 166 (quoting from Gregory v. City of Alachua,\n553 So.2d 206, 211 (Fla. 1st DCA 1989) (Wentworth, J.,\ndissenting)). We remanded the case for a trial de novo and\nfor any appropriate relief.\nOn remand, the trial judge7 proceeded in two stages: the\nfirst stage involved a determination whether the\nDevelopment Order was consistent with the\nComprehensive Plan; and the second stage, which became\nnecessary, addressed the remedy. While the case was\npending on remand, developer continued with\nconstruction. The County conducted final inspections of\nBuilding 11 and 12, issuing certificates of occupancy (CO),\nand residents moved into the buildings. At the end of the\nconsistency phase, the trial court entered a partial judgment\nfinding that the Development Order was not consistent\nwith the Comprehensive Plan. The trial de novo then\nproceeded to the remedy.\nAt the conclusion of the remedy phase, the trial court\nentered a Final Judgment. The court found that the\nComprehensive Plan established a hierarchy of land uses,\npaying deference to lower density residential uses and\nproviding protection to those areas. The \xe2\x80\x9ctiering policy\xe2\x80\x9d\nrequired that, for structures immediately adjacent to each\nother, any new structures to be added to the area must be\nboth comparable and compatible to those already built and\noccupied.8 The court then found significant differences\nThe original judge assigned to the case was rotated into another division, so the\ncase was assigned to a new judge.\n7\n\n\xe2\x80\x9cA project immediately adjacent to lands used or designated for lower intensity\nuse should be given lesser density. (1) For that portion of said project abutting the\n8\n\n90\n\n\x0cbetween the northern tier of Phase One and the adjacent\nsouthern tier of Phase Ten. The structures in Phase One\nwere single level, single family residences, while the\nstructures in Phase Ten were two-story apartment buildings\nwith eight residential units. Therefore, the court found, the\n8-residential unit, two-story, apartment buildings in Phase\nTen were not compatible or comparable types of dwelling\nunits with the single family, single level residences in Phase\nOne; nor were they of comparable density. Consequently,\nthe court determined, the Development Order was\ninconsistent with the Comprehensive Plan.\nAs regards the remedy, the Final Judgment found no\nevidence indicating that either Brooks or the Homeowners\nAssociation were damaged by any diminution in value. The\ncourt found that the Homeowners Association was not a\nperson within the meaning of section 163.3215(2) and\ntherefore had no standing to seek relief under section\n163.3215. Accordingly, only plaintiff Shidel was entitled to\nseek injunctive relief under section 163.3215.\nIn granting such relief, the court found that the developer\nhad acted in bad faith. Specifically, the court found that the\ndeveloper continued construction during the pendency of\nthe prior appeal and continued to build and lease during the\ntrial\xe2\x80\x94 even after losing on the consistency issue. The court\nfound that the developer \xe2\x80\x9cacted at [its] own peril in doing\nprecisely what this lawsuit sought to prevent and now [is]\nsubject to the power of the court to compel restoration of\nthe status prior to construction.\xe2\x80\x9d The relief awarded was:\n(1) the Court permanently enjoined Martin County\nfrom taking any further action on the subject\nexisting development or area of lesser density, a density transition zone of\ncomparable density and compatible dwelling unit types shall be established [e.s.] in the new\nproject for a depth from the shared property line that is equivalent to the depth of\nthe first tier of the adjoining development\xe2\x80\x99s lower density (i.e. the depth of the first\nblock of single-family lots).\xe2\x80\x9d Comprehensive Plan, \xc2\xa7 4-5(A)(2)(b).\n\n91\n\n\x0cDevelopment Order for Phase Ten, other than to\nrescind it;\n(2) the Court permanently enjoined developer and its\nsuccessors in interest from any further development\nof Phase Ten under the subject Development Order;\nand\n(3) the Court ordered developer to remove all\napartment buildings from Phase Ten either through\ndemolition or physical relocation by a date certain.\nWhen the Final Judgment was entered, five of the eightunit buildings had been constructed in Phase Ten\n(Buildings 8-12). Buildings 11 and 12 had already received\ntheir CO\xe2\x80\x99s, and fifteen of their sixteen units were actually\noccupied. Building 10 was fully completed and was awaiting\nfinal inspection as of the date the remedies stage of trial\nbegan. Buildings 8 and 9 were 50% and 66% completed,\nrespectively, also as of that date.\nFollowing the entry of Final Judgment, the developer filed\nthis timely appeal and moved for a stay pending review.9\nThe trial court granted a stay only as to the demolition\norder, allowing lessees to continue in possession of those\napartments in Buildings 9-12 under actual lease when the\ntrial court entered final judgment, as well as to those leases\nin Building 8 in existence as of the date of filing of the\nnotice of appeal. The developer was prohibited, however,\nfrom entering into any renewals of existing leases upon\nexpiration of the original term or any new leases of any\napartments. Upon review, we affirmed the stay order. We\nnow explain our decision on the merits.\nI. The Consistency Issue\n\nNeither Charles Brooks nor Martin County has appealed the final judgment, or\nfiled a brief in this appeal by Karen Shidel.\n9\n\n92\n\n\x0cInitially the developer argues that the trial court erred in the\nconsistency phase by failing to accord any deference to the\nCounty Commission\xe2\x80\x99s interpretation of its own\nComprehensive Plan when the County approved the\nsecond revised site plan and its multi-story, multi-family\nbuildings. Conceding that the proceedings are de novo and\nthat the Development Order is subject to \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d\nunder the Comprehensive Plan as to the consistency issue,\nthe developer nevertheless argues that the courts must bow\nto the County\xe2\x80\x99s interpretation of its own Comprehensive\nPlan and the application of its many elements to the site\nplan. Developer argues that the statutes and cases accord\nsuch deference to a local government\xe2\x80\x99s interpretation of its\nown Comprehensive Plan and that it was reversible error\nfor the trial court in this case to fail to do so. In particular,\ndeveloper relies on Southwest Ranches Homeowners Ass\xe2\x80\x99n v.\nBroward County, 502 So.2d 931 (Fla. 4th DCA 1987), and\nB.B. McCormick & Sons, Inc. v. City of Jacksonville, 559 So.2d\n252 (Fla. 1st DCA 1990). According to developer, these\ncases authorize the use of the highly deferential \xe2\x80\x9cfairly\ndebatable\xe2\x80\x9d standard of review\xe2\x80\x94customary with zoning\ndecisions \xe2\x80\x94to land use determinations such as the issue of\nconsistency in this case. We disagree.\nAs we have already seen in this dispute, the applicable\nstatute provides that:\n\xe2\x80\x9c[a]ny aggrieved or adversely affected\nparty may maintain an action for\ninjunctive or other relief against any\nlocal government to prevent such local\ngovernment from taking any action on\na development order \xe2\x80\xa6 which\nmaterially alters the use or density or\nintensity of use on a particular piece of\nproperty that is not consistent with the\ncomprehensive plan\xe2\x80\xa6.\xe2\x80\x9d\n\n93\n\n\x0c\xc2\xa7 163.3215(1), Fla. Stat. (2000). This statute obviously\ncreates an action for an injunction against the enforcement\nof a development order, rather than to carry out such an\norder. The statute is aimed at development orders\xe2\x80\x94which,\nby their very nature, must have been approved by a local\ngovernment\xe2\x80\x94so it is clear that the Legislature did not\nmean that local governments or developers would be the\nparties seeking injunctive relief under this provision.\nMoreover there is but one basis for issuing the injunction:\nthat the development order is not consistent with the\nComprehensive Plan to the detriment of adjoining property\nowners. Hence the issuance of an injunction under section\n163.3215(1) necessarily requires the judge to determine in\nthe first instance whether a development order is consistent\nwith the Comprehensive Plan. When a statute authorizes a\ncitizen to bring an action to enjoin official conduct that is\nmade improper by the statute, and that same statute\nnecessitates a determination by the judge in the action as to\nwhether the official\xe2\x80\x99s conduct was improper under the\nstatute, as a general matter the requirement for a\ndetermination of the propriety of the official action should\nnot be understood as requiring the court to defer to the\nofficial whose conduct is being judged. While the\nLegislature could nevertheless possibly have some reason\nto require judges to require some deference to the officials\nwhose conduct was thus put in issue, we would certainly\nexpect to see such a requirement of deference spelled out\nin the statute with unmistakable clarity. Here it is not a\nquestion of any lack of clarity; the statute is utterly silent on\nthe notion of deference. It is thus apparent that the\nstructure and text of the statute do not impliedly involve\nany deference to the decision of the county officials. So we\nnecessarily presume none was intended.10\nTo illustrate the point, we draw an analogy. The action by a county approving a\ndevelopment order could fairly and logically be compared to the actions of\nadministrative agencies generally. Thus we might contrast section 163.3215(1) with\n10\n\n94\n\n\x0cSection 163.3194 requires that all development conform to\nthe approved Comprehensive Plan, and that development\norders be consistent with that Plan.11 The statute is framed\nas a rule, a command to cities and counties that they must\ncomply with their own Comprehensive Plans after they\nhave been approved by the State. The statute does not say\nthat local governments shall have some discretion as to\nwhether a proposed development should be consistent with\nthe Comprehensive Plan. Consistency with a\nComprehensive Plan is therefore not a discretionary matter.\nWhen the Legislature wants to give an agency discretion\nand then for the courts to defer to such discretion, it knows\ncomparable provisions of the Administrative Procedures Act. Section 120.68\ngenerally grants parties in agency proceedings access to a court after the agency has\nfinally acted. Section 120.68(4), however, limits review to the record in agency.\nThere is no similar provision in section 163.3215. Moreover section 120.68(7) spells\nout in precise detail exactly what the reviewing court can do. Among its provisions\nis the following:\n\xe2\x80\x9cThe court shall remand a case to the agency for further\nproceedings consistent with the court\xe2\x80\x99s decision or set\naside agency action, as appropriate, when it finds that \xe2\x80\xa6\n(b) The agency\xe2\x80\x99s action depends on any finding of fact\nthat is not supported by competent, substantial evidence\nin the record of a hearing conducted pursuant to ss.\n120.569 and 120.57; however, the court shall not\nsubstitute its judgment for that of the agency as to the\nweight of the evidence on any disputed finding of fact \xe2\x80\xa6\n(e) the agency\xe2\x80\x99s exercise of discretion was: 1. outside the\nrange of discretion delegated to the agency by law; 2.\ninconsistent with agency rule; 3. inconsistent with officially\nstated agency policy or a prior agency practice, if deviation\ntherefrom is not explained by the agency; or 4. otherwise\nin violation of a constitutional or statutory provision; but\nthe court shall not substitute its judgment for that of the agency on an\nissue of discretion.\xe2\x80\x9d [e.s.]\n\n\xc2\xa7 120.68(7), Fla. Stat. (2000). There is nothing even remotely comparable in section\n163.3215.\nSee \xc2\xa7 163.3194(1)(a), Fla. Stat. (2000) (\xe2\x80\x9cAfter a comprehensive plan\xe2\x80\xa6has been\nadopted in conformity with this act, all development undertaken by, and all actions\ntaken in regard to development orders by, governmental agencies in regard to land\ncovered by such plan or element shall be consistent with such plan or element as\nadopted.\xe2\x80\x9d). [e.s.]\n11\n\n95\n\n\x0chow to say that. Here it has not. We thus reject the\ndeveloper\xe2\x80\x99s contention that the trial court erred in failing to\ndefer to the County\xe2\x80\x99s interpretation of its own\ncomprehensive plan.\nBefore we proceed to assess the trial court\xe2\x80\x99s determination\non the consistency issue, we pause to consider the history\nof the land development statutes. The State of Florida did\nnot assert meaningful formal control over the explosive and\nunplanned development of land in this state until the\npassage of the first growth management statute, the Local\nGovernment Comprehensive Planning Act of 1975.\nChapter 75-257, Laws of Fla. (the 1975 Act). The 1975 Act\nforced counties and cities to adopt comprehensive plans,\nbut they were left to interpret such plans for themselves,\nlargely free from effective oversight by the state. See, e.g.,\nCity of Jacksonville Beach v. Grubbs, 461 So.2d 160, 163 (Fla.\n1st DCA 1984) (determination of when to conform more\nrestrictive zoning ordinances with Comprehensive Plan is\nlegislative judgment to be made by local governing body,\nsubject only to limited judicial review for patent\narbitrariness). The requirement of adopting a\nComprehensive Plan was, therefore, only a small step.\nMoreover nothing in the legislation required local\ngovernments to comply with their own Comprehensive\nPlans or that all development be consistent with the Plan.\nBy the early 1980\xe2\x80\x99s it was widely recognized that the 1975\nAct was proving ineffectual in regulating Florida\xe2\x80\x99s\ndevelopment. See Reid Ewing, Florida\xe2\x80\x99s Growth Management\nLearning Curve, 19 VA. ENVT\xe2\x80\x99L. L.J. 375 (2000). The lack\nof state control over interpretation of the Comprehensive\nPlan was often cited as a serious deficiency. As one such\ncriticism described the situation:\n\xe2\x80\x9c[f]rustration grew at the state level as\nwell. Lacking the actual power to\napprove or disapprove local planning\n\n96\n\n\x0cdecisions, state and regional planners\ncould not effectively coordinate and\noversee local planning and regulation.\nLocal governments changed their\nplans \xe2\x80\x98willynilly virtually every time a\ncity council or county commission met\n\xe2\x80\xa6\xe2\x80\x99\xe2\x80\x9d\nJohn M. DeGrove, State and Regional Planning\nand Regulatory Activity: The Florida Experience\nand Lessons for Other Jurisdictions, C390 ALIABA 397, 428 (1994).\nFor another thing, the 1975 Act was criticized for failing to\ngive affected property owners and citizen groups standing\nto challenge the land development decisions of local\ngovernments on the grounds that they were inconsistent\nwith the Comprehensive Plan. The standing issue was\nconsidered in Citizens Growth Management Coalition of West\nPalm Beach Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla.\n1984) (CGMC). CGMC involved a challenge by a citizens\ngroup to a local decision to allow the construction of a\nlarge scale residential and commercial complex. The court\nbegan by referring to Renard v. Dade County, 261 So.2d 832\n(Fla.1972), holding that standing to challenge local\ndevelopment decisions was limited to the highly deferential\n\xe2\x80\x9cfairly debatable\xe2\x80\x9d standard. Affected property owners in\nthe vicinity of new development had no standing to seek\nenforcement of local comprehensive plans unless they\ncould \xe2\x80\x9cprove special damages different in kind from that\nsuffered by the community as a whole.\xe2\x80\x9d 261 So.2d at 834.\nThe CGMC court determined that the 1975 Act did not\nchange these rules on standing. 450 So.2d at 208. The court\nreasoned that because the 1975 Act \xe2\x80\x9cdid not specifically\naddress the question\xe2\x80\x9d of standing, the statute was not\nmeant to alter the common law standing requirements set\nforth in Renard. 450 So.2d at 206-07.\n\n97\n\n\x0cAgain, to return to the criticism, this limitation on standing\nto enforce local planning laws resulted in:\n\xe2\x80\x9ca failure to conform development\ndecisions to the plan based upon the\nfact that citizens lacked standing to\nchallenge development orders for lack\nof consistency with the comprehensive\nplan.\xe2\x80\x9d\nJames C. Nicholas & Ruth L. Steiner, Growth Management\nand Smart Growth in Florida, 35 WAKE FOREST L.REV.\n645, 657 (2000)(quoting Daniel W. O\xe2\x80\x99Connell, Growth\nManagement in Florida: Will State and Local Governments Get\nTheir Acts Together?, FLORIDA ENVT\xe2\x80\x99L & URBAN\nISSUES, 1-5 (June 1984)). If affected property owners in\nthe area of newly permitted development could not\nchallenge a project on the grounds that it would be\ninconsistent with the Comprehensive Plan, that eliminated\nthe only real check on local government compliance\xe2\x80\x94a\nchallenge by those most directly affected by a proposed\ndevelopment.\nThe growing pressure for a fundamental change in the\ngrowth management law is reflected in the following\nstatement made just prior to the Legislature\xe2\x80\x99s adoption of\nthe current law in 1985:\n\xe2\x80\x9cIn response to this lack of citizen\nstanding, a citizen initiative began last\nyear and thousands of signatures were\ncollected around the state to bring the\nstanding issue to a referendum vote.\nThe petition specifically calls for a\nreferendum on the issues of giving\ncitizens a right in the state constitution\nto environmental health and welfare\nand providing them with legal standing\nto sue if government at the local,\n\n98\n\n\x0cregional, or state level is not doing its\njob.\n\xe2\x80\x9cThat initiative fell just a few thousand\nsignatures short of the required\nnumber for qualifying for a\nreferendum in 1984. However, the\ninitiative is continuing, and I feel\nconfident that the issue will be brought\nto the voters of the state in 1985\nunless the legislature addresses the\nissue more effectively than it did last\nyear.\xe2\x80\x9d\nKathleen Shea Abrams, An Environmental Word, 1 J. LAND\nUSE & ENVT\xe2\x80\x99L LAW 155, 159 (1985). Clearly the\npressure from a \xe2\x80\x9ccivically militant electorate\xe2\x80\x9d was growing,\nand the elected representatives took notice of it. The result\nwas the Growth Management Act of 1985. Chap. 85-55,\nLaws of Fla. This is essentially the statute we have today,\nparts of which have been cited in preceding paragraphs.12\nIts most important provision for our purposes was section\n163.3215, the provision used by Shidel to bring this action\ninto court.\nIn Southwest Ranches, we observed that section 163.3215 had\nliberalized standing requirements and demonstrated \xe2\x80\x9ca clear\nlegislative policy in favor of the enforcement of\ncomprehensive plans by persons adversely affected by local\naction.\xe2\x80\x9d 502 So.2d at 935. In Parker v. Leon County, 627\nSo.2d 476, 480 (Fla.1993), the court held that \xe2\x80\x9cthe\nlegislature enacted section 163.3215 to ensure the standing\nfor any person who \xe2\x80\x98will suffer an adverse effect to an\ninterest protected \xe2\x80\xa6 by the \xe2\x80\xa6 comprehensive plan.\xe2\x80\x99\xe2\x80\x9d 627\nSo.2d at 479. The Parker court quoted with approval the\nabove passage from Southwest Ranches. 627 So.2d at 479. See\nalso Putnam County Envt\xe2\x80\x99l Council, Inc. v. Board of County\n12\n\nSee supra notes 2, 3, 4 and 5 and accompanying text.\n\n99\n\n\x0cComm\xe2\x80\x99rs of Putnam County, 757 So.2d 590, 593 (Fla. 5th DCA\n2000) (\xe2\x80\x9cThat standard changed, however, with the 1985\nadoption of section 163.3215, which liberalized the\nstanding requirements and \xe2\x80\x98demonstrat[ed] a clear\nlegislative policy in favor of the enforcement of\ncomprehensive plans by persons adversely affected by local\naction.\xe2\x80\x99\xe2\x80\x9c). Thus, the criticism described above certainly was\nof great influence in the 1985 Legislature\xe2\x80\x99s formulation of\nthe new standing provision. Affected citizens have been\ngiven a significantly enhanced standing to challenge the\nconsistency of development decisions with the\nComprehensive Plan.\n\xe2\x80\xa6.\nUnder section 163.3215 citizen enforcement is the primary\ntool for insuring consistency of development decisions with\nthe Comprehensive Plan. Deference by the courts\xe2\x80\x94\nespecially of the kind argued by the developer in this\ncase\xe2\x80\x94would not only be inconsistent with the text and\nstructure of the statute, but it would ignore the very reasons\nfor adopting the legislation in the first place. When an\naffected property owner in the area of a newly allowed\ndevelopment brings a consistency challenge to a\ndevelopment order, a cause of action\xe2\x80\x94as it were\xe2\x80\x94for\ncompliance with the Comprehensive Plan is presented to\nthe court, in which the judge is required to pay deference\nonly to the facts in the case and the applicable law. In light\nof the text of section 163.3215 and the foregoing history,\nwe reject the developer\xe2\x80\x99s contention that the trial court\nerred in failing to defer to the County\xe2\x80\x99s interpretation of its\nown Comprehensive Plan.\nHaving thus decided that the trial court was correct in\nfailing to accord any particular deference to the Martin\nCounty Commission in its interpretation of the\nComprehensive Plan, we now proceed to consider the\ncourt\xe2\x80\x99s determination on the consistency issue. The trial\ncourt explained its decision as follows:\n\n100\n\n\x0c\xe2\x80\x9cThe primary claim by [plaintiffs] is\nthat the juxtaposition of multi-story,\nmulti-family apartments in Phase 10\ndirectly next to the single family\nhomes in Phase 1 violates a number of\nprovisions in the Comprehensive Plan.\nThe provision of the Comprehensive\nPlan that is central to their argument is\nsection 4-5(A)(2)(b), known as the\n\xe2\x80\x98tiering policy.\xe2\x80\x99 [see n. 6, above]\n\xe2\x80\x9cThe tiering policy was added to the\nComprehensive Plan \xe2\x80\xa6 to address\nhow development would be added to\nexisting\nsingle-family\nresidential\ncommunities. There was a concern \xe2\x80\xa6\nover how existing single-family homes\nwere being impacted by new, adjacent\ndenser developments\xe2\x80\xa6.\n\xe2\x80\x9cThe tiering policy required \xe2\x80\xa6 a\ntransition zone along the southern\nportion of Phase 10 equal to \xe2\x80\x98the\ndepth of the first block of singlefamily lots\xe2\x80\x99 within the northern\nportion of Phase 1. The section\nrequires that development in the first\ntier of Phase 10 be limited to\nconstruction \xe2\x80\x98of comparable density\nand compatible dwelling unit types.\xe2\x80\x99\nThe court finds that the appropriate\nmeasure is 225 feet, using the shortest\naverage depth method of computation.\n\xe2\x80\x9cNo transition zone was established\nfor Phase 10. The buildings along the\nfirst tier of Phase 10 are multi-family,\nmulti-story, and have balconies. The\nsouthern tier of Phase 10 has a density\nof 6.6[UPA]. The overall density of\nPhase 10 is 6.5[UPA]. There is no\n\n101\n\n\x0cmeaningful difference in density across\nthe entire western portion of Phase 10.\nThe northern tier of Phase 1, on the\nother hand, is comprised entirely of\nsingle-family homes on 0.75 acre to 1.2\nacre lots, with a density of\n0.94[UPA].13\n\xe2\x80\x9cThere was no first tier transition zone\nestablished for Phase 10 as mandated\nby section 4-5(A)(2)(b). That section is\nnot the only provision of the\nComprehensive Plan that mandated\ncompatible structures within the first\ntier of Phase 10. Section 44(M)(1)(e)(2) provided:\n\xe2\x80\xa6 Where single family structures\ncomprise the dominant structure type\nwithin [residential estate densities (RE0.5A) ], new development on\nundeveloped abutting lands shall be\nrequired to include compatible\nstructure types of lands immediately\nadjacent\nto\nexisting\nfamily\ndevelopment.\n\xe2\x80\xa6 Phase 1 is designated RE-0.5A\n\xe2\x80\xa6\n\xe2\x80\x9cIt is impossible \xe2\x80\xa6 to examine the\nphotographs of the homes in the\nnorthern tier of Phase 1, and the\napartment buildings in the southern\ntier of Phase 10, and find that they are\nAt this point in the Final Judgment, the court went on to show in a comparative\ntable that the change in density between the two tiers represented a 560%\ndifference, the change in population a 492% difference, and the number of units a\n418% difference.\n13\n\n102\n\n\x0ceither \xe2\x80\x98compatible dwelling unit types\xe2\x80\x99\nor \xe2\x80\x98compatible structure types.\xe2\x80\x99 The\nonly residential structure that could be\nless compatible with the northern tier\nof Phase 1, would be a multi-story\ncondominium building. There is no\ncompatibility between the structures in\nthe southern tier of Phase 10 and the\nnorthern tier of Phase 1. Further, an\nexamination of the density of\ndevelopment in the two tiers at issue,\nprecludes this court from finding that\nthey are in any way comparable.\n\xe2\x80\xa6\n\xe2\x80\x9c[B]uffering does not grant relief to\nthe [developer] under section 4-4(I)(5).\nThat section deals with buffering\nbetween \xe2\x80\x98incompatible land uses.\xe2\x80\x99 The\nmore specific Tiering Policy mandates\ncompatibility. More importantly, even\nto the extent that the Comprehensive\nPlan might, in some instances, provide\na builder with the ability to buffer\nchanges in density, intensity or uses,\nthe language of sections 44(M)(1)(e)(2) and 4-5(A)(2)(b) simply\ndo not permit the type of development\nthat is under construction in Phase\n10.\xe2\x80\x9d\n\xe2\x80\xa6\n\xe2\x80\x9cBased on the foregoing, the Court\nfinds that the Development Order is\ninconsistent with the Comprehensive\nPlan. It is not compatible with, nor\ndoes it further the objective, policies,\nland uses, densities and intensities in\n\n103\n\n\x0cthe\nComprehensive\n163.3194(3)(a).\xe2\x80\x9d [e.o.]\n\nPlan.\n\n\xc2\xa7\n\nWe have carefully reviewed the record of the trial and the\nevidence presented. It is apparent that there is substantial\ncompetent evidence to support these findings. Developer\nargues that the court erred in its interpretation of the\n\xe2\x80\x9ctiering policy,\xe2\x80\x9d in deeming it a mandatory requirement\nrather than a discretionary guide. We conclude that the trial\ncourt\xe2\x80\x99s construction is consistent with the plain meaning of\nthe text of the Comprehensive Plan. See Comprehensive\nPlan, \xc2\xa7 4-5(A)(2)(b) (\xe2\x80\x9ca density transition zone of\ncomparable density and compatible dwelling unit types\nshall be established in the new project for a depth from the\nshared property line that is equivalent to the depth of the\nfirst tier of the adjoining development\xe2\x80\x99s lower density (i.e.\nthe depth of the first block of single-family lots).\xe2\x80\x9d).\nMoreover, given the evidence as to Martin County\xe2\x80\x99s\nadoption of the tiering policy, the record clearly supports\nthe finding that the policy was intended to be applied in all\ninstances of projects abutting single-family residential areas.\nWe therefore affirm the finding of inconsistency and\nproceed to explain our decision on the remedy.\nII. Remedy of Demolition\nDeveloper challenges what it terms the \xe2\x80\x9cenormity and\nextremity of the injunctive remedy imposed by the trial\ncourt.\xe2\x80\x9d It argues that the trial court\xe2\x80\x99s order requiring the\ndemolition of 5 multi-family residential buildings is the\nmost radical remedy ever mandated by a Florida court\nbecause of an inconsistency with a Comprehensive Plan.\nSpecifically, the contention is that the trial judge failed to\nbalance the equities between the parties and thus ignored\nthe evidence of a $3.3 million dollar loss the developer will\nsuffer from the demolition of the buildings. The court\nfailed to consider alternative remedies in damages, it argues,\nthat would have adequately remedied any harm resulting\n\n104\n\n\x0cfrom the construction of structures inconsistent with the\nComprehensive Plan. Developer maintains that the trial\ncourt erroneously failed to give meaningful consideration to\nthe traditional elements for the imposition of injunctive\nrelief. It contends that the trial court proceeded on an\nerroneous conclusion that where an injunction is sought on\nthe basis of a statutory violation, no proof is required as to\nthe traditional elements for an injunction.\nTraditionally, as the trial judge noted, it is true that\ninjunctions are usually denied where the party seeking such\nrelief fails to demonstrate a clear legal right, a particular\nharm for which there is no adequate remedy at law, and\nthat considerations of the public interest would support the\ninjunction. See, e.g., St Lucie County v. St. Lucie Village, 603\nSo.2d 1289, 1292 (Fla. 4th DCA 1992). These are, of\ncourse, the necessary ingredients for equitable relief when\nwe labor in the interplay of common law and equity, where\nordinary legal remedies are unavailing.\nNonetheless, as between the State legislature and the\nseveral counties, the Legislature is the dominant creator of\npublic duties and citizen rights.14 Recognizing that the\nLegislature has the sole power to create such public duties\nand citizen rights, it logically follows that the Legislature is\nnecessarily endowed with the authority to specify precisely\nwhat remedies shall be used by judges to enforce a statutory\nduty\xe2\x80\x94regardless of whether in general usage such a remedy\nusually requires additional factors before it is traditionally\nemployed.\nWhen the Legislature creates a public duty and a\ncorresponding right in its citizens to enforce the duty it has\ncreated, and provides explicitly that the remedy of\nvindication shall be an injunction, the Legislature has not\nSee Art. VIII, \xc2\xa7 1(f) and (g), Fla. Const. (whether charter or non-charter\ngovernment, Counties are granted power to enact only ordinances that are \xe2\x80\x9cnot\ninconsistent with general law\xe2\x80\x9d).\n14\n\n105\n\n\x0cthereby encroached on judicial powers, as the courts held in\nHarvey v. Wittenberg, 384 So.2d 940 (Fla. 3rd DCA 1980),\nand Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d\nDCA 1969). The Times Publishing court explained its theory\nof encroachment thus:\n\xe2\x80\x9cInjunctive relief is an extraordinary\nremedy which issues only when justice\nrequires and there is not adequate\nremedy at law, and when there is a real\nand imminent danger of irreparable\ninjury. Statutory authority for such\nwrits, as in the act before us, are not\nuncommon; but it must be\nremembered that such writs are in the\nfirst instance judicial writs. If such\nstatutes purport to give the circuit\ncourts injunctive power they are\nineffectual, since those courts are\notherwise vested with such powers\nunder the constitution, \xc2\xa7 6(3) Art. V\nConstitution of Florida; and if they\npurport to dictate to such courts when,\nhow or under what conditions\ninjunctions should issue they would\nconstitute an unlawful legislative\ninfringement on a judicial function.\xe2\x80\x9d\n[e.s.]\n222 So.2d at 476. Times Publishing and Harvey both held that\nthe Legislature is limited to specifying certain harms as\nirreparable, but the court alone has the discretion to\ndetermine whether the injunction should otherwise issue.\nWe disagree with this analysis.\nWe think that is too wooden a construction of legislative\npowers where a statute is concededly valid. In our view\nwhen the Legislature provides for an injunction in these\ncircumstances, it has deliberately made the new public duty\nand its corresponding right of enforcement an integrated\n\n106\n\n\x0cstatutory prescription. By specifying that the public interest\nrequires that a certain duty be vindicated in the courts and\nnot primarily within other branches of government, the\nLegislature is well within its powers. Surely the Legislature\xe2\x80\x99s\nprimary role in defining public policy under the\nconstitution is broad enough to enable it to specify a legal\nremedy in an enactment, regardless of whether the\ntraditional judicial restrictions on that remedy in other,\nnon-statutory contexts would limit its usage. As the author\nof the primary duty, the Legislature alone shapes the form\nof its effectuating mechanism.\nIn section 163.3215, we think the Legislature has\nconstructed such a statute. The statute leads off with a\ndeclaration that:\n\xe2\x80\x9cAny aggrieved or adversely affected\nparty may maintain an action for\ninjunctive or other relief against any\nlocal government to prevent such local\ngovernment from taking any action on\na development order, as defined in s.\n163.3164, which materially alters the\nuse or density or intensity of use on a\nparticular piece of property that is not\nconsistent with the comprehensive\nplan adopted under this part.\xe2\x80\x9d\nFrom the plain and obvious meaning of this text we discern\nonly two elements to the granting of an injunction against\nthe enforcement of a development order: (a) the party is\naffected or aggrieved by (b) an approved project that is\ninconsistent with the Comprehensive Plan. In short, the\nexistence of an affected neighbor is all that is necessary for\nthe issuance of an injunction against a proposed land use\nthat is inconsistent with the Comprehensive Plan.\nWe note that the statute does not say that the\naffected/aggrieved party bringing the action \xe2\x80\x9ccreates a\n\n107\n\n\x0cpresumption of irreparable injury\xe2\x80\x9d by showing an\ninconsistency with the Plan. See, e.g., \xc2\xa7 542.335(1)(j), Fla.\nStat. (2000) (\xe2\x80\x9cThe violation of an enforceable restrictive\ncovenant creates a presumption of irreparable injury to the\nperson seeking enforcement of a restrictive covenant.\xe2\x80\x9d).\nWhen the Legislature wants to make a lesser intrusion on\ntraditional equitable jurisdiction, it obviously knows how to\ndo so. Here the statutory text makes the injunction the first\nand preferred remedy to alleviate the affects of in\ninconsistent land use. Hence, we read the statute to make\nthe injunction the presumed remedy where the conditions\nprescribed are shown.15\nWe disagree with the developer\xe2\x80\x99s contention that this\nstatute was meant to create mere discretion in the court to\nissue an injunction. If injunctive relief is the specified,\nWe reject developer\xe2\x80\x99s argument that demolition is improper simply because\nShidel failed to seek a temporary injunction against any construction while the case\nproceeded in court on the consistency issue. In the first place, when the action was\nfiled the trial court originally thought its role limited to a record review of the\nproceedings before the Martin County Commission and concluded that no error\nhad been shown. Having decided there was no error in the limited review it\nthought applicable, the trial court was hardly likely to grant a temporary injunction\nwhile the case was on appeal.\n15\n\nEven more important, however, we find nothing in the text of the relevant statutes\nmaking such a request for a temporary injunction a precondition to effective final\nrelief after a trial de novo when the court finds that the permitted use is\ninconsistent with the Comprehensive Plan. We note from other statutes that when\nthe Legislature means to place restrictions on third party challenges to agency\ndecisions granting permits, it says so in specific text. Compare \xc2\xa7 403.412(2)(c), Fla.\nStat. (2000), with \xc2\xa7 163.3215(4), Fla. Stat. (2000), as to preconditions for suit; see also\n\xc2\xa7 163.3215(6), Fla. Stat. (2000) (\xe2\x80\x9cThe signature of an attorney or party constitutes a\ncertificate that he or she has read the pleading, motion, or other paper and that, to\nthe best of his or her knowledge, information, and belief formed after reasonable\ninquiry, it is not interposed for any improper purpose, such as to harass or to cause\nunnecessary delay or for economic advantage, competitive reasons or frivolous\npurposes or needless increase in the cost of litigation. If a pleading, motion, or\nother paper is signed in violation of these requirements, the court, upon motion or\nits own initiative, shall impose upon the person who signed it, a represented party,\nor both, an appropriate sanction, which may include an order to pay to the other\nparty or parties the amount of reasonable expenses incurred because of the filing of\nthe pleading, motion, or other paper, including a reasonable attorney\xe2\x80\x99s fee.\xe2\x80\x9d).\n\n108\n\n\x0cprimary remedy to correct a violation of a public duty and\nto vindicate the right of a person affected by the violation\nof that duty, it can properly be deemed a rule that the\nLegislature has created, not a grant of discretion. Here the\nLegislature has devised an entire statutory scheme to insure\nthat all counties have a Comprehensive Plan for the\ndevelopment of land within their respective jurisdictions.\nThe scheme creates mandatory duties to have a plan,\nmandatory duties to have the plan approved by the state,\nand once approved mandatory duties to limit all\ndevelopments so that they are consistent with the plan\xe2\x80\x99s\nrequirements. At the end of all these mandatory duties\xe2\x80\x94all\nthese shalls\xe2\x80\x94comes a new relaxation of the requirements\non standing for citizen suits to enforce comprehensive land\nuse plans and providing for the issuance of injunctions\nwhen an inconsistency affects another land owner. Judicial\nconstruction of that sole remedy as discretionary strikes us\nas remarkably inconsistent with not only the text of the\nstatute itself but also with the purpose of the entire\nlegislative scheme.\nDeveloper lays great stress on the size of the monetary loss\nthat it claims it will suffer from demolition, as opposed to\nthe much smaller diminution in value that the affected\nproperty owner bringing this action may have suffered. It\ncontends that a $3.3 million loss far outweighs the evidence\nof diminution in the value of Shidel\xe2\x80\x99s property, less than\n$26,000. Its primary contention here is that the trial judge\nerred in failing to weigh these equities in its favor and deny\nany remedy of demolition. Instead, as developer sees it, the\ncourt should have awarded money damages to eliminate the\nobjector\xe2\x80\x99s diminution in value. Developer argued that it\nshould be allowed instead of demolition it should also be\nallowed to build environmental barriers, green areas of\ntrees and shrubbery, between the apartment buildings and\nthe adjoining area of single family homes.\n\n109\n\n\x0cDeveloper emphasizes that we deal here with an expensive\ndevelopment: \xe2\x80\x9ca high quality, upscale project;\xe2\x80\x9d \xe2\x80\x9cforty units\nof high-quality garden apartments;\xe2\x80\x9d \xe2\x80\x9cfive upscale multifamily dwellings, housing 40 garden apartments, at a value\nof approximately $3 million.\xe2\x80\x9d Developer concedes that\nthere is evidence showing that plaintiff Shidel\xe2\x80\x99s property is\ndiminished by $26,000. It also concedes that the total\ndiminution for all the homes bordering its project is just\nunder $300,000. Developer contends, however, that the real\ncountervailing harm to all these affected property owners in\nthe vicinity is not any diminution in the value of their\nhomes, but instead is merely \xe2\x80\x9cknowing that there is an\nupscale apartment building approximately a football field\naway, partially visible through some trees behind the\nhouse.\xe2\x80\x9d\nSection 163.3215 says nothing about weighing these\nspecific equities before granting an injunction. If the\nLegislature had intended that injunctive enforcement of\ncomprehensive plans in the courts be limited to cases\nwhere such imbalances of equities were not present, we\nassume that it would have said so. As important, such\nbalancing if applied generally would lead to substantial noncompliance with comprehensive plans. We doubt that there\nwill be many instances where the cost of the newly allowed\nconstruction will be less than any diminution resulting from\nan inconsistency. Entire projects of the kind permitted here\nwill frequently far exceed the monetary harms caused to\nindividual neighbors affected by the inconsistency. In other\nwords, if balancing the equities\xe2\x80\x94that is, weighing the loss\nsuffered by the developer against the diminution in value of\nthe objecting party\xe2\x80\x94were required before demolition could\nbe ordered, then demolition will never be ordered.\nMoreover it is an argument that would allow those with\nfinancial resources to buy their way out of compliance with\ncomprehensive plans. In all cases where the proposed use is\nfor multiple acres and multiple buildings, the expenditures\n\n110\n\n\x0cwill be great. The greater will be its cost, and so will be a\nresulting loss from an after-the-fact demolition order. The\nmore costly and elaborate the project, the greater will be\nthe \xe2\x80\x9cimbalance in the equities.\xe2\x80\x9d The more a developer is\nable to gild an inconsistency with nature\xe2\x80\x99s ornaments\xe2\x80\x94\ntrees, plants, flowers and their symbiotic fauna\xe2\x80\x94 the more\ncertain under this argument will be the result that no court\nwill enjoin an inconsistency and require its removal if\nalready built.\nIn this case the alleged inequity could have been entirely\navoided if developer had simply awaited the exhaustion of\nall legal remedies before undertaking construction. It is\ntherefore difficult to perceive from the record any great\ninequity in requiring demolition. Shidel let the developer\nknow when it was just beginning construction of the first\nbuilding that she would seek demolition if the court found\nthe project inconsistent. When developer decided to\nproceed with construction in spite of the absence of a final\ndecision as to the merits of the challenge under section\n163.3215, the developer was quite able to foresee that it\nmight lose the action in court. It could not have had a\nreasonable expectation that its right to build what it had\nproposed was finally settled. It may have thought the\ndecision to build before the consistency question was\nsettled in court a reasonable \xe2\x80\x9cbusiness decision,\xe2\x80\x9d but that\nhardly makes it inequitable to enforce the rule as written.\nIt also seems quite inappropriate, if balancing of equities\nwere truly required by this statute, to focus on the relatively\nsmall financial impacts suffered by those adjoining an\ninconsistent land use. The real countervailing equity to any\nmonetary loss of the developer is in the flouting of the legal\nrequirements of the Comprehensive Plan. Every citizen in\nthe community is intangibly harmed by a failure to comply\nwith the Comprehensive Plan, even those whose properties\nmay not have been directly diminished in value.\n\n111\n\n\x0cWe claim to be a society of laws, not of individual\neccentricities in attempting to evade the rule of law. A\nsociety of law must respect law, not its evasion. If the rule\nof law requires land uses to meet specific standards, then\nallowing those who develop land to escape its requirements\nby spending a project out of compliance would make the\nstandards of growth management of little real consequence.\nIt would allow developers such as this one to build in\ndefiance of the limits and then escape compliance by\nmaking the cost of correction too high. That would render\nsection 163.3215 meaningless and ineffectual.\nIn this regard we are drawn to the views expressed in\nWelton v. 40 Oak Street Building. Corp., 70 F.2d 377 (7th Cir.\n1934), a case of strikingly analogous facts. There the\ndeveloper applied for a permit to erect a building, and\nproceeded to build while its neighbor objected to the\nedifice and sought to show that the building plans did not\ncomply with the zoning ordinances. When the agency\napproved the building he sought relief in the courts, finally\nbeing victorious in the state supreme court. Ownership of\nthe building meanwhile passed to a federal receiver, and so\nthe objecting neighbor sought to enforce his remedy by\ninjunctive relief in the federal court. The trial judge denied\nan injunction. On appeal the Court of Appeals disagreed\nand ordered a mandatory injunction to \xe2\x80\x9crebuild\xe2\x80\x9d the edifice\nin compliance with the zoning law, explaining:\n\xe2\x80\x9cWe have earnestly endeavored to\nplace ourselves in a position to fully\nappreciate appellees\xe2\x80\x99 argument to the\neffect that enforcement of a right\nwhich arises out of an effort to give\nlight and air to metropolitan areas is an\nequity that is outweighed by the dollars\nadvanced by builders of twenty story\nbuildings in defiance of zoning\nordinances. We have also endeavored\n\n112\n\n\x0cto obtain appellees\xe2\x80\x99 viewpoint when\nthey propose a money judgment to\none who suffers small financial loss as\nsatisfaction for violation of important\nordinances enacted for the benefit of\nthe public. In the fight for better living\nconditions in large cities, in the contest\nfor more light and air, more health and\ncomfort, the scales are not well\nbalanced if dividends to the individuals\noutweigh health and happiness to the\ncommunity. Financial relief to\nappellants is not the only factor in\nweighing equities. There is involved\nthat immeasurable but nevertheless\nvital element of respect for, and\ncompliance with, the health ordinance\nof the city. The surest way to stop the\nerection of high buildings in defiance\nof zoning ordinances is to remove all\npossibility of gain to those who build\nillegally. Prevention will never be\naccomplished by compromise after the\nbuilding is erected, or through\npayment of a small money judgment to\nsome individual whose financial loss is\nan inconsequential item.\xe2\x80\x9d\n70 F.2d at 382-83. We agree with the Seventh Circuit that\nrespect for law, in this case the Comprehensive Plan,\ntrumps any \xe2\x80\x9cinequity\xe2\x80\x9d of financial loss arising from\ndemolition.\nOur understanding of section 163.3215 is thus different\nfrom equity\xe2\x80\x99s traditional use of its remedies. If, as we have\nshown, an injunction is the statutory remedy to insure\nconsistency of development of property within the county,\nit does not seem to us that the kind of balancing advocated\nhere would further that goal. In fact it would very likely\nlead to even more inconsistent development, particularly as\n\n113\n\n\x0cto the kind of large scale project involved here with\nmultiple buildings for multiple families. As we see it, the\npurpose of this statute is precisely against this kind of\nthinking. A clear rule is far more likely to erase the kind of\nlegal unpredictability lamented by developer and amici.\nThe statute says that an affected or aggrieved party may\nbring an action to enjoin an inconsistent development\nallowed by the County under its Comprehensive Plan. The\nstatutory rule is that if you build it, and in court it later\nproves inconsistent, it will have to come down. The court\xe2\x80\x99s\ninjunction enforces the statutory scheme as written. The\nCounty has been ordered to comply with its own\nComprehensive Plan and restrained from allowing\ninconsistent development; and the developer has been\nfound to have built an inconsistent land use and has been\nordered to remove it. The rule of law has prevailed.\nWe therefore affirm the final judgment of the trial court in\nall respects.\nGUNTHER AND GROSS, JJ., concur.\nNote\nAs the above cases demonstrate, states vary widely in whether and\nthey require comprehensive planning at all and in the degree of\nconsistency required between plans and later-enacted land use\nordinances. Some require comprehensive planning outright. Some\ndo not. And some provide funding incentives.\nFor example, in Georgia local governments are not required to\nhave a comprehensive plan, but they gain access to various grants if\nthey do. The Department of Community Affairs has been given by\nauthority to develop \xe2\x80\x9cMinimum Standards\xe2\x80\x9d for qualifying\ncomprehensive plans. Its regulations require three components: a\ncommunity assessment, a community participation program, and a\ncommunity agenda. These components are basically as they sound.\nThe first is a local inventory and includes development maps and\nevaluations of current policies. The second is a plan to engage the\ncommunity in the planning process. Only after the Department has\n\n114\n\n\x0capproved a local government\xe2\x80\x99s first two components may it\nproceed to the community agenda, which is the \xe2\x80\x9cplan\xe2\x80\x9d part of the\ncomprehensive plan. It takes the form of a map showing future\ndevelopment and an implementation program. The plan for\nAthens-Clarke\nCounty\nis\navailable\nat\nhttp://athensclarkecounty.com/index.aspx?NID=848.\nCalifornia requires counties and cities to adopt general plans\nmeeting minimum standards and addressing seven required\nelements: Land Use, Circulation, Housing, Conservation, Open\nSpace, Noise, and Safety. Courts do not probe the merits of a local\ngovernment\xe2\x80\x99s plan, but they will ensure \xe2\x80\x9csubstantial compliance.\xe2\x80\x9d\nSee, e.g., Twaine Harte Homeowners Association v. County of Tuolumne,\n138 Cal. App. 3d 664 (1982). California, like Florida, invalidates\nzoning inconsistent with the general plan. Simply skimming the\nGeneral Plan Guidelines issues by the Governor\xe2\x80\x99s Office of\nPlanning and Research (available at http://opr.ca.gov/docs/\nGeneral_Plan_Guidelines_2003.pdf) will give a good sense of the\nplanning process.\n\n115\n\n\x0c3. Judicial Review\n3.1. Substantive Due Process\n3.1.1. Federal Courts\nNectow v. City of Cambridge et al.\n277 U.S. 183 (1928)\nERROR TO THE SUPREME JUDICIAL COURT OF\nMASSACHUSETTS.\nMessrs. Judson Hannigan and John E. Hannigan for plaintiff in\nerror.\nMr. Peter J. Nelligan, with whom Messrs. J. Edward Nally and\nJoseph P. Lyons were on the brief, for defendants in error.\nMR. JUSTICE SUTHERLAND delivered the opinion of the\nCourt.\nA zoning ordinance of the City of Cambridge divides the\ncity into three kinds of districts: residential, business and\nunrestricted. Each of these districts is sub-classified in\nrespect of the kind of buildings which may be erected. The\nordinance is an elaborate one, and of the same general\ncharacter as that considered by this Court in Euclid v.\nAmbler Co., 272 U.S. 365. In its general scope it is conceded\nto be constitutional within that decision. The land of\nplaintiff in error was put in district R-3, in which are\npermitted only dwellings, hotels, clubs, churches, schools,\nphilanthropic institutions, greenhouses and gardening, with\ncustomary incidental accessories. The attack upon the\nordinance is that, as specifically applied to plaintiff in error,\nit deprived him of his property without due process of law\nin contravention of the Fourteenth Amendment.\nThe suit was for a mandatory injunction directing the city\nand its inspector of buildings to pass upon an application\nof the plaintiff in error for a permit to erect any lawful\nbuildings upon a tract of land without regard to the\nprovisions of the ordinance including such tract within a\n\n\x0cresidential district. The case was referred to a master to\nmake and report findings of fact. After a view of the\npremises and the surrounding territory, and a hearing, the\nmaster made and reported his findings. The case came on\nto be heard by a justice of the court, who, after confirming\nthe master\xe2\x80\x99s report, reported the case for the determination\nof the full court. Upon consideration, that court sustained\nthe ordinance as applied to plaintiff in error, and dismissed\nthe bill. 260 Mass. 441.\nA condensed statement of facts, taken from the master\xe2\x80\x99s\nreport, is all that is necessary. When the zoning ordinance\nwas enacted, plaintiff in error was and still is the owner of a\ntract of land containing 140,000 square feet, of which the\nlocus here in question is a part. The locus contains about\n29,000 square feet, with a frontage on Brookline street,\nlying west, of 304.75 feet, on Henry street, lying north, of\n100 feet, on the other land of the plaintiff in error, lying\neast, of 264 feet, and on land of the Ford Motor Company,\nlying southerly, of 75 feet. The territory lying east and south\nis unrestricted. The lands beyond Henry street to the north\nand beyond Brookline street to the west are within a\nrestricted residential district. The effect of the zoning is to\nseparate from the west end of plaintiff in error\xe2\x80\x99s tract a\nstrip 100 feet in width. The Ford Motor Company has a\nlarge auto assembling factory south of the locus; and a soap\nfactory and the tracks of the Boston & Albany Railroad lie\nnear. Opposite the locus, on Brookline street, and included\nin the same district, there are some residences; and\nopposite the locus, on Henry street, and in the same\ndistrict, are other residences. The locus is now vacant,\nalthough it was once occupied by a mansion house. Before\nthe passage of the ordinance in question, plaintiff in error\nhad outstanding a contract for the sale of the greater part\nof his entire tract of land for the sum of $63,000. Because\nof the zoning restrictions, the purchaser refused to comply\nwith the contract. Under the ordinance, business and\n\n117\n\n\x0cindustry of all sorts are excluded from the locus, while the\nremainder of the tract is unrestricted. It further appears that\nprovision has been made for widening Brookline street, the\neffect of which, if carried out, will be to reduce the depth\nof the locus to 65 feet. After a statement at length of\nfurther facts, the master finds \xe2\x80\x9cthat no practical use can be\nmade of the land in question for residential purposes,\nbecause among other reasons herein related, there would\nnot be adequate return on the amount of any investment\nfor the development of the property.\xe2\x80\x9d The last finding of\nthe master is:\n\xe2\x80\x9cI am satisfied that the districting of the plaintiff\xe2\x80\x99s land in a\nresidence district would not promote the health, safety,\nconvenience and general welfare of the inhabitants of that\npart of the defendant City, taking into account the natural\ndevelopment thereof and the character of the district and\nthe resulting benefit to accrue to the whole City and I so\nfind.\xe2\x80\x9d\nIt is made pretty clear that because of the industrial and\nrailroad purposes to which the immediately adjoining lands\nto the south and east have been devoted and for which they\nare zoned, the locus is of comparatively little value for the\nlimited uses permitted by the ordinance.\nWe quite agree with the opinion expressed below that a\ncourt should not set aside the determination of public\nofficers in such a matter unless it is clear that their action\n\xe2\x80\x9chas no foundation in reason and is a mere arbitrary or\nirrational exercise of power having no substantial relation\nto the public health, the public morals, the public safety or\nthe public welfare in its proper sense.\xe2\x80\x9d Euclid v. Ambler Co.,\nsupra, p. 395.\n\n118\n\n\x0cAn inspection of a plat of the city upon which the zoning\ndistricts are outlined, taken in connection with the master\xe2\x80\x99s\nfindings, shows with reasonable certainty that the inclusion\nof the locus in question is not indispensable to the general\nplan. The boundary line of the residential district before\nreaching the locus runs for some distance along the streets,\nand to exclude the locus from the residential district\nrequires only that such line shall be continued 100 feet\nfurther along Henry street and thence south along\nBrookline street. There does not appear to be any reason\nwhy this should not be done. Nevertheless, if that were all,\nwe should not be warranted in substituting our judgment\nfor that of the zoning authorities primarily charged with the\nduty and responsibility of determining the question. Zahn v.\nBd. of Public Works, 274 U.S. 325, 328, and cases cited. But\nthat is not all. The governmental power to interfere by\nzoning regulations with the general rights of the land owner\nby restricting the character of his use, is not unlimited, and\nother questions aside, such restriction cannot be imposed if\nit does not bear a substantial relation to the public health,\nsafety, morals, or general welfare. Euclid v. Ambler Co., supra,\np. 395. Here, the express finding of the master, already\nquoted, confirmed by the court below, is that the health,\nsafety, convenience and general welfare of the inhabitants\nof the part of the city affected will not be promoted by the\ndisposition made by the ordinance of the locus in question.\nThis finding of the master, after a hearing and an\ninspection of the entire area affected, supported, as we\nthink it is, by other findings of fact, is determinative of the\ncase. That the invasion of the property of plaintiff in error\nwas serious and highly injurious is clearly established; and,\nsince a necessary basis for the support of that invasion is\nwanting, the action of the zoning authorities comes within\nthe ban of the Fourteenth Amendment and cannot be\nsustained.\nJudgment reversed.\n\n119\n\n\x0cConiston Corporation v. Village of Hoffman Estates\n844 F.2d 461 (1988)\nFrancis X. Grossi, Jr., Katten, Muchin & Zavis, Chicago,\nIll., for plaintiffs-appellants.\nRichard N. Williams, Hoffman Estates, Ill., David L. Ader,\nAncel, Glink, Diamond, Murphy & Cope, Chicago, Ill., for\ndefendants-appellees.\nBefore POSNER, COFFEY, and EASTERBROOK,\nCircuit Judges.\nPOSNER, CIRCUIT JUDGE.\nThe plaintiffs own a tract of several hundred acres of land,\noriginally undeveloped, in the Village of Hoffman Estates,\nIllinois. Their complaint, laid under the ubiquitous section\n1 of the Civil Rights Act of 1871, 42 U.S.C. \xc2\xa7 1983, charges\nthat in turning down the site plan for a 17-acre parcel in the\ntract, the Village Board of Trustees and its members\nviolated the Constitution and state law. The district court\ndismissed the complaint for failure to state a claim.\nThe procedure for land development set forth in the\nVillage\xe2\x80\x99s ordinances \xe2\x80\x94 ordinances incorporated by\nreference in an agreement that the Village made with the\nplaintiffs, annexing their land to the Village \xe2\x80\x94 requires first\nof all that there be a general plan for development\napproved by the Village Board of Trustees. This condition\nwas met; there is an approved plan for the plaintiffs\xe2\x80\x99 tract.\nThe next step is that, as development proceeds, the\ndeveloper must submit site plans setting forth his plans for\ndeveloping particular parcels. The site plan is first\nsubmitted to the Village Plan Commission for its\nrecommendation and is then forwarded to the Board of\nTrustees for its approval or disapproval. No criteria are set\nforth in the ordinances or anywhere else to guide the\nBoard.\n\n120\n\n\x0cOver the years the plaintiffs have presented a number of\nsite plans for parcels within their tract, and these plans have\nbeen approved by both the Plan Commission and the\nBoard of Trustees. For the 17-acre parcel at issue in this\ncase, the plaintiffs submitted a plan that envisaged the\nconstruction of five single-story commercial buildings with\na total office space of 181,000 square feet. The Plan\nCommission recommended approval of the plan, finding\nthat it conformed to the general plan for the development\nof the plaintiffs\xe2\x80\x99 tract and to all applicable legal regulations.\nThe Board of Trustees, however, disapproved the plan. It\ngave no reasons for its action but one of the trustees\nindicated that the reason (her reason, at any rate) was that\nthe village has a lot of unused office space. (The Plan\nCommission had also expressed concern with the amount\nof vacant office space in the village.) Asked by the plaintiffs\nto reconsider its decision the Board went into executive\nsession and emerged with an announcement that it was\nadhering to its original decision. Again there was no\nstatement of reasons.\nBefore we get to the merits of the plaintiffs\xe2\x80\x99 appeal we\nmust decide whether we have jurisdiction. The defendants\nhad filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss\nthe complaint for failure to state a claim. The district judge\ngranted the motion and ordered the complaint dismissed,\nbut did not order the entry of a judgment dismissing the\nlawsuit; no one had asked him to. The dismissal of a\ncomplaint is not the dismissal of the lawsuit, see Bieneman v.\nCity of Chicago, 838 F.2d 962 (7th Cir.1988) (per curiam);\nBenjamin v. United States, 833 F.2d 669 (7th Cir.1987) (per\ncuriam), since the plaintiff may be able to amend his\ncomplaint to cure whatever deficiencies had caused it to be\ndismissed. As long as the suit itself remains pending in the\ndistrict court, there is no final judgment and we have no\njurisdiction under 28 U.S.C. \xc2\xa7 1291. This is particularly\nclear in a case such as the present one, where the plaintiff\n\n121\n\n\x0chad not amended his complaint before it was dismissed and\nthe defendant had not filed a responsive pleading; for then\nthe plaintiff has a right to amend his complaint without\nleave of court. Fed.R.Civ.P. 15(a); Car Carriers, Inc. v. Ford\nMotor Co., 745 F.2d 1101, 1111 (7th Cir.1984).\nIf, however, it is plain that the complaint will not be\namended, perhaps because the grounds of the dismissal\nmake clear that no amendment could cure the defects in\nthe plaintiff\xe2\x80\x99s case, the order dismissing the complaint is\nfinal in fact and we have jurisdiction despite the absence of\na formal judgment under Fed.R.Civ.P. 58. See, e.g., Akins v.\nBoard of Governors, 840 F.2d 1371, 1375 n. 2 (7th Cir.1988);\nHickey v. Duffy, 827 F.2d 234, 238 (7th Cir.1987). That is\nthis case, notwithstanding the district judge\xe2\x80\x99s mysterious\nstatement that he was dismissing the complaint \xe2\x80\x9cin its\npresent state.\xe2\x80\x9d The complaint sets forth the plaintiffs\xe2\x80\x99 case\nin full; there appear to be no disputed or unclear facts; and\nthe district judge found that the complaint stated no claim\nunder federal law and he then relinquished his jurisdiction\nof the pendent state law counts in accordance with the\nusual rule that pendent claims are dismissed when the\nfederal claims drop out before trial. The plaintiffs have no\nfeasible options in the district court; the case is over for\nthem there. Therefore they can appeal \xe2\x80\x94 but it would have\nbeen a lot simpler if either the plaintiffs or the defendants\nhad asked the district court to enter a Rule 58 judgment\norder. We hope that, in the future, parties to litigation in\nthis circuit will do that.\nThe plaintiffs\xe2\x80\x99 only federal claims are that they were denied\n\xe2\x80\x9csubstantive\xe2\x80\x9d and \xe2\x80\x9cprocedural\xe2\x80\x9d due process. They\nexpressly waived any claim they may have had that the\ndefendants, by preventing them from developing the 17acre parcel in accordance with the site plan, took their\nproperty without paying just compensation, in violation of\nthe Fifth and Fourteenth Amendments. In this court they\ntry to withdraw their waiver because of intervening\n\n122\n\n\x0cSupreme Court decisions which they argue have broadened\nthe concept of a regulatory taking, but their effort is futile.\nThe taking is complete when it occurs, and the duty to pay\njust compensation arises then, see, e.g., First Evangelical\nLutheran Church v. County of Los Angeles, ___ U.S. ___, 107\nS.Ct. 2378, 2389 n. 10, 96 L.Ed.2d 250 (1987), but the suit\nfor just compensation is not ripe until it is apparent that the\nstate does not intend to pay compensation, Williamson\nCounty Regional Planning Comm\xe2\x80\x99n v. Hamilton Bank, 473 U.S.\n172, 194, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985);\nUnity Ventures v. County of Lake, 841 F.2d 770, 773-74 (7th\nCir.1988). These plaintiffs have not explored the possibility\nof obtaining compensation for an alleged regulatory taking.\nIn fact, they do not want compensation; they want their site\nplan approved.\nOne might have thought that the takings clause would\noccupy the field of constitutional remedies for\ngovernmental actions that deprive people of their property,\nand hence that the plaintiffs\xe2\x80\x99 waiver of their takings claim\nwould drag their due process claims down with it. But this\nis not correct; pushed to its logical extreme, the argument\nwould read \xe2\x80\x9cproperty\xe2\x80\x9d out of the due process clause of the\nFifth and Fourteenth Amendments. Even limited to claims\nof denial of substantive due process the argument may fail.\nRather than being viewed simply as a limitation on\ngovernmental power the takings clause could be viewed as\nthe source of a governmental privilege: to take property for\npublic use upon payment of the market value of that\nproperty, since \xe2\x80\x9cjust compensation\xe2\x80\x9d has been held to be\nsatisfied by payment of market value, see, e.g., United States\nv. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12\n(1970). Compensation in the constitutional sense is\ntherefore not full compensation, for market value is not the\nvalue that every owner of property attaches to his property\nbut merely the value that the marginal owner attaches to his\nproperty. Many owners are \xe2\x80\x9cintramarginal,\xe2\x80\x9d meaning that\n\n123\n\n\x0cbecause of relocation costs, sentimental attachments, or the\nspecial suitability of the property for their particular\n(perhaps idiosyncratic) needs, they value their property at\nmore than its market value (i.e., it is not \xe2\x80\x9cfor sale\xe2\x80\x9d). Such\nowners are hurt when the government takes their property\nand gives them just its market value in return. The taking in\neffect confiscates the additional (call it \xe2\x80\x9cpersonal\xe2\x80\x9d) value\nthat they obtain from the property, but this limited\nconfiscation is permitted provided the taking is for a public\nuse. It can be argued that if the taking is not for a public\nuse, it is unconstitutional, but perhaps not as a taking; for\nall the takings clause says is \xe2\x80\x9cnor shall private property be\ntaken for public use, without just compensation.\xe2\x80\x9d This\nlanguage specifies a consequence if property is taken for a\npublic use but is silent on the consequences if property is\ntaken for a private one. Perhaps the effect of this silence is\nto dump the case into the due process clause. The taking\nwould then be a deprivation of property without due\nprocess of law. The victim could bring suit under section\n1983 against the governmental officials who took or are\nthreatening to take his property, seeking an injunction\nagainst the taking (or an order to return the property if, it\nhas been taken already \xe2\x80\x94 subject to whatever defense the\nEleventh Amendment might afford against such a remedy)\nor full tort damages, not just market value.\nThere are two objections to this approach. First, the takings\nclause may be broad enough to take care of the problem\nwithout the help of the due process clause. The Supreme\nCourt may believe that the takings clause, of its own force,\nforbids any governmental taking not for a public use, even\nif just compensation is tendered. There is language to this\neffect in a number of opinions, see, e.g., Hawaii Housing\nAuthority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329,\n81 L.Ed.2d 186 (1984), though it may be inadvertent, and\nthere is language in some cases that looks the other way \xe2\x80\x94\nor both ways, compare First English Evangelical Lutheran\n\n124\n\n\x0cChurch v. County of Los Angeles, ___ U.S. ___, 107 S.Ct. 2378,\n2385, 96 L.Ed.2d 250 (1987), with id. 107 S.Ct. at 2386\n(takings clause requires compensation \xe2\x80\x9cin the event of\notherwise proper interference amounting to a taking\xe2\x80\x9d). In\nMidkiff the Court cited, as an example of a case where it\nhad \xe2\x80\x9cinvalidated a compensated taking of property for lack\nof a justifying public purpose,\xe2\x80\x9d 467 U.S. at 241, 104 S.Ct. at\n2329,a case (Missouri Pac. Ry. v. Nebraska, 164 U.S. 403, 417,\n17 S.Ct. 130, 135, 41 L.Ed. 489 (1896)) where in fact the\nCourt, after finding there was no public use, had held that\nthe state had denied the owner due process of law. In other\nwords, once the privilege created by the takings clause was\nstripped away, the state was exposed as having taken a\nperson\xe2\x80\x99s property without due process of law. But this was\nbefore the takings clause had been held applicable to the\nstates (via the due process clause of the Fourteenth\nAmendment) in Chicago, Burlington & Quincy R.R. v. City of\nChicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979\n(1897) \xe2\x80\x94 though only a year before.\nIt seems odd that the takings clause would require just\ncompensation when property was taken for a public use yet\ngrant no remedy when the property was taken for a private\nuse, although the semantics of the clause are consistent\nwith such an interpretation, as we have seen. Yet well after\nthe takings clause was deemed absorbed into the due\nprocess clause of the Fourteenth Amendment, the Supreme\nCourt reviewed a zoning ordinance for conformity to\nsubstantive due process. See Euclid v. Ambler Realty Co., 272\nU.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Justice Stevens\nhas said that the Court in Euclid \xe2\x80\x9cfused the two express\nconstitutional restrictions on any state interference with\nprivate property \xe2\x80\x94 that property shall not be taken without\ndue process nor for a public purpose without just\ncompensation \xe2\x80\x94 into a single standard.\xe2\x80\x9d Moore v. City of\nEast Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 1943, 52\nL.Ed.2d 531 (1977) (concurring opinion).\n\n125\n\n\x0cThe other objection to the due process route in a case such\nas the present one is that it depends on the idea of\n\xe2\x80\x9csubstantive\xe2\x80\x9d due process. This is the idea that depriving a\nperson of life, liberty, or property can violate the due\nprocess clause of the Fifth and Fourteenth Amendments\neven if there are no procedural irregularities \xe2\x80\x94 even if, for\nexample, the state after due deliberation has passed a\nstatute establishing procedures for taking private homes\nand giving them to major campaign contributors or people\nwith red hair, and in taking the plaintiff\xe2\x80\x99s home has\ncomplied scrupulously with the statute\xe2\x80\x99s procedural\nrequirements.\nSubstantive due process is a tenacious but embattled\nconcept. Text and history, at least ancient history, are\nagainst it, though perhaps not decisively. (See generally\nJurow, Untimely Thoughts: A Reconsideration of the Origins of Due\nProcess of Law, 19 Am.J. Legal Hist. 265 (1975).) A provision\nwhich states that life, liberty, or property may not be taken\nwithout due process of law implies that life, liberty, or\nproperty can be taken with due process of law, and hence\nthat the only limitations are procedural ones. The term\n\xe2\x80\x9cdue process of law\xe2\x80\x9d has been traced back to a fourteenthcentury English statute, in which the term plainly referred\nto procedure rather than substance. See 28 Edw. III, ch. 3\n(1354) (\xe2\x80\x9cno man \xe2\x80\xa6 shall be put out of land \xe2\x80\xa6, nor taken,\nnor imprisoned, nor disinherited, nor put to death, without\nbeing brought into answer by due process of law\xe2\x80\x9d). In the\nseventeenth century Sir Edward Coke confused the picture\nby equating the term to Magna Carta\xe2\x80\x99s much vaguer\nexpression \xe2\x80\x9cby the law of the land.\xe2\x80\x9d The Supreme Court\nadopted Coke\xe2\x80\x99s approach in Murray\xe2\x80\x99s Lessee v. Hoboken Land\n& Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed.\n372 (1856), pointing out that the Northwest Ordinance and\nseveral state constitutions had used the Magna Carta\nlanguage and implying that the terminology was\ninterchangeable in the Fifth Amendment as well. Even so,\n\n126\n\n\x0cthe term \xe2\x80\x9claw of the land\xe2\x80\x9d is scarcely pellucid. Further\ncomplications are injected by the much debated legislative\nhistory of the Fourteenth Amendment.\nThe strongest criticisms of substantive due process are\ninstitutional ones. The concept invests judges with an\nuncanalized discretion to invalidate federal and state\nlegislation. See Illinois Psychological Ass\xe2\x80\x99n v. Falk, 818 F.2d\n1337, 1342 (7th Cir.1987); Gumz v. Morrissette, 772 F.2d\n1395, 1404-08 (7th Cir.1985) (concurring opinion),\noverruled (on the grounds urged in the concurrence) in\nLester v. City of Chicago, 830 F.2d 706 (7th Cir.1987); Chicago\nBoard of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 744-45\n(7th Cir.1987) (separate majority opinion). It also and by\nthe same token invites the federal courts to sit in judgment\non almost all state action \xe2\x80\x94 including, to come back to the\npresent case, all zoning decisions. For it is tempting to view\nevery zoning decision that is adverse to the landowner and\nin violation of state law as a deprivation of property.\nProperty is not a thing, but a bundle of rights, and if the\nstate confers rights with one hand and takes them away\nwith the other, by a zoning decision that by violating state\nlaw deprives the owner of a property right and not just a\nproperty interest (the owner\xe2\x80\x99s financial interest in being\nable to employ his land in its most valuable use), why is it\nnot guilty of denying substantive due process?\nNo one thinks substantive due process should be\ninterpreted so broadly as to protect landowners against\nerroneous zoning decisions. But it is difficult to come up\nwith limiting concepts that are not completely ad hoc.\nJustice Stevens tried \xe2\x80\x94 though in the context of judicial\nreview of an ordinance, rather than of an individual\ndecision applying an ordinance \xe2\x80\x94 in his concurring\nopinion in Moore v. City of East Cleveland, supra, 431 U.S. at\n520, 97 S.Ct. at 1946, where he suggested that an ordinance\nthat is not \xe2\x80\x9cshown to have any \xe2\x80\x98substantial relation to the\npublic health, safety, morals or general welfare\xe2\x80\x99\xe2\x80\x9d and that\n\n127\n\n\x0c\xe2\x80\x9ccuts deeply into a fundamental right associated with the\nownership of residential property\xe2\x80\x9d violates the\nConstitution.\nThe present case is so remote from a plausible violation of\nsubstantive due process that we need not decide whether,\nor to precisely what extent, the concept limits takings by\nstate and local governments; or whether the takings clause\ndoes so; or whether both or neither do so and if both\nwhether there is any practical difference except possibly in\na case like this where the plaintiff waives any claim based\non the takings clause; or, finally, whether the plaintiffs can\nforce us to confront difficult questions of substantive due\nprocess by their decision to waive a seemingly more\nstraightforward claim under the takings clause. The Village\nof Hoffman Estates did not take the plaintiffs\xe2\x80\x99 land (or in\nthe language of the due process clause, deprive them of the\nland) for a private (hence presumptively unreasonable)\npurpose, so even if we assume that if both conditions were\nfulfilled the taking or deprivation would violate the due\nprocess clause, the plaintiffs cannot prevail.\nAs to whether there was a deprivation: Granted, the\nrejection of the plaintiffs\xe2\x80\x99 site plan probably reduced the\nvalue of their land. The plan must have represented their\nbest guess about how to maximize the value of the\nproperty, and almost certainly a better guess than\ngovernmental officials would make even if the officials\nwere trying to maximize that value, which of course they\nwere not. But the plaintiffs do not even argue that the\nrejection of the site plan reduced the value of their parcel\nmuch, let alone that the parcel will be worthless unless it\ncan be used to create 181,000 square feet of office space. A\ntaking is actionable under the takings clause even if it is of\njust a sliver of the owner\xe2\x80\x99s property (e.g., a one-foot strip at\nthe back of a 100-acre estate), see Loretto v. Teleprompter\nManhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73\nL.Ed.2d 868 (1982), and we can assume that the same thing\n\n128\n\n\x0cis true under the due process clause. But in cases under the\ntakings clause the courts distinguish between taking away\nall of the owner\xe2\x80\x99s rights to a small part of his land and\ntaking away (through regulation) a few of his rights to all of\nhis land, and grant much broader protection in the first\ncase. With Loretto compare City of Eastlake v. Forest City\nEnterprises, Inc., 426 U.S. 668, 674 and n. 8, 96 S.Ct. 2358,\n2362 and n. 8, 49 L.Ed.2d 132 (1976); Barbian v. Panagis, 694\nF.2d 476, 483-85 (7th Cir.1982), and cases cited there. The\nplaintiffs in this case have been deprived of their \xe2\x80\x9cright\xe2\x80\x9d to\ncreate 181,000 square feet of office space on a 17-acre\nparcel of a much larger tract, and that deprivation is a\nlimited, perhaps minimal, incursion into their property\nrights. If so it is not a deprivation at all, in the\nconstitutional sense, and the due process clause is not in\nplay. See Wells Fargo Armored Service Corp. v. Georgia Public\nService Comm\xe2\x80\x99n, 547 F.2d 938, 941 (5th Cir.1977); cf. Brown v.\nBrienen, 722 F.2d 360, 364 (7th Cir.1983) (dictum); York v.\nCity of Cedartown, 648 F.2d 231 (5th Cir.1981) (per curiam).\nConsidering now the grounds as distinct from the\nconsequences of the defendants\xe2\x80\x99 action, it may seem that\nsince the Board of Trustees gave no reason for rejecting the\nplan we cannot exclude the possibility that the motive for\nthe rejection was private, so that if (but it is a big if, as we\nhave just seen) the rejection amounted to a taking or\ndeprivation of property the plaintiffs\xe2\x80\x99 constitutional rights\nmay have been violated. And even if, as seems plausible,\nthe reason given by one trustee was the ground for the\nBoard\xe2\x80\x99s rejection of the site plan, this reason seems to\namount to nothing more than a desire to protect existing\nowners of office buildings from new competition, and thus\nmakes the rejection look like an effort to transfer wealth\nfrom the plaintiffs to the existing owners. But as\nemphasized in our opinion in the Chicago Board of Realtors\ncase, much governmental action is protectionist or\nanticompetitive, see 819 F.2d at 742, 745; and nothing is\n\n129\n\n\x0cmore common in zoning disputes than selfish opposition\nto zoning changes. The Constitution does not forbid\ngovernment to yield to such opposition; it does not outlaw\nthe characteristic operations of democratic (perhaps of any)\ngovernment, operations which are permeated by pressure\nfrom special interests. Rogin v. Bensalem Township, 616 F.2d\n680, 687-88 (3d Cir.1980). There is no suggestion that the\ndefendants acted out of some partisan political motive that\nmight raise questions under the First Amendment or, one\nof our sister courts has suggested recently, under some\nnotion of substantive due process, see Bello v. Walker, 840\nF.2d 1124, 1129 (3d Cir.1988).\nThis case presents a garden-variety zoning dispute dressed\nup in the trappings of constitutional law \xe2\x80\x94 a sure sign of\nmasquerade being that the plaintiffs do not challenge the\nconstitutionality of the zoning ordinances of the Village of\nHoffman Estates but argue rather than the Board of\nTrustees had no authority under those ordinances to reject\ntheir site plan once the Village Plan Commission had\napproved it. If the plaintiffs can get us to review the merits\nof the Board of Trustees\xe2\x80\x99 decision under state law, we\ncannot imagine what zoning dispute could not be\nshoehorned into federal court in this way, there to displace\nor postpone consideration of some worthier object of\nfederal judicial solicitude. Something more is necessary than\ndissatisfaction with the rejection of a site plan to turn a\nzoning case into a federal case; and it should go without\nsaying that the something more cannot be merely a\nviolation of state (or local) law. A violation of state law is\nnot a denial of due process of law. See, e.g., Hebert v.\nLouisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed.\n270 (1926); Kompare v. Stein, 801 F.2d 883, 888 (7th\nCir.1986); Kasper v. Board of Election Comm\xe2\x80\x99rs, 814 F.2d 332,\n342 (7th Cir.1987).\nThus we agree with the First Circuit\xe2\x80\x99s decision in Creative\nEnvironments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st\n\n130\n\n\x0cCir.1982), that the fact \xe2\x80\x9cthat town officials are motivated by\nparochial views of local interests which work against\nplaintiffs\xe2\x80\x99 plan and which may contravene state subdivision\nlaws\xe2\x80\x9d (or, we add, local ordinances) does not state a claim\nof denial of substantive due process. We cited Estabrook\nwith approval in Burrell v. City of Kankakee, 815 F.2d 1127,\n1129 (7th Cir.1987). It is true that there we interpreted\nEstabrook to mean that \xe2\x80\x9cin order to prevail on a substantive\ndue process claim, plaintiffs must allege and prove that the\ndenial of their proposal is arbitrary and unreasonable\nbearing no substantial relationship to the public health,\nsafety or welfare,\xe2\x80\x9d id. This formulation, borrowed from\nEuclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114,\n121, 71 L.Ed. 303 (1926), which dealt with the validity of\nzoning ordinances, not of individual zoning decisions\nwhere arguably the standard of federal judicial review\nshould be narrower, is broadly worded indeed; but the only\nexample we gave of a zoning decision that might flunk the\ntest was one based on race or color, see 815 F.2d at 1129.\nOf course if a zoning decision is based on considerations\nthat violate specific constitutional guarantees, it is invalid;\nbut in all other cases the decision can be said to deny\nsubstantive due process only if it is irrational. See Shelton v.\nCity of College Station, 780 F.2d 475, 479-83 (5th Cir.1986);\nPace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023,\n1034-35 (3d Cir.1987). Thus, by \xe2\x80\x9carbitrary and\nunreasonable\xe2\x80\x9d in Burrell we meant invidious or irrational.\nSee also Unity Ventures v. County of Lake, supra, 841 F.2d at\n775 n. 2. The same test would be appropriate if the zoning\ndecision were challenged under the equal protection clause\nof the Fourteenth Amendment, rather than under the due\nprocess clause of the Fifth or Fourteenth Amendments. See\nid.; Parks v. Watson, 716 F.2d 646, 654 (9th Cir.1983) (per\ncuriam).\nAt worst, the decision here was mistaken and protectionist;\nit was not irrational, so the claim of a denial of substantive\n\n131\n\n\x0cdue process fails. But were the plaintiffs denied procedural\ndue process? As often, the line between \xe2\x80\x9cprocedure\xe2\x80\x9d and\n\xe2\x80\x9csubstance\xe2\x80\x9d is hazy in the setting of the regulation of land\nuses. The denial of the plaintiffs\xe2\x80\x99 site plan without a full\nstatement of reasons is what gives the denial such arbitrary\ncast as it may have, and thus lends color to the claim of\nirrationality, which is the substantive due process claim; but\nthe failure to give reasons is also the cornerstone of the\nprocedural due process claim. It is no good saying that if a\nperson is deprived of property for a bad reason it violates\nsubstantive due process and if for no reason it violates\nprocedural due process. Unless the bad reason is invidious\nor irrational, the deprivation is constitutional; and the noreason case will sometimes be a case of invidious or\nirrational deprivation, too, depending on the motives and\nconsequences of the challenged action.\nThe plaintiffs complain not only about the absence of a\nstatement of reasons but also about the Board of Trustees\xe2\x80\x99\naction in going into executive session and about the\nabsence of any language in the Village\xe2\x80\x99s ordinances to\nindicate that the Board of Trustees is authorized to reject a\nsite plan recommended by the Plan Commission. These\ncomplaints might have considerable force if the zoning\ndecision had been adjudicative in nature, but it was not.\nThe very absence of criteria, coupled with the fact that the\nVillage Board of Trustees is the governing body of the\nVillage of Hoffman, suggests that, as is usually true of\nzoning, the Board\xe2\x80\x99s decision to approve or disapprove a\nsite plan is a legislative rather than adjudicative decision.\nThe difference is critical. See Bi-Metallic Investment Co. v. State\nBoard of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed.\n372 (1915); City of Eastlake v. Forest City Enterprises, Inc.,\nsupra, 426 U.S. at 675 n. 10, 96 S.Ct. at 2363 n. 10; Griffin\nHigh School v. Illinois High School Ass\xe2\x80\x99n, 822 F.2d 671, 676\n(7th Cir.1987); Philly\xe2\x80\x99s v. Byrne, 732 F.2d 87, 92 (7th\nCir.1984). The Constitution does not require legislatures to\n\n132\n\n\x0cuse adjudicative-type procedures, to give reasons for their\nenactments, or to act \xe2\x80\x9creasonably\xe2\x80\x9d in the sense in which\ncourts are required to do; as already noted, legislatures can\nbase their actions on considerations \xe2\x80\x94 such as the desire\nof a special-interest group for redistributive legislation in its\nfavor \xe2\x80\x94 that would be thought improper in judicial\ndecision-making. It is odd, though, that the plaintiffs\nshould complain about the action of the Board of Trustees\nin considering their request for reconsideration in executive\nsession; judicial deliberations are typically more private than\nlegislative ones.\nIt is not labels that determine whether action is legislative\nor adjudicative. A legislature is not allowed to circumvent\nthe due process clause by the facile expedient of\nannouncing that the state\xe2\x80\x99s courts and administrative\nagencies are henceforth to be deemed legislative bodies\neven though nothing in their powers and procedures has\nchanged. But neither is the legislature required to judicialize\nzoning, and perhaps it would not be well advised to do so.\nThe decision whether and what kind of land uses to permit\ndoes not have the form of a judicial decision. The potential\ncriteria and considerations are too open-ended and illdefined. Granted, much modern adjudication has this\ncharacter, but the difference is that even modern courts\nhesitate to treat the decision-making process as a wideopen search for the result that is just in light of all possible\nconsiderations of distributive and corrective justice, while\nlegislatures are free to range widely over ethical and\npolitical considerations in deciding what regulations to\nimpose on society. The decision to make a judgment\nlegislative is perforce a decision not to use judicial\nprocedures, since they are geared to the making of more\ncircumscribed, more \xe2\x80\x9creasoned\xe2\x80\x9d judgments. Moreover, if a\nstate legislature wishes to reserve to itself the type of\ndecision that in other systems might be given to the\nexecutive or judicial branches, it can do so without violating\n\n133\n\n\x0cthe federal Constitution, which does not require a specific\nseparation and allocation of powers within state\ngovernment. See Highland Farms Dairy, Inc. v. Agnew, 300\nU.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); United\nBeverage Co. v. Indiana Alcoholic Beverage Comm\xe2\x80\x99n, 760 F.2d 155\n(7th Cir.1985). It has been argued that the need for\nseparation of powers is even greater at the state than the\nnational level, because a smaller polity is more susceptible\nto the pressure of factions than a large one. See Comment,\nThe Guarantee of Republican Government: Proposals for Judicial\nReview, 54 U.Chi.L.Rev. 208, 234-35 (1987). The\ncounterargument is that there is more intergovernmental\ncompetition the lower the level of government. The debate\nis foreclosed at our level of the judiciary by higher\nauthority.\nThe Board of Trustees is the Village\xe2\x80\x99s legislature, LaSalle\nNational Bank v. Village of Bloomingdale, 154 Ill.App.3d 918,\n928-29, 107 Ill.Dec. 604, 611, 507 N.E.2d 517, 524 (1987),\nand it has reserved to itself the final decision in zoning\nmatters. Naturally it has not sought to tie its hands with\ncriteria for approval of site plans or with a requirement that\nit give reasons for its action and always act in a fishbowl.\nThe check on its behavior is purely electoral, but, as the\nSupreme Court stated in the City of Eastlake case, in a\ndemocratic polity this method of checking official action\ncannot be dismissed as inadequate per se. See also BiMetallic Investment Co. v. State Board of Equalization, supra, 239\nU.S. at 445, 36 S.Ct. at 142; Philly\xe2\x80\x99s v. Byrne, supra, 732 F.2d\nat 91-93.\nA reason stressed in Philly\xe2\x80\x99s why legislatures are not\nrequired to follow trial-type procedures is the across-theboard character of legislation. See id. at 92. A statute, unlike\na judicial decision, applies directly to a whole class of\npeople, and it is this attribute that makes democractic\nchecking feasible, though it is far from perfect. The smaller\nthe class affected by a nominally legislative act, the weaker\n\n134\n\n\x0cthe democratic check; in the limit, where the class has only\none member, we have the bill of attainder, which Congress\nand state legislatures are forbidden to enact. See U.S.\nConst., art. I, \xc2\xa7\xc2\xa7 9, 10; Philly\xe2\x80\x99s v. Byrne, supra, 732 F.2d at 93.\nThe class here is small. This might support an argument\nthat some type of individualized hearing was required. See\nLondoner v. City & County of Denver, 210 U.S. 373, 385-86, 28\nS.Ct. 708, 713-14, 52 L.Ed. 1103 (1908). City of Eastlake,\nupholding the decision to submit a single landowner\xe2\x80\x99s\nzoning application to a referendum, cuts the other way. In\nany event, there was a hearing here \xe2\x80\x94 maybe not enough\nof one to satisfy the requirements of due process in an\nadjudicative setting but enough to give the plaintiffs all the\nprocess that due process in zoning could possibly be\nthought to require after City of Eastlake.\nOne point remains to be noted briefly. The district court\ndismissed a pendent state law claim that sought a\nmandamus directing the defendants to approve the\nplaintiffs\xe2\x80\x99 site plan. The ground for the dismissal was, as we\nnoted, the fact that the federal claims were being dismissed\nbefore trial. That is fine, but we think it useful to add for\nfuture reference that the court had in any event no\njurisdiction to issue a mandamus against state officials for\nviolating their duties under state law. The interference with\nthe operation of state government from such a mandamus\nwould be disproportionate to the need, which can be\nsatisfied perfectly well (if perhaps with some loss of\nconvenience) by proceeding in state court. The interference\nwould be even greater than that caused by the usual\ninjunction \xe2\x80\x94 and the Supreme Court has held that the\nfederal courts\xe2\x80\x99 pendent jurisdiction may not be used as a\nbasis for enjoining state officials from violating state law.\nSee Pennhurst State School & Hospital v. Halderman, 465 U.S.\n89, 106, 120-21, 104 S.Ct. 900, 918-19, 79 L.Ed.2d 67\n(1984).\nAFFIRMED.\n\n135\n\n\x0c3.1.2. State Courts\nTwigg v. County of Will,255 Ill. App.3d 490\n627 N.E.2d 742, (1994)\nJohn X. Breslin, Deputy Director, State\xe2\x80\x99s Attys. Appellate\nProsecutor, Ottawa, James Glasgow, Will County State\xe2\x80\x99s\nAtty., Joliet, Judith Z. Kelly (argued), State\xe2\x80\x99s Attys.\nAppellate Prosecutor, Ottawa, for County of Will.\nThomas R. Wilson (argued), Herschbach, Tracy, Johnson,\nBertani & Wilson, Joliet, for John W. Twigg and Anna M.\nTwigg.\nJUSTICE BARRY delivered the opinion of the court.\nDefendant County of Will appeals from a judgment of the\nCircuit Court of Will County declaring defendant\xe2\x80\x99s county\nzoning ordinance void and unconstitutional as applied to\nthe property of plaintiffs John W. and Anna Twigg and\ngranting injunctive relief to restrain defendant from\nenforcing its A-1 (agricultural) zoning regulation with\nrespect to the subject real estate. The issue in this appeal is\nwhether the trial court\xe2\x80\x99s decision is contrary to the manifest\nweight of the evidence. For reasons that follow, we affirm.\nAccording to the record on appeal, plaintiffs purchased a\n35-acre parcel of land in Peotone Township zoned A-1 for\n$3750 per acre in 1991. John Twigg testified that he knew\nthe zoning classification at the time of the purchase, but he\nwas not aware that the corresponding county ordinance\nrequired a minimum of 10 acres per residential unit. He\ntestified that he had intended to divide the real estate into\nfour parcels to provide separate residential lots for himself\nand his three adult children and to raise and keep horses.\nHowever, because of complaints of an adjoining propertyowner, plaintiffs sold off the eastern-most 10 acres for\n$50,000. They then proposed to divide the remaining\nacreage into two 10-acre lots for one son and their\ndaughter, and to split the last 5 acres into two lots of 2 1/2\nacres each for themselves and their other son. Because\n\n136\n\n\x0cplaintiffs\xe2\x80\x99 plans for the five acres did not conform with the\nA-1 classification, they petitioned the Will County Board to\nrezone the five acres from A-1 to E-2, which permits\ncountry residential lots of 2 1/2 acres. The Board denied\nplaintiffs\xe2\x80\x99 application, and they brought their complaint for\ndeclaratory and injunctive relief in the circuit court.\nAt trial, plaintiffs presented expert testimony of Thomas\nMurphy, a land use planner, and Charles Southcomb, a real\nestate appraiser. Murphy testified that E-2 zoning was a\ngood use of the five-acre parcel and that it would have a\npositive effect on the future development of the\nsurrounding area in that it would increase tax values while\nproviding attractive residences in the immediate area. He\nfurther opined that the current A-1 zoning had no practical\napplication and its 10-acre limitation was \xe2\x80\x9csomewhat\narbitrary\xe2\x80\x9d as applied to plaintiffs\xe2\x80\x99 proposed use. As a\nformer director of the Will County Regional Planning\nCommission, Murphy testified that in his opinion the\ncounty had assigned A-1 classification arbitrarily to all tracts\nin Will County that were not otherwise used for nonagricultural purposes when the county zoning ordinance\nwas adopted in 1978. He testified that the county had a\nhistory of turning down all applications for rezoning to\ndevelop parcels of less than 10 acres. Finally, Murphy\ntestified that denial of plaintiffs\xe2\x80\x99 proposed use of the fiveacre parcel for two single-family residences adjacent to their\ndaughter\xe2\x80\x99s horse-keeping operation would do nothing to\npreserve the agricultural character of the surrounding area.\nSouthcomb testified that the plaintiffs\xe2\x80\x99 proposed use of the\nfive-acre parcel as two lots zoned E-2 was the highest and\nbest use. He testified that the market value of the land as\ncurrently zoned was $5000 per acre, and that using a\ncomparable sales analysis it would be $12,000 per acre if\nrezoned E-2.\nJames Shelby, Director of Planning for Will County, and\nBruce Clover, a farmer in the immediate area, testified on\n\n137\n\n\x0cdefendant\xe2\x80\x99s behalf. Shelby testified that there were no\nparcels zoned E-2 within a 1 1/2-mile radius of the subject\nproperty. However, he admitted that there are about five\nnon-conforming parcels with residences on less than 10acre lots within that 1 1/2-mile radius. These all had been\nin existence prior to the enactment of the 1978 zoning\nordinance. Shelby testified that residential development was\ngenerally incompatible with agricultural use because the\nhomeowners complained about farming practices. He also\nexpressed concern about setting a precedent for residential\ndevelopment if the rezoning were allowed in this case.\nClover testified that he had leased the subject real estate\nfrom the prior owner and had himself netted about $150\nper acre per year on a crop-share basis. He stated that he\nbore no animosity toward the plaintiffs, but that\nagricultural use was incompatible with residential\ndevelopment to the extent that mail boxes and garbage\ncans along the roadways might hinder the movement of\nfarm machinery, or children playing in the area might\ndamage terraces and downspouts. Clover agreed that the\nsoil was \xe2\x80\x9cexcellent\xe2\x80\x9d for growing crops, including alfalfa,\nand for pasturing horses.\nAt the conclusion of all testimony and closing arguments of\ncounsel, the court took the matter under advisement. On\nFebruary 22, 1993, a written decision was entered granting\ndeclaratory and injunctive relief for plaintiffs, as aforesaid.\nZoning is primarily a legislative function, and it is within\nthe province of local governmental bodies to determine the\nuse of land and to establish zoning classifications.\nAccordingly, a zoning ordinance will be deemed\nconstitutional and its validity upheld if it bears any \xe2\x80\x9c\n\xe2\x80\x98substantial relationship to the public health, safety,\ncomfort or welfare.\xe2\x80\x99 \xe2\x80\x9d ( La Grange State Bank v. County of\nCook (1979), 75 Ill.2d 301, 26 Ill.Dec. 673, 675-76, 388\nN.E.2d 388, 390-91 ( quoting Tomasek v. City of Des\nPlaines (1976), 64 Ill.2d 172, 179-80, 354 N.E.2d 899, 903).)\n\n138\n\n\x0cA party challenging the validity of a zoning ordinance must\nestablish both the invalidity of the existing zoning\nordinance and the reasonableness of the proposed use of\nthe property. ( Glenview State Bank v. Village of Deerfield\n(1991), 213 Ill.App.3d 747, 758, 157 Ill.Dec. 330, 338, 572\nN.E.2d 399, 407.) The party challenging the ordinance has\nthe burden of proving by clear and convincing evidence\nthat the application of the ordinance to the property is\n\xe2\x80\x9cunreasonable and arbitrary and bears no substantial\nrelation to public health, safety, morals, or welfare.\xe2\x80\x9d\n(Cosmopolitan National Bank v. County of Cook (1984),\n103 Ill.2d 302, 310, 82 Ill.Dec. 649, 653, 469 N.E.2d 183,\n187.) An appellate court may not reverse the trial court\xe2\x80\x99s\nfindings unless such findings are against the manifest\nweight of the evidence. ( Glenview State Bank, 213\nIll.App.3d at 759, 157 Ill.Dec. at 309, 572 N.E.2d at 408.)\nThe trier of fact is in a better position to assess the\ncredibility of the witnesses and their opinions, and the\nreviewing court may not reverse simply because the\nreviewing court may have come to a different conclusion.\nGlenview State Bank, 213 Ill.App.3d at 759-60, 157 Ill.Dec.\nat 309, 572 N.E.2d at 408.\nThere are eight factors to consider in determining whether\na zoning ordinance is valid. The first six factors were listed\nin La Salle National Bank v. County of Cook (1957), 12\nIll.2d 40, 46-47, 145 N.E.2d 65, 69. They are: (1) the\nexisting uses and zoning of nearby property; (2) the extent\nto which property values are diminished by the particular\nzoning restrictions; (3) the extent to which the destruction\nof property values of plaintiff promote the health, safety,\nmorals or welfare of the public; (4) the relative gain to the\npublic as compared to the hardship imposed upon the\nindividual property owner; (5) the suitability of the subject\nproperty for the zoned purposes; and (6) the length of time\nthe property has been vacant as zoned considered in the\ncontext of land development in the area in the vicinity of\n\n139\n\n\x0cthe subject property. The final two factors set forth in\nSinclair Pipeline Co. v. Village of Richton Park (1960), 19\nIll.2d 370, 378, 167 N.E.2d 406, 411, are: (7) the care that\nthe community has taken to plan its land use development,\nand (8) the community need for the proposed use.\nAlthough no one factor is controlling, the first factorexisting uses and zoning of nearby property-is \xe2\x80\x9cof\nparamount importance.\xe2\x80\x9d (Glenview State Bank, 213\nIll.App.3d at 760, 157 Ill.Dec. at 309, 572 N.E.2d at 408.)\nDefendant argues in this appeal that this factor weighs\nheavily in its favor. We do not agree. As plaintiffs correctly\npoint out, the quarter section in which the subject property\nis situate is divided into nine other ownerships, three of\nwhich contain less than ten acres. Plaintiffs\xe2\x80\x99 five-acre parcel\nlies in the northwest corner of the quarter section, and\nwithin the 1 1/2-mile radius surrounding it, several\nresidences on parcels of less than ten acres are established.\nAlthough none are zoned E-2 and were existing prior to\nthe 1978 ordinance, the uses of nearby property are not\ninconsistent with the E-2 use plaintiffs propose for the\nfive-acre parcel in question. The trial court specifically\nnoted that the existing, non-conforming uses of the\nsurrounding property did not support the county\xe2\x80\x99s position\nin this case. We find that the trial court\xe2\x80\x99s conclusion is not\ncontrary to the manifest weight of the evidence.\nWith regard to the second factor, defendant argues that the\ntrial court mistakenly focused on the property\xe2\x80\x99s increase in\nmarket value if rezoned E-2 instead of the diminution of\nvalue, if any, as currently zoned A-1. We agree in part that\nthe fact that rezoning would enhance the property\xe2\x80\x99s value is\nnot determinative. However, the evidence presented to the\ncourt established that the highest and best use of the\nproperty was E-2, and there was no evidence that the value\nof surrounding property would be diminished by plaintiffs\xe2\x80\x99\nproposed use. Thus, to the extent that evidence of property\n\n140\n\n\x0cvalue was presented, we do not find that the trial court\nerred in weighing this factor in plaintiffs\xe2\x80\x99 favor.\nThe third and fourth factors, similarly, support the trial\ncourt\xe2\x80\x99s conclusion. Although there is no question that\npublic morals are not at risk if the rezoning is granted, there\nwas some testimony that farming practices are not\ncompatible with residential use. On the other hand,\nplaintiffs\xe2\x80\x99 expert witnesses testified that the A-1 limitation\nwas not substantially related to issues of public health,\nsafety or general welfare. Plaintiffs propose to build two\nresidences on five acres adjacent to their daughter\xe2\x80\x99s horsekeeping operation-one for themselves, and the other for an\nadult son. Even defendant\xe2\x80\x99s expert witness could not deny\nthat the horses were an agricultural enterprise. Defense\nwitnesses\xe2\x80\x99 suggestion that rezoning in this case would set\nan unfavorable precedent for future property owners was\npurely speculative, self-serving and appropriately\ndiscounted by the trial court in weighing the parties\xe2\x80\x99\nevidence. And, inasmuch as plaintiffs\xe2\x80\x99 proposed use of the\nentire 25-acre parcel was to unite his family and promote\nanimal husbandry, thereby preserving the agricultural\ncharacter of the area, there is little, if any, public gain to be\nrealized by enforcing the A-1 classification, and great\nhardship would be imposed on plaintiffs to deny the\nzoning change.\nFactors five and six, as the court noted in its written\ndecision, do not establish the invalidity of the ordinance.\nThere is no dispute that the land is suitable for agricultural\nuse and that it was actively farmed prior to plaintiffs\xe2\x80\x99\npurchase of it.\nWith respect to factor seven, the evidence tended to show\nthat the current zoning of the area, including plaintiffs\xe2\x80\x99\ntract, was assigned in an arbitrary manner without\nconsidering the several non-conforming uses existing when\nthe land-use plan was adopted and the zoning ordinance\nwas enacted. The former planning director testified that he\n\n141\n\n\x0chad expressed his disagreement with the across-the-board\nA-1 classification, but that he was overruled by the time the\nplan was presented for approval in 1978. A later Land\nResource Management Plan adopted in 1990 pursuant to\nthe State Local Land Resource Management Planning Act\n(50 ILCS 805 (West 1992)) similarly failed to take into\nconsideration the various residences on parcels under ten\nacres surrounding plaintiffs\xe2\x80\x99 property. Thus, despite the\ncounty board\xe2\x80\x99s consistent denial of petitions for rezoning,\nthe trial court\xe2\x80\x99s conclusion that the land use plan was not\ncarefully designed is supported by the evidence of record.\nLastly, although no community need for rezoning was\ndemonstrated (factor eight), a need for rezoning was shown\nto exist for plaintiffs in order to accommodate their interest\nin uniting with their adult children in a country\nenvironment. Mr. Twigg testified that he had looked at\nother parcels in other townships, but the size and selling\nprice made this particular 35-acre tract appropriate for his\npurposes. The promotion of family unity and animal\nhusbandry in this case is consistent with the community\ninterest in preserving A-1 agricultural zoning generally.\nAlthough no one factor definitively established the\ninvalidity of defendant\xe2\x80\x99s ordinance in this case, it is clear\nthat the court gave great weight to its finding that plaintiffs\xe2\x80\x99\nproposed use of the remaining 25 acres of the original 35acre land purchase was generally in harmony with both the\ncurrent A-1 agricultural zoning and existing nonconforming uses for smaller residential parcels in the\nsurrounding area. In our opinion, the court acted within its\ndiscretion in analyzing the factors and weighting them\nwithin the context of the evidence presented here.\nIn sum, we find that the trial court\xe2\x80\x99s conclusion that\nenforcement of the zoning ordinance prohibiting plaintiffs\xe2\x80\x99\nproposed development of the five-acre parcel \xe2\x80\x9cis arbitrary\nand bears no substantial or reasonable relation to public\nhealth, safety, morals, comfort and general welfare\xe2\x80\x9d is not\n\n142\n\n\x0ccontrary to the manifest weight of the evidence.\nAccordingly, we affirm the court\xe2\x80\x99s judgment declaring the\nordinance void and unconstitutional as applied to plaintiffs\xe2\x80\x99\nproperty and enjoining the defendant from prohibiting the\nbuilding of two residences on the five-acre parcel as\nproposed.\nThe judgment of the Circuit Court of Will County is\naffirmed.\nAffirmed.\nMcCUSKEY and LYTTON, JJ., concur.\nAmberwood Development Corporation v. Board of\nAppeals of Boxford\n65 Mass. App. Ct. 205 (2005)\nKatharine Goree Doyle for the defendants.\nAlan L. Grenier for the plaintiffs.\nMILLS, J.\nIn an action brought by Amberwood Development\nCorporation (Amberwood) under G. L. c. 240, \xc2\xa7 14A, a\njudge of the Land Court, reversing the zoning board of\nappeals of Boxford (board), ruled that the application of a\nprovision that prohibits the further subdivision of a lot that\nhas benefited from an exception to a frontage requirement\nin the zoning by-law, while otherwise valid, was\nunconstitutional as applied to Amberwood\xe2\x80\x99s lot of\nresidentially zoned land.1 This is the town\xe2\x80\x99s appeal. We\nreverse.\n\nAmberwood had initially sought relief in the Land Court under G. L. c. 40A, \xc2\xa7\n14A, from the board\xe2\x80\x99s denial of its request for a variance. The plaintiffs waived\ntheir appeal of that decision in the Land Court and, therefore, that appeal is not\nbefore this court. Amberwood also included in its count under G. L. c. 240, \xc2\xa7 14A,\na claim that the by-law provision was generally invalid. That claim of general\ninvalidity has been abandoned and is, therefore, deemed waived.\n1\n\n143\n\n\x0c1. Background.2 Amberwood owns an 8.1 acre lot of land on\nGeorgetown Road in Boxford.3 The lot was created in 1997\nwhen Amberwood obtained approval to subdivide a tract\ncontaining approximately twenty-two acres into four\nseparate lots, including the locus.4 John C. Sanidas, as\ntrustee of the Sanidas Family Trust, is the owner of, and\nresident at, 7 Amberwood Lane (Sanidas house lot), which\nabuts the locus to the north.5\nBoth the locus and the Sanidas house lot are in a residential\nzoning district where the minimum lot area is two acres,\nand the minimum street frontage is 250 feet. The locus has\nfrontage of only one hundred feet along Georgetown Road,\nbut Amberwood was able to build a single family home on\nthe locus by taking advantage of a \xe2\x80\x9cfrontage exception for\nlarger lots\xe2\x80\x9d (frontage exception) in the Boxford zoning bylaw, \xc2\xa7 196-24.D(3), which provides as follows:\n\xe2\x80\x9c(a) Notwithstanding the [otherwise\napplicable dimensional provisions,\nincluding minimum street frontage of\n250 feet], a lot in an R-A ResidenceAgricultural District need not have the\nspecified amount of street frontage,\nprovided that:\n\xe2\x80\x9c[1] The area of the lot exceeds by\nat least four acres the minimum\nFacts are essentially taken from the judge\xe2\x80\x99s succinct and thoughtful decision on\ncross motions for summary judgment. There appears, as between the parties, no\ngenuine dispute as to any of the material facts.\n2\n\nWe will call the lot the \xe2\x80\x9clocus.\xe2\x80\x9d It is a single lot, though shown as parcels C-1 and\nC-2, collectively, on a sketch plan in the addendum to this opinion.\n3\n\nThe locus evolved and changed slightly from a lot that was created in the 1997\nsubdivision plan. To the extent relevant, for purposes of this decision, the locus is\nessentially one of four lots created by Amberwood in its 1997 subdivision.\n4\n\nAt the time of proceedings before the town with respect to this case, Sanidas was\nthe president and treasurer of Amberwood.\n5\n\n144\n\n\x0carea required for such an R-A\nDistrict;\n\xe2\x80\x9c[2] The lot has a minimum\ncontinuous street frontage of not\nless than 50 feet and a width of not\nless than 50 feet at any point\nbetween the street and the site of\nthe dwelling;\n\xe2\x80\x9c[3] There is not more than one\nother such lot with frontage\ncontiguous to it; and\n\xe2\x80\x9c[4] It is not, in the opinion of the\nPlanning Board, so located as to\nblock the possible future extension\nof a dead-end street.\n\xe2\x80\x9c(b) Notwithstanding any other provisions,\nno such lot as described in Subsection D(3)(a)\nabove on which a dwelling is located shall be\nhereafter subdivided, reduced in area\xe2\x80\x9d\n(emphasis added).\nIn March of 2000, Amberwood, seeking to convey a twoacre portion of the locus (parcel C-2) to become part of the\nSanidas house lot, sought a variance (G. L. c. 40A, \xc2\xa7 10)\nfrom subsection (b) of the frontage exception provision\nwhich otherwise prohibited the two-acre reduction of the\narea of the 8.1 acre locus, a lot that had been created by\nAmberwood utilizing subsection (a) of that provision.\nWhen the board denied the variance request, Amberwood\nappealed pursuant to G. L. c. 40A, \xc2\xa7 17, adding a second\ncount to its complaint pursuant to G. L. c. 240, \xc2\xa7 14A,\nchallenging the frontage exception provision generally and\nas applied to the locus in these circumstances.\nThe Land Court judge noted the legitimacy of the purposes\nfor the frontage exception, ruling it a valid zoning by-law\n\n145\n\n\x0cprovision. However, upon the precedent of Barney & Carey\nCo. v. Milton, 324 Mass. 440 (1949), and Pittsfield v. Oleksak,\n313 Mass. 553 (1943), she ruled that the by-law provision\ncould not legitimately be applied to the locus. The judge\ndecided that the principal purposes of that provision of the\nby-law, preservation of open space and prevention of\nfurther development, would remain unoffended and\nunaffected by the conveyance out of the two-acre parcel.\nShe further noted that Amberwood had announced, in\nargument before the Land Court, that a restrictive covenant\nwould be in place upon the two-acre parcel when conveyed\nand that it would remain essentially untouched, as open\nspace not susceptible to development.6 The judge\nessentially ruled that application of the by-law provision in\nthis case was not necessary to effect its purposes.\n2. Discussion. General Laws c. 240, \xc2\xa7 14A,7 applies only to\nthe Land Court, and provides for declaratory relief without\n\nThe town challenges reliance by the judge upon such a covenant, asserting that it\nhad never been presented in the proceedings before the local government. We need\nnot further consider the judge\xe2\x80\x99s reference, or the town\xe2\x80\x99s concern, in view of our\ndisposition of this case.\n6\n\nGeneral Laws c. 240, \xc2\xa7 14A, as amended through St. 1977, c. 829, \xc2\xa7 14, provides,\nin relevant part:\n7\n\n146\n\n\x0can existing controversy. See Hansen & Donahue, Inc. v.\nNorwood, 61 Mass. App. Ct. 292, 293 (2004). The Land\nCourt has exclusive jurisdiction in such cases, G. L. c. 185,\n\xc2\xa7 1(j), and it has become common for zoning appeals\npursuant to G. L. c. 40A, \xc2\xa7 17, especially from denial of\nvariance requests, to be accompanied by a count under G.\nL. c. 240, \xc2\xa7 14A, concerning the validity or invalidity of a\nzoning restriction applicable to a specific lot or use. The\nLand Court is considered a particular court of competence\nin such matters. See Harrison v. Braintree, 355 Mass. 651, 654\n(1969). See also Kindercare Learning Centers, Inc. v. Westford, 62\nMass. App. Ct. 924 (2004).\n\xe2\x80\x9cThe primary purpose of proceedings under \xc2\xa7 14A is to\ndetermine how and with what rights and limitations the\nland of the person seeking an adjudication may be used\nunder the provisions of a zoning enactment in terms\napplicable to it, particularly where there is no controversy\nand hence no basis for other declaratory relief.\xe2\x80\x9d Hansen &\nDonahue, Inc. v. Norwood, 61 Mass. App. Ct. at 295, quoting\nfrom Harrison v. Braintree, 355 Mass. at 654. Section 14A is\n\xe2\x80\x9cThe owner of a freehold estate in possession in land may\nbring a petition in the land court against a city or town\nwherein such land is situated, which shall not be open to\nobjection on the ground that a mere judgment, order or\ndecree is sought, for determination as to the validity of a\nmunicipal ordinance, by-law or regulation, passed or\nadopted under the provisions of chapter forty A or under\nany special law relating to zoning, so called, which\npurports to restrict or limit the present or future use,\nenjoyment, improvement or development of such land, or\nany part thereof, or of present or future structures\nthereon, including alterations or repairs, or for\ndetermination of the extent to which any such municipal\nordinance, by-law or regulation affects a proposed use,\nenjoyment, improvement or development of such land by\nthe erection, alteration or repair of structures thereon or\notherwise as set forth in such petition \xe2\x80\xa6 . The court may\nmake binding determinations of right interpreting such\nordinances, by-laws or regulations whether any\nconsequential judgment or relief is or could be claimed or\nnot.\xe2\x80\x9d\n\n147\n\n\x0cto be broadly construed, Hansen & Donahue, supra, although\nthe burden is on the landowner to prove that the zoning\nregulation is unreasonable as applied to its property. See\nKaplan v. Boston, 330 Mass. 381, 384 (1953). While the\navailability of the remedy is not restricted to situations in\nwhich the purchase and sale of the locus is pending, in\nWhitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757,\n763 (1985), the court explained that \xe2\x80\x9c[t]he evil to be\nremedied\xe2\x80\x9d by G. L. c. 240, \xc2\xa7 14A, is \xe2\x80\x9ca situation where\nsomeone may be forced to invest in land and then\nsubsequently find[s] out there are restrictions.\xe2\x80\x9d See Clark &\nClark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass.\nApp. Ct. 206, 210 (1985).8\nThe town argues that for a by-law provision to be found\ninvalid as applied, the court must find both a failure to\npromote the purposes of the by-law and significant injury\nto the property owner, and that neither alone warrants a\ndetermination of invalidity. The town then asserts that the\njudge did not find injury to the landowner, that the\nlandowner made no effort to show any injury, and that\nnone is evident from the record. The landowner argues that\n(a) the judge\xe2\x80\x99s decision is consistent with public policy\nbecause parcel C-2 will remain open space and\nundeveloped; (b) there is no second branch to the analysis,\nthat is, injury to the property owner; and (c) the plaintiff\nintends to covenant in perpetuity, nevertheless, to prevent\nfurther development of parcel C-2.\nWe conclude that there is, essentially, a second branch to\nthe analysis, and we are persuaded by the town\xe2\x80\x99s argument.\nAlthough the cases have not explicitly articulated a second\nAs to application of the statute, the court in Harrison v. Braintree, 355 Mass. at 654655, said, \xe2\x80\x9cWe deem appropriate a broad construction of c. 240, \xc2\xa7 14A. With court\ndockets greatly overloaded, access to particular courts of competence in the general\nfield should not be restricted on narrow grounds and the need for attention to\nnonsubstantive issues should be minimized.\xe2\x80\x9d As such, we pay particular attention\nand accord special deference to the Land Court judge in these cases\n8\n\n148\n\n\x0cbranch \xe2\x80\x9cas such,\xe2\x80\x9d in Barney & Carey Co. the court ruled that\n\xe2\x80\x9c[w]here the application of the by-law \xe2\x80\xa6 has no real or\nsubstantial relation to the public safety, public health or\npublic welfare but would amount to an arbitrary, unreasonable,\nand oppressive deprivation of the owner\xe2\x80\x99s interest in his private\nproperty, then that application of the regulation has been\nstruck down\xe2\x80\x9d (emphasis added). Barney & Carey Co. v.\nMilton, 324 Mass. at 445. The emphasized language requires\nthat Amberwood show significant injury to its interest in\nthe locus, i.e., that the prohibition against conveying out\nparcel C-2 is arbitrary, unreasonable, and oppressive. See\nOpinion of the Justices, 333 Mass. 773, 781 (1955). The judge\ndid not so find, and the record would not, in any event,\nsupport such a finding.\nIn contrast, the \xe2\x80\x9csubstantiality\xe2\x80\x9d of the injury claimed by the\nlandowner was determined to be significant in the\nfollowing cases. In Barney & Carey Co. v. Milton, supra at\n445-447, the land was zoned only for residential purposes\nbut was not readily usable for dwellings. It was located\nsome distance from any other dwelling, and bounded by\nthe Neponset River, extensive marshes, and a highway\nbeyond which there were further extensive marshes. Id. at\n441, 445. After meticulous review of the facts, the court\neffectively noted that use of the land for the zoned\nresidential purposes was a practical impossibility. \xe2\x80\x9cIn Barney\n& Carey Co. \xe2\x80\xa6 there was, practically speaking, no use left\nfor the locus when zoned for residences and not for\nbusiness.\xe2\x80\x9d Lexington v. Simeone, 334 Mass. 127, 131 (1956).\nIn Pittsfield v. Oleksak, 313 Mass. at 554-555, the ordinance\nprevented the maintenance and use of a portable saw mill,\nwhich effectively rendered useless one hundred acres of\ntimberland, with resulting negative consequences to both\npublic and private interests. The court concluded that\napplication of the ordinance \xe2\x80\x9cwould permanently deprive\nthe defendant, and therefore the community, of a valuable\n\n149\n\n\x0cand otherwise wasting asset\xe2\x80\x9d and held that the ordinance\nwas invalid as applied. Id. at 555.\nThe residentially zoned land in Nectow v. Cambridge, 277 U.S.\n183, 186 (1928), was surrounded by industrial and railroad\nuses. The United States Supreme Court noted that \xe2\x80\x9cno\npractical use [could] be made of the land in question for\nresidential purposes,\xe2\x80\x9d id. at 187, and concluded that \xe2\x80\x9cthe\ninvasion of the property \xe2\x80\xa6 was serious and highly\ninjurious.\xe2\x80\x9d Id. at 189.\nWe also consider it relevant that Amberwood elected to\ncreate the locus by taking advantage of the frontage\nexception that it now seeks to have partially invalidated. We\nrespect, but do not find compelling as matter of law, the\njudge\xe2\x80\x99s observation that the owner, when earlier creating\nthe subdivision, could have accomplished what he now\nseeks, i.e., a 6.1 acre lot to the exclusion of the land\nrepresented as parcel C-2 from that lot.9 ,10\nAmberwood, in its application to the board, identified the\npurpose of the conveyance as to \xe2\x80\x9cprovide buffering for the\n[Sanidas house lot].\xe2\x80\x9d Its application also noted that \xe2\x80\x9c[n]o\nnew lots will be or can be created by the conveyance.\xe2\x80\x9d\nHowever, Amberwood can accomplish these purposes\nWe are not unmindful that laches is inapplicable to an as-applied challenge, see\nBarney & Carey Co. v. Milton, 324 Mass. at 444, but this is not a situation where a\nlandowner has acquiesced in a direct invasion of its rights, \xe2\x80\x9ca usurpation of power\nwhich violates rights protected by constitutional provisions.\xe2\x80\x9d Id. at 445.\n9\n\nIn the design of subdivisions, and in other regulated land matters, the fact that\ninitially different designs and choices were possible does not furnish reason for\nretroactive design to obviate those earlier choices that have proved to be less\ndesirable. For example, strict time limits within the statutory scheme of the\nsubdivision control law are designed to provide record certainty. See Craig v.\nPlanning Board of Haverhill, 64 Mass. App. Ct. 677, 679 (2005); G. L. c. 41, \xc2\xa7 81U.\nCompare Martin v. Board of Appeals of Yarmouth, 20 Mass. App. Ct. 972 (1985);\nMaurice Callahan & Sons, Inc. v. Board of Appeals of Lenox, 30 Mass. App. Ct. 36, 40\n(1991); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 (2002) (selfinflicted hardship does not ordinarily constitute \xe2\x80\x9csubstantial\xe2\x80\x9d hardship under G. L.\nc. 40A, \xc2\xa7 10).\n10\n\n150\n\n\x0cwithin the status quo, and without the invalidation of the\nby-law provision as applied. For example, the buffering and\nprohibition of development can be created by the\nconveyance of an easement to the owner of the Sanidas\nhouse lot over parcel C-2, with rights to exclusive\noccupation, reserving no rights (other than the underlying\nfee ownership) to the owner of the locus.11\nThe ability to convey one\xe2\x80\x99s land is a recognized property\ninterest, United States v. General Motors Corp., 323 U.S. 373,\n378 (1945), and application of the by-law is some\nimpediment to that property right. However, numerous\nstatutes and regulations restrict private property rights.\nHere, the impediment is minimal compared with the\ncircumstances of those cases where courts have invalidated\nthe application of zoning regulations. See Nectow v.\nCambridge, 277 U.S. at 189; Pittsfield v. Oleksak, 313 Mass. at\n555; Barney & Carey Co. v. Milton, 324 Mass. at 445.\nAdditionally, the relief allowed by the judge below\nundermines the uniform application of otherwise valid local\nzoning. See G. L. c. 40A, \xc2\xa7 4, inserted by St. 1975, c. 808, \xc2\xa7\n3 (\xe2\x80\x9cAny zoning ordinance or by-law which divides cities\nand towns into districts shall be uniform within the district\nfor each class or kind of structures or uses permitted\xe2\x80\x9d);\nEverpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass.\n433, 439 (1949) (\xe2\x80\x9cA zoning ordinance is intended to apply\nuniformly to all property located in a particular district \xe2\x80\xa6\nand the properties of all the owners in that district [must\nbe] subjected to the same restrictions for the common\nbenefit of all\xe2\x80\x9d); SCIT, Inc. v. Planning Bd. of Braintree, 19\nMass. App. Ct. 101, 107 (1984) (\xe2\x80\x9c[t]he uniformity\nrequirement is based upon principles of equal treatment: all\nland in similar circumstances should be treated alike\xe2\x80\x9d); KCI\nMgmt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct.\n254, 258 (2002), quoting from Lopes v. Peabody, 417 Mass.\nThe zoning application stated that the applicant owns both the locus and the\nabutting residential lot (the Sanidas house lot).\n11\n\n151\n\n\x0c299, 303 (1994) (courts should avoid \xe2\x80\x9ca crazy-quilt pattern\nof the enforceability of a zoning law intended to have\nuniform applicability\xe2\x80\x9d). Many, if not all applications of\nzoning regulations could be arguably characterized as\nunnecessary in any particular case. Numerous arguments of\nthat nature are made by citizens to building inspectors and\nlocal zoning authorities every year.\nThe important and difficult balance between the public\ninterest in the integrity of the local land law, with\nrequirements for uniform application of zoning, compared\nwith the relatively minimal restriction upon the landowner\xe2\x80\x99s\nproperty rights in the circumstances of this case, does not\nweigh in favor of determining the frontage exception\ninvalid as applied to the locus. Our conclusion derives\nadditional support here because the owner\xe2\x80\x99s goal can be\naccomplished without such invalidation.\nThat portion of the judgment declaring the frontage\nexception provision in the zoning by-law invalid as applied\nis vacated, and a new judgment shall enter declaring that\nprovision of the by-law valid as applied. The remainder of\nthe judgment is affirmed.\n3.2. Adjudication and Quasi-Adjudication\nLouis J. Fasano et al., Respondents, v. The Board of\nCounty Commissioners of Washington County and\nA.G.S. Development Company\n507 P.2d 23 (Ore. 1973)\nEdward J. Sullivan, Washington County Counsel, Hillsboro,\nargued and reargued the cause for petitioners. With him on\nthe briefs were William Bradley Duncan, Asst. County\nCounsel, Carrell F. Bradley, Joe D. Bailey, and Schwenn,\nBradley, Batchelor & Bailey, Hillsboro.\nLouis J. Fasano, Portland, argued and reargued the cause\nfor respondents. With him on the briefs were Veatch,\nLovett & Stiner, Portland.\n\n152\n\n\x0cDonald C. Ashmanskas, Beaverton, argued the cause for\namici curiae on reargument. With him on the briefs were\nJames M. Mattis, Eugene, Merle Long, Albany, and Edward\nC. Harms, Jr., Springfield, on behalf of the League of\nOregon Cities. Also on the briefs were Duane R. Ertsgaard,\nSalem, Roy E. Adkins, Eugene, Richard Crist, West Linn,\nPaul Mackey, Portland, and Gary Rueter, McMinnville, on\nbehalf of the Association of Oregon Counties; and Frank\nL. Whitaker, Portland, on behalf of Oregon Chapter,\nAmerican Institute of Planners.\nHOWELL, JUSTICE.\nThe plaintiffs, homeowners in Washington county,\nunsuccessfully opposed a zone change before the Board of\nCounty Commissioners of Washington County. Plaintiffs\napplied for and received a writ of review of the action of\nthe commissioners allowing the change. The trial court\nfound in favor of plaintiffs, disallowed the zone change,\nand reversed the commissioners\xe2\x80\x99 order. The Court of\nAppeals affirmed, 489 P.2d 693 (1971), and this court\ngranted review.\nThe defendants are the Board of County Commissioners\nand A.G.S. Development Company. A.G.S., the owner of\n32 acres which had been zoned R-7 (Single Family\nResidential), applied for a zone change to P-R (Planned\nResidential), which allows for the construction of a mobile\nhome park. The change failed to receive a majority vote of\nthe Planning Commission. The Board of County\nCommissioners approved the change and found, among\nother matters, that the change allows for \xe2\x80\x9cincreased\ndensities and different types of housing to meet the needs\nof urbanization over that allowed by the existing zoning.\xe2\x80\x9d\nThe trial court, relying on its interpretation of Roseta v.\nCounty of Washington, 254 Or. 161, 458 P.2d 405, 40\nA.L.R.3d 364 (1969), reversed the order of the\ncommissioners because the commissioners had not shown\n\n153\n\n\x0cany change in the character of the neighborhood which\nwould justify the rezoning. The Court of Appeals affirmed\nfor the same reason, but added the additional ground that\nthe defendants failed to show that the change was\nconsistent with the comprehensive plan for Washington\ncounty.\nAccording to the briefs, the comprehensive plan of\ndevelopment for Washington county was adopted in 1959\nand included classifications in the county for residential,\nneighborhood commercial, retail commercial, general\ncommercial, industrial park and light industry, general and\nheavy industry, and agricultural areas.\nThe land in question, which was designated \xe2\x80\x9cresidential\xe2\x80\x9d by\nthe comprehensive plan, was zoned R-7, Single Family\nResidential.\nSubsequent to the time the comprehensive plan was\nadopted, Washington county established a Planned\nResidential (P-R) zoning classification in 1963. The P-R\nclassification was adopted by ordinance and provided that a\nplanned residential unit development could be established\nand should include open space for utilities, access, and\nrecreation; should not be less than 10 acres in size; and\nshould be located in or adjacent to a residential zone. The\nP-R zone adopted by the 1963 ordinance is of the type\nknown as a \xe2\x80\x9cfloating zone,\xe2\x80\x9d so-called because the\nordinance creates a zone classification authorized for future\nuse but not placed on the zoning map until its use at a\nparticular location is approved by the governing body. The\nR-7 classification for the 32 acres continued until April\n1970 when the classification was changed to P-R to permit\nthe defendant A.G.S. to construct the mobile home park\non the 32 acres involved.\nThe defendants argue that (1) the action of the county\ncommissioners approving the change is presumptively\nvalid, requiring plaintiffs to show that the commissioners\n\n154\n\n\x0cacted arbitrarily in approving the zone change; (2) it was\nnot necessary to show a change of conditions in the area\nbefore a zone change could be accomplished; and (3) the\nchange from R-7 to P-R was in accordance with the\nWashington county comprehensive plan.\nWe granted review in this case to consider the questions \xe2\x80\x94\nby what standards does a county commission exercise its\nauthority in zoning matters; who has the burden of meeting\nthose standards when a request for change of zone is made;\nand what is the scope of court review of such actions?\nAny meaningful decision as to the proper scope of judicial\nreview of a zoning decision must start with a\ncharacterization of the nature of that decision. The majority\nof jurisdictions state that a zoning ordinance is a legislative\nact and is thereby entitled to presumptive validity. This\ncourt made such a characterization of zoning decisions in\nSmith v. County of Washington, 241 Or. 380, 406 P.2d 545\n(1965):\n\xe2\x80\x9cInasmuch as ORS 215.110 specifically\ngrants to the governing board of the\ncounty the power to amend zoning\nordinances, a challenged amendment is\na legislative act and is clothed with a\npresumption in its favor. Jehovah\xe2\x80\x99s\nWitnesses v. Mullen et al., 214 Or. 281,\n292, 330 P.2d 5, 74 A.L.R.2d 347\n(1958), appeal dismissed and cert.\ndenied, 359 U.S. 436, 79 S.Ct. 940, 3\nL.Ed.2d 932 (1959).\xe2\x80\x9d 241 Or. at 383,\n406 P.2d at 547.\nHowever, in Smith an exception to the presumption was\nfound and the zoning held invalid. Furthermore, the case\ncited by the Smith court, Jehovah\xe2\x80\x99s Witnesses v. Mullen et\nal., supra, at least at one point viewed the contested zoning\n\n155\n\n\x0cin that case as an administrative as opposed to legislative\nact.\nAt this juncture we feel we would be ignoring reality to\nrigidly view all zoning decisions by local governing bodies\nas legislative acts to be accorded a full presumption of\nvalidity and shielded from less than constitutional scrutiny\nby the theory of separation of powers. Local and small\ndecision groups are simply not the equivalent in all respects\nof state and national legislatures. There is a growing judicial\nrecognition of this fact of life:\n\xe2\x80\x9cIt is not a part of the legislative\nfunction to grant permits, make special\nexceptions, or decide particular cases.\nSuch activities are not legislative but\nadministrative,\nquasi-judicial,\nor\njudicial in character. To place them in\nthe hands of legislative bodies, whose\nacts as such are not judicially\nreviewable, is to open the door\ncompletely to arbitrary government.\xe2\x80\x9d\nWard v. Village of Skokie, 26 Ill.2d\n415, 186 N.E.2d 529, 533 (1962)\n(Klingbiel, J., specially concurring).\nThe Supreme Court of Washington, in reviewing a\nrezoning decision, recently stated:\n\xe2\x80\x9cWhatever descriptive characterization\nmay be otherwise attached to the role\nor function of the planning\ncommission in zoning procedures, e.g.,\nadvisory,\nrecommendatory,\ninvestigatory,\nadministrative\nor\nlegislative, it is manifest * * * that it is\na public agency, * * * a principle [sic]\nand statutory duty of which is to\nconduct public hearings in specified\nplanning and zoning matters, enter\n\n156\n\n\x0cfindings of fact \xe2\x80\x94 often on the basis\nof disputed facts \xe2\x80\x94 and make\nrecommendations\nwith\nreasons\nassigned thereto. Certainly, in its role\nas a hearing and fact-finding tribunal,\nthe planning commission\xe2\x80\x99s function\nmore nearly than not partakes of the\nnature of an administrative, quasijudicial proceeding, * * *.\xe2\x80\x9d Chrobuck\nv. Snohomish County, 78 Wash.2d\n884, 480 P.2d 489, 495-496 (1971).\nOrdinances laying down general policies without regard to\na specific piece of property are usually an exercise of\nlegislative authority, are subject to limited review, and may\nonly be attacked upon constitutional grounds for an\narbitrary abuse of authority. On the other hand, a\ndetermination whether the permissible use of a specific\npiece of property should be changed is usually an exercise\nof judicial authority and its propriety is subject to an\naltogether different test. An illustration of an exercise of\nlegislative authority is the passage of the ordinance by the\nWashington County Commission in 1963 which provided\nfor the formation of a planned residential classification to\nbe located in or adjacent to any residential zone. An\nexercise of judicial authority is the county commissioners\xe2\x80\x99\ndetermination in this particular matter to change the\nclassification of A.G.S. Development Company\xe2\x80\x99s specific\npiece of property. The distinction is stated, as follows, in\nComment, Zoning Amendments \xe2\x80\x94 The Product of\nJudicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130\n(1972):\n\xe2\x80\x9d* * * Basically, this test involves the\ndetermination of whether action\nproduces a general rule or policy which\nis applicable to an open class of\nindividuals, interest, or situations, or\nwhether it entails the application of a\n\n157\n\n\x0cgeneral rule or policy to specific\nindividuals, interests, or situations. If\nthe former determination is satisfied,\nthere is legislative action; if the latter\ndetermination is satisfied, the action is\njudicial.\xe2\x80\x9d 33 Ohio St.L.J. at 137.\nWe reject the proposition that judicial review of the county\ncommissioners\xe2\x80\x99 determination to change the zoning of the\nparticular property in question is limited to a determination\nwhether the change was arbitrary and capricious.\nIn order to establish a standard of review, it is necessary to\ndelineate certain basic principles relating to land use\nregulation.\nThe basic instrument for county or municipal land use\nplanning is the \xe2\x80\x9ccomprehensive plan.\xe2\x80\x9d Haar, In Accordance\nwith a Comprehensive Plan, 68 Harv.L.Rev. 1154 (1955); 1\nYokley, Zoning Law and Practice, \xc2\xa7 3-2 (1965); 1 Rathkopf,\nThe Law of Zoning and Planning, \xc2\xa7 9-1 (3d ed. 1969). The\nplan has been described as a general plan to control and\ndirect the use and development of property in a\nmunicipality. Nowicki v. Planning and Zoning Board, 148\nConn. 492, 172 A.2d 386, 389 (1961).\nIn Oregon the county planning commission is required by\nORS 215.050 to adopt a comprehensive plan for the use of\nsome or all of the land in the county. Under ORS\n215.110(1), after the comprehensive plan has been adopted,\nthe planning commission recommends to the governing\nbody of the county the ordinances necessary to \xe2\x80\x9ccarry out\xe2\x80\x9d\nthe comprehensive plan. The purpose of the zoning\nordinances, both under our statute and the general law of\nland use regulation, is to \xe2\x80\x9ccarry out\xe2\x80\x9d or implement the\ncomprehensive plan. 1 Anderson, American Law of\nZoning, \xc2\xa7 1.12 (1968). Although we are aware of the\nanalytical distinction between zoning and planning, it is\nclear that under our statutes the plan adopted by the\n\n158\n\n\x0cplanning commission and the zoning ordinances enacted by\nthe county governing body are closely related; both are\nintended to be parts of a single integrated procedure for\nland use control. The plan embodies policy determinations\nand guiding principles; the zoning ordinances provide the\ndetailed means of giving effect to those principles.\nORS 215.050 states county planning commissions \xe2\x80\x9cshall\nadopt and may from time to time revise a comprehensive\nplan.\xe2\x80\x9d In a hearing of the Senate Committee on Local\nGovernment, the proponents of ORS 215.050 described its\npurpose as follows:\n\xe2\x80\x9d* * * The intent here is to require a\nbasic\ndocument,\ngeared\ninto\npopulation, land use, and economic\nforecasts, which should be the basis of\nany zoning or other regulations to be\nadopted by the county. * * *\xe2\x80\x9d1\nIn addition, ORS 215.055 provides:\n\xe2\x80\x9c215.055 Standards for plan. (1) The\nplan and all legislation and regulations\nauthorized by ORS 215.010 to 215.233\nshall be designed to promote the\npublic health, safety and general\nwelfare and shall be based on the\nfollowing\nconsiderations,\namong\nothers: The various characteristics of\nthe various areas in the county, the\nsuitability of the areas for particular\nland uses and improvements, the land\nuses and improvements in the areas,\ntrends in land improvement, density of\ndevelopment, property values, the\nneeds of economic enterprises in the\nHearing on Senate Bill 129 before the Senate Committee on Local Government,\n52nd Legislative Assembly, February 14, 1963.\n1\n\n159\n\n\x0cfuture development of the areas,\nneeded access to particular sites in the\nareas, natural resources of the county\nand\nprospective\nneeds\nfor\ndevelopment thereof, and the public\nneed for healthful, safe, aesthetic\nsurroundings and conditions.\xe2\x80\x9d\nWe believe that the state legislature has conditioned the\ncounty\xe2\x80\x99s power to zone upon the prerequisite that the\nzoning attempt to further the general welfare of the\ncommunity through consciousness, in a prospective sense,\nof the factors mentioned above. In other words, except as\nnoted later in this opinion, it must be proved that the\nchange is in conformance with the comprehensive plan.\nIn proving that the change is in conformance with the\ncomprehensive plan in this case, the proof, at a minimum,\nshould show (1) there is a public need for a change of the\nkind in question, and (2) that need will be best served by\nchanging the classification of the particular piece of\nproperty in question as compared with other available\nproperty.\nIn the instant case the trial court and the Court of Appeals\ninterpreted prior decisions of this court as requiring the\ncounty commissions to show a change of conditions within\nthe immediate neighborhood in which the change was\nsought since the enactment of the comprehensive plan, or a\nmistake in the comprehensive plan as a condition precedent\nto the zone change.\nIn Smith v. Washington County, supra, the land in question\nwas designated residential under the comprehensive plan,\nand the county commissioners enacted an amendatory\nordinance changing the classification to manufacturing.\nThis court held that the change constituted spot zoning and\nwas invalid. We stated:\n\n160\n\n\x0c\xe2\x80\x9d* * * Once a [zoning scheme] is\nadopted, changes in it should be made\nonly when such changes are consistent\nwith the over-all objectives of the plan\nand in keeping with changes in the\ncharacter of the area or neighborhood\nto be covered thereby. * * *\xe2\x80\x9d\n(Emphasis added) 241 Or. at 384, 406\nP.2d at 547.\nIn Roseta v. Washington County, supra, the land in\nquestion was classified as residential under the\ncomprehensive plan and had been originally zoned as R-10,\nSingle Family Residential. The county commissioners\ngranted a zone change to A-1, Duplex Residential. We held\nthat the commissioners had not sustained the burden of\nproving that the change was consistent with the\ncomprehensive plan and reversed the order allowing the\nzone change. In regard to defendants\xe2\x80\x99 argument that the\nchange was consistent with the comprehensive plan\nbecause the plan designated the areas as \xe2\x80\x9cresidential\xe2\x80\x9d and\nthe term included both single family dwellings and duplex\nresidences, we stated:\n\xe2\x80\x9d* * * However, the ordinance\nestablished a distinction between the\ntwo types of use by classifying one\narea as R-10 and another area as A-1.\nIt must be assumed that the Board had\nsome purpose in making a distinction\nbetween these two classifications. It\nwas for defendant to prove that this\ndistinction was not valid or that the\nchange in the character of the use of\nthe * * * parcel was not inconsistent\nwith the comprehensive plan.\xe2\x80\x9d 254 Or.\nat 169, 458 P.2d 405, at 409.\n\n161\n\n\x0cThe instant case could be distinguished from Roseta on the\nbasis that we are involved with a floating zone which was\nnot before the court in Roseta.2\nHowever, Roseta should not be interpreted as establishing a\nrule that a physical change of circumstances within the\nrezoned neighborhood is the only justification for rezoning.\nThe county governing body is directed by ORS 215.055 to\nconsider a number of other factors when enacting zoning\nordinances, and the list there does not purport to be\nexclusive. The important issues, as Roseta recognized, are\ncompliance with the statutory directive and consideration\nof the proposed change in light of the comprehensive plan.\nBecause the action of the commission in this instance is an\nexercise of judicial authority, the burden of proof should be\nplaced, as is usual in judicial proceedings, upon the one\nseeking change. The more drastic the change, the greater\nwill be the burden of showing that it is in conformance\nwith the comprehensive plan as implemented by the\nordinance, that there is a public need for the kind of change\nin question, and that the need is best met by the proposal\nunder consideration. As the degree of change increases, the\nburden of showing that the potential impact upon the area\nin question was carefully considered and weighed will also\nincrease. If other areas have previously been designated for\nthe particular type of development, it must be shown why it\nis necessary to introduce it into an area not previously\n\nEven in Maryland, the chief exponent of the change or mistake rule, the courts\nhave not required that there be a showing of changed conditions or mistake in the\noriginal zoning as a condition precedent to granting a zone change when a floating\nzone is involved. Bigenho v. Montgomery County Council, 248 Md. 386, 237 A.2d\n53 (1968); Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967); Board of County\nCom\xe2\x80\x99rs of Howard County v. Tipton, 244 Md. 77, 222 A.2d 701 (1966); Bujno v.\nMontgomery County Council, 243 Md. 110, 220 A.2d 126 (1966); Knudsen v.\nMontgomery County Council, 241 Md. 436, 217 A.2d 97 (1966); Beall v.\nMontgomery County Council, 240 Md. 77, 212 A.2d 751 (1965); Huff v. Board of\nZoning Appeals, 214 Md. 48, 133 A.2d 83 (1957).\n2\n\n162\n\n\x0ccontemplated and why the property owners there should\nbear the burden of the departure.3\nAlthough we have said in Roseta that zoning changes may\nbe justified without a showing of a mistake in the original\nplan or ordinance, or of changes in the physical\ncharacteristics of an affected area, any of these factors\nwhich are present in a particular case would, of course, be\nrelevant. Their importance would depend upon the nature\nof the precise change under consideration.\n\nFor example, if an area is designated by the plan as generally appropriate for\nresidential development, the plan may also indicate that some high-density\nresidential development within the area is to be anticipated, without specifying the\nexact location at which that development is to take place. The comprehensive plan\nmight provide that its goal for residential development is to assure that residential\nareas are healthful, pleasant and safe places in which to live. The plan might also list\nthe following policies which, among others, are to be pursued in achieving that\ngoal:\n3\n\nHigh-density residential areas should be located close to the urban core area.\nResidential neighborhoods should be protected from any land use activity involving\nan excessive level of noise, pollution or traffic volume.\nHigh trip-generating multiple family units should have ready access to arterial or\ncollector streets.\nA variety of living areas and housing types should be provided appropriate to the\nneeds of the special and general groups they are to serve.\nResidential development at urban densities should be within planned sewer and\nwater service areas and where other utilities can be adequately provided.\nUnder such a hypothetical plan, property originally zoned for single family\ndwellings might later be rezoned for duplexes, for garden apartments, or for highrise apartment buildings. Each of these changes could be shown to be consistent\nwith the plan. Although in addition we would require a showing that the county\ngoverning body found a bona fide need for a zone change in order to\naccommodate new high-density development which at least balanced the disruption\nshown by the challengers, that requirement would be met in most instances by a\nrecord which disclosed that the governing body had considered the facts relevant\nto this question and exercised its judgment in good faith. However, these changes,\nwhile all could be shown to be consistent with the plan, could be expected to have\ndiffering impacts on the surrounding area, depending on the nature of that area. As\nthe potential impact on the area in question increases, so will the necessity to show\na justification.\n\n163\n\n\x0cBy treating the exercise of authority by the commission in\nthis case as the exercise of judicial rather than of legislative\nauthority and thus enlarging the scope of review on appeal,\nand by placing the burden of the above level of proof upon\nthe one seeking change, we may lay the court open to\ncriticism by legal scholars who think it desirable that\nplanning authorities be vested with the ability to adjust\nmore freely to changed conditions. However, having\nweighed the dangers of making desirable change more\ndifficult against the dangers of the almost irresistible\npressures that can be asserted by private economic interests\non local government, we believe that the latter dangers are\nmore to be feared.\nWhat we have said above is necessarily general, as the\napproach we adopt contains no absolute standards or\nmechanical tests. We believe, however, that it is adequate to\nprovide meaningful guidance for local governments making\nzoning decisions and for trial courts called upon to review\nthem. With future cases in mind, it is appropriate to add\nsome brief remarks on questions of procedure. Parties at\nthe hearing before the county governing body are entitled\nto an opportunity to be heard, to an opportunity to present\nand rebut evidence, to a tribunal which is impartial in the\nmatter \xe2\x80\x94 i.e., having had no pre-hearing or ex parte\ncontacts concerning the question at issue \xe2\x80\x94 and to a\nrecord made and adequate findings executed. Comment,\nZoning Amendments \xe2\x80\x94 The Product of Judicial or QuasiJudicial Action, 33 Ohio St.L.J. 130-143 (1972).\nWhen we apply the standards we have adopted to the\npresent case, we find that the burden was not sustained\nbefore the commission. The record now before us is\ninsufficient to ascertain whether there was a justifiable basis\nfor the decision. The only evidence in the record, that of\nthe staff report of the Washington County Planning\nDepartment, is too conclusory and superficial to support\nthe zoning change. It merely states:\n\n164\n\n\x0c\xe2\x80\x9cThe staff finds that the requested use\ndoes conform to the residential\ndesignation\nof\nthe\nPlan\nof\nDevelopment. It further finds that the\nproposed use reflects the urbanization\nof the County and the necessity to\nprovide increased densities and\ndifferent types of housing to meet the\nneeds of urbanization over that\nallowed by the existing zoning. * * *\xe2\x80\x9d\nSuch generalizations and conclusions, without any\nstatement of the facts on which they are based, are\ninsufficient to justify a change of use. Moreover, no\nportions of the comprehensive plan of Washington County\nare before us, and we feel it would be improper for us to\ntake judicial notice of the plan without at least some\nreference to its specifics by counsel.\nAs there has not been an adequate showing that the change\nwas in accord with the plan, or that the factors listed in\nORS 215.055 were given proper consideration, the\njudgment is affirmed.\nBRYSON, JUSTICE (specially concurring).\nThe basic facts in this case exemplify the prohibitive cost\nand extended uncertainty to a homeowner when a\ngovernmental body decides to change or modify a zoning\nordinance or comprehensive plan affecting such owner\xe2\x80\x99s\nreal property.\nThis controversy has proceeded through the following\nsteps:\n1. The respondent opposed the zone change before the\nWashington County Planning Department and Planning\nCommission.\n2. The County Commission, after a hearing, allowed the\nchange.\n\n165\n\n\x0c3. The trial court reversed (disallowed the change).\n4. The Court of Appeals affirmed the trial court.\n5. We ordered reargument and additional briefs.\n6. This court affirmed.\nThe principal respondent in this case, Fasano, happens to\nbe an attorney at law, and his residence is near the\nproposed mobile home park of the petitioner A.G.S. No\naverage homeowner or small business enterprise can afford\na judicial process such as described above nor can a judicial\nsystem cope with or endure such a process in achieving\njustice. The number of such controversies is ascending.\nIn this case the majority opinion, in which I concur, adopts\nsome sound rules to enable county and municipal planning\ncommissions and governing bodies, as well as trial courts,\nto reach finality in decision. However, the procedure is no\npanacea and it is still burdensome.\nIt is solely within the domain of the legislative branch of\ngovernment to devise a new and simplified statutory\nprocedure to expedite finality of decision.\nBoard of County Commissioners of Brevard County\nFlorida v. Jack R. Snyder,627 So.2d 469 (1993)\nRobert D. Guthrie, County Atty., and Eden Bentley, Asst.\nCounty Atty., Melbourne, for petitioner.\nFrank J. Griffith, Jr., Cianfrogna, Telfer, Reda & Faherty,\nP.A., Titusville, for respondents.\nDenis Dean and Jonathan A. Glogau, Asst. Attys. Gen.,\nTallahassee, amicus curiae, for Atty. Gen., State of FL.\nNancy Stuparich, Asst. Gen. Counsel, and Jane C. Hayman,\nDeputy Gen. Counsel, Tallahassee, amicus curiae, for FL\nLeague of Cities, Inc.\nPaul R. Gougelman, III, and Maureen M. Matheson,\nReinman, Harrell, Graham, Mitchell & Wattwood, P.A.,\n\n166\n\n\x0cMelbourne, amicus curiae, for Space Coast League of\nCities, Inc., City of Melbourne, and Town of Indialantic.\nRichard E. Gentry, FL Home Builders Ass\xe2\x80\x99n, and Robert\nM. Rhodes and Cathy M. Sellers, Steel, Hector and Davis,\nTallahassee, amicus curiae, for FL Home Builders Ass\xe2\x80\x99n.\nDavid La Croix, Pennington, Wilkinson & Dunlap, P.A.,\nand William J. Roberts, Roberts and Eagan, P.A.,\nTallahassee, amicus curiae, for FL Ass\xe2\x80\x99n of Counties.\nDavid J. Russ and Karen Brodeen, Asst. Gen. Counsels,\nTallahassee, amicus curiae, for FL Dept. of Community\nAffairs.\nRichard Grosso, Legal Director, Tallahassee, and C. Allen\nWatts, Cobb, Cole and Bell, Daytona Beach, amicus curiae,\nfor 1000 Friends of FL.\nNeal D. Bowen, County Atty., Kissimmee, amicus curiae,\nfor Osceola County.\nM. Stephen Turner and David K. Miller, Broad and Cassel,\nTallahassee, amicus curiae, for Monticello Drug Co.\nJohn J. Copelan, Jr., County Atty., and Barbara S.\nMonahan, Asst. County Atty. for Broward County, Fort\nLauderdale, and Emeline Acton, County Atty. for\nHillsborough County, Tampa, amici curiae, for Broward\nCounty, Hillsborough County and FL Ass\xe2\x80\x99n of County\nAttys., Inc.\nThomas G. Pelham, Holland & Knight, Tallahassee, amicus\ncuriae, pro se.\nGRIMES, JUSTICE.\nWe review Snyder v. Board of County Commissioners, 595 So.2d\n65 (Fla. 5th DCA 1991), because of its conflict with Schauer\nv. City of Miami Beach, 112 So.2d 838 (Fla. 1959); City of\nJacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA\n1984), review denied, 469 So.2d 749 (Fla. 1985); and Palm\nBeach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA\n\n167\n\n\x0c1987), review denied, 528 So.2d 1183 (Fla. 1988). We have\njurisdiction under article V, section 3(b)(3) of the Florida\nConstitution. Jack and Gail Snyder owned a one-half acre\nparcel of property on Merritt Island in the unincorporated\narea of Brevard County. The property is zoned GU (general\nuse) which allows construction of a single-family residence.\nThe Snyders filed an application to rezone their property to\nthe RU-2-15 zoning classification which allows the\nconstruction of fifteen units per acre. The area is\ndesignated for residential use under the 1988 Brevard\nCounty Comprehensive Plan Future Land Use Map.\nTwenty-nine zoning classifications are considered\npotentially consistent with this land use designation,\nincluding both the GU and the RU-2-15 classifications.\nAfter the application for rezoning was filed, the Brevard\nCounty Planning and Zoning staff reviewed the application\nand completed the county\xe2\x80\x99s standard \xe2\x80\x9crezoning review\nworksheet.\xe2\x80\x9d The worksheet indicated that the proposed\nmultifamily use of the Snyders\xe2\x80\x99 property was consistent\nwith all aspects of the comprehensive plan except for the\nfact that it was located in the one-hundred-year flood plain\nin which a maximum of only two units per acre was\npermitted. For this reason, the staff recommended that the\nrequest be denied.\nAt the planning and zoning board meeting, the county\nplanning and zoning director indicated that when the\nproperty was developed the land elevation would be raised\nto the point where the one-hundred-year-flood plain\nrestriction would no longer be applicable. Thus, the\ndirector stated that the staff no longer opposed the\napplication. The planning and zoning board voted to\napprove the Snyders\xe2\x80\x99 rezoning request.\nWhen the matter came before the board of county\ncommissioners, Snyder stated that he intended to build only\nfive or six units on the property. However, a number of\ncitizens spoke in opposition to the rezoning request. Their\n\n168\n\n\x0cprimary concern was the increase in traffic which would be\ncaused by the development. Ultimately, the commission\nvoted to deny the rezoning request without stating a reason\nfor the denial.\nThe Snyders filed a petition for certiorari in the circuit\ncourt. Three circuit judges, sitting en banc, reviewed the\npetition and denied it by a two-to-one decision. The\nSnyders then filed a petition for certiorari in the Fifth\nDistrict Court of Appeal.\nThe district court of appeal acknowledged that zoning\ndecisions have traditionally been considered legislative in\nnature. Therefore, courts were required to uphold them if\nthey could be justified as being \xe2\x80\x9cfairly debatable.\xe2\x80\x9d Drawing\nheavily on Fasano v. Board of County Commissioners, 264 Or.\n574, 507 P.2d 23 (1973), however, the court concluded that,\nunlike initial zoning enactments and comprehensive\nrezonings or rezonings affecting a large portion of the\npublic, a rezoning action which entails the application of a\ngeneral rule or policy to specific individuals, interests, or\nactivities is quasi-judicial in nature. Under the latter\ncircumstances, the court reasoned that a stricter standard of\njudicial review of the rezoning decision was required. The\ncourt went on to hold:\n(4) Since a property owner\xe2\x80\x99s right to\nown and use his property is\nconstitutionally protected, review of\nany governmental action denying or\nabridging that right is subject to close\njudicial scrutiny. Effective judicial\nreview, constitutional due process and\nother essential requirements of law, all\nnecessitate that the governmental\nagency (by whatever name it may be\ncharacterized) applying legislated land\nuse restrictions to particular parcels of\nprivately owned lands, must state\n\n169\n\n\x0creasons for action that denies the\nowner the use of his land and must\nmake findings of fact and a record of\nits proceedings, sufficient for judicial\nreview of: the legal sufficiency of the\nevidence to support the findings of\nfact made, the legal sufficiency of the\nfindings of fact supporting the reasons\ngiven and the legal adequacy, under\napplicable law (i.e., under general\ncomprehensive zoning ordinances,\napplicable state and case law and state\nand federal constitutional provisions)\nof the reasons given for the result of\nthe action taken.\n(5) The initial burden is upon the\nlandowner to demonstrate that his\npetition or application for use of\nprivately owned lands, (rezoning,\nspecial exception, conditional use\npermit, variance, site plan approval,\netc.) complies with the reasonable\nprocedural requirements of the\nordinance and that the use sought is\nconsistent with the applicable\ncomprehensive zoning plan. Upon\nsuch a showing the landowner is\npresumptively entitled to use his\nproperty in the manner he seeks unless\nthe opposing governmental agency\nasserts and proves by clear and\nconvincing evidence that a specifically\nstated public necessity requires a\nspecified, more restrictive, use. After\nsuch a showing the burden shifts to\nthe landowner to assert and prove that\nsuch specified more restrictive land\nuse constitutes a taking of his property\nfor public use for which he is entitled\n\n170\n\n\x0cto compensation under the taking\nprovisions of the state or federal\nconstitutions.\nSnyder v. Board of County Commissioners, 595 So.2d at 81\n(footnotes omitted).\nApplying these principles to the facts of the case, the court\nfound (1) that the Snyders\xe2\x80\x99 petition for rezoning was\nconsistent with the comprehensive plan; (2) that there was\nno assertion or evidence that a more restrictive zoning\nclassification was necessary to protect the health, safety,\nmorals, or welfare of the general public; and (3) that the\ndenial of the requested zoning classification without\nreasons supported by facts was, as a matter of law, arbitrary\nand unreasonable. The court granted the petition for\ncertiorari.\nBefore this Court, the county contends that the standard of\nreview for the county\xe2\x80\x99s denial of the Snyders\xe2\x80\x99 rezoning\napplication is whether or not the decision was fairly\ndebatable. The county further argues that the opinion\nbelow eliminates a local government\xe2\x80\x99s ability to operate in a\nlegislative context and impairs its ability to respond to\npublic comment. The county refers to Jennings v. Dade\nCounty, 589 So.2d 1337 (Fla. 3d DCA 1991), review denied,\n598 So.2d 75 (Fla. 1992), for the proposition that if its\nrezoning decision is quasi-judicial, the commissioners will\nbe prohibited from obtaining community input by way of\nex parte communications from its citizens. In addition, the\ncounty suggests that the requirement to make findings in\nsupport of its rezoning decision will place an\ninsurmountable burden on the zoning authorities. The\ncounty also asserts that the salutary purpose of the\ncomprehensive plan to provide controlled growth will be\nthwarted by the court\xe2\x80\x99s ruling that the maximum use\npermitted by the plan must be approved once the rezoning\napplication is determined to be consistent with it.\n\n171\n\n\x0cThe Snyders respond that the decision below should be\nupheld in all of its major premises. They argue that the\nrationale for the early decisions that rezonings are\nlegislative in nature has been changed by the enactment of\nthe Growth Management Act. Thus, in order to ensure that\nlocal governments follow the principles enunciated in their\ncomprehensive plans, it is necessary for the courts to\nexercise stricter scrutiny than would be provided under the\nfairly debatable rule. The Snyders contend that their\nrezoning application was consistent with the\ncomprehensive plan. Because there are no findings of fact\nor reasons given for the denial by the board of county\ncommissioners, there is no basis upon which the denial\ncould be upheld. Various amici curiae have also submitted\nbriefs in support of their several positions.\nHistorically, local governments have exercised the zoning\npower pursuant to a broad delegation of state legislative\npower subject only to constitutional limitations. Both\nfederal and state courts adopted a highly deferential\nstandard of judicial review early in the history of local\nzoning. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365,\n47 S.Ct. 114, 71 L.Ed. 303 (1926), the United States\nSupreme Court held that \xe2\x80\x9c[i]f the validity of the legislative\nclassification for zoning purposes be fairly debatable, the\nlegislative judgment must be allowed to control.\xe2\x80\x9d 272 U.S.\nat 388, 47 S.Ct. at 118. This Court expressly adopted the\nfairly debatable principle in City of Miami Beach v. Ocean &\nInland Co., 147 Fla. 480, 3 So.2d 364 (1941).\nInhibited only by the loose judicial scrutiny afforded by the\nfairly debatable rule, local zoning systems developed in a\nmarkedly inconsistent manner. Many land use experts and\npractitioners have been critical of the local zoning system.\nRichard\nBabcock\ndeplored\nthe\neffect\nof\n\xe2\x80\x9cneighborhoodism\xe2\x80\x9d and rank political influence on the\nlocal decision-making process. Richard F. Babcock, The\nZoning Game (1966). Mandelker and Tarlock recently stated\n\n172\n\n\x0cthat \xe2\x80\x9czoning decisions are too often ad hoc, sloppy and\nself-serving decisions with well-defined adverse\nconsequences without off-setting benefits.\xe2\x80\x9d Daniel R.\nMandelker and A. Dan Tarlock, Shifting the Presumption of\nConstitutionality in Land-Use Law, 24 Urb.Law. 1, 2 (1992).\nProfessor Charles Harr, a leading proponent of zoning\nreform, was an early advocate of requiring that local land\nuse regulation be consistent with a legally binding\ncomprehensive plan which would serve long range goals,\ncounteract local pressures for preferential treatment, and\nprovide courts with a meaningful standard of review.\nCharles M. Harr, \xe2\x80\x9cIn Accordance With A Comprehensive Plan,\xe2\x80\x9d\n68 Harv.L.Rev. 1154 (1955). In 1975, the American Law\nInstitute adopted the Model Land Development Code,\nwhich provided for procedural and planning reforms at the\nlocal level and increased state participation in land use\ndecision-making for developments of regional impact and\nareas of critical state concern.\nReacting to the increasing calls for reform, numerous states\nhave adopted legislation to change the local land use\ndecision-making process. As one of the leaders of this\nnational reform, Florida adopted the Local Government\nComprehensive Planning Act of 1975. Ch. 75-257, Laws of\nFla. This law was substantially strengthened in 1985 by the\nGrowth Management Act. Ch. 85-55, Laws of Fla.\nPursuant to the Growth Management Act, each county and\nmunicipality is required to prepare a comprehensive plan\nfor approval by the Department of Community Affairs.\nThe adopted local plan must include \xe2\x80\x9cprinciples, guidelines,\nand standards for the orderly and balanced future\neconomic, social, physical, environmental, and fiscal\ndevelopment\xe2\x80\x9d of the local government\xe2\x80\x99s jurisdictional area.\nSection 163.3177(1), Fla. Stat. (1991). At the minimum, the\nlocal plan must include elements covering future land use;\ncapital improvements generally; sanitary sewer, solid waste,\ndrainage, potable water, and natural ground water aquifer\n\n173\n\n\x0cprotection specifically; conservation; recreation and open\nspace; housing; traffic circulation; intergovernmental\ncoordination; coastal management (for local government in\nthe coastal zone); and mass transit (for local jurisdictions\nwith 50,000 or more people). Id., \xc2\xa7 163.3177(6).\nOf special relevance to local rezoning actions, the future\nland use plan element of the local plan must contain both a\nfuture land use map and goals, policies, and measurable\nobjectives to guide future land use decisions. This plan\nelement must designate the \xe2\x80\x9cproposed future general\ndistribution, location, and extent of the uses of land\xe2\x80\x9d for\nvarious purposes. Id., \xc2\xa7 163.3177(6)(a). It must include\nstandards to be utilized in the control and distribution of\ndensities and intensities of development. In addition, the\nfuture land use plan must be based on adequate data and\nanalysis concerning the local jurisdiction, including the\nprojected population, the amount of land needed to\naccommodate the estimated population, the availability of\npublic services and facilities, and the character of\nundeveloped land. Id., \xc2\xa7 163.3177(6)(a).\nThe local plan must be implemented through the adoption\nof land development regulations that are consistent with\nthe plan. Id. \xc2\xa7 163.3202. In addition, all development, both\npublic and private, and all development orders approved by\nlocal governments must be consistent with the adopted\nlocal plan. Id., \xc2\xa7 163.3194(1)(a). Section 163.3194(3), Florida\nStatutes (1991), explains consistency as follows:\n(a) A development order or land\ndevelopment regulation shall be\nconsistent with the comprehensive\nplan if the land uses, densities or\nintensities, and other aspects of\ndevelopment permitted by such order\nor regulation are compatible with and\nfurther the objectives, policies, land\nuses, and densities or intensities in the\n\n174\n\n\x0ccomprehensive plan and if it meets all\nother criteria enumerated by the local\ngovernment.\nSection 163.3164, Florida Statutes (1991), reads in pertinent\npart:\n(6) \xe2\x80\x9cDevelopment order\xe2\x80\x9d means any\norder granting, denying, or granting\nwith conditions an application for a\ndevelopment permit.\n(7) \xe2\x80\x9cDevelopment permit\xe2\x80\x9d includes\nany building permit, zoning permit,\nsubdivision\napproval,\nrezoning,\ncertification,\nspecial\nexception,\nvariance, or any other official action of\nlocal government having the effect of\npermitting the development of land.\nBecause an order granting or denying rezoning constitutes a\ndevelopment order and development orders must be\nconsistent with the comprehensive plan, it is clear that\norders on rezoning applications must be consistent with the\ncomprehensive plan.\nThe first issue we must decide is whether the Board\xe2\x80\x99s\naction on Snyder\xe2\x80\x99s rezoning application was legislative or\nquasi-judicial. A board\xe2\x80\x99s legislative action is subject to\nattack in circuit court. Hirt v. Polk County Bd. of County\nComm\xe2\x80\x99rs, 578 So.2d 415 (Fla. 2d DCA 1991). However, in\ndeference to the policy-making function of a board when\nacting in a legislative capacity, its actions will be sustained\nas long as they are fairly debatable. Nance v. Town of\nIndialantic, 419 So.2d 1041 (Fla. 1982). On the other hand,\nthe rulings of a board acting in its quasi-judicial capacity are\nsubject to review by certiorari and will be upheld only if\nthey are supported by substantial competent evidence. De\nGroot v. Sheffield, 95 So.2d 912 (Fla. 1957).\n\n175\n\n\x0cEnactments of original zoning ordinances have always been\nconsidered legislative. Gulf & Eastern Dev. Corp. v. City of\nFort Lauderdale, 354 So.2d 57 (Fla. 1978); County of Pasco v. J.\nDico, Inc., 343 So.2d 83 (Fla. 2d DCA 1977). In Schauer v.\nCity of Miami Beach, this Court held that the passage of an\namending zoning ordinance was the exercise of a legislative\nfunction. 112 So.2d at 839. However, the amendment in\nthat case was comprehensive in nature in that it effected a\nchange in the zoning of a large area so as to permit it to be\nused as locations for multiple family buildings and hotels.\nId. In City of Jacksonville Beach v. Grubbs and Palm Beach County\nv. Tinnerman, the district courts of appeal went further and\nheld that board action on specific rezoning applications of\nindividual property owners was also legislative. Grubbs, 461\nSo.2d at 163; Tinnerman, 517 So.2d at 700.\nIt is the character of the hearing that determines whether or\nnot board action is legislative or quasi-judicial. Coral Reef\nNurseries, Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA\n1982). Generally speaking, legislative action results in the\nformulation of a general rule of policy, whereas judicial action\nresults in the application of a general rule of policy. Carl J.\nPeckingpaugh, Jr., Comment, Burden of Proof in Land Use\nRegulations: A Unified Approach and Application to Florida, 8\nFla.St.U.L.Rev. 499, 504 (1980). In West Flagler Amusement\nCo. v. State Racing Commission, 122 Fla. 222, 225, 165 So. 64,\n65 (1935), we explained:\nA judicial or quasi-judicial act\ndetermines the rules of law applicable,\nand the rights affected by them, in\nrelation to past transactions. On the\nother hand, a quasi-legislative or\nadministrative order prescribes what\nthe\nrule\nor\nrequirement\nof\nadministratively determined duty shall\nbe with respect to transactions to be\nexecuted in the future, in order that\n\n176\n\n\x0csame shall be considered lawful. But\neven so, quasi-legislative and quasiexecutive orders, after they have\nalready been entered, may have a\nquasi-judicial attribute if capable of\nbeing arrived at and provided by law to\nbe declared by the administrative\nagency only after express statutory\nnotice, hearing and consideration of\nevidence to be adduced as a basis for\nthe making thereof.\nApplying this criterion, it is evident that comprehensive\nrezonings affecting a large portion of the public are\nlegislative in nature. However, we agree with the court\nbelow when it said:\n[R]ezoning actions which have an\nimpact on a limited number of persons\nor property owners, on identifiable\nparties and interests, where the\ndecision is contingent on a fact or facts\narrived at from distinct alternatives\npresented at a hearing, and where the\ndecision can be functionally viewed as\npolicy application, rather than policy\nsetting, are in the nature of \xe2\x80\xa6 quasijudicial action\xe2\x80\xa6 .\nSnyder, 595 So.2d at 78. Therefore, the board\xe2\x80\x99s action on\nSnyder\xe2\x80\x99s application was in the nature of a quasi-judicial\nproceeding and properly reviewable by petition for\ncertiorari.1\n\nOne or more of the amicus briefs suggests that Snyder\xe2\x80\x99s remedy was to bring a de\nnovo action in circuit court pursuant to section 163.3215, Florida Statutes (1991).\nHowever, in Parker v. Leon County, 627 So.2d 476 (Fla. 1993), we explained that this\nstatute only provides a remedy for third parties to challenge the consistency of\ndevelopment orders.\n1\n\n177\n\n\x0cWe also agree with the court below that the review is\nsubject to strict scrutiny. In practical effect, the review by\nstrict scrutiny in zoning cases appears to be the same as\nthat given in the review of other quasi-judicial decisions. See\nLee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d\n996 (Fla.2d DCA 1993) (The term \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d arises\nfrom the necessity of strict compliance with comprehensive\nplan.). This term as used in the review of land use decisions\nmust be distinguished from the type of strict scrutiny\nreview afforded in some constitutional cases. Compare Snyder\nv. Board of County Comm\xe2\x80\x99rs, 595 So.2d 65, 75-76 (Fla. 5th\nDCA 1991) (land use), and Machado v. Musgrove, 519 So.2d\n629, 632 (Fla. 3d DCA 1987), review denied, 529 So.2d 693\n(Fla. 1988), and review denied, 529 So.2d 694 (Fla. 1988) (land\nuse), with In re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla.\n1980) (general discussion of strict scrutiny review in\ncontext of fundamental rights), appeal dismissed, 450 U.S.\n961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981), Florida High\nSch. Activities Ass\xe2\x80\x99n v. Thomas, 434 So.2d 306 (Fla. 1983)\n(equal protection), and Department of Revenue v. Magazine\nPublishers of America, Inc., 604 So.2d 459 (Fla. 1992) (First\nAmendment).\nAt this point, we depart from the rationale of the court\nbelow. In the first place, the opinion overlooks the premise\nthat the comprehensive plan is intended to provide for the\nfuture use of land, which contemplates a gradual and\nordered growth. See City of Jacksonville Beach, 461 So.2d at\n163, in which the following statement from Marracci v. City\nof Scappoose, 552 P.2d 552, 553 (Or. Ct. App. 1976), was\napproved:\n[A]\ncomprehensive\nplan\nonly\nestablishes a long-range maximum\nlimit on the possible intensity of land\nuse; a plan does not simultaneously\nestablish an immediate minimum limit\non the possible intensity of land use.\n\n178\n\n\x0cThe present use of land may, by\nzoning ordinance, continue to be more\nlimited than the future use\ncontemplated by the comprehensive\nplan.\nEven where a denial of a zoning application would be\ninconsistent with the plan, the local government should\nhave the discretion to decide that the maximum\ndevelopment density should not be allowed provided the\ngovernmental body approves some development that is\nconsistent with the plan and the government\xe2\x80\x99s decision is\nsupported by substantial, competent evidence.\nFurther, we cannot accept the proposition that once the\nlandowner demonstrates that the proposed use is consistent\nwith the comprehensive plan, he is presumptively entitled\nto this use unless the opposing governmental agency\nproves by clear and convincing evidence that specifically\nstated public necessity requires a more restricted use. We\ndo not believe that a property owner is necessarily entitled\nto relief by proving consistency when the board action is\nalso consistent with the plan. As noted in Lee County v.\nSunbelt Equities II, Limited Partnership:\n[A]bsent the assertion of some\nenforceable property right, an\napplication for rezoning appeals at\nleast in part to local officials\xe2\x80\x99 discretion\nto accept or reject the applicant\xe2\x80\x99s\nargument that change is desirable. The\nright of judicial review does not ipso\nfacto ease the burden on a party seeking\nto overturn a decision made by a local\ngovernment, and certainly does not\nconfer any property-based right upon\nthe owner where none previously\nexisted.\n\xe2\x80\xa6.\n\n179\n\n\x0cMoreover, when it is the zoning\nclassification that is challenged, the\ncomprehensive plan is relevant only\nwhen the suggested use is inconsistent\nwith that plan. Where any of several\nzoning classifications is consistent with\nthe plan, the applicant seeking a\nchange from one to the other is not\nentitled to judicial relief absent proof\nthe status quo is no longer reasonable. It\nis not enough simply to be\n\xe2\x80\x9cconsistent\xe2\x80\x9d; the proposed change\ncannot be inconsistent, and will be\nsubject to the \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d of\nMachado to insure this does not\nhappen.\n619 So.2d at 1005-06.\nThis raises a question of whether the Growth Management\nAct provides any comfort to the landowner when the\ndenial of the rezoning request is consistent with the\ncomprehensive plan. It could be argued that the only\nrecourse is to pursue the traditional remedy of attempting\nto prove that the denial of the application was arbitrary,\ndiscriminatory, or unreasonable. Burritt v. Harris, 172 So.2d\n820 (Fla. 1965); City of Naples v. Central Plaza of Naples, Inc.,\n303 So.2d 423 (Fla. 2d DCA 1974). Yet, the fact that a\nproposed use is consistent with the plan means that the\nplanners contemplated that that use would be acceptable at\nsome point in the future. We do not believe the Growth\nManagement Act was intended to preclude development\nbut only to insure that it proceed in an orderly manner.\nUpon consideration, we hold that a landowner seeking to\nrezone property has the burden of proving that the\nproposal is consistent with the comprehensive plan and\ncomplies with all procedural requirements of the zoning\nordinance. At this point, the burden shifts to the\ngovernmental board to demonstrate that maintaining the\n\n180\n\n\x0cexisting zoning classification with respect to the property\naccomplishes a legitimate public purpose. In effect, the\nlandowners\xe2\x80\x99 traditional remedies will be subsumed within\nthis rule, and the board will now have the burden of\nshowing that the refusal to rezone the property is not\narbitrary, discriminatory, or unreasonable. If the board\ncarries its burden, the application should be denied.\nWhile they may be useful, the board will not be required to\nmake findings of fact. However, in order to sustain the\nboard\xe2\x80\x99s action, upon review by certiorari in the circuit court\nit must be shown that there was competent substantial\nevidence presented to the board to support its ruling.\nFurther review in the district court of appeal will continue\nto be governed by the principles of City of Deerfield Beach v.\nVaillant, 419 So.2d 624 (Fla. 1982).\nBased on the foregoing, we quash the decision below and\ndisapprove City of Jacksonville Beach v. Grubbs and Palm Beach\nCounty v. Tinnerman, to the extent they are inconsistent with\nthis opinion. However, in the posture of this case, we are\nreluctant to preclude the Snyders from any avenue of relief.\nBecause of the possibility that conditions have changed\nduring the extended lapse of time since their original\napplication was filed, we believe that justice would be best\nserved by permitting them to file a new application for\nrezoning of the property. The application will be without\nprejudice of the result reached by this decision and will\nallow the process to begin anew according to the procedure\noutlined in our opinion.\nIt is so ordered.\nBARKETT, C.J., and OVERTON,\nKOGAN and HARDING, JJ., concur.\nSHAW,J., dissents.\n\n181\n\nMcDONALD,\n\n\x0c3.3. Procedure\nFrank S. Griswold v. City of Homer\n925 P.2d 1015 (Alaska 1996)\nFrank S. Griswold, Homer, pro se.\nGordon J. Tans, Perkins Coie, Anchorage, for Appellee.\nBefore MOORE, C.J., and RABINOWITZ, MATTHEWS,\nCOMPTON and EASTAUGH, JJ.\nEASTAUGH, JUSTICE.\nI. INTRODUCTION\nIn 1992 the Homer City Council adopted Ordinance 92-18\namending Homer\xe2\x80\x99s zoning and planning code to allow\nmotor vehicle sales and services on thirteen lots in Homer\xe2\x80\x99s\nCentral Business District. Frank Griswold claims\nOrdinance 92-18 is invalid because it constitutes spot\nzoning. We affirm the superior court\xe2\x80\x99s rejection of that\nclaim. Griswold also claims the Ordinance is invalid\nbecause a council member with a personal interest\nimproperly participated in its adoption. We hold that the\ncouncil member should not have participated. We\nconsequently remand so the superior court can determine\nwhether that participation invalidates the Ordinance.\nFinally, we hold that Griswold is a public interest litigant\nwho cannot be assessed the City\xe2\x80\x99s attorney\xe2\x80\x99s fees and court\ncosts.\n\xe2\x80\xa6.\nB. Claim of Conflict of Interest\nHomer City Council member Brian Sweiven owned one of\nthe thirteen lots in the reclassified area. He was one of nine\nowners directly affected by Ordinance 92-18. It appears\nthat it was Sweiven who first recommended to the\ncommission that the rezone apply only to Main Street. An\narticle in the Homer News was titled \xe2\x80\x9cSweiven proposes\n\n182\n\n\x0ccommercial zoning for downtown Homer.\xe2\x80\x9d The article\nrefers to the idea of rezoning Main Street as \xe2\x80\x9cSweiven\xe2\x80\x99s\nproposal.\xe2\x80\x9d Griswold alleges that Sweiven had a\ndisqualifying conflict of interest under Homer municipal\nlaw and that his participation in the adoption of Ordinance\n92-18 therefore invalidates the Ordinance, even though\nSweiven\xe2\x80\x99s vote was not necessary for passage. The superior\ncourt found that Sweiven did not have a disqualifying\nconflict of interest and that even if he had, his participation\nin the deliberations and vote would not invalidate\nOrdinance 92-18.\n1. Was there a conflict of interest?\nHomer City Code 1.24.040(g) states:\nA member of the Council shall declare\na substantial financial interest the\nmember has in an official action and\nask to be excused from a vote on the\nmatter. The Mayor or other presiding\nofficer shall rule on the request;\nhowever, the decision may be\noverridden by the majority vote of the\nCouncil. Should a Council member fail\nto declare a substantial financial\ninterest, the Council may move to\ndisqualify that member from voting by\na majority vote of the body. A Council\nmember with a conflict of interest\nregardless of whether excused from\nvoting, shall not be allowed to\nparticipate in discussion about the\nmatter.1\n\nIn addition, Homer\xe2\x80\x99s City Code mandates that a city official \xe2\x80\x9cdisclose any financial\ninterest in any matter before the board or commission before debating or voting\nupon the matter\xe2\x80\x9d and prohibits the official from participating in the debate or vote\n1\n\n183\n\n\x0cThe code defines \xe2\x80\x9csubstantial financial interest\xe2\x80\x9d as\n1. An interest that will result in\nimmediate financial gain; or\n2. An interest that will result in\nfinancial gain which will occur in the\nreasonably foreseeable future. HCC\n1.12.010(a). Under common law, \xe2\x80\x9cthe\nfocus \xe2\x80\xa6 [is] on the relationship\nbetween the public official\xe2\x80\x99s financial\ninterest and the possible result of the\nofficial\xe2\x80\x99s action, regardless of the\nofficial\xe2\x80\x99s intent.\xe2\x80\x9d Carney v. State, Bd. of\nFisheries, 785 P.2d 544, 548 (Alaska\n1990) (citing Marsh v. Town of Hanover,\n113 N.H. 667, 313 A.2d 411, 414-15\n(1973)).2 The plain language of HCC\n1.24.040(g) appears to coincide with\nthis principle.\nThe City Council did not address Sweiven\xe2\x80\x99s alleged conflict\nof interest until after the Ordinance had been passed. After\nthe council passed the Ordinance, the City Attorney\nadvised the council to address the matter at its next meeting\nby having Sweiven declare the facts concerning his\nownership of the land and ask the council to determine\nwhether his participation in the matter constituted a\nconflict of interest under the City Code, and to have the\nMayor then rule on this question. The City Attorney stated\nunless the board or commission determines that a financial interest is not\nsubstantial as defined in HCC 1.12.010. HCC 1.12.070 (emphasis added).\nAt first glance it may appear that the Executive Branch Ethics Act, AS 39.52.010.960, which explicitly supersedes the common law on conflicts of interest, see AS\n39.52.910, requires intent on the part of public officials subject to that Act. See AS\n39.52.120(b)(4). However, that Act does not apply to municipal officials. Gates v.\nCity of Tenakee Springs, 822 P.2d 455, 462 (Alaska 1992). Thus, the common law of\nconflicts of interest continues to apply to municipal officers. Carney, 785 P.2d at\n547-48.\n2\n\n184\n\n\x0cthat if the City were to determine that Sweiven had a\ndisqualifying conflict of interest, it should declare the\nOrdinance void. The City Attorney also stated that, in his\nopinion, Sweiven\xe2\x80\x99s ownership did not constitute a\ndisqualifying conflict of interest.\nThe superior court found that\n[t]here has been no showing that\npassage of the ordinance will result in\na financial gain to Council member\nSweiven, now or in the future. In fact,\nit may act as a detriment. Council\nmember\nSweiven\xe2\x80\x99s\ninterest\nin\nOrdinance No. 92-18 is simply too\nremote and/or speculative to require\nhis disqualification as a legislative\nofficial.\nThis finding is clearly erroneous. The court further stated,\nPlaintiff correctly surmises that\nCouncil Member Sweiven\xe2\x80\x99s purpose\nand intent at the time he promoted\nand voted for the ordinance are of\ncrucial importance in determining\nwhether or not he had a conflict of\ninterest.\nThis holding incorrectly states the law, because the proper\nfocus is on the relationship between the official\xe2\x80\x99s financial\ninterest and the result of the official\xe2\x80\x99s action, \xe2\x80\x9cregardless of\nthe official\xe2\x80\x99s intent.\xe2\x80\x9d Carney, 785 P.2d at 548.\nSweiven had a \xe2\x80\x9csubstantial financial interest\xe2\x80\x9d within the\nmeaning of HCC 1.12.010(a)(2) in a reclassification which\nwould increase the permissible uses of his property. Indeed,\nit seems inconsistent for the City to argue both that the\nOrdinance will benefit the City by increasing the tax base\n\n185\n\n\x0cand property values, and that it will not benefit Sweiven\xe2\x80\x99s\nlot in a similar fashion.\nThe City nevertheless asserts that Sweiven\xe2\x80\x99s interest in the\npassage of Ordinance 92-18 is too remote and speculative\nto constitute a disqualifying interest, and argues that\nSweiven\xe2\x80\x99s property is affected the same way as other\ncitizens\xe2\x80\x99 property. The City attempts to distinguish Carney\nin which we held that fishermen who sat on the Board of\nFisheries could vote on matters affecting the fishing\nindustry as a whole but were disqualified from voting on\nregulations which affected the area in which they actively\nfished. We reasoned in Carney that the members should\nhave abstained from decision-making in areas in which they\nhad a narrow and specific interest. Id. at 548. The City\nargues that Sweiven did not have a narrow and specific\ninterest because \xe2\x80\x9cMr. Sweiven\xe2\x80\x99s operations (his home and\nappliance repair business) are not affected at all by\nOrdinance 92-18 (automobile sales and services).\xe2\x80\x9d\nOrdinance 92-18 does not directly affect all of Homer, or\neven a large part of the City or an entire class of its citizens.\nSweiven voted on an amendment which directly affects\nonly thirteen lots, including his own, out of the 500-some\nlots in the CBD. According to the Alaska Department of\nLaw, the common law requires that a legislator refrain from\nvoting on a bill which will inure to the legislator\xe2\x80\x99s financial\nbenefit if the legislator\xe2\x80\x99s interest \xe2\x80\x9cis peculiarly personal,\nsuch as when a bill benefits only a tiny class of which the\nlegislator is a member.\xe2\x80\x9d 1982 Formal Op. Att\xe2\x80\x99y Gen. 4133.\nFurthermore, it is said in the context of zoning:\nMost of the cases [of disqualifying\nconflict of interest] have involved a\ncharge of a more-or-less direct\nfinancial interest, and it is clear that\nsuch an interest is a proper ground of\ndisqualification, as where the officer\n\n186\n\n\x0chimself holds property which is\ndirectly involved in or affected by the\nproceeding.\n\xe2\x80\xa6.\nThe clearest situation in which\ndisqualifying bias or prejudice is shown\nis that where the zoning officer\nhimself owns property the value of\nwhich will be directly promoted or\nreduced by the decision to be made\nand it is not surprising that upon a\nshowing of such interest the courts\nhave usually held the officer\ndisqualified.\nW.E. Shipley, Annotation, Disqualification for Bias or Interest of\nAdministrative Officer Sitting in Zoning Proceeding, 10 A.L.R.3d\n694, 697 (1966). Sweiven himself apparently believed that\nthe Ordinance would increase the value of his property. In\nrecommending the limited rezone to the planning\ncommission, he stated that \xe2\x80\x9cit would increase the tax base\nand property values\xe2\x80\x9d of the area. The record reflects that\nwhen Sweiven was advocating rezoning the entire CBD, he\nwas quoted in the Homer News as stating: \xe2\x80\x9cEven my own\nbusiness. I can\xe2\x80\x99t sell my business, but I can sell my building,\nand someone who wants to put a VW repair shop there \xe2\x80\x94\nhe can\xe2\x80\x99t\xe2\x80\xa6. It\xe2\x80\x99s not just me. This gives everybody in town a\nlot more options as far as selling their business.\xe2\x80\x9d Finally,\nSweiven initially refrained from voting on Ordinance 94-13,\nwhich would have repealed Ordinance 92-18, on the\nground that he had a potential conflict of interest. It\nconsequently appears that Sweiven had a \xe2\x80\x9csubstantial\nfinancial interest\xe2\x80\x9d as that term is defined in HCC\n1.12.010(a).\nThe superior court\xe2\x80\x99s finding that Sweiven did not have a\ndisqualifying conflict of interest is clearly erroneous.\n\n187\n\n\x0c2. What was the effect of the conflict of interest?\nThere are six voting members on the Homer City Council.\nFive voted for Ordinance 92-18 on its first reading. One\nwas absent. Four weeks later, it passed its second and final\nreading, again by a vote of five in favor and one absent.\nThus, without counting Sweiven\xe2\x80\x99s vote, Ordinance 92-18\nwould have passed. The superior court held that even if\nSweiven had a disqualifying conflict of interest, his\nparticipation and voting would not invalidate the result. In\nsupport it cited Waikiki Resort Hotel v. City of Honolulu, 63\nHaw. 222, 624 P.2d 1353, 1370-71 (1981).\nWaikiki followed the rule, also articulated in several other\njurisdictions, that where the required majority exists\nwithout the vote of the disqualified member, the member\xe2\x80\x99s\nparticipation in deliberation and voting will not invalidate\nthe result. 624 P.2d at 1371 (citing Singewald v. Minneapolis\nGas Co., 274 Minn. 556, 142 N.W.2d 739 (1966); Anderson v.\nCity of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972); Eways v.\nReading Parking Auth., 385 Pa. 592, 124 A.2d 92 (1956)).\nThe Waikiki court also cited Marshall v. Ellwood City Borough,\n189 Pa. 348, 41 A. 994 (1899), where the court reasoned\nthat because the other four members voted in favor of the\ndisputed ordinance, the invalid vote of one city councilman\nhad no legal efficacy; thus, the court would not invalidate\nthe ordinance. Waikiki, 624 P.2d at 1371.\nWaikiki cited decisions from three other jurisdictions\nholding that a vote cast by a disqualified member vitiates\nthe decision in which the member participated, even if the\nvote does not change the outcome of the decision. 624\nP.2d at 1370 (citing Piggott v. Borough of Hopewell, 22 N.J.\nSuper. 106, 91 A.2d 667 (1952); Baker v. Marley, 8 N.Y.2d\n365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Buell v. City\nof Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972)). In\nBuell, the court stated:\n\n188\n\n\x0cThe self-interest of one member of the\nplanning commission infects the action\nof the other members of the\ncommission regardless of their\ndisinterestedness.\nThe\nrecommendation of the planning\ncommission to the city council could\nnot be assumed to be without impact\non the council. More importantly, it\nwould not appear to the affected\npublic that it was without impact, and\n[the disqualified member\xe2\x80\x99s] actual\nfinancial gain is sufficient to invalidate\nthe entire proceeding.\n495 P.2d at 1362-63 (citations omitted).\nThese lines of authorities offer a choice between votecounting (Waikiki) and automatic invalidation (Buell). We\nhave not had occasion to consider this exact issue. In\nCarney, we found that four of seven fisheries board\nmembers had a disqualifying conflict. We then held the\nboard\xe2\x80\x99s regulation invalid: \xe2\x80\x9cBecause a majority of the votes\ncast to pass the regulation are invalid, so is the regulation.\xe2\x80\x9d\n785 P.2d at 549. Carney did not raise the issue now before\nus because there the measure would have been invalidated\nunder either doctrine.\nWe decline to follow the vote-counting approach adopted\nin Waikiki, notwithstanding its appealing ease of\napplication. A council member\xe2\x80\x99s role in the adoption or\nrejection of an ordinance cannot necessarily be measured\nsolely by that member\xe2\x80\x99s vote. A conflicted member\xe2\x80\x99s\nparticipation in discussion and debate culminating in the\nfinal vote may influence the votes of the member\xe2\x80\x99s\ncolleagues. Moreover, the integrity required of public\nofficeholders demands that the appearance of impropriety\nbe avoided; the approach adopted in Waikiki will not\nalways do so. See Falcon v. Alaska Pub. Offices Comm\xe2\x80\x99n, 570\n\n189\n\n\x0cP.2d 469, 477 (Alaska 1977) (holding financial disclosure\nlaws preserve the integrity and fairness of the political\nprocess both in fact and appearance); Warwick v. State ex rel.\nChance, 548 P.2d 384, 388 (Alaska 1976) (\xe2\x80\x9c[I]t is important\nthat the legislature not only avoid impropriety, but also the\nappearance of impropriety.\xe2\x80\x9d). Cf. AS 39.50.010(b)(1) (public\noffice is a public trust which should be free from the\ndanger of conflict of interest). The superior court erred in\nholding that Ordinance 92-18 is valid simply because\nSweiven did not cast the decisive vote in its adoption.\nWe also decline, however, to adopt the rule of automatic\ninvalidation endorsed in cases such as Buell, 495 P.2d at\n1362-63. The vote and participation of a conflicted member\nwill not invariably alter the votes of other members or\naffect the merits of the council\xe2\x80\x99s decision. This is especially\ntrue if the conflict is disclosed or well-known, allowing\nother members to assess the merits of the conflicted\nmember\xe2\x80\x99s comments in light of his or her interest.\nAutomatic invalidation could needlessly overturn wellconsidered measures which would have been adopted even\nif the disqualified member had refrained from participating.\nAutomatic invalidation has the potential for thwarting\nlegislative enactments which are not in fact the result of\nimproper influence.\nThe dissenting opinion cites HCC 1.12.030 as justification\nfor its conclusion that participation by a disqualified\nmember requires invalidation of the council\xe2\x80\x99s action.3\n\n3\n\nThe portion of HCC 1.12.030 cited by the dissent states:\nA City Councilmember or Mayor with a conflict of\ninterest under section 1.12.020 shall so declare to the body\nas a whole and ask to be excused from voting on the\nmatter. However, a City Councilmember or Mayor with a\nconflict of interest, regardless of whether excused from\nvoting, shall not be allowed to participate in discussion\nabout the matter. (Ord.92-49(A) \xc2\xa7 4, 1992; Ord. 86-22(S) \xc2\xa7\n1(part), 1986).\n\n190\n\n\x0cHCC 1.12.030 and 1.24.040(g), however, determine\nwhether a member may vote or participate. They deal with\ndisqualification, and do not address the consequences of\nparticipation by a conflicted member. The drafters of the\ncode must have contemplated that violations might occur\nnotwithstanding the prohibition. They nonetheless\nspecified no remedy. Had they intended that particular\nconsequences would follow from violation of the\nprohibition, such as the clear-cut remedies of automatic\ninvalidation or vote-counting, they could have easily so\nprovided. Their failure to specify a remedy for violation\nimplies that the drafters intended that the courts fashion\nthe remedy.\nIn determining whether the vote of a conflicted member\ndemands invalidation of an ordinance, courts should keep\nin mind the two basic public policy interests served by\nimpartial decision-making: accuracy of decisions, and the\navoidance of the appearance of impropriety. See generally\nMark W. Cordes, Policing Bias and Conflicts of Interest in Zoning\nDecisionmaking, 65 N.D.L.Rev. 161 (1989).\nGuided by these basic policy concerns, we conclude that\nthe following analysis should be applied in determining the\neffect of a conflicted vote. Initially the court must\ndetermine whether a member with a disqualifying interest\ncast the decisive vote. If so, the ordinance must be\ninvalidated. Carney, 785 P.2d at 549. If the ordinance would\nhave passed without the vote of the conflicted member, the\ncourt should examine the following three factors: (1)\nwhether the member disclosed the interest or the other\ncouncil members were fully aware of it; (2) the extent of the\nmember\xe2\x80\x99s participation in the decision; and (3) the\nmagnitude of the member\xe2\x80\x99s interest. The first two factors\nsquarely bear on the accuracy of the council\xe2\x80\x99s decision. All\n\nThis language is nearly identical to the similar prohibition in HCC 1.24.040(g), but\nalso applies to the mayor.\n\n191\n\n\x0cthree factors directly relate to any appearance of\nimpropriety.\nIf the interest is undisclosed, the ordinance will generally be\ninvalid; it can stand only if the magnitude of the member\xe2\x80\x99s\ninterest, and the extent of his or her participation, are\nminimal. If the interest is disclosed, the ordinance will be\nvalid unless the member\xe2\x80\x99s interest and participation are so\ngreat as to create an intolerable appearance of impropriety.\nThe party challenging the ordinance bears the burden of\nproving its invalidity. We recognize that this analysis is\nmore difficult to apply than the vote-counting and\nautomatic invalidation rules. Simple to apply, those rules\nare unacceptably rigid.\nThe factual record before us is not so clear that we can\ndecide as a matter of law whether invalidation is\nappropriate. The record does not reveal whether the other\ncouncil members had actual knowledge of Sweiven\xe2\x80\x99s\ninterest. While Sweiven\xe2\x80\x99s interest in his lot, where he lived\nand worked, was open and obvious, this is a matter of\npotential factual dispute to be explored on remand.\nLikewise, we cannot weigh the extent of Sweiven\xe2\x80\x99s\nparticipation or say whether it may have affected the\noutcome of the measure. Nor does the record establish\nwhether Sweiven was likely in the foreseeable future to\nrealize any significant appreciation from the reclassification\nby selling or servicing motor vehicles or by selling his lot to\nsomeone who intended to do so. We therefore remand so\nthat the superior court, applying the analysis discussed\nabove, can determine whether Ordinance 92-18 must be\ninvalidated.\n\xe2\x80\xa6.\nRABINOWITZ, JUSTICE, dissenting in part.\nI believe it is of particular significance that Sweiven\nparticipated in the discussion of and voted for Ordinance\n92-18. As the court observes, this ordinance does not\n\n192\n\n\x0cdirectly affect all of Homer, or even a large segment of the\nCity or an entire class of its citizens. More particularly, the\nordinance directly affects only thirteen lots, including\nSweiven\xe2\x80\x99s own, out of approximately 500 lots located\nwithin the Central Business District. The record further\nreveals Sweiven\xe2\x80\x99s belief that Ordinance 92-18 would\nincrease the value of his property. Indeed Sweiven explicitly\nstated that \xe2\x80\x9c[the proposal] would increase the tax base and\nproperty values\xe2\x80\x9d of the area when recommending the\nLimited Rezone to the planning commission.4\nBased on the foregoing, the court correctly concludes that\n\xe2\x80\x9cSweiven had a \xe2\x80\x98substantial financial interest\xe2\x80\x99 within the\nmeaning of HCC 1.12.010(a)5 in a reclassification which\nwould increase the permissible uses of his property\xe2\x80\xa6. The\n4\n\nThe court notes:\nThe record reflects that when Sweiven was advocating\nrezoning the entire CBD, he was quoted in the Homer\nNews as stating: \xe2\x80\x9cEven my own business. I can\xe2\x80\x99t sell my\nbusiness, but I can sell my building, and someone who\nwants to put a VW repair shop there \xe2\x80\x94 he can\xe2\x80\x99t\xe2\x80\xa6 . It\xe2\x80\x99s\nnot just me. This gives everybody in town a lot more\noptions as far as selling their business.\xe2\x80\x9d Finally, Sweiven\nrefrained from voting on Ordinance 94-13, which would\nhave repealed Ordinance 92-18, on the ground that he had\na potential conflict of interest.\n\nOp. at 27.\nAt all times relevant to the case at bar, HCC 1.12.010(a) defined \xe2\x80\x9csubstantial\nfinancial interest\xe2\x80\x9d as follows:\n5\n\n1. An interest that will result in immediate financial gain;\nor\n2. An interest that will result in financial gain which will\noccur in the reasonably foreseeable future.\n\n(HCC 1.12.010 has subsequently been amended.)\nHCC 1.12.020 provides:\nA City Councilmember or Mayor with a substantial\nfinancial interest in an official action to be taken by the\nCouncil has a conflict of interest. (Ord.92-49(A) \xc2\xa7 3, 1992;\nOrd. 86-22(S) \xc2\xa7 1(part), 1986).\n\n193\n\n\x0csuperior court\xe2\x80\x99s finding that Sweiven did not have a\ndisqualifying conflict of interest is clearly erroneous.\xe2\x80\x9d Op.\nat 25, 28.\nMy disagreement with the court\xe2\x80\x99s opinion goes to its\ndiscussion of the effect of Sweiven\xe2\x80\x99s conflict of interest and\nthe appropriate remedy given the factual context of this\ncase. Central to my differing analysis are the provisions of\nthe Homer City ordinances which address the subject of\nconflict of interest. In my view, the court\xe2\x80\x99s analysis ignores\nthat part of the Homer Municipal Code 1.12.030, which\nstates:\nA City Councilmember or Mayor with\na conflict of interest under section\n1.12.020 shall so declare to the body as\na whole and ask to be excused from\nvoting on the matter. However, a City\nCouncilmember or Mayor with a\nconflict of interest, regardless of\nwhether excused from voting, shall not\nbe allowed to participate in discussion\nabout the matter. (Ord.92-49(A) \xc2\xa7 4,\n1992; Ord. 86-22(S) \xc2\xa7 1(part), 1986).6\n\n6\n\nHCC 1.12.040 provides:\nThe Mayor or, in his absence, the Mayor Pro-Tem or\nother presiding officer, shall rule on a request by a City\nCouncilmember to be excused from voting on a matter\nbecause of a declared conflict of interest. The Mayor Protem or other presiding officer shall rule on a request by\nthe Mayor to be excused from participating in a matter\nbecause of a declared conflict of interest. (Ord.92-49(A) \xc2\xa7\n5, 1992; Ord. 86-22(S) \xc2\xa7 1 (part), 1986).\n\nHCC 1.12.050 further provides:\nA decision of the Mayor or other presiding officer under\nSection 1.12.040 may be overridden by a majority vote of\nthe City Council. (Ord.86-22(S) \xc2\xa7 1 (part), 1986).\n\n194\n\n\x0cThe City of Homer, as expressed in section 1.12.030 of its\nCode, has adopted a policy which flatly contradicts the\ncourt\xe2\x80\x99s statement that\n[t]he vote and participation of a\nconflicted member will not invariably\nalter the votes of other members or\naffect the merits of the council\xe2\x80\x99s\ndecision. This is especially true if the\nconflict is disclosed or well known,\nallowing other members to assess the\nmerits of the conflicted member\xe2\x80\x99s\ncomments in light of his or her\ninterest.\nRegardless of the wisdom of the City of Homer\xe2\x80\x99s legislative\nenactment barring conflicted council members\xe2\x80\x99\nparticipation in decisions,7 the fact remains that the City of\nHomer has expressly adopted a rule specifically prohibiting\nconflicted council members from taking part in discussion\nor voting on the matter of interest. In fact, the prohibition\non discussion is more stringent that the rule on voting \xe2\x80\x94\neven when the \xe2\x80\x9cMayor or other presiding officer\xe2\x80\x9d decides\nthat the member need not be excused from voting, and\neven when the council chooses not to override that\ndecision by a simple majority vote, the member is\nnonetheless forbidden to participate in the discussion.\nThe rule adopted by the court pays no heed to this\nparticipation ban contained in the City of Homer\xe2\x80\x99s\nmunicipal code. The portions of the court\xe2\x80\x99s rule which\nconflict with the express non-participation policy of HCC\n1.12.030 are the following:\n\nThis court has consistently held that it is not our function to question the wisdom\nof legislation. University of Alaska v. Geistauts, 666 P.2d 424, 428 (Alaska 1983);\nAlaska Interstate v. Houston, 586 P.2d 618, 621 (Alaska 1978).\n7\n\n195\n\n\x0cIf the interest is undisclosed, the\nordinance will generally be invalid; it\ncan stand only if the magnitude of the\nmember\xe2\x80\x99s interest, and the extent of his\nor her participation, are minimal. If the\ninterest is disclosed, the ordinance will\nbe valid unless the member\xe2\x80\x99s interest and\nparticipation are so great as to create an\nintolerable appearance of impropriety.\n(Emphasis added.) In short, the court\xe2\x80\x99s rule would permit a\nconflicted council member to participate in the discussion\nof a matter before the body responsible for official action\nin cases where the conflicting interest has been disclosed,\nor where the conflicting interest is undisclosed and the\nconflicted member\xe2\x80\x99s participation does not create an\nintolerable appearance of impropriety.\nAlthough the court\xe2\x80\x99s formulation might well be adopted as\na general rule, I think it inappropriate to do so in the face\nof an ordinance completely prohibiting participation by any\ncity council member with a substantial conflicting interest\nin the subject matter of a proposed ordinance. In this\nregard, it is noteworthy that HCC 1.12.030 is not couched\nin terms of de minimis levels of participation. On the\ncontrary, it imposes a complete ban on the conflicted\nmember\xe2\x80\x99s participation.\nGiven the participation ban imposed by HCC 1.12.030,\nSweiven\xe2\x80\x99s conflict generating significant financial interest,\nand Sweiven\xe2\x80\x99s participation in the discussion of Ordinance\n92-18, I conclude that the appropriate remedy is\ninvalidation of the ordinance.\nAs the court recognizes, a council member\xe2\x80\x99s role in the\nadoption or rejection of an ordinance cannot necessarily be\nmeasured solely by that member\xe2\x80\x99s vote. A conflicted\nmember\xe2\x80\x99s participation in discussion and debate\nculminating in the final vote may influence the votes of the\nmember\xe2\x80\x99s colleagues. The court also appropriately\n\n196\n\n\x0crecognizes that the integrity required of public office\nholders demands that even the appearance of impropriety\nbe avoided.8\n\nSee generally Mark W. Cordes, Policing Bias and Conflict of Interest in Zoning\nDecisionmaking, 65 N.D.L.Rev. 161 (1989). Here the author writes in part:\n8\n\nThe second and more common provision is to prohibit\nparticipation when a conflict of interest exists. The\nrationales behind this are obvious. Although disclosure\nhas some restraining effect, a significant conflict might still\naffect the substantive outcome of a decision. More\nimportantly, perceptions of fairness and legitimacy are\nonly partly addressed by disclosure.\nFor these reasons disqualification rather than disclosure is\nthe preferable approach. Although in some instances\ndisclosure might adequately address the need for\nimpartiality, in many instances it will only be partially\neffective. The inconvenience of adjusting to the\ndisqualification of a decisionmaker is not so great as to\njustify the threat to accuracy and legitimacy posed by the\nrequirement of mere disclosure.\nBeyond determining what effect a conflict of interest\nshould have on a particular decisionmaker is what judicial\nremedies should be available when a zoning decision in\nfact involved an improper conflict of interest. In those\ninstances in which the biased decisionmaker casts a\ndispositive vote, courts have consistently invalidated the\ndecision. This seems appropriate in that both accuracy and\nlegitimacy concerns are clearly threatened when a decision\nappears to turn on the vote of a self-interested\ndecisionmaker.\n\n197\n\n\x0cGuided by these principles and the City of Homer\xe2\x80\x99s explicit\nban on a conflicted member\xe2\x80\x99s participation, I respectfully\ndissent from the court\xe2\x80\x99s remedy. Rather than remand this\nissue, I would hold Ordinance 92-18 invalid because of\ncouncil member Sweiven\xe2\x80\x99s participation.9\nA more difficult issue is whether the participation of a\nconflicting member whose vote was not determinative to a\ndecision should also result in invalidation. This might\noccur in two general situations. First is where the tainted\nvote was numerically unnecessary for the decision. Courts\nhave evenly split on this issue, with a slight majority\nfavoring invalidation. Courts refusing to invalidate such\ndecisions have primarily reasoned that even without the\ntainted vote the decision would have occurred anyway and\ntherefore invalidation is improper. In this sense the threat\nto accuracy and legitimacy concerns is arguably de minimis\nwhen the particular vote is apparently not crucial to a\ndecision. In particular, legitimacy concerns are less\nthreatened when a decision appears inevitable. As a result,\nthe administrative burden of invalidating and remanding a\ndecision outweighs any threat to substantive results and\nperceptions of fairness.\nDespite these distinctions, several strong reasons exist for\ninvalidating decisions even when a tainted decisionmaker\xe2\x80\x99s\nvote was numerically unnecessary for the decision. First,\ncourts invalidating such decisions have noted that collegial\ndecisionmaking ideally involves the exchange of ideas and\nviews, often with the intent of persuading toward a\nparticular position. The actual contribution of any\nparticular decisionmaker cannot be measured with\nprecision, but frequently extends significantly beyond the\nactual vote cast. For this reason, a significant threat to\naccuracy can exist even when a particular vote was\nnumerically unnecessary for the decision.\nFor similar reasons legitimacy concerns also exist even\nwhen a vote is numerically unnecessary. Although\nlegitimacy concerns are less substantial in such\ncircumstances, the perception of collegial decisionmaking\nand the potential influence of a tainted decisionmaker on\nothers would violate \xe2\x80\x9cappearance of fairness\xe2\x80\x9d standards.\nThus, for both accuracy and legitimacy reasons the better\nview is that even when a vote is numerically unnecessary\nfor a decision courts should still invalidate it.\n\nId. at 214-216 (footnotes omitted).\n9\n\nI note my agreement with the court\xe2\x80\x99s other holdings.\n\n198\n\n\x0cIn re McGlynn\n974 A.2d 525 (2009)\nH. Peter Nelson, Perkasie, for appellants.\nMatthew J. Goodrich, Bangor, for appellee, L.U.R.R.S.\nOpinion by JUDGE SIMPSON.\nAn important issue in this appeal is whether the failure to\nstrictly comply with the public notice provisions of the\nPennsylvania Municipalities Planning Code (Code) resulted\nin a denial of procedural due process so as to render a\ndecision on a conditional use application void ab initio.\nThe Board of Supervisors (Board) of Lehigh Township\n(Township) granted a conditional use application (Use\nApplication) filed by L.U.R.R.S. (Applicant). The Use\nApplication sought approval for development of a\nmobile/manufactured home park. Objectors, who actively\nparticipated in multiple hearings on the Use Application,\nappealed the Board\xe2\x80\x99s decision to the Court of Common\nPleas of Northampton County (trial court). In addition to\nchallenging the Township\xe2\x80\x99s notice procedures, Objectors\nasserted Applicant does not own all the property subject to\nthe Use Application, the Application is moot, and the\nApplication failed to meet the standards of the Lehigh\nTownship Zoning Ordinance (Ordinance) for the grant of\na\nconditional\nuse\napplication\nand\nfor\na\nmobile/manufactured home park. The trial court affirmed\nthe Board\xe2\x80\x99s decision, and Objectors appeal. We affirm.\n\xe2\x80\xa6.\nIn June 2004, Applicant filed the Use Application with the\nTownship seeking to construct a mobile/manufactured\nhome park on property located along Mountainview Drive\n(Property). The 103-acre Property is located in a Village\nResidential\nDistrict\n(VR),\nwhich\npermits\na\nmobile/manufactured home park as a conditional use.\nApplicant proposed to construct 245 single-family homes\n\n199\n\n\x0cdesignated as\nCommunity.\n\nNorth\n\nWoods\n\nManufactured\n\nHome\n\nThe Township Planning Commission recommended\napproval of the Use Application. Accordingly, the\nTownship advertised that the Board would hold a public\nhearing on the Use Application at its January 31, 2006\nmeeting. The public notice appeared in the January 19,\n2006 edition of a local newspaper of general circulation.\nThe Township also published a second notice of the public\nhearing in the January 23, 2006 edition of the same\nnewspaper. These publications occurred four days apart.\nThe Board held the conditional use hearing as scheduled.\nApplicant submitted evidence in support of its Use\nApplication and Objectors, representing themselves, crossexamined Applicant\xe2\x80\x99s witnesses. The Board\xe2\x80\x99s hearing did\nnot conclude on January 31; rather, the Board held\nadditional hearings on February 28 and March 27, 2006.\nObjectors again actively participated in the hearings by\ncross-examining Applicant\xe2\x80\x99s witnesses and offering\nevidence.\nIn a comprehensive decision, the Board set forth findings\nof fact and conclusions of law, and examined each\nconditional use requirement of the Ordinance as well as the\nspecific requirements of a mobile/manufactured home\npark. It concluded Applicant showed compliance with all\nzoning requirements and, therefore, granted the Use\nApplication with conditions.\nRetaining counsel, Objectors appealed the Board\xe2\x80\x99s decision\nto the trial court. Among a variety of motions, Objectors\nsought to reopen the record. Certified Record (C.R.) Item\n9. Objectors also asserted Applicant engaged in\nunauthorized tree clearing on the Property. The trial court\nordered that \xe2\x80\x9cthe entire matter will be remanded to the [Board]\nfor purposes of presentation of any additional testimony and\nevidence.\xe2\x80\x9d Id. (emphasis added).\n\n200\n\n\x0cThe Board held remand hearings in April, May and June\n2007. Objectors through Counsel actively participated in\nthe remand hearings. In October 2007, the Board issued a\nsecond decision confirming its May 2006 decision as\nmodified by an interim stipulation between the Township\nand Applicant. Addressing the matters subject to remand,\nthe Board noted the wetlands issue arose during the first\nround of conditional use hearings and, as a result, it\nimposed Conditions 7, 8 and 10, noted below. Concerning\nthe utility easement, the Board observed that relocation of\nhomes, roads, and water retention basins impacted by the\neasement would be addressed in the subdivision and land\ndevelopment process. Finally, the Board explained the\nTownship previously issued and withdrew a violation\nnotice regarding tree removal on the Property. In short, the\nBoard found the testimony on remand did not affect its\ndecision on the Use Application.\nObjectors filed a second appeal to common pleas court. A\ndifferent trial judge heard Objectors\xe2\x80\x99 appeal. The trial court\naffirmed.\n\xe2\x80\xa6.\nThe first issue Objectors raise involves the concept of\nprocedural due process. The fundamental components of\nprocedural due process are notice and opportunity to be\nheard. Pessolano v. Zoning Bd. of Adjustment of City of Pittsburgh,\n159 Pa.Cmwlth. 313, 632 A.2d 1090 (1993).\nRegarding only the conditional use hearing held January 31,\n2006, the Township advertised the Board\xe2\x80\x99s hearing on\nJanuary 19 and then again on January 23. The publications\noccurred four days apart and, according to Objectors,\nconstituted insufficient public notice under the MPC. There\nare no assertions that the Board failed to publish notice of\nthe remaining five conditional use hearings held in 2006\nand 2007. It is also important to note Objectors do not\nassert any harm resulting from the Township\xe2\x80\x99s failure to\n\n201\n\n\x0ctwice advertise the first conditional use hearing at least five\ndays apart.\nSection 908(1) of the MPC requires public notice of Board\nhearings. 53 P.S. \xc2\xa7 10908(1). Section 107 of the MPC\ndefines \xe2\x80\x9cpublic notice\xe2\x80\x9d as\nnotice published once each week for\ntwo successive weeks in a newspaper\nof general circulation in the\nmunicipality. Such notice shall state\nthe time and place of the hearing and\nthe particular nature of the matter to\nbe considered at the hearing. The first\npublication shall not be more than 30\ndays and the second publication shall\nnot be less than seven days from the\ndate of the hearing.\n53 P.S. \xc2\xa7 10107.\nThe MPC does not define the term \xe2\x80\x9csuccessive weeks.\xe2\x80\x9d We\ntherefore look to the Statutory Construction Act of 1972, 1\nPa. C.S. \xc2\xa7\xc2\xa7 1501-1991, to construe the term\xe2\x80\x99s meaning. It\nprovides that whenever any statute uses the phrase\n\xe2\x80\x9csuccessive weeks\xe2\x80\x9d in reference to publishing of notices,\nthe weeks \xe2\x80\x9cshall be construed as calendar weeks [and the]\npublication upon any day of such weeks shall be sufficient\npublication for that week, but at least five days shall elapse\nbetween each publication.\xe2\x80\x9d 1 Pa.C.S. \xc2\xa7 1909.\nAt this juncture, the parties agree the Township\xe2\x80\x99s two\nnotices of the Board\xe2\x80\x99s January 31 hearing were published\nfour days apart instead of five days, as required by Section\n1909.1 The question then is the result of the defect on the\nUse Application.\nSection 1908 of the Statutory Construction Act provides for the computation of\ntime when referenced in a statute. 1 Pa.C.S. \xc2\xa7 1908. However, Section 1908 does\nnot apply to Section 1909, above. Id. The trial court therefore looked to the Rules\nof Civil Procedure to determine the number of days between publications of the\n1\n\n202\n\n\x0cAt the outset, we observe Objectors failed to raise their\npublic notice concerns at anytime before the Board and,\ntherefore, deprived it of an opportunity to discontinue the\nproceedings and start anew. Nevertheless, Objectors cite\nseveral appellate decisions for the proposition that strict\ncompliance with the MPC\xe2\x80\x99s notice provisions is mandatory\nand any deviation renders the local agency\xe2\x80\x99s decision void\nab initio. See Luke v. Cataldi, 593 Pa. 461, 932 A.2d 45 (2007)\n(alleged failure to provide public notice or public hearing\nbefore granting conditional use application would render\nboard\xe2\x80\x99s decision void ab initio; remanded for further\nproceedings); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover\nTwp., 589 Pa. 135, 907 A.2d 1033 (2006) (a claim alleging a\nprocedural defect affecting notice or due process rights in\nthe enactment of an ordinance may be brought beyond\nstatutory appeal period because, if proven, ordinance is\nvoid ab initio); Schadler v. Zoning Hearing Bd. of Weisenberg\nTwp., 578 Pa. 177, 850 A.2d 619 (2004) (failure to make full\ntext of proposed amendment to zoning ordinance available\nfor public comment rendered subsequent enactment of the\namendment void ab initio); Lower Gwynedd Twp. v. Gwynedd\nProps., Inc., 527 Pa. 324, 591 A.2d 285 (1991) (failure to\npublish entire text of ordinance as required by The Second\nClass Township Code rendered ordinance void).\nAfter careful consideration, we do not believe reversal of\nthe Board\xe2\x80\x99s decision is compelled here where Objectors\nreceived all process due and asserted no claim of prejudice\nor harm.\n\nhearing notices. Specifically, Rule 106 provides that when any period of time is\nreferenced in the rules, the period shall be computed by excluding the first day and\nincluding the last day of any such period. Pa. R.C.P. No. 106. In this case, the first\nday of the five-day period was January 20 and the last day was January 23; thus,\nonly four days lapsed between publications. Nevertheless, the trial court recognized\nliberal construction of the rules of civil procedure is required so long as the error\ndoes not affect the substantial rights of the parties. See Pa. R.C.P. No. 126. As more\nfully explained, the publication error did not affect the parties\xe2\x80\x99 substantive rights.\n\n203\n\n\x0cThe statutory notice and publication requirements are to\nensure the public\xe2\x80\x99s right to participate in the consideration\nand enactment of municipal land use decisions. Lower\nGwynedd Twp. In other words, the notice provisions protect\nprocedural due process. The concept of due process,\nhowever, is a flexible one and imposes only such\nprocedural safeguards as the situation warrants. LaFarge\nCorp. v. Ins. Dep\xe2\x80\x99t, 557 Pa. 544, 735 A.2d 74 (1999); Fountain\nCapital Fund, Inc. v. Pa. Secs. Comm\xe2\x80\x99n, 948 A.2d 208 (Pa.\nCmwlth.2008), appeal denied, ___ Pa. ___, 967 A.2d 961\n(2009). Demonstrable prejudice is a key factor in assessing\nwhether procedural due process was denied. State Dental\nCouncil & Examining Bd. v. Pollock, 457 Pa. 264, 318 A.2d\n910 (1974).\nThe seminal case addressing due process is Mathews v.\nEldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).\nFactually, Mathews concerned the Social Security\nAdministration\xe2\x80\x99s decision to discontinue cash benefits\nwithout affording the recipient a pre-decisional hearing.\nThe United States Supreme Court rejected the recipient\xe2\x80\x99s\nclaim that due process required the agency to hold a\nhearing prior to terminating benefits. In doing so, the\nCourt considered what process is due an individual before a\nproperty interest may be affected by government action. It\nidentified three factors that must be considered in\nformulating the process due: the private interest affected by\nthe government action; the risk of erroneous deprivation of\nsuch interest through the procedures used and the probable\nvalue, if any, of additional or substitute procedural\nsafeguards; and finally, the government\xe2\x80\x99s interest, including\nthe function involved and the administrative burdens that\nadditional or substitute procedural requirements would\nentail. Id. at 335, 96 S.Ct. 893. We address each of these\nconsiderations.\nFirst, we recognize Objectors have an interest in the quiet\nuse and enjoyment of their properties near the proposed\n\n204\n\n\x0cuse, as well as the right to participate in the Board\xe2\x80\x99s\nhearings. Here, however, we discern no deprivation of\nObjectors\xe2\x80\x99 interests. In Pessolano, neighboring property\nowners appeared at a zoning hearing to oppose a\nlandowner\xe2\x80\x99s application for a special exception. The zoning\nboard denied the application, and the landowner appealed\nto common pleas court. The landowner did not serve the\nneighboring property owners with a notice of appeal. On\nappeal, the court reversed the zoning board\xe2\x80\x99s decision,\ngranted the special exception, and imposed conditions on\nthe property\xe2\x80\x99s use.\nAfter the appeal period lapsed, the neighboring property\nowners petitioned to vacate the court\xe2\x80\x99s order on the basis\nthey were denied the opportunity to intervene in the\nlandowner\xe2\x80\x99s appeal. They cited a city zoning ordinance\nrequiring an appealing party to notify all persons appearing\nbefore the zoning hearing board of an appeal. Sustaining\nthe landowner\xe2\x80\x99s preliminary objections, the common pleas\ncourt dismissed the petition to vacate. Of import, the court\nconcluded the landowner\xe2\x80\x99s failure to strictly comply with\nthe city ordinance did not warrant reversal of its decision\nbecause the property owners did not claim lack of actual\nknowledge of the landowner\xe2\x80\x99s appeal.\nWe affirmed. Cognizant of the procedural safeguards that\nnotice provisions are to provide, we stated the value and\nnecessity of strict compliance with the notice requirements\nis diminished where the interested parties have actual notice\nof the legal proceedings. \xe2\x80\x9c[A]ctual notice serves to\naccomplish the same purposes that legal notice is intended\nto accomplish. Both forms of notice serve to make\ninterested parties aware of the opportunity to exercise their\nlegal rights.\xe2\x80\x9d Id. at 317, 632 A.2d 1090.\nApplying the above principle here, Objectors had actual\nnotice of the Board\xe2\x80\x99s first conditional use hearing and\nactively participated at that time. At no time during the six\nUse Applications hearings did Objectors assert to the\n\n205\n\n\x0cBoard lack of actual notice of the first hearing or defective\npublication of the required notices. Cf. Citimortgage, Inc. v.\nKDR Invs., LLP, 954 A.2d 755 (Pa.Cmwlth.2008) (the\nformal requirements of statutory notice for sale of property\nfor nonpayment of taxes need not be strictly met where\nactual notice is established); Aldhelm, Inc., v. Schuylkill County\nTax Claim Bureau, 879 A.2d 400 (Pa.Cmwlth.2005)(same).\nSecond, the ongoing proceedings here did not risk\ndepriving Objectors of their interests. At the conclusion of\nthe first hearing, the Board announced its intention to hold\na second hearing. Likewise, the Board announced a third\nhearing at the conclusion of the second hearing. It also\nindicated it would publish notice of the upcoming hearings\nin a local newspaper and post the Township building. See\nC.R., Notes of Testimony (N.T.), Vol. I at 147-48; Vol. II\nat 147.\nMost significantly, Objectors and their counsel fully\nparticipated in the remand proceedings. The scope of the\nremand was not limited; rather, Objectors were able to call\nany witness and offer any appropriate document. Thus,\ntheir interests were fully protected.2 Objectors\xe2\x80\x99 participation\nOur recent decision in Southeastern Chester County Refuse Authority v. Board of\nSupervisors of London Grove Township, 954 A.2d 732 (Pa.Cmwlth.2008), is also\ninstructive on this point. There, the Southeastern Chester County Refuse Authority\n(SECCRA) filed an application to expand its landfill. The township board of\nsupervisors held hearings on the application over an 18-month period. After denial\nof its application, SECCRA claimed the board failed to schedule the hearings in\ncompliance with the MPC and, thus, it was entitled to a deemed approval. We\naffirmed the denial of SECCRA\xe2\x80\x99s application. Important to our decision was the\nfact that SECCRA actively participated in the board\xe2\x80\x99s decisions and challenged the\nevidence opposing its application over the 18-month period. It never asserted its\nright to a deemed approval during that time. In sum, we concluded SECCRA\xe2\x80\x99s\nactive participation in hearing subsequent to the date it could have asserted a\ndeemed approval under the MPC manifested its agreement to an extension of time\nfor a board determination.\n2\n\nSoutheastern Chester County Refuse Authority confirms that a party\xe2\x80\x99s actions which are\ncontrary to the rights it seeks to assert may result in waiver of the claimed right.\nHere, Objectors should have asserted the Township\xe2\x80\x99s publication of the first Use\nApplication hearing was defective at the start of the first hearing. They\n\n206\n\n\x0cwith counsel during the unrestricted remand hearings acted\nto cure any deficiency in notice of the original set of\nhearings. Indeed, Objectors do not assert prejudice by the\nmanner of publishing notice of the first of the original set\nof hearings.\nThird, we consider the Township\xe2\x80\x99s interests and burden in\ncuring the defective notices of the first hearing. It is\nconceivable that the entire application process would start\nanew. The Township would again incur advertising costs\nand counsel fees to cover the same material already offered\nin the previous six hearings. Objectors do not suggest any\ndifferent information would be offered at new proceedings.\nUnder these circumstances, a similar result is expected, and\nObjectors\xe2\x80\x99 challenge to the proposed use would likely result\nin appeals again. The financial and administrative burdens\non the Township are obvious.\nIn summary, Objectors do not claim harm resulting from\nthe Township\xe2\x80\x99s failure to twice advertise the first\nconditional use hearing in strict compliance with the MPC.\nObjectors\xe2\x80\x99 interests were protected by their active\nparticipation during the initial set of hearings and by their\nactive participation with counsel during unrestricted\nremand hearings. Absent a showing of discernible harm, a\ndenial of due process claim must fail.\n\xe2\x80\xa6.\n\ncompounded the issue by failing to raise it before the Board at any of the other five\nhearings.\n\n207\n\n\x0cMaxwell v. Carney\n273 Ga. 864 (2001)\nSherwood & Sherwood, J. Carol Sherwood, Jr., Valdosta,\nfor appellants.\nLong Denton & Parrott, Allen Denton, Vann K. Parrott,\nQuitman, for appellees.\nTHOMPSON, JUSTICE.\nThe Brooks County Board of Commissioners held a\nregularly scheduled monthly meeting on November 16,\n1999, in the Brooks County Commission\xe2\x80\x99s meeting room.\nA number of people, over and above the room\xe2\x80\x99s seating\nand standing capacity, showed up for the meeting but they\nwere unable to get in. Although a larger room in the\nbuilding had been used for county meetings, the\ncommission refused a request to move the meeting to the\nlarger room. The stated reason for that refusal was that the\npublic notice specified that the meeting would take place in\nthe smaller room.\nThereafter, plaintiffs brought this suit seeking injunctive\nrelief on the ground that the commission violated the Open\nMeetings Act, OCGA \xc2\xa7 50-14-1 et seq. Following a\nhearing, the superior court enjoined the commission \xe2\x80\x9cfrom\nconducting public meetings\xe2\x80\xa6 in the Brooks County Office\nBuilding unless both meeting rooms in the building are\navailable to the board.\xe2\x80\x9d Furthermore, the superior court\nordered that, \xe2\x80\x9cif a new site is selected for public meetings\nthe room shall provide adequate seating and space so that\nall members of the public who desire to attend may be\naccommodated.\xe2\x80\x9d Finally, the superior court held \xe2\x80\x9cthat a\npublic notice of a meeting to the effect that all county\ncommissioner\xe2\x80\x99s meetings in the Brooks County Office\nBuilding at [address] shall be legally sufficient regardless of\nwhich room in the building is utilized.\xe2\x80\x9d The commission\nappeals asserting the superior court abused its discretion in\n\n208\n\n\x0cshaping injunctive relief. We affirm in part and reverse in\npart.\n1. The public notice did not specify in which room the\nmeeting was to be held. The notice only gave the location\nof the building, and a sign with an arrow was placed at the\nentrance of the building to indicate which room was to be\nused. Moreover, the commission moved a previous meeting\nfrom the regular meeting room to the larger room in the\nbuilding without advance notice. Accordingly, we find no\nerror in that portion of the superior court\xe2\x80\x99s order which\nrequires the commission to conduct meetings in the larger\nmeeting room if the usual meeting room is insufficient to\naccommodate the public.\nHarms v. Adams, 238 Ga. 186, 232 S.E.2d 61 (1977), upon\nwhich the commission relies, is inapposite. In that case, the\nmeeting was held in the mayor\xe2\x80\x99s office because the regular\nmeeting room was occupied. Moreover, there was no\nevidence that another room was available.\n2. The superior court\xe2\x80\x99s injunction is too broad insofar as it\nrequires the commission to provide adequate seating to\nenable all members of the public to attend the meeting. The\nsuperior court would have the commission provide seating\nfor everyone in the county if they all decided to attend a\nmeeting. This was not the intent of the Open Meetings Act.\nThe Open Meetings Act requires adequate, advance notice\nof a meeting \xe2\x80\x93 not physical access to all members of the\npublic. See Harms v. Adams, supra.\nJudgment affirmed in part and reversed in part.\nKearns-Tribune Corporation v. Salt Lake County\nCommission\n28 P.3d 686 (Utah 2001)\nMichael Patrick O\xe2\x80\x99Brien, Deno G. Himonas, Jeremy M.\nHoffman, Salt Lake City, Charles A. Brown, Lewiston,\nIdaho, for plaintiff.\n\n209\n\n\x0cDavid E. Yocom, Gavin J. Anderson, Salt Lake City, for\ndefendant.\nJeffrey J. Hunt, Diana Hagen, David C. Reymann, Salt Lake\nCity, for amici.\nWILKINS, JUSTICE.\n\xc2\xb6 1 This appeal presents the question of whether the Utah\nOpen and Public Meetings Act, Utah Code Ann. \xc2\xa7\xc2\xa7 52-4-1\nto -10 (1998), permits the Salt Lake County Commission to\nclose a meeting to the public in order to consider, with legal\ncounsel, possible courses of action with respect to an\nannexation petition pending before the Salt Lake County\nBoundary Commission. The parties filed cross motions for\nsummary judgment, and the district court ruled in favor of\nplaintiff Kearns-Tribune Corporation concluding that by\nclosing the meeting, the Salt Lake County Commission\nviolated the Open and Public Meetings Act. We reverse\nand remand.\nBACKGROUND\n\xc2\xb6 2 In this case, no material differences in the facts were\nraised by the parties, only questions about the legal\nimplications of those facts. We recite the facts accordingly.\n\xc2\xb6 3 The Salt Lake County Commission (\xe2\x80\x9cCounty\nCommission\xe2\x80\x9d) held a staff meeting on March 30, 1998. The\nCounty Commission customarily treated staff meetings as\nsubject to the Utah Open and Public Meetings Act, and\ntherefore the March 30, 1998 meeting was open to the\npublic. At one point, however, the county attorney\xe2\x80\x99s office\nsuggested to the County Commission that part of the\nmeeting be closed. The county attorney\xe2\x80\x99s office wanted to\ndiscuss in private whether to oppose Riverton City\xe2\x80\x99s\npetition to annex unincorporated county land that was\npending before the Salt Lake County Boundary\nCommission (\xe2\x80\x9cBoundary Commission\xe2\x80\x9d). The county\n\n210\n\n\x0ccommissioners voted unanimously to close the meeting,\nand the public, including the press, was asked to leave.\n\xc2\xb6 4 The county commissioners and their attorneys then met\nprivately and discussed matters pertaining to Riverton\nCity\xe2\x80\x99s annexation proposal. The minutes of this closed\nmeeting reflect that legal counsel first explained to the\nCommissioners the factual and procedural circumstances\nsurrounding the annexation proceeding and the possible\nresults of the annexation petition, namely that islands of\nunincorporated county land would result. Next, counsel\nindicated that South Jordan City had protested Riverton\nCity\xe2\x80\x99s petition. Finally, counsel outlined three possible\ncourses of action: (1) the County Commission could send a\nletter to Riverton City listing technical problems with the\npetition, but refrain from appearing before the Boundary\nCommission; (2) the County Commission could appear,\nthrough counsel, before the Boundary Commission and\naddress only technical problems with the petition; or (3) the\nCounty Commission could file a formal protest with the\nBoundary Commission opposing the annexation. Counsel\nrecommended that the county not protest technicalities.\nThe County Commission voted to appear before the\nBoundary Commission and to send a letter to Riverton City\nidentifying technical problems. The meeting was then\nreopened to the public, and adjourned.\n\xc2\xb6 5 The complaint filed by plaintiff Kearns-Tribune\nCorporation (\xe2\x80\x9cKearns-Tribune\xe2\x80\x9d), a newspaper publishing\ncompany, insists that the Salt Lake County Commission\nviolated the Utah Open and Public Meetings Act (the\n\xe2\x80\x9cAct\xe2\x80\x9d), arguing that the exception to the Act permitting\nclosed meetings for \xe2\x80\x9cstrategy sessions to discuss pending or\nreasonably imminent litigation,\xe2\x80\x9d Utah Code Ann. \xc2\xa7 52-45(1)(a)(iii) (1998), is inapplicable to annexation or boundary\nprotest proceedings. The County Commission answered\nthe complaint and filed a motion for summary judgment,\narguing that it appropriately closed the March 30, 1998\n\n211\n\n\x0cmeeting to discuss the county\xe2\x80\x99s legal alternatives to\nRiverton City\xe2\x80\x99s annexation petition as pending or\nreasonably imminent litigation. Plaintiff responded by filing\na response and a cross-motion for summary judgment.\n\xc2\xb6 6 The district court ruled in favor of Kearns-Tribune,\nindicating that the portion of the meeting that was closed\nby the County Commission should have been open to the\npublic. The district court concluded that the County\nCommission did not conduct a strategy session, but instead\ndiscussed the underlying policy issues, which the court\nstated should be debated publicly. The Salt Lake County\nCommission appeals.\n\xe2\x80\xa6.\nANALYSIS\n\xc2\xb6 8 This case requires the interpretation and application of\nthe Utah Open and Public Meetings Act. Section 52-4-3 of\nthe Act specifies, \xe2\x80\x9cEvery meeting is open to the public\nunless closed pursuant to Sections 52-4-4 and 52-4-5.\xe2\x80\x9d\nSection 52-4-4 provides the procedure through which a\nmeeting may be closed. It reads, in relevant part: \xe2\x80\x9cNo\nclosed meeting is allowed except as to matters exempted\nunder Section 52-4-5\xe2\x80\xa6 .\xe2\x80\x9d The provision under\nconsideration in this case, section 52-4-5, sets forth seven\npurposes for which a meeting may be closed. Four of those\npurposes or circumstances permitting closure to the public\nof a meeting involve \xe2\x80\x9cstrategy sessions,\xe2\x80\x9d and all four\nrequire that a record of the closed proceedings be kept.\nUtah Code Ann. \xc2\xa7 52-4-5(1)(a) (1998).\n\xc2\xb6 9 The types of strategy sessions allowing for lawful\nclosure of an otherwise public meeting include those to\ndiscuss \xe2\x80\x9ccollective bargaining,\xe2\x80\x9d \xc2\xa7 52-4-5(1)(a)(ii), \xe2\x80\x9cpending\nor reasonably imminent litigation,\xe2\x80\x9d \xc2\xa7 52-4-5(1)(a)(iii), \xe2\x80\x9cthe\npurchase, exchange, or lease of real property where public\ndiscussion \xe2\x80\xa6 would disclose the \xe2\x80\xa6 value of the\n\n212\n\n\x0cproperty\xe2\x80\xa6 or prevent the public body from completing the\ntransaction on the best possible terms,\xe2\x80\x9d \xc2\xa7 52-4-5(1)(a)(iv),\nand \xe2\x80\x9cthe sale of real property where public discussion \xe2\x80\xa6\nwould disclose the \xe2\x80\xa6 value of the property\xe2\x80\xa6 or prevent\n\xe2\x80\xa6 completing the transaction on the best possible terms;\nthe public body had previously given public notice that the\nproperty would be offered for sale; and the terms of the\nsale are publicly disclosed before the public body approves\nthe sale,\xe2\x80\x9d \xc2\xa7 52-4-5(1)(a)(v).\n\xc2\xb6 10 We have not had occasion to review and distinguish\nthe individual categories of closable meetings. The general\nnature and tone of the seven exceptions in section 52-45(1), however, suggest a clear legislative intent to ensure\nthat the public\xe2\x80\x99s business is done in full view of the public\nexcept in those specific instances where either the public,\nor a specific individual who is the subject of the meeting,\nmay be significantly disadvantaged by premature public\ndisclosure of sensitive information. The ultimate\nconsequence of closed discussions about the price of real\nproperty, collective bargaining, and a public body\xe2\x80\x99s\napproach to pending or reasonably imminent litigation\neventually becomes public. Nevertheless, in each of these\nlimited circumstances, the public\xe2\x80\x99s general interest was\nthought by our legislature to be best served by allowing\nconfidential discussions to precede the actions that would\ndisclose the strategy.\n\xc2\xb6 11 In the case before us, the Salt Lake County\nCommission relies upon the exception for strategy sessions\nto discuss pending or reasonably imminent litigation. See \xc2\xa7\n52-4-5(1)(a)(iii). The Commission argues that it properly\nclosed the meeting to the public because it discussed\nRiverton City\xe2\x80\x99s petition before the Boundary Commission,\nand matters before the Boundary Commission are quasijudicial and therefore qualify as \xe2\x80\x9clitigation\xe2\x80\x9d for purposes of\nthe statute. Kearns-Tribune, to the contrary, argues that the\nSalt Lake County Commission improperly closed the\n\n213\n\n\x0cmeeting because the topic discussed by the county\ncommissioners, an annexation dispute, is a legislative or\npolicy matter, and not pending or reasonably imminent\nlitigation. The amici, the Society of Professional Journalists\nand several news organizations, also argue that the County\nCommission improperly closed the meeting because the\ncounty commissioners discussed policy, not litigation\nstrategy. The amici further contend that the litigation\nexception must be strictly construed. The plain meaning of\nthe term \xe2\x80\x9clitigation\xe2\x80\x9d implies court proceedings, they argue,\nand defining \xe2\x80\x9clitigation\xe2\x80\x9d to include agency proceedings, like\nan annexation proceeding, would result in the litigation\nexception eviscerating the general rule of openness\nintended by the Act.\n\xc2\xb6 12 Both parties and the amici refer us to our decision in\nCommon Cause of Utah v. Public Service Commission, 598 P.2d\n1312 (Utah 1979). Common Cause is not like this case,\nhowever. In Common Cause, we said that the legislativelycreated Utah Public Service Commission performs a variety\nof duties, including those that fall distinctly within\nlegislative, administrative, and adjudicative categories. Id. at\n1314. In order to perform the adjudicative function of\nhearing and resolving disputes between competing and\nprotesting utilities, the Public Service Commission must be\nable to deliberate and arrive at decisions in private. Id. We\ntherefore concluded that the Public Service Commission\xe2\x80\x99s\nadjudicative function was quasi-judicial, and that as a result\nthe Open and Public Meetings Act did not apply when the\nPublic Service Commission acts in its adjudicative role. Id.\nIn concluding that the Public Service Commission\xe2\x80\x99s\ndeliberative sessions need not be open to the public, we\nbalanced two competing interests:\n[T]he obviously desirable objective of\ngiving the public, \xe2\x80\xa6 the fullest\npossible degree of knowledge of the\nmatter under consideration, and of\n\n214\n\n\x0caffording the opportunity to supply\ninformation and to engage in dialogue\nand the exchange of ideas[; against the\ninterest that] after all of the evidence\nand information has been furnished to\nthe Commission, the process of\nanalysis, deliberation, and arriving at a\ndecision, should be permitted to take\nplace in an atmosphere of peace and\nprivacy, \xe2\x80\xa6 so that the commissioners\nhave the opportunity for a frank and\nunrestricted discussion and exchange\nof ideas in order that they can arrive at\nthe best possible decision\xe2\x80\xa6 .\nId. at 1313-14.\n\xc2\xb6 13 This case, however, is different from Common Cause\nbecause here we are not presented with the question of\nwhether the Salt Lake County Commission closed the\nmeeting to conduct a quasi-judicial deliberative function,\nbut whether the County Commission\xe2\x80\x99s meeting could be\nclosed under the Act to discuss strategy with respect to an\nentire adversarial process, the process of protesting an\nannexation petition before the county Boundary\nCommission. In other words, the question is whether the\nentire process before a county boundary commission, a\nprocess that involves both legislative and judicial aspects,\nconstitutes litigation for purposes of the Open and Public\nMeetings Act, from the perspective of the County Commission.\nMoreover, we are not balancing interests as we did in\nCommon Cause. We are interpreting legislation which, on the\none hand expresses clear legislative intent that the\ndeliberations of state agencies and political subdivisions be\nconducted openly, against an exception to that mandate\nthat permits meetings to be closed for \xe2\x80\x9cstrategy sessions to\ndiscuss pending or reasonably imminent litigation.\xe2\x80\x9d \xc2\xa7 52-45.\n\n215\n\n\x0cI. INTERPRETATION OF EXCEPTIONS TO\nTHE UTAH OPEN AND PUBLIC MEETINGS\nACT\n\xc2\xb6 14 When we interpret statutes, we \xe2\x80\x9cgive effect to the\nlegislative intent, as evidenced by the plain language, in light\nof the purpose the statute was meant to achieve.\xe2\x80\x9d [citations\nomitted]\n\xc2\xb6 15 The legislature expressly declared its purpose in\nenacting the Utah Open and Public Meetings Act in section\n52-4-1, which reads, \xe2\x80\x9cIt is the intent of the law that [the]\nactions [of the state, its agencies and political subdivisions,]\nbe taken openly and that their deliberations be conducted\nopenly.\xe2\x80\x9d Utah Code Ann. \xc2\xa7 52-4-1 (1998). As a result, we\ninterpret the Utah Open and Public Meetings Act broadly\nto further the declared statutory purpose of openness.\nBecause we construe the Act broadly, it therefore follows\nthat the exceptions be strictly construed. In this case we\nconstrue the litigation exception narrowly so as to give\neffect to the legislative intent. We further note the intent of\nthe legislature to permit some meetings to be closed under\ncertain circumstances. In carrying out the purpose of\nopenness, the legislature could have chosen to make the\nopen meetings requirement absolute. It chose, however, to\nexclude some meetings from the openness requirement.\n\xc2\xb6 16 The statutory provision in question permits an\notherwise public meeting to be closed by a public body for\n\xe2\x80\x9cstrategy sessions to discuss pending or reasonably\nimminent litigation.\xe2\x80\x9d Utah Code Ann. \xc2\xa7 52-4-5(1)(a)(iii). In\norder for the Salt Lake County Commission not to have\nviolated the Act by closing the March 30, 1998 meeting, the\nclosed portion of the meeting (1) must have been a strategy\nsession, (2) the strategy session must have been with\nrespect to litigation, and (3) the litigation must have been\npending or reasonably imminent.\n\n216\n\n\x0cA. Whether the Closed Portion of the Meeting was a\nStrategy Session\n\xc2\xb6 17 The trial court, after reviewing the minutes of the\nMarch 30, 1998 meeting in camera, concluded that the\nCounty Commission \xe2\x80\x9cdid not conduct a strategy session,\nrather it discussed the underlying policy question of\nwhether to take any action at all.\xe2\x80\x9d The district court stated\nthat in order to close a meeting under section 52-45(1)(a)(iii), the focus of the public body\xe2\x80\x99s discussion must\nbe on litigation strategy, which could include a discussion\nof claims or defenses, strengths and weaknesses of the\npublic body\xe2\x80\x99s position, whether to hire outside counsel,\nsettlement posture, etc.\n\xc2\xb6 18 We conclude that the closed portion of the meeting\nwas a strategy session. In generally accepted terms, to\nstrategize means to devise plans or means to achieve an\nend. The Salt Lake County Commission devised a plan or\ncourse of action and put it in motion during the private\nportion of the March 30, 1998 meeting. It is uncontested\nthat counsel for the County Commission explained the\nfactual and procedural circumstances leading to, and the\npossible results of, Riverton City\xe2\x80\x99s annexation petition.\nNext, counsel informed the County Commission that\nSouth Jordan City had already protested Riverton City\xe2\x80\x99s\npetition and offered three possible courses of action for the\nCounty Commission to take with respect to the petition: (1)\nsend a letter to Riverton City listing technical problems\nwith the petition, but refrain from appearing before the\nBoundary Commission; (2) appear, through counsel, before\nthe Boundary Commission and address only technical\nproblems with the petition; or (3) file a formal protest\nopposing the annexation. Moreover, counsel also suggested\nthat one option regarding the protest of technicalities not\nbe pursued; and at the end of the private session, the\nCounty Commission selected a course of action, agreeing to\nappear before the Boundary Commission and to send a\n\n217\n\n\x0cletter to Riverton City identifying technical problems. This\nclosed session during which the County Commission was\ninformed of the background of the Riverton City\nannexation petition, was advised on how to respond to the\npetition, was given a recommended course of action, and\ndecided on a course of action, constitutes a strategy session.\nB. Whether Disputes Before\nCommission Constitute Litigation\n\nthe\n\nBoundary\n\n\xc2\xb6 19 Having concluded the closed portion of the meeting\nwas a strategy session, the question becomes whether the\nmeeting was a discussion of litigation strategy, or whether it\nwas strategy with respect to a non-litigation process.\nEssentially, we must decide whether an annexation matter\nbefore the Boundary Commission is litigation.\n\xc2\xb6 20 The County Commission reasons that county\nboundary commission proceedings are pending or\nreasonably imminent litigation because annexation\nproceedings before a boundary commission include adverse\nparties, representation, notice, witnesses, evidence, exhibits,\ntranscripts, appeals to the district court, etc., and are\ntherefore quasi-judicial proceedings that qualify as\nlitigation. Kearns-Tribune, on the other hand, argues that\nboundary commission proceedings are legislative\nproceedings, not litigation. The amici also assert that\nannexation proceedings are not litigation. They say that the\nplain meaning of the term \xe2\x80\x9clitigation\xe2\x80\x9d implies court\nproceedings, and defining \xe2\x80\x9clitigation\xe2\x80\x9d to include agency\nproceedings would result in the litigation exception\nswallowing the general rule of openness intended by the\nOpen and Public Meetings Act. Furthermore, the amici cite\nBradshaw v. Beaver City, 27 Utah 2d 135, 493 P.2d 643 (Utah\n1972), and Child v. City of Spanish Fork, 538 P.2d 184 (Utah\n1975), for the proposition that annexation proceedings are\nlegislative functions and are therefore not litigation. They\nargue that even though boundary commission proceedings\n\n218\n\n\x0cmay be similar to litigation procedurally, the substance of\nboundary commission decisions is a matter of public policy\nthat should be debated publicly.\n\xc2\xb6 21 This court has clearly indicated that the determination\nof municipal boundaries is a legislative function, see\nSweetwater Props. v. Town of Alta, 622 P.2d 1178, 1180 (Utah\n1981); Freeman v. Centerville City, 600 P.2d 1003, 1005 (Utah\n1979); Child, 538 P.2d at 186; Bradshaw, 27 Utah 2d at 137,\n493 P.2d at 645, and we do not depart from this\nconclusion. More accurately, the determination of\nmunicipal boundaries is a function of the state legislature,\nas opposed to a local legislative body. This is because local\ngovernmental bodies, as political subdivisions of the state,\nhave no inherent control over their own boundaries as they\nderive their powers from the State. See, e.g., Wisconsin Pub.\nIntervenor v. Mortier, 501 U.S. 597, 607-08, 111 S.Ct. 2476,\n115 L.Ed.2d 532 (1991) (stating that it is well settled that\nlocal governmental units are created as agencies for\nexercising the State\xe2\x80\x99s governmental powers and that the\ngovernmental powers that may be entrusted to local\ngovernments are granted in the absolute discretion of the\nState); see also 1 Antieau on Local Government Law \xc2\xa7 3.01 (2d\ned.2000). Accordingly, we maintain that the determination\nof municipal boundaries, including land annexation, is a\nlegislative function within the control of the state\nlegislature.\n\xc2\xb6 22 Our legislature has delegated, to a certain extent, this\nauthority over annexation and has enacted a statutory\nsystem that controls the annexation process. See Utah Code\nAnn. \xc2\xa7 10-2-401 to -426 (1999 & Supp.2000). Because of\nthis statutory scheme, local governments in our state are\nauthorized to annex land, provided they follow the\nstatutory guidelines. Moreover, as part of the statutory\nframework, the legislature also created a mechanism for the\nresolution of annexation disputes. This method of dispute\nresolution involves county boundary commissions.\n\n219\n\n\x0c\xc2\xb6 23 The process of annexing an unincorporated area to a\nmunicipality generally begins with the filing of an\nannexation petition. Compare Utah Code Ann. \xc2\xa7 10-2-402(2)\n(1999) (\xe2\x80\x9cExcept as provided in Section 10-2-418, a\nmunicipality may not annex an unincorporated area unless a\npetition under Section 10-2-403 is filed requesting\nannexation\xe2\x80\x9d), and Utah Code Ann. \xc2\xa7 10-2-403(1) (1999)\n(\xe2\x80\x9cExcept as provided in Section 10-2-418, the process to\nannex an unincorporated area to a municipality is initiated\nby a petition as provided in this section\xe2\x80\x9d), with Utah Code\nAnn. \xc2\xa7 10-2-418 (1999) (explaining how, notwithstanding\nsubsection 10-2-402(2), a municipality may annex an area\nwithout an annexation petition if, for example, the area to\nbe annexed consists of islands within or peninsulas\ncontiguous to the municipality). The annexation petition is\nfiled with the city recorder or town clerk of the proposed\nannexing municipality. \xc2\xa7 10-2-403(2)(a). The legislative\nbody of the proposed annexing municipality may either\ndeny or accept the petition. \xc2\xa7 10-2-405(1)(a). If the\nlegislative body of the proposed municipality accepts the\npetition, the city recorder or town clerk for that\nmunicipality then determines if the petition is valid by\ndeciding whether the petition meets the necessary\nrequirements of subsections 10-2-403(2), (3), and (4). \xc2\xa7 102-405(2)(a). If the petition passes muster, the city recorder\nor town clerk then certifies the petition and provides\nwritten notice of the certification to various persons and\nentities, including the county legislative body. \xc2\xa7 10-2405(2)(b)(i).\n\xc2\xb6 24 The legislative annexation scheme then permits the\ncounty legislative body to oppose an annexation petition by\nfiling a protest to the petition, Utah Code Ann. \xc2\xa7 10-2407(1)(a)(i) (Supp.2000), thereby creating an adversarial\nprocess. The protest is filed with either the county\nboundary commission, \xc2\xa7 10-2-407(2)(a)(i)(B)(I), or with the\nclerk of the county in which the area proposed for\n\n220\n\n\x0cannexation is located if the county has not yet created a\nboundary commission, \xc2\xa7 10-2-407(2)(a)(i)(B)(II). Regardless\nof with whom the protest is filed, an existing boundary\ncommission must review the annexation petition and\nprotest, or one must be formed to do so. See Utah Code\nAnn. \xc2\xa7 10-2-409 (1999) (explaining that at the time a\nprotest is filed, a boundary commission may already exist\nbecause a county legislative body may create a boundary\ncommission at any time, and that if a boundary commission\ndoes not exist at the time a protest is filed under section 102-407, the county legislative body must form a boundary\ncommission within thirty days of the filing of the protest).\nIn other words, the legislature provided that where an\nannexation petition is protested, each county must create,\nat some point, a boundary commission to resolve the\ndispute.\n\xc2\xb6 25 Once created, the role of a county boundary\ncommission is to \xe2\x80\x9chear and decide, according to the\nprovisions of this part,1 each protest filed under Section 102-407, with respect to any area within that county.\xe2\x80\x9d \xc2\xa7 10-2412. In essence the boundary commission is required to\napply the rules promulgated by the legislature regarding\nannexation to factual circumstances before it. The\nboundary commission is instructed to issue a written\ndecision on the proposed annexation. \xc2\xa7 10-2-416(2). In this\nsense, the mandate to resolve disputes between adverse\nparties by applying rules of law to a particular set of facts is\njudicial in nature, meaning the boundary commission\nperforms a judicial function.\n\xc2\xb6 26 However, in performing its role of deciding protests,\nthe boundary commission generally retains a \xe2\x80\x9cfeasibility\nconsultant\xe2\x80\x9d to conduct a \xe2\x80\x9cfeasibility study,\xe2\x80\x9d see \xc2\xa7 10-2-413,\nand then holds a public hearing, see \xc2\xa7 10-2-415. A feasibility\nPart 4 of title 10, chapter 2, of the Utah Code includes sections 401 to 426, the\nstatutory provisions pertaining to annexation.\n1\n\n221\n\n\x0cconsultant is required to analyze and report on different\nfactors pertaining to the area proposed for annexation\nincluding, among other things, population and population\ndensity, natural boundaries, current and five-year\nprojections of demographics and economic base, projected\ngrowth over the next five years, projected revenues and\ncosts of governmental services for the next five years,\ncultural and social aspects of the surrounding area, and the\npotential effect on school districts. \xc2\xa7 10-2-413(3)(a). At the\nhearing, the feasibility consultant presents the results of the\nfeasibility study, and the boundary commission takes public\ncomment. As such, the boundary commission considers\nwhether a proposed annexation is good policy. In this\nsense, the boundary commission acts in a legislative\ncapacity. In sum, the boundary commission functions as\nboth a legislative body and an adjudicative body.\n\xc2\xb6 27 Nevertheless, the role of a county boundary\ncommission is, on the whole, essentially one of resolving\ndisputes between competing parties, the petitioner and the\nprotesting party. Thus, even though the boundary\ncommission engages a consultant to gather information and\npresent recommendations on matters of policy, the county\nboundary commission is mandated by the legislature to\napply the law to the facts and information presented to it\nby the feasibility consultant, petitioner, and protester. See \xc2\xa7\xc2\xa7\n10-2-402, 403. For these reasons, we conclude that\nboundary commissions act as quasi-judicial bodies when\nconsidering annexation petitions and protests.\n\xc2\xb6 28 In addition, we are further persuaded that the process\nof considering annexation petitions and protests is\nlitigation. First, decisions of a county boundary commission\nare subject to judicial review. \xe2\x80\x9cReview of a boundary\ncommission decision may be sought in the district court\xe2\x80\xa6\n.\xe2\x80\x9d \xc2\xa7 10-2-417(1). Even though the district court reviews the\ndecision of the boundary commission under an arbitrary\nand capricious standard, see \xc2\xa7 10-2-417(2) & (3), the district\n\n222\n\n\x0ccourt is authorized to review whether the decision of the\ncommission was contrary to the annexation laws set forth\nby the state legislature.\n\xc2\xb6 29 Plaintiff Kearns-Tribune also acknowledged before the\ndistrict court that \xe2\x80\x9ca proceeding before a tribunal like the\nUtah State Tax Commission would qualify as \xe2\x80\x98litigation\xe2\x80\x99 for\nthe purposes of the litigation exception.\xe2\x80\x9d Plaintiff argued\nbefore the district court, however, that proceedings before\nthe Tax Commission were different from proceedings\nbefore the Salt Lake County Boundary Commission\nbecause, according to plaintiff, the Boundary Commission\nlacked rules of procedure like the Tax Commission. We are\npersuaded, however, that county boundary commission\nproceedings are analogous to contested proceedings before\nthe State Tax Commission2 and constitute litigation under\nthe litigation exception to the Open and Public Meetings\nAct. The Salt Lake County Boundary Commission\nconducts its proceedings pursuant to rules of procedure\nand the proceedings before the Boundary Commission bear\nall of the necessary accouterments of litigation.\n\xc2\xb6 30 We conclude that while county boundary commissions\nperform both legislative and adjudicative functions, the\nmethod of resolving annexation disputes through county\nboundary commissions is quasi-judicial, and it constitutes\nlitigation for purposes of the Utah Public and Open\nMeetings Act.\nC. Whether the Dispute before the Boundary\nCommission was Pending or Reasonably Imminent\n\xc2\xb6 31 In the instant case, it is undisputed that the annexation\nproceeding discussed by the County Commission was\nWe have previously indicated that the Tax Commission is a quasi-judicial body,\nSalt Lake County v. Tax Comm\xe2\x80\x99n, 532 P.2d 680, 682 (Utah 1975), that is also subject\nto judicial review, see Utah Code Ann. \xc2\xa7\xc2\xa7 59-1-601 to -610 (outlining the method of\njudicial review of tax commission decisions).\n2\n\n223\n\n\x0calready pending before the Boundary Commission. As a\nresult, the County Commission did not violate the Open\nand Public Meetings Act by closing the March 30, 1998\nmeeting to discuss whether to protest Riverton City\xe2\x80\x99s\nannexation petition before the Salt Lake County Boundary\nCommission. As a matter of law, the closed portion of the\nmeeting constituted a strategy session to discuss pending or\nreasonably imminent litigation.\n\xe2\x80\xa6.\nCONCLUSION\n\xc2\xb6 35 The district court erred in concluding that the Salt\nLake County Commission violated the Utah Open and\nPublic Meetings Act when it closed part of the March 30,\n1998 meeting to discuss how to address an annexation\npetition filed by Riverton City with the Boundary\nCommission. The Act permits closed meetings for\n\xe2\x80\x9cstrategy sessions to discuss pending or reasonably\nimminent litigation,\xe2\x80\x9d \xc2\xa7 52-4-5(1)(a)(iii), and the County\nCommission conducted a strategy session in which it\ndiscussed courses of action to take regarding Riverton\nCity\xe2\x80\x99s annexation petition then pending before the Salt\nLake County Boundary Commission, proceedings that\nconstitute litigation under the Act.\n\xc2\xb6 36 Accordingly, the trial court\xe2\x80\x99s order granting plaintiff\xe2\x80\x99s\nmotion for summary judgment is reversed, and the award\nof attorney fees to plaintiff is vacated.\n\xc2\xb6 37 Chief Justice HOWE, Associate Chief Justice\nRUSSON, Justice DURHAM, and Judge TAYLOR concur\nin Justice WILKINS\xe2\x80\x99 opinion.\n\xc2\xb6 38 Having disqualified himself, Justice DURRANT does\nnot participate herein; District Judge TAYLOR sat.\n\n224\n\n\x0cShanks v. Dressel\n540 F.3d 1082 (2008)\nCharles A. Cleveland, Spokane, WA, for the plaintiffsappellants.\nJames S. Craven, City Attorney, Milton G. Rowland\n(argued), Assistant City Attorney, Spokane, WA, for the\nSpokane and Spokane employee defendants-appellees.\nSteven Schneider, Murphy, Bantz & Bury P.S., Spokane,\nWA, for the Dressel defendants-appellees.\nFISHER, CIRCUIT JUDGE:\n\xe2\x80\xa6.\nThe Mission Avenue Historic District (\xe2\x80\x9cDistrict\xe2\x80\x9d) lies just\nnorth of Gonzaga University in the city of Spokane,\nWashington (\xe2\x80\x9cSpokane\xe2\x80\x9d). The District is listed on the\nNational Register of Historic Places, a designation\nconferred by the Secretary of the Interior pursuant to the\nNational Historic Preservation Act of 1966 (\xe2\x80\x9cNHPA\xe2\x80\x9d). See\n16 U.S.C. \xc2\xa7 470a(a). It is architecturally noteworthy because\nit includes a \xe2\x80\x9csignificant collection of late 19th and early\n20th century houses located on one of the city\xe2\x80\x99s oldest\nlandscaped boulevards.\xe2\x80\x9d On both sides of Mission Avenue\nare a \xe2\x80\x9cvariety of Queen Anne, Four Square, Craftsman, and\nbungalow style houses that reflect the substantial\narchitecture of the period and the original suburban\ncharacter of the area.\xe2\x80\x9d\nIn March 2005, Spokane granted the Dressels a building\npermit to construct a duplex addition to 428 East Mission,\na clapboard-sided, Four Square house located within the\nDistrict and inventoried on the District\xe2\x80\x99s nomination for\nthe National Register of Historic Places. The Dressels\ndemolished an existing garage on the property and erected\na \xe2\x80\x9cbox-like dormitory building[ ] \xe2\x80\xa6 attached\xe2\x80\x9d to the\noriginal house.\n\n225\n\n\x0cWe summarize the municipal ordinances that Logan\nNeighborhood alleges have been violated. In 1981, the city\namended the Spokane Municipal Code (\xe2\x80\x9cSMC\xe2\x80\x9d) to provide\n\xe2\x80\x9ccriteria and procedures for the\xe2\x80\xa6 management of historic\nlandmarks.\xe2\x80\x9d A newly created Historic Landmarks\nCommission was charged with the \xe2\x80\x9cstewardship of historic\nand architecturally-significant properties \xe2\x80\xa6 to effect the\nrecognition and preservation of such properties.\xe2\x80\x9d Two of\nits responsibilities are relevant here: reviewing applications\nfor \xe2\x80\x9ccertificates of appropriateness,\xe2\x80\x9d as provided by SMC\n17D.040.200, and reviewing requests for \xe2\x80\x9cadministrative\nspecial permits,\xe2\x80\x9d as provided by SMC 11.19.270. See SMC\n17D.040.080(C)(1)(d), (f).\nSMC 17D.040.200 requires owners to obtain a certificate of\nappropriateness for \xe2\x80\x9cwork that affects the exterior \xe2\x80\xa6 of \xe2\x80\xa6\nproperty within an historic district\xe2\x80\x9d or for \xe2\x80\x9cdevelopment or\nnew construction within an historic district.\xe2\x80\x9d In evaluating\nan application for a certificate of appropriateness, the\nHistoric Landmarks Commission \xe2\x80\x9cuses the Secretary of the\nInterior\xe2\x80\x99s Standards for Rehabilitation and other general\nguidelines established and adopted by the commission.\xe2\x80\x9d\nSMC 17D.040.210(B). The owner of a property and the\nCommission may negotiate \xe2\x80\x9cdifferent management\nstandards for a specific piece of property,\xe2\x80\x9d subject to the\napproval of the Spokane City Council. See SMC\n17D.040.270-.280.\nSMC 11.19.270 provides for special \xe2\x80\x9cdevelopment\nstandards\xe2\x80\x9d that apply \xe2\x80\x9conly to those historic districts for\nwhich \xe2\x80\x98defining characteristics\xe2\x80\x99 have been prepared by the\nlandmarks commission, and those structures or properties\nlisted in the National Register of Historic Places.\xe2\x80\x9d When\nthese standards apply, proposed construction requires an\n\xe2\x80\x9cadministrative special permit\xe2\x80\x9d from the director of\nplanning services. The Historic Landmarks Commission\n\xe2\x80\x9cmake[s] recommendations concerning the approval or\ndenial of the special permit.\xe2\x80\x9d SMC 17D.040.080(C)(1)(f). It\n\n226\n\n\x0c\xe2\x80\x9cissues a certificate of appropriateness in support of\napproval\xe2\x80\x9d only if the construction is \xe2\x80\x9cof a character which\nis consistent with the defining characteristics of the historic\ndistrict, or the U.S. Department of Interior standards in the\ncase of structures or properties listed in the National\nRegister but not located within an historic district.\xe2\x80\x9d SMC\n11.19.270(D)(3)(b). If no action is taken within 35 days, the\napplication\nis\n\xe2\x80\x9cdeemed\napproved.\xe2\x80\x9d\nSMC\n11.19.270(D)(3)(c). In any event, the Commission\xe2\x80\x99s\nrecommendation \xe2\x80\x9cwill not otherwise preclude\xe2\x80\x9d the director\nof planning services from reaching a \xe2\x80\x9ccontrary decision\xe2\x80\x9d\nupon \xe2\x80\x9cconsideration of other factors of public interest.\xe2\x80\x9d Id.\nThe Dressels did not seek a certificate of appropriateness\nor an administrative special permit for their development of\nthe 428 East Mission property, nor has Spokane taken any\nsteps to require them to do so. Logan Neighborhood\nalleges that the Dressels\xe2\x80\x99 construction has compromised the\nhistoric character of the Mission Avenue Historic District,\nresulting in harm to its \xe2\x80\x9ccultural, architectural, educational,\nrecreational, aesthetic, historic, and economic interests.\xe2\x80\x9d Its\ncomplaint asserts three claims: (1) that Spokane violated 42\nU.S.C. \xc2\xa7 1983 and the Due Process Clause of the\nFourteenth Amendment by not enforcing the Spokane\nMunicipal Code; (2) that Spokane and the Dressels violated\nthe National Historic Preservation Act; and (3) that\nSpokane and Spokane employees violated the Spokane\nMunicipal Code. The district court granted Spokane\xe2\x80\x99s\nmotion for summary judgment and the Dressels\xe2\x80\x99 motion to\ndismiss.\n\xe2\x80\xa6.\nWe are \xe2\x80\xa6 not convinced by Logan Neighborhood\xe2\x80\x99s\nargument that it has been deprived of procedural due\nprocess because it did not have fair notice and an\nopportunity to be heard before Spokane issued the Dressels\na building permit. Logan Neighborhood claims a\nconstitutionally protected property interest in the denial of\n\n227\n\n\x0cthe permit unless the city \xe2\x80\x9ccompl[ied] with the Spokane\nMunicipal Code applicable to historic districts.\xe2\x80\x9d It contends\nthat the historic preservation provisions obliged Spokane to\nhold a public \xe2\x80\x9cdesign review taking into account the\nMission Avenue Historic District\xe2\x80\x9d and complying with the\ncertificate of appropriateness and administrative special\npermit requirements.1 Even if Logan Neighborhood\xe2\x80\x99s\ninterpretation of the Spokane Municipal Code is correct \xe2\x80\x93\nthe parties dispute whether construction in the District is\nsubject to those additional requirements \xe2\x80\x93 it has not stated\na viable claim.\nThe claim is an unusual one; more typically, the plaintiff\nasserts that it personally was denied a permit without due\nprocess of law, not that someone else was granted a permit\nwithout the decisionmaker following the procedure\nestablished by state law. See Gagliardi, 18 F.3d at 191\n(describing argument as \xe2\x80\x9crather unique\xe2\x80\x9d); see generally Dumas\nv. Kipp, 90 F.3d 386, 392 (9th Cir.1996) (citing O\xe2\x80\x99Bannon v.\nTown Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65\nL.Ed.2d 506 (1980), and noting distinction between direct\nand indirect beneficiaries of government regulation).\nAssuming without deciding that a property owner ever could\nhave a constitutionally protected interest in the proper\napplication of zoning restrictions to neighboring properties,\nsee id. at 192, we conclude that Logan Neighborhood\xe2\x80\x99s\nprocedural due process claim fails because Spokane\xe2\x80\x99s\nhistoric preservation provisions do not \xe2\x80\x9ccontain[ ]\nmandatory language\xe2\x80\x9d that significantly constrains the\ndecisionmaker\xe2\x80\x99s discretion. Jacobson v. Hannifin, 627 F.2d\n177, 180 (9th Cir. 1980).\nThe Spokane Municipal Code directs the \xe2\x80\x9cofficial responsible for processing the\napplication\xe2\x80\x9d for \xe2\x80\x9caction which may require a certificate of appropriateness\xe2\x80\x9d \xe2\x80\x93 for\nexample, a building permit \xe2\x80\x93 to request review by the Historic Landmarks\nCommission. See SMC 17D.040.240. The ordinance then provides for a public\ncomment period, as well as a noticed public hearing. See SMC\n17D.040.260(C)(1)(3).\n1\n\n228\n\n\x0cWe apply our conventional analytic framework. See Crown\nPoint I, LLC v. Intermountain Rural Elec. Ass\xe2\x80\x99n, 319 F.3d 1211,\n1217 & n.4 (10th Cir.2003) (rejecting distinction between\ninquiry for \xe2\x80\x9cdue process claims brought by a landowner\nwho received an unfavorable decision on its own application\nfor a particular land use\xe2\x80\x9d and inquiry for claim brought\n\xe2\x80\x9cchalleng[ing] the decision \xe2\x80\xa6 to grant [a third-party\xe2\x80\x99s]\nproposed land use\xe2\x80\x9d) (emphasis added); see also Gagliardi, 18\nF.3d at 192-93. To obtain relief on a procedural due\nprocess claim, the plaintiff must establish the existence of\n\xe2\x80\x9c(1) a liberty or property interest protected by the\nConstitution; (2) a deprivation of the interest by the\ngovernment; [and] (3) lack of process.\xe2\x80\x9d Portman v. County of\nSanta Clara, 995 F.2d 898, 904 (9th Cir.1993). The Due\nProcess Clause forbids the governmental deprivation of\nsubstantive rights without constitutionally adequate\nprocedure. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.\n532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Not every\nprocedural requirement ordained by state law, however,\ncreates a substantive property interest entitled to\nconstitutional protection. See Dorr v. County of Butte, 795\nF.2d 875, 877(9th Cir.1986); see also Town of Castle Rock v.\nGonzales, 545 U.S. 748, 764, 125 S.Ct. 2796, 162 L.Ed.2d\n658 (2005); Hayward v. Henderson, 623 F.2d 596, 597 (9th\nCir. 1980). Rather, only those \xe2\x80\x9crules or understandings\xe2\x80\x9d\nthat support legitimate claims of entitlement give rise to\nprotected property interests. Bd. of Regents v. Roth, 408 U.S.\n564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).\nLogan Neighborhood does not have a legitimate claim of\nentitlement to the denial of the Dressels\xe2\x80\x99 permit in\naccordance with the historic preservation provisions. Only\nif the governing statute compels a result \xe2\x80\x9cupon compliance\nwith certain criteria, none of which involve the exercise of\ndiscretion by the reviewing body,\xe2\x80\x9d does it create a\nconstitutionally protected property interest. Thornton v. City\nof St. Helens, 425 F.3d 1158, 1164-65 (9th Cir.2005); see also\n\n229\n\n\x0cFoss v. Nat\xe2\x80\x99l Marine Fisheries Serv., 161 F.3d 584, 588 (9th\nCir.1998) (holding that \xe2\x80\x9cspecific, mandatory\xe2\x80\x9d and \xe2\x80\x9ccarefully\ncircumscribed\xe2\x80\x9d requirements constrained discretion enough\nto give rise to property interest). Conversely, \xe2\x80\x9ca statute that\ngrants the reviewing body unfettered discretion to approve\nor deny an application does not create a property right.\xe2\x80\x9d\nThornton, 425 F.3d at 1164. There is no protected property\ninterest if \xe2\x80\x9cthe reviewing body has discretion \xe2\x80\xa6 to impose\nlicensing criteria of its own creation.\xe2\x80\x9d Id. at 1165.\nWe have not been directed to any statutory language that\n\xe2\x80\x9cimpose[s] particularized standards \xe2\x80\xa6 that significantly\nconstrain\xe2\x80\x9d Spokane\xe2\x80\x99s discretion to issue the permits in\nquestion and would create a protected property interest in\nthe permits\xe2\x80\x99 denial. See Fidelity Fin. Corp. v. Fed. Home Loan\nBank of San Francisco, 792 F.2d 1432, 1436 (9th Cir.1986).\nThe Historic Landmarks Commission is to apply \xe2\x80\x9cdefining\ncharacteristics \xe2\x80\xa6 prepared\xe2\x80\x9d and \xe2\x80\x9cgeneral guidelines\nestablished and adopted\xe2\x80\x9d by that very same body. The\nCommission also has the freedom to negotiate \xe2\x80\x9cdifferent\nmanagement standards\xe2\x80\x9d for any particular piece of\nproperty. In deciding whether to approve an administrative\nspecial permit, the director of planning services is to apply\n\xe2\x80\x9cother factors of public interest\xe2\x80\x9d in an unspecified way.\nMoreover, the ordinance requires only that the ultimate\ndecisionmaker \xe2\x80\x9cuse[ ]\xe2\x80\x9d or \xe2\x80\x9cconsider[ ]\xe2\x80\x9d those open-ended\ncriteria; it does not mandate any outcome. Finally, we are\nmindful that, as a matter of Washington law, building codes\nare not generally construed to impose an affirmative duty\nupon local governments to initiate compliance actions, and\nLogan Neighborhood has not directed us to any special\nfeatures of Spokane\xe2\x80\x99s historic preservation ordinance. See\nAtherton Condo. Apartment-Owners Ass\xe2\x80\x99n Bd. of Dirs. v. Blume\nDev. Co., 115 Wash.2d 506, 799 P.2d 250, 264-65 (1990);\nTaylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447, 450\n\n230\n\n\x0c(1988).2 We conclude that the historic preservation\nprovisions of the Spokane Municipal Code do not create a\nconstitutionally cognizable property interest in the denial of\na third-party\xe2\x80\x99s building permit.\nFrom this it follows that Logan Neighborhood\xe2\x80\x99s procedural\ndue process claim fails. Absent a substantive property\ninterest in the outcome of procedure, Logan Neighborhood\nis not constitutionally entitled to insist on compliance with\nthe procedure itself. \xe2\x80\x9cTo hold otherwise would immediately\nincorporate virtually every regulation into the\nConstitution.\xe2\x80\x9d Clemente v. United States, 766 F.2d 1358, 1364\n(9th Cir.1985). The Tenth and Second Circuits rejected very\nsimilar claims in Crown Point I and Gagliardi, respectively. See\nCrown Point I, 319 F.3d at 1216(plaintiffs alleged property\ninterest in expectation that city would \xe2\x80\x9cfollow its own\nmandatory notice and public hearing procedures as set\nforth in a city code, before depriving a [neighboring]\nlandowner of the use and enjoyment of its property\xe2\x80\x9d);\nGagliardi, 18 F.3d at 193 (plaintiffs \xe2\x80\x9ccomplain[ed] of a lack\nof notice and contend[ed] that certain affirmative actions\nwere taken without compliance with the procedures\nestablished for municipal approval\xe2\x80\x9d). As is the case here,\nthe ordinances in question did not significantly limit the\nmunicipal defendants\xe2\x80\x99 discretion, so no substantive\nproperty interest with respect to permitting decisions was\nthereby created. See Crown Point I, 319 F.3d at 1217;\nGagliardi, 18 F.3d at 192-93. Given this, both courts\nconcluded the plaintiffs could not state a claim for a\nviolation of the Due Process Clause: \xe2\x80\x9cThe deprivation of a\nprocedural right to be heard, however, is not actionable\nwhen there is no protected right at stake.\xe2\x80\x9d Gagliardi, 18 F.3d\nat 193; see also Crown Point I, 319 F.3d at 1217. We agree\nCf. Asche v. Bloomquist, 132 Wash.App. 784, 133 P.3d 475, 479-82 (2006)\n(reasoning that plaintiffs \xe2\x80\x9chad a property right, created by the \xe2\x80\xa6 [view protection]\nzoning ordinance, in preventing [their neighbors] from building a structure over\xe2\x80\x9d a\ncertain height without their approval).\n2\n\n231\n\n\x0cwith the Second and Tenth Circuits\xe2\x80\x99 reasoning and hold\nthat Logan Neighborhood does not have a legitimate claim\nof entitlement to the \xe2\x80\x9cdesign review\xe2\x80\x9d allegedly required by\nthe Spokane Municipal Code.\nNothing we say here condones unlawful official action, and\nwe express no view about the legality of Spokane\xe2\x80\x99s\npermitting decision as a matter of state law. See, e.g., Wash.\nRev.Code \xc2\xa7 36.70C.040 (Washington Land Use Petition\nAct); Clemente, 766 F.2d at 1365 (explaining that even when\na plaintiff cannot \xe2\x80\x9csuccessfully claim a constitutionally\ncognizable property interest,\xe2\x80\x9d it is \xe2\x80\x9cwell-settled \xe2\x80\xa6 that\nregulations validly prescribed by an agency are binding\nupon it\xe2\x80\x9d). But we cannot agree with Logan Neighborhood\nthat it has established a violation of the federal Due Process\nClause. Cf. Carpinteria Valley Farms, Ltd. v. County of Santa\nBarbara, 344 F.3d 822, 832 n. 5 (9th Cir.2003) (remarking\nthat the courts of appeals do not sit as \xe2\x80\x9csuper zoning\nboards or zoning boards of appeals\xe2\x80\x9d) (internal quotation\nmarks omitted).\n\xe2\x80\xa6.\nAFFIRMED.\n3.4. Discriminatory Zoning\nVillage of Willowbrook v. Olech,528 U.S. 562\n120 S.Ct. 1073 (2000).\nPER CURIAM.\nRespondent Grace Olech and her late husband Thaddeus\nasked petitioner Village of Willowbrook (Village) to\nconnect their property to the municipal water supply. The\nVillage at first conditioned the connection on the Olechs\ngranting the Village a 33-foot easement. The Olechs\nobjected, claiming that the Village only required a 15-foot\neasement from other property owners seeking access to the\nwater supply. After a 3-month delay, the Village relented\n\n232\n\n\x0cand agreed to provide water service with only a 15-foot\neasement.\nOlech sued the Village, claiming that the Village\xe2\x80\x99s demand\nof an additional 18-foot easement violated the Equal\nProtection Clause of the Fourteenth Amendment. Olech\nasserted that the 33-foot easement demand was \xe2\x80\x9cirrational\nand wholly arbitrary\xe2\x80\x9d; that the Village\xe2\x80\x99s demand was\nactually motivated by ill will resulting from the Olechs\xe2\x80\x99\nprevious filing of an unrelated, successful lawsuit against\nthe Village; and that the Village acted either with the intent\nto deprive Olech of her rights or in reckless disregard of\nher rights. App. 10, 12.\nThe District Court dismissed the lawsuit pursuant to\nFederal Rule of Civil Procedure 12(b)(6) for failure to state\na cognizable claim under the Equal Protection Clause.\nRelying on Circuit precedent, the Court of Appeals for the\nSeventh Circuit reversed, holding that a plaintiff can allege\nan equal protection violation by asserting that state action\nwas motivated solely by a \xe2\x80\x9c \xe2\x80\x98spiteful effort to \xe2\x80\x9cget\xe2\x80\x9d him for\nreasons wholly unrelated to any legitimate state objective.\xe2\x80\x99 \xe2\x80\x9d\n160 F.3d 386, 387 (1998) (quoting Esmail v. Macrane, 53\nF.3d 176, 180 (C.A.7 1995)). It determined that Olech\xe2\x80\x99s\ncomplaint sufficiently alleged such a claim. 160 F.3d, at 388.\nWe granted certiorari to determine whether the Equal\nProtection Clause gives rise to a cause of action on behalf\nof a \xe2\x80\x9cclass of one\xe2\x80\x9d where the plaintiff did not allege\nmembership in a class or group.11 527 U.S. 1067, 120 S.Ct.\n10, 144 L.Ed.2d 841 (1999).\nWe note that the complaint in this case could be read to allege a class of five. In\naddition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis\nZimmer and Howard Brinkman requested to be connected to the municipal water\nsupply, and the Village initially demanded the 33-foot easement from all of them.\nThe Zimmers and Mr. Brinkman were also involved in the previous, successful\nlawsuit against the Village, which allegedly created the ill will motivating the\nexcessive easement demand. Whether the complaint alleges a class of one or of five\nis of no consequence because we conclude that the number of individuals in a class\nis immaterial for equal protection analysis.\n1\n\n233\n\n\x0cOur cases have recognized successful equal protection\nclaims brought by a \xe2\x80\x9cclass of one,\xe2\x80\x9d where the plaintiff\nalleges that she has been intentionally treated differently\nfrom others similarly situated and that there is no rational\nbasis for the difference in treatment. See Sioux City Bridge\nCo. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed.\n340 (1923); Allegheny Pittsburgh Coal Co. v. Commission\nof Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d\n688 (1989). In so doing, we have explained that \xe2\x80\x9c \xe2\x80\x98the\npurpose of the equal protection clause of the Fourteenth\nAmendment is to secure every person within the State\xe2\x80\x99s\njurisdiction against intentional and arbitrary discrimination,\nwhether occasioned by express terms of a statute or by its\nimproper execution through duly constituted agents.\xe2\x80\x99 \xe2\x80\x9d\nSioux City Bridge Co., supra, at 445, 43 S.Ct. 190 (quoting\nSunday Lake Iron Co. v. Township of Wakefield, 247 U.S.\n350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918)).\nThat reasoning is applicable to this case. Olech\xe2\x80\x99s complaint\ncan fairly be construed as alleging that the Village\nintentionally demanded a 33-foot easement as a condition\nof connecting her property to the municipal water supply\nwhere the Village required only a 15-foot easement from\nother similarly situated property owners. See Conley v.\nGibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80\n(1957). The complaint also alleged that the Village\xe2\x80\x99s\ndemand was \xe2\x80\x9cirrational and wholly arbitrary\xe2\x80\x9d and that the\nVillage ultimately connected her property after receiving a\nclearly adequate 15-foot easement. These allegations, quite\napart from the Village\xe2\x80\x99s subjective motivation, are sufficient\nto state a claim for relief under traditional equal protection\nanalysis. We therefore affirm the judgment of the Court of\nAppeals, but do not reach the alternative theory of\n\xe2\x80\x9csubjective ill will\xe2\x80\x9d relied on by that court.\nIt is so ordered.\nJUSTICE BREYER, concurring in the result.\n\n234\n\n\x0cThe Solicitor General and the village of Willowbrook have\nexpressed concern lest we interpret the Equal Protection\nClause in this case in a way that would transform many\nordinary violations of city or state law into violations of the\nConstitution. It might be thought that a rule that looks only\nto an intentional difference in treatment and a lack of a\nrational basis for that different treatment would work such\na transformation. Zoning decisions, for example, will often,\nperhaps almost always, treat one landowner differently\nfrom another, and one might claim that, when a city\xe2\x80\x99s\nzoning authority takes an action that fails to conform to a\ncity zoning regulation, it lacks a \xe2\x80\x9crational basis\xe2\x80\x9d for its\naction (at least if the regulation in question is reasonably\nclear).\nThis case, however, does not directly raise the question\nwhether the simple and common instance of a faulty\nzoning decision would violate the Equal Protection Clause.\nThat is because the Court of Appeals found that in this\ncase respondent had alleged an extra factor as well-a factor\nthat the Court of Appeals called \xe2\x80\x9cvindictive action,\xe2\x80\x9d\n\xe2\x80\x9cillegitimate animus,\xe2\x80\x9d or \xe2\x80\x9cill will.\xe2\x80\x9d 160 F.3d 386, 388 (C.A.7\n1998). And, in that respect, the court said this case\nresembled Esmail v. Macrane, 53 F.3d 176 (C.A.7 1995),\nbecause the Esmail plaintiff had alleged that the\nmunicipality\xe2\x80\x99s differential treatment \xe2\x80\x9cwas the result not of\nprosecutorial discretion honestly (even if ineptly-even if\narbitrarily) exercised but of an illegitimate desire to \xe2\x80\x98get\xe2\x80\x99\nhim.\xe2\x80\x9d 160 F.3d, at 388.\nIn my view, the presence of that added factor in this case is\nsufficient to minimize any concern about transforming runof-the-mill zoning cases into cases of constitutional right.\nFor this reason, along with the others mentioned by the\nCourt, I concur in the result.\n\n235\n\n\x0cAnup Enquist v. Oregon Department of Agriculture\n553 U.S. 591 (2008)\nON WRIT OF CERTIORARI TO THE UNITED\nSTATES COURT OF APPEALS FOR THE NINTH\nCIRCUIT\nROBERTS, C. J., delivered the opinion of the Court, in\nwhich SCALIA, KENNEDY, THOMAS, BREYER, and\nALITO, JJ., joined. STEVENS, J., filed a dissenting\nopinion, in which SOUTER and GINSBURG, JJ., joined.\nCHIEF JUSTICE ROBERTS delivered the opinion of the\nCourt.\nThe question in this case is whether a public employee can\nstate a claim under the Equal Protection Clause by alleging\nthat she was arbitrarily treated differently from other\nsimilarly situated employees, with no assertion that the\ndifferent treatment was based on the employee\xe2\x80\x99s\nmembership in any particular class. We hold that such a\n\xe2\x80\x9cclass-of-one\xe2\x80\x9d theory of equal protection has no place in\nthe public employment context.\n\xe2\x80\xa6.\nOur equal protection jurisprudence has typically been\nconcerned with governmental classifications that \xe2\x80\x9caffect\nsome groups of citizens differently than others.\xe2\x80\x9d McGowan\nv. Maryland, 366 U. S. 420, 425 (1961). See, e.g., Ross v.\nMoffitt, 417 U. S. 600, 609 (1974) \xe2\x80\x9c\xe2\x80\x98Equal Protection\xe2\x80\x99 \xe2\x80\xa6\nemphasizes disparity in treatment by a State between\nclasses of individuals whose situations are arguably\nindistinguishable\xe2\x80\x9d); San Antonio Independent School Dist. v.\nRodriguez, 411 U. S. 1, 60 (1973) (Stewart, J., concurring)\n(\xe2\x80\x9c[T]he basic concern of the Equal Protection Clause is\nwith state legislation whose purpose or effect is to create\ndiscrete and objectively identifiable classes\xe2\x80\x9d). Plaintiffs in\nsuch cases generally allege that they have been arbitrarily\n\n236\n\n\x0cclassified as members of an \xe2\x80\x9cidentifiable group.\xe2\x80\x9d Personnel\nAdministrator of Mass.v. Feeney, 442 U. S. 256, 279 (1979).\nEngquist correctly argues, however, that we recognized in\nOlech that an equal protection claim can in some\ncircumstances be sustained even if the plaintiff has not\nalleged class-based discrimination, but instead claims that\nshe has been irrationally singled out as a so-called \xe2\x80\x9cclass of\none.\xe2\x80\x9d In Olech, a property owner had asked the village of\nWillowbrook to connect her property to the municipal\nwater supply. Although the village had required only a 15foot easement from other property owners seeking access\nto the water supply, the village conditioned Olech\xe2\x80\x99s\nconnection on a grant of a 33-foot easement. Olech sued\nthe village, claiming that the village\xe2\x80\x99s requirement of an\neasement 18 feet longer than the norm violated the Equal\nProtection Clause. Although Olech had not alleged that the\nvillage had discriminated against her based on membership\nin an identifiable class, we held that her complaint stated a\nvalid claim under the Equal Protection Clause because it\nalleged that she had \xe2\x80\x9cbeen intentionally treated differently\nfrom others similarly situated and that there is no rational\nbasis for the difference in treatment.\xe2\x80\x9d 528 U. S., at 564\n(citing Sioux City Bridge Co. v. Dakota County, 260 U. S. 441\n(1923), and Allegheny Pittsburgh Coal Co. v. Commission of\nWebster Cty., 488 U. S. 336 (1989)).\nRecognition of the class-of-one theory of equal protection\non the facts in Olech was not so much a departure from the\nprinciple that the Equal Protection Clause is concerned\nwith arbitrary government classification, as it was an\napplication of that principle. That case involved the\ngovernment\xe2\x80\x99s regulation of property. Similarly, the cases\nupon which the Court in Olech relied concerned property\nassessment and taxation schemes. See Allegheny Pittsburgh,\nsupra; Sioux City Bridge, supra. We expect such legislative or\nregulatory classifications to apply \xe2\x80\x9cwithout respect to\npersons,\xe2\x80\x9d to borrow a phrase from the judicial oath. See 28\n\n237\n\n\x0cU. S. C. \xc2\xa7453. As we explained long ago, the Fourteenth\nAmendment \xe2\x80\x9crequires that all persons subjected to \xe2\x80\xa6\nlegislation shall be treated alike, under like circumstances\nand conditions, both in the privileges conferred and in the\nliabilities imposed.\xe2\x80\x9d Hayes v. Missouri, 120 U. S. 68, 71-72\n(1887). When those who appear similarly situated are\nnevertheless treated differently, the Equal Protection\nClause requires at least a rational reason for the difference,\nto assure that all persons subject to legislation or regulation\nare indeed being \xe2\x80\x9ctreated alike, under like circumstances\nand conditions.\xe2\x80\x9d Thus, when it appears that an individual is\nbeing singled out by the government, the specter of\narbitrary classification is fairly raised, and the Equal\nProtection Clause requires a \xe2\x80\x9crational basis for the\ndifference in treatment.\xe2\x80\x9d Olech, 528 U. S., at 564.\nWhat seems to have been significant in Olech and the cases\non which it relied was the existence of a clear standard\nagainst which departures, even for a single plaintiff, could\nbe readily assessed. There was no indication in Olech that\nthe zoning board was exercising discretionary authority\nbased on subjective, individualized determinations\xe2\x80\x94at least\nnot with regard to easement length, however typical such\ndeterminations may be as a general zoning matter. See id.,\nat 565 (BREYER, J., concurring in result). Rather, the\ncomplaint alleged that the board consistently required only\na 15-foot easement, but subjected Olech to a 33-foot\neasement. This differential treatment raised a concern of\narbitrary classification, and we therefore required that the\nState provide a rational basis for it.\nIn Allegheny Pittsburgh, cited by the Olech Court, the\napplicable standard was market value, but the county\ndeparted from that standard in basing some assessments on\nquite dated purchase prices. Again, there was no suggestion\nthat the \xe2\x80\x9cdramatic differences in valuation\xe2\x80\x9d for similar\nproperty parcels, 488 U. S., at 341, were based on\nsubjective considerations of the sort on which appraisers\n\n238\n\n\x0coften rely, see id., at 338-342, 345. Sioux City Bridge, also\ncited in Olech, was the same sort of case, recognizing an\nequal protection claim when one taxpayer\xe2\x80\x99s property was\nassessed at 100 percent of its value, while all other property\nwas assessed at 55 percent, without regard to articulated\ndifferences in the properties. See 260 U. S., at 445-447.\nThere are some forms of state action, however, which by\ntheir nature involve discretionary decisionmaking based on\na vast array of subjective, individualized assessments. In\nsuch cases the rule that people should be \xe2\x80\x9ctreated alike,\nunder like circumstances and conditions\xe2\x80\x9d is not violated\nwhen one person is treated differently from others, because\ntreating like individuals differently is an accepted\nconsequence of the discretion granted. In such situations,\nallowing a challenge based on the arbitrary singling out of a\nparticular person would undermine the very discretion that\nsuch state officials are entrusted to exercise.\nSuppose, for example, that a traffic officer is stationed on a\nbusy highway where people often drive above the speed\nlimit, and there is no basis upon which to distinguish them.\nIf the officer gives only one of those people a ticket, it may\nbe good English to say that the officer has created a class\nof people that did not get speeding tickets, and a \xe2\x80\x9cclass of\none\xe2\x80\x9d that did. But assuming that it is in the nature of the\nparticular government activity that not all speeders can be\nstopped and ticketed, complaining that one has been\nsingled out for no reason does not invoke the fear of\nimproper government classification. Such a complaint,\nrather, challenges the legitimacy of the underlying action\nitself\xe2\x80\x94the decision to ticket speeders under such\ncircumstances. Of course, an allegation that speeding\ntickets are given out on the basis of race or sex would state\nan equal protection claim, because such discriminatory\nclassifications implicate basic equal protection concerns.\nBut allowing an equal protection claim on the ground that a\nticket was given to one person and not others, even if for\n\n239\n\n\x0cno discernible or articulable reason, would be incompatible\nwith the discretion inherent in the challenged action. It is\nno proper challenge to what in its nature is a subjective,\nindividualized decision that it was subjective and\nindividualized.\nThis principle applies most clearly in the employment\ncontext, for employment decisions are quite often\nsubjective and individualized, resting on a wide array of\nfactors that are difficult to articulate and quantify\xe2\x80\xa6 . .\nThe judgment of the Court of Appeals is affirmed.\nIt is so ordered.\nJUSTICE STEVENS, with whom JUSTICE SOUTER and\nJUSTICE GINSBURG join, dissenting.\n\xe2\x80\xa6.\nOur decision in Village of Willowbrook v. Olech, 528 U. S. 562\n(2000) (per curiam), applied a rule that had been an\naccepted part of our equal protection jurisprudence for\ndecades: Unless state action that intentionally singles out an\nindividual, or a class of individuals, for adverse treatment is\nsupported by some rational justification, it violates the\nFourteenth Amendment\xe2\x80\x99s command that no State shall\n\xe2\x80\x9cdeny to any person within its jurisdiction the equal\nprotection of the laws.\xe2\x80\x9d\nOur opinion in Olech emphasized that the legal issue would\nhave been the same whether the class consisted of one or\nfive members, because \xe2\x80\x9cthe number of individuals in a class\nis immaterial for equal protection analysis.\xe2\x80\x9d Id., at 564, n.\nThe outcome of that case was not determined by the size\nof the disadvantaged class, and the majority does not\xe2\x80\x94\nindeed cannot\xe2\x80\x94dispute the settled principle that the Equal\nProtection Clause protects persons, not groups. See ante, at\n4-5.\nNor did the outcome in Olech turn on the fact that the\nVillage was discriminating against a property owner rather\n\n240\n\n\x0cthan an employee. The majority does not dispute that the\nstrictures of the Equal Protection Clause apply to the States\nin their role as employers as well as regulators. See ante, at 5.\nAnd indeed, we have made clear that \xe2\x80\x9cthe Equal Protection\nand Due Process Clauses of the Fourteenth Amendment,\nand other provisions of the Federal Constitution afford\nprotection to employees who serve the government as well\nas to those who are served by them, and \xc2\xa71983 provides a\ncause of action for all citizens injured by an abridgment of\nthose protections.\xe2\x80\x9d Collins v. Harker Heights, 503 U. S. 115,\n119-120 (1992).\nRather, the outcome of Olech was dictated solely by the\nabsence of a rational basis for the discrimination. As we\nexplained:\n\xe2\x80\x9cOur cases have recognized successful\nequal protection claims brought by a\n\xe2\x80\x98class of one,\xe2\x80\x99 where the plaintiff\nalleges that she has been intentionally\ntreated differently from others\nsimilarly situated and that there is no\nrational basis for the difference in\ntreatment. In so doing, we have\nexplained that \xe2\x80\x98[t]he purpose of the\nequal protection clause of the\nFourteenth Amendment is to secure\nevery person within the State\xe2\x80\x99s\njurisdiction against intentional and\narbitrary\ndiscrimination,\nwhether\noccasioned by express terms of a\nstatute or by its improper execution\nthrough duly constituted agents.\xe2\x80\x99\n\xe2\x80\x9c[Olech\xe2\x80\x99s] complaint also alleged that\nthe Village\xe2\x80\x99s demand was \xe2\x80\x98irrational\nand wholly arbitrary\xe2\x80\x99 \xe2\x80\xa6 . These\nallegations, quite apart from the\nVillage\xe2\x80\x99s subjective motivation, are\nsufficient to state a claim for relief\n\n241\n\n\x0cunder traditional equal protection\nanalysis.\xe2\x80\x9d\n528 U. S., at 564, 565 (some internal quotation marks and\ncitations omitted).\nHere, as in Olech, Engquist alleged that the State\xe2\x80\x99s actions\nwere arbitrary and irrational. In response, the State offered\nno explanation whatsoever for its decisions; it did not claim\nthat Engquist was a subpar worker, or even that her\npersonality made her a poor fit in the work-place or that\nher colleagues simply did not enjoy working with her. In\nfact, the State explicitly disclaimed the existence of any\nworkplace or performance-based rationale.11 \xe2\x80\xa6 .\nIn sum, there is no compelling reason to carve arbitrary\npublic-employment decisions out of the well-established\ncategory of equal protection violations when the familiar\nrational review standard can sufficiently limit these claims\nto only wholly unjustified employment actions.\nAccordingly, I respectfully dissent.\n\nBut for this disclaimer, the lower court could have dismissed the claim if it\ndiscerned \xe2\x80\x9cany reasonably conceivable state of facts that could provide a rational\nbasis for the [State\xe2\x80\x99s actions],\xe2\x80\x9d even one not put forth by the State. FCC v. Beach\nCommunications, Inc., 508 U. S. 307, 313 (1993). The disclaimer, however, negated\nthat possibility.\n1\n\n242\n\n\x0c3.5. Anticompetitive Zoning\nCity of Columbia et al. v. Omni Outdoor Advertising\nInc.499 U.S. 365 (1991)\nNo. 89-1671.\nSupreme Court of the United States.\nArgued November 28, 1990.\nDecided April 1, 1991.\nCERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE FOURTH CIRCUIT.\nJoel I. Klein argued the cause for petitioners. With him on\nthe briefs were Paul M. Smith, Roy D. Bates, James S. Meggs,\nDavid W. Robinson II, and Heyward E. McDonald.\nA. Camden Lewis argued the cause for respondent. With him\non the brief was Randall M. Chastain.1\nJUSTICE SCALIA delivered the opinion of the Court.\nThis case requires us to clarify the application of the Sherman\nAct to municipal governments and to the citizens who seek action\nfrom them.\nI\nPetitioner Columbia Outdoor Advertising, Inc. (COA), a\nSouth Carolina corporation, entered the billboard business\nin the city of Columbia, South Carolina (also a petitioner\nhere), in the 1940\xe2\x80\x99s. By 1981 it controlled more than 95%\nof what has been conceded to be the relevant market. COA\nCharles Rothfeld, Benna Ruth Solomon, and Peter J. Kalis filed a brief for the National\nLeague of Cities et al. as amici curiae urging reversal.\n1\n\nSteven C. McCracken, Maurice Baskin, and John R. Crews filed a brief for Associated\nBuilders and Contractors, Inc., as amicus curiae urging affirmance.\nEric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising\nAssociation of America, Inc., as amicus curiae.\n\n243\n\n\x0cwas a local business owned by a family with deep roots in\nthe community, and enjoyed close relations with the city\xe2\x80\x99s\npolitical leaders. The mayor and other members of the city\ncouncil were personal friends of COA\xe2\x80\x99s majority owner,\nand the company and its officers occasionally contributed\nfunds and free billboard space to their campaigus.\nAccording to respondent Omni Outdoor Advertising, Inc.,\nthese beneficences were part of a \xe2\x80\x9clongstanding\xe2\x80\x9d \xe2\x80\x9csecret\nanticompetitive agreement\xe2\x80\x9d whereby \xe2\x80\x9cthe City and COA\nwould each use their [sic] respective power and resources to\nprotect \xe2\x80\xa6 COA\xe2\x80\x99s monopoly position,\xe2\x80\x9d in return for which\n\xe2\x80\x9cCity Council members received advantages made possible\nby COA\xe2\x80\x99s monopoly.\xe2\x80\x9d Brief for Respondent 12, 16.\nIn 1981, Omni, a Georgia corporation, began erecting\nbillboards in and around the city. COA responded to this\ncompetition in several ways. First, it redoubled its own\nbillboard construction efforts and modernized its existing\nstock. Second\xe2\x80\x93according to Omni\xe2\x80\x93it took a number of\nanticompetitive private actions, such as offering artificially\nlow rates, spreading untrue and malicious rumors about\nOmni, and attempting to induce Omni\xe2\x80\x99s customers to\nbreak their contracts. Finally (and this is what gives rise to\nthe issue we address today), COA executives met with city\nofficials to seek the enactment of zoning ordinances that\nwould restrict billboard construction. COA was not alone\nin urging this course; concerned about the city\xe2\x80\x99s recent\nexplosion of billboards, a number of citizens, including\nwriters of articles and editorials in local newspapers,\nadvocated restrictions.\nIn the spring of 1982, the city council passed an ordinance\nrequiring the council\xe2\x80\x99s approval for every billboard\nconstructed in downtown Columbia. This was later\namended to impose a 180-day moratorium on the\nconstruction of billboards throughout the city, except as\nspecifically authorized by the council. A state court\ninvalidated this ordinance on the ground that its conferral\n\n244\n\n\x0cof unconstrained discretion upon the city council violated\nboth the South Carolina and Federal Constitutions. The\ncity then requested the State\xe2\x80\x99s regional planning authority\nto conduct a comprehensive analysis of the local billboard\nsituation as a basis for developing a final, constitutionally\nvalid, ordinance. In September 1982, after a series of public\nhearings and numerous meetings involving city officials,\nOmni, and COA (in all of which, according to Omni,\npositions contrary to COA\xe2\x80\x99s were not genuinely\nconsidered), the city council passed a new ordinance\nrestricting the size, location, and spacing of billboards.\nThese restrictions, particularly those on spacing, obviously\nbenefited COA, which already had its billboards in place;\nthey severely hindered Omni\xe2\x80\x99s ability to compete.\nIn November 1982, Omni filed suit against COA and the\ncity in Federal District Court, charging that they had\nviolated \xc2\xa7\xc2\xa7 1 and 2 of the Sherman Act, 26 Stat. 209, as\namended, 15 U. S. C. \xc2\xa7\xc2\xa7 1, 2,2 as well as South Carolina\xe2\x80\x99s\nUnfair Trade Practices Act, S. C. Code Ann. \xc2\xa7 39-5-140\n(1976). Omni contended, in particular, that the city\xe2\x80\x99s\nbillboard ordinances were the result of an anticompetitive\nconspiracy between city officials and COA that stripped\nboth parties of any immunity they might otherwise enjoy\nfrom the federal antitrust laws. In January 1986, after more\nthan two weeks of trial, a jury returned general verdicts\nagainst the city and COA on both the federal and state\nclaims. It awarded damages, before trebling, of $600,000 on\nthe \xc2\xa7 1 Sherman Act claim, and $400,000 on the \xc2\xa7 2 claim.3\nSection 1 provides in pertinent part: \xe2\x80\x9cEvery contract, combination in the form of\ntrust or otherwise, or conspiracy, in restraint of trade or commerce among the\nseveral States, or with foreign nations, is declared to be illegal.\xe2\x80\x9d 15 U. S. C. \xc2\xa7 1.\n2\n\nSection 2 provides in pertinent part: \xe2\x80\x9cEvery person who shall monopolize, or\nattempt to monopolize, or combine or conspire with any other person or persons,\nto monopolize any part of the trade or commerce among the several States, or with\nforeign nations, shall be deemed guilty of a felony.\xe2\x80\x9d 15 U. S. C. \xc2\xa7 2.\nThe monetary damages in this case were assessed entirely against COA, the\nDistrict Court having ruled that the city was immunized by the Local Government\n3\n\n245\n\n\x0cThe jury also answered two special interrogatories, finding\nspecifically that the city and COA had conspired both to\nrestrain trade and to monopolize the market. Petitioners\nmoved for judgment notwithstanding the verdict,\ncontending among other things that their activities were\noutside the scope of the federal antitrust laws. In\nNovember 1988, the District Court granted the motion.\nA divided panel of the United States Court of Appeals for\nthe Fourth Circuit reversed the judgment of the District\nCourt and reinstated the jury verdict on all counts. 891 F.\n2d 1127 (1989). We granted certiorari, 496 U. S. 935 (1990).\nII\nIn the landmark case of Parker v. Brown, 317 U. S. 341\n(1943), we rejected the contention that a program\nrestricting the marketing of privately produced raisins,\nadopted pursuant to California\xe2\x80\x99s Agricultural Prorate Act,\nviolated the Sherman Act. Relying on principles of\nfederalism and state sovereignty, we held that the Sherman\nAct did not apply to anticompetitive restraints imposed by\nthe States \xe2\x80\x9cas an act of government.\xe2\x80\x9d Id., at 352.\nSince Parker emphasized the role of sovereign States in a\nfederal system, it was initially unclear whether the\ngovernmental actions of political subdivisions enjoyed\nsimilar protection. In recent years, we have held that Parker\nimmunity does not apply directly to local governments, see\nHallie v. Eau Claire, 471 U. S. 34, 38 (1985); Community\nAntitrust Act of 1984, 98 Stat. 2750, as amended, 15 U. S. C. \xc2\xa7\xc2\xa7 34-36, which\nexempts local governments from paying damages for violations of the federal\nantitrust laws. Although enacted in 1984, after the events at issue in this case, the\nAct specifically provides that it may be applied retroactively if \xe2\x80\x9cthe defendant\nestablishes and the court determines, in light of all the circumstances \xe2\x80\xa6 that it\nwould be inequitable not to apply this subsection to a pending case.\xe2\x80\x9d 15 U. S. C. \xc2\xa7\n35(b). The District Court determined that it would be, and the Court of Appeals\nrefused to disturb that judgment. Respondent has not challenged that\ndetermination in this Court, and we express no view on the matter.\n\n246\n\n\x0cCommunications Co. v. Boulder, 455 U. S. 40, 50-51 (1982);\nLafayette v. Louisiana Power & Light Co., 435 U. S. 389, 412413 (1978) (plurality opinion). We have recognized,\nhowever, that a municipality\xe2\x80\x99s restriction of competition\nmay sometimes be an authorized implementation of state\npolicy, and have accorded Parker immunity where that is\nthe case.\nThe South Carolina statutes under which the city acted in\nthe present case authorize municipalities to regulate the use\nof land and the construction of buildings and other\nstructures within their boundaries.4 It is undisputed that, as\na matter of state law, these statutes authorize the city to\nregulate the size, location, and spacing of billboards. It\ncould be argued, however, that a municipality acts beyond\nits delegated authority, for Parker purposes, whenever the\nnature of its regulation is substantively or even procedurally\ndefective. On such an analysis it could be contended, for\nS. C. Code Ann. \xc2\xa7 5-23-10 (1976) (\xe2\x80\x9cBuilding and zoning regulations authorized\xe2\x80\x9d)\nprovides that \xe2\x80\x9c[f]or the purpose of promoting health, safety, morals or the general\nwelfare of the community, the legislative body of cities and incorporated towns\nmay by ordinance regulate and restrict the height, number of stories and size of\nbuildings and other structures.\xe2\x80\x9d\n4\n\nSection 5-23-20 (\xe2\x80\x9cDivision of municipality into districts\xe2\x80\x9d) provides that \xe2\x80\x9c[f]or any\nor all of such purposes the local legislative body may divide the municipality into\ndistricts of such number, shape and area as may be deemed best suited to carry out\nthe purposes of this article. Within such districts it may regulate and restrict the\nerection, construction, reconstruction, alteration, repair or use of buildings,\nstructures or land.\xe2\x80\x9d\nSection 6-7-710 (\xe2\x80\x9cGrant of power for zoning\xe2\x80\x9d) provides that \xe2\x80\x9c[f]or the purposes of\nguiding development in accordance with existing and future needs and in order to\nprotect, promote and improve the public health, safety, morals, convenience, order,\nappearance, prosperity, and general welfare, the governing authorities of\nmunicipalities and counties may, in accordance with the conditions and procedures\nspecified in this chapter, regulate the location, height, bulk, number of stories and\nsize of buildings and other structures\xe2\x80\xa6 . The regulations shall \xe2\x80\xa6 be designed to\nlessen congestion in the streets; to secure safety from fire, panic, and other dangers,\nto promote the public health and the general welfare, to provide adequate light and\nair; to prevent the overcrowding of land; to avoid undue concentration of\npopulation; to protect scenic areas; to facilitate the adequate provision of\ntransportation, water, sewage, schools, parks, and other public requirements.\xe2\x80\x9d\n\n247\n\n\x0cexample, that the city\xe2\x80\x99s regulation in the present case was\nnot \xe2\x80\x9cauthorized\xe2\x80\x9d by S. C. Code Ann. \xc2\xa7 5-23-10 (1976), see\nn. 3, supra, if it was not, as that statute requires, adopted\n\xe2\x80\x9cfor the purpose of promoting health, safety, morals or the\ngeneral welfare of the community.\xe2\x80\x9d As scholarly\ncommentary has noted, such an expansive interpretation of\nthe Parker-defense authorization requirement would have\nunacceptable consequences.\n\xe2\x80\x9cTo be sure, state law \xe2\x80\x98authorizes\xe2\x80\x99 only\nagency decisions that are substantively\nand procedurally correct. Errors of\nfact, law, or judgment by the agency\nare not \xe2\x80\x98authorized.\xe2\x80\x99 Erroneous acts or\ndecisions are subject to reversal by\nsuperior\ntribunals\nbecause\nunauthorized. If the antitrust court\ndemands unqualified \xe2\x80\x98authority\xe2\x80\x99 in this\nsense, it inevitably becomes the\nstandard reviewer not only of federal\nagency activity but also of state and\nlocal activity whenever it is alleged that\nthe governmental body, though\npossessing the power to engage in the\nchallenged conduct, has actually\nexercised its power in a manner not\nauthorized by state law. We should not\nlightly\nassume\nthat\nLafayette\xe2\x80\x99s\nauthorization requirement dictates\ntransformation of state administrative\nreview into a federal antitrust job. Yet\nthat would be the consequence of\nmaking antitrust liability depend on an\nundiscriminating and mechanical\ndemand for \xe2\x80\x98authority\xe2\x80\x99 in the full\nadministrative law sense.\xe2\x80\x9d P. Areeda &\nH. Hovenkamp, Antitrust Law \xc2\xb6\n212.3b, p. 145 (Supp. 1989).\n\n248\n\n\x0cWe agree with that assessment, and believe that in order to\nprevent Parker from undermining the very interests of\nfederalism it is designed to protect, it is necessary to adopt\na concept of authority broader than what is applied to\ndetermine the legality of the municipality\xe2\x80\x99s action under\nstate law. We have adopted an approach that is similar in\nprinciple, though not necessarily in precise application,\nelsewhere. See Stump v. Sparkman, 435 U. S. 349 (1978). It\nsuffices for the present to conclude that here no more is\nneeded to establish, for Parker purposes, the city\xe2\x80\x99s authority\nto regulate than its unquestioned zoning power over the\nsize, location, and spacing of billboards.\nBesides authority to regulate, however, the Parker defense\nalso requires authority to suppress competition\xe2\x80\x93more\nspecifically, \xe2\x80\x9cclear articulation of a state policy to authorize\nanticompetitive conduct\xe2\x80\x9d by the municipality in connection\nwith its regulation. Hallie, 471 U. S., at 40 (internal\nquotation omitted). We have rejected the contention that\nthis requirement can be met only if the delegating statute\nexplicitly permits the displacement of competition, see id.,\nat 41-42. It is enough, we have held, if suppression of\ncompetition is the \xe2\x80\x9cforeseeable result\xe2\x80\x9d of what the statute\nauthorizes, id., at 42. That condition is amply met here. The\nvery purpose of zoning regulation is to displace unfettered\nbusiness freedom in a manner that regularly has the effect\nof preventing normal acts of competition, particularly on\nthe part of new entrants. A municipal ordinance restricting\nthe size, location, and spacing of billboards (surely a\ncommon form of zoning) necessarily protects existing\nbillboards against some competition from newcomers.5\n\nThe dissent contends that, in order successfully to delegate its Parker immunity to\na municipality, a State must expressly authorize the municipality to engage (1) in\nspecifically \xe2\x80\x9ceconomic regulation,\xe2\x80\x9d post, at 388, (2) of a specific industry, post, at\n391. These dual specificities are without support in our precedents, for the good\nreason that they defy rational implementation.\n5\n\n249\n\n\x0cThe Court of Appeals was therefore correct in its\nconclusion that the city\xe2\x80\x99s restriction of billboard\nconstruction was prima facie entitled to Parker immunity.\nThe Court of Appeals upheld the jury verdict, however, by\ninvoking a \xe2\x80\x9cconspiracy\xe2\x80\x9d exception to Parker that has been\nrecognized by several Courts of Appeals. See, e. g.,\nWhitworth v. Perkins, 559 F.2d 378 (CA5 1977), vacated, 435\nU. S. 992, aff\xe2\x80\x99d on rehearing, 576 F.2d 696 (1978), cert.\ndenied, 440 U. S. 911 (1979). That exception is thought to\nbe supported by two of our statements in Parker: \xe2\x80\x9c[W]e\nhave no question of the state or its municipality becoming a\nparticipant in a private agreement or combination by others for\nrestraint of trade, cf. Union Pacific R. Co. v. United States, 313\nU. S. 450.\xe2\x80\x9d Parker, 317 U. S., at 351-352 (emphasis added).\n\xe2\x80\x9cThe state in adopting and enforcing the prorate program\nmade no contract or agreement and entered into no conspiracy in\nrestraint of trade or to establish monopoly but, as sovereign,\nIf, by authority to engage in specifically \xe2\x80\x9ceconomic\xe2\x80\x9d regulation, the dissent means\nauthority specifically to regulate competition, we squarely rejected that in Hallie v.\nEau Claire, 471 U. S. 34 (1985), as discussed in text. Seemingly, however, the dissent\nmeans only that the state authorization must specify that sort of regulation\nwhereunder \xe2\x80\x9cdecisions about prices and output are made not by individual firms,\nbut rather by a public body.\xe2\x80\x9d Post, at 387. But why is not the restriction of\nbillboards in a city a restriction on the \xe2\x80\x9coutput\xe2\x80\x9d of the local billboard industry? It\nassuredly is\xe2\x80\x93and that is indeed the very gravamen of Omni\xe2\x80\x99s complaint. It seems to\nus that the dissent\xe2\x80\x99s concession that \xe2\x80\x9cit is often difficult to differentiate economic\nregulation from municipal regulation of health, safety, and welfare,\xe2\x80\x9d post, at 393, is a\ngross understatement. Loose talk about a \xe2\x80\x9cregulated industry\xe2\x80\x9d may suffice for what\nthe dissent calls \xe2\x80\x9cantitrust parlance,\xe2\x80\x9d post, at 387, but it is not a definition upon\nwhich the criminal liability of public officials ought to depend.\nUnder the dissent\xe2\x80\x99s second requirement for a valid delegation of Parker immunity\xe2\x80\x93\nthat the authorization to regulate pertain to a specific industry\xe2\x80\x93the problem with\nthe South Carolina statute is that it used the generic term \xe2\x80\x9cstructures,\xe2\x80\x9d instead of\nconferring its regulatory authority industry-by-industry (presumably \xe2\x80\x9cbillboards,\xe2\x80\x9d\n\xe2\x80\x9cmovie houses,\xe2\x80\x9d \xe2\x80\x9cmobile homes,\xe2\x80\x9d \xe2\x80\x9cTV antennas,\xe2\x80\x9d and every other conceivable\nobject of zoning regulation that can be the subject of a relevant \xe2\x80\x9cmarket\xe2\x80\x9d for\npurposes of antitrust analysis). To describe this is to refute it. Our precedents not\nonly fail to suggest, but positively reject, such an approach. \xe2\x80\x9c[T]he municipality\nneed not \xe2\x80\x98be able to point to a specific, detailed legislative authorization\xe2\x80\x99 in order to\nassert a successful Parker defense to an antitrust suit.\xe2\x80\x9d Hallie, supra, at 39 (quoting\nLafayette v. Louisiana Power & Light Co., 435 U. S. 389, 415 (1978)).\n\n250\n\n\x0cimposed the restraint as an act of government which the\nSherman Act did not undertake to prohibit.\xe2\x80\x9d Id., at 352\n(emphasis added). Parker does not apply, according to the\nFourth Circuit, \xe2\x80\x9cwhere politicians or political entities are\ninvolved as conspirators\xe2\x80\x9d with private actors in the restraint\nof trade. 891 F. 2d, at 1134.\nThere is no such conspiracy exception. The rationale of\nParker was that, in light of our national commitment to\nfederalism, the general language of the Sherman Act should\nnot be interpreted to prohibit anticompetitive actions by\nthe States in their governmental capacities as sovereign\nregulators. The sentences from the opinion quoted above\nsimply clarify that this immunity does not necessarily obtain\nwhere the State acts not in a regulatory capacity but as a\ncommercial participant in a given market. That is evident\nfrom the citation of Union Pacific R. Co. v. United States, 313\nU. S. 450 (1941), which held unlawful under the Elkins Act\ncertain rebates and concessions made by Kansas City,\nKansas, in its capacity as the owner and operator of a\nwholesale produce market that was integrated with railroad\nfacilities. These sentences should not be read to suggest the\ngeneral proposition that even governmental regulatory action\nmay be deemed private\xe2\x80\x93and therefore subject to antitrust\nliability\xe2\x80\x93when it is taken pursuant to a conspiracy with\nprivate parties. The impracticality of such a principle is\nevident if, for purposes of the exception, \xe2\x80\x9cconspiracy\xe2\x80\x9d\nmeans nothing more than an agreement to impose the\nregulation in question. Since it is both inevitable and\ndesirable that public officials often agree to do what one or\nanother group of private citizens urges upon them, such an\nexception would virtually swallow up the Parker rule: All\nanticompetitive regulation would be vulnerable to a\n\xe2\x80\x9cconspiracy\xe2\x80\x9d charge. See Areeda & Hovenkamp, supra, \xc2\xb6\n\n251\n\n\x0c203.3b, at 34, and n. 1; Elhauge, The Scope of Antitrust\nProcess, 104 Harv. L. Rev. 667, 704-705 (1991).6\nOmni suggests, however, that \xe2\x80\x9cconspiracy\xe2\x80\x9d might be\nlimited to instances of governmental \xe2\x80\x9ccorruption,\xe2\x80\x9d defined\nvariously as \xe2\x80\x9cabandonment of public responsibilities to\nprivate interests,\xe2\x80\x9d Brief for Respondent 42, \xe2\x80\x9ccorrupt or bad\nfaith decisions,\xe2\x80\x9d id., at 44, and \xe2\x80\x9cselfish or corrupt motives,\xe2\x80\x9d\nThe dissent is confident that a jury composed of citizens of the vicinage will be\nable to tell the difference between \xe2\x80\x9cindependent municipal action and action taken\nfor the sole purpose of carrying out an anticompetitive agreement for the private\nparty.\xe2\x80\x9d Post, at 395-396. No doubt. But those are merely the polar extremes, which\nlike the geographic poles will rarely be seen by jurors of the vicinage. Ordinarily the\nallegation will merely be (and the dissent says this is enough) that the municipal\naction was not prompted \xe2\x80\x9cexclusively by a concern for the general public interest,\xe2\x80\x9d\npost, at 387 (emphasis added). Thus, the real question is whether a jury can tell the\ndifference\xe2\x80\x93whether Solomon can tell the difference\xe2\x80\x93between municipal-action-notentirely-independent-because-based-partly-on-agreement-with-private-parties that is\nlawful and municipal-action-not-entirely-independent-because-based-partly-onagreement-with-private-parties that is unlawful. The dissent does not tell us how to\nput this question coherently, much less how to answer it intelligently. \xe2\x80\x9cIndependent\nmunicipal action\xe2\x80\x9d is unobjectionable, \xe2\x80\x9caction taken for the sole purpose of carrying\nout an anticompetitive agreement for the private party\xe2\x80\x9d is unlawful, and everything\nelse (that is, the known world between the two poles) is unaddressed.\n6\n\nThe dissent contends, moreover, that \xe2\x80\x9c[t]he instructions in this case, fairly read,\ntold the jury that the plaintiff should not prevail unless the ordinance was enacted\nfor the sole purpose of interfering with access to the market.\xe2\x80\x9d Post, at 396, n. 9\n(emphasis added). That is not so. The sum and substance of the jury\xe2\x80\x99s instructions\nhere were that anticompetitive municipal action is not lawful when taken as part of\na conspiracy, and that a conspiracy is \xe2\x80\x9can agreement between two or more persons\nto violate the law, or to accomplish an otherwise lawful result in an unlawful\nmanner.\xe2\x80\x9d App. 79. Although the District Court explained that \xe2\x80\x9c[i]t is perfectly\nlawful for any and all persons to petition their government,\xe2\x80\x9d the court immediately\nadded, \xe2\x80\x9cbut they may not do so as a part or as the object of a conspiracy.\xe2\x80\x9d Ibid.\nThese instructions, then, are entirely circular: An anticompetitive agreement\nbecomes unlawful if it is part of a conspiracy, and a conspiracy is an agreement to\ndo something unlawful. The District Court\xe2\x80\x99s observation, upon which the dissent\nplaces so much weight, that \xe2\x80\x9cif by the evidence you find that [COA] procured and\nbrought about the passage of ordinances solely for the purpose of hindering,\ndelaying or otherwise interfering with the access of [Omni] to the marketing area\ninvolved in this case \xe2\x80\xa6 and thereby conspired, then, of course, their conduct\nwould not be excused under the antitrust laws,\xe2\x80\x9d id., at 81, see post, at 387, n. 2, is in\nno way tantamount to an instruction that this was the only theory upon which the\njury could find an immunity-destroying \xe2\x80\x9cconspiracy.\xe2\x80\x9d\n\n252\n\n\x0cibid. Ultimately, Omni asks us not to define \xe2\x80\x9ccorruption\xe2\x80\x9d at\nall, but simply to leave that task to the jury: \xe2\x80\x9c[a]t bottom,\nhowever, it was within the jury\xe2\x80\x99s province to determine\nwhat constituted corruption of the governmental process in\ntheir community.\xe2\x80\x9d Id., at 43. Omni\xe2\x80\x99s amicus eschews this\nemphasis on \xe2\x80\x9ccorruption,\xe2\x80\x9d instead urging us to define the\nconspiracy exception as encompassing any governmental\nact \xe2\x80\x9cnot in the public interest.\xe2\x80\x9d Brief for Associated\nBuilders and Contractors, Inc., as Amicus Curiae 5.\nA conspiracy exception narrowed along such vague lines is\nsimilarly impractical. Few governmental actions are\nimmune from the charge that they are \xe2\x80\x9cnot in the public\ninterest\xe2\x80\x9d or in some sense \xe2\x80\x9ccorrupt.\xe2\x80\x9d The California\nmarketing scheme at issue in Parker itself, for example, can\nreadily be viewed as the result of a \xe2\x80\x9cconspiracy\xe2\x80\x9d to put the\n\xe2\x80\x9cprivate\xe2\x80\x9d interest of the State\xe2\x80\x99s raisin growers above the\n\xe2\x80\x9cpublic\xe2\x80\x9d interest of the State\xe2\x80\x99s consumers. The fact is that\nvirtually all regulation benefits some segments of the\nsociety and harms others; and that it is not universally\nconsidered contrary to the public good if the net economic\nloss to the losers exceeds the net economic gain to the\nwinners. Parker was not written in ignorance of the reality\nthat determination of \xe2\x80\x9cthe public interest\xe2\x80\x9d in the manifold\nareas of government regulation entails not merely\neconomic and mathematical analysis but value judgment,\nand it was not meant to shift that judgment from elected\nofficials to judges and juries. If the city of Columbia\xe2\x80\x99s\ndecision to regulate what one local newspaper called\n\xe2\x80\x9cbillboard jungles,\xe2\x80\x9d Columbia Record, May 21, 1982, p. 14A, col. 1; App. in No. 88-1388 (CA4), p. 3743, is made\nsubject to ex post facto judicial assessment of \xe2\x80\x9cthe public\ninterest,\xe2\x80\x9d with personal liability of city officials a possible\nconsequence, we will have gone far to \xe2\x80\x9ccompromise the\nStates\xe2\x80\x99 ability to regulate their domestic commerce,\xe2\x80\x9d\nSouthern Motor Carriers Rate Conference, Inc. v. United States, 471\nU. S. 48, 56 (1985). The situation would not be better, but\n\n253\n\n\x0carguably even worse, if the courts were to apply a\nsubjective test: not whether the action was in the public\ninterest, but whether the officials involved thought it to be\nso. This would require the sort of deconstruction of the\ngovernmental process and probing of the official \xe2\x80\x9cintent\xe2\x80\x9d\nthat we have consistently sought to avoid.7 \xe2\x80\x9c[W]here the\naction complained of \xe2\x80\xa6 was that of the State itself, the\naction is exempt from antitrust liability regardless of the\nState\xe2\x80\x99s motives in taking the action.\xe2\x80\x9d Hoover v. Ronwin, 466\nU. S. 558, 579-580 (1984). See also Llewellyn v. Crothers, 765\nF. 2d 769, 774 (CA9 1985) (Kennedy, J.).\nThe foregoing approach to establishing a \xe2\x80\x9cconspiracy\xe2\x80\x9d\nexception at least seeks (however impractically) to draw the\nline of impermissible action in a manner relevant to the\npurposes of the Sherman Act and of Parker: prohibiting the\nrestriction of competition for private gain but permitting\nthe restriction of competition in the public interest.\nAnother approach is possible, which has the virtue of\npracticality but the vice of being unrelated to those\npurposes. That is the approach which would consider\nParker inapplicable only if, in connection with the\ngovernmental action in question, bribery or some other\nviolation of state or federal law has been established. Such\nunlawful activity has no necessary relationship to whether\nthe governmental action is in the public interest. A mayor is\nguilty of accepting a bribe even if he would and should\nhave taken, in the public interest, the same action for which\nthe bribe was paid. (That is frequently the defense asserted\nto a criminal bribery charge\xe2\x80\x93and though it is never valid in\nlaw, see, e. g., United States v. Jannotti, 673 F. 2d 578, 601\n(CA3) (en banc), cert. denied, 457 U. S. 1106 (1982), it is\nWe have proceeded otherwise only in the \xe2\x80\x9cvery limited and well-defined class of\ncases where the very nature of the constitutional question requires [this] inquiry.\xe2\x80\x9d\nUnited States v. O\xe2\x80\x99Brien, 391 U. S. 367, 383, n. 30 (1968) (bill of attainder). See also\nArlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 268, n. 18\n(1977) (race-based motivation).\n7\n\n254\n\n\x0coften plausible in fact.) When, moreover, the regulatory\nbody is not a single individual but a state legislature or city\ncouncil, there is even less reason to believe that violation of\nthe law (by bribing a minority of the decisionmakers)\nestablishes that the regulation has no valid public purpose.\nCf. Fletcher v. Peck, 6 Cranch 87, 130 (1810). To use\nunlawful political influence as the test of legality of state\nregulation undoubtedly vindicates (in a rather blunt way)\nprinciples of good government. But the statute we are\nconstruing is not directed to that end. Congress has passed\nother laws aimed at combating corruption in state and local\ngovernments. See, e. g., 18 U. S. C. \xc2\xa7 1951 (Hobbs Act).\n\xe2\x80\x9cInsofar as [the Sherman Act] sets up a code of ethics at all,\nit is a code that condemns trade restraints, not political\nactivity.\xe2\x80\x9d Eastern Railroad Presidents Conference v. Noerr Motor\nFreight, Inc., 365 U. S. 127, 140 (1961).\nFor these reasons, we reaffirm our rejection of any\ninterpretation of the Sherman Act that would allow\nplaintiffs to look behind the actions of state sovereigns to\nbase their claims on \xe2\x80\x9cperceived conspiracies to restrain\ntrade,\xe2\x80\x9d Hoover, 466 U. S., at 580. We reiterate that, with the\npossible market participant exception, any action that\nqualifies as state action is \xe2\x80\x9cipso facto \xe2\x80\xa6 exempt from the\noperation of the antitrust laws,\xe2\x80\x9d id., at 568. This does not\nmean, of course, that the States may exempt private action\nfrom the scope of the Sherman Act; we in no way qualify\nthe well-established principle that \xe2\x80\x9ca state does not give\nimmunity to those who violate the Sherman Act by\nauthorizing them to violate it, or by declaring that their\naction is lawful.\xe2\x80\x9d Parker, 317 U. S., at 351 (citing Northern\nSecurities Co. v. United States, 193 U. S. 197, 332, 344-347\n(1904)). See also Schwegmann Brothers v. Calvert Distillers Corp.,\n341 U. S. 384 (1951).\nIII\n\n255\n\n\x0cWhile Parker recognized the States\xe2\x80\x99 freedom to engage in\nanticompetitive regulation, it did not purport to immunize\nfrom antitrust liability the private parties who urge them to\nengage in anticompetitive regulation. However, it is\nobviously peculiar in a democracy, and perhaps in\nderogation of the constitutional right \xe2\x80\x9cto petition the\nGovernment for a redress of grievances,\xe2\x80\x9d U. S. Const.,\nAmdt. 1, to establish a category of lawful state action that\ncitizens are not permitted to urge. Thus, beginning with\nEastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,\nsupra, we have developed a corollary to Parker: The federal\nantitrust laws also do not regulate the conduct of private\nindividuals in seeking anticompetitive action from the\ngovernment. This doctrine, like Parker, rests ultimately\nupon a recognition that the antitrust laws, \xe2\x80\x9ctailored as they\nare for the business world, are not at all appropriate for\napplication in the political arena.\xe2\x80\x9d Noerr, supra, at 141. That\na private party\xe2\x80\x99s political motives are selfish is irrelevant:\n\xe2\x80\x9cNoerr shields from the Sherman Act a concerted effort to\ninfluence public officials regardless of intent or purpose.\xe2\x80\x9d\nMine Workers v. Pennington, 381 U. S. 657, 670 (1965).\nNoerr recognized, however, what has come to be known as\nthe \xe2\x80\x9csham\xe2\x80\x9d exception to its rule: \xe2\x80\x9cThere may be situations\nin which a publicity campaign, ostensibly directed toward\ninfluencing governmental action, is a mere sham to cover\nwhat is actually nothing more than an attempt to interfere\ndirectly with the business relationships of a competitor and\nthe application of the Sherman Act would be justified.\xe2\x80\x9d 365\nU. S., at 144. The Court of Appeals concluded that the jury\nin this case could have found that COA\xe2\x80\x99s activities on\nbehalf of the restrictive billboard ordinances fell within this\nexception. In our view that was error.\nThe \xe2\x80\x9csham\xe2\x80\x9d exception to Noerr encompasses situations in\nwhich persons use the governmental process\xe2\x80\x93as opposed to\nthe outcome of that process\xe2\x80\x93as an anticompetitive weapon. A\nclassic example is the filing of frivolous objections to the\n\n256\n\n\x0clicense application of a competitor, with no expectation of\nachieving denial of the license but simply in order to\nimpose expense and delay. See California Motor Transport Co.\nv. Trucking Unlimited, 404 U. S. 508 (1972). A \xe2\x80\x9csham\xe2\x80\x9d\nsituation involves a defendant whose activities are \xe2\x80\x9cnot\ngenuinely aimed at procuring favorable government action\xe2\x80\x9d\nat all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.\nS. 496, 500, n. 4 (1988), not one \xe2\x80\x9cwho \xe2\x80\x98genuinely seeks to\nachieve his governmental result, but does so through improper\nmeans,\xe2\x80\x99\xe2\x80\x9d id., at 508, n. 10 (quoting Sessions Tank Liners, Inc. v.\nJoor Mfg., Inc., 827 F. 2d 458, 465, n. 5 (CA9 1987)).\nNeither of the Court of Appeals\xe2\x80\x99 theories for application of\nthe \xe2\x80\x9csham\xe2\x80\x9d exception to the facts of the present case is\nsound. The court reasoned, first, that the jury could have\nconcluded that COA\xe2\x80\x99s interaction with city officials \xe2\x80\x9c\xe2\x80\x98was\nactually nothing more than an attempt to interfere directly\nwith the business relations [sic] of a competitor.\xe2\x80\x99\xe2\x80\x9d 891 F. 2d,\nat 1139 (quoting Noerr, supra, at 144). This analysis relies\nupon language from Noerr, but ignores the import of the\ncritical word \xe2\x80\x9cdirectly.\xe2\x80\x9d Although COA indisputably set out\nto disrupt Omni\xe2\x80\x99s business relationships, it sought to do so\nnot through the very process of lobbying, or of causing the\ncity council to consider zoning measures, but rather\nthrough the ultimate product of that lobbying and\nconsideration, viz., the zoning ordinances. The Court of\nAppeals\xe2\x80\x99 second theory was that the jury could have found\n\xe2\x80\x9cthat COA\xe2\x80\x99s purposes were to delay Omni\xe2\x80\x99s entry into the\nmarket and even to deny it a meaningful access to the\nappropriate city administrative and legislative fora.\xe2\x80\x9d 891 F.\n2d, at 1139. But the purpose of delaying a competitor\xe2\x80\x99s\nentry into the market does not render lobbying activity a\n\xe2\x80\x9csham,\xe2\x80\x9d unless (as no evidence suggested was true here) the\ndelay is sought to be achieved only by the lobbying process\nitself, and not by the governmental action that the lobbying\nseeks. \xe2\x80\x9cIf Noerr teaches anything it is that an intent to\nrestrain trade as a result of the government action sought \xe2\x80\xa6\n\n257\n\n\x0cdoes not foreclose protection.\xe2\x80\x9d Sullivan, Developments in\nthe Noerr Doctrine, 56 Antitrust L. J. 361, 362 (1987). As\nfor \xe2\x80\x9cdeny[ing] \xe2\x80\xa6 meaningful access to the appropriate city\nadministrative and legislative fora,\xe2\x80\x9d that may render the\nmanner of lobbying improper or even unlawful, but does\nnot necessarily render it a \xe2\x80\x9csham.\xe2\x80\x9d We did hold in California\nMotor Transport, supra, that a conspiracy among private\nparties to monopolize trade by excluding a competitor\nfrom participation in the regulatory process did not enjoy\nNoerr protection. But California Motor Transport involved a\ncontext in which the conspirators\xe2\x80\x99 participation in the\ngovernmental process was itself claimed to be a \xe2\x80\x9csham,\xe2\x80\x9d\nemployed as a means of imposing cost and delay. (\xe2\x80\x9cIt is\nalleged that petitioners \xe2\x80\x98instituted the proceedings and\nactions \xe2\x80\xa6 with or without probable cause, and regardless\nof the merits of the cases.\xe2\x80\x99\xe2\x80\x9d 404 U. S., at 512.) The holding\nof the case is limited to that situation. To extend it to a\ncontext in which the regulatory process is being invoked\ngenuinely, and not in a \xe2\x80\x9csham\xe2\x80\x9d fashion, would produce\nprecisely that conversion of antitrust law into regulation of\nthe political process that we have sought to avoid. Any\nlobbyist or applicant, in addition to getting himself heard,\nseeks by procedural and other means to get his opponent\nignored. Policing the legitimate boundaries of such\ndefensive strategies, when they are conducted in the\ncontext of a genuine attempt to influence governmental\naction, is not the role of the Sherman Act. In the present\ncase, of course, any denial to Omni of \xe2\x80\x9cmeaningful access\nto the appropriate city administrative and legislative fora\xe2\x80\x9d\nwas achieved by COA in the course of an attempt to\ninfluence governmental action that, far from being a\n\xe2\x80\x9csham,\xe2\x80\x9d was if anything more in earnest than it should have\nbeen. If the denial was wrongful there may be other\nremedies, but as for the Sherman Act, the Noerr exemption\napplies.\n\n258\n\n\x0cOmni urges that if, as we have concluded, the \xe2\x80\x9csham\xe2\x80\x9d\nexception is inapplicable, we should use this case to\nrecognize another exception to Noerr immunity\xe2\x80\x93a\n\xe2\x80\x9cconspiracy\xe2\x80\x9d exception, which would apply when\ngovernment officials conspire with a private party to\nemploy government action as a means of stifling\ncompetition. We have left open the possibility of such an\nexception, see, e. g., Allied Tube, supra, at 502, n. 7, as have a\nnumber of Courts of Appeals. See, e. g., Oberndorf v. Denver,\n900 F. 2d 1434, 1440 (CA10 1990); First American Title Co. of\nSouth Dakota v. South Dakota Land Title Assn., 714 F. 2d\n1439, 1446, n. 6 (CA8 1983), cert. denied, 464 U. S. 1042\n(1984). At least one Court of Appeals has affirmed the\nexistence of such an exception in dicta, see Duke & Co. v.\nFoerster, 521 F. 2d 1277, 1282 (CA3 1975), and the Fifth\nCircuit has adopted it as holding, see Affiliated Capital Corp.\nv. Houston, 735 F. 2d 1555, 1566-1568 (1984) (en banc).\nGiving full consideration to this matter for the first time,\nwe conclude that a \xe2\x80\x9cconspiracy\xe2\x80\x9d exception to Noerr must\nbe rejected. We need not describe our reasons at length,\nsince they are largely the same as those set forth in Part II\nabove for rejecting a \xe2\x80\x9cconspiracy\xe2\x80\x9d exception to Parker. As\nwe have described, Parker and Noerr are complementary\nexpressions of the principle that the antitrust laws regulate\nbusiness, not politics; the former decision protects the\nStates\xe2\x80\x99 acts of governing, and the latter the citizens\xe2\x80\x99\nparticipation in government. Insofar as the identification of\nan immunity-destroying \xe2\x80\x9cconspiracy\xe2\x80\x9d is concerned, Parker\nand Noerr generally present two faces of the same coin. The\nNoerr-invalidating conspiracy alleged here is just the Parkerinvalidating conspiracy viewed from the standpoint of the\nprivate-sector participants rather than the governmental\nparticipants. The same factors which, as we have described\nabove, make it impracticable or beyond the purpose of the\nantitrust laws to identify and invalidate lawmaking that has\nbeen infected by selfishly motivated agreement with private\n\n259\n\n\x0cinterests likewise make it impracticable or beyond that\nscope to identify and invalidate lobbying that has produced\nselfishly motivated agreement with public officials. \xe2\x80\x9cIt\nwould be unlikely that any effort to influence legislative\naction could succeed unless one or more members of the\nlegislative body became \xe2\x80\xa6 \xe2\x80\x98co-conspirators\xe2\x80\x99\xe2\x80\x9d in some sense\nwith the private party urging such action, Metro Cable Co. v.\nCATV of Rockford, Inc., 516 F. 2d 220, 230 (CA7 1975). And\nif the invalidating \xe2\x80\x9cconspiracy\xe2\x80\x9d is limited to one that\ninvolves some element of unlawfulness (beyond mere\nanticompetitive motivation), the invalidation would have\nnothing to do with the policies of the antitrust laws. In\nNoerr itself, where the private party \xe2\x80\x9cdeliberately deceived\nthe public and public officials\xe2\x80\x9d in its successful lobbying\ncampaign, we said that \xe2\x80\x9cdeception, reprehensible as it is,\ncan be of no consequence so far as the Sherman Act is\nconcerned.\xe2\x80\x9d 365 U. S., at 145.\nIV\nUnder Parker and Noerr, therefore, both the city and COA\nare entitled to immunity from the federal antitrust laws for\ntheir activities relating to enactment of the ordinances. This\ndetermination does not entirely resolve the dispute before\nus, since other activities are at issue in the case with respect\nto COA. Omni asserts that COA engaged in private\nanticompetitive actions such as trade libel, the setting of\nartificially low rates, and inducement to breach of contract.\nThus, although the jury\xe2\x80\x99s general verdict against COA\ncannot be permitted to stand (since it was based on\ninstructions that erroneously permitted liability for seeking\nthe ordinances, see Sunkist Growers, Inc. v. Winckler & Smith\nCitrus Products Co., 370 U. S. 19, 29-30 (1962)), if the\nevidence was sufficient to sustain a verdict on the basis of\nthese other actions alone, and if this theory of liability has\nbeen properly preserved, Omni would be entitled to a new\ntrial.\n\n260\n\n\x0cThere also remains to be considered the effect of our\njudgment upon Omni\xe2\x80\x99s claim against COA under the South\nCarolina Unfair Trade Practices Act. The District Court\ngranted judgment notwithstanding the verdict on this claim\nas well as the Sherman Act claims; the Court of Appeals\nreversed on the ground that \xe2\x80\x9ca finding of conspiracy to\nrestrain competition is tantamount to a finding\xe2\x80\x9d that the\nSouth Carolina law had been violated, 891 F. 2d, at 1143.\nGiven our reversal of the \xe2\x80\x9cconspiracy\xe2\x80\x9d holding, that\nreasoning is no longer applicable.\nWe leave these remaining questions for determination by\nthe Court of Appeals on remand. The judgment of the\nCourt of Appeals is reversed, and the case is remanded for\nfurther proceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE\nMARSHALL join, dissenting.\nSection 1 of the Sherman Act provides in part: \xe2\x80\x9cEvery\ncontract, combination in the form of trust or otherwise, or\nconspiracy, in restraint of trade or commerce among the\nseveral States, or with foreign nations, is declared to be\nillegal.\xe2\x80\x9d 15 U. S. C. \xc2\xa7 1 (emphasis added). Although we have\npreviously recognized that a completely literal\ninterpretation of the word \xe2\x80\x9cevery\xe2\x80\x9d cannot have been\nintended by Congress,8 the Court today carries this\n\nConstruing the statute in the light of the common law concerning contracts in\nrestraint of trade, we have concluded that only unreasonable restraints are\nprohibited.\n8\n\n261\n\n\x0crecognition to an extreme by deciding that agreements\nbetween municipalities, or their officials, and private parties\nto use the zoning power to confer exclusive privileges in a\nparticular line of commerce are beyond the reach of \xc2\xa7 1.\nHistory, tradition, and the facts of this case all demonstrate\nthat the Court\xe2\x80\x99s attempt to create a \xe2\x80\x9cbetter\xe2\x80\x9d and less\ninclusive Sherman Act, cf. West Virginia University Hospitals,\nInc. v. Casey, 499 U. S. 83, 101 (1991), is ill advised.\nI\nAs a preface to a consideration of the \xe2\x80\x9cstate action\xe2\x80\x9d and socalled \xe2\x80\x9cNoerr-Pennington\xe2\x80\x9d exemptions to the Sherman Act, it\nis appropriate to remind the Court that one of the classic\ncommon-law examples of a prohibited contract in restraint\nof trade involved an agreement between a public official\n\xe2\x80\x9cOne problem presented by the language of \xc2\xa7 1 of the\nSherman Act is that it cannot mean what it says. The\nstatute says that \xe2\x80\x98every\xe2\x80\x99 contract that restrains trade is\nunlawful. But, as Mr. Justice Brandeis perceptively noted,\nrestraint is the very essence of every contract; read literally,\n\xc2\xa7 1 would outlaw the entire body of private contract law.\nYet it is that body of law that establishes the enforceability\nof commercial agreements and enables competitive\nmarkets\xe2\x80\x93indeed, a competitive economy\xe2\x80\x93 to function\neffectively.\n\xe2\x80\x9cCongress, however, did not intend the text of the\nSherman Act to delineate the full meaning of the statute\nor its application in concrete situations. The legislative\nhistory makes it perfectly clear that it expected the courts\nto give shape to the statute\xe2\x80\x99s broad mandate by drawing\non common-law tradition. The Rule of Reason, with its\norigins in common-law precedents long antedating the\nSherman Act, has served that purpose \xe2\x80\xa6 . [The Rule of\nReason] focuses directly on the challenged restraint\xe2\x80\x99s\nimpact on competitive conditions.\xe2\x80\x9d\n\nNational Society of Professional Engineers v. United States, 435 U. S. 679, 687-688\n(1978) (footnotes omitted).\nWe have also confined the Sherman Act\xe2\x80\x99s mandate by holding that the independent\nactions of the sovereign States and their officials are not covered by the language of\nthe Act. Parker v. Brown, 317 U. S. 341 (1943).\n\n262\n\n\x0cand a private party. The public official\xe2\x80\x93the Queen of\nEngland\xe2\x80\x93 had granted one of her subjects a monopoly in\nthe making, importation, and sale of playing cards in order\nto generate revenues for the crown. A competitor\nchallenged the grant in The Case of Monopolies, 11 Co. Rep.\n84, 77 Eng. Rep. 1260 (Q. B. 1602), and prevailed. Chief\nJustice Popham explained on behalf of the bench:\n\xe2\x80\x9cThe Queen was \xe2\x80\xa6 deceived in her\ngrant; for the Queen\xe2\x80\xa6 intended it to\nbe for the weal public, and it will be\nemployed for the private gain of the\npatentee, and for the prejudice of the\nweal public; moreover the Queen\nmeant that the abuse should be taken\naway, which shall never be by this\npatent, but potius the abuse will be\nincreased for the private benefit of the\npatentee, and therefore \xe2\x80\xa6 this grant is\nvoid jure Regio.\xe2\x80\x9d Id., at 87a; 77 Eng.\nRep., at 1264.\nIn the case before us today, respondent alleges that the city\nof Columbia, S. C., has entered into a comparable\nagreement to give the private petitioner a monopoly in the\nsale of billboard advertising. After a 3-week trial, a jury\ncomposed of citizens of the vicinage found that, despite the\ncity fathers\xe2\x80\x99 denials, there was indeed such an agreement,\npresumably motivated in part by past favors in the form of\npolitical advertising, in part by friendship, and in part by the\nexpectation of a beneficial future relationship\xe2\x80\x93and in any\ncase, not exclusively by a concern for the general public\ninterest.9 Today the Court acknowledges the\n\nThe jury returned its verdict pursuant to the following instructions given by the\nDistrict Court:\n9\n\n263\n\n\x0canticompetitive consequences of this and similar\nagreements but decides that they should be exempted from\nthe coverage of the Sherman Act because it fears that\nenunciating a rule that allows the motivations of public\nofficials to be probed may mean that innocent municipal\nofficials may be harassed with baseless charges. The\nholding evidences an unfortunate lack of confidence in our\njudicial system and will foster the evils the Sherman Act\nwas designed to eradicate.\nII\nThere is a distinction between economic regulation, on the\none hand, and regulation designed to protect the public\nhealth, safety, and environment. In antitrust parlance a\n\xe2\x80\x9cregulated industry\xe2\x80\x9d is one in which decisions about prices\nand output are made not by individual firms, but rather by\na public body or a collective process subject to\ngovernmental approval. Economic regulation of the motor\ncarrier and airline industries was imposed by the Federal\nGovernment in the 1930\xe2\x80\x99s; the \xe2\x80\x9cderegulation\xe2\x80\x9d of those\nindustries did not eliminate all the other types of regulation\nthat continue to protect our safety and environmental\nconcerns.\n\xe2\x80\x9cSo if by the evidence you find that that person involved\nin this case procured and brought about the passage of\nordinances solely for the purpose of hindering, delaying or\notherwise interfering with the access of the Plaintiff to the\nmarketing area involved in this case \xe2\x80\xa6 and thereby\nconspired, then, of course, their conduct would not be\nexcused under the antitrust laws.\n\xe2\x80\x9cSo once again an entity may engage in \xe2\x80\xa6 legitimate\nlobbying \xe2\x80\xa6 to procure legislati[on] even if the motive\nbehind the lobbying is anticompetitive.\n\xe2\x80\x9cIf you find Defendants conspired together with the\nintent to foreclose the Plaintiff from meaningful access to\na legitimate decision making process with regard to the\nordinances in question, then your verdict would be for the\nPlaintiff on that issue.\xe2\x80\x9d App. 81.\n\n264\n\n\x0cThe antitrust laws reflect a basic national policy favoring\nfree markets over regulated markets.10 In essence, the\nSherman Act prohibits private unsupervised regulation of\nthe prices and output of goods in the marketplace. That\nprohibition is inapplicable to specific industries which\nCongress has exempted from the antitrust laws and\nsubjected to regulatory supervision over price and output\ndecisions. Moreover, the so-called \xe2\x80\x9cstate-action\xe2\x80\x9d exemption\nfrom the Sherman Act reflects the Court\xe2\x80\x99s understanding\nthat Congress did not intend the statute to pre-empt a\nState\xe2\x80\x99s economic regulation of commerce within its own\nborders.\nThe contours of the state-action exemption are relatively\nwell defined in our cases. Ever since our decision in Olsen v.\nSmith, 195 U. S. 332 (1904), which upheld a Texas statute\nfixing the rates charged by pilots operating in the Port of\nGalveston, it has been clear that a State\xe2\x80\x99s decision to\ndisplace competition with economic regulation is not\nprohibited by the Sherman Act. Parker v. Brown, 317 U. S.\n341 (1943), the case most frequently identified with the\nstate-action exemption, involved a decision by California to\nsubstitute sales quotas and price control\xe2\x80\x93the purest form of\neconomic regulation\xe2\x80\x93for competition in the market for\nCalifornia raisins.\nIn Olsen, the State itself had made the relevant pricing\ndecision. In Parker, the regulation of the marketing of\n\xe2\x80\x9cThe Sherman Act reflects a legislative judgment that ultimately competition will\nproduce not only lower prices, but also better goods and services. \xe2\x80\x98The heart of our\nnational economic policy long has been faith in the value of competition.\xe2\x80\x99 Standard\nOil Co. v. FTC, 340 U. S. 231, 248 [(1951)]. The assumption that competition is the\nbest method of allocating resources in a free market recognizes that all elements of\na bargain\xe2\x80\x93quality, service, safety, and durability\xe2\x80\x93and not just the immediate cost,\nare favorably affected by the free opportunity to select among alternative offers.\nEven assuming occasional exceptions to the presumed consequences of\ncompetition, the statutory policy precludes inquiry into the question whether\ncompetition is good or bad.\xe2\x80\x9d National Society of Professional Engineers, 435 U. S., at\n695.\n10\n\n265\n\n\x0cCalifornia\xe2\x80\x99s 1940 crop of raisins was administered by state\nofficials. Thus, when a state agency, or the State itself,\nengages in economic regulation, the Sherman Act is\ninapplicable. Hoover v. Ronwin, 466 U. S. 558, 568-569\n(1984); Bates v. State Bar of Arizona, 433 U. S. 350, 360\n(1977).\nUnderlying the Court\xe2\x80\x99s recognition of this state-action\nexemption has been respect for the fundamental principle\nof federalism. As we stated in Parker, 317 U. S., at 351: \xe2\x80\x9cIn\na dual system of government in which, under the\nConstitution, the states are sovereign, save only as\nCongress may constitutionally subtract from their authority,\nan unexpressed purpose to nullify a state\xe2\x80\x99s control over its\nofficers and agents is not lightly to be attributed to\nCongress.\xe2\x80\x9d\nHowever, this Court recognized long ago that the\ndeference due States within our federal system does not\nextend fully to conduct undertaken by municipalities.\nRather, all sovereign authority \xe2\x80\x9cwithin the geographical\nlimits of the United States\xe2\x80\x9d resides with \xe2\x80\x9cthe Government\nof the United States, or [with] the States of the Union.\nThere exist within the broad domain of sovereignty but\nthese two. There may be cities, counties, and other\norganized bodies with limited legislative functions, but they\nare all derived from, or exist in, subordination to one or the\nother of these.\xe2\x80\x9d United States v. Kagama, 118 U. S. 375, 379\n(1886).\nUnlike States, municipalities do not constitute bedrocks\nwithin our system of federalism. And also unlike States,\nmunicipalities are more apt to promote their narrow\nparochial interests \xe2\x80\x9cwithout regard to extraterritorial impact\nand regional efficiency.\xe2\x80\x9d Lafayette v. Louisiana Power & Light\nCo., 435 U. S. 389, 404 (1978); see also The Federalist No.\n10 (J. Madison) (describing the greater tendency of smaller\nsocieties to promote oppressive and narrow interests above\nthe common good). \xe2\x80\x9cIf municipalities were free to make\n\n266\n\n\x0ceconomic choices counseled solely by their own parochial\ninterests and without regard to their anticompetitive effects,\na serious chink in the armor of antitrust protection would\nbe introduced at odds with the comprehensive national\npolicy Congress established.\xe2\x80\x9d Lafayette v. Louisiana Power &\nLight Co., 435 U. S., at 408. Indeed, \xe2\x80\x9c[i]n light of the serious\neconomic dislocation which could result if cities were free\nto place their own parochial interests above the Nation\xe2\x80\x99s\neconomic goals reflected in the antitrust laws, \xe2\x80\xa6 we are\nespecially unwilling to presume that Congress intended to\nexclude anticompetitive municipal action from their reach.\xe2\x80\x9d\nId., at 412-413.11\nNevertheless, insofar as municipalities may serve to\nimplement state policies, we have held that economic\nregulation administered by a municipality may also be\nexempt from Sherman Act coverage if it is enacted\npursuant to a clearly articulated and affirmatively expressed\nstate directive \xe2\x80\x9cto replace competition with regulation.\xe2\x80\x9d\nHoover, 466 U. S., at 569. However, the mere fact that a\nmunicipality acts within its delegated authority is not\nsufficient to exclude its anticompetitive behavior from the\nreach of the Sherman Act.\n\nIn Owen v. City of Independence, 445 U. S. 622 (1980), this Court recognized that\n\xe2\x80\x9cnotwithstanding [42 U. S. C.] \xc2\xa7 1983\xe2\x80\x99s expansive language and the absence of any\nexpress incorporation of common-law immunities, we have, on several occasions,\nfound that a tradition of immunity was so firmly rooted in the common law and\nwas supported by such strong policy reasons that \xe2\x80\x98Congress would have specifically\nso provided had it wished to abolish the doctrine.\xe2\x80\x99 Pierson v. Ray, 386 U. S. 547, 555\n(1967).\xe2\x80\x9d Id., at 637. Nevertheless, the Court refused to find a firmly established\nimmunity enjoyed by municipal corporations at common law for the torts of their\nagents. \xe2\x80\x9cWhere the immunity claimed by the defendant was well established at\ncommon law at the time [42 U. S. C.] \xc2\xa7 1983 was enacted, and where its rationale\nwas compatible with the purposes of the Civil Rights Act, we have construed the\nstatute to incorporate that immunity. But there is no tradition of immunity for\nmunicipal corporations, and neither history nor policy supports a construction of \xc2\xa7\n1983 that would justify\xe2\x80\x9d according them such immunity. Id., at 638. See also Will v.\nMichigan Dept. of State Police, 491 U. S. 58, 70 (1989) (\xe2\x80\x9cStates are protected by the\nEleventh Amendment while municipalities are not \xe2\x80\xa6\xe2\x80\x9d).\n11\n\n267\n\n\x0c\xe2\x80\x9cAcceptance of such a proposition\xe2\x80\x93that the general grant\nof power to enact ordinances necessarily implies state\nauthorization to enact specific anticompetitive ordinances\xe2\x80\x93\nwould wholly eviscerate the concepts of \xe2\x80\x98clear articulation\nand affirmative expression\xe2\x80\x99 that our precedents require.\xe2\x80\x9d\nCommunity Communications Co. v. Boulder, 455 U. S. 40, 56\n(1982).\nAccordingly, we have held that the critical decision to\nsubstitute economic regulation for competition is one that\nmust be made by the State. That decision must be\narticulated with sufficient clarity to identify the industry in\nwhich the State intends that economic regulation shall\nreplace competition. The terse statement of the reason why\nthe municipality\xe2\x80\x99s actions in Hallie v. Eau Claire, 471 U. S.\n34 (1985), was exempt from the Sherman Act illustrates the\npoint: \xe2\x80\x9cThey were taken pursuant to a clearly articulated\nstate policy to replace competition in the provision of\nsewage services with regulation.\xe2\x80\x9d Id., at 47.12\n\nContrary to the Court\xe2\x80\x99s reading of Hallie, our opinion in that case emphasized the\nindustry-specific character of the Wisconsin legislation in explaining why the\ndelegation satisfied the \xe2\x80\x9cclear articulation\xe2\x80\x9d requirement. At issue in Hallie was the\ntown\xe2\x80\x99s independent decision to refuse to provide sewage treatment services to\nnearby towns\xe2\x80\x93a decision that had been expressly authorized by the Wisconsin\nlegislation. 471 U. S., at 41. We wrote:\n12\n\n\xe2\x80\x9cApplying the analysis of Lafayette v. Louisiana Power &\nLight Co., 435 U. S. 389 (1978), it is sufficient that the\nstatutes authorized the City to provide sewage services and\nalso to determine the areas to be served.\xe2\x80\x9d Id., at 42.\n\xe2\x80\x9cNor do we agree with the Towns\xe2\x80\x99 contention that the\nstatutes at issue here are neutral on state policy. The\nTowns attempt to liken the Wisconsin statutes to the\nHome Rule Amendment involved in Boulder, arguing that\nthe Wisconsin statutes are neutral because they leave the\nCity free to pursue either anticompetitive conduct or freemarket competition in the field of sewage services. The\nanalogy to the Home Rule Amendment involved in\nBoulder is inapposite. That Amendment to the Colorado\nConstitution allocated only the most general authority to\nmunicipalities to govern local affairs. We held that it was\nneutral and did not satisfy the \xe2\x80\x98clear articulation\xe2\x80\x99\n\n268\n\n\x0cIII\nToday the Court adopts a significant enlargement of the\nstate-action exemption. The South Carolina statutes that\nconfer zoning authority on municipalities in the State do\nnot articulate any state policy to displace competition with\neconomic regulation in any line of commerce or in any\nspecific industry. As the Court notes, the state statutes were\nexpressly adopted to promote the \xe2\x80\x9c\xe2\x80\x98health, safety, morals or\nthe general welfare of the community,\xe2\x80\x99\xe2\x80\x9d see ante, at 370, n.\n3. Like Colorado\xe2\x80\x99s grant of \xe2\x80\x9chome rule\xe2\x80\x9d powers to the city\nof Boulder, they are simply neutral on the question whether\nthe municipality should displace competition with\neconomic regulation in any industry. There is not even an\narguable basis for concluding that the State authorized the\ncity of Columbia to enter into exclusive agreements with\nany person, or to use the zoning power to protect favored\ncitizens from competition.13 Nevertheless, under the guise\n\ncomponent of the state action test. The Amendment\nsimply did not address the regulation of cable television.\nUnder home rule the municipality was to be free to decide\nevery aspect of policy relating to cable television, as well as\npolicy relating to any other field of regulation of local\nconcern. Here, in contrast, the State has specifically\nauthorized Wisconsin cities to provide sewage services\nand has delegated to the cities the express authority to take\naction that foreseeably will result in anticompetitive\neffects. No reasonable argument can be made that these\nstatutes are neutral in the same way that Colorado\xe2\x80\x99s Home\nRule Amendment was.\xe2\x80\x9d Id., at 43.\n\nWe rejected the argument that the delegation was insufficient because it did not\nexpressly mention the foreseeable anticompetitive consequences of the city of Eau\nClaire\xe2\x80\x99s conduct, but we surely did not hold that the mere fact that incidental\nanticompetitive consequences are foreseeable is sufficient to immunize otherwise\nunauthorized restrictive agreements between cities and private parties.\nThe authority to regulate the \xe2\x80\x9c\xe2\x80\x98location, height, bulk, number of stories and size\nof buildings and other structures,\xe2\x80\x99\xe2\x80\x9d see ante, at 371, n. 3 (citation omitted), may of\ncourse have an indirect effect on the total output in the billboard industry, see ante,\nat 373-374, n. 4, as well as on a number of other industries, but the Court surely\nmisreads our cases when it implies that a general grant of zoning power represents\n13\n\n269\n\n\x0cof acting pursuant to a state legislative grant to regulate\nhealth, safety, and welfare, the city of Columbia in this case\nenacted an ordinance that amounted to economic\nregulation of the billboard market; as the Court recognizes,\nthe ordinance \xe2\x80\x9cobviously benefited COA, which already\nhad its billboards in place \xe2\x80\xa6 [and] severely hindered\nOmni\xe2\x80\x99s ability to compete.\xe2\x80\x9d Ante, at 368.\nConcededly, it is often difficult to differentiate economic\nregulation from municipal regulation of health, safety, and\nwelfare. \xe2\x80\x9cSocial and safety regulation have economic\nimpacts, and economic regulation has social and safety\neffects.\xe2\x80\x9d D. Hjelmfelt, Antitrust and Regulated Industries 3\n(1985). It is nevertheless important to determine when\npurported general welfare regulation in fact constitutes\neconomic regulation by its purpose and effect of displacing\ncompetition. \xe2\x80\x9cAn example of economic regulation which is\ndisguised by another stated purpose is the limitation of\nadvertising by lawyers for the stated purpose of protecting\nthe public from incompetent lawyers. Also, economic\nregulation posing as safety regulation is often encountered\nin the health care industry.\xe2\x80\x9d Id., at 3-4.\nIn this case, the jury found that the city\xe2\x80\x99s ordinance\xe2\x80\x93\nostensibly one promoting health, safety, and welfare\xe2\x80\x93was in\nfact enacted pursuant to an agreement between city officials\nand a private party to restrict competition. In my opinion\nsuch a finding necessarily leads to the conclusion that the\ncity\xe2\x80\x99s ordinance was fundamentally a form of economic\nregulation of the billboard market rather than a general\nwelfare regulation having incidental anticompetitive effects.\nBecause I believe our cases have wisely held that the\ndecision to embark upon economic regulation is a\nnondelegable one that must expressly be made by the State\nin the context of a specific industry in order to qualify for\na clearly articulated decision to authorize municipalities to enter into agreements to\ndisplace competition in every industry that is affected by zoning regulation.\n\n270\n\n\x0cstate-action immunity, see, e. g., Olsen v. Smith, 195 U. S. 332\n(1904) (Texas pilotage statutes expressly regulated both\nentry and rates in the Port of Galveston); Parker v. Brown,\n317 U. S. 341 (1943) (California statute expressly\nauthorized the raisin market regulatory program), I would\nhold that the city of Columbia\xe2\x80\x99s economic regulation of the\nbillboard market pursuant to a general state grant of zoning\npower is not exempt from antitrust scrutiny.14\nUnderlying the Court\xe2\x80\x99s reluctance to find the city of\nColumbia\xe2\x80\x99s enactment of the billboard ordinance pursuant\nto a private agreement to constitute unauthorized economic\nregulation is the Court\xe2\x80\x99s fear that subjecting the\nmotivations and effects of municipal action to antitrust\nscrutiny will result in public decisions being \xe2\x80\x9cmade subject\nto ex post facto judicial assessment of \xe2\x80\x98the public interest.\xe2\x80\x99\xe2\x80\x9d\nAnte, at 377. That fear, in turn, rests on the assumption that\n\xe2\x80\x9cit is both inevitable and desirable that public officials often\nagree to do what one or another group of private citizens\nurges upon them.\xe2\x80\x9d Ante, at 375.\nThe Court\xe2\x80\x99s assumption that an agreement between private\nparties and public officials is an \xe2\x80\x9cinevitable\xe2\x80\x9d precondition\nfor official action, however, is simply wrong.15 Indeed, I am\nA number of Courts of Appeals have held that a municipality which exercises its\nzoning power to further a private agreement to restrain trade is not entitled to\nstate-action immunity. See, e. g., Westborough Mall, Inc. v. Cape Girardeau, 693 F. 2d\n733, 746 (CA8 1982) (\xe2\x80\x9cEven if zoning in general can be characterized as \xe2\x80\x98state\naction,\xe2\x80\x99 \xe2\x80\xa6 a conspiracy to thwart normal zoning procedures and to directly injure\nthe plaintiffs by illegally depriving them of their property is not in furtherance of\nany clearly articulated state policy\xe2\x80\x9d); Whitworth v. Perkins, 559 F. 2d 378, 379 (CA5\n1977) (\xe2\x80\x9cThe mere presence of the zoning ordinance does not necessarily insulate\nthe defendants from antitrust liability where, as here, the plaintiff asserts that the\nenactment of the ordinance was itself a part of the alleged conspiracy to restrain\ntrade\xe2\x80\x9d).\n14\n\nNo such agreement was involved in Hallie v. Eau Claire, 471 U. S. 34 (1985). In\nthat case the plaintiffs challenged independent action\xe2\x80\x93the determination of the\nservice area of the city\xe2\x80\x99s sewage system\xe2\x80\x93that had been expressly authorized by\nWisconsin legislation. The absence of any such agreement provided the basis for\nour decision in Fisher v. Berkeley, 475 U. S. 260, 266-267 (1986) (\xe2\x80\x9cThe distinction\nbetween unilateral and concerted action is critical here\xe2\x80\xa6 . Thus, if the Berkeley\n15\n\n271\n\n\x0cpersuaded that such agreements are the exception rather\nthan the rule, and that they are, and should be, disfavored.\nThe mere fact that an official body adopts a position that is\nadvocated by a private lobbyist is plainly not sufficient to\nestablish an agreement to do so. See Fisher v. Berkeley, 475\nU. S. 260, 266-267 (1986); cf. Theatre Enterprises, Inc. v.\nParamount Film Distributing Corp., 346 U. S. 537, 541 (1954).\nNevertheless, in many circumstances, it would seem\nreasonable to infer\xe2\x80\x93as the jury did in this case\xe2\x80\x93that the\nofficial action is the product of an agreement intended to\nelevate particular private interests over the general good.\nIn this case, the city took two separate actions that\nprotected the local monopolist from threatened\ncompetition. It first declared a moratorium on any new\nbillboard construction, despite the city attorney\xe2\x80\x99s advice\nthat the city had no power to do so. When the moratorium\nwas invalidated in state-court litigation, it was replaced with\nan apparently valid ordinance that clearly had the effect of\ncreating formidable barriers to entry in the billboard\nmarket. Throughout the city\xe2\x80\x99s decisionmaking process in\nenacting the various ordinances, undisputed evidence\ndemonstrated that Columbia Outdoor Advertising, Inc.,\nhad met with city officials privately as well as publicly. As\nthe Court of Appeals noted: \xe2\x80\x9cImplicit in the jury verdict\nwas a finding that the city was not acting pursuant to the\ndirection or purposes of the South Carolina statutes but\nconspired solely to further COA\xe2\x80\x99s commercial purposes to\nthe detriment of competition in the billboard industry.\xe2\x80\x9d 891\nF. 2d 1127, 1133 (CA4 1989).\nJudges who are closer to the trial process than we are do\nnot share the Court\xe2\x80\x99s fear that juries are not capable of\nrecognizing the difference between independent municipal\naction and action taken for the sole purpose of carrying out\nOrdinance stabilizes rents without this element of concerted action, the program it\nestablishes cannot run afoul of \xc2\xa7 1\xe2\x80\x9d).\n\n272\n\n\x0can anticompetitive agreement for the private party.16 See, e.\ng., In re Japanese Electronic Products Antitrust Litigation, 631 F.\n2d 1069, 1079 (CA3 1980) (\xe2\x80\x9cThe law presumes that a jury\nwill find facts and reach a verdict by rational means. It does\nnot contemplate scientific precision but does contemplate a\nresolution of each issue on the basis of a fair and\nreasonable assessment of the evidence and a fair and\nreasonable application of the relevant legal rules\xe2\x80\x9d). Indeed,\nthe problems inherent in determining whether the actions\nof municipal officials are the product of an illegal\nagreement are substantially the same as those arising in\ncases in which the actions of business executives are\nsubjected to antitrust scrutiny.17\nThe difficulty of proving whether an agreement motivated\na course of conduct should not in itself intimidate this\nCourt into exempting those illegal agreements that are\nThe instructions in this case, fairly read, told the jury that the plaintiff should not\nprevail unless the ordinance was enacted for the sole purpose of interfering with\naccess to the market. See n. 2, supra. Thus, this case is an example of one of the\n\xe2\x80\x9cpolar extremes,\xe2\x80\x9d see ante, at 375, n. 5, that juries\xe2\x80\x93as well as Solomon\xe2\x80\x93can readily\nidentify. The mixed motive cases that concern the Court should present no\nproblem if juries are given instructions comparable to those given below. When the\nCourt describes my position as assuming that municipal action that was not\nprompted \xe2\x80\x9cexclusively by a concern for the general public interest\xe2\x80\x9d is enough to\ncreate antitrust liability, ibid., it simply ignores the requirement that the plaintiff\nmust prove that the municipal action is the product of an anticompetitive\nagreement with private parties. Contrary to our square holding in Fisher v. Berkeley,\n475 U. S. 260 (1986), today the Court seems to assume that municipal action which\nis not entirely immune from antitrust scrutiny will automatically violate the antitrust\nlaws.\n16\n\nThere are many obstacles to discovering conspiracies, but the most frequent\ndifficulties are three. First, price-fixers and similar miscreants seldom admit their\nconspiracy or agree in the open. Often, we can infer the agreement only from their\nbehavior. Second, behavior can sometimes be coordinated without any\ncommunication or other observable and reprehensible behavior. Third, the causal\nconnection between an observable, controllable act\xe2\x80\x93such as a solicitation or\nmeeting\xe2\x80\x93and subsequent parallel action may be obscure.\xe2\x80\x9d 6 P. Areeda, Antitrust\nLaw \xc2\xb6 1400, at 3-4 (1986). See also Turner, The Definition of Agreement under the\nSherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655\n(1962) (discussing difficulties of condemning parallel anticompetitive action absent\nexplicit agreement among the parties).\n17\n\n273\n\n\x0cproved by convincing evidence. Rather, the Court should, if\nit must, attempt to deal with these problems of proof as it\nhas in the past\xe2\x80\x93through heightened evidentiary standards\nrather than through judicial expansion of exemptions from\nthe Sherman Act. See, e. g., Matsushita Electric Industrial Co. v.\nZenith Radio Corp., 475 U. S. 574 (1986) (allowing summary\njudgment where a predatory pricing conspiracy in violation\nof the Sherman Act was founded largely upon\ncircumstantial evidence); Monsanto Co. v. Spray-Rite Service\nCorp., 465 U. S. 752, 768 (1984) (holding that a plaintiff in a\nvertical price-fixing case must produce evidence which\n\xe2\x80\x9ctends to exclude the possibility of independent action\xe2\x80\x9d).\nUnfortunately, the Court\xe2\x80\x99s decision today converts what\nshould be nothing more than an anticompetitive agreement\nundertaken by a municipality that enjoys no special status in\nour federalist system into a lawful exercise of public\ndecision-making. Although the Court correctly applies\nprinciples of federalism in refusing to find a \xe2\x80\x9cconspiracy\nexception\xe2\x80\x9d to the Parker state-action doctrine when a State\nacts in a nonproprietary capacity, it errs in extending the\nstate-action exemption to municipalities that enter into\nprivate anticompetitive agreements under the guise of\nacting pursuant to a general state grant of authority to\nregulate health, safety, and welfare. Unlike the previous\nlimitations this Court has imposed on Congress\xe2\x80\x99 sweeping\nmandate in \xc2\xa7 1, which found support in our common-law\ntraditions or our system of federalism, see n. 1, supra, the\nCourt\xe2\x80\x99s wholesale exemption of municipal action from\nantitrust scrutiny amounts to little more than a bold and\ndisturbing act of judicial legislation which dramatically\ncurtails the statutory prohibition against \xe2\x80\x9cevery\xe2\x80\x9d contract in\nrestraint of trade.18\n18\n\nAs the Court previously has noted:\n\xe2\x80\x9cIn 1972, there were 62,437 different units of local\ngovernment in this country. Of this number 23,885 were\nspecial districts which had a defined goal or goals for the\n\n274\n\n\x0cIV\nJust as I am convinced that municipal \xe2\x80\x9clawmaking that has\nbeen infected by selfishly motivated agreement with private\ninterests,\xe2\x80\x9d ante, at 383, is not authorized by a grant of\nzoning authority, and therefore not within the state-action\nexemption, so am I persuaded that a private party\xe2\x80\x99s\nagreement with selfishly motivated public officials is\nsufficient to remove the antitrust immunity that protects\nprivate lobbying under Eastern Railroad Presidents Conference v.\nNoerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine\nWorkers v. Pennington, 381 U. S. 657 (1965). Although I agree\nthat the \xe2\x80\x9csham\xe2\x80\x9d exception to the Noerr-Pennington rule\nexempting lobbying activities from the antitrust laws does\nnot apply to the private petitioner\xe2\x80\x99s conduct in this case for\nthe reasons stated by the Court in Part III of its opinion, I\nam satisfied that the evidence in the record is sufficient to\nsupport the jury\xe2\x80\x99s finding that a conspiracy existed between\nthe private party and the municipal officials in this case so\nas to remove the private petitioner\xe2\x80\x99s conduct from the\nscope of Noerr-Pennington antitrust immunity. Accordingly, I\nwould affirm the judgment of the Court of Appeals as to\nboth the city of Columbia and Columbia Outdoor\nAdvertising, Inc.\n\nprovision of one or several services, while the remaining\n38,552 represented the number of counties, municipalities,\nand townships, most of which have broad authority for\ngeneral governance subject to limitations in one way or\nanother imposed by the State. These units may, and do,\nparticipate in and affect the economic life of this Nation\nin a great number and variety of ways. When these bodies\nact as owners and providers of services, they are fully\ncapable of aggrandizing other economic units with which\nthey interrelate, with the potential of serious distortion of\nthe rational and efficient allocation of resources, and the\nefficiency of free markets which the regime of\ncompetition embodied in the antitrust laws is thought to\nengender.\xe2\x80\x9d Lafayette v. Louisiana Power & Light Co., 435 U.\nS. 389, 407-408 (1978) (footnotes omitted).\n\n275\n\n\x0cI respectfully dissent.\n3.6. Spot Zoning\nFrank S. Griswold v. City of Homer\n925 P.2d 1015 (Alaska 1996)\nFrank S. Griswold, Homer, pro se.\nGordon J. Tans, Perkins Coie, Anchorage, for Appellee.\nBefore MOORE, C.J., and RABINOWITZ, MATTHEWS,\nCOMPTON and EASTAUGH, JJ.\nEastaugh, Justice. I. INTRODUCTION\nIn 1992 the Homer City Council adopted Ordinance 92-18\namending Homer\xe2\x80\x99s zoning and planning code to allow\nmotor vehicle sales and services on thirteen lots in Homer\xe2\x80\x99s\nCentral Business District. Frank Griswold claims\nOrdinance 92-18 is invalid because it constitutes spot\nzoning. We affirm the superior court\xe2\x80\x99s rejection of that\nclaim. Griswold also claims the Ordinance is invalid\nbecause a council member with a personal interest\nimproperly participated in its adoption. We hold that the\ncouncil member should not have participated. We\nconsequently remand so the superior court can determine\nwhether that participation invalidates the Ordinance.\nFinally, we hold that Griswold is a public interest litigant\nwho cannot be assessed the City\xe2\x80\x99s attorney\xe2\x80\x99s fees and court\ncosts.II. FACTS AND PROCEEDINGSAlaska Statute\n29.40.020 requires that each first class borough establish a\nplanning commission which will prepare, submit, and\nimplement a comprehensive plan.1 This plan must be\n\n1\n\nAS 29.40.030 defines a comprehensive plan as follows:\n\n276\n\n\x0cadopted before the local government can adopt a zoning\nordinance. AS 29.40.020.040. A borough assembly \xe2\x80\x9c[i]n\naccordance with a comprehensive plan adopted under AS\n29.40.030 and in order to implement the plan \xe2\x80\xa6 shall\nadopt or amend provisions governing the use and\noccupancy of land.\xe2\x80\x9d AS 29.40.040. That statute requires the\nborough to implement the comprehensive plan by adopting\nprovisions governing land use, including zoning\nregulations. Id. A borough may delegate this responsibility\nand the planning power to a city within the borough, if the\ncity consents. AS 29.40.010(b). The Kenai Peninsula\nBorough delegated to the City of Homer the zoning\nauthority for areas within the City.\nThe City adopted a comprehensive land use plan in 1983\nand revised it in 1989. The City Council enacted zoning\nordinances to implement the plans. Motor vehicle sales and\nservices were not a permissible use within the Central\nBusiness District (CBD). Several businesses provided\nautomobile services in the CBD before the City adopted\nthe zoning ordinances. Those businesses were\n\xe2\x80\x9cgrandfathered\xe2\x80\x9d into the zoning district and allowed to\ncontinue to provide those services as nonconforming uses,\nso long as those uses did not extend beyond the original lot\nboundaries and the property owners did not discontinue\ntheir nonconforming uses for more than one year.\n[A] compilation of policy statements, goals, standards, and\nmaps for guiding the physical, social, and economic\ndevelopment, both private and public, of the first or\nsecond class borough, and may include, but is not limited\nto, the following:\n(1) statements of policies, goals, and standards;\n(2) a land use plan;\n(3) a community facilities plan;\n(4) a transportation plan; and\n(5) recommendations\ncomprehensive plan.\n\nfor\n\n277\n\nimplementation\n\nof\n\nthe\n\n\x0cGuy Rosi Sr. owns a parcel (Lot 13) in the CBD.2 Rosi Sr.\nhas continuously operated an automobile repair service on\nLot 13. His repair business remains a valid nonconforming\nuse in the CBD. Rosi Sr. also operated an automobile\ndealership on Lot 13 until sometime prior to 1990, but lost\nthe right to continue that nonconforming use on that lot by\ndiscontinuing the vehicle sales business for more than one\nyear.\nGuy Rosi Jr. owns Lot 12, which is adjacent to his father\xe2\x80\x99s\nlot. Lot 12 is also in the CBD; because it had never been\nused for automobile sales or services, these uses were not\ngrandfathered for Lot 12.\nIn 1986 the City received complaints that Lot 12 was being\nused for vehicle sales in violation of the zoning ordinance.\nIn May 1986 Rosi Jr. applied to the Homer Advisory\nPlanning Commission for a conditional use permit for Lot\n12. The commission denied the application. It found that\npublic services and facilities were adequate to serve the\nproposed use. The commission also found that automobile\nsales were not consistent with the purpose of the CBD;\nwere not in harmony with the Comprehensive Plan; would\nnegatively impact neighborhood character; but might not\nnegatively impact the value of adjoining property more than\npermitted uses.\nRosi Jr. then applied for a contract rezone under Homer\nCity Code (HCC) 21.63.020(c). The City granted the\napplication in 1986, rezoning Rosi Jr.\xe2\x80\x99s lot to General\nCommercial 1(GC1) and restricting its use to vehicle sales.\nGriswold does not challenge the Lot 12 contract rezone in\nthis litigation.\nRosi Sr.\xe2\x80\x99s Lot 13 was not affected by the Lot 12 contract\nrezone. In September 1990 Rosi Sr. requested that the\nAlthough the Borough\xe2\x80\x99s tax assessment records indicate that Guy Rosi Sr. owns\nonly part of Lot 13, the parties and the trial court have referred to his parcel as\n\xe2\x80\x9cLot 13.\xe2\x80\x9d We do the same.\n2\n\n278\n\n\x0cCBD be rezoned to allow vehicle sales and related services.\nIn August 1991 Rosi Sr., stating that he had not received\nany response to his earlier request, asked that Lot 13 be\nrezoned to allow vehicle sales and related services. During\nthis period, there were numerous zoning proposals and\npublic hearings regarding automobile-related services in the\nCBD, but some people spoke in favor of rezoning the area.\nIn January 1992 a commission memorandum informed the\nCity Manager that the commission had been wrestling with\nseveral possible amendments to the zoning code since\n1990, and that \xe2\x80\x9c[c]entral to the issue is the Commission\xe2\x80\x99s\ndesire to rezone the Guy Rosi property to allow for vehicle\nsales.\xe2\x80\x9d The commission noted that a proposed ordinance\nwould allow automobile-related services in the CBD only\non Main Street from Pioneer Avenue to the Homer Bypass,\nexcluding corner lots with frontage on Pioneer Avenue and\nthe Homer Bypass Road. However, the commission staff\nrecommended that the council pass an ordinance which\nwould allow automobile-related services \xe2\x80\x9ceverywhere in the\nCentral Business District or nowhere.\xe2\x80\x9d The memo stated\nthat the City Attorney felt the proposed ordinance would\nbe difficult to enforce and defend.\nIn April the City Council adopted Ordinance 92-18, which\namended HCC 21.48.020 by adding the following section:\nhh. Automobile and vehicle repair,\nvehicle maintenance, public garage,\nand motor vehicle sales, showrooms\nand sales lots, but only on Main Street\nfrom Pioneer Avenue to the Homer\nBypass Road, excluding corner lots\nwith frontage on Pioneer Avenue or\nthe Homer Bypass Road, be allowed as\na permitted use.\nThe Ordinance passed five-to-zero. One council member\nwas absent. Brian Sweiven was one of the council members\n\n279\n\n\x0cvoting for the amendment. He owned one of the thirteen\nlots on which automobile sales and services were to be\nallowed under Ordinance 92-18. Sweiven both lived on his\nlot and operated an appliance repair business there. In\n1994, stating he had a potential conflict of interest, he\nrefrained from voting on Ordinance 94-13, which would\nhave repealed subsection (hh). A week later he reversed\nthat position and voted not to repeal subsection (hh).\nFrank Griswold, the plaintiff in this case, owns an\nautomobile repair shop in the CBD. Its operation was\ngrandfathered in under the zoning code. He also lives in the\nCBD. Griswold\xe2\x80\x99s lot was not one of the thirteen lots\ndirectly affected by Ordinance 92-18. Griswold brought\nsuit against the City, alleging under several theories that\nOrdinance 92-18 is an invalid exercise of the City\xe2\x80\x99s zoning\npower and that Sweiven\xe2\x80\x99s participation in the adoption of\nOrdinance 92-18 invalidates the Ordinance. Following a\nbench trial, the superior court found against Griswold on\nall issues. It later ordered him to pay a portion of the City\xe2\x80\x99s\ncourt costs and attorney\xe2\x80\x99s fees. Griswold appeals.\nIII. DISCUSSION\nWe have repeatedly held that it is the role of elected\nrepresentatives rather than the courts to decide whether a\nparticular statute or ordinance is a wise one.3 Norene v.\nMunicipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985);\nSeward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299\n(Alaska 1982). In Concerned Citizens of S. Kenai Peninsula v.\nThis appeal concerns the validity of an enactment of a legislative body, rather than\na decision of a zoning board. See Concerned Citizens of S. Kenai Peninsula v. Kenai\nPeninsula Borough, 527 P.2d 447, 452 (Alaska 1974)(analyzing a Borough Assembly\xe2\x80\x99s\nordinance as a legislative enactment). We are here reviewing a superior court\njudgment rejecting claims that a municipal ordinance is invalid. We give\nindependent consideration to the legal conclusions of the superior court. Beesley v.\nVan Doren, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the superior court\xe2\x80\x99s\nfindings of fact unless they are clearly erroneous. In re R.K., 851 P.2d 62, 66 (Alaska\n1993).\n3\n\n280\n\n\x0cKenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), we\nstated:\nA court\xe2\x80\x99s inquiry into arbitrariness\nbegins with the presumption that the\naction of the legislature is proper. The\nparty claiming a denial of substantive\ndue process has the burden of\ndemonstrating that no rational basis\nfor the challenged legislation exists.\nThis burden is a heavy one, for if any\nconceivable legitimate public policy for\nthe enactment is apparent on its face\nor is offered by those defending the\nenactment, the opponents of the\nmeasure must disprove the factual\nbasis for such a justification.\n(Footnote omitted.) See also 6 Eugene McQuillan, Municipal\nCorporations \xc2\xa7 20.05, at 12 (3d ed. 1988) (\xe2\x80\x9cThe validity of an\nordinance will be upheld where there is room for a\ndifference of opinion \xe2\x80\x98even though the correctness of the\nlegislative judgment is doubtful.\xe2\x80\x99\xe2\x80\x9c) (quoting Western Springs\nv. Bernhagen, 326 Ill. 100, 156 N.E. 753, 754 (1927)).\nHowever, we will invalidate zoning decisions which are the\nresult of prejudice, arbitrary decision-making, or improper\nmotives. See South Anchorage Concerned Coalition v. Coffey, 862\nP.2d 168, 174 (Alaska 1993) (\xe2\x80\x9cIn reviewing zoning\ndecisions, courts generally try to guard against prejudice,\narbitrary decision-making, and improper motives.\xe2\x80\x9d) (citing\n3 Edward H. Ziegler Jr., Rathkoph\xe2\x80\x99s The Law of Zoning and\nPlanning \xc2\xa7 41.06, at 41-29, \xc2\xa7 41.14(3)(b), at 41-93 (1992)).\nSimilarly, a legislative body\xe2\x80\x99s zoning decision violates\nsubstantive due process if it has no reasonable relationship\nto a legitimate government purpose. Concerned Citizens of S.\nKenai Peninsula, 527 P.2d at 452. Moreover, another court\nhas noted, \xe2\x80\x9cThe dividing line between \xe2\x80\xa6 mere difference\nin opinion and what is arbitrary is the line between zoning\n\n281\n\n\x0cbased on objective factual evidence and zoning without a\nrational basis.\xe2\x80\x9d Smith v. County of Washington, 241 Or. 380,\n406 P.2d 545, 548 (1965) (citations omitted).4 In this case,\nGriswold argues that the City\xe2\x80\x99s Ordinance does not have a\nlegitimate basis but rather is arbitrary spot zoning.5\nWe have not previously had the opportunity to consider\nwhether a municipality\xe2\x80\x99s planning and zoning enactment is\ninvalid because it constitutes \xe2\x80\x9cspot zoning.\xe2\x80\x9d The City states\nthat \xe2\x80\x9cthis is not a case of \xe2\x80\x98spot zoning\xe2\x80\x99 at all\xe2\x80\x9d because the\narea in question remains zoned CBD. However, treatise\ndiscussions of spot zoning appear to make no distinction\nbetween cases where a zoning district has been reclassified\nand those where a new use without district reclassification\nis at issue. See, e.g., 1 Robert M. Anderson American Law of\nZoning 3d \xc2\xa7 5.12, at 358 (1986) (\xe2\x80\x9cThe common [spot\nzoning] situation is one in which an amendment is initiated\nat the request of an owner or owners who seek to establish\na use prohibited by the existing regulations.\xe2\x80\x9d). See also,\nBallenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624,\n627 (App. 1986) (applying spot zoning analysis in a case\nwhere the zoning district remained the same but the\npermitted uses within the district were expanded); Concerned\nCitizens of S. Kenai Peninsula, 527 P.2d at 452 (whether\nzoning decision violates substantive due process depends\non whether it has a reasonable relationship to a legitimate\npublic purpose).\n\nWe have held that, although a planning commission is not required to make\nspecific findings supporting its decisions, it must articulate reasons for its decisions\nsufficient to assist the parties preparing for review and to restrain agencies within\nthe bounds of their jurisdiction. South Anchorage Concerned Coalition v. Coffey, 862 P.2d\n168, 175 (Alaska 1993) (citing City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d\n870, 875 (Alaska 1985); and Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 562\n(Alaska 1981)).\n4\n\nGriswold also argues that the Ordinance is invalid because it is inconsistent with\nthe City\xe2\x80\x99s zoning code and comprehensive plan. We consider this argument in\nconjunction with our discussion of spot zoning.\n5\n\n282\n\n\x0cA. Claim of Spot ZoningThe \xe2\x80\x9cclassic\xe2\x80\x9d definition of spot\nzoning is \xe2\x80\x9cthe process of singling out a small parcel of land\nfor a use classification totally different from that of the\nsurrounding area, for the benefit of the owner of such\nproperty and to the detriment of other owners\xe2\x80\xa6.\xe2\x80\x9d\nAnderson, supra, \xc2\xa7 5.12, at 359 (quoting Jones v. Zoning Bd. of\nAdjustment of Long Beach, 32 N.J. Super. 397, 108 A.2d 498\n(1954)). Spot zoning \xe2\x80\x9cis the very antithesis of planned\nzoning.\xe2\x80\x9d Id.6 Courts have developed numerous variations of\nthis definition. Id. These variations have but minor\ndifferences and describe any zoning amendment which\n\xe2\x80\x9creclassifies a small parcel in a manner inconsistent with\nexisting zoning patterns, for the benefit of the owner and\nto the detriment of the community, or without any\nsubstantial public purpose.\xe2\x80\x9d Anderson, supra, \xc2\xa7 5.12, at 362.\nProfessor Ziegler states:\nFaced with an allegation of spot\nzoning, courts determine first whether\nthe rezoning is compatible with the\ncomprehensive plan or, where no plan\nexists, with surrounding uses. Courts\nthen examine the degree of public\nbenefit gained and the characteristics\nThe City argues that spot zoning should not be considered per se illegal, but\nmerely descriptive. Thus, whether spot zoning is valid or invalid would depend\nupon the facts of each case. See Chrismon v. Guilford County, 322 N.C. 611, 370\nS.E.2d 579, 588 (1988); Save Our Rural Env\xe2\x80\x99t v. Snohomish County, 99 Wash.2d 363,\n662 P.2d 816 (1983); Tennison v. Shomette, 38 Md. App. 1, 379 A.2d 187 (1977).\nHowever, we will follow the vast majority of jurisdictions which hold that, while\nnot all small-parcel zoning is illegal, spot zoning is per se illegal. See Chrismon, 370\nS.E.2d at 588 (noting that majority of jurisdictions regard spot zoning as a legal\nterm of art); 3 Edward H. Ziegler Jr., Rathkoph\xe2\x80\x99s The Law of Zoning and Planning \xc2\xa7\n28.01 n. 2 (4th ed. 1995) (compiling cases holding same); Anderson, supra, \xc2\xa7 5.12, at\n359 n. 46 (same).\n6\n\nThus, spot zoning is simply the legal term of art for a zoning decision which affects\na small parcel of land and which is found to be an arbitrary exercise of legislative\npower. Cf. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (\xe2\x80\x9c[T]he\nconstitutional guarantee of substantive due process assures only that a legislative\nbody\xe2\x80\x99s decision is not arbitrary but instead based upon some rational policy.\xe2\x80\x9d).\n\n283\n\n\x0cof land, including parcel size and other\nfactors\nindicating\nthat\nany\nreclassification should have embraced\na larger area containing the subject\nparcel rather than that parcel alone.\nNo one particular characteristic\nassociated with spot zoning, except a\nfailure to comply with at least the spirit\nof a comprehensive plan, is necessarily\nfatal to the amendment. Spot zoning\nanalysis depends primarily on the facts\nand circumstances of the particular\ncase. Therefore the criteria are flexible\nand provide guidelines for judicial\nbalancing of interests.\n3 Edward H. Ziegler Jr., Rathkoph\xe2\x80\x99s The Law of Zoning and\nPlanning \xc2\xa7 28.01, at 28-3 (4th ed. 1995).\nIn accord with the guidance offered by Professor Ziegler,\nin determining whether Ordinance 92-18 constitutes spot\nzoning, we will consider (1) the consistency of the\namendment with the comprehensive plan; (2) the benefits\nand detriments of the amendment to the owners, adjacent\nlandowners, and community; and (3) the size of the area\n\xe2\x80\x9crezoned.\xe2\x80\x9d1. Consistency with the comprehensive planJust\nas an ordinance which complies with a comprehensive plan\nmay still constitute an arbitrary exercise of a city\xe2\x80\x99s zoning\npower, Watson v. Town Council of Bernalillo, 111 N.M. 374,\n805 P.2d 641, 645 (App. 1991), nonconformance with a\ncomprehensive plan does not necessarily render a zoning\naction illegal. Anderson, supra, \xc2\xa7 5.06, at 339-40. However,\nconsistency with a comprehensive plan is one indication\nthat the zoning action in question has a rational basis and is\nnot an arbitrary exercise of the City\xe2\x80\x99s zoning power.\nHomer\xe2\x80\x99s comprehensive plan divides the city into several\nzoning areas. By its own terms, Homer\xe2\x80\x99s comprehensive\nplan is not intended to set specific land use standards and\n\n284\n\n\x0cboundaries; specific standards and boundaries are instead\nimplemented through the City\xe2\x80\x99s zoning ordinance. The plan\nstates, \xe2\x80\x9cThe City shall encourage a mix of\nbusiness/commercial and public/governmental activities in\nareas zoned or planned as central business district.\xe2\x80\x9d The\nplan states that the CBD is \xe2\x80\x9cintended primarily for retail\nsales and services occurring within enclosed structures.\xe2\x80\x9d\nThe plan\xe2\x80\x99s objectives for the CBD are (1) to guide growth\nand development to provide a centrally located business\nand commercial area and focal point for the community; (2)\nto encourage infilling of the area already designated CBD\nbefore expanding the area; (3) to promote a safe, attractive,\nand easily accessible business and commercial core for\npedestrian and vehicular visitors and residents; (4) to attract\nand accommodate a variety of uses to fill the business and\ncommercial needs of downtown Homer; and (5) to tie into\nstate and federal programs that beautify the business and\ncommercial core.\nGriswold does not dispute that the CBD is intended to\nallow commercial uses. He notes however, that although\nauto-related services are explicitly permitted in the General\nCommercial 1 District under HCC 21.49.020(d), the\nplanning commission previously denied a conditional use\npermit for auto-related services on Main Street, specifically\nfinding, inter alia, that automobile sales were not consistent\nwith the purpose of the CBD and were not in harmony\nwith the comprehensive plan. He also notes that the\ncomprehensive plan provides that the CBD was meant\nprimarily for retail sales and services occurring within\nenclosed structures. Further, the fact that the City began\nphasing out auto-related services in the CBD when it\nadopted the comprehensive plan, while simultaneously\nspecifically permitting these services in the General\nCommercial I District, indicates to Griswold that autorelated sales and services were, at least at one time,\nconsidered incompatible with the CBD.\n\n285\n\n\x0cThe superior court concluded that the Ordinance was\nconsistent with the comprehensive plan. In so concluding,\nit considered the policy statement implementing the\nOrdinance, and found that the Ordinance \xe2\x80\x9cencourages\nprivate investment and infilling\xe2\x80\x9d and \xe2\x80\x9cenhances convenient\naccess to other parts of the CBD which are designated for\nother uses.\xe2\x80\x9d It noted that Policy 4.1 provided: \xe2\x80\x9cThe City\nshall research the nature of land uses and CBD land use\nneeds and evaluate the need for subzones in the CBD.\xe2\x80\x9d\nGriswold points to trial evidence that the expansion of\nauto-related services in the CBD does not further all the\ngoals of the comprehensive plan, but he fails to\ndemonstrate that the superior court\xe2\x80\x99s finding \xe2\x80\x94 that the\nOrdinance is consistent with the plan \xe2\x80\x94 is clearly\nerroneous. Although the evidence presented by Griswold\nwould permit a finding that the City Council had believed in\n1986 that auto-related uses were incompatible with the\nCBD and the zoning ordinance as it then read, that\nevidence does not compel a finding that auto-related uses are\nin fact incompatible with the CBD or comprehensive plan,\nor that the City Council\xe2\x80\x99s 1992 change of opinion is\nunsupportable and arbitrary.\nThe superior court did not clearly err in making the\nfindings discussed above. The court permissibly relied on\nPolicy 4.1, which anticipates the type of action at issue here.\nThe comprehensive plan does not expressly prohibit\nautomobile sales or service establishments in the CBD. As\nthe City notes, motor vehicle sales are most appropriately\nclassified as a business and commercial use, for which the\nCBD was intended under the plan. Homer\xe2\x80\x99s city planner\ntestified at trial that the Ordinance is in accordance with\nHomer\xe2\x80\x99s comprehensive plan. We conclude that the\nsuperior court did not err in holding that Ordinance 92-18\nis consistent with the City\xe2\x80\x99s comprehensive plan.\n\n286\n\n\x0c2. Effect of small-parcel zoning on owner and\ncommunity\nPerhaps the most important factor in determining whether\na small-parcel zoning amendment will be upheld is whether\nthe amendment provides a benefit to the public, rather than\nprimarily a benefit to a private owner. See Anderson, supra,\n\xc2\xa7\xc2\xa7 5.13-5.14; Ziegler, supra, \xc2\xa7 28.03, \xc2\xa7 28.04, at 28-19\n(calling an amendment intended only to benefit the owner\nof the rezoned tract the \xe2\x80\x9cclassic case\xe2\x80\x9d of spot zoning).\nCourts generally do not assume that a zoning amendment is\nprimarily for the benefit of a landowner merely because the\namendment was adopted at the request of the landowner.\nAnderson, supra, \xc2\xa7 5.13, at 368. If the owner\xe2\x80\x99s benefit is\nmerely incidental to the general community\xe2\x80\x99s benefit, the\namendment will be upheld. Ziegler, supra, \xc2\xa7 28.04, at 28-19\nto 28-20. The City argues that Ordinance 92-18 serves the\ninterests of the general community rather than primarily the\ninterests of the Rosis. We agree.\na. Benefits\ncommunity\n\nand\n\ndetriments\n\nto\n\nthe\n\nGriswold argues that there are many negative aspects of the\nCity\xe2\x80\x99s decision to allow auto-related uses in the CBD.\nGriswold presented evidence that the neighborhood\ncharacter would be harmed by the zoning amendment. He\npresented evidence that a newspaper article quoted\nPlanning Commissioner Cushing as saying that public\nopinion was overwhelmingly against allowing auto-related\nservices in the CBD and that many Homer citizens\nexpressed the opinion that their homes and businesses\nwould be harmed by introducing auto-related services into\nthe area. A real estate agent testified that property in the\nCBD has a higher value than property in the GC1 District.\nMany jurisdictions, including this one, have held that\ninterests such as the preservation of neighborhood\n\n287\n\n\x0ccharacter, traffic safety, and aesthetics are legitimate\nconcerns. Barber v. Municipality of Anchorage, 776 P.2d 1035,\n1037 (Alaska) (holding the government\xe2\x80\x99s interest in\naesthetics is substantial and should be accorded respect),\ncert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267\n(1989); Cadoux v. Planning and Zoning Comm\xe2\x80\x99n of Weston, 162\nConn. 425, 294 A.2d 582, 584 (holding increased traffic a\nvalid reason to deny application for rezone), cert. denied, 408\nU.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972). Contrary to\nthe implication of the City\xe2\x80\x99s argument,7 these are tangible\nharms. Moreover, the City itself appears to be concerned\nabout the effects of auto-related services on property values\nand aesthetics, as evidenced by the council\xe2\x80\x99s findings\nsupporting its confinement of the zoning change to Main\nStreet,8 and the commission\xe2\x80\x99s earlier finding that use for\nautomobile sales would negatively impact neighborhood\ncharacter.\nHowever, despite this negative aspect of Ordinance 92-18,\nit appears that the Ordinance will result in genuine benefits\nfor the City of Homer. The City notes that before adopting\nOrdinance 92-18, for a year and a half it deliberated\nproposals which would allow auto-related uses in the CBD\nand delineated the many benefits which it believed the\nOrdinance will confer upon the community. These benefits\ninclude encouraging filling in vacant places in the CBD;\nincreasing the tax base and employment in the CBD;\nincreasing convenience and accessibility for local and\nregional customers for vehicle repairs or purchases; and\nThe City argues that Griswold could not show any \xe2\x80\x9cconcrete detriment\xe2\x80\x9d but\ninstead \xe2\x80\x9ccould only argue that car lots were not pleasant to look at, they didn\xe2\x80\x99t\nalleviate traffic, and other similar arguments.\xe2\x80\x9d\n7\n\nAt trial the City\xe2\x80\x99s planner testified that the Ordinance was restricted to Main\nStreet to avoid certain negative impacts in more tourist-oriented areas. These\nnegative impacts include traffic congestion, visual blight, detraction from the\npleasing aesthetic nature of Pioneer Avenue, and conflict with the comprehensive\nplan\xe2\x80\x99s goal of promoting sidewalks, pocket parks, and pedestrian amenities in the\nCBD.\n8\n\n288\n\n\x0cpromoting orderly growth and development in the CBD.9\nHomer\xe2\x80\x99s city planner testified that the Ordinance provides\na convenience to the public and guides growth and\ndevelopment to a centrally located area, while restricting\nsuch uses to areas away from tourists or to areas for visitors\nand pedestrians.\nNot all of the goals articulated by the City can be considered legitimate per se. For\nexample, any zoning change which eases restrictions on property use could be said\nto further the goal of \xe2\x80\x9cfilling in vacant places.\xe2\x80\x9d Similarly, increasing the tax base\nand the employment of a community is not automatically a legitimate zoning goal.\nSee Concerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill. App.3d 798, 32\nIll.Dec. 563, 568, 395 N.E.2d 944, 950 (1979) (an increase in the tax base of the\ncommunity as the primary justification for a rezone is \xe2\x80\x9ctotally violative of all the\nbasic principles of zoning\xe2\x80\x9d); Oakwood at Madison, Inc. v. Township of Madison, 117 N.J.\nSuper. 11, 283 A.2d 353, 357 (1971) (finding that \xe2\x80\x9cfiscal zoning per se is irrelevant to\nthe statutory purposes of zoning [although] \xe2\x80\x98alleviating tax burden is a permissible\nzoning purpose if done reasonably and in furtherance of a comprehensive plan)\n(citing Gruber v. Mayor and Tp. Committee of Raritan Tp., 39 N.J. 1, 186 A.2d 489, 493\n(1962))\xe2\x80\x99\xe2\x80\x9c; Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971)\n(allowing industrial development on only one site would be arbitrary spot zoning\ndespite the potential tax revenue the oil refinery would produce). Thus, the goal of\nincreasing the tax base and employment opportunities is usually legitimate only if\nthe ordinance is otherwise reasonable and in accordance with the comprehensive\nplan.\n9\n\nSome courts have allowed inconsistent small or single parcel rezoning in order to\nraise tax revenues or stimulate needed industry if the public receives higher tax\nrevenue or employment industries. Ziegler, supra, \xc2\xa7 28.04, at 28-20. Generally, the\nfacility being built must be indisputably needed, and the city must have secured\nassurance as to the existence and amount of increased employment and tax\nrevenue. For example, in Information Please Inc. v. County Comm\xe2\x80\x99rs of Morgan County, 42\nColo. App. 392, 600 P.2d 86 (1979), the county rezoned agricultural area to\nindustrial to accommodate an electric utility after determining the plant would add\n$46,000,000 to the tax base of the county, and provide approximately 250 jobs after\nit was completed. Id. 600 P.2d at 88. In Watson v. Town Council of Bernalillo, 111 N.M.\n374, 805 P.2d 641, 647 (App. 1991), the county made findings that the rezone\nwould employ eighty-seven people from the community and would produce tax\nrevenues constituting twenty-five percent of the city\xe2\x80\x99s budget. In Chrismon v.\nGuilford County, 322 N.C. 611, 370 S.E.2d 579, 590 (1988), the court approved the\nrezoning of two contiguous tracts from agricultural to conditional use industrial\ndistrict to facilitate expansion of an already-operating grain elevator. The court\nstated that the \xe2\x80\x9c[e]vidence clearly shows that [the owner\xe2\x80\x99s] operation is beneficial to\narea farmers.\xe2\x80\x9d Id. It also noted that spot zoning will be allowed even where the\nadjacent property owners object and the owner receives a greater benefit than\nothers if there is a community-wide need for the rezone. Id.\n\n289\n\n\x0cThe superior court stated that Ordinance 92-18 advances\nlegitimate legislative goals articulated in HCC 21.28.020\nincluding but not limited to regulating and limiting the\ndensity of populations; conserving and stabilizing the value\nof properties; providing adequate open spaces for light and\nair; preventing undue concentration of population;\nlessening congestion on streets and highways; and\npromoting health, safety and general welfare. The court\nfound \xe2\x80\x9cas a matter of fact and law that Ordinance No. 9218 bears a substantial relationship between legitimate\nlegislative goals and the means chosen to achieve those\ngoals.\xe2\x80\x9d\nGriswold has demonstrated that there are some negative\naspects of allowing auto-related uses in the CBD.\nNonetheless, giving proper deference to the City Council as\nlegislative policymaker and to the superior court as finder\nof fact, we cannot conclude that these detriments so\noutweigh the benefits of Ordinance 92-18 that we must\nhold the Ordinance was arbitrarily and capriciously\nadopted.\nb. Benefit to the landownerIt appears that initially the City\nwas primarily concerned with Rosi Sr.\xe2\x80\x99s interests.10 Rosi Sr.\ninitiated the inquiry into rezoning the CBD. Before the City\namended the zoning code, the planning commission chair\nstated that \xe2\x80\x9c[c]entral to the issue is the Commission\xe2\x80\x99s desire\nto rezone the Guy Rosi property to allow for vehicle sales.\xe2\x80\x9d\nIn 1991 commissioners \xe2\x80\x9cvoiced their dislike for spot\nzoning but felt it important to right a wrong [done to Mr.\nRosi].\xe2\x80\x9d The City planning staff stated that \xe2\x80\x9c\xe2\x80\x98spot zoning\xe2\x80\x99 is\nnot good planning; however there are extenuating\ncircumstances that support the proposed change in zone.\xe2\x80\x9d\nThe commission supported these conclusions with the\nfollowing findings of fact: (1) the property owner had\nCurrently, Rosi Jr.\xe2\x80\x99s lot is not affected by Ordinance 92-18 since that lot has been\ncontract rezoned to GC1.\n10\n\n290\n\n\x0cowned and operated a business on the property since the\nearly 1950\xe2\x80\x99s; (2) public testimony and response to staff were\npositive; (3) the City Attorney\xe2\x80\x99s response was positive; and\n(4) the business was an expensive business to establish and\nmaintain. This desire to accommodate the needs of a\nbusinessman who had been in the community for decades\nis understandable. Nevertheless, small-parcel zoning\ndesigned merely to benefit one owner constitutes\nunwarranted discrimination and arbitrary decision-making,\nunless the ordinance amendment is designed to achieve the\nstatutory objectives of the City\xe2\x80\x99s own zoning scheme, even\nwhere the purpose of the change is to bring a\nnonconforming use into conformance or allow it to\nexpand. See Speakman v. Mayor of N. Plainfield, 8 N.J. 250, 84\nA.2d 715, 718-19 (1951). Otherwise, the City would be\nforced either to discriminate arbitrarily among landowners\nseeking relaxed restrictions or to abandon the concept of\nplanned zoning altogether. Thus, if assisting Guy Rosi Sr.\nwas the primary purpose of the Ordinance, we would\ninvalidate it even if it was not the product of discriminatory\nanimus.\nHowever, it appears that the City Council was ultimately\nmotivated to pass the Ordinance because of the community\nbenefits the council perceived rather than because of the\nbenefit the Ordinance would confer upon Rosi Sr. The\nOrdinance restricted auto-related uses to one street not\nbecause its real intent was to benefit Rosi Sr.\xe2\x80\x99s property,\nbut, as Homer\xe2\x80\x99s city planner testified, because the City\ndesired to minimize the negative impact of auto-related\nuses, especially the impact of such uses on more pedestrian\nand tourist-oriented areas such as Pioneer Avenue. See also\nsupra note 7. Similarly, it appears that vacant lots located\nfarther from Pioneer Avenue were excluded not because\nRosi did not own these lots, but in an attempt to prevent\nurban sprawl by filling in vacant places in developed areas\nbefore expanding development. These reasons are\n\n291\n\n\x0clegitimate, nondiscriminatory justifications for enacting the\nOrdinance.3. Size of \xe2\x80\x9crezoned\xe2\x80\x9d areaOrdinance 92-18\ndirectly affects 7.29 acres.11 The size of the area reclassified\nhas been called \xe2\x80\x9cmore significant [than all other factors] in\ndetermining the presence of spot zoning.\xe2\x80\x9d Anderson, supra,\n\xc2\xa7 5.15, at 378. The rationale for that statement is that \xe2\x80\x9c[i]t is\ninherently difficult to relate a reclassification of a single lot\nto the comprehensive plan; it is less troublesome to\ndemonstrate that a change which affects a larger area is in\naccordance with a plan to control development for the\nbenefit of all.\xe2\x80\x9d Id. at 379.\nWe believe that the relationship between the size of\nreclassification and a finding of spot zoning is properly\nseen as symptomatic rather than causal, and thus that the\nsize of the area rezoned should not be considered more\nsignificant than other factors in determining whether spot\nzoning has occurred. A parcel cannot be too large per se to\npreclude a finding of spot zoning, nor can it be so small\nthat it mandates a finding of spot zoning. Although\nAnderson notes that reclassifications of parcels under three\nacres are nearly always found invalid, while reclassifications\nof parcels over thirteen acres are nearly always found valid,\nid., as Ziegler notes, the relative size of the parcel is\ninvariably considered by courts. Ziegler, supra, \xc2\xa7 28.04, at\n28-14. One court found spot zoning where the reclassified\nparcel was 635 acres in an affected area of 7,680 acres.\nChrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489,\n497 (1971).\nNor does the reclassification of more than one parcel\nnegate the possibility of finding spot zoning. Ziegler, supra,\n\xc2\xa7 28.04, at 28-15. In this case, there was some evidence that\nThere may be an immaterial discrepancy about the size of the reclassified area.\nThere was testimony Ordinance 92-18 affected 7.29 acres, but the trial court\xe2\x80\x99s\nmemorandum decision stated the affected lots contained about 7.44 acres. That\ndecision did not state that the exact size of the parcel was significant to its\ndetermination that the amendment does not constitute illegal spot zoning.\n11\n\n292\n\n\x0cthe reclassified area may have been expanded to avoid a\ncharge of spot zoning. Other courts have invalidated\nzoning amendments after finding that a multiple-parcel\nreclassification was a subterfuge to obscure the actual\npurpose of special treatment for a particular landowner. Id.\nSee Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d\n232, 235 (1958) (holding that the amendment is \xe2\x80\x9cno less\n\xe2\x80\x98spot zoning\xe2\x80\x99 by the inclusion of the additional six lots than\nit would be without them\xe2\x80\x9d where proponents of a zoning\nchange apparently anticipated a charge of spot zoning and\nenlarged the area to include the three lots on either side of\nthe lot in question).\nHomer\xe2\x80\x99s CBD is over 400 acres; the reclassified area is 7.29\nacres. The CBD appears to contain approximately 500 lots;\nthe reclassified area contains 13 lots. A comparison of the\nsize of the area rezoned and the size of the entire CBD is\nnot in itself sufficient to persuade us that the City\xe2\x80\x99s decision\nwas the product of prejudice, arbitrary decision-making, or\nimproper motives. South Anchorage Concerned Coalition v.\nCoffey, 862 P.2d 168, 174 (Alaska 1993).\nFurther, it is not necessarily appropriate to compare the\narea of the affected lots with that of the entire CBD. The\ncomprehensive plan recognized the possibility of subzones.\nThe City considered significant portions of the CBD to be\ninappropriate for automobile sales and services, particularly\nPioneer Avenue and the Bypass. Subtracting those areas\nfrom the entire CBD, the reclassified area on Main Street is\na relatively larger part of the remaining CBD.\nThus, having considered the relative size of the rezoned\narea in determining whether Ordinance 92-18 constituted\nspot zoning, we hold that the size of the area rezoned does\nnot require a finding of spot zoning given other factors\nsupporting a contrary conclusion. We conclude that the\nsuperior court did not err in finding that Ordinance 92-18\ndoes not constitute spot zoning.B. Claim of Conflict of\nInterestHomer City Council member Brian Sweiven owned\n\n293\n\n\x0cone of the thirteen lots in the reclassified area. He was one\nof nine owners directly affected by Ordinance 92-18. It\nappears that it was Sweiven who first recommended to the\ncommission that the rezone apply only to Main Street. An\narticle in the Homer News was titled \xe2\x80\x9cSweiven proposes\ncommercial zoning for downtown Homer.\xe2\x80\x9d The article\nrefers to the idea of rezoning Main Street as \xe2\x80\x9cSweiven\xe2\x80\x99s\nproposal.\xe2\x80\x9d Griswold alleges that Sweiven had a\ndisqualifying conflict of interest under Homer municipal\nlaw and that his participation in the adoption of Ordinance\n92-18 therefore invalidates the Ordinance, even though\nSweiven\xe2\x80\x99s vote was not necessary for passage. The superior\ncourt found that Sweiven did not have a disqualifying\nconflict of interest and that even if he had, his participation\nin the deliberations and vote would not invalidate\nOrdinance 92-18.\n[The court concluded there was a disqualifying conflict of\ninterest under the ordinance but that whether the vote\nshould be invalidated required analysis of facts not yet\nfound.]\nWe therefore remand so that the superior court, applying\nthe analysis discussed above, can determine whether\nOrdinance 92-18 must be invalidated.C. Public Interest\nLitigant StatusThe superior court found that Griswold was\nnot a public interest litigant. That finding was clearly\nerroneous because Griswold met all four criteria of a public\ninterest litigant in this case: (1) his lawsuit was designed to\neffectuate strong public policies; (2) if Griswold succeeded,\nnumerous people would have benefited from the lawsuit;\n(3) only a private party could be expected to bring the\naction; and (4) Griswold lacked sufficient economic\nincentive to bring the lawsuit if it did not also involve issues\nof general importance\xe2\x80\xa6.\nIV. CONCLUSION\n\n294\n\n\x0cWe hold that Ordinance 92-18 does not constitute spot\nzoning, and consequently AFFIRM that aspect of the\njudgment below. We hold, however, that council member\nSweiven had a conflict of interest which should have\ndisqualified him from participating in consideration of the\nOrdinance. We consequently REVERSE the court\xe2\x80\x99s finding\nthat there was no conflict of interest and REMAND so the\nsuperior court can determine whether the Ordinance must\nbe invalidated. We also REVERSE that portion of the\njudgment imposing costs and fees on Griswold.\nRABINOWITZ, JUSTICE, dissenting in part.I believe it is of\nparticular significance that Sweiven participated in the\ndiscussion of and voted for Ordinance 92-18.\n\xe2\x80\xa6.\nRather than remand this issue, I would hold Ordinance\n92-18 invalid because of council member Sweiven\xe2\x80\x99s\nparticipation.12\n\n12\n\nI note my agreement with the court\xe2\x80\x99s other holdings.\n\n295\n\n\x0cCovington v. The Town of Apex\n108 N.C. App. 231 (N.C. Ct. App. 1992)\nGrimes and Teich by S. Janson Grimes, Asheville, for\nplaintiffs-appellees.\nHolleman and Stam by Henry C. Fordham, Jr., Apex, for\ndefendants-appellants.\nJohnson, Judge.\nOn 26 March 1990, C & D Investment Company, Inc.\n(hereinafter C & D) petitioned the Town of Apex to rezone\nthe property located at 212 S. Salem Street, Apex, N.C.\nfrom Office & Institutional-1 to Conditional Use Business2. The rezoning was sought to permit electronic assembly\nby a prospective tenant, A & E Electronic, Inc. (hereinafter\nA & E), within the former post office building located on\nthe subject property.\nThe subject property is bordered by property zoned as\nfollows: to its immediate north by property zoned Office to\nits immediate east by property zoned Business-1; to its\nimmediate southeast by property zoned Business-2; to its\nimmediate south by property zoned Office & Institutional1; and to its immediate west by property zoned Residential6.\nOn 7 May 1990, the Apex Planning Board held a public\nhearing on the rezoning application. The Apex Planning\nDirector, David Rowland, recommended approval of the\nrezoning petition in his memorandum given to the\nPlanning Board and Board of Commissioners. On 4 June\n1990, the Planning Board voted 5-2 to recommend\napproval of the rezoning.\nOn 10 May 1990, several persons, including Donald W.\nGrimes who resides next to the subject property, submitted\na valid protest petition to the Town of Apex. The Apex\nBoard of Commissioners held public hearings on 15 May\n1990 and 5 June 1990. After hearing the testimony, the\n\n296\n\n\x0cboard voted 4-1 to amend the zoning ordinance to rezone\nthe subject property to a Conditional Use Business-2\ndistrict with the condition that use of the tract be restricted\nto the uses permitted in Office and Institutional-1 plus the\nuse of electronic assembly. The mayor executed the\nordinance effecting the rezoning on 19 June 1990. Plaintiffs\ninstituted this action.\nPlaintiffs filed suit in the Superior Court of Wake County.\nAfter defendants answered denying plaintiffs\xe2\x80\x99 allegations,\nplaintiffs filed a motion for summary judgment.\nDefendants also filed a motion for summary judgment. The\nHonorable Donald W. Stephens, Superior Court Judge,\ngranted plaintiffs\xe2\x80\x99 motion and denied defendants\xe2\x80\x99 motion.\nDefendants, the Town of Apex and the named\ncommissioners, gave timely notice of appeal.\n\xe2\x80\xa6.\n\xe2\x80\x9cZoning, as a definitional matter, is the regulation by a local\ngovernmental entity of the use of land within a given\ncommunity, and of the buildings and structures which may\nbe located thereon.\xe2\x80\x9d Chrismon v. Guilford County, 322 N.C.\n611, 617, 370 S.E.2d 579, 583 (1988). \xe2\x80\x9cA county\xe2\x80\x99s\nlegislative body has authority to rezone when reasonably\nnecessary to do so in the interests of the public health,\nsafety, morals or general welfare; ordinarily the only\nlimitation upon this authority is that it may not be exercised\narbitrarily or capriciously.\xe2\x80\x9d Nelson v. Burlington, 80 N.C.App.\n285, 287, 341 S.E.2d 739, 740-741 (1986). \xe2\x80\x9cA duly adopted\nzoning ordinance is presumed to be valid, and the burden is\nupon the plaintiff to establish its invalidity.\xe2\x80\x9d Id.\n\xe2\x80\xa6.\n\xe2\x80\x9cIn this case and indeed in any spot zoning case in North\nCarolina courts, two questions must be addressed by the\nfact finder: (1) did the zoning activity in the case constitute\nspot zoning as our courts have defined that term; and (2) if\nso, did the zoning authority make a clear showing of a\n\n297\n\n\x0creasonable basis for the zoning.\xe2\x80\x9d Chrismon, 322 N.C. at 625,\n370 S.E.2d at 588.\nThe North Carolina Supreme Court has defined spot\nzoning as\nA zoning ordinance, or amendment\nwhich singles out and reclassifies a\nrelatively small tract owned by a single\nperson and surrounded by a much\nlarger area uniformly zoned \xe2\x80\xa6 so as to\nrelieve the small tract from restrictions\nto which the rest of the area is\nsubjected is called spot zoning.\nDale v. Town of Columbus, 101 N.C.App. 335, 338, 399 S.E.2d\n350, 352 (1991); see Blades v. City of Raleigh, 280 N.C. 531,\n187 S.E.2d 35 (1972).\nAn essential element of spot zoning is a small tract of land\nowned by a single person and surrounded by a much larger\narea uniformly zoned. Plaintiffs\xe2\x80\x99 supporting materials\nshowed that the parcel of land was a small rectangular lot,\n100\xe2\x80\x99 \xc3\x97 275\xe2\x80\x99 in size, and owned by a single owner, C & D.\nThey also presented materials which showed that the vast\nmajority of the land surrounding the subject tract is\nuniformly zoned.\nThe Court of Appeals, in Mahaffey v. Forsyth County, 99\nN.C.App. 676, 394 S.E.2d 203 (1990), aff\xe2\x80\x99d., 328 N.C. 323,\n401 S.E.2d 365 (1991), stated that a tract must be examined\nrelative to the vast majority ofthe land immediately\nsurrounding it, not just a small isolated pocket of property.\nThe vast majority of the land in Mahaffey was zoned\nResidential-5 and Residential-6 while property 700 feet\ndown the highway was zoned Business-1. The Court found\nthat the property zoned Business-1 was an isolated pocket\nof spot zoning and held that the vast majority of the\nproperty surrounding the subject tract, absent the isolated\n\n298\n\n\x0cpocket of spot zoning, was uniformly zoned. Mahaffey, 99\nN.C.App. at 681, 394 S.E.2d at 206.\nIn the case sub judice, plaintiffs used zoning maps to show\nthat the subject tract is surrounded by a vast majority of\nproperty zoned either Residential-6 or Office &\nInstitutional. Property adjacent to the subject tract is zoned\nBusiness-1 and Business-2. The two isolated pockets of\nproperty zoned Business-1 and Business-2, at the time they\nwere implemented, were both surrounded by Residential-6\nand Office & Institutional zoning. The properties zoned\nBusiness-1 and Business-2 are themselves examples of spot\nzoning. On the basis that the property is surrounded by\nproperty uniformly zoned Residential-6 and Office &\nInstitutional, the zoning ordinance enacted by the Town of\nApex is spot zoning as defined by the North Carolina\nCourts.\nThe North Carolina Supreme Court, however, has\nestablished that spot zoning is not invalid per se. Chrismon,\n322 N.C. at 627, 370 S.E.2d at 589. If there is a reasonable\nbasis for the spot zoning in question, then the spot zoning\nis legal and therefore valid. \xe2\x80\x9cThe practice [of spot zoning] is\nnot invalid per se but is beyond the authority of the\nmunicipality or county and therefore void only in the\nabsence of a reasonable basis.\xe2\x80\x9d Id.\nThe North Carolina Supreme Court has enumerated several\nfactors that are relevant to a showing of the existence of a\nsufficient reasonable basis for spot zoning.\n1. The size of the tract in question.\n2. The compatibility of the disputed action with an\nexisting comprehensive zoning plan.\n3. The benefits and detriments for the owner, his\nneighbors and the surrounding community.\n\n299\n\n\x0c4. The relationship of the uses envisioned under the\nnew zoning and the uses currently present in adjacent\ntracts.\nChrismon, 322 N.C. at 628, 370 S.E.2d at 589.\nThe first factor is the size of the tract in question. Plaintiffs\nprovided evidence that the tract is a single rectangular lot,\n100\xe2\x80\x99 \xc3\x97 275\xe2\x80\x99 in size, with a one-story masonry building\ncontaining 3,780 square feet of net interior floor space. The\nlot is surrounded by residences on three sides and is\nuniformly zoned Residential-6 and Office & Institutional.\nThe second factor is the compatibility of the disputed\naction with an existing comprehensive zoning plan.\n\xe2\x80\x9cZoning generally must be accomplished in accordance\nwith a comprehensive plan in order to promote the general\nwelfare and serve the purpose of the enabling statute.\xe2\x80\x9d\nAlderman v. Chatham County, 89 N.C.App. 610, 615-616, 366\nS.E.2d 885, 889, disc. review denied, 323 N.C. 171, 373 S.E.2d\n103 (1988). The North Carolina General Statutes \xc2\xa7 153A341 (1983) addresses this issue:\nZoning regulations shall be made in\naccordance with a comprehensive\nplan[.] The regulations shall be made\nwith reasonable consideration as to,\namong other things, the character of\nthe district and its peculiar suitability\nfor particular uses, and with a view to\nconserving the value of buildings and\nencouraging the most appropriate use\nof land through the county\xe2\x80\xa6.\nIn the present case, a comprehensive zoning plan entitled\n2010 Land Use Plan was adopted on 5 December 1989.\nThe plan list several guidelines for future development in\nthe Town of Apex. The two that are relevant to this appeal\nare the following: (1) Use buffer areas and transitional\nzoning to protect adjacent existing residential development\n\n300\n\n\x0cand (2) Industrial uses should be located adjacent to or near\nthe major railroad corridors and away from residential\nareas. The 2010 land Use Map also provides that South\nSalem Street should continue to be zoned and developed\nfor Office & Institutional uses to provide a transition\nbetween residential and more intensive uses. Although the\nproperty is zoned Conditional Use Business-2 with the\nsame features as Office & Institutional, the uses to be\nemployed are industrial in nature. The Town of Apex\nenacted a zoning ordinance in direct contravention of its\ncomprehensive zoning plan.\nThe third relevant factor is the benefits and detriments to\nthe owner, his neighbors and the surrounding community.\nThe standard is not the advantage or\ndetriment to particular neighboring\nlandowners, but rather the effect upon\nthe entire community as a social,\neconomic and political unit. That\nwhich makes for the exclusive and\npreferential benefit of such particular\nlandowner, with no relation to the\ncommunity as a whole, is not a valid\nexercise of this sovereign power.\nChrismon, 322 N.C. at 629, 370 S.E.2d at 590, citing\nMansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150,\n198 A. 225, 233 (1938). The benefits to the owner are\nmonetary in nature. When C & D leased the premises to\nthe postal service in December 1989, the rent was\n$8,000.00 per year. The lease between C & D and A & E,\ndated 1 June 1990, fixed the rent at $18,000.00 per year. By\nleasing the premises to A & E, C & D will receive a\n$10,000.00 increase in rental profits. C & D will also benefit\nfrom the special conditions of the permit which required\nadditional streetscaping to be performed by the tenant\naround the subject property. The zoning change presents\nno detriment to C & D.\n\n301\n\n\x0cThe only benefit to the community provided by the zoning\nchange is one of an aesthetic nature. Again, the prospective\ntenant, in accordance with the conditions listed in the\nzoning ordinance, is obligated to perform streetscaping\naround the premises. No jobs will be created by the zoning\nchange nor services provided which would specifically\nbenefit the community. The main detriment to the\ncommunity would be the placement of an industrial use in\nan area where the property is used for residential and\nprofessional purposes.\nIn Chrismon, the Court considered the community\xe2\x80\x99s support\nof the rezoning ordinance in order to assess the benefit of\nthe zoning change to the community. In the case sub judice,\nthere was no support for the purported zoning change. In\nfact, sixty Apex residents signed a protest petition in\nopposition to the proposed zoning change.\nThe final factor listed by the Chrismon Court in determining\nwhether or not a reasonable basis exists for spot zoning\nfocuses on the compatibility of the uses envisioned in the\nrezoned tract with the uses already present in adjacent\ntracts. The use envisioned under the new zoning change is\nelectronic assembly. Present uses of property surrounding\nthe subject tract include: residential dwellings on three\nsides, medical offices, a bank, a pharmacy and a jewelry\nstore.\nPlaintiffs correctly contend that the use envisioned by A &\nE is a drastic change from the uses already present in the\nsurrounding area. Electronic assembly is manufacturing\nwhich is totally different from the various uses that are\nalready present in the surrounding areas. Ann Sears,\npresident of A & E, stated in her deposition that at various\ntimes automobiles, vans and tractor trailer trucks would\ncreate a flow of traffic in and out of the premises. This type\nof activity would totally destroy the tenor of the basically\nresidential and professional area. In Chrismon, the Court\ndeclared that \xe2\x80\x9crezoning of a parcel in an old and well\n\n302\n\n\x0cestablished residential district to a commercial or industrial\ndistrict would be clearly objectionable.\xe2\x80\x9d 322 N.C. at 631,\n370 S.E.2d at 591.\nFor the foregoing reasons, the trial court correctly\ngranted the plaintiffs\xe2\x80\x99 motion for summary judgment and\ndenied defendants\xe2\x80\x99 motion for summary judgment.\nAccordingly, we affirm\nChrismon v. Guildford County\n322 N.C. 611 (1988)\nGunn & Messick by Paul S. Messick, Jr., Pittsboro, for\nplaintiffs-appellees.\nSamuel Moore, Deputy Co. Atty., Greensboro, for\ndefendants-appellants Guilford County and Members of\nthe Bd. of Com\xe2\x80\x99rs of Guilford County.\nRalph A. Walker and Osteen, Adams & Tilley by William L.\nOsteen, Greensboro, for defendant-appellant Bruce Clapp.\nThomas A. McCormick, Jr., City Atty., City of Raleigh by\nIra J. Botvinick, Deputy City Atty., Raleigh, and Jesse L.\nWarren, City Atty., Greensboro, and Henry W. Underhill,\nJr., City Atty., Charlotte, amici curiae.MEYER, JUSTICE.This\nwas an action by plaintiffs for a declaratory judgment with\nregard to an amendment to the Guilford County, North\nCarolina, zoning ordinance. Specifically, plaintiffs sought a\njudgment declaring that the amendment to the ordinance\nadopted 20 December 1982 rezoning defendant Bruce\nClapp\xe2\x80\x99s 8.57 acres of land was unlawful and therefore void.\nThe principal issue presented on this appeal is whether the\ntrial court committed reversible error in affirming the\nvalidity of the rezoning in question. The Court of Appeals\nreversed, holding, first, that the rezoning in question\nconstituted illegal \xe2\x80\x9cspot zoning\xe2\x80\x9d and, second, that it also\nconstituted illegal \xe2\x80\x9ccontract zoning.\xe2\x80\x9d We hold that the\nCourt of Appeals erred in both of these conclusions, and\naccordingly, we reverse.\n\n303\n\n\x0cThe facts underlying the case are undisputed. Defendant\nBruce Clapp (who is not related to defendant Paul Clapp, a\nmember of the Guilford County Board of Commissioners)\nhad been operating a business on a 3.18-acre tract of\nproperty adjacent to his residence in Rock Creek\nTownship, Guilford County, since 1948. Mr. Clapp\xe2\x80\x99s\nbusiness consisted, first, of buying, drying, storing, and\nselling grain and, second, of selling and distributing lime,\nfertilizer, pesticides, and other agricultural chemicals. The\ndistinction between these two principal elements of Mr.\nClapp\xe2\x80\x99s business is important to the disposition of this case.\nIn 1964, Guilford County adopted a comprehensive zoning\nordinance. The ordinance zoned Mr. Clapp\xe2\x80\x99s 3.18-acre\ntract, as well as an extensive area surrounding his tract, as\n\xe2\x80\x9cA-1 Agricultural\xe2\x80\x9d (hereinafter \xe2\x80\x9cA-1\xe2\x80\x9d). Under this\nparticular zoning classification, one element of the\nbusiness\xe2\x80\x94 namely, the grain drying and storing\noperation\xe2\x80\x94constituted a permitted use. Significantly,\nhowever, the sale and distribution of the lime, fertilizer,\npesticides, and other agricultural chemicals were not uses\npermitted by the A-1 classification. However, because this\nlatter activity pre-existed the ordinance, Mr. Clapp was\nallowed to continue to sell agricultural chemicals on the\n3.18-acre tract adjacent to his own home. Under the\nordinance, though such sales constituted a nonconforming\nuse, the sales could be carried on, so long as they were not\nexpanded.\nIn 1969, plaintiffs William and Evelyn Chrismon bought a\ntract of land from Mr. Clapp and built a home there.\nPlaintiffs\xe2\x80\x99 lot is located at the south side of the intersection\nof North Carolina Highway 61 and Gun Shop Road.\nHighway 61 runs north and south, while Gun Shop Road, a\nsmall, unpaved road, begins at Highway 61 and runs east.\nMr. Clapp\xe2\x80\x99s residence is located on the north side of the\nintersection, directly across Gun Shop Road from plaintiffs\xe2\x80\x99\nresidence. Adjacent to plaintiffs\xe2\x80\x99 lot is an additional 5.06-\n\n304\n\n\x0cacre tract, also owned by Mr. Clapp. Prior to 1980, that\ntract had been used by its owner for the growing of\ntobacco.\nBeginning in 1980, however, Mr. Clapp moved some\nportion of his business operation from the 3.18-acre tract\nnorth of Gun Shop Road to the 5.06-acre tract south of\nGun Shop Road, directly adjacent to plaintiffs\xe2\x80\x99 lot.\nSubsequently, Mr. Clapp constructed some new buildings\non this larger tract, erected several grain bins, and generally\nenlarged his operation. Concerned by the increased noise,\ndust, and traffic caused by Mr. Clapp\xe2\x80\x99s expansion, plaintiffs\nfiled a complaint with the Guilford County Inspections\nDepartment. The Inspections Department subsequently\nnotified Mr. Clapp, by letter dated 22 July 1982, that the\nexpansion of the agricultural chemical operation to the larger\ntract adjacent to plaintiffs\xe2\x80\x99 lot constituted an impermissible\nexpansion of a nonconforming use. The same letter\ninformed Mr. Clapp further that, though his activity was\nimpermissible under the ordinance, should he so desire, he\ncould request a rezoning of the property.\nShortly thereafter, Mr. Clapp applied to have both of the\ntracts in question, the 3.18-acre tract north of Gun Shop\nRoad and the 5.06-acre tract south of Gun Shop Road,\nrezoned from A-1 to \xe2\x80\x9cConditional Use Industrial District\xe2\x80\x9d\n(hereinafter CU-M-2).1 He also applied for a conditional\nuse permit, specifying in the application that he would use\nthe property as it was then being used and listing those\nimprovements he would like to make in the next five years.\nUnder the CU-M-2 classification, Clapp\xe2\x80\x99s agricultural\nchemical operation would become a permitted use upon\nThe 3.18-acre tract and the 5.06-acre tract, taken together, do not correspond\nprecisely to the 8.57-acre total indicated in Mr. Clapp\xe2\x80\x99s rezoning request. The\nrecord reveals that the additional .33 acre in question corresponds to land adjacent\nto one of the tracts for which Mr. Clapp had an option to buy. We make this\nexplanation for the sake of clarity only; it is not relevant to the disposition of the\ncase.\n1\n\n305\n\n\x0cthe issuance of the conditional use permit. The Guilford\nCounty Planning Board met on 8 September 1982 and\nvoted to approve the recommendation of the Planning\nDivision that the property be rezoned consistent with Mr.\nClapp\xe2\x80\x99s request.\nOn 20 December 1982, pursuant to appropriate notice, the\nGuilford County Board of Commissioners held a public\nhearing concerning Mr. Clapp\xe2\x80\x99s rezoning application.\nMembers of the Board heard statements from Mr. Clapp,\nfrom plaintiffs, and, also, from plaintiffs\xe2\x80\x99 attorney. Several\nadditional persons had previously spoken in favor of Mr.\nClapp\xe2\x80\x99s rezoning request at earlier Board meetings, stating\nthat Mr. Clapp\xe2\x80\x99s business provided a service to the farmers\nin the immediate vicinity. The Board had also been\npresented with a petition signed by eighty-eight persons\nfavoring the rezoning. Having considered the matter, the\nBoard members voted to rezone the tracts in question from\nA-1 to CU-M-2, and as a part of the same resolution, they\nalso voted to approve the conditional use permit\napplication.\nPursuant to this decision by the County to rezone the\nproperty in question, plaintiffs brought this action seeking\nto have both the zoning amendment and the conditional\nuse permit declared invalid. After a trial without a jury, the\ntrial court found, among other things, that the sale and\ndistribution of the agricultural chemicals were uses\ncompatible with the agricultural needs of the surrounding\narea. The trial court concluded further that the rezoning\nwas neither \xe2\x80\x9cspot zoning\xe2\x80\x9d nor \xe2\x80\x9ccontract zoning\xe2\x80\x9d and also\nthat the County had not acted arbitrarily in making its\ndecision. The trial court made neither findings of fact nor\nconclusions of law with regard to the issuance of the\nconditional use permit.\nAs indicated above, the Court of Appeals reversed the\ndecision of the trial court. It held, first, that the rezoning at\nissue in this case\xe2\x80\x94namely, the rezoning of Mr. Clapp\xe2\x80\x99s 8.57\n\n306\n\n\x0cacres from A-1 to CU-M-2\xe2\x80\x94constituted an illegal form of\n\xe2\x80\x9cspot zoning\xe2\x80\x9d and was therefore void. It so held for three\nprincipal reasons: (1) the rezoning was not called for by any\nchange of conditions on the land; (2) the rezoning was not\ncalled for by the character of the district and the particular\ncharacteristics of the area being rezoned; and (3) the\nrezoning was not called for by the classification and use of\nnearby land. The Court of Appeals further held that the\nmere fact that the uses actually authorized were not, in and\nof themselves, incompatible with the general area was not\nsufficient to support the trial court\xe2\x80\x99s finding of no illegal\nspot zoning on these facts.\nThe Court of Appeals held, second, that the rezoning in\nquestion also constituted illegal \xe2\x80\x9ccontract zoning\xe2\x80\x9d and was\ntherefore also void for that alternative reason. Here, stated\nthe Court of Appeals, the rezoning was accomplished upon\nthe assurance that Mr. Clapp would submit an application\nfor a conditional use permit specifying that he would use\nthe property only in a certain manner. The Court of\nAppeals concluded that, in essence, the rezoning here was\naccomplished through a bargain between the applicant and\nthe Board rather than through a proper and valid exercise\nof Guilford County\xe2\x80\x99s legislative discretion. According to\nthe Court of Appeals, this activity constituted illegal\n\xe2\x80\x9ccontract zoning\xe2\x80\x9d and was therefore void.\nPursuant to N.C.G.S. \xc2\xa7 7A-31, and because this Court was\nconvinced that this cause involves legal principles of major\nsignificance to the jurisprudence of this State, we allowed\ndefendants\xe2\x80\x99 petition for discretionary review of the Court\nof Appeals\xe2\x80\x99 decision. The questions plainly before us are\nthese: first, did the rezoning of defendant Clapp\xe2\x80\x99s tract\nfrom A-1 to CU-M-2 by the Guilford County Board of\nCommissioners constitute illegal spot zoning; and second,\ndid the same rezoning constitute illegal contract zoning.\nThe Court of Appeals answered each question in the\n\n307\n\n\x0caffirmative. We conclude that the correct answer to both\nquestions is \xe2\x80\x9cno.\xe2\x80\x9d\n\xe2\x80\xa6.\nWe turn now to the question of spot zoning. As we noted\nabove, in its opinion below, the Court of Appeals held that\nthe rezoning at issue here\xe2\x80\x94namely, the rezoning of Mr.\nClapp\xe2\x80\x99s two tracts from A-1 to CU-M-2\xe2\x80\x94constituted an\nillegal form of \xe2\x80\x9cspot zoning\xe2\x80\x9d and was therefore void. In\narriving at its holding, the Court of Appeals concluded that\nGuilford County had \xe2\x80\x9cfailed to show a reasonable basis\xe2\x80\x9d\nfor the rezoning in question and cited three principal\nreasons for its conclusion: (1) the rezoning was not called\nfor by any change of conditions on the land; (2) the\nrezoning was not called for by the character of the district\nand the particular characteristics of the area being rezoned;\nand (3) the rezoning was not called for by the classification\nand use of nearby land.\nWhile this Court agrees with some portions of the analysis\nemployed by the Court of Appeals, we must disagree with\nthat court\xe2\x80\x99s final conclusion. In our firmly held view, the\nrezoning accomplished in this case, while admittedly\nconstituting a form of spot zoning, constituted a legal, and\nnot an illegal form of spot zoning. Notwithstanding the\nCourt of Appeals\xe2\x80\x99 conclusion to the contrary, we find that,\non the facts of this case, the county did show a reasonable\nbasis for the rezoning at issue. Moreover, while this is a\ncase of first impression in that it involves the practice of\nconditional use zoning, we find our result to be consistent\nwith related zoning cases from other jurisdictions.\nAccordingly, the Court of Appeals is reversed on this\nquestion.\nWe note as an initial matter that there is substantial\ndisagreement amongst jurisdictions across the nation as to\nboth the proper definition of and the legal significance of\nthe term \xe2\x80\x9cspot zoning.\xe2\x80\x9d Jurisdictions have essentially\n\n308\n\n\x0cdivided into two distinct camps. One group, the majority of\njurisdictions, regards the term \xe2\x80\x9cspot zoning\xe2\x80\x9d as a legal term\nof art referring to a practice which is per se invalid. See 2 A.\nRathkopf & D. Rathkopf, The Law of Zoning and Planning \xc2\xa7\n28.01 (4th ed. 1987); 1 R. Anderson, American Law of Zoning\n\xc2\xa7 5.12 (3d ed. 1986); 2 E. Yokley, Zoning Law and Practice \xc2\xa7\n13-3 (4th ed. 1978). In such jurisdictions, a judicial\ndetermination that a given rezoning action constitutes spot\nzoning is, ipso facto, a determination that the rezoning\naction is void.\nThe position of this first group has been described by one\ncommentator as follows:\nSpot zoning amendments are those\nwhich by their terms single out a\nparticular lot or parcel of land, usually\nsmall in relative size, and place it in an\narea the land use pattern of which is\ninconsistent with the small lot or\nparcel so placed, thus projecting an\ninharmonious land use pattern. Such\namendments are usually triggered by\nefforts to secure special benefits for\nparticular property owners, without\nproper regard for the rights of adjacent\nlandowners. These are the real spot\nzoning situations. Under no circumstances\ncould the tag of validity be attached thereto.\n2 E. Yokley, Zoning Law and Practice \xc2\xa7 13-3 at 207 (4th ed.\n1978) (emphasis added).\nA somewhat smaller group of jurisdictions, including our\nown, has taken a different approach. In these jurisdictions,\nit has been stated that \xe2\x80\x9cspot zoning\xe2\x80\x9d is a descriptive term\nmerely, rather than a legal term of art, and that spot zoning\npractices may be valid or invalid depending upon the facts\nof the specific case. See 2 E. Yokley, Zoning Law and Practice\n\xc2\xa7 13-5 (4th ed. 1978); 2 A. Rathkopf & D. Rathkopf, The\n\n309\n\n\x0cLaw of Zoning and Planning \xc2\xa7 28.01 n. 1 (4th ed. 1987). See also\nTennison v. Shomette, 38 Md.App. 1, 379 A.2d 187 (1977);\nSave Our Rural Environment v. Snohomish County, 99 Wash.2d\n363, 662 P.2d 816 (1983) (holding that the practice of spot\nzoning is not invalid per se). Unlike in the majority of\njurisdictions, in these jurisdictions, a spot zoning case\nposes, not merely the lone question of whether what\noccurred on the facts constituted spot zoning. It also poses\nthe additional question of whether the zoning action, if\nspot zoning, was of the legal or illegal variety.\nWe are firmly amongst this latter group of jurisdictions\nwhich has held that spot zoning is not invalid per se. For\nexample, in this Court\xe2\x80\x99s opinion in Blades v. City of Raleigh,\n280 N.C. 531, 187 S.E.2d 35 (1972), we defined \xe2\x80\x9cspot\nzoning\xe2\x80\x9d as follows:\nA zoning ordinance, or amendment,\nwhich singles out and reclassifies a\nrelatively small tract owned by a single\nperson and surrounded by a much\nlarger area uniformly zoned, so as to\nimpose upon the small tract greater\nrestrictions than those imposed upon\nthe larger area, or so as to relieve the\nsmall tract from restrictions to which\nthe rest of the area is subjected, is\ncalled \xe2\x80\x9cspot zoning.\xe2\x80\x9d\nId. at 549, 187 S.E.2d at 45. However, having so defined\nthe practice, we hastened to add that the practice is not\ninvalid per se but, rather, that it is beyond the authority of\nthe municipality or county and therefore void only \xe2\x80\x9cin the\nabsence of a clear showing of a reasonable basis\xe2\x80\x9d therefor.\nId.\nAccordingly, in this case, and indeed in any spot zoning\ncase in North Carolina courts, two questions must be\naddressed by the finder of fact: (1) did the zoning activity in\n\n310\n\n\x0cthe case constitute spot zoning as our courts have defined\nthat term; and (2) if so, did the zoning authority make a\nclear showing of a reasonable basis for the zoning. In the\ncase at bar, since the action by the Board was so clearly\nspot zoning under the Blades definition, this two-part\ninquiry can quickly be narrowed to the lone question of\nwhether there is a clear showing of a reasonable basis. As\nthe Court of Appeals quite correctly stated in its opinion\nbelow in this case:\nThe rezoning amendment here clearly\nconstitutes spot zoning. The rezoned\narea was only 8.57 acres and was\nuniformly surrounded by property\nzoned A-1. The remaining question then is\nwhether there was a reasonable basis for the\ncounty\xe2\x80\x99s action in spot zoning the 8.57 acre\ntract.\nChrismon v. Guilford County, 85 N.C. App. 211, 215, 354\nS.E.2d 309, 312 (emphasis added).\nIt is at this point, however, that we differ with the decision\nof the Court of Appeals. As we stated above, in its opinion,\nthe Court of Appeals concluded, after considering several\ndifferent factors, that the Board of County Commissioners\nhad failed to clearly demonstrate a reasonable basis for its\nzoning action and, further, that the action was therefore\nvoid. With due respect, we find the analysis employed by\nthe Court of Appeals to be flawed. In the view of this\nCourt, the Board did in fact clearly show a reasonable basis\nfor its rezoning of Mr. Clapp\xe2\x80\x99s two tracts from A-1 to CUM-2. We are particularly persuaded, first, by the degree of\npublic benefit created by the zoning action here and,\nsecond, by the similarity of the proposed use of the tracts\nunder the new conditional use zone to the uses in the\nsurrounding A-1 areas.\n\n311\n\n\x0cAt the outset, we note that a judicial determination as to\nthe existence or nonexistence of a sufficient reasonable\nbasis in the context of spot zoning is, and must be, the\n\xe2\x80\x9cproduct of a complex of factors.\xe2\x80\x9d 1 R. Anderson, American\nLaw of Zoning \xc2\xa7 5.13 at 364 (3d ed. 1986). The possible\n\xe2\x80\x9cfactors\xe2\x80\x9d are numerous and flexible, and they exist to\nprovide guidelines for a judicial balancing of interests. 2 A.\nRathkopf & D. Rathkopf, The Law of Zoning and Planning \xc2\xa7\n28.01 (4th ed. 1987). Among the factors relevant to this\njudicial balancing are the size of the tract in question; the\ncompatibility of the disputed zoning action with an existing\ncomprehensive zoning plan; the benefits and detriments\nresulting from the zoning action for the owner of the newly\nzoned property, his neighbors, and the surrounding\ncommunity; and the relationship between the uses\nenvisioned under the new zoning and the uses currently\npresent in adjacent tracts. See id.; 1 R. Anderson, American\nLaw of Zoning \xc2\xa7 5.13 (3d ed. 1986). Once again, the criteria\nare flexible, and the specific analysis used depends on the\nfacts and circumstances of a particular case. 2 A. Rathkopf\n& D. Rathkopf, The Law of Planning and Zoning \xc2\xa7 28.01 (4th\ned. 1987).\nTurning our attention to the case before us, we find the\nlatter two of the above-mentioned factors to argue\nforcefully for the proposition that the rezoning activity here\nwas supported by a reasonable basis. First, the relative\nbenefits and detriments accruing to Mr. Clapp, Mr.\nChrismon, and the surrounding area as a result of the\nrezoning are instructive. It has been stated that the true vice\nof illegal spot zoning is in its inevitable effect of granting a\ndiscriminatory benefit to one landowner and a\ncorresponding detriment to the neighbors or the\ncommunity without adequate public advantage or\njustification. 2 E. Yokley, Zoning Law and Practice \xc2\xa7 13-3 (4th\ned. 1978); see Smith v. Skagit County, 75 Wash.2d 715, 453\nP.2d 832 (1969). Accordingly, while spot zoning which\n\n312\n\n\x0ccreates a great benefit for the owner of the rezoned\nproperty with only an accompanying detriment and no\naccompanying benefit to the community or to the public\ninterest may well be illegal, spot zoning which provides a\nservice needed in the community in addition to benefitting\nthe landowner may be proper. See 2 E. Yokley, Zoning Law\nand Practice \xc2\xa7 13-3 (4th ed. 1978).\nCourts from other jurisdictions have held, for example, that\nthe mere fact that an area is rezoned at the request of a\nsingle owner and is of greater benefit to him than to others\ndoes not make out a case of illegal spot zoning if there is a\npublic need for it. See, e.g., Jaffe v. City of Davenport, 179 N.W.2d\n554 (Iowa 1970); Sweeney v. City of Dover, 108 N.H. 307, 234\nA.2d 521 (1967). The Supreme Court of New Jersey long\nago announced a standard for properly weighing the\nvarious benefits and detriments created by disputed zoning\nactivity. In a statement with which this Court agrees, that\ncourt stated as follows:\nThe standard is not the advantage or\ndetriment to particular neighboring\nlandowners, but rather the effect upon\nthe entire community as a social,\neconomic and political unit. That which\nmakes for the exclusive and preferential\nbenefit of such particular landowner, with no\nrelation to the community as a whole, is not a\nvalid exercise of this sovereign power.\nMansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150,\n198 A. 225, 233 (1938) (emphasis added).\nTurning to the facts of the case at bar, it is manifest that\nMr. Clapp, the owner of the tracts rezoned in this case, has\nreaped a benefit by the Board\xe2\x80\x99s action. Specifically, by\nvirtue of the Board\xe2\x80\x99s decision to rezone the tracts from A-1\nto CU-M-2, Mr. Clapp will be able to carry on the\notherwise illegal storage and sale of agricultural chemicals\n\n313\n\n\x0con both of his two tracts along Gun Shop Road in rural\nGuilford County. It is also beyond question that the\nplaintiffs in this case, the Chrismons, have simultaneously\nsustained a detriment. They, of course, would prefer that\nMr. Clapp carry on his agricultural chemical operation\nsomewhere other than next door to their home.\nNotwithstanding this, and consistent with the authority\nexcerpted above, it is important, in our view, to consider\nthis in the added context of both the benefits of the\nrezoning for the surrounding community and for the public\ninterest.\nAs the Court of Appeals quite correctly conceded in its\nopinion below, \xe2\x80\x9c[t]he evidence clearly shows that Mr.\nClapp\xe2\x80\x99s operation is beneficial to area farmers.\xe2\x80\x9d Chrismon v.\nGuilford County, 85 N.C.App. 211, 218, 354 S.E.2d 309, 31314. The record reveals that members of the farming\ncommunity surrounding the disputed land spoke in favor\nof the rezoning action during a meeting of the Guilford\nCounty Board of Commissioners prior to the ultimate\nmeeting of 20 December 1982. Moreover, the record also\nreveals that, at one of the Board\xe2\x80\x99s meetings concerning the\nproposed rezoning, the Board was presented with a petition\nsigned by some eighty-eight area residents favoring the\naction. While this Court understands that it was the\nChrismons alone who lived next door to the operation, we\ndo note that it was the Chrismons, and no one else, who\nspoke up against the rezoning.\nIn addition to this record evidence of substantial\ncommunity support for Mr. Clapp\xe2\x80\x99s proposed use, there is\nadditional and more objective evidence that the operation\nconstitutes a use valuable to the surrounding community.\nThe area in the vicinity of Mr. Clapp\xe2\x80\x99s operation is zoned\nfor some miles as exclusively A-1 and is used by many for\nfarming activities. Quite independent of the indications\nfrom members of the community that they have a\nsubjective need for Mr. Clapp\xe2\x80\x99s services, it cannot be\n\n314\n\n\x0cgainsaid that services of this type\xe2\x80\x94 namely, the storage and\nsale of pesticides, lime, and fertilizer\xe2\x80\x94are valuable in a\nfarming community such as that here. It has been held\nelsewhere that community-wide need for commercial or\nindustrial facilities usually takes precedence over the\nobjections of several adjacent property owners. See Citizens\nAss\xe2\x80\x99n of Georgetown, Inc. v. D.C. Zoning Comm\xe2\x80\x99n, 402 A.2d 36\n(D.C. App.1979). We believe that to be the case here.\nA second factor that we find important in the\ndetermination of a reasonable basis for the spot zoning\nhere is the similarity between the proposed use of the tracts\nunder the new conditional use zone and the uses already\npresent in surrounding areas. In its opinion in this case, the\nCourt of Appeals stated as follows:\nThe only finding of fact which would\narguably allow the trial court to\nconclude that the rezoning was\nsupported by a reasonable basis is that\nthe uses actually authorized were not\nincompatible with the general area\xe2\x80\xa6. We\ncannot agree.\nChrismon v. Guilford County, 85 N.C. App. 211, 218, 354\nS.E.2d 309, 313-14 (emphasis added). We disagree strongly\nwith the Court of Appeals on this point. In our view, even\nin the wake of the rezoning of Mr. Clapp\xe2\x80\x99s tracts to CU-M2, the uses present in the rezoned area and the surrounding\nA-1 area will remain, by virtue of the restrictions inherent\nin conditional use zoning, quite similar. At the very least,\nthe differences in the uses will certainly not be vast, as is\noften the situation in a case of illegal spot zoning.\nThe compatibility of the uses envisioned in the rezoned\ntract with the uses already present in surrounding areas is\nconsidered an important factor in determining the validity\nof a spot zoning action. 2 A. Rathkopf & D. Rathkopf, The\nLaw of Zoning and Planning \xc2\xa7 28.04 (4th ed. 1987); 1 R.\n\n315\n\n\x0cAnderson, American Law of Zoning \xc2\xa7 5.16 (3d ed. 1986). One\ncommentator addressed this factor as follows:\nIn determining whether a zoning\namendment constitutes spot zoning,\nthe courts will consider the character\nof the area which surrounds the parcel\nreclassified by the amendment. Most\nlikely to be found invalid is an amendment\nwhich reclassifies land in a manner\ninconsistent\nwith\nthe\nsurrounding\nneighborhood.\n1 R. Anderson, American Law of Zoning \xc2\xa7 5.16 at 383 (3d ed.\n1986) (emphasis added). One court has described the evil\nto be avoided as \xe2\x80\x9can attempt to wrench a single small lot\nfrom its environment and give it a new rating which disturbs\nthe tenor of the neighborhood.\xe2\x80\x9d Magnin v. Zoning Commission, 145\nConn. 26, 28, 138 A.2d 522, 523 (1958) (emphasis added).\nWe see no such disturbance on the facts before us.\nWhile significant disturbances such as the rezoning of a\nparcel in an old and well-established residential district to a\ncommercial or industrial district would clearly be\nobjectionable, see, e.g., Mraz v. County Comm\xe2\x80\x99rs of Cecil County,\n291 Md. 81, 433 A.2d 771 (1981), this is clearly not such a\ncase. We note first that, in actuality, the rezoning of the\ntracts in question from A-1 to CU-M-2, with all of the\nattendant restrictions and conditions, really represents very\nlittle change. The A-1 classification, as we stated earlier in\nour review of the facts of this case, allows all of Mr. Clapp\xe2\x80\x99s\ncurrent operation except for the storage and sale of\nagricultural chemicals. The most noticeable activity, and the\nactivity we suspect the plaintiffs would most like to be rid\nof\xe2\x80\x94namely, the storage and sale of grain\xe2\x80\x94is a conforming\nuse under the A-1 classification and can legally continue\nirrespective of any zoning change. In addition, the\nconditions accompanying the disputed rezoning in the\nform of the conditional use permit essentially restrict Mr.\n\n316\n\n\x0cClapp to the very activities in which he is currently\nengaging\xe2\x80\x94the storage and sale of agricultural chemicals\xe2\x80\x94\nand nothing more.\nSecond, this is simply not a situation like that alluded to\nabove in which a radically different land use, by virtue of a\nzoning action, appears in the midst of a uniform and\ndrastically distinct area. No parcel has been \xe2\x80\x9cwrenched\xe2\x80\x9d out\nof the Guilford County landscape and rezoned in a manner\nthat \xe2\x80\x9cdisturbs the tenor of the neighborhood.\xe2\x80\x9d As we have\nnoted on several occasions, the area surrounding the tracts\nin question is uniformly zoned as A-1 agricultural. The A-1\ndistrict, a general use district in the Guilford County\ncomprehensive zoning scheme, provides for a wide variety\nof uses. Conforming uses under the A-1 district include\nsuch disparate uses as single family dwellings, sawmills, fish\nor fowl hatcheries, farms, hospitals, and grain mills like the\none Mr. Clapp was in fact operating here. In our view, the\nuse of the newly rezoned tracts, pursuant to a CU-M-2\nassignment, to store and sell agricultural chemicals is simply\nnot the sort of drastic change from possible surrounding\nuses which constitutes illegal spot zoning.\nOur research has revealed a case from another jurisdiction,\nEarle v. McCarthy, 28 Or.App. 539, 560 P.2d 665 (1977),\nwhich is strikingly similar on the facts to that before us\ntoday. While the court was not specifically called upon\nthere to address a spot zoning challenge, it upheld the\nissuance of a conditional use permit.\nIn Earle, the Marion County Board of Commissioners\ngranted defendant a conditional use permit for the\nconstruction of a hop warehouse. The warehouse was to\nstore a rather large volume of crops from many local hop\ngrowers and was, in addition, to store and sell string and\nburlap used in hop production. The proposed site of the\nwarehouse was in an area of land designated pursuant to\nthe local zoning ordinance as an EFU (Exclusive Farm\nUse) zone, the purpose of which was as follows:\n\n317\n\n\x0c\xe2\x80\x9cThe purpose and intent of the\nExclusive Farm Use zone is to provide\nareas for the continued practice of\nagriculture\nand\npermit\nthe\nestablishment of only those new uses which\nare compatible to agricultural activities.\xe2\x80\x9d\nEarle v. McCarthy, 28 Or.App. 539, 542, 560 P.2d 665, 666\n(quoting local ordinance) (emphasis added).\nOwners of land near the proposed site of the warehouse\nchallenged the action of the local board. In the view of the\ncourt, the warehouse constituted, pursuant to the relevant\nordinance, a commercial activity in conjunction with farm\nuse and was therefore a proper use even within an exclusive\nfarm use zone. In our opinion, the parallels between the\nOregon case and that before us are striking. The\nrelationship between the hop warehouse and the\nsurrounding EFU zone in the Oregon case, in our view,\nmirrors the relationship between Mr. Clapp\xe2\x80\x99s agricultural\nchemical operation and the adjacent A-1 district in this\ncase. Here, as there, the local authority\xe2\x80\x99s activity was\nproper.\nAs we noted earlier in this section, cases involving a\nchallenge to a rezoning action on the basis of possible\nillegal spot zoning are very fact specific; their resolution\nturns very heavily on the particular facts and circumstances\nof the case. This spot zoning case, in which the disputed\naction changed a general district zone to a conditional use\nzone, is, for that reason, a case of first impression. While\nthis Court has addressed the issue of spot zoning in North\nCarolina cases involving rezoning from one general district\nto another, the facts of these cases are not analogous to this\ncase and are therefore not helpful.\nIn sum then, while we agree with the Court of Appeals that\nthe rezoning of Mr. Clapps\xe2\x80\x99 two tracts constituted a form\nof spot zoning under the Blades definition, we find, contrary\n\n318\n\n\x0cto its conclusion, that this activity was of the legal and not\nillegal variety. More precisely, we find that, because of the\nquite substantial benefits created for the surrounding\ncommunity by the rezoning and because of the close\nrelationship between the likely uses of the rezoned property\nand the uses already present in the surrounding tracts, there\nwas a clear showing of a reasonable basis for the spot\nzoning in this instance. It is therefore not void, and the\nCourt of Appeals is reversed as to this point.\n\xe2\x80\xa6.\n3.7. Contract Zoning\nChrismon v. Gilford County\n322 N.C. 611 (1988)\nGunn & Messick by Paul S. Messick, Jr., Pittsboro, for\nplaintiffs-appellees.\nSamuel Moore, Deputy Co. Atty., Greensboro, for\ndefendants-appellants Guilford County and Members of\nthe Bd. of Com\xe2\x80\x99rs of Guilford County.\nRalph A. Walker and Osteen, Adams & Tilley by William L.\nOsteen, Greensboro, for defendant-appellant Bruce Clapp.\nThomas A. McCormick, Jr., City Atty., City of Raleigh by\nIra J. Botvinick, Deputy City Atty., Raleigh, and Jesse L.\nWarren, City Atty., Greensboro, and Henry W. Underhill,\nJr., City Atty., Charlotte, amici curiae.MEYER, JUSTICE.[For\nthe facts of this case, see the prior section.]\nWe turn finally to the question of contract zoning. As we\nstated above, in its opinion below, the Court of Appeals\nalso held that the rezoning in question constituted illegal\n\xe2\x80\x9ccontract zoning\xe2\x80\x9d and was therefore invalid and void for\nthat alternative reason. Relying for support primarily on\nthis Court\xe2\x80\x99s decision in Allred v. City of Raleigh, 277 N.C.\n530, 178 S.E.2d 432, the Court of Appeals stated, in\nrelevant part, as follows:\n\n319\n\n\x0c[T]he county\xe2\x80\x99s action here also\nconstitutes\n\xe2\x80\x9ccontract\nzoning.\xe2\x80\x9d\nRezoning lacks a permissible basis\nwhere it is done \xe2\x80\x9con consideration of\nassurances that a particular tract or\nparcel will be developed in accordance\nwith restricted approval plans.\xe2\x80\x9d\n[>Allred, 277 N.C.] at 545, 178 S.E.2d\nat 441.\n\xe2\x80\xa6 In effect, the rezoning was done on\nthe assurance that Mr. Clapp would\nsubmit an application for a conditional\nuse permit specifying that he would\nuse the property only in that manner.\nThe rezoning here was accomplished\nas a direct consequence of the\nconditions agreed to by the applicant\nrather than as a valid exercise of the\ncounty\xe2\x80\x99s legislative discretion.\nChrismon v. Guilford County, 85 N.C. App. 211, 219, 354\nS.E.2d 309, 314 (citations omitted).\nWe must disagree with the Court of Appeals. In the view of\nthis Court, the Court of Appeals, in its approach to the\nquestion of whether the rezoning at issue in this case\nconstituted illegal contract zoning, improperly considered\nas equals two very different concepts\xe2\x80\x94namely, valid\nconditional use zoning and illegal contract zoning. By virtue\nof this treatment of the two quite distinguishable concepts,\nthe Court of Appeals has, for all intents and purposes,\noutlawed conditional use zoning in North Carolina by\nequating this beneficial land planning tool with a practice\nuniversally considered illegal. In fact, for the reasons we\nwill develop below, the two concepts are not to be\nconsidered synonymous. Moreover, we hold that the\nrezoning at issue in this case\xe2\x80\x94namely, the rezoning of Mr.\nClapp\xe2\x80\x99s two tracts of land from A-1 to CU-M-2\xe2\x80\x94was, in\n\n320\n\n\x0ctruth, valid conditional use zoning and not illegal contract\nzoning.\nIllegal contract zoning properly connotes a transaction\nwherein both the landowner who is seeking a certain\nzoning action and the zoning authority itself undertake\nreciprocal obligations in the context of a bilateral contract.\nShapiro, The Case for Conditional Zoning, 41 Temp.L.Q. 267\n(1968); D. Mandelker, Land Use Law \xc2\xa7 6.59 (1982). One\ncommentator provides as illustration the following\nexample:\nA Council enters into an agreement\nwith the landowner and then enacts a\nzoning amendment. The agreement,\nhowever, includes not merely the promise of the\nowner to subject his property to deed\nrestrictions; the Council also binds itself to\nenact the amendment and not to alter the\nzoning change for a specified period of time.\nMost courts will conclude that by\nagreeing to curtail its legislative power,\nthe Council acted ultra vires. Such\ncontract zoning is illegal and the\nrezoning is therefore a nullity.\nShapiro, The Case for Conditional Zoning, 41 Temp. L.Q. 267,\n269 (1968) (emphasis added). As the excerpted illustration\nsuggests, contract zoning of this type is objectionable\nprimarily because it represents an abandonment on the part\nof the zoning authority of its duty to exercise independent\njudgment in making zoning decisions. See id.; see generally\nWegner, Moving Toward the Bargaining Table: Contract Zoning,\nDevelopment Agreements, and the Theoretical Foundations of\nGovernmental Land Use Deals, 65 N.C.L.Rev. 957 (1987).\nAs we indicated in Part I above, valid conditional use\nzoning, on the other hand, is an entirely different matter.\nConditional use zoning, to repeat, is an outgrowth of the\nneed for a compromise between the interests of the\n\n321\n\n\x0cdeveloper who is seeking appropriate rezoning for his tract\nand the community on the one hand and the interests of\nthe neighboring landowners who will suffer if the most\nintensive use permitted by the new classification is\ninstituted. One commentator has described its mechanics\nas follows:\nAn orthodox conditional zoning\nsituation occurs when a zoning\nauthority, without committing its own\npower, secures a property owner\xe2\x80\x99s\nagreement to subject his tract to\ncertain restrictions as a prerequisite to\nrezoning. These restrictions may\nrequire that the rezoned property be\nlimited to just one of the uses\npermitted in the new classification; or\nparticular physical improvements and\nmaintenance requirements may be\nimposed. Shapiro, The Case For\nConditional Zoning, 41 Temp. L.Q. 267,\n270-71 (1968) (emphasis added).\nIn our view, therefore, the principal differences between\nvalid conditional use zoning and illegal contract zoning are\nrelated and are essentially two in number. First, valid\nconditional use zoning features merely a unilateral promise\nfrom the landowner to the local zoning authority as to the\nlandowner\xe2\x80\x99s intended use of the land in question, while\nillegal contract zoning anticipates a bilateral contract in\nwhich the landowner and the zoning authority make\nreciprocal promises. Second, in the context of conditional\nuse zoning, the local zoning authority maintains its\nindependent decision-making authority, while in the\ncontract zoning scenario, it abandons that authority by\nbinding itself contractually with the landowner seeking a\nzoning amendment.\n\n322\n\n\x0cThe Court of Appeals, in its opinion in this case,\ndetermined that \xe2\x80\x9c[t]he rezoning here was accomplished as a\ndirect consequence of the conditions agreed to by the\napplicant rather than as a valid exercise of the county\xe2\x80\x99s\nlegislative discretion.\xe2\x80\x9d Chrismon v. Guilford County, 85\nN.C.App. 211, 219, 354 S.E.2d 309, 314. In so doing, it\nconcluded, in essence, that the zoning authority here\xe2\x80\x94\nnamely, the Guilford County Board of Commissioners\xe2\x80\x94\nentered into a bilateral agreement, thereby abandoning its\nproper role as an independent decision-maker and\nrendering this rezoning action void as illegal contract\nzoning. This Court disagrees. We conclude that the zoning\nauthority neither entered into a bilateral contract nor\nabandoned its position as an independent decision-maker.\nTherefore, we find what occurred in the case before us to\nconstitute valid conditional use zoning and not illegal\ncontract zoning.\nFirst, having carefully reviewed the record in the case, we\nfind no evidence that the local zoning authority\xe2\x80\x94here, the\nGuilford County Board of Commissioners\xe2\x80\x94 entered into\nanything approaching a bilateral contract with the\nlandowner\xe2\x80\x94here, Mr. Clapp. The facts of the case reveal\nthat, pursuant to a filed complaint from the Chrismons, the\nGuilford County Inspections Department, by a letter dated\n22 July 1982, notified Mr. Clapp that his expansion of the\nagricultural chemical operation to the tract adjacent to\nplaintiffs\xe2\x80\x99 lot constituted an impermissible expansion of a\nnonconforming use. More important for purposes of this\nissue, the letter informed Mr. Clapp of his various options\nin the following manner:\nMr. Clapp, there are several courses of\naction available to you in an effort to\nresolve your Zoning Ordinance\nviolations:\n\xe2\x80\xa6.\n\n323\n\n\x0c2. You may request rezoning of that\nportion of your land involved in the\nviolations. This is not a guaranteed option.\nShortly after receiving this letter, Mr. Clapp applied to have\nboth of his tracts of land\xe2\x80\x94the 3.18-acre tract north of Gun\nShop Road and the 5.06-acre tract south of Gun Shop\nRoad\xe2\x80\x94rezoned from A-1 to CU-M-2. He also filed written\napplication for a conditional use permit, specifying in the\napplication that he would continue to use the property as it\nwas then being used and, in addition, listing those changes\nhe would like to make in the succeeding five years. While\nthese applications were ultimately approved by the Guilford\nCounty Board of Commissioners after a substantial period\nof deliberation which we highlight below, we are quite\nsatisfied that the only promises made in this case were\nunilateral\xe2\x80\x94specifically, those from Mr. Clapp to the Board\nin the form of the substance of his conditional use permit\napplication. As the letter excerpted above makes clear, no\npromises whatever were made by the Board in exchange,\nand this rezoning does not therefore fall into the category\nof illegal contract zoning.\nSecond, and perhaps more important, the Board did not, by\nvirtue of its actions in this case, abandon its position as an\nindependent decision-maker. The Court of Appeals\nconcluded that, rather than from a \xe2\x80\x9cvalid exercise of the\ncounty\xe2\x80\x99s legislative discretion,\xe2\x80\x9d the Board\xe2\x80\x99s decision in this\nzoning matter in fact resulted from an illegal bargain\nbetween the Board and the landowner, Mr. Clapp. This\nconclusion by the Court of Appeals is, in our view, at odds\nwith the facts developed in the record. On the contrary, we\nfind that the Board made its decision in this matter only\nafter a lengthy deliberation completely consistent with both\nthe procedure called for by the relevant zoning ordinance\nand the rules prohibiting illegal contract zoning.\n\n324\n\n\x0cThe Guilford County Zoning Oridnance provides\nappropriate procedures to be used by landowners wishing\nto apply for rezonings to a conditional use district and for\nconditional use permits. Pursuant to the ordinance, a\nlandowner must apply separately for rezoning to the\nappropriate conditional use district and for the conditional\nuse permit. This second petition\xe2\x80\x94that for the conditional\nuse permit\xe2\x80\x94must provide specific details of the applicant\xe2\x80\x99s\nproposed use of the land affected by the potential permit.\nPetitions are directed to the Guilford County Board of\nCommissioners and are filed initially in the office of the\nPlanning Department. The Planning Director submits the\npetition and the Planning Department\xe2\x80\x99s recommendation\nto the Planning Board. The Planning Board subsequently\nmakes advisory recommendations to the Board of County\nCommissioners, which, following a public hearing held\npursuant to proper notice, makes the final decision as to\nwhether the rezoning application and the permit will be\napproved or disapproved.\nIt is undisputed, and plaintiffs conceded as much upon oral\nargument before this Court, that all procedural\nrequirements were observed in this case. As we indicated\nabove, shortly after the Guilford County Inspections\nDepartment notified Mr. Clapp of his violation, he\nsubmitted an application for a rezoning of the tracts in\nquestion. Simultaneously, he applied for a conditional use\npermit, specifying how the property was then being used\nand, in addition, listing those improvements he would like\nto make in the future. The Planning Division\nrecommended that the property be rezoned accordingly,\nand the Guilford County Planning Board voted to approve\nthat recommendation at their meeting of 8 September\n1982.\nPursuant to proper notice, the Guilford County Board of\nCommissioners held a public meeting on 20 December\n1982 regarding both applications and heard numerous\n\n325\n\n\x0cstatements from all of the concerned parties. During at\nleast one previous meeting, members of the community\nhad spoken in favor of Mr. Clapp\xe2\x80\x99s rezoning request,\nnumerous ideas had been introduced concerning use of the\nproperty, and the Board was presented with a petition\nsigned by eighty-eight persons favoring the rezoning\nrequest. While the Court of Appeals\xe2\x80\x99 opinion seems to\nsuggest that the ultimate result of the 20 December 1982\nmeeting was a foregone conclusion, the record simply does\nnot reveal as much. Instead, the record reveals that the\nBoard made its final decision only after what appears to\nhave been a thorough consideration of the merits of Mr.\nClapp\xe2\x80\x99s applications for rezoning and for a conditional use\npermit, as well as of the various alternatives to granting\nthose applications.1\nWhile the Court of Appeals concluded that the decision at\nissue here by the Guilford County Board of Commissioners\nwas not the result of \xe2\x80\x9ca valid exercise of the county\xe2\x80\x99s\nlegislative discretion,\xe2\x80\x9d we find just the opposite. The record\nin the case, in our view, while it reveals a unilateral promise\nfrom Mr. Clapp to the Board concerning his proposed use\nof the tracts, does not demonstrate the reciprocity featured\nin cases of illegal contract zoning. Moreover, the record\nalso demonstrates, we think quite clearly, that the Board did\nnot abandon its role as an independent decision-maker.\nRather, after deliberating over information gathered from a\nlarge number of sources and after weighing both the\ndesired rezoning and permit as well as various alternatives,\nthe Board rendered a decision. In short, then, we find that\nthe Board engaged here, not in illegal contract zoning, but in\nThe official minutes of the 20 December 1982 Board of Commissioners meeting\nreveal discussion of \xe2\x80\x9cattempts [that] had been made to resolve differences between\nthe owner and his neighbors.\xe2\x80\x9d These attempts to resolve the problem short of\nrezoning the property apparently included the removal of one grain dryer from the\nproperty, the planting of trees along the property line, the placement of canvas\ncovers over the grain bins, and discussions with the Environmental Protection\nAgency concerning other ways of reducing dust and noise.\n1\n\n326\n\n\x0cvalid conditional use zoning. Accordingly, the Court of\nAppeals is reversed as to this issue as well.\nIV.In conclusion, this Court has carefully reviewed the\nrecord in its entirety and all of the contentions of the\nparties to this action. Consistent with the above, we hold as\nfollows: (1) the practice of conditional use zoning, insofar\nas it is reasonable, neither arbitrary nor unduly\ndiscriminatory, and in the public interest and, subject to our\ndiscussions of spot zoning and contract zoning above, is an\napproved practice in this state; (2) the rezoning in this case,\nwhile clearly spot zoning, was not illegal spot zoning in that\nit was done pursuant to a clear showing of a reasonable\nbasis; and (3) the rezoning in this case, because the Board\nneither entered into a bilateral agreement nor abandoned its\nplace as the independent decision-maker, was not illegal\ncontract zoning.Accordingly, the decision of Court of\nAppeals is hereby reversed. The case is remanded to that\ncourt for further remand to the Superior Court, Guilford\nCounty, for reinstatement of the original judgment denying\nplaintiffs\xe2\x80\x99 action for a declaratory judgment and affirming\nthe zoning action of the Guilford County Board of\nCommissioners.\nREVERSED.\nMITCHELL, Justice, dissenting.The zoning amendment\nand conditional use permit in this case amounted to written\nacceptance by Guilford County of Clapp\xe2\x80\x99s offer\xe2\x80\x94by written\napplication\xe2\x80\x94to use his property only in certain ways. Thus,\nfor reasons fully discussed in the opinion of the Court of\nAppeals, 85 N.C.App. 211, 354 S.E.2d 309 (1987), Guilford\nCounty\xe2\x80\x99s actions in the present case also amounted to\nillegal \xe2\x80\x9ccontract zoning.\xe2\x80\x9d See Blades v. City of Raleigh, 280\nN.C. 531, 187 S.E.2d 35 (1972); Allred v. City of Raleigh, 277\nN.C. 530, 178 S.E.2d 432 (1971).\nI believe that Guilford County was without authority to\nengage in any conditional use zoning whatsoever in 1982,\n\n327\n\n\x0cthe time it did so in the present case. Effective 4 July 1985,\nthe General Assembly amended N.C. G.S. \xc2\xa7 153A-342 and\nN.C.G.S. \xc2\xa7 160A-382 to allow cities and counties to\nestablish conditional use districts. 1985 N.C.Sess. Laws ch.\n607. Although the act was entitled an act to \xe2\x80\x9cmake clear\xe2\x80\x9d\nthe authority of local governments to establish such\ndistricts, I do not believe that the title controls in this case.\nCourts need refer to the title in construing an act only when\nthe meaning of the act is in doubt.Finance Corp. v. Scheidt,\nComr. of Motor Vehicles, 249 N.C. 334, 106 S.E.2d 555\n(1959). Here, the 1985 act expressly authorizes units of\nlocal government to establish conditional use districts upon\na petition by the owners of all the property to be included.\nPrior to that enactment, units of local government did not\nhave such authority. See generally Blades v. City of Raleigh, 280\nN.C. 531, 187 S.E.2d 35; Allred v. City of Raleigh, 277 N.C.\n530, 178 S.E.2d 432. Therefore, the action of the General\nAssembly is fully consistent with the ordinary presumption\nthat, by amending an existing statute, the legislature\nintended a departure from the old law. See Childers v.\nParker\xe2\x80\x99s, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968).\nThe majority cites numerous scholarly authorities in\nsupport of its very thorough discussion of social policy\narguments in favor of conditional use zoning. Boiled down\nto their essence, these arguments simply amount to an\nexpression of the majority\xe2\x80\x99s view that the authority to\nengage in conditional use zoning will give planners and\nlocal governing authorities greater flexibility and that such\nflexibility is very valuable. Beyond question, conditional use\nzoning authority will give them greater flexibility. Because I\nbelieve that the General Assembly had not authorized\nconditional use zoning at the time in question here, I find it\nunnecessary to consider whether conditional use zoning\ngives so much \xe2\x80\x9cflexibility\xe2\x80\x9d to local planners and governing\nbodies that they are left free to allow or disapprove specific\n\n328\n\n\x0cuses of property in an unconstitutionally arbitrary and\nunpredictable manner.\nFor the foregoing reasons, I dissent.\nWEBB, J., joins in this dissenting opinion.\nWEBB, JUSTICE, dissenting.I join in the dissent of Justice\nMitchell and I add a few comments.\n\xe2\x80\xa6.\nI believe that prior to today the rule was that if a person\nrequested a zoning change and submitted plans of the type\nbuilding he would construct if the change were granted,\nand the zoning authority made the change based on the\npromise to construct such a building, that would be\ncontract zoning. We have held contrary to this and in doing\nso have overruled Blades and Allred.\nI vote to affirm the Court of Appeals.\nMITCHELL, J., joins in this dissenting opinion\n3.8. Nonconforming Uses\nCity of Red Bank v. Phillips\n2007 WL 4460223 (Tenn. Ct. App. 2007).\nArvin H. Reingold, Chattanooga, Tennessee, for the\nappellant, Peter H. Phillips.\nArnold A. Stulce, Jr. and Angela C. Larkins, Chattanooga,\nTennessee, for the appellee, City of Red Bank, Tennessee.\nCHARLES D. SUSANO, JR.\nThe City of Red Bank (\xe2\x80\x9cCity\xe2\x80\x9d) filed this declaratory\njudgment action against Peter H. Phillips (\xe2\x80\x9cOwner\xe2\x80\x9d)\nalleging that his property at 217 W. Newberry Street was\nbeing utilized for multi-family purposes in violation of its\nsingle family zoning. Owner admitted to the use of the\npremises as a three-apartment rental property. He asserted,\nhowever, that the non-conforming use of the property was\n\n329\n\n\x0cpermitted as a \xe2\x80\x9cgrandfathered\xe2\x80\x9d use. Following a bench trial,\nthe court found in favor of the City. Owner appeals. We\naffirm.\nI.\nAs early as 1951, the structure at 217 W. Newberry Street\nwas used by the Roberts family as a multi-family dwelling.\nThe Roberts family maintained a residence in the upstairs\nunit. Two downstairs units were rented out. Each unit had\na separate kitchen and bath. This multi-family use\ncontinued until December 2002, when one of the tenants\nmoved out. Shortly thereafter, Mrs. Mamie Roberts, the\nowner of the property, died, leaving only one tenant\nutilizing the premises. The final tenant departed in July\n2003, and the property remained vacant until March 2004,\nwhen the house was sold by Mrs. Roberts\xe2\x80\x99 estate to Wallis\nProperties, LLC. Approximately twenty months passed\nduring which the property was completely vacant until one\ntenant moved in on April 1, 2005.\nPrior to purchasing the property in July 2005, Owner and\nhis mother, Audeline Phillips, inspected the premises. Mrs.\nPhillips, a realtor, testified at trial that she had located the\nproperty on the Multiple Listing Service. Mrs. Phillips\nnoted that when she and her son toured the property, one\nunit was occupied. She recalled that all the units were\nfurnished and the utilities were on. Over the objection of\nthe City\xe2\x80\x99s attorney, Mrs. Phillips discussed contacting a City\nemployee who indicated to her that the non-conforming\nmulti-family use was grandfathered in. She admitted,\nhowever, that she did not request written verification of\nthis statement. Owner testified that he also had been\nadvised by someone with the City that the non-conforming\nuse was subject to grandfather protection. Additionally,\nOwner indicated that the property was advertised for sale\nduring this time as a three-unit rental and was taxed by the\ncounty as commercial property.\n\n330\n\n\x0cAfter the City became aware of Owner\xe2\x80\x99s non-conforming\nuse, it filed a petition for declaratory judgment.1 The\npetition alleges, in part, as follows:\nThe property located at 217 W.\nNewberry Street, owned by the\nplaintiff has, for many years, been\nlocated in an R-1 Residential Zone\xe2\x80\xa6.\nThe permitted uses section of the Red\nBank Zoning Ordinance applicable to\nthe R-1 Residential Zone does not\npermit multi-family residential uses, i.e.\nfor more than one family to occupy a\ndwelling unit in that R-1 Zone.\nAccordingly, any use of the premises\n\xe2\x80\xa6 as a multi-family dwelling is in\nviolation of the Red Bank Zoning\nOrdinance and is a \xe2\x80\x9cnon-conforming\nuse\xe2\x80\x9d pursuant to said Ordinance.\nThe house and lot \xe2\x80\xa6 is configured for\nthree (3) separate apartments/dwelling\nunits and the respondent has leased or\nis offering to lease three (3) separate\ndwelling units/apartments located in\nthat structure. Utilization of the\npremises for multi-family occupancy\nand/or for more than one dwelling\nunit is in violation of the Red Bank\nZoning Ordinance.\nUpon information and belief, the\npremises \xe2\x80\xa6 may have been, in times\npast, utilized as a multi-family\ndwelling. Use of the property as a\nmulti-family dwelling in times past may\nThe City sought the imposition of a civil penalty of up to $50 per day against\nOwner. Because the provisions of the City\xe2\x80\x99s ordinances introduced at trial did not\ncontain a civil penalty provision, the trial court denied this relief.\n1\n\n331\n\n\x0cor may not have been lawful pursuant\nto \xe2\x80\x9cthe grandfather clause\xe2\x80\x9d\xe2\x80\xa6.\nThe petitioner would show that the\npremises were owned or occupied\nuntil approximately December 15,\n2002 when a former owner died. Since\non or about June of 2003, the premises\nhave been totally unoccupied until\napproximately April 1, 2005, a time\nperiod of 22 months, \xe2\x80\xa6 On or about\nApril 1, 2005, a single individual began,\napparently, to live in and occupy one\nof the separate apartments\xe2\x80\xa6.\nThe Red Bank Zoning Ordinance,\nsubsection (205.01), provides, in\npertinent part with respect to \xe2\x80\x9cnonconforming uses\xe2\x80\x9d, as follows:\nThe lawful use of a building existing at\nthe time of the passage of this\nOrdinance shall not be affected by this\nOrdinance, although such use does not\nconform to the provisions of this\nOrdinance; and such use may be\nextended throughout the building \xe2\x80\xa6\nIf such non-conforming building is\nremoved or the non-conforming use of such\nbuilding is discontinued for 100 consecutive\ndays, \xe2\x80\xa6 every future use of such\npremises shall be in conformity with\nthe provisions of this Ordinance.\nThe Petitioner has refused demands\nand requests from the City of Red\nBank not to utilize the property \xe2\x80\xa6\nexcept as a single family residence.\nDuring the course of a City\nCommission meeting on or about\nSeptember 13, 2005, the respondent\n\n332\n\n\x0cmade clear his intention to remodel\nthe separate apartment units and utilize\nthe property as a multi-family dwelling\nand to not conform and adhere to the\nrequirements of the R-1 Residential\nZone regulations of the Red Bank\nZoning Ordinance.\n(Paragraph numbering omitted; emphasis in original).\nIn Owner\xe2\x80\x99s answer, he stated that at the time he purchased\nthe property \xe2\x80\x9cand at all times prior to said date the property\nwas maintained and used as a three unit dwelling containing\nthree separate and distinct apartment units,\xe2\x80\x9d the\n\xe2\x80\x9capartment units were used as a three unit apartment\nstructure prior to the enactment of the present R-1\nResidential Zone designation and was and is at present a\nlawful use as a multi-family dwelling,\xe2\x80\x9d and \xe2\x80\x9cat the time of\nhis purchase the property was used as a multi-family\napartment structure.\xe2\x80\x9d Owner contended that his nonconforming use of the property should be permitted as a\n\xe2\x80\x9cgrandfathered\xe2\x80\x9d use.\nAfter the matter was heard on August 24, 2006, the trial\ncourt, sitting without a jury, determined that (1) the City\xe2\x80\x99s\ncomplaint for declaratory relief and to enforce the zoning\nordinance was sustained and (2) that Owner was enjoined\nfrom using the real estate in a manner not in conformity\nwith the single-family provisions of the City\xe2\x80\x99s zoning\nordinance. Owner timely appealed.\nII.\nOwner raises the following issues:\n1. The Chancellor\xe2\x80\x99s ruling that the statute does not apply to\nprotect the non-conforming use of the property was in\nerror because, even without subsection (g) of Tenn.Code\nAnn. s 13-7-208, the statute still applies to protect nonconforming uses.\n\n333\n\n\x0c2. The Chancellor\xe2\x80\x99s ruling that a \xe2\x80\x9cdiscontinuance\xe2\x80\x9d of the\nnon-conforming use occurred under the ordinance is\nerroneous because there was no intent to abandon the\npremises and because the property was always held out as a\nmultiple rental property.\nIII.\nIn a non-jury case, our review is de novo upon the record\nbefore us, accompanied by a presumption of correctness as\nto the trial court\xe2\x80\x99s findings of fact, unless the evidence\npreponderates against those findings. Tenn. R.App. P.\n13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001).\nWe accord no such deference to the trial court\xe2\x80\x99s\nconclusions of law. S. Constructors, Inc. v. Loudon County\nBd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Ganzevoort\nv. Russell, 949 S.W.2d 293, 296 (Tenn.1997).\nThe issues raised on this appeal involve the interpretation\nof state statutes and local ordinances. The primary rule of\nstatutory construction is \xe2\x80\x9cto ascertain and give effect to the\nintention and purpose of the legislature.\xe2\x80\x9d LensCrafters, Inc.\nv. Sundquist, 33 S.W.3d 772, 777 (Tenn.2000); Carson\nCreek Vacation Resorts, Inc. v. Dep\xe2\x80\x99t of Revenue, 865\nS.W.2d 1, 2 (Tenn.1993). To determine legislative intent,\none must look to the natural and ordinary meaning of the\nlanguage used in the statute itself. We must examine any\nprovision within the context of the entire statute and in\nlight of its over-arching purpose and the goals it serves.\nState v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000). The\nstatute should be read \xe2\x80\x9cwithout any forced or subtle\nconstruction which would extend or limit its meaning.\xe2\x80\x9d\nNat\xe2\x80\x99l Gas Distribs., Inc. v. State, 804 S.W.2d 66, 67\n(Tenn.1991).\nCourts are instructed to \xe2\x80\x9cgive effect to every word, phrase,\nclause and sentence of the act in order to carry out the\nlegislative intent.\xe2\x80\x9d Tidwell v. Collins, 522 S.W.2d 674, 677\n(Tenn.1975). Courts must presume that the General\n\n334\n\n\x0cAssembly selected these words deliberately, Tenn.\nManufactured Hous. Ass\xe2\x80\x99n v. Metro. Gov\xe2\x80\x99t, 798 S.W.2d\n254, 257 (Tenn.Ct.App.1990), and that the use of these\nwords conveys some intent and carries meaning and\npurpose. Tenn. Growers, Inc. v. King, 682 S.W.2d 203, 205\n(Tenn.1984). The same rules and principles are applied\nwhen construing zoning ordinances. Lions Head\nHomeowners\xe2\x80\x99 Ass\xe2\x80\x99n v. Metro. Bd. of Zoning Appeals, 968\nS.W.2d 296, 301 (Tenn.Ct.App.1997).\nThe applicable \xe2\x80\x9cgrandfather\xe2\x80\x9d provision is codified at\nTenn.Code Ann. s 13-7-208 (Supp.2006). The owner\ncontends that the statute permits him to continue his nonconforming use. The statute provides, in relevant part, as\nfollows:\nIn the event that a zoning change\noccurs in any land area where such\nland area was not previously covered\nby any zoning restrictions of any\ngovernmental agency of this state or its\npolitical subdivisions, or where such\nland area is covered by zoning\nrestrictions of a governmental agency\nof this state or its political\nsubdivisions, and such zoning\nrestrictions differ from zoning\nrestrictions imposed after the zoning\nchange, then any industrial, commercial\nor business establishment in operation,\npermitted to operate under zoning\nregulations or exceptions thereto prior\nto the zoning change shall be allowed\nto continue in operation and be\npermitted; provided, that no change in\nthe use of the land is undertaken by\nsuch industry or business.\nTenn.Code Ann. s 13-7-208(b)(1) (emphasis added).\nSubsection (g) of the statute adds the following:\n\n335\n\n\x0cThe provisions of subsections (b)-(d)\nshall not apply if an industrial,\ncommercial, or other business\nestablishment ceases to operate for a\nperiod of thirty (30) continuous\nmonths and the industrial, commercial,\nor other business use of the property\ndid not conform with the land use\nclassification as denoted in the existing\nzoning regulations for the zoning\ndistrict in which it is located. Anytime\nafter the thirty (30) month cessation,\nany use proposed to be established on\nthe site, including any existing or\nproposed on-site sign, must conform\nto the provisions of the existing\nzoning regulations\xe2\x80\xa6.\nSubsection (g) was added in 2004 and became effective on\nMay 28, 2004. The trial court found, however, that this\namendment to the statute cannot have retrospective effect\nto invalidate a lawful zoning ordinance. Further, the court\ndetermined that the property had already been vacant over\n100 days prior to this subsection becoming effective. The\ntrial court therefore concluded that \xe2\x80\x9cthis case is controlled\nby the law in existence before the 2004 amendments to\nTenn.Code Ann. s 13-7-208, which would be the Red Bank\nordinance.\xe2\x80\x9d (Emphasis added).\nThe City\xe2\x80\x99s ordinance at issue contains the following:\n(A) Single-family dwelling.\n\n2. SECTION 11-205.\nNon-conforming Uses:\nThe lawful use of a building existing at\nthe time of the passage of this\n\n336\n\n\x0cOrdinance shall not be affected by this\nOrdinance, although such use does not\nconform to the provisions of this\nOrdinance; and such use may be\nextended throughout the building\xe2\x80\xa6. If\nsuch non-conforming building is\nremoved or the non-conforming use\nof such building is discontinued for\n100 consecutive days, every future use\nof such premises shall be in\nconformity with the provisions of this\nOrdinance.\nIV.\nA.\nThe trial court determined that Tenn.Code Ann. s 13-7-208\nand its subsections did not apply to supersede the\nordinances relied upon by the City. As indicated above, the\ntrial court specifically found that subsection (g), which\nintroduces the discontinuance period of 30 months for\nnon-conforming uses, was not in effect at the time the\nevents at issue took place.\nOwner argues that even without subsection (g), the trial\ncourt erred in assuming that Tenn.Code Ann. s 13-7-208\nno longer afforded any protection to the non-conforming\nuse. He asserts that the statute, without subsection (g), was\nin effect at all times pertinent to this litigation. Thus,\nOwner contends that while subsection (g) may not apply to\nthe case at hand, the rest of the statute, including\nsubsection (b)(1), is applicable. If subsection (g) is\napplicable, Owner contends that the property was not\ncompletely unoccupied for thirty months or longer, as\nrequired by law. Tenn.Code Ann. s 13-7-208(g). Therefore,\nOwner argues that the trial court committed reversible\nerror in the manner in which it applied the City\xe2\x80\x99s ordinance.\n\n337\n\n\x0cIn Bramblett v. Coffee County Planning Comm\xe2\x80\x99n, No.\nM2005-01517-COA-R3-CV, 2007 WL 187894, at * 9\n(Tenn. Ct.App. M.S., filed January 24, 2007), a panel of this\ncourt indicated as follows:\nBy its plain language, the statute\n[Tenn.Code Ann. s 13-7-208] protects\nonly \xe2\x80\x9cindustrial, commercial or\nbusiness establishment[s].\xe2\x80\x9d Tenn.Code\nAnn. s 13-7-208(b)(1); Custom Land\nDev., Inc. v. Town of Coopertown,\n168 S.W.3d 764, 775 (Tenn.Ct.App\n.2004) (noting that purpose of statute\nwas \xe2\x80\x9cto protect ongoing business\noperations\xe2\x80\x9d). In zoning parlance, use\nof real property for human habitation\nis generally classified as \xe2\x80\x9cresidential,\xe2\x80\x9d\nregardless of whether someone profits\nfrom it. Zoning laws typically employ\nterms\nsuch\nas\n\xe2\x80\x9ccommercial,\xe2\x80\x9d\n\xe2\x80\x9cindustrial,\xe2\x80\x9d and \xe2\x80\x9cbusiness\xe2\x80\x9d in\ncontradistinction\nto\nthe\nterm\n\xe2\x80\x9cresidential.\xe2\x80\x9d 6 ZONING LAW AND\nPRACTICE s 35-2, at pp. 35-3 to 357; s 38-1, at pp. 38-1 to 38-2; s 39-1, at\npp. 39-1 to 39-5; s 44-1, at p. 44-1. 3\nAMERICAN LAW OF ZONING s\n18.15, at 304. Tennessee\xe2\x80\x99s zoning\nstatutes are no exception.\n(Capitalization in original; footnotes omitted).\nOwner seeks to use the property in an indisputably\nresidential manner. He desires to lease out the three units\nof the premises to individuals and families for human\nhabitation. Tenn.Code Ann. s 13-7-208 confers no\ngrandfathering protection for this use. Accordingly, only\nthe City\xe2\x80\x99s ordinance applies in this matter.\nB.\n\n338\n\n\x0cThe power of local governments to enact ordinances\nregulating the use of private property is derived from the\nstate and is delegated to them by the legislature. Henry v.\nWhite, 250 S.W.2d 70, 71 (Tenn.1952); Anderson County v.\nRemote Landfill Servs., Inc., 833 S.W.2d 903, 909\n(Tenn.Ct.App.1991). Local governments\xe2\x80\x99 statutory power\nto employ zoning measures to control the use of land\nwithin their boundaries is firmly established. Draper v.\nHaynes, 567 S.W.2d 462, 465 (Tenn.1978). The City\xe2\x80\x99s\nzoning ordinance, subsection 205.01, states, in part, that\n\xe2\x80\x9c[i]f such non-conforming building is removed or the nonconforming use of such building is discontinued for 100\nconsecutive days, every future use of such premises shall be\nin conformity with the provisions of this Ordinance.\xe2\x80\x9d\nIn interpreting a zoning ordinance, a court must strictly\nconstrue the relevant ordinance in favor of the property\nowner. Boles v. City of Chattanooga, 892 S.W.2d 416, 420\n(Tenn.Ct.App.1994) (citing State ex rel. Wright v. City of\nOak Hill, 321 S.W.2d 557, 559 (Tenn.1959)). A zoning\nordinance is in derogation of the common law because it\noperates to deprive an owner of a use of land which might\notherwise be lawful. Oak Hill, 321 S.W.2d at 559.\nUnder the facts of this case, Owner contends that the trial\ncourt erred in ruling that a lack of tenants constituted a\ndiscontinuance of the non-conforming use for 100\nconsecutive days. He quotes from 83 Am.Jur.2d Zoning\nand Planning s 619 at 534-35 (2003) as follows:\nDiscontinuance of a nonconforming\nuse may sometimes be caused by the\nloss of a tenant, but this generally does\nnot result in an abandonment, so long\nas the owner makes a diligent effort to\nlocate a new tenant.\n(Citations omitted). Owner further asserts that a lack of\nmultiple lodgers has been held not to constitute\n\n339\n\n\x0cdiscontinuance where the apartments were still available for\nrent. He cites us to James L. Isham, Annotation, Zoning:\nOccupation Of Less Than All Dwelling Units As\nDiscontinuance Or Abandonment Of Multifamily Dwelling\nNonconforming Use, 40 A.L.R. 4th 1012 (1985).\nRelying on Boles, Owner asserts that the voluntary and\naffirmative actions of the prior owners did not manifest an\nintention to abandon the non-conforming multi-family use\nof the property. In Boles, an injunction had been issued\nwhich required the closure of an adult-oriented\nestablishment which wanted to lease its premises to another\nlessee of adult products. More than 100 days had passed\nsince the premises were used for an adult-oriented\nestablishment, however, the court found that the failure to\nmaintain its non-conforming use was due to the injunction\nand not due to the intent of the owner. This court held as\nfollows:\nThe word \xe2\x80\x9cdiscontinued\xe2\x80\x9d as used in a\nzoning\nordinance\nis\ngenerally\nconstrued to be synonymous with the\nterm \xe2\x80\x9cabandoned.\xe2\x80\x9d The meaning of\nthe word \xe2\x80\x9cabandoned,\xe2\x80\x9d in the zoning\ncontext, generally includes an intention\nby the landowner to abandon as well\nas an overt act of abandonment.\nBoles, 892 S.W.2d at 420 (citing Douglas Hale Gross,\nAnnotation, Zoning: Right to Resume Nonconforming Use\nof Premises After Involuntary Break in the Continuity of\nNonconforming Use Caused by Governmental Activity, 56\nA.L.R.3d 138, 151, 152 (1974)). The Boles court noted that\nthe term \xe2\x80\x9cdiscontinued\xe2\x80\x9d or words of\nsimilar import, as utilized in zoning\nordinances\nwith\nspecific\ntime\nlimitations, should be construed to\ninclude an element of intent,\n\n340\n\n\x0ccombined with some act-or failure to\nact-indicative of abandonment\xe2\x80\xa6.\nId., 892 S.W.2d at 422. This court added that such an\nordinance will not apply \xe2\x80\x9cif the discontinuance of the nonconforming use is purely involuntary in nature.\xe2\x80\x9d Id.\nOwner further argues that there was no consolidation of\nany of the units into one unit and that repairs and\nrenovations were undertaken without any intent to\ncombine units. The separate kitchen and bath fixtures and\nappliances were maintained, ready for new tenants.\nAccording to Owner, except for the time when they were\nbeing renovated, the units were always available to let. He\nalso contends that electricity was supplied to all the units\nthroughout the relevant period and asserts that \xe2\x80\x9c[y]ou don\xe2\x80\x99t\nkeep power on in some of your rental property \xe2\x80\xa6 if you\nare abandoning that use.\xe2\x80\x9d\nAs argued by the City, the circumstances in Toles v. City of\nDyersburg, 39 S.W.3d 138 (Tenn.Ct.App.2000), are very\nsimilar to those in the present matter, namely that the\ndiscontinuance of the non-conforming use was due to the\nowners voluntarily not using the property for the nonconforming use and therefore the \xe2\x80\x9cgrandfather\xe2\x80\x9d protection\nwas lost. In Toles, this court indicated that\n[w]e read Boles to support the\nproposition that \xe2\x80\x9cintent\xe2\x80\x9d is only\nimportant where some force outside\nthe control of the property owner\nprevents the continued use of the land\nin a particular manner.\n39 S.W.3d at 141. Unlike the injunction in Boles, nothing\nprevented the prior owners of this property from renting\nout the units. As found by the trial court, there was no\nextrinsic force which prevented the leasing of the property.\n\n341\n\n\x0cThere was nothing involuntary about the cessation of the\nnon-conforming use.\nThe trial court properly determined that \xe2\x80\x9cthe protection of\nthe grandfather clause had been lost long before Owner\nbought the property on July 21, 2005\xe2\x80\x9d and \xe2\x80\x9cthe lack of any\ntenant for approximately twenty (20) months resulted in the\nloss of the grandfather clause\xe2\x80\x99s protection for 217 W.\nNewberry Street.\xe2\x80\x9d The failure of the Roberts\xe2\x80\x99 Estate\nand/or Wallis Properties, LLC to lease the property as a\ntriplex, or rent to at least two tenants, was a discontinuance\nof the non-conforming use.\nV.\nWe do not find that the evidence preponderates against\nthe trial court\xe2\x80\x99s resolution of this matter. Accordingly, the\njudgment of the trial court is affirmed. This case is\nremanded to the trial court for enforcement of the trial\ncourt\xe2\x80\x99s judgment and for collection of costs assessed\nbelow, all pursuant to applicable law. Costs on appeal are\ntaxed to the appellant, Peter H. Phillips.\nSuffolk Asphalt Supply v. Board of Trustees of Village\nof Westhampton Beach\n59 A.D.3d 429 (N.Y. App. Div. 2009)\nMASTRO, J.P., FLORIO, COVELLO AND BELEN, JJ., concur.\nThe plaintiff owns real property within the Village of\nWesthampton Beach that has been improved with an\nasphalt plant since 1945. In 1985 the Board of Trustees of\nthe Village of Westhampton Beach (hereinafter the Board\nof Trustees) amended the Village\xe2\x80\x99s zoning code so that the\nuse of the property as an asphalt plant became\nnonconforming. The plaintiff acquired the property,\nincluding the asphalt plant, in 1994.\nIn June 2000 the Board of Trustees adopted Local Law No.\n10 (2000) of Village of Westhampton Beach (hereinafter\nthe local law), which provided that the right to operate and\n\n342\n\n\x0cmaintain the nonconforming asphalt plant was to terminate\nwithin one year unless the plaintiff applied to the Zoning\nBoard of Appeals of the Village of Westhampton Beach\n(hereinafter the ZBA) for an extension of the termination\ndate, not to exceed five years from the date that the local\nlaw was adopted. The plaintiff applied to the ZBA for such\nan extension almost immediately after the enactment of the\nlocal law, and, in a determination dated May 19, 2005, the\nZBA granted the maximum extension permitted by the\nlocal law and directed the plaintiff to terminate its asphalt\noperation effective July 2, 2005.\nMeanwhile, the plaintiff commenced this action, inter alia,\nfor a judgment declaring that the local law is invalid and\nunconstitutional since, among other things, the\namortization period provided in the statute is unreasonably\nshort. After the ZBA made its determination, the plaintiff\nmoved for summary judgment declaring that the local law\nis invalid and unconstitutional.\n\xe2\x80\x9cThe validity of an amortization period depends on its\nreasonableness. We have avoided any fixed formula for\ndetermining what constitutes a reasonable period. Instead,\nwe have held that an amortization period is presumed valid,\nand the owner must carry the heavy burden of overcoming\nthat presumption by demonstrating that the loss suffered is\nso substantial that it outweighs the public benefit to be\ngained by the exercise of the police power\xe2\x80\x9d (Village of\nValatie v Smith, 83 NY2d 396, 400-401 [1994] [citations\nomitted]).\n\xe2\x80\x9cWhether an amortization period is reasonable is a question\nwhich must be answered in light of the facts of each\nparticular case\xe2\x80\x9d (Modjeska Sign Studios v Berle, 43 NY2d 468,\n479-480 [1977], appeal dismissed 439 US 809 [1978]).\n\xe2\x80\x9cReasonableness is determined by examining all the facts,\nincluding the length of the amortization period in relation\nto the investment and the nature of the use. The period of\namortization will normally increase as the amount invested\n\n343\n\n\x0cincreases or if the amortization applies to a structure rather\nthan a use\xe2\x80\x9d (Matter of Town of Islip v Caviglia, 73 NY2d 544,\n561 [1989]). Factors to be considered in determining\nreasonableness include \xe2\x80\x9cthe nature of the business of the\nproperty owner, the improvements erected on the land, the\ncharacter of the neighborhood, and the detriment caused\nthe property owner\xe2\x80\x9d (Matter of Harbison v City of Buffalo, 4\nNY2d 553, 562-563 [1958]).\n\xe2\x80\x9cTypically, the period of time allowed has been measured\nfor reasonableness by considering whether the owners had\nadequate time to recoup their investment in the use\xe2\x80\x9d\n(Village of Valatie v Smith, 83 NY2d at 401). \xe2\x80\x9cWhile an\nowner need not be given that period of time necessary to\npermit him to recoup his investment entirely, the\namortization period should not be so short as to result in a\nsubstantial loss of his investment\xe2\x80\x9d (Modjeska Sign Studios v\nBerle, 43 NY2d at 480 [citation omitted]).\nInasmuch as the plaintiff failed to submit any evidence as\nto the amount that it actually invested in the business,\nthere remains a question of fact regarding whether the\namortization period provided in the local law was\nreasonable and thus constitutional as applied to the\nplaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324\n[1986]; Chekenian v Town Bd. of Town of Smithtown, 202\nAD2d 542, 543 [1994]). With respect to the plaintiff\xe2\x80\x99s\ncontention that the brevity of the amortization period\nrendered the local law unconstitutional on its face, \xe2\x80\x9ca\nlitigant cannot sustain a facial challenge to a law when\nthat law is constitutional in its application to that litigant\xe2\x80\x9d\n(Village of Valatie v Smith, 83 NY2d at 403). Accordingly,\nthe Supreme Court properly denied the plaintiff\xe2\x80\x99s motion\nfor summary judgment.\n\n344\n\n\x0cTrip Associates v. Mayor and City Council of\nBaltimore\n898 A.2d 449 (2006)\nJohn A. Austin, Towson, for Petitioners.\nSandra R. Gutman, Chief Sol. (Thurman W. Zollicoffer, Jr.,\nCity Sol., on brief), Baltimore, for Respondent.\nBELL, CHIEF JUDGE.The question this case presents is\nwhether the Board of Municipal and Zoning Appeals (\xe2\x80\x9cthe\nBoard\xe2\x80\x9d) erred when it restricted the number of days per\nweek the appellants could operate a valid nonconforming\nuse. The appellants\xe2\x80\x99 property, located in the B-5-1 Zoning\nDistrict in Baltimore City, is being used for the operation\nof \xe2\x80\x9cClub Choices,\xe2\x80\x9d a nightclub and after-hours\nestablishment that sometimes features adult entertainment.\nThe Club is owned by the appellant, Anthony Dwight\nTriplin (\xe2\x80\x9cTriplin\xe2\x80\x9d), who also is the owner of Triplin\nAssociates, Inc. (\xe2\x80\x9cTrip\xe2\x80\x9d), the other appellant.\nTriplin purchased 1815-17 North Charles Street, the\nproperty at issue, in 1983. Prior to his purchase, the\nproperty had been a nightclub featuring adult\nentertainment, including male and female exotic dancing.\nThe adult entertainment had been presented up to five\nnights a week since 1979. When Triplin purchased the\nproperty, the applicable zoning ordinance did not prohibit\nthe use of the property as an adult entertainment facility.\nNevertheless, Triplin reduced the number of nights of nude\nor exotic dancing from five to two nights per week,\nfeaturing music and comedy on the other nights. The\nBoard approved his use of the premise as an \xe2\x80\x9cafter hours\nestablishment\xe2\x80\x9d in 1992. With this approval, the adult\nentertainment was presented after hours, exclusively.\nOn December 15, 1994, Ordinance No. 443 was enacted.\nThat ordinance, codified at Baltimore City Code, Art. 30, \xc2\xa7\n8.0-61, regulated adult entertainment businesses, \xe2\x80\x9cwhere\npersons appear in a state of total or partial nudity.\xe2\x80\x9d It also\n\n345\n\n\x0cprovided that \xe2\x80\x9c[a]ny adult entertainment business existing\non September 10, 1993 is considered a nonconforming use,\nsubject to all Class III regulations.\xe2\x80\x9d1 Baltimore City Zoning\nCode \xc2\xa7 13-609. After this Ordinance was passed, Triplin\ncontinued to use the facility as a club that provided adult\nentertainment after hours. That use was unchallenged until\nApril 14, 2000, when a Baltimore City zoning inspector\nissued a \xe2\x80\x9cCode Violation Notice and Order\xe2\x80\x9d to the Club.\nThe violation notice charged:\n\xe2\x80\x9cZONING VIOLATION\n\xe2\x80\x9c1. Using portion of premises for adult\nentertainment without first obtaining\nproper\nAdult\nEntertainment\nOrdinance and Adult Entertainment\nLicense. DISCONTINUE SAID USE.\nREMOVE\nALL\nSTOCK,\nMATERIAL, EQUIPMENT, AND\nANY\nADVERTISING\nSIGNS\nASSOCIATED WITH SAID USE.\nOBTAIN\nCERTIFICATE\nOF\nOCCUPANCY\nBEFORE\nREESTABLISHING ANY USE.\xe2\x80\x9d\nTriplin appealed to the Board. On appeal, Triplin testified\nthat Club Choices featured exotic dancing and adult\nClass III\xe2\x80\x9d is defined in the Baltimore City Zoning Code, \xc2\xa7 13-401. In describing\nwhat is regulated by the subtitle, it states:\n1\n\n\xe2\x80\x9d\xc2\xa7 13-401. Scope of subtitle.\n\xe2\x80\x9cThis subtitle applies to Class III nonconforming uses,\nwhich comprise:\n\xe2\x80\x9c(1) any nonconforming use of all or part of a structure\nthat was designated and erected primarily for a use that is\nno longer allowed in the district in which it was located;\n\xe2\x80\x9c(2) any nonconforming use of the lot on which that\nstructure is located; and\n\xe2\x80\x9c(3) any nonconforming use of land or structures not\nregulated as Class I or Class II.\xe2\x80\x9d\n\n346\n\n\x0centertainment two times a week, Wednesdays and Fridays,\nfor two hours each night. That testimony was confirmed by\nemployees, who offered further that such dancing with\npartial nudity has been presented two nights per week since\n1983.\nThe Board ruled:\n\xe2\x80\x9c1 \xe2\x80\xa6 . [A]dult entertainment may be\ncontinued two nights during the week.\n\xe2\x80\x9cThe Board finds that a nonconforming use of the premises for\nadult\nentertainment\nhad\nbeen\nestablished prior to Ordinance 443\n(adult\nentertainment\nbusiness\napproved December 15, 1994) and\nmay be continued under Subsection\n13-402 of the Zoning Code. The\nBoard finds that with the above\ncondition that the request would not\nbe detrimental to or endanger the\npublic health, security, general welfare,\nor morals or be injurious to the use\nand enjoyment of other property in the\nimmediate vicinity, nor substantially\ndiminish and impair property values in\nthe neighborhood. Further, and as\nagreed by the appellant that this is\nspecifically for the appellant Mr.\nTriplin, the owner and operator of the\nsubject site and a copy of the\nresolution/decision is to be recorded\nin the land records of Baltimore City\nand the appellant is to provide to the\nBoard a court certified copy to be\nplaced in the file \xe2\x80\xa6 as part of the\nrecord. The purpose of the recording\nrequirement is to give the Charles\nNorth Community Association legal\nstanding to enjoin any uses as adult\n\n347\n\n\x0centertainment to a subsequent\npurchaser,\nowner,\nlessee\nor\noperator\xe2\x80\xa6.\n\xe2\x80\x9cIn accordance with the above facts\nand findings and subject to the\naforementioned condition, (adult\nentertainment two nights a week only)\nthe Board approves the application.\xe2\x80\x9d\nBoard of Municipal and Zoning Appeals, Appeal No. 32700X, October 12, 2000. Thus, the Board, despite finding\nthat Club Choices was a valid nonconforming use, limited\nthat use, based on the testimony, to two nights per week.\nTriplin petitioned the Circuit Court for Baltimore City for\njudicial review of the Board\xe2\x80\x99s decision. That court affirmed\nthe Board\xe2\x80\x99s decision \xe2\x80\xa6 .\nA.Title 13 of the Baltimore City Zoning Code establishes\nthe zoning districts in Baltimore, and \xe2\x80\x9cprovides for the\nregulation of nonconforming uses and noncomplying\nstructures existing in the various districts.\xe2\x80\x9d Baltimore City\nZoning Code \xc2\xa7 13-102. Under the Baltimore City Zoning\nCode, a \xe2\x80\x9cnonconforming use\xe2\x80\x9d is defined as \xe2\x80\x9cany lawfully\nexisting use of a structure or of land that does not conform\nto the applicable use regulations of the district in which it is\nlocated.\xe2\x80\x9d Baltimore City Zoning Code \xc2\xa7 13-101(c). A valid\nand lawful nonconforming use is established if a property\nowner can demonstrate that before, and at the time of, the\nadoption of a new zoning ordinance, the property was\nbeing used in a then-lawful manner for a use that, by later\nlegislation, became non-permitted.\nAs the Court of Special Appeals recognized,\nnonconforming uses are not favored. County Council v.\nGardner, Inc., 293 Md. at 268, 443 A.2d at 119 (\xe2\x80\x9cThese local\nordinances must be strictly construed in order to effectuate\nthe purpose of eliminating nonconforming uses.\xe2\x80\x9d); Grant v.\nMayor and City Council of Baltimore, 212 Md. 301, 308, 129\n\n348\n\n\x0cA.2d 363, 365 (1957) (\xe2\x80\x9cIndeed, there is general agreement\nthat the fundamental problem facing zoning is the inability\nto eliminate the nonconforming use\xe2\x80\x9d); Colati v. Jirout, 186\nMd. 652, 657, 47 A.2d 613, 615 (1946) (noting that the\nspirit of the Baltimore City Zoning Ordinance is against the\nextension of nonconforming uses). Indeed, in Grant, this\nCourt stated, \xe2\x80\x9c[T]he earnest aim and ultimate purpose of\nzoning was and is to reduce nonconformance to\nconformance as speedily as possible with due regard to the\nlegitimate interests of all concerned.\xe2\x80\x9d 212 Md. at 307, 129\nA.2d at 365. The context for this conclusion was the\nhistorical development of the nonconforming use, which\nthe Court also detailed:\n\xe2\x80\x9cNonconforming uses have been a\nproblem since the inception of zoning.\nOriginally they were not regarded as\nserious handicaps to its effective\noperation; it was felt they would be\nfew and likely to be eliminated by the\npassage of time and restrictions on\ntheir expansion. For these reasons and\nbecause it was thought that to require\nimmediate cessation would be harsh\nand unreasonable, a deprivation of\nrights in property out of proportion to\nthe public benefits to be obtained and,\nso, unconstitutional, and finally a red\nflag to property owners at a time when\nstrong opposition might have\njeopardized the chance of any zoning,\nmost, if not all, zoning ordinances\nprovided that lawful uses existing on\nthe effective date of the law could\ncontinue although such uses could not\nthereafter be begun.\xe2\x80\x9d\nId.\n\n349\n\n\x0cNevertheless, a \xe2\x80\x9cnonconforming use is a vested right\nentitled to constitutional protection.\xe2\x80\x9d Amereihn v. Kotras, 194\nMd. 591, 601, 71 A.2d 865, 869 (1950). The Court in\nAmereihn made that point forcefully. There, after the area in\nwhich a light manufacturing plant was located was zoned as\nresidential, the neighbors brought a complaint, praying that\nthe new owners of the plant be restrained from using the\nproperty for manufacturing purposes. This Court, in ruling\nagainst the neighbors, pointed out:\n\xe2\x80\x9cIf a property is used for a factory, and\nthereafter the neighborhood in which\nit is located is zoned residential, if such\nregulations applied to the factory it\nwould cease to exist, and the zoning\nregulation would have the effect of\nconfiscating such property and\ndestroying a vested right therein of the\nowner. Manifestly this cannot be done,\nbecause it would amount to a\nconfiscation of the property.\xe2\x80\x9d\n194 Md. at 601, 71 A.2d at 869 (citations omitted). See also\nBoard of Zoning Appeals of Howard County v. Meyer, 207 Md.\n389, 114 A.2d 626 (1955), in which the Court of Appeals\nheld that an owner of a truck manufacturing plant on land\nthat had been rezoned as residential had a valid\nnonconforming use, observing, \xe2\x80\x9c[t]he law is established\nthat the zoning of an area as residential cannot apply to a\npreviously established factory in that area, which is entitled\nunder the circumstances to constitutional protection.\xe2\x80\x9d 207\nMd. at 394, 114 A.2d at 628.\nA nonconforming use may be reduced to conformance or\neliminated in two ways: by \xe2\x80\x9camortization,\xe2\x80\x9d that is, requiring\nits termination over a reasonable period of time, and by\n\xe2\x80\x9cabandonment,\xe2\x80\x9d i.e. non-use for a specific of time. Thus, in\nGrant, the Court held that an amortization period of five\nyears to remove nonconforming billboards was valid, and\n\n350\n\n\x0cthat a five-year period was not an arbitrary time period. 212\nMd. at 316, 129 A.2d at 370.\nThe Baltimore City ordinance takes the \xe2\x80\x9cabandonment\xe2\x80\x9d\napproach. Section 13-406, as we have seen, prohibits the\nexpansion of any nonconforming use, except as authorized\nby the Board. Under \xc2\xa7 13-407, \xe2\x80\x9cDiscontinuance or\nabandonment,\xe2\x80\x9d the failure actively and continuously to\noperate the nonconforming use results in its abandonment.\nThat section provides:\n\xe2\x80\x9c(a) Discontinuance or abandonment\n\xe2\x80\x9c(1) Except as specified in this section,\nwhenever the active and continuous\noperation\nof\nany\nClass\nIII\nnonconforming use, or any part of that\nuse, has been discontinued for 12\nconsecutive months:\n\xe2\x80\x9c(i) the discontinuance constitutes an\nabandonment of the discontinued\nnonconforming use, or discontinued\npart of that use, regardless of any\nreservation of an intent to resume\nactive operations or otherwise not\nabandon the use; and\n\xe2\x80\x9c(ii)\nthe\ndiscontinued\nnonconforming use, or discontinued\npart of that use:\n\xe2\x80\x9c(A)\nmay\nnot\nreestablished; and\n\nbe\n\n\xe2\x80\x9c(B) any subsequent use of\nany part of the land or\nstructure previously used for\nthe discontinued use, or\ndiscontinued part of that use,\nmust conform to the\n\n351\n\n\x0cregulations of the district in\nwhich the land or structure is\nlocated.\n\xe2\x80\x9c(2) In accordance with Subtitle 7\n{\xe2\x80\x9cModifications and Continuances\nby Board\xe2\x80\x9d} of this title, the Board\nmay extend the time limit for\ndiscontinuance for 1 or more\nadditional periods. In no case,\nhowever, may the total of the\nadditional\ntime\nexceed\n12\nmonths.\xe2\x80\x9d\nAbandonment, as the foregoing ordinance confirms,\nfocuses not on the owner\xe2\x80\x99s intent, but rather, on whether\nthe owner failed to use the property as a nonconforming\nuse in the time period specified in the zoning ordinance. See\nCatonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 581,\n709 A.2d 749, 759 (1998) (\xe2\x80\x9cThere is no hard and fast rule in\nnonconforming use abandonments that intent to abandon\nmust be actually shown when the zoning ordinance or\nstatute utilizes the word \xe2\x80\x98abandonment\xe2\x80\x99\xe2\x80\x9c).\nOn the other hand, the abandonment or discontinuance\nmust be active and actual. In Mayor and City Council of\nBaltimore v. Dembo, Inc., 123 Md.App. 527, 719 A.2d 1007\n(1998), the Court of Special Appeals discussed whether the\nfailure of a property owner to apply for a license to operate\nan adult entertainment business after the passage of an\nordinance, in that case, Ordinance 443, the same one as\ninvolved in this case, which prohibited such business in the\ndistrict in which it was located, constituted \xe2\x80\x9cabandonment\xe2\x80\x9d\nof the nonconforming use, notwithstanding that he had\nactually used the property in that nonconforming manner\nthroughout the subject period. There, Donald Dembo\nowned an adult entertainment establishment called the\n\xe2\x80\x9cGentleman\xe2\x80\x99s Gold Club\xe2\x80\x9d (\xe2\x80\x9cthe Gold Club\xe2\x80\x9d) which, like\nTriplin\xe2\x80\x99s club, was located in a zoning district in which it\n\n352\n\n\x0cwas not permitted. Like Club Choices, however, the Gold\nClub\xe2\x80\x99s use was a valid nonconforming use, having preexisted the ordinance that excluded that use. The city\nargued that, by using the property without the required\nlicense for two years, Dembo had essentially terminated his\nonce lawful nonconforming use. Addressing for the first\ntime whether or not a failure to apply for a license\nconstituted an abandonment of a lawful nonconforming\nuse, the Court of Special Appeals, after analyzing how\nother jurisdictions approached the issue, concluded:\n\xe2\x80\x9cWe shall follow the majority of\njurisdictions and apply the rule that a\nvalid nonconforming use will not be\nforfeited by the failure of the business\nowner to secure a license to operate\nhis business. We consider that this rule\naccords reasonable protection to the\nproperty right that has been long\nrecognized under Maryland law as a\nvested right subject to constitutional\nprotection.\xe2\x80\x9d\n123 Md.App. at 541, 719 A.2d at 1015. Furthermore, the\nCourt of Special Appeals held that, even without the\nlicense, \xe2\x80\x9cDembo retain[ed] its vested nonconforming use\nstatus to operate a business with adult entertainment. ..\xe2\x80\x9d.\nThere is no issue with regard to Club Choices\xe2\x80\x99 status; it is a\nvalid Class III nonconforming use property under \xc2\xa7 13-609\nof the Zoning Code. It is an adult-entertainment business,\npresently existing, that was also operating as such on\nSeptember 10, 1993, as \xc2\xa7 13-609 specifies. As to that status,\nthere is no contention that Triplin has abandoned or\ndiscontinued it, at least in whole. The issue is, as the Court\nof Special Appeals has framed it, whether using the valid\nnonconforming use more frequently than it was being used\nwhen the use became nonconforming\xe2\x80\x93presenting adult\nentertainment more than two nights per week\xe2\x80\x93would be a\n\n353\n\n\x0cprohibited expansion of the use or a mere intensification of\nthe use.\nB.Despite Maryland\xe2\x80\x99s well settled policy against\nnonconforming use and the Baltimore City Zoning Code\xe2\x80\x99s\nexplicit prohibition against expansion of those uses,\nBaltimore City Zoning Code \xc2\xa7 13-406, Maryland\nrecognizes, and our cases have held, that an intensification\nof a nonconforming use is permissible, so long as the\nnature and character of that use is unchanged and is\nsubstantially the same.\nIn Green, supra, 192 Md. 52, 63 A.2d 326, citizens of\nBaltimore City sought to enjoin the Department of\nRecreation and Parks of Baltimore City and the Baltimore\nBaseball and Exhibition Company from allowing\nprofessional baseball to be played at Baltimore Stadium,\nand further to enjoin the use of the loud speaker system,\nthe flood lights, and the parking facilities nearby. Baltimore\nStadium was constructed prior to 1931, when the district in\nwhich it was located was rezoned residential, 192 Md. at 63,\n63 A.2d at 330, after which it was used infrequently for\nfootball games, track meets and civic events. It was used\nmore frequently after 1939, when lights were installed, a\nspeaker system having been installed earlier. 192 Md. at 57,\n63 A.2d at 327-328. That increased use consisted mainly of\nfootball games and other events, not baseball games. In\n1944, however, a fire destroyed the baseball stadium, then\nknown as Oriole Park. This resulted in more baseball\ngames being played at Baltimore Stadium. 192 Md. at 5758, 63 A.2d at 328.\nWhen that occurred, neighboring citizens contended that\nthe use of the Stadium for baseball games for a\nconsiderable portion of the year was an enlargement of the\nvalid nonconforming use of the Stadium and, therefore,\ncontravened the zoning ordinance. 192 Md. at 63, 63 A.2d\nat 330. They pointed out that, when the zoning ordinance\nwas enacted, the nonconforming use consisted of\n\n354\n\n\x0cprofessional football games and the infrequent, at best,\nbaseball game. This Court disagreed. Id. Acknowledging\nthat the \xe2\x80\x9cspirit of the zoning ordinance is against the\nextension of nonconforming uses and that such uses\nshould not be perpetuated any longer than necessary,\xe2\x80\x9d we\nobserved:\n\xe2\x80\x9cWe have never held that the more\nfrequent use of a property for a\npurpose which does not conform to\nthe ordinary restrictions of the\nneighborhood is an extension of an\ninfrequent use of the same building for\na similar purpose. We do not think\nsuch a contention is tenable. Nor does\nit seem to us that a different use is\nmade of the Stadium when the players\nof games there are paid. The use of the\nproperty remains the same.\xe2\x80\x9d\n192 Md. at 63, 63 A.2d at 330. This Court concluded, \xe2\x80\x9cwe\nfind that the Department had and has power to lease the\nStadium\xe2\x80\xa6 for the purposes of professional baseball, and\nthat such use is not an extension of the non-conforming\nuse heretofore existing\xe2\x80\xa6.\xe2\x80\x9d 192 Md. at 63-64, 63 A.2d at\n330-331.\nIn Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954), this\nCourt addressed the question of whether increased usage of\nnonconforming property constituted an unlawful extension\nof that use or was simply an intensification of the use. At\nissue was property on which a garage had been built in\n1920, on which cars of nearby residents were parked. In\nfront of the garage was an open area, \xe2\x80\x9csome 164 feet by\n129 feet.\xe2\x80\x9d 205 Md. at 153, 106 A.2d at 484. In 1931, after\nthe neighborhood where the garage was located had been\nclassified as a residential use district, the garage operation\ncontinued without change. 205 Md. at 153, 106 A.2d at 484.\nIn 1950, the owners of the garage contracted with a new\n\n355\n\n\x0ccar company to use the open space for the storage of new\ncars. 205 Md. at 154, 106 A.2d at 484. In 1953, a complaint\nwas made by neighbors that the property was being used in\nviolation of the zoning ordinance. 205 Md. at 154, 106\nA.2d at 484. The Board of Municipal and Zoning Appeals\nheld that, while the garage owner had a valid\nnonconforming use for parking, storage and washing motor\nvehicles and the sale of gasoline and accessories, that use\nwas restricted by the nature and extent of the use to which\nthe open area in front of the garage was put in 1931, the\nresult of which was that no more than ten vehicles could be\nstored on the lot at any one time. 205 Md. at 154, 106 A.2d\nat 484-485. The Baltimore City Court reversed, striking\ndown the restriction \xe2\x80\x9csince it amounted to an attempted\nprohibition of a legally valid intensification of use.\xe2\x80\x9d 205\nMd. at 156, 106 A.2d at 485. On appeal, this Court rejected\nthe appellant\xe2\x80\x99s argument that, without the restriction the\nzoning board placed on the number of cars that could be\nstored in the open space, there would be a prohibited\nextension of a non-conforming use. 205 Md. at 161, 106\nA.2d at 488. Explaining our decision, this Court held:\n\xe2\x80\x9c[H]ere there is not an extension but\nmerely an intensification of a long\ncontinued non-conforming use. In\nGreen v. Garrett, \xe2\x80\xa6 [t]his Court held\nthat \xe2\x80\xa6 \xe2\x80\x98more frequent use of a\nproperty for a purpose which does not\nconform to the ordinary restrictions of\nthe neighborhood is an extension of\nan infrequent use of the same building\nfor a similar purpose. We do not think\nsuch a contention is tenable.\xe2\x80\x99 \xe2\x80\xa6 It was\nheld that although there was no doubt\nthat the games played at the stadium\nhad produced a use greatly in excess of\nthe former use, that intensification was\n\n356\n\n\x0cnot an extension within the meaning\nof the Zoning Ordinance.\n\xe2\x80\x9cWe think that the present case is\ncontrolled by the principle of the\nGreen case and that the court below\nwas right in striking down the\nrestriction which the Board had placed\non the use of the open space in front\nof the garage, and in affirming\notherwise the findings of the Board.\xe2\x80\x9d\n205 Md. at 161-162, 106 A.2d at 488, citing and quoting Green,\n192 Md. at 63, 63 A.2d at 330.\nJahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967), is\nsimilarly instructive. There, a decree by the Circuit Court\nfor Anne Arundel County, in addition to restrictions related\nto and involving expansions of physical facilities, including\nthe extension of a pier, occurring after the zoning which\nprohibited any non-conforming use to those uses in effect\nprior to the date of its adoption, 245 Md. at 133, 225 A.2d\nat 279, restricted the nonconforming use of marina\nproperty to the rental of seven rowboats. The waterfront\nproperty had been used by its previous owners as a boat\nrental property dating from 1946, when a pier was attached\nto the land, and continuing after 1949, when a\ncomprehensive zoning ordinance rezoned the land and\nplaced the property into an agricultural classification.\nOn appeal, this Court reaffirmed the principle that\nalthough the purpose of zoning regulations is to restrict\nrather than to expand nonconforming uses, Phillips v. Zoning\nCommissioner, 225 Md. 102, 169 A.2d 410 (1961), an\nintensification of a non-conforming use is permissible so\nlong as the nature and character of the use is unchanged\nand substantially the same facilities are used. 245 Md. at\n137, 225 A.2d at 281, see also Nyburg, 205 Md. 150, 106 A.2d\n483. While physical expansions like constructing a new pier\n\n357\n\n\x0cand use of the land for services other than what was already\npresent prior to the effective date of the ordinance were\nheld to be invalid extensions of the nonconforming use,\n245 Md. at 138, 225 A.2d at 282, this Court decided that\n\xe2\x80\x9c[a]ny increase in the number of rowboats rented would be\nan intensification of [the] non-conforming use and would\nnot be an extension.\xe2\x80\x9d 245 Md. at 138, 225 A.2d at 282. The\nintensification of a non-conforming use, in short, is\npermissible so long as the nature and character of the use is\nunchanged and substantially the same facilities are used.\n245 Md. at 137, 225 A.2d at 281.\nTo like effect is Feldstein v. LaVale Zoning Board, 246 Md.\n204, 227 A.2d 731 (1967). In that case, the issue involved\nwhether the expansion of a high rise junkyard owned by the\nappellant was an extension of a nonconforming use or an\nintensification of a nonconforming use. The junkyard,\noperating since 1939, was surrounded by property that was\nlater rezoned for residential use. The junkyard was\nrecognized as a nonconforming use; however, the zoning\nordinance provided that \xe2\x80\x9call presently existing junkyards\nmust be screened within a year by the erection of a fence or\nwall or by the planting of trees, shrubbery or other\nplanting.\xe2\x80\x9d 246 Md. at 207-208, 227 A.2d at 732. The\nappellant had stacked scrap metal higher than it was able to\nbe concealed. The zoning board alleged, on that basis, that\nthe owner had unlawfully expanded the nonconforming\nuse, and sought an order permanently enjoining the\nextension of the junkyard beyond the area occupied at the\ntime the zoning ordinance was adopted. 246 Md. at 208,\n227 A.2d at 732.\nThe chancellors who heard the cases2 found that the\nstacking of junk was not an extension of the\nnonconforming use, in violation of the zoning ordinance;\nTwo judges, Harold E. Naughton and James S. Getty, sat for this zoning case in\nthe Circuit Court for Allegany County.\n2\n\n358\n\n\x0crather, it was, they concluded, an intensification of that use.\n246 Md. at 209, 227 A.2d at 733. This Court agreed:\n\xe2\x80\x9cThe zoning ordinance \xe2\x80\xa6 provides\nthat a nonconforming use shall not be\nextended, but that does not mean that\nthe vested nonconforming use of the\njunkyard owner could not be lawfully\nintensified. The chancellors held that\nthe increase in the quantity and height\nof the stored scrap metal was an\nintensification and not an extension\nunder the law. We agree \xe2\x80\xa6 . While a\nnonconforming use should not be\nextended or perpetrated longer than\nnecessary, the more frequent present\nuse of property for the same or a\nsimilar use than that for which it had\nbeen used less frequently theretofore\nwas held to be an intensification and\nnot an extension.\xe2\x80\x9d\n246 Md. at 211, 227 A.2d at 734, citing Green, 192 Md. 52, 63\nA.2d 326; Nyburg, 205 Md. 150, 106 A.2d 483. Jahnigen, 245\nMd. 130, 225 A.2d 277. See also County Commissioners of\nCarroll County v. Zent, 86 Md.App. 745, 587 A.2d 1205\n(1991), in which the Court of Special Appeals, addressing a\nparcel of land in Carroll County, Maryland, that was zoned\nfor agricultural use in 1965, but had had a milk delivery\ntrucking business on its land since 1923, opined that an\nincrease in the number of decommissioned delivery trucks\nstored for parts on property owned by the business would\nbe an intensification of the nonconforming use for which it\nwas using the property, not an illegal extension. 86\nMd.App. at 757, 587 A.2d at 1211.\nIn these cases, we have consistently held that merely\nincreasing the frequency of a nonconforming use did not\nconstitute an unlawful extension; rather, it was but an\n\n359\n\n\x0cintensification of the use. The Court of Special Appeals\ndistinguishes these cases on the basis that none of them,\nwith the exception of Green, dealt with the situation\npresented in this case:\n\xe2\x80\x9cBut none of these cases involved an\nexpansion of the temporal limits of\noperation. Each concerned, at most,\nincreasing the amount of business\nperformed within an existing temporal\nframework-in other words, intensifying\nthe use of the premises during existing\nbusiness hours.\xe2\x80\x9d\n151 Md.App. at 179-80, 824 A.2d at 984-85.\nTo be sure, as the intermediate appellate court noted, the\ncases, with the exception of Green, do not address the\nsituation sub judice. On the other hand, Green did not draw,\nexpressly or otherwise, the distinction that the Court of\nSpecial Appeals draws; we did not, in Green, say, or signal in\nany way, that any increase in the nonconforming use,\nexcept temporally, by adding days or hours of operation,\nwould be an intensification, but that the temporal\nmodification would be an unlawful expansion of the use.\nWe do not read the cases so narrowly. In each of the cases,\nthe frequency of the use of the subject property in the\nnonconforming manner was increased, often significantly\nso, without regard to the hours of operation. Their focus\nwas, as it should be, on the actual use made of the property,\nnot the times when that use occurs.\nIf the intermediate appellate court is correct, Green is no\nlonger good law and our definition of \xe2\x80\x9cintensification\xe2\x80\x9d is\nmisleading, if not largely meaningless. Indeed, the concept\nof intensification would have no meaning at all in the\nnightclub context, or in any other where there are discrete\nhours of operation, such as retail. In Feldstein, we\ndistinguished an \xe2\x80\x9cintensification\xe2\x80\x9d of a nonconforming use\n\n360\n\n\x0cfrom an \xe2\x80\x9cextension\xe2\x80\x9d of such use, noting that the former is\n\xe2\x80\x9cthe more frequent present use of property for the same or\na similar use than that for which it had been used less\nfrequently theretofore.\xe2\x80\x9d 246 Md. at 211, 227 A.2d at 734.\nIncreasing the number of nights on which adult\nentertainment is presented at Club Choices from two to\nfive, for example, would fit within the definition of\n\xe2\x80\x9cintensification\xe2\x80\x9d\xe2\x80\x93it would be a \xe2\x80\x9cmore frequent present use\nof property for the same or a similar use than that for\nwhich it had been used less frequently theretofore.\xe2\x80\x9d In fact,\nthat was the rationale for Green; going from infrequent\nbaseball games to their presentation for much of the year\nseems a similar, if not identical, scenario.\nAs we have seen, the Court of Special Appeals views Green\nas being \xe2\x80\x9cof little precedential value,\xe2\x80\x9d 151 Md.App. at 180,\n824 A.2d at 985, if not inapplicable. We have not overruled\nGreen, we do not now do so. Moreover, we are not at all\nsure of the accuracy of the intermediate appellate court\xe2\x80\x99s\nobservation with respect to the timing of the Green\ndecision, \xe2\x80\x9cbefore the zoning administrative process was\ncreated,\xe2\x80\x9d 151 Md.App. at 180, 824 A.2d at 983, with the\nresult that \xe2\x80\x9cthe deference owed an administrative body\xe2\x80\x99s\ninterpretation of its governing statute and the substantial\nevidence rule played no role in the Court\xe2\x80\x99s decision.\xe2\x80\x9d Id.\nThe zoning ordinance was enacted in 1931 and we can\nassume that its implementation was entrusted to an\nadministrative agency. The case did not proceed through\nthe administrative process, however. It was an action for\ninjunctive and declaratory relief. Therefore, the\nadministrative agency was not called upon to, and, thus, did\nnot opine on the subject. Had it done so, the deference due\nit would not have carried the day. The Court, in any event,\nwould have been required to decide whether that\nconclusion of law, to which deference was due, was correct.\nNor are we persuaded by the out-of-state cases upon which\nthe appellees and the Court of Special Appeals relied. Garb-\n\n361\n\n\x0cKo v. Carrollton Township, 86 Mich. App. 350, 272 N.W.2d\n654 supports the proposition for which it is offered, the\nCourt of Appeals of Michigan having answered in the\naffirmative the question, \xe2\x80\x9cwhether the extension of hours\nof a grocery store operating as a nonconforming use\nconstitutes an expansion of the nonconforming use which\ncan be lawfully restricted by the defendant township.\xe2\x80\x9d 86\nMich.App. at 352-353, 272 N.W.2d at 655. It did so,\nhowever, on the basis of the following Michigan policies:\n\xe2\x80\x9cthat the continuation of a nonconforming use must be\nsubstantially of the same size and same essential nature as\nthe use existing at the time of passage of a valid zoning\nordinance\xe2\x80\x9d and that \xe2\x80\x9c[t]he policy of the law is against the\nextension or enlargement of nonconforming uses, and\nzoning regulations should be strictly construed with respect\nto expansion.\xe2\x80\x9d Id. at 353, 272 N.W.2d at 655, quoting Norton\nShores v. Carr, 81 Mich.App. 715, 720, 265 N.W.2d 802, 805\n(1978); Dearden v. Detroit, 70 Mich.App. 163, 169, 245\nN.W.2d 700, 703 (1976); White Lake Township v. Lustig, 10\nMich.App. 665, 674, 160 N.W.2d 353, 357 (1968). These\npolicies would prohibit the distinction between\nintensification and expansion that is, and long has been,\nrecognized in Maryland.\nTime-Low Corp. v. City of LaPorte Bd. of Zoning Appeals,\n547 N.E.2d 877 (Ind. Ct.App.1989) also is distinguishable\nfrom the case sub judice. Time-Low purchased a plot of land\non which there was a filling station and then applied for a\nbuilding permit to convert the filling station to a\nconvenience store and gas station. The LaPorte Board of\nZoning Appeals issued the building permit, but limited the\nhours of operation of the convenience store. As relevant,\nLaPorte\xe2\x80\x99s Zoning Ordinance Code provided:\n\n362\n\n\x0c\xe2\x80\x9d18.57.030 Change to other nonconforming\nuse.\n\xe2\x80\x9cA. A nonconforming use may not be\nchanged to any other nonconforming\nuse without the permission of the\nboard of zoning appeals regardless of\nwhether or not structural changes are\nmade or required to be made in the\nbuilding or premises.\n\xe2\x80\x9cB. A nonconforming use changed to\na conforming use may not thereafter\nbe\nchanged\nback\nto\nany\nnonconforming use without the\npermission of the board of zoning\nappeals. (Prior code \xc2\xa7 29-96)\n******\n\xe2\x80\x9d18.57.060 Remodeling, addition to or\nalteration of existing use.\n\xe2\x80\x9cA lawful nonconforming use existing\nat the time of the passage of the\nordinance codified in this title shall not\nbe remodeled, added to or structurally\naltered without the permission of the\nboard of zoning appeals. (Prior code \xc2\xa7\n29-99)\xe2\x80\x9d\nThe Court of Appeals of Indiana, Third District, agreed\nthat the change in nonconforming use that the applicant\nsought required approval by the Board, and, thus, was\nsubject to Board regulation. 547 N.E.2d at 879. In support\nof its conclusion, the court identified a list of physical\nchanges, which it characterized as extensive and which it\ndetermined required Board approval. 547 N.E.2d at 879.\nAccordingly, it was in this context that the court stated:\n\n363\n\n\x0c\xe2\x80\x9cThe Board of Zoning Appeals \xe2\x80\xa6.\nmay use its judgment and discretion in\nmaking such modification of the\n[building commissioner\xe2\x80\x99s] order and\nattach such conditions and restrictions\nto the granting of a variance as in its\nopinion should be made, so that the\nspirit of the ordinance shall be\nobserved and substantial justice done.\xe2\x80\x9d\n547 N.E.2d at 880, citing City of E. Chicago v. Sinclair Ref. Co.,\n232 Ind. 295, 313-314, 111 N.E.2d 459, 467 (1953).\nThe other two cases, Incorporated Village v. Hillside Ave.\nRestaurant Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977),\nand Cornell Uniforms, Inc. v. Township of Abington, 8\nPa.Cmwlth. 317, 301 A.2d 113, 116 (1973), are both\ndistinguishable and unpersuasive. Cornell Uniforms, like TimeLow, involved temporal restrictions imposed in the wake of\nthe substantial physical changes to the property that the\napplicant sought when changing its nonconforming use. In\nIncorporated Village, while the court upheld restrictions\nplaced on the operating hours of an adult entertainment\nclub, its rationale for doing so is, to say the least, sparse; the\ncourt provides little in the way of reasoning as to why it\npossessed the authority to temporally restrict the hours of\nthe nonconforming use.\n[Reversed.]\n3.9. Vested Rights\nMetro. Dev. Comm\xe2\x80\x99n v. Pinnacle Media\n836 N.E.2d 422 (Ind. 2005)\nAnthony W. Overholt, Jeffrey S. McQuary, Office of\nCorporation Counsel, Indianapolis, for Appellant.\nAlan S. Townsend, George T. Patton, Jr., Paul D. Vink,\nIndianapolis, for Appellee.SULLIVAN, JUSTICE.\n\n364\n\n\x0cPinnacle Media, LLC, seeks a declaration that a change in\nthe zoning ordinance of the City of Indianapolis\nconcerning billboard location permits is not applicable to\nits plan to erect 10 billboards in Indianapolis. Because no\nconstruction or other work that gave Pinnacle a vested\ninterest in the billboard project had begun on the billboards\nat the time of the ordinance change, the ordinance change\ndid apply to the 10 billboards.\nBackgroundPinnacle Media, LLC, erects and leases\nadvertising billboards. In July, 1999, after some period of\ndiscussion, the City of Indianapolis advised Pinnacle in\nwriting that the City\xe2\x80\x99s billboard location permit regulation\ndid not apply with respect to billboards proposed to be\nerected in interstate highway rights-of-way because those\nrights-of-way were not covered by the City\xe2\x80\x99s zoning\nordinance.\nPinnacle thereupon embarked on a plan to erect billboards\nwithout applying to the City for a permit. Its plan consisted\nof three steps. First, it would lease land for this purpose\nfrom Hoosier Heritage Port Authority, an entity that\nowned abandoned railroad rights-of-way at points where\nthe abandoned railroad rights-of-way intersected with or\nwere otherwise coextensive with interstate highway rightsof-way. Second, it would seek permits from State\ngovernment, specifically, the Indiana Department of\nTransportation (\xe2\x80\x9cINDOT\xe2\x80\x9d), which is responsible for\ninterstate highways. Third, it would erect the billboards\nwithout seeking any approval from the City. Following this\nplan, Pinnacle erected two billboards in 1999, after leasing\nrights-of-way and obtaining INDOT permits.\nShortly thereafter, Pinnacle initiated efforts to erect 15\nadditional billboards by securing additional leases and\nsubmitting additional applications to INDOT. The last of\nthese applications was submitted on April 19, 2000. A\nperiod of negotiation with the State followed during which\nINDOT initially denied all 15 of the applications. Pinnacle\n\n365\n\n\x0cappealed the denials and ultimately entered into a\nsettlement with the State. Well over a year later, on June 18,\n2001, INDOT approved 10 of the applications and\nPinnacle abandoned its request for the other five in\naccordance with the settlement.\nMeanwhile, following the erection of the two initial\nbillboards, the City re-examined its policy in respect of\nexcluding interstate highway rights-of-way from the\ncoverage of its zoning ordinance. On April 26, 2000, the\nCity officially proposed an amendment to this effect to its\nzoning ordinance. Pinnacle and other interested parties\nreceived notice of the proposed amendment on April 28,\nand were given the opportunity to appear at a public\nhearing on the matter on May 17. On July 10, 2000, the\nCity-County Council enacted into law an amendment to the\nzoning ordinance, assigning zoning classifications to the\npreviously un-zoned land occupied by interstate highways.\nIndianapolis/Marion County Rev.Code \xc2\xa7\xc2\xa7 730-100 through\n-103. This had the effect of making the City\xe2\x80\x99s billboard\nlocation permit applicable to billboards proposed to be\nerected in interstate highway rights-of-way.\nFollowing receipt of the INDOT approvals in 2001,\nPinnacle began erecting one of the billboards. The\nCity issued a stop work order on grounds that\nPinnacle had not obtained the permit for the billboard\nrequired by the amended zoning ordinance.1 Pinnacle\nceased construction and subsequently filed suit against\nthe City, seeking a declaration that the amendment to\nthe zoning ordinance was inapplicable to the 10\npermits and that the stop work order was void and\nunenforceable. The City filed a motion to dismiss,\nAfter this lawsuit was filed, the City took the position that Pinnacle needed the\nCity\xe2\x80\x99s approval to erect billboards even before the zoning ordinance was amended.\nBecause we hold that the amended ordinance governs the 10 billboards at issue\nhere, we need not address this contention.\n1\n\n366\n\n\x0cwhich the trial court denied,2 and both parties\nsubsequently filed for summary judgment. The trial\ncourt granted summary judgment in favor of Pinnacle\nand also concluded that Pinnacle was entitled to\nattorney fees because the City engaged in \xe2\x80\x9cfrivolous,\nunreasonable, or groundless litigation.\xe2\x80\x9d Appellant\xe2\x80\x99s\nApp. at 9-10. The Court of Appeals affirmed the\ndetermination of the trial court that the amendment to\nthe zoning ordinance was inapplicable to the 10\npermits but reversed the trial court on the attorney\nfees issue. Metro. Dev. Comm\xe2\x80\x99n v. Pinnacle Media, LLC,\n811 N.E.2d 404, 414 (Ind.Ct.App.2004). We now\ngrant transfer and reverse the judgment of the trial\ncourt.Discussion\nIThe question of whether Pinnacle\xe2\x80\x99s 10 billboards are\nsubject to the 2000 zoning ordinance amendment\nimplicates two disparate lines of Indiana cases. Both lines\nemploy the term \xe2\x80\x9cvested rights\xe2\x80\x9d and generally stand for the\nproposition that a person\xe2\x80\x99s \xe2\x80\x9cvested rights\xe2\x80\x9d are protected\nagainst retroactive application of a change in law. But each\nline takes a quite different approach to defining or\ndetermining when a \xe2\x80\x9cvested right\xe2\x80\x9d exists, and these\napproaches can lead to different results.\nAThe first line of cases arises under a zoning law principle\ncalled \xe2\x80\x9cnonconforming use.\xe2\x80\x9d A nonconforming use is a use\nIn denying the City\xe2\x80\x99s motion, the trial court found that the City was estopped\nfrom arguing that the doctrine of vested rights did not apply because Pinnacle\ndetrimentally relied on the City\xe2\x80\x99s representations that it did not have jurisdiction to\nissue the improvement location permits. Order on Defendant\xe2\x80\x99s Motion to Dismiss\n(Pappas, J., pro tempore), Appellant\xe2\x80\x99s App. at 39. The court relied on our decision\nin Equicor Dev. v. Westfield-Washington Twp., 758 N.E.2d 34 (Ind.2001). In Equicor,\nthis Court made an exception to the general rule that \xe2\x80\x9cgovernment entities are not\nsubject to equitable estoppel.\xe2\x80\x9d Id. at 39 (citing State ex rel. Agan v. Hendricks Superior\nCourt, 250 Ind. 675, 678, 235 N.E.2d 458, 460 (1968)). In Fulton County Advisory Plan\nComm\xe2\x80\x99n v. Groninger, 810 N.E.2d 704 (Ind.2004), we made it clear that we found the\nfacts in Equicor to be \xe2\x80\x9chighly unusual.\xe2\x80\x9d Id. at 710. The trial court\xe2\x80\x99s ruling here\npreceded Groninger.\n2\n\n367\n\n\x0cof property that lawfully existed prior to the enactment of a\nzoning ordinance that continues after the ordinance\xe2\x80\x99s\neffective date even though it does not comply with the\nordinance\xe2\x80\x99s restrictions. Metro. Dev. Comm\xe2\x80\x99n. v. Marianos, 274\nInd. 67, 408 N.E.2d 1267, 1269 (1980). The general rule is\nthat a nonconforming use may not be terminated by a new\nzoning enactment. See Jacobs v. Mishawaka Bd. of Zoning\nAppeals, 182 Ind.App. 500, 501-02, 395 N.E.2d 834, 836\n(1979) (\xe2\x80\x9cAn ordinance prohibiting any continuation of an\nexisting lawful use within a zoned area is unconstitutional\nas a taking of property without due process of law and as\nan unreasonable exercise of police power.\xe2\x80\x9d). In these\nsituations, it is often said that the landowner had a \xe2\x80\x9cvested\nright\xe2\x80\x9d in the use of the property before the use became\nnonconforming, and because the right was vested, the\ngovernment could not terminate it without implicating the\nDue Process or Takings Clauses of the Fifth Amendment\nof the federal constitution, applicable to the states through\nthe Fourteenth Amendment.3 U.S. Const., amends V &\nXIV. See generally, John J. Delaney and Emily J. Vaias,\nRecognizing Vested Development Rights as Protected Property in\nFifth Amendment Due Process and Takings Claims, 49 Wash.\nU.J. Urb. & Contemp. L. 27, 31-35 (1996).\nA relatively frequent subject of land use litigation is\nwhether a developer can have a \xe2\x80\x9cvested interest\xe2\x80\x9d in a\nnonconforming use that is only intended \xe2\x80\x93 construction has\nnot yet begun at the time of the new enactment \xe2\x80\x93 such that\nthe government cannot terminate it. See Linda S. Tucker,\nAnnotation, Activities in Preparation for Building as Establishing\nValid Nonconforming Use or Vested Right to Engage in\nConstruction for Intended Use, 38 A.L.R.5th 737, 752 (1996 &\nSupp.2005).\n\nSee Bd. of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1031 (Ind.1998), where we held\nthat a zoning ordinance that provided for the forfeiture of a prior nonconforming\nuse if it was not registered did not violate the Fifth and Fourteenth Amendments.\n3\n\n368\n\n\x0cThis Annotation reflects the fact that many courts,\nincluding ours, have been presented with cases where a\ndeveloper encounters a zoning change after embarking on a\nproject but before beginning construction. The leading\nIndiana case on this subject \xe2\x80\x93 discussed in the Annotation\n\xe2\x80\x93 is Lutz v. New Albany City Plan Comm\xe2\x80\x99n, 230 Ind. 74, 101\nN.E.2d 187 (1951).\nAs a general proposition, the courts have been willing to\nhold that the developer acquires a \xe2\x80\x9cvested right\xe2\x80\x9d such that\na new ordinance does not apply retroactively if, but only if,\nthe developer \xe2\x80\x9c(1) relying in good faith, (2) upon some act\nor omission of the government, (3) \xe2\x80\xa6 has made substantial\nchanges or otherwise committed himself to his substantial\ndisadvantage prior to a zoning change.\xe2\x80\x9d Delaney & Vaias,\nsupra, at 31-35 (citing Sgro v. Howarth, 54 Ill.App.2d 1, 203\nN.E.2d 173, 177 (1964)).\nIndiana law, as enunciated in Lutz, is consistent with these\nprinciples. In that case, the developer acquired real estate\npursuant to an option agreement that required the seller to\ndemolish a house on the property and clear the lots for\nconstruction of a gasoline service station. The developer\nsecured a mortgage commitment to finance the\nconstruction and entered into an agreement by which a\npetroleum concern would lease and operate the service\nstation when built. After all of these actions had been taken\nbut before construction of the service station itself began,\nthe city enacted a zoning ordinance that did not permit the\nerection of gasoline service stations on the real estate in\nquestion. Lutz, 230 Ind. at 78-79, 101 N.E.2d at 189.\nWhen the developer\xe2\x80\x99s application for a zoning variance was\ndenied by the Board of Zoning Appeals, the developer\nappealed, contending that by entering into the lease and\nproceeding to convert the real estate to a service station\nprior to the passage of the zoning ordinance, his rights to\nuse of the property in that way had become vested and that\nthe application of the zoning ordinance to him was\n\n369\n\n\x0cunconstitutional. Id. at 77, 101 N.E.2d at 188. The trial\ncourt affirmed the decision of the Board of Zoning\nAppeals, as did this Court:\nThe zoning ordinance herein is, of\ncourse, subject to any vested rights in\nthe property of appellants acquired\nprior to the enactment of the zoning\nlaw. But where no work has been\ncommenced,\nor\nwhere\nonly\npreliminary work has been done\nwithout going ahead with the\nconstruction of the proposed building,\nthere can be no vested rights. The fact\nthat ground had been purchased and\nplans had been made for the erection\nof the building before the adoption of\nthe zoning ordinance prohibiting the\nkind of building contemplated, is held\nnot to exempt the property from the\noperation of the zoning ordinance.\nStructures in the course of\nconstruction at the time of the\nenactment or the effective date of the\nzoning law are exempt from the\nrestrictions of the ordinance. The\nservice station was not in the course of\nconstruction so as to give to appellants\nvested rights, and was not a\nnonconforming use existing at the\ntime of passage of the ordinance.\nId. at 81-82, 101 N.E.2d at 190.\nBThe second line of cases traces its origin in Indiana law to\nzoning law but has over the years been invoked more\ngenerally when a person has an application for a\ngovernment permit pending at the time a law governing the\ngranting of the permit changes.\n\n370\n\n\x0cThe lead case in this line illustrates the point. In Knutson v.\nState ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959)\n(on reh\xe2\x80\x99g), this Court held that an application for approval\nof a subdivision plat was not subject to the provisions of a\nsubdivision control ordinance enacted by a town council\nafter the date on which the application was first filed.4\nThe Court in Knutson said that \xe2\x80\x9ca municipal council may\nnot, by the enactment of an emergency ordinance, give\nretroactive effect to a pending zoning ordinance thus\ndepriving a property owner of his right to a building permit\nin accordance with a zoning ordinance in effect at the time\nof the application of such permit.\xe2\x80\x9d Id. at 667, 160 N.E.2d at\n201 (citing State ex rel. Fairmount Center Co. v. Arnold, 138\nOhio St. 259, 34 N.E.2d 777 (1941)). The Knutson Court\nwent on to say that \xe2\x80\x9c[t]his rule, we believe, is consistent\nwith the general rule of law that ordinances or statutes\nwhich are substantive in their effect are not retroactive.\xe2\x80\x9d Id.\nat 668, 160 N.E.2d. at 201. The Court then quoted the\nCorpus Juris Secundum: \xe2\x80\x9c[T]he general rule, which is almost\nuniversally supported by the authorities, is that\nretrospective laws are unconstitutional if they disturb or\ndestroy existing or vested rights.\xe2\x80\x9d Id. (quoting 16A C.J.S.,\nConstitutional Law \xc2\xa7 417 at 99-103) (emphasis added).\nKnutson has been relied upon by the Court of Appeals in a\nnumber of cases for the proposition that a change in law\ncannot be applied retroactively in respect of a permit\nThe procedural setting of Knutson was somewhat complicated. In unrelated\ncollateral litigation, a trial court had declared the subdivision control ordinance of\nthe Town of Dyer to be unconstitutional and this Court found that ruling to\ncontrol in Knutson. As such, the question presented in Knutson was whether the\ndeveloper was entitled to have its plat approved by the Town Council, whose\ndecision, in the absence of an effective subdivision control ordinance, was\ncontrolled only by the state statute governing subdivisions. This Court ordered the\nTown Council to approve the plat. On rehearing, the Town Council argued that a\nnew subdivision control ordinance had been enacted after the first had been\ndeclared unconstitutional and that the developer\xe2\x80\x99s application had been properly\ndenied pursuant to the new ordinance\xe2\x80\x99s terms.\n4\n\n371\n\n\x0capplication on file with a permitting agency at the time of\nthe change. See Steuben County v. Family Dev., Ltd., 753\nN.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a\npermit for a landfill); Yater v. Hancock County Bd. of Health,\n677 N.E.2d 526 (Ind.Ct.App.1997) (concerning septic\npermits); Ind. Dep\xe2\x80\x99t of Envtl. Mgmt. v. Chem. Waste Mgmt. of\nInd., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied\n(concerning a hazardous waste disposal permit); Bd. of\nZoning Appeals of Ft. Wayne v. Shell Oil Co., 164 Ind.App. 497,\n329 N.E.2d 636 (1975) (concerning a building permit for\ngas station).\nII\nIn one respect, the Lutz and Knutson precedents are quite\nconsistent. Both clearly stand for the proposition that\nchanges in zoning ordinances are \xe2\x80\x9csubject to any vested\nrights,\xe2\x80\x9d Lutz, 230 Ind. at 81, 101 N.E.2d at 190; that such\nchanges \xe2\x80\x9care unconstitutional if they disturb or destroy\nexisting or vested rights,\xe2\x80\x9d Knutson, 239 Ind. at 667, 160\nN.E.2d at 201. But in another respect, Lutz and Knutson lie\nin uneasy tension with one another. If the land acquisition,\ndemolition, and site preparation work in Lutz is not enough\nto establish a vested interest, how can it be that the mere\nfiling in Knutson of a building permit (when, by definition,\nno construction has yet begun) is enough to do so? In the\nwords of one commentator, \xe2\x80\x9c[i]t is difficult to see how the\ntheoretically distinguishable concept of nonconforming use,\nprotecting owners of developed property from the\nprovisions of subsequently enacted zoning regulations,\ncould logically be applied to protect a landowner who has\nonly reached the stage of applying for a building permit.\xe2\x80\x9d\nRoland F. Chase, Annotation, Retroactive Effect of Zoning\nRegulation, in Absence of Saving Clause, on Pending Application for\nBuilding Permit, 50 A.L.R.3d 596, 607 (1973, Supp.2005).\nPinnacle argues adamantly that this is not a nonconforming\nuse case for which Lutz is precedent but a permit\napplication case controlled by Knutson. While for reasons we\n\n372\n\n\x0cwill set forth in a moment we think this is a nonconforming\nuse case, we also think, at least in respect of building\npermits, the Knutson rule should be revisited.\nTo repeat, the Court in Lutz held that \xe2\x80\x9c[t]he zoning\nordinance herein is, of course, subject to any vested rights\nin the property of appellants acquired prior to the\nenactment of the zoning law. But where no work has been\ncommenced, or where only preliminary work has been\ndone without going ahead with the construction of the\nproposed building, there can be no vested rights.\xe2\x80\x9d Lutz,\n230 Ind. at 81, 101 N.E.2d at 190. We think this is the\ncorrect rule for nonconforming uses, one that is the rule of\nmost jurisdictions. See, e.g., Town of Orangetown v. Magee, 88\nN.Y.2d 41, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (1996); Finch\nv. Durham, 325 N.C. 352, 384 S.E.2d 8 (1989) (reh\xe2\x80\x99g\ndenied); Snake River Venture v. Bd. of County Comm\xe2\x80\x99rs, 616\nP.2d 744 (Wyo.1980); Houston v. Bd. of City Comm\xe2\x80\x99rs, 218\nKan. 323, 543 P.2d 1010 (1975); Blundell v. West Helena, 258\nArk. 123, 522 S.W.2d 661 (1975); Perkins v. Joint City-Council\nPlanning Comm\xe2\x80\x99n, 480 S.W.2d 166 (Ky.1972).\nIf \xe2\x80\x9cthere can be no vested rights\xe2\x80\x9d where \xe2\x80\x9cno work has been\ncommenced, or where only preliminary work has been\ndone without going ahead with the construction of the\nproposed building,\xe2\x80\x9d then in logic, the filing of a building\npermit \xe2\x80\x93 an act that must be done before any work is\ncommenced \xe2\x80\x93 cannot alone give rise to vested rights.\nFurthermore, at least as to building permits, Knutson is out\nof the mainstream. \xe2\x80\x9cIn most jurisdictions it is clear that, as\na general rule, \xe2\x80\xa6 a zoning regulation may be retroactively\napplied to deny an application for a building permit, even\nthough the permit could have been lawfully issued at the\ntime of application.\xe2\x80\x9d Chase, supra, at 607. See, e.g., Town\nPump, Inc. v. Bd. of Adjustment, 292 Mont. 6, 971 P.2d 349\n(1998) (upholding the retroactive application of a zoning\nchange where there was a building permit on file); Whitehead\nOil Co. v. Lincoln, 234 Neb. 527, 451 N.W.2d 702 (1990)\n\n373\n\n\x0c(noting and applying the \xe2\x80\x9cgeneral rule\xe2\x80\x9d); Gay v. Mayor of\nLyons, 212 Ga. 438, 93 S.E.2d 352 (1956) (upholding the\nretroactive application of a zoning change where there was\na building permit on file); Brougher v. Bd. of Pub. Works, 205\nCal. 426, 271 P. 487 (1928)(same); Cayce v. Hopkinsville, 217\nKy. 135, 289 S.W. 223 (1926) (same).\nWith respect to building permits, then, Knutson\xe2\x80\x99s suggestion\nthat having a building permit on file creates a vested right\nthat cannot be overcome by a change in zoning law is\noverruled.5\nIII\nRegardless of Knutson\xe2\x80\x99s viability, we do not believe its rule is\navailable to Pinnacle in this case. While Pinnacle argues\nvehemently that this is not a nonconforming use case, we\nbelieve that it is properly analyzed under Lutz\xe2\x80\x99s principles.\nWhen Pinnacle set out to erect the 10 (initially 15)\nbillboards, there was no location permit required by the\nCity. This is exactly the position the developer in Lutz was\nin when it started out to develop the gasoline service\nstation. The question there \xe2\x80\x93 as we find it to be here \xe2\x80\x93 was\nwhether, at the time of the change in the zoning ordinance,\nconstruction had proceeded on the project to the point that\nthe developer had a vested interest. As discussed, the Court\nheld that the construction had not. Lutz, 230 Ind. at 81, 101\nN.E.2d at 190.\n\nAs noted in the text above, the Knutson principle has been applied to applications\nfor a number of other types of government permits. See Steuben County v. Family\nDev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for\na landfill); Yater v. Hancock County Bd. of Health, 677 N.E.2d 526\n(Ind.Ct.App.1997)(concerning septic permits); Ind. Dep\xe2\x80\x99t of Envtl. Mgmt. v. Chem.\nWaste Mgmt. of Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied\n(concerning a hazardous waste disposal permit). Because the law and facts in each\nof these cases differs materially from those applicable to building permits, we limit\nour holding today only to building permits.\n5\n\n374\n\n\x0cIn this case, no construction of any kind had proceeded on\nthe 10 billboards as of April 26, 2000, the date the\nordinance change was officially proposed, or even July 10,\n2000, the date it was enacted. Pinnacle does not present us\nwith any argument that it made construction expenditures\nbefore the enactment of the zoning ordinance change.6 Nor\ncould it. It was not until 11 months later, June 18, 2001,\nthat Pinnacle received the separate approvals required by\nthe State.\nPinnacle argues that its filing of applications for permits\nwith the State on April 19, 2000, immunized it from the\nCity\xe2\x80\x99s zoning change but we see no basis in law or logic for\nthis proposition. While we acknowledge that at times, state\nlaw can pre-empt local law, see, e.g., Ind.Code \xc2\xa7 36-1-3-5(a)\n(2005), Pinnacle provides us with no authority that there is\nstate pre-emption here. Local government enjoys wide\nlatitude from the State in land use regulation. Its authority\nincludes \xe2\x80\x9cnot only all powers granted it by statute, but also\nall other powers necessary or desirable in the conduct of its\naffairs.\xe2\x80\x9d Ind. Dep\xe2\x80\x99t of Natural Res. v. Newton County, 802\nN.E.2d 430, 432 (Ind.2004) (quotations and citations\nomitted). And while here the City has imposed burdens in\naddition to those of the State for a party seeking to erect\nCompare with State ex rel. Great Lakes Pipe Line Co. v. Hendrickson, 393 S.W.2d 481,\n484 (Mo.1965). In Hendrickson, a public utility company had acquired land in a\nvillage for the purpose of installing a pumping station. After having been advised\nby the village that it had no zoning regulations, the utility had entered into a\ncontract for the construction of the station. After the utility\xe2\x80\x99s contractors began\nwork, the village enacted a zoning ordinance that restricted the erection of\npumping stations. Before the ordinance was enacted, the utility had spent or\ncommitted itself to a total of over $64,000 in addition to the amount that it had\npaid for the land. Id. at 482-83. The court found that \xe2\x80\x9c[a] structure in the course of\nconstruction at the time of the enactment of the ordinance is protected as a\nnonconforming use, but mere preliminary work which is not of a substantial nature\ndoes not constitute a nonconforming use.\xe2\x80\x9d Id. at 484. The court then held that\nbecause the utility had completed a portion of the structure and had obligated itself\nto a great extent of money before the zoning ordinance was passed, the utility had\nestablished a non-conforming use of the land for the purpose of a pumping station\nprior to the enactment of the ordinance and had a vested right thereto. Id.\n6\n\n375\n\n\x0cbillboards in interstate rights-of-way, state law has not been\nfrustrated by the city zoning ordinance. See id at 433. In\nother words, this is not a case where anything the City has\ndone interferes with State prerogatives. Furthermore,\ncommon experience tells us that permits and approvals\nfrom different agencies and levels of government are often\nrequired for a single project. Compliance with one agency\xe2\x80\x99s\nor level\xe2\x80\x99s requirements simply does not constitute\ncompliance with another\xe2\x80\x99s.\nMost telling in this respect is the fact that regardless of\nwhat the City\xe2\x80\x99s billboard location regulation was, or even\nwhether it had one, Pinnacle would still have been required\nto obtain State approval for its project. State approval was\nin addition to, and not a substitute for, local approval. That\nbeing so, Pinnacle cannot use its compliance with State\nrequirements as a substitute for compliance with local\nrequirements.\nConclusionHaving granted transfer, Indiana Appellate Rule\n58(A), we reverse the judgment of the trial court as to its\nholding that the zoning ordinance was inapplicable to the\n10 permits and remand this matter to the trial court with\ninstructions to grant the City\xe2\x80\x99s motion for summary\njudgment. Because we find that the zoning ordinance was\napplicable, we also reverse the trial court\xe2\x80\x99s award to\nPinnacle of attorney fees.\nSHEPARD, C.J.,\nRUCKERconcur\n\nand\n\nDICKSON,\n\nBOEHM,\n\nand\n\nValley View Industrial Park, Respondent, v. The City\nof Redmond, Appellant,\n733 P.2d 182 (Wash. 1987)\nOgden, Ogden & Murphy, by Larry C. Martin, James E. Haney,\nand Mark A. Eames, for appellant.\nBogle & Gates and Elaine L. Spencer, for respondent.\nCALLOW, J.\n\n376\n\n\x0c\xe2\x80\xa6.\nValley View Industrial Park is a general partnership formed\nin 1978 to develop this specific parcel of land. Following a\nprotracted interchange between the partnership and the\nCity of Redmond, within whose boundaries the property\nlies, the partnership initiated this action against the City\nseeking (1) a writ of mandamus ordering the City to\nproceed with site plan review of its light industrial\ndevelopment in the Sammamish River Valley; (2) a\ndeclaration that the City\xe2\x80\x99s decision to change the zoning of\nits property from light industrial to agricultural use was an\nuncompensated taking that violated federal and state\nconstitutions; and (3) damages and attorney\xe2\x80\x99s fees it\nincurred from the time of the zoning change.\nThe City denied the complaint and interposed the following\ndefenses: (1) that Valley View had failed to meet procedural\nprerequisites to suit, including (a) conformance with the\napplicable statute of limitations, (b) exhaustion of\nadministrative remedies, and (c) laches; (2) that the zoning\nchange represented a valid exercise of police power; (3) that\neven if an unconstitutional taking had occurred, Valley\nView was not entitled to interim damages and attorney\xe2\x80\x99s\nfees.\nThe trial court dismissed Valley View\xe2\x80\x99s claim for interim\ndamages but conducted a trial to the court on the\nremaining issues. Following trial, the court found for Valley\nView. It held that the zoning change was unconstitutional\nand ordered the City to proceed with the site plan review.\nThe City appealed the decision on the grounds it had\nasserted at trial. On Valley View\xe2\x80\x99s motion, the case was\ntransferred here from the Court of Appeals pursuant to\nRAP 4.3.\nWe affirm the trial court\xe2\x80\x99s judgment which holds that\nValley View acquired vested rights to have five building\npermit applications processed under the City of Redmond\xe2\x80\x99s\n\n377\n\n\x0clight industrial use zoning classification in effect at the time\nof filing, we affirm the court\xe2\x80\x99s order retaining upon the\nproperty the light industrial use zoning classification, and\nwe affirm the denial of damages and deny the request for\nattorney fees in the cross appeal.FACTSValley View\nintends to develop an industrial park on a 26.71-acre parcel\nof property in the Sammamish River Valley. The valley\nhistorically was an agricultural area; the soil is some of the\nrichest in King County. In recent years the agricultural\ncharacter of the Sammamish River Valley has changed\ndrastically. The population has increased significantly.\nCommercial and residential development has replaced\nmany of the farms and the accompanying agricultural\nsupport services, including feed and fertilizer dealers, farm\nequipment sellers, and grain elevators. The area around the\nValley View parcel reflects this transition. The property\nimmediately to the north remains zoned for agricultural\nuses. To the northwest, across the road from Valley View,\nare three large industrial developments. Puget Sound Power\nand Light holds a 250-foot right of way on Valley View\xe2\x80\x99s\nsouth border. South of that right of way is another\nindustrial park and property zoned for expected\ncommercial and residential development. The Sammamish\nRiver marks the east edge of the Valley View property.\nAcross the river, to the southeast, is the site of a proposed\nregional shopping center.\nThe City of Redmond annexed the Valley View parcel from\nKing County in 1964, and changed the zoning of the parcel\nfrom agricultural to \xe2\x80\x9clight industrial.\xe2\x80\x9d In 1970, the City\nadopted a comprehensive land use plan setting forth the\nCity\xe2\x80\x99s official policies and goals for future regulation and\nuse of property.\nThe City began revising and updating its land use\nregulations to achieve conformity with the 1970\ncomprehensive plan. Concurrently, the farmlands\npreservation movement became a force in King County\n\n378\n\n\x0cand applied pressure for agricultural zoning of the parcel.\nIn 1977, a citizens\xe2\x80\x99 advisory committee was formed for the\npurpose of formulating recommendations on the land use\nplan and regulatory revisions. The committee conducted\nnumerous public hearings and meetings, culminating in an\nofficial committee proposal which was forwarded to the\ncity council. Following receipt of the proposal, the city\ncouncil conducted extensive deliberations, including\nadditional public hearings upon the proposal. On June 5,\n1979, the council passed ordinance 875, which adopted the\nCity\xe2\x80\x99s revised land use goals, policies, plans, regulations and\nprocedures in a volume entitled Community Development\nGuide.\nThe Community Development Guide included an amended\nzoning map which adjusted the boundary between the\nagricultural and industrial zones in the Sammamish Valley.\nThe citizen advisory committee recommended that the\ncouncil shift the boundary between the agricultural and\nlight industrial uses to the south, in alignment with a 250foot-wide power transmission line right of way, thereby\nproviding a visible and spatial separation of the agricultural\nand industrial uses. The city council adopted this\nrecommendation as a part of its comprehensive zoning\nrevisions. With adoption of the revised zoning map, the\nboundary line was extended to the southern boundary of\nthe Valley View property to adjoin the 250-foot power line\nright of way. The zoning of the Valley View property thus\nwas revised from light industrial to agricultural use.\nValley View formulated and proceeded with plans to\ndevelop an industrial park on the tract. Valley View\nintended the industrial park to consist of 12 buildings,\ndeveloped in phases. In the first phase, it intended to build\nthe infrastructure (i.e., the road, utilities, etc.) and the shell\nof the first building. It then intended to market the project\nand construct additional buildings as it found tenants for\nthose buildings. The cost of the infrastructure was\n\n379\n\n\x0cprojected to be so high that the cost would not be\nrecovered, and the project would not be profitable until\nseveral of the buildings were completed.\nValley View first initiated contact with the city planning\ndepartment on September 3, 1978, by submitting a\npreliminary site plan for the proposed development. A city\nplanner informed Valley View representatives that the\nproposed industrial park would be subject to site plan\nreview under Redmond ordinance 733, which provided that\nno building permit could be issued for a commercial or\nindustrial development without prior site plan approval.\nAlthough the preliminary site plan did not contemplate\nconstruction that would require a shoreline development\npermit, the city planner incorrectly informed Valley View\nthat the proposed industrial park would require a shoreline\nsubstantial development permit due to the proximity of the\nSammamish River.\nDuring the conversation on September 3, Valley View was\nrequested to file, and as a result on September 7, 1978,\nValley View did file, a more detailed site plan, a SEPA\nenvironmental\nchecklist, a\nshoreline substantial\ndevelopment permit application and plans for the first of\n12 buildings to be constructed in the industrial park. As a\nresult of the discussion on September 3, in which it was\ninformed that the City would require a shoreline substantial\ndevelopment permit, Valley View amended the site plan to\ninclude a building which came within 200 feet of the\nSammamish River.\nOn September 7, 1978, the head of the City\xe2\x80\x99s building\ndepartment refused to proceed on the single building\npermit application until site plan review had been\ncompleted on the project.\nIn a September 18 letter, city officials wrote Valley View\nfor additional information. In response, Valley View\nprovided some information on sewers and storm drainage,\n\n380\n\n\x0cas well as a revised SEPA checklist, a revised site plan and a\nproposed protective covenant. These documents were filed\non October 18.\nThe City requested no additional information for 3 months.\nIn the interim, it approved a plan to connect the Valley\nView property to the storm sewer system in place at the\nindustrial park to the south. The City collected $2,500 from\nValley View to pay for the extension. On January 22, 1979,\nthe City informed Valley View that an environmental\nimpact statement was necessary.\nOn February 2, Valley View submitted the names of three\nconsultants to prepare the EIS. The City responded on\nMarch 6, by selecting a consultant not on the Valley View\nlist. Attempting to avoid further delay, Valley View sought\nan appeal of the EIS decision on March 7. The City stated\nthat no appeal was possible, but suggested a modification\nof the project proposal to obviate the need for an EIS.\nValley View submitted a new proposal according to the\nCity\xe2\x80\x99s suggested modifications.\nIn early 1979, Redmond officials informed Valley View that\nit would have to file additional building permit applications\nin order to vest its rights to construct the entire project if\nthe City downzoned the property. At that time, the City\xe2\x80\x99s\nsite plan review process for the project had not been\ncompleted. Valley View then filed four additional building\npermit applications. The five buildings, for which building\npermit applications were filed, totaled approximately\n108,000 square feet of space out of the 466,914 square feet\ncontemplated by the site plan as a whole. Five was the\nmaximum number of buildings which Valley View\nconcluded it was feasible to build prior to obtaining tenants\nfor them.\nOn May 22, 1979, Valley View submitted an enlarged site\nplan and revised protective covenants and offered to\nnegotiate with the City concerning dedication to the City of\n\n381\n\n\x0ca buffer zone to the north of the Valley View property. On\nJune 5, 1979, the Redmond City Council enacted the\nrevised zoning code which downzoned the Valley View\nproperty from light industrial to agricultural use. By letter\ndated June 6, 1979, the City rejected Valley View\xe2\x80\x99s\nmodification of its proposal. Valley View did not appeal the\ndevelopment plan rezone as allowed by the Redmond\nordinance.\nThe City\xe2\x80\x99s 1976 version of the Uniform Building Code\ncalled for building permits to lapse after 180 days unless the\npermits were renewed for another 180 days. The City\nnotified Valley View in a May 20, 1980 letter that the\nbuilding permit applications were deemed abandoned. City\nofficials, however, later assured Valley View that it still\ncould proceed under the permits.\nAfter the downzoning, the City took the position that if\nValley View agreed to limit development to the five filed\nbuilding permit applications no EIS would be required.\nValley View contended it could not proceed without an\nEIS. The City agreed to proceed with an EIS, but later\nreversed itself and refused to proceed. Thereafter, in\nresponse to the City\xe2\x80\x99s change in position, Valley View filed\nan application to change the city land use plan and zoning\nfor the property from agricultural to light industrial use.\nThe City then began preparation of an EIS for the Valley\nView project, and on January 23, 1981, issued a final impact\nstatement for the project. After issuance of the final impact\nstatement, the City refused to further process Valley View\xe2\x80\x99s\nfive building permit applications until the city council had\nacted on Valley View\xe2\x80\x99s rezone application.\nOn April 7, 1981, the city council denied the Valley View\nrezone request. Valley View did not appeal this decision.\nThereafter, the parties engaged in further discussion in\nwhich Valley View sought to proceed with a modified\nproposal. When the City refused to allow Valley View to\nproceed with the modified development, this suit was\n\n382\n\n\x0ccommenced on July 10, 1981. We have set forth in the\nappendix the pertinent trial court findings of fact for two\nreasons. First, because a number have been challenged, and\nsecond, because a reading of those findings is extremely\nhelpful in acquiring an understanding of the factual\nsituation.\n\xe2\x80\xa6.\nIII. VESTING\nDue process requires governments to treat citizens in a\nfundamentally fair manner. West Main Assocs. v. Bellevue, 106\nWn.2d 47, 51, 720 P.2d 782 (1986). Consequently, citizens\nmust be protected from the fluctuations of legislative\npolicy, West Main Assocs., at 51 (citing The Federalist No. 44,\nat 301 (J. Madison) (J. Cooke ed. 1961)), so that they can\nplan their conduct with reasonable certainty as to the legal\nconsequences. West Main Assocs., at 51. Property\ndevelopment rights constitute \xe2\x80\x9ca valuable property right.\xe2\x80\x9d\nWest Main Assocs., at 50 (quoting from Louthan v. King Cy.,\n94 Wn.2d 422, 428, 617 P.2d 977 (1980)). Thus new land\nuse ordinances must satisfy due process standards by\nmeeting a 2-part test: (1) the new regulation must aim at\nachieving a legitimate public purpose; and (2) the means\nused to achieve that purpose must be reasonably necessary\nand not unduly oppressive upon individuals. West Main\nAssocs., at 52; Norco Constr., Inc. v. King Cy., 97 Wn.2d 680,\n684, 649 P.2d 103 (1982).\nThese due process considerations require that developers\nbe able to take recognized action under fixed rules\ngoverning the development of their land. West Main Assocs.,\nat 51. The right of a property owner to use his property\nunder the terms of the zoning ordinance prevailing at the\ntime that he applies for a building permit has been settled\nfor over half a century. State ex rel. Hardy v. Superior Court,\n155 Wash. 244, 284 P. 93 (1930). The precept was stated in\n\n383\n\n\x0cState ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 495-96, 275 P.2d\n899 (1954), which is often quoted as follows:\nA property owner has a vested right to\nuse his property under the terms of the\nzoning ordinance applicable thereto. A\nbuilding or use permit must issue as a\nmatter of right upon compliance with\nthe\nordinance.\nThe\ndiscretion\npermissible in zoning matters is that\nwhich is exercised in adopting the zone\nclassifications\nwith\nthe\nterms,\nstandards, and requirements pertinent\nthereto, all of which must be by\ngeneral ordinance applicable to all\npersons\nalike.\nThe\nacts\nof\nadministering a zoning ordinance do\nnot go back to the questions of policy\nand discretion which were settled at\nthe time of the adoption of the\nordinance. Administrative authorities\nare properly concerned with questions\nof compliance with the ordinance, not\nwith its wisdom. To subject individuals\nto questions of policy of administrative\nmatters would be unconstitutional\xe2\x80\xa6.\n\xe2\x80\xa6 An owner of property has a vested\nright to put it to a permissible use as\nprovided for by prevailing zoning\nordinances. The right accrues at the\ntime an application for a building\npermit is made. The moves and\ncountermoves of the parties hereto by\nway of passing ordinances and\nbringing actions for injunctions,\nshould and did avail the parties\nnothing. A zoning ordinance is not\nretroactive so as to affect rights that\nhave already vested.\n\n384\n\n\x0c(Citations omitted.) We have rejected the rule of many\njurisdictions which requires a change of position and a\nsubstantial reliance on the building permit before equitable\nestoppel arises to rescue the by then financially extended\nlandowners. 1 R. Anderson, Zoning \xc2\xa7 6.24, at 408-09 (2d ed.\n1976). See Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958).\nWashington\xe2\x80\x99s \xe2\x80\x9cdate certain vesting rights doctrine\xe2\x80\x9d aims at\ninsuring that new land-use ordinances do not unduly\noppress development rights, thereby denying a property\nowner\xe2\x80\x99s right to due process under the law. See West Main\nAssocs., at 50-52. Focusing on the date building permit\napplications are submitted protects development rights and,\nat the same time, provides two safeguards against developer\nspeculation: (1) once a permit issues, a time limit is imposed\non construction; and (2) preparing the detailed plans and\nspecifications required for the application involves a\nsubstantial cost to the developer. Hull v. Hunt, at 130. In\naddition, the permit application date facilitates determining\nwith certainty what the developer has applied for and what\nspecific rights have accrued as a result. See Hull v. Hunt,\nsupra at 130; see also Mercer Enters. v. Bremerton, 93 Wn.2d 624,\n633, 611 P.2d 1237 (1980) (Utter, C.J., dissenting).\nIn the ordinary course of events, a developer\xe2\x80\x99s right to\ndevelop in accordance with a particular zoning designation\nvests only if the developer files a building permit\napplication that (1) is sufficiently complete, (2) complies\nwith existing zoning ordinances and building codes, and (3)\nis filed during the effective period of the zoning ordinances\nunder which the developer seeks to develop. West Main\nAssocs., at 51; Allenbach v. Tukwila, 101 Wn.2d 193, 676 P.2d\n473 (1984). Due process considerations of fundamental\nfairness require this court to look beyond these four\nrequirements to the conduct of the parties only in the rare\ncase where city officials clearly frustrate a developer\xe2\x80\x99s\ndiligent, good faith efforts to complete the permit\n\n385\n\n\x0capplication process. See Mercer Enters. v. Bremerton, supra;\nParkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978).\nIn Parkridge, this court created a limited exception to the\nrequirement of completeness of building permit\napplications. The issue there was whether a right to develop\nland could vest despite an incomplete building permit\napplication when the developer\xe2\x80\x99s diligent attempts to\ncomplete the application prior to the zoning change had\nbeen obstructed by the local government. This court held\nthat a development right had vested, notwithstanding the\nincompleteness of the application, because the developer\xe2\x80\x99s\ngood faith conduct merits recognition of the vested right.\nParkridge, at 465-66.\nThis court then applied the Parkridge rule in Mercer\nEnterprises to hold that a developer\xe2\x80\x99s building permit\napplication, including a site plan, can be considered as a\nwhole for the purpose of determining whether a building\npermit complied with the existing zoning ordinances. Mercer\nEnterprises, at 633-34. Although standing alone the building\npermit exceeded the density restrictions of the zoning\nordinance, when considered together with the site plan for\nthe total development project, the building permit densities\nwere within the density restrictions. The developer\xe2\x80\x99s\nbuilding permit application was held sufficient to establish\nvested rights in that portion of the project in which\nbuilding permit applications were filed.\nHere, Valley View argues that it has a vested right to build\nthe five buildings covered under the five filed permit\napplications. In addition, Valley View contends it has a\nvested right to build the remaining seven buildings\ndesignated in the site plan filed with Redmond, but not\ncovered by any permit application. The City argues that the\nfive permit applications were incomplete and therefore\ninsufficient to vest Valley View\xe2\x80\x99s rights in those five\nbuildings, much less the seven buildings for which\napplications were not filed. As to the five buildings covered\n\n386\n\n\x0cby incomplete building permits, we conclude that the\nParkridge rule controls. The trial court\xe2\x80\x99s findings clearly\ndemonstrate the presence of each of the Parkridge elements:\n(1) Valley View diligently and in good faith attempted to\nobtain building permits; (2) Redmond officials explicitly\nfrustrated Valley View\xe2\x80\x99s attempts; and (3) as a result, Valley\nView\xe2\x80\x99s building permit applications were incomplete. Thus,\nValley View has a vested right to complete the five\nbuildings for which it filed building permit applications\nunder the light industrial zoning classifications.\nWhether Valley View\xe2\x80\x99s vested right also encompasses the\nremaining seven buildings is a question of first impression\nfor the court. Like the developer in Mercer Enterprises, Valley\nView proposed a phased construction scenario. Also similar\nto Mercer Enterprises, throughout the negotiations between\nValley View and Redmond, the 26.71-acre project was\nconsidered as a complete whole. 93 Wn.2d at 628. In Mercer\nEnterprises, however, this court was not asked to determine\nwhether the scope of the vested right encompassed the\nentire development proposal. As a general principle, we\nreject any attempt to extend the vested rights doctrine to\nsite plan review. Only where a city\xe2\x80\x99s conduct frustrates the\npermit application process will we consider looking to the\nentire development proposal contained in a site plan.\nBecause we have held that Valley View has a vested right to\nbuild the five permit application buildings, we consider\nthose buildings as having been constructed, and review the\nvalidity of Redmond\xe2\x80\x99s downzoning of Valley View\xe2\x80\x99s\nproperty.\nTo satisfy due process standards, the City\xe2\x80\x99s downzoning of\nValley View\xe2\x80\x99s property decision, like all zoning decisions,\nmust bear a substantial relation to the public welfare. See\nCathcart-Maltby-Clearview Comm\xe2\x80\x99ty Coun. v. Snohomish Cy., 96\nWn.2d 201, 211, 634 P.2d 853 (1981). Because Redmond\ndownzoned the property at the specific request of a\nnumber of citizens\xe2\x80\x99 groups and city officials (finding of fact\n\n387\n\n\x0c50), and because Valley View\xe2\x80\x99s property was the only tract\ndownzoned to agricultural zoning (finding of fact 61),\nRedmond\xe2\x80\x99s actions constitute rezoning. Cathcart, at 212.\nAlthough Redmond\xe2\x80\x99s rezoning decision is granted some\ndeference, Save a Neighborhood Env\xe2\x80\x99t v. Seattle, 101 Wn.2d\n280, 285, 676 P.2d 1006 (1984), there is no presumption of\nvalidity favoring a rezone. Parkridge, at 462. To survive a\nchallenge, the City must demonstrate that the rezoning of\nValley View\xe2\x80\x99s property bears a substantial relationship to\nthe general welfare of the affected community. Save a\nNeighborhood Env\xe2\x80\x99t v. Seattle, supra at 286.\nThe City argues that rezoning Valley View\xe2\x80\x99s property serves\ntwo public interests: (1) the preservation of farmland, and\n(2) the belief that the power line that runs along the south\nedge of Valley View\xe2\x80\x99s property makes a nicer breaking\npoint between land zoned industrial and land zoned\nagricultural than the north edge of Valley View\xe2\x80\x99s property.\nWhen viewed in light of the five buildings to be built on\nthe property, the City\xe2\x80\x99s rezoning decision bears no\nrelationship to the public interest it seeks to serve, much\nless a substantial relationship.\nValley View\xe2\x80\x99s property is a single tract of land. As the\nillustrative site map indicates, when Valley View constructs\nthe five buildings covered by permit applications, the\nbuildings would be so located on the 26.71 acres that its\npreservation and use as farmland is no longer feasible. In\naddition, with five buildings already built on the property,\nthe power line no longer provides a break between\nindustrial and agricultural land. The following map\nillustrates the placement on the site of the five buildings for\nwhich building permits have been filed.\nFive buildings plus necessary access roads, parking and\nutility ingress and egress will so cut up the property that any\nagricultural use on the remaining portions of the property\ncould well be uneconomic. Furthermore nothing in the\nrecord indicates that the right to build just five buildings\n\n388\n\n\x0cmakes financial sense. The practical result of changing the\nzoning to agricultural could place Valley View in a situation\nwhere economic realities dictate that no buildings will be\nbuilt. This would deny Valley View its rights which vested\nupon the filing of the five building permit applications.\nAs the trial court\xe2\x80\x99s findings indicate, Valley View chose the\nnumber and location of the buildings covered by permit\napplications in good faith, basing its decision on a number\nof factors including: (1) the City would accept five building\npermits as enough to vest the right to build the entire\nproject (finding of fact 34); (2) the location of the buildings\nwould offer space to prospective tenants with varying\nneeds (finding of fact 33); and (3) five buildings was the\nmaximum number of buildings which Valley View\nconcluded it was possible to build prior to obtaining\ntenants (finding of fact 33). Moreover, the rezoning does\nnot bear a substantial relationship to the public welfare in\nlight of the evidence that changes in the Redmond area\nmade Valley View\xe2\x80\x99s property extremely undesirable for\nagricultural use, land to the south and west has been, or\nrapidly is being, developed for industrial and commercial\npurposes, and the Valley View parcel does not qualify for\nthe King County Agricultural Lands Preservation Program.\nHad the City not explicitly frustrated the building permit\nprocess, Valley View would have constructed five buildings\nranging over the complete area of its single tract of land.\nConsequently, the City\xe2\x80\x99s subsequent action to downzone\nwould not have withstood scrutiny. Therefore, the City may\nno longer preclude development of the Valley View\nproperty consistent with the code requirements and\nrestrictions pertaining to the light industrial classification in\neffect at the time the building permit applications were\nfiled.\nWe hold that when Valley View filed its five building\npermit applications on the subject property, it fixed, and\nfirmly imprinted upon the parcel, the zoning classification it\n\n389\n\n\x0ccarried at the moment of the filing. The City has lost its\nchance to change the zoning classification.\nHowever, \xe2\x80\x9ca vested right does not guarantee a developer\nthe ability to build. A vested right merely establishes the\nordinances to which a building permit and subsequent\ndevelopment must comply.\xe2\x80\x9d West Main Assocs., at 53. If the\nValley View parcel can contain 12 buildings within its\nboundaries under the terms of the light industrial\nclassification, the landowner is entitled to construct that\nnumber. Valley View is required to file building permit\napplications for the remaining phases of the project and\ncomply with applicable City ordinances. The City is\nrequired to act in good faith in processing Valley View\xe2\x80\x99s\napplication.\n\xe2\x80\xa6.\nCONCLUSION\nWe hold that (1) Valley View has the vested right to have\nits five building permit applications processed under the\nlight industrial use classification in existence at the time\nsuch building permit applications were filed; (2) the entire\nproperty must remain zoned as light industrial with the\npossibility of additional light industrial buildings being\nconstructed on the property subject to compliance with\nexisting city ordinances; (3) no interim taking occurred\njustifying an award of damages for a temporary taking; and\n(4) each party shall pay its own attorney fees.\nDORE, J. (dissenting)\nThe separation of powers doctrine is a cornerstone of\nAmerican jurisprudence. That which has been left to the\nLegislature should not be usurped by the judiciary.\nUnfortunately, the majority opinion, by rezoning the parcel\nof land owned by Valley View from agricultural to light\nindustry use, does precisely that. Rezoning large parcels of\nproperty has always been a legislative, rather than a judicial\n\n390\n\n\x0cfunction, and the majority\xe2\x80\x99s refusal to follow this timehonored tradition is incorrect and unconstitutional.\nI would hold that Valley View has vested rights in the five\nbuildings for which it has filed building permits, because of\nthe unwarranted interference of the Redmond planning\nofficials in processing such permits. However, Valley View\nadmittedly did not file building permits for the other seven\nbuildings in the site review plan, as it had failed to locate\ntenants which were essential to obtain financing to justify\nthe preparation and filing of seven additional building\npermit applications. As the City of Redmond cannot\ninterfere or obstruct the processing of building permits\nwhich were never completed or filed, Valley View cannot\nunder our present case law obtain vested rights for these\nstructures. The majority by allowing construction of the\nseven buildings, which Valley View has yet to file building\npermits for, overrules the following cases that have\npreviously held that vesting rights can only be established\nby filing for building permits. State ex rel. Ogden v. Bellevue, 45\nWn.2d 492, 275 P.2d 899 (1954); Hull v. Hunt, 53 Wn.2d\n125, 331 P.2d 856 (1958); Parkridge v. Seattle, 89 Wn.2d 454,\n573 P.2d 359 (1978); Mercer Enters. v. Bremerton, 93 Wn.2d\n624, 611 P.2d 1237 (1980); Norco Constr., Inc. v. King Cy., 97\nWn.2d 680, 649 P.2d 103 (1982). I therefore dissent.\nVESTING OF THE FIRST FIVE BUILDING PERMITS\nThe State of Washington presently has one of the most\nliberal vested rights doctrines in the nation. The\nrequirements of the Washington doctrine are that (1) the\napplicant file a building permit application (2) which\ncomplies with the existing zoning ordinance and building\ncodes and (3) is filed during the effective period of the\nzoning ordinances under which the applicant seeks to\ndevelop, and (4) is sufficiently complete. West Main Assocs.\nv. Bellevue, 106 Wn.2d 47, 50-51, 720 P.2d 782 (1986). The\ndoctrine in Washington thus provides that an applicant for\na building permit has a vested right to have the application\n\n391\n\n\x0cprocessed under the zoning regulations in effect at the time\nthe building permit application is filed.\nIn contrast to the Washington rule, the majority of\njurisdictions hold that even the issuance of a building\npermit is insufficient to establish a vested right entitling the\napplicant to a nonconforming use. The applicant, in\naddition to obtaining a building permit, also must establish\na substantial expenditure or change in position in reliance\non the issued building permit to effectuate a vested right.\nSee 1 R. Anderson, Zoning \xc2\xa7\xc2\xa7 6.24, 6.25 (2d ed. 1976);\nComment, Washington\xe2\x80\x99s Zoning Vested Rights Doctrine, 57\nWash. L. Rev. 139 (1981).\nAn applicant in Washington on the other hand need not\nshow a \xe2\x80\x9cchange in position\xe2\x80\x9d; the applicant need only file a\nsufficiently complete building permit application to vest his\nright to have his application processed under the existing\nzoning regulations. Allenbach v. Tukwila, 101 Wn.2d 193,\n676 P.2d 473 (1984). The rationale for Washington\xe2\x80\x99s \xe2\x80\x9cdate\nof application\xe2\x80\x9d vested rights rule is best enunciated in Hull\nv. Hunt, 53 Wn.2d 125, 130, 331 P.2d 856 (1958) as follows:\nNotwithstanding the weight of\nauthority, we prefer to have a date\ncertain upon which the right vests to\nconstruct in accordance with the\nbuilding permit. We prefer not to\nadopt a rule which forces the court to\nsearch through (to quote from State ex\nrel. Ogden v. Bellevue, supra,) \xe2\x80\x9cthe moves\nand countermoves of \xe2\x80\xa6 parties \xe2\x80\xa6 by\nway of passing ordinances and\nbringing actions for injunctions\xe2\x80\x9d \xe2\x80\x94 to\nwhich may be added the stalling or\nacceleration of administrative action in\nthe issuance of permits \xe2\x80\x94 to find that\ndate upon which the substantial\nchange of position is made which\nfinally vests the right. The more\n\n392\n\n\x0cpractical rule to administer, we feel, is\nthat the right vests when the party,\nproperty owner or not, applies for his\nbuilding permit, if that permit is\nthereafter issued. This rule, of course,\nassumes that the permit applied for\nand granted be consistent with the\nzoning ordinances and building codes\nin force at the time of application for\nthe permit.\nThe court concluded that the extensive expense incurred in\nsecuring building permits justifies a presumption that\ndevelopers will not speculate in the enhanced values of land\nfor which building permits have been hurriedly obtained\nprior to a zoning change. Hull, at 130. Thus, Washington\xe2\x80\x99s\nbright line vesting rule presumes the developer has acted in\ngood faith by incurring the substantial costs of filing a\ncomplete building permit.\nThe right to have a complete building permit processed\nunder the zoning ordinances in effect at the time of\napplication is chiefly derived from the doctrine of equitable\nestoppel and due process concerns of fundamental fairness.\nAlthough the court will not scrutinize the moves and\ncountermoves of the parties nor inquire into the extent of\nexpenditure of moneys, the doctrine prohibits a\nmunicipality from repudiating its prior conduct when a\ndeveloper has expended the necessary funds to complete a\nbuilding permit application. At this stage in the\ndevelopment process, notions of fundamental fairness\nrequire that the rules which govern the development be\n\xe2\x80\x9cfixed\xe2\x80\x9d and not subject to the \xe2\x80\x9cfluctuating policy\xe2\x80\x9d of the\nLegislature. West Main Assocs., at 51.\nFiling a complete building permit application is the\noperative act that converts the developer\xe2\x80\x99s mere\nexpectation of no zoning change into the vested right to\n\n393\n\n\x0chave the application considered under the existing zoning,\ndespite a subsequent effective zoning change.\n[T]he right vests when the party,\nproperty owner or not, applies for his\nbuilding permit, if that permit is\nthereafter issued. This rule, of course,\nassumes that the permit applied for\nand granted be consistent with the\nzoning ordinances and building codes\nin force at the time of application for\nthe permit.\nHull, at 130. See also Mayer Built Homes, Inc. v. Steilacoom, 17\nWn. App. 558, 564 P.2d 1170, review denied, 89 Wn.2d 1009\n(1977). However, the holder of vested rights is not thereby\nentitled to a building permit or to develop the proposed\nproject, but to have the building permit decision made on\nthe basis of regulations in effect at the time of application.\nWest Main Assocs., at 53.\nThe requirement that a building permit be sufficiently\ncomplete serves two purposes. First, the completed\napplication enables a court to determine whether the\nbuilding permit application complies with the zoning and\nbuilding ordinances. Mercer Enters. v. Bremerton, 93 Wn.2d\n624, 631, 633-34, 611 P.2d 1237 (1980) (Utter, C.J.,\ndissenting). If a building permit application is not\nsubstantially complete, the municipality must reject the\napplication and no vested right accrues until the omissions\nor irregularities are rectified. Second, the completeness\nrequirement ensures that the developer has proceeded in\ngood faith, i.e., incurred an investment sufficient enough to\ndeter speculation. Hull, at 130. The provisions of the\nUniform Building Code and related standards, 1976 edition,\npublished by the International Conference of Building\nOfficials generally set the requirements a building permit\napplication must conform to in order to obtain a permit\napproval. See former RCW 19.27.030. The nature of a\n\n394\n\n\x0ccomplete building permit application necessarily requires\nthe expenditure of substantial sums of money. See, e.g.,\nAllenbach v. Tukwila, 101 Wn.2d 193, 195, 676 P.2d 473\n(1984).\nApplying the Washington vested rights doctrine, both the\nmajority and I find that (1) Valley View filed five building\npermit applications (2) which complied with the light\nindustrial zoning ordinance and building code and (3) were\nfiled during the effective period of the light industrial\nzoning ordinance under which Valley View sought to\nconstruct the five buildings.\nThe City contends that the fourth element (completeness)\nis lacking due to the need for additional information in the\napplications prior to processing. Any incompleteness as to\nthese five building permit applications is governed by the\nrule of Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359\n(1978). In Parkridge, this court created a limited exception\nto the requirement of completeness of building permit\napplication. The issue there was whether a right to develop\nland could vest despite an incomplete building permit\napplication when the developer\xe2\x80\x99s diligent attempts to\ncomplete the application prior to the zoning change had\nbeen obstructed by the local government. This court held\nthat the development right had vested, notwithstanding the\nincompleteness of the application, because of the\nmunicipality\xe2\x80\x99s attempts to frustrate the project and the\ndeveloper\xe2\x80\x99s good faith conduct merited recognition of the\nvested right. See also Mercer Enters. v. Bremerton, 93 Wn.2d\n624, 611 P.2d 1237 (1980).\nValley View took numerous steps to comply with the City\xe2\x80\x99s\nrequests for more information. It modified its plans to\nconform to city officials\xe2\x80\x99 ideas, and showed a willingness to\nmeet necessary shortcomings in the applications. The City,\non the other hand, continually made new demands on\nValley View. If more detailed building plan information was\nnecessary, the building officer had the power under the\n\n395\n\n\x0cordinance to request it. The trial judge found strict\ncompliance with zoning ordinances. That finding need not\nbe disturbed. Valley View has the right to have its five\nbuilding permits processed.\nTHE ADDITIONAL SEVEN BUILDING PERMITS\nAt this juncture, both the majority and I agree that Valley\nView has the right to have its five building permits\nprocessed under the ordinances in effect prior to the date\nthat the City of Redmond rezoned its land. At this point,\nhowever, the majority ignores clear precedent, and\nformulates new law without any authority. By rezoning the\nland as light industrial, the majority violates the doctrine of\nseparation of powers and acts as a legislative body. This\nshould not be allowed, and the City of Redmond\nundoubtedly will seek relief in the United States Supreme\nCourt.\nThe majority is correct when it states that a rezone must\nbear a substantial relationship to the general welfare of the\naffected community. Majority, at 640; Save a Neighborhood\nEnv\xe2\x80\x99t v. Seattle, 101 Wn.2d 280, 286, 676 P.2d 1006 (1984);\nSave Our Rural Env\xe2\x80\x99t v. Snohomish Cy., 99 Wn.2d 363, 662\nP.2d 816 (1983). The majority, however, for no apparent\nreason, holds that the Redmond City Council possesses the\npower and authority to rezone thousands of acres of land\nfrom light industrial to agricultural \xe2\x80\x94 which of course is\ncorrect \xe2\x80\x94 but does not have the authority to decide\nwhether to end the rezone at the north end of Valley\nView\xe2\x80\x99s property or at the south end. The majority for some\nincomprehensible reason holds that the city council\xe2\x80\x99s\nlegislative decision where to end a rezone (which they\ndecided to end at a 250-foot power line right of way and\nnot at the point the majority countenances approximately\n350 feet north of the power line) bears no substantial\nrelationship to the general welfare of the affected public.\nNot possessing the majority\xe2\x80\x99s omniscient powers of what\n\n396\n\n\x0cthe general welfare of the affected public is, I would defer\nto the city council\xe2\x80\x99s determination.\nThe majority creates this situation by looking at Valley\nView\xe2\x80\x99s property as a separate tract of land from the rest of\nthe rezone, and then assuming that the five buildings have\nbeen built for which Valley View has filed building permits.\nSpecifically, the majority states: \xe2\x80\x9c[w]hen viewed in light of\nthe five buildings to be built on the property, the City\xe2\x80\x99s\nrezoning decision bears no relationship to the public\ninterest it seeks to serve \xe2\x80\xa6\xe2\x80\x9d Majority, at 640. I note that\nthe majority has cited no authority that requires a legislative\nbody, when considering a rezone, to adjust its action to the\npossible developments which may or may not occur on the\nproperty. This is because no such authority exists.\nTo the contrary, although the construction of a number of\nindustrial buildings on the parcel may inhibit any\nagricultural use of the remaining property, it does not\nfollow that the agricultural zoning is invalid. Securing\nvested rights under a prior zoning classification does not\ninvalidate the subsequently enacted zoning ordinance; the\nholder of vested rights is merely entitled to a\nnonconforming use to the extent of the vested rights. 7 P.\nRohan, Zoning \xc2\xa7 52.08[4] (1986); 1 R. Anderson, Zoning \xc2\xa7\xc2\xa7\n6.24, 6.25 (2d ed. 1976); R. Settle, Washington Land Use \xc2\xa7\n2.7(c)(vi) (1983). The remaining land in the parcel is not\nconsidered separate from the nonconforming use in a\ndetermination as to whether there is a possibility for\nprofitable use of the property.\nThe logic for this result is apparent. In this case, for\nexample, neither this court nor the Redmond City Council\n(nor anyone else for that matter) has any idea whether or\nnot Valley View will eventually construct the five buildings\nfor which it has filed permits. The permit applications may\nbe invalid, Valley View may decide to abandon one or more\nof the buildings, or any number of other events could\nprevent the construction of those buildings. This is\n\n397\n\n\x0cespecially true as a building permit does not give the\ndeveloper a vested right in perpetuity to build, but only a\nright to build for a limited time period which in the City of\nRedmond does not exceed 12 months.\nThe majority\xe2\x80\x99s solution to this case does not account for\nthe truly speculative nature of the construction of these\nbuildings. It assumes they have been built, and then makes\nthis legislative decision as an excuse to rezone large tracts\nof land. Furthermore, it creates the following anomalous\nsituation. Had Valley View proceeded without hindrance\nfrom the City of Redmond, and had it found tenants for\nthe other 7 buildings it may have filed and received building\npermits for all 12 buildings. These would have contained\ntime restrictions and Valley View\xe2\x80\x99s vested right to construct\nbuildings would not have lasted in perpetuity. Instead,\nbecause of the delays, Valley View will be given the right to\ndevelop its site with no time restrictions and the City will\nnever be able to rezone the land. This makes no sense, yet\nit is the result the majority opinion provides.\nIn the subject case, Valley View did not spend any money\nat all to prepare building permits for the last seven\nstructures. The majority, however, has created a new\nstandard which allows a developer, by filing a few building\npermits, to prohibit legislative bodies from rezoning\nadjacent land. This usurps the local legislative power to\nrezone land according to its beliefs as to the public welfare,\nand should not be allowed. I would only allow Valley View\nto have vested rights in the five buildings for which it has\nfiled building permits.\nCONCLUSION\nI believe the majority opinion commits a flagrant violation\nof the separation of powers doctrine. Article 2 of the\nWashington State Constitution and article 1 of the United\nStates Constitution confine the legislative power to the\nlegislatures of the municipal, state and federal governments,\n\n398\n\n\x0cand not to the judiciary. Rezoning land thus has always\nbeen a legislative act prior to this date, and the majority\nadvances no theory to justify our unilateral decision to\nchange this situation. I believe that the City of Redmond\npossessed and still possesses the power to rezone the\nsubject tract of land which includes Valley View\xe2\x80\x99s property,\nand that any analysis of what rights Valley View has at this\npoint should be based on our prior decisions concerning\nvested rights, rather than a wholesale denial of the inherent\npower of a city to zone land within its own legislative\nboundaries.\nI would\n(1) Set aside the trial court\xe2\x80\x99s judgment;\n(2) Grant Valley View vested rights to five building\npermit applications, and order the City of Redmond\nto process such applications in accordance with the\nzoning of the City of Redmond in effect at the time\nthe permits were filed;\n(3) Valley View, of course, is free to apply to the\nRedmond City Council for a rezone of the land to\npermit construction of the additional seven\nbuildings.\nGOODLOE, J., concurs with DORE, J.\n3.10. Neighbor Consent Provisions\nCity of Chicago v. Stratton\n44 N.E. 853 (Ill. 1896)\nFarson & Greenfield, for appellant.\nS. J. Howe, for appellees.\nThis was a suit brought under a section of the building\nordinance, and is to recover the penalty for a violation of\nthe ordinance. The section of the ordinance is as follows:\n\n399\n\n\x0c\xe2\x80\x98Sec. 49. It shall not be lawful for any person to locate,\nbuild, construct or keep in any block in which two-thirds of\nthe buildings are devoted to exclusive residence purposes, a\nlivery boarding or sales stable, gas house, gas reservoir,\npaint, oil or varnish works, within 200 feet of such\nresidence, on either side of the street, unless the owners of\na majority of the lots in such block fronting or abutting on\nthe street consent in writing to the location or construction\nof such livery stable, gas house, gas reservoir, paint, oil, or\nvarnish works therein. Such written consent of the property\nowners shall be filed with the commissioner of buildings\nbefore a permit be granted for the construction or keeping\nof such livery stable, gas house, gas reservoir, paint, oil or\nvarnish works.\xe2\x80\x99 It is conceded by the appellees that they are\nengaged in keeping a livery, boarding, and sale stable at\nNos. 211 and 213 Evanston avenue, in the city of Chicago;\nthat they were so engaged on the 7th day of June, 1894, at\nsaid place; and that they did not procure the consent of the\nowners of a majority of the lots in such block fronting or\nabutting on the street before the erection of said building.\nThe building which they were occupying on the 7th day of\nJune, 1894, for that purpose, was constructed under a\nbuilding permit to erect a two-story and basement brick\ncarriage repository and stable in the rear, which was issued\nJuly 28, 1893. Instead of building a stable in the rear, it\nappears that the horses-some 30 or more-were kept in the\nbasement. The building is back about 59 feet from the\nstreet, and has a plank driveway running from the entrance\nof the stable, which is about 6 feet above the ground, down\nto Evanston avenue. The livery stable and driveway are so\nnear to a residence building on the adjoining lot that\ncarriages driving out and in shake the whole building. On\nthe 7th of June, 1894, there were 31 buildings in the block\nin which this livery stable is located, 28 of which were\ndevoted to exclusive residence purposes. No petition has\never been signed by a majority of the property owners, as\nrequired by the ordinance governing the location and\n\n400\n\n\x0ckeeping of livery stables in the city of Chicago. This suit\nwas originally brought before a justice of the peace, where\njudgment was entered against the defendants, and was, by\nthe defendants, appealed to the circuit court of Cook\ncounty. Upon the trial before the court, a jury having been\nwaived, certain propositions of law, in pursuance of the\nstatute, were offered on behalf of the plaintiff, presenting\nthe question of the legaility of the ordinance in question,\nwhich the court was requested to hold as the law governing\nthe case, but the court held the section of the ordinance to\nbe invalid, and entered a finding for the defendants. Motion\nfor a new trial having been overruled, the court entered\njudgment upon the finding. The case was taken by appeal\nto the appellate court, where the judgment of the court\nbelow was affirmed. The plaintiff now brings the case to\nthis court by appeal.\nThe assignment of error chiefly relied upon is that the court\nbelow refused to hold as law the following propositions of\nlaw submitted on behalf of the plaintiff, the city of\nChicago: \xe2\x80\x98(2) The court is requested to hold as a\nproposition of law that the provisions of section 49 of the\nbuilding ordinance of the city of Chicago passed March 13,\n1893, wherein it is ordained that it shall not be lawful for\nany person to locate, build, construct, or keep in any block\nin which two-thirds of the buildings are devoted to\nexclusive residence purposes a livery, boarding, or sales\nstable, unless the owners of a majority of the lots in such\nblock fronting or abutting on the street consent in writing\nto the location of such livery stable, is not, under the laws\nof the said state of Illinois, a delegation of legislative power\nby the common council of said city of Chicago to the\nproperty owners of such block. (3) The court is requested\nto hold as a proposition of law that section 49 of the\nbuilding ordinance of the city of Chicago passed by the\ncommon council of said city on the 13th day of March, A.\nD. 1893, is lawful, valid, and binding upon the defendants\n\n401\n\n\x0cin this case, and that under the evidence the plaintiff is\nentitled to recover. (4) If the court find from the evidence\nthat on the 6th day of June, 1894, the defendants were\nengaged in keeping a livery, boarding, and sales stable\nwithin the limits of the city of Chicago, and that the said\ndefendants have not at any time procured in writing the\nconsent of the owners of a majority of the lots in the block\nin which said livery stable is located fronting or abutting on\nthe street upon which the same is located, in pursuance of\nthe requirements of section 49 of the certain building\nordinance of the city of Chicago passed by the common\ncouncil of said city on the 13th day of March, A. D. 1893;\nand, if the court further finds from the evidence that twothirds of the buildings in the block in which said livery\nstable is located are devoted to exclusive residence\npurposes,-then the court is requested to hold as a\nproposition of law that the defendants have been guilty of a\nviolation of said section 49 of said ordinance, and the\nplaintiff is entitled to recover in this suit the penalty\nprovided in said ordinance for the violation thereof.\xe2\x80\x99\nMAGRUDER, J. (after stating the facts).\nThe eighty-second paragraph of section 1 of article 5 of the\ncity and village act, which has been adopted by the city of\nChicago, provides that the city council in cities shall have\nthe power \xe2\x80\x98to direct the location and regulate the use and\nconstruction of * * * livery stables * * * within the limits of\nthe city.\xe2\x80\x99 3 Starr & C. Ann. St. p. 191. The power to make\nlaws which the constitution confers upon the legislature\ncannot be delegated by the legislature to any other body or\nauthority. The constitutional maxim which prohibits such\ndelegation of legislative power is not violated when\nmunicipal corporations are vested with certain powers of\nlegislation in view of the recognized propriety of conferring\nupon such municipal organizations the right to make local\nregulations, of the need of which they are supposed to be\nbeteer judges than the legislature of the state. But such\n\n402\n\n\x0cpowers as are conferred upon municipality, and, so far as\nthey are legislative, cannot be delegated to any subordinate\nor to any other authority. The same restriction which rests\nupon the legislature as to the legislative functions conferred\nupon it by the constitution, rests upon a municipal\ncorporation as to the powers granted to it by the legislature.\nCooley, Const. Lim. (6th Ed.) pp. 137, 138, 248, 249.\nAccordingly, \xe2\x80\x98the principle is a plain one that the public\npowers or trusts devolved by law or charter upon the\ncouncil or governing body, to be exercised by it when and\nin such manner as it shall judge best, cannot be delegated to\nothers.\xe2\x80\x99 1 Dill. Mun. Corp. (4th Ed.) \xc2\xa7 96. The question,\nthen, in the present case is whether the power to direct the\nlocation of livery stables and regulate their use and\nconstruction which has been conferred upon the common\ncouncil of the city of Chicago by the city and village act is\ndelegated by section 49 of the building ordinance to the\nowners of a majority of the lots in the blocks therein\nspecified. That section provides that \xe2\x80\x98it shall not be lawful\nfor any person to locate, build, construct or keep in any\nblock in which two-thirds of the buildings are devoted to\nexclusive residence purposes, a livery, boarding or sales\nstable * * * within 200 feet of such residence, on either side\nof the street, unless the owners of a majority of the lots in\nsuch block fronting or abutting on the street consent in\nwriting to the location or construction of such livery stable.\xe2\x80\x99\nIt is to be noticed that the ordinance does not prohibit the\nlocation or construction or keeping of livery stables in\nblocks which are vacant, or where the buildings are devoted\nto business purposes, or where less than two-thirds of the\nbuildings are devoted to exclusive residence purposes. It\nforbids the location of such stables in blocks where twothirds of the buildings are devoted to exclusive residence\npurposes, but provides that they may be located even in\nsuch blocks if the owners of a majority of the lots therein\nconsent thereto in writing. There is a general prohibition\nagainst the location of livery stables in blocks where two-\n\n403\n\n\x0cthirds of the buildings are devoted to exclusive residence\npurposes, and then an exception to the prohibition is\ncreated in favor of blocks of the class designated where a\nmajority of the lot owners consent in writing to the location\nof a livery stable there. We are unable to see how this\nexception amounts to a delegation by the common council\nof its power to direct the location of livery stables to such\nlot owners. While it may be true that a livery stable in a city\nor town is not per se a nuisance, \xe2\x80\x98yet it becomes so if so\nkept or used as to destroy the comfort of owners and\noccupants of adjacent premises, and so as to impair the\nvalue of their property.\xe2\x80\x99 13 Am. & Eng. Enc. Law. p. 935.\nA livery stable in close proximity to an existing residence\nmay be injurious to the comfort, and even health, of the\noccupants by the permeation of deleterious gases, and by\nthe near deposit of offal removed therefrom. Shiras v.\nOlinger, 50 Iowa, 571, 32 Am. Rep. 138, and note. As cities\nare constructed, the division of the territory is into blocks\nbounded by streets. The persons who will be injuriously\naffected by a livery stable so kept as to be a nuisance are\nthose whose residences are in the same block where the\nstable is located. The prohibition against the location of a\nstable in a residence block is for the benefit of those who\nreside there. If those for whose benefit the prohibition is\ncreated make no objection to the location of such a stable\nin their midst, an enforcement of the prohibition as to that\nblock would seem to be unnecessary. By section 49 the lot\nowners are not clothed with the power to locate livery\nstables, but are merely given the privilege of consenting\nthat an existing ordinance against the location of a livery\nstable in such a block as theirs may not be enforced as\nagainst their block. They are simply allowed to waive the\nright to insist upon the enforcement of a legal prohibition\nwhich was adopted for their benefit and comfort. It is\ncompetent for the legislature to pass a law the ultimate\noperation of which may, by its own terms, be made to\ndepend upon a contingency. People v. Hoffman, 116 Ill.\n\n404\n\n\x0c587, 5 N. E. 596, and 8 N. E. 788, and cases cited. As was\nsaid by the supreme court of Pennsylvania in Locke\xe2\x80\x99s\nAppeal, 72 Pa. St. 491: \xe2\x80\x98The true distinction * * * is this:\nThe legislature cannot delegate its power to make a law, but\nit can make a law to delegate a power to determine some\nfact or state of things upon which the law makes or intends\nto make its own action depend.\xe2\x80\x99 In the case at bar the\nordinance provides for a contingency, to wit, the consent of\na majority of the lot owners in the block upon the\nhappening of which the ordinance will be inoperative in\ncertain localities. The operation of the ordinance is made to\ndepend upon the fact of the consent of a majority of the lot\nowners, but the ordinance is complete in itself as passed.\nWhat are known as \xe2\x80\x98local option laws\xe2\x80\x99 depend for their\nadoption or enforcement upon the votes of some portion\nof the people, and yet are not regarded as delegations of\nlegislative power. 13 Am. & Eng. Enc. Law, p. 991.\nDelegation of power to make the law is forbidden, as\nnecessarily involving a discretion as to what the law shall\nbe; but there can be no valid objection to a law which\nconfers an authority or discretion as to its execution, to be\nexercised under and in pursuance of the law itself.\nCincinnati, W. & Z. R. Co. v. Commissioners of Clinton\nCo., 1 Ohio St. 77. Here the provision in reference to the\nconsent of the lot owners affects the execution of the\nordinance, rather than its enactment. People v. Salomon, 51\nIll. 37; Bull v. Read, 13 Grat. 78; Cargo of the Brig Aurora\nv. United States, 7 Cranch, 382; Alcorn v. Hamer, 38 Miss.\n652. The ordinance in question does not delegate to a\nmajority of the lot owners the right to pass, or even\napprove of, it. On the contrary, their consent is in the\nnature of a condition subsequent which may defeat the\noperation of the prohibition against the location of a livery\nstable in a block where two-thirds of the buildings are\ndevoted to exclusive residence purposes, but which was\nnever intended to confer upon the ordinance validity as an\nexpression of the legislative will. Alcorn v. Hamer, supra.\n\n405\n\n\x0cThe express grant of the power to direct the locaton of\nlivery stables as made by the legislature to the municipal\ncorporation carries with it all necessary and proper means\nto make the power effectual. Huston v. Clark, 112 Ill. 344.\nIn other words, a grant of legislative power to do a certain\nthing carries with it the power to use all necessary and\nproper means to accomplish the end; and the legislature\nmay authorize others to do things which it might properly,\nbut cannot conveniently or advantageously, do itself.\nRailroad Co. v. Jones, 149 Ill. 361, 37 N. E. 247 In\ndetermining the question of the location of a livery stable\nthe common council may properly consult the wishes and\nascertain the needs of the residents of the block where the\nstable is to be kept, and to that end make their written\nconsent the basis of the action of the commissioner of\nbuildings in issuing the permit. In matters of purely local\nconcern the parties immediately interested may fairly be\nsupposed to be more competent to judge of their needs\nthan any central authority. Cooley, Const. Lim. (6th Ed.) p.\n138. In Meyers v. Baker, 120 Ill. 567, 12 N. E. 79, there was\ninvolved the question of the validity of a section of the\nCriminal Code, which provides that: \xe2\x80\x98Whoever during the\ntime of holding any camp or field meeting for religious\npurposes and within one mile of the place of holding such\nmeeting hawks or peddles goods, wares or merchandise or\nwithout the permission of the authorities having charge of\nsuch meeting establishes any tent, booth or other place for\nvending provisions or refreshments or sells or gives away,\nor offers to sell or give away any spirituous liquor, wine,\ncider or beer or practices or engages in gaming or horse\nracing, or exhibits or offers to exhibit any show or play\nshall be fined,\xe2\x80\x99 etc. Rev. St. Ill. c. 38, \xc2\xa7 59. In that case we\nheld that \xe2\x80\x98the rule which would control an ordinance would\nalso apply to an act of the legislature,\xe2\x80\x99 and that the statute\ndid \xe2\x80\x98not confer the power to licence on the authorities in\ncharge of the meeting,\xe2\x80\x99 and we there said: \xe2\x80\x98The fact that the\nact confers on the authorities the right to consent or refuse\n\n406\n\n\x0cconsent cannot be held to authorize such authorities to\nlicense. The right to consent or refuse consent is one thing,\nwhile the right or power to license a person to conduct a\ncertain business at a certain place is quite a different thing.\nHad the legislature intended to authorize the authorities to\nlicense, language expressing that intention in plain words\nwould no doubt have been used. But, however this may be,\nwe see nothing in the language of the act which can be\nconstrued as authorizing the authorities to license.\xe2\x80\x99 Where\nan annexation act of the legislature provided that, when\nterritory was annexed to a city under the provisions of that\nact, and, prior to such annexation, there were in force\nordinances providing that licenses to keep dram shops\nshould not be issued except upon petition of a majority of\nthe voters residing within a certain distance of the location\nof such proposed dram shop, it was held that such\nordinance still remained in force after the annexation, and\nthat it was not unreasonable. People v. Cregier, 138 Ill. 401,\n28 N. E. 812.\nThe case of City of St. Louis v. Russell, 116 Mo. 248, 22 S.\nW. 470, is relied upon as announcing a different view of the\npresent question from that which is here expressed, but the\nordinance condemned in that case provided that no livery\nstable should \xe2\x80\x98be located on any block of ground in St.\nLouis without the written consent of the owners of onehalf the ground of said block.\xe2\x80\x99 It will be noticed that in the\nMissouri case the ordinance requiring the consent of\nadjacent property owners related to the entire city. Under\nthe operation of such an ordinance livery stables might be\ntotally suppressed and prohibited everywhere within the\nmunicipal limits. The ordinance, however, in the case at bar\nis not thus unreasonable, as it relates only to certain\nresidence districts, which are clearly defined. Within such\nspecified residence districts, the city council undoubtedly\nhas the power to prohibit or forbid the location of livery\nstables, and, having the power of total prohibition within\n\n407\n\n\x0cthose districts, it may impose such conditions and\nrestrictions in relation to their limited area as it may see fit.\nFor the reasons stated, we are of the opinion that the\nordinance here in question is not void as being a delegation\nof legislative power, and that the circuit court erred in not\nholding as law the propositions submitted to it as the same\nare set foth in the statement preceding this opinion.\nAccordingly the judgments of the appellate and circuit\ncourts are reversed, and the cause is remanded to the circuit\ncourt for further proceedings in accordance with the views\nherein expressed. Reversed and remanded.\nEubank v. City of Richmond\n226 U.S. 137 (1912)\nERROR TO THE SUPREME COURT OF APPEALS\nOF THE STATE OF VIRGINIA.\nMr. S.S.P. Patteson for plaintiff in error.\nMr. H.R. Pollard for defendant in error.MR. JUSTICE\nMCKENNA delivered the opinion of the court.\nIn error to review a judgment of the Hustings Court of the\ncity of Richmond affirming a judgment of the Police Court\nof the city imposing a fine of $25.00 on plaintiff in error for\nalleged violation of an ordinance of the city fixing a\nbuilding line. The judgment was affirmed by the Supreme\nCourt of the State. 110 Virginia, 749.\nPlaintiff in error attacks the validity of the ordinance and\nthe statute under which it was enacted on the ground that\nthey infringe the Constitution of the United States in that\nthey deprive plaintiff in error of his property without due\nprocess of law and deny him the equal protection of the\nlaws.\nThe statute authorized the councils of cities and towns,\namong other things, \xe2\x80\x9cto make regulations concerning the\nbuilding of houses in the city or town, and in their\ndiscretion,\xe2\x80\xa6 in particular districts, or along particular\n\n408\n\n\x0cstreets, to prescribe and establish building lines, or to\nrequire property owners in certain localities or districts to\nleave a certain percentage of lots free from buildings, and\nto regulate the height of buildings.\xe2\x80\x9d Acts of 1908, p. 623, 4.\nBy virtue of this act the city council passed the following\nordinance: \xe2\x80\x9cThat whenever the owners of two-thirds of the\nproperty abutting on any street shall, in writing, request the\ncommittee on streets to establish a building line on the side\nof the square on which their property fronts, the said\ncommittee shall establish such line so that the same shall\nnot be less than five feet nor more than thirty feet from the\nstreet line\xe2\x80\xa6. And no permit for the erection of any\nbuilding upon such front of the square upon which such\nbuilding line is so established shall be issued except for the\nconstruction of houses within the limits of such line.\xe2\x80\x9d A\nfine of not less than twenty-five nor more than five\nhundred dollars is prescribed for a violation of the\nordinance.\nThe facts are as follows: Plaintiff in error is the owner of a\nlot thirty-three feet wide on the south side of Grace street\nbetween Twenty-eighth and Twenty-ninth streets. He\napplied for and received a permit on the nineteenth of\nDecember, 1908, to build a detached brick building to be\nused for a dwelling, according to certain plans and\nspecifications which had been approved by the building\ninspector, dimensions of the building to be 26x59x28 feet\nhigh.\nOn the ninth of January, 1909, the street committee being\nin session, two-thirds of the property owners on the side of\nthe square where plaintiff in error\xe2\x80\x99s lot is situated,\npetitioned for the establishment of a building line, and in\naccordance with the petition a resolution was passed\nestablishing a building line on the line of a majority of the\nhouses then erected and the building inspector ordered to\nbe notified. This was done, and the plaintiff in error given\nnotice that the line established was \xe2\x80\x9cabout fourteen (14)\n\n409\n\n\x0cfeet from the true line of the street and on a line with the\nmajority of the houses.\xe2\x80\x9d He was notified further that all\nportions of his house \xe2\x80\x9cincluding Octagon Bay, must be set\nback to conform to\xe2\x80\x9d that line. Plaintiff in error appealed to\nthe Board of Public Safety, which sustained the building\ninspector.\nAt the time the ordinance was passed the material for the\nconstruction of the house had been assembled, but no\nactual construction work had been done. The building\nconformed to the line, with the exception of the octagon\nbay window referred to above, which projected about three\nfeet over the line.\nThe Supreme Court of the State sustained the statute,\nsaying (p. 752) that it was neither \xe2\x80\x9cunreasonable nor\nunusual\xe2\x80\x9d and that the court was \xe2\x80\x9cjustified in concluding\nthat it was passed by the legislature in good faith, and in the\ninterest of the health, safety, comfort, or convenience of\nthe public, and for the benefit of the property owners\ngenerally who are affected by its provisions; and that the\nenactment tends to accomplish all, or at least some, of\nthese objects.\xe2\x80\x9d The court further said that the validity of\nsuch legislation is generally recognized and upheld as an\nexercise of the police power.\nWhether it is a valid exercise of the police power is the\nquestion in the case, and that power we have defined, as far\nas it is capable of being defined by general words, a number\nof times. It is not susceptible of circumstantial precision. It\nextends, we have said, not only to regulations which\npromote the public health, morals, and safety, but to those\nwhich promote the public convenience or the general\nprosperity. C., B. & Q. Ry. Co. v. Drainage Commissioners, 200\nU.S. 561. And further, \xe2\x80\x9cIt is the most essential of powers,\nat times the most insistent, and always one of the least\nlimitable of the powers of government.\xe2\x80\x9d District of Columbia\nv. Brooke, 214 U.S. 138, 149. But necessarily it has its limits\nand must stop when it encounters the prohibitions of the\n\n410\n\n\x0cConstitution. A clash will not, however, be lightly inferred.\nGovernmental power must be flexible and adaptive.\nExigencies arise, or even conditions less peremptory, which\nmay call for or suggest legislation, and it may be a struggle\nin judgment to decide whether it must yield to the higher\nconsiderations expressed and determined by the provisions\nof the Constitution. Noble State Bank v. Haskell, 219 U.S.\n104. The point where particular interests or principles\nbalance \xe2\x80\x9ccannot be determined by any general formula in\nadvance.\xe2\x80\x9d Hudson Water Co. v. McCarter, 209 U.S. 349, 355.\nBut in all the cases there is the constant admonition both in\ntheir rule and examples that when a statute is assailed as\noffending against the higher guaranties of the Constitution\nit must clearly do so to justify the courts in declaring it\ninvalid. This condition is urged by defendant in error, and\nattentive to it we approach the consideration of the\nordinance.\nIt leaves no discretion in the committee on streets as to\nwhether the street line shall or shall not be established in a\ngiven case. The action of the committee is determined by\ntwo-thirds of the property owners. In other words, part of\nthe property owners fronting on the block determine the\nextent of use that other owners shall make of their lots, and\nagainst the restriction they are impotent. This we\nemphasize. One set of owners determine not only the\nextent of use but the kind of use which another set of\nowners may make of their property. In what way is the\npublic safety, convenience or welfare served by conferring\nsuch power? The statute and ordinance, while conferring\nthe power on some property holders to virtually control\nand dispose of the proper rights of others, creates no\nstandard by which the power thus given is to be exercised;\nin other words, the property holders who desire and have\nthe authority to establish the line may do so solely for their\nown interest or even capriciously. Taste (for even so\narbitrary a thing as taste may control) or judgment may vary\n\n411\n\n\x0cin localities, indeed in the same locality. There may be one\ntaste or judgment of comfort or convenience on one side\nof a street and a different one on the other. There may be\ndiversity in other blocks; and viewing them in succession,\ntheir building lines may be continuous or staggering (to\nadopt a word of the mechanical arts) as the interests of\ncertain of the property owners may prompt against the\ninterests of others. The only discretion, we have seen,\nwhich exists in the Street Committee or in the Committee\nof Public Safety, is in the location of the line, between five\nand thirty feet. It is hard to understand how public comfort\nor convenience, much less public health, can be promoted\nby a line which may be so variously disposed.\nWe are testing the ordinance by its extreme possibilities to\nshow how in its tendency and instances it enables the\nconvenience or purpose of one set of property owners to\ncontrol the property right of others, and property\ndetermined, as the case may be, for business or residence\n\xe2\x80\x94 even, it may be, the kind of business or character of\nresidence. One person having a two-thirds ownership of a\nblock may have that power against a number having a less\ncollective ownership. If it be said that in the instant case\nthere is no such condition presented, we answer that there\nis control of the property of plaintiff in error by other\nowners of property exercised under the ordinance. This, as\nwe have said, is the vice of the ordinance, and makes it, we\nthink, an unreasonable exercise of the police power.\nThe case requires no further comment. We need not\nconsider the power of a city to establish a building line or\nregulate the structure or height of buildings. The cases\nwhich are cited are not apposite to the present case. The\nordinances or statutes which were passed on had more\ngeneral foundation and a more general purpose, whether\nexercises of the police power or that of eminent domain.\nNor need we consider the cases which distinguish between\nthe esthetic and the material effect of regulations the\n\n412\n\n\x0cconsideration of which occupies some space in the\nargument and in the reasoning of the cases.\nJudgment reversed and case remanded for further proceedings not\ninconsistent with this opinion.\nCary v. City of Rapid City\n559 N.W.2d 891 (S.D. 1997)\nJames S. Nelson and Mark J. Connot of Gunderson,\nPalmer, Goodsell & Nelson, and Melvin D. Wedmore,\nRapid City, for Plaintiff and Appellant.\nTamara M. Pier, Assistant City Attorney, Rapid City, for\nDefendant and Appellee.MILLER, CHIEF JUSTICE.\nJane Cary petitioned the city of Rapid City, South Dakota,\nseeking to rezone certain property from a general\nagricultural classification to a medium density residential\nclassification. The City approved an ordinance granting\nCary\xe2\x80\x99s request. Prior to the effective date of the ordinance,\ncertain neighboring property owners filed a written protest\nof the rezoning pursuant to SDCL 11-4-5. Based on the\nprotest, the ordinance rezoning Cary\xe2\x80\x99s property was\nblocked.\nCary brought an action seeking a declaratory judgment and\na writ of mandamus declaring the rezoning ordinance to be\neffective. In addition, she requested that the trial court\ndeclare SDCL 11-4-5 inapplicable to her property and\nunconstitutional. The trial court declared SDCL 11-4-5\nconstitutional and applicable to Cary\xe2\x80\x99s property. Cary\nappeals. We reverse.\nFACTS\nThis matter was presented to the trial court by stipulation\nof facts. The trial court entered findings of fact (even\nthough findings are superfluous in a stipulated case,\nMuhlenkort v. Union Cty. Land Trust, 530 N.W.2d 658,\n\n413\n\n\x0c660 (S.D.1995)) and conclusions of law based on the\nstipulation.\nCary\xe2\x80\x99s property, which is located in southwestern Rapid\nCity, was annexed into the City on September 8, 1992. At\nthe time of annexation, it was classified as \xe2\x80\x9cno use\xe2\x80\x9d\nproperty pursuant to Rapid City Municipal Code 17.26.010.\nFollowing annexation, City placed a street assessment of\napproximately $90,000 on the western portion of the\nproperty. Additionally, the property\xe2\x80\x99s real estate taxes were\nincreased from $122.36 in 1990 to $3,678.48 in 1995. The\nproperty, however, continued to be used as a horse pasture\nand generated rental income of $150 per year.\nOn December 6, 1993, City adopted an ordinance rezoning\nCary\xe2\x80\x99s property as \xe2\x80\x9cgeneral agriculture\xe2\x80\x9d property. The City\nPlanning Department described this rezoning as follows:\nThe property was zoned General\nAgriculture following annexation into\nthe City limits.\n******\nThe purpose of the General\nAgriculture zoning of this property\nwas to allow it to be used for\nagricultural\npurposes\nuntil\ndevelopment was proposed.\nAs a result of the street assessment and increased property\ntaxes, Cary decided to sell the property. In 1995, she\nreceived an offer to purchase which was contingent on the\nproperty being rezoned as \xe2\x80\x9cmedium density residential\xe2\x80\x9d to\nallow construction of apartment buildings. According to\nthe buyers, a medium density residential designation was\nthe lowest zoning classification which would be cost\neffective and economically viable for the property.\n\n414\n\n\x0cIn an attempt to comply with the buyers\xe2\x80\x99 condition, Cary\nfiled a petition with City seeking to rezone the property.\nShe complied with all requirements for rezoning. The\nRapid City Fire Department, Engineering Department,\nBuilding Inspector and City Planning Department\nrecommended approval of the petition. On September 5,\n1995, City approved Ordinance 3224 rezoning Cary\xe2\x80\x99s\nproperty as medium density residential property. In\naccordance with the law, the ordinance was published on\nSeptember 11, 1995, and scheduled to take effect October\n1, 1995. On September 21, 1995, more than forty percent\nof the neighboring property owners filed a written protest\npursuant to SDCL 11-4-5. The protesters owned less than\neighteen percent of the property neighboring Cary\xe2\x80\x99s\nproperty. Based on the protest, City took the appropriate\nlegal position that the ordinance could not be effectuated\nbecause of the provisions of SDCL 11-4-5.\nCary then brought an action in circuit court seeking a\ndeclaratory judgment and a writ of mandamus. She asked\nthe trial court to declare Ordinance 3224 effective and\nrequire City to rezone the property in compliance with her\npetition. Additionally, she requested that SDCL 11-4-5 be\ndeclared inapplicable to the property or, in the alternative,\nbe declared unconstitutional. The trial court denied her\nrequests. Cary appeals, raising two issues: (1) Whether\nSDCL 11-4-5 applies to the property; and (2) whether\nSDCL 11-4-5 is constitutional. Because we find SDCL 114-5 to be unconstitutional, we need not address the first\nissue.\nDECISION\nWhether SDCL 11-4-5 is Constitutional\nSDCL 11-4-5 provides:\nIf such a proposed zoning ordinance\nbe adopted, the same shall be\npublished and take effect as other\n\n415\n\n\x0cordinances unless the referendum be\ninvoked, or unless a written protest be\nfiled with the auditor or clerk, signed\nby at least forty percent of the owners\nof equity in the lots included in any\nproposed district and the lands within\none hundred fifty feet from any part of\nsuch proposed district measured by\nexcluding streets and alleys. A\ncorporation shall be construed to be a\nsole owner, and when parcels of land\nare in the name of more than one\nperson, ownership representation shall\nbe in proportion to the number of\nsigners who join in the petition in\nrelation to the number of owners. In\nthe event such a protest be filed, the\nordinance shall not become effective\nas to the proposed district against\nwhich the protest has been filed. Such\nwritten protest shall not be allowed as\nto any ordinance regulating or\nestablishing flood plain areas.\nChallenges to the constitutionality of a statute must\novercome formidable requirements.\nThere is a strong presumption that the laws enacted by the\nlegislature are constitutional and that presumption is\nrebutted only when it clearly, palpably and plainly appears\nthat the statute violates a provision of the constitution.\nFurther, the party challenging the constitutionality of a\nstatute bears the burden of proving beyond a reasonable\ndoubt that the statute violates a state or federal\nconstitutional provision. Sedlacek v. South Dakota Teener\nBaseball Program, 437 N.W.2d 866, 868 (S.D.1989)\n(citations omitted). See also State v. Hauge, 1996 SD 48, \xc2\xb6\n4, 547 N.W.2d 173, 175; Kyllo v. Panzer, 535 N.W.2d 896,\n898 (S.D.1995); Specht v. City of Sioux Falls, 526 N.W.2d\n727, 729 (S.D.1995); In re Certification of a Question of\n\n416\n\n\x0cLaw (Elbe), 372 N.W.2d 113, 116 (SD 1985). If a statute\ncan be construed so as not to violate the constitution, that\nconstruction must be adopted. Simpson v. Tobin, 367\nN.W.2d 757, 766 (S.D.1985). Relying on our prior holding\nin State Theatre Co. v. Smith, 276 N.W.2d 259, 264\n(S.D.1979), the trial court determined SDCL 11-4-5 to be\nconstitutional. On appeal, Cary argues the protest provision\nof the statute is unconstitutional1 because it does not\nprovide standards and guidelines for the delegation of\nlegislative authority, nor does it contain a legislative bypass\nprovision to remove the ultimate legislative authority and\nlawmaking power from the protesters. She claims the\nabsence of such provisions is an unlawful delegation of\nlegislative power that results in a small number of property\nowners being able to prevent a landowner\xe2\x80\x99s use of\nproperty. Cary also contends the holding in State Theatre\nwas in error and is not controlling in the instant case.\nThe attorney general was provided proper notice of Cary\xe2\x80\x99s\nchallenge to the constitutionality of SDCL 11-4-5.\nSDCL 11-4-5 has been the subject of previous\nconstitutional review. In State Theatre, SDCL 11-4-5 was\ndetermined to be a consent statute and held constitutional.\n276 N.W.2d at 263-64. In determining SDCL 11-4-5 to be\nconstitutional, the State Theatre court stated:\nSDCL 11-4-5 is not a typical \xe2\x80\x9cprotest\xe2\x80\x9d\nstatute. Normally enabling acts provide\nfor the filing of protest petitions by a\nspecified number of property owners\nwithin a prescribed distance of the\n\xe2\x80\x9cOrdinarily, we will not rule on the constitutionality of a statute unless the\nAttorney General has been notified because when an adjudication of\nunconstitutionality may seriously affect the general public, it is proper for the\nAttorney General to appear on behalf of the Legislature and the people.\xe2\x80\x9d West\nTwo Rivers Ranch v. Pennington Cty., 1996 SD 70, \xc2\xb6 15, 549 N.W.2d 683, 687\n(citing Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990); Sharp\nv. Sharp, 422 N.W.2d 443, 446 (S.D.1988)).\n1\n\n417\n\n\x0cland affected by the amendment under\nconsideration. If sufficient protests are\nfiled, a larger affirmative vote of the\nmunicipal legislative body than\nnormally needed to enact an ordinance\nis required to adopt the protested\namendment and render the protest\nineffective. R. Anderson, American\nLaw of Zoning \xc2\xa7 4.33 (2d Ed.1966).\nThese provisions have been held\nconstitutional when challenged as an\nunlawful delegation of legislative\npower. Garrity v. District of Columbia,\n66 U.S.App. D.C. 256, 86 F.2d 207\n(1936); Northwood Properties Co. v.\nPerkins, 325 Mich. 419, 39 N.W.2d 25\n(1949).\nSDCL 11-4-5 does allow protest by\nneighboring property owners but does\nnot include a provision for subsequent\nmunicipal legislative action. The\nstatute is, therefore, analogous to what\nare referred to as \xe2\x80\x9cconsent\xe2\x80\x9d statutes.\nThese statutes require that the consent\nof a certain number of affected\nneighbors be obtained before a zoning\nordinance is amended. The legislative\nbody has no power to overrule; the\nneighbors are given the ultimate power\nto block the amendment. R. Anderson,\nAmerican Law of Zoning \xc2\xa7 4.36.\nThe validity of consents has long been\ndebated; the absence of standards\nrelating to the giving of consents has\nbeen a major ground for the invalidity\nof consent statutes. There appear to be\ntwo categories of consent statutes:\nthose requiring consent to establish a\n\n418\n\n\x0crestriction and those requiring consent\nto waive a restriction. The former are\ninvalid and the latter valid.\n276 N.W.2d at 263. The State Theatre court concluded the\nresult of the protest by other property owners was\nanalogous to requiring the consent of a number of affected\nproperty owners. Unlike traditional consent statutes, the\nconsent under SDCL 11-4-5 was required after the\nadoption of the ordinance instead of before the adoption.\nId. The court also determined the absence of a statutory\nprovision to provide for a review of the protests by a larger\nvote of the municipality was indicative of a consent statute\nrather than a protest statute. Id. Therefore, the State\nTheatre court concluded SDCL 11-4-5 to be a consent\nstatute. Id. at 264.\nFor the reasons set forth below, we expressly overrule the\nholding in State Theatre and conclude SDCL 11-4-5 is\nunconstitutional.\nInitially, we must determine whether SDCL 11-4-5 is a\nconsent statute or a protest statute. When analyzing a\nstatute to determine legislative intent, we must assume the\nlegislature had in mind all provisions relating to the same\nsubject. In re Estate of Smith, 401 N.W.2d 736, 740\n(S.D.1987). In SDCL ch 11-4, only SDCL 11-4-9 may\nrequire the consent of neighboring landowners as a\nprerequisite to effectuating a zoning ordinance. Under\nSDCL 11-4-9, consent of any property owners having a\nright to protest an ordinance under SDCL 11-4-5 may be\nrequired in certain circumstances in the discretion of the\ngoverning body. SDCL 11-4-9 provides:\nThe governing body may by ordinance\nrequire as a condition precedent to the\nintroduction of any ordinance\nproposing changes in the zoning\nordinance that there be first filed with\n\n419\n\n\x0cthe city auditor or clerk the written\nconsent of the owners not exceeding\nsixty percent of the aggregate area\nhaving the right of protest against such\nproposed ordinance if adopted,\ndetermined as provided by \xc2\xa7 11-4-5.\nSDCL 11-4-5, however, makes no mention of consent as a\nprerequisite to effectuating a zoning ordinance but, rather,\nprovides that forty percent of neighboring property owners\nmay file a written protest following the adoption of a\nzoning ordinance. In the event of such a properly filed\nwritten protest, the adopted ordinance \xe2\x80\x9cshall not become\neffective.\xe2\x80\x9d SDCL 11-4-5.\nThe express language of SDCL 11-4-9 indicates the\nlegislature\xe2\x80\x99s inclusion of a consent prerequisite in certain\nsituations. SDCL 11-4-5 does not use language requiring\nconsent prior to the adoption of zoning ordinances.\nInstead, SDCL 11-4-5 specifically uses language allowing\nwritten protests to be filed after the adoption of zoning\nordinances. SDCL 11-4-9 is a proactive statute which, if\nexercised by the appropriate governing body, requires\nconsent to rezoning ordinances be secured prior to the\nadoption of the ordinance. SDCL 11-4-5, on the other\nhand, is a reactive statute which allows a written protest to\nblock an ordinance following its adoption. The distinction\nbetween the language of SDCL 11-4-9 and SDCL 11-4-5\nindicates the legislature\xe2\x80\x99s intent to provide two different\nand distinct methods by which zoning ordinances may be\nlimited. We now conclude, based on the plain language of\nSDCL 11-4-5, the legislature\xe2\x80\x99s specific inclusion of a\nconsent provision in SDCL 11-4-9 and the intent of the\nlegislature as expressed through all provisions of SDCL ch\n11-4, that SDCL 11-4-5 is a protest statute.\nHaving determined SDCL 11-4-5 to be a protest statute, we\nnow turn to the constitutionality of the statute.\n\n420\n\n\x0cLegislative power is vested in the legislature and this\nessential power may not be abdicated or delegated. SD\nConst Art III, \xc2\xa7 1; Ind. Community Bankers Ass\xe2\x80\x99n v. State,\n346 N.W.2d 737, 743 (S.D.1984); Schryver v. Schirmer, 84\nS.D. 352, 171 N.W.2d 634, 635 (1969). When a legislative\nbody retains a police power, articulated standards and\nguidelines to limit the exercise of the police power are\nunnecessary. Bashant v. Walter, 78 Misc.2d 64, 355\nN.Y.S.2d 39, 44 (N.Y.Sup.Ct.1974). Police powers which\nare delegated, however, must include minimum standards\nand guidelines for their application. Id. 355 N.Y.S.2d at 45.\nThe failure to provide standards and guidelines for the\napplication of the police power constitutes a delegation of\nlegislative power repugnant to the due process clause of the\nFourteenth Amendment. Seattle Title Trust Co. v. Roberge,\n278 U.S. 116, 122, 49 S.Ct. 50, 52, 73 L.Ed. 210, 213\n(1928); Bashant, 355 N.Y.S.2d at 45.\nZoning ordinances find their justification in the legislative\npolice power exerted for the interest and convenience of\nthe public. Eubank v. Richmond, 226 U.S. 137, 142, 33\nS.Ct. 76, 77, 57 L.Ed. 156, 159 (1912). A delegation of this\nlegislative power requires appropriate standards and\nguidelines. Id. See also Drovers Trust & Savings Bank v.\nCity of Chicago, 18 Ill.2d 476, 165 N.E.2d 314, 315 (1960);\nShannon v. City of Forsyth, 205 Mont. 111, 666 P.2d 750,\n752 (1983). Additionally, \xe2\x80\x9c \xe2\x80\x98in order for an ordinance to\ncomply with the requirements essential to the exercise of\npolice power \xe2\x80\xa6, it is essential that there should be an\nappellate body, such as the City, with the power to review\nexceptional cases.\xe2\x80\x99 \xe2\x80\x9d Shannon, 666 P.2d at 752 (quoting\nFreeman v. Board of Adjustment, 97 Mont. 342, 356, 34\nP.2d 534, 539 (1934)).\nIn the instant case, SDCL 11-4-5 does not provide\nguidelines or standards for protesting an adopted\nordinance. So long as a certain number of neighboring\nproperty owners file a written petition, those property\n\n421\n\n\x0cowners may impose or create restrictions on neighboring\nproperty without reason or justification.\nA person\xe2\x80\x99s right to use his or her land for any legitimate\npurpose is constitutionally protected. Seattle Trust, 278\nU.S. at 121, 49 S.Ct. at 52, 73 L.Ed. at 213. SDCL 11-4-5,\nhowever, allows the use of a person\xe2\x80\x99s property to be held\nhostage by the will and whims of neighboring landowners\nwithout adherence or application of any standards or\nguidelines. Under SDCL 11-4-5, \xe2\x80\x9cthe property holders who\ndesire to have the authority to establish a restriction may do\nso solely for their own interests or even capriciously. Taste\n(for even so arbitrary a thing as taste may control) or\njudgment may vary .\xe2\x80\x9d Eubank, 226 U.S. at 144, 33 S.Ct. at\n77, 57 L.Ed. at 159. Such a standardless protest statute\nallows for unequal treatment under the law and is in clear\ncontradiction of the protections of the due process clause\nof the Fourteenth Amendment. See Id.\nFurthermore, SDCL 11-4-5 provides no legislative bypass\nto allow for review of a protest. The filing of a written\nprotest requires that the adopted ordinance \xe2\x80\x9cshall not\nbecome effective.\xe2\x80\x9d SDCL 11-4-5. By allowing forty percent\nof the neighboring property owners to block the\neffectuation of an adopted ordinance approved by City, as\nbeing consistent with the best interests of the public, SDCL\n11-4-5 allows a potentially small number of neighboring\nproperty owners to make the ultimate determination of the\npublic\xe2\x80\x99s best interest.2 The absence of a review provision or\nsome method by which a protest is reviewed by a legislative\nbody makes the protest filed under SDCL 11-4-5\ndeterminative and final. See Garrity v. District of Columbia,\n66 U.S.App. D.C. 256, 86 F.2d 207 (1936); Northwood\nAs presently written, SDCL 11-4-5 would allow the owner of one small parcel of\nland within one hundred fifty feet of a large parcel of land to effectively block any\nproposed use of the large parcel of land so long as the small parcel owner\nconstituted forty percent of neighboring property owners and a written protest was\nfiled.\n2\n\n422\n\n\x0cProperties v. Perkins, 325 Mich. 419, 39 N.W.2d 25 (1949).\nThe ultimate determination of the public\xe2\x80\x99s best interest is\nfor the legislative body, not a minority of neighboring\nproperty owners. See Eubank, 226 U.S. at 143, 33 S.Ct. at\n77, 57 L.Ed. at 159. Delegations of legislative authority\nwhich allow this ultimate decision to be made by a minority\nof property owners without an opportunity for review are\nunlawful. Id.\nThe protest provision of SDCL 11-4-5 is unconstitutional.\nWe therefore expressly overrule the previous holding of\nState Theatre to the extent that it conflicts with this ruling.\nReversed.\nSABERS, AMUNDSON, KONENKAP and GILBERSTON, JJ.,\nconcur.\nBuckeye Community Hope Foundation v. City of\nCuyahoga Falls\n82 Ohio St. 3d 539, 697 N.E.2d 181 (1998).\nSyllabus by the Court\nThe citizens of a municipality may not exercise powers of\nreferendum, by charter or other means, greater than those\npowers granted by Section 1f, Article II of the Ohio\nConstitution.\nPursuant to Section 1f, Article II of the Ohio Constitution,\nactions taken by a municipal legislative body, whether by\nordinance, resolution, or other means, that constitute\nadministrative action, are not subject to referendum\nproceedings.\nThe passage by a city council of an ordinance approving a\nsite plan for the development of land, pursuant to existing\nzoning and other applicable regulations, constitutes\nadministrative action and is not subject to referendum\nproceedings.\nON MOTION FOR RECONSIDERATION\n\n423\n\n\x0cAppellant Buckeye Community Hope Foundation\n(\xe2\x80\x9cBuckeye Hope\xe2\x80\x9d), a nonprofit Ohio corporation, develops\nhousing for individuals through the use of state grants and\ntax credits. Buckeye Hope is affiliated with Cuyahoga\nHousing Partners, Inc. and Buckeye Community Three L.P.\n(\xe2\x80\x9cBuckeye Three\xe2\x80\x9d), also appellants herein.\nIn 1995, Buckeye Three purchased a tract of land in\nCuyahoga Falls for the purpose of building a seventy-two\nunit apartment complex. The land was zoned for\nmultifamily use. Subsequently, the Cuyahoga Falls Planning\nCommission unanimously approved a site plan concerning\nthe proposed complex. Pursuant to Section 1.7, Article\nVIII of the Charter of Cuyahoga Falls, the plan was then\nsubmitted to the City Council of Cuyahoga Falls for its\napproval.\nOn April 1, 1996, the city council ratified the decision of\nthe planning commission by passing Ordinance No. 481996. The ordinance provided, in part, that \xe2\x80\x9cCity Council\napproves the plan for development of land situated in an R17 Medium Density Multiple Family zoning district in\naccordance with such district and zoning regulations as\nstipulated in the Codified Ordinances of the City of\nCuyahoga Falls and as approved by the Planning\nCommission * * *.\xe2\x80\x9d\nFollowing passage of the ordinance, a group of residents of\nCuyahoga Falls filed referendum petitions with the clerk of\ncity council. The petitions sought a referendum to approve\nor reject Ordinance No. 48-1996, pursuant to Section 2,\nArticle IX of the municipal charter, which provides, in\nrelevant part, that the citizens of Cuyahoga Falls \xe2\x80\x9chave the\npower to approve or reject at the polls any ordinance or\nresolution passed by the Council * * *.\xe2\x80\x9d (Emphasis added.) The\nSummit County Board of Elections then certified that the\npetitions contained a sufficient number of valid signatures\nto be placed on the November 1996 ballot.\n\n424\n\n\x0cOn May 1, 1996, the appellants filed a complaint against\nthe appellees in the Court of Common Pleas of Summit\nCounty, requesting injunctive relief and a declaration that\nthe ordinance could not be challenged by referendum\nbecause its passage by the city council was an\nadministrative, rather than legislative, action. Appellants\nclaimed that Section 1f, Article II of the Ohio Constitution\ndid not grant powers of referendum to citizens of\nmunicipalities on administrative actions taken by municipal\nlegislative bodies.\nThe trial court denied the appellants\xe2\x80\x99 request for injunctive\nrelief. The court also determined that the Charter of\nCuyahoga Falls permitted the residents of the city to\nexercise powers of referendum on any action taken by the\ncity council, regardless of whether the action taken was\nlegislative or administrative in nature.\nAppellants appealed the decision of the trial court to the\nCourt of Appeals for Summit County. The court of appeals\naffirmed the judgment of the trial court, holding that\nSection 1f, Article II of the Ohio Constitution does not\nlimit the referendum powers of charter municipalities such\nas Cuyahoga Falls.\nPursuant to the allowance of a discretionary appeal, this\ncourt affirmed the judgment of the court of appeals.\nBuckeye Community Hope Found. v. Cuyahoga Falls\n(1998), 81 Ohio St.3d 559, 692 N.E.2d 997.\nThe cause is now before this court upon a motion for\nreconsideration filed by the appellants.\nZeiger & Carpenter, John W. Zeiger, Jeffrey A. Lipps and\nMichael N. Beekhuizen, Columbus; McFarland Law Office,\nand J. Drew McFarland, Granville, for appellants.\nMOYER, CHIEF JUSTICE.\nThis court has invoked the reconsideration procedures set\nforth in S.Ct.Prac.R. XI to \xe2\x80\x9ccorrect decisions which, upon\n\n425\n\n\x0creflection, are deemed to have been made in error.\xe2\x80\x9d State\nex rel. Huebner v. W. Jefferson Village Council (1995), 75\nOhio St.3d 381, 383, 662 N.E.2d 339, 341. For the reasons\nthat follow, we grant the appellants\xe2\x80\x99 motion for\nreconsideration and reverse the judgment of the court of\nappeals.\nI\nSection 3, Article XVIII of the Ohio Constitution grants\npowers of local self-government to municipalities by\nproviding, \xe2\x80\x9cMunicipalities shall have authority to exercise\nall powers of local self-government and to adopt and\nenforce within their limits such local police, sanitary and\nother similar regulations, as are not in conflict with general\nlaws.\xe2\x80\x9d In exercising those powers, municipalities may\nchoose to govern themselves by charter in accordance with\nSection 7, Article XVIII of the Ohio Constitution: \xe2\x80\x9cAny\nmunicipality may frame and adopt or amend a charter for\nits government and may, subject to the provisions of\nsection 3 of this article, exercise thereunder all powers of\nlocal self-government.\xe2\x80\x9d\nIt is well settled that although the Ohio Constitution grants\nbroad powers of local self-government to municipalities,\nthe scope of those powers is not without limits. In Canton\nv. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337\nN.E.2d 766, this court interpreted Section 3, Article XVIII\nas follows: \xe2\x80\x9cThis section, adopted in 1912, preserved the\nsupremacy of the state in matters of \xe2\x80\x98police, sanitary and\nother similar regulations,\xe2\x80\x99 while granting municipalities\nsovereignty in matters of local self-government, limited only\nby other constitutional provisions.\xe2\x80\x9d (Emphasis added.) Id. at 65,\n73 O.O.2d at 287, 337 N.E.2d at 769. See, also, State ex rel.\nBedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio\nSt.3d 17, 20, 577 N.E.2d 645, 647.\nIn Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d\n137, 233 N.E.2d 864, paragraph one of the syllabus, we\n\n426\n\n\x0carticulated the limits of charter government by stating that\n\xe2\x80\x9ca charter city has all powers of local self-government except\nto the extent that those powers are taken from it or limited by other\nprovisions of the Constitution or by statutory limitations on the\npowers of the municipality which the Constitution has\nauthorized the General Assembly to impose.\xe2\x80\x9d (Emphasis\nadded.) More recently, we stated that \xe2\x80\x9ca municipality that\nchooses to adopt a charter does so in order to manage its\nown purely local affairs without interference from the state,\nwith the understanding that these local laws will not conflict with the\nConstitution and general laws.\xe2\x80\x9d (Emphasis added.) Rispo Realty\n& Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564\nN.E.2d 425, 426-427.\nThe City Charter of Cuyahoga Falls provides that voters\nmay exercise powers of referendum on any ordinance or\nresolution passed by the city council. The appellants\ncontend that this provision conflicts with Section 1f, Article\nII of the Constitution, which provides, \xe2\x80\x9cThe initiative and\nreferendum powers are hereby reserved to the people of\neach municipality on all questions which such\nmunicipalities may now or hereafter be authorizedby law to\ncontrol by legislative action; such powers may be exercised\nin the manner now or hereafter provided by law.\xe2\x80\x9d\nWords used in the Constitution are construed according to\ntheir usual or customary meaning. See State ex rel. Herman\nv. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d\n995, 998; R.C. 1.42. Section 1f, Article II reserves\nreferendum powers to the people of \xe2\x80\x9ceach municipality.\xe2\x80\x9d\nThose words are unambiguous. There is no distinction\nbetween charter municipalities and municipalities that have\nno charter. Additionally, Section 1f, Article II is the sole\nconstitutional source of initiative and referendum powers,\nreserved by the people of the state to the people of each\nmunicipality.\nSection 1f, Article II provides initiative and referendum\npowers only on those questions that municipalities \xe2\x80\x9cmay\n\n427\n\n\x0cnow or hereafter be authorized by law to control by\nlegislative action.\xe2\x80\x9d We have interpreted this phrase to\nexclude, from referendum proceedings, administrative\nactions taken by a city council.1 In Myers v. Schiering\n(1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, we\nheld that \xe2\x80\x9cunder Section 1f of Article II of the Ohio\nConstitution, municipal referendum powers are limited to\nquestions which municipalities are \xe2\x80\x98authorized by law to\ncontrol by legislative action.\xe2\x80\x99 \xe2\x80\x9d Myers at paragraph one of\nthe syllabus. There, we determined that the passage of a\nresolution \xe2\x80\x9cgranting a permit for the operation of a sanitary\nlandfill, pursuant to an existing zoning regulation,\nconstitutes administrative action and is not subject to\nreferendum proceedings.\xe2\x80\x9d Id. at paragraph two of the\nsyllabus. See, also, State ex rel. Srovnal v. Linton (1976), 46\nOhio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.\nThe prior majority opinion in this case determined that\nboth Myers and Srovnal were inapposite because neither\ncase presented an issue regarding referendum powers\ngranted by charter. That conclusion was not correct.\nThe prior majority opinion reasoned that because Section\n1f, Article II is not a self-executing provision, charter\nmunicipalities enacting ancillary legislation to carry out the\nprinciples enunciated in Section 1f, Article II were not\nrestricted to following the statutory initiative and\nreferendum procedures enacted by the General Assembly\nfor non-charter municipalities. Buckeye Hope, 81 Ohio\nSt.3d at 565-566, 692 N.E.2d at 1001-1002. The prior\nmajority opinion then concluded that by virtue of Section\n7, Article XVIII, charter municipalities were not limited by\nSection 1f, Article II to providing referendum powers only\n\nAs a municipal legislative body, city councils may act in an administrative capacity.\nDonnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500,\nparagraph one of the syllabus.\n1\n\n428\n\n\x0cfor actions legislative in nature. Id. at 566, 692 N.E.2d at\n1002.\nIt is true that charter municipalities, in providing for\nreferendum and initiative powers, are not restricted to the\nstatutory mechanisms for initiative and referendum\nproceedings that govern non-charter municipalities. Charter\nprovisions may be more restrictive, or less restrictive than\nthose statutory procedures pursuant to the power of local\nself-government granted by the people under Sections 3\nand 7 of Article XVIII, as the prior majority opinion noted.\nId. at 565-566, 692 N.E.2d at 1001-1002. However, both\nthe statutory procedures enacted by the General Assembly\nto carry into effect Section 1f, Article II, and provisions\nenacted by charter municipalities to do the same, must be\nconsistent with the specific powers granted by Section 1f,\nArticle II, since it is the sole constitutional source for\nreferendum and initiative powers. Otherwise, the meaning\nof any constitutional provision that is not self-executing,\nand therefore requires ancillary legislation, could be altered\nby the words of the legislation carrying the provision into\neffect.\nAccordingly, there is no persuasive reason to deviate from\nour well-established case law as stated in Myers and\nSrovnal. Section 1f, Article II clearly limits referendum and\ninitiative powers to questions that are legislative in nature.\nCharter municipalities are subject to this limitation, as the\npowers of local self-government granted pursuant to\nSections 3 and 7 of Article XVIII are subject to the\nlimitations of other provisions of the Constitution. See\nBazell, at paragraph one of the syllabus, and Whitman, 44\nOhio St.2d at 65, 73 O.O.2d at 287, 337 N.E.2d at 769.\nThe section of the Charter of Cuyahoga Falls providing\nthat voters may exercise powers of referendum on any\nordinance or resolution passed by the city council is\nconstitutionally invalid. Voters of Cuyahoga Falls may\nexercise powers of referendum on any ordinance or\n\n429\n\n\x0cresolution that constitutes legislative action. Section 1f,\nArticle II does not authorize the residents of Cuyahoga\nFalls to initiate referendum proceedings on an action taken\nby the city council that is not legislative in nature. Section\n1f, Article II permits initiative and referendum powers only\non those matters that constitute legislative action.\nTherefore, we hold that the citizens of a municipality may\nnot exercise powers of referendum, by charter or other\nmeans, greater than those powers granted by Section 1f,\nArticle II of the Ohio Constitution.\nII\nThe remaining question for our determination is whether\nthe approval of the site plan by the city council constituted\nadministrative or legislative action.\nThe city argued that the approval of the site plan was a\nlegislative action because the action was taken by adopting\nan ordinance. In support of its position, the city cited\nDonnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42\nO.O.2d 1, 233 N.E.2d 500, paragraph two of the syllabus,\nwhich states that \xe2\x80\x9cthe test for determining whether the\naction of a legislative body is legislative or administrative is\nwhether the action taken is one enacting a law, ordinance\nor regulation, or executing or administering a law,\nordinance or regulation already in existence.\xe2\x80\x9d\nThe question presented to this court in Donnelly was\nwhether the action of a city council in failing to approve the\nrecommendation of the city\xe2\x80\x99s planning commission for a\nresubdivision of a parcel of real estate constituted legislative\nor administrative action. Id. at 3, 42 O.O.2d at 2, 233\nN.E.2d at 501. This court determined that the action was\nadministrative. Id. at 4, 42 O.O.2d at 3, 233 N.E.2d at 502.\nIn arriving at that conclusion, the court stated, \xe2\x80\x9c \xe2\x80\x98The\ncrucial test for determining that which is legislative from\nthat which is administrative or executive is whether the\naction taken was one already making a law, or executing or\n\n430\n\n\x0cadministering a law already in existence.\xe2\x80\x99 * * * If, then, the\naction of a legislative body creates a law, that action is legislative,\nbut if the action of that body consists of executing an existing law, the\naction is administrative.\xe2\x80\x9d (Emphasis added.) Id. at 4, 42\nO.O.2d at 2-3, 233 N.E.2d at 502, citing Kelley v. John\n(1956), 162 Neb. 319, 321, 75 N.W.2d 713, 715. Therefore,\nparagraph two of the syllabus in Donnelly established that\nthe test requires an examination of the nature of the action\ntaken, rather than the mere form in which it is taken.2\nAccordingly, the city\xe2\x80\x99s position that the approval of the site\nplan was a legislative action because the council took action\nvia an ordinance (rather than by resolution or other means)\nis in error.\nAdditionally, the city argued that the ordinance approving\nthe site plan constituted legislative action because city law\nstated that decisions made by the city council relating to\napprovals of site plans \xe2\x80\x9cshall be considered as legislative\nrather than administrative actions.\xe2\x80\x9d Cuyahoga Falls Zoning\nOrdinance No. 1171.03(c). This argument also is without\nmerit. The city council cannot designate an action as\nlegislative simply because it desires the action to be\nlegislative. Donnelly requires that the nature of the action\ntaken determines whether it is legislative or administrative,\ni.e., whether the action creates or establishes law, or\nwhether the action merely applies existing law to a given\nsituation. Donnelly at 4, 42 O.O.2d at 2, 233 N.E.2d at 502.\nAdditionally, it is our constitutional duty, in interpreting the\nwords of Section 1f, Article II, to independently analyze\nwhether the action by the city is a legislative action.\nThe action taken by the city council here was clearly\nadministrative in nature. Ordinance No. 48-1996 passed by\nthe city council approved a plan for the \xe2\x80\x9cdevelopment of\nThe quoted language in the text of Donnelly is instructive in determining the\nmeaning of paragraph two of the syllabus because paragraph two itself is not stated\nwithin the text.\n2\n\n431\n\n\x0cland * * * in accordance with such district and zoning\nregulations as stipulated in the Codified Ordinances of the\nCity of Cuyahoga Falls and as approved by the Planning\nCommission * * *.\xe2\x80\x9d The ordinance merely approves the\nplanning commission\xe2\x80\x99s application of existing zoning\nregulations to the plan submitted by the appellants. The\nordinance has no general, prospective application such that\nthe action taken would fit within the usual and customary\nmeaning of the phrase \xe2\x80\x9clegislative action\xe2\x80\x9d contained in\nSection 1f, Article II. See Black\xe2\x80\x99s Law Dictionary (6\nEd.1990) 899 (defining \xe2\x80\x9clegislative act\xe2\x80\x9d as \xe2\x80\x9claw * * * passed\nby legislature in contrast to court-made law. One which\nprescribes what the law shall be in future cases arising\nunder its provisions.\xe2\x80\x9d). Rather, the city council determined\nthe rights of the appellants by applying existing law to the\nsite plan submitted by the appellants. Accordingly,\nadoption of Ordinance No. 48-1996 was an administrative\nact, and therefore was not a legislative action that could be\nsubjected to referendum proceedings pursuant to Section\n1f, Article II.\nTherefore, we hold that pursuant to Section 1f, Article II of\nthe Ohio Constitution, actions taken by a municipal\nlegislative body, whether by ordinance, resolution, or other\nmeans, that constitute administrative action, are not subject\nto referendum proceedings. The passage by a city council\nof an ordinance approving a site plan for the development\nof land, pursuant to existing zoning and other applicable\nregulations, constitutes administrative action and is not\nsubject to referendum proceedings.\nPursuant to S.Ct.Prac.R. XI, the timely filing of a motion\nfor reconsideration temporarily prevents the issuance of a\nmandate in accordance with the court\xe2\x80\x99s judgment. A timely\nmotion was filed in this cause. Thus, this court has not yet\nissued a mandate in this action to implement our opinion\nrendered on May 6, 1998, and reported at 81 Ohio St.3d\n559, 692 N.E.2d 997. Under S.Ct.Prac.R. XI(3)(A)(2),\n\n432\n\n\x0cwhere a timely filed motion for reconsideration is granted, a\nmandate shall issue at the time the Supreme Court\xe2\x80\x99s\njudgment entry on reconsideration is entered. In\naccordance with our grant of the motion for\nreconsideration today, a mandate implementing this\nopinion shall also issue today.\nFor the foregoing reasons, we grant the motion for\nreconsideration and reverse the judgment of the court of\nappeals.3\nReconsideration granted and judgment reversed.\nPFEIFER, COOK and LUNDBERG STRATTON, JJ.,\nconcur.\nLUNDBERG STRATTON, J., concurs separately.\nDOUGLAS, RESNICK and FRANCIS E. SWEENEY,\nSr., JJ., dissent.\nLUNDBERG STRATTON, JUSTICE, concurring.\nAs the justice who changed her vote on an opinion that has\nalready been published, I feel obliged to explain my\ndecision to reconsider and to join the former dissenters in\nissuing a new majority opinion.\nAs a trial judge, issues before me were frequently clear, easy\nto resolve, and more black and white (though certainly not\nalways). However, when a case reaches the Supreme Court,\nthe black and white issues have often been resolved by\nsettlement, fallen by the wayside, or have been resolved by\nthe lower courts by established precedent, case law, or\nstatute. More frequently, the issues we accept for full\nconsideration upon the allowance of a discretionary appeal\nare now gray-what did the drafters of the United States or\nthe Ohio Constitutions mean by this broad language we\nOur earlier opinion, including paragraphs one and two of the syllabus, as reported\nat 81 Ohio St.3d 559, 692 N.E.2d 997, is hereby nullified in all respects by virtue of\nour decision today, and thus has no controlling authority.\n3\n\n433\n\n\x0cmust apply to this narrow fact pattern or to this twentieth\ncentury technology issue? What did the legislature intend by\nthis confusing statute? Did the legislature even think that\nthe statute would ever be applied as the parties now\ncontend it should be? Who is right-the three very\nexperienced appellate court districts who believe this new\nlaw is constitutional or the four other equally learned and\nrespected appellate districts who strongly disagree? Does\nthe court or the General Assembly decide public policy?\nWhat if public policy is overriding the constitutional rights\nof a minority? These are tough issues we struggle with daily,\nseeking that correct interpretation, that fine balancing of\nrights. I constantly challenge myself as to whether this is\nthe \xe2\x80\x9cright\xe2\x80\x9d decision or whether I have reached it because\nmy own judicial philosophy colors my outlook. Am I being\nan activist or deferring too much to the legislature? There\nare no simple answers.\nInto this difficult mix comes Buckeye Community Hope\nFound. v. Cuyahoga Falls-that all-too-complex clash\nbetween two groups-the developer seeking to move\nforward on an unpopular but worthy project opposed by\nthe homeowners who do not want that project \xe2\x80\x9cin their\nbackyard.\xe2\x80\x9d Both sides have valid, strong legal and\nemotional arguments; both firmly believe in their cause;\nboth look to us to finally resolve the conflict.\nI voted with the majority in Buckeye Community Hope\nFound. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692\nN.E.2d 997, because I passionately believe in the rights of\nthe voter. It is the cornerstone of our system of justice.\nI grew up in three foreign countries as a daughter of\nAmerican missionaries. I was born in Thailand and\nattended boarding schools in South Viet Nam and\nMalaysia. I saw countries governed by military dictators, by\nmonarchs, by anarchy, and by communists. I came from\nthe outside to this country, where the right to vote, though\nnot always exercised, is one of its most cherished\n\n434\n\n\x0cfoundations, the basis of its representative form of\ngovernment. The openness of our government, and the\npower of our vote to determine who represents us in our\ngovernment, cannot be fully appreciated until one has lived\nin countries that do not have those privileges.\nTherefore, when I considered the first majority opinion, it\nseemed the right decision. The people should have the\nultimate right to decide their own fate, to be the final\narbiters of their community\xe2\x80\x99s course. The majority\xe2\x80\x99s\nargument was powerful that Home Rule allowed a\nchartered municipality to grant its voters the final say. That\nis the strength of our system.\nBut I forgot in my zeal to affirm the power of the vote that\nour forefathers carefully fashioned some checks and\nbalances that are equally a cornerstone to our system. Our\nsystem of three equal branches, which balance and check\neach other, does not exist in many other countries, where\nthe legislature or the courts are merely puppets of the\nexecutive branch. Yet, to allow any of the three branches to\nbecome more powerful than the other two is to create\ninstability in our system. Underlying the three branches is\nthe right to vote, sometimes direct and sometimes\nrepresentative. The crafters of our Constitution recognized\nthat sometimes our representatives need some distance\nfrom the voting so that they can make a decision that may\nnot be popular at the moment, but may be best or right in\nthe long haul. Thus, state representatives have close\naccountability with two-year terms, senators are more\ninsulated by four-year terms, and the judiciary by six-year\nterms-still accountable but with greater freedom to act as\nnecessary though it may not be popular.\nBut predictability and stability are also important to the\nsurvival of our system. A mere change of our President\ncannot wipe out decades of law and statutes, as happens in\nmany countries. The legislature acts as the check against the\narbitrary changes of the administrative branch; the courts as\n\n435\n\n\x0ca check against both. Homeowners must be secure in the\nknowledge that their deed to their home will survive the\nelection; businesses must be able to rely on the stability of\ncontracts, zoning laws, tax laws, and laws governing\nrelationships, whether their business is to build factories or\nto operate a beauty salon. The loss of stability can result in\nchaos.\nIn reconsidering Buckeye Community Hope Found., and in\nweighing all of those heavy thoughts and constitutional\nissues, about which volumes have been written, I now join\nthe new majority because I believe it has arrived at the right\nanalysis; I now believe my former view was wrong. I see\nnow that the framers of the Ohio Constitution had a good\nreason for Section 1f, Article II, in limiting the referendum\nto legislative decisions only. But to apply the referendum to\neveryday administrative decisions, even if the charter of the\nmunicipality so allows (and I am no longer convinced this\nis what the drafters of the charter intended), is to submit\nthe minutiae of everyday administrative decision-making to\nthe whim of the voter at the moment. The unpopular\ndevelopment, the disfavored contract with a school\nprincipal, the neighbor\xe2\x80\x99s new garage approval, or any other\ndecision could be subject to voter disapproval if an angered\nvoter was organized or well-funded enough. Chaos and\ninstability could result. The decisions made by\nhomeowners, developers, schools, or anyone else could no\nlonger depend on established zoning approvals or contracts\nmade-all could be thrown out at whim.\nThe law of unintended consequences is \xe2\x80\x9cthe idea that\nwhenever society takes action to change something, there\nwill be unanticipated or unintended effects.\xe2\x80\x9d Fortune, Aug.,\n1996. Sometimes legislative action results in unintentional\nconsequences. Sometimes our actions do also. We make a\ndecision that seems right, constitutional, and just at the\ntime, but cannot always foresee how it can apply in ways\nwe never intended. I now see the danger of my original\n\n436\n\n\x0cvote and the wisdom of the original framers of our\nConstitution in limiting referendums to legislative actions\nand in not allowing municipalities to exercise powers\ngreater than the Constitution grants. In this case, Section\n1f, Article II trumps the Home Rule Amendment. I believe\nthis is what the Constitution intends. I now so vote\naccordingly.\nDOUGLAS, Justice, dissenting.\nI dissent from the judgment and opinion of the majority.\nSubsequent to our May 6, 1998 decision in Buckeye\nCommunity Hope Found. v. Cuyahoga Falls (1998), 81\nOhio St.3d 559, 692 N.E.2d 997, appellants filed a motion\nfor reconsideration. However, in granting appellants\xe2\x80\x99\nmotion, the majority has clearly disregarded the\nrequirements of S.Ct.Prac.R. XI. Section 2 of S.Ct.Prac.R.\nXI provides that a motion for reconsideration shall be\nconfined strictly to the grounds urged for reconsideration\nand that the motion \xe2\x80\x9cshall not constitute a reargument of\nthe case.\xe2\x80\x9d Appellants\xe2\x80\x99 motion is premised upon essentially\nthe same arguments that were initially presented to this\ncourt. In fact, the motion contains absolutely nothing that\nwarrants a change from our original decision. The majority,\nhowever, in rehearing the cause for whatever undisclosed\nreasons, has conveniently ignored the requirements of\nS.Ct.Prac.R. XI. Oh well, so much for the rules!\nIn any event, I also dissent from the judgment and the\nopinion of the majority because I cannot agree with the\nmajority\xe2\x80\x99s severe restriction of the sacrosanct right of\nreferendum. What is particularly disturbing is that the\nmajority completely ignores the clear wording of the\ndrafters of Section 1f, Article II and turns the enabling\nprovision into an affirmative limitation on the right of\nreferendum. I continue to believe that our original decision\nin Buckeye is correct, is supported by law, and, most\nimportantly, reflects the fundamental precepts upon which\nour state and country are based. In that regard it is\n\n437\n\n\x0cinteresting to recall, during this time of the year, July 4,\nwhen we celebrate the founding of our country and our\nDeclaration of Independence, that that sacred document\ncontains the words \xe2\x80\x9cthat to secure these rights,\nGovernments are instituted among Men, deriving their just\npowers from the consent of the governed.\xe2\x80\x9d (Emphasis added.)\nToday, the majority tells the citizens of Cuyahoga Falls, and\nall other communities and citizens likely situated, that what\nthey have voted into their charters means nothing because\nif the charter provision in question here can be negated by\nthe waving of the four-vote magic wand, then no charter\nprovision is truly sacred. So much for \xe2\x80\x9cjust powers\xe2\x80\x9d being\nderived \xe2\x80\x9cfrom the consent of the governed.\xe2\x80\x9d Given today\xe2\x80\x99s\nholding, Section 2, Article I of the Ohio Constitution\nshould now read that \xe2\x80\x9call political power is no longer\ninherent in the people.\xe2\x80\x9d\nFinally, this case is not about missionaries, separation of\npowers, length of terms of office, the President, or a\n\xe2\x80\x9cdisfavored contract with a school principal.\xe2\x80\x9d This case is\nabout Home Rule Charters voted into existence by electors\nin municipalities all across this state having nothing to do,\nof course, with the parade of horribles assembled in the\nconcurring opinion. The citizens of a municipality have the\nauthority to establish the means and methods to govern\ntheir own affairs.\nAccordingly, I dissent. I would deny the motion for\nreconsideration and follow our decision reported in 81\nOhio St.3d 559, 692 N.E.2d 997, which affirmed the wellreasoned judgment of the court of appeals.\nRESNICK and FRANCIS E. SWEENEY, Sr., JJ., concur\nin the foregoing dissenting opinion.\n\n438\n\n\x0cCity of Cuyahoga Falls, Ohio v. Buckeye Community\nHope Foundation\n538 U.S. 188 (2003)\nCERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SIXTH CIRCUIT.\nO\xe2\x80\x99CONNOR, J., delivered the opinion for a unanimous\nCourt. SCALIA, J., filed a concurring opinion, in which\nTHOMAS, J., joined, post, p. 200.\nGlen D. Nager argued the cause for petitioners. With him on\nthe briefs were Virgil Arrington, Jr., Michael A. Carvin, and\nMichael S. Fried.\nDavid B. Salmons argued the cause pro hac vice for the United\nStates as amicus curiae urging reversal. With him on the brief\nwere Solicitor General Olson, Assistant Attorney General Boyd,\nDeputy Solicitor General Clement, Mark L. Gross, and Teresa\nKwong.\nEdward G. Kramer argued the cause for respondents. With\nhim on the brief were Diane E. Citrino, Kenneth Kowalski, and\nMichael P. Seng.1\nJUSTICE O\'CONNOR delivered the opinion of the Court.\nIn 1995, the city of Cuyahoga Falls, Ohio (hereinafter City),\nsubmitted to voters a facially neutral referendum petition\n1Briefs\n\nof amici curiae urging reversal were filed for the City of Athens, Ohio, et al.\nby Barry M. Byron, John E. Gotherman, and Garry E. Hunter; and for the International\nMunicipal Lawyers Association et al. by Henry W. Underhill, Jr., Charles M. Hinton, Jr.,\nand Brad Neighbor.\nBriefs of amici curiae urging affirmance were filed for the Lawyers\xe2\x80\x99 Committee for\nCivil Rights Under Law et al. by Barbara Arnwine, Thomas J. Henderson, Cheryl L.\nZiegler, Eva Jefferson Paterson, Javier N. Maldonado, and Michael Churchill; for the\nNational Association of Home Builders by Thomas Jon Ward; for the National Fair\nHousing Alliance et al. by Joseph R. Guerra, Thomas Healy, John P. Relman, Meera\nTrehan, and Robert G. Schwemm; and for the National Multi Housing Council et al. by\nLeo G. Rydzewski and Clarine Nardi Riddle.\nJohn H. Findley and Meriem L. Hubbard filed a brief for the Pacific Legal Foundation\net al. as amici curiae.\n\n439\n\n\x0cthat called for the repeal of a municipal housing ordinance\nauthorizing construction of a low-income housing complex.\nThe United States Court of Appeals for the Sixth Circuit\nfound genuine issues of material fact with regard to\nwhether the City violated the Equal Protection Clause, the\nDue Process Clause, and the Fair Housing Act, 82 Stat. 81,\nas amended, 42 U. S. C. \xc2\xa7 3601 et seq., by placing the\npetition on the ballot. We granted certiorari to determine\nwhether the Sixth Circuit erred in ruling that respondents\xe2\x80\x99\nsuit against the City could proceed to trial.\nI\nA\nIn June 1995, respondents Buckeye Community Hope\nFoundation, a nonprofit corporation dedicated to\ndeveloping affordable housing through the use of lowincome tax credits, and others (hereinafter Buckeye or\nrespondents), purchased land zoned for apartments in\nCuyahoga Falls, Ohio. In February 1996, Buckeye\nsubmitted a site plan for Pleasant Meadows, a multifamily,\nlow-income housing complex, to the city planning\ncommission. Residents of Cuyahoga Falls immediately\nexpressed opposition to the proposal. See 263 F. 3d 627,\n630 (CA6 2001). After respondents agreed to various\nconditions, including that respondents build an earthen wall\nsurrounded by a fence on one side of the complex, the\ncommission unanimously approved the site plan and\nsubmitted it to the city council for final authorization.\nAs the final approval process unfolded, public opposition\nto the plan resurfaced and eventually coalesced into a\nreferendum petition drive. See Cuyahoga Falls City Charter,\nArt. 9, \xc2\xa7 2, App. 14 (giving voters \xe2\x80\x9cthe power to approve or\nreject at the polls any ordinance or resolution passed by the\nCouncil\xe2\x80\x9d within 30 days of the ordinance\xe2\x80\x99s passage). At city\ncouncil meetings and independent gatherings, some of\nwhich the mayor attended to express his personal\n\n440\n\n\x0copposition to the site plan, citizens of Cuyahoga Falls\nvoiced various concerns: that the development would cause\ncrime and drug activity to escalate, that families with\nchildren would move in, and that the complex would\nattract a population similar to the one on Prange Drive, the\nCity\xe2\x80\x99s only African-American neighborhood. See, e. g., 263\nF. 3d, at 636-637; App. 98, 139, 191; Tr. 182-185, 270, 316.\nNevertheless, because the plan met all municipal zoning\nrequirements, the city council approved the project on\nApril 1, 1996, through City Ordinance No. 48-1996.\nOn April 29, a group of citizens filed a formal petition with\nthe City requesting that the ordinance be repealed or\nsubmitted to a popular vote. Pursuant to the charter, which\nprovides that an ordinance challenged by a petition \xe2\x80\x9cshall\n[not] go into effect until approved by a majority\xe2\x80\x9d of voters,\nthe filing stayed the implementation of the site plan. Art. 9,\n\xc2\xa7 2, App. 15. On April 30, respondents sought an\ninjunction against the petition in state court, arguing that\nthe Ohio Constitution does not authorize popular\nreferendums on administrative matters. On May 31, the\nCourt of Common Pleas denied the injunction. Civ. No.\n96-05-1701 (Summit County), App. to Pet. for Cert. 255a.\nA month later, respondents nonetheless requested building\npermits from the City in order to begin construction. On\nJune 26, the city engineer rejected the request after being\nadvised by the city law director that the permits \xe2\x80\x9ccould not\nbe issued because the site plan ordinance \xe2\x80\x98does not take\neffect\xe2\x80\x99 due to the petitions.\xe2\x80\x9d 263 F. 3d, at 633.\nIn November 1996, the voters of Cuyahoga Falls passed\nthe referendum, thus repealing Ordinance No. 48-1996. In\na joint stipulation, however, the parties agreed that the\nresults of the election would not be certified until the\nlitigation over the referendum was resolved. See Stipulation\nand Jointly Agreed upon Preliminary Injunction Order in\nNo. 5:96 CV 1458 (ND Ohio, Nov. 25, 1996). In July 1998,\nthe Ohio Supreme Court, having initially concluded that\n\n441\n\n\x0cthe referendum was proper, reversed itself and declared the\nreferendum unconstitutional. 82 Ohio St. 3d 539, 697 N. E.\n2d 181 (holding that the Ohio State Constitution authorizes\nreferendums only in relation to legislative acts, not\nadministrative acts, such as the site-plan ordinance). The\nCity subsequently issued the building permits, and Buckeye\ncommenced construction of Pleasant Meadows.\nB\nIn July 1996, with the state-court litigation still pending,\nrespondents filed suit in federal court against the City and\nseveral city officials, seeking an injunction ordering the City\nto issue the building permits, as well as declaratory and\nmonetary relief. Buckeye alleged that \xe2\x80\x9cin allowing a site\nplan approval ordinance to be submitted to the electors of\nCuyahoga Falls through a referendum and in rejecting [its]\napplication for building permits,\xe2\x80\x9d the City and its officials\nviolated the Equal Protection and Due Process Clauses of\nthe Fourteenth Amendment, as well as the Fair Housing\nAct, 42 U. S. C. \xc2\xa7 3601. Complaint in No. 5:96 CV 1458 \xc2\xb6 1\n(ND Ohio, July 5, 1996) (hereinafter Complaint). In June\n1997, the District Court dismissed the case against the\nmayor in his individual capacity but denied the City\xe2\x80\x99s\nmotion for summary judgment on the equal protection and\ndue process claims, concluding that genuine issues of\nmaterial fact existed as to both claims. 970 F. Supp. 1289,\n1308 (ND Ohio 1997). After the Ohio Supreme Court\ndeclared the referendum invalid in 1998, thus reducing\nrespondents\xe2\x80\x99 action to a claim for damages for the delay in\nconstruction, the City and its officials again moved for\nsummary judgment. On November 19, 1999, the District\nCourt granted the motion on all counts. Civ. No. 5:96 CV\n1458, App. to Pet. for Cert. 35a.\nThe Court of Appeals for the Sixth Circuit reversed. As to\nrespondents\xe2\x80\x99 equal protection claim, the court concluded\nthat they had produced sufficient evidence to go to trial on\nthe allegation that the City, by allowing the referendum\n\n442\n\n\x0cpetition to stay the implementation of the site plan, gave\neffect to the racial bias reflected in the public\xe2\x80\x99s opposition\nto the project. See 263 F. 3d, at 639. The court then held\nthat even if respondents failed to prove intentional\ndiscrimination, they stated a valid claim under the Fair\nHousing Act on the theory that the City\xe2\x80\x99s actions had a\ndisparate impact based on race and family status. See id., at\n640. Finally, the court concluded that a genuine issue of\nmaterial fact existed as to whether the City, by denying\nrespondents the benefit of the lawfully approved site plan,\nengaged in arbitrary and irrational government conduct in\nviolation of substantive due process. Id., at 644. We granted\ncertiorari, 536 U. S. 938 (2002), and now reverse the\nconstitutional holdings and vacate the Fair Housing Act\nholding.\nII\nRespondents allege that by submitting the petition to the\nvoters and refusing to issue building permits while the\npetition was pending, the City and its officials violated the\nEqual Protection Clause. See Complaint \xc2\xb6 41. Petitioners\nclaim that the Sixth Circuit went astray by ascribing the\nmotivations of a handful of citizens supportive of the\nreferendum to the City. We agree with petitioners that\nrespondents have failed to present sufficient evidence of an\nequal protection violation to survive summary judgment.\nWe have made clear that \xe2\x80\x9c[p]roof of racially discriminatory\nintent or purpose is required\xe2\x80\x9d to show a violation of the\nEqual Protection Clause. Arlington Heights v. Metropolitan\nHousing Development Corp., 429 U. S. 252, 265 (1977) (citing\nWashington v. Davis, 426 U. S. 229 (1976)). In deciding the\nequal protection question, the Sixth Circuit erred in relying\non cases in which we have subjected enacted, discretionary\nmeasures to equal protection scrutiny and treated\ndecisionmakers\xe2\x80\x99 statements as evidence of such intent. See\n263 F. 3d, at 634-635 (citing Cleburne v. Cleburne Living\nCenter, Inc., 473 U. S. 432, 448 (1985); Arlington Heights v.\n\n443\n\n\x0cMetropolitan Housing Development Corp., supra, at 268; and\nHunter v. Erickson, 393 U. S. 385, 392 (1969)). Because\nrespondents claim injury from the referendum petitioning\nprocess and not from the referendum itself \xe2\x80\x94 which never\nwent into effect \xe2\x80\x94 these cases are inapposite. Ultimately,\nneither of the official acts respondents challenge reflects\nthe intent required to support equal protection liability.\nFirst, in submitting the referendum petition to the voters,\nthe City acted pursuant to the requirements of its charter,\nwhich sets out a facially neutral petitioning procedure. See\nArt. 9, \xc2\xa7 2. By placing the referendum on the ballot, the\nCity did not enact the referendum and therefore cannot be\nsaid to have given effect to voters\xe2\x80\x99 allegedly discriminatory\nmotives for supporting the petition. Similarly, the city\nengineer, in refusing to issue the building permits while the\nreferendum\nwas\nstill\npending,\nperformed\na\nnondiscretionary, ministerial act. He acted in response to\nthe city law director\xe2\x80\x99s instruction that the building permits\n\xe2\x80\x9ccould not \xe2\x80\xa6 issue\xe2\x80\x9d because the charter prohibited a\nchallenged site-plan ordinance from going into effect until\n\xe2\x80\x9capproved by a majority of those voting thereon,\xe2\x80\x9d App. 16.\nSee 263 F. 3d, at 633. Respondents point to no evidence\nsuggesting that these official acts were themselves\nmotivated by racial animus. Respondents do not, for\nexample, offer evidence that the City followed the\nobligations set forth in its charter because of the referendum\xe2\x80\x99s\ndiscriminatory purpose, or that city officials would have\nselectively refused to follow standard charter procedures in\na different case.\nInstead, to establish discriminatory intent, respondents and\nthe Sixth Circuit both rely heavily on evidence of allegedly\ndiscriminatory voter sentiment. See id., at 635-637. But\nstatements made by private individuals in the course of a\ncitizen-driven petition drive, while sometimes relevant to\nequal protection analysis, see supra, at 194, do not, in and of\nthemselves, constitute state action for the purposes of the\n\n444\n\n\x0cFourteenth Amendment. Cf. Blum v. Yaretsky, 457 U. S. 991,\n1002-1003 (1982) (\xe2\x80\x9d\xe2\x80\x99[T]he principle has become firmly\nembedded in our constitutional law that the action\ninhibited by the first section of the Fourteenth Amendment\nis only such action as may fairly be said to be that of the\nStates\xe2\x80\x99\xe2\x80\x9d (quoting Shelley v. Kraemer, 334 U. S. 1, 13 (1948))).\nMoreover, respondents put forth no evidence that the\n\xe2\x80\x9cprivate motives [that] triggered\xe2\x80\x9d the referendum drive\n\xe2\x80\x9ccan fairly be attributed to the State.\xe2\x80\x9d Blum v. Yaretsky,\nsupra, at 1004.\nIn fact, by adhering to charter procedures, city officials\nenabled public debate on the referendum to take place, thus\nadvancing significant First Amendment interests. In\nassessing the referendum as a \xe2\x80\x9cbasic instrument of\ndemocratic government,\xe2\x80\x9d Eastlake v. Forest City Enterprises,\nInc., 426 U. S. 668, 679 (1976), we have observed that\n\xe2\x80\x9c[p]rovisions for referendums demonstrate devotion to\ndemocracy, not to bias, discrimination, or prejudice,\xe2\x80\x9d James\nv. Valtierra, 402 U. S. 137, 141 (1971). And our well\nestablished\nFirst\nAmendment\nadmonition\nthat\n\xe2\x80\x9cgovernment may not prohibit the expression of an idea\nsimply because society finds the idea itself offensive or\ndisagreeable,\xe2\x80\x9d Texas v. Johnson, 491 U. S. 397, 414\n(1989),dovetails with the notion that all citizens, regardless\nof the content of their ideas, have the right to petition their\ngovernment. Cf. Meyer v. Grant, 486 U. S. 414, 421-422\n(1988) (describing the circulation of an initiative petition as\n\xe2\x80\x9c\xe2\x80\x98core political speech\xe2\x80\x99\xe2\x80\x9c); Police Dept. of Chicago v. Mosley, 408\nU. S. 92, 96 (1972) (\xe2\x80\x9c[G]overnment may not grant the use\nof a forum to people whose views it finds acceptable, but\ndeny use to those wishing to express less favored or more\ncontroversial views\xe2\x80\x9d). Again, statements made by\ndecisionmakers or referendum sponsors during deliberation\nover a referendum may constitute relevant evidence of\ndiscriminatory intent in a challenge to an ultimately enacted\ninitiative. See, e. g., Washington v. Seattle School Dist. No. 1, 458\n\n445\n\n\x0cU. S. 457, 471 (1982) (considering statements of initiative\nsponsors in subjecting enacted referendum to equal\nprotection scrutiny); Arlington Heights v. Metropolitan Housing\nDevelopment Corp., 429 U. S., at 268. But respondents do not\nchallenge an enacted referendum.\nIn their brief to this Court, respondents offer an alternative\ntheory of equal protection liability: that city officials,\nincluding the mayor, acted in concert with private citizens\nto prevent Pleasant Meadows from being built because of\nthe race and family status of its likely residents. See Brief\nfor Respondents 12-26; Tr. of Oral Arg. 33-34, 36-40, 43.\nRespondents allege, among other things, that the city law\ndirector prompted disgruntled voters to file the petition,\nthat the city council intentionally delayed its deliberations\nto thwart the development, and that the mayor stoked the\npublic opposition. See Brief for Respondents 17. Not only\ndid the courts below not directly address this theory of\nliability, but respondents also appear to have disavowed this\nclaim at oral argument, focusing instead on the denial of\nthe permits. See Tr. of Oral Arg. 37-38.\nWhat is more, respondents never articulated a cognizable\nlegal claim on these grounds. Respondents fail to show that\ncity officials exercised any power over voters\xe2\x80\x99\ndecisionmaking during the drive, much less the kind of\n\xe2\x80\x9ccoercive power\xe2\x80\x9d either \xe2\x80\x9covert or covert\xe2\x80\x9d that would\nrender the voters\xe2\x80\x99 actions and statements, for all intents and\npurposes, state action. Blum v. Yaretsky, 457 U. S., at 1004.\nNor, as noted above, do respondents show that the voters\xe2\x80\x99\nsentiments can be attributed in any way to the state actors\nagainst which it has brought suit. See ibid. Indeed, in\nfinding a genuine issue of material fact with regard to\nintent, the Sixth Circuit relied almost entirely on apparently\nindependent statements by private citizens. See 263 F. 3d,\nat 635-637. And in dismissing the claim against the mayor\nin his individual capacity, the District Court found no\nevidence that he orchestrated the referendum. See 970 F.\n\n446\n\n\x0cSupp., at 1321. Respondents thus fail to present an equal\nprotection claim sufficient to survive summary judgment.\nIII\nIn evaluating respondents\xe2\x80\x99 substantive due process claim,\nthe Sixth Circuit found, as a threshold matter, that\nrespondents had a legitimate claim of entitlement to the\nbuilding permits, and therefore a property interest in those\npermits, in light of the city council\xe2\x80\x99s approval of the site\nplan. See 263 F. 3d, at 642. The court then held that\nrespondents had presented sufficient evidence to survive\nsummary judgment on their claim that the City engaged in\narbitrary conduct by denying respondents the benefit of the\nplan. Id., at 644. Both in their complaint and before this\nCourt, respondents contend that the City violated\nsubstantive due process, not only for the reason articulated\nby the Sixth Circuit, but also on the grounds that the City\xe2\x80\x99s\nsubmission of an administrative land-use determination to\nthe charter\xe2\x80\x99s referendum procedures constituted per se\narbitrary conduct. See Complaint \xc2\xb6\xc2\xb6 39, 43; Brief for\nRespondents 32-49. We find no merit in either claim.\nWe need not decide whether respondents possessed a\nproperty interest in the building permits, because the city\nengineer\xe2\x80\x99s refusal to issue the permits while the petition\nwas pending in no sense constituted egregious or arbitrary\ngovernment conduct. See County of Sacramento v. Lewis, 523\nU. S. 833, 846 (1998) (noting that in our evaluations of\n\xe2\x80\x9cabusive executive action,\xe2\x80\x9d we have held that \xe2\x80\x9conly the\nmost egregious official conduct can be said to be \xe2\x80\x98arbitrary\nin the constitutional sense\xe2\x80\x99\xe2\x80\x9c). In light of the charter\xe2\x80\x99s\nprovision that \xe2\x80\x9c[n]o such ordinance [challenged by a\npetition] shall go into effect until approved by a majority of\nthose voting thereon,\xe2\x80\x9d Art. 9, \xc2\xa7 2, App. 15, the law\ndirector\xe2\x80\x99s instruction to the engineer to not issue the\npermits represented an eminently rational directive. Indeed,\nthe site plan, by law, could not be implemented until the\nvoters passed on the referendum.\n\n447\n\n\x0cRespondents\xe2\x80\x99 second theory of liability has no basis in our\nprecedent. As a matter of federal constitutional law, we\nhave rejected the distinction that respondents ask us to\ndraw, and that the Ohio Supreme Court drew as a matter of\nstate law, between legislative and administrative\nreferendums. In Eastlake v. Forest City Enterprises, Inc., 426 U.\nS., at 672, 675, we made clear that because all power stems\nfrom the people, \xe2\x80\x9c[a] referendum cannot \xe2\x80\xa6 be\ncharacterized as a delegation of power,\xe2\x80\x9d unlawful unless\naccompanied by \xe2\x80\x9cdiscernible standards.\xe2\x80\x9d The people retain\nthe power to govern through referendum \xe2\x80\x9c\xe2\x80\x98with respect to\nany matter, legislative or administrative, within the realm of\nlocal affairs.\xe2\x80\x99\xe2\x80\x9d Id., at 674, n. 9. Cf. James v. Valtierra, 402 U.\nS. 137. Though the \xe2\x80\x9csubstantive result\xe2\x80\x9d of a referendum\nmay be invalid if it is \xe2\x80\x9carbitrary and capricious,\xe2\x80\x9d Eastlake v.\nForest City Enterprises, supra, at 676, respondents do not\nchallenge the referendum itself. The subjection of the siteplan ordinance to the City\xe2\x80\x99s referendum process, regardless\nof whether that ordinance reflected an administrative or\nlegislative decision, did not constitute per se arbitrary\ngovernment conduct in violation of due process.\nIV\nFor the reasons detailed above, we reverse the Sixth\nCircuit\xe2\x80\x99s judgment with regard to respondents\xe2\x80\x99 equal\nprotection and substantive due process claims. The Sixth\nCircuit also held that respondents\xe2\x80\x99 disparate impact claim\nunder the Fair Housing Act could proceed to trial, 263 F.\n3d, at 641, but respondents have now abandoned the claim.\nSee Brief for Respondents 31. We therefore vacate the\nSixth Circuit\xe2\x80\x99s disparate impact holding and remand with\ninstructions to dismiss, with prejudice, the relevant portion\nof the complaint. See Deakins v. Monaghan, 484 U. S. 193,\n200 (1988).\nThe judgment of the United States Court of Appeals for\nthe Sixth Circuit is, accordingly, reversed in part and\n\n448\n\n\x0cvacated in part, and the case is remanded for further\nproceedings consistent with this opinion.\nIt is so ordered.\nJUSTICE SCALIA, with whom JUSTICE THOMAS joins,\nconcurring.\nI join the Court\xe2\x80\x99s opinion, including Part III, which\nconcludes that respondents\xe2\x80\x99 assertions of arbitrary\ngovernment conduct must be rejected. I write separately to\nobserve that, even if there had been arbitrary government\nconduct, that would not have established the substantivedue-process violation that respondents claim.\nIt would be absurd to think that all \xe2\x80\x9carbitrary and\ncapricious\xe2\x80\x9d government action violates substantive due\nprocess \xe2\x80\x94 even, for example, the arbitrary and capricious\ncancellation of a public employee\xe2\x80\x99s parking privileges. The\njudicially created substantive component of the Due\nProcess Clause protects, we have said, certain \xe2\x80\x9cfundamental\nliberty interest[s]\xe2\x80\x9d from deprivation by the government,\nunless the infringement is narrowly tailored to serve a\ncompelling state interest. Washington v. Glucksberg, 521 U. S.\n702, 721 (1997). Freedom from delay in receiving a building\npermit is not among these \xe2\x80\x9cfundamental liberty interests.\xe2\x80\x9d\nTo the contrary, the Takings Clause allows government\nconfiscation of private property so long as it is taken for a\npublic use and just compensation is paid; mere regulation of\nland use need not be \xe2\x80\x9cnarrowly tailored\xe2\x80\x9d to effectuate a\n\xe2\x80\x9ccompelling state interest.\xe2\x80\x9d Those who claim \xe2\x80\x9carbitrary\xe2\x80\x9d\ndeprivations of nonfundamental liberty interests must look\nto the Equal Protection Clause, and Graham v. Connor, 490\nU. S. 386, 395 (1989), precludes the use of \xe2\x80\x9c\xe2\x80\x98substantive\ndue process\xe2\x80\x99\xe2\x80\x9d analysis when a more specific constitutional\nprovision governs.\nAs for respondents\xe2\x80\x99 assertion that referendums may not be\nused to decide whether low-income housing may be built\non their land: that is not a substantive-due-process claim,\n\n449\n\n\x0cbut rather a challenge to the procedures by which\nrespondents were deprived of their alleged liberty interest\nin building on their land. There is nothing procedurally\ndefective about conditioning the right to build low-income\nhousing on the outcome of a popular referendum, cf. James\nv. Valtierra, 402 U.S. 137 (1971), and the delay in issuing the\npermit was prescribed by a duly enacted provision of the\nCuyahoga Falls City Charter (Art. 9, \xc2\xa7 2), which surely\nconstitutes \xe2\x80\x9cdue process of law,\xe2\x80\x9d see Connecticut Dept. of\nPublic Safety v. Doe, ante, p. 8 (SCALIA, J., concurring).\nWith these observations, I join the Court\xe2\x80\x99s opinion.\n\n450\n\n\x0c4. Regulatory Takings\n4.1. Origins\nMugler v. Kansas\n123 U.S. 623 (1887)\nERROR TO THE SUPREME COURT OF THE STATE\nOF KANSAS. APPEAL FROM THE CIRCUIT COURT\nOF THE UNITED STATES FOR THE DISTRICT OF\nKANSAS.\nMr. George G. Vest, for plaintiff in error.\nMr. B.S. Bradford, Attorney General of the State of Kansas,\nMr. George R. Peck, Mr. J.B. Johnson, and Mr. George J. Barker\nfor defendant in error, submitted on their brief.\nMr. S.B. Bradford, Attorney General of the State of Kansas,\nMr. Edwin A. Austin, Assistant Attorney General of that\nState, and Mr. J.F. Tufts, Assistant Attorney General for\nAtchison County, Kansas, for appellant submitted on their\nbrief. October 25, 1887, Mr. Bradford moved the court to\nreopen the cause and reassign it for argument. October 26,\n1887, the court denied the motion.\nMr. Joseph II. Choate for appellee. Mr. Robert M. Eaton and\nMr. John C. Tomlinson were with him on his brief.\nMR. JUSTICE HARLAN delivered the opinion of the court.\nThese cases involve an inquiry into the validity of certain\nstatutes of Kansas relating to the manufacture and sale of\nintoxicating liquors. [A series of Kansas statutes worked to\nprohibit the manufacture or sale of alcoholic beverages.]\nThe first two are indictments, charging Mugler, the plaintiff\nin error, in one case, with having sold, and in the other,\nwith having manufactured, spirituous, vinous, malt,\nfermented, and other intoxicating liquors, in Saline County,\nKansas, without having the license or permit required by\nthe statute. The defendant, having been found guilty, was\nfined, in each case, one hundred dollars, and ordered to be\n\n\x0ccommitted to the county jail until the fine was paid. Each\njudgment was affirmed by the Supreme Court of Kansas,\nand thereby, it is contended, the defendant was denied\nrights, privileges, and immunities guaranteed by the\nConstitution of the United States.\nThe third case \xe2\x80\x93 Kansas v. Ziebold & Hagelin \xe2\x80\x93 was\ncommenced by petition filed in one of the courts of the\nState. The relief sought is: 1. That the group of buildings in\nAtchison County, Kansas, constituting the brewery of the\ndefendants, partners as Ziebold & Hagelin, be adjudged a\ncommon nuisance, and the sheriff or other proper officer\ndirected to shut up and abate the same. 2. That the\ndefendants be enjoined from using, or permitting to be\nused, the said premises as a place where intoxicating liquors\nmay be sold, bartered, or given away, or kept for barter,\nsale, or gift, otherwise than by authority of law.\n\xe2\x80\xa6.\nThe facts necessary to a clear understanding of the\nquestions, common to these cases, are the following:\nMugler and Ziebold & Hagelin were engaged in\nmanufacturing beer at their respective establishments,\n(constructed specially for that purpose,) for several years\nprior to the adoption of the constitutional amendment of\n1880. They continued in such business in defiance of the\nstatute of 1881, and without having the required permit.\nNor did Mugler have a license or permit to sell beer. The\nsingle sale of which he was found guilty occurred in the\nState, and after May 1, 1881, that is, after the act of\nFebruary 19, 1881, took effect, and was of beer\nmanufactured before its passage.\nThe buildings and machinery constituting these breweries\nare of little value if not used for the purpose of\nmanufacturing beer; that is to say, if the statutes are\nenforced against the defendants the value of their property\nwill be very materially diminished.\n\n452\n\n\x0cThe general question in each case is, whether the foregoing\nstatutes of Kansas are in conflict with that clause of the\nFourteenth Amendment, which provides that \xe2\x80\x9cno State\nshall make or enforce any law which shall abridge the\nprivileges or immunities of citizens of the United States;\nnor shall any State deprive any person of life, liberty, or\nproperty, without due process of law.\xe2\x80\x9d\n[The Court canvasses prior cases and reasons that it is\nwithin a state\xe2\x80\x99s police powers to prohibit alcohol sales and\nmanufacture.]\nUndoubtedly the State, when providing, by legislation, for\nthe protection of the public health, the public morals, or\nthe public safety, is subject to the paramount authority of\nthe Constitution of the United States, and may not violate\nrights secured or guaranteed by that instrument, or interfere\nwith the execution of the powers confided to the general\ngovernment. Henderson v. Mayor of New York, 92 U.S. 259;\nRailroad Co. v. Husen, 95 U.S. 465; New Orleans Gas Co. v.\nLouisiana Light Co., 115 U.S. 650; Walling v. Michigan, 116\nU.S. 446; Yick Wo v. Hopkins, 118 U.S. 356; Morgan\xe2\x80\x99s\nSteamship Co. v. Louisiana Board of Health, 118 U.S. 455.\nUpon this ground \xe2\x80\x93 if we do not misapprehend the\nposition of defendants \xe2\x80\x93 it is contended that, as the primary\nand principal use of beer is as a beverage; as their respective\nbreweries were erected when it was lawful to engage in the\nmanufacture of beer for every purpose; as such\nestablishments will become of no value as property, or, at\nleast, will be materially diminished in value, if not employed\nin the manufacture of beer for every purpose; the\nprohibition upon their being so employed is, in effect, a\ntaking of property for public use without compensation,\nand depriving the citizen of his property without due\nprocess of law. In other words, although the State, in the\nexercise of her police powers, may lawfully prohibit the\nmanufacture and sale, within her limits, of intoxicating\nliquors to be used as a beverage, legislation having that\n\n453\n\n\x0cobject in view cannot be enforced against those who, at the\ntime, happen to own property, the chief value of which\nconsists in its fitness for such manufacturing purposes,\nunless compensation is first made for the diminution in the\nvalue of their property, resulting from such prohibitory\nenactments.\nThis interpretation of the Fourteenth Amendment is\ninadmissible. It cannot be supposed that the States\nintended, by adopting that Amendment, to impose\nrestraints upon the exercise of their powers for the\nprotection of the safety, health, or morals of the\ncommunity. In respect to contracts, the obligations of\nwhich are protected against hostile state legislation, this\ncourt in Butchers\xe2\x80\x99 Union Co. v. Crescent City Co., 111 U.S. 746,\n751, said that the State could not, by any contract, limit the\nexercise of her power to the prejudice of the public health\nand the public morals. So, in Stone v. Mississippi, 101 U.S.\n814, 816, where the Constitution was invoked against the\nrepeal by the State of a charter, granted to a private\ncorporation, to conduct a lottery, and for which that\ncorporation paid to the State a valuable consideration in\nmoney, the court said: \xe2\x80\x9cNo legislature can bargain away the\npublic health or the public morals. The people themselves\ncannot do it, much less their servants\xe2\x80\xa6 . Government is\norganized with a view to their preservation, and cannot\ndivest itself of the power to provide for them.\xe2\x80\x9d Again, in\nNew Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 672:\n\xe2\x80\x9cThe constitutional prohibition upon state laws impairing\nthe obligation or contracts does not restrict the power of\nthe State to protect the public health, the public morals, or\nthe public safety, as the one or the other may be involved\nin the execution of such contracts. Rights and privileges\narising from contracts with a State are subject to regulations\nfor the protection of the public health, the public morals,\nand the public safety, in the same sense, and to the same\n\n454\n\n\x0cextent, as are all contracts and all property, whether owned\nby natural persons or corporations.\xe2\x80\x9d\nThe principle, that no person shall be deprived of life,\nliberty, or property, without due process of law, was\nembodied, in substance, in the constitutions of nearly all, if\nnot all, of the States at the time of the adoption of the\nFourteenth Amendment; and it has never been regarded as\nincompatible with the principle, equally vital, because\nessential to the peace and safety of society, that all property\nin this country is held under the implied obligation that the\nowner\xe2\x80\x99s use of it shall not be injurious to the community.\nBeer Co.v. Massachusetts, 97 U.S. 25, 32; Commonwealth v. Alger,\n7 Cush. 53. An illustration of this doctrine is afforded by\nPatterson v. Kentucky, 97 U.S. 501. The question there was as\nto the validity of a statute of Kentucky, enacted in 1874,\nimposing a penalty upon any one selling or offering for sale\noils and fluids, the product of coal, petroleum, or other\nbituminous substances, which would burn or ignite at a\ntemperature below 130\xc2\xb0 Fahrenheit. Patterson having sold,\nwithin that commonwealth, a certain oil, for which letterspatent were issued in 1867, but which did not come up to\nthe standard required by said statute, and having been\nindicted therefor, disputed the State\xe2\x80\x99s authority to prevent\nor obstruct the exercise of that right. This court upheld the\nlegislation of Kentucky, upon the ground, that while the\nState could not impair the exclusive right of the patentee,\nor of his assignee, in the discovery described in the letterspatent, the tangible property, the fruit of the discovery, was\nnot beyond control in the exercise of her police powers. It\nwas said: \xe2\x80\x9cBy the settled doctrines of this court the police\npower extends, at least, to the protection of the lives, the\nhealth, and the property of the community against the\ninjurious exercise by any citizen of his own rights. State\nlegislation, strictly and legitimately for police purposes,\ndoes not, in the sense of the Constitution, necessarily\nintrench upon any authority which has been confided,\n\n455\n\n\x0cexpressly or by implication, to the national government.\nThe Kentucky statute under examination manifestly\nbelongs to that class of legislation. It is, in the best sense, a\nmere police regulation, deemed essential to the protection\nof the lives and property of citizens.\xe2\x80\x9d p. 504. Referring to\nthe numerous decisions of this court guarding the power of\nCongress to regulate commerce against encroachment,\nunder the guise of state regulations, established for the\npurpose and with the effect of destroying or impairing\nrights secured by the Constitution, it was further said: \xe2\x80\x9cIt\nhas, nevertheless, with marked distinctness and uniformity,\nrecognized the necessity, growing out of the fundamental\nconditions of civil society, of upholding state police\nregulations which were enacted in good faith, and had\nappropriate and direct connection with that protection to\nlife, health, and property which each State owes to her\ncitizens.\xe2\x80\x9d See also United States v. Dewitt, 9 Wall. 41; License\nTax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475.\nAnother decision, very much in point upon this branch of\nthe case, is Fertilizing Co. v. Hyde Park, 97 U.S. 659, 667, also\ndecided after the adoption of the Fourteenth Amendment.\nThe court there sustained the validity of an ordinance of\nthe village of Hyde Park, in Cook County, Illinois, passed\nunder legislative authority, forbidding any person from\ntransporting through that village offal or other offensive or\nunwholesome matter, or from maintaining or carrying on\nan offensive or unwholesome business or establishment\nwithin its limits. The Fertilizing Company had, at large\nexpense, and under authority expressly conferred by its\ncharter, located its works at a particular point in the county.\nBesides, the charter of the village, at that time, provided\nthat it should not interfere with parties engaged in\ntransporting animal matter from Chicago, or from\nmanufacturing it into a fertilizer or other chemical product.\nThe enforcement of the ordinance in question operated to\ndestroy the business of the company, and seriously to\n\n456\n\n\x0cimpair the value of its property. As, however, its business\nhad become a nuisance to the community in which it was\nconducted, producing discomfort, and often sickness,\namong large masses of people, the court maintained the\nauthority of the village, acting under legislative sanction, to\nprotect the public health against such nuisance. It said: \xe2\x80\x9cWe\ncannot doubt that the police power of the State was\napplicable and adequate to give an effectual remedy. That\npower belonged to the States when the Federal\nConstitution was adopted. They did not surrender it, and\nthey all have it now. It extends to the entire property and\nbusiness within their local jurisdiction. Both are subject to\nit in all proper cases. It rests upon the fundamental\nprinciple that every one shall so use his own as not to\nwrong and injure another. To regulate and abate nuisances\nis one of its ordinary functions.\xe2\x80\x9d\nIt is supposed by the defendants that the doctrine for\nwhich they contend is sustained by Pumpelly v. Green Bay Co.,\n13 Wall. 166. But in that view we do not concur. That was\nan action for the recovery of damages for the overflowing\nof the plaintiff\xe2\x80\x99s land by water, resulting from the\nconstruction of a dam across a river. The defence was that\nthe dam constituted a part of the system adopted by the\nState for improving the navigation of Fox and Wisconsin\nrivers; and it was contended that as the damages of which\nthe plaintiff complained were only the result of the\nimprovement, under legislative sanction, of a navigable\nstream, he was not entitled to compensation from the State\nor its agents. The case, therefore, involved the question\nwhether the overflowing of the plaintiff\xe2\x80\x99s land, to such an\nextent that it became practically unfit to be used, was a\ntaking of property, within the meaning of the constitution\nof Wisconsin, providing that \xe2\x80\x9cthe property of no person\nshall be taken for public use without just compensation\ntherefor.\xe2\x80\x9d This court said it would be a very curious and\nunsatisfactory result, were it held that, \xe2\x80\x9cif the government\n\n457\n\n\x0crefrains from the absolute conversion of real property to\nthe uses of the public, it can destroy its value entirely, can\ninflict irreparable and permanent injury to any extent, can,\nin effect, subject it to total destruction, without making any\ncompensation, because, in the narrowest sense of that\nword, it is not taken for the public use. Such a construction\nwould pervert the constitutional provision into a restriction\nupon the rights of the citizen, as those rights stood at the\ncommon law, instead of the government, and make it an\nauthority for the invasion of private right under the pretext\nof the public good, which had no warrant in the laws or\npractices of our ancestors.\xe2\x80\x9d pp. 177, 178.\nThese principles have no application to the case under\nconsideration. The question in Pumpelly v. Green Bay\nCompany arose under the State\xe2\x80\x99s power of eminent domain;\nwhile the question now before us arises under what are,\nstrictly, the police powers of the State, exerted for the\nprotection of the health, morals, and safety of the people.\nThat case, as this court said in Transportation Co. v. Chicago,\n99 U.S. 635, 642, was an extreme qualification of the\ndoctrine, universally held, that \xe2\x80\x9cacts done in the proper\nexercise of governmental powers, and not directly\nencroaching upon private property, though these\nconsequences may impair its use,\xe2\x80\x9d do not constitute a\ntaking within the meaning of the constitutional provision,\nor entitle the owner of such property to compensation\nfrom the State or its agents, or give him any right of action.\nIt was a case in which there was a \xe2\x80\x9cpermanent flooding of\nprivate property,\xe2\x80\x9d a \xe2\x80\x9cphysical invasion of the real estate of\nthe private owner, and a practical ouster of his possession.\xe2\x80\x9d\nHis property was, in effect, required to be devoted to the\nuse of the public, and, consequently, he was entitled to\ncompensation.\nAs already stated, the present case must be governed by\nprinciples that do not involve the power of eminent\ndomain, in the exercise of which property may not be taken\n\n458\n\n\x0cfor public use without compensation. A prohibition simply\nupon the use of property for purposes that are declared, by\nvalid legislation, to be injurious to the health, morals, or\nsafety of the community, cannot, in any just sense, be\ndeemed a taking or an appropriation of property for the\npublic benefit. Such legislation does not disturb the owner\nin the control or use of his property for lawful purposes,\nnor restrict his right to dispose of it, but is only a\ndeclaration by the State that its use by any one, for certain\nforbidden purposes, is prejudicial to the public interests.\nNor can legislation of that character come within the\nFourteenth Amendment, in any case, unless it is apparent\nthat its real object is not to protect the community, or to\npromote the general well-being, but, under the guise of\npolice regulation, to deprive the owner of his liberty and\nproperty, without due process of law. The power which the\nStates have of prohibiting such use by individuals of their\nproperty as will be prejudicial to the health, the morals, or\nthe safety of the public, is not \xe2\x80\x93 and, consistently with the\nexistence and safety of organized society, cannot be \xe2\x80\x93\nburdened with the condition that the State must\ncompensate such individual owners for pecuniary losses\nthey may sustain, by reason of their not being permitted, by\na noxious use of their property, to inflict injury upon the\ncommunity. The exercise of the police power by the\ndestruction of property which is itself a public nuisance, or\nthe prohibition of its use in a particular way, whereby its\nvalue becomes depreciated, is very different from taking\nproperty for public use, or from depriving a person of his\nproperty without due process of law. In the one case, a\nnuisance only is abated; in the other, unoffending property\nis taken away from an innocent owner.\nIt is true, that, when the defendants in these cases\npurchased or erected their breweries, the laws of the State\ndid not forbid the manufacture of intoxicating liquors. But\nthe State did not thereby give any assurance, or come under\n\n459\n\n\x0can obligation, that its legislation upon that subject would\nremain unchanged. Indeed, as was said in Stone v. Mississippi,\nabove cited, the supervision of the public health and the\npublic morals is a governmental power, \xe2\x80\x9ccontinuing in its\nnature,\xe2\x80\x9d and \xe2\x80\x9cto be dealt with as the special exigencies of\nthe moment may re quire;\xe2\x80\x9d and that, \xe2\x80\x9cfor this purpose, the\nlargest legislative discretion is allowed, and the discretion\ncannot be parted with any more than the power itself.\xe2\x80\x9d So\nin Beer Co. v. Massachusetts, 97 U.S. 32: \xe2\x80\x9cIf the public safety\nor the public morals require the discontinuance of any\nmanufacture or traffic, the hand of the legislature cannot be\nstayed from providing for its discontinuance by any\nincidental inconvenience which individuals or corporations\nmay suffer.\xe2\x80\x9d\n\xe2\x80\xa6.\nMR. JUSTICE FIELD delivered the following separate\nopinion.\n\xe2\x80\xa6.\nThese clauses appear to me to deprive one who owns a\nbrewery and manufactures beer for sale, like the\ndefendants, of property without due process of law. The\ndestruction to be ordered is not as a forfeiture upon\nconviction of any offence, but merely because the\nlegislature has so commanded. Assuming, which is not\nconceded, that the legislature, in the exercise of that\nundefined power of the State, called its police power, may,\nwithout compensation to the owner, deprive him of the use\nof his brewery for the purposes for which it was\nconstructed under the sanction of the law, and for which\nalone it is valuable, I cannot see upon what principle, after\nclosing the brewery, and thus putting an end to its use in\nthe future for manufacturing spirits, it can order the\ndestruction of the liquor already manufactured, which it\nadmits by its legislation may be valuable for some purposes,\nand allows to be sold for those purposes. Nor can I see\n\n460\n\n\x0chow the protection of the health and morals of the people\nof the State can require the destruction of property like\nbottles, glasses, and other utensils, which may be used for\nmany lawful purposes. It has heretofore been supposed to\nbe an established principle, that where there is a power to\nabate a nuisance, the abatement must be limited by its\nnecessity, and no wanton or unnecessary injury can be\ncommitted to the property or rights of individuals. Thus, if\nthe nuisance consists in the use to which a building is put,\nthe remedy is to stop such use, not to tear down or to\ndemolish the building itself, or to destroy property found\nwithin it. Babcock v. City of Buffalo, 56 N.Y. 268; Chenango\nBridge Co. v. Paige, 83 N.Y. 178, 189. The decision of the\ncourt, as it seems to me, reverses this principle.\nIt is plain that great wrong will often be done to\nmanufacturers of liquors, if legislation like that embodied in\nthis thirteenth section can be upheld. The Supreme Court\nof Kansas admits that the legislature of the State, in\ndestroying the values of such kinds of property, may have\ngone to the utmost verge of constitutional authority. In my\nopinion it has passed beyond that verge, and crossed the\nline which separates regulation from confiscation.\nPennsylvania Coal Company v. Mahon,260 U.S. 393 (1922)\nMR. JUSTICE HOLMES delivered the opinion of the Court.\nThis is a bill in equity brought by the defendants in error to\nprevent the Pennsylvania Coal Company from mining\nunder their property in such way as to remove the supports\nand cause a subsidence of the surface and of their house.\nThe bill sets out a deed executed by the Coal Company in\n1878, under which the plaintiffs claim. The deed conveys\nthe surface, but in express terms reserves the right to\nremove all the coal under the same, and the grantee takes\nthe premises with the risk, and waives all claim for damages\nthat may arise from mining out the coal. But the plaintiffs\nsay that whatever may have been the Coal Company\xe2\x80\x99s\n\n461\n\n\x0crights, they were taken away by an Act of Pennsylvania,\napproved May 27, 1921, P.L. 1198, commonly known there\nas the Kohler Act. The Court of Common Pleas found that\nif not restrained the defendant would cause the damage to\nprevent which the bill was brought, but denied an\ninjunction, holding that the statute if applied to this case\nwould be unconstitutional. On appeal the Supreme Court\nof the State agreed that the defendant had contract and\nproperty rights protected by the Constitution of the United\nStates, but held that the statute was a legitimate exercise of\nthe police power and directed a decree for the plaintiffs. A\nwrit of error was granted bringing the case to this Court.\nThe statute forbids the mining of anthracite coal in such\nway as to cause the subsidence of, among other things, any\nstructure used as a human habitation, with certain\nexceptions, including among them land where the surface is\nowned by the owner of the underlying coal and is distant\nmore than one hundred and fifty feet from any improved\nproperty belonging to any other person. As applied to this\ncase the statute is admitted to destroy previously existing\nrights of property and contract. The question is whether\nthe police power can be stretched so far.\nGovernment hardly could go on if to some extent values\nincident to property could not be diminished without\npaying for every such change in the general law. As long\nrecognized, some values are enjoyed under an implied\nlimitation and must yield to the police power. But\nobviously the implied limitation must have its limits, or the\ncontract and due process clauses are gone. One fact for\nconsideration in determining such limits is the extent of the\ndiminution. When it reaches a certain magnitude, in most if\nnot in all cases there must be an exercise of eminent\ndomain and compensation to sustain the act. So the\nquestion depends upon the particular facts. The greatest\nweight is given to the judgment of the legislature, but it\n\n462\n\n\x0calways is open to interested parties to contend that the\nlegislature has gone beyond its constitutional power.\nThis is the case of a single private house. No doubt there is\na public interest even in this, as there is in every purchase\nand sale and in all that happens within the commonwealth.\nSome existing rights may be modified even in such a case.\nRideout v. Knox, 148 Mass. 368. But usually in ordinary\nprivate affairs the public interest does not warrant much of\nthis kind of interference. A source of damage to such a\nhouse is not a public nuisance even if similar damage is\ninflicted on others in different places. The damage is not\ncommon or public. Wesson v. Washburn Iron Co., 13 Allen,\n95, 103. The extent of the public interest is shown by the\nstatute to be limited, since the statute ordinarily does not\napply to land when the surface is owned by the owner of\nthe coal. Furthermore, it is not justified as a protection of\npersonal safety. That could be provided for by notice.\nIndeed the very foundation of this bill is that the defendant\ngave timely notice of its intent to mine under the house.\nOn the other hand the extent of the taking is great. It\npurports to abolish what is recognized in Pennsylvania as\nan estate in land \xe2\x80\x93 a very valuable estate \xe2\x80\x93 and what is\ndeclared by the Court below to be a contract hitherto\nbinding the plaintiffs. If we were called upon to deal with\nthe plaintiffs\xe2\x80\x99 position alone, we should think it clear that\nthe statute does not disclose a public interest sufficient to\nwarrant so extensive a destruction of the defendant\xe2\x80\x99s\nconstitutionally protected rights.\nBut the case has been treated as one in which the general\nvalidity of the act should be discussed. The Attorney\nGeneral of the State, the City of Scranton, and the\nrepresentatives of other extensive interests were allowed to\ntake part in the argument below and have submitted their\ncontentions here. It seems, therefore, to be our duty to go\nfarther in the statement of our opinion, in order that it may\n\n463\n\n\x0cbe known at once, and that further suits should not be\nbrought in vain.\nIt is our opinion that the act cannot be sustained as an\nexercise of the police power, so far as it affects the mining\nof coal under streets or cities in places where the right to\nmine such coal has been reserved. As said in a Pennsylvania\ncase, \xe2\x80\x9cFor practical purposes, the right to coal consists in\nthe right to mine it.\xe2\x80\x9d Commonwealth v. Clearview Coal Co., 256\nPa. St. 328, 331. What makes the right to mine coal\nvaluable is that it can be exercised with profit. To make it\ncommercially impracticable to mine certain coal has very\nnearly the same effect for constitutional purposes as\nappropriating or destroying it. This we think that we are\nwarranted in assuming that the statute does.\nIt is true that in Plymouth Coal Co. v. Pennsylvania, 232 U.S.\n531, it was held competent for the legislature to require a\npillar of coal to be left along the line of adjoining property,\nthat, with the pillar on the other side of the line, would be a\nbarrier sufficient for the safety of the employees of either\nmine in case the other should be abandoned and allowed to\nfill with water. But that was a requirement for the safety of\nemployees invited into the mine, and secured an average\nreciprocity of advantage that has been recognized as a\njustification of various laws.\nThe rights of the public in a street purchased or laid out by\neminent domain are those that it has paid for. If in any case\nits representatives have been so short sighted as to acquire\nonly surface rights without the right of support, we see no\nmore authority for supplying the latter without\ncompensation than there was for taking the right of way in\nthe first place and refusing to pay for it because the public\nwanted it very much. The protection of private property in\nthe Fifth Amendment presupposes that it is wanted for\npublic use, but provides that it shall not be taken for such\nuse without compensation. A similar assumption is made in\nthe decisions upon the Fourteenth Amendment. Hairston v.\n\n464\n\n\x0cDanville & Western Ry. Co., 208 U.S. 598, 605. When this\nseemingly absolute protection is found to be qualified by\nthe police power, the natural tendency of human nature is\nto extend the qualification more and more until at last\nprivate property disappears. But that cannot be\naccomplished in this way under the Constitution of the\nUnited States.\nThe general rule at least is, that while property may be\nregulated to a certain extent, if regulation goes too far it will\nbe recognized as a taking. It may be doubted how far\nexceptional cases, like the blowing up of a house to stop a\nconflagration, go \xe2\x80\x93 and if they go beyond the general rule,\nwhether they do not stand as much upon tradition as upon\nprinciple. Bowditch v. Boston, 101 U.S. 16. In general it is not\nplain that a man\xe2\x80\x99s misfortunes or necessities will justify his\nshifting the damages to his neighbor\xe2\x80\x99s shoulders. Spade v.\nLynn & Boston R.R. Co., 172 Mass. 488, 489. We are in\ndanger of forgetting that a strong public desire to improve\nthe public condition is not enough to warrant achieving the\ndesire by a shorter cut than the constitutional way of paying\nfor the change. As we already have said, this is a question\nof degree \xe2\x80\x93 and therefore cannot be disposed of by general\npropositions. But we regard this as going beyond any of the\ncases decided by this Court. The late decisions upon laws\ndealing with the congestion of Washington and New York,\ncaused by the war, dealt with laws intended to meet a\ntemporary emergency and providing for compensation\ndetermined to be reasonable by an impartial board. They\nwent to the verge of the law but fell far short of the present\nact. Block v. Hirsh, 256 U.S. 135. Marcus Brown Holding Co. v.\nFeldman, 256 U.S. 170. Levy Leasing Co. v. Siegel, 258 U.S.\n242.\nWe assume, of course, that the statute was passed upon the\nconviction that an exigency existed that would warrant it,\nand we assume that an exigency exists that would warrant\nthe exercise of eminent domain. But the question at bottom\n\n465\n\n\x0cis upon whom the loss of the changes desired should fall.\nSo far as private persons or communities have seen fit to\ntake the risk of acquiring only surface rights, we cannot see\nthat the fact that their risk has become a danger warrants\nthe giving to them greater rights than they bought.\nDecree reversed.\nMR. JUSTICE BRANDEIS, dissenting. (multiple citations\nomitted)\nThe Kohler Act prohibits, under certain conditions, the\nmining of anthracite coal within the limits of a city in such\na manner or to such an extent \xe2\x80\x9cas to cause the \xe2\x80\xa6\nsubsidence of any dwelling or other structure used as a\nhuman habitation, or any factory, store, or other industrial\nor mercantile establishment in which human labor is\nemployed.\xe2\x80\x9d Coal in place is land; and the right of the owner\nto use his land is not absolute. He may not so use it as to\ncreate a public nuisance; and uses, once harmless, may,\nowing to changed conditions, seriously threaten the public\nwelfare. Whenever they do, the legislature has power to\nprohibit such uses without paying compensation; and the\npower to prohibit extends alike to the manner, the\ncharacter and the purpose of the use. Are we justified in\ndeclaring that the Legislature of Pennsylvania has, in\nrestricting the right to mine anthracite, exercised this power\nso arbitrarily as to violate the Fourteenth Amendment?\nEvery restriction upon the use of property imposed in the\nexercise of the police power deprives the owner of some\nright theretofore enjoyed, and is, in that sense, an\nabridgment by the State of rights in property without\nmaking compensation. But restriction imposed to protect\nthe public health, safety or morals from dangers threatened\nis not a taking. The restriction here in question is merely\nthe prohibition of a noxious use. The property so restricted\nremains in the possession of its owner. The State does not\nappropriate it or make any use of it. The State merely\n\n466\n\n\x0cprevents the owner from making a use which interferes\nwith paramount rights of the public. Whenever the use\nprohibited ceases to be noxious \xe2\x80\x93 as it may because of\nfurther change in local or social conditions, \xe2\x80\x93 the restriction\nwill have to be removed and the owner will again be free to\nenjoy his property as heretofore.\nThe restriction upon the use of this property can not, of\ncourse, be lawfully imposed, unless its purpose is to protect\nthe public. But the purpose of a restriction does not cease\nto be public, because incidentally some private persons may\nthereby receive gratuitously valuable special benefits\xe2\x80\xa6 . . If\nby mining anthracite coal the owner would necessarily\nunloose poisonous gasses, I suppose no one would doubt\nthe power of the State to prevent the mining, without\nbuying his coal fields. And why may not the State, likewise,\nwithout paying compensation, prohibit one from digging so\ndeep or excavating so near the surface, as to expose the\ncommunity to like dangers? In the latter case, as in the\nformer, carrying on the business would be a public\nnuisance.\nIt is said that one fact for consideration in determining\nwhether the limits of the police power have been exceeded\nis the extent of the resulting diminution in value; and that\nhere the restriction destroys existing rights of property and\ncontract. But values are relative. If we are to consider the\nvalue of the coal kept in place by the restriction, we should\ncompare it with the value of all other parts of the land.\nThat is, with the value not of the coal alone, but with the\nvalue of the whole property. The rights of an owner as\nagainst the public are not increased by dividing the interests\nin his property into surface and subsoil. The sum of the\nrights in the parts can not be greater than the rights in the\nwhole. The estate of an owner in land is grandiloquently\ndescribed as extending ab orco usque ad coelum. But I suppose\nno one would contend that by selling his interest above one\nhundred feet from the surface he could prevent the State\n\n467\n\n\x0cfrom limiting, by the police power, the height of structures\nin a city. And why should a sale of underground rights bar\nthe State\xe2\x80\x99s power? For aught that appears the value of the\ncoal kept in place by the restriction may be negligible as\ncompared with the value of the whole property, or even as\ncompared with that part of it which is represented by the\ncoal remaining in place and which may be extracted despite\nthe statute. Ordinarily a police regulation, general in\noperation, will not be held void as to a particular property,\nalthough proof is offered that owing to conditions peculiar\nto it the restriction could not reasonably be applied\xe2\x80\xa6 . .\nWhere the surface and the coal belong to the same person,\nself-interest would ordinarily prevent mining to such an\nextent as to cause a subsidence. It was, doubtless, for this\nreason that the legislature, estimating the degrees of danger,\ndeemed statutory restriction unnecessary for the public\nsafety under such conditions.\n\xe2\x80\xa6.\nThe [majority\xe2\x80\x99s] conclusion seems to rest upon the\nassumption that in order to justify such exercise of the\npolice power there must be \xe2\x80\x9can average reciprocity of\nadvantage\xe2\x80\x9d as between the owner of the property restricted\nand the rest of the community; and that here such\nreciprocity is absent. Reciprocity of advantage is an\nimportant consideration, and may even be an essential,\nwhere the State\xe2\x80\x99s power is exercised for the purpose of\nconferring benefits upon the property of a neighborhood,\nas in drainage projects, or upon adjoining owners, as by\nparty wall provisions. But where the police power is\nexercised, not to confer benefits upon property owners, but\nto protect the public from detriment and danger, there is, in\nmy opinion, no room for considering reciprocity of\nadvantage. There was no reciprocal advantage to the owner\nprohibited from using his oil tanks in 248 U.S. 498; his\nbrickyard, in 239 U.S. 394; his livery stable, in 237 U.S. 171;\nhis billiard hall, in 225 U.S. 623; his oleomargarine factory,\n\n468\n\n\x0cin 127 U.S. 678; his brewery, in 123 U.S. 623; unless it be\nthe advantage of living and doing business in a civilized\ncommunity. That reciprocal advantage is given by the act to\nthe coal operators.\nMiller v. Schoene\n276 U.S. 272 (1928)\nMessrs. Randolph Harrison, of Lynchburg, Va., and D. O.\nDechert, of Harrisonburg, Va., for plaintiffs in error.\nMr. F. S. Tavenner, of Woodstock, Va., for defendant in\nerror.\nMR. JUSTICE STONE delivered the opinion of the Court.\nActing under the Cedar Rust Act of Virginia, Acts Va.\n1914, c. 36, as amended by Acts Va. 1920, c. 260, now\nembodied in Va. Code (1924) as sections 885 to 893,\ndefendant in error, the state entomologist, ordered the\nplaintiffs in error to cut down a large number of\nornamental red cedar trees growing on their property, as a\nmeans of preventing the communication of a rust or plant\ndisease with which they were infected to the apple orchards\nin the vicinity. The plaintiffs in error appealed from the\norder to the circuit court of Shenandoah county which,\nafter a hearing and a consideration of evidence, affirmed\nthe order and allowed to plaintiffs in error $100 to cover\nthe expense of removal of the cedars. Neither the judgment\nof the court nor the statute as interpreted allows\ncompensation for the value of the standing cedars or the\ndecrease in the market value of the realty caused by their\ndestruction whether considered as ornamental trees or\notherwise. But they save to plaintiffs in error the privilege\nof using the trees when felled. On appeal the Supreme\nCourt of Appeals of Virginia affirmed the judgment. Miller\nv. State Entomologist, 146 Va. 175, 135 S. E. 813. Both in\nthe circuit court and the Supreme Court of Appeals\nplaintiffs in error challenged the constitutionality of the\nstatute under the due process clause of the Fourteenth\n\n469\n\n\x0cAmendment and the case is properly here on writ of error.\nJudicial Code, \xc2\xa7 237a (28 USCA \xc2\xa7 344).\nThe Virginia statute presents a comprehensive scheme for\nthe condemnation and destruction of red cedar trees\ninfected by cedar rust. By section 1 it is declared to be\nunlawful for any person to \xe2\x80\x98own, plant or keep alive and\nstanding\xe2\x80\x99 on his premises any red cedar tree which is or\nmay be the source or \xe2\x80\x98host plant\xe2\x80\x99 of the communicable\nplant disease known as cedar rust, and any such tree\ngrowing within a certain radius of any apple orchard is\ndeclared to be a public nuisance, subject to destruction.\nSection 2 makes it the duty of the state entomologist, \xe2\x80\x98upon\nthe request in writing of ten or more reputable freeholders\nof any county or magisterial district, to make a preliminary\ninvestigation of the locality * * * to ascertain if any cedar\ntree or trees * * * are the source of, harbor or constitute the\nhost plant for the said disease * * * and constitute a menace\nto the health of any apple orchard in said locality, and that\nsaid cedar tree or trees exist within a radius of two miles of\nany apple orchard in said locality.\xe2\x80\x99 If affirmative findings\nare so made, he is required to direct the owner in writing to\ndestroy the trees and, in his notice, to furnish a statement\nof the \xe2\x80\x98fact found to exist whereby it is deemed necessary\nor proper to destroy\xe2\x80\x99 the trees and to call attention to the\nlaw under which it is proposed to destroy them. Section 5\nauthorizes the state entomologist to destroy the trees if the\nowner, after being notified, fails to do so. Section 7\nfurnishes a mode of appealing from the order of the\nentomologist to the circuit court of the county, which is\nauthorized to \xe2\x80\x98hear the objections\xe2\x80\x99 and \xe2\x80\x98pass upon all\nquestions involved,\xe2\x80\x99 the procedure followed in the present\ncase.\nAs shown by the evidence and as recognized in other cases\ninvolving the validity of this statute, Bowman v. Virginia\nState Entomologist, 128 Va. 351, 105 S. E. 141, 12 A. L. R.\n1121; Kelleher v. Schoene (D. C.) 14 F. (2d) 341, cedar rust\n\n470\n\n\x0cis an infectious plant disease in the form of a fungoid\norganism which is destructive of the fruit and foliage of the\napple, but without effect on the value of the cedar. Its life\ncycle has two phases which are passed alternately as a\ngrowth on red cedar and on apple trees. It is communicated\nby spores from one to the other over a radius of at least\ntwo miles. It appears not to be communicable between\ntrees of the same species, but only from one species to the\nother, and other plants seem not to be appreciably affected\nby it. The only practicable method of controlling the\ndisease and protecting apple trees from its ravages is the\ndestruction of all red cedar trees, subject to the infection,\nlocated within two miles of apple orchards.\nThe red cedar, aside from its ornamental use, has\noccasional use and value as lumber. It is indigenous to\nVirginia, is not cultivated or dealt in commercially on any\nsubstantial scale, and its value throughout the state is\nshown to be small as compared with that of the apple\norchards of the state. Apple growing is one of the principal\nagricultural pursuits in Virginia. The apple is used there and\nexported in large quantities. Many millions of dollars are\ninvested in the orchards, which furnish employment for a\nlarge portion of the population, and have induced the\ndevelopment of attendant railroad and cold storage\nfacilities.\nOn the evidence we may accept the conclusion of the\nSupreme Court of Appeals that the state was under the\nnecessity of making a choice between the preservation of\none class of property and that of the other wherever both\nexisted in dangerous proximity. It would have been none\nthe less a choice if, instead of enacting the present statute,\nthe state, by doing nothing, had permitted serious injury to\nthe apple orchards within its borders to go on unchecked.\nWhen forced to such a choice the state does not exceed its\nconstitutional powers by deciding upon the destruction of\none class of property in order to save another which, in the\n\n471\n\n\x0cjudgment of the legislature, is of greater value to the public.\nIt will not do to say that the case is merely one of a conflict\nof two private interests and that the misfortune of apple\ngrowers may not be shifted to cedar owners by ordering the\ndestruction of their property; for it is obvious that there\nmay be, and that here there is, a preponderant public\nconcern in the preservation of the one interest over the\nother. Compare Bacon v. Walker, 204 U. S. 311, 27 S. Ct.\n289, 51 L. Ed. 499; Missouri, Kansas & Texas R. Co. v.\nMay, 194 U. S. 267, 24 S. Ct. 638, 48 L. Ed. 971; Chicago,\nTerre Haute & Southeastern R. Co. v. Anderson, 242 U. S.\n283, 37 S. Ct. 124, 61 L. Ed. 302; Perley v. North Carolina,\n249 U. S. 510, 39 S. Ct. 357, 63 L. Ed. 735. And where the\npublic interest is involved preferment of that interest over\nthe property interest of the individual, to the extent even of\nits destruction, is one of the distinguishing characteristics of\nevery exercise of the police power which affects property.\nMugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed.\n205; Hadacheck v. Los Angeles, 239 U. S. 394, 36 S. Ct.\n143, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Village of Euclid\nv. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L.\nEd. 303; Northwestern Fertilizer Co. v. Hyde Park, 97 U. S.\n659, 24 L. Ed. 1036; Northwestern Laundry v. Des Moines,\n239 U. S. 486, 36 S. Ct. 206, 60 L. Ed. 396; Lawton v.\nSteele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385; Sligh v.\nKirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835,\nReinman v. Little Rock, 237 U. S. 171, 35 S. Ct. 511, 59 L.\nEd. 900.\nWe need not weigh with nicety the question whether the\ninfected cedars constitute a nuisance according to the\ncommon law; or whether they may be so declared by\nstatute. See Hadacheck v. Los Angeles, supra, 411 (36 S. Ct.\n143). For where, as here, the choice is unavoidable, we\ncannot say that its exercise, controlled by considerations of\nsocial policy which are not unreasonable, involves any\ndenial of due process. The injury to property here is no\n\n472\n\n\x0cmore serious, nor the public interest less, than in\nHadacheck v. Los Angeles, supra, Northwestern Laundry v.\nDes Moines, supra, Reinman v. Little Rock, supra, or Sligh\nv. Kirkwood, supra.\nThe statute is not, as plaintiffs in error argue, subject to the\nvice which invalidated the ordinance considered by this\ncourt in Eubank v. Richmond, 226 U. S. 137, 33 S. Ct. 76,\n57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B,\n192. That ordinance directed the committee on streets of\nthe city of Richmond to establish a building line, not less\nthan five nor more than thirty feet from the street line\nwhenever requested to do so by the owners of two-thirds\nof the property abutting on the street in question. No\nproperty owner might build beyond the line so established.\nOf this the court said (page 143 (33 S. Ct. 77)):\nIt (the ordinance) leaves no discretion\nin the committee on streets as to\nwhether the street (building, semble)\nline shall or shall not be established in\na given case. The action of the\ncommittee is determined by two-thirds\nof the property owners. In other\nwords, part of the property owners\nfronting on the block determine the\nextent of use that other owners shall\nmake of their lots, and against the\nrestriction they are impotent.\nThe function of the property owners there is in no way\ncomparable to that of the \xe2\x80\x98ten or more reputable\nfreeholders\xe2\x80\x99 in the Cedar Rust Act. They do not determine\nthe action of the state entomologist. They merely request\nhim to conduct an investigation. In him is vested the\ndiscretion to decide, after investigation, whether or not\nconditions are such that the other provisions of the statute\nshall be brought into action; and his determination is\nsubject to judicial review. The property of plaintiffs in error\n\n473\n\n\x0cis not subjected to the possibly arbitrary and irresponsible\naction of a group of private citizens.\nThe objection of plaintiffs in error to the vagueness of the\nstatute is without weight. The state court has held it to be\napplicable and that is enough when, by the statute, no\npenalty can be incurred or disadvantage suffered in advance\nof the judicial ascertainment of its applicability. Compare\nConnally v. General Construction Co., 269 U. S. 385, 46 S.\nCt. 126, 70 L. Ed. 322.\nAffirmed.\n4.2. Theory\nEconomic Analysis of \xe2\x80\x9cTakings\xe2\x80\x9d of Private Property, available at\nhttp://cyber.law.harvard.edu/bridge/LawEconomics/takings.htm.\nA crucial constitutional question since the founding of the United\nStates has been the extent to which the state and federal legislatures\nare permitted to impair private property rights. From the\nbeginning, American courts have recognized that governments\nmust be accorded some latitude in setting and modifying the\nentitlements associated with the ownership of land and other\ncommodities. The courts have refused, however, to acquiesce in all\nlegislative interferences with private property rights.\nThe constitutional provisions used to shield property from\ngovernmental encroachment have changed over the course of\nAmerican history. Until the end of the nineteenth century, most\nregulations of private property emanated from the state\ngovernments, not the federal government. That fact \xe2\x80\x93 combined\nwith the Supreme Court\xe2\x80\x99s ruling that the Bill of Rights was\ninapplicable to the states \xe2\x80\x93 minimized the significance of the Fifth\nAmendment\xe2\x80\x99s ban on uncompensated \xe2\x80\x9ctakings\xe2\x80\x9d of private\nproperty. In the limited number of cases in which the Supreme\nCourt undertook to review challenges to allegedly confiscatory\nlegislation, it based its rulings either on broad principles of natural\nlaw or on the contracts clause of Article I, Section 10. In 1897, the\nSupreme Court held for the first time that the due-process clause\n\n474\n\n\x0cof the Fourteenth Amendment \xe2\x80\x9cincorporated\xe2\x80\x9d against the states\nthe takings clause of the Fifth Amendment. Since that date the\nstream of cases invoking the federal Constitution to challenge\nlegislative or judicial impairments of property rights has steadily\nincreased.\nBefore World War II, legal scholars paid relatively little attention to\nthe so-called \xe2\x80\x9ctakings\xe2\x80\x9d doctrine. Since the 1950s, however, the\nbody of academic writing dealing with the issue has mushroomed.\nThe ambition of the large majority of the authors who have\ncontributed to the discussion has been to define a principled line\nthat would enable the courts to differentiate permissible\n\xe2\x80\x9cregulation\xe2\x80\x9d of private property from impermissible (if\nuncompensated) expropriation thereof. Prominent among those\nwho have attempted this feat have been economists.\nEconomic analysis of the takings doctrine can be traced to a 1967\nHarvard Law Review article in which Frank Michelman argued\n(among other things) that a judge called on to determine whether\nthe Fifth Amendment had been violated in a particular case might\nplausibly select as her criterion of judgment the maximization of\nnet social welfare. If that were her ambition, Michelman\ncontended, the judge should begin by estimating and comparing\nthe following economic impacts:\n1. the net efficiency gains secured by the\ngovernment action in question (in other\nwords, \xe2\x80\x9cthe excess of benefits produced\nby the measure over losses inflicted by\nit\xe2\x80\x9d);\n2. the \xe2\x80\x9csettlement costs\xe2\x80\x9d \xe2\x80\x93 i.e., the costs of\nmeasuring the injuries sustained by\nadversely affected parties and of\nproviding\nthem\nmonetary\ncompensation; and\n3. the \xe2\x80\x9cdemoralization costs\xe2\x80\x9d incurred by\nnot indemnifying them. Michelman\xe2\x80\x99s\ndefinition of the third of these terms\nwas original and critical; to ascertain the\n\n475\n\n\x0c\xe2\x80\x9cdemoralization costs\xe2\x80\x9d entailed by not\npaying compensation, the judge should\nmeasure \xe2\x80\x9cthe total of \xe2\x80\xa6 the dollar value\nnecessary to offset disutilities which\naccrue to losers and their sympathizers\nspecifically from the realization that no\ncompensation is offered, and \xe2\x80\xa6 the\npresent capitalized dollar value of lost\nfuture production (reflecting either\nimpaired incentives or social unrest)\ncaused\nby\ndemoralization\nof\nuncompensated\nlosers,\ntheir\nsympathizers, and other observers\ndisturbed by the thought that they\nthemselves may be subjected to similar\ntreatment on some other occasion.\xe2\x80\x9d\nOnce the judge has calculated these\nimpacts, Michelman contended, her job is\nstraightforward.\n\xef\x82\xb7 If (1) is the smallest figure, she should\ncontrive some way to enjoin the action\n\xe2\x80\x93 for example, by declaring it to be\nviolative\nof\nthe\nconstitutional\nrequirement that private property be\ntaken only for a \xe2\x80\x9cpublic use.\xe2\x80\x9d\n\xef\x82\xb7 If (2) is the smallest figure, she should\nnot enjoin the action but should require\nthat the parties hurt by it be\ncompensated.\n\xef\x82\xb7 If (3) is the smallest figure, she should\nallow the government to proceed\nwithout indemnifying the victims.\nApplying this composite test, Michelman\nsuggested that some of the guidelines\nemployed by the Supreme Court when\ndeciding takings cases, though seemingly\nsimplistic or senseless, turn out to have\nplausible utilitarian justifications. For\n\n476\n\n\x0cexample, the rule that \xe2\x80\x9cphysical invasion\xe2\x80\x9d\nby government of private property is always\ndeemed a taking, though apparently a\nclumsy device for separating mild from\nsevere encroachments on private rights,\nturns out to have important redeeming\nfeatures: it identifies a set of cases in which\nsettlement costs (the costs of both\nascertaining liability and measuring the\nresultant damages) are likely to be modest\nand in which, because of the \xe2\x80\x9cpsychological\nshock, the emotional protest, the symbolic\nthreat to all property and security\xe2\x80\x9d\ncommonly associated with bald invasions,\n\xe2\x80\x9cdemoralization costs\xe2\x80\x9d are likely to be high\n\xe2\x80\x93 precisely the circumstance in which\ncompensation is most appropriate.\nSimilarly, the courts\xe2\x80\x99 sensitivity in takings\ncases to the ratio between the economic\ninjury sustained by the plaintiff and the\noverall value of the affected parcel (rather\nthan to the absolute amount of the\neconomic injury) makes some sense on the\nfollowing plausible assumptions: \xe2\x80\x9c(1) that\none thinks of himself not just as owning a\ntotal amount of wealth or income, but also\nas owning several discrete things whose\ndestinies he controls; (2) that deprivation of\none of these mentally circumscribed things\nis an event attended by pain of a specially\nacute or demoralizing kind, as compared\nwith what one experiences in response to\nthe different kind of event consisting of a\ngeneral decline in one\xe2\x80\x99s net worth; and (3)\nthat events of the specially painful kind can\nusually be identified by compensation\ntribunals with relative ease.\xe2\x80\x9d\nMichelman\xe2\x80\x99s analysis proved highly influential among\nconstitutional scholars, but did not go uncontested. In the 1980s,\nseveral younger scholars argued that Michelman had made a crucial\n\n477\n\n\x0cmistake. When measuring \xe2\x80\x9cdemoralization costs,\xe2\x80\x9d they argued, a\njudge should not include the diminution in investment and\n\xe2\x80\x9cproductive activity\xe2\x80\x9d caused by not making the victims whole.\nIndeed, widespread adoption of Michelman\xe2\x80\x99s strategy would send\nprecisely the wrong signal to property owners; assured that they\nwould be indemnified if and when the public needed their land,\nthey would overinvest in capital improvements \xe2\x80\x93 and, in particular,\nin capital improvements likely soon to be rendered obsolete by\ngovernmental action or regulation. Inducement of efficient kinds\nand levels of activity, the revisionist economists claimed, requires\nthat economic actors \xe2\x80\x9cbear all real costs and benefits of their\ndecisions\xe2\x80\x9d including the risk of future changes in pertinent legal\nrules.\nFrom this point (now widely considered convincing), economic\nanalysis of the takings doctrine has radiated in a variety of\ndirections. Here are a few:\nInsurance Schemes. The guideline just mentioned (that efficiency will\nbe enhanced by forcing landowners to bear the risk of future\nchanges in pertinent legal rules) has at least one serious drawback:\nIt may result in a few landowners suffering very large,\nuncompensated losses \xe2\x80\x93 a situation economists generally regard as\nundesirable. From an efficiency standpoint, the best solution to this\nproblem would be the development and widespread use of a\nprivate insurance system. Landowners would buy \xe2\x80\x9ctakings\xe2\x80\x9d\ninsurance, just as they now routinely buy fire insurance. Such a\nsystem would not erode the benefits of making landowners bear\nthe costs of regulation, because the rate that an insurer charged for\ninsuring a particular parcel would almost certainly reflect the\nlikelihood that that particular parcel would later be subject to\ngovernmental action. For example, developers who bought land in\nflood plains or on eroding beaches would pay very large premiums,\nwhile landowners in lower-risk areas would pay much lower\npremiums. The resultant incentive to avoid developing parcels\nlikely soon to be regulated is precisely what we would wish to\ncreate.\n\n478\n\n\x0cUnfortunately, a private market in \xe2\x80\x9ctakings\xe2\x80\x9d insurance has not yet\ndeveloped. Various reasons have been suggested for this failure,\nbut the fact remains that landowners cannot currently shield\nthemselves against uncompensated takings. Even if private\ninsurance were available, some landowners undoubtedly would not\npurchase it \xe2\x80\x93 because they systematically underestimated the danger\nof regulation or because they were simply poor planners. Under\nthese nonideal conditions, some economists have conceded that\ngovernmental compensation for severe land-use regulations may be\neconomically defensible as, in effect, a form of compulsory statesupplied insurance.\nReconstructing Demoralization Costs. Perhaps the revisionist critique of\n\xe2\x80\x9cdemoralization costs\xe2\x80\x9d has gone too far. After all, many people\nbecome unhappy when they experience or witness uncompensated\nsevere regulations of private property, and those psychic injuries\n(measured, as always, by people\xe2\x80\x99s willingness and ability to pay\nmoney to avoid them) must be considered when one tries to design\na takings doctrine that maximizes net social welfare. Moreover,\nthose costs go further than the (potentially substantial) disutilities\ncaused by the frustration of people\xe2\x80\x99s \xe2\x80\x9cpolitical preferences\xe2\x80\x9d \xe2\x80\x93 the\npain they experience when they witness behavior they consider\nunjust. They include secondary effects that might be called \xe2\x80\x9csearch\ncosts\xe2\x80\x9d:\nA\njudicial\ndecision\ndenying\ncompensation in defiance of a popular\nperception that it should be\nforthcoming\nrisks\nundermining\npeople\xe2\x80\x99s faith that, by the large, the law\ncomports with their sense of justice.\nErosion of that faith, in turn, would\nreduce people\xe2\x80\x99s willingness to make\ndecisions \xe2\x80\x93 the rationality of which\ndepends upon the content of the\npertinent legal rules \xe2\x80\x93 without taking\nthe time to \xe2\x80\x9clook up\xe2\x80\x9d the rules\xe2\x80\xa6 .\nGenerally speaking, our willingness to\nact in this fashion is efficient; as long\n\n479\n\n\x0cas the rules are in fact consistent with\nour senses of justice, it is desirable,\nfrom an economic standpoint, that we\ntrust our intuitions. Any material\ndiminution in that willingness would\ngive rise to deadweight losses that\nmerit the attention of a conscientious\neconomist.\nDetermining the magnitude of demoralization costs of these\nvarious sorts is, however, very difficult. Frequently, one can argue\nplausibly that the psychic injuries caused by a particular sort of\nregulation will be huge \xe2\x80\x93 or will be insignificant. Consider, for\nexample, the situation in which land-use regulations are suddenly\ntightened, not by the legislature, but by a change in common-law\nrules. Will the demoralization costs caused by such putative\n\xe2\x80\x9cjudicial takings\xe2\x80\x9d be smaller or larger than those associated with\ncomparable \xe2\x80\x9clegislative takings\xe2\x80\x9d? Barton Thompson points to\nseveral circumstances suggesting that they will be smaller: the fact\nthat courts can more easily disguise the extent to which they are\nchanging the pertinent land-use regulations; courts\xe2\x80\x99 ability to fall\nback on their general reputation for objective and principled\ndecisionmaking; and the tendency of the doctrine of stare decisis to\nmitigate landowners\xe2\x80\x99 anxieties that judicial modification of one\nland-use regulation portends more sweeping changes in the future.\nBarton acknowledges, however, that many of these factors can be\n\xe2\x80\x9cflipped,\xe2\x80\x9d suggesting that judicial takings will result in unusually\nhigh demoralization costs:\nThe mysteries and insulation of the\njudicial process, for example, might\nactually\nincrease\ndemoralization.\nProperty holders may believe that they\nat least understand the legislative\nprocess, have some electoral control\nover politicians, and know how to\nwage a fight on political grounds. They\nmay feel far more distressed about a\nlegal process that affects them without\n\n480\n\n\x0capparently\nunderstanding\ntheir\nconcerns, speaks in a foreign and\nconfusing tongue, and is directed by\njudges over whom they feel they have\nno effective popular control. Given\nthe existence of stare decisis and\npeople\xe2\x80\x99s expectations that courts will\ngenerally\nobserve\nprecedent,\nmoreover, property holders may fear\ndisintegration of the social structure\nfar more when a court significantly\nmodifies prior property law than when\nthe legislature engages in traditional\npolitical behavior.\nBarton\xe2\x80\x99s avowedly indeterminate analysis of \xe2\x80\x9cjudicial takings\xe2\x80\x9d is\ntypical of the murk one enters when trying to predict psychic\ninjuries. In short, demoralization costs are plainly relevant to the\ndesign of an efficient takings doctrine, but their uncertainty makes\neconomists queasy about relying on them.\n\xe2\x80\x9cFiscal Illusions.\xe2\x80\x9d Several economists have argued that it is mistaken\nto concentrate exclusively upon the effect of constitutional\ndoctrine on the incentives of landowners to use and improve their\npossessions; one must also take into account the incentives of\ngovernment officials to regulate private property. Specifically, these\neconomists have argued that, unless government officials are\ncompelled somehow to bear the costs of the regulations they\nadopt, they will tend to impose on private property inefficiently\ntight land-use controls. In this respect, the position of the\ngovernment vis-\xc3\xa0-vis private landowners is similar to the position\nof a private landowner vis-\xc3\xa0-vis her neighbors. The purpose of\nnuisance law, it is often said, is to force each landowner to\ninternalize the costs of her activities and thus discourage her from\nacting in ways that impose on her neighbors inefficiently high\nlevels of annoyance (smoke, smells, pollution, excess light, etc.).\nSimilarly, some economists have argued, the purpose of a justcompensation requirement is to compel government officials to\ninternalize the costs of their regulatory activities and thus\n\n481\n\n\x0cdiscourage them from fettering landowners excessively. This claim\nhas been subjected by other economists to two sorts of critique.\nFirst, it is not altogether clear that, unless deterred by a justcompensation requirement, government officials will overregulate.\nLouis Kaplow points out that, although it is true that (in the\nabsence of such a requirement) government officials will not bear\nthe costs of their regulatory activities, they also will not reap the\nbenefits of those activities. (In this respect, they are different from\npotentially hyperactive private landowners.) There is thus no\nreason to assume that, unless leashed by a strict takings doctrine,\nofficials will run amok. A student Note in the Harvard Law Review\nreinforces this point by suggesting two reasons why government\nofficials might be prone to adopt inefficiently low levels of\nregulation: (a) ordinarily, the beneficiaries of land-use restrictions\nare more dispersed (and thus less able to make their views known\nto their elected representatives) than the landowners adversely\naffected by those regulations; and (b) government officials typically\nundervalue the interests in regulation of the members of future\ngenerations.\nSecond, even if the \xe2\x80\x9cfiscal-illusion\xe2\x80\x9d effect is serious, it is not\nobvious that the enforcement of a constitutional just-compensation\nrequirement is the only \xe2\x80\x93 or best \xe2\x80\x93 way to offset it. Other strategies\nmight work as well or better. For example, the student Note just\nmentioned contends that optimal levels of regulation might be\nachieved equally effectively by assigning to the state the authority\nto proscribe without compensation any uses of private land that\ngovernment officials believe are injurious to the public \xe2\x80\x93 but then\npermit adversely affected landowners to buy from the government\nexemptions from those regulations. The state\xe2\x80\x99s police power, in\nother words, could be treated as an alienable servitude. Unless\ntransaction costs interfered with the market in such exemptions\n(concededly a tricky issue), the adoption of such a system should\n(Coase tells us) result in the same, efficient level of regulation as a\nregime in which landowners were originally assigned the right not\nto be regulated and the state had to expropriate (through the\npayment of \xe2\x80\x9cjust compensation\xe2\x80\x9d) the authority to regulate\n\n482\n\n\x0cthem. Has this growing body of scholarship had any impact on\nthe courts? Yes and no. Some of the economists\xe2\x80\x99 more basic\narguments have indeed influenced judicial resolution of takings\ncases. For example, the causal nihilism typical of most economic\nanalyses contributed to the partial corrosion of the so-called\nnoxious-use exception to the ban on uncompensated takings. In\nthe early twentieth century the Supreme Court consistently and\nconfidently ruled that when a state forbids the continuation of a\nuse of land or other property that would be harmful to the public\nor to neighbors, it is not obliged to indemnify the owner. For\nexample, in Miller v. Schoene, the Court upheld on this basis a\nVirginia statute that required the owner of ornamental cedar trees\nto cut them down because they produced cedar rust that\nendangered apple trees in the vicinity. As legal scholars became\nincreasingly familiar with the economic analysis of doctrinal\nproblems \xe2\x80\x93 and, in particular, with Ronald Coase\xe2\x80\x99s assertion that, in\nall cases of conflicting land uses, it is senseless to characterize one\nsuch use as the \xe2\x80\x9ccause\xe2\x80\x9d of harm to the other \xe2\x80\x93 they pointed out\nthat the Court\xe2\x80\x99s handling of cases like Miller was naive. The activity\nof keeping cedar trees in the vicinity of apple orchards is no more\n(and no less) \xe2\x80\x9cnoxious\xe2\x80\x9d than the activity of keeping apple orchards\nin the vicinity of cedar trees. In the face of this chorus of criticism,\nthe Court retreated. Its renunciation of the \xe2\x80\x9cnoxious use\xe2\x80\x9d test was\nmost complete and overt in Justice Brennan\xe2\x80\x99s majority opinion in\nthe case with which we have been concerned:\nWe observe that the land uses in issue\nin Hadacheck, Miller, and Goldblatt were\nperfectly lawful in themselves. They\ninvolved no \xe2\x80\x9cblameworthiness, \xe2\x80\xa6\nmoral wrongdoing or conscious act of\ndangerous risk-taking which induced\nsociety to shift the cost to a particular\nindividual.\xe2\x80\x9d These cases are better\nunderstood as resting not on any\nsupposed \xe2\x80\x9cnoxious\xe2\x80\x9d quality of the\nprohibited uses but rather on the\nground that the restrictions were\n\n483\n\n\x0creasonably\nrelated\nto\nthe\nimplementation of a policy \xe2\x80\x93 not\nunlike historic preservation \xe2\x80\x93 expected\nto produce a widespread public benefit\nand applicable to all similarly situated\nproperty.\nFor better or worse, however, the Court since Penn Central has\ndrifted back toward its original view. The justices\xe2\x80\x99 invocations of\nthe distinction between \xe2\x80\x9cnoxious\xe2\x80\x9d and \xe2\x80\x9cinnocent\xe2\x80\x9d uses have been\nmore tentative and awkward than in the period before 1960, but\nnevertheless have been increasing.\nThe Court\xe2\x80\x99s opinion in Loretto v. Teleprompter Manhattan CATV\nCorp. furnishes a more straightforward illustration of the power of\nthe economic argument. At issue in the case was a New York\nstatute empowering a cable television company to install fixtures\non the sides and roofs of privately owned buildings. In holding that\nsuch a \xe2\x80\x9cpermanent physical occupation\xe2\x80\x9d of private property, no\nmatter how trivial, always constitutes a taking, Justice Marshall\nrelied twice on Michelman\xe2\x80\x99s 1967 article \xe2\x80\x93 first, for Michelman\xe2\x80\x99s\nanalysis of the historical development of the physical-occupation\nrule; and second for his defense of the rule as effective way of\nidentifying situations involving both low settlement costs and high\ndemoralization costs.\nThe newer and more refined variations on the economic theme,\nhowever, have had little if any impact on judicial decisions in this\nfield. In particular the danger \xe2\x80\x93 widely recognized by scholars \xe2\x80\x93\nthat liberal grants of compensation to property owners adversely\naffected by government action will give rise to a \xe2\x80\x9cmoral hazard\xe2\x80\x9d\nproblem, leading to inefficiently high levels of investment in\nimprovements likely to be rendered valueless by subsequent\nregulation seems to have fallen on deaf judicial ears.\nEqually troublesome is the tendency of judges (or their law clerks)\nto misuse economic arguments \xe2\x80\x93 or at least to deploy them in ways\ntheir originators would have found surprising and distressing.\nPerhaps the clearest illustration of such misuse concerns the fate of\n\n484\n\n\x0cthe phrase: \xe2\x80\x9cdiscrete, investment-backed expectations.\xe2\x80\x9d Toward the\nclose of his 1967 article Michelman provided a brief, avowedly\nutilitarian defense of the venerable and much-maligned\n\xe2\x80\x9cdiminution in value\xe2\x80\x9d test for determining whether a statute had\neffected a taking. The true justification of the test, he argued, is\nthat, like the physical-invasion test, it mandates compensation in\nsituations in which property owners will experience severe\npsychological injury. Recognition of this justification, Michelman\nwent on to argue, requires that we reconceive the test slightly:\nMore\nsympathetically\nperceived,\nhowever, the test poses not [a] \xe2\x80\xa6\nloose question of degree; it does not\nask \xe2\x80\x9chow much,\xe2\x80\x9d but rather \xe2\x80\xa6 it asks\n\xe2\x80\x9cwhether or not\xe2\x80\x9d: whether or not the\nmeasure in question can easily be seen\nto have practically deprived the\nclaimant of some distinctly perceived,\nsharply crystallized, investment-backed\nexpectation.\nIn his Penn Central opinion, Justice Brennan several times invoked\nthe language with which Michelman closed his discussion \xe2\x80\x93\nwithout recapitulating, however, the argument on which it was\nbased. Cut loose from its moorings, Michelman\xe2\x80\x99s proposed test has\nsince been put to some surprising uses. For example, in KaiserAetna v. United States, the owner of a resort and marina in Hawaii\nargued that, by granting it permission to convert a shallow,\nlandlocked lagoon into a bay accessible to pleasure boats, the Army\nCorps of Engineers had forfeited the right subsequently to declare\nthe bay a navigable waterway open to the public \xe2\x80\x93 unless, of\ncourse, it compensated the marina owner. Emphasizing the large\namount of money the petitioner had invested in the project, Justice\nRehnquist and a majority of the Court agreed. A well-established\nfactor in assessing takings challenges, Rehnquist held, is the extent\nto which the challenged government action \xe2\x80\x9cinterfere[s] with\nreasonable investment backed expectations.\xe2\x80\x9d In the case at bar, the\ninterference plainly had been substantial. Whatever one thinks of\n\n485\n\n\x0cthe merits of the ruling, it is considerably removed from\nMichelman\xe2\x80\x99s original point, namely, that total or nearly total\ndevaluation of a distinct property interest (something that plainly\ndid not occur in Kaiser-Aetna) should be deemed a taking because of\nits likely psychic impact on the owner of the property.\nPennell v. City of San Jose\n485 U.S. 1, 42 Cal.3d 365, 228 Cal.Rptr. 726, 721 P.2d 1111\n(1986), affirmed.\nREHNQUIST, C.J., delivered the opinion of the Court, in\nwhich BRENNAN, WHITE, MARSHALL, BLACKMUN,\nand STEVENS, JJ., joined. SCALIA, J., filed an opinion\nconcurring in part and dissenting in part, in which\nO\xe2\x80\x99CONNOR, J., joined, post, p. \xe2\x80\x94-. KENNEDY, J., took\nno part in the consideration or decision of the case.\nHarry D. Miller, Oakland, Cal., for appellants.\nJoan R. Gallo, San Jose, Cal., for appellees.\nCHIEF JUSTICE REHNQUIST delivered the opinion of the\nCourt.\nThis case involves a challenge to a rent control ordinance\nenacted by the city of San Jose, California, that allows a\nhearing officer to consider, among other factors, the\n\xe2\x80\x9chardship to a tenant\xe2\x80\x9d when determining whether to\napprove a rent increase proposed by a landlord. Appellants\nRichard Pennell and the Tri-County Apartment House\nOwners Association sued in the Superior Court of Santa\nClara County seeking a declaration that the ordinance, in\nparticular the \xe2\x80\x9ctenant hardship\xe2\x80\x9d provisions, are \xe2\x80\x9cfacially\nunconstitutional and therefore \xe2\x80\xa6 illegal and void.\xe2\x80\x9d The\nSuperior Court entered judgment on the pleadings in favor\nof appellants, sustaining their claim that the tenant hardship\nprovisions violated the Takings Clause of the Fifth\nAmendment, as made applicable to the States by the\nFourteenth Amendment. The California Court of Appeal\naffirmed this judgment, but the Supreme Court of\n\n486\n\n\x0cCalifornia reversed, each by a divided vote. The majority of\nthe Supreme Court rejected appellants\xe2\x80\x99 arguments under\nthe Takings Clause and the Equal Protection and Due\nProcess Clauses of the Fourteenth Amendment; the\ndissenters in that court thought that the tenant hardship\nprovisions were a \xe2\x80\x9cforced subsidy imposed on the\nlandlord\xe2\x80\x9d in violation of the Takings Clause. On appellants\xe2\x80\x99\nappeal to this Court we postponed consideration of the\nquestion of jurisdiction, and now having heard oral\nargument we affirm the judgment of the Supreme Court of\nCalifornia.\nThe city of San Jose enacted its rent control ordinance\n(Ordinance) in 1979 with the stated purpose of\nalleviating some of the more\nimmediate needs created by San Jose\xe2\x80\x99s\nhousing situation. These needs include\nbut are not limited to the prevention\nof excessive and unreasonable rent\nincreases, the alleviation of undue\nhardships upon individual tenants, and\nthe assurance to landlords of a fair and\nreasonable return on the value of their\nproperty.\nSan Jose Municipal Ordinance 19696, \xc2\xa7 5701.2.\nAt the heart of the Ordinance is a mechanism for\ndetermining the amount by which landlords subject to its\nprovisions may increase the annual rent which they charge\ntheir tenants. A landlord is automatically entitled to raise\nthe rent of a tenant in possession1 by as much as eight\npercent; if a tenant objects to an increase greater than eight\npercent, a hearing is required before a \xe2\x80\x9cMediation Hearing\nUnder \xc2\xa7 5703.3, the Ordinance does not apply to rent or rent increases for new\nrental units first rented after the Ordinance takes effect, \xc2\xa7 5703.3(a), to the rental of\na unit that has been voluntarily vacated, \xc2\xa7 5703.3(b)(1), or to the rental of a unit\nthat is vacant as a result of eviction for certain specified acts, \xc2\xa7 5703.3(b)(2).\n1\n\n487\n\n\x0cOfficer\xe2\x80\x9d to determine whether the landlord\xe2\x80\x99s proposed\nincrease is \xe2\x80\x9creasonable under the circumstances.\xe2\x80\x9d The\nOrdinance sets forth a number of factors to be considered\nby the hearing officer in making this determination,\nincluding \xe2\x80\x9cthe hardship to a tenant.\xe2\x80\x9d \xc2\xa7 5703.28(c)(7).\nBecause appellants concentrate their attack on the\nconsideration of this factor, we set forth the relevant\nprovision of the Ordinance in full:\n5703.29. Hardship to Tenants. In the\ncase of a rent increase or any portion\nthereof which exceeds the standard set\nin Section 5703.28(a) or (b), then with\nrespect to such excess and whether or\nnot to allow same to be part of the\nincrease allowed under this Chapter,\nthe Hearing Officer shall consider the\neconomic and financial hardship\nimposed on the present tenant or\ntenants of the unit or units to which\nsuch increases apply. If, on balance,\nthe Hearing Officer determines that\nthe proposed increase constitutes an\nunreasonably severe financial or\neconomic hardship on a particular\ntenant, he may order that the excess of\nthe increase which is subject to\nconsideration under subparagraph (c)\nof Section 5703.28. or any portion\nthereof, be disallowed. Any tenant\nwhose household income and monthly\nhousing expense meets certain income\nrequirements shall be deemed to be\nsuffering under financial and economic\nhardship which must be weighed in\nthe Hearing Officer\xe2\x80\x99s determination.\nThe burden of proof in establishing\nany other economic hardship shall be\non the tenant.\n\n488\n\n\x0cIf either a tenant or a landlord is dissatisfied with the\ndecision of the hearing officer, the Ordinance provides for\nbinding arbitration. A landlord who attempts to charge or\nwho receives rent in excess of the maximum rent\nestablished as provided in the Ordinance is subject to\ncriminal and civil penalties.\nBefore we turn to the merits of appellants\xe2\x80\x99 contentions we\nconsider the claim of appellees that appellants lack standing\nto challenge the constitutionality of the Ordinance. [The\nCourt decided there was standing.]\nTurning now to the merits, we first address appellants\xe2\x80\x99\ncontention that application of the Ordinance\xe2\x80\x99s tenant\nhardship provisions violates the Fifth and Fourteenth\nAmendments\xe2\x80\x99 prohibition against taking of private property\nfor public use without just compensation. In essence,\nappellants\xe2\x80\x99 claim is as follows: \xc2\xa7 5703.28 of the Ordinance\nestablishes the seven factors that a hearing officer is to take\ninto account in determining the reasonable rent increase.\nThe first six of these factors are all objective, and are\nrelated either to the landlord\xe2\x80\x99s costs of providing an\nadequate rental unit, or to the condition of the rental\nmarket. Application of these six standards results in a rent\nthat is \xe2\x80\x9creasonable\xe2\x80\x9d by reference to what appellants\ncontend is the only legitimate purpose of rent control: the\nelimination of \xe2\x80\x9cexcessive\xe2\x80\x9d rents caused by San Jose\xe2\x80\x99s\nhousing shortage. When the hearing officer then takes into\naccount \xe2\x80\x9chardship to a tenant\xe2\x80\x9d pursuant to \xc2\xa7 5703.28(c)(7)\nand reduces the rent below the objectively \xe2\x80\x9creasonable\xe2\x80\x9d\namount established by the first six factors, this additional\nreduction in the rent increase constitutes a \xe2\x80\x9ctaking.\xe2\x80\x9d This\ntaking is impermissible because it does not serve the\npurpose of eliminating excessive rents \xe2\x80\x93 that objective has\nalready been accomplished by considering the first six\nfactors \xe2\x80\x93 instead, it serves only the purpose of providing\nassistance to \xe2\x80\x9chardship tenants.\xe2\x80\x9d In short, appellants\ncontend, the additional reduction of rent on grounds of\n\n489\n\n\x0chardship accomplishes a transfer of the landlord\xe2\x80\x99s property\nto individual hardship tenants; the Ordinance forces private\nindividuals to shoulder the \xe2\x80\x9cpublic\xe2\x80\x9d burden of subsidizing\ntheir poor tenants\xe2\x80\x99 housing. As appellants point out, \xe2\x80\x9dit is\naxiomatic that the Fifth Amendment\xe2\x80\x99s just compensation\nprovision is \xe2\x80\x98designed to bar Government from forcing\nsome people alone to bear public burdens which, in all\nfairness and justice, should be borne by the public as a\nwhole.\xe2\x80\x99\xe2\x80\x9d First English Evangelical Lutheran Church of Glendale v.\nCounty of Los Angeles, 482 U.S. 304, 318-319 (1987) (quoting\nArmstrong v. United States, 364 U.S. 40, 49,(1960)).\nWe think it would be premature to consider this contention\non the present record. As things stand, there simply is no\nevidence that the \xe2\x80\x9ctenant hardship clause\xe2\x80\x9d has in fact ever\nbeen relied upon by a hearing officer to reduce a rent below\nthe figure it would have been set at on the basis of the\nother factors set forth in the Ordinance. In addition, there\nis nothing in the Ordinance requiring that a hearing officer\nin fact reduce a proposed rent increase on grounds of\ntenant hardship. Section 5703.29 does make it mandatory\nthat hardship be considered \xe2\x80\x93 it states that \xe2\x80\x9cthe Hearing\nOfficer shall consider the economic hardship imposed on\nthe present tenant\xe2\x80\x9d \xe2\x80\x93 but it then goes on to state that if\n\xe2\x80\x9cthe proposed increase constitutes an unreasonably severe\nfinancial or economic hardship \xe2\x80\xa6 he may order that the\nexcess of the increase\xe2\x80\x9d be disallowed. \xc2\xa7 5703.29 (emphasis\nadded). Given the \xe2\x80\x9cessentially ad hoc, factual inquiry\xe2\x80\x9d\ninvolved in the takings analysis, Kaiser Aetna v. United States,\n444 U.S. 164, 175 (1979), we have found it particularly\nimportant in takings cases to adhere to our admonition that\n\xe2\x80\x9cthe constitutionality of statutes ought not be decided\nexcept in an actual factual setting that makes such a\ndecision necessary.\xe2\x80\x9d Hodel v. Virginia Surface Mining &\nReclamation Assn., Inc., 452 U.S. 264, 294-295 (1981). In\nVirginia Surface Mining, for example, we found that a\nchallenge to the Surface Mining Control and Reclamation\n\n490\n\n\x0cAct of 1977, 91 Stat. 447, 30 U.S.C. \xc2\xa7 1201 et seq., was\n\xe2\x80\x9cpremature,\xe2\x80\x9d 452 U.S., at 296, n. 37, and \xe2\x80\x9cnot ripe for\njudicial resolution,\xe2\x80\x9d id., at 297, because the property owners\nin that case had not identified any property that had\nallegedly been taken by the Act, nor had they sought\nadministrative relief from the Act\xe2\x80\x99s restrictions on surface\nmining. Similarly, in this case we find that the mere fact\nthat a hearing officer is enjoined to consider hardship to\nthe tenant in fixing a landlord\xe2\x80\x99s rent, without any showing\nin a particular case as to the consequences of that\ninjunction in the ultimate determination of the rent, does\nnot present a sufficiently concrete factual setting for the\nadjudication of the takings claim appellants raise here. Cf.\nCIO v. McAdory, 325 U.S. 472, 475-476 (1945) (declining to\nconsider the validity of a state statute when the record did\nnot show that the statute would ever be applied to any of\nthe petitioner\xe2\x80\x99s members).\nAppellants also urge that the mere provision in the\nOrdinance that a hearing officer may consider the hardship\nof the tenant in finally fixing a reasonable rent renders the\nOrdinance \xe2\x80\x9cfacially invalid\xe2\x80\x9d under the Due Process and\nEqual Protection Clauses, even though no landlord ever\nhas its rent diminished by as much as one dollar because of\nthe application of this provision. [The Court decided the\nOrdinance was not facially unconstitutional on these\ngrounds.]\nFor the foregoing reasons, we hold that it is premature to\nconsider appellants\xe2\x80\x99 claim under the Takings Clause and we\nreject their facial challenge to the Ordinance under the Due\nProcess and Equal Protection Clauses of the Fourteenth\nAmendment. The judgment of the Supreme Court of\nCalifornia is accordingly\nAffirmed.\nJustice KENNEDY took no part in the consideration or\ndecision of this case.\n\n491\n\n\x0cJUSTICE SCALIA, with whom JUSTICE O\'CONNOR joins,\nconcurring in part and dissenting in part.\nI agree that the tenant hardship provision of the Ordinance\ndoes not, on its face, violate either the Due Process Clause\nor the Equal Protection Clause of the Fourteenth\nAmendment. I disagree, however, with the Court\xe2\x80\x99s\nconclusion that appellants\xe2\x80\x99 takings claim is premature. I\nwould decide that claim on the merits, and would hold that\nthe tenant hardship provision of the Ordinance effects a\ntaking of private property without just compensation in\nviolation of the Fifth and Fourteenth Amendments.\nI\nAppellants contend that any application of the tenant\nhardship provision of the San Jose Ordinance would effect\nan uncompensated taking of private property because that\nprovision does not substantially advance legitimate state\ninterests and because it improperly imposes a public burden\non individual landlords. I can understand how such a claim\n\xe2\x80\x93 that a law applicable to the plaintiffs is, root and branch,\ninvalid \xe2\x80\x93 can be readily rejected on the merits, by merely\nnoting that at least some of its applications may be lawful.\nBut I do not understand how such a claim can possibly be\navoided by considering it \xe2\x80\x9cpremature.\xe2\x80\x9d Suppose, for\nexample, that the feature of the rental ordinance under\nattack was a provision allowing a hearing officer to consider\nthe race of the apartment owner in deciding whether to\nallow a rent increase. It is inconceivable that we would say\njudicial challenge must await demonstration that this\nprovision has actually been applied to the detriment of one\nof the plaintiffs. There is no difference, it seems to me,\nwhen the facial, root-and-branch challenge rests upon the\nTakings Clause rather than the Equal Protection Clause.\n\xe2\x80\xa6.\n\n492\n\n\x0cThere is no reason thus to shield alleged constitutional\ninjustice from judicial scrutiny. I would therefore consider\nappellants\xe2\x80\x99 takings claim on the merits.\nII\nThe Fifth Amendment of the United States Constitution,\nmade applicable to the States through the Fourteenth\nAmendment, Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,\n239 (1897), provides that \xe2\x80\x9cprivate property shall not be\ntaken for public use, without just compensation.\xe2\x80\x9d We have\nrepeatedly observed that the purpose of this provision is\n\xe2\x80\x9cto bar Government from forcing some people alone to\nbear public burdens which, in all fairness and justice,\nshould be borne by the public as a whole.\xe2\x80\x9d Armstrong v.\nUnited States, 364 U.S. 40, 49 (1960); see also First English\nEvangelical Lutheran Church of Glendale v. Los Angeles County,\n482 U.S. 304, 318-319 (1987); Webb\xe2\x80\x99s Fabulous Pharmacies,\nInc. v. Beckwith, 449 U.S. 155, 163 (1980); Agins v. Tiburon,\nsupra, 447 U.S., at 260; Penn Central Transportation Co. v. New\nYork City, 438 U.S. 104, 123 (1978); Monongahela Navigation\nCo. v. United States, 148 U.S. 312, 325 (1893).\nTraditional land-use regulation (short of that which totally\ndestroys the economic value of property) does not violate\nthis principle because there is a cause-and-effect\nrelationship between the property use restricted by the\nregulation and the social evil that the regulation seeks to\nremedy. Since the owner\xe2\x80\x99s use of the property is (or, but for\nthe regulation, would be) the source of the social problem,\nit cannot be said that he has been singled out unfairly.\nThus, the common zoning regulations requiring subdividers\nto observe lot-size and set-back restrictions, and to dedicate\ncertain areas to public streets, are in accord with our\nconstitutional traditions because the proposed property use\nwould otherwise be the cause of excessive congestion. The\nsame cause-and-effect relationship is popularly thought to\njustify emergency price regulation: When commodities have\nbeen priced at a level that produces exorbitant returns, the\n\n493\n\n\x0cowners of those commodities can be viewed as responsible\nfor the economic hardship that occurs. Whether or not that\nis an accurate perception of the way a free-market economy\noperates, it is at least true that the owners reap unique\nbenefits from the situation that produces the economic\nhardship, and in that respect singling them out to relieve it\nmay not be regarded as \xe2\x80\x9cunfair.\xe2\x80\x9d That justification might\napply to the rent regulation in the present case, apart from\nthe single feature under attack here.\nAppellants do not contest the validity of rent regulation in\ngeneral. They acknowledge that the city may\nconstitutionally set a \xe2\x80\x9creasonable rent\xe2\x80\x9d according to the\nstatutory minimum and the six other factors that must be\nconsidered by the hearing officer (cost of debt servicing,\nrental history of the unit, physical condition of the unit,\nchanges in housing services, other financial information\nprovided by the landlord, and market value rents for similar\nunits). San Jose Municipal Ordinance 19696, \xc2\xa7 5703.28(c)\n(1979). Appellants\xe2\x80\x99 only claim is that a reduction of a rent\nincrease below what would otherwise be a \xe2\x80\x9creasonable\nrent\xe2\x80\x9d under this scheme may not, consistently with the\nConstitution, be based on consideration of the seventh\nfactor the hardship to the tenant as defined in \xc2\xa7 5703.29. I\nthink they are right.\nOnce the other six factors of the Ordinance have been\napplied to a landlord\xe2\x80\x99s property, so that he is receiving only\na reasonable return, he can no longer be regarded as a\n\xe2\x80\x9ccause\xe2\x80\x9d of exorbitantly priced housing; nor is he any longer\nreaping distinctively high profits from the housing\nshortage. The seventh factor, the \xe2\x80\x9chardship\xe2\x80\x9d provision, is\ninvoked to meet a quite different social problem: the\nexistence of some renters who are too poor to afford even\nreasonably priced housing. But that problem is no more\ncaused or exploited by landlords than it is by the grocers\nwho sell needy renters their food, or the department stores\nthat sell them their clothes, or the employers who pay them\n\n494\n\n\x0ctheir wages, or the citizens of San Jose holding the higher\npaying jobs from which they are excluded. And even if the\nneediness of renters could be regarded as a problem\ndistinctively attributable to landlords in general, it is not\nremotely attributable to the particular landlords that the\nOrdinance singles out \xe2\x80\x93 namely, those who happen to have\na \xe2\x80\x9chardship\xe2\x80\x9d tenant at the present time, or who may\nhappen to rent to a \xe2\x80\x9chardship\xe2\x80\x9d tenant in the future, or\nwhose current or future affluent tenants may happen to\ndecline into the \xe2\x80\x9chardship\xe2\x80\x9d category.\nThe traditional manner in which American government has\nmet the problem of those who cannot pay reasonable\nprices for privately sold necessities \xe2\x80\x93 a problem caused by\nthe society at large \xe2\x80\x93 has been the distribution to such\npersons of funds raised from the public at large through\ntaxes, either in cash (welfare payments) or in goods (public\nhousing, publicly subsidized housing, and food stamps).\nUnless we are to abandon the guiding principle of the\nTakings Clause that \xe2\x80\x9cpublic burdens \xe2\x80\xa6 should be borne by\nthe public as a whole,\xe2\x80\x9d Armstrong, 364 U.S., at 49, this is the\nonly manner that our Constitution permits. The fact that\ngovernment acts through the landlord-tenant relationship\ndoes not magically transform general public welfare, which\nmust be supported by all the public, into mere \xe2\x80\x9ceconomic\nregulation,\xe2\x80\x9d which can disproportionately burden particular\nindividuals. Here the city is not \xe2\x80\x9cregulating\xe2\x80\x9d rents in the\nrelevant sense of preventing rents that are excessive; rather,\nit is using the occasion of rent regulation (accomplished by\nthe rest of the Ordinance) to establish a welfare program\nprivately funded by those landlords who happen to have\n\xe2\x80\x9chardship\xe2\x80\x9d tenants.\nOf course all economic regulation effects wealth transfer.\nWhen excessive rents are forbidden, for example, landlords\nas a class become poorer and tenants as a class (or at least\nincumbent tenants as a class) become richer. Singling out\nlandlords to be the transferors may be within our\n\n495\n\n\x0ctraditional constitutional notions of fairness, because they\ncan plausibly be regarded as the source or the beneficiary of\nthe high-rent problem. Once such a connection is no\nlonger required, however, there is no end to the social\ntransformations that can be accomplished by so-called\n\xe2\x80\x9cregulation,\xe2\x80\x9d at great expense to the democratic process.\nThe politically attractive feature of regulation is not that it\npermits wealth transfers to be achieved that could not be\nachieved otherwise; but rather that it permits them to be\nachieved \xe2\x80\x9coff budget,\xe2\x80\x9d with relative invisibility and thus\nrelative immunity from normal democratic processes. San\nJose might, for example, have accomplished something like\nthe result here by simply raising the real estate tax upon\nrental properties and using the additional revenues thus\nacquired to pay part of the rents of \xe2\x80\x9chardship\xe2\x80\x9d tenants. It\nseems to me doubtful, however, whether the citizens of San\nJose would allow funds in the municipal treasury, from\nwherever derived, to be distributed to a family of four with\nincome as high as $32,400 a year \xe2\x80\x93 the generous maximum\nnecessary to qualify automatically as a \xe2\x80\x9chardship\xe2\x80\x9d tenant\nunder the rental Ordinance.2 The voters might well see\nother, more pressing, social priorities. And of course what\n$32,400-a-year renters can acquire through spurious\n\xe2\x80\x9cregulation,\xe2\x80\x9d other groups can acquire as well. Once the\ndoor is opened it is not unreasonable to expect price\nregulations requiring private businesses to give special\ndiscounts to senior citizens (no matter how affluent), or to\nUnder the San Jose Ordinance, \xe2\x80\x9chardship\xe2\x80\x9d tenants include (though are not limited\nto) those whose \xe2\x80\x9chousehold income and monthly housing expense meets sic the\ncriteria\xe2\x80\x9d for assistance under the existing housing provisions of \xc2\xa7 8 of the Housing\nand Community Development Act of 1974, 42 U.S.C. \xc2\xa7 1437f (1982 ed. and Supp.\nIII). The United States Department of Housing and Urban Development currently\nlimits assistance under these provisions for families of four in the San Jose area to\nthose who earn $32,400 or less per year. Memorandum from U.S. Dept. of\nHousing and Urban Development, Assistant Secretary for Housing-Federal\nHousing Comm\xe2\x80\x99r, Income Limits for Lower Income and Very Low-Income\nFamilies Under the Housing Act of 1937 (Jan. 15, 1988).\n2\n\n496\n\n\x0cstudents, the handicapped, or war veterans. Subsidies for\nthese groups may well be a good idea, but because of the\noperation of the Takings Clause our governmental system\nhas required them to be applied, in general, through the\nprocess of taxing and spending, where both economic\neffects and competing priorities are more evident.\nThat fostering of an intelligent democratic process is one of\nthe happy effects of the constitutional prescription \xe2\x80\x93\nperhaps accidental, perhaps not. Its essence, however, is\nsimply the unfairness of making one citizen pay, in some\nfashion other than taxes, to remedy a social problem that is\nnone of his creation. As the Supreme Court of New Jersey\nsaid in finding unconstitutional a scheme displaying, among\nother defects, the same vice I find dispositive here:\nA legislative category of economically\nneedy senior citizens is sound, proper\nand sustainable as a rational\nclassification.\nBut\ncompelled\nsubsidization by landlords or by\ntenants who happen to live in an\napartment building with senior citizens\nis an improper and unconstitutional\nmethod of solving the problem.\nProperty Owners Assn. v. North Bergen, 74 N.J. 327, 339\n(1977).\nI would hold that the seventh factor in \xc2\xa7 5703.28(c) of the\nSan Jose Ordinance effects a taking of property without\njust compensation.\n4.3. Doctrine\n4.3.1. Ad hoc Takings\nPenn Central Transportation Co., v. New York City,\n438 U.S. 104 (1978)\nDaniel M. Gribbon argued the cause for appellants. With him\non the briefs were John R. Bolton and Carl Helmetag, Jr.\n\n497\n\n\x0cLeonard Koerner argued the cause for appellees. With him on\nthe brief were Allen G. Schwartz, L. Kevin Sheridan, and\nDorothy Miner.\nAssistant Attorney General Wald argued the cause for the\nUnited States as amicus curiae urging affirmance. On the\nbrief were Solicitor General McCree, Assistant Attorney General\nMoorman, Peter R. Steenland, Jr., and Carl Strass.1\nBriefs of amici curiae were filed by Evelle J. Younger, Attorney\nGeneral, E. Clement Shute, Jr., and Robert H. Connett,\nAssistant Attorneys General, and Richard C. Jacobs, Deputy\nAttorney General, for the State of California; and by Eugene\nJ. Morris for the Real Estate Board of New York, Inc.\nMR. JUSTICE BRENNAN delivered the opinion of the Court.\nThe question presented is whether a city may, as part of a\ncomprehensive program to preserve historic landmarks and\nhistoric districts, place restrictions on the development of\nindividual historic landmarks\xe2\x80\x93in addition to those imposed\nby applicable zoning ordinances\xe2\x80\x93without effecting a\n\xe2\x80\x9ctaking\xe2\x80\x9d requiring the payment of \xe2\x80\x9cjust compensation.\xe2\x80\x9d\nSpecifically, we must decide whether the application of\nNew York City\xe2\x80\x99s Landmarks Preservation Law to the parcel\nof land occupied by Grand Central Terminal has \xe2\x80\x9ctaken\xe2\x80\x9d its\nowners\xe2\x80\x99 property in violation of the Fifth and Fourteenth\nAmendments.\n\nBriefs of amici curiae urging affirmance were filed by David Bonderman and Frank B.\nGilbert for the National Trust for Historic Preservation et al.; by Paul S. Byard, Ralph\nC. Menapace, Jr., Terence H. Benbow, William C. Chanler, Richard H. Pershan, Francis T. P.\nPlimpton, Whitney North Seymour, and Bethuel M. Webster for the Committee to Save\nGrand Central Station et al.; and by Louis J. Lefkowitz, Attorney General, Samuel A.\nHirshowitz, First Assistant Attorney General, and Philip Weinberg, Assistant Attorney\nGeneral, for the State of New York.\n1\n\n498\n\n\x0cI\nA\nOver the past 50 years, all 50 States and over 500\nmunicipalities have enacted laws to encourage or require\nthe preservation of buildings and areas with historic or\naesthetic importance.2 These nationwide legislative efforts\nhave been precipitated by two concerns. The first is\nrecognition that, in recent years, large numbers of historic\nstructures, landmarks, and areas have been destroyed3\nwithout adequate consideration of either the values\nrepresented therein or the possibility of preserving the\ndestroyed properties for use in economically productive\nways.4 The second is a widely shared belief that structures\nwith special historic, cultural, or architectural significance\nenhance the quality of life for all. Not only do these\nbuildings and their workmanship represent the lessons of\nthe past and embody precious features of our heritage, they\nserve as examples of quality for today. \xe2\x80\x9c[H]istoric\nconservation is but one aspect of the much larger problem,\n\nSee National Trust for Historic Preservation, A Guide to State Historic\nPreservation Programs (1976); National Trust for Historic Preservation, Directory\nof Landmark and Historic District Commissions (1976). In addition to these state\nand municipal legislative efforts, Congress has determined that \xe2\x80\x9cthe historical and\ncultural foundations of the Nation should be preserved as a living part of our\ncommunity life and development in order to give a sense of orientation to the\nAmerican people,\xe2\x80\x9d National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.\nS. C. \xc2\xa7 470 (b) (1976 ed.), and has enacted a series of measures designed to\nencourage preservation of sites and structures of historic, architectural, or cultural\nsignificance. See generally Gray, The Response of Federal Legislation to Historic\nPreservation, 36 Law & Contemp. Prob. 314 (1971).\n2\n\nOver one-half of the buildings listed in the Historic American Buildings Survey,\nbegun by the Federal Government in 1933, have been destroyed. See Costonis, The\nChicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85\nHarv. L. Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank\xe2\x80\x99s Building Plan Sets Off\nDebate on \xe2\x80\x9cProgress,\xe2\x80\x9d N. Y. Times, Jan. 17, 1971, section 8, p. 1, col. 2.\n3\n\n4\n\nSee, e. g., N. Y. C. Admin. Code \xc2\xa7 205-1.0 (a) (1976).\n\n499\n\n\x0cbasically an environmental one, of enhancing\xe2\x80\x93or perhaps\ndeveloping for the first time\xe2\x80\x93the quality of life for people.\xe2\x80\x9d5\nNew York City, responding to similar concerns and acting\npursuant to a New York State enabling Act,6 adopted its\nLandmarks Preservation Law in 1965. See N. Y. C. Admin.\nCode, ch. 8-A, \xc2\xa7 205-1.0 et seq. (1976). The city acted from\nthe conviction that \xe2\x80\x9cthe standing of [New York City] as a\nworld-wide tourist center and world capital of business,\nculture and government\xe2\x80\x9d would be threatened if legislation\nwere not enacted to protect historic landmarks and\nneighborhoods from precipitate decisions to destroy or\nfundamentally alter their character. \xc2\xa7 205-1.0 (a). The city\nbelieved that comprehensive measures to safeguard\ndesirable features of the existing urban fabric would benefit\nits citizens in a variety of ways: e. g., fostering \xe2\x80\x9ccivic pride in\nthe beauty and noble accomplishments of the past\xe2\x80\x9d;\nprotecting and enhancing \xe2\x80\x9cthe city\xe2\x80\x99s attractions to tourists\nand visitors\xe2\x80\x9d; \xe2\x80\x9csupport[ing] and stimul[ating] business and\nindustry\xe2\x80\x9d; \xe2\x80\x9cstrengthen[ing] the economy of the city\xe2\x80\x9d; and\npromoting \xe2\x80\x9cthe use of historic districts, landmarks, interior\nlandmarks and scenic landmarks for the education, pleasure\nand welfare of the people of the city.\xe2\x80\x9d \xc2\xa7 205-1.0 (b).\nThe New York City law is typical of many urban landmark\nlaws in that its primary method of achieving its goals is not\nby acquisitions of historic properties,7 but rather by\nGilbert, Introduction, Precedents for the Future, 36 Law & Contemp. Prob. 311,\n312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation\nLaw, Washington, D. C., May 1, 1971 (unpublished text, pp. 6-7).\n5\n\nSee N. Y. Gen. Mun. Law \xc2\xa7 96-a (McKinney 1977). It declares that it is the public\npolicy of the State of New York to preserve structures and areas with special\nhistorical or aesthetic interest or value and authorizes local governments to impose\nreasonable restrictions to perpetuate such structures and areas.\n6\n\nThe consensus is that widespread public ownership of historic properties in urban\nsettings is neither feasible nor wise. Public ownership reduces the tax base, burdens\nthe public budget with costs of acquisitions and maintenance, and results in the\npreservation of public buildings as museums and similar facilities, rather than as\neconomically productive features of the urban scene. See Wilson & Winkler, The\n7\n\n500\n\n\x0cinvolving public entities in land-use decisions affecting\nthese properties and providing services, standards, controls,\nand incentives that will encourage preservation by private\nowners and users.8 While the law does place special\nrestrictions on landmark properties as a necessary feature to\nthe attainment of its larger objectives, the major theme of\nthe law is to ensure the owners of any such properties both\na \xe2\x80\x9creasonable return\xe2\x80\x9d on their investments and maximum\nlatitude to use their parcels for purposes not inconsistent\nwith the preservation goals.\n\xe2\x80\xa6.\nB\nThis case involves the application of New York City\xe2\x80\x99s\nLandmarks Preservation Law to Grand Central Terminal\n(Terminal). The Terminal, which is owned by the Penn\nCentral Transportation Co. and its affiliates (Penn Central),\nis one of New York City\xe2\x80\x99s most famous buildings. Opened\nin 1913, it is regarded not only as providing an ingenious\nengineering solution to the problems presented by urban\nrailroad stations, but also as a magnificent example of the\nFrench beaux-arts style.\n\xe2\x80\xa6.\nOn August 2, 1967, following a public hearing, the\nCommission designated the Terminal a \xe2\x80\x9clandmark\xe2\x80\x9d and\ndesignated the \xe2\x80\x9ccity tax block\xe2\x80\x9d it occupies a \xe2\x80\x9clandmark\nsite.\xe2\x80\x9d9 The Board of Estimate confirmed this action on\n\nResponse of State Legislation to Historic Preservation, 36 Law & Contemp. Prob.\n329, 330-331, 339-340 (1971).\nSee Costonis, supra n. 2, at 580-581; Wilson & Winkler, supra n. 6; Rankin,\nOperation and Interpretation of the New York City Landmark Preservation Law,\n36 Law & Contemp. Prob. 366 (1971).\n8\n\n9\n\nThe Commission\xe2\x80\x99s report stated:\n\n501\n\n\x0cSeptember 21, 1967. Although appellant Penn Central had\nopposed the designation before the Commission, it did not\nseek judicial review of the final designation decision.\nOn January 22, 1968, appellant Penn Central, to increase its\nincome, entered into a renewable 50-year lease and sublease\nagreement with appellant UGP Properties, Inc. (UGP), a\nwholly owned subsidiary of Union General Properties, Ltd.,\na United Kingdom corporation. Under the terms of the\nagreement, UGP was to construct a multistory office\nbuilding above the Terminal. UGP promised to pay Penn\nCentral $1 million annually during construction and at least\n$3 million annually thereafter. The rentals would be offset\nin part by a loss of some $700,000 to $1 million in net\nrentals presently received from concessionaires displaced\nby the new building.\nAppellants UGP and Penn Central then applied to the\nCommission for permission to construct an office building\natop the Terminal. Two separate plans, both designed by\narchitect Marcel Breuer and both apparently satisfying the\nterms of the applicable zoning ordinance, were submitted\nto the Commission for approval. The first, Breuer I,\nprovided for the construction of a 55-story office building,\nto be cantilevered above the existing facade and to rest on\nthe roof of the Terminal. The second, Breuer II Revised,10\ncalled for tearing down a portion of the Terminal that\n\xe2\x80\x9cGrand Central Station, one of the great buildings of\nAmerica, evokes a spirit that is unique in this City. It\ncombines distinguished architecture with a brilliant\nengineering solution, wedded to one of the most fabulous\nrailroad terminals of our time. Monumental in scale, this\ngreat building functions as well today as it did when built.\nIn style, it represents the best of the French Beaux Arts.\xe2\x80\x9d\nRecord 2240.\n\nAppellants also submitted a plan, denominated Breuer II, to the Commission.\nHowever, because appellants learned that Breuer II would have violated existing\neasements, they substituted Breuer II Revised for Breuer II, and the Commission\nevaluated the appropriateness only of Breuer II Revised.\n10\n\n502\n\n\x0cincluded the 42d Street facade, stripping off some of the\nremaining features of the Terminal\xe2\x80\x99s facade, and\nconstructing a 53-story office building. The Commission\ndenied a certificate of no exterior effect on September 20,\n1968. Appellants then applied for a certificate of\n\xe2\x80\x9cappropriateness\xe2\x80\x9d as to both proposals. After four days of\nhearings at which over 80 witnesses testified, the\nCommission denied this application as to both proposals.\nThe Commission\xe2\x80\x99s reasons for rejecting certificates\nrespecting Breuer II Revised are summarized in the\nfollowing statement: \xe2\x80\x9cTo protect a Landmark, one does not\ntear it down. To perpetuate its architectural features, one\ndoes not strip them off.\xe2\x80\x9d Record 2255. Breuer I, which\nwould have preserved the existing vertical facades of the\npresent\nstructure,\nreceived\nmore\nsympathetic\nconsideration\xe2\x80\xa6. In conclusion, the Commission stated:\n\xe2\x80\x9c[We have] no fixed rule against\nmaking additions to designated\nbuildings\xe2\x80\x93it all depends on how they\nare done \xe2\x80\xa6 . But to balance a 55-story\noffice tower above a flamboyant\nBeaux-Arts facade seems nothing\nmore than an aesthetic joke. Quite\nsimply, the tower would overwhelm\nthe Terminal by its sheer mass. The\n\xe2\x80\x98addition\xe2\x80\x99 would be four times as high\nas the existing structure and would\nreduce the Landmark itself to the\nstatus of a curiosity.\n\xe2\x80\x9cLandmarks cannot be divorced from\ntheir settings\xe2\x80\x93 particularly when the\nsetting is a dramatic and integral part\nof the original concept. The Terminal,\nin its setting, is a great example of\nurban design. Such examples are not\nso plentiful in New York City that we\ncan afford to lose any of the few we\n\n503\n\n\x0chave. And we must preserve them in a\nmeaningful way\xe2\x80\x93with alterations and\nadditions of such character, scale,\nmaterials and mass as will protect,\nenhance and perpetuate the original\ndesign rather than overwhelm it.\xe2\x80\x9d\nId., at 2251.11\n\xe2\x80\xa6.\nThe New York Court of Appeals \xe2\x80\xa6 summarily rejected\nany claim that the Landmarks Law had \xe2\x80\x9ctaken\xe2\x80\x9d property\nwithout \xe2\x80\x9cjust compensation,\xe2\x80\x9d id., at 329, 366 N. E. 2d, at\n1274, indicating that there could be no \xe2\x80\x9ctaking\xe2\x80\x9d since the\nlaw had not transferred control of the property to the city,\nbut only restricted appellants\xe2\x80\x99 exploitation of it\xe2\x80\xa6 . .\nII\nThe issues presented by appellants are (1) whether the\nrestrictions imposed by New York City\xe2\x80\x99s law upon\nappellants\xe2\x80\x99 exploitation of the Terminal site effect a\n\xe2\x80\x9ctaking\xe2\x80\x9d of appellants\xe2\x80\x99 property for a public use within the\nmeaning of the Fifth Amendment, which of course is made\napplicable to the States through the Fourteenth\nAmendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.\nS. 226, 239 (1897), and, (2), if so, whether the transferable\ndevelopment rights afforded appellants constitute \xe2\x80\x9cjust\ncompensation\xe2\x80\x9d within the meaning of the Fifth\n\nIn discussing Breuer I, the Commission also referred to a number of instances in\nwhich it had approved additions to landmarks: \xe2\x80\x9cThe office and reception wing\nadded to Gracie Mansion and the school and church house added to the 12th\nStreet side of the First Presbyterian Church are examples that harmonize in scale,\nmaterial and character with the structures they adjoin. The new Watch Tower Bible\nand Tract Society building on Brooklyn Heights, though completely modern in\nidiom, respects the qualities of its surroundings and will enhance the Brooklyn\nHeights Historic District, as Butterfield House enhances West 12th Street, and\nBreuer\xe2\x80\x99s own Whitney Museum its Madison Avenue locale.\xe2\x80\x9d Record 2251.\n11\n\n504\n\n\x0cAmendment.12 We need only address the question whether\na \xe2\x80\x9ctaking\xe2\x80\x9d has occurred.13\nA\nBefore considering appellants\xe2\x80\x99 specific contentions, it will\nbe useful to review the factors that have shaped the\nOur statement of the issues is a distillation of four questions presented in the\njurisdictional statement:\n12\n\n\xe2\x80\x9cDoes the social and cultural desirability of preserving\nhistorical landmarks through government regulation\nderogate from the constitutional requirement that just\ncompensation be paid for private property taken for\npublic use?\n\xe2\x80\x9cIs Penn Central entitled to no compensation for that\nlarge but unmeasurable portion of the value of its rights to\nconstruct an office building over the Grand Central\nTerminal that is said to have been created by the efforts of\n\xe2\x80\x98society as an organized entity\xe2\x80\x99?\n\xe2\x80\x9cDoes a finding that Penn Central has failed to establish\nthat there is no possibility, without exercising its\ndevelopment rights, of earning a reasonable return on all\nof its remaining properties that benefit in any way from\nthe operations of the Grand Central Terminal warrant the\nconclusion that no compensation need be paid for the\ntaking of those rights?\n\xe2\x80\x9cDoes the possibility accorded to Penn Central, under the\nlandmark-preservation regulation, of realizing some value\nat some time by transferring the Terminal development\nrights to other buildings, under a procedure that is\nconceded to be defective, severely limited, procedurally\ncomplex and speculative, and that requires ultimate\ndiscretionary approval by governmental authorities, meet\nthe constitutional requirements of just compensation as\napplied to landmarks?\xe2\x80\x9d\n\nJurisdictional Statement 3-4.\nThe first and fourth questions assume that there has been a taking and raise the\nproblem whether, under the circumstances of this case, the transferable\ndevelopment rights constitute \xe2\x80\x9cjust compensation.\xe2\x80\x9d The second and third\nquestions, on the other hand, are directed to the issue whether a taking has\noccurred.\nAs is implicit in our opinion, we do not embrace the proposition that a \xe2\x80\x9ctaking\xe2\x80\x9d\ncan never occur unless government has transferred physical control over a portion\nof a parcel.\n13\n\n505\n\n\x0cjurisprudence of the Fifth Amendment injunction \xe2\x80\x9cnor\nshall private property be taken for public use, without just\ncompensation.\xe2\x80\x9d The question of what constitutes a\n\xe2\x80\x9ctaking\xe2\x80\x9d for purposes of the Fifth Amendment has proved\nto be a problem of considerable difficulty. While this Court\nhas recognized that the \xe2\x80\x9cFifth Amendment\xe2\x80\x99s guarantee \xe2\x80\xa6\n[is] designed to bar Government from forcing some people\nalone to bear public burdens which, in all fairness and\njustice, should be borne by the public as a whole,\xe2\x80\x9d\nArmstrong v. United States, 364 U. S. 40, 49 (1960), this\nCourt, quite simply, has been unable to develop any \xe2\x80\x9cset\nformula\xe2\x80\x9d for determining when \xe2\x80\x9cjustice and fairness\xe2\x80\x9d\nrequire that economic injuries caused by public action be\ncompensated by the government, rather than remain\ndisproportionately concentrated on a few persons. See\nGoldblatt v. Hempstead, 369 U. S. 590, 594 (1962). Indeed, we\nhave frequently observed that whether a particular\nrestriction will be rendered invalid by the government\xe2\x80\x99s\nfailure to pay for any losses proximately caused by it\ndepends largely \xe2\x80\x9cupon the particular circumstances [in that]\ncase.\xe2\x80\x9d United States v. Central Eureka Mining Co., 357 U. S.\n155, 168 (1958); see United States v. Caltex, Inc., 344 U. S.\n149, 156 (1952).\nIn engaging in these essentially ad hoc, factual inquiries, the\nCourt\xe2\x80\x99s decisions have identified several factors that have\nparticular significance. The economic impact of the\nregulation on the claimant and, particularly, the extent to\nwhich the regulation has interfered with distinct\ninvestment-backed expectations are, of course, relevant\nconsiderations. See Goldblatt v. Hempstead, supra, at 594. So,\ntoo, is the character of the governmental action. A \xe2\x80\x9ctaking\xe2\x80\x9d\nmay more readily be found when the interference with\nproperty can be characterized as a physical invasion by\ngovernment, see, e. g., United States v. Causby, 328 U. S. 256\n(1946), than when interference arises from some public\n\n506\n\n\x0cprogram adjusting the benefits and burdens of economic\nlife to promote the common good.\n\xe2\x80\x9cGovernment hardly could go on if to some extent values\nincident to property could not be diminished without\npaying for every such change in the general law,\xe2\x80\x9d\nPennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922),\nand this Court has accordingly recognized, in a wide variety\nof contexts, that government may execute laws or\nprograms that adversely affect recognized economic values.\nExercises of the taxing power are one obvious example. A\nsecond are the decisions in which this Court has dismissed\n\xe2\x80\x9ctaking\xe2\x80\x9d challenges on the ground that, while the\nchallenged government action caused economic harm, it\ndid not interfere with interests that were sufficiently bound\nup with the reasonable expectations of the claimant to\nconstitute \xe2\x80\x9cproperty\xe2\x80\x9d for Fifth Amendment purposes. See,\ne. g., United States v. Willow River Power Co., 324 U. S. 499\n(1945) (interest in high-water level of river for runoff for\ntailwaters to maintain power head is not property); United\nStatesv. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913)\n(no property interest can exist in navigable waters); see also\nDemorest v. City Bank Co., 321 U. S. 36 (1944); Muhlker v.\nHarlem R. Co., 197 U. S. 544 (1905); Sax, Takings and the\nPolice Power, 74 Yale L. J. 36, 61-62 (1964).\nMore importantly for the present case, in instances in\nwhich a state tribunal reasonably concluded that \xe2\x80\x9cthe\nhealth, safety, morals, or general welfare\xe2\x80\x9d would be\npromoted by prohibiting particular contemplated uses of\nland, this Court has upheld land-use regulations that\ndestroyed or adversely affected recognized real property\ninterests. See Nectow v. Cambridge, 277 U. S. 183, 188 (1928).\nZoning laws are, of course, the classic example, see Euclid v.\nAmbler Realty Co., 272 U. S. 365 (1926) (prohibition of\nindustrial use); Gorieb v. Fox, 274 U. S. 603, 608 (1927)\n(requirement that portions of parcels be left unbuilt); Welch\nv. Swasey, 214 U. S. 91 (1909) (height restriction), which\n\n507\n\n\x0chave been viewed as permissible governmental action even\nwhen prohibiting the most beneficial use of the property.\nSee Goldblatt v. Hempstead, supra, at 592-593, and cases cited;\nsee also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668,\n674 n. 8 (1976).\nZoning laws generally do not affect existing uses of real\nproperty, but \xe2\x80\x9ctaking\xe2\x80\x9d challenges have also been held to be\nwithout merit in a wide variety of situations when the\nchallenged governmental actions prohibited a beneficial use\nto which individual parcels had previously been devoted\nand thus caused substantial individualized harm. Miller v.\nSchoene, 276 U. S. 272 (1928), is illustrative. In that case, a\nstate entomologist, acting pursuant to a state statute,\nordered the claimants to cut down a large number of\nornamental red cedar trees because they produced cedar\nrust fatal to apple trees cultivated nearby. Although the\nstatute provided for recovery of any expense incurred in\nremoving the cedars, and permitted claimants to use the\nfelled trees, it did not provide compensation for the value\nof the standing trees or for the resulting decrease in market\nvalue of the properties as a whole. A unanimous Court held\nthat this latter omission did not render the statute invalid.\nThe Court held that the State might properly make \xe2\x80\x9ca\nchoice between the preservation of one class of property\nand that of the other\xe2\x80\x9d and since the apple industry was\nimportant in the State involved, concluded that the State\nhad not exceeded \xe2\x80\x9cits constitutional powers by deciding\nupon the destruction of one class of property [without\ncompensation] in order to save another which, in the\njudgment of the legislature, is of greater value to the\npublic.\xe2\x80\x9d Id., at 279.\n\xe2\x80\xa6.\nPennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is the\nleading case for the proposition that a state statute that\nsubstantially furthers important public policies may so\nfrustrate distinct investment-backed expectations as to\n\n508\n\n\x0camount to a \xe2\x80\x9ctaking.\xe2\x80\x9d There the claimant had sold the\nsurface rights to particular parcels of property, but\nexpressly reserved the right to remove the coal thereunder.\nA Pennsylvania statute, enacted after the transactions,\nforbade any mining of coal that caused the subsidence of\nany house, unless the house was the property of the owner\nof the underlying coal and was more than 150 feet from the\nimproved property of another. Because the statute made it\ncommercially impracticable to mine the coal, id., at 414, and\nthus had nearly the same effect as the complete destruction\nof rights claimant had reserved from the owners of the\nsurface land, see id., at 414-415, the Court held that the\nstatute was invalid as effecting a \xe2\x80\x9ctaking\xe2\x80\x9d without just\ncompensation. See also Armstrong v. United States, 364 U. S.\n40 (1960) (Government\xe2\x80\x99s complete destruction of a\nmaterialman\xe2\x80\x99s lien in certain property held a \xe2\x80\x9ctaking\xe2\x80\x9d);\nHudson Water Co. v. McCarter, 209 U. S. 349, 355 (1908) (if\nheight restriction makes property wholly useless \xe2\x80\x9cthe rights\nof property \xe2\x80\xa6 prevail over the other public interest\xe2\x80\x9d and\ncompensation is required). See generally Michelman,\nProperty, Utility, and Fairness: Comments on the Ethical\nFoundations of \xe2\x80\x9cJust Compensation\xe2\x80\x9d Law, 80 Harv. L.\nRev. 1165, 1229-1234 (1967).\nFinally, government actions that may be characterized as\nacquisitions of resources to permit or facilitate uniquely\npublic functions have often been held to constitute\n\xe2\x80\x9ctakings.\xe2\x80\x9d United States v. Causby, 328 U. S. 256 (1946), is\nillustrative. In holding that direct overflights above the\nclaimant\xe2\x80\x99s land, that destroyed the present use of the land\nas a chicken farm, constituted a \xe2\x80\x9ctaking\xe2\x80\x9d Causby\nemphasized that Government had not \xe2\x80\x9cmerely destroyed\nproperty [but was] using a part of it for the flight of its\nplanes.\xe2\x80\x9d Id., at 262-263, n. 7. See also Griggs v. Allegheny\nCounty, 369 U. S. 84 (1962) (overflights held a taking);\nPortsmouth Co. v. United States, 260 U. S. 327 (1922) (United\nStates military installations\xe2\x80\x99 repeated firing of guns over\n\n509\n\n\x0cclaimant\xe2\x80\x99s land is a taking); United States v. Cress, 243 U. S.\n316 (1917) (repeated floodings of land caused by water\nproject is a taking); but see YMCA v. United States, 395 U. S.\n85 (1969) (damage caused to building when federal officers\nwho were seeking to protect building were attacked by\nrioters held not a taking). See generally Michelman, supra, at\n1226-1229; Sax, Takings and the Police Power, 74 Yale L. J.\n36 (1964).\nB\nIn contending that the New York City law has \xe2\x80\x9ctaken\xe2\x80\x9d\ntheir property in violation of the Fifth and Fourteenth\nAmendments, appellants make a series of arguments,\nwhich, while tailored to the facts of this case, essentially\nurge that any substantial restriction imposed pursuant to a\nlandmark law must be accompanied by just compensation if\nit is to be constitutional. Before considering these, we\nemphasize what is not in dispute. Because this Court has\nrecognized, in a number of settings, that States and cities\nmay enact land-use restrictions or controls to enhance the\nquality of life by preserving the character and desirable\naesthetic features of a city, see New Orleans v. Dukes, 427 U.\nS. 297 (1976); Young v. American Mini Theatres, Inc., 427 U. S.\n50 (1976); Village of Belle Terre v. Boraas, 416 U. S. 1, 9-10\n(1974); Berman v. Parker, 348 U. S. 26, 33 (1954); Welch v.\nSwasey, 214 U. S., at 108, appellants do not contest that\nNew York City\xe2\x80\x99s objective of preserving structures and\nareas with special historic, architectural, or cultural\nsignificance is an entirely permissible governmental goal.\nThey also do not dispute that the restrictions imposed on\nits parcel are appropriate means of securing the purposes of\nthe New York City law. Finally, appellants do not challenge\nany of the specific factual premises of the decision below.\nThey accept for present purposes both that the parcel of\nland occupied by Grand Central Terminal must, in its\npresent state, be regarded as capable of earning a\n\n510\n\n\x0creasonable return,14 and that the transferable development\nrights afforded appellants by virtue of the Terminal\xe2\x80\x99s\ndesignation as a landmark are valuable, even if not as\nvaluable as the rights to construct above the Terminal. In\nappellants\xe2\x80\x99 view none of these factors derogate from their\nclaim that New York City\xe2\x80\x99s law has effected a \xe2\x80\x9ctaking.\xe2\x80\x9d\nThey first observe that the airspace above the Terminal is a\nvaluable property interest, citing United States v. Causby,\nsupra. They urge that the Landmarks Law has deprived\nthem of any gainful use of their \xe2\x80\x9cair rights\xe2\x80\x9d above the\nTerminal and that, irrespective of the value of the\nremainder of their parcel, the city has \xe2\x80\x9ctaken\xe2\x80\x9d their right to\nthis superjacent airspace, thus entitling them to \xe2\x80\x9cjust\ncompensation\xe2\x80\x9d measured by the fair market value of these\nair rights.\nApart from our own disagreement with appellants\xe2\x80\x99\ncharacterization of the effect of the New York City law, see\ninfra, at 134-135, the submission that appellants may\nestablish a \xe2\x80\x9ctaking\xe2\x80\x9d simply by showing that they have been\ndenied the ability to exploit a property interest that they\nheretofore had believed was available for development is\nquite simply untenable. Were this the rule, this Court would\nhave erred not only in upholding laws restricting the\ndevelopment of air rights, see Welch v. Swasey, supra, but also\nin approving those prohibiting both the subjacent, see\nGoldblatt v. Hempstead, 369 U. S. 590 (1962), and the lateral,\nsee Gorieb v. Fox, 274 U. S. 603 (1927), development of\n\nBoth the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state\nthat appellants are not seeking review of the New York courts\xe2\x80\x99 determination that\nPenn Central could earn a \xe2\x80\x9creasonable return\xe2\x80\x9d on its investment in the Terminal.\nAlthough appellants suggest in their reply brief that the factual conclusions of the\nNew York courts cannot be sustained unless we accept the rationale of the New\nYork Court of Appeals, see Reply Brief for Appellants 12 n. 15, it is apparent that\nthe findings concerning Penn Central\xe2\x80\x99s ability to profit from the Terminal depend\nin no way on the Court of Appeals\xe2\x80\x99 rationale.\n14\n\n511\n\n\x0cparticular parcels.15 \xe2\x80\x9cTaking\xe2\x80\x9d jurisprudence does not divide\na single parcel into discrete segments and attempt to\ndetermine whether rights in a particular segment have been\nentirely abrogated. In deciding whether a particular\ngovernmental action has effected a taking, this Court\nfocuses rather both on the character of the action and on\nthe nature and extent of the interference with rights in the\nparcel as a whole\xe2\x80\x93here, the city tax block designated as the\n\xe2\x80\x9clandmark site.\xe2\x80\x9d\nSecondly, appellants, focusing on the character and impact\nof the New York City law, argue that it effects a \xe2\x80\x9ctaking\xe2\x80\x9d\nbecause its operation has significantly diminished the value\nof the Terminal site. Appellants concede that the decisions\nsustaining other land-use regulations, which, like the New\nYork City law, are reasonably related to the promotion of\nthe general welfare, uniformly reject the proposition that\ndiminution in property value, standing alone, can establish\na \xe2\x80\x9ctaking,\xe2\x80\x9d see Euclid v. Ambler Realty Co., 272 U. S. 365\n(1926) (75% diminution in value caused by zoning law);\nHadacheck v. Sebastian, 239 U. S. 394 (1915) (87 1/2%\ndiminution in value); cf. Eastlake v. Forest City Enterprises,\nInc., 426 U. S., at 674 n. 8, and that the \xe2\x80\x9ctaking\xe2\x80\x9d issue in\nthese contexts is resolved by focusing on the uses the\nregulations permit. See also Goldblatt v. Hempstead, supra.\nAppellants, moreover, also do not dispute that a showing\nof diminution in property value would not establish a\n\xe2\x80\x9ctaking\xe2\x80\x9d if the restriction had been imposed as a result of\nhistoric-district legislation, see generally Maher v. New\nOrleans, 516 F. 2d 1051 (CA5 1975), but appellants argue\nThese cases dispose of any contention that might be based on Pennsylvania Coal\nCo. v. Mahon, 260 U. S. 393 (1922), that full use of air rights is so bound up with the\ninvestment-backed expectations of appellants that governmental deprivation of\nthese rights invariably\xe2\x80\x93i. e., irrespective of the impact of the restriction on the value\nof the parcel as a whole\xe2\x80\x93constitutes a \xe2\x80\x9ctaking.\xe2\x80\x9d Similarly, Welch, Goldblatt, and\nGorieb illustrate the fallacy of appellants\xe2\x80\x99 related contention that a \xe2\x80\x9ctaking\xe2\x80\x9d must be\nfound to have occurred whenever the land-use restriction may be characterized as\nimposing a \xe2\x80\x9cservitude\xe2\x80\x9d on the claimant\xe2\x80\x99s parcel.\n15\n\n512\n\n\x0cthat New York City\xe2\x80\x99s regulation of individual landmarks is\nfundamentally different from zoning or from historicdistrict legislation because the controls imposed by New\nYork City\xe2\x80\x99s law apply only to individuals who own selected\nproperties.\nStated baldly, appellants\xe2\x80\x99 position appears to be that the\nonly means of ensuring that selected owners are not singled\nout to endure financial hardship for no reason is to hold\nthat any restriction imposed on individual landmarks\npursuant to the New York City scheme is a \xe2\x80\x9ctaking\xe2\x80\x9d\nrequiring the payment of \xe2\x80\x9cjust compensation.\xe2\x80\x9d Agreement\nwith this argument would, of course, invalidate not just\nNew York City\xe2\x80\x99s law, but all comparable landmark\nlegislation in the Nation. We find no merit in it.\n\xe2\x80\xa6.\nNext, appellants observe that New York City\xe2\x80\x99s law differs\nfrom zoning laws and historic-district ordinances in that the\nLandmarks Law does not impose identical or similar\nrestrictions on all structures located in particular physical\ncommunities. It follows, they argue, that New York City\xe2\x80\x99s\nlaw is inherently incapable of producing the fair and\nequitable distribution of benefits and burdens of\ngovernmental action which is characteristic of zoning laws\nand historic-district legislation and which they maintain is a\nconstitutional requirement if \xe2\x80\x9cjust compensation\xe2\x80\x9d is not to\nbe afforded. It is, of course, true that the Landmarks Law\nhas a more severe impact on some landowners than on\nothers, but that in itself does not mean that the law effects\na \xe2\x80\x9ctaking.\xe2\x80\x9d Legislation designed to promote the general\nwelfare commonly burdens some more than others. The\nowners of the brickyard in Hadacheck, of the cedar trees in\nMiller v. Schoene, and of the gravel and sand mine in Goldblatt\nv. Hempstead, were uniquely burdened by the legislation\n\n513\n\n\x0csustained in those cases.16 Similarly, zoning laws often\naffect some property owners more severely than others but\nhave not been held to be invalid on that account. For\nexample, the property owner in Euclid who wished to use\nits property for industrial purposes was affected far more\nseverely by the ordinance than its neighbors who wished to\nuse their land for residences.\nIn any event, appellants\xe2\x80\x99 repeated suggestions that they are\nsolely burdened and unbenefited is factually inaccurate.\nThis contention overlooks the fact that the New York City\nlaw applies to vast numbers of structures in the city in\naddition to the Terminal\xe2\x80\x93all the structures contained in the\n31 historic districts and over 400 individual landmarks,\nmany of which are close to the Terminal.17 Unless we are to\nreject the judgment of the New York City Council that the\npreservation of landmarks benefits all New York citizens\nand all structures, both economically and by improving the\nquality of life in the city as a whole\xe2\x80\x93which we are unwilling\nAppellants attempt to distinguish these cases on the ground that, in each,\ngovernment was prohibiting a \xe2\x80\x9cnoxious\xe2\x80\x9d use of land and that in the present case, in\ncontrast, appellants\xe2\x80\x99 proposed construction above the Terminal would be\nbeneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were\nperfectly lawful in themselves. They involved no \xe2\x80\x9cblameworthiness, \xe2\x80\xa6 moral\nwrongdoing or conscious act of dangerous risk-taking which induce[d society] to\nshift the cost to a pa[rt]icular individual.\xe2\x80\x9d Sax, Takings and the Police Power, 74\nYale L. J. 36, 50 (1964). These cases are better understood as resting not on any\nsupposed \xe2\x80\x9cnoxious\xe2\x80\x9d quality of the prohibited uses but rather on the ground that\nthe restrictions were reasonably related to the implementation of a policy\xe2\x80\x93not\nunlike historic preservation\xe2\x80\x93expected to produce a widespread public benefit and\napplicable to all similarly situated property.\n16\n\nNor, correlatively, can it be asserted that the destruction or fundamental alteration\nof a historic landmark is not harmful. The suggestion that the beneficial quality of\nappellants\xe2\x80\x99 proposed construction is established by the fact that the construction\nwould have been consistent with applicable zoning laws ignores the development in\nsensibilities and ideals reflected in landmark legislation like New York City\xe2\x80\x99s. Cf.\nWest Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S. E. 881, 885-886,\nappeal dismissed for want of a substantial federal question, 302 U. S. 658 (1937).\nThere are some 53 designated landmarks and 5 historic districts or scenic\nlandmarks in Manhattan between 14th and 59th Streets. See Landmarks\nPreservation Commission, Landmarks and Historic Districts (1977).\n17\n\n514\n\n\x0cto do\xe2\x80\x93we cannot conclude that the owners of the Terminal\nhave in no sense been benefited by the Landmarks Law.\nDoubtless appellants believe they are more burdened than\nbenefited by the law, but that must have been true, too, of\nthe property owners in Miller, Hadacheck, Euclid, and\nGoldblatt.18\nAppellants\xe2\x80\x99 final broad-based attack would have us treat the\nlaw as an instance, like that in United States v. Causby, in\nwhich government, acting in an enterprise capacity, has\nappropriated part of their property for some strictly\ngovernmental purpose. Apart from the fact that Causby was\na case of invasion of airspace that destroyed the use of the\nfarm beneath and this New York City law has in nowise\nimpaired the present use of the Terminal, the Landmarks\nLaw neither exploits appellants\xe2\x80\x99 parcel for city purposes nor\nfacilitates nor arises from any entrepreneurial operations of\nthe city. The situation is not remotely like that in Causby\nwhere the airspace above the property was in the flight\npattern for military aircraft. The Landmarks Law\xe2\x80\x99s effect is\nsimply to prohibit appellants or anyone else from\noccupying portions of the airspace above the Terminal,\nwhile permitting appellants to use the remainder of the\nparcel in a gainful fashion. This is no more an\nappropriation of property by government for its own uses\nthan is a zoning law prohibiting, for \xe2\x80\x9caesthetic\xe2\x80\x9d reasons,\ntwo or more adult theaters within a specified area, see\nYoung v. American Mini Theatres, Inc., 427 U. S. 50 (1976), or a\nsafety regulation prohibiting excavations below a certain\nlevel. See Goldblatt v. Hempstead.\nC\n\nIt is, of course, true that the fact the duties imposed by zoning and historicdistrict legislation apply throughout particular physical communities provides\nassurances against arbitrariness, but the applicability of the Landmarks Law to a\nlarge number of parcels in the city, in our view, provides comparable, if not\nidentical, assurances.\n18\n\n515\n\n\x0cRejection of appellants\xe2\x80\x99 broad arguments is not, however,\nthe end of our inquiry, for all we thus far have established\nis that the New York City law is not rendered invalid by its\nfailure to provide \xe2\x80\x9cjust compensation\xe2\x80\x9d whenever a\nlandmark owner is restricted in the exploitation of property\ninterests, such as air rights, to a greater extent than\nprovided for under applicable zoning laws. We now must\nconsider whether the interference with appellants\xe2\x80\x99 property\nis of such a magnitude that \xe2\x80\x9cthere must be an exercise of\neminent domain and compensation to sustain [it].\xe2\x80\x9d\nPennsylvania Coal Co. v. Mahon, 260 U. S., at 413. That\ninquiry may be narrowed to the question of the severity of\nthe impact of the law on appellants\xe2\x80\x99 parcel, and its\nresolution in turn requires a careful assessment of the\nimpact of the regulation on the Terminal site.\nUnlike the governmental acts in Goldblatt, Miller, Causby,\nGriggs, and Hadacheck, the New York City law does not\ninterfere in any way with the present uses of the Terminal.\nIts designation as a landmark not only permits but\ncontemplates that appellants may continue to use the\nproperty precisely as it has been used for the past 65 years:\nas a railroad terminal containing office space and\nconcessions. So the law does not interfere with what must\nbe regarded as Penn Central\xe2\x80\x99s primary expectation\nconcerning the use of the parcel. More importantly, on this\nrecord, we must regard the New York City law as\npermitting Penn Central not only to profit from the\nTerminal but also to obtain a \xe2\x80\x9creasonable return\xe2\x80\x9d on its\ninvestment.\nAppellants, moreover, exaggerate the effect of\ntheir ability to make use of the air rights\nTerminal in two respects.19 First, it simply\nmaintained, on this record, that appellants\n\nthe law on\nabove the\ncannot be\nhave been\n\nAppellants, of course, argue at length that the transferable development rights,\nwhile valuable, do not constitute \xe2\x80\x9cjust compensation.\xe2\x80\x9d Brief for Appellants 36-43.\n19\n\n516\n\n\x0cprohibited from occupying any portion of the airspace\nabove the Terminal. While the Commission\xe2\x80\x99s actions in\ndenying applications to construct an office building in\nexcess of 50 stories above the Terminal may indicate that it\nwill refuse to issue a certificate of appropriateness for any\ncomparably sized structure, nothing the Commission has\nsaid or done suggests an intention to prohibit any\nconstruction above the Terminal. The Commission\xe2\x80\x99s report\nemphasized that whether any construction would be\nallowed depended upon whether the proposed addition\n\xe2\x80\x9cwould harmonize in scale, material, and character with\n[the Terminal].\xe2\x80\x9d Record 2251. Since appellants have not\nsought approval for the construction of a smaller structure,\nwe do not know that appellants will be denied any use of\nany portion of the airspace above the Terminal.20\nSecond, to the extent appellants have been denied the right\nto build above the Terminal, it is not literally accurate to say\nthat they have been denied all use of even those preexisting air rights. Their ability to use these rights has not\nbeen abrogated; they are made transferable to at least eight\nparcels in the vicinity of the Terminal, one or two of which\nhave been found suitable for the construction of new office\nbuildings. Although appellants and others have argued that\nNew York City\xe2\x80\x99s transferable development-rights program\nis far from ideal,21 the New York courts here supportably\nfound that, at least in the case of the Terminal, the rights\nafforded are valuable. While these rights may well not have\nconstituted \xe2\x80\x9cjust compensation\xe2\x80\x9d if a \xe2\x80\x9ctaking\xe2\x80\x9d had occurred,\nthe rights nevertheless undoubtedly mitigate whatever\nfinancial burdens the law has imposed on appellants and,\nfor that reason, are to be taken into account in considering\nCounsel for appellants admitted at oral argument that the Commission has not\nsuggested that it would not, for example, approve a 20-story office tower along the\nlines of that which was part of the original plan for the Terminal. See Tr. of Oral\nArg. 19.\n20\n\n21\n\nSee Costonis, supra n. 2, at 585-589.\n\n517\n\n\x0cthe impact of regulation. Cf. Goldblatt v. Hempstead, 369 U.\nS., at 594 n. 3.\nOn this record, we conclude that the application of New\nYork City\xe2\x80\x99s Landmarks Law has not effected a \xe2\x80\x9ctaking\xe2\x80\x9d of\nappellants\xe2\x80\x99 property. The restrictions imposed are\nsubstantially related to the promotion of the general\nwelfare and not only permit reasonable beneficial use of\nthe landmark site but also afford appellants opportunities\nfurther to enhance not only the Terminal site proper but\nalso other properties.22\nAffirmed.\n\nWe emphasize that our holding today is on the present record, which in turn is\nbased on Penn Central\xe2\x80\x99s present ability to use the Terminal for its intended\npurposes and in a gainful fashion. The city conceded at oral argument that if\nappellants can demonstrate at some point in the future that circumstances have so\nchanged that the Terminal ceases to be \xe2\x80\x9ceconomically viable,\xe2\x80\x9d appellants may\nobtain relief. See Tr. of Oral Arg. 42-43.\n22\n\n518\n\n\x0c4.3.2. Per se Takings\nLucas v. South Carolina Coastal\n505 U.S. 1003 (1992)\nA. Camden Lewis argued the cause for petitioner. With him\non the briefs were Gerald M. Finkel and David J. Bederman.\nC. C. Harness III argued the cause for respondent. With him\non the brief were T. Travis Medlock, Attorney General of\nSouth Carolina, Kenneth P. Woodington, Senior Assistant\nAttorney General, and Richard J. Lazarus.\nJUSTICE SCALIA, delivered the opinion of the Court.\nIn 1986, petitioner David H. Lucas paid $975,000 for two\nresidential lots on the Isle of Palms in Charleston County,\nSouth Carolina, on which he intended to build single-family\nhomes. In 1988, however, the South Carolina Legislature\nenacted the Beachfront Management Act, S. C. Code Ann.\n\xc2\xa7 48-39-250 et seq. (Supp. 1990), which had the direct effect\nof barring petitioner from erecting any permanent habitable\nstructures on his two parcels. See \xc2\xa7 48-39-290(A). A state\ntrial court found that this prohibition rendered Lucas\xe2\x80\x99s\nparcels \xe2\x80\x9cvalueless.\xe2\x80\x9d App. to Pet. for Cert. 37. This case\nrequires us to decide whether the Act\xe2\x80\x99s dramatic effect on\nthe economic value of Lucas\xe2\x80\x99s lots accomplished a taking\nof private property under the Fifth and Fourteenth\nAmendments requiring the payment of \xe2\x80\x9cjust\ncompensation.\xe2\x80\x9d U. S. Const., Amdt. 5.\nI\nA\nSouth Carolina\xe2\x80\x99s expressed interest in intensively managing\ndevelopment activities in the so-called \xe2\x80\x9ccoastal zone\xe2\x80\x9d dates\nfrom 1977 when, in the aftermath of Congress\xe2\x80\x99s passage of\nthe federal Coastal Zone Management Act of 1972, 86 Stat.\n1280, as amended, 16 U. S. C. \xc2\xa7 1451 et seq., the legislature\nenacted a Coastal Zone Management Act of its own. See S.\nC. Code Ann. \xc2\xa7 48-39-10 et seq. (1987). In its original form,\n\n519\n\n\x0cthe South Carolina Act required owners of coastal zone\nland that qualified as a \xe2\x80\x9ccritical area\xe2\x80\x9d (defined in the\nlegislation to include beaches and immediately adjacent\nsand dunes, \xc2\xa7 48-39-10(J)) to obtain a permit from the\nnewly created South Carolina Coastal Council (Council)\n(respondent here) prior to committing the land to a \xe2\x80\x9cuse\nother than the use the critical area was devoted to on\n[September 28, 1977].\xe2\x80\x9d \xc2\xa7 48-39-130(A).\nIn the late 1970\xe2\x80\x99s, Lucas and others began extensive\nresidential development of the Isle of Palms, a barrier\nisland situated eastward of the city of Charleston. Toward\nthe close of the development cycle for one residential\nsubdivision known as \xe2\x80\x9cBeachwood East,\xe2\x80\x9d Lucas in 1986\npurchased the two lots at issue in this litigation for his own\naccount. No portion of the lots, which were located\napproximately 300 feet from the beach, qualified as a\n\xe2\x80\x9ccritical area\xe2\x80\x9d under the 1977 Act; accordingly, at the time\nLucas acquired these parcels, he was not legally obliged to\nobtain a permit from the Council in advance of any\ndevelopment activity. His intention with respect to the lots\nwas to do what the owners of the immediately adjacent\nparcels had already done: erect singlefamily residences. He\ncommissioned architectural drawings for this purpose.\nThe Beachfront Management Act brought Lucas\xe2\x80\x99s plans to\nan abrupt end. Under that 1988 legislation, the Council was\ndirected to establish a \xe2\x80\x9cbaseline\xe2\x80\x9d connecting the\nlandwardmost \xe2\x80\x9cpoint[s] of erosion \xe2\x80\xa6 during the past forty\nyears\xe2\x80\x9d in the region of the Isle of Palms that includes\nLucas\xe2\x80\x99s lots. S. C. Code Ann. \xc2\xa7 48-39-280(A)(2) (Supp.\n1988).1 In action not challenged here, the Council fixed this\nThis specialized historical method of determining the baseline applied because the\nBeachwood East subdivision is located adjacent to a so-called \xe2\x80\x9cinlet erosion zone\xe2\x80\x9d\n(defined in the Act to mean \xe2\x80\x9ca segment of shoreline along or adjacent to tidal inlets\nwhich are directly influenced by the inlet and its associated shoals,\xe2\x80\x9dS. C. Code Ann.\n\xc2\xa7 48-39-270(7) (Supp.1988)) that is\xe2\x80\x9dnot stabilized by jetties,terminal groins, or other\nstructures,\xe2\x80\x9d \xc2\xa7 48-39-280(A)(2).For areas other than these unstabilized inlet erosion\n1\n\n520\n\n\x0cbaseline landward of Lucas\xe2\x80\x99s parcels. That was significant,\nfor under the Act construction of occupable\nimprovements2 was flatly prohibited seaward of a line\ndrawn 20 feet landward of, and parallel to, the baseline. \xc2\xa7\n48-39-290(A). The Act provided no exceptions.\nB\nLucas promptly filed suit in the South Carolina Court of\nCommon Pleas, contending that the Beachfront\nManagement Act\xe2\x80\x99s construction bar effected a taking of his\nproperty without just compensation. Lucas did not take\nissue with the validity of the Act as a lawful exercise of\nSouth Carolina\xe2\x80\x99s police power, but contended that the Act\xe2\x80\x99s\ncomplete extinguishment of his property\xe2\x80\x99s value entitled\nhim to compensation regardless of whether the legislature\nhad acted in furtherance of legitimate police power\nobjectives. Following a bench trial, the court agreed.\nAmong its factual determinations was the finding that \xe2\x80\x9cat\nthe time Lucas purchased the two lots, both were zoned for\nsingle-family residential construction and \xe2\x80\xa6 there were no\nrestrictions imposed upon such use of the property by\neither the State of South Carolina, the County of\nCharleston, or the Town of the Isle of Palms.\xe2\x80\x9d App. to Pet.\nfor Cert. 36. The trial court further found that the\nBeachfront Management Act decreed a permanent ban on\nconstruction insofar as Lucas\xe2\x80\x99s lots were concerned, and\nthat this prohibition \xe2\x80\x9cdeprive[d] Lucas of any reasonable\neconomic use of the lots, \xe2\x80\xa6 eliminated the unrestricted\nright of use, and render[ed] them valueless.\xe2\x80\x9d Id., at 37. The\ncourt thus concluded that Lucas\xe2\x80\x99s properties had been\n\xe2\x80\x9ctaken\xe2\x80\x9d by operation of the Act, and it ordered respondent\nzones, the statute directs that the baseline be established along \xe2\x80\x9cthe crest of an ideal\nprimary oceanfront sand dune.\xe2\x80\x9d\xc2\xa7 48-39-280(A)(1).\nThe Act did allow the construction of certain nonhabitable improvements, e. g.,\n\xe2\x80\x9cwooden walkways no larger in width than six feet,\xe2\x80\x9d and \xe2\x80\x9csmall wooden decks no\nlarger than one hundred forty-four square feet.\xe2\x80\x9d \xc2\xa7\xc2\xa7 48-39-290(A)(1) and (2).\n2\n\n521\n\n\x0cto pay \xe2\x80\x9cjust compensation\xe2\x80\x9d in the amount of $1,232,387.50.\nId., at 40.\nThe Supreme Court of South Carolina reversed. It found\ndispositive what it described as Lucas\xe2\x80\x99s concession \xe2\x80\x9cthat\nthe Beachfront Management Act [was] properly and validly\ndesigned to preserve \xe2\x80\xa6 South Carolina\xe2\x80\x99s beaches.\xe2\x80\x9d 304 S.\nC. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an attack\non the validity of the statute as such, the court believed\nitself bound to accept the \xe2\x80\x9cuncontested \xe2\x80\xa6 findings\xe2\x80\x9d of the\nSouth Carolina Legislature that new construction in the\ncoastal zone\xe2\x80\x93such as petitioner intended\xe2\x80\x93threatened this\npublic resource. Id., at 383, 404 S. E. 2d, at 898. The court\nruled that when a regulation respecting the use of property\nis designed \xe2\x80\x9cto prevent serious public harm,\xe2\x80\x9d id., at 383,\n404 S. E. 2d, at 899 (citing, inter alia, Mugler v. Kansas, 123 U.\nS. 623 (1887)), no compensation is owing under the\nTakings Clause regardless of the regulation\xe2\x80\x99s effect on the\nproperty\xe2\x80\x99s value.\nTwo justices dissented. They acknowledged that our Mugler\nline of cases recognizes governmental power to prohibit\n\xe2\x80\x9cnoxious\xe2\x80\x9d uses of property\xe2\x80\x93i. e., uses of property akin to\n\xe2\x80\x9cpublic nuisances\xe2\x80\x9d\xe2\x80\x93without having to pay compensation.\nBut they would not have characterized the Beachfront\nManagement Act\xe2\x80\x99s \xe2\x80\x9dprimary purpose [as] the prevention of a\nnuisance.\xe2\x80\x9d 304 S. C., at 395, 404 S. E. 2d, at 906 (Harwell,\nJ., dissenting). To the dissenters, the chief purposes of the\nlegislation, among them the promotion of tourism and the\ncreation of a \xe2\x80\x9chabitat for indigenous flora and fauna,\xe2\x80\x9d\ncould not fairly be compared to nuisance abatement. Id., at\n396, 404 S. E. 2d, at 906. As a consequence, they would\nhave affirmed the trial court\xe2\x80\x99s conclusion that the Act\xe2\x80\x99s\nobliteration of the value of petitioner\xe2\x80\x99s lots accomplished a\ntaking.\nWe granted certiorari. 502 U. S. 966 (1991).\n\xe2\x80\xa6.\n\n522\n\n\x0cIII\nA\nPrior to Justice Holmes\xe2\x80\x99s exposition in Pennsylvania Coal Co.\nv. Mahon, 260 U. S. 393 (1922), it was generally thought that\nthe Takings Clause reached only a \xe2\x80\x9cdirect appropriation\xe2\x80\x9d of\nproperty, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the\nfunctional equivalent of a \xe2\x80\x9cpractical ouster of [the owner\xe2\x80\x99s]\npossession,\xe2\x80\x9d Transportation Co. v. Chicago, 99 U. S. 635, 642\n(1879). See also Gibson v. United States, 166 U. S. 269, 275276 (1897). Justice Holmes recognized in Mahon, however,\nthat if the protection against physical appropriations of\nprivate property was to be meaningfully enforced, the\ngovernment\xe2\x80\x99s power to redefine the range of interests\nincluded in the ownership of property was necessarily\nconstrained by constitutional limits. 260 U. S., at 414-415.\nIf, instead, the uses of private property were subject to\nunbridled, uncompensated qualification under the police\npower, \xe2\x80\x9cthe natural tendency of human nature [would be]\nto extend the qualification more and more until at last\nprivate property disappear[ed].\xe2\x80\x9d Id., at 415. These\nconsiderations gave birth in that case to the oft-cited\nmaxim that, \xe2\x80\x9cwhile property may be regulated to a certain\nextent, if regulation goes too far it will be recognized as a\ntaking.\xe2\x80\x9d Ibid.\nNevertheless, our decision in Mahon offered little insight\ninto when, and under what circumstances, a given\nregulation would be seen as going \xe2\x80\x9ctoo far\xe2\x80\x9d for purposes of\nthe Fifth Amendment. In 70-odd years of succeeding\n\xe2\x80\x9cregulatory takings\xe2\x80\x9d jurisprudence, we have generally\neschewed any \xe2\x80\x9c\xe2\x80\x98set formula\xe2\x80\x99 \xe2\x80\x9d for determining how far is\ntoo far, preferring to \xe2\x80\x9cengag[e] in \xe2\x80\xa6 essentially ad hoc,\nfactual inquiries.\xe2\x80\x9d Penn Central Transportation Co. v. New York\nCity, 438 U. S. 104, 124 (1978) (quoting Goldblatt v.\nHempstead, 369 U. S. 590, 594 (1962)). See Epstein, Takings:\nDescent and Resurrection, 1987 S. Ct. Rev. 1, 4. We have,\nhowever, described at least two discrete categories of\n\n523\n\n\x0cregulatory action as compensable without case-specific\ninquiry into the public interest advanced in support of the\nrestraint. The first encompasses regulations that compel the\nproperty owner to suffer a physical \xe2\x80\x9cinvasion\xe2\x80\x9d of his\nproperty. In general (at least with regard to permanent\ninvasions), no matter how minute the intrusion, and no\nmatter how weighty the public purpose behind it, we have\nrequired compensation. For example, in Loretto v.\nTeleprompter Manhattan CATV Corp., 458 U. S. 419 (1982),\nwe determined that New York\xe2\x80\x99s law requiring landlords to\nallow television cable companies to emplace cable facilities\nin their apartment buildings constituted a taking, id., at 435440, even though the facilities occupied at most only 1 12\ncubic feet of the landlords\xe2\x80\x99 property, see id., at 438, n. 16.\nSee also United States v. Causby, 328 U. S. 256, 265, and n. 10\n(1946) (physical invasions of airspace); cf. Kaiser Aetna v.\nUnited States, 444 U. S. 164 (1979) (imposition of\nnavigational servitude upon private marina).\nThe second situation in which we have found categorical\ntreatment appropriate is where regulation denies all\neconomically beneficial or productive use of land. See\nAgins, 447 U. S., at 260; see also Nollan v. California Coastal\nComm\xe2\x80\x99n, 483 U. S. 825, 834 (1987); Keystone Bituminous Coal\nAssn. v. DeBenedictis, 480 U. S. 470, 495 (1987); Hodel v.\nVirginia Surface Mining & Reclamation Assn., Inc., 452 U. S.\n264, 295-296 (1981).3 As we have said on numerous\n\nWe will not attempt to respond to all of Justice Blackmun\xe2\x80\x99s mistaken citation of\ncase precedent. Characteristic of its nature is his assertion that the cases we discuss\nhere stand merely for the proposition \xe2\x80\x9cthat proof that a regulation does not deny an\nowner economic use of his property is sufficient to defeat a facial takings\nchallenge\xe2\x80\x9d and not for the point that \xe2\x80\x9ddenial of such use is sufficient to establish a\ntakings claim regardless of any other consideration.\xe2\x80\x9d Post, at 1050, n. 11. The cases\nsay, repeatedly and unmistakably, that \xe2\x80\x9d\xe2\x80\x99[t]he test to be applied in considering [a]\nfacial [takings] challenge is fairly straightforward. A statute regulating the uses that\ncan be made of property effects a taking if it \xe2\x80\x9cdenies an owner economically viable use of his\nland. \xe2\x80\x9d\xe2\x80\x99 \xe2\x80\x9d Keystone, 480 U. S., at 495 (quoting Hodel, 452 U. S., at 295-296(quoting\nAgins, 447 U. S., at 260)) (emphasis added).\n3\n\n524\n\n\x0coccasions, the Fifth Amendment is violated when land-use\nregulation \xe2\x80\x9cdoes not substantially advance legitimate state\ninterests or denies an owner economically viable use of his land. \xe2\x80\x9d\nAgins, supra, at 260 (citations omitted) (emphasis added).4\nJustice Blackmun describes that rule (which we do not invent but merely apply\ntoday) as \xe2\x80\x9calter[ing] the long-settled rules of review\xe2\x80\x9d by foisting on the State \xe2\x80\x9cthe\nburden of showing [its]regulation is not a taking.\xe2\x80\x9d Post, at 1045, 1046. This is of\ncourse wrong. Lucas had to do more than simply file a lawsuit to establish his\nconstitutional entitlement; he had to show that the Beachfront Management Act\ndenied him economically beneficial use of his land. Our analysis presumes the\nunconstitutionality of state land-use regulation only in the sense that any rule with\nexceptions presumes the invalidity of a law that violates it\xe2\x80\x93for example, the rule\ngenerally prohibiting content-based restrictions on speech. See, e. g., Simon &\nSchuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991) (\xe2\x80\x9cA\nstatute is presumptively inconsistent with the First Amendment if it imposes a\nfinancial burden on speakers because of the content of their speech\xe2\x80\x9d). Justice\nBlackmun\xe2\x80\x99s real quarrel is with the substantive standard of liability we apply in this\ncase, a longestablished standard we see no need to repudiate.\nRegrettably, the rhetorical force of our \xe2\x80\x9cdeprivation of all economically feasible\nuse\xe2\x80\x9d rule is greater than its precision, since the rule does not make clear the\n\xe2\x80\x9cproperty interest\xe2\x80\x9d against which the loss of value is to be measured. When, for\nexample, a regulation requires a developer to leave 90% of a rural tract in its natural\nstate, it is unclear whether we would analyze the situation as one in which the\nowner has been deprived of all economically beneficial use of the burdened portion\nof the tract, or as one in which the owner has suffered a mere diminution in value\nof the tract as a whole. (For an extreme\xe2\x80\x93and, we think, unsupportable\xe2\x80\x93view of the\nrelevant calculus, see Penn Central Transportation Co. v. New York City, 42 N. Y. 2d\n324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977), aff\xe2\x80\x99d, 438 U. S. 104 (1978),\nwhere the state court examined the diminution in a particular parcel\xe2\x80\x99s value\nproduced by a municipal ordinance in light of total value of the takings claimant\xe2\x80\x99s\nother holdings in the vicinity.) Unsurprisingly, this uncertainty regarding the\ncomposition of the denominator in our \xe2\x80\x9cdeprivation\xe2\x80\x9d fraction has produced\ninconsistent pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon,\n260 U. S. 393, 414 (1922) (law restricting subsurface extraction of coal held to\neffect a taking), with Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 497502 (1987) (nearly identical law held not to effect a taking); see also id., at 515-520\n(Rehnquist, C. J., dissenting); Rose, Mahon Reconstructed: Why the Takings Issue is\nStill a Muddle, 57 S. Cal. L. Rev. 561, 566-569 (1984). The answer to this difficult\nquestion may lie in how the owner\xe2\x80\x99s reasonable expectations have been shaped by\nthe State\xe2\x80\x99s law of property\xe2\x80\x93i. e., whether and to what degree the State\xe2\x80\x99s law has\naccorded legal recognition and protection to the particular interest in land with\nrespect to which the takings claimant alleges a diminution in (or elimination of)\nvalue. In any event, we avoid this difficulty in the present case, since the \xe2\x80\x9cinterest in\nland\xe2\x80\x9d that Lucas has pleaded (a fee simple interest) is an estate with a rich tradition\nof protection at common law, and since the South Carolina Court of Common\n4\n\n525\n\n\x0cWe have never set forth the justification for this rule.\nPerhaps it is simply, as Justice Brennan suggested, that total\ndeprivation of beneficial use is, from the landowner\xe2\x80\x99s point\nof view, the equivalent of a physical appropriation. See San\nDiego Gas & Electric Co. v. San Diego, 450 U. S., at 652\n(dissenting opinion). \xe2\x80\x9c[F]or what is the land but the profits\nthereof[?]\xe2\x80\x9d 1 E. Coke, Institutes, ch. 1, \xc2\xa7 1 (1st Am. ed.\n1812). Surely, at least, in the extraordinary circumstance\nwhen no productive or economically beneficial use of land\nis permitted, it is less realistic to indulge our usual\nassumption that the legislature is simply \xe2\x80\x9cadjusting the\nbenefits and burdens of economic life,\xe2\x80\x9d Penn Central\nTransportation Co., 438 U. S., at 124, in a manner that secures\nan \xe2\x80\x9caverage reciprocity of advantage\xe2\x80\x9d to everyone\nconcerned, Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415.\nAnd the functional basis for permitting the government, by\nregulation, to affect property values without\ncompensation\xe2\x80\x93that \xe2\x80\x9cGovernment hardly could go on if to\nsome extent values incident to property could not be\ndiminished without paying for every such change in the\ngeneral law,\xe2\x80\x9d id., at 413\xe2\x80\x93does not apply to the relatively rare\nsituations where the government has deprived a landowner\nof all economically beneficial uses.\nOn the other side of the balance, affirmatively supporting a\ncompensation requirement, is the fact that regulations that\nleave the owner of land without economically beneficial or\nproductive options for its use\xe2\x80\x93typically, as here, by\nrequiring land to be left substantially in its natural state\xe2\x80\x93\ncarry with them a heightened risk that private property is\nbeing pressed into some form of public service under the\nguise of mitigating serious public harm. See, e. g., Annicelli v.\nSouth Kingstown, 463 A. 2d 133, 140-141 (R. I. 1983)\n(prohibition on construction adjacent to beach justified on\ntwin grounds of safety and \xe2\x80\x9cconservation of open space\xe2\x80\x9d);\nPleas found that the Beachfront Management Act left each of Lucas\xe2\x80\x99s beachfront\nlots without economic value.\n\n526\n\n\x0cMorris County Land Improvement Co. v. Parsippany-Troy Hills\nTownship, 40 N. J.539, 552-553, 193 A. 2d 232, 240 (1963)\n(prohibition on filling marshlands imposed in order to\npreserve region as water detention basin and create wildlife\nrefuge). As Justice Brennan explained: \xe2\x80\x9cFrom the\ngovernment\xe2\x80\x99s point of view, the benefits flowing to the\npublic from preservation of open space through regulation\nmay be equally great as from creating a wildlife refuge\nthrough formal condemnation or increasing electricity\nproduction through a dam project that floods private\nproperty.\xe2\x80\x9d San Diego Gas & Elec. Co., supra, at 652\n(dissenting opinion). The many statutes on the books, both\nstate and federal, that provide for the use of eminent\ndomain to impose servitudes on private scenic lands\npreventing developmental uses, or to acquire such lands\naltogether, suggest the practical equivalence in this setting\nof negative regulation and appropriation. See, e. g., 16 U. S.\nC. \xc2\xa7 410ff-1(a) (authorizing acquisition of \xe2\x80\x9clands, waters, or\ninterests [within Channel Islands National Park] (including\nbut not limited to scenic easements)\xe2\x80\x9d); \xc2\xa7 460aa-2(a)\n(authorizing acquisition of \xe2\x80\x9cany lands, or lesser interests\ntherein, including mineral interests and scenic easements\xe2\x80\x9d\nwithin Sawtooth National Recreation Area); \xc2\xa7\xc2\xa7 3921-3923\n(authorizing acquisition of wetlands); N. C. Gen. Stat. \xc2\xa7\n113A-38 (1990) (authorizing acquisition of, inter alia,\n\xe2\x80\x9c\xe2\x80\x98scenic easements\xe2\x80\x99 \xe2\x80\x9d within the North Carolina natural and\nscenic rivers system); Tenn. Code Ann. \xc2\xa7\xc2\xa7 11-15-101 to\nXX-XX-XXX (1987) (authorizing acquisition of\n\xe2\x80\x9cprotective easements\xe2\x80\x9d and other rights in real property\nadjacent to State\xe2\x80\x99s historic, architectural, archaeological, or\ncultural resources).\nWe think, in short, that there are good reasons for our\nfrequently expressed belief that when the owner of real\nproperty has been called upon to sacrifice all economically\nbeneficial uses in the name of the common good, that is, to\n\n527\n\n\x0cleave his property economically idle, he has suffered a\ntaking.5\nB\nThe trial court found Lucas\xe2\x80\x99s two beachfront lots to have\nbeen rendered valueless by respondent\xe2\x80\x99s enforcement of\nthe coastal-zone construction ban.6 Under Lucas\xe2\x80\x99s theory\nof the case, which rested upon our \xe2\x80\x9cno economically viable\nuse\xe2\x80\x9d statements, that finding entitled him to compensation.\nLucas believed it unnecessary to take issue with either the\npurposes behind the Beachfront Management Act, or the\nJustice Stevens criticizes the \xe2\x80\x9cdeprivation of all economically beneficial use\xe2\x80\x9d rule\nas \xe2\x80\x9cwholly arbitrary,\xe2\x80\x9d in that \xe2\x80\x9c[the] landowner whose property is diminished in\nvalue 95% recovers nothing,\xe2\x80\x9d while the landowner who suffers a complete\nelimination of value \xe2\x80\x9crecovers the land\xe2\x80\x99s full value.\xe2\x80\x9d Post, at 1064. This analysis errs\nin its assumption that the landowner whose deprivation is one step short of\ncomplete is not entitled to compensation. Such an owner might not be able to\nclaim the benefit of our categorical formulation, but, as we have acknowledged\ntime and again, \xe2\x80\x9c[t]he economic impact of the regulation on the claimant and \xe2\x80\xa6the\nextent to which the regulation has interfered with distinct investment-backed\nexpectations\xe2\x80\x9d are keenly relevant to takings analysis generally. Penn Central\nTransportation Co. v. New York City, 438 U. S. 104, 124 (1978). It is true that in at\nleast some cases the landowner with 95% loss will get nothing, while the landowner\nwith total loss will recover in full. But that occasional result is no more strange than\nthe gross disparity between the landowner whose premises are taken for a highway\n(who recovers in full) and the landowner whose property is reduced to 5% of its\nformer value by the highway (who recovers nothing). Takings law is full of these\n\xe2\x80\x9callor-nothing\xe2\x80\x9d situations.\n5\n\nJustice Stevens similarly misinterprets our focus on \xe2\x80\x9cdevelopmental\xe2\x80\x9d uses of\nproperty (the uses proscribed by the Beachfront Management Act) as betraying an\n\xe2\x80\x9cassumption that the only uses of property cognizable under the Constitution are\ndevelopmental uses.\xe2\x80\x9d Post, at 1065, n. 3. We make no such assumption. Though our\nprior takings cases evince an abiding concern for the productive use of, and\neconomic investment in, land, there are plainly a number of noneconomic interests\nin land whose impairment will invite exceedingly close scrutiny under the Takings\nClause. See, e. g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 436\n(1982) (interest in excluding strangers from one\xe2\x80\x99s land).\nThis finding was the premise of the petition for certiorari, and since it was not\nchallenged in the brief in opposition we decline to entertain the argument in\nrespondent\xe2\x80\x99s brief on the merits, see Brief for Respondent 45-50, that the finding\nwas erroneous. Instead, we decide the question presented under the same factual\nassumptions as did the Supreme Court of South Carolina. See Oklahoma City v.\nTuttle, 471 U. S. 808, 816 (1985).\n6\n\n528\n\n\x0cmeans chosen by the South Carolina Legislature to\neffectuate those purposes. The South Carolina Supreme\nCourt, however, thought otherwise. In its view, the\nBeachfront Management Act was no ordinary enactment,\nbut involved an exercise of South Carolina\xe2\x80\x99s \xe2\x80\x9cpolice\npowers\xe2\x80\x9d to mitigate the harm to the public interest that\npetitioner\xe2\x80\x99s use of his land might occasion. 304 S. C., at\n384, 404 S. E. 2d, at 899. By neglecting to dispute the\nfindings enumerated in the Act7 or otherwise to challenge\n7\n\nThe legislature\xe2\x80\x99s express findings include the following:\n\xe2\x80\x9cThe General Assembly finds that:\n\xe2\x80\x9c(1) The beach/dune system along the coast of South\nCarolina is extremely important to the people of this State\nand serves the following functions:\n\xe2\x80\x9c(a) protects life and property by serving as a storm\nbarrier which dissipates wave energy and contributes to\nshoreline stability in an economical and effective\nmanner;\n\xe2\x80\x9c(b) provides the basis for a tourism industry that\ngenerates approximately two-thirds of South Carolina\xe2\x80\x99s\nannual tourism industry revenue which constitutes a\nsignificant portion of the state\xe2\x80\x99s economy. The tourists\nwho come to the South Carolina coast to enjoy the\nocean and dry sand beach contribute significantly to\nstate and local tax revenues;\n\xe2\x80\x9c(c) provides habitat for numerous species of plants and\nanimals, several of which are threatened or endangered.\nWaters adjacent to the beach/ dune system also provide\nhabitat for many other marine species;\n\xe2\x80\x9c(d) provides a natural health environment for the\ncitizens of South Carolina to spend leisure time which\nserves their physical and mental wellbeing.\n\xe2\x80\x9c(2) Beach/dune system vegetation is unique and\nextremely important to the vitality and preservation of the\nsystem.\n\xe2\x80\x9c(3) Many miles of South Carolina\xe2\x80\x99s beaches have been\nidentified as critically eroding.\n\xe2\x80\x9c(4) \xe2\x80\xa6 [D]evelopment unwisely has been sited too close\nto the [beach/ dune] system. This type of development\nhas jeopardized the stability of the beach/dune system,\naccelerated erosion, and endangered adjacent property. It\n\n529\n\n\x0cthe legislature\xe2\x80\x99s purposes, petitioner \xe2\x80\x9cconcede[d] that the\nbeach/dune area of South Carolina\xe2\x80\x99s shores is an extremely\nvaluable public resource; that the erection of new\nconstruction, inter alia, contributes to the erosion and\ndestruction of this public resource; and that discouraging\nnew construction in close proximity to the beach/dune area\nis necessary to prevent a great public harm.\xe2\x80\x9d Id., at 382-383,\n404 S. E. 2d, at 898. In the court\xe2\x80\x99s view, these concessions\nbrought petitioner\xe2\x80\x99s challenge within a long line of this\nCourt\xe2\x80\x99s cases sustaining against Due Process and Takings\nClause challenges the State\xe2\x80\x99s use of its \xe2\x80\x9cpolice powers\xe2\x80\x9d to\nenjoin a property owner from activities akin to public\nnuisances. See Mugler v. Kansas, 123 U. S. 623 (1887) (law\nprohibiting manufacture of alcoholic beverages); Hadacheck\nis in both the public and private interests to protect the\nsystem from this unwise development.\n\xe2\x80\x9c(5) The use of armoring in the form of hard erosion\ncontrol devices such as seawalls, bulkheads, and rip-rap to\nprotect erosion-threatened structures adjacent to the\nbeach has not proven effective. These armoring devices\nhave given a falsesense of security to beachfront property\nowners. In reality, these hard structures, in many\ninstances, have increased the vulnerability of beachfront\nproperty to damage from wind and waves while\ncontributing to the deterioration and loss of the dry sand\nbeach which is so important to the tourism industry.\n\xe2\x80\x9c(6) Erosion is a natural process which becomes a\nsignificant problem for man only when structures are\nerected in close proximity to the beach/ dune system. It is\nin both the public and private interests to afford the\nbeach/dune system space to accrete and erode in its\nnatural cycle. This space can be provided only by\ndiscouraging new construction in close proximity to the\nbeach/dune system and encouraging those who have\nerected structures too close to the system to retreat from\nit.\n\xe2\x80\xa6..\n\xe2\x80\x9c(8) It is in the state\xe2\x80\x99s best interest to protect and to\npromote increased public access to South Carolina\xe2\x80\x99s\nbeaches for out-of-state tourists and South Carolina\nresidents alike.\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39-250 (Supp.\n1991).\n\n530\n\n\x0cv. Sebastian, 239 U. S. 394 (1915) (law barring operation of\nbrick mill in residential area); Miller v. Schoene, 276 U. S. 272\n(1928) (order to destroy diseased cedar trees to prevent\ninfection of nearby orchards); Goldblatt v. Hempstead, 369 U.\nS. 590 (1962) (law effectively preventing continued\noperation of quarry in residential area).\nIt is correct that many of our prior opinions have suggested\nthat \xe2\x80\x9charmful or noxious uses\xe2\x80\x9d of property may be\nproscribed by government regulation without the\nrequirement of compensation. For a number of reasons,\nhowever, we think the South Carolina Supreme Court was\ntoo quick to conclude that that principle decides the\npresent case. The \xe2\x80\x9charmful or noxious uses\xe2\x80\x9d principle was\nthe Court\xe2\x80\x99s early attempt to describe in theoretical terms\nwhy government may, consistent with the Takings Clause,\naffect property values by regulation without incurring an\nobligation to compensate\xe2\x80\x93a reality we nowadays\nacknowledge explicitly with respect to the full scope of the\nState\xe2\x80\x99s police power. See, e. g., Penn Central Transportation Co.,\n438 U. S., at 125 (where State \xe2\x80\x9creasonably conclude[s] that\n\xe2\x80\x98the health, safety, morals, or general welfare\xe2\x80\x99 would be\npromoted by prohibiting particular contemplated uses of\nland,\xe2\x80\x9d compensation need not accompany prohibition); see\nalso Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U. S., at 834-835\n(\xe2\x80\x9cOur cases have not elaborated on the standards for\ndetermining what constitutes a \xe2\x80\x98legitimate state interest[,]\xe2\x80\x99\n[but] [t]hey have made clear \xe2\x80\xa6 that a broad range of\ngovernmental purposes and regulations satisfy these\nrequirements\xe2\x80\x9d). We made this very point in Penn Central\nTransportation Co., where, in the course of sustaining New\nYork City\xe2\x80\x99s landmarks preservation program against a\ntakings challenge, we rejected the petitioner\xe2\x80\x99s suggestion\nthat Mugler and the cases following it were premised on,\nand thus limited by, some objective conception of\n\xe2\x80\x9cnoxiousness\xe2\x80\x9d:\n\n531\n\n\x0c\xe2\x80\x9c[T]he uses in issue in Hadacheck,\nMiller, and Goldblatt were perfectly\nlawful in themselves. They involved no\n\xe2\x80\x98blameworthiness,\n\xe2\x80\xa6\nmoral\nwrongdoing or conscious act of\ndangerous risk-taking which induce[d\nsociety] to shift the cost to a\npa[rt]icular individual.\xe2\x80\x99 Sax, Takings\nand the Police Power, 74 Yale L. J. 36,\n50 (1964). These cases are better\nunderstood as resting not on any\nsupposed \xe2\x80\x98noxious\xe2\x80\x99 quality of the\nprohibited uses but rather on the\nground that the restrictions were\nreasonably\nrelated\nto\nthe\nimplementation of a policy\xe2\x80\x93not unlike\nhistoric preservation\xe2\x80\x93expected to\nproduce a widespread public benefit\nand applicable to all similarly situated\nproperty.\xe2\x80\x9d 438 U. S., at 133-134, n. 30.\n\xe2\x80\x9cHarmful or noxious use\xe2\x80\x9d analysis was, in other words,\nsimply the progenitor of our more contemporary\nstatements that \xe2\x80\x9cland-use regulation does not effect a\ntaking if it \xe2\x80\x98substantially advance[s] legitimate state interests\xe2\x80\x99\n. .. .\xe2\x80\x9d Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U.\nS., at 260); see also Penn Central Transportation Co., supra, at\n127; Euclid v. Ambler Realty Co., 272 U. S. 365, 387-388\n(1926).\nThe transition from our early focus on control of\n\xe2\x80\x9cnoxious\xe2\x80\x9d uses to our contemporary understanding of the\nbroad realm within which government may regulate\nwithout compensation was an easy one, since the\ndistinction between \xe2\x80\x9charmpreventing\xe2\x80\x9d and \xe2\x80\x9cbenefitconferring\xe2\x80\x9d regulation is often in the eye of the beholder. It\nis quite possible, for example, to describe in either fashion\nthe ecological, economic, and esthetic concerns that\ninspired the South Carolina Legislature in the present case.\n\n532\n\n\x0cOne could say that imposing a servitude on Lucas\xe2\x80\x99s land is\nnecessary in order to prevent his use of it from \xe2\x80\x9charming\xe2\x80\x9d\nSouth Carolina\xe2\x80\x99s ecological resources; or, instead, in order\nto achieve the \xe2\x80\x9cbenefits\xe2\x80\x9d of an ecological preserve.8\nCompare, e. g., Claridge v. New Hampshire Wetlands Board, 125\nN. H. 745, 752, 485 A. 2d 287, 292 (1984) (owner may,\nwithout compensation, be barred from filling wetlands\nbecause landfilling would deprive adjacent coastal habitats\nand marine fisheries of ecological support), with, e. g.,\nBartlett v. Zoning Comm\xe2\x80\x99n of Old Lyme, 161 Conn. 24, 30, 282\nA. 2d 907, 910 (1971) (owner barred from filling tidal\nmarshland must be compensated, despite municipality\xe2\x80\x99s\n\xe2\x80\x9claudable\xe2\x80\x9d goal of \xe2\x80\x9cpreserv[ing] marshlands from\nencroachment or destruction\xe2\x80\x9d). Whether one or the other\nof the competing characterizations will come to one\xe2\x80\x99s lips\nin a particular case depends primarily upon one\xe2\x80\x99s evaluation\nof the worth of competing uses of real estate. See\nIn the present case, in fact, some of the \xe2\x80\x9c[South Carolina] legislature\xe2\x80\x99s \xe2\x80\x98findings\xe2\x80\x99 \xe2\x80\x9d\nto which the South Carolina Supreme Court purported to defer in characterizing\nthe purpose of the Act as \xe2\x80\x9charm-preventing,\xe2\x80\x9d 304 S. C. 376, 385, 404 S. E. 2d 895,\n900 (1991), seem to us phrased in \xe2\x80\x9cbenefitconferring\xe2\x80\x9d language instead. For\nexample, they describe the importance of a construction ban in enhancing \xe2\x80\x9cSouth\nCarolina\xe2\x80\x99s annual tourism industry revenue,\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39-250(1)(b)\n(Supp. 1991), in \xe2\x80\x9cprovid[ing] habitat for numerous species of plants and animals,\nseveral of which are threatened or endangered,\xe2\x80\x9d \xc2\xa7 48-39-250(1)(c), and in\n\xe2\x80\x9cprovid[ing] a natural healthy environment for the citizens of South Carolina to\nspend leisure time which serves their physical and mental well-being,\xe2\x80\x9d \xc2\xa7 48-39250(1)(d). It would be pointless to make the outcome of this case hang upon this\nterminology, since the same interests could readily be described in \xe2\x80\x9charmpreventing\xe2\x80\x9d fashion.\n8\n\nJustice Blackmun, however, apparently insists that we must make the outcome hinge\n(exclusively) upon the South Carolina Legislature\xe2\x80\x99s other, \xe2\x80\x9charm-preventing\xe2\x80\x9d\ncharacterizations, focusing on the declaration that \xe2\x80\x9cprohibitions on building in\nfront of the setback line are necessary to protect people and property from storms,\nhigh tides, and beach erosion.\xe2\x80\x9d Post, at 1040. He says \xe2\x80\x9c[n]othing in the record\nundermines [this] assessment,\xe2\x80\x9d ibid., apparently seeing no significance in the fact\nthat the statute permits owners of existing structures to remain (and even to rebuild\nif their structures are not \xe2\x80\x9cdestroyed beyond repair,\xe2\x80\x9d S. C. Code Ann. \xc2\xa7 48-39290(B) (Supp. 1988)), and in the fact that the 1990 amendment authorizes the\nCouncil to issue permits for new construction in violation of the uniform\nprohibition, see S. C. Code Ann. \xc2\xa7 48-39-290(D)(1) (Supp. 1991).\n\n533\n\n\x0cRestatement (Second) of Torts \xc2\xa7 822, Comment g, p. 112\n(1979) (\xe2\x80\x9cPractically all human activities unless carried on in\na wilderness interfere to some extent with others or involve\nsome risk of interference\xe2\x80\x9d). A given restraint will be seen as\nmitigating \xe2\x80\x9charm\xe2\x80\x9d to the adjacent parcels or securing a\n\xe2\x80\x9cbenefit\xe2\x80\x9d for them, depending upon the observer\xe2\x80\x99s\nevaluation of the relative importance of the use that the\nrestraint favors. See Sax, Takings and the Police Power, 74\nYale L. J. 36, 49 (1964) (\xe2\x80\x9c[T]he problem [in this area] is not\none of noxiousness or harm-creating activity at all; rather it\nis a problem of inconsistency between perfectly innocent\nand independently desirable uses\xe2\x80\x9d). Whether Lucas\xe2\x80\x99s\nconstruction of singlefamily residences on his parcels\nshould be described as bringing \xe2\x80\x9charm\xe2\x80\x9d to South Carolina\xe2\x80\x99s\nadjacent ecological resources thus depends principally upon\nwhether the describer believes that the State\xe2\x80\x99s use interest\nin nurturing those resources is so important that any\ncompeting adjacent use must yield.9\nWhen it is understood that \xe2\x80\x9cprevention of harmful use\xe2\x80\x9d\nwas merely our early formulation of the police power\njustification necessary to sustain (without compensation)\nany regulatory diminution in value; and that the distinction\nbetween regulation that \xe2\x80\x9cprevents harmful use\xe2\x80\x9d and that\nwhich \xe2\x80\x9cconfers benefits\xe2\x80\x9d is difficult, if not impossible, to\ndiscern on an objective, value-free basis; it becomes selfevident that noxious-use logic cannot serve as a touchstone\nto distinguish regulatory \xe2\x80\x9ctakings\xe2\x80\x9d \xe2\x80\x93 which require\ncompensation \xe2\x80\x93 from regulatory deprivations that do not\nrequire compensation. A fortiori the legislature\xe2\x80\x99s recitation\nof a noxious-use justification cannot be the basis for\nIn Justice Blackmun\xe2\x80\x99s view, even with respect to regulations that deprive an\nowner of all developmental or economically beneficial land uses, the test for\nrequired compensation is whether the legislature has recited a harm-preventing\njustification for its action. See post, at 1039, 1040-1041, 1047-1051. Since such a\njustification can be formulated in practically every case, this amounts to a test of\nwhether the legislature has a stupid staff. We think the Takings Clause requires\ncourts to do more than insist upon artful harm-preventing characterizations.\n9\n\n534\n\n\x0cdeparting from our categorical rule that total regulatory\ntakings must be compensated. If it were, departure would\nvirtually always be allowed. The South Carolina Supreme\nCourt\xe2\x80\x99s approach would essentially nullify Mahon \xe2\x80\x98s\naffirmation of limits to the noncompensable exercise of the\npolice power. Our cases provide no support for this: None\nof them that employed the logic of \xe2\x80\x9charmful use\xe2\x80\x9d\nprevention to sustain a regulation involved an allegation\nthat the regulation wholly eliminated the value of the\nclaimant\xe2\x80\x99s land. See Keystone Bituminous Coal Assn., 480 U. S.,\nat 513-514 (Rehnquist, C. J., dissenting).10\nWhere the State seeks to sustain regulation that deprives\nland of all economically beneficial use, we think it may\nresist compensation only if the logically antecedent inquiry\ninto the nature of the owner\xe2\x80\x99s estate shows that the\nproscribed use interests were not part of his title to begin\nwith.11 This accords, we think, with our \xe2\x80\x9ctakings\xe2\x80\x9d\nE. g., Mugler v. Kansas, 123 U. S. 623 (1887) (prohibition upon use of a building as\na brewery; other uses permitted); Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531\n(1914) (requirement that \xe2\x80\x9cpillar\xe2\x80\x9d of coal be left in ground to safeguard mine\nworkers; mineral rights could otherwise be exploited); Reinman v. Little Rock, 237 U.\nS. 171 (1915)(declaration that livery stable constituted a public nuisance; other uses\nof the property permitted); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (prohibition\nof brick manufacturing in residential area; other uses permitted); Goldblatt v.\nHempstead, 369 U. S. 590 (1962) (prohibition on excavation; other uses permitted).\n10\n\nDrawing on our First Amendment jurisprudence, see, e. g., Employment Div., Dept.\nof Human Resources of Ore. v. Smith, 494 U. S. 872, 878-879 (1990), Justice Stevens\nwould \xe2\x80\x9cloo[k] to the generality of a regulation of property\xe2\x80\x9d to determine whether\ncompensation is owing. Post, at 1072. The Beach front Management Act is general,\nin his view, because it \xe2\x80\x9cregulates the use of the coastline of the entire State.\xe2\x80\x9d Post, at\n1074. There may be some validity to the principle Justice Stevens proposes, but it\ndoes not properly apply to the present case. The equivalent of a law of general\napplication that inhibits the practice of religion without being aimed at religion, see\nOregon v. Smith, supra, is a law that destroys the value of land without being aimed at\nland. Perhaps such a law \xe2\x80\x93 the generally applicable criminal prohibition on the\nmanufacturing of alcoholic beverages challenged in Mugler comes to mind \xe2\x80\x93 cannot\nconstitute a compensable taking. See 123 U. S., at 655-656. But a regulation\nspecifically directed to land use no more acquires immunity by plundering landowners\ngenerally than does a law specifically directed at religious practice acquire immunity\nby prohibiting all religions. Justice Stevens\xe2\x80\x99s approach renders the Takings Clause\nlittle more than a particularized restatement of the Equal Protection Clause.\n11\n\n535\n\n\x0cjurisprudence, which has traditionally been guided by the\nunderstandings of our citizens regarding the content of,\nand the State\xe2\x80\x99s power over, the \xe2\x80\x9cbundle of rights\xe2\x80\x9d that they\nacquire when they obtain title to property. It seems to us\nthat the property owner necessarily expects the uses of his\nproperty to be restricted, from time to time, by various\nmeasures newly enacted by the State in legitimate exercise\nof its police powers; \xe2\x80\x9c[a]s long recognized, some values are\nenjoyed under an implied limitation and must yield to the\npolice power.\xe2\x80\x9d Pennsylvania Coal Co. v. Mahon, 260 U. S., at\n413. And in the case of personal property, by reason of the\nState\xe2\x80\x99s traditionally high degree of control over commercial\ndealings, he ought to be aware of the possibility that new\nregulation might even render his property economically\nworthless (at least if the property\xe2\x80\x99s only economically\nproductive use is sale or manufacture for sale). See Andrus\nv. Allard, 444 U. S. 51, 66-67 (1979) (prohibition on sale of\neagle feathers). In the case of land, however, we think the\nnotion pressed by the Council that title is somehow held\nsubject to the \xe2\x80\x9cimplied limitation\xe2\x80\x9d that the State may\nsubsequently eliminate all economically valuable use is\ninconsistent with the historical compact recorded in the\nTakings Clause that has become part of our constitutional\nculture.12\nAfter accusing us of \xe2\x80\x9claunch[ing] a missile to kill a mouse,\xe2\x80\x9d post, at 1036, Justice\nBlackmun expends a good deal of throw-weight of his own upon a noncombatant,\narguing that our description of the \xe2\x80\x9cunderstanding\xe2\x80\x9d of land ownership that informs\nthe Takings Clause is not supported by early American experience. That is largely\ntrue, but entirely irrelevant. The practices of the States prior to incorporation of the\nTakings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166\nU. S. 226 (1897) \xe2\x80\x93 which, as Justice Blackmun acknowledges, occasionally included\noutright physical appropriation of land without compensation, see post, at 1056 \xe2\x80\x93 were\nout of accord with any plausible interpretation of those provisions. Justice\nBlackmun is correct that early constitutional theorists did not believe the Takings\nClause embraced regulations of property at all, see post, at 1057-1058, and n. 23, but\neven he does not suggest (explicitly, at least) that we renounce the Court\xe2\x80\x99s contrary\nconclusion in Mahon. Since the text of the Clause can be read to encompass\nregulatory as well as physical deprivations (in contrast to the text originally\nproposed by Madison, see Speech Proposing Bill of Rights (June 8, 1789), in 12 J.\n12\n\n536\n\n\x0cWhere \xe2\x80\x9cpermanent physical occupation\xe2\x80\x9d of land is\nconcerned, we have refused to allow the government to\ndecree it anew (without compensation), no matter how\nweighty the asserted \xe2\x80\x9cpublic interests\xe2\x80\x9d involved, Loretto v.\nTeleprompter Manhattan CATV Corp., 458 U. S., at 426 \xe2\x80\x93\nthough we assuredly would permit the government to assert\na permanent easement that was a pre-existing limitation\nupon the landowner\xe2\x80\x99s title. Compare Scranton v. Wheeler, 179\nU. S. 141, 163 (1900) (interests of \xe2\x80\x9criparian owner in the\nsubmerged lands \xe2\x80\xa6 bordering on a public navigable water\xe2\x80\x9d\nheld subject to Government\xe2\x80\x99s navigational servitude), with\nKaiser Aetna v. United States, 444 U. S., at 178-180\n(imposition of navigational servitude on marina created and\nrendered navigable at private expense held to constitute a\ntaking). We believe similar treatment must be accorded\nconfiscatory regulations, i. e., regulations that prohibit all\neconomically beneficial use of land: Any limitation so\nsevere cannot be newly legislated or decreed (without\ncompensation), but must inhere in the title itself, in the\nrestrictions that background principles of the State\xe2\x80\x99s law of\nproperty and nuisance already place upon land ownership.\nA law or decree with such an effect must, in other words,\ndo no more than duplicate the result that could have been\nachieved in the courts \xe2\x80\x93 by adjacent landowners (or other\nuniquely affected persons) under the State\xe2\x80\x99s law of private\nnuisance, or by the State under its complementary power to\nabate nuisances that affect the public generally, or\notherwise.13\nMadison, The Papers of James Madison 201 (C. Hobson, R. Rutland, W. Rachal, &\nJ. Sisson ed. 1979) (\xe2\x80\x9cNo person shall be \xe2\x80\xa6 obliged to relinquish his property,\nwhere it may be necessary for public use, without a just compensation\xe2\x80\x9d), we decline\nto do so as well.\nThe principal \xe2\x80\x9cotherwise\xe2\x80\x9d that we have in mind is litigation absolving the State\n(or private parties) of liability for the destruction of \xe2\x80\x9creal and personal property, in\ncases of actual necessity, to prevent the spreading of a fire\xe2\x80\x9d or to forestall other\ngrave threats to the lives and property of others. Bowditch v. Boston, 101 U. S. 16, 1819 (1880); see United States v. Pacific R. Co., 120 U. S. 227, 238-239 (1887).\n13\n\n537\n\n\x0cOn this analysis, the owner of a lake bed, for example,\nwould not be entitled to compensation when he is denied\nthe requisite permit to engage in a land filling operation\nthat would have the effect of flooding others\xe2\x80\x99 land. Nor the\ncorporate owner of a nuclear generating plant, when it is\ndirected to remove all improvements from its land upon\ndiscovery that the plant sits astride an earthquake fault.\nSuch regulatory action may well have the effect of\neliminating the land\xe2\x80\x99s only economically productive use, but\nit does not proscribe a productive use that was previously\npermissible under relevant property and nuisance\nprinciples. The use of these properties for what are now\nexpressly prohibited purposes was always unlawful, and\n(subject to other constitutional limitations) it was open to\nthe State at any point to make the implication of those\nbackground principles of nuisance and property law\nexplicit. See Michelman, Property, Utility, and Fairness,\nComments on the Ethical Foundations of \xe2\x80\x9cJust\nCompensation\xe2\x80\x9d Law, 80 Harv. L. Rev. 1165, 1239 \xe2\x80\x93 1241\n(1967). In light of our traditional resort to \xe2\x80\x9cexisting rules or\nunderstandings that stem from an independent source such\nas state law\xe2\x80\x9d to define the range of interests that qualify for\nprotection as \xe2\x80\x9cproperty\xe2\x80\x9d under the Fifth and Fourteenth\nAmendments, Board of Regents of State Colleges v. Roth, 408 U.\nS. 564, 577 (1972); see, e. g., Ruckelshaus v. Monsanto Co., 467\nU. S. 986, 1011-1012 (1984); Hughes v. Washington, 389 U. S.\n290, 295 (1967) (Stewart, J., concurring), this recognition\nthat the Takings Clause does not require compensation\nwhen an owner is barred from putting land to a use that is\nproscribed by those \xe2\x80\x9cexisting rules or understandings\xe2\x80\x9d is\nsurely unexceptional. When, however, a regulation that\ndeclares \xe2\x80\x9coff-limits\xe2\x80\x9d all economically productive or\nbeneficial uses of land goes beyond what the relevant\nbackground principles would dictate, compensation must\nbe paid to sustain it.14\n14\n\nOf course, the State may elect to rescind its regulation and thereby avoid having\n\n538\n\n\x0cThe \xe2\x80\x9ctotal taking\xe2\x80\x9d inquiry we require today will ordinarily\nentail (as the application of state nuisance law ordinarily\nentails) analysis of, among other things, the degree of harm\nto public lands and resources, or adjacent private property,\nposed by the claimant\xe2\x80\x99s proposed activities, see, e. g.,\nRestatement (Second) of Torts \xc2\xa7\xc2\xa7 826, 827, the social value\nof the claimant\xe2\x80\x99s activities and their suitability to the locality\nin question, see, e. g., id., \xc2\xa7\xc2\xa7 828(a) and (b), 831, and the\nrelative ease with which the alleged harm can be avoided\nthrough measures taken by the claimant and the\ngovernment (or adjacent private landowners) alike, see, e. g.,\nid., \xc2\xa7\xc2\xa7 827(e), 828(c), 830. The fact that a particular use has\nlong been engaged in by similarly situated owners ordinarily\nimports a lack of any common-law prohibition (though\nchanged circumstances or new knowledge may make what\nwas previously permissible no longer so, see id., \xc2\xa7 827,\nComment g. So also does the fact that other landowners,\nsimilarly situated, are permitted to continue the use denied\nto the claimant.\nIt seems unlikely that common-law principles would have\nprevented the erection of any habitable or productive\nimprovements on petitioner\xe2\x80\x99s land; they rarely support\nprohibition of the \xe2\x80\x9cessential use\xe2\x80\x9d of land, Curtin v. Benson,\n222 U. S. 78, 86 (1911). The question, however, is one of\nstate law to be dealt with on remand. We emphasize that to\nwin its case South Carolina must do more than proffer the\nlegislature\xe2\x80\x99s declaration that the uses Lucas desires are\ninconsistent with the public interest, or the conclusory\nassertion that they violate a common-law maxim such as sic\nutere tuo ut alienum non laedas. As we have said, a \xe2\x80\x9cState, by\nipse dixit, may not transform private property into public\nto pay compensation for a permanent deprivation. See First English Evangelical\nLutheran Church, 482 U. S., at 321. But \xe2\x80\x9cwhere the [regulation has] already worked a\ntaking of all use of property, no subsequent action by the government can relieve it\nof the duty to provide compensation for the period during which the taking was\neffective.\xe2\x80\x9d Ibid.\n\n539\n\n\x0cproperty without compensation \xe2\x80\xa6 .\xe2\x80\x9d Webb\xe2\x80\x99s Fabulous\nPharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980).\nInstead, as it would be required to do if it sought to restrain\nLucas in a commonlaw action for public nuisance, South\nCarolina must identify background principles of nuisance\nand property law that prohibit the uses he now intends in\nthe circumstances in which the property is presently found.\nOnly on this showing can the State fairly claim that, in\nproscribing all such beneficial uses, the Beach front\nManagement Act is taking nothing.15\n***\nThe judgment is reversed, and the case is remanded for\nproceedings not inconsistent with this opinion.\nSo ordered.\nJUSTICE KENNEDY, concurring in the judgment.\nThe case comes to the Court in an unusual posture, as all\nmy colleagues observe. Ante, at 1010-1011; post, at 1041\n(Blackmun, J., dissenting); post, at 1061-1062 (Stevens, J.,\ndissenting); post, at 1076-1077 (statement of Souter, J.).\nAfter the suit was initiated but before it reached us, South\nCarolina amended its Beach front Management Act to\nauthorize the issuance of special permits at variance with\nthe Act\xe2\x80\x99s general limitations. See S. C. Code Ann. \xc2\xa7 48-39290(D)(1) (Supp. 1991). Petitioner has not applied for a\nspecial permit but may still do so. The availability of this\nalternative, if it can be invoked, may dispose of petitioner\xe2\x80\x99s\nclaim of a permanent taking. As I read the Court\xe2\x80\x99s opinion,\nJustice Blackmun decries our reliance on background nuisance principles at least\nin part because he believes those principles to be as manipulable as we find the\n\xe2\x80\x9charm prevention\xe2\x80\x9d/\xe2\x80\x9dbenefit conferral\xe2\x80\x9d dichotomy, see post, at 1054-1055. There is\nno doubt some leeway in a court\xe2\x80\x99s interpretation of what existing state law permits\n\xe2\x80\x93 but not remotely as much, we think, as in a legislative crafting of the reasons for\nits confiscatory regulation. We stress that an affirmative decree eliminating all\neconomically beneficial uses may be defended only if an objectively reasonable\napplication of relevant precedents would exclude those beneficial uses in the\ncircumstances in which the land is presently found.\n15\n\n540\n\n\x0cit does not decide the permanent taking claim, but neither\ndoes it foreclose the Supreme Court of South Carolina\nfrom considering the claim or requiring petitioner to pursue\nan administrative alternative not previously available.\nThe potential for future relief does not control our\ndisposition, because whatever may occur in the future\ncannot undo what has occurred in the past. The Beach\nfront Management Act was enacted in 1988. S. C. Code\nAnn. \xc2\xa7 48-39-250 et seq. (Supp. 1990). It may have deprived\npetitioner of the use of his land in an interim period. \xc2\xa7 4839-290(A). If this deprivation amounts to a taking, its\nlimited duration will not bar constitutional relief. It is well\nestablished that temporary takings are as protected by the\nConstitution as are permanent ones. First English Evangelical\nLutheran Church of Glendale v. County of Los Angeles, 482 U. S.\n304, 318 (1987).\nThe issues presented in the case are ready for our decision.\nThe Supreme Court of South Carolina decided the case on\nconstitutional grounds, and its rulings are now before us.\nThere exists no jurisdictional bar to our disposition, and\nprudential considerations ought not to militate against it.\nThe State cannot complain of the manner in which the\nissues arose. Any uncertainty in this regard is attributable to\nthe State, as a consequence of its amendment to the Beach\nfront Management Act. If the Takings Clause is to protect\nagainst temporary deprivations, as well as permanent ones,\nits enforcement must not be frustrated by a shifting\nbackground of state law.\nAlthough we establish a framework for remand, moreover,\nwe do not decide the ultimate question whether a\ntemporary taking has occurred in this case. The facts\nnecessary to the determination have not been developed in\nthe record. Among the matters to be considered on remand\nmust be whether petitioner had the intent and capacity to\ndevelop the property and failed to do so in the interim\nperiod because the State prevented him. Any failure by\n\n541\n\n\x0cpetitioner to comply with relevant\nrequirements will be part of that analysis.\n\nadministrative\n\nThe South Carolina Court of Common Pleas found that\npetitioner\xe2\x80\x99s real property has been rendered valueless by the\nState\xe2\x80\x99s regulation. App. to Pet. for Cert. 37. The finding\nappears to presume that the property has no significant\nmarket value or resale potential. This is a curious finding,\nand I share the reservations of some of my colleagues\nabout a finding that a beach front lot loses all value because\nof a development restriction. Post, at 1043-1045 (Blackmun,\nJ., dissenting); post, at 1065, n. 3 (Stevens, J., dissenting);\npost, at 1076 (statement of Souter, J.). While the Supreme\nCourt of South Carolina on remand need not consider the\ncase subject to this constraint, we must accept the finding\nas entered below. See Oklahoma City v. Tuttle, 471 U. S. 808,\n816 (1985). Accepting the finding as entered, it follows that\npetitioner is entitled to invoke the line of cases discussing\nregulations that deprive real property of all economic value.\nSee Agins v. City of Tiburon, 447 U. S. 255, 260 (1980).\nThe finding of no value must be considered under the\nTakings Clause by reference to the owner\xe2\x80\x99s reasonable,\ninvestment-backed expectations. Kaiser Aetna v. United\nStates, 444 U. S. 164, 175 (1979); Penn Central Transportation\nCo. v. New York City, 438 U. S. 104, 124 (1978); see also W.\nB. Worthen Co. v. Kavanaugh, 295 U. S. 56 (1935). The\nTakings Clause, while conferring substantial protection on\nproperty owners, does not eliminate the police power of\nthe State to enact limitations on the use of their\nproperty.Mugler v. Kansas, 123 U. S. 623, 669 (1887). The\nrights conferred by the Takings Clause and the police\npower of the State may coexist without conflict. Property is\nbought and sold, investments are made, subject to the\nState\xe2\x80\x99s power to regulate. Where a taking is alleged from\nregulations which deprive the property of all value, the test\nmust be whether the deprivation is contrary to reasonable,\ninvestmentbacked expectations.\n\n542\n\n\x0cThere is an inherent tendency towards circularity in this\nsynthesis, of course; for if the owner\xe2\x80\x99s reasonable\nexpectations are shaped by what courts allow as a proper\nexercise of governmental authority, property tends to\nbecome what courts say it is. Some circularity must be\ntolerated in these matters, however, as it is in other spheres.\nE. g., Katz v. United States, 389 U. S. 347 (1967) (Fourth\nAmendment protections defined by\nreasonable\nexpectations of privacy). The definition, moreover, is not\ncircular in its entirety. The expectations protected by the\nConstitution are based on objective rules and customs that\ncan be understood as reasonable by all parties involved.\nIn my view, reasonable expectations must be understood in\nlight of the whole of our legal tradition. The common law\nof nuisance is too narrow a confine for the exercise of\nregulatory power in a complex and interdependent society.\nGoldblatt v. Hempstead, 369 U. S. 590, 593 (1962). The State\nshould not be prevented from enacting new regulatory\ninitiatives in response to changing conditions, and courts\nmust consider all reasonable expectations whatever their\nsource. The Takings Clause does not require a static body\nof state property law; it protects private expectations to\nensure private investment. I agree with the Court that\nnuisance prevention accords with the most common\nexpectations of property owners who face regulation, but I\ndo not believe this can be the sole source of state authority\nto impose severe restrictions. Coastal property may present\nsuch unique concerns for a fragile land system that the\nState can go further in regulating its development and use\nthan the common law of nuisance might otherwise permit.\nThe Supreme Court of South Carolina erred, in my view, by\nreciting the general purposes for which the state regulations\nwere enacted without a determination that they were in\naccord with the owner\xe2\x80\x99s reasonable expectations and\ntherefore sufficient to support a severe restriction on\nspecific parcels of property. See 304 S. C. 376, 383, 404 S.\n\n543\n\n\x0cE. 2d 895, 899 (1991). The promotion of tourism, for\ninstance, ought not to suffice to deprive specific property\nof all value without a corresponding duty to compensate.\nFurthermore, the means, as well as the ends, of regulation\nmust accord with the owner\xe2\x80\x99s reasonable expectations.\nHere, the State did not act until after the property had been\nzoned for individual lot development and most other\nparcels had been improved, throwing the whole burden of\nthe regulation on the remaining lots. This too must be\nmeasured in the balance. See Pennsylvania Coal Co. v. Mahon,\n260 U. S. 393, 416 (1922).\nWith these observations, I concur in the judgment of the\nCourt.\nJUSTICE BLACKMUN, dissenting.\nToday the Court launches a missile to kill a mouse.\nThe State of South Carolina prohibited petitioner Lucas\nfrom building a permanent structure on his property from\n1988 to 1990. Relying on an unreviewed (and implausible)\nstate trial court finding that this restriction left Lucas\xe2\x80\x99\nproperty valueless, this Court granted review to determine\nwhether compensation must be paid in cases where the\nState prohibits all economic use of real estate. According to\nthe Court, such an occasion never has arisen in any of our\nprior cases, and the Court imagines that it will arise\n\xe2\x80\x9crelatively rarely\xe2\x80\x9d or only in \xe2\x80\x9cextraordinary circumstances.\xe2\x80\x9d\nAlmost certainly it did not happen in this case.\nNonetheless, the Court presses on to decide the issue, and\nas it does, it ignores its jurisdictional limits, remakes its\ntraditional rules of review, and creates simultaneously a new\ncategorical rule and an exception (neither of which is\nrooted in our prior case law, common law, or common\nsense). I protest not only the Court\xe2\x80\x99s decision, but each\nstep taken to reach it. More fundamentally, I question the\nCourt\xe2\x80\x99s wisdom in issuing sweeping new rules to decide\nsuch a narrow case. Surely, as Justice Kennedy\n\n544\n\n\x0cdemonstrates, the Court could have reached the result it\nwanted without inflicting this damage upon our Takings\nClause jurisprudence.\nMy fear is that the Court\xe2\x80\x99s new policies will spread beyond\nthe narrow confines of the present case. For that reason, I,\nlike the Court, will give far greater attention to this case\nthan its narrow scope suggests \xe2\x80\x93 not because I can\nintercept the Court\xe2\x80\x99s missile, or save the targeted mouse,\nbut because I hope perhaps to limit the collateral damage.\n\xe2\x80\xa6.\nStatement of JUSTICE SOUTER.\nI would dismiss the writ of certiorari in this case as having\nbeen granted improvidently. After briefing and argument it\nis abundantly clear that an unreviewable assumption on\nwhich this case comes to us is both questionable as a\nconclusion of Fifth Amendment law and sufficient to\nfrustrate the Court\xe2\x80\x99s ability to render certain the legal\npremises on which its holding rests.\nThe petition for review was granted on the assumption that\nthe State by regulation had deprived the owner of his entire\neconomic interest in the subject property. Such was the\nstate trial court\xe2\x80\x99s conclusion, which the State Supreme\nCourt did not review. It is apparent now that in light of our\nprior cases, see, e. g., Keystone Bituminous Coal Assn. v.\nDeBenedictis, 480 U. S. 470, 493-502 (1987); Andrus v. Allard,\n444 U. S. 51, 65-66 (1979); Penn Central Transportation Corp.\nv. New York City, 438 U. S. 104, 130-131 (1978), the trial\ncourt\xe2\x80\x99s conclusion is highly questionable. While the\nrespondent now wishes to contest the point, see Brief for\nRespondent 45-50, the Court is certainly right to refuse to\ntake up the issue, which is not fairly included within the\nquestion presented, and has received only the most\nsuperficial and one-sided treatment before us.\n\n545\n\n\x0cBecause the questionable conclusion of total deprivation\ncannot be reviewed, the Court is precluded from\nattempting to clarify the concept of total (and, in the\nCourt\xe2\x80\x99s view, categorically compensable) taking on which it\nrests, a concept which the Court describes, see ante, at\n1016-1017, n. 6, as so uncertain under existing law as to\nhave fostered inconsistent pronouncements by the Court\nitself. Because that concept is left uncertain, so is the\nsignificance of the exceptions to the compensation\nrequirement that the Court proceeds to recognize. This\nalone is enough to show that there is little utility in\nattempting to deal with this case on the merits.\n\xe2\x80\xa6.\n4.3.3. Per se vs. Ad hoc\nTahoe-Sierra Preservation Council, Inc. v. Tahoe\nRegional Planning Agency\n535 U.S. 302 (2002)\nMichael M. Berger argued the cause for petitioners. With him\non the briefs were Gideon Kanner and Lawrence L. Hoffman.\nJohn G. Roberts, Jr., argued the cause for respondents. With\nhim on the brief were Frankie Sue Del Papa, Attorney\nGeneral of Nevada, and William J. Frey, Deputy Attorney\nGeneral, Bill Lockyer, Attorney General of California,\nRichard M. Frank, Chief Assistant Attorney General,\nMatthew Rodriquez, Senior Assistant Attorney General, and\nDaniel L. Siegel, Supervising Deputy Attorney General, E.\nClement Shute, Jr., Fran M. Layton, Ellison Folk, John L.\nMarshall, and Richard J. Lazarus.\nSolicitor General Olson argued the cause for the United States\nas amicus curiae urging affirmance. With him on the brief\nwere Acting Assistant Attorney General Cruden, Deputy Solicitor\nGeneral Kneedler, and Malcolm L. Stewart.\nJUSTICE STEVENS delivered the opinion of the Court.\n\n546\n\n\x0cThe question presented is whether a moratorium on\ndevelopment imposed during the process of devising a\ncomprehensive land-use plan constitutes a per se taking of\nproperty requiring compensation under the Takings Clause\nof the United States Constitution.1 This case actually\ninvolves two moratoria ordered by respondent Tahoe\nRegional Planning Agency (TRPA) to maintain the status\nquo while studying the impact of development on Lake\nTahoe and designing a strategy for environmentally sound\ngrowth. The first, Ordinance 81-5, was effective from\nAugust 24, 1981, until August 26, 1983, whereas the second\nmore restrictive Resolution 83-21 was in effect from\nAugust 27, 1983, until April 25, 1984. As a result of these\ntwo directives, virtually all development on a substantial\nportion of the property subject to TRPA\xe2\x80\x99s jurisdiction was\nprohibited for a period of 32 months. Although the\nquestion we decide relates only to that 32-month period, a\nbrief description of the events leading up to the moratoria\nand a comment on the two permanent plans that TRPA\nadopted thereafter will clarify the narrow scope of our\nholding.\nI\nThe relevant facts are undisputed. The Court of Appeals,\nwhile reversing the District Court on a question of law,\naccepted all of its findings of fact, and no party challenges\nthose findings. All agree that Lake Tahoe is \xe2\x80\x9cuniquely\nbeautiful,\xe2\x80\x9d 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that\nPresident Clinton was right to call it a \xe2\x80\x9c\xe2\x80\x98national treasure\nthat must be protected and preserved,\xe2\x80\x99 \xe2\x80\x9d ibid., and that\nMark Twain aptly described the clarity of its waters as \xe2\x80\x9c\xe2\x80\x98not\nmerely transparent, but dazzlingly, brilliantly so,\xe2\x80\x99 \xe2\x80\x9d ibid.\nOften referred to as the \xe2\x80\x9cJust Compensation Clause,\xe2\x80\x9d the final Clause of the Fifth\nAmendment provides: \xe2\x80\x9d\xe2\x80\xa6 nor shall private property be taken for public use\nwithout just compensation.\xe2\x80\x9d It applies to the States as well as the Federal\nGovernment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239, 241 (1897);\nWebb\xe2\x80\x99s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 160 (1980).\n1\n\n547\n\n\x0c(emphasis added) (quoting M. Twain, Roughing It 174-175\n(1872)).\nLake Tahoe\xe2\x80\x99s exceptional clarity is attributed to the absence\nof algae that obscures the waters of most other lakes.\nHistorically, the lack of nitrogen and phosphorous, which\nnourish the growth of algae, has ensured the transparency\nof its waters.2 Unfortunately, the lake\xe2\x80\x99s pristine state has\ndeteriorated rapidly over the past 40 years; increased land\ndevelopment in the Lake Tahoe Basin (Basin) has\nthreatened the \xe2\x80\x9c\xe2\x80\x98noble sheet of blue water\xe2\x80\x99 \xe2\x80\x9d beloved by\nTwain and countless others. 34 F. Supp. 2d, at 1230. As the\nDistrict Court found, \xe2\x80\x9c[d]ramatic decreases in clarity first\nbegan to be noted in the late 1950\xe2\x80\x99s/early 1960\xe2\x80\x99s, shortly\nafter development at the lake began in earnest.\xe2\x80\x9d Id., at 1231.\nThe lake\xe2\x80\x99s unsurpassed beauty, it seems, is the wellspring of\nits undoing.\nThe upsurge of development in the area has caused\n\xe2\x80\x9cincreased nutrient loading of the lake largely because of\nthe increase in impervious coverage of land in the Basin\nresulting from that development.\xe2\x80\x9d Ibid.\n[The Court recounts the history of inter-governmental\ncooperation and land use regulations since the 1960s that\nhave attempted to solve the water quality problems. A\nthree-year moratorium was imposed while TRPA\ndeveloped a regional water quality plan. When that plan was\ncomplete, California sued, alleging the plan was inadequate\nto protect Lake Tahoe. The federal court entered an\ninjunction that essentially continued the moratorium for\nanother three years, until 1987 when a new regional plan\nwas completed. Around the same time that California filed\nAccording to a Senate Report: \xe2\x80\x9cOnly two other sizable lakes in the world are of\ncomparable quality\xe2\x80\x93Crater Lake in Oregon, which is protected as part of the Crater\nLake National Park, and Lake Baikal in the [former] Soviet Union. Only Lake\nTahoe, however, is so readily accessible from large metropolitan centers and is so\nadaptable to urban development.\xe2\x80\x9d S. Rep. No. 91-510, pp. 3-4 (1969).\n2\n\n548\n\n\x0csuit, Petitioners \xe2\x80\x93- a total of around 2,400 landowners -\xe2\x80\x93\nalso filed their suit, seeking compensation for the\nmoratorium that had been in effect from 1981-1984. That\nlitigation became protracted \xe2\x80\x9cproduc[ing] four opinions by\nthe Court of Appeals for the Ninth Circuit and several\npublished District Court opinions.\xe2\x80\x9d The majority in this\ncase held that only the 1981 moratorium, not the additional\ndelay caused by the federal injunction was before it. It also\ncharacterized Petitioners as mounting only a facial\nchallenge to the moratorium. \xe2\x80\x9cFor petitioners, it is enough\nthat a regulation imposes a temporary deprivation\xe2\x80\x93no\nmatter how brief\xe2\x80\x93of all economically viable use to trigger a\nper se rule that a taking has occurred.\xe2\x80\x9d]\n***\nIV\nThe text of the Fifth Amendment itself provides a basis for\ndrawing a distinction between physical takings and\nregulatory takings. Its plain language requires the payment\nof compensation whenever the government acquires\nprivate property for a public purpose, whether the\nacquisition is the result of a condemnation proceeding or a\nphysical appropriation. But the Constitution contains no\ncomparable reference to regulations that prohibit a\nproperty owner from making certain uses of her private\nproperty.3 Our jurisprudence involving condemnations and\nphysical takings is as old as the Republic and, for the most\npart, involves the straightforward application of per se rules.\nOur regulatory takings jurisprudence, in contrast, is of\nIn determining whether government action affecting property is an\nunconstitutional deprivation of ownership rights under the Just Compensation\nClause, a court must interpret the word \xe2\x80\x9ctaken.\xe2\x80\x9d When the government condemns\nor physically appropriates the property, the fact of a taking is typically obvious and\nundisputed. When, however, the owner contends a taking has occurred because a\nlaw or regulation imposes restrictions so severe that they are tantamount to a\ncondemnation or appropriation, the predicate of a taking is not self-evident, and\nthe analysis is more complex.\n3\n\n549\n\n\x0cmore recent vintage and is characterized by \xe2\x80\x9cessentially ad\nhoc, factual inquiries,\xe2\x80\x9d Penn Central, 438 U. S., at 124,\ndesigned to allow \xe2\x80\x9ccareful examination and weighing of all\nthe relevant circumstances.\xe2\x80\x9d Palazzolo, 533 U. S., at 636\n(O\xe2\x80\x99Connor, J., concurring).\nWhen the government physically takes possession of an\ninterest in property for some public purpose, it has a\ncategorical duty to compensate the former owner, United\nStates v. Pewee Coal Co., 341 U. S. 114, 115 (1951), regardless\nof whether the interest that is taken constitutes an entire\nparcel or merely a part thereof. Thus, compensation is\nmandated when a leasehold is taken and the government\noccupies the property for its own purposes, even though\nthat use is temporary. United States v. General Motors Corp.,\n323 U. S. 373 (1945); United States v. Petty Motor Co., 327 U.\nS. 372 (1946). Similarly, when the government appropriates\npart of a roof top in order to provide cable TV access for\napartment tenants, Loretto v. Teleprompter Manhattan CATV\nCorp., 458 U. S. 419 (1982); or when its planes use private\nairspace to approach a government airport, United States v.\nCausby, 328 U. S. 256 (1946), it is required to pay for that\nshare no matter how small. But a government regulation\nthat merely prohibits landlords from evicting tenants\nunwilling to pay a higher rent, Block v. Hirsh, 256 U. S. 135\n(1921); that bans certain private uses of a portion of an\nowner\xe2\x80\x99s property, Village of Euclid v. Ambler Realty Co., 272\nU. S. 365 (1926); Keystone Bituminous Coal Assn. v.\nDeBenedictis, 480 U. S. 470 (1987); or that forbids the private\nuse of certain airspace, Penn Central Transp. Co. v. New York\nCity, 438 U. S. 104 (1978), does not constitute a categorical\ntaking. \xe2\x80\x9cThe first category of cases requires courts to apply\na clear rule; the second necessarily entails complex factual\nassessments of the purposes and economic effects of\ngovernment actions.\xe2\x80\x9d Yee v. Escondido, 503 U. S. 519, 523\n(1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S.,\nat 489, n. 18.\n\n550\n\n\x0cThis longstanding distinction between acquisitions of\nproperty for public use, on the one hand, and regulations\nprohibiting private uses, on the other, makes it\ninappropriate to treat cases involving physical takings as\ncontrolling precedents for the evaluation of a claim that\nthere has been a \xe2\x80\x9cregulatory taking,\xe2\x80\x9d4 and vice versa. For\nthe same reason that we do not ask whether a physical\nappropriation advances a substantial government interest or\nwhether it deprives the owner of all economically valuable\nuse, we do not apply our precedent from the physical\ntakings context to regulatory takings claims. Land-use\nregulations are ubiquitous and most of them impact\nproperty values in some tangential way\xe2\x80\x93often in completely\nunanticipated ways. Treating them all as per se takings would\ntransform government regulation into a luxury few\ngovernments could afford. By contrast, physical\nappropriations are relatively rare, easily identified, and\nusually represent a greater affront to individual property\nrights.5 \xe2\x80\x9cThis case does not present the \xe2\x80\x98classi[c] taking\xe2\x80\x99 in\nTo illustrate the importance of the distinction, the Court in Loretto, 458 U. S., at\n430, compared two wartime takings cases, United States v. Pewee Coal Co., 341 U. S.\n114, 116 (1951), in which there had been an \xe2\x80\x9cactual taking of possession and\ncontrol\xe2\x80\x9d of a coal mine, and United States v. Central Eureka Mining Co., 357 U. S. 155\n(1958), in which, \xe2\x80\x9cby contrast, the Court found no taking where the Government\nhad issued a wartime order requiring nonessential gold mines to cease operations .\n.. .\xe2\x80\x9d 458 U. S., at 431. Loretto then relied on this distinction in dismissing the\nargument that our discussion of the physical taking at issue in the case would affect\nlandlord-tenant laws. \xe2\x80\x9cSo long as these regulations do not require the landlord to\nsuffer the physical occupation of a portion of his building by a third party, they will\nbe analyzed under the multifactor inquiry generally applicable to nonpossessory\ngovernmental activity.\xe2\x80\x9d Id., at 440 (citing Penn Central ).\n4\n\nAccording to The Chief Justice\xe2\x80\x99s dissent, even a temporary, useprohibiting\nregulation should be governed by our physical takings cases because, under Lucas v.\nSouth Carolina Coastal Council, 505 U. S. 1003, 1017 (1992), \xe2\x80\x9cfrom the landowner\xe2\x80\x99s\npoint of view,\xe2\x80\x9d the moratorium is the functional equivalent of a forced leasehold,\npost, at 348. Of course, from both the landowner\xe2\x80\x99s and the government\xe2\x80\x99s standpoint\nthere are critical differences between a leasehold and a moratorium. Condemnation\nof a leasehold gives the government possession of the property, the right to admit\nand exclude others, and the right to use it for a public purpose. A regulatory taking,\nby contrast, does not give the government any right to use the property, nor does it\ndispossess the owner or affect her right to exclude others.\n5\n\n551\n\n\x0cwhich the government directly appropriates private\nproperty for its own use,\xe2\x80\x9d Eastern Enterprises v. Apfel, 524 U.\nS. 498, 522 (1998); instead the interference with property\nrights \xe2\x80\x9carises from some public program adjusting the\nbenefits and burdens of economic life to promote the\ncommon good,\xe2\x80\x9d Penn Central, 438 U. S., at 124.\nPerhaps recognizing this fundamental distinction,\npetitioners wisely do not place all their emphasis on\nanalogies to physical takings cases. Instead, they rely\nprincipally on our decision in Lucas v. South Carolina Coastal\nCouncil, 505 U. S. 1003 (1992)\xe2\x80\x93a regulatory takings case\nthat, nevertheless, applied a categorical rule\xe2\x80\x93to argue that\nthe Penn Central framework is inapplicable here. A brief\nreview of some of the cases that led to our decision in\nLucas, however, will help to explain why the holding in that\ncase does not answer the question presented here.\nAs we noted in Lucas, it was Justice Holmes\xe2\x80\x99 opinion in\nPennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922),6 that\ngave birth to our regulatory takings jurisprudence.7 In\nThe Chief Justice stretches Lucas \xe2\x80\x99 \xe2\x80\x9cequivalence\xe2\x80\x9d language too far. For even a\nregulation that constitutes only a minor infringement on property may, from the\nlandowner\xe2\x80\x99s perspective, be the functional equivalent of an appropriation. Lucas\ncarved out a narrow exception to the rules governing regulatory takings for the\n\xe2\x80\x9cextraordinary circumstance\xe2\x80\x9d of a permanent deprivation of all beneficial use. The\nexception was only partially justified based on the \xe2\x80\x9cequivalence\xe2\x80\x9d theory cited by\nThe Chief Justice\xe2\x80\x99s dissent. It was also justified on the theory that, in the \xe2\x80\x9crelatively\nrare situations where the government has deprived a landowner of all economically\nbeneficial uses,\xe2\x80\x9d it is less realistic to assume that the regulation will secure an\n\xe2\x80\x9caverage reciprocity of advantage,\xe2\x80\x9d or that government could not go on if required\nto pay for every such restriction. 505 U. S., at 1017-1018. But as we explain, infra, at\n339-341, these assumptions hold true in the context of a moratorium.\n6 The case involved \xe2\x80\x9ca bill in equity brought by the defendants in error to prevent\nthe Pennsylvania Coal Company from mining under their property in such way as\nto remove the supports and cause a subsidence of the surface and of their house.\xe2\x80\x9d\nMahon, 260 U. S., at 412. Mahon sought to prevent Pennsylvania Coal from mining\nunder his property by relying on a state statute, which prohibited any mining that\ncould undermine the foundation of a home. The company challenged the statute as\na taking of its interest in the coal without compensation.\nIn Lucas, we explained: \xe2\x80\x9cPrior to Justice Holmes\xe2\x80\x99s exposition in Pennsylvania Coal\nCo. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause\n7\n\n552\n\n\x0csubsequent opinions we have repeatedly and consistently\nendorsed Holmes\xe2\x80\x99 observation that \xe2\x80\x9cif regulation goes too\nfar it will be recognized as a taking.\xe2\x80\x9d Id., at 415. Justice\nHolmes did not provide a standard for determining when a\nregulation goes \xe2\x80\x9ctoo far,\xe2\x80\x9d but he did reject the view\nexpressed in Justice Brandeis\xe2\x80\x99 dissent that there could not\nbe a taking because the property remained in the\npossession of the owner and had not been appropriated or\nused by the public.8 After Mahon, neither a physical\nappropriation nor a public use has ever been a necessary\ncomponent of a \xe2\x80\x9cregulatory taking.\xe2\x80\x9d\nIn the decades following that decision, we have \xe2\x80\x9cgenerally\neschewed\xe2\x80\x9d any set formula for determining how far is too\nfar, choosing instead to engage in \xe2\x80\x9c\xe2\x80\x98essentially ad hoc,\nfactual inquiries.\xe2\x80\x99 \xe2\x80\x9d Lucas, 505 U. S., at 1015 (quoting Penn\nCentral, 438 U. S., at 124). Indeed, we still resist the\nreached only a \xe2\x80\x98direct appropriation\xe2\x80\x99 of property, Legal Tender Cases, 12 Wall. 457,\n551 (1871), or the functional equivalent of a \xe2\x80\x98practical ouster of [the owner\xe2\x80\x99s]\npossession,\xe2\x80\x99 Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879) \xe2\x80\xa6 . Justice\nHolmes recognized in Mahon, however, that if the protection against physical\nappropriations of private property was to be meaningfully enforced, the\ngovernment\xe2\x80\x99s power to redefine the range of interests included in the ownership of\nproperty was necessarily constrained by constitutional limits. 260 U. S., at 414-415.\nIf, instead, the uses of private property were subject to unbridled, uncompensated\nqualification under the police power, \xe2\x80\x98the natural tendency of human nature [would\nbe] to extend the qualification more and more until at last private property\ndisappear[ed].\xe2\x80\x99 Id., at 415. These considerations gave birth in that case to the oftcited maxim that, \xe2\x80\x98while property may be regulated to a certain extent, if regulation\ngoes too far it will be recognized as a taking.\xe2\x80\x99 Ibid. \xe2\x80\x9d 505 U. S., at 1014 (citation\nomitted).\nJustice Brandeis argued: \xe2\x80\x9cEvery restriction upon the use of property imposed in\nthe exercise of the police power deprives the owner of some right theretofore\nenjoyed, and is, in that sense, an abridgment by the State of rights in property\nwithout making compensation. But restriction imposed to protect the public health,\nsafety or morals from dangers threatened is not a taking. The restriction here in\nquestion is merely the prohibition of a noxious use. The property so restricted\nremains in the possession of its owner. The State does not appropriate it or make\nany use of it. The State merely prevents the owner from making a use which\ninterferes with paramount rights of the public.\xe2\x80\x9d Mahon, 260 U. S., at 417 (dissenting\nopinion).\n8\n\n553\n\n\x0ctemptation to adopt per se rules in our cases involving\npartial regulatory takings, preferring to examine \xe2\x80\x9ca number\nof factors\xe2\x80\x9d rather than a simple \xe2\x80\x9cmathematically precise\xe2\x80\x9d\nformula.9 Justice Brennan\xe2\x80\x99s opinion for the Court in Penn\nCentral did, however, make it clear that even though\nmultiple factors are relevant in the analysis of regulatory\ntakings claims, in such cases we must focus on \xe2\x80\x9cthe parcel\nas a whole\xe2\x80\x9d:\n\xe2\x80\x9c\xe2\x80\x98Taking\xe2\x80\x99 jurisprudence does not\ndivide a single parcel into discrete\nsegments and attempt to determine\nwhether rights in a particular segment\nhave been entirely abrogated. In\ndeciding\nwhether\na\nparticular\ngovernmental action has effected a\ntaking, this Court focuses rather both\non the character of the action and on\nthe nature and extent of the\ninterference with rights in the parcel as\na whole\xe2\x80\x93here, the city tax block\ndesignated as the \xe2\x80\x98landmark site.\xe2\x80\x99 \xe2\x80\x9d Id.,\nat 130-131.\nThis requirement that \xe2\x80\x9cthe aggregate must be viewed in its\nentirety\xe2\x80\x9d explains why, for example, a regulation that\nprohibited commercial transactions in eagle feathers, but\ndid not bar other uses or impose any physical invasion or\nrestraint upon them, was not a taking. Andrus v. Allard, 444\nU. S. 51, 66 (1979). It also clarifies why restrictions on the\nIn her concurring opinion in Palazzolo, 533 U. S., at 633, Justice O\xe2\x80\x99Connor\nreaffirmed this approach: \xe2\x80\x9cOur polestar instead remains the principles set forth in\nPenn Central itself and our other cases that govern partial regulatory takings. Under\nthese cases, interference with investment-backed expectations is one of a number\nof factors that a court must examine.\xe2\x80\x9d Ibid. \xe2\x80\x9cPenn Central does not supply\nmathematically precise variables, but instead provides important guide posts that\nlead to the ultimate determination whether just compensation is required.\xe2\x80\x9d Id., at\n634. \xe2\x80\x9cThe temptation to adopt what amount to per se rules in either direction must\nbe resisted. The Takings Clause requires careful examination and weighing of all\nthe relevant circumstances in this context.\xe2\x80\x9d Id., at 636.\n9\n\n554\n\n\x0cuse of only limited portions of the parcel, such as setback\nordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a\nrequirement that coal pillars be left in place to prevent mine\nsubsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480\nU. S., at 498,were not considered regulatory takings. In\neach of these cases, we affirmed that \xe2\x80\x9cwhere an owner\npossesses a full \xe2\x80\x98bundle\xe2\x80\x99 of property rights, the destruction\nof one \xe2\x80\x98strand\xe2\x80\x99 of the bundle is not a taking.\xe2\x80\x9d Andrus, 444\nU. S., at 65-66.\nWhile the foregoing cases considered whether particular\nregulations had \xe2\x80\x9cgone too far\xe2\x80\x9d and were therefore invalid,\nnone of them addressed the separate remedial question of\nhow compensation is measured once a regulatory taking is\nestablished. In his dissenting opinion in San Diego Gas &\nElec. Co. v. San Diego, 450 U. S. 621, 636 (1981), Justice\nBrennan identified that question and explained how he\nwould answer it:\n\xe2\x80\x9cThe constitutional rule I propose\nrequires that, once a court finds that a\npolice power regulation has effected a\n\xe2\x80\x98taking,\xe2\x80\x99 the government entity must\npay just compensation for the period\ncommencing on the date the\nregulation first effected the \xe2\x80\x98taking,\xe2\x80\x99\nand ending on the date the\ngovernment entity chooses to rescind\nor otherwise amend the regulation.\xe2\x80\x9d\nId., at 658.\nJustice Brennan\xe2\x80\x99s proposed rule was subsequently endorsed\nby the Court in First English, 482 U. S., at 315, 318, 321.\nFirst English was certainly a significant decision, and nothing\nthat we say today qualifies its holding. Nonetheless, it is\nimportant to recognize that we did not address in that case\nthe quite different and logically prior question whether the\ntemporary regulation at issue had in fact constituted a\ntaking.\n\n555\n\n\x0cIn First English, the Court unambiguously and repeatedly\ncharacterized the issue to be decided as a \xe2\x80\x9ccompensation\nquestion\xe2\x80\x9d or a \xe2\x80\x9cremedial question.\xe2\x80\x9d Id., at 311 (\xe2\x80\x9cThe\ndisposition of the case on these grounds isolates the\nremedial question for our consideration\xe2\x80\x9d); see also id., at\n313, 318. And the Court\xe2\x80\x99s statement of its holding was\nequally unambiguous: \xe2\x80\x9cWe merely hold that where the\ngovernment\xe2\x80\x99s activities have already worked a taking of all use\nof property, no subsequent action by the government can\nrelieve it of the duty to provide compensation for the\nperiod during which the taking was effective.\xe2\x80\x9d Id., at 321\n(emphasis added). In fact, First English expressly disavowed\nany ruling on the merits of the takings issue because the\nCalifornia courts had decided the remedial question on the\nassumption that a taking had been alleged. Id., at 312-313\n(\xe2\x80\x9cWe reject appellee\xe2\x80\x99s suggestion that \xe2\x80\xa6 we must\nindependently evaluate the adequacy of the complaint and\nresolve the takings claim on the merits before we can reach\nthe remedial question\xe2\x80\x9d). After our remand, the California\ncourts concluded that there had not been a taking, First\nEnglish Evangelical Church of Glendale v. County of Los Angeles,\n210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we\ndeclined review of that decision, 493 U. S. 1056 (1990).\nTo the extent that the Court in First English referenced the\nantecedent takings question, we identified two reasons why\na regulation temporarily denying an owner all use of her\nproperty might not constitute a taking. First, we recognized\nthat \xe2\x80\x9cthe county might avoid the conclusion that a\ncompensable taking had occurred by establishing that the\ndenial of all use was insulated as a part of the State\xe2\x80\x99s\nauthority to enact safety regulations.\xe2\x80\x9d 482 U. S., at 313.\nSecond, we limited our holding \xe2\x80\x9cto the facts presented\xe2\x80\x9d\nand recognized \xe2\x80\x9cthe quite different questions that would\narise in the case of normal delays in obtaining building\npermits, changes in zoning ordinances, variances, and the\nlike which [were] not before us.\xe2\x80\x9d Id., at 321. Thus, our\n\n556\n\n\x0cdecision in First English surely did not approve, and\nimplicitly rejected, the categorical submission that\npetitioners are now advocating.\nSimilarly, our decision in Lucas is not dispositive of the\nquestion presented. Although Lucas endorsed and applied a\ncategorical rule, it was not the one that petitioners propose.\nLucas purchased two residential lots in 1988 for $975,000.\nThese lots were rendered \xe2\x80\x9cvalueless\xe2\x80\x9d by a statute enacted\ntwo years later. The trial court found that a taking had\noccurred and ordered compensation of $1,232,387.50,\nrepresenting the value of the fee simple estate, plus interest.\nAs the statute read at the time of the trial, it effected a\ntaking that \xe2\x80\x9cwas unconditional and permanent.\xe2\x80\x9d 505 U. S.,\nat 1012. While the State\xe2\x80\x99s appeal was pending, the statute\nwas amended to authorize exceptions that might have\nallowed Lucas to obtain a building permit. Despite the fact\nthat the amendment gave the State Supreme Court the\nopportunity to dispose of the appeal on ripeness grounds, it\nresolved the merits of the permanent takings claim and\nreversed. Since \xe2\x80\x9cLucas had no reason to proceed on a\n\xe2\x80\x98temporary taking\xe2\x80\x99 theory at trial,\xe2\x80\x9d we decided the case on\nthe permanent taking theory that both the trial court and\nthe State Supreme Court had addressed. Ibid.\nThe categorical rule that we applied in Lucas states that\ncompensation is required when a regulation deprives an\nowner of \xe2\x80\x9dall economically beneficial uses\xe2\x80\x9d of his land. Id.,\nat 1019. Under that rule, a statute that \xe2\x80\x9cwholly eliminated\nthe value\xe2\x80\x9d of Lucas\xe2\x80\x99 fee simple title clearly qualified as a\ntaking. But our holding was limited to \xe2\x80\x9cthe extraordinary\ncircumstance when no productive or economically\nbeneficial use of land is permitted.\xe2\x80\x9d Id., at 1017. The\nemphasis on the word \xe2\x80\x9cno\xe2\x80\x9d in the text of the opinion was,\nin effect, reiterated in a footnote explaining that the\ncategorical rule would not apply if the diminution in value\n\n557\n\n\x0cwere 95% instead of 100%. Id., at 1019, n. 8.10 Anything\nless than a \xe2\x80\x9ccomplete elimination of value,\xe2\x80\x9d or a \xe2\x80\x9ctotal\nloss,\xe2\x80\x9d the Court acknowledged, would require the kind of\nanalysis applied in Penn Central. Lucas, 505 U. S., at 10191020, n. 8.11\nCertainly, our holding that the permanent \xe2\x80\x9cobliteration of\nthe value\xe2\x80\x9d of a fee simple estate constitutes a categorical\ntaking does not answer the question whether a regulation\nprohibiting any economic use of land for a 32-month\nperiod has the same legal effect. Petitioners seek to bring\nthis case under the rule announced in Lucas by arguing that\nwe can effectively sever a 32-month segment from the\nremainder of each landowner\xe2\x80\x99s fee simple estate, and then\nask whether that segment has been taken in its entirety by\nthe moratoria. Of course, defining the property interest\ntaken in terms of the very regulation being challenged is\ncircular. With property so divided, every delay would\nbecome a total ban; the moratorium and the normal permit\nprocess alike would constitute categorical takings.\nPetitioners\xe2\x80\x99 \xe2\x80\x9cconceptual severance\xe2\x80\x9d argument is unavailing\nbecause it ignores Penn Central \xe2\x80\x98s admonition that in\nregulatory takings cases we must focus on \xe2\x80\x9cthe parcel as a\nwhole.\xe2\x80\x9d 438 U. S., at 130\xe2\x80\x93 131. We have consistently\nrejected such an approach to the \xe2\x80\x9cdenominator\xe2\x80\x9d question.\nSee Keystone, 480 U. S., at 497. See also Concrete Pipe &\nProducts of Cal., Inc. v. Construction Laborers Pension Trust for\nSouthern Cal., 508 U. S. 602, 644 (1993) (\xe2\x80\x9cTo the extent that\nany portion of property is taken, that portion is always\ntaken in its entirety; the relevant question, however, is\nwhether the property taken is all, or only a portion of, the\nJustice Kennedy concurred in the judgment on the basis of the regulation\xe2\x80\x99s\nimpact on \xe2\x80\x9creasonable, investment-backed expectations.\xe2\x80\x9d 505 U. S., at 1034.\n10\n\nIt is worth noting that Lucas underscores the difference between physical and\nregulatory takings. See supra, at 322-325. For under our physical takings cases it\nwould be irrelevant whether a property owner maintained 5% of the value of her\nproperty so long as there was a physical appropriation of any of the parcel.\n11\n\n558\n\n\x0cparcel in question\xe2\x80\x9d). Thus, the District Court erred when it\ndisaggregated petitioners\xe2\x80\x99 property into temporal segments\ncorresponding to the regulations at issue and then analyzed\nwhether petitioners were deprived of all economically\nviable use during each period. 34 F. Supp. 2d, at 1242-1245.\nThe starting point for the court\xe2\x80\x99s analysis should have been\nto ask whether there was a total taking of the entire parcel;\nif not, then Penn Central was the proper framework.12\nAn interest in real property is defined by the metes and\nbounds that describe its geographic dimensions and the\nterm of years that describes the temporal aspect of the\nowner\xe2\x80\x99s interest. See Restatement of Property \xc2\xa7\xc2\xa7 7-9\n(1936). Both dimensions must be considered if the interest\nis to be viewed in its entirety. Hence, a permanent\ndeprivation of the owner\xe2\x80\x99s use of the entire area is a taking\nof \xe2\x80\x9cthe parcel as a whole,\xe2\x80\x9d whereas a temporary restriction\nthat merely causes a diminution in value is not. Logically, a\nfee simple estate cannot be rendered valueless by a\ntemporary prohibition on economic use, because the\nproperty will recover value as soon as the prohibition is\nlifted. Cf. Agins v. City of Tiburon, 447 U. S., at 263, n. 9\n(\xe2\x80\x9cEven if the appellants\xe2\x80\x99 ability to sell their property was\nlimited during the pendency of the condemnation\nproceeding, the appellants were free to sell or develop their\nproperty when the proceedings ended. Mere fluctuations in\nvalue during the process of governmental decisionmaking,\nabsent extraordinary delay, are \xe2\x80\x98incidents of ownership.\nThey cannot be considered as a \xe2\x80\x9ctaking\xe2\x80\x9d in the\nconstitutional sense\xe2\x80\x99 \xe2\x80\x9d (quoting Danforth v. United States, 308\nU. S. 271, 285 (1939))).\nNeither Lucas, nor First English, nor any of our other\nregulatory takings cases compels us to accept petitioners\xe2\x80\x99\nThe Chief Justice\xe2\x80\x99s dissent makes the same mistake by carving out a 6-year\ninterest in the property, rather than considering the parcel as a whole, and treating\nthe regulations covering that segment as analogous to a total taking under Lucas,\npost, at 351.\n12\n\n559\n\n\x0ccategorical submission. In fact, these cases make clear that\nthe categorical rule in Lucas was carved out for the\n\xe2\x80\x9cextraordinary case\xe2\x80\x9d in which a regulation permanently\ndeprives property of all value; the default rule remains that,\nin the regulatory taking context, we require a more fact\nspecific inquiry. Nevertheless, we will consider whether the\ninterest in protecting individual property owners from\nbearing public burdens \xe2\x80\x9cwhich, in all fairness and justice,\nshould be borne by the public as a whole,\xe2\x80\x9d Armstrong v.\nUnited States, 364 U. S., at 49, justifies creating a new rule\nfor these circumstances.13\nV\nConsiderations of \xe2\x80\x9cfairness and justice\xe2\x80\x9d arguably could\nsupport the conclusion that TRPA\xe2\x80\x99s moratoria were takings\nof petitioners\xe2\x80\x99 property based on any of seven different\ntheories. First, even though we have not previously done\nso, we might now announce acategorical rule that, in the\ninterest of fairness and justice, compensation is required\nwhenever government temporarily deprives an owner of all\neconomically viable use of her property. Second, we could\ncraft a narrower rule that would cover all temporary\nlanduse restrictions except those \xe2\x80\x9cnormal delays in\nobtaining building permits, changes in zoning ordinances,\nvariances, and the like\xe2\x80\x9d which were put to one side in our\nopinion in First English, 482 U. S., at 321. Third, we could\nadopt a rule like the one suggested by an amicus supporting\npetitioners that would \xe2\x80\x9callow a short fixed period for\ndeliberations to take place without compensation\xe2\x80\x93say\nmaximum one year\xe2\x80\x93after which the just compensation\n\nArmstrong, like Lucas, was a case that involved the \xe2\x80\x9ctotal destruction by the\nGovernment of all value\xe2\x80\x9d in a specific property interest. 364 U. S., at 48-49. It is\nnevertheless perfectly clear that Justice Black\xe2\x80\x99s oft-quoted comment about the\nunderlying purpose of the guarantee that private property shall not be taken for a\npublic use without just compensation applies to partial takings as well as total\ntakings.\n13\n\n560\n\n\x0crequirements\xe2\x80\x9d would \xe2\x80\x9ckick in.\xe2\x80\x9d14 Fourth, with the benefit\nof hindsight, we might characterize the successive actions\nof TRPA as a \xe2\x80\x9cseries of rolling moratoria\xe2\x80\x9d that were the\nfunctional equivalent of a permanent taking.15 Fifth, were it\nnot for the findings of the District Court that TRPA acted\ndiligently and in good faith, we might have concluded that\nthe agency was stalling in order to avoid promulgating the\nenvironmental threshold carrying capacities and regional\nplan mandated by the 1980 Compact. Cf. Monterey v. Del\nMonte Dunes at Monterey, Ltd., 526 U. S. 687, 698 (1999).\nSixth, apart from the District Court\xe2\x80\x99s finding that TRPA\xe2\x80\x99s\nactions represented a proportional response to a serious\nrisk of harm to the lake, petitioners might have argued that\nthe moratoria did not substantially advance a legitimate\nstate interest, see Agins and Monterey. Finally, if petitioners\nhad challenged the application of the moratoria to their\nindividual parcels, instead of making a facial challenge,\nsome of them might have prevailed under a Penn Central\nanalysis.\nAs the case comes to us, however, none of the last four\ntheories is available. The \xe2\x80\x9crolling moratoria\xe2\x80\x9d theory was\npresented in the petition for certiorari, but our order\ngranting review did not encompass that issue, 533 U. S. 948\n(2001); the case was tried in the District Court and\nreviewed in the Court of Appeals on the theory that each of\nthe two moratoria was a separate taking, one for a 2-year\nperiod and the other for an 8-month period. 216 F. 3d, at\n769. And, as we have already noted, recovery on either a\nbad faith theory or a theory that the state interests were\ninsubstantial is foreclosed by the District Court\xe2\x80\x99s\nBrief for the Institute for Justice as Amicus Curiae 30. Although amicus describes\nthe 1-year cutoff proposal as the \xe2\x80\x9cbetter approach by far,\xe2\x80\x9dibid., its primary\nargument is that Penn Central should be overruled, id., at 20 (\xe2\x80\x9dAll partial takings by\nway of land use restriction should be subject to the same prima facie rules for\ncompensation as a physical occupation for a limited period of time\xe2\x80\x9d).\n14\n\n15\n\nBrief for Petitioners 44.See also Pet. for Cert. i.\n\n561\n\n\x0cunchallenged findings of fact. Recovery under a Penn Central\nanalysis is also foreclosed both because petitioners\nexpressly disavowed that theory, and because they did not\nappeal from the District Court\xe2\x80\x99s conclusion that the\nevidence would not support it. Nonetheless, each of the\nthree per se theories is fairly encompassed within the\nquestion that we decided to answer.\nWith respect to these theories, the ultimate constitutional\nquestion is whether the concepts of \xe2\x80\x9cfairness and justice\xe2\x80\x9d\nthat underlie the Takings Clause will be better served by\none of these categorical rules or by a Penn Central inquiry\ninto all of the relevant circumstances in particular cases.\nFrom that perspective, the extreme categorical rule that any\ndeprivation of all economic use, no matter how brief,\nconstitutes a compensable taking surely cannot be\nsustained. Petitioners\xe2\x80\x99 broad submission would apply to\nnumerous \xe2\x80\x9cnormal delays in obtaining building permits,\nchanges in zoning ordinances, variances, and the like,\xe2\x80\x9d 482\nU. S., at 321, as well as to orders temporarily prohibiting\naccess to crime scenes, businesses that violate health codes,\nfire-damaged buildings, or other areas that we cannot now\nforesee. Such a rule would undoubtedly require changes in\nnumerous practices that have long been considered\npermissible exercises of the police power. As Justice\nHolmes warned in Mahon, \xe2\x80\x9c[g]overnment hardly could go\non if to some extent values incident to property could not\nbe diminished without paying for every such change in the\ngeneral law.\xe2\x80\x9d 260 U. S., at 413. A rule that required\ncompensation for every delay in the use of property would\nrender routine government processes prohibitively\nexpensive or encourage hasty decisionmaking. Such an\nimportant change in the law should be the product of\nlegislative rulemaking rather than adjudication.16\nIn addition, we recognize the anomaly that would be created if we were to apply\nPenn Central when a landowner is permanently deprived of 95% of the use of her\nproperty, Lucas, 505 U. S.,at 1019, n. 8, and yet find a per se taking anytime the same\n16\n\n562\n\n\x0cMore importantly, for reasons set out at some length by\nJustice O\xe2\x80\x99Connor in her concurring opinion in Palazzolo v.\nRhode Island, 533 U. S., at 636, we are persuaded that the\nbetter approach to claims that a regulation has effected a\ntemporary taking \xe2\x80\x9crequires careful examination and\nweighing of all the relevant circumstances.\xe2\x80\x9d In that opinion,\nJustice O\xe2\x80\x99Connor specifically considered the role that the\n\xe2\x80\x9ctemporal relationship between regulatory enactment and\ntitle acquisition\xe2\x80\x9d should play in the analysis of a takings\nclaim. Id., at 632. We have no occasion to address that\nparticular issue in this case, because it involves a different\ntemporal relationship\xe2\x80\x93the distinction between a temporary\nrestriction and one that is permanent. Her comments on\nthe \xe2\x80\x9cfairness and justice\xe2\x80\x9d inquiry are, nevertheless,\ninstructive:\n\xe2\x80\x9cToday\xe2\x80\x99s holding does not mean that\nthe timing of the regulation\xe2\x80\x99s\nenactment relative to the acquisition of\ntitle is immaterial to the Penn Central\nanalysis. Indeed, it would be just as\nmuch error to expunge this\nconsideration from the takings inquiry\nas it would be to accord it exclusive\nsignificance. Our polestar instead\nremains the principles set forth in Penn\nCentral itself and our other cases that\ngovern partial regulatory takings.\nUnder these cases, interference with\ninvestment-backed expectations is one\nof a number of factors that a court\nmust examine\xe2\x80\xa6 .\n\nproperty owner is deprived of all use for only five days. Such a scheme would\npresent an odd inversion of Justice Holmes\xe2\x80\x99 adage: \xe2\x80\x9cA limit in time, to tide over a\npassing trouble, well may justify a law that could not be upheld as a permanent\nchange.\xe2\x80\x9d Block v. Hirsh, 256 U. S. 135, 157 (1921).\n\n563\n\n\x0c\xe2\x80\x9cThe Fifth Amendment forbids the\ntaking of private property for public\nuse without just compensation. We\nhave\nrecognized\nthat\nthis\nconstitutional guarantee is \xe2\x80\x99 \xe2\x80\x9cdesigned\nto bar Government from forcing some\npeople alone to bear public burdens\nwhich, in all fairness and justice,\nshould be borne by the public as a\nwhole.\xe2\x80\x9d\xe2\x80\x99 Penn Central, [438 U. S.], at\n123-124 (quoting Armstrong v. United\nStates, 364 U. S. 40, 49 (1960)). The\nconcepts of \xe2\x80\x98fairness and justice\xe2\x80\x99 that\nunderlie the Takings Clause, of course,\nare less than fully determinate.\nAccordingly, we have eschewed \xe2\x80\x98any\n\xe2\x80\x9cset formula\xe2\x80\x9d for determining when\n\xe2\x80\x9cjustice and fairness\xe2\x80\x9d require that\neconomic injuries caused by public\naction be compensated by the\ngovernment, rather than remain\ndisproportionately concentrated on a\nfew persons.\xe2\x80\x99 Penn Central, supra, at 124\n(quoting Goldblatt v. Hempstead, 369 U.\nS. 590, 594 (1962)). The outcome\ninstead \xe2\x80\x98depends largely \xe2\x80\x9cupon the\nparticular circumstances [in that]\ncase.\xe2\x80\x9d\xe2\x80\x99 Penn Central, supra, at 124\n(quoting United States v. Central Eureka\nMining Co., 357 U. S. 155, 168 (1958)).\xe2\x80\x9d\nId., at 633.\nIn rejecting petitioners\xe2\x80\x99 per se rule, we do not hold that the\ntemporary nature of a land-use restriction precludes finding\nthat it effects a taking; we simply recognize that it should\nnot be given exclusive significance one way or the other.\nA narrower rule that excluded the normal delays associated\nwith processing permits, or that covered only delays of\nmore than a year, would certainly have a less severe impact\n\n564\n\n\x0con prevailing practices, but it would still impose serious\nfinancial constraints on the planning process.17 Unlike the\n\xe2\x80\x9cextraordinary circumstance\xe2\x80\x9d in which the government\ndeprives a property owner of all economic use, Lucas, 505\nU. S., at 1017, moratoria like Ordinance 81-5 and\nResolution 83\xe2\x80\x9321 are used widely among land-use planners\nto preserve the status quo while formulating a more\npermanent development strategy.18 In fact, the consensus in\nthe planning community appears to be that moratoria, or\nPetitioners fail to offer a persuasive explanation for why moratoria should be\ntreated differently from ordinary permit delays. They contend that a permit\napplicant need only comply with certain specific requirements in order to receive\none and can expect to develop at the end of the process, whereas there is nothing\nthe landowner subject to a moratorium can do but wait, with no guarantee that a\npermit will be granted at the end of the process. Brief for Petitioners 28. Setting\naside the obvious problem with basing the distinction on a course of events we can\nonly know after the fact\xe2\x80\x93in the context of a facial challenge\xe2\x80\x93petitioners\xe2\x80\x99 argument\nbreaks down under closer examination because there is no guarantee that a permit\nwill be granted, or that a decision will be made within a year. See, e. g., Dufau v.\nUnited States, 22 Cl. Ct. 156 (1990) (holding that 16-month delay in granting a\npermit did not constitute a temporary taking). Moreover, under petitioners\xe2\x80\x99\nmodified categorical rule, there would be no per se taking if TRPA simply delayed\naction on all permits pending a regional plan. Fairness and justice do not require\nthat TRPA be penalized for achieving the same result, but with full disclosure.\n17\n\nSee, e. g., Santa Fe Village Venture v. Albuquerque, 914 F. Supp. 478, 483 (N. M.\n1995) (30-month moratorium on development of lands within the Petroglyph\nNational Monument was not a taking); Williams v. Central, 907 P. 2d 701, 703-706\n(Colo. App. 1995) (10-month moratorium on development in gaming district while\nstudying city\xe2\x80\x99s ability to absorb growth was not a compensable taking); Woodbury\nPlace Partners v. Woodbury, 492 N. W. 2d 258 (Minn. App. 1993) (moratorium\npending review of plan for land adjacent to interstate highway was not a taking\neven though it deprived property owner of all economically viable use of its\nproperty for two years); Zilber v. Moranga, 692 F. Supp. 1195 (ND Cal. 1988) (18month development moratorium during completion of a comprehensive scheme\nfor open space did not require compensation). See also Wayman, Leaders Consider\nOptions for Town Growth, Charlotte Observer, Feb. 3, 2002, p. 15M (describing\n10-month building moratorium imposed \xe2\x80\x9cto give town leaders time to plan for\ndevelopment\xe2\x80\x9d); Wallman, City May Put Reins on Beach Projects, Sun-Sentinel, May\n16, 2000, p. 1B (2-year building moratorium on beach front property in Fort\nLauderdale pending new height, width, and dispersal regulations); Foderaro, In\nSuburbs, They\xe2\x80\x99re Cracking Down on the Joneses, N. Y. Times, Mar. 19, 2001, p.\nA1 (describing moratorium imposed in Eastchester, New York, during a review of\nthe town\xe2\x80\x99s zoning code to address the problem of oversized homes); Dawson,\nCommissioners recommend Aboite construction ban be lifted, Fort Wayne News\nSentinel, May 4, 2001, p. 1A (3-year moratorium to allow improvements in the\nwater and sewage treatment systems).\n18\n\n565\n\n\x0c\xe2\x80\x9cinterim development controls\xe2\x80\x9d as they are often called, are\nan essential tool of successful development.19 Yet even the\nweak version of petitioners\xe2\x80\x99 categorical rule would treat\nthese interim measures as takings regardless of the good\nfaith of the planners, the reasonable expectations of the\nlandowners, or the actual impact of the moratorium on\nproperty values.20\nThe interest in facilitating informed decisionmaking by\nregulatory agencies counsels against adopting a per se rule\nthat would impose such severe costs on their deliberations.\nOtherwise, the financial constraints of compensating\nproperty owners during a moratorium may force officials to\nrush through the planning process or to abandon the\npractice altogether. To the extent that communities are\nforced to abandon using moratoria, landowners will have\nincentives to develop their property quickly before a\ncomprehensive plan can be enacted, thereby fostering\ninefficient and ill-conceived growth. A finding in the 1980\nCompact itself, which presumably was endorsed by all three\nlegislative bodies that participated in its enactment, attests\nto the importance of that concern. 94 Stat. 3243 (\xe2\x80\x9cThe\nSee J. Juergensmeyer & T. Roberts, Land Use Planning and Control Law \xc2\xa7\xc2\xa7\n5.28(G) and 9.6 (1998); Garvin & Leitner, Drafting Interim Development\nOrdinances: Creating Time to Plan, 48 Land Use Law & Zoning Digest 3 (June\n1996) (\xe2\x80\x9cWith the planning so protected, there is no need for hasty adoption of\npermanent controls in order to avoid the establishment of nonconforming uses, or\nto respond in an ad hoc fashion to specific problems. Instead, the planning and\nimplementation process may be permitted to run its full and natural course with\nwidespread citizen input and involvement, public debate, and full consideration of\nall issues and points of view\xe2\x80\x9d); Freilich, Interim Development Controls: Essential\nTools for Implementing Flexible Planning and Zoning, 49 J. Urb. L. 65 (1971).\n19\n\nThe Chief Justice offers another alternative, suggesting that delays of six years or\nmore should be treated as per se takings. However, his dissent offers no explanation\nfor why 6 years should be the cutoff point rather than 10 days, 10 months, or 10\nyears. It is worth emphasizing that we do not reject a categorical rule in this case\nbecause a 32-month moratorium is just not that harsh. Instead, we reject a\ncategorical rule because we conclude that the Penn Central framework adequately\ndirects the inquiry to the proper considerations\xe2\x80\x93only one of which is the length of\nthe delay.\n20\n\n566\n\n\x0clegislatures of the States of California and Nevada find that\nin order to make effective the regional plan as revised by\nthe agency, it is necessary to halt temporarily works of\ndevelopment in the region which might otherwise absorb\nthe entire capability of the region for further development\nor direct it out of harmony with the ultimate plan\xe2\x80\x9d).\n\xe2\x80\xa6.\nWe would create a perverse system of incentives were we\nto hold that landowners must wait for a takings claim to\nripen so that planners can make well-reasoned decisions\nwhile, at the same time, holding that those planners must\ncompensate landowners for the delay.\nIndeed, the interest in protecting the decisional process is\neven stronger when an agency is developing a regional plan\nthan when it is considering a permit for a single parcel. In\nthe proceedings involving the Lake Tahoe Basin, for\nexample, the moratoria enabled TRPA to obtain the benefit\nof comments and criticisms from interested parties, such as\nthe petitioners, during its deliberations.21 Since a categorical\nrule tied to the length of deliberations would likely create\nadded pressure on decisionmakers to reach a quick\nresolution of land-use questions, it would only serve to\ndisadvantage those landowners and interest groups who are\nnot as organized or familiar with the planning process.\nMoreover, with a temporary ban on development there is a\nlesser risk that individual landowners will be \xe2\x80\x9csingled out\xe2\x80\x9d\nto bear a special burden that should be shared by the public\nas a whole. Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U. S. 825,\n835 (1987). At least with a moratorium there is a clear\nPetitioner Preservation Council, \xe2\x80\x9cthrough its authorized representatives, actively\nparticipated in the entire TRPA regional planning process leading to the adoption\nof the 1984 Regional Plan at issue in this action, and attended and expressed its\nviews and concerns, orally and in writing, at each public hearing held by the\nDefendant TRPA in connection with the consideration of the 1984 Regional Plan\nat issue herein, as well as in connection with the adoption of Ordinance 81-5 and\nthe Revised 1987 Regional Plan addressed herein.\xe2\x80\x9d App. 24.\n21\n\n567\n\n\x0c\xe2\x80\x9creciprocity of advantage,\xe2\x80\x9d Mahon, 260 U. S., at 415,\nbecause it protects the interests of all affected landowners\nagainst immediate construction that might be inconsistent\nwith the provisions of the plan that is ultimately adopted.\n\xe2\x80\x9cWhile each of us is burdened somewhat by such\nrestrictions, we, in turn, benefit greatly from the restrictions\nthat are placed on others.\xe2\x80\x9d Keystone, 480 U. S., at 491. In\nfact, there is reason to believe property values often will\ncontinue to increase despite a moratorium. See, e. g., Growth\nProperties, Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218\n(Md. 1976) (noting that land values could be expected to\nincrease 20% during a 5-year moratorium on development).\nCf. Forest Properties, Inc. v. United States, 177 F. 3d 1360, 1367\n(CA Fed. 1999) (record showed that market value of the\nentire parcel increased despite denial of permit to fill and\ndevelop lake-bottom property). Such an increase makes\nsense in this context because property values throughout\nthe Basin can be expected to reflect the added assurance\nthat Lake Tahoe will remain in its pristine state. Since in\nsome cases a 1-year moratorium may not impose a burden\nat all, we should not adopt a rule that assumes moratoria\nalways force individuals to bear a special burden that\nshould be shared by the public as a whole.\nIt may well be true that any moratorium that lasts for more\nthan one year should be viewed with special skepticism. But\ngiven the fact that the District Court found that the 32\nmonths required by TRPA to formulate the 1984 Regional\nPlan was not unreasonable, we could not possibly conclude\nthat every delay of over one year is constitutionally\nunacceptable.22 Formulating a general rule of this kind is a\n\nWe note that the temporary restriction that was ultimately upheld in the First\nEnglish case lasted for more than six years before it was replaced by a permanent\nregulation. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,\n210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989).\n22\n\n568\n\n\x0csuitable task for state legislatures.23 In our view, the\nduration of the restriction is one of the important factors\nthat a court must consider in the appraisal of a regulatory\ntakings claim, but with respect to that factor as with respect\nto other factors, the \xe2\x80\x9ctemptation to adopt what amount to\nper se rules in either direction must be resisted.\xe2\x80\x9d Palazzolo,\n533 U. S., at 636 (O\xe2\x80\x99Connor, J., concurring). There may be\nmoratoria that last longer than one year which interfere\nwith reasonable investment-backed expectations, but as the\nDistrict Court\xe2\x80\x99s opinion illustrates, petitioners\xe2\x80\x99 proposed\nrule is simply \xe2\x80\x9ctoo blunt an instrument\xe2\x80\x9d for identifying\nthose cases. Id., at 628. We conclude, therefore, that the\ninterest in \xe2\x80\x9cfairness and justice\xe2\x80\x9d will be best served by\nrelying on the familiar Penn Central approach when deciding\ncases like this, rather than by attempting to craft a new\ncategorical rule.\nAccordingly, the judgment of the Court of Appeals is\naffirmed.\nIt is so ordered.\nCHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA\nand JUSTICE THOMAS join, dissenting.\n\nSeveral States already have statutes authorizing interim zoning ordinances with\nspecific time limits. See Cal. Govt. Code Ann. \xc2\xa7 65858 (West Supp. 2002)\n(authorizing interim ordinance of up to two years); Colo. Rev. Stat. \xc2\xa7 30-28-121\n(2001) (six months); Ky. Rev. Stat. Ann. \xc2\xa7 100.201 (2001) (one year); Mich. Comp.\nLaws Ann. \xc2\xa7 125.215 (West 2001) (three years); Minn. Stat. \xc2\xa7 394.34 (2000) (two\nyears); N. H. Rev. Stat. Ann. \xc2\xa7 674:23 (West 2001) (one year); Ore. Rev. Stat. Ann.\n\xc2\xa7 197.520 (1997) (10 months); S. D. Codified Laws \xc2\xa7 11-2\xe2\x80\x9310 (2001) (two years);\nUtah Code Ann. \xc2\xa7 17-27-404 (1995) (18 months); Wash. Rev. Code \xc2\xa7 35.63.200\n(2001); Wis. Stat. \xc2\xa7 62.23(7)(d) (2001) (two years). Other States, although without\nspecific statutory authority, have recognized that reasonable interim zoning\nordinances may be enacted. See, e. g., S. E. W. Freil v. Triangle Oil Co., 76 Md. App.\n96, 543 A. 2d 863 (1988); New Jersey Shore Builders Assn. v. Dover Twp. Comm., 191 N.\nJ. Super. 627, 468 A. 2d 742 (1983); SCA Chemical Waste Servs., Inc. v. Konigsberg, 636\nS. W. 2d 430 (Tenn. 1982); Sturgess v. Chilmark, 380 Mass. 246, 402 N. E. 2d 1346\n(1980); Lebanon v. Woods, 153 Conn. 182, 215 A. 2d 112 (1965).\n23\n\n569\n\n\x0cFor over half a decade petitioners were prohibited from\nbuilding homes, or any other structures, on their land.\nBecause the Takings Clause requires the government to pay\ncompensation when it deprives owners of all economically\nviable use of their land, see Lucas v. South Carolina Coastal\nCouncil, 505 U. S. 1003 (1992), and because a ban on all\ndevelopment lasting almost six years does not resemble any\ntraditional land-use planning device, I dissent.\nI\n\xe2\x80\x9cA court cannot determine whether a regulation has gone\n\xe2\x80\x98too far\xe2\x80\x99 unless it knows how far the regulation goes.\xe2\x80\x9d\nMacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340,\n348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U. S.\n393, 415 (1922)).24 In failing to undertake this inquiry, the\nCourt ignores much of the impact of respondent\xe2\x80\x99s conduct\non petitioners. Instead, it relies on the flawed determination\nof the Court of Appeals that the relevant time period lasted\nonly from August 1981 until April 1984.\n\xe2\x80\xa6.\nBecause respondent caused petitioners\xe2\x80\x99 inability to use their\nland from 1981 through 1987, that is the appropriate period\nof time from which to consider their takings claim.\nWe are not bound by the Court of Appeals\xe2\x80\x99 determination that petitioners\xe2\x80\x99 claim\nunder 42 U. S. C. \xc2\xa7 1983 (1994 ed., Supp. V) permitted only challenges to\nOrdinance 81-5 and Regulation 83-21. Petitioners sought certiorari on the Court of\nAppeals\xe2\x80\x99 ruling that respondent Tahoe Regional Planning Agency (hereinafter\nrespondent) did not cause petitioners\xe2\x80\x99 injury from 1984 to 1987. Pet. for Cert. 2730. We did not grant certiorari on any of the petition\xe2\x80\x99s specific questions presented,\nbut formulated the following question: \xe2\x80\x9cWhether the Court of Appeals properly\ndetermined that a temporary moratorium on land development does not constitute\na taking of property requiring compensation under the Takings Clause of the\nUnited States Constitution?\xe2\x80\x9d 533 U. S. 948-949 (2001). This Court\xe2\x80\x99s Rule 14(1)(a)\nprovides that a \xe2\x80\x9cquestion presented is deemed to comprise every subsidiary\nquestion fairly included therein.\xe2\x80\x9d The question of how long the moratorium on\nland development lasted is necessarily subsumed within the question whether the\nmoratorium constituted a taking. Petitioners did not assume otherwise. Their brief\non the merits argues that respondent \xe2\x80\x9ceffectively blocked all construction for the\npast two decades.\xe2\x80\x9d Brief for Petitioners 7.\n24\n\n570\n\n\x0cII\nI now turn to determining whether a ban on all economic\ndevelopment lasting almost six years is a taking. Lucas\nreaffirmed our \xe2\x80\x9cfrequently expressed\xe2\x80\x9d view that \xe2\x80\x9cwhen the\nowner of real property has been called upon to sacrifice all\neconomically beneficial uses in the name of the common\ngood, that is, to leave his property economically idle, he has\nsuffered a taking.\xe2\x80\x9d 505 U. S., at 1019. See also Agins v. City\nof Tiburon, 447 U. S. 255, 258-259 (1980). The District\nCourt in this case held that the ordinances and resolutions\nin effect between August 24, 1981, and April 25, 1984, \xe2\x80\x9cdid\nin fact deny the plaintiffs all economically viable use of\ntheir land.\xe2\x80\x9d 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The\nCourt of Appeals did not overturn this finding. And the\n1984 injunction, issued because the environmental\nthresholds issued by respondent did not permit the\ndevelopment of single-family residences, forced petitioners\nto leave their land economically idle for at least another\nthree years. The Court does not dispute that petitioners\nwere forced to leave their land economically idle during this\nperiod. See ante, at 312. But the Court refuses to apply\nLucas on the ground that the deprivation was \xe2\x80\x9ctemporary.\xe2\x80\x9d\nNeither the Takings Clause nor our case law supports such\na distinction. For one thing, a distinction between\n\xe2\x80\x9ctemporary\xe2\x80\x9d and \xe2\x80\x9cpermanent\xe2\x80\x9d prohibitions is tenuous. The\n\xe2\x80\x9ctemporary\xe2\x80\x9d prohibition in this case that the Court finds is\nnot a taking lasted almost six years.25 The \xe2\x80\x9cpermanent\xe2\x80\x9d\nprohibition that the Court held to be a taking in Lucas\nlasted less than two years. See 505 U. S., at 1011-1012. The\n\xe2\x80\x9cpermanent\xe2\x80\x9d prohibition in Lucas lasted less than two years\nbecause the law, as it often does, changed. The South\nCarolina Legislature in 1990 decided to amend the 1988\nBeach front Management Act to allow the issuance of\nEven under the Court\xe2\x80\x99s mistaken view that the ban on development lasted only\n32 months, the ban in this case exceeded the ban in Lucas.\n25\n\n571\n\n\x0c\xe2\x80\x9c\xe2\x80\x98special permits\xe2\x80\x99 for the construction or reconstruction of\nhabitable structures seaward of the baseline.\xe2\x80\x9d Id., at 10111012. Landuse regulations are not irrevocable. And the\ngovernment can even abandon condemned land. See United\nStates v. Dow, 357 U. S. 17, 26 (1958). Under the Court\xe2\x80\x99s\ndecision today, the takings question turns entirely on the\ninitial label given a regulation, a label that is often without\nmuch meaning. There is every incentive for government to\nsimply label any prohibition on development \xe2\x80\x9ctemporary,\xe2\x80\x9d\nor to fix a set number of years. As in this case, this initial\ndesignation does not preclude the government from\nrepeatedly extending the \xe2\x80\x9ctemporary\xe2\x80\x9d prohibition into a\nlong-term ban on all development. The Court now holds\nthat such a designation by the government is conclusive\neven though in fact the moratorium greatly exceeds the\ntime initially specified. Apparently, the Court would not\nview even a 10-year moratorium as a taking under Lucas\nbecause the moratorium is not \xe2\x80\x9cpermanent.\xe2\x80\x9d\nOur opinion in First English Evangelical Lutheran Church of\nGlendale v. County of Los Angeles, 482 U. S. 304 (1987), rejects\nany distinction between temporary and permanent takings\nwhen a landowner is deprived of all economically beneficial\nuse of his land. First English stated that \xe2\x80\x9c\xe2\x80\x98temporary takings\nwhich, as here, deny a landowner all use of his property, are\nnot different in kind from permanent takings, for which the\nConstitution clearly requires compensation.\xe2\x80\x9d Id., at 318.\nBecause of First English \xe2\x80\x98s rule that \xe2\x80\x9ctemporary deprivations\nof use are compensable under the Takings Clause,\xe2\x80\x9d the\nCourt in Lucas found nothing problematic about the later\ndevelopments that potentially made the ban on\ndevelopment temporary. 505 U. S., at 1011-1012 (citing\nFirst English, supra ); see also 505 U. S., at 1033 (Kennedy, J.,\nconcurring in judgment) (\xe2\x80\x9cIt is well established that\ntemporary takings are as protected by the Constitution as\nare permanent ones\xe2\x80\x9d (citing First English, supra, at 318)).\n\n572\n\n\x0cMore fundamentally, even if a practical distinction between\ntemporary and permanent deprivations were plausible, to\ntreat the two differently in terms of takings law would be at\nodds with the justification for the Lucas rule. The Lucas rule\nis derived from the fact that a \xe2\x80\x9ctotal deprivation of\nbeneficial use is, from the landowner\xe2\x80\x99s point of view, the\nequivalent of a physical appropriation.\xe2\x80\x9d 505 U. S., at 1017.\nThe regulation in Lucas was the \xe2\x80\x9cpractical equivalence\xe2\x80\x9d of a\nlong-term physical appropriation, i. e., a condemnation, so\nthe Fifth Amendment required compensation. The\n\xe2\x80\x9cpractical equivalence,\xe2\x80\x9d from the landowner\xe2\x80\x99s point of\nview, of a \xe2\x80\x9ctemporary\xe2\x80\x9d ban on all economic use is a forced\nleasehold. For example, assume the following situation:\nRespondent is contemplating the creation of a National\nPark around Lake Tahoe to preserve its scenic beauty.\nRespondent decides to take a 6-year leasehold over\npetitioners\xe2\x80\x99 property, during which any human activity on\nthe land would be prohibited, in order to prevent any\nfurther destruction to the area while it was deciding\nwhether to request that the area be designated a National\nPark.\nSurely that leasehold would require compensation. In a\nseries of World War II-era cases in which the Government\nhad condemned leasehold interests in order to support the\nwar effort, the Government conceded that it was required\nto pay compensation for the leasehold interest.26 See United\nStates v. Petty Motor Co., 327 U. S. 372 (1946); United States v.\nGeneral Motors Corp., 323 U. S. 373, 376 (1945). From\nThere was no dispute that just compensation was required in those cases. The\ndisagreement involved how to calculate that compensation. In United States v.\nGeneral Motors Corp., 323 U. S. 373 (1945), for example, the issues before the Court\nwere how to value the leasehold interest (i. e., whether the \xe2\x80\x9clong-term rental value\n[should be] the sole measure of the value of such short-term occupancy,\xe2\x80\x9d id., at\n380), whether the Government had to pay for the respondent\xe2\x80\x99s removal of\npersonal property from the condemned warehouse, and whether the Government\nhad to pay for the reduction in value of the respondent\xe2\x80\x99s equipment and fixtures\nleft in the warehouse. Id., at 380-381.\n26\n\n573\n\n\x0cpetitioners\xe2\x80\x99 standpoint, what happened in this case is no\ndifferent than if the government had taken a 6-year lease of\ntheir property. The Court ignores this \xe2\x80\x9cpractical\nequivalence\xe2\x80\x9d between respondent\xe2\x80\x99s deprivation and the\ndeprivation resulting from a leasehold. In so doing, the\nCourt allows the government to \xe2\x80\x9cdo by regulation what it\ncannot do through eminent domain\xe2\x80\x93i. e., take private\nproperty without paying for it.\xe2\x80\x9d 228 F. 3d 998, 999 (CA9\n2000) (Kozinski, J., dissenting from denial of rehearing en\nbanc).\nInstead of acknowledging the \xe2\x80\x9cpractical equivalence\xe2\x80\x9d of\nthis case and a condemned leasehold, the Court analogizes\nto other areas of takings law in which we have\ndistinguished\nbetween\nregulations\nand\nphysical\nappropriations, see ante, at 321-324. But whatever basis\nthere is for such distinctions in those contexts does not\napply when a regulation deprives a landowner of all\neconomically beneficial use of his land. In addition to the\n\xe2\x80\x9cpractical equivalence\xe2\x80\x9d from the landowner\xe2\x80\x99s perspective of\nsuch a regulation and a physical appropriation, we have\nheld that a regulation denying all productive use of land\ndoes not implicate the traditional justification for\ndifferentiating between regulations and physical\nappropriations. In \xe2\x80\x9cthe extraordinary circumstance when no\nproductive or economically beneficial use of land is\npermitted,\xe2\x80\x9d it is less likely that \xe2\x80\x9cthe legislature is simply\n\xe2\x80\x98adjusting the benefits and burdens of economic life\xe2\x80\x99 \xe2\x80\xa6 in\na manner that secures an \xe2\x80\x98average reciprocity of advantage\xe2\x80\x99\nto everyone concerned,\xe2\x80\x9d Lucas, supra, at 1017-1018 (quoting\nPenn Central Transp. Co. v. New York City, 438 U. S., at 124,\nand Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415), and\nmore likely that the property \xe2\x80\x9cis being pressed into some\nform of public service under the guise of mitigating serious\npublic harm,\xe2\x80\x9d Lucas, supra, at 1018.\nThe Court also reads Lucas as being fundamentally\nconcerned with value, ante, at 329-331, rather than with the\n\n574\n\n\x0cdenial of \xe2\x80\x9call economically beneficial or productive use of\nland,\xe2\x80\x9d 505 U. S., at 1015. But Lucas repeatedly discusses its\nholding as applying where \xe2\x80\x9dno productive or economically\nbeneficial use of land is permitted.\xe2\x80\x9d Id., at 1017; see also\nibid. (\xe2\x80\x9c[T]otal deprivation of beneficial use is, from the\nlandowner\xe2\x80\x99s point of view, the equivalent of a physical\nappropriation\xe2\x80\x9d); id., at 1016 (\xe2\x80\x9c[T]he Fifth Amendment is\nviolated when land-use regulation \xe2\x80\xa6 denies an owner\neconomically viable use of his land\xe2\x80\x9d); id., at 1018 (\xe2\x80\x9c[T]he functional\nbasis for permitting the government, by regulation, to\naffect property values without compensation \xe2\x80\xa6 does not\napply to the relatively rare situations where the government\nhas deprived a landowner of all economically beneficial\nuses\xe2\x80\x9d); ibid. (\xe2\x80\x9c[T]he fact that regulations that leave the\nowner of land without economically beneficial or\nproductive options for its use \xe2\x80\xa6 carry with them a\nheightened risk that private property is being pressed into\nsome form of public service\xe2\x80\x9d); id., at 1019 (\xe2\x80\x9c[W]hen the\nowner of real property has been called upon to sacrifice all\neconomically beneficial uses in the name of the common\ngood, that is, to leave his property economically idle, he has\nsuffered a taking\xe2\x80\x9d). Moreover, the Court\xe2\x80\x99s position that\nvalue is the sine qua non of the Lucas rule proves too much.\nSurely, the land at issue in Lucas retained some market value\nbased on the contingency, which soon came to fruition (see\nsupra, at 347), that the development ban would be amended.\nLucas is implicated when the government deprives a\nlandowner of \xe2\x80\x9call economically beneficial or productive use\nof land.\xe2\x80\x9d 505 U. S., at 1015. The District Court found, and\nthe Court agrees, that the moratorium \xe2\x80\x9ctemporarily\xe2\x80\x9d\ndeprived petitioners of \xe2\x80\x9c\xe2\x80\x98all economically viable use of their\nland.\xe2\x80\x99 \xe2\x80\x9d Ante, at 316. Because the rationale for the Lucas rule\napplies just as strongly in this case, the \xe2\x80\x9ctemporary\xe2\x80\x9d denial\nof all viable use of land for six years is a taking.\n\n575\n\n\x0cIII\nThe Court worries that applying Lucas here compels finding\nthat an array of traditional, short-term, land-use planning\ndevices are takings. Ante, at 334-335, 337-338. But since the\nbeginning of our regulatory takings jurisprudence, we have\nrecognized that property rights \xe2\x80\x9care enjoyed under an\nimplied limitation.\xe2\x80\x9d Mahon, supra, at 413.\n\xe2\x80\xa6.\nBut a moratorium prohibiting all economic use for a period\nof six years is not one of the longstanding, implied\nlimitations of state property law.27 Moratoria are \xe2\x80\x9cinterim\ncontrols on the use of land that seek to maintain the status\nquo with respect to land development in an area by either\n\xe2\x80\x98freezing\xe2\x80\x99 existing land uses or by allowing the issuance of\nbuilding permits for only certain land uses that would not\nbe inconsistent with a contemplated zoning plan or zoning\nchange.\xe2\x80\x9d 1 E. Ziegler, Rathkopf\xe2\x80\x99s The Law of Zoning and\nPlanning \xc2\xa7 13:3, p. 13-6 (4th ed. 2001). Typical moratoria\nthus prohibit only certain categories of development, such\nas fast-food restaurants, see Schafer v. New Orleans, 743 F. 2d\n1086 (CA5 1984), or adult businesses, see Renton v. Playtime\nTheatres, Inc., 475 U. S. 41 (1986), or all commercial\ndevelopment, see Arnold Bernhard & Co. v. Planning &\nZoning Comm\xe2\x80\x99n, 194 Conn. 152, 479 A. 2d 801 (1984). Such\nmoratoria do not implicate Lucas because they do not\ndeprive landowners of all economically beneficial use of\ntheir land. As for moratoria that prohibit all development,\nthese do not have the lineage of permit and zoning\nSix years is not a \xe2\x80\x9ccutoff point,\xe2\x80\x9d ante, at 338, n. 34; it is the length involved in this\ncase. And the \xe2\x80\x9cexplanation\xe2\x80\x9d for the conclusion that there is a taking in this case is\nthe fact that a 6-year moratorium far exceeds any moratorium authorized under\nbackground principles of state property law. See infra, at 353-354. This case does\nnot require us to undertake a more exacting study of state property law and discern\nexactly how long a moratorium must last before it no longer can be considered an\nimplied limitation of property ownership (assuming, that is, that a moratorium on\nall development is a background principle of state property law, see infra, at 353).\n27\n\n576\n\n\x0crequirements and thus it is less certain that property is\nacquired under the \xe2\x80\x9cimplied limitation\xe2\x80\x9d of a moratorium\nprohibiting all development. Moreover, unlike a permit\nsystem in which it is expected that a project will be\napproved so long as certain conditions are satisfied, a\nmoratorium that prohibits all uses is by definition\ncontemplating a new land-use plan that would prohibit all\nuses.\nBut this case does not require us to decide as a categorical\nmatter whether moratoria prohibiting all economic use are\nan implied limitation of state property law, because the\nduration of this \xe2\x80\x9cmoratorium\xe2\x80\x9d far exceeds that of ordinary\nmoratoria. As the Court recognizes, ante, at 342, n. 37, state\nstatutes authorizing the issuance of moratoria often limit\nthe moratoria\xe2\x80\x99s duration. California, where much of the\nland at issue in this case is located, provides that a\nmoratorium \xe2\x80\x9cshall be of no further force and effect 45 days\nfrom its date of adoption,\xe2\x80\x9d and caps extension of the\nmoratorium so that the total duration cannot exceed two\nyears. Cal. Govt. Code Ann. \xc2\xa7 65858(a) (West Supp. 2002);\nsee also Minn. Stat. \xc2\xa7 462.355, subd. 4 (2000) (limiting\nmoratoria to 18 months, with one permissible extension,\nfor a total of two years). Another State limits moratoria to\n120 days, with the possibility of a single 6-month extension.\nOre. Rev. Stat. Ann. \xc2\xa7 197.520(4) (1997). Others limit\nmoratoria to six months without any possibility of an\nextension. See Colo. Rev. Stat. \xc2\xa7 30-28-121 (2001); N. J.\nStat. Ann. \xc2\xa7 40:55D-90(b) (1991).28 Indeed, it has long been\nunderstood that moratoria on development exceeding these\nshort time periods are not a legitimate planning device. See,\n\nThese are just some examples of the state laws limiting the duration of moratoria.\nThere are others. See, e. g., Utah Code Ann. \xc2\xa7\xc2\xa7 17-27\xe2\x80\x93 404(3)(b)(i)\xe2\x80\x93(ii) (1995)\n(temporary prohibitions on development \xe2\x80\x9cmay not exceed six months in duration,\xe2\x80\x9d\nwith the possibility of extensions for no more than \xe2\x80\x9ctwo additional six-month\nperiods\xe2\x80\x9d). See also ante, at 337, n. 31.\n28\n\n577\n\n\x0ce. g., Holdsworth v. Hague, 9 N. J. Misc. 715, 155 A. 892\n(1931).\nResolution 83-21 reflected this understanding of the limited\nduration of moratoria in initially limiting the moratorium in\nthis case to 90 days. But what resulted\xe2\x80\x93a \xe2\x80\x9cmoratorium\xe2\x80\x9d\nlasting nearly six years\xe2\x80\x93bears no resemblance to the shortterm nature of traditional moratoria as understood from\nthese background examples of state property law.\nBecause the prohibition on development of nearly six years\nin this case cannot be said to resemble any \xe2\x80\x9cimplied\nlimitation\xe2\x80\x9d of state property law, it is a taking that requires\ncompensation.\n***\nLake Tahoe is a national treasure, and I do not doubt that\nrespondent\xe2\x80\x99s efforts at preventing further degradation of\nthe lake were made in good faith in furtherance of the\npublic interest. But, as is the case with most governmental\naction that furthers the public interest, the Constitution\nrequires that the costs and burdens be borne by the public\nat large, not by a few targeted citizens. Justice Holmes\xe2\x80\x99\nadmonition of 80 years ago again rings true: \xe2\x80\x9cWe are in\ndanger of forgetting that a strong public desire to improve\nthe public condition is not enough to warrant achieving the\ndesire by a shorter cut than the constitutional way of paying\nfor the change.\xe2\x80\x9d Mahon, 260 U. S., at 416.\nLingle, Governor of Hawaii, et al. v. Chevron U.S.A.\nInc.\n544 U.S. 528 (2005)\nCERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT.\nMark J. Bennett, Attorney General of Hawaii, argued the\ncause for petitioners. With him on the briefs were Michael\nL. Meaney, Deputy Attorney General, Seth P. Waxman, Paul\nR. Q. Wolfson, Robert G. Dreher, and John D. Echeverria.\n\n578\n\n\x0cDeputy Solicitor General Kneedler argued the cause for the\nUnited States as amicus curiae in support of petitioners. With\nhim on the brief were Acting Solicitor General Clement,\nAssistant Attorney General Keisler, Malcolm L. Stewart, Mark B.\nStern, and Sharon Swingle.\nCraig E. Stewart argued the cause for respondent. With him\non the brief were Donald B. Ayer, Michael S. Fried, and Louis\nK. Fisher.\nJUSTICE O\'CONNOR delivered the opinion of the Court.\nOn occasion, a would-be doctrinal rule or test finds its way\ninto our case law through simple repetition of a phrase \xe2\x80\x93\nhowever fortuitously coined. A quarter century ago, in\nAgins v. City of Tiburon, 447 U. S. 255 (1980), the Court\ndeclared that government regulation of private property\n\xe2\x80\x9ceffects a taking if [such regulation] does not substantially\nadvance legitimate state interests\xe2\x80\xa6 .\xe2\x80\x9d Id., at 260. Through\nreiteration in a half dozen or so decisions since Agins, this\nlanguage has been ensconced in our Fifth Amendment\ntakings jurisprudence. See Monterey v. Del Monte Dunes at\nMonterey, Ltd., 526 U. S. 687, 704 (1999) (citing cases).\nIn the case before us, the lower courts applied Agins\xe2\x80\x99\n\xe2\x80\x9csubstantially advances\xe2\x80\x9d formula to strike down a Hawaii\nstatute that limits the rent that oil companies may charge to\ndealers who lease service stations owned by the companies.\nThe lower courts held that the rent cap effects an\nuncompensated taking of private property in violation of\nthe Fifth and Fourteenth Amendments because it does not\nsubstantially advance Hawaii\xe2\x80\x99s asserted interest in\ncontrolling retail gasoline prices. This case requires us to\ndecide whether the \xe2\x80\x9csubstantially advances\xe2\x80\x9d formula\nannounced in Agins is an appropriate test for determining\nwhether a regulation effects a Fifth Amendment taking. We\nconclude that it is not.\n\xe2\x80\xa6.\n\n579\n\n\x0cII\nA\nThe Takings Clause of the Fifth Amendment, made\napplicable to the States through the Fourteenth, see Chicago,\nB. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides\nthat private property shall not \xe2\x80\x9cbe taken for public use,\nwithout just compensation.\xe2\x80\x9d As its text makes plain, the\nTakings Clause \xe2\x80\x9cdoes not prohibit the taking of private\nproperty, but instead places a condition on the exercise of\nthat power.\xe2\x80\x9d First English Evangelical Lutheran Church of\nGlendale v. County of Los Angeles, 482 U. S. 304, 314 (1987).\nIn other words, it \xe2\x80\x9cis designed not to limit the\ngovernmental interference with property rights per se, but\nrather to secure compensation in the event of otherwise\nproper interference amounting to a taking.\xe2\x80\x9d Id., at 315\n(emphasis in original). While scholars have offered various\njustifications for this regime, we have emphasized its role in\n\xe2\x80\x9cbar[ring] Government from forcing some people alone to\nbear public burdens which, in all fairness and justice,\nshould be borne by the public as a whole.\xe2\x80\x9d Armstrong v.\nUnited States, 364 U.S. 40, 49 (1960); see also Monongahela\nNav. Co. v. United States, 148 U. S. 312, 325 (1893).\nThe paradigmatic taking requiring just compensation is a\ndirect government appropriation or physical invasion of\nprivate property. See, e.g., United States v. Pewee Coal Co., 341\nU. S. 114 (1951) (Government\xe2\x80\x99s seizure and operation of a\ncoal mine to prevent a national strike of coal miners\neffected a taking); United States v. General Motors Corp., 323\nU. S. 373 (1945) (Government\xe2\x80\x99s occupation of private\nwarehouse effected a taking). Indeed, until the Court\xe2\x80\x99s\nwatershed decision in Pennsylvania Coal Co. v. Mahon, 260 U.\nS. 393 (1922), \xe2\x80\x9cit was generally thought that the Takings\nClause reached only a \xe2\x80\x98direct appropriation\xe2\x80\x99 of property, or\nthe functional equivalent of a \xe2\x80\x98practical ouster of [the\nowner\xe2\x80\x99s] possession.\xe2\x80\x99\xe2\x80\x9d Lucas v. South Carolina Coastal Council,\n505 U. S. 1003, 1014 (1992)(citations omitted and emphasis\n\n580\n\n\x0cadded; brackets in original); see also id., at 1028, n. 15\n(\xe2\x80\x9c[E]arly constitutional theorists did not believe the Takings\nClause embraced regulations of property at all\xe2\x80\x9d).\nBeginning with Mahon, however, the Court recognized that\ngovernment regulation of private property may, in some\ninstances, be so onerous that its effect is tantamount to a\ndirect appropriation or ouster \xe2\x80\x93 and that such \xe2\x80\x9cregulatory\ntakings\xe2\x80\x9d may be compensable under the Fifth Amendment.\nIn Justice Holmes\xe2\x80\x99 storied but cryptic formulation, \xe2\x80\x9cwhile\nproperty may be regulated to a certain extent, if regulation\ngoes too far it will be recognized as a taking.\xe2\x80\x9d 260 U. S., at\n415. The rub, of course, has been \xe2\x80\x93 and remains \xe2\x80\x93 how to\ndiscern how far is \xe2\x80\x9ctoo far.\xe2\x80\x9d In answering that question, we\nmust remain cognizant that \xe2\x80\x9cgovernment regulation \xe2\x80\x93 by\ndefinition \xe2\x80\x93 involves the adjustment of rights for the public\ngood,\xe2\x80\x9d Andrus v. Allard, 444 U. S. 51, 65 (1979), and that\n\xe2\x80\x9cGovernment hardly could go on if to some extent values\nincident to property could not be diminished without\npaying for every such change in the general law,\xe2\x80\x9d Mahon,\nsupra, at 413.\nOur precedents stake out two categories of regulatory\naction that generally will be deemed per se takings for Fifth\nAmendment purposes. First, where government requires an\nowner to suffer a permanent physical invasion of her\nproperty \xe2\x80\x93 however minor \xe2\x80\x93 it must provide just\ncompensation. See Loretto v. Teleprompter Manhattan CATV\nCorp., 458 U. S. 419 (1982) (state law requiring landlords to\npermit cable companies to install cable facilities in\napartment buildings effected a taking). A second categorical\nrule applies to regulations that completely deprive an owner\nof \xe2\x80\x9dall economically beneficial us[e]\xe2\x80\x9d of her property. Lucas,\n505 U. S., at 1019 (emphasis in original). We held in Lucas\nthat the government must pay just compensation for such\n\xe2\x80\x9ctotal regulatory takings,\xe2\x80\x9d except to the extent that\n\xe2\x80\x9cbackground principles of nuisance and property law\xe2\x80\x9d\n\n581\n\n\x0cindependently restrict the owner\xe2\x80\x99s intended use of the\nproperty. Id., at 1026-1032.\nOutside these two relatively narrow categories (and the\nspecial context of land-use exactions discussed below, see\ninfra, at 546-548), regulatory takings challenges are\ngoverned by the standards set forth in Penn Central Transp.\nCo. v. New York City, 438 U. S. 104 (1978). The Court in\nPenn Central acknowledged that it had hitherto been \xe2\x80\x9cunable\nto develop any \xe2\x80\x98set formula\xe2\x80\x99\xe2\x80\x9d for evaluating regulatory\ntakings claims, but identified \xe2\x80\x9cseveral factors that have\nparticular significance.\xe2\x80\x9d Id., at 124. Primary among those\nfactors are \xe2\x80\x9c[t]he economic impact of the regulation on the\nclaimant and, particularly, the extent to which the\nregulation has interfered with distinct investment-backed\nexpectations.\xe2\x80\x9d Ibid. In addition, the \xe2\x80\x9ccharacter of the\ngovernmental action\xe2\x80\x9d \xe2\x80\x93 for instance whether it amounts to\na physical invasion or instead merely affects property\ninterests through \xe2\x80\x9csome public program adjusting the\nbenefits and burdens of economic life to promote the\ncommon good\xe2\x80\x9d \xe2\x80\x93 may be relevant in discerning whether a\ntaking has occurred. Ibid. The Penn Central factors \xe2\x80\x93 though\neach has given rise to vexing subsidiary questions \xe2\x80\x93 have\nserved as the principal guidelines for resolving regulatory\ntakings claims that do not fall within the physical takings or\nLucas rules. See, e. g., Palazzolo v. Rhode Island, 533 U. S. 606,\n617-618 (2001); id., at 632-634 (O\xe2\x80\x99CONNOR, J.,\nconcurring).\nAlthough our regulatory takings jurisprudence cannot be\ncharacterized as unified, these three inquiries (reflected in\nLoretto, Lucas, and Penn Central) share a common\ntouchstone. Each aims to identify regulatory actions that\nare functionally equivalent to the classic taking in which\ngovernment directly appropriates private property or ousts\nthe owner from his domain. Accordingly, each of these\ntests focuses directly upon the severity of the burden that\ngovernment imposes upon private property rights. The\n\n582\n\n\x0cCourt has held that physical takings require compensation\nbecause of the unique burden they impose: A permanent\nphysical invasion, however minimal the economic cost it\nentails, eviscerates the owner\xe2\x80\x99s right to exclude others from\nentering and using her property \xe2\x80\x93 perhaps the most\nfundamental of all property interests. See Dolan v. City of\nTigard, 512 U. S. 374, 384 (1994); Nollan v. California Coastal\nComm\xe2\x80\x99n, 483 U. S. 825, 831-832 (1987); Loretto, supra, at 433;\nKaiser Aetna v. United States, 444 U. S. 164, 176 (1979). In the\nLucas context, of course, the complete elimination of a\nproperty\xe2\x80\x99s value is the determinative factor. See Lucas, supra,\nat 1017 (positing that \xe2\x80\x9ctotal deprivation of beneficial use is,\nfrom the landowner\xe2\x80\x99s point of view, the equivalent of a\nphysical appropriation\xe2\x80\x9d). And the Penn Central inquiry turns\nin large part, albeit not exclusively, upon the magnitude of a\nregulation\xe2\x80\x99s economic impact and the degree to which it\ninterferes with legitimate property interests.\nB\nIn Agins v. City of Tiburon, a case involving a facial takings\nchallenge to certain municipal zoning ordinances, the Court\ndeclared that \xe2\x80\x9c[t]he application of a general zoning law to\nparticular property effects a taking if the ordinance does\nnot substantially advance legitimate state interests, see\nNectow v. Cambridge, 277 U. S. 183, 188 (1928), or denies an\nowner economically viable use of his land, see Penn Central\nTransp. Co. v. New York City, 438 U. S. 104, 138, n. 36\n(1978).\xe2\x80\x9d 447 U. S., at 260. Because this statement is phrased\nin the disjunctive, Agins\xe2\x80\x99 \xe2\x80\x9csubstantially advances\xe2\x80\x9d language\nhas been read to announce a stand-alone regulatory takings\ntest that is wholly independent of Penn Central or any other\ntest. Indeed, the lower courts in this case struck down\nHawaii\xe2\x80\x99s rent control statute based solely upon their\nfindings that it does not substantially advance a legitimate\nstate interest. See supra, at 534, 536. Although a number of\nour takings precedents have recited the \xe2\x80\x9csubstantially\nadvances\xe2\x80\x9d formula minted in Agins, this is our first\n\n583\n\n\x0copportunity to consider its validity as a freestanding takings\ntest. We conclude that this formula prescribes an inquiry in\nthe nature of a due process, not a takings, test, and that it\nhas no proper place in our takings jurisprudence.\nThere is no question that the \xe2\x80\x9csubstantially advances\xe2\x80\x9d\nformula was derived from due process, not takings,\nprecedents. In support of this new language, Agins cited\nNectow v. Cambridge, 277 U. S. 183, a 1928 case in which the\nplaintiff claimed that a city zoning ordinance \xe2\x80\x9cdeprived him\nof his property without due process of law in contravention\nof the Fourteenth Amendment,\xe2\x80\x9d id., at 185. Agins then\nwent on to discuss Village of Euclid v. Ambler Realty Co., 272\nU. S. 365 (1926), a historic decision holding that a\nmunicipal zoning ordinance would survive a substantive\ndue process challenge so long as it was not \xe2\x80\x9cclearly\narbitrary and unreasonable, having no substantial relation to\nthe public health, safety, morals, or general welfare.\xe2\x80\x9d Id., at 395\n(emphasis added); see also Nectow, supra, at 187-188\n(quoting the same \xe2\x80\x9csubstantial relation\xe2\x80\x9d language from\nEuclid).\nWhen viewed in historical context, the Court\xe2\x80\x99s reliance on\nNectow and Euclid is understandable. Agins was the Court\xe2\x80\x99s\nfirst case involving a challenge to zoning regulations in\nmany decades, so it was natural to turn to these seminal\nzoning precedents for guidance. See Brief for United States\nas Amicus Curiae in Agins v. City of Tiburon, O. T. 1979, No.\n79-602, pp. 12-13 (arguing that Euclid \xe2\x80\x9cset out the\nprinciples applicable to a determination of the facial validity\nof a zoning ordinance attacked as a violation of the Takings\nClause of the Fifth Amendment\xe2\x80\x9d). Moreover, Agins\xe2\x80\x99\napparent commingling of due process and takings inquiries\nhad some precedent in the Court\xe2\x80\x99s then-recent decision in\nPenn Central. See 438 U. S., at 127 (stating in dicta that \xe2\x80\x9c[i]t\nis \xe2\x80\xa6 implicit in Goldblatt [v. Hempstead, 369 U. S. 590\n(1962),] that a use restriction on real property may\nconstitute a \xe2\x80\x98taking\xe2\x80\x99 if not reasonably necessary to the\n\n584\n\n\x0ceffectuation of a substantial public purpose, see Nectow v.\nCambridge, supra\xe2\x80\x9d). But see Goldblatt v. Hempstead, 369 U. S.\n590, 594-595 (1962) (quoting \xe2\x80\x9c\xe2\x80\x98reasonably necessary\xe2\x80\x99\xe2\x80\x9d\nlanguage from Lawton v. Steele, 152 U. S. 133, 137 (1894), a\ndue process case, and applying a deferential\n\xe2\x80\x9c\xe2\x80\x98reasonableness\xe2\x80\x99\xe2\x80\x9d standard to determine whether a\nchallenged regulation was a \xe2\x80\x9cvalid exercise of the \xe2\x80\xa6 police\npower\xe2\x80\x9d under the Due Process Clause). Finally, when Agins\nwas decided, there had been some history of referring to\ndeprivations of property without due process of law as\n\xe2\x80\x9ctakings,\xe2\x80\x9d see, e. g., Rowan v. Post Office Dept., 397 U. S. 728,\n740 (1970), and the Court had yet to clarify whether\n\xe2\x80\x9cregulatory takings\xe2\x80\x9d claims were properly cognizable under\nthe Takings Clause or the Due Process Clause, see\nWilliamson County Regional Planning Comm\xe2\x80\x99n v. Hamilton Bank\nof Johnson City, 473 U. S. 172, 197-199 (1985).\nAlthough Agins\xe2\x80\x99 reliance on due process precedents is\nunderstandable, the language the Court selected was\nregrettably imprecise. The \xe2\x80\x9csubstantially advances\xe2\x80\x9d formula\nsuggests a means-ends test: It asks, in essence, whether a\nregulation of private property is effective in achieving some\nlegitimate public purpose. An inquiry of this nature has\nsome logic in the context of a due process challenge, for a\nregulation that fails to serve any legitimate governmental\nobjective may be so arbitrary or irrational that it runs afoul\nof the Due Process Clause. See, e. g., County of Sacramento v.\nLewis, 523 U. S. 833, 846 (1998)(stating that the Due\nProcess Clause is intended, in part, to protect the individual\nagainst \xe2\x80\x9cthe exercise of power without any reasonable\njustification in the service of a legitimate governmental\nobjective\xe2\x80\x9d). But such a test is not a valid method of\ndiscerning whether private property has been \xe2\x80\x9ctaken\xe2\x80\x9d for\npurposes of the Fifth Amendment.\nIn stark contrast to the three regulatory takings tests\ndiscussed above, the \xe2\x80\x9csubstantially advances\xe2\x80\x9d inquiry\nreveals nothing about the magnitude or character of the burden a\n\n585\n\n\x0cparticular regulation imposes upon private property rights.\nNor does it provide any information about how any\nregulatory burden is distributed among property owners. In\nconsequence, this test does not help to identify those\nregulations whose effects are functionally comparable to\ngovernment appropriation or invasion of private property;\nit is tethered neither to the text of the Takings Clause nor\nto the basic justification for allowing regulatory actions to\nbe challenged under the Clause.\nChevron appeals to the general principle that the Takings\nClause is meant \xe2\x80\x9c\xe2\x80\x98to bar Government from forcing some\npeople alone to bear public burdens which, in all fairness\nand justice, should be borne by the public as a whole.\xe2\x80\x99\xe2\x80\x9d\nBrief for Respondent 17-21 (quoting Armstrong, 364 U. S.,\nat 49). But that appeal is clearly misplaced, for the reasons\njust indicated. A test that tells us nothing about the actual\nburden imposed on property rights, or how that burden is\nallocated, cannot tell us when justice might require that the\nburden be spread among taxpayers through the payment of\ncompensation. The owner of a property subject to a\nregulation that effectively serves a legitimate state interest may\nbe just as singled out and just as burdened as the owner of\na property subject to an ineffective regulation. It would make\nlittle sense to say that the second owner has suffered a\ntaking while the first has not. Likewise, an ineffective\nregulation may not significantly burden property rights at\nall, and it may distribute any burden broadly and evenly\namong property owners. The notion that such a regulation\nnevertheless \xe2\x80\x9ctakes\xe2\x80\x9d private property for public use merely\nby virtue of its ineffectiveness or foolishness is untenable.\nInstead of addressing a challenged regulation\xe2\x80\x99s effect on\nprivate property, the \xe2\x80\x9csubstantially advances\xe2\x80\x9d inquiry\nprobes the regulation\xe2\x80\x99s underlying validity. But such an\ninquiry is logically prior to and distinct from the question\nwhether a regulation effects a taking, for the Takings Clause\npresupposes that the government has acted in pursuit of a\n\n586\n\n\x0cvalid public purpose. The Clause expressly requires\ncompensation where government takes private property\n\xe2\x80\x9dfor public use.\xe2\x80\x9d It does not bar government from interfering\nwith property rights, but rather requires compensation \xe2\x80\x9cin\nthe event of otherwise proper interference amounting to a\ntaking.\xe2\x80\x9d First English Evangelical Lutheran Church, 482 U. S., at\n315 (emphasis added). Conversely, if a government action\nis found to be impermissible \xe2\x80\x93 for instance because it fails\nto meet the \xe2\x80\x9cpublic use\xe2\x80\x9d requirement or is so arbitrary as to\nviolate due process \xe2\x80\x93 that is the end of the inquiry. No\namount of compensation can authorize such action.\nChevron\xe2\x80\x99s challenge to the Hawaii statute in this case\nillustrates the flaws in the \xe2\x80\x9csubstantially advances\xe2\x80\x9d theory.\nTo begin with, it is unclear how significantly Hawaii\xe2\x80\x99s rent\ncap actually burdens Chevron\xe2\x80\x99s property rights. The parties\nstipulated below that the cap would reduce Chevron\xe2\x80\x99s\naggregate rental income on 11 of its 64 lessee-dealer\nstations by about $207,000 per year, but that Chevron\nnevertheless expects to receive a return on its investment in\nthese stations that satisfies any constitutional standard. See\nsupra, at 534. Moreover, Chevron asserted below, and the\nDistrict Court found, that Chevron would recoup any\nreductions in its rental income by raising wholesale gasoline\nprices. See supra, at 535. In short, Chevron has not clearly\nargued \xe2\x80\x93 let alone established \xe2\x80\x93 that it has been singled out\nto bear any particularly severe regulatory burden. Rather,\nthe gravamen of Chevron\xe2\x80\x99s claim is simply that Hawaii\xe2\x80\x99s\nrent cap will not actually serve the State\xe2\x80\x99s legitimate interest\nin protecting consumers against high gasoline prices.\nWhatever the merits of that claim, it does not sound under\nthe Takings Clause. Chevron plainly does not seek\ncompensation for a taking of its property for a legitimate\npublic use, but rather an injunction against the enforcement\nof a regulation that it alleges to be fundamentally arbitrary\nand irrational.\n\n587\n\n\x0cFinally, the \xe2\x80\x9csubstantially advances\xe2\x80\x9d formula is not only\ndoctrinally untenable as a takings test \xe2\x80\x93 its application as such\nwould also present serious practical difficulties. The Agins\nformula can be read to demand heightened means-ends\nreview of virtually any regulation of private property. If so\ninterpreted, it would require courts to scrutinize the\nefficacy of a vast array of state and federal regulations \xe2\x80\x93 a\ntask for which courts are not well suited. Moreover, it\nwould empower \xe2\x80\x93 and might often require \xe2\x80\x93 courts to\nsubstitute their predictive judgments for those of elected\nlegislatures and expert agencies.\nAlthough the instant case is only the tip of the proverbial\niceberg, it foreshadows the hazards of placing courts in this\nrole. To resolve Chevron\xe2\x80\x99s takings claim, the District Court\nwas required to choose between the views of two opposing\neconomists as to whether Hawaii\xe2\x80\x99s rent control statute\nwould help to prevent concentration and supracompetitive\nprices in the State\xe2\x80\x99s retail gasoline market. Finding one\nexpert to be \xe2\x80\x9cmore persuasive\xe2\x80\x9d than the other, the court\nconcluded that the Hawaii Legislature\xe2\x80\x99s chosen regulatory\nstrategy would not actually achieve its objectives. See 198 F.\nSupp. 2d, at 1187-1193. The court determined that there\nwas no evidence that oil companies had charged, or would\ncharge, excessive rents. See id., at 1191. Based on this and\nother findings, the District Court enjoined further\nenforcement of Act 257\xe2\x80\x99s rent cap provision against\nChevron. We find the proceedings below remarkable, to\nsay the least, given that we have long eschewed such\nheightened scrutiny when addressing substantive due\nprocess challenges to government regulation. See, e. g.,\nExxon Corp. v. Governor of Maryland, 437 U. S. 117, 124-125\n(1978); Ferguson v. Skrupa, 372 U. S. 726, 730-732 (1963).\nThe reasons for deference to legislative judgments about\nthe need for, and likely effectiveness of, regulatory actions\nare by now well established, and we think they are no less\napplicable here.\n\n588\n\n\x0cFor the foregoing reasons, we conclude that the\n\xe2\x80\x9csubstantially advances\xe2\x80\x9d formula announced in Agins is not\na valid method of identifying regulatory takings for which\nthe Fifth Amendment requires just compensation. Since\nChevron argued only a \xe2\x80\x9csubstantially advances\xe2\x80\x9d theory in\nsupport of its takings claim, it was not entitled to summary\njudgment on that claim.\n\xe2\x80\xa6.\n***\nTwenty-five years ago, the Court posited that a regulation\nof private property \xe2\x80\x9ceffects a taking if [it] does not\nsubstantially advance [a] legitimate state interes[t].\xe2\x80\x9d Agins,\n447 U. S., at 260. The lower courts in this case took that\nstatement to its logical conclusion, and in so doing,\nrevealed its imprecision. Today we correct course. We hold\nthat the \xe2\x80\x9csubstantially advances\xe2\x80\x9d formula is not a valid\ntakings test, and indeed conclude that it has no proper\nplace in our takings jurisprudence. In so doing, we reaffirm\nthat a plaintiff seeking to challenge a government regulation\nas an uncompensated taking of private property may\nproceed under one of the other theories discussed above \xe2\x80\x93\nby alleging a \xe2\x80\x9cphysical\xe2\x80\x9d taking, a Lucas-type \xe2\x80\x9ctotal\nregulatory taking,\xe2\x80\x9d a Penn Central taking, or a land-use\nexaction violating the standards set forth in Nollan and\nDolan. Because Chevron argued only a \xe2\x80\x9csubstantially\nadvances\xe2\x80\x9d theory in support of its takings claim, it was not\nentitled to summary judgment on that claim. Accordingly,\nwe reverse the judgment of the Ninth Circuit and remand\nthe case for further proceedings consistent with this\nopinion.\nIt is so ordered.\nJUSTICE KENNEDY, concurring.\nThis separate writing is to note that today\xe2\x80\x99s decision does\nnot foreclose the possibility that a regulation might be so\n\n589\n\n\x0carbitrary or irrational as to violate due process. Eastern\nEnterprises v. Apfel, 524 U. S. 498, 539 (1998) (KENNEDY,\nJ., concurring in judgment and dissenting in part). The\nfailure of a regulation to accomplish a stated or obvious\nobjective would be relevant to that inquiry. Chevron\nvoluntarily dismissed its due process claim without\nprejudice, however, and we have no occasion to consider\nwhether Act 257 of the 1997 Hawaii Session Laws\n\xe2\x80\x9crepresents one of the rare instances in which even such a\npermissive standard has been violated.\xe2\x80\x9d Apfel, supra, at 550.\nWith these observations, I join the opinion of the Court.\n4.4. Procedural Issues\nWilliamson County Regional Planning Commission et\nal. v. Hamilton Bank of Johnson City\n473 U.S. 172 (1985)\nCERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE SIXTH CIRCUIT\nRobert L. Estes argued the cause for petitioners. With him\non the brief was M. Milton Sweeney.\nEdwin S. Kneedler argued the cause for the United States as\namicus curiae urging reversal. With him on the brief were\nSolicitor General Lee, Assistant Attorney General Habicht, Deputy\nSolicitor General Claiborne, and David C. Shilton.\nG. T. Nebel argued the cause for respondent. With him on\nthe brief was Gus Bauman.\nJUSTICE BLACKMUN delivered the opinion of the Court.\nRespondent, the owner of a tract of land it was developing\nas a residential subdivision, sued petitioners, the Williamson\nCounty (Tennessee) Regional Planning Commission and its\nmembers and staff, in United States District Court, alleging\nthat petitioners\xe2\x80\x99 application of various zoning laws and\nregulations to respondent\xe2\x80\x99s property amounted to a\n\xe2\x80\x9ctaking\xe2\x80\x9d of that property. At trial, the jury agreed and\n\n590\n\n\x0cawarded respondent $350,000 as just compensation for the\n\xe2\x80\x9ctaking.\xe2\x80\x9d Although the jury\xe2\x80\x99s verdict was rejected by the\nDistrict Court, which granted a judgment notwithstanding\nthe verdict to petitioners, the verdict was reinstated on\nappeal. Petitioners and their amici urge this Court to\noverturn the jury\xe2\x80\x99s award on the ground that a temporary\nregulatory interference with an investor\xe2\x80\x99s profit expectation\ndoes not constitute a \xe2\x80\x9ctaking\xe2\x80\x9d within the meaning of the\nJust Compensation Clause of the Fifth Amendment,1 or,\nalternatively, on the ground that even if such interference\ndoes constitute a taking, the Just Compensation Clause\ndoes not require money damages as recompense. Before we\nreach those contentions, we examine the procedural\nposture of respondent\xe2\x80\x99s claim.\nI\nA\nUnder Tennessee law, responsibility for land-use planning\nis divided between the legislative body of each of the State\xe2\x80\x99s\ncounties and regional and municipal \xe2\x80\x9cplanning\ncommissions.\xe2\x80\x9d The county legislative body is responsible\nfor zoning ordinances to regulate the uses to which\nparticular land and buildings may be put, and to control the\ndensity of population and the location and dimensions of\nbuildings. Tenn. Code Ann. \xc2\xa7 13-7-101 (1980). The\nplanning commissions are responsible for more specific\nregulations governing the subdivision of land within their\nregion or municipality for residential development. \xc2\xa7\xc2\xa7 13-3403, 13-4-303. Enforcement of both the zoning ordinances\nand the subdivision regulations is accomplished in part\nthrough a requirement that the planning commission\n1\n\n\xe2\x80\x9c[N]or shall private property be taken for public use, without just compensation.\xe2\x80\x9d\n\nThe Fifth Amendment\xe2\x80\x99s prohibition, of course, applies against the States through\nthe Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241\n(1897); see also San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 623, n. 1\n(1981).\n\n591\n\n\x0capprove the plat of a subdivision before the plat may be\nrecorded. \xc2\xa7\xc2\xa7 13-3-402, 13-4-302 (1980 and Supp. 1984).\nPursuant to \xc2\xa7 13-7-101, the Williamson County \xe2\x80\x9cQuarterly\nCourt,\xe2\x80\x9d which is the county\xe2\x80\x99s legislative body, in 1973\nadopted a zoning ordinance that allowed \xe2\x80\x9ccluster\xe2\x80\x9d\ndevelopment of residential areas. Under \xe2\x80\x9ccluster\xe2\x80\x9d zoning,\nboth the size and the width of\nindividual residential lots in \xe2\x80\xa6 [a]\ndevelopment may be reduced,\nprovided \xe2\x80\xa6 that the overall density of\nthe entire tract remains constant \xe2\x80\x93\nprovided, that is, that an area\nequivalent to the total of the areas thus\n\xe2\x80\x98saved\xe2\x80\x99 from each individual lot is\npooled and retained as common open\nspace.\n2 N. Williams, American Land Planning Law \xc2\xa7 47.01, pp.\n212-213 (1974).\nCluster zoning thus allows housing units to be grouped, or\n\xe2\x80\x9cclustered\xe2\x80\x9d together, rather than being evenly spaced on\nuniform lots.\nAs required by \xc2\xa7 13-3-402, respondent\xe2\x80\x99s predecessor-ininterest (developer) in 1973 submitted a preliminary plat for\nthe cluster development of its tract, the Temple Hills\nCountry Club Estates (Temple Hills), to the Williamson\nCounty Regional Planning Commission for approval. At\nthat time, the county\xe2\x80\x99s zoning ordinance and the\nCommission\xe2\x80\x99s subdivision regulations required developers\nto seek review and approval of subdivision plats in two\nsteps. The developer first was to submit for approval a\npreliminary plat, or \xe2\x80\x9cinitial sketch plan,\xe2\x80\x9d indicating, among\nother things, the boundaries and acreage of the site, the\nnumber of dwelling units and their basic design, the\nlocation of existing and proposed roads, structures, lots,\nutility layouts, and open space, and the contour of the land.\n\n592\n\n\x0cApp. in No. 82-5388 (CA6), pp. 857, 871 (CA App.). Once\napproved, the preliminary plat served as a basis for the\npreparation of a final plat. Under the Commission\xe2\x80\x99s\nregulations, however, approval of a preliminary plat \xe2\x80\x9cwill\nnot constitute acceptance of the final plat.\xe2\x80\x9d Id., at 872.\nApproval of a preliminary plat lapsed if a final plat was not\nsubmitted within one year of the date of the approval,\nunless the Commission granted an extension of time, or\nunless the approval of the preliminary plat was renewed.\nIbid. The final plat, which is the official authenticated\ndocument that is recorded, was required to conform\nsubstantially to the preliminary plat, and, in addition, to\ninclude such details as the lines of all streets, lots,\nboundaries, and building setbacks. Id., at 875.\nOn May 3, 1973, the Commission approved the developer\xe2\x80\x99s\npreliminary plat for Temple Hills. App. 246-247. The plat\nindicated that the development was to include 676 acres, of\nwhich 260 acres would be open space, primarily in the form\nof a golf course. Id., at 422. A notation on the plat indicated\nthat the number of \xe2\x80\x9callowable dwelling units for total\ndevelopment\xe2\x80\x9d was 736, but lot lines were drawn in for only\n469 units. The areas in which the remaining 276 units were\nto be placed were left blank and bore the notation \xe2\x80\x9cthis\nparcel not to be developed until approved by the planning\ncommission.\xe2\x80\x9d The plat also contained a disclaimer that\n\xe2\x80\x9cparcels with note \xe2\x80\x98this parcel not to be developed until\napproved by the planning commission\xe2\x80\x99 not a part of this\nplat and not included in gross area.\xe2\x80\x9d Ibid. The density of\n736 allowable dwelling units was calculated by multiplying\nthe number of acres (676) by the number of units allowed\nper acre (1.089). Id., at 361. Although the zoning\nregulations in effect in 1973 required that density be\ncalculated \xe2\x80\x9con the basis of total acreage less fifty percent\n(50%) of the land lying in the flood plain \xe2\x80\xa6 and less fifty\npercent (50%) of all land lying on a slope with a grade in\nexcess of twenty-five percent (25%),\xe2\x80\x9d CA App. 858, no\n\n593\n\n\x0cdeduction was made from the 676 acres for such land. Tr.\n369.\nUpon approval of the preliminary plat, the developer\nconveyed to the county a permanent open space easement\nfor the golf course, and began building roads and installing\nutility lines for the project. App. 259-260. The developer\nspent approximately $3 million building the golf course,\nand another $500,000 installing sewer and water facilities.\nDefendant\xe2\x80\x99s Ex. 96. Before housing construction was to\nbegin on a particular section, a final plat of that section was\nsubmitted for approval. Several sections, containing a total\nof 212 units, were given final approval by 1979. App. 260,\n270, 278, 423. The preliminary plat, as well, was reapproved\nfour times during that period. Id., at 270, 274, 362, 423.\nIn 1977, the county changed its zoning ordinance to require\nthat calculations of allowable density exclude 10% of the\ntotal acreage to account for roads and utilities. Id., at 363;\nCA App. 862. In addition, the number of allowable units\nwas changed to one per acre from the 1.089 per acre\nallowed in 1973. Id., at 858, 862; Tr. 1169-1170, 1183. The\nCommission continued to apply the zoning ordinance and\nsubdivision regulations in effect in 1973 to Temple Hills,\nhowever, and reapproved the preliminary plat in 1978. In\nAugust 1979, the Commission reversed its position and\ndecided that plats submitted for renewal should be\nevaluated under the zoning ordinance and subdivision\nregulations in effect when the renewal was sought. App.\n279-282. The Commission then renewed the Temple Hills\nplat under the ordinances and regulations in effect at that\ntime. Id., at 283-284.\nIn January 1980, the Commission asked the developer to\nsubmit a revised preliminary plat before it sought final\napproval for the remaining sections of the subdivision. The\nCommission reasoned that this was necessary because the\noriginal preliminary plat contained a number of surveying\nerrors, the land available in the subdivision had been\n\n594\n\n\x0cdecreased inasmuch as the State had condemned part of the\nland for a parkway, and the areas marked \xe2\x80\x9creserved for\nfuture development\xe2\x80\x9d had never been platted. Plaintiff\xe2\x80\x99s\nExs. 1078 and 1079; Tr. 164-168. A special committee\n(Temple Hills Committee) was appointed to work with the\ndeveloper on the revision of the preliminary plat. Plaintiff\xe2\x80\x99s\nEx. 1081; Tr. 169-170.\nThe developer submitted a revised preliminary plat for\napproval in October 1980.2 Upon review, the\nCommission\xe2\x80\x99s staff and the Temple Hills Committee noted\nseveral problems with the revised plat. App. 304-305. First,\nthe allowable density under the zoning ordinance and\nsubdivision regulations then in effect was 548 units, rather\nthan the 736 units claimed under the preliminary plat\napproved in 1973. The difference reflected a decrease in\n18.5 acres for the parkway, a decrease of 66 acres for the\n10% deduction for roads, and an exclusion of 44 acres for\n50% of the land lying on slopes exceeding a 25% grade.\nSecond, two cul-de-sac roads that had become necessary\nbecause of the land taken for the parkway exceeded the\nmaximum length allowed for such roads under the\nsubdivision regulations in effect in both 1980 and 1973.\nThird, approximately 2,000 feet of road would have grades\nin excess of the maximum allowed by county road\nregulations. Fourth, the preliminary plat placed units on\nland that had grades in excess of 25% and thus was\nconsidered undevelopable under the zoning ordinance and\nsubdivision regulations. Fifth, the developer had not\nfulfilled its obligations regarding the construction and\nmaintenance of the main access road. Sixth, there were\ninadequate fire protection services for the area, as well as\ninadequate open space for children\xe2\x80\x99s recreational activities.\nFinally, the lots proposed in the preliminary plat had a road\nThe developer also submitted the preliminary plat that had been approved in 1973\nand reapproved on several subsequent occasions, contending that it had the right to\ndevelop the property according to that plat. As we have noted, that plat did not\nindicate how all of the parcels would be developed. App. 84-85.\n2\n\n595\n\n\x0cfrontage that was below the minimum required by the\nsubdivision regulations in effect in 1980.\nThe Temple Hills Committee recommended that the\nCommission grant a waiver of the regulations regarding the\nlength of the cul-de-sacs, the maximum grade of the roads,\nand the minimum frontage requirement. Id., at 297, 304306. Without addressing the suggestion that those three\nrequirements be waived, the Commission disapproved the\nplat on two other grounds: first, the plat did not comply\nwith the density requirements of the zoning ordinance or\nsubdivision regulations, because no deduction had been\nmade for the land taken for the parkway, and because there\nhad been no deduction for 10% of the acreage attributable\nto roads or for 50% of the land having a slope of more\nthan 25%; and second, lots were placed on slopes with a\ngrade greater than 25%. Plaintiff\xe2\x80\x99s Ex. 9112.\nThe developer then appealed to the County Board of\nZoning Appeals for an \xe2\x80\x9cinterpretation of the Residential\nCluster zoning [ordinance] as it relates to Temple Hills.\xe2\x80\x9d3\n3\n\nThe Board of Zoning Appeals was empowered:\n\xe2\x80\x9ca. To hear and decide appeals on any permit, decision,\ndetermination, or refusal made by the [County] Building\nCommissioner or other administrative official in the\ncarrying out or enforcement of any provision of this\nResolution; and to interpret the Zoning map and this\nResolution.\n\xe2\x80\xa6..\n\xe2\x80\x9cc. To hear and decide applications for variances from the\nterms of this Resolution. Such variances shall be granted\nonly where by reason of exceptional narrowness,\nshallowness, or shape of a specific piece of property which\nat the time of adoption of this Resolution was a lot of\nrecord, or where by reason of exceptional topographic\nsituations or conditions of a piece of property the strict\napplication of the provisions of this Resolution would\nresult in practical difficulties to or undue hardship upon\nthe owner of such property.\xe2\x80\x9d Plaintiff\xe2\x80\x99s Ex. 9112.\n\nSee also Tenn. Code. Ann. \xc2\xa7\xc2\xa7 13-7-106 to 13-7-109 (1980).\n\n596\n\n\x0cApp. 314. On November 11, 1980, the Board determined\nthat the Commission should apply the zoning ordinance\nand subdivision regulations that were in effect in 1973 in\nevaluating the density of Temple Hills. Id., at 328. It also\ndecided that in measuring which lots had excessive grades,\nthe Commission should define the slope in a manner more\nfavorable to the developer. Id., at 329.\nOn November 26, respondent, Hamilton Bank of Johnson\nCity, acquired through foreclosure the property in the\nTemple Hills subdivision that had not yet been developed,\na total of 257.65 acres. Id., at 189-190. This included many\nof the parcels that had been left blank in the preliminary\nplat approved in 1973. In June 1981, respondent submitted\ntwo preliminary plats to the Commission \xe2\x80\x93 the plat that had\nbeen approved in 1973 and subsequently reapproved\nseveral times, and a plat indicating respondent\xe2\x80\x99s plans for\nthe undeveloped areas, which was similar to the plat\nsubmitted by the developer in 1980. Id., at 88. The new plat\nproposed the development of 688 units; the reduction from\n736 units represented respondent\xe2\x80\x99s concession that 18.5\nacres should be removed from the acreage because that\nland had been taken for the parkway. Id., at 424, 425.\nOn June 18, the Commission disapproved the plat for eight\nreasons, including the density and grade problems cited in\nthe October 1980 denial, as well as the objections the\nTemple Hills Committee had raised in 1980 to the length of\ntwo cul-de-sacs, the grade of various roads, the lack of fire\nprotection, the disrepair of the main-access road, and the\nminimum frontage. Id., at 370. The Commission declined\nto follow the decision of the Board of Zoning Appeals that\nthe plat should be evaluated by the 1973 zoning ordinance\nand subdivision regulations, stating that the Board lacked\njurisdiction to hear appeals from the Commission. Id., at\n187-188, 360-361.\nB\n\n597\n\n\x0cRespondent then filed this suit in the United States District\nCourt for the Middle District of Tennessee, pursuant to 42\nU. S. C. \xc2\xa7 1983, alleging that the Commission had taken its\nproperty without just compensation and asserting that the\nCommission should be estopped under state law from\ndenying approval of the project.4 Respondent\xe2\x80\x99s expert\nwitnesses testified that the design that would meet each of\nthe Commission\xe2\x80\x99s eight objections would allow respondent\nto build only 67 units, 409 fewer than respondent claims it\nis entitled to build,5 and that the development of only 67\nsites would result in a net loss of over $1 million. App. 377.\nPetitioners\xe2\x80\x99 expert witness, on the other hand, testified that\nthe Commission\xe2\x80\x99s eight objections could be overcome by a\ndesign that would allow development of approximately 300\nunits. Tr. 1467-1468.\nAfter a 3-week trial, the jury found that respondent had\nbeen denied the \xe2\x80\x9ceconomically viable\xe2\x80\x9d use of its property in\nviolation of the Just Compensation Clause, and that the\nCommission was estopped under state law from requiring\nrespondent to comply with the current zoning ordinance\nand subdivision regulations rather than those in effect in\n1973. App. 32-33. The jury awarded damages of $350,000\nfor the temporary taking of respondent\xe2\x80\x99s property. Id., at\n33-34.6 The court entered a permanent injunction requiring\nRespondent also alleged that the Commission\xe2\x80\x99s refusal to approve the plat\nviolated respondent\xe2\x80\x99s rights to substantive and procedural due process and denied\nit equal protection. The District Court granted a directed verdict to petitioners on\nthe substantive due process and equal protection claims, and the jury found that\nrespondent had not been denied procedural due process. App. 32. Those issues are\nnot before us.\n4\n\nId., at 377; Tr. 238-243. Respondent claimed it was entitled to build 476 units: the\n736 units allegedly approved in 1973 minus the 212 units already built or given final\napproval and minus 48 units that were no longer available because land had been\ntaken from the subdivision for the parkway.\n5\n\nAlthough the record is less than clear, it appears that the jury calculated the\n$350,000 award by determining a fair rate of return on the value of the property for\nthe time between the Commission\xe2\x80\x99s rejection of the preliminary plat in 1980 and\nthe jury\xe2\x80\x99s verdict in March 1982. See id., at 800-805; Tr. of Oral Arg. 25, 32-33. In\n6\n\n598\n\n\x0cthe Commission to apply the zoning ordinance and\nsubdivision regulations in effect in 1973 to Temple Hills,\nand to approve the plat submitted in 1981. Id., at 34.\nThe court then granted judgment notwithstanding the\nverdict in favor of the Commission on the taking claim,\nreasoning in part that respondent was unable to derive\neconomic benefit from its property on a temporary basis\nonly, and that such a temporary deprivation, as a matter of\nlaw, cannot constitute a taking. Id., at 36, 41. In addition,\nthe court modified its permanent injunction to require the\nCommission merely to apply the zoning ordinance and\nsubdivision regulations in effect in 1973 to the project,\nrather than requiring approval of the plat, in order to allow\nthe parties to resolve \xe2\x80\x9clegitimate technical questions of\nwhether plaintiff meets the requirements of the 1973\nregulations,\xe2\x80\x9d id., at 42, through the applicable state and\nlocal appeals procedures.7\nA divided panel of the United States Court of Appeals for\nthe Sixth Circuit reversed. 729 F. 2d 402 (1984). The court\nheld that application of government regulations affecting\nan owner\xe2\x80\x99s use of property may constitute a taking if the\nregulation denies the owner all \xe2\x80\x9ceconomically viable\xe2\x80\x9d use of\nthe land, and that the evidence supported the jury\xe2\x80\x99s finding\nthat the property had no economically feasible use during\nthe time between the Commission\xe2\x80\x99s refusal to approve the\npreliminary plat and the jury\xe2\x80\x99s verdict. Id., at 405-406.\nRejecting petitioners\xe2\x80\x99 argument that respondent never had\nlight of our disposition of the case, we need not reach the question whether that\nmeasure of damages would provide just compensation, or whether it would be\nappropriate if respondent\xe2\x80\x99s cause of action were viewed as stating a claim under the\nDue Process Clause.\nWhile respondent\xe2\x80\x99s appeal was pending before the Court of Appeals, the parties\nreached an agreement whereby the Commission granted a variance from its cul-desac and road-grade regulations and approved the development of 476 units, and\nrespondent agreed, among other things, to rebuild existing roads, and build all new\nroads, according to current regulations. App. to Brief for Petitioners 35.\n7\n\n599\n\n\x0csubmitted a plat that complied with the 1973 regulations,\nand thus never had acquired rights that could be taken, the\ncourt held that the jury\xe2\x80\x99s estoppel verdict indicates that the\njury must have found that respondent had acquired a\n\xe2\x80\x9cvested right\xe2\x80\x9d under state law to develop the subdivision\naccording to the plat submitted in 1973. Id., at 407. Even if\nrespondent had no vested right under state law to finish the\ndevelopment, the jury was entitled to find that respondent\nhad a reasonable investment-backed expectation that the\ndevelopment could be completed, and that the actions of\nthe Commission interfered with that expectation. Ibid.\nThe court rejected the District Court\xe2\x80\x99s holding that the\ntaking verdict could not stand as a matter of law. A\ntemporary denial of property could be a taking, and was to\nbe analyzed in the same manner as a permanent taking.\nFinally, relying upon the dissent in San Diego Gas & Electric\nCo. v. San Diego, 450 U. S. 621, 636 (1981), the court\ndetermined that damages are required to compensate for a\ntemporary taking.8\nII\nWe granted certiorari to address the question whether\nFederal, State, and local Governments must pay money\ndamages to a landowner whose property allegedly has been\n\xe2\x80\x9ctaken\xe2\x80\x9d temporarily by the application of government\nregulations. 469 U. S. 815 (1984). Petitioners and their amici\nJudge Wellford dissented. 729 F. 2d, at 409. He did not agree that the evidence\nsupported a finding that respondent\xe2\x80\x99s property had been taken, in part because\nthere was no evidence that respondent had formally requested a variance from the\nregulations. Even if there was a temporary denial of the \xe2\x80\x9ceconomically viable\xe2\x80\x9d use\nof the property, Judge Wellford would have held that mere fluctuations in value\nduring the process of governmental decisionmaking are \xe2\x80\x9d \xe2\x80\x98incidents of ownership\xe2\x80\x99 \xe2\x80\x9d\nand cannot be considered a \xe2\x80\x9d \xe2\x80\x98taking,\xe2\x80\x99 \xe2\x80\x9d id., at 410, quoting Agins v. Tiburon, 447 U.\nS. 255, 263, n. 9 (1980). He also did not agree that damages could be awarded to\nremedy any taking, reasoning that the San Diego Gas dissent does not reflect the\nviews of the majority of this Court, and that this Court never has awarded damages\nfor a temporary taking where there was no invasion, physical occupation, or\n\xe2\x80\x9cseizure and direction\xe2\x80\x9d by the State of the landowner\xe2\x80\x99s property. 729 F. 2d, at 411.\n8\n\n600\n\n\x0ccontend that we should answer the question in the negative\nby ruling that government regulation can never effect a\n\xe2\x80\x9ctaking\xe2\x80\x9d within the meaning of the Fifth Amendment.\nThey recognize that government regulation may be so\nrestrictive that it denies a property owner all reasonable\nbeneficial use of its property, and thus has the same effect\nas an appropriation of the property for public use, which\nconcededly would be a taking under the Fifth Amendment.\nAccording to petitioners, however, regulation that has such\nan effect should not be viewed as a taking. Instead, such\nregulation should be viewed as a violation of the\nFourteenth Amendment\xe2\x80\x99s Due Process Clause, because it is\nan attempt by government to use its police power to effect\na result that is so unduly oppressive to the property owner\nthat it constitutionally can be effected only through the\npower of eminent domain. Violations of the Due Process\nClause, petitioners\xe2\x80\x99 argument concludes, need not be\nremedied by \xe2\x80\x9cjust compensation.\xe2\x80\x9d\nThe Court twice has left this issue undecided. San Diego Gas\n& Electric Co. v. San Diego, supra; Agins v. Tiburon, 447 U. S.\n255, 263 (1980). Once again, we find that the question is\nnot properly presented, and must be left for another day.\nFor whether we examine the Planning Commission\xe2\x80\x99s\napplication of its regulations under Fifth Amendment\n\xe2\x80\x9ctaking\xe2\x80\x9d jurisprudence, or under the precept of due\nprocess, we conclude that respondent\xe2\x80\x99s claim is premature.\nIII\nWe examine the posture of respondent\xe2\x80\x99s cause of action\nfirst by viewing it as stating a claim under the Just\nCompensation Clause. This Court often has referred to\nregulation that \xe2\x80\x9cgoes too far,\xe2\x80\x9d Pennsylvania Coal Co. v.\nMahon, 260 U. S. 393, 415 (1922), as a \xe2\x80\x9ctaking.\xe2\x80\x9d See, e. g.,\nRuckelshaus v. Monsanto Co., 467 U. S. 986, 1004-1005 (1984);\nAgins v. Tiburon, 447 U. S., at 260; Prune Yard Shopping Center\nv. Robins, 447 U. S. 74, 83 (1980);Kaiser Aetna v. United States,\n444 U. S. 164, 174 (1979); Andrus v. Allard, 444 U. S. 51, 65-\n\n601\n\n\x0c66 (1979); Penn Central Transp. Co. v. New York City, 438 U.\nS. 104, 124 (1978); Goldblatt v. Hempstead, 369 U. S. 590, 594\n(1962); United States v. Central Eureka Mining Co., 357 U. S.\n155, 168 (1958). Even assuming that those decisions meant\nto refer literally to the Taking Clause of the Fifth\nAmendment, and therefore stand for the proposition that\nregulation may effect a taking for which the Fifth\nAmendment requires just compensation, see San Diego, 450\nU. S., at 647-653 (dissenting opinion), and even assuming\nfurther that the Fifth Amendment requires the payment of\nmoney damages to compensate for such a taking, the jury\nverdict in this case cannot be upheld. Because respondent\nhas not yet obtained a final decision regarding the\napplication of the zoning ordinance and subdivision\nregulations to its property, nor utilized the procedures\nTennessee provides for obtaining just compensation,\nrespondent\xe2\x80\x99s claim is not ripe.\nA\nAs the Court has made clear in several recent decisions, a\nclaim that the application of government regulations effects\na taking of a property interest is not ripe until the\ngovernment entity charged with implementing the\nregulations has reached a final decision regarding the\napplication of the regulations to the property at issue. In\nHodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452\nU. S. 264 (1981), for example, the Court rejected a claim\nthat the Surface Mining Control and Reclamation Act of\n1977, 91 Stat. 447, 30 U. S. C. \xc2\xa7 1201 et seq., effected a\ntaking because:\nThere is no indication in the record\nthat appellees have availed themselves\nof the opportunities provided by the\nAct to obtain administrative relief by\nrequesting either a variance from the\napproximate-original-contour\nrequirement of \xc2\xa7 515(d) or a waiver\n\n602\n\n\x0cfrom the surface mining restrictions in\n\xc2\xa7 522(e). If [the property owners] were\nto seek administrative relief under\nthese\nprocedures,\na\nmutually\nacceptable solution might well be\nreached with regard to individual\nproperties, thereby obviating any need\nto address the constitutional questions.\nThe potential for such administrative\nsolutions confirms the conclusion that\nthe taking issue decided by the District\nCourt simply is not ripe for judicial\nresolution.\n452 U. S., at 297 (footnote omitted).\nSimilarly, in Agins v. Tiburon, supra, the Court held that a\nchallenge to the application of a zoning ordinance was not\nripe because the property owners had not yet submitted a\nplan for development of their property. 447 U. S., at 260.\nIn Penn Central Transp. Co. v. New York City, supra, the Court\ndeclined to find that the application of New York City\xe2\x80\x99s\nLandmarks Preservation Law to Grand Central Terminal\neffected a taking because, although the Landmarks\nPreservation Commission had disapproved a plan for a 50story office building above the terminal, the property\nowners had not sought approval for any other plan, and it\ntherefore was not clear whether the Commission would\ndeny approval for all uses that would enable the plaintiffs\nto derive economic benefit from the property. 438 U. S., at\n136-137.\nRespondent\xe2\x80\x99s claim is in a posture similar to the claims the\nCourt held premature in Hodel. Respondent has submitted a\nplan for developing its property, and thus has passed\nbeyond the Agins threshold. But, like the Hodel plaintiffs,\nrespondent did not then seek variances that would have\nallowed it to develop the property according to its\nproposed plat, notwithstanding the Commission\xe2\x80\x99s finding\n\n603\n\n\x0cthat the plat did not comply with the zoning ordinance and\nsubdivision regulations. It appears that variances could\nhave been granted to resolve at least five of the\nCommission\xe2\x80\x99s eight objections to the plat. The Board of\nZoning Appeals had the power to grant certain variances\nfrom the zoning ordinance, including the ordinance\xe2\x80\x99s\ndensity requirements and its restriction on placing units on\nland with slopes having a grade in excess of 25%. Tr. 12041205; see n. 3, supra. The Commission had the power to\ngrant variances from the subdivision regulations, including\nthe cul-de-sac, road-grade, and frontage requirements.9\nIndeed, the Temple Hills Committee had recommended\nthat the Commission grant variances from those\nregulations. App. 304-306. Nevertheless, respondent did\nnot seek variances from either the Board or the\nCommission.\nRespondent argues that it \xe2\x80\x9cdid everything possible to\nresolve the conflict with the commission,\xe2\x80\x9d Brief for\nRespondent 42, and that the Commission\xe2\x80\x99s denial of\napproval for respondent\xe2\x80\x99s plat was equivalent to a denial of\nvariances. The record does not support respondent\xe2\x80\x99s claim,\nhowever. There is no evidence that respondent applied to\nthe Board of Zoning Appeals for variances from the zoning\n9\n\nThe subdivision regulations in effect in 1980 and 1981 provided:\n\xe2\x80\x9cVariances may\nconditions:\n\nbe\n\ngranted\n\nunder the\n\nfollowing\n\n\xe2\x80\x9cWhere the subdivider can show that strict adherence to\nthese regulations would cause unnecessary hardship, due\nto conditions beyond the control of the subdivider. If the\nsubdivider creates the hardship due to his design or in an\neffort to increase the yield of lots in his subdivision, the\nvariance will not be granted.\n\xe2\x80\x9cWhere the Planning Commission decides that there are\ntopographical or other conditions peculiar to the site, and\na departure from their regulations will not destroy their\nintent.\xe2\x80\x9d\n\nCA App. 932.\n\n604\n\n\x0cordinance. As noted, the developer sought a ruling that the\nordinance in effect in 1973 should be applied, but neither\nrespondent nor the developer sought a variance from the\nrequirements of either the 1973 or 1980 ordinances.\nFurther, although the subdivision regulations in effect in\n1981 required that applications to the Commission for\nvariances be in writing, and that notice of the application be\ngiven to owners of adjacent property,10 the record contains\nno evidence that respondent ever filed a written request for\nvariances from the cul-de-sac, road-grade, or frontage\nrequirements of the subdivision regulations, or that\nrespondent ever gave the required notice.11 App. 212-213;\nsee also Tr. 1255-1257.\n\n10\n\nThe Commission\xe2\x80\x99s regulations required that\n\xe2\x80\x9cEach applicant must file with the Planning Commission a\nwritten request for variance stating at least the following:\n\xe2\x80\x9ca. The variance requested.\n\xe2\x80\x9cb. Reason or circumstances requiring the variance.\n\xe2\x80\x9cc. Notice to the adjacent property owners that a variance\nis being requested.\n\xe2\x80\x9cWithout the application any condition shown on the plat\nwhich would require a variance will constitute grounds for\ndisapproval of the plat.\xe2\x80\x9d\n\nId., at 933.\nRespondent\xe2\x80\x99s predecessor-in-interest requested, and apparently was granted, a\nwaiver of the 10% road-grade regulation for section VI of the subdivision. See\nPlaintiff\xe2\x80\x99s Exs. 1078, 9094. The predecessor-in-interest wrote a letter on January 3,\n1980, that respondent contends must be construed as a request for a waiver of the\nroad-grade regulation for the entire subdivision:\n11\n\n\xe2\x80\x9cI contend that the road grade and slope question \xe2\x80\xa6 is\nadequately provided for by both the [subdivision]\nRegulations and the Zoning Ordinance. In both, the\nPlanning Commission is given the authority to approve\nroads that have grades in excess of 10%.\n\n605\n\n\x0cIndeed, in a letter to the Commission written shortly before\nits June 18, 1981, meeting to consider the preliminary\nsketch, respondent took the position that it would not\nrequest variances from the Commission until after the\nCommission approved the proposed plat:\n[Respondent] stands ready to work\nwith the Planning Commission\nconcerning the necessary variances.\nUntil the initial sketch is renewed,\nhowever, and the developer has an\nopportunity to do detailed engineering\nwork it is impossible to determine the\nexact nature of any variances that may\nbe needed.\nPlaintiff\xe2\x80\x99s Ex. 9028, p. 6.\nThe Commission\xe2\x80\x99s regulations clearly indicated that unless\na developer applied for a variance in writing and upon\nnotice to other property owners, \xe2\x80\x9cany condition shown on\nthe plat which would require a variance will constitute\ngrounds for disapproval of the plat.\xe2\x80\x9d CA App. 933. Thus,\nin the face of respondent\xe2\x80\x99s refusal to follow the procedures\n\xe2\x80\x9cIn our particular case, it was common knowledge from\nthe beginning that due to the character of the land\ninvolved that there would be roads that exceeded the 10%\nslope. In fact in our first Section there is a stretch of road\nthat exceeds the 10%; therefore I respectfully request that\nthis letter be made an official part of the Planning\nCommission Minutes of January 3, 1980 and further the\nZoning Approval which has been granted be allowed to\nstand without any changes.\xe2\x80\x9d\n\nDefendants\xe2\x80\x99 Ex. 96.\nEven assuming, arguendo, that the letter constituted a request for a variance,\nrespondent\xe2\x80\x99s taking claim nevertheless is not ripe. There is no evidence that\nrespondent requested variances from the regulations that formed the basis of the\nother objections raised by the Commission, such as those regulating the length of\ncul-de-sacs. Absent a final decision regarding the application of all eight of the\nCommission\xe2\x80\x99s objections, it is impossible to tell whether the land retained any\nreasonable beneficial use or whether respondent\xe2\x80\x99s expectation interests had been\ndestroyed.\n\n606\n\n\x0cfor requesting a variance, and its refusal to provide specific\ninformation about the variances it would require,\nrespondent hardly can maintain that the Commission\xe2\x80\x99s\ndisapproval of the preliminary plat was equivalent to a final\ndecision that no variances would be granted.\nAs in Hodel, Agins, and Penn Central, then, respondent has\nnot yet obtained a final decision regarding how it will be\nallowed to develop its property. Our reluctance to examine\ntaking claims until such a final decision has been made is\ncompelled by the very nature of the inquiry required by the\nJust Compensation Clause. Although \xe2\x80\x9c[t]he question of\nwhat constitutes a \xe2\x80\x98taking\xe2\x80\x99 for purposes of the Fifth\nAmendment has proved to be a problem of considerable\ndifficulty,\xe2\x80\x9d Penn Central Transp. Co. v. New York City, 438 U.\nS., at 123, this Court consistently has indicated that among\nthe factors of particular significance in the inquiry are the\neconomic impact of the challenged action and the extent to\nwhich it interferes with reasonable investment-backed\nexpectations. Id., at 124. See also Ruckelshaus v. Monsanto Co.,\n467 U. S., at 1005; PruneYard Shopping Center v. Robins, 447\nU. S., at 83; Kaiser Aetna v. United States, 444 U. S., at 175.\nThose factors simply cannot be evaluated until the\nadministrative agency has arrived at a final, definitive\nposition regarding how it will apply the regulations at issue\nto the particular land in question.\nHere, for example, the jury\xe2\x80\x99s verdict indicates only that it\nfound that respondent would be denied the economically\nfeasible use of its property if it were forced to develop the\nsubdivision in a manner that would meet each of the\nCommission\xe2\x80\x99s eight objections. It is not clear whether the\njury would have found that the respondent had been\ndenied all reasonable beneficial use of the property had any\nof the eight objections been met through the grant of a\nvariance. Indeed, the expert witness who testified regarding\nthe economic impact of the Commission\xe2\x80\x99s actions did not\nitemize the effect of each of the eight objections, so the\n\n607\n\n\x0cjury would have been unable to discern how a grant of a\nvariance from any one of the regulations at issue would\nhave affected the profitability of the development. App.\n377; see also id., at 102-104. Accordingly, until the\nCommission determines that no variances will be granted, it\nis impossible for the jury to find, on this record, whether\nrespondent \xe2\x80\x9cwill be unable to derive economic benefit\xe2\x80\x9d\nfrom the land.12\nRespondent asserts that it should not be required to seek\nvariances from the regulations because its suit is predicated\nupon 42 U. S. C. \xc2\xa7 1983, and there is no requirement that a\nplaintiff exhaust administrative remedies before bringing a\nThe District Court\xe2\x80\x99s instructions allowed the jury to find a taking if it ascertained\nthat \xe2\x80\x9cthe regulations in question as applied to [respondent\xe2\x80\x99s] property denied\n[respondent] economically viable use of its property.\xe2\x80\x9d Tr. 2016. That instruction\nseems to assume that respondent\xe2\x80\x99s taking theory was simply that its property was\nrendered valueless by the application of new zoning laws and subdivision\nregulations in 1980. The record indicates, however, that respondent\xe2\x80\x99s claim was\nbased upon a state-law theory of \xe2\x80\x9cvested rights,\xe2\x80\x9d and that the alleged \xe2\x80\x9ctaking\xe2\x80\x9d was\nthe Commission\xe2\x80\x99s interference with respondent\xe2\x80\x99s \xe2\x80\x9cexpectation interest\xe2\x80\x9d in\ncompleting the development according to its original plans. The evidence that it\nwas not economically feasible to develop just the 67 units respondent claims the\nCommission\xe2\x80\x99s actions would limit it to developing was based upon the cost of\nbuilding the development according to the original plan. The expected income\nfrom the sale of the 67 units apparently was measured against the cost of the 27hole golf course and the cost of installing water and sewer connections for a large\ndevelopment that would not have had to have been installed for a development of\nonly 67 units. App. 191-197; Tr. 690; see also id., at 2154-2155. Thus, the evidence\nappears to indicate that it would not be profitable to develop 67 units because\nrespondent had made various expenditures in the expectation that the development\nwould contain far more units; the evidence does not appear to support the\nproposition that, aside from those \xe2\x80\x9creliance\xe2\x80\x9d expenditures, development of 67 units\non the property would not be economically feasible.\n12\n\nWe express no view of the propriety of applying the \xe2\x80\x9ceconomic viability\xe2\x80\x9d test when\nthe taking claim is based upon such a theory of \xe2\x80\x9cvested rights\xe2\x80\x9d or \xe2\x80\x9cexpectation\ninterest.\xe2\x80\x9d Cf. Andrus v. Allard, 444 U. S. 51, 66 (1979) (analyzing a claim that\nGovernment regulations effected a taking by reducing expected profits). It is\nsufficient for our purposes to note that whether the \xe2\x80\x9cproperty\xe2\x80\x9d taken is viewed as\nthe land itself or respondent\xe2\x80\x99s expectation interest in developing the land as it\nwished, it is impossible to determine the extent of the loss or interference until the\nCommission has decided whether it will grant a variance from the application of\nthe regulations.\n\n608\n\n\x0c\xc2\xa7 1983 action. Patsy v. Florida Board of Regents, 457 U. S. 496\n(1982). The question whether administrative remedies must\nbe exhausted is conceptually distinct, however, from the\nquestion whether an administrative action must be final\nbefore it is judicially reviewable. See FTC v. Standard Oil Co.,\n449 U. S. 232, 243 (1980); Bethlehem Steel Corp. v. EPA, 669\nF. 2d 903, 908 (CA3 1982). See generally 13A C. Wright, A.\nMiller, & E. Cooper, Federal Practice and Procedure \xc2\xa7\n3532.6 (1984). While the policies underlying the two\nconcepts often overlap, the finality requirement is\nconcerned with whether the initial decisionmaker has\narrived at a definitive position on the issue that inflicts an\nactual, concrete injury; the exhaustion requirement\ngenerally refers to administrative and judicial procedures by\nwhich an injured party may seek review of an adverse\ndecision and obtain a remedy if the decision is found to be\nunlawful or otherwise inappropriate. Patsy concerned the\nlatter, not the former.\nThe difference is best illustrated by comparing the\nprocedure for seeking a variance with the procedures that,\nunder Patsy, respondent would not be required to exhaust.\nWhile it appears that the State provides procedures by\nwhich an aggrieved property owner may seek a declaratory\njudgment regarding the validity of zoning and planning\nactions taken by county authorities, see Fallin v. Knox County\nBd. of Comm\xe2\x80\x99rs, 656 S. W. 2d 338 (Tenn. 1983); Tenn. Code\nAnn. \xc2\xa7\xc2\xa7 27-8-101, 27-9-101 to 27-9-113, and XX-XX-XXX\nto XX-XX-XXX (1980 and Supp. 1984), respondent would\nnot be required to resort to those procedures before\nbringing its \xc2\xa7 1983 action, because those procedures clearly\nare remedial. Similarly, respondent would not be required\nto appeal the Commission\xe2\x80\x99s rejection of the preliminary\nplat to the Board of Zoning Appeals, because the Board\nwas empowered, at most, to review that rejection, not to\nparticipate in the Commission\xe2\x80\x99s decisionmaking.\n\n609\n\n\x0cResort to those procedures would result in a judgment\nwhether the Commission\xe2\x80\x99s actions violated any of\nrespondent\xe2\x80\x99s rights. In contrast, resort to the procedure for\nobtaining variances would result in a conclusive\ndetermination by the Commission whether it would allow\nrespondent to develop the subdivision in the manner\nrespondent proposed. The Commission\xe2\x80\x99s refusal to\napprove the preliminary plat does not determine that issue;\nit prevents respondent from developing its subdivision\nwithout obtaining the necessary variances, but leaves open\nthe possibility that respondent may develop the subdivision\naccording to its plat after obtaining the variances. In short,\nthe Commission\xe2\x80\x99s denial of approval does not conclusively\ndetermine whether respondent will be denied all reasonable\nbeneficial use of its property, and therefore is not a final,\nreviewable decision.\nB\nA second reason the taking claim is not yet ripe is that\nrespondent did not seek compensation through the\nprocedures the State has provided for doing so.13 The Fifth\nAmendment does not proscribe the taking of property; it\nproscribes taking without just compensation. Hodel v.\nVirginia Surface Mining & Reclamation Assn., Inc., 452 U. S., at\n297, n. 40. Nor does the Fifth Amendment require that just\ncompensation be paid in advance of, or contemporaneously\nwith, the taking; all that is required is that a \xe2\x80\x9d \xe2\x80\x98reasonable,\ncertain and adequate provision for obtaining compensation\xe2\x80\x99\nAgain, it is necessary to contrast the procedures provided for review of the\nCommission\xe2\x80\x99s actions, such as those for obtaining a declaratory judgment, see\nTenn. Code Ann. \xc2\xa7\xc2\xa7 29-14-101 to XX-XX-XXX (1980), with procedures that allow\na property owner to obtain compensation for a taking. Exhaustion of review\nprocedures is not required. See Patsy v. Florida Board of Regents, 457 U. S. 496 (1982).\nAs we have explained, however, because the Fifth Amendment proscribes takings\nwithout just compensation, no constitutional violation occurs until just compensation\nhas been denied. The nature of the constitutional right therefore requires that a\nproperty owner utilize procedures for obtaining compensation before bringing a \xc2\xa7\n1983 action.\n13\n\n610\n\n\x0c\xe2\x80\x9d exist at the time of the taking. Regional Rail Reorganization\nAct Cases, 419 U. S. 102, 124-125 (1974) (quoting Cherokee\nNation v. Southern Kansas R. Co., 135 U. S. 641, 659 (1890)).\nSee also Ruckelshaus v. Monsanto Co., 467 U. S., at 1016;\nYearsley v. W. A. Ross Construction Co., 309 U. S. 18, 21\n(1940); Hurley v. Kincaid, 285 U. S. 95, 104 (1932). If the\ngovernment has provided an adequate process for\nobtaining compensation; and if resort to that process\n\xe2\x80\x9cyield[s] just compensation,\xe2\x80\x9d then the property owner \xe2\x80\x9chas\nno claim against the Government\xe2\x80\x9d for a taking. Monsanto,\n467 U. S., at 1013, 1018, n. 21. Thus, we have held that\ntaking claims against the Federal Government are\npremature until the property owner has availed itself of the\nprocess provided by the Tucker Act, 28 U. S. C. \xc2\xa7 1491.\nMonsanto, 467 U. S., at 1016-1020. Similarly, if a State\nprovides an adequate procedure for seeking just\ncompensation, the property owner cannot claim a violation\nof the Just Compensation Clause until it has used the\nprocedure and been denied just compensation.\nThe recognition that a property owner has not suffered a\nviolation of the Just Compensation Clause until the owner\nhas unsuccessfully attempted to obtain just compensation\nthrough the procedures provided by the State for obtaining\nsuch compensation is analogous to the Court\xe2\x80\x99s holding in\nParratt v. Taylor, 451 U. S. 527 (1981). There, the Court\nruled that a person deprived of property through a random\nand unauthorized act by a state employee does not state a\nclaim under the Due Process Clause merely by alleging the\ndeprivation of property. In such a situation, the\nConstitution does not require predeprivation process\nbecause it would be impossible or impracticable to provide\na meaningful hearing before the deprivation. Instead, the\nConstitution is satisfied by the provision of meaningful\npostdeprivation process. Thus, the State\xe2\x80\x99s action is not\n\xe2\x80\x9ccomplete\xe2\x80\x9d in the sense of causing a constitutional injury\n\xe2\x80\x9cunless or until the state fails to provide an adequate\n\n611\n\n\x0cpostdeprivation remedy for the property loss.\xe2\x80\x9d Hudson v.\nPalmer, 468 U. S. 517, 532, n. 12 (1984). Likewise, because\nthe Constitution does not require pretaking compensation,\nand is instead satisfied by a reasonable and adequate\nprovision for obtaining compensation after the taking, the\nState\xe2\x80\x99s action here is not \xe2\x80\x9ccomplete\xe2\x80\x9d until the State fails to\nprovide adequate compensation for the taking.14\nUnder Tennessee law, a property owner may bring an\ninverse condemnation action to obtain just compensation\nfor an alleged taking of property under certain\ncircumstances. Tenn. Code Ann. \xc2\xa7 29-16-123 (1980). The\nstatutory scheme for eminent domain proceedings outlines\nthe procedures by which government entities must exercise\nthe right of eminent domain. \xc2\xa7\xc2\xa7 29-16-101 to XX-XXXXX. The State is prohibited from \xe2\x80\x9center[ing] upon\n[condemned] land\xe2\x80\x9d until these procedures have been\nutilized and compensation has been paid the owner, \xc2\xa7 2916-122, but if a government entity does take possession of\nthe land without following the required procedures,\nthe owner of such land may petition\nfor a jury of inquest, in which case the\nsame proceedings may be had, as near\nThe analogy to Parratt is imperfect because Parratt does not extend to situations\nsuch as those involved in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in\nwhich the deprivation of property is effected pursuant to an established state policy\nor procedure, and the State could provide predeprivation process. Unlike the Due\nProcess Clause, however, the Just Compensation Clause has never been held to\nrequire pretaking process or compensation. Ruckelshaus v. Monsanto Co., 467 U. S.\n986, 1016 (1984). Nor has the Court ever recognized any interest served by\npretaking compensation that could not be equally well served by post-taking\ncompensation. Under the Due Process Clause, on the other hand, the Court has\nrecognized that predeprivation process is of \xe2\x80\x9cobvious value in reaching an accurate\ndecision,\xe2\x80\x9d that the \xe2\x80\x9conly meaningful opportunity to invoke the discretion of the\ndecisionmaker is likely to be before the [deprivation] takes effect,\xe2\x80\x9d Cleveland Board of\nEducation v. Loudermill, 470 U. S. 532, 543 (1985), and that predeprivation process\nmay serve the purpose of making an individual feel that the government has dealt\nwith him fairly. See Carey v. Piphus, 435 U. S. 247, 262 (1978). Thus, despite the\nCourt\xe2\x80\x99s holding in Logan, Parratt\xe2\x80\x99s reasoning applied here by analogy because of the\nspecial nature of the Just Compensation Clause.\n14\n\n612\n\n\x0cas may be, as hereinbefore provided;\nor he may sue for damages in the\nordinary way \xe2\x80\xa6 .\n\xc2\xa7 29-16-123.\nThe Tennessee state courts have interpreted \xc2\xa7 29-16-123 to\nallow recovery through inverse condemnation where the\n\xe2\x80\x9ctaking\xe2\x80\x9d is effected by restrictive zoning laws or\ndevelopment regulations. See Davis v. Metropolitan Govt. of\nNashville, 620 S. W. 2d 532, 533-534 (Tenn. App. 1981);\nSpeight v. Lockhart, 524 S. W. 2d 249 (Tenn. App. 1975).\nRespondent has not shown that the inverse condemnation\nprocedure is unavailable or inadequate, and until it has\nutilized that procedure, its taking claim is premature.\n\xe2\x80\xa6.\nSan Remo Hotel, L.P. v. City and County of San\nFrancisco\n545 U.S. 323 (2005)\nCERTIORARI TO THE UNITED STATES COURT OF\nAPPEALS FOR THE NINTH CIRCUIT\nPaul F. Utrecht argued the cause for petitioners. With him\non the briefs was Andrew M. Zacks.\nSeth P. Waxman argued the cause for respondents. With him\non the brief were Andrew W. Schwartz, Fran M. Layton,\nEllison Folk, Edward C. DuMont, and Therese M. Stewart.\nJUSTICE STEVENS delivered the opinion of the Court.\nThis case presents the question whether federal courts may\ncraft an exception to the full faith and credit statute, 28 U.\nS. C. \xc2\xa7 1738, for claims brought under the Takings Clause\nof the Fifth Amendment.\nPetitioners, who own and operate a hotel in San Francisco,\nCalifornia (hereinafter City), initiated this litigation in\nresponse to the application of a city ordinance that required\nthem to pay a $567,000 \xe2\x80\x9cconversion fee\xe2\x80\x9d in 1996. After the\n\n613\n\n\x0cCalifornia courts rejected petitioners\xe2\x80\x99 various state-law\ntakings claims, they advanced in the Federal District Court\na series of federal takings claims that depended on issues\nidentical to those that had previously been resolved in the\nstate-court action. In order to avoid the bar of issue\npreclusion, petitioners asked the District Court to exempt\nfrom \xc2\xa7 1738\xe2\x80\x99s reach claims brought under the Takings\nClause of the Fifth Amendment.\nPetitioners\xe2\x80\x99 argument is predicated on Williamson County\nRegional Planning Comm\xe2\x80\x99n v. Hamilton Bank of Johnson City, 473\nU. S. 172 (1985), which held that takings claims are not ripe\nuntil a State fails \xe2\x80\x9cto provide adequate compensation for\nthe taking.\xe2\x80\x9d Id., at 195. Unless courts disregard \xc2\xa7 1738 in\ntakings cases, petitioners argue, plaintiffs will be forced to\nlitigate their claims in state court without any realistic\npossibility of ever obtaining review in a federal forum. The\nNinth Circuit\xe2\x80\x99s rejection of this argument conflicted with\nthe Second Circuit\xe2\x80\x99s decision in Santini v. Connecticut\nHazardous Waste Management Serv., 342 F. 3d 118 (2003). We\ngranted certiorari to resolve the conflict, 543 U. S. 1032\n(2004),1 and now affirm the judgment of the Ninth Circuit.\nI\nThe San Remo Hotel is a three-story, 62-unit hotel in the\nFisherman\xe2\x80\x99s Wharf neighborhood in San Francisco. In\nDecember 1906, shortly after the great earthquake and fire\ndestroyed most of the City, the hotel \xe2\x80\x93 then called the\n\xe2\x80\x9cNew California Hotel\xe2\x80\x9d \xe2\x80\x93 opened its doors to house\ndislocated individuals, immigrants, artists, and laborers. The\nAlthough petitioners asked this Court to review two separate questions, our grant\nof certiorari was limited exclusively to the question whether \xe2\x80\x9ca Fifth Amendment\nTakings claim [is] barred by issue preclusion based on a judgment denying\ncompensation solely under state law, which was rendered in a state court\nproceeding that was required to ripen the federal Takings claim?\xe2\x80\x9d Pet. for Cert. i.\nThus, we have no occasion to reach petitioners\xe2\x80\x99 claim that, under California law,\nthe substantive state takings law decision of the California Supreme Court was not\nentitled to preclusive effect in federal court. See Brief for Petitioners 19-21.\n1\n\n614\n\n\x0cCity officially licensed the facility to operate as a hotel and\nrestaurant in 1916, and in 1922 the hotel was given its\ncurrent name. When the hotel fell into financial difficulties\nand a \xe2\x80\x9cdilapidated condition\xe2\x80\x9d in the early 1970\xe2\x80\x99s, Robert\nand Thomas Field purchased the facility, restored it, and\nbegan to operate it as a bed and breakfast inn. See San Remo\nHotel, L. P. v. City and County of San Francisco, 100 Cal. Rptr.\n2d 1, 5 (Cal. App. 2000) (officially depublished).\nIn 1979, San Francisco\xe2\x80\x99s Board of Supervisors responded\nto \xe2\x80\x9ca severe shortage\xe2\x80\x9d of affordable rental housing for\nelderly, disabled, and low-income persons by instituting a\nmoratorium on the conversion of residential hotel units\ninto tourist units. San Francisco Residential Hotel Unit\nConversion and Demolition Ordinance (hereinafter Hotel\nConversion Ordinance or HCO) \xc2\xa7\xc2\xa7 41.3(a)-(g), App. to Pet.\nfor Cert. 195a-197a. Two years later, the City enacted the\nfirst version of the Hotel Conversion Ordinance to regulate\nall future conversions. San Francisco Ordinance No. 33081, codified in \xc2\xa7 41.1 et seq. Under the 1981 version of the\nHCO, a hotel owner could convert residential units into\ntourist units only by obtaining a conversion permit. And\nthose permits could be obtained only by constructing new\nresidential units, rehabilitating old ones, or paying an \xe2\x80\x9cin\nlieu\xe2\x80\x9d fee into the City\xe2\x80\x99s Residential Hotel Preservation\nFund Account. See \xc2\xa7\xc2\xa7 41.12-41.13, App. to Pet. for Cert.\n224a-231a. The City substantially strengthened the HCO in\n1990 by eliminating several exceptions that had existed in\nthe 1981 version and increasing the size of the \xe2\x80\x9cin lieu\xe2\x80\x9d fee\nhotel owners must pay when converting residential units.\nSee 145 F. 3d 1095, 1099 (CA9 1998).\nThe genesis of this protracted dispute lies in the 1981\nHCO\xe2\x80\x99s requirement that each hotel \xe2\x80\x9cfile an initial unit\nusage report containing\xe2\x80\x9d the \xe2\x80\x9cnumber of residential and\ntourist units in the hotel[s] as of September 23, 1979.\xe2\x80\x9d \xc2\xa7\n41.6(b)(1), App. to Pet. for Cert. 206a. Jean Iribarren was\noperating the San Remo Hotel, pursuant to a lease from\n\n615\n\n\x0cpetitioners, when this requirement came into effect.\nIribarren filed the initial usage report for the hotel, which\nerroneously reported that all of the rooms in the hotel were\n\xe2\x80\x9cresidential\xe2\x80\x9d units.2 The consequence of that initial\nclassification was that the City zoned the San Remo Hotel\nas \xe2\x80\x9cresidential hotel\xe2\x80\x9d \xe2\x80\x93 in other words, a hotel that\nconsisted entirely of residential units. And that zoning\ndetermination ultimately meant that, despite the fact that\nthe San Remo Hotel had operated in practice as a tourist\nhotel for many years, 145 F. 3d, at 1100, petitioners were\nrequired to apply for a conditional use permit to do\nbusiness officially as a \xe2\x80\x9ctourist hotel,\xe2\x80\x9d San Remo Hotel, L. P.\nv. City and County of San Francisco, 27 Cal. 4th 643, 654, 41 P.\n3d 87, 94 (2002).\nAfter the HCO was revised in 1990, petitioners applied to\nconvert all of the rooms in the San Remo Hotel into tourist\nuse rooms under the relevant HCO provisions and\nrequested a conditional use permit under the applicable\nzoning laws. In 1993, the City Planning Commission\ngranted petitioners\xe2\x80\x99 requested conversion and conditional\nuse permit, but only after imposing several conditions, one\nof which included the requirement that petitioners pay a\n$567,000 \xe2\x80\x9cin lieu\xe2\x80\x9d fee.3 Petitioners appealed, arguing that\nthe HCO requirement was unconstitutional and otherwise\nimproperly applied to their hotel. See id., at 656, 41 P. 3d, at\n\nIt seems that despite this initial classification, the San Remo Hotel has operated as\na mixed hotel for tourists and long-term residents since long before the HCO was\nenacted. According to the California Supreme Court, in \xe2\x80\x9ca 1992 declaration by\n[petitioners], Iribarren filed the \xe2\x80\x98incorrect\xe2\x80\x99 initial unit usage report without their\nknowledge. They first discovered the report in 1983 when they resumed operation\nof the hotel. They protested the residential use classification in 1987, but were told\nit could not be changed because the appeal period had passed.\xe2\x80\x9d San Remo Hotel, L.\nP. v. City and County of San Francisco, 27 Cal. 4th 643, 654, 41 P. 3d 87, 94 (2002).\n2\n\nThe application specifically required petitioners (1) to pay for 40 percent of the\ncost of replacement housing for the 62 lost residential units; (2) to offer lifetime\nleases to any then-current residential users; and (3) to \xe2\x80\x9cobtain variances from floorarea ratio and parking requirements.\xe2\x80\x9d Id., at 656, 41 P. 3d, at 95.\n3\n\n616\n\n\x0c95. The City Board of Supervisors rejected petitioners\xe2\x80\x99\nappeal on April 19, 1993.\nIn March 1993, petitioners filed for a writ of administrative\nmandamus in California Superior Court. That action lay\ndormant for several years, and the parties ultimately agreed\nto stay that action after petitioners filed for relief in Federal\nDistrict Court.\nPetitioners filed in federal court for the first time on May 4,\n1993. Petitioners\xe2\x80\x99 first amended complaint alleged four\ncounts of due process (substantive and procedural) and\ntakings (facial and as-applied)4 violations under the Fifth\nand Fourteenth Amendments to the United States\nConstitution, one count seeking damages under Rev. Stat. \xc2\xa7\n1979, 42 U. S. C. \xc2\xa7 1983, for those violations, and one\npendent state-law claim. The District Court granted\nrespondents summary judgment. As relevant to this action,\nthe court found that petitioners\xe2\x80\x99 facial takings claim was\nuntimely under the applicable statute of limitations, and\nthat the as-applied takings claim was unripe under\nWilliamson County, 473 U. S. 172.\nOn appeal to the Court of Appeals for the Ninth Circuit,\npetitioners took the unusual position that the court should\nnot decide their federal claims, but instead should abstain\nunder Railroad Comm\xe2\x80\x99n of Tex. v. Pullman Co., 312 U. S. 496\n(1941), because a return to state court could conceivably\nmoot the remaining federal questions. See App. 67-68; see\nalso 145 F. 3d, at 1101. The Court of Appeals obliged\npetitioners\xe2\x80\x99 request with respect to the facial challenge, a\nSpecifically, count 3 alleged that the HCO was facially unconstitutional under the\nTakings Clause because it \xe2\x80\x9cfails to substantially advance legitimate government\ninterests, deprives plaintiffs of the opportunity to earn a fair return on its\ninvestment, denies plaintiffs economically viable use of their property, and forces\nplaintiffs to bear the public burden of housing the poor, all without just\ncompensation.\xe2\x80\x9d First Amended and Supplemental Complaint, No. C-93-1644-DLJ\n(ND Cal., Jan. 24, 1994), p. 20, \xc2\xb6 49. Count 4, which advanced petitioners\xe2\x80\x99 asapplied Takings Clause violation, was predicated on the same rationale. Id., at 21.\n4\n\n617\n\n\x0crequest that respondents apparently viewed as an\n\xe2\x80\x9coutrageous act of chutzpah.\xe2\x80\x9d Id., at 1105. That claim, the\ncourt reasoned, was \xe2\x80\x9cripe the instant the 1990 HCO was\nenacted,\xe2\x80\x9d id., at 1102, and appropriate for Pullman\nabstention principally because petitioners\xe2\x80\x99 \xe2\x80\x9centire case\xe2\x80\x9d\nhinged on the propriety of the planning commission\xe2\x80\x99s\nzoning designation \xe2\x80\x93 the precise subject of the pending\nstate mandamus action, 145 F. 3d, at 1105.5 The court,\nhowever, affirmed the District Court\xe2\x80\x99s determination that\npetitioners\xe2\x80\x99 as-applied takings claim \xe2\x80\x93 the claim that the\napplication of the HCO to the San Remo Hotel violated\nthe Takings Clause \xe2\x80\x93 was unripe. Because petitioners had\nfailed to pursue an inverse condemnation action in state\ncourt, they had not yet been denied just compensation as\ncontemplated by Williamson County. 145 F. 3d, at 1105.\nAt the conclusion of the Ninth Circuit\xe2\x80\x99s opinion, the court\nappended a footnote stating that petitioners would be free\nto raise their federal takings claims in the California courts.\nIf, however, they wanted to \xe2\x80\x9cretain [their] right to return to\nfederal court for adjudication of [their] federal claim, [they]\nmust make an appropriate reservation in state court.\xe2\x80\x9d Id., at\n1106, n. 7 (citations omitted).6 That is precisely what\npetitioners attempted to do when they reactivated the\ndormant California case. Yet petitioners advanced more\nthan just the claims on which the federal court had\nabstained, and phrased their state claims in language that\nsounded in the rules and standards established and refined\nby this Court\xe2\x80\x99s takings jurisprudence. Petitioners claimed,\nfor instance, that \xe2\x80\x9cimposition of the fee \xe2\x80\x98fails to\nsubstantially advance a legitimate government interest\xe2\x80\x99 and\nthat \xe2\x80\x98[t]he amount of the fee imposed is not roughly\nThe Court of Appeals did not answer the question whether this claim was barred\nby the statute of limitations, as the District Court had held.\n5\n\nThe reservation discussed in the Ninth Circuit\xe2\x80\x99s opinion was the common\nreservation of federal claims made in state litigation under England v. Louisiana Bd. of\nMedical Examiners, 375 U. S. 411, 420-421 (1964).\n6\n\n618\n\n\x0cproportional to the impact\xe2\x80\x99 of the proposed tourist use of\nthe San Remo Hotel.\xe2\x80\x9d 27 Cal. 4th, at 656,41 P. 3d, at 95\n(quoting petitioners\xe2\x80\x99 second amended state complaint).7\nThe state trial court dismissed petitioners\xe2\x80\x99 amended\ncomplaint, but the intermediate appellate court reversed.\nThe court held that petitioners\xe2\x80\x99 claim that the payment of\nthe \xe2\x80\x9cin lieu\xe2\x80\x9d fee effected a taking should have been\nevaluated under heightened scrutiny. Under more exacting\nscrutiny, the fee failed this Court\xe2\x80\x99s \xe2\x80\x9cessential nexus\xe2\x80\x9d and\n\xe2\x80\x9crough proportionality\xe2\x80\x9d tests because, inter alia, it was based\non the original flawed designation that the San Remo Hotel\nwas an entirely \xe2\x80\x9cresidential use\xe2\x80\x9d facility. See id., at 657-658,\n41 P. 3d, at 96-97 (summarizing appellate court opinion)\n(internal quotation marks omitted).\nThe California Supreme Court reversed over the partial\ndissent of three justices.8 The court initially noted that\npetitioners had reserved their federal causes of action and\nhad sought no relief for any violation of the Federal\nConstitution. Id., at 649, n. 1, 41 P. 3d, at 91, n. 1.9 In the\nportion of its opinion discussing the Takings Clause of the\nCalifornia Constitution, however, the court noted that \xe2\x80\x9cwe\nappear to have construed the clauses congruently.\xe2\x80\x9d Id., at\n664, 41 P. 3d, at 100-101 (citing cases). Accordingly, despite\nthe fact that petitioners sought relief only under California\nWith respect to claims that a regulation fails to advance a legitimate state interest,\nsee generally Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 540-545 (2005). With\nrespect to \xe2\x80\x9crough proportionality\xe2\x80\x9d claims, see generally Nollan v. California Coastal\nComm\xe2\x80\x99n, 483 U. S. 825 (1987); Dolan v. City of Tigard, 512 U. S. 374 (1994).\n7\n\nJustice Baxter and Justice Chin opined that because some hotel rooms had been\npreviously rented to tourists, the \xe2\x80\x9cin lieu\xe2\x80\x9d payment was excessive. 27 Cal. 4th, at\n691, 41 P. 3d, at 119-120. Justice Brown opined that a 1985 statute had effectively\nsuperseded the HCO and disagreed with the majority\xe2\x80\x99s analysis of the\nconstitutional issues. Id., at 699, 700-704, 41 P. 3d, at 125-128.\n8\n\n\xe2\x80\x9cPlaintiffs sought no relief in state court for violation of the Fifth Amendment to\nthe United States Constitution. They explicitly reserved their federal causes of\naction. As their petition for writ of mandate, as well, rests solely on state law, no\nfederal question has been presented or decided in this case.\xe2\x80\x9d Id., at 649, n. 1, 41 P.\n3d, at 91, n. 1.\n9\n\n619\n\n\x0claw, the state court decided to \xe2\x80\x9canalyze their takings claim\nunder the relevant decisions of both this court and the\nUnited States Supreme Court.\xe2\x80\x9d Ibid., 41 P. 3d, at 101.10\n\xe2\x80\xa6.\nApplying the \xe2\x80\x9creasonable relationship\xe2\x80\x9d test, the court\nupheld the HCO on its face and as applied to petitioners.\nAs to the facial challenge, the court concluded that the\nHCO\xe2\x80\x99s mandated conversion fees \xe2\x80\x9cbear a reasonable\nrelationship to the loss of housing \xe2\x80\xa6 in the generality or great\nmajority of cases\xe2\x80\xa6 .\xe2\x80\x9d Id., at 673, 41 P. 3d, at 107. With\nrespect to petitioners\xe2\x80\x99 as-applied challenge, the court\nconcluded that the conversion fee was reasonably based on\nthe number of units designated for conversion, which itself\nwas based on petitioners\xe2\x80\x99 own estimate that had been\nprovided to the City in 1981 and had remained\nunchallenged for years. Id., at 678, and n. 17, 41 P. 3d, at\n110-111, and n. 17. The court therefore reversed the\nappellate court and reinstated the trial court\xe2\x80\x99s order\ndismissing petitioners\xe2\x80\x99 complaint.\nPetitioners did not seek a writ of certiorari from the\nCalifornia Supreme Court\xe2\x80\x99s decision in this Court. Instead,\nthey returned to Federal District Court by filing an\namended complaint based on the complaint that they had\nfiled prior to invoking Pullman abstention.11 The District\nSee also id., at 665, 41 P. 3d, at 101 (\xe2\x80\x9c[I]t is the last mentioned prong of the high\ncourt\xe2\x80\x99s takings analysis that is at issue here\xe2\x80\x9d (emphasis added)).\n10\n\nThe third amended complaint, which was filed on November 14, 2002, alleged\ntwo separate counts. See App. 88-93. Count 1 alleged that the HCO was facially\nunconstitutional and unconstitutional as applied to petitioners because (a) it failed\n\xe2\x80\x9cto substantially advance legitimate government interests\xe2\x80\x9d; (b) it forced petitioners\n\xe2\x80\x9cto bear the public burden of housing the poor\xe2\x80\x9d; and (c) it imposed unreasonable\nconditions on petitioners\xe2\x80\x99 request for a conditional use permit (the in lieu fee and\nthe required lifetime leases to residential tenants). Id., at 88-89. Count 2 sought\nrelief under 42 U. S. C. \xc2\xa7 1983 based on (a) extortion through the imposition of the\n$567,000 fee; (b) an actual taking of property under Penn Central Transp. Co. v. New\nYork City, 438 U. S. 104 (1978); (c) the failure of the HCO as applied to petitioners to\nadvance legitimate state interests; (d) the City\xe2\x80\x99s requirement that petitioners bear the full cost of\nproviding a general public benefit (public housing) without just compensation.\n11\n\n620\n\n\x0cCourt held that petitioners\xe2\x80\x99 facial attack on the HCO was\nnot only barred by the statute of limitations, but also by the\ngeneral rule of issue preclusion. See App. to Pet. for Cert.\n85a-86a.12 The District Court reasoned that 28 U. S. C. \xc2\xa7\n1738 requires federal courts to give preclusive effect to any\nstate-court judgment that would have preclusive effect\nunder the laws of the State in which the judgment was\nrendered. Because California courts had interpreted the\nrelevant substantive state takings law coextensively with\nfederal law, petitioners\xe2\x80\x99 federal claims constituted the same\nclaims that had already been resolved in state court.\nThe Court of Appeals affirmed. The court rejected\npetitioners\xe2\x80\x99 contention that general preclusion principles\nshould be cast aside whenever plaintiffs \xe2\x80\x9cmust litigate in\nstate court pursuant to Pullman and/or Williamson County.\xe2\x80\x9d\n364 F. 3d 1088, 1096 (CA9 2004). Relying on unambiguous\nCircuit precedent and the absence of any clearly\ncontradictory decisions from this Court, the Court of\nAppeals found itself bound to apply general issue\npreclusion doctrine. Given that general issue preclusion\nprinciples governed, the only remaining question was\nwhether the District Court properly applied that doctrine;\nthe court concluded that it did. The court expressly rejected\npetitioners\xe2\x80\x99 contention \xe2\x80\x9cthat California takings law is not\ncoextensive with federal takings law,\xe2\x80\x9d ibid., and held that\nthe state court\xe2\x80\x99s application of the \xe2\x80\x9creasonable\nrelationship\xe2\x80\x9d test was an \xe2\x80\x9c\xe2\x80\x98equivalent determination\xe2\x80\x99 of\nsuch claims under the federal takings clause,\xe2\x80\x9d id., at 1098.13\nWe granted certiorari and now affirm.\nThe District Court found that most of petitioners\xe2\x80\x99 as-applied claims amounted to nothing more\nthan improperly labeled facial challenges. See App. to Pet. for Cert. 82a-85a. The remainder of\npetitioners\xe2\x80\x99 as-applied claims, the court held, was barred by the statute of limitations. Id., at 84a85a.\n12\n\nCalifornia courts apply issue preclusion to a final judgment in earlier litigation\nbetween the same parties if \xe2\x80\x9c(1) the issue decided in the prior case is identical with\nthe one now presented; (2) there was a final judgment on the merits in the prior\ncase, and (3) the party to be estopped was a party to the prior adjudication.\xe2\x80\x9d 364 F.\n13\n\n621\n\n\x0cII\nArticle IV, \xc2\xa7 1, of the United States Constitution demands\nthat \xe2\x80\x9cFull Faith and Credit shall be given in each State to\nthe public Acts, Records, and judicial Proceedings of every\nother State. And the Congress may by general Laws\nprescribe the Manner in which such Acts, Records and\nProceedings shall be proved, and the Effect thereof.\xe2\x80\x9d In\n1790, Congress responded to the Constitution\xe2\x80\x99s invitation\nby enacting the first version of the full faith and credit\nstatute. See Act of May 26, 1790, ch. 11, 1 Stat. 122.14 The\nmodern version of the statute, 28 U. S. C. \xc2\xa7 1738, provides\nthat \xe2\x80\x9cjudicial proceedings \xe2\x80\xa6 shall have the same full faith\nand credit in every court within the United States and its\nTerritories and Possessions as they have by law or usage in\nthe courts of such State \xe2\x80\xa6 .\xe2\x80\x9d This statute has long been\nunderstood to encompass the doctrines of res judicata, or\n\xe2\x80\x9cclaim preclusion,\xe2\x80\x9d and collateral estoppel, or \xe2\x80\x9cissue\npreclusion.\xe2\x80\x9d See Allen v. McCurry, 449 U. S. 90, 94-96\n(1980).15\nThe general rule implemented by the full faith and credit\nstatute \xe2\x80\x93 that parties should not be permitted to relitigate\nissues that have been resolved by courts of competent\n\n3d, at 1096. The court reasoned that the California Supreme Court\xe2\x80\x99s decision\nsatisfied those criteria because petitioners\xe2\x80\x99 takings challenges \xe2\x80\x9craised in state court\nare identical to the federal claims \xe2\x80\xa6 and are based on the same factual allegations.\xe2\x80\x9d\nIbid. Our limited review in this case does not include the question whether the\nCourt of Appeals\xe2\x80\x99 reading of California preclusion law was in error.\n\xe2\x80\x9cThis statute has existed in essentially unchanged form since its enactment just\nafter the ratification of the Constitution \xe2\x80\xa6 .\xe2\x80\x9d Allen v. McCurry, 449 U. S. 90, 96, n. 8\n(1980).\n14\n\n\xe2\x80\x9cUnder res judicata, a final judgment on the merits of an action precludes the\nparties or their privies from relitigating issues that were or could have been raised\nin that action. Under collateral estoppel, once a court has decided an issue of fact\nor law necessary to its judgment, that decision may preclude relitigation of the issue\nin a suit on a different cause of action involving a party to the first case.\xe2\x80\x9d Id., at 94\n(citations omitted).\n15\n\n622\n\n\x0cjurisdiction \xe2\x80\x93 predates the Republic.16 It \xe2\x80\x9chas found its way\ninto every system of jurisprudence, not only from its\nobvious fitness and propriety, but because without it, an\nend could never be put to litigation.\xe2\x80\x9d Hopkins v. Lee, 6\nWheat. 109, 114 (1821). This Court has explained that the\nrule\nis demanded by the very object for\nwhich civil courts have been\nestablished, which is to secure the\npeace and repose of society by the\nsettlement of matters capable of\njudicial determination. Its enforcement\nis essential to the maintenance of\nsocial order; for, the aid of judicial\ntribunals would not be invoked for the\nvindication of rights of person and\nproperty, if, as between parties and\ntheir privies, conclusiveness did not\nattend the judgments of such tribunals\nin respect of all matters properly put in\nissue and actually determined by them.\nSouthern Pacific R. Co. v. United States, 168 U. S. 1, 49 (1897).\nAs this case is presented to us, under our limited grant of\ncertiorari, we have only one narrow question to decide:\nwhether we should create an exception to the full faith and\ncredit statute, and the ancient rule on which it is based, in\norder to provide a federal forum for litigants who seek to\nadvance federal takings claims that are not ripe until the\n\n\xe2\x80\x9cThe authority of the res judicata, with the limitations under which it is admitted,\nis derived by us from the Roman law and the Canonists.\xe2\x80\x9d Washington, Alexandria, &\nGeorgetown Steam-Packet Co. v. Sickles, 24 How. 333, 341 (1861); see also id., at 343\n(noting that the rule also has its pedigree \xe2\x80\x9c[i]n the courts upon the continent of\nEurope, and in the courts of chancery and admiralty in the United States and Great\nBritain, where the function of adjudication is performed entire by a tribunal\ncomposed of one or more judges \xe2\x80\xa6\xe2\x80\x9d).\n16\n\n623\n\n\x0centry of a final state judgment denying just compensation.\nSee Williamson County, 473 U. S. 172.17\nThe essence of petitioners\xe2\x80\x99 argument is as follows: because\nno claim that a state agency has violated the federal Takings\nClause can be heard in federal court until the property\nowner has \xe2\x80\x9cbeen denied just compensation\xe2\x80\x9d through an\navailable state compensation procedure, id., at 195, \xe2\x80\x9cfederal\ncourts [should be] required to disregard the decision of the\nstate court\xe2\x80\x9d in order to ensure that federal takings claims\ncan be \xe2\x80\x9cconsidered on the merits in \xe2\x80\xa6 federal court.\xe2\x80\x9d See\nBrief for Petitioners 8, 14. Therefore, the argument goes,\nwhenever plaintiffs reserve their claims under England v.\nLouisiana Bd. of Medical Examiners, 375 U. S. 411 (1964),\nfederal courts should review the reserved federal claims de\nnovo, regardless of what issues the state court may have\ndecided or how it may have decided them.\nWe reject petitioners\xe2\x80\x99 contention. Although petitioners\nwere certainly entitled to reserve some of their federal\nclaims, as we shall explain, England does not support their\nerroneous expectation that their reservation would fully\nnegate the preclusive effect of the state-court judgment\nwith respect to any and all federal issues that might arise in\nthe future federal litigation. Federal courts, moreover, are\nnot free to disregard 28 U. S. C. \xc2\xa7 1738 simply to guarantee\nthat all takings plaintiffs can have their day in federal court.\nWe turn first to England.\nIII\n\nWe did not grant certiorari on many of the issues discussed by the parties and\namici. We therefore assume for purposes of our decision that all other issues in this\nprotracted controversy have been correctly decided. We assume, for instance, that\nthe Ninth Circuit properly interpreted California preclusion law; that the California\nSupreme Court was correct in its determination that California takings law is\ncoextensive with federal law; that, as a matter of California law, the HCO was\nlawfully applied to petitioners\xe2\x80\x99 hotel; and that under California law, the \xe2\x80\x9cin lieu\xe2\x80\x9d fee\nwas imposed evenhandedly and substantially advanced legitimate state interests.\n17\n\n624\n\n\x0cEngland involved a group of plaintiffs who had graduated\nfrom chiropractic school, but sought to practice in\nLouisiana without complying with the educational\nrequirements of the State\xe2\x80\x99s Medical Practice Act. 375 U. S.,\nat 412. They filed suit in federal court challenging the\nconstitutionality of the Act. The District Court invoked\nPullman abstention and stayed the proceedings to enable the\nLouisiana courts to decide a preliminary and essential\nquestion of state law \xe2\x80\x93 namely, whether the state statute\napplied at all to chiropractors. 375 U. S., at 413.18 The state\ncourt, however, reached beyond the state-law question and\nheld not only that the statute applied to the plaintiffs but\nalso that its application was consistent with the Fourteenth\nAmendment to the Federal Constitution. The Federal\nDistrict Court then dismissed the federal action without\naddressing the merits of the federal claim.\nOn appeal, we held that when a federal court abstains from\ndeciding a federal constitutional issue to enable the state\ncourts to address an antecedent state-law issue, the plaintiff\nmay reserve his right to return to federal court for the\ndisposition of his federal claims. Id., at 419. In that case, the\nantecedent state issue requiring abstention was distinct from\nthe reserved federal issue. See id., at 418-419. Our\ndiscussion of the \xe2\x80\x9ctypical case\xe2\x80\x9d in which reservations of\nfederal issues are appropriate makes clear that our holding\nwas limited to cases that are fundamentally distinct from\npetitioners\xe2\x80\x99. \xe2\x80\x9cTypical\xe2\x80\x9d England cases generally involve\nfederal constitutional challenges to a state statute that can\nbe avoided if a state court construes the statute in a\nparticular manner.19 In such cases, the purpose of\nWe stressed in England that abstention was essential to prevent the district court\nfrom deciding \xe2\x80\x9c\xe2\x80\x98questions of constitutionality on the basis of preliminary guesses\nregarding local law.\xe2\x80\x99\xe2\x80\x9d 375 U. S., at 416, n. 7 (quoting Spector Motor Service, Inc. v.\nMcLaughlin, 323 U. S. 101, 105 (1944)).\n18\n\n375 U. S., at 420 (describing the \xe2\x80\x9ctypical case\xe2\x80\x9d as one in which \xe2\x80\x9cthe state courts\nare asked to construe a state statute against the backdrop of a federal constitutional\nchallenge\xe2\x80\x9d).\n19\n\n625\n\n\x0cabstention is not to afford state courts an opportunity to\nadjudicate an issue that is functionally identical to the\nfederal question. To the contrary, the purpose of Pullman\nabstention in such cases is to avoid resolving the federal\nquestion by encouraging a state-law determination that may\nmoot the federal controversy. See 375 U. S., at 416-417,and\nn. 7.20 Additionally, our opinion made it perfectly clear that\nthe effective reservation of a federal claim was dependent\non the condition that plaintiffs take no action to broaden\nthe scope of the state court\xe2\x80\x99s review beyond decision of the\nantecedent state-law issue.21\nOur holding in England does not support petitioners\xe2\x80\x99\nattempt to relitigate issues resolved by the California courts.\nWith respect to petitioners\xe2\x80\x99 facial takings claims, the Court\nof Appeals invoked Pullman abstention after determining\nthat a ripe federal question existed \xe2\x80\x93 namely, \xe2\x80\x9cthe facial\ntakings challenge to the 1990 HCO.\xe2\x80\x9d 145 F. 3d, at 1105.22 It\ndid so because \xe2\x80\x9c\xe2\x80\x98land use planning is a sensitive area of\nsocial policy\xe2\x80\x99\xe2\x80\x9d and because petitioners\xe2\x80\x99 pending state\nmandamus action had the potential of mooting their facial\nchallenge to the HCO by overturning the City\xe2\x80\x99s original\nAs we explained in Allen, 449 U. S., at 101-102, n. 17, \xe2\x80\x9c[t]he holding in England\ndepended entirely on this Court\xe2\x80\x99s view of the purpose of abstention in such a case:\nWhere a plaintiff properly invokes federal-court jurisdiction in the first instance on a\nfederal claim, the federal court has a duty to accept that jurisdiction. Abstention\nmay serve only to postpone, rather than to abdicate, jurisdiction, since its purpose\nis to determine whether resolution of the federal question is even necessary, or to\nobviate the risk of a federal court\xe2\x80\x99s erroneous construction of state law.\xe2\x80\x9d (Emphasis\nadded and citations omitted.)\n20\n\n375 U. S., at 419 (\xe2\x80\x9c[I]f a party freely and without reservation submits his federal\nclaims for decision by the state courts, litigates them there, and has them decided\nthere, then \xe2\x80\xa6 he has elected to forgo his right to return to the District Court\xe2\x80\x9d).\n21\n\nPetitioners\xe2\x80\x99 facial challenges to the HCO were ripe, of course, under Yee v.\nEscondido, 503 U. S. 519, 534 (1992), in which we held that facial challenges based\non the \xe2\x80\x9csubstantially advances\xe2\x80\x9d test need not be ripened in state court \xe2\x80\x93 the claims\ndo \xe2\x80\x9cnot depend on the extent to which petitioners are deprived of the economic\nuse of their particular pieces of property or the extent to which these particular\npetitioners are compensated.\xe2\x80\x9d Ibid.\n22\n\n626\n\n\x0cclassification of the San Remo Hotel as a \xe2\x80\x9cresidential\xe2\x80\x9d\nproperty. Ibid. Thus, petitioners were entitled to insulate\nfrom preclusive effect one federal issue \xe2\x80\x93 their facial\nconstitutional challenge to the HCO \xe2\x80\x93 while they returned\nto state court to resolve their petition for writ of mandate.\nPetitioners, however, chose to advance broader issues than\nthe limited issues contained within their state petition for\nwrit of administrative mandamus on which the Ninth\nCircuit relied when it invoked Pullman abstention. In their\nstate action, petitioners advanced not only their request for\na writ of administrative mandate, 27 Cal. 4th, at 653, 41 P.\n3d, at 93, but also their various claims that the HCO was\nunconstitutional on its face and as applied for (1) its failure\nto substantially advance a legitimate interest, (2) its lack of a\nnexus between the required fees and the ultimate objectives\nsought to be achieved via the ordinance, and (3) its\nimposition of an undue economic burden on individual\nproperty owners. Id., at 672-676, 41 P. 3d, at 106-109. By\nbroadening their state action beyond the mandamus\npetition to include their \xe2\x80\x9csubstantially advances\xe2\x80\x9d claims,\npetitioners effectively asked the state court to resolve the\nsame federal issues they asked it to reserve. England does\nnot support the exercise of any such right.\nPetitioners\xe2\x80\x99 as-applied takings claims fare no better. As an\ninitial matter, the Court of Appeals did not abstain with\nrespect to those claims. Instead, the court found that they\nwere unripe under Williamson County. The court therefore\naffirmed the District Court\xe2\x80\x99s dismissal of those claims. 145\nF. 3d, at 1106. Unlike their \xe2\x80\x9csubstantially advances\xe2\x80\x9d claims,\npetitioners\xe2\x80\x99 as-applied claims were never properly before\nthe District Court, and there was no reason to expect that\nthey could be relitigated in full if advanced in the state\nproceedings. See Allen, 449 U. S., at 101, n. 17. In short,\nour opinion in England does not support petitioners\xe2\x80\x99\nattempt to circumvent \xc2\xa7 1738.\nIV\n\n627\n\n\x0cPetitioners\xe2\x80\x99 ultimate submission, however, does not rely on\nEngland alone. Rather, they argue that federal courts simply\nshould not apply ordinary preclusion rules to state-court\njudgments when a case is forced into state court by the\nripeness rule of Williamson County. For support, petitioners\nrely on the Court of Appeals for the Second Circuit\xe2\x80\x99s\ndecision in Santini, 342 F. 3d, at 130.\nIn Santini, the Second Circuit held that parties \xe2\x80\x9cwho litigate\nstate-law takings claims in state court involuntarily\xe2\x80\x9d\npursuant to Williamson County cannot be precluded from\nhaving those very claims resolved \xe2\x80\x9cby a federal court.\xe2\x80\x9d 342\nF. 3d, at 130. The court did not rest its decision on any\nprovision of the federal full faith and credit statute or our\ncases construing that law. Instead, the court reasoned that\n\xe2\x80\x9c[i]t would be both ironic and unfair if the very procedure\nthat the Supreme Court required [plaintiffs] to follow\nbefore bringing a Fifth Amendment takings claim \xe2\x80\xa6 also\nprecluded [them] from ever bringing a Fifth Amendment\ntakings claim.\xe2\x80\x9d Ibid. We find this reasoning unpersuasive\nfor several reasons.\nFirst, both petitioners and Santini ultimately depend on an\nassumption that plaintiffs have a right to vindicate their\nfederal claims in a federal forum. We have repeatedly held,\nto the contrary, that issues actually decided in valid statecourt judgments may well deprive plaintiffs of the \xe2\x80\x9cright\xe2\x80\x9d\nto have their federal claims relitigated in federal court. See,\ne. g., Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75,\n84 (1984); Allen, 449 U. S., at 103-104. This is so even when\nthe plaintiff would have preferred not to litigate in state\ncourt, but was required to do so by statute or prudential\nrules. See id., at 104. The relevant question in such cases is\nnot whether the plaintiff has been afforded access to a\nfederal forum; rather, the question is whether the state\ncourt actually decided an issue of fact or law that was\nnecessary to its judgment.\n\n628\n\n\x0cIn Allen, the plaintiff, Willie McCurry, invoked the Fourth\nand Fourteenth Amendments in an unsuccessful attempt to\nsuppress evidence in a state criminal trial. After he was\nconvicted, he sought to remedy his alleged constitutional\nviolation by bringing a suit for damages under 42 U. S. C. \xc2\xa7\n1983 against the officers who had entered his home.\nRelying on \xe2\x80\x9c\xe2\x80\x98the special role of federal courts in protecting\ncivil rights\xe2\x80\x99\xe2\x80\x9d and the fact that \xc2\xa7 1983 provided the \xe2\x80\x9conly\nroute to a federal forum,\xe2\x80\x9d the Court of Appeals held that\nMcCurry was entitled to a federal trial unencumbered by\ncollateral estoppel. 449 U. S., at 93. We rejected that\nargument emphatically.\nThe actual basis of the Court of\nAppeals\xe2\x80\x99 holding appears to be a\ngenerally framed principle that every\nperson asserting a federal right is\nentitled to one unencumbered\nopportunity to litigate that right in a\nfederal district court, regardless of the\nlegal posture in which the federal claim\narises. But the authority for this\nprinciple is difficult to discern. It\ncannot lie in the Constitution, which\nmakes no such guarantee, but leaves\nthe scope of the jurisdiction of the\nfederal district courts to the wisdom of\nCongress. And no such authority is to\nbe found in \xc2\xa7 1983 itself \xe2\x80\xa6 . There is,\nin short, no reason to believe that\nCongress intended to provide a person\nclaiming a federal right an unrestricted\nopportunity to relitigate an issue\nalready decided in state court simply\nbecause the issue arose in a state\nproceeding in which he would rather\nnot have been engaged at all.\n\n629\n\n\x0cId., at 103-104 (footnote omitted).23\nAs in Allen, we are presently concerned only with issues\nactually decided by the state court that are dispositive of\nfederal claims raised under \xc2\xa7 1983. And, also as in Allen, it\nis clear that petitioners would have preferred not to have\nbeen forced to have their federal claims resolved by issues\ndecided in state court. Unfortunately for petitioners, it is\nentirely unclear why their preference for a federal forum\nshould matter for constitutional or statutory purposes.\nThe only distinction between this case and Allen that is\npossibly relevant is the fact that petitioners here originally\ninvoked the jurisdiction of a Federal District Court, which\nabstained on Pullman grounds while petitioners returned to\nstate court. But petitioners\xe2\x80\x99 as-applied takings claims were\nnever properly before the District Court because they were\nunripe. And, as we have already explained, the Court of\nAppeals invoked Pullman abstention only with respect to\npetitioners\xe2\x80\x99 \xe2\x80\x9csubstantially advances\xe2\x80\x9d takings challenge,\nwhich petitioners then gratuitously presented to the state\ncourt. At a bare minimum, with respect to the facial takings\nclaim, petitioners were \xe2\x80\x9cin an offensive posture in [their]\nstate-court proceeding, and could have proceeded first in\nfederal court had [they] wanted to litigate [their\n\xe2\x80\x9csubstantially advances\xe2\x80\x9d] federal claim in a federal forum.\xe2\x80\x9d\nMigra, 465 U. S., at 85, n. 7. Thus, the only distinction\nbetween this case and Allen is a distinction of no relevant\nsignificance.\nWe expressed similar views in Migra v. Warren City School Dist. Bd. of Ed., 465 U. S.\n75, 84 (1984):\n23\n\n\xe2\x80\x9cAlthough such a division may seem attractive from a\nplaintiff\xe2\x80\x99s perspective, it is not the system established by \xc2\xa7\n1738. That statute embodies the view that it is more\nimportant to give full faith and credit to state-court\njudgments than to ensure separate forums for federal and\nstate claims. This reflects a variety of concerns, including\nnotions of comity, the need to prevent vexatious litigation,\nand a desire to conserve judicial resources.\xe2\x80\x9d\n\n630\n\n\x0cThe second reason we find petitioners\xe2\x80\x99 argument\nunpersuasive is that it assumes that courts may simply\ncreate exceptions to 28 U. S. C. \xc2\xa7 1738 wherever courts\ndeem them appropriate. Even conceding, arguendo, the\nlaudable policy goal of making federal forums available to\ndeserving litigants, we have expressly rejected petitioners\xe2\x80\x99\nview. \xe2\x80\x9cSuch a fundamental departure from traditional rules\nof preclusion, enacted into federal law, can be justified only\nif plainly stated by Congress.\xe2\x80\x9d Kremer v. Chemical Constr.\nCorp., 456 U. S. 461, 485 (1982). Our cases have therefore\nmade plain that \xe2\x80\x9can exception to \xc2\xa7 1738 will not be\nrecognized unless a later statute contains an express or\nimplied partial repeal.\xe2\x80\x9d Id., at 468 (citing Allen, 449 U. S., at\n99). Even when the plaintiff\xe2\x80\x99s resort to state court is\ninvoluntary and the federal interest in denying finality is\nrobust, we have held that Congress \xe2\x80\x9cmust \xe2\x80\x98clearly manifest\xe2\x80\x99\nits intent to depart from \xc2\xa7 1738.\xe2\x80\x9d 456 U. S., at 477.\nThe same concerns animate our decision here. Congress\nhas not expressed any intent to exempt from the full faith\nand credit statute federal takings claims. Consequently, we\napply our normal assumption that the weighty interests in\nfinality and comity trump the interest in giving losing\nlitigants access to an additional appellate tribunal. As we\nexplained in Federated Department Stores, Inc. v. Moitie, 452 U.\nS. 394 (1981):\n[W]e do not see the grave injustice\nwhich would be done by the\napplication of accepted principles of\nres judicata. \xe2\x80\x98Simple justice\xe2\x80\x99 is achieved\nwhen a complex body of law\ndeveloped over a period of years is\nevenhandedly applied. The doctrine of\nres judicata serves vital public interests\nbeyond any individual judge\xe2\x80\x99s ad hoc\ndetermination of the equities in a\nparticular case. There is simply \xe2\x80\x98no\nprinciple of law or equity which\n\n631\n\n\x0csanctions the rejection by a federal\ncourt of the salutary principle of res\njudicata.\xe2\x80\x99\nId., at 401 (quoting Heiserv. Woodruff, 327 U. S. 726, 733\n(1946)).\nThird, petitioners have overstated the reach of Williamson\nCounty throughout this litigation. Petitioners were never\nrequired to ripen the heart of their complaint \xe2\x80\x93 the claim\nthat the HCO was facially invalid because it failed to\nsubstantially advance a legitimate state interest \xe2\x80\x93 in state\ncourt. See Yee v. Escondido, 503 U. S. 519, 534 (1992).\nPetitioners therefore could have raised most of their facial\ntakings challenges, which by their nature requested relief\ndistinct from the provision of \xe2\x80\x9cjust compensation,\xe2\x80\x9d directly\nin federal court.24 Alternatively, petitioners had the option\nof reserving their facial claims while pursuing their asapplied claims along with their petition for writ of\nadministrative mandamus. Petitioners did not have the\nright, however, to seek state review of the same substantive\nissues they sought to reserve. The purpose of the England\nreservation is not to grant plaintiffs a second bite at the\napple in their forum of choice.\nWith respect to those federal claims that did require\nripening, we reject petitioners\xe2\x80\x99 contention that Williamson\nCounty forbids plaintiffs from advancing their federal claims\nin state courts. The requirement that aggrieved property\nowners must seek \xe2\x80\x9ccompensation through the procedures\nthe State has provided for doing so,\xe2\x80\x9d 473 U. S., at 194, does\nnot preclude state courts from hearing simultaneously a\nplaintiff\xe2\x80\x99s request for compensation under state law and the\nclaim that, in the alternative, the denial of compensation\nIn all events, petitioners may no longer advance such claims given our recent\nholding that the \xe2\x80\x9c\xe2\x80\x98substantially advances\xe2\x80\x99 formula is not a valid takings test, and\nindeed \xe2\x80\xa6 has no proper place in our takings jurisprudence.\xe2\x80\x9d Lingle, 544 U. S., at\n548.\n24\n\n632\n\n\x0cwould violate the Fifth Amendment of the Federal\nConstitution. Reading Williamson County to preclude\nplaintiffs from raising such claims in the alternative would\nerroneously interpret our cases as requiring property\nowners to \xe2\x80\x9cresort to piecemeal litigation or otherwise unfair\nprocedures.\xe2\x80\x9d MacDonald, Sommer & Frates v. Yolo County, 477\nU. S. 340, 350, n. 7 (1986).\nIt is hardly a radical notion to recognize that, as a practical\nmatter, a significant number of plaintiffs will necessarily\nlitigate their federal takings claims in state courts. It was\nsettled well before Williamson County that \xe2\x80\x9ca claim that the\napplication of government regulations effects a taking of a\nproperty interest is not ripe until the government entity\ncharged with implementing the regulations has reached a\nfinal decision regarding the application of the regulations to\nthe property at issue.\xe2\x80\x9d 473 U. S., at 186. As a consequence,\nthere is scant precedent for the litigation in federal district\ncourt of claims that a state agency has taken property in\nviolation of the Fifth Amendment\xe2\x80\x99s takings clause. To the\ncontrary, most of the cases in our takings jurisprudence,\nincluding nearly all of the cases on which petitioners rely,\ncame to us on writs of certiorari from state courts of last\nresort.25\nMoreover, this is not the only area of law in which we have\nrecognized limits to plaintiffs\xe2\x80\x99 ability to press their federal\nclaims in federal courts. See, e. g., Fair Assessment in Real\nEstate Assn., Inc. v. McNary, 454 U. S. 100, 116 (1981)\n(holding that taxpayers are \xe2\x80\x9cbarred by the principle of\ncomity from asserting \xc2\xa7 1983 actions against the validity of\nSee, e. g., Dolan, 512 U. S., at 383; Yee, 503 U. S., at 526; Nollan, 483 U. S., at 830;\nFirst English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S.\n304, 310-311 (1987); Penn Central, 438 U. S., at 120-122. Indeed, Justice Holmes\xe2\x80\x99\nfamous \xe2\x80\x9ctoo far\xe2\x80\x9d formulation, which spawned our regulatory takings jurisprudence,\nwas announced in a case that came to this Court via a writ of certiorari to\nPennsylvania\xe2\x80\x99s highest court. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415\n(1922).\n25\n\n633\n\n\x0cstate tax systems in federal courts\xe2\x80\x9d). State courts are fully\ncompetent to adjudicate constitutional challenges to local\nland-use decisions. Indeed, state courts undoubtedly have\nmore experience than federal courts do in resolving the\ncomplex factual, technical, and legal questions related to\nzoning and land-use regulations.\nAt base, petitioners\xe2\x80\x99 claim amounts to little more than the\nconcern that it is unfair to give preclusive effect to statecourt proceedings that are not chosen, but are instead\nrequired in order to ripen federal takings claims. Whatever\nthe merits of that concern may be, we are not free to\ndisregard the full faith and credit statute solely to preserve\nthe availability of a federal forum. The Court of Appeals\nwas correct to decline petitioners\xe2\x80\x99 invitation to ignore the\nrequirements of 28 U. S. C. \xc2\xa7 1738. The judgment of the\nCourt of Appeals is therefore affirmed.\nIt is so ordered\nCHIEF JUSTICE REHNQUIST, with whom JUSTICE\nO\'CONNOR, JUSTICE KENNEDY, and JUSTICE THOMAS join,\nconcurring in the judgment.\nI agree that the judgment of the Court of Appeals should\nbe affirmed. Whatever the reasons for petitioners\xe2\x80\x99 chosen\ncourse of litigation in the state courts, it is quite clear that\nthey are now precluded by the full faith and credit statute,\n28 U. S. C. \xc2\xa7 1738, from relitigating in their 42 U. S. C. \xc2\xa7\n1983 action those issues which were adjudicated by the\nCalifornia courts. See Migra v. Warren City School Dist. Bd. of\nEd., 465 U. S. 75, 84 (1984); Allen v. McCurry, 449 U. S. 90,\n103-105 (1980). There is no basis for us to except from \xc2\xa7\n1738\xe2\x80\x99s reach all claims brought under the Takings Clause.\nSee, e. g., Kremer v. Chemical Constr. Corp., 456 U. S. 461, 485\n(1982). I write separately to explain why I think part of our\ndecision in Williamson County Regional Planning Comm\xe2\x80\x99n v.\nHamilton Bank of Johnson City, 473 U. S. 172 (1985), may\nhave been mistaken.\n\n634\n\n\x0cIn Williamson County, the respondent land developer filed a\n\xc2\xa7 1983 suit in federal court alleging a regulatory takings\nclaim after a regional planning commission disapproved\nrespondent\xe2\x80\x99s plat proposals, but before respondent\nappealed that decision to the zoning board of appeals. Id.,\nat 181-182. Rather than reaching the merits, we found the\nclaim was brought prematurely. Id., at 200. We first held\nthat the claim was \xe2\x80\x9cnot ripe until the government entity\ncharged with implementing the regulations [had] reached a\nfinal decision regarding the application of the regulations to\nthe property at issue.\xe2\x80\x9d Id., at 186. Because respondent failed\nto seek variances from the planning commission or the\nzoning board of appeals, we decided that respondent had\nfailed to meet the final-decision requirement. Id., at 187191. We then noted a \xe2\x80\x9csecond reason the taking claim [was]\nnot yet ripe\xe2\x80\x9d: \xe2\x80\x9crespondent did not seek compensation\nthrough the procedures the State [had] provided for doing\nso.\xe2\x80\x9d Id., at 194. Until the claimant had received a final\ndenial of compensation through all available state\nprocedures, such as by an inverse condemnation action, we\nsaid he could not \xe2\x80\x9cclaim a violation of the Just\nCompensation Clause.\xe2\x80\x9d Id., at 195-196.\nIt is not clear to me that Williamson County was correct in\ndemanding that, once a government entity has reached a\nfinal decision with respect to a claimant\xe2\x80\x99s property, the\nclaimant must seek compensation in state court before\nbringing a federal takings claim in federal court. The Court\nin Williamson County purported to interpret the Fifth\nAmendment in divining this state-litigation requirement.\nSee, e. g., id., at 194, n. 13 (\xe2\x80\x9cThe nature of the constitutional\nright \xe2\x80\xa6 requires that a property owner utilize procedures\nfor obtaining compensation before bringing a \xc2\xa7 1983\naction\xe2\x80\x9d). More recently, we have referred to it as merely a\nprudential requirement. Suitum v. Tahoe Regional Planning\nAgency, 520 U. S. 725, 733-734 (1997). It is not obvious that\neither constitutional or prudential principles require\n\n635\n\n\x0cclaimants to utilize all state compensation procedures\nbefore they can bring a federal takings claim. Cf. Patsy v.\nBoard of Regents of Fla., 457 U. S. 496, 516 (1982)(holding\nthat plaintiffs suing under \xc2\xa7 1983 are not required to have\nexhausted state administrative remedies).26\nThe Court today attempts to shore up the state-litigation\nrequirement by referring to Fair Assessment in Real Estate\nAssn., Inc. v. McNary, 454 U. S. 100 (1981). Ante, at 347.\nThere, we held that the principle of comity (reflected in the\nTax Injunction Act, 28 U. S. C. \xc2\xa7 1341) bars taxpayers from\nasserting \xc2\xa7 1983 claims against the validity of state tax\nsystems in federal courts. 454 U. S., at 116. Our decision\nthat such suits must be brought in state court was driven by\nthe unique and sensitive interests at stake when federal\ncourts confront claims that States acted impermissibly in\nadministering their own tax systems. Id., at 102-103, 107113. Those historically grounded, federalism-based\nconcerns had led to a longstanding, \xe2\x80\x9cfundamental principle\nof comity between federal courts and state governments\n\xe2\x80\xa6, particularly in the area of state taxation,\xe2\x80\x9d a principle\nwhich predated the enactment of \xc2\xa7 1983 itself. Id., at 103,\n107-114. We decided that those interests favored requiring\nthat taxpayers bring challenges to the validity of state tax\nsystems in state court, despite the strong interests favoring\nfederal court review of alleged constitutional violations by\nstate officials. Id., at 115-116.\nThe Court today makes no claim that any such\nlongstanding principle of comity toward state courts in\nhandling federal takings claims existed at the time\nWilliamson County was decided, nor that one has since\nIn creating the state-litigation rule, the Court, in addition to relying on the Fifth\nAmendment\xe2\x80\x99s text, analogized to Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984),\nand Parratt v. Taylor, 451 U. S. 527 (1981). As several of petitioners\xe2\x80\x99 amici in this case\nhave urged, those cases provided limited support for the state-litigation\nrequirement. See Brief for Defenders of Property Rights et al. as Amici Curiae 9-12;\nBrief for Elizabeth J. Neumont et al. as Amici Curiae 10-14.\n26\n\n636\n\n\x0cdeveloped. The Court does remark, however, that state\ncourts are more familiar with the issues involved in local\nland-use and zoning regulations, and it suggests that this\nmakes it proper to relegate federal takings claims to state\ncourt. Ante, at 347. But it is not apparent that any such\nexpertise matches the type of historically grounded,\nfederalism-based interests we found necessary to our\ndecision in Fair Assessment. In any event, the Court has not\nexplained why we should hand authority over federal\ntakings claims to state courts, based simply on their relative\nfamiliarity with local land-use decisions and proceedings,\nwhile allowing plaintiffs to proceed directly to federal court\nin cases involving, for example, challenges to municipal\nland-use regulations based on the First Amendment, see, e.\ng., Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986); Young\nv. American Mini Theatres, Inc., 427 U. S. 50 (1976), or the\nEqual Protection Clause, see, e. g., Cleburne v. Cleburne Living\nCenter, Inc., 473 U. S. 432 (1985); Village of Belle Terre v.\nBoraas, 416 U. S. 1 (1974). In short, the affirmative case for\nthe state-litigation requirement has yet to be made.\nFinally, Williamson County\xe2\x80\x99s state-litigation rule has created\nsome real anomalies, justifying our revisiting the issue. For\nexample, our holding today ensures that litigants who go to\nstate court to seek compensation will likely be unable later\nto assert their federal takings claims in federal court. Ante,\nat 346-347. And, even if preclusion law would not block a\nlitigant\xe2\x80\x99s claim, the Rooker-Feldman doctrine might, insofar\nas Williamson County can be read to characterize the state\ncourts\xe2\x80\x99 denial of compensation as a required element of the\nFifth Amendment takings claim. See Exxon Mobil Corp. v.\nSaudi Basic Industries Corp., 544 U. S. 280 (2005). As the\nCourt recognizes, ante, at 346-347, Williamson County all but\nguarantees that claimants will be unable to utilize the\nfederal courts to enforce the Fifth Amendment\xe2\x80\x99s just\ncompensation guarantee. The basic principle that state\ncourts are competent to enforce federal rights and to\n\n637\n\n\x0cadjudicate federal takings claims is sound, see ante, at 347,\nand would apply to any number of federal claims. Cf. 28 U.\nS. C. \xc2\xa7 2254 (providing for limited federal habeas review of\nstate-court adjudications of alleged violations of the\nConstitution). But that principle does not explain why\nfederal takings claims in particular should be singled out to\nbe confined to state court, in the absence of any asserted\njustification or congressional directive.27\n***\nI joined the opinion of the Court in Williamson County. But\nfurther reflection and experience lead me to think that the\njustifications for its state-litigation requirement are suspect,\nwhile its impact on takings plaintiffs is dramatic. Here, no\ncourt below has addressed the correctness of Williamson\nCounty, neither party has asked us to reconsider it, and\nresolving the issue could not benefit petitioners. In an\nappropriate case, I believe the Court should reconsider\nwhether plaintiffs asserting a Fifth Amendment takings\nclaim based on the final decision of a state or local\ngovernment entity must first seek compensation in state\ncourts.\n\nIndeed, in some States the courts themselves apply the state-litigation\nrequirement from Williamson County Regional Planning Comm\xe2\x80\x99n v. Hamilton Bank of\nJohnson City, 473 U. S. 172 (1985), refusing to entertain any federal takings claim\nuntil the claimant receives a final denial of compensation through all the available\nstate procedures. See, e. g., Breneric Assoc. v. City of Del Mar, 69 Cal. App. 4th 166,\n188-189, 81 Cal. Rptr. 2d 324, 338-339 (1998); Melillo v. City of New Haven, 249\nConn. 138, 154, n. 28, 732 A. 2d 133, 143, n. 28 (1999). This precludes litigants\nfrom asserting their federal takings claim even in state court. The Court tries to\navoid this anomaly by asserting that, for plaintiffs attempting to raise a federal\ntakings claim in state court as an alternative to their state claims, Williamson County\ndoes not command that the state courts themselves impose the state-litigation\nrequirement. Ante, at 346. But that is so only if Williamson County\xe2\x80\x99s state-litigation\nrequirement is merely a prudential rule, and not a constitutional mandate, a\nquestion that the Court today conspicuously leaves open.\n27\n\n638\n\n\x0c4.5. Exactions\nDolan v. City of Tigard,512 U.S. 374\n114 S. Ct. 2309 (1994)\nDavid B. Smith, Tigard, OR, for petitioner.\nTimothy V. Ramis, Portland, OR, for respondent.\nEdwin S. Kneedler, Washington, DC, for U.S., as amicus\ncuriae by special leave of the Court.\nCHIEF JUSTICE REHNQUIST delivered the opinion of the\nCourt.\nPetitioner challenges the decision of the Oregon Supreme\nCourt which held that the city of Tigard could condition\nthe approval of her building permit on the dedication of a\nportion of her property for flood control and traffic\nimprovements. 317 Ore. 110, 854 P.2d 437 (1993). We\ngranted certiorari to resolve a question left open by our\ndecision in Nollan v. California Coastal Comm\xe2\x80\x99n, 483 U.S.\n825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), of what is the\nrequired degree of connection between the exactions\nimposed by the city and the projected impacts of the\nproposed development.\nI\nThe State of Oregon enacted a comprehensive land use\nmanagement program in 1973. Ore.Rev.Stat. ss 197.005197.860 (1991). The program required all Oregon cities and\ncounties to adopt new comprehensive land use plans that\nwere consistent with the statewide planning goals. ss\n197.175(1), 197.250. The plans are implemented by land\nuse regulations which are part of an integrated hierarchy of\nlegally binding goals, plans, and regulations. ss 197.175,\n197.175(2)(b). Pursuant to the State\xe2\x80\x99s requirements, the city\nof Tigard, a community of some 30,000 residents on the\nsouthwest edge of Portland, developed a comprehensive\nplan and codified it in its Community Development Code\n\n639\n\n\x0c(CDC). The CDC requires property owners in the area\nzoned Central Business District to comply with a 15%\nopen space and landscaping requirement, which limits total\nsite coverage, including all structures and paved parking, to\n85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert.\nG-16 to G-17. After the completion of a transportation\nstudy that identified congestion in the Central Business\nDistrict as a particular problem, the city adopted a plan for\na pedestrian/bicycle pathway intended to encourage\nalternatives to automobile transportation for short trips.\nThe CDC requires that new development facilitate this plan\nby dedicating land for pedestrian pathways where provided\nfor in the pedestrian/bicycle pathway plan.1\nThe city also adopted a Master Drainage Plan (Drainage\nPlan). The Drainage Plan noted that flooding occurred in\nseveral areas along Fanno Creek, including areas near\npetitioner\xe2\x80\x99s property. Record, Doc. No. F, ch. 2, pp. 2-5 to\n2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also\nestablished that the increase in impervious surfaces\nassociated with continued urbanization would exacerbate\nthese flooding problems. To combat these risks, the\nDrainage Plan suggested a series of improvements to the\nFanno Creek Basin, including channel excavation in the\narea next to petitioner\xe2\x80\x99s property. App. to Pet. for Cert. G13, G-38. Other recommendations included ensuring that\nthe floodplain remains free of structures and that it be\npreserved as greenways to minimize flood damage to\nstructures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The\nCDC s 18.86.040.A.1.b provides: \xe2\x80\x9cThe development shall facilitate\npedestrian/bicycle circulation if the site is located on a street with designated\nbikepaths or adjacent to a designated greenway/open space/park. Specific items to\nbe addressed [include]: (i) Provision of efficient, convenient and continuous\npedestrian and bicycle transit circulation systems, linking developments by\nrequiring dedication and construction of pedestrian and bikepaths identified in the\ncomprehensive plan. If direct connections cannot be made, require that funds in\nthe amount of the construction cost be deposited into an account for the purpose\nof constructing paths.\xe2\x80\x9d App. to Brief for Respondent B-33 to B-34.\n1\n\n640\n\n\x0cDrainage Plan concluded that the cost of these\nimprovements should be shared based on both direct and\nindirect benefits, with property owners along the waterways\npaying more due to the direct benefit that they would\nreceive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86\nand CDC s 18.164.100 and the Tigard Park Plan carry out\nthese recommendations.\nPetitioner Florence Dolan owns a plumbing and electric\nsupply store located on Main Street in the Central Business\nDistrict of the city. The store covers approximately 9,700\nsquare feet on the eastern side of a 1.67-acre parcel, which\nincludes a gravel parking lot. Fanno Creek flows through\nthe southwestern corner of the lot and along its western\nboundary. The year-round flow of the creek renders the\narea within the creek\xe2\x80\x99s 100-year floodplain virtually\nunusable for commercial development. The city\xe2\x80\x99s\ncomprehensive plan includes the Fanno Creek floodplain as\npart of the city\xe2\x80\x99s greenway system.\nPetitioner applied to the city for a permit to redevelop the\nsite. Her proposed plans called for nearly doubling the size\nof the store to 17,600 square feet and paving a 39-space\nparking lot. The existing store, located on the opposite side\nof the parcel, would be razed in sections as construction\nprogressed on the new building. In the second phase of the\nproject, petitioner proposed to build an additional structure\non the northeast side of the site for complementary\nbusinesses and to provide more parking. The proposed\nexpansion and intensified use are consistent with the city\xe2\x80\x99s\nzoning scheme in the Central Business District. CDC s\n18.66.030, App. to Brief for Petitioner C-1 to C-3.\nThe City Planning Commission (Commission) granted\npetitioner\xe2\x80\x99s permit application subject to conditions\nimposed by the city\xe2\x80\x99s CDC. The CDC establishes the\nfollowing standard for site development review approval:\n\n641\n\n\x0c\xe2\x80\x9cWhere landfill and/or development is\nallowed within and adjacent to the\n100-year floodplain, the City shall\nrequire the dedication of sufficient\nopen land area for greenway adjoining\nand within the floodplain. This area\nshall include portions at a suitable\nelevation for the construction of a\npedestrian/bicycle pathway within the\nfloodplain in accordance with the\nadopted pedestrian/bicycle plan.\xe2\x80\x9d\nCDC s 18.120.180.A.8, App. to Brief\nfor Respondent B-45 to B-46.\nThus, the Commission required that petitioner dedicate the\nportion of her property lying within the 100-year floodplain\nfor improvement of a storm drainage system along Fanno\nCreek and that she dedicate an additional 15-foot strip of\nland adjacent to the floodplain as a pedestrian/bicycle\npathway.2 The dedication required by that condition\nencompasses approximately 7,000 square feet, or roughly\n10% of the property. In accordance with city practice,\npetitioner could rely on the dedicated property to meet the\n15% open space and landscaping requirement mandated by\nthe city\xe2\x80\x99s zoning scheme. App. to Pet. for Cert. G-28 to G29. The city would bear the cost of maintaining a\nlandscaped buffer between the dedicated area and the new\nstore. Id., at G-44 to G-45.\nPetitioner requested variances from the CDC standards.\nVariances are granted only where it can be shown that,\nowing to special circumstances related to a specific piece of\nthe land, the literal interpretation of the applicable zoning\nThe city\xe2\x80\x99s decision includes the following relevant conditions: \xe2\x80\x9c1. The applicant\nshall dedicate to the City as Greenway all portions of the site that fall within the\nexisting 100-year floodplain [of Fanno Creek] ( i.e., all portions of the property\nbelow elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot\nfloodplain boundary. The building shall be designed so as not to intrude into the\ngreenway area.\xe2\x80\x9d App. to Pet. for Cert. G-43.\n2\n\n642\n\n\x0cprovisions would cause \xe2\x80\x9can undue or unnecessary\nhardship\xe2\x80\x9d unless the variance is granted. CDC s 18.134.010,\nApp. to Brief for Respondent B-47.3 Rather than posing\nalternative mitigating measures to offset the expected\nimpacts of her proposed development, as allowed under\nthe CDC, petitioner simply argued that her proposed\ndevelopment would not conflict with the policies of the\ncomprehensive plan. Id., at E-4. The Commission denied\nthe request.\nThe Commission made a series of findings concerning the\nrelationship between the dedicated conditions and the\nprojected impacts of petitioner\xe2\x80\x99s project. First, the\nCommission noted that \xe2\x80\x9c[i]t is reasonable to assume that\ncustomers and employees of the future uses of this site\ncould utilize a pedestrian/bicycle pathway adjacent to this\nCDC s 18.134.050 contains the following criteria whereby the decisionmaking\nauthority can approve, approve with modifications, or deny a variance request:\n3\n\n\xe2\x80\x9c(1) The proposed variance will not be materially\ndetrimental to the purposes of this title, be in conflict with\nthe policies of the comprehensive plan, to any other\napplicable policies and standards, and to other properties\nin the same zoning district or vicinity;\n\xe2\x80\x9c(2) There are special circumstances that exist which are\npeculiar to the lot size or shape, topography or other\ncircumstances over which the applicant has no control,\nand which are not applicable to other properties in the\nsame zoning district;\n\xe2\x80\x9c(3) The use proposed will be the same as permitted under\nthis title and City standards will be maintained to the\ngreatest extent possible, while permitting some economic\nuse of the land;\n\xe2\x80\x9c(4) Existing physical and natural systems, such as but not\nlimited to traffic, drainage, dramatic land forms, or parks\nwill not be adversely affected any more than would occur\nif the development were located as specified in the title;\nand\n\xe2\x80\x9c(5) The hardship is not self-imposed and the variance\nrequested is the minimum variance which would alleviate\nthe hardship.\xe2\x80\x9d\n\nApp. to Brief for Respondent B-49 to B-50.\n\n643\n\n\x0cdevelopment for their transportation and recreational\nneeds.\xe2\x80\x9d City of Tigard Planning Commission Final Order\nNo. 91-09 PC, App. to Pet. for Cert. G-24. The\nCommission noted that the site plan has provided for\nbicycle parking in a rack in front of the proposed building\nand \xe2\x80\x9c[i]t is reasonable to expect that some of the users of\nthe bicycle parking provided for by the site plan will use the\npathway adjacent to Fanno Creek if it is constructed.\xe2\x80\x9d Ibid.\nIn addition, the Commission found that creation of a\nconvenient, safe pedestrian/bicycle pathway system as an\nalternative means of transportation \xe2\x80\x9ccould offset some of\nthe traffic demand on [nearby] streets and lessen the\nincrease in traffic congestion.\xe2\x80\x9d Ibid.\nThe Commission went on to note that the required\nfloodplain dedication would be reasonably related to\npetitioner\xe2\x80\x99s request to intensify the use of the site given the\nincrease in the impervious surface. The Commission stated\nthat the \xe2\x80\x9canticipated increased storm water flow from the\nsubject property to an already strained creek and drainage\nbasin can only add to the public need to manage the stream\nchannel and floodplain for drainage purposes.\xe2\x80\x9d Id., at G37. Based on this anticipated increased storm water flow,\nthe Commission concluded that \xe2\x80\x9cthe requirement of\ndedication of the floodplain area on the site is related to the\napplicant\xe2\x80\x99s plan to intensify development on the site.\xe2\x80\x9d Ibid.\nThe Tigard City Council approved the Commission\xe2\x80\x99s final\norder, subject to one minor modification; the city council\nreassigned the responsibility for surveying and marking the\nfloodplain area from petitioner to the city\xe2\x80\x99s engineering\ndepartment. Id., at G-7.\nPetitioner appealed to the Land Use Board of Appeals\n(LUBA) on the ground that the city\xe2\x80\x99s dedication\nrequirements were not related to the proposed\ndevelopment, and, therefore, those requirements\nconstituted an uncompensated taking of her property under\nthe Fifth Amendment. In evaluating the federal taking\n\n644\n\n\x0cclaim, LUBA assumed that the city\xe2\x80\x99s findings about the\nimpacts of the proposed development were supported by\nsubstantial evidence. Dolan v. Tigard, LUBA 91-161 (Jan.\n7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9.\nGiven the undisputed fact that the proposed larger building\nand paved parking area would increase the amount of\nimpervious surfaces and the runoff into Fanno Creek,\nLUBA concluded that \xe2\x80\x9cthere is a \xe2\x80\x98reasonable relationship\xe2\x80\x99\nbetween the proposed development and the requirement to\ndedicate land along Fanno Creek for a greenway.\xe2\x80\x9d Id., at D16. With respect to the pedestrian/bicycle pathway, LUBA\nnoted the Commission\xe2\x80\x99s finding that a significantlylarger\nretail sales building and parking lot would attract larger\nnumbers of customers and employees and their vehicles. It\nagain found a \xe2\x80\x9creasonable relationship\xe2\x80\x9d between alleviating\nthe impacts of increased traffic from the development and\nfacilitating the provision of a pedestrian/bicycle pathway as\nan alternative means of transportation. Ibid.\nThe Oregon Court of Appeals affirmed, rejecting\npetitioner\xe2\x80\x99s contention that in Nollan v. California Coastal\nComm\xe2\x80\x99n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677\n(1987), we had abandoned the \xe2\x80\x9creasonable relationship\xe2\x80\x9d\ntest in favor of a stricter \xe2\x80\x9cessential nexus\xe2\x80\x9d test. 113\nOre.App. 162, 832 P.2d 853 (1992). The Oregon Supreme\nCourt affirmed. 317 Ore. 110, 854 P.2d 437 (1993). The\ncourt also disagreed with petitioner\xe2\x80\x99s contention that the\nNollan Court abandoned the \xe2\x80\x9creasonably related\xe2\x80\x9d test. 317\nOre., at 118, 854 P.2d, at 442. Instead, the court read\nNollan to mean that an \xe2\x80\x9cexaction is reasonably related to\nan impact if the exaction serves the same purpose that a\ndenial of the permit would serve.\xe2\x80\x9d 317 Ore., at 120, 854\nP.2d, at 443. The court decided that both the\npedestrian/bicycle pathway condition and the storm\ndrainage dedication had an essential nexus to the\ndevelopment of the proposed site. Id., at 121, 854 P.2d, at\n443. Therefore, the court found the conditions to be\n\n645\n\n\x0creasonably related to the impact of the expansion of\npetitioner\xe2\x80\x99s business. Ibid4 We granted certiorari, 510 U.S.\n989, 114 S.Ct. 544, 126 L.Ed.2d 446 (1993), because of an\nalleged conflict between the Oregon Supreme Court\xe2\x80\x99s\ndecision and our decision in Nollan, supra.\nII\nThe Takings Clause of the Fifth Amendment of the United\nStates Constitution, made applicable to the States through\nthe Fourteenth Amendment, Chicago, B. & Q.R. Co. v.\nChicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979\n(1897), provides: \xe2\x80\x9c[N]or shall private property be taken for\npublic use, without just compensation.\xe2\x80\x9d5 One of the\nprincipal purposes of the Takings Clause is \xe2\x80\x9cto bar\nGovernment from forcing some people alone to bear\npublic burdens which, in all fairness and justice, should be\nborne by the public as a whole.\xe2\x80\x9d Armstrong v. United\nStates, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554\n(1960). Without question, had the city simply required\npetitioner to dedicate a strip of land along Fanno Creek for\nThe Supreme Court of Oregon did not address the consequences of petitioner\xe2\x80\x99s\nfailure to provide alternative mitigation measures in her variance application and we\ntake the case as it comes to us. Accordingly, we do not pass on the constitutionality\nof the city\xe2\x80\x99s variance provisions.\n4\n\nJustice STEVENS\xe2\x80\x99 dissent suggests that this case is actually grounded in\n\xe2\x80\x9csubstantive\xe2\x80\x9d due process, rather than in the view that the Takings Clause of the\nFifth Amendment was made applicable to the States by the Fourteenth\nAmendment. But there is no doubt that later cases have held that the Fourteenth\nAmendment does make the Takings Clause of the Fifth Amendment applicable to\nthe States, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122, 98\nS.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978); Nollan v. California Coastal Comm\xe2\x80\x99n, 483\nU.S. 825, 827, 107 S.Ct. 3141, 3143, 97 L.Ed.2d 677 (1987). Nor is there any doubt\nthat these cases have relied upon Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,\n17 S.Ct. 581, 41 L.Ed. 979 (1897), to reach that result. See, e.g., Penn Central,\nsupra, 438 U.S., at 122, 98 S.Ct., at 2658 (\xe2\x80\x9cThe issu[e] presented \xe2\x80\xa6 [is] whether the\nrestrictions imposed by New York City\xe2\x80\x99s law upon appellants\xe2\x80\x99 exploitation of the\nTerminal site effect a \xe2\x80\x98taking\xe2\x80\x99 of appellants\xe2\x80\x99 property for a public use within the\nmeaning of the Fifth Amendment, which of course is made applicable to the States\nthrough the Fourteenth Amendment, see Chicago, B. & Q.R. Co. v. Chicago, 166\nU.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897)\xe2\x80\x9d).\n5\n\n646\n\n\x0cpublic use, rather than conditioning the grant of her permit\nto redevelop her property on such a dedication, a taking\nwould have occurred. Nollan, supra, 483 U.S., at 831, 107\nS.Ct., at 3145. Such public access would deprive petitioner\nof the right to exclude others, \xe2\x80\x9cone of the most essential\nsticks in the bundle of rights that are commonly\ncharacterized as property.\xe2\x80\x9d Kaiser Aetna v. United States,\n444 U.S. 164, 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 332\n(1979).\nOn the other side of the ledger, the authority of state and\nlocal governments to engage in land use planning has been\nsustained against constitutional challenge as long ago as our\ndecision in Village of Euclid v. Ambler Realty Co., 272 U.S.\n365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). \xe2\x80\x9cGovernment\nhardly could go on if to some extent values incident to\nproperty could not be diminished without paying for every\nsuch change in the general law.\xe2\x80\x9d Pennsylvania Coal Co. v.\nMahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322\n(1922). A land use regulation does not effect a taking if it\n\xe2\x80\x9csubstantially advance[s] legitimate state interests\xe2\x80\x9d and does\nnot \xe2\x80\x9cden [y] an owner economically viable use of his land.\xe2\x80\x9d\nAgins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,\n2141, 65 L.Ed.2d 106 (1980).6\nThe sort of land use regulations discussed in the cases just\ncited, however, differ in two relevant particulars from the\npresent case. First, they involved essentially legislative\ndeterminations classifying entire areas of the city, whereas\nhere the city made an adjudicative decision to condition\npetitioner\xe2\x80\x99s application for a building permit on an\nThere can be no argument that the permit conditions would deprive petitioner of\n\xe2\x80\x9ceconomically beneficial us[e]\xe2\x80\x9d of her property as she currently operates a retail\nstore on the lot. Petitioner assuredly is able to derive some economic use from her\nproperty. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019,\n112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992); Kaiser Aetna v. United States, 444\nU.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979); Penn Central Transp. Co.\nv. New York City, supra, 438 U.S., at 124, 98 S.Ct., at 2659.\n6\n\n647\n\n\x0cindividual parcel. Second, the conditions imposed were not\nsimply a limitation on the use petitioner might make of her\nown parcel, but a requirement that she deed portions of the\nproperty to the city. In Nollan, supra, we held that\ngovernmental authority to exact such a condition was\ncircumscribed by the Fifth and Fourteenth Amendments.\nUnder the well-settled doctrine of \xe2\x80\x9cunconstitutional\nconditions,\xe2\x80\x9d the government may not require a person to\ngive up a constitutional right-here the right to receive just\ncompensation when property is taken for a public use-in\nexchange for a discretionary benefit conferred by the\ngovernment where the benefit sought has little or no\nrelationship to the property. See Perry v. Sindermann, 408\nU.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v.\nBoard of Ed. of Township High School Dist. 205, Will\nCty., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d\n811 (1968).\nPetitioner contends that the city has forced her to choose\nbetween the building permit and her right under the Fifth\nAmendment to just compensation for the public\neasements. Petitioner does not quarrel with the city\xe2\x80\x99s\nauthority to exact some forms of dedication as a condition\nfor the grant of a building permit, but challenges the\nshowing made by the city to justify these exactions. She\nargues that the city has identified \xe2\x80\x9cno special benefits\xe2\x80\x9d\nconferred on her, and has not identified any \xe2\x80\x9cspecial\nquantifiable burdens\xe2\x80\x9d created by her new store that would\njustify the particular dedications required from her which\nare not required from the public at large.\nIII\nIn evaluating petitioner\xe2\x80\x99s claim, we must first determine\nwhether the \xe2\x80\x9cessential nexus\xe2\x80\x9d exists between the\n\xe2\x80\x9clegitimate state interest\xe2\x80\x9d and the permit condition exacted\nby the city. Nollan, 483 U.S., at 837, 107 S.Ct., at 3148. If\nwe find that a nexus exists, we must then decide the\nrequired degree of connection between the exactions and\n\n648\n\n\x0cthe projected impact of the proposed development. We\nwere not required to reach this question in Nollan, because\nwe concluded that the connection did not meet even the\nloosest standard. Id., at 838, 107 S.Ct., at 3149. Here,\nhowever, we must decide this question.\nA\nWe addressed the essential nexus question in Nollan. The\nCalifornia Coastal Commission demanded a lateral public\neasement across the Nollans\xe2\x80\x99 beachfront lot in exchange\nfor a permit to demolish an existing bungalow and replace\nit with a three-bedroom house. Id., at 828, 107 S.Ct., at\n3144. The public easement was designed to connect two\npublic beaches that were separated by the Nollan\xe2\x80\x99s\nproperty. The Coastal Commission had asserted that the\npublic easement condition was imposed to promote the\nlegitimate state interest of diminishing the \xe2\x80\x9cblockage of the\nview of the ocean\xe2\x80\x9d caused by construction of the larger\nhouse.\nWe agreed that the Coastal Commission\xe2\x80\x99s concern with\nprotecting visual access to the ocean constituted a\nlegitimate public interest. Id., at 835, 107 S.Ct., at 3148. We\nalso agreed that the permit condition would have been\nconstitutional \xe2\x80\x9ceven if it consisted of the requirement that\nthe Nollans provide a viewing spot on their property for\npassersby with whose sighting of the ocean their new house\nwould interfere.\xe2\x80\x9d Id., at 836, 107 S.Ct., at 3148. We\nresolved, however, that the Coastal Commission\xe2\x80\x99s\nregulatory authority was set completely adrift from its\nconstitutional moorings when it claimed that a nexus\nexisted between visual access to the ocean and a permit\ncondition requiring lateral public access along the Nollans\xe2\x80\x99\nbeachfront lot. Id., at 837, 107 S.Ct., at 3148. How\nenhancing the public\xe2\x80\x99s ability to \xe2\x80\x9ctraverse to and along the\nshorefront\xe2\x80\x9d served the same governmental purpose of\n\xe2\x80\x9cvisual access to the ocean\xe2\x80\x9d from the roadway was beyond\n\n649\n\n\x0cour ability to countenance. The absence of a nexus left the\nCoastal Commission in the position of simply trying to\nobtain an easement through gimmickry, which converted a\nvalid regulation of land use into \xe2\x80\x9d \xe2\x80\x98an out-and-out plan of\nextortion.\xe2\x80\x99 \xe2\x80\x9d Ibid., quoting J.E.D. Associates, Inc. v.\nAtkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981).\nNo such gimmicks are associated with the permit\nconditions imposed by the city in this case. Undoubtedly,\nthe prevention of flooding along Fanno Creek and the\nreduction of traffic congestion in the Central Business\nDistrict qualify as the type of legitimate public purposes we\nhave upheld. Agins, 447 U.S., at 260-262, 100 S.Ct., at\n2141-2142. It seems equally obvious that a nexus exists\nbetween preventing flooding along Fanno Creek and\nlimiting development within the creek\xe2\x80\x99s 100-year\nfloodplain. Petitioner proposes to double the size of her\nretail store and to pave her now-gravel parking lot, thereby\nexpanding the impervious surface on the property and\nincreasing the amount of storm water runoff into Fanno\nCreek.\nThe same may be said for the city\xe2\x80\x99s attempt to reduce\ntraffic congestion by providing for alternative means of\ntransportation. In theory, a pedestrian/bicycle pathway\nprovides a useful alternative means of transportation for\nworkers and shoppers: \xe2\x80\x9cPedestrians and bicyclists\noccupying dedicated spaces for walking and/or bicycling \xe2\x80\xa6\nremove potential vehicles from streets, resulting in an\noverall improvement in total transportation system flow.\xe2\x80\x9d\nA. Nelson, Public Provision of Pedestrian and Bicycle\nAccess Ways: Public Policy Rationale and the Nature of\nPrivate Benefits 11, Center for Planning Development,\nGeorgia Institute of Technology, Working Paper Series\n(Jan. 1994). See also Intermodal Surface Transportation\nEfficiency Act of 1991, Pub.L. 102-240, 105 Stat.1914\n(recognizing pedestrian and bicycle facilities as necessary\ncomponents of any strategy to reduce traffic congestion).\n\n650\n\n\x0cB\nThe second part of our analysis requires us to determine\nwhether the degree of the exactions demanded by the city\xe2\x80\x99s\npermit conditions bears the required relationship to the\nprojected impact of petitioner\xe2\x80\x99s proposed development.\nNollan, supra, 483 U.S., at 834, 107 S.Ct., at 3147, quoting\nPenn Central Transp. Co. v. New York City, 438 U.S. 104,\n127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631 (1978) (\xe2\x80\x9d \xe2\x80\x98[A] use\nrestriction may constitute a \xe2\x80\x9ctaking\xe2\x80\x9d if not reasonably\nnecessary to the effectuation of a substantial government\npurpose\xe2\x80\x99 \xe2\x80\x9c). Here the Oregon Supreme Court deferred to\nwhat it termed the \xe2\x80\x9ccity\xe2\x80\x99s unchallenged factual findings\xe2\x80\x9d\nsupporting the dedication conditions and found them to be\nreasonably related to the impact of the expansion of\npetitioner\xe2\x80\x99s business. 317 Ore., at 120-121, 854 P.2d, at 443.\nThe city required that petitioner dedicate \xe2\x80\x9cto the City as\nGreenway all portions of the site that fall within the\nexisting 100-year floodplain [of Fanno Creek] \xe2\x80\xa6 and all\nproperty 15 feet above [the floodplain] boundary.\xe2\x80\x9d Id., at\n113, n. 3, 854 P.2d, at 439, n. 3. In addition, the city\ndemanded that the retail store be designed so as not to\nintrude into the greenway area. The city relies on the\nCommission\xe2\x80\x99s rather tentative findings that increased storm\nwater flow from petitioner\xe2\x80\x99s property \xe2\x80\x9ccan only add to the\npublic need to manage the [floodplain] for drainage\npurposes\xe2\x80\x9d to support its conclusion that the \xe2\x80\x9crequirement\nof dedication of the floodplain area on the site is related to\nthe applicant\xe2\x80\x99s plan to intensify development on the site.\xe2\x80\x9d\nCity of Tigard Planning Commission Final Order No. 9109 PC, App. to Pet. for Cert. G-37.\nThe city made the following specific findings relevant to\nthe pedestrian/bicycle pathway:\n\xe2\x80\x9cIn addition, the proposed expanded\nuse of this site is anticipated to\ngenerate additional vehicular traffic\n\n651\n\n\x0cthereby increasing congestion on\nnearby collector and arterial streets.\nCreation of a convenient, safe\npedestrian/bicycle pathway system as\nan alternative means of transportation\ncould offset some of the traffic\ndemand on these nearby streets and\nlessen the increase in traffic\ncongestion.\xe2\x80\x9d Id., at G-24.\nThe question for us is whether these findings are\nconstitutionally sufficient to justify the conditions imposed\nby the city on petitioner\xe2\x80\x99s building permit. Since state\ncourts have been dealing with this question a good deal\nlonger than we have, we turn to representative decisions\nmade by them.\nIn some States, very generalized statements as to the\nnecessary connection between the required dedication and\nthe proposed development seem to suffice. See, e.g.,\nBillings Properties, Inc. v. Yellowstone County, 144 Mont.\n25, 394 P.2d 182 (1964) ; Jenad, Inc. v. Scarsdale, 18\nN.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966). We\nthink this standard is too lax to adequately protect\npetitioner\xe2\x80\x99s right to just compensation if her property is\ntaken for a public purpose.\nOther state courts require a very exacting correspondence,\ndescribed as the \xe2\x80\x9cspecifi[c] and uniquely attributable\xe2\x80\x9d test.\nThe Supreme Court of Illinois first developed this test in\nPioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d\n375, 380, 176 N.E.2d 799, 802 (1961).7 Under this standard,\nif the local government cannot demonstrate that its\nThe \xe2\x80\x9cspecifically and uniquely attributable\xe2\x80\x9d test has now been adopted by a\nminority of other courts. See, e.g., J.E.D. Associates, Inc. v. Atkinson, 121 N.H.\n581, 585, 432 A.2d 12, 15 (1981); Divan Builders, Inc. v. Planning Bd. of Twp. of\nWayne, 66 N.J. 582, 600-601, 334 A.2d 30, 40 (1975); McKain v. Toledo City Plan\nComm\xe2\x80\x99n, 26 Ohio App.2d 171, 176, 270 N.E.2d 370, 374 (1971); Frank Ansuini,\nInc. v. Cranston, 107 R.I. 63, 69, 264 A.2d 910, 913 (1970).\n7\n\n652\n\n\x0cexaction is directly proportional to the specifically created\nneed, the exaction becomes \xe2\x80\x9ca veiled exercise of the power\nof eminent domain and a confiscation of private property\nbehind the defense of police regulations.\xe2\x80\x9d Id., at 381, 176\nN.E.2d, at 802. We do not think the Federal Constitution\nrequires such exacting scrutiny, given the nature of the\ninterests involved.\nA number of state courts have taken an intermediate\nposition, requiring the municipality to show a \xe2\x80\x9creasonable\nrelationship\xe2\x80\x9d between the required dedication and the\nimpact of the proposed development. Typical is the\nSupreme Court of Nebraska\xe2\x80\x99s opinion in Simpson v. North\nPlatte, 206 Neb. 240, 245, 292 N.W.2d 297, 301 (1980),\nwhere that court stated:\n\xe2\x80\x9cThe distinction, therefore, which\nmust be made between an appropriate\nexercise of the police power and an\nimproper exercise of eminent domain\nis whether the requirement has some\nreasonable relationship or nexus to the\nuse to which the property is being\nmade or is merely being used as an\nexcuse for taking property simply\nbecause at that particular moment the\nlandowner is asking the city for some\nlicense or permit.\xe2\x80\x9d\nThus, the court held that a city may not require a property\nowner to dedicate private property for some future public\nuse as a condition of obtaining a building permit when such\nfuture use is not \xe2\x80\x9coccasioned by the construction sought to\nbe permitted.\xe2\x80\x9d Id., at 248, 292 N.W.2d, at 302.\nSome form of the reasonable relationship test has been\nadopted in many other jurisdictions. See, e.g., Jordan v.\nMenomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965);\nCollis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976)\n\n653\n\n\x0c(requiring a showing of a reasonable relationship between\nthe planned subdivision and the municipality\xe2\x80\x99s need for\nland); College Station v. Turtle Rock Corp., 680 S.W.2d\n802, 807 (Tex.1984); Call v. West Jordan, 606 P.2d 217, 220\n(Utah 1979) (affirming use of the reasonable relation test).\nDespite any semantical differences, general agreement\nexists among the courts \xe2\x80\x9cthat the dedication should have\nsome reasonable relationship to the needs created by the\n[development].\xe2\x80\x9d Ibid. See generally Note \xe2\x80\x9d \xe2\x80\x98Take\xe2\x80\x99 My\nBeach Please!\xe2\x80\x9d: Nollan v. California Coastal Commission\nand a Rational-Nexus Constitutional Analysis of\nDevelopment Exactions, 69 B.U.L.Rev. 823 (1989); see also\nParks v. Watson, 716 F.2d 646, 651-653 (CA9 1983).\nWe think the \xe2\x80\x9creasonable relationship\xe2\x80\x9d test adopted by a\nmajority of the state courts is closer to the federal\nconstitutional norm than either of those previously\ndiscussed. But we do not adopt it as such, partly because\nthe term \xe2\x80\x9creasonable relationship\xe2\x80\x9d seems confusingly\nsimilar to the term \xe2\x80\x9crational basis\xe2\x80\x9d which describes the\nminimal level of scrutiny under the Equal Protection Clause\nof the Fourteenth Amendment. We think a term such as\n\xe2\x80\x9crough proportionality\xe2\x80\x9d best encapsulates what we hold to\nbe the requirement of the Fifth Amendment. No precise\nmathematical calculation is required, but the city must make\nsome sort of individualized determination that the required\ndedication is related both in nature and extent to the impact\nof the proposed development.8\nJustice STEVENS\xe2\x80\x99 dissent takes us to task for placing the burden on the city to\njustify the required dedication. He is correct in arguing that in evaluating most\ngenerally applicable zoning regulations, the burden properly rests on the party\nchallenging the regulation to prove that it constitutes an arbitrary regulation of\nproperty rights. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47\nS.Ct. 114, 71 L.Ed. 303 (1926). Here, by contrast, the city made an adjudicative\ndecision to condition petitioner\xe2\x80\x99s application for a building permit on an individual\nparcel. In this situation, the burden properly rests on the city. See Nollan, 483 U.S.,\nat 836, 107 S.Ct., at 3148. This conclusion is not, as he suggests, undermined by\nour decision in Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d\n531 (1977), in which we struck down a housing ordinance that limited occupancy\n8\n\n654\n\n\x0cJustice STEVENS\xe2\x80\x99 dissent relies upon a law review article\nfor the proposition that the city\xe2\x80\x99s conditional demands for\npart of petitioner\xe2\x80\x99s property are \xe2\x80\x9ca species of business\nregulation that heretofore warranted a strong presumption\nof constitutional validity.\xe2\x80\x9d Post, at 2325. But simply\ndenominating a governmental measure as a \xe2\x80\x9cbusiness\nregulation\xe2\x80\x9d does not immunize it from constitutional\nchallenge on the ground that it violates a provision of the\nBill of Rights. In Marshall v. Barlow\xe2\x80\x99s, Inc., 436 U.S. 307,\n98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), we held that a statute\nauthorizing a warrantless search of business premises in\norder to detect OSHA violations violated the Fourth\nAmendment. See also Air Pollution Variance Bd., of Colo.\nv. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40\nL.Ed.2d 607 (1974); New York v. Burger, 482 U.S. 691, 107\nS.Ct. 2636, 96 L.Ed.2d 601 (1987). And in Central Hudson\nGas & Elec. Corp. v. Public Serv. Comm\xe2\x80\x99n of N.Y., 447\nU.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we held\nthat an order of the New York Public Service Commission,\ndesigned to cut down the use of electricity because of a fuel\nshortage, violated the First Amendment insofar as it\nprohibited advertising by a utility company to promote the\nuse of electricity. We see no reason why the Takings Clause\nof the Fifth Amendment, as much a part of the Bill of\nRights as the First Amendment or Fourth Amendment,\nshould be relegated to the status of a poor relation in these\ncomparable circumstances. We turn now to analysis of\nwhether the findings relied upon by the city here, first with\nrespect to the floodplain easement, and second with respect\nto the pedestrian/bicycle path, satisfied these requirements.\n\nof a dwelling unit to members of a single family as violating the Due Process\nClause of the Fourteenth Amendment. The ordinance at issue in Moore intruded\non choices concerning family living arrangements, an area in which the usual\ndeference to the legislature was found to be inappropriate. Id., at 499, 97 S.Ct., at\n1935.\n\n655\n\n\x0cIt is axiomatic that increasing the amount of impervious\nsurface will increase the quantity and rate of storm water\nflow from petitioner\xe2\x80\x99s property. Record, Doc. No. F, ch. 4,\np. 4-29. Therefore, keeping the floodplain open and free\nfrom development would likely confine the pressures on\nFanno Creek created by petitioner\xe2\x80\x99s development. In fact,\nbecause petitioner\xe2\x80\x99s property lies within the Central\nBusiness District, the CDC already required that petitioner\nleave 15% of it as open space and the undeveloped\nfloodplain would have nearly satisfied that requirement.\nApp. to Pet. for Cert. G-16 to G-17. But the city demanded\nmore-it not only wanted petitioner not to build in the\nfloodplain, but it also wanted petitioner\xe2\x80\x99s property along\nFanno Creek for its greenway system. The city has never\nsaid why a public greenway, as opposed to a private one,\nwas required in the interest of flood control.\nThe difference to petitioner, of course, is the loss of her\nability to exclude others. As we have noted, this right to\nexclude others is \xe2\x80\x9cone of the most essential sticks in the\nbundle of rights that are commonly characterized as\nproperty.\xe2\x80\x9d Kaiser Aetna, 444 U.S., at 176, 100 S.Ct., at 391.\nIt is difficult to see why recreational visitors trampling\nalong petitioner\xe2\x80\x99s floodplain easement are sufficiently\nrelated to the city\xe2\x80\x99s legitimate interest in reducing flooding\nproblems along Fanno Creek, and the city has not\nattempted to make any individualized determination to\nsupport this part of its request.\nThe city contends that the recreational easement along the\ngreenway is only ancillary to the city\xe2\x80\x99s chief purpose in\ncontrolling flood hazards. It further asserts that unlike the\nresidential property at issue in Nollan, petitioner\xe2\x80\x99s property\nis commercial in character, and therefore, her right to\nexclude others is compromised. Brief for Respondent 41,\nquoting United States v. Orito, 413 U.S. 139, 142, 93 S.Ct.\n2674, 2677, 37 L.Ed.2d 513 (1973) (\xe2\x80\x9d \xe2\x80\x98The Constitution\nextends special safeguards to the privacy of the home\xe2\x80\x99 \xe2\x80\x9c).\n\n656\n\n\x0cThe city maintains that \xe2\x80\x9c[t]here is nothing to suggest that\npreventing [petitioner] from prohibiting [the easements]\nwill unreasonably impair the value of [her] property as a\n[retail store].\xe2\x80\x9d PruneYard Shopping Center v. Robins, 447\nU.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980).\nAdmittedly, petitioner wants to build a bigger store to\nattract members of the public to her property. She also\nwants, however, to be able to control the time and manner\nin which they enter. The recreational easement on the\ngreenway is different in character from the exercise of\nstate-protected rights of free expression and petition that\nwe permitted in PruneYard. In PruneYard, we held that a\nmajor private shopping center that attracted more than\n25,000 daily patrons had to provide access to persons\nexercising their state constitutional rights to distribute\npamphlets and ask passers-by to sign their petitions. Id., at\n85, 100 S.Ct., at 2042. We based our decision, in part, on\nthe fact that the shopping center \xe2\x80\x9cmay restrict expressive\nactivity by adopting time, place, and manner regulations\nthat will minimize any interference with its commercial\nfunctions.\xe2\x80\x9d Id., at 83, 100 S.Ct., at 2042. By contrast, the\ncity wants to impose a permanent recreational easement\nupon petitioner\xe2\x80\x99s property that borders Fanno Creek.\nPetitioner would lose all rights to regulate the time in which\nthe public entered onto the greenway, regardless of any\ninterference it might pose with her retail store. Her right to\nexclude would not be regulated, it would be eviscerated.\nIf petitioner\xe2\x80\x99s proposed development had somehow\nencroached on existing greenway space in the city, it would\nhave been reasonable to require petitioner to provide some\nalternative greenway space for the public either on her\nproperty or elsewhere. See Nollan, 483 U.S., at 836, 107\nS.Ct., at 3148 (\xe2\x80\x9cAlthough such a requirement, constituting a\npermanent grant of continuous access to the property,\nwould have to be considered a taking if it were not attached\nto a development permit, the Commission\xe2\x80\x99s assumed\n\n657\n\n\x0cpower to forbid construction of the house in order to\nprotect the public\xe2\x80\x99s view of the beach must surely include\nthe power to condition construction upon some concession\nby the owner, even a concession of property rights, that\nserves the same end\xe2\x80\x9d). But that is not the case here. We\nconclude that the findings upon which the city relies do not\nshow the required reasonable relationship between the\nfloodplain easement and the petitioner\xe2\x80\x99s proposed new\nbuilding.\nWith respect to the pedestrian/bicycle pathway, we have no\ndoubt that the city was correct in finding that the larger\nretail sales facility proposed by petitioner will increase\ntraffic on the streets of the Central Business District. The\ncity estimates that the proposed development would\ngenerate roughly 435 additional trips per day.9 Dedications\nfor streets, sidewalks, and other public ways are generally\nreasonable exactions to avoid excessive congestion from a\nproposed property use. But on the record before us, the\ncity has not met its burden of demonstrating that the\nadditional number of vehicle and bicycle trips generated by\npetitioner\xe2\x80\x99s development reasonably relate to the city\xe2\x80\x99s\nrequirement for a dedication of the pedestrian/bicycle\npathway easement. The city simply found that the creation\nof the pathway \xe2\x80\x9ccould offset some of the traffic demand \xe2\x80\xa6\nand lessen the increase in traffic congestion.\xe2\x80\x9d10\nAs Justice Peterson of the Supreme Court of Oregon\nexplained in his dissenting opinion, however, \xe2\x80\x9c[t]he\nfindings of fact that the bicycle pathway system \xe2\x80\x99could offset\nThe city uses a weekday average trip rate of 53.21 trips per 1,000 square feet.\nAdditional Trips Generated = 53.21 X (17,600-9,720). App. to Pet. for Cert. G-15.\n9\n\nIn rejecting petitioner\xe2\x80\x99s request for a variance from the pathway dedication\ncondition, the city stated that omitting the planned section of the pathway across\npetitioner\xe2\x80\x99s property would conflict with its adopted policy of providing a\ncontinuous pathway system. But the Takings Clause requires the city to implement\nits policy by condemnation unless the required relationship between petitioner\xe2\x80\x99s\ndevelopment and added traffic is shown.\n10\n\n658\n\n\x0csome of the traffic demand\xe2\x80\x99 is a far cry from a finding that\nthe bicycle pathway system will, or is likely to, offset some of\nthe traffic demand.\xe2\x80\x9d 317 Ore., at 127, 854 P.2d, at 447\n(emphasis in original). No precise mathematical calculation\nis required, but the city must make some effort to quantify\nits findings in support of the dedication for the\npedestrian/bicycle pathway beyond the conclusory\nstatement that it could offset some of the traffic demand\ngenerated.\nIV\nCities have long engaged in the commendable task of land\nuse planning, made necessary by increasing urbanization,\nparticularly in metropolitan areas such as Portland. The\ncity\xe2\x80\x99s goals of reducing flooding hazards and traffic\ncongestion, and providing for public greenways, are\nlaudable, but there are outer limits to how this may be\ndone. \xe2\x80\x9cA strong public desire to improve the public\ncondition [will not] warrant achieving the desire by a\nshorter cut than the constitutional way of paying for the\nchange.\xe2\x80\x9d Pennsylvania Coal, 260 U.S., at 416, 43 S.Ct., at\n160.\nThe judgment of the Supreme Court of Oregon is reversed,\nand the case is remanded for further proceedings not\ninconsistent with this opinion.\nIt is so ordered.\nJUSTICE STEVENS, with whom JUSTICE BLACKMUN and\nJUSTICE GINSBURG join, dissenting.\nThe record does not tell us the dollar value of petitioner\nFlorence Dolan\xe2\x80\x99s interest in excluding the public from the\ngreenway adjacent to her hardware business. The mountain\nof briefs that the case has generated nevertheless makes it\nobvious that the pecuniary value of her victory is far less\nimportant than the rule of law that this case has been used\nto establish. It is unquestionably an important case.\n\n659\n\n\x0cCertain propositions are not in dispute. The enlargement of\nthe Tigard unit in Dolan\xe2\x80\x99s chain of hardware stores will\nhave an adverse impact on the city\xe2\x80\x99s legitimate and\nsubstantial interests in controlling drainage in Fanno Creek\nand minimizing traffic congestion in Tigard\xe2\x80\x99s business\ndistrict. That impact is sufficient to justify an outright\ndenial of her application for approval of the expansion. The\ncity has nevertheless agreed to grant Dolan\xe2\x80\x99s application if\nshe will comply with two conditions, each of which\nadmittedly will mitigate the adverse effects of her proposed\ndevelopment. The disputed question is whether the city has\nviolated the Fourteenth Amendment to the Federal\nConstitution by refusing to allow Dolan\xe2\x80\x99s planned\nconstruction to proceed unless those conditions are met.\nThe Court is correct in concluding that the city may not\nattach arbitrary conditions to a building permit or to a\nvariance even when it can rightfully deny the application\noutright. I also agree that state court decisions dealing with\nordinances that govern municipal development plans\nprovide useful guidance in a case of this kind. Yet the\nCourt\xe2\x80\x99s description of the doctrinal underpinnings of its\ndecision, the phrasing of its fledgling test of \xe2\x80\x9crough\nproportionality,\xe2\x80\x9d and the application of that test to this case\nrun contrary to the traditional treatment of these cases and\nbreak considerable and unpropitious new ground.\nI\nCandidly acknowledging the lack of federal precedent for\nits exercise in rulemaking, the Court purports to find\nguidance in 12 \xe2\x80\x9crepresentative\xe2\x80\x9d state court decisions. To do\nso is certainly appropriate.11 The state cases the Court\nconsults, however, either fail to support or decidedly\nundermine the Court\xe2\x80\x99s conclusions in key respects.\n\nCf. Moore v. East Cleveland, 431 U.S. 494, 513-521, 97 S.Ct. 1932, 52 L.Ed.2d\n531 (1977) (STEVENS, J., concurring in judgment).\n11\n\n660\n\n\x0cFirst, although discussion of the state cases permeates the\nCourt\xe2\x80\x99s analysis of the appropriate test to apply in this case,\nthe test on which the Court settles is not naturally derived\nfrom those courts\xe2\x80\x99 decisions. The Court recognizes as an\ninitial matter that the city\xe2\x80\x99s conditions satisfy the \xe2\x80\x9cessential\nnexus\xe2\x80\x9d requirement announced in Nollan v. California\nCoastal Comm\xe2\x80\x99n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d\n677 (1987), because they serve the legitimate interests in\nminimizing floods and traffic congestions. Ante, at 23172318.12 The Court goes on, however, to erect a new\nconstitutional hurdle in the path of these conditions. In\naddition to showing a rational nexus to a public purpose\nthat would justify an outright denial of the permit, the city\nmust also demonstrate \xe2\x80\x9crough proportionality\xe2\x80\x9d between\nthe harm caused by the new land use and the benefit\nobtained by the condition. Ante, at 2319. The Court also\ndecides for the first time that the city has the burden of\nestablishing the constitutionality of its conditions by\nmaking an \xe2\x80\x9cindividualized determination\xe2\x80\x9d that the\ncondition in question satisfies the proportionality\nrequirement. See Ibid.\nNot one of the state cases cited by the Court announces\nanything akin to a \xe2\x80\x9crough proportionality\xe2\x80\x9d requirement.\nFor the most part, moreover, those cases that invalidated\nIn Nollan the Court recognized that a state agency may condition the grant of a\nland use permit on the dedication of a property interest if the dedication serves a\nlegitimate police-power purpose that would justify a refusal to issue the permit. For\nthe first time, however, it held that such a condition is unconstitutional if the\ncondition \xe2\x80\x9cutterly fails\xe2\x80\x9d to further a goal that would justify the refusal. 483 U.S., at\n837, 107 S.Ct., at 3148. In the Nollan Court\xe2\x80\x99s view, a condition would be\nconstitutional even if it required the Nollans to provide a viewing spot for passersby whose view of the ocean was obstructed by their new house. Id., at 836, 107\nS.Ct., at 3148. \xe2\x80\x9cAlthough such a requirement, constituting a permanent grant of\ncontinuous access to the property, would have to be considered a taking if it were\nnot attached to a development permit, the Commission\xe2\x80\x99s assumed power to forbid\nconstruction of the house in order to protect the public\xe2\x80\x99s view of the beach must\nsurely include the power to condition construction upon some concession by the\nowner, even a concession of property rights, that serves the same end.\xe2\x80\x9d Ibid.\n12\n\n661\n\n\x0cmunicipal ordinances did so on state law or unspecified\ngrounds roughly equivalent to Nollan \xe2\x80\x98s \xe2\x80\x9cessential nexus\xe2\x80\x9d\nrequirement. See, e.g.,\nSimpson v. North Platte, 206 Neb. 240, 245-248, 292\nN.W.2d 297, 301-302 (1980) (ordinance lacking \xe2\x80\x9creasonable\nrelationship\xe2\x80\x9d or \xe2\x80\x9crational nexus\xe2\x80\x9d to property\xe2\x80\x99s use violated\nNebraska Constitution); J.E.D. Associates, Inc. v.\nAtkinson, 121 N.H. 581, 583-585, 432 A.2d 12, 14-15\n(1981) (state constitutional grounds). One case purporting\nto apply the strict \xe2\x80\x9cspecifically and uniquely attributable\xe2\x80\x9d\ntest established by Pioneer Trust & Savings Bank v. Mount\nProspect, 22 Ill.2d 375, 176 N.E.2d 799 (1961),\nnevertheless found that test was satisfied because the\nlegislature had decided that the subdivision at issue created\nthe need for a park or parks. Billings Properties, Inc. v.\nYellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182,\n187-188 (1964). In only one of the seven cases upholding a\nland use regulation did the losing property owner petition\nthis Court for certiorari. See Jordan v. Menomonee Falls,\n28 Wis.2d 608, 137 N.W.2d 442 (1965), appeal dism\xe2\x80\x99d, 385\nU.S. 4, 87 S.Ct. 36, 17 L.Ed.2d 3 (1966) (want of substantial\nfederal question). Although 4 of the 12 opinions mention\nthe Federal Constitution-2 of those only in passing-it is\nquite obvious that neither the courts nor the litigants\nimagined they might be participating in the development of\na new rule of federal law. Thus, although these state cases\ndo lend support to the Court\xe2\x80\x99s reaffirmance of Nollan\xe2\x80\x99s\nreasonable nexus requirement, the role the Court accords\nthem in the announcement of its newly minted second\nphase of the constitutional inquiry is remarkably inventive.\nIn addition, the Court ignores the state courts\xe2\x80\x99 willingness\nto consider what the property owner gains from the\nexchange in question. The Supreme Court of Wisconsin,\nfor example, found it significant that the village\xe2\x80\x99s approval\nof a proposed subdivision plat \xe2\x80\x9cenables the subdivider to\nprofit financially by selling the subdivision lots as home-\n\n662\n\n\x0cbuilding sites and thus realizing a greater price than could\nhave been obtained if he had sold his property as unplatted\nlands.\xe2\x80\x9d Jordan v. Menomonee Falls, 28 Wis.2d, at 619-620,\n137 N.W.2d, at 448. The required dedication as a condition\nof that approval was permissible \xe2\x80\x9c[i]n return for this\nbenefit.\xe2\x80\x9d Ibid. See also Collis v. Bloomington, 310 Minn. 5,\n11-13, 246 N.W.2d 19, 23-24 (1976) (citing Jordan );\nCollege Station v. Turtle Rock Corp., 680 S.W.2d 802, 806\n(Tex.1984) (dedication requirement only triggered when\ndeveloper chooses to develop land). In this case, moreover,\nDolan\xe2\x80\x99s acceptance of the permit, with its attached\nconditions, would provide her with benefits that may well\ngo beyond any advantage she gets from expanding her\nbusiness. As the United States pointed out at oral\nargument, the improvement that the city\xe2\x80\x99s drainage plan\ncontemplates would widen the channel and reinforce the\nslopes to increase the carrying capacity during serious\nfloods, \xe2\x80\x9cconfer[ring] considerable benefits on the property\nowners immediately adjacent to the creek.\xe2\x80\x9d Tr. of Oral Arg.\n41-42.\nThe state court decisions also are enlightening in the extent\nto which they required that the entire parcel be given\ncontrolling importance. All but one of the cases involve\nchallenges to provisions in municipal ordinances requiring\ndevelopers to dedicate either a percentage of the entire\nparcel (usually 7 or 10 percent of the platted subdivision) or\nan equivalent value in cash (usually a certain dollar amount\nper lot) to help finance the construction of roads, utilities,\nschools, parks, and playgrounds. In assessing the legality of\nthe conditions, the courts gave no indication that the\ntransfer of an interest in realty was any more objectionable\nthan a cash payment. See, e.g., Jenad, Inc. v. Scarsdale, 18\nN.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966);\nJordan v. Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d\n442 (1965); Collis v. Bloomington, 310 Minn. 5, 246\nN.W.2d 19 (1976). None of the decisions identified the\n\n663\n\n\x0csurrender of the fee owner\xe2\x80\x99s \xe2\x80\x9cpower to exclude\xe2\x80\x9d as having\nany special significance. Instead, the courts uniformly\nexamined the character of the entire economic transaction.\nII\nIt is not merely state cases, but our own cases as well, that\nrequire the analysis to focus on the impact of the city\xe2\x80\x99s\naction on the entire parcel of private property. In Penn\nCentral Transp. Co. v. New York City, 438 U.S. 104, 98\nS.Ct. 2646, 57 L.Ed.2d 631 (1978), we stated that takings\njurisprudence \xe2\x80\x9cdoes not divide a single parcel into discrete\nsegments and attempt to determine whether rights in a\nparticular segment have been entirely abrogated.\xe2\x80\x9d Id., at\n130-131, 98 S.Ct., at 2662. Instead, this Court focuses\n\xe2\x80\x9cboth on the character of the action and on the nature and\nextent of the interference with rights in the parcel as a\nwhole.\xe2\x80\x9d Ibid. Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318,\n62 L.Ed.2d 210 (1979), reaffirmed the nondivisibility\nprinciple outlined in Penn Central, stating that \xe2\x80\x9c[a]t least\nwhere an owner possesses a full \xe2\x80\x98bundle\xe2\x80\x99 of property rights,\nthe destruction of one \xe2\x80\x98strand\xe2\x80\x99 of the bundle is not a taking,\nbecause the aggregate must be viewed in its entirety.\xe2\x80\x9d 444\nU.S., at 65-66, 100 S.Ct., at 327.13 As recently as last Term,\nwe approved the principle again. See Concrete Pipe &\nProducts of Cal., Inc. v. Construction Laborers Pension\nTrust for Southern Cal., 508 U.S. 602, 644, 113 S.Ct. 2264,\n2290, 124 L.Ed.2d 539 (1993) (explaining that \xe2\x80\x9ca claimant\xe2\x80\x99s\nparcel of property [cannot] first be divided into what was\ntaken and what was left\xe2\x80\x9d to demonstrate a compensable\ntaking). Although limitation of the right to exclude others\nundoubtedly constitutes a significant infringement upon\nproperty ownership, Kaiser Aetna v. United States, 444\nSimilarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,\n498-499, 107 S.Ct. 1232, 1249, 94 L.Ed.2d 472 (1987), we concluded that \xe2\x80\x9c[t]he 27\nmillion tons of coal do not constitute a separate segment of property for takings\nlaw purposes\xe2\x80\x9d and that \xe2\x80\x9c[t]here is no basis for treating the less than 2% of\npetitioners\xe2\x80\x99 coal as a separate parcel of property.\xe2\x80\x9d\n13\n\n664\n\n\x0cU.S. 164, 179-180, 100 S.Ct. 383, 393, 62 L.Ed.2d 332\n(1979), restrictions on that right do not alone constitute a\ntaking, and do not do so in any event unless they\n\xe2\x80\x9cunreasonably impair the value or use\xe2\x80\x9d of the property.\nPruneYard Shopping Center v. Robins, 447 U.S. 74, 82-84,\n100 S.Ct. 2035, 2041-2042, 64 L.Ed.2d 741 (1980).\nThe Court\xe2\x80\x99s narrow focus on one strand in the property\nowner\xe2\x80\x99s bundle of rights is particularly misguided in a case\ninvolving the development of commercial property. As\nProfessor Johnston has noted:\n\xe2\x80\x9cThe subdivider is a manufacturer,\nprocesser, and marketer of a product;\nland is but one of his raw materials. In\nsubdivision control disputes, the\ndeveloper is not defending hearth and\nhome against the king\xe2\x80\x99s intrusion, but\nsimply attempting to maximize his\nprofits from the sale of a finished\nproduct. As applied to him,\nsubdivision control exactions are\nactually\nbusiness\nregulations.\xe2\x80\x9d\nJohnston,\nConstitutionality\nof\nSubdivision Control Exactions: The\nQuest for A Rationale, 52 Cornell L.Q.\n871, 923 (1967).14\nThe exactions associated with the development of a retail\nbusiness are likewise a species of business regulation that\n\nJohnston\xe2\x80\x99s article also sets forth a fair summary of the state cases from which the\nCourt purports to derive its \xe2\x80\x9crough proportionality\xe2\x80\x9d test. See 52 Cornell L.Q., at\n917. Like the Court, Johnston observed that cases requiring a \xe2\x80\x9crational nexus\xe2\x80\x9d\nbetween exactions and public needs created by the new subdivision-especially\nJordan v. Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965)-\xe2\x80\x9cstee[r] a\nmoderate course\xe2\x80\x9d between the \xe2\x80\x9cjudicial obstructionism\xe2\x80\x9d of Pioneer Trust &\nSavings Bank v. Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961), and the\n\xe2\x80\x9cexcessive deference\xe2\x80\x9d of Billings Properties, Inc. v. Yellowstone County, 144\nMont. 25, 394 P.2d 182 (1964). 52 Cornell L.Q., at 917.\n14\n\n665\n\n\x0cheretofore warranted\nconstitutional validity.\n\na\n\nstrong\n\npresumption\n\nof\n\nIn Johnston\xe2\x80\x99s view, \xe2\x80\x9cif the municipality can demonstrate\nthat its assessment of financial burdens against subdividers\nis rational, impartial, and conducive to fulfillment of\nauthorized planning objectives, its action need be\ninvalidated only in those extreme and presumably rare cases\nwhere the burden of compliance is sufficiently great to\ndeter the owner from proceeding with his planned\ndevelopment.\xe2\x80\x9d Id., at 917. The city of Tigard has\ndemonstrated that its plan is rational and impartial and that\nthe conditions at issue are \xe2\x80\x9cconducive to fulfillment of\nauthorized planning objectives.\xe2\x80\x9d Dolan, on the other hand,\nhas offered no evidence that her burden of compliance has\nany impact at all on the value or profitability of her planned\ndevelopment. Following the teaching of the cases on which\nit purports to rely, the Court should not isolate the burden\nassociated with the loss of the power to exclude from an\nevaluation of the benefit to be derived from the permit to\nenlarge the store and the parking lot.\nThe Court\xe2\x80\x99s assurances that its \xe2\x80\x9crough proportionality\xe2\x80\x9d test\nleaves ample room for cities to pursue the \xe2\x80\x9ccommendable\ntask of land use planning,\xe2\x80\x9d ante, at 2322-even twice\navowing that \xe2\x80\x9c[n]o precise mathematical calculation is\nrequired,\xe2\x80\x9d ante, at 2319, 2322-are wanting given the result\nthat test compels here. Under the Court\xe2\x80\x99s approach, a city\nmust not only \xe2\x80\x9cquantify its findings,\xe2\x80\x9d ante, at 2322, and\nmake \xe2\x80\x9cindividualized determination[s]\xe2\x80\x9d with respect to the\nnature and the extent of the relationship between the\nconditions and the impact, ante, at 2319, 2320, but also\ndemonstrate \xe2\x80\x9cproportionality.\xe2\x80\x9d The correct inquiry should\ninstead concentrate on whether the required nexus is\npresent and venture beyond considerations of a condition\xe2\x80\x99s\nnature or germaneness only if the developer establishes that\na concededly germane condition is so grossly\ndisproportionate to the proposed development\xe2\x80\x99s adverse\n\n666\n\n\x0ceffects that it manifests motives other than land use\nregulation on the part of the city.15 The heightened\nrequirement the Court imposes on cities is even more\nunjustified when all the tools needed to resolve the\nquestions presented by this case can be garnered from our\nexisting case law.\nIII\nApplying its new standard, the Court finds two defects in\nthe city\xe2\x80\x99s case. First, while the record would adequately\nsupport a requirement that Dolan maintain the portion of\nthe floodplain on her property as undeveloped open space,\nit does not support the additional requirement that the\nfloodplain be dedicated to the city. Ante, at 2320-2322.\nSecond, while the city adequately established the traffic\nincrease that the proposed development would generate, it\nfailed to quantify the offsetting decrease in automobile\ntraffic that the bike path will produce. Ante, at 2321-2322.\nEven under the Court\xe2\x80\x99s new rule, both defects are, at most,\nnothing more than harmless error.\nIn her objections to the floodplain condition, Dolan made\nno effort to demonstrate that the dedication of that portion\nof her property would be any more onerous than a simple\nprohibition against any development on that portion of her\nproperty. Given the commercial character of both the\nexisting and the proposed use of the property as a retail\nstore, it seems likely that potential customers \xe2\x80\x9ctrampling\nalong petitioner\xe2\x80\x99s floodplain,\xe2\x80\x9d ante, at 2320, are more\nvaluable than a useless parcel of vacant land. Moreover, the\nduty to pay taxes and the responsibility for potential tort\nliability may well make ownership of the fee interest in\nDolan\xe2\x80\x99s attorney overstated the danger when he suggested at oral argument that\nwithout some requirement for proportionality, \xe2\x80\x9c[t]he City could have found that\nMrs. Dolan\xe2\x80\x99s new store would have increased traffic by one additional vehicle trip\nper day [and] could have required her to dedicate 75, 95 percent of her land for a\nwidening of Main Street.\xe2\x80\x9d Tr. of Oral Arg. 52-53.\n15\n\n667\n\n\x0cuseless land a liability rather than an asset. That may explain\nwhy Dolan never conceded that she could be prevented\nfrom building on the floodplain. The city attorney also\npointed out that absent a dedication, property owners\nwould be required to \xe2\x80\x9cbuild on their own land\xe2\x80\x9d and \xe2\x80\x9cwith\ntheir own money\xe2\x80\x9d a storage facility for the water runoff. Tr.\nof Oral Arg. 30-31. Dolan apparently \xe2\x80\x9cdid have that\noption,\xe2\x80\x9d but chose not to seek it. Id., at 31. If Dolan might\nhave been entitled to a variance confining the city\xe2\x80\x99s\ncondition in a manner this Court would accept, her failure\nto seek that narrower form of relief at any stage of the state\nadministrative and judicial proceedings clearly should\npreclude that relief in this Court now.\nThe Court\xe2\x80\x99s rejection of the bike path condition amounts\nto nothing more than a play on words. Everyone agrees\nthat the bike path \xe2\x80\x9ccould\xe2\x80\x9d offset some of the increased\ntraffic flow that the larger store will generate, but the\nfindings do not unequivocally state that it will do so, or tell\nus just how many cyclists will replace motorists. Predictions\non such matters are inherently nothing more than\nestimates. Certainly the assumption that there will be an\noffsetting benefit here is entirely reasonable and should\nsuffice whether it amounts to 100 percent, 35 percent, or\nonly 5 percent of the increase in automobile traffic that\nwould otherwise occur. If the Court proposes to have the\nfederal judiciary micro-manage state decisions of this kind,\nit is indeed extending its welcome mat to a significant new\nclass of litigants. Although there is no reason to believe that\nstate courts have failed to rise to the task, property owners\nhave surely found a new friend today.\nIV\nThe Court has made a serious error by abandoning the\ntraditional presumption of constitutionality and imposing a\nnovel burden of proof on a city implementing an\nadmittedly valid comprehensive land use plan. Even more\nconsequential than its incorrect disposition of this case,\n\n668\n\n\x0chowever, is the Court\xe2\x80\x99s resurrection of a species of\nsubstantive due process analysis that it firmly rejected\ndecades ago.16\nThe Court begins its constitutional analysis by citing\nChicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 17\nS.Ct. 581, 585, 41 L.Ed. 979 (1897), for the proposition\nthat the Takings Clause of the Fifth Amendment is\n\xe2\x80\x9capplicable to the States through the Fourteenth\nAmendment.\xe2\x80\x9d Ante, at 2316. That opinion, however,\ncontains no mention of either the Takings Clause or the\nFifth Amendment;17 it held that the protection afforded by\nthe Due Process Clause of the Fourteenth Amendment\nextends to matters of substance as well as procedure,18 and\nthat the substance of \xe2\x80\x9cthe due process of law enjoined by\nthe Fourteenth Amendment requires compensation to be\nmade or adequately secured to the owner of private\nproperty taken for public use under the authority of a\nState.\xe2\x80\x9d 166 U.S., at 235, 236-241, 17 S.Ct., at 584, 584-586.\nIt applied the same kind of substantive due process analysis\nmore frequently identified with a better known case that\naccorded similar substantive protection to a baker\xe2\x80\x99s liberty\ninterest in working 60 hours a week and 10 hours a day. See\nLochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed.\n937 (1905).19\n16\n\nSee, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).\n\nAn earlier case deemed it \xe2\x80\x9cwell settled\xe2\x80\x9d that the Takings Clause \xe2\x80\x9cis a limitation\non the power of the Federal government, and not on the States.\xe2\x80\x9d Pumpelly v.\nGreen Bay Co., 13 Wall. 166, 177, 20 L.Ed. 557 (1872).\n17\n\nThe Court held that a State \xe2\x80\x9cmay not, by any of its agencies, disregard the\nprohibitions of the Fourteenth Amendment. Its judicial authorities may keep within\nthe letter of the statute prescribing forms of procedure in the courts and give the\nparties interested the fullest opportunity to be heard, and yet it might be that its\nfinal action would be inconsistent with that amendment. In determining what is\ndue process of law regard must be had to substance, not to form.\xe2\x80\x9d Chicago, B. &\nQ.R. Co. v. Chicago, 166 U.S. 226, 234-235, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897).\n18\n\nThe Lochner Court refused to presume that there was a reasonable connection\nbetween the regulation and the state interest in protecting the public health. 198\n19\n\n669\n\n\x0cLater cases have interpreted the Fourteenth Amendment\xe2\x80\x99s\nsubstantive protection against uncompensated deprivations\nof private property by the States as though it incorporated\nthe text of the Fifth Amendment\xe2\x80\x99s Takings Clause. See,\ne.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480\nU.S. 470, 481, n. 10, 107 S.Ct. 1232, 1240, n. 10, 94 L.Ed.2d\n472 (1987). There was nothing problematic about that\ninterpretation in cases enforcing the Fourteenth\nAmendment against state action that involved the actual\nphysical invasion of private property. See Loretto v.\nTeleprompter Manhattan CATV Corp., 458 U.S. 419, 427433, 102 S.Ct. 3164, 3172-3175, 73 L.Ed.2d 868 (1982);\nKaiser Aetna v. United States, 444 U.S., at 178-180, 100\nS.Ct., at 392-393. Justice Holmes charted a significant new\ncourse, however, when he opined that a state law making it\n\xe2\x80\x9ccommercially impracticable to mine certain coal\xe2\x80\x9d had\n\xe2\x80\x9cvery nearly the same effect for constitutional purposes as\nappropriating or destroying it.\xe2\x80\x9d Pennsylvania Coal Co. v.\nMahon, 260 U.S. 393, 414, 43 S.Ct. 158, 159, 67 L.Ed. 322\n(1922). The so-called \xe2\x80\x9cregulatory takings\xe2\x80\x9d doctrine that the\nHolmes dictum20 kindled has an obvious kinship with the\nline of substantive due process cases that Lochner\nexemplified. Besides having similar ancestry, both doctrines\nare potentially open-ended sources of judicial power to\ninvalidate state economic regulations that Members of this\nCourt view as unwise or unfair.\nThis case inaugurates an even more recent judicial\ninnovation than the regulatory takings doctrine: the\napplication of the \xe2\x80\x9cunconstitutional conditions\xe2\x80\x9d label to a\nmutually beneficial transaction between a property owner\nU.S., at 60-61, 25 S.Ct., at 544. A similar refusal to identify a sufficient nexus\nbetween an enlarged building with a newly paved parking lot and the state interests\nin minimizing the risks of flooding and traffic congestion proves fatal to the city\xe2\x80\x99s\npermit conditions in this case under the Court\xe2\x80\x99s novel approach.\nSee Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S., at 484, 107 S.Ct.,\nat 1241 (explaining why this portion of the opinion was merely \xe2\x80\x9cadvisory\xe2\x80\x9d).\n20\n\n670\n\n\x0cand a city. The Court tells us that the city\xe2\x80\x99s refusal to grant\nDolan a discretionary benefit infringes her right to receive\njust compensation for the property interests that she has\nrefused to dedicate to the city \xe2\x80\x9cwhere the property sought\nhas little or no relationship to the benefit.\xe2\x80\x9d21 Although it is\nwell settled that a government cannot deny a benefit on a\nbasis that infringes constitutionally protected interests\xe2\x80\x9cespecially [one\xe2\x80\x99s] interest in freedom of speech,\xe2\x80\x9d Perry v.\nSindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33\nL.Ed.2d 570 (1972)-the \xe2\x80\x9cunconstitutional conditions\xe2\x80\x9d\ndoctrine provides an inadequate framework in which to\nanalyze this case.22\n\nAnte, at 2317. The Court\xe2\x80\x99s entire explanation reads: \xe2\x80\x9cUnder the well-settled\ndoctrine of \xe2\x80\x98unconstitutional conditions,\xe2\x80\x99 the government may not require a person\nto give up a constitutional right-here the right to receive just compensation when\nproperty is taken for a public use-in exchange for a discretionary benefit conferred\nby the government where the benefit sought has little or no relationship to the\nproperty.\xe2\x80\x9d\n21\n\nAlthough it has a long history, see Home Ins. Co. v. Morse, 20 Wall. 445, 451, 22\nL.Ed. 365 (1874), the \xe2\x80\x9cunconstitutional conditions\xe2\x80\x9d doctrine has for just as long\nsuffered from notoriously inconsistent application; it has never been an\noverarching principle of constitutional law that operates with equal force regardless\nof the nature of the rights and powers in question. See, e.g., Sunstein, Why the\nUnconstitutional Conditions Doctrine is an Anachronism, 70 B.U.L.Rev. 593, 620\n(1990) (doctrine is \xe2\x80\x9ctoo crude and too general to provide help in contested cases\xe2\x80\x9d);\nSullivan, Unconstitutional Conditions, 102 Harv.L.Rev. 1415, 1416 (1989) (doctrine\nis \xe2\x80\x9criven with inconsistencies\xe2\x80\x9d); Hale, Unconstitutional Conditions and\nConstitutional Rights, 35 Colum.L.Rev. 321, 322 (1935) (\xe2\x80\x9cThe Supreme Court has\nsustained many such exertions of power even after announcing the broad doctrine\nthat would invalidate them\xe2\x80\x9d). As the majority\xe2\x80\x99s case citations suggest, ante, at 2316,\nmodern decisions invoking the doctrine have most frequently involved First\nAmendment liberties, see also, e.g., Connick v. Myers, 461 U.S. 138, 143-144, 103\nS.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983); Elrod v. Burns, 427 U.S. 347, 361-363, 96\nS.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976) (plurality opinion); Sherbert v. Verner, 374\nU.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357\nU.S. 513, 518-519, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). But see Posadas de\nPuerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328, 345-346, 106 S.Ct.\n2968, 2979, 92 L.Ed.2d 266 (1986) (\xe2\x80\x9c[T]he greater power to completely ban casino\ngambling necessarily includes the lesser power to ban advertising of casino\ngambling\xe2\x80\x9d). The necessary and traditional breadth of municipalities\xe2\x80\x99 power to\nregulate property development, together with the absence here of fragile and easily\n\xe2\x80\x9cchilled\xe2\x80\x9d constitutional rights such as that of free speech, make it quite clear that\n22\n\n671\n\n\x0cDolan has no right to be compensated for a taking unless\nthe city acquires the property interests that she has refused\nto surrender. Since no taking has yet occurred, there has\nnot been any infringement of her constitutional right to\ncompensation. See Preseault v. ICC, 494 U.S. 1, 11-17, 110\nS.Ct. 914, 921-924, 108 L.Ed.2d 1 (1990) (finding takings\nclaim premature because property owner had not yet\nsought compensation under Tucker Act); Hodel v. Virginia\nSurface Mining & Reclamation Assn., Inc., 452 U.S. 264,\n294-295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981) (no\ntaking where no one \xe2\x80\x9cidentified any property \xe2\x80\xa6 that has\nallegedly been taken\xe2\x80\x9d).\nEven if Dolan should accept the city\xe2\x80\x99s conditions in\nexchange for the benefit that she seeks, it would not\nnecessarily follow that she had been denied \xe2\x80\x9cjust\ncompensation\xe2\x80\x9d since it would be appropriate to consider\nthe receipt of that benefit in any calculation of \xe2\x80\x9cjust\ncompensation.\xe2\x80\x9d See Pennsylvania Coal Co. v. Mahon, 260\nU.S., at 415, 43 S.Ct., at 160 (noting that an \xe2\x80\x9caverage\nreciprocity of advantage\xe2\x80\x9d was deemed to justify many laws);\nHodel v. Irving, 481 U.S. 704, 715, 107 S.Ct. 2076, 2082, 95\nL.Ed.2d 668 (1987) (such \xe2\x80\x9d \xe2\x80\x98reciprocity of advantage\xe2\x80\x99 \xe2\x80\x9d\nweighed in favor of a statute\xe2\x80\x99s constitutionality). Particularly\nin the absence of any evidence on the point, we should not\npresume that the discretionary benefit the city has offered\nis less valuable than the property interests that Dolan can\nretain or surrender at her option. But even if that\ndiscretionary benefit were so trifling that it could not be\nconsidered just compensation when it has \xe2\x80\x9clittle or no\nrelationship\xe2\x80\x9d to the property, the Court fails to explain why\nthe same value would suffice when the required nexus is\npresent. In this respect, the Court\xe2\x80\x99s reliance on the\n\xe2\x80\x9cunconstitutional conditions\xe2\x80\x9d doctrine is assuredly novel,\nand arguably incoherent. The city\xe2\x80\x99s conditions are by no\nthe Court is really writing on a clean slate rather than merely applying \xe2\x80\x9cwell-settled\xe2\x80\x9d\ndoctrine. Ante, at 2316.\n\n672\n\n\x0cmeans immune from constitutional scrutiny. The level of\nscrutiny, however, does not approximate the kind of review\nthat would apply if the city had insisted on a surrender of\nDolan\xe2\x80\x99s First Amendment rights in exchange for a building\npermit. One can only hope that the Court\xe2\x80\x99s reliance today\non First Amendment cases, see ante, at 2317 (citing Perry v.\nSindermann, supra, and Pickering v. Board of Ed. of\nTownship High School Dist. 205, Will Cty., 391 U.S. 563,\n568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)), and its\ncandid disavowal of the term \xe2\x80\x9crational basis\xe2\x80\x9d to describe its\nnew standard of review, see ante, at 2319, do not signify a\nreassertion of the kind of superlegislative power the Court\nexercised during the Lochner era.\nThe Court has decided to apply its heightened scrutiny to a\nsingle strand-the power to exclude-in the bundle of rights\nthat enables a commercial enterprise to flourish in an urban\nenvironment. That intangible interest is undoubtedly\nworthy of constitutional protection-much like the\ngrandmother\xe2\x80\x99s interest in deciding which of her relatives\nmay share her home in Moore v. East Cleveland, 431 U.S.\n494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). Both interests\nare protected from arbitrary state action by the Due\nProcess Clause of the Fourteenth Amendment. It is,\nhowever, a curious irony that Members of the majority in\nthis case would impose an almost insurmountable burden\nof proof on the property owner in the Moore case while\nsaddling the city with a heightened burden in this case.23\nThe author of today\xe2\x80\x99s opinion joined Justice Stewart\xe2\x80\x99s dissent in Moore v. East\nCleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). There the dissenters\nfound it sufficient, in response to my argument that the zoning ordinance was an\narbitrary regulation of property rights, that \xe2\x80\x9cif the ordinance is a rational attempt to\npromote \xe2\x80\x98the city\xe2\x80\x99s interest in preserving the character of its neighborhoods,\xe2\x80\x99\nYoung v. American Mini Theatres [Inc.,] 427 U.S. 50, 71 [96 S.Ct. 2440, 2452, 49\nL.Ed.2d 310 (1976) ] (opinion of STEVENS, J.), it is \xe2\x80\xa6 a permissible restriction on\nthe use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365 [47\nS.Ct. 114, 71 L.Ed. 303 (1926) ], and Nectow v. Cambridge, 277 U.S. 183 [48 S.Ct.\n447, 72 L.Ed. 842 (1928) ].\xe2\x80\x9d Id., 431 U.S., at 540, n. 10, 97 S.Ct., at 1956, n. 10. The\ndissent went on to state that my calling the city to task for failing to explain the\n23\n\n673\n\n\x0cIn its application of what is essentially the doctrine of\nsubstantive due process, the Court confuses the past with\nthe present. On November 13, 1922, the village of Euclid,\nOhio, adopted a zoning ordinance that effectively\nconfiscated 75 percent of the value of property owned by\nthe Ambler Realty Company. Despite its recognition that\nsuch an ordinance \xe2\x80\x9cwould have been rejected as arbitrary\nand oppressive\xe2\x80\x9d at an earlier date, the Court (over the\ndissent of Justices Van Devanter, McReynolds, and Butler)\nupheld the ordinance. Today\xe2\x80\x99s majority should heed the\nwords of Justice Sutherland:\n\xe2\x80\x9cSuch regulations are sustained, under\nthe complex conditions of our day, for\nreasons analogous to those which\njustify traffic regulations, which,\nbefore the advent of automobiles and\nrapid transit street railways, would\nhave been condemned as fatally\narbitrary and unreasonable. And in this\nthere is no inconsistency, for while the\nmeaning of constitutional guaranties\nnever varies, the scope of their\napplication must expand or contract to\nmeet the new and different conditions\nwhich are constantly coming within\nthe field of their operation. In a\nchanging world, it is impossible that it\nshould be otherwise.\xe2\x80\x9d Village of\nEuclid v. Ambler Realty Co., 272 U.S.\n365, 387, 47 S.Ct. 114, 118, 71 L.Ed.\n303 (1926).\n\nneed for enacting the ordinance \xe2\x80\x9dplace[d] the burden on the wrong party.\xe2\x80\x9d Ibid.\n(emphasis added). Recently, two other Members of today\xe2\x80\x99s majority severely\ncriticized the holding in Moore. See United States v. Carlton, 512 U.S. 26, 40-42,\n114 S.Ct. 2018, 2027, 129 L.Ed.2d 22 (1994) (SCALIA, J., concurring in judgment);\nsee also id., at 39, 114 S.Ct. at 2020 (SCALIA, J., concurring in judgment) (calling\nthe doctrine of substantive due process \xe2\x80\x9can oxymoron\xe2\x80\x9d).\n\n674\n\n\x0cIn our changing world one thing is certain: uncertainty will\ncharacterize predictions about the impact of new urban\ndevelopments on the risks of floods, earthquakes, traffic\ncongestion, or environmental harms. When there is doubt\nconcerning the magnitude of those impacts, the public\ninterest in averting them must outweigh the private interest\nof the commercial entrepreneur. If the government can\ndemonstrate that the conditions it has imposed in a land\nuse permit are rational, impartial and conducive to fulfilling\nthe aims of a valid land use plan, a strong presumption of\nvalidity should attach to those conditions. The burden of\ndemonstrating that those conditions have unreasonably\nimpaired the economic value of the proposed improvement\nbelongs squarely on the shoulders of the party challenging\nthe state action\xe2\x80\x99s constitutionality. That allocation of\nburdens has served us well in the past. The Court has\nstumbled badly today by reversing it.\nI respectfully dissent.\nJUSTICE SOUTER, dissenting.\nThis case, like Nollan v. California Coastal Comm\xe2\x80\x99n, 483\nU.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), invites the\nCourt to examine the relationship between conditions\nimposed by development permits, requiring landowners to\ndedicate portions of their land for use by the public, and\ngovernmental interests in mitigating the adverse effects of\nsuch development. Nollan declared the need for a nexus\nbetween the nature of an exaction of an interest in land (a\nbeach easement) and the nature of governmental interests.\nThe Court treats this case as raising a further question, not\nabout the nature, but about the degree, of connection\nrequired between such an exaction and the adverse effects\nof development. The Court\xe2\x80\x99s opinion announces a test to\naddress this question, but as I read the opinion, the Court\ndoes not apply that test to these facts, which do not raise\nthe question the Court addresses.\n\n675\n\n\x0cFirst, as to the floodplain and greenway, the Court\nacknowledges that an easement of this land for open space\n(and presumably including the five feet required for needed\ncreek channel improvements) is reasonably related to flood\ncontrol, see ante, at 2317-2318, 2320, but argues that the\n\xe2\x80\x9cpermanent recreational easement\xe2\x80\x9d for the public on the\ngreenway is not so related, see ante, at 2320-2321. If that is\nso, it is not because of any lack of proportionality between\npermit condition and adverse effect, but because of a lack\nof any rational connection at all between exaction of a\npublic recreational area and the governmental interest in\nproviding for the effect of increased water runoff. That is\nmerely an application of Nollan \xe2\x80\x98s nexus analysis. As the\nCourt notes, \xe2\x80\x9c[i]f petitioner\xe2\x80\x99s proposed development had\nsomehow encroached on existing greenway space in the\ncity, it would have been reasonable to require petitioner to\nprovide some alternative greenway space for the public.\xe2\x80\x9d\nAnte, at 2321. But that, of course, was not the fact, and the\ncity of Tigard never sought to justify the public access\nportion of the dedication as related to flood control. It\nmerely argued that whatever recreational uses were made of\nthe bicycle path and the 1-foot edge on either side were\nincidental to the permit condition requiring dedication of\nthe 15-foot easement for an 8-foot-wide bicycle path and\nfor flood control, including open space requirements and\nrelocation of the bank of the river by some 5 feet. It seems\nto me such incidental recreational use can stand or fall with\nthe bicycle path, which the city justified by reference to\ntraffic congestion. As to the relationship the Court\nexamines, between the recreational easement and a purpose\nnever put forth as a justification by the city, the Court\nunsurprisingly finds a recreation area to be unrelated to\nflood control.\nSecond, as to the bicycle path, the Court again\nacknowledges the \xe2\x80\x9ctheor[etically]\xe2\x80\x9d reasonable relationship\nbetween \xe2\x80\x9cthe city\xe2\x80\x99s attempt to reduce traffic congestion by\n\n676\n\n\x0cproviding [a bicycle path] for alternative means of\ntransportation,\xe2\x80\x9d ante, at 2318, and the \xe2\x80\x9ccorrect\xe2\x80\x9d finding of\nthe city that \xe2\x80\x9cthe larger retail sales facility proposed by\npetitioner will increase traffic on the streets of the Central\nBusiness District,\xe2\x80\x9d ante, at 2321. The Court only faults the\ncity for saying that the bicycle path \xe2\x80\x9ccould\xe2\x80\x9d rather than\n\xe2\x80\x9cwould\xe2\x80\x9d offset the increased traffic from the store, ante, at\n2322. That again, as far as I can tell, is an application of\nNollan, for the Court holds that the stated connection\n(\xe2\x80\x9ccould offset\xe2\x80\x9d) between traffic congestion and bicycle\npaths is too tenuous; only if the bicycle path \xe2\x80\x9cwould\xe2\x80\x9d offset\nthe increased traffic by some amount could the bicycle path\nbe said to be related to the city\xe2\x80\x99s legitimate interest in\nreducing traffic congestion.\nI cannot agree that the application of Nollan is a sound one\nhere, since it appears that the Court has placed the burden\nof producing evidence of relationship on the city, despite\nthe usual rule in cases involving the police power that the\ngovernment is presumed to have acted constitutionally.24\nHaving thus assigned the burden, the Court concludes that\nthe city loses based on one word (\xe2\x80\x9ccould\xe2\x80\x9d instead of\n\xe2\x80\x9cwould\xe2\x80\x9d), and despite the fact that this record shows the\nconnection the Court looks for. Dolan has put forward no\nevidence that the burden of granting a dedication for the\nbicycle path is unrelated in kind to the anticipated increase\nin traffic congestion, nor, if there exists a requirement that\nSee, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 594-596, 82 S.Ct. 987, 990, 8\nL.Ed.2d 130 (1962); United States v. Sperry Corp., 493 U.S. 52, 60, 110 S.Ct. 387,\n393-394, 107 L.Ed.2d 290 (1989). The majority characterizes this case as involving\nan \xe2\x80\x9cadjudicative decision\xe2\x80\x9d to impose permit conditions, ante, at 2390, n. 8, but the\npermit conditions were imposed pursuant to Tigard\xe2\x80\x99s Community Development\nCode. See, e.g., s 18.84.040, App. to Brief for Respondent B-26. The adjudication\nhere was of Dolan\xe2\x80\x99s requested variance from the permit conditions otherwise\nrequired to be imposed by the Code. This case raises no question about\ndiscriminatory, or \xe2\x80\x9creverse spot,\xe2\x80\x9d zoning, which \xe2\x80\x9csingles out a particular parcel for\ndifferent, less favorable treatment than the neighboring ones.\xe2\x80\x9d Penn Central\nTransp. Co. v. New York City, 438 U.S. 104, 132, 98 S.Ct. 2646, 2663, 57 L.Ed.2d\n631 (1978).\n24\n\n677\n\n\x0cthe relationship be related in degree, has Dolan shown that\nthe exaction fails any such test. The city, by contrast,\ncalculated the increased traffic flow that would result from\nDolan\xe2\x80\x99s proposed development to be 435 trips per day, and\nits Comprehensive Plan, applied here, relied on studies\nshowing the link between alternative modes of\ntransportation, including bicycle paths, and reduced street\ntraffic congestion. See, e.g., App. to Brief for Respondent\nA-5, quoting City of Tigard\xe2\x80\x99s Comprehensive Plan (\xe2\x80\x9d\n\xe2\x80\x98Bicycle and pedestrian pathway systems will result in some\nreduction of automobile trips within the community\xe2\x80\x99 \xe2\x80\x9c).\nNollan, therefore, is satisfied, and on that assumption the\ncity\xe2\x80\x99s conditions should not be held to fail a further rough\nproportionality test or any other that might be devised to\ngive meaning to the constitutional limits. As Members of\nthis Court have said before, \xe2\x80\x9cthe common zoning\nregulations requiring subdividers to \xe2\x80\xa6 dedicate certain\nareas to public streets, are in accord with our constitutional\ntraditions because the proposed property use would\notherwise be the cause of excessive congestion.\xe2\x80\x9d Pennell v.\nSan Jose, 485 U.S. 1, 20, 108 S.Ct. 849, 862, 99 L.Ed.2d 1\n(1988) (SCALIA, J., concurring in part and dissenting in\npart). The bicycle path permit condition is fundamentally\nno different from these.\nIn any event, on my reading, the Court\xe2\x80\x99s conclusions about\nthe city\xe2\x80\x99s vulnerability carry the Court no further than\nNollan has gone already, and I do not view this case as a\nsuitable vehicle for taking the law beyond that point. The\nright case for the enunciation of takings doctrine seems\nhard to spot. See Lucas v. South Carolina Coastal Council,\n505 U.S. 1003, 1076, 112 S.Ct. 2886, 2925, 120 L.Ed.2d 798\n(1992) (statement of SOUTER, J.).\n\n678\n\n\x0c4.6. German Takings Law\nSummary of German Law Relating to Compensation\nResulting from Land Use Planning\nFrom the Basic Law for the Federal Republic of\nGermany\n(Grundgesetz, GG)\nArticle 14 [Property, inheritance, expropriation]\n1. Property and the right of inheritance shall be guaranteed.\nTheir content and limits shall be defined by the laws.\n2. Property entails obligations. Its use shall also serve the\npublic good.\n3. Expropriation shall only be permissible for the public good.\nIt may only be ordered by or pursuant to a law that\ndetermines the nature and extent of compensation. Such\ncompensation shall be determined by establishing an\nequitable balance between the public interest and the\ninterests of those affected. In case of dispute respecting the\namount of compensation, recourse may be had to the\nordinary courts.\nThe following is a brief summary adapted from Takings International:\nA Comparative Perspective on Land Use Regulations and Compensation\nRights, Rachelle Alterman, ed., American Bar Association, 2010.\nThe chapter on the Federal Republic of Germany was authored by\nGerd Schmidt-Eichstaedt.\nUnder the Basic Law, compensation for expropriation must be\nprovided for in a law that expropriates. But even regulations that\nare not deemed expropriating may require compensation under\nother laws. Namely, sections 39-44 of the Federal Building Code\n(Baugesetzbuch) provide for compensation for injuries from land use\nplanning. Such causes of action are distinct from those claiming\ninjury from unlawful action under civil law.\n\n679\n\n\x0cLand Use Plans that Designate Private Property for Public Uses\nUnder German planning law, binding land-use plans (or B-plans)\nmay be relied upon by developers, and developments that comply\nwith these plans will usually be permitted. These plans may also\ndesignate privately held property for public uses, such as roads,\nschools, and environmental protection. Actually making the public\nuse requires the government to resort to expropriation procedures,\nbut often the lands are purchased through voluntary negotiation.\nA problem arises when there is a long interval between the plan\nand the realization of the public use. As might be guessed, it often\ntakes time to move from planning stages to implementation. If it\xe2\x80\x99s\nreasonable for the landowner to keep using his property during this\nperiod, then he must do so. He may not make improvements that\nincrease the value of the property, and thus what the public must\npay when the planned public use is ready to be implemented,\nwithout the consent of the government. If, on the other hand,\nmaintaining the current use is infeasible, the landowner may initiate\na claim for transfer of title, which would result in compensation.\nLesser, but still substantial, impacts on the current use may trigger\ncompensation for what is lost.\nLand use plans that grant public rights to walk or drive through\nproperty also result in compensation, at least where the property\xe2\x80\x99s\nvalue is reduced significantly.\nLand Use Plans that Alter Permitted Private Uses\nUnder section 42 of the Federal Building Code, a landowner is\nentitled to develop according to a B-plan for a period of seven\nyears after the plan\xe2\x80\x99s adoption. If the plan is altered during that\ntime, landowners are entitled to compensation for the reduction in\nproperty values, whether or not they have developed in accordance\nwith the plan. After seven years have elapsed, a change in the plan\nwill lead to compensation only if (1) it reduces the value of a use\nthe landowner is actually making, (2) the amended plan designates\nthe landowner\xe2\x80\x99s property for a public use, or (3) the uses the\namended plan allows the landowner to make are insubstantial. If\ndevelopment is made impossible by factors outside of the\n\n680\n\n\x0cdeveloper\xe2\x80\x99s control, such as a development moratorium, then this\nperiod is added to the seven years. And again, to the extent a plan\ninterferes with a current use, compensation is generally required, no\nmatter how long it has been since the plan was last changed.\nIn the United States, changes in plans that lead to less valuable uses\nare called \xe2\x80\x9cdownzonings.\xe2\x80\x9d And current uses that do not comply\nwith the new plan are called non-conforming uses. Many\njurisdictions in the U.S. permit non-conforming uses to continue,\ndespite the new zoning, for a certain period, until the landowner\nchanges the use, or until the ownership of the property changes.\nNot all downzonings in Germany are permitted. Courts may strike\nthem down as \xe2\x80\x9cbalancing errors\xe2\x80\x9d if they are not justified by what\nSchmidt-Eichstaedt calls \xe2\x80\x9csolid town planning principles.\xe2\x80\x9d This\nwould amount to a substantive attack on the plan, rather than a\nclaim that an otherwise legitimate plan triggered a compensation\nobligation.\nDevelopers may also seek compensation for specific development\nexpenditures made in reliance on an existing plan that was later\namended. This would result in compensation for engineering and\narchitectural services, for example, to the extent the new plan\nreduces their value.\nFinally, German law authorizes municipalities to freeze\ndevelopment during the preparation of a new plan. Without this\nauthority, developers might rush to develop, perhaps unwisely, and\nin ways that will make implementation of the new plan and its goals\ndifficult. The Federal Building Code authorizes a freeze when a\nmunicipality decides to prepare or amend a B-plan. This freeze lasts\nfor two years, but may be extended for an additional year. A fourth\nyear may be added to the freeze if \xe2\x80\x9cspecial circumstances\xe2\x80\x9d so\nrequire. No compensation is owed for development forestalled by\nthe freeze.\n\n681\n\n\x0cExcerpt from Gregory S. Alexander, Property as a\n\nFundamental Constitutional Right? The German\nExample\n88 Cornell L. Rev. 733 (2003)\nUnlike the U.S. Supreme Court, the German Constitutional Court\nhas been clear about the legal source used in defining what interests\nare protected as constitutional property.1 For Article 14 purposes,\nthe Basic Law itself defines the meaning of the term \xe2\x80\x9cownership\xe2\x80\x9d\n(Eigentum). Constitutional property is not limited to those interests\ndefined as property by nonconstitutional law (that is, the German\nCivil Code.) The Constitutional Court has clearly and consistently\nstated that the term \xe2\x80\x9cownership\xe2\x80\x9d (or \xe2\x80\x9cproperty\xe2\x80\x9d) has a broader\nmeaning under Article 14 than it has for private law purposes\nunder the Civil Code.\nAlthough the Court looks to the Basic Law to define the range of\nprotected interests, its approach is not one of direct textual\ninterpretation. Rather, it identifies the substantive interests that\nanimate the Basic Law as a whole. These interests serve as criteria\nused to distinguish those interests that count as constitutional\nproperty from those that do not. This strategy, although textually\nrooted, differs in important ways from the \xe2\x80\x9coriginalist\xe2\x80\x9d and\n\xe2\x80\x9ctraditionalist\xe2\x80\x9d approaches favored by conservative American\njudges and constitutional scholars. The German approach avoids\ntemporally freezing the meaning of constitutional property in any\nparticular historical moment, permitting Article 14\xe2\x80\x99s protection\nover time to embrace new and unprecedented sorts of interests.\nFor a lucid and insightful discussion of the muddled state of American\nconstitutional doctrine on this question, see Thomas W. Merrill, The Landscape of\nConstitutional Property, 86 Va. L. Rev. 885 (2000). The difference between the\nAmerican and German experiences may be due in part to the fact that the German\nBasic Law has a single property clause and a single property-dependent doctrine,\nwhile the American Constitution has two property clauses (the Fifth and\nFourteenth Amendments) and three property-dependent doctrines (the takings\ndoctrine of the Fifth Amendment and the procedural-due-process and substantivedue-process doctrines of the Fourteenth Amendment). Of course, the mere\nexistence of multiple references to property in the American Constitution does not\nnecessitate a multiplicity of meanings.\n1\n\n682\n\n\x0cBehind this approach to defining the constitutional limits of\ngovernmental power over property is a certain level of distrust of\nthe market as a reliable mechanism for serving the public good\n(Gemeinwohl) with respect to particular sorts of resources. This has\nbeen especially so with respect to natural resources. The Court has\nbeen remarkably solicitous of environmental regulations aimed at\nprotecting natural resources that the Court has characterized as\nbasic to human existence.\nAn important example of this development is the notorious series\nof \xe2\x80\x9cGroundwater Cases\xe2\x80\x9d (Na\xce\xb2sausskiesungsentscheidungen), litigated\nbefore the federal Supreme Civil Court (Bundesgerichtshof) as well as\nthe Constitutional Court. These cases, especially the Constitutional\nCourt\xe2\x80\x99s opinion, are among the most widely discussed\nconstitutional property cases in Germany of the past several\ndecades and are worth reflecting on to consider what they indicate\nabout current German legal attitudes toward property, the market,\nand the public weal.\nThe litigation concerned the constitutional validity of the 1976\namendments to the Federal Water Resources Act\n(Wasserhaushaltgesetz), first enacted in 1957. The most important of\nthese amendments was a provision requiring anyone wishing to\nmake virtually any use of surface or groundwater to obtain a\npermit. That amendment represented an extension of the Act\xe2\x80\x99s\nbasic premise, which declared that\nthe attainment of a sensible and useful\ndistribution of the surface water and\ngroundwater, in quantity and quality,\nfor the whole Federal Republic \xe2\x80\xa6 [can\nbe achieved only] if the free\ndisposition by private owners is\nrestricted and if the interest of the\npublic weal is the starting point for all\naction.\n\n683\n\n\x0cUnder the Act, the owner of the surface has no entitlement to such\na use permit; indeed, the permit must be denied wherever the\nproposed use threatens the \xe2\x80\x9cpublic weal.\xe2\x80\x9d\nThe plaintiff, who owned and operated a gravel pit, applied for a\npermit to use the water beneath his land. He had previously taken\ngroundwater for decades for the purpose of extracting gravel, but\nthe city denied him permission to continue doing so because his\nquarry operation threatened the city\xe2\x80\x99s water wells. He sued for\ndamages, claiming that the permit denial was an uncompensated\nexpropriation of his property that is unconstitutional under Article\n14 of the Basic Law.\nThe federal Supreme Civil Court, the highest civil court in\nGermany, held that the permit denial indeed violated the plaintiff\xe2\x80\x99s\nconstitutional property right and that the amendment to the Water\nResources Act was unconstitutional under Article 14(1). Under\nGerman law, however, only the Constitutional Court has the\nauthority to declare statutes unconstitutional, so the Supreme Civil\nCourt was required to submit the case to the Constitutional Court.\nThe latter Court held that the Water Resources Act was\nconstitutional and that the permit denial was not an expropriation\nof the plaintiff\xe2\x80\x99s constitutionally protected property. In the course\nof a long and extraordinarily complicated opinion, the Court\nsquarely rejected a conception of property that identifies as its\nprimary function the maximization of individual wealth. The Court\nstated, \xe2\x80\x9cFrom the constitutional guarantee of property the owner\ncannot derive a right to be permitted to make use of precisely that\nwhich promises the greatest possible economic advantage.\xe2\x80\x9d The\nCourt acknowledged that the constitutional guarantee of property\nin Article 14(1) prohibits the legislature from undermining the basic\nexistence of the right embedded in the private law of property in a\nway that removes or substantially impairs the guaranteed zone of\nfreedom under Article 14. The guarantee of the legal institution of\nproperty, the Court continued, is not encroached on, however,\nwhen the security and defense of resources that are vital to the\ncommon welfare of the public are placed under the authority of the\npublic, rather than the private, legal order.\n\n684\n\n\x0cWater is such a resource. The Court stated that, whatever the\nmeaning of ownership for private law purposes, the constitutional\nmeaning of land ownership has never entailed ownership of water\nbelow the surface. Legal rights concerning ground water are not\ndetermined by, or at least not primarily by, the ordinary rules of\nproperty law under the Civil Code (B\xc3\xbcrgerliches Gesetzbuch, or BGB),\nbecause property rights in groundwater are inherently and\nhistorically public, not private, in character.2 Private rights in land\nend when they reach the water level. Consequently, the Water\nResources Act, in subjecting the owner\xe2\x80\x99s ability to exploit\ngroundwater to a permit system, did not take from landowners any\nproperty right (Anspruch) that they ever had under the Constitution.\nSo, the German Constitutional Court regards water as special, too\nimportant to be left completely to the market, or private ordering,\nto allocate. One is left, though, to answer the nagging question of\nwhy water is special. Why, exactly, do private property rights not\nextend to groundwater in the same way that they do to land? A\ncoherent, substantive answer to this question is absolutely\nnecessary if one is to assuage the Supreme Civil Court\xe2\x80\x99s entirely\nunderstandable fear that regulatory measures like the Federal Water\nLaw have effectively erased the line between the social obligation\nof ownership, on the one hand, and expropriation, on the other. If\nregulatory measures limiting or even eliminating private rights to\nresources can always be rationalized as simply expressions of the\nSozialbindung, then hardly any protection against uncompensated\nexpropriations under Article 14(3) would remain. The doctrine of\nregulatory takings (enteignungsgleicher Eingriff) would be emptied of all\nThe Supreme Civil Court had reasoned that ownership of land confers ownership\nof water below the land relying on a provision of the Civil Code that states that\n\xe2\x80\x9c[t]he right of the owner of a parcel of land extends to the space above the surface\nand to the resources below the surface,\xe2\x80\x9d \xc2\xa7 905 BGB. American property lawyers\nwill recognize this norm as the counterpart to the common-law maxim usque ad\ncoelum et ad infernos (up to the sky and down to the depths). The Constitutional\nCourt never questioned that this is correct as a matter of private law, but it\nconcluded that the constitutional meaning of property is not determined solely by\nthe private-law meaning, but is determined by the constitution itself. BVerfGE 58\nat 335.\n2\n\n685\n\n\x0ccontent. In Justice Holmes\xe2\x80\x99s terms, it would be impossible to say\nthat a regulation \xe2\x80\x9cgoes too far.\xe2\x80\x9d\nUnfortunately, it was just at this most crucial stage that the\nConstitutional Court\xe2\x80\x99s analysis broke down. The Court relied on\ntwo factors, history and social need, to explain why property rights\nin water are so limited\xe2\x80\x93why groundwater is essentially or inherently\npublic in character. Historically, the Court pointed out, German\nprivate law has separated property rights concerning land and\nwater. This separation was constitutionally authorized at least since\nthe time of the German constitution of 1871, the Court noted.\nFine, but that does not answer the question; it only changes the\ncharacter of the question. Why has it historically been\nconstitutional to assign property rights in land to the private realm\nand rights in water to the public realm?\nThe Court gave more extended consideration to the functional role\nof water in society. As part of its reasoning that the Water Law falls\nwithin the \xe2\x80\x9ccontents and limits\xe2\x80\x9d (Inhalt und Schranken) of ownership\nof land, a matter over which the legislature has complete regulatory\nauthority,3 the Court emphasized that social changes occurring in\nthis century have necessitated certain adjustments in the legal\nregulation of water. Water has always been a vital resource to\nsociety, the Court pointed out, but it has become even more so in\nmodern German society.] As the Court observed, the processes of\ngrowing industrialization, urbanization, and construction have\nincreased the scarcity and social importance of water. The Court\ndeclared that\nwater is one of the most important\nbases of all of human, animal, and\nplant life. [Today] it is used not only\nfor drinking and personal use, but also\nThis statement requires an important caveat: Under Article 14(1), the legislature\nhas sole competence to define the \xe2\x80\x9ccontents and limits\xe2\x80\x9d of ownership, see\nGrundgesetz [GG] art. 14(1) (F.R.G.), but Article 19(2) requires that the\nConstitutional Court define the essence of the constitutionally protected property\nright, Grundgesetz [GG] art. 19(2) (F.R.G.) (\xe2\x80\x9cIn no case may the essential content\nof a basic right be encroached upon.\xe2\x80\x9d).\n3\n\n686\n\n\x0cas a factor of industrial production.\nBecause of these simultaneous yet\ndiverse demands, it was previously\nestablished\nas\na\nmatter\nof\nconstitutional law that an orderly water\nmanagement scheme was vital for the\npopulation as well as for the overall\neconomy.\nAt this point, one wants to say, yes, water is essential to life, but so\nare many other resources. Would the Court be prepared to hold\nthat the Basic Law does not recognize private property rights in all\nother natural resources that are necessary for life? Indeed, what\nabout land, which clearly also is essential to the existence of\nanimals and plants? Are we to surmise that private ownership of\nland is somehow being put in jeopardy? That hardly seems likely.\nThe point is that it begs the question simply to declare that because\ncertain resources are essential to human existence, the\nconstitutional status of property rights in those resources must\nsomehow be different from property rights in other resources.\nThere are, however, important differences between water and land.\nThe most obvious respect in which subterranean water differs from\nland, of course, is water\xe2\x80\x99s \xe2\x80\x9cfugitive,\xe2\x80\x9d or ambient character. Whereas\nland is necessarily immobile, underground water is not. The\nConstitutional Court alluded to this factor when discussing the\nfunctional significance of water. The Court emphasized that, as a\nhuman resource, water is now vital both for purposes of drinking\nand industry, and the increase in these social uses has brought the\ntwo more and more in conflict with each other. This is especially\ntrue in the case of groundwater, the Court noted. In that context,\nthere is an inevitable conflict between commercial uses such as\nexcavation of subsurface resources and the community interest in\nprotecting both the supply and quality of subterranean water. The\nconstitutional status of water must be determined by taking into\naccount the need to reconcile these conflicting social interests. The\nCourt concluded that the first priority must be to preserve the\nquality of drinking water; industrial uses of groundwater, such as\n\n687\n\n\x0cthe discharge of chemicals into it, simply cannot be left to the\ndiscretion of each owner of land parcels. Why? Why not rely on the\nmarket, predicated on private property rights, to achieve an\nefficient allocation of groundwater?\nAlthough the Court\xe2\x80\x99s answer here was a bit murky, its reasoning\nechoes points that some American property scholars have made\nconcerning the limits of the market as a means of allocating rights\nin groundwater. These scholars have pointed out that, left as a\ncommons, groundwater involves major problems with externalities,\nor spillover effects. Self-interest is not a reliable means of\nprotecting a resource whose use, especially given the resource\xe2\x80\x99s\nfugitive character, has substantial external effects. As Eric\nFreyfogle has stated, \xe2\x80\x9cIn the case of water, \xe2\x80\xa6 many external harms\naffect ecosystems and future generations, or are otherwise\nuncertain in scope and infeasible to calculate or trace.\xe2\x80\x9d Flowing\nwater, Freyfogle points out, is \xe2\x80\x9ccommunally embedded,\xe2\x80\x9d both in a\nsocial and an ecological sense. The ecological community includes\n\xe2\x80\x9csoils, plants, animals, microorganisms, nutrient flows, and\nhydrological cycles.\xe2\x80\x9d These two communities are themselves so\ninterdependent that a threat to one is a threat to the other. Under\nthese circumstances, any individual use of water profoundly affects\nthe entire community and directly implicates the common weal.\nAs the Constitutional Court stated, the major legal question is\nwhether shifting water regulation from the private to the public\nrealm can be constitutionally justified. The argument was made that\nindividual rights in groundwater are constitutionally inseparable\nfrom ownership of the surface. Rejecting this argument, the Court\nstated that federal regulation of groundwater use would not\neffectively empty landownership of all its content (Substanzentleerung\ndes Grundeigentums). Landownership would not become completely\nsubordinated to the social obligation. Merely subjecting the owner\xe2\x80\x99s\nright to use groundwater to regulatory approval does not remove\nthe entire use-interest from the bundle of rights. Even if it did, the\nCourt reasoned, there would be no constitutional violation because\nthe right to use groundwater is not a twig that is essential to private\nownership of the land. The Court stated that ownership of land is\n\n688\n\n\x0cvaluable primarily with respect to use of the surface, not\nsubterranean water. Even with respect to the surface, the\nConstitution permits regulation of various uses: \xe2\x80\x9cThe\nconstitutionally guaranteed right to property does not permit the\nowner to make use of just that use having the greatest economic\nvalue.\xe2\x80\x9d\nThe Court\xe2\x80\x99s second basis for the constitutional validity of the\nFederal Water Law did not involve the constitutional property right\nitself, but instead drew from the principle of equality. Article 3 of\nthe Constitution secures a principle of equality (das\nGleichbehandlungsgebot), which the Court has repeatedly stated\ninforms the meaning of other constitutional values, including\nproperty. The plaintiff had argued that the Federal Water Law\narbitrarily burdened him, thus violating his Article 3 equality right,\nbecause his quarry was located close to groundwater while other\nquarry owners were not affected. The Court had little difficulty\ndismissing that objection, pointing out that the regulation affected\nall similarly situated quarry owners equally.\nSimilarly, the regulation did not violate the constitutional principle\nof proportionality (Verhaltnism\xc3\xa4\xce\xb2igkeit), because no particular owner\nwas singled out to bear a disproportionate share of the burden\nnecessary to achieve the benefits sought by the statute.\nThe final significant aspect of the case concerns the recurrent\nproblem of legal transitions. The Federal Water Law denied the\nplaintiff a legal right that he once had and had previously exercised;\nhe had been quarrying gravel since 1936, and under the law existing\nat that time, the right of property clearly protected the right to use\ngroundwater. The Court directly confronted the familiar dilemma:\nstability versus dynamism. On the side of stability, the Court stated,\nIt would be incompatible with the content\nof the Constitution if the government were\nauthorized suddenly and without any\ntransitional period to block the continued\nexercise of property rights that had required\nsubstantial capital investment. Such a law\n\xe2\x80\xa6 would upset confidence in the stability\n\n689\n\n\x0cof the legal order, without which\nresponsible structuring and planning of life\nwould be impossible in the area of property\nownership.\nThe Court was equally frank about the need to avoid freezing the\ndistribution of property rights extant at any given time:\nThe constitutional guarantee of ownership\nexercised by the plaintiff does not imply\nthat a property interest, once recognized,\nwould have to be preserved in perpetuity or\nthat it could be taken away only by way of\nexpropriation [i.e., with compensation].\n[This Court] has repeatedly ruled that the\nlegislature is not faced with the alternative\nof either preserving old legal positions or\ntaking them away in exchange for\ncompensation every time an area of law is\nto be regulated anew.\nThe Constitution resolves this dilemma, the Court said, by\npermitting the legislature to \xe2\x80\x9crestructure individual legal positions\nby issuing an appropriate and reasonable transition rule whenever\nthe public interest merits precedence over some justified\nexpectation, based on continuity of practice, in the continuance of\na vested right.\xe2\x80\x9d The statute followed this constitutionally\nsanctioned path by providing a grace period of five years, during\nwhich owners could continue to use groundwater without a permit.\nBecause the Act did not take effect until thirty-one months after its\nenactment, the claimant effectively had almost eight years of\ncontinued use. Moreover, owners could get an extension if they\nhad filed for a permit. The consequence of these provisions in the\ninstant case, the Court noted, was that the plaintiff had been able\nto continue his gravel operations for some seventeen years after the\nstatute\xe2\x80\x99s enactment. Under these circumstances, the statute\xe2\x80\x99s\ntransition provisions reasonably accommodated the plaintiff\xe2\x80\x99s\neconomic interest.\nGerman constitutional scholars have debated whether the\n\xe2\x80\x9cGroundwater Cases\xe2\x80\x9d made obsolete the concept of a regulatory\n\n690\n\n\x0ctaking (enteignungsgleicher Eingriff, or equivalent expropriation). In\nAmerican terms, the question is whether there remains an inverse\ncondemnation action available to property owners. It is\nunderstandable why some scholars believe that there is not. The\nCourt did, after all, permit the legislature to wipe away, without\ncompensation, a discrete property right that had once been\nexpressly recognized. How could there be any circumstance, then,\nin which the legislative obliteration of a legally recognized property\ninterest would trigger the obligation to compensate? How could\nthere be any circumstance in which the legislature has \xe2\x80\x9cgone too\nfar\xe2\x80\x9d ?\nOne distinguished German scholar has argued that the case,\nproperly read, does not abolish the idea of compensation for\nregulatory takings. He points out that the Constitutional Court\nnever mentioned the doctrine of regulatory takings anywhere in its\nopinion. More significantly, subsequent developments in the case\nreveal that the possibility of compensation for a regulatory taking is\nfar from dead. Following the Constitutional Court\xe2\x80\x99s decision, the\ncase went back to the Supreme Court. That Supreme Court\nawarded the plaintiff compensation. It did so on the theory that,\nalthough the basic principle of property protection emerges from\nconstitutional principles, the particulars of protection must be\ndetermined based on nonconstitutional law (einfaches Recht). The\nrelevant nonconstitutional basis for state liability in the case, said\nthe Court, is the principle of individual sacrifice\n(Aufopferungsgedanke). If governmental action sacrifices an individual\nfor the benefit of the general public, the state is liable to\ncompensate the individual in an action that is similar to, but not\ntechnically, an \xe2\x80\x9cexpropriation,\xe2\x80\x9d as used in Article 14(3).4\nWhat really seems to be going on here is a tug-of-war game between the\nConstitutional Court and the Supreme Civil Court, with the latter taking a more\nexpansive view of the state\xe2\x80\x99s obligation to compensate private owners for\ngovernmental encroachment of their property interests. In American terms, the\nconflict is somewhat analogous to the difference between the views of Justice\nBrennan and Chief Justice Rehnquist in the Penn Central case. See Penn Cent.\nTransp. Co. v. New York City, 438 U.S. 104 (1978). Ossenb\xc3\xbchl has expressed the\ninteresting idea that the alternative, nonconstitutional basis for compensation in\n4\n\n691\n\n\x0cThis debate has continued without any clear resolution, leaving this\naspect of German state liability law (Staatshaftungsrecht) in\nconsiderable confusion. Whatever its legal basis, the Supreme Civil\nCourt\xe2\x80\x99s decision does seem to leave open the possibility of\nmonetary compensation for regulatory takings. More interestingly,\nit creates the possibility of compensation without a taking in cases in\nwhich justice seems to demand it even though the Constitution\ndoes not.\nThree final comparative points about the \xe2\x80\x9cGroundwater Cases\xe2\x80\x9d\nneed to be made. First, the case makes clear that the German\nConstitutional Court, like its American counterpart, has rejected\nwhat in American takings literature has become known as\n\xe2\x80\x9cconceptual severance.\xe2\x80\x9d Conceptual severance, a term first coined\nby Margaret Jane Radin, means that every incident of ownership,\nevery twig in the bundle of rights, is itself ownership. The\nimplication of conceptual severance, of course, would be to\nstrengthen vastly the bite of the Takings Clause, because virtually\nevery regulation affecting private ownership of any resource would\nbecome a taking of ownership itself. The U.S. Supreme Court\xe2\x80\x99s\nreaction to conceptual severance has been somewhat ambiguous,\nbut the German Court clearly rejected it, at least with respect to the\nrelationship between land and subsurface resources. In fact, none\nof the Court\xe2\x80\x99s decisions under its constitutional property clause\nprovides any basis at all for supposing that the Court is prepared to\nentertain such an approach.\nThe second point concerns the Court\xe2\x80\x99s statement in the\n\xe2\x80\x9cGroundwater Cases\xe2\x80\x9d that the constitutional right to property does\nnot guarantee the right to exploit the resource for its highest\neconomic value. This statement indicates that German\nconstitutional protection of property is not rooted either in notions\nof wealth maximization or libertarianism. Eliminating those two\npossible theoretical bases of constitutional protection of property\ncases of regulatory takings should be customary law. That is, the concept of\nenteigungsgleicher Eingriff should be separated from Article 14 of the Grundgesetz and\ntreated as a matter of customary law.\n\n692\n\n\x0chas important implications for determining how a wide variety of\ncontemporary American takings disputes would be resolved under\nGerman law. Wetlands regulation is an obvious example.\nLandowners (especially farmers) whose parcels include regulated\nwetlands have been very vocal in recent years about their supposed\nconstitutional right to capture the full potential market value of the\naffected land. Using the Takings Clause, they have challenged\nwetlands regulations precisely on the ground that they deprive the\nowner of the ability to put the land to its highest economic use.\nWhether or not German courts might find another basis for\nstriking down wetlands regulations, they clearly would reject the\nbasic premise of the attack on American wetlands regulations.\nThe third respect in which American property lawyers can learn\nfrom the \xe2\x80\x9cGroundwater Cases\xe2\x80\x9d concerns the approach that the\nGerman Court took to determine that the property interest in\nquestion was what Carol Rose has called \xe2\x80\x9cinherently public\nproperty.\xe2\x80\x9d The Court focused on both the social necessity of the\nresource and the degree of social interdependence associated with\nthe resource and the conditions of contemporary society. What the\nCourt implicitly said was the following: Any use of flowing water\nby any single person or group of persons affects both the social\nand ecological communities in multiple ways, and it is unrealistic to\nsuppose that any given owner will take into account all of these\nexternal effects. Indeed, precisely because of the intensity of the\nsocial and ecological interdependence that characterizes flowing\nwater, no owner can possibly take into account all or even most of\nthe external effects of a given use when choosing among possible\nuses. The consequences of any given use by an individual are both\nwildly unpredictable and profoundly felt by the entire community.\nUnder such circumstances of intense interdependency, the\nboundary between meum and tuum is both meaningless and\ndangerously misleading. A resource whose use so profoundly\naffects the interdependent social and natural communities is\ninherently public and can only be regulated by public norms as\nexpressions of the common will. Under this view, the German\nFederal Water Law at issue in the \xe2\x80\x9cGroundwater Cases\xe2\x80\x9d is not\n\n693\n\n\x0credistributive. It does not take an asset from A and give it to B.\nRather, the statute is premised on the understanding that\ngroundwater, for constitutional purposes at least, is now and always\nhas been both A\xe2\x80\x99s and B\xe2\x80\x99s. It is not the state\xe2\x80\x99s property, but\nproperty that is \xe2\x80\x9cinherently public.\xe2\x80\x9d\n\n694\n\n\x0c'