Land Use

Christian Turner
Assistant Professor of Law
University of Georgia School of Law

eLangdell® Press 2012

About the Author
Christian Turner teaches courses in property, land use, legal
theory, and the regulation of information. His research interests
are in the public/private distinction and institutional analysis.
Drawing from his mathematical training, he is interested in both
the logic and illogic of the law— and in understanding seemingly
complex and diverse legal principles as consequences of basic,
trans-substantive ideas.
Prior to joining the faculty at the University of Georgia, Christian
was a Visiting Assistant Professor at Fordham Law School,
worked at Wiggin and Dana law firm in New Haven, and clerked
for Judge Guido Calabresi on the Second Circuit. He is a graduate
of Stanford Law School and holds a Ph.D. in mathematics from
Texas A&M University.

i

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Notices
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Fundamental Constitutional Right? The German Example, 88
Cornell L. Rev. 733, 754 (2003), from Cornell Law Review.
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iii

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Version 1: March 21, 2012

iv

Summary of Contents
About the Author ........................................................................ i
About eLangdell Press ............................................................... ii
Notices ...................................................................................... iii
Summary of Contents .................................................................v
Table of Contents .................................................................... vii
1. Preface ..................................................................................... 1

2. The Zoning System ................................................................5
2.1. Introduction ..........................................................................5
2.2. Variances ............................................................................ 29
2.3. Special Use Permits............................................................ 63
2.4. Comprehensive Planning ................................................... 74

3. Judicial Review ....................................................................116
3.1. Substantive Due Process ...................................................116
3.2. Adjudication and Quasi-Adjudication ............................. 152
3.3. Procedure ......................................................................... 182
3.4. Discriminatory Zoning ..................................................... 232
3.5. Anticompetitive Zoning ................................................... 243
3.6. Spot Zoning ...................................................................... 276
3.7. Contract Zoning ............................................................... 319
3.8. Nonconforming Uses ....................................................... 329
3.9. Vested Rights ................................................................... 364
3.10. Neighbor Consent Provisions......................................... 399

4. Regulatory Takings ............................................................ 451
4.1. Origins .............................................................................. 451
4.2. Theory .............................................................................. 474
4.3. Doctrine ............................................................................ 497
4.4. Procedural Issues ............................................................. 590

v

4.5. Exactions .......................................................................... 639
4.6. German Takings Law....................................................... 679

vi

Table of Contents
About the Author .......................................................................... i
About eLangdell Press................................................................. ii
Notices........................................................................................ iii
Summary of Contents ...................................................................v
Table of Contents ...................................................................... vii
1. Preface ....................................................................................... 1

2. The Zoning System..................................................................5
2.1. Introduction ...........................................................................5
A Sample State Zoning Enabling Act................................................... 5
Villiage of Euclid, Ohio, et al. v. Ambler Realty Co. ....................... 12

2.2. Variances .............................................................................. 29
Harrison v. Mayor and Board of Alderman of the City of Batesville
................................................................................................................... 29
Janssen v. Holland Charter Twp. Zoning Board of Appeals .......... 39
Simplex Technologies v. Town of Newington ................................. 46
Note ......................................................................................................... 52
Krummenacher v. City of Minnetonka .............................................. 54

2.3. Special Use Permits ............................................................. 63
Jones v. City of Carbondale.................................................................. 63
FSL Corp. v. Harrington....................................................................... 70
Note ......................................................................................................... 73

2.4. Comprehensive Planning ..................................................... 74
Hector v. City of Fargo ......................................................................... 74
Wolf v. City of Ely ................................................................................. 76
Pinecrest Lakes, Inc. v. Shidel.............................................................. 85
Note ....................................................................................................... 114

vii

3. Judicial Review .....................................................................116
3.1. Substantive Due Process .....................................................116
3.1.1. Federal Courts............................................................................ 116
Nectow v. City of Cambridge et al. ................................................... 116
Coniston Corporation v. Village of Hoffman Estates ................... 120
3.1.2. State Courts ................................................................................ 136
Twigg v. County of Will,255 Ill. App.3d 490 .................................. 136
Amberwood Development Corporation v. Board of Appeals of
Boxford.................................................................................................. 143

3.2. Adjudication and Quasi-Adjudication ............................... 152
Louis J. Fasano et al., Respondents, v. The Board of County
Commissioners of Washington County and A.G.S. Development
Company ............................................................................................... 152
Board of County Commissioners of Brevard County ................... 166

3.3. Procedure ........................................................................... 182
Frank S. Griswold v. City of Homer ................................................ 182
In re McGlynn ...................................................................................... 199
Maxwell v. Carney ................................................................................ 208
Kearns-Tribune Corporation v. Salt Lake County Commission .. 209
Shanks v. Dressel ................................................................................. 225

3.4. Discriminatory Zoning ...................................................... 232
Village of Willowbrook v. Olech,528 U.S. 562 ............................... 232
Anup Enquist v. Oregon Department of Agriculture ................... 236

3.5. Anticompetitive Zoning ..................................................... 243
City of Columbia et al. v. Omni Outdoor Advertising .................. 243

3.6. Spot Zoning ....................................................................... 276
Frank S. Griswold v. City of Homer ................................................ 276
Covington v. The Town of Apex ...................................................... 296
Chrismon v. Guildford County ......................................................... 303

3.7. Contract Zoning ................................................................. 319
Chrismon v. Gilford County .............................................................. 319

viii

3.8. Nonconforming Uses......................................................... 329
City of Red Bank v. Phillips ............................................................... 329
Suffolk Asphalt Supply v. Board of Trustees of Village of
Westhampton Beach ........................................................................... 342
Trip Associates v. Mayor and City Council of Baltimore .............. 345

3.9. Vested Rights ..................................................................... 364
Metro. Dev. Comm’n v. Pinnacle Media ......................................... 364
Valley View Industrial Park, Respondent, v. The City of Redmond,
Appellant, .............................................................................................. 376

3.10. Neighbor Consent Provisions .......................................... 399
City of Chicago v. Stratton ................................................................. 399
Eubank v. City of Richmond ............................................................. 408
Cary v. City of Rapid City ................................................................... 413
Buckeye Community Hope Foundation v. City of Cuyahoga Falls
................................................................................................................. 423
City of Cuyahoga Falls, Ohio v. Buckeye Community Hope
Foundation ............................................................................................ 439

4. Regulatory Takings ............................................................. 451
4.1. Origins................................................................................ 451
Mugler v. Kansas .................................................................................. 451
Miller v. Schoene.................................................................................. 469

4.2. Theory ................................................................................ 474
Pennell v. City of San Jose.................................................................. 486

4.3. Doctrine ............................................................................. 497
4.3.1. Ad hoc Takings .......................................................................... 497
Penn Central Transportation Co., v. New York City,.................... 497
4.3.2. Per se Takings ............................................................................ 519
Lucas v. South Carolina Coastal ........................................................ 519
4.3.3. Per se vs. Ad hoc ....................................................................... 546
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency................................................................................... 546

ix

Lingle, Governor of Hawaii, et al. v. Chevron U.S.A. Inc. ........... 578

4.4. Procedural Issues ............................................................... 590
Williamson County Regional Planning Commission et al. v.
Hamilton Bank of Johnson City ........................................................ 590
San Remo Hotel, L.P. v. City and County of San Francisco ........ 613

4.5. Exactions ........................................................................... 639
Dolan v. City of Tigard,512 U.S. 374 ............................................... 639

4.6. German Takings Law ........................................................ 679
Summary of German Law Relating to Compensation Resulting
from Land Use Planning..................................................................... 679
From the Basic Law for the Federal Republic of Germany .......... 679
Excerpt from Gregory S. Alexander, Property as a Fundamental
Constitutional Right? The German Example ........................................... 682

x

1. Preface
This text explores the laws governing the use of land. Sometimes
narrowly focused, often intensely local, land use regulation may
give the impression of a highly specialized field with small stakes.
City councils and zoning officials wrestling over municipal code to
govern second stories, lot size, or sewage connections fails in the
abstract to arouse the passions of the legal battles over gay rights,
abortion, or even the milder controversies of the law of torts.
First impressions can be misleading. No matter how strongly
people may say they feel about the white hot issues of the day,
nothing can pack a government building full of angry citizens like a
dispute over zoning. From fighting the arrival of a Wal-Mart to the
regulation of density in residential neighborhoods to the protection
of wetlands and endangered species, it is the use of land that
evokes many of our most deeply felt convictions about the line
between private rights and public needs.
To appreciate the issues raised by disputes over land use and the
administrative and legal choices embedded in our legal system, this
casebook is organized in three major parts. A possible fourth part
is left for the classroom.
First, we will survey the ordinary, local administrative scheme of
land use regulation. The cases in this section are intended to
establish what that system is and what its standards are. We begin
with zoning and its blessing by the Supreme Court in Euclid. The
main idea is this: that local communities will establish a
heterogenous array of zones, that the map of the community will
then be painted with these different zones, and that regulations will
be uniform within zones and disparate among them. Nearly all else
in the ordinary scheme is a series of footnotes to this structure.
And the rest of the section provides many of these: variances,
special use permits, and comprehensive planning.
The casebook does not cover directly a number of regulations that
typically fall within this scheme. We will see some of them in cases
that follow, and your instructor may, as I do, lecture on several of

them, including the regulation of subdivisions, historic
preservation, and aesthetic regulation more generally. Once you
understand the administrative scheme, none of these is difficult to
pick up, and the judicial review implications are hardly different.
In the second part of the course, we will turn our attention to cases
illustrating litigation attacks on the ordinary administrative scheme.
The purpose here is not, as it was in the first part, to understand
better the standards the administrators should apply, but to
understand the constraints imposed on the contents of local laws,
the procedures of enactment and permitting, and the composition
of local lawmaking bodies. In other words, we move from
administrative description to various kinds of state and federal
Constitutional Law (recognizing that some constraints are not
described by courts applying them as emanating from a written
constitution - the point here is a more general one).
These attacks come in a number of flavors, and our problem with
respect to each is to discover the proper deference, if any, a court
should show the local bodies and what standard might best ole
rationalize that. First, a litigant may attack a local regulation or its
application for its substance, essentially asserting its stupidity,
wickedness, or, less dramatically, its inefficiency. A regulation that
barred shoe stores but allowed other clothing stores in a zone,
where there was no explanation of what purpose this might serve,
could be an example of such a regulation.
Second, a litigant may attack the distributional unfairness of a law.
Even if a law serves the public interest, it may do so by placing too
much burden on a small number of landowners. That poorly
allocated burden is an independent reason to consider setting such
a law aside.
Third, a law may be efficient and its burdens relatively equally
spread, and yet the law might be judged to impact too greatly
important aspects of individual autonomy. Regulations of signs,
religious uses, adult businesses, and the like tend to raise this sort
of concern.

2

In addition to these three concerns – efficiency, distribution, and
autonomy – we must recognize that deference to land use
regulators ought to be affected by a number of variables. First is
the ordinary impetus to deference to legislative policy judgments
that any court should have. But, when the court is federal, we must
consider both what deference a court owes a legislator and how
much the federal government should interfere in state and local
affairs. This doubly layered deference explains why federal courts
generally have very high bars to litigation that could be
characterized as turning them into boards of zoning appeals.
As if these two dimensions of consideration are not enough, we
must also understand that local bodies perform different kinds of
functions. They legislate. They make permit decisions, a bit like
adjudication. They also tend to be composed of nonprofessional
community members, members who have jobs and relationships
that are very likely to be affected, at least indirectly, by the matters
the local government considers.
Keep these three axes of problems in mind as we work through the
second Part, covering litigation raising substantive limits,
procedural requirements, and principles of delegation.
In the third part of the course, we focus on the distributive
concerns raised by land use regulation. The regulatory takings
doctrine has gone from, literally, nothing, to wrestling to
disentangle distributive concerns from substantive ones, to trying
to craft either rules or standards to identify regulations that go “too
far” and should be considered “takings” within the meaning of the
Fifth Amendment. We will consider what the doctrine’s purposes
are, how it should be governed, and how it should be invoked as a
procedural matter.
Finally, in a three-credit, one-semester course, I add three weeks
of “special topics.” Each week features a different topic, and I
use the opportunity to apply the general framework for
regulation and litigation to a particular set of disputes, in greater
depth. What topics I choose vary with the interests of the class.
But in the past, I have spent a week covering religious land uses

3

and the application of the Religious Land Use and
Institutionalized Persons Act. For that topic, the readings
comprised a DOJ report,1 excerpts from Greater Bible Way Temple
v. City of Jackson, 478 Mich. 373 (2007), Sts. Constantine and Helen
Greek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th Cir.
2005), various news articles on disputes involving mosques, the
brief of the United States in Estes v. Rutherford County Regional
Planning Comm’n,2 and the complaint in another mosque case.3 I
have also spent a special topics week on environmental law,
focusing both on federal and state environmental protection acts
and the environmental impact statement and on the Endangered
Species Act. For the latter, I have enjoyed using Stanford Law
School’s case study on the Delhi Sands Flower-Loving Fly.4

1http://www.justice.gov/crt/rluipa_report_092210.pdf
2

http://www.justice.gov/crt/spec_topics/religiousdiscrimination/rutherford_amicu
s_brief.pdf
3

http://religionclause.blogspot.com/2009/12/mosque-sues-to-challengerezoning.html
4 The description of this case study and links for those interested in obtaining

access can be found at:
http://www.law.stanford.edu/publications/casestudies/case_abstracts/#SLS9802
1

4

2. The Zoning System
2.1. Introduction
A Sample State Zoning Enabling Act
Section 1. Grant of Power
For the purpose of promoting health, safety, morals, or the
general welfare of the community, the legislative body of
cities and incorporated villages is hereby empowered to
regulate and restrict the height, number of stories and size
of buildings and other structures, the percentage of lot that
may be occupied, the size of yards, courts, and other open
spaces, the density of population and the location and use
of buildings, structures and land of trade, industry,
residence or other purposes.
Section 2. Districts
For any or all of said purposes the local legislative body
may divide the municipality into districts of such number,
shape, and area as may be deemed best suited to carry out
the purposes of this act; and within such districts it may
regulate and restrict the erection, construction,
reconstruction, alteration, repair, or use of buildings,
structures , or land. All such regulations shall be uniform
for each class or kind of building throughout each district,
but the regulations in one district may differ from those n
other districts.
Section 3. Purposes in View
Such regulations shall be made in accordance with a
comprehensive plan and designed to lessen congestion in
the streets; to secure safety from fire, panic, and other
dangers; to promote health and the general welfare; to
provide adequate light and air; to prevent the overcrowding
of land; to avoid undue concentration of population; to
facilitate the adequate provision of transportation, water,
sewerage, schools, parks, and other public requirements,
Such regulations shall be made with reasonable

consideration, among other things, to the character of the
district and its peculiar suitability for particular uses, and
with a view to conserving the value of buildings and
encouraging the most appropriate use of land throughout
such municipality.
Section 4. Method of Procedure
The legislative body of such municipality shall provide for
the manner in which such regulations and restrictions and
the boundaries of such districts shall be determined,
established, and enforced, and from time to time amended,
supplemented, or changed. However, no such regulation,
restriction, or boundary shall become effective until after a
public hearing in relation thereto, at which parties in
interest and citizens shall have an opportunity to be heard.
At least 15 days’ notice of the time and place of such
hearing shall be published in an official paper, or a paper of
general circulation, in such municipality.
Section 5. Changes
Such regulations, restrictions, and boundaries may from
time to time be amended, supplemented, changed,
modified, or repealed. In case, however, of a protest against
such change, signed by the owners of 20 per cent or more
either of the area of the lots included in such proposed
change, or of those immediately adjacent in the rear thereof
extending ______ feet there from, or of those directly
opposite thereto extending ______ feet from the street
frontage of such opposite lots, such amendment shall not
become effective except by the favorable vote of threefourths of all the members of the legislative body of such
municipality. The provisions of the previous section
relative to public hearings and official notice shall apply
equally to all changes or amendments.

6

Section 6. Zoning Commission
In order to avail itself of the powers conferred by this act,
such legislative body shall appoint a commission, to be
known as the zoning commission, to recommend the
boundaries of the various original districts and appropriate
regulations to be enforced therein. Such commission shall
make a preliminary report and hold public hearings thereon
before submitting its final report, and such legislative body
shall not hold its public hearings or take action until it has
received the final report of such commission. Where a city
plan commission already exists, it may be appointed as the
zoning commission.
Section 7. Board of Adjustments
Such local legislative body may provide for the
appointment of a board of adjustment, and in the
regulations and restrictions adopted pursuant to the
authority of this act may provide that the said board of
adjustment may, in appropriate cases and subject to
appropriate conditions and safeguards, make special
exceptions to the terms of the ordinance in harmony with
its general purpose and intent and in accordance with
general or specific rules therein contained.
The board of adjustment shall consist of five members,
each to be appointed for a term of three years and
removable for cause by the appointing authority upon
written charges and after public hearing. Vacancies shall be
filled for the unexpired term of any member whose term
becomes vacant.
The board shall adopt rules in accordance with the
provisions of any ordinance adopted pursuant to this act.
Meetings of the board shall be held at the call of the
chairman and at such other times as the board may
determine. Such chairman, or in his absence the acting
chairman, may administer oaths and compel the attendance

7

of witnesses. All meetings of the board shall be open to the
public. The board shall keep minutes of its proceedings,
showing the vote of each member upon each question, or,
if absent or failing to vote, indicating such fact, and shall
keep records of its examinations and other official actions,
all of which shall be immediately filed in the office of the
board and shall be a public record.
Appeals to the board of adjustment may be taken by any
person aggrieved or by any officer, department, board, or
bureau of the municipality affected by any decision of the
administrative officer. Such appeal shall be taken within a
reasonable time, as provided by the rules of the board, by
filing with the officer from whom the appeal is taken and
with the board of adjustment a notice of appeal specifying
the grounds thereof. The officer from whom the appeal is
taken shall forthwith transmit to the board all the papers
constituting the record upon which the action appealed
from was taken.
An appeal stays all proceedings in furtherance of the action
appealed from, unless the officer from whom the appeal is
taken certifies to the board of adjustment after the notice
of appeal shall have been filed with him that by reason of
facts stated in the certificate a stay would, in his opinion,
cause imminent peril to life or property. In such case
proceedings shall not be stayed otherwise than by a
restraining order which may be granted by the board of
adjustment or by a court of record on application on notice
to the officer from whom the appeal is taken and on due
cause shown.
The board of adjustment shall fix a reasonable time for the
hearing of the appeal, give public notice thereof, as well as
due notice to the parties in interest, and decide the same
within a reasonable time. Upon the hearing any party may
appear in person or by agent or by attorney. The board of
adjustment shall have the following powers:

8

To hear and decide appeals where it is alleged there is error
in any order, requirement, decision, or determination made
by an administrative official in the enforcement of this act
or of any ordinance adopted pursuant thereto.
To hear and decide special exceptions to the terms of the
ordinance upon which such board is required to pass under
such ordinance.
To authorize upon appeal in specific cases such variance
from the terms of the ordinance as will not be contrary to
the public interest, where, owing to special conditions, a
literal enforcement of the provisions of the ordinance will
result in unnecessary hardship, and so that the spirit of the
ordinance shall be observed and substantial justice done.
In exercising the above-mentioned powers such board may,
in conformity with the provisions of this act, reverse or
affirm, wholly or partly, or may modify the order,
requirement, decision, or determination appealed from and
may make such order, requirement, decision, or
determination as ought to be made, and to that end shall
have all the powers of the officer from whom the appeal is
taken.
The concurring vote of four members of the board shall be
necessary to reverse any order, requirement, decision, or
determination of any such administrative official, or to
decide in favor of the applicant on any matter upon which
it is required to pass under any such ordinance, or to effect
any variation in such ordinance.
Any person or persons, jointly or severally, aggrieved by
any decision of the board of adjustment, or any taxpayer, or
any officer, department, board, or bureau of the
municipality, may present to a court of record a petition,
duly verified, setting forth that such decision is illegal, in
whole or in part, specifying the grounds of the illegality.
Such petition shall be presented to the court within 30 days
after the filing of the decision in the office of the board.

9

Upon the presentation of such petition the court may allow
a writ of certiorari directed to the board of adjustment to
review such decision of the board of adjustment and shall
prescribe therein the time within which a return thereto
must be made and served upon the realtor’s attorney,
which shall not be less than 10 days and may be extended
by the court. The allowance of the writ shall not stay
proceedings upon the decision appealed from, but the
court may, on application, on notice to the board and on
due cause shown, grant a restraining order.
The board of adjustment shall not be required to return the
original papers acted upon by it, but it shall be sufficient to
return certified or sworn copies thereof or of such portions
thereof as may be called for by such writ. The return shall
concisely set forth such other facts as may be pertinent and
material to show the grounds of the decision appealed from
and shall be verified.
If, upon the hearing, it shall appear to the court that
testimony is necessary for the proper disposition of the
matter, it may take evidence or appoint a referee to take
such evidence as it may direct and report the same to the
court with his findings of fact and conclusions of law,
which shall constitute apart of the proceedings upon which
the determination of the court shall be made. The court
may reverse or affirm, wholly or partly, or may modify the
decision brought up for review.
Costs shall not be allowed against the board unless it shall
appear to the court that it acted with gross negligence, or in
bad faith, or with malice in making the decision appealed
from.
All issues in any proceeding under this section shall have
preference over all other civil actions and proceedings.

10

Section 8. Enforcement and Remedies
The local legislative body may provide by ordinance for the
enforcement of this act and of any ordinance or regulation
made there under. A violation of this act or of such
ordinance or regulation is hereby declared to be a
misdemeanor, and such local legislative body may provide
for the punishment thereof by fine or imprisonment or
both. It is also empowered to provide civil penalties for
such violation.
In case any building or structure is erected, constructed,
reconstructed, altered, repaired, converted, or maintained,
or any building, structure, or land is used in violation of this
act or of any ordinance or other regulation made under
authority conferred hereby, the proper local authorities of
the municipality, in addition to other remedies, may
institute any appropriate action or proceedings to prevent
such unlawful erection, construction, reconstruction,
alteration, repair, conversion, maintenance, or use, to
restrain, correct, or abate such violation, to prevent the
occupancy of said building, structure, or land, or to prevent
any illegal act, conduct, business, or use in or about such
premises.
Section 9. Conflict with other Laws
Wherever the regulations made under authority of this
act require a greater width or size of yards, courts, or
other open spaces, or require a lower height of building
or less number of stories, or require a greater percentage
of lot to be left unoccupied, or impose other higher
standards than are required in any other statute or local
ordinance or regulation, the provisions of the regulations
made under authority of this act shall govern. Wherever
the provisions of any other statute or local ordinance or
regulation require a greater width or size of yards, courts,
or other open spaces, or require a lower height of
building or a less number of stories, or require a greater

11

percentage of lot to be left unoccupied, or impose other
higher standards than are required by the regulations
made under authority of this act, the provisions of such
statute or local ordinance or regulation shall govern.
Villiage of Euclid, Ohio, et al. v. Ambler Realty Co.
272 U.S. 365 (1926).
Mr. James Metzenbaum, of Cleveland, Ohio, for appellants.
Messrs. Newton D. Baker and Robert M. Morgan, both of
Cleveland, Ohio, for appellee.
MR. JUSTICE SUTHERLAND delivered the opinion of the
Court.
The village of Euclid is an Ohio municipal corporation. It
adjoins and practically is a suburb of the city of Cleveland.
Its estimated population is between 5,000 and 10,000, and
its area from 12 to 14 square miles, the greater part of
which is farm lands or unimproved acreage. It lies, roughly,
in the form of a parallelogram measuring approximately 3
1/2 miles each way. East and west it is traversed by three
principal highways: Euclid avenue, through the southerly
border, St. Clair avenue, through the central portion, and
Lake Shore boulevard, through the northerly border, in
close proximity to the shore of Lake Erie. The Nickel Plate
Railroad lies from 1,500 to 1,800 feet north of Euclid
avenue, and the Lake Shore Railroad 1,600 feet farther to
the north. The three highways and the two railroads are
substantially parallel.
Appellee is the owner of a tract of land containing 68 acres,
situated in the westerly end of the village, abutting on
Euclid avenue to the south and the Nickel Plate Railroad to
the north. Adjoining this tract, both on the east and on the
west, there have been laid out restricted residential plats
upon which residences have been erected.
On November 13, 1922, an ordinance was adopted by the
village council, establishing a comprehensive zoning plan

12

for regulating and restricting the location of trades,
industries, apartment houses, two-family houses, single
family houses, etc., the lot area to be built upon, the size
and height of buildings, etc.
The entire area of the village is divided by the ordinance
into six classes of use districts, denominated U-1 to U-6,
inclusive; three classes of height districts, denominated H-1
to H-3, inclusive; and four classes of area districts,
denominated A-1 to A-4, inclusive. The use districts are
classified in respect of the buildings which may be erected
within their respective limits, as follows: U-1 is restricted to
single family dwellings, public parks, water towers and
reservoirs, suburban and interurban electric railway
passenger stations and rights of way, and farming, noncommercial greenhouse nurseries, and truck gardening; U-2
is extended to include two-family dwellings; U-3 is further
extended to include apartment houses, hotels, churches,
schools, public libraries, museums, private clubs,
community center buildings, hospitals, sanitariums, public
playgrounds, and recreation buildings, and a city hall and
courthouse; U-4 is further extended to include banks,
offices, studios, … [etc.] U-6 is further extended to include
plants for sewage disposal and for producing gas, garbage
and refuse incineration, scrap iron, junk, scrap paper, and
rag storage, aviation fields, cemeteries, crematories, penal
and correctional institutions, insane and feeble-minded
institutions, storage of oil and gasoline (not to exceed
25,000 gallons), and manufacturing and industrial
operations of any kind other than, and any public utility not
included in, a class U-1, U-2, U-3, U-4, or U-5 use. There is
a seventh class of uses which is prohibited altogether.
Class U-1 is the only district in which buildings are
restricted to those enumerated. In the other classes the uses
are cumulative-that is to say, uses in class U-2 include those
enumerated in the preceding class U-1; class U-3 includes
uses enumerated in the preceding classes, U-2, and U-1;

13

and so on. In addition to the enumerated uses, the
ordinance provides for accessory uses; that is, for uses
customarily incident to the principal use, such as private
garages. Many regulations are provided in respect of such
accessory uses.
The height districts are classified as follows: In class H-1,
buildings are limited to a height of 2 1/2 stories, or 35
feet… . To all of these, certain exceptions are made, as in
the case of church spires, water tanks, etc.
The classification of area districts is: In A-1 districts,
dwellings or apartment houses to accommodate more than
one family must have at least 5,000 square feet for interior
lots and at least 4,000 square feet for corner lots; … . The
ordinance contains, in great variety and detail, provisions in
respect of width of lots, front, side, and rear yards, and
other matters, including restrictions and regulations as to
the use of billboards, signboards, and advertising signs.
A single family dwelling consists of a basement and not less
than three rooms and a bathroom. A two-family dwelling
consists of a basement and not less than four living rooms
and a bathroom for each family, and is further described as
a detached dwelling for the occupation of two families, one
having its principal living rooms on the first floor and the
other on the second floor.
Appellee’s tract of land comes under U-2, U-3 and U-6.
The first strip of 620 feet immediately north of Euclid
avenue falls in class U-2, the next 130 feet to the north, in
U-3, and the remainder in U-6. The uses of the first 620
feet, therefore, do not include apartment houses, hotels,
churches, schools, or other public and semipublic buildings,
or other uses enumerated in respect of U-3 to U-6,
inclusive. The uses of the next 130 feet include all of these,
but exclude industries, theaters, banks, shops, and the

14

various other uses set forth in respect of U-4 to U-6,
inclusive.1
Annexed to the ordinance, and made a part of it, is a zone
map, showing the location and limits of the various use,
height, and area districts, from which it appears that the
three classes overlap one another; that is to say, for
example, both U-5 and U-6 use districts are in A-4 area
district, but the former is in H-2 and the latter in H-3
height districts. The plan is a complicated one, and can be
better understood by an inspection of the map, though it
does not seem necessary to reproduce it for present
purposes.
The lands lying between the two railroads for the entire
length of the village area and extending some distance on
either side to the north and south, having an average width
of about 1,600 feet, are left open, with slight exceptions, for
industrial and all other uses. This includes the larger part of
appellee’s tract. Approximately one-sixth of the area of the
entire village is included in U-5 and U-6 use districts. That
part of the village lying south of Euclid avenue is
principally in U-1 districts. The lands lying north of Euclid
avenue and bordering on the long strip just described are
included in U-1, U-2, U-3, and U-4 districts, principally in
U-2.
The enforcement of the ordinance is intrusted to the
inspector of buildings, under rules and regulations of the
1 The court below seemed to think that the frontage of this property on Euclid

avenue to a depth of 150 feet came under U-1 district and was available only for
single family dwellings. An examination of the ordinance and subsequent
amendments, and a comparison of their terms with the maps, shows very clearly,
however, that this view was incorrect. Appellee’s brief correctly interpreted the
ordinance: ‘The northerly 500 feet thereof immediately adjacent to the right of way
of the New York, Chicago & St. Louis Railroad Company under the original
ordinance was classed as U-6 territory and the rest thereof as U-2 territory. By
amendments to the ordinance a strip 630(620) feet wide north of Euclid avenue is
classed as U-2 territory, a strip 130 feet wide next north as U-3 territory and the
rest of the parcel to the Nickel Plate right of way as U-6 territory.

15

board of zoning appeals. Meetings of the board are public,
and minutes of its proceedings are kept. It is authorized to
adopt rules and regulations to carry into effect provisions
of the ordinance. Decisions of the inspector of buildings
may be appealed to the board by any person claiming to be
adversely affected by any such decision. The board is given
power in specific cases of practical difficulty or unnecessary
hardship to interpret the ordinance in harmony with its
general purpose and intent, so that the public health, safety
and general welfare may be secure and substantial justice
done. Penalties are prescribed for violations, and it is
provided that the various provisions are to be regarded as
independent and the holding of any provision to be
unconstitutional, void or ineffective shall not affect any of
the others.
The ordinance is assailed on the grounds that it is in
derogation of section 1 of the Fourteenth Amendment to
the federal Constitution in that it deprives appellee of
liberty and property without due process of law and denies
it the equal protection of the law, and that it offends against
certain provisions of the Constitution of the state of Ohio.
The prayer of the bill is for an injunction restraining the
enforcement of the ordinance and all attempts to impose or
maintain as to appellee’s property any of the restrictions,
limitations or conditions. The court below held the
ordinance to be unconstitutional and void, and enjoined its
enforcement, 297 F. 307.
Before proceeding to a consideration of the case, it is
necessary to determine the scope of the inquiry. The bill
alleges that the tract of land in question is vacant and has
been held for years for the purpose of selling and
developing it for industrial uses, for which it is especially
adapted, being immediately in the path or progressive
industrial development; that for such uses it has a market
value of about $10,000 per acre, but if the use be limited to
residential purposes the market value is not in excess of

16

$2,500 per acre; that the first 200 feet of the parcel back
from Euclid avenue, if unrestricted in respect of use, has a
value of $150 per front foot, but if limited to residential
uses, and ordinary mercantile business be excluded
therefrom, its value is not in excess of $50 per front foot.
It is specifically averred that the ordinance attempts to
restrict and control the lawful uses of appellee’s land, so as
to confiscate and destroy a great part of its value; that it is
being enforced in accordance with its terms; that
prospective buyers of land for industrial, commercial, and
residential uses in the metropolitan district of Cleveland are
deterred from buying any part of this land because of the
existence of the ordinance and the necessity thereby
entailed of conducting burdensome and expensive litigation
in order to vindicate the right to use the land for lawful and
legitimate purposes; that the ordinance constitutes a cloud
upon the land, reduces and destroys its value, and has the
effect of diverting the normal industrial, commercial, and
residential development thereof to other and less favorable
locations.
The record goes no farther than to show, as the lower court
found, that the normal and reasonably to be expected use
and development of that part of appellee’s land adjoining
Euclid avenue is for general trade and commercial
purposes, particularly retail stores and like establishments,
and that the normal and reasonably to be expected use and
development of the residue of the land is for industrial and
trade purposes. Whatever injury is inflicted by the mere
existence and threatened enforcement of the ordinance is
due to restrictions in respect of these and similar uses, to
which perhaps should be added-if not included in the
foregoing-restrictions in respect of apartment houses.
Specifically there is nothing in the record to suggest that
any damage results from the presence in the ordinance of
those restrictions relating to churches, schools, libraries,
and other public and semipublic buildings. It is neither

17

alleged nor proved that there is or may be a demand for
any part of appellee’s land for any of the last-named uses,
and we cannot assume the existence of facts which would
justify an injunction upon this record in respect to this class
of restrictions. For present purposes the provisions of the
ordinance in respect of these uses may therefore be put
aside as unnecessary to be considered. It is also unnecessary
to consider the effect of the restrictions in respect of U-1
districts, since none of appellee’s land falls within that class.
We proceed, then, to a consideration of those provisions of
the ordinance to which the case as it is made relates, first
disposing of a preliminary matter.
A motion was made in the court below to dismiss the bill
on the ground that, because complainant (appellee) had
made no effort to obtain a building permit or apply to the
zoning board of appeals for relief, as it might have done
under the terms of the ordinance, the suit was premature.
The motion was properly overruled, the effect of the
allegations of the bill is that the ordinance of its own force
operates greatly to reduce the value of appellee’s lands and
destroy their marketability for industrial, commercial and
residential uses, and the attack is directed, not against any
specific provision or provisions, but against the ordinance
as an entirety. Assuming the premises, the existence and
maintenance of the ordinance in effect constitutes a present
invasion of appellee’s property rights and a threat to
continue it… . .
It is not necessary to set forth the provisions of the Ohio
Constitution which are thought to be infringed. The
question is the same under both Constitutions, namely, as
stated by appellee: Is the ordinance invalid, in that it
violates the constitutional protection ‘to the right of
property in the appellee by attempted regulations under the
guise of the police power, which are unreasonable and
confiscatory’?

18

Building zone laws are of modern origin. They began in
this country about 25 years ago. Until recent years, urban
life was comparatively simple; but, with the great increase
and concentration of population, problems have developed,
and constantly are developing, which require, and will
continue to require, additional restrictions in respect of the
use and occupation of private lands in urban communities.
Regulations, the wisdom, necessity, and validity of which,
as applied to existing conditions, are so apparent that they
are now uniformly sustained, a century ago, or even half a
century ago, probably would have been rejected as arbitrary
and oppressive. Such regulations are sustained, under the
complex conditions of our day, for reasons analogous to
those which justify traffic regulations, which, before the
advent of automobiles and rapid transit street railways,
would have been condemned as fatally arbitrary and
unreasonable. And in this there is no inconsistency, for,
while the meaning of constitutional guaranties never varies,
the scope of their application must expand or contract to
meet the new and different conditions which are constantly
coming within the field of their operation. In a changing
world it is impossible that it should be otherwise. But
although a degree of elasticity is thus imparted, not to the
meaning, but to the application of constitutional principles,
statutes and ordinances, which, after giving due weight to
the new conditions, are found clearly not to conform to the
Constitution, of course, must fall.
The ordinance now under review, and all similar laws and
regulations, must find their justification in some aspect of
the police power, asserted for the public welfare. The line
which in this field separates the legitimate from the
illegitimate assumption of power is not capable of precise
delimitation. It varies with circumstances and conditions. A
regulatory zoning ordinance, which would be clearly valid
as applied to the great cities, might be clearly invalid as
applied to rural communities. In solving doubts, the maxim

19

‘sic utere tuo ut alienum non laedas,’ which lies at the
foundation of so much of the common low of nuisances,
ordinarily will furnish a fairly helpful clew. And the law of
nuisances, likewise, may be consulted, not for the purpose
of controlling, but for the helpful aid of its analogies in the
process of ascertaining the scope of, the power. Thus the
question whether the power exists to forbid the erection of
a building of a particular kind or for a particular use, like
the question whether a particular thing is a nuisance, is to
be determined, not by an abstract consideration of the
building or of the thing considered apart, but by
considering it in connection with the circumstances and the
locality. Sturgis v. Bridgeman, L. R. 11 Ch. 852, 865. A
nuisance may be merely a right thing in the wrong place,
like a pig in the parlor instead of the barnyard. If the
validity of the legislative classification for zoning purposes
be fairly debatable, the legislative judgment must be
allowed to control. Radice v. New York, 264 U. S. 292, 294.
There is no serious difference of opinion in respect of the
validity of laws and regulations fixing the height of
buildings within reasonable limits, the character of materials
and methods of construction, and the adjoining area which
must be left open, in order to minimize the danger of fire
or collapse, the evils of overcrowding and the like, and
excluding from residential sections offensive trades,
industries and structures likely to create nuisances.
[citations omitted]
Here, however, the exclusion is in general terms of all
industrial establishments, and it may thereby happen that
not only offensive or dangerous industries will be excluded,
but those which are neither offensive nor dangerous will
share the same fate. But this is no more than happens in
respect of many practice-forbidding laws which this court
has upheld, although drawn in general terms so as to
include individual cases that may turn out to be innocuous
in themselves. Hebe Co. v. Shaw, 248 U. S. 297, 303; Pierce Oil

20

Corp. v. City of Hope, 248 U. S. 498, 500. The inclusion of a
reasonable margin, to insure effective enforcement, will not
put upon a law, otherwise valid, the stamp of invalidity.
Such laws may also find their justification in the fact that, in
some fields, the bad fades into the good by such insensible
degrees that the two are not capable of being readily
distinguished and separated in terms of legislation. In the
light of these considerations, we are not prepared to say
that the end in view was not sufficient to justify the general
rule of the ordinance, although some industries of an
innocent character might fall within the proscribed class. It
cannot be said that the ordinance in this respect ‘passes the
bounds of reason and assumes the character of a merely
arbitrary fiat.’ Purity Extract Co. v. Lynch, 226 U. S. 192, 204.
Moreover, the restrictive provisions of the ordinance in this
particular may be sustained upon the principles applicable
to the broader exclusion from residential districts of all
business and trade structures, presently to be discussed.
It is said that the village of Euclid is a mere suburb of the
city of Cleveland; that the industrial development of that
city has now reached and in some degree extended into the
village, and in the obvious course of things will soon
absorb the entire area for industrial enterprises; that the
effect of the ordinance is to divert this natural development
elsewhere, with the consequent loss of increased values to
the owners of the lands within the village borders. But the
village, though physically a suburb of Cleveland, is
politically a separate municipality, with powers of its own
and authority to govern itself as it sees fit, within the limits
of the organic law of its creation and the state and federal
Constitutions. Its governing authorities, presumably
representing a majority of its inhabitants and voicing their
will, have determined, not that industrial development shall
cease at its boundaries, but that the course of such
development shall proceed within definitely fixed lines. If it
be a proper exercise of the police power to relegate

21

industrial establishments to localities separated from
residential sections, it is not easy to find a sufficient reason
for denying the power because the effect of its exercise is
to divert an industrial flow from the course which it would
follow, to the injury of the residential public, if left alone, to
another course where such injury will be obviated. It is not
meant by this, however, to exclude the possibility of cases
where the general public interest would so far outweigh the
interest of the municipality that the municipality would not
be allowed to stand in the way.
We find no difficulty in sustaining restrictions of the kind
thus far reviewed. The serious question in the case arises
over the provisions of the ordinance excluding from
residential districts apartment houses, business houses,
retail stores and shops, and other like establishments. This
question involves the validity of what is really the crux of
the more recent zoning legislation, namely, the creation and
maintenance of residential districts, from which business
and trade of every sort, including hotels and apartment
houses, are excluded. Upon that question this court has not
thus far spoken. The decisions of the state courts are
numerous and conflicting; but those which broadly sustain
the power greatly outnumber those which deny it altogether
or narrowly limit it, and it is very apparent that there is a
constantly increasing tendency in the direction of the
broader view….
As evidence of the decided trend toward the broader view,
it is significant that in some instances the state courts in
later decisions have reversed their former decisions holding
the other way. For example, compare State ex rel. v.
Houghton, supra, sustaining the power, with State ex rel.
Lachtman v. Houghton, 134 Minn. 226, State ex rel. Roerig v.
City of Minneapolis, 136 Minn. 479, and Vorlander v. Hokenson,
145 Minn. 484, denying it, all of which are disapproved in
the Houghton Case (page 151 (204 N. W. 569)) last decided.

22

The decisions enumerated in the first group cited above
agree that the exclusion of buildings devoted to business,
trade, etc., from residential districts, bears a rational relation
to the health and safety of the community. Some of the
grounds for this conclusion are promotion of the health
and security from injury of children and others by
separating dwelling houses from territory devoted to trade
and industry; suppression and prevention of disorder;
facilitating the extinguishment of fires, and the
enforcement of street traffic regulations and other general
welfare ordinances; aiding the health and safety of the
community, by excluding from residential areas the
confusion and danger of fire, contagion, and disorder,
which in greater or less degree attach to the location of
stores, shops, and factories. Another ground is that the
construction and repair of streets may be rendered easier
and less expensive, by confining the greater part of the
heavy traffic to the streets where business is carried on.
The Supreme Court of Illinois, in City of Aurora v. Burns,
supra, pages 93-95 (149 N. E. 788), in sustaining a
comprehensive building zone ordinance dividing the city
into eight districts, including exclusive residential districts
for one and two family dwellings, churches, educational
institutions, and schools, said:
The constantly increasing density of
our urban populations, the multiplying
forms of industry and the growing
complexity of our civilization make it
necessary for the state, either directly
or through some public agency by its
sanction, to limit individual activities
to a greater extent than formerly. With
the growth and development of the
state the police power necessarily
develops, within reasonable bounds, to
meet the changing conditions. …

23

… The harmless may sometimes be
brought within the regulation or
prohibition in order to abate or
destroy the harmful. The segregation
of industries, commercial pursuits, and
dwellings to particular districts in a
city, when exercised reasonably, may
bear a rational relation to the health,
morals, safety, and general welfare of
the community. The establishment of
such districts or zones may, among
other things, prevent congestion of
population, secure quiet residence
districts, expedite local transportation,
and facilitate the suppression of
disorder, the extinguishment of fires,
and the enforcement of traffic and
sanitary regulations. The danger of fire
and the of contagion are often
lessened by the exclusion of stores and
factories from areas devoted to
residences, and, in consequence, the
safety and health of the community
may be promoted. …
… The exclusion of places of business
from residential districts is not a
declaration that such places are
nuisances or that they are to be
suppressed as such, but it is a part of
the general plan by which the city’s
territory is allotted to different uses, in
order to prevent, or at least to reduce,
the congestion, disorder, and dangers
which often inhere in unregulated
municipal development.
The Supreme Court of Louisiana, in State v. City of New
Orleans, supra, pages 282, 283 (97 So. 444), said:

24

In the first place, the exclusion of
business
establishments
from
residence districts might enable the
municipal government to give better
police protection. Patrolmen’s beats
are larger, and therefore fewer, in
residence neighborhoods than in
business neighborhoods. A place of
business in a residence neighborhood
furnishes an excuse for any criminal to
go into the neighborhood, where,
otherwise, a stranger would be under
the ban of suspicion. Besides, open
shops invite loiterers and idlers to
congregate; and the places of such
congregations need police protection.
In the second place, the zoning of a
city into residence districts and
commercial districts is a matter of
economy is street paving. Heavy
trucks, hauling freight to and from
places of business in residence
districts, require the city to maintain
the same costly pavement in such
districts that is required for business
districts; whereas, in the residence
districts,
where
business
establishments are excluded, a cheaper
pavement serves the purpose. ….
Aside
from
considerations
of
economic administration, in the matter
of police and fire protection, street
paving,
etc.,
any
business
establishment is likely to be a genuine
nuisance in a neighborhood of
residences. Places of business are
noisy; they are apt to be disturbing at
night; some of them are malodorous;
some are unsightly; some are apt to

25

breed rats, mice, roaches, flies, ants,
etc. …
If the municipal council deemed any
of the reasons which have been
suggested, or any other substantial
reason, a sufficient reason for adopting
the ordinance in question, it is not the
province of the courts to take issue
with the council. We have nothing to
do with the question of the wisdom or
good policy of municipal ordinances.
If they are not satisfying to a majority
of the citizens, their recourse is to the
ballot-not the courts.
The matter of zoning has received much attention at the
hands of commissions and experts, and the results of their
investigations have been set forth in comprehensive
reports. These reports which bear every evidence of
painstaking consideration, concur in the view that the
segregation of residential, business and industrial buildings
will make it easier to provide fire apparatus suitable for the
character and intensity of the development in each section;
that it will increase the safety and security of home life,
greatly tend to prevent street accidents, especially to
children, by reducing the traffic and resulting confusion in
residential sections, decrease noise and other conditions
which produce or intensify nervous disorders, preserve a
more favorable environment in which to rear children, etc.
With particular reference to apartment houses, it is pointed
out that the development of detached house sections is
greatly retarded by the coming of apartment houses, which
has sometimes resulted in destroying the entire section for
private house purposes; that in such sections very often the
apartment house is a mere parasite, constructed in order to
take advantage of the open spaces and attractive
surroundings created by the residential character of the

26

district. Moreover, the coming of one apartment house is
followed by others, interfering by their height and bulk
with the free circulation of air and monopolizing the rays of
the sun which otherwise would fall upon the smaller
homes, and bringing, as their necessary accompaniments,
the disturbing noises incident to increased traffic and
business, and the occupation, by means of moving and
parked automobiles, of larger portions of the streets, thus
detracting from their safety and depriving children of the
privilege of quiet and open spaces for play, enjoyed by
those in more favored localities-until, finally, the residential
character of the neighborhood and its desirability as a place
of detached residences are utterly destroyed. Under these
circumstances, apartment houses, which in a different
environment would be not only entirely unobjectionable
but highly desirable, come very near to being nuisances.
If these reasons, thus summarized, do not demonstrate the
wisdom or sound policy in all respects of those restrictions
which we have indicated as pertinent to the inquiry, at least,
the reasons are sufficiently cogent to preclude us from
saying, as it must be said before the ordinance can be
declared unconstitutional, that such provisions are clearly
arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare. Cusack
Co. v. City of Chicago, supra, pages 530-531 (37 S. Ct. 190);
Jacobson v. Massachusetts, 197 U. S. 11, 30-31.
It is true that when, if ever, the provisions set forth in the
ordinance in tedious and minute detail, come to be
concretely applied to particular premises, including those of
the appellee, or to particular conditions, or to be
considered in connection with specific complaints, some of
them, or even many of them, may be found to be clearly
arbitrary and unreasonable. But where the equitable remedy
of injunction is sought, as it is here, not upon the ground of
a present infringement or denial of a specific right, or of a
particular injury in process of actual execution, but upon

27

the broad ground that the mere existence and threatened
enforcement of the ordinance, by materially and adversely
affecting values and curtailing the opportunities of the
market, constitute a present and irreparable injury, the
court will not scrutinize its provisions, sentence by
sentence, to ascertain by a process of piecemeal dissection
whether there may be, here and there, provisions of a
minor character, or relating to matters of administration, or
not shown to contribute to the injury complained of,
which, if attacked separately, might not withstand the test
of constitutionality. In respect of such provisions, of which
specific complaint is not made, it cannot be said that the
landowner has suffered or is threatened with an injury
which entitles him to challenge their constitutionality… . .
… . Under these circumstances, therefore, it is enough for
us to determine, as we do, that the ordinance in its general
scope and dominant features, so far as its provisions are
here involved, is a valid exercise of authority, leaving other
provisions to be dealt with as cases arise directly involving
them.
And this is in accordance with the traditional policy of this
court. In the realm of constitutional law, especially, this
court has perceived the embarrassment which is likely to
result from an attempt to formulate rules or decide
questions beyond the necessities of the immediate issue. It
has preferred to follow the method of a gradual approach
to the general by a systematically guarded application and
extension of constitutional principles to particular cases as
they arise, rather than by out of hand attempts to establish
general rules to which future cases must be fitted. This
process applies with peculiar force to the solution of
questions arising under the due process clause of the
Constitution as applied to the exercise of the flexible
powers of police, with which we are here concerned.
Decree reversed.

28

MR. JUSTICE VAN DEVANTER, MR. JUSTICE
MCREYNOLDS, AND MR. JUSTICE BUTLER dissent.
2.2. Variances
Harrison v. Mayor and Board of Alderman of the City
of Batesville
73 So.3d 1145 (Miss. 2011)
Paul B. Watkins, Jr., Pope S. Mallette, Oxford, attorneys for
appellants.
Benjamin E. Griffith, Daniel J. Griffith, Cleveland, Robert
T. Jolly, E. Patrick Lancaster, Olive Branch, Michael S.
Carr, Lauren Webb Carr, attorneys for appellees.
LAMAR, JUSTICE, for the Court:
In this certiorari case, we consider whether the Mayor and
the Batesville Board of Aldermen (collectively the “Board”)
erred in granting a variance to allow mining in an area
zoned single-family residential and community business.
The Mississippi Court of Appeals found that it had and
reversed and rendered. However, its opinion provided little
discussion of the applicable zoning ordinance governing
variances. That ordinance allows the Board to grant a
variance due to “practical difficulties or unnecessary
hardships.” While the Batesville Code does not define these
terms, this language originated in the 1920s and is used in
other jurisdictions. While the law and judicial
interpretations from other jurisdictions do not bind us, they
are helpful in cases where we have no precedent of our
own. Therefore, we look to those jurisdictions to aid us in
deciding whether the Board applied the correct legal
standard and whether its decision to grant the variance is
supported by substantial evidence.
Facts

29

Memphis Stone & Gravel Company submitted to the
Board a variance request to mine sand and gravel from
eighteen acres leased from various property owners. This
tract of land is zoned single-family residential (R-1) and
community business (C-2) and is contiguous with Memphis
Stone’s existing plant operation located in the county.
Under the Batesville Code, mining only can be a
conditional (as opposed to permitted) use in areas zoned
agricultural and industrial.
In support of its zoning application, Memphis Stone
attached maps of the area, promotional materials for the
company, and an operations narrative. The operations
narrative provided general information on the project and
mining process and also provided the following
information:
Based on national and local trends it
takes approximately 10 tons of
aggregate each year for new
construction and to maintain our
existing infrastructure. The growth in
Tate County [sic] demands a good
source of local aggregate. Memphis
Stone & Gravel Company believes this
deposit will be an asset to the local
economy and will likely be lost to
future residential development if not
managed
as
a
resource
for
construction material.
The variance request was first approved [unanimously] by
the City of Batesville Planning Commission… . . Next, the
Board held a public hearing on the variance request [and
approved the variance at the following meeting]. [A]t its
next meeting, a Board member moved to rescind the
variance grant, but the motion failed. The member then
moved to amend the order granting the variance so that it
would include various conditions. Before the Board

30

finalized the conditions, it heard from Paul Watkins, the
Harrisons’ attorney. Watkins stated that the Board’s
decision to grant a variance would change the character of
the land and constitute spot zoning, and that the record
before the Board contained no reason for its approval. He
asserted that Memphis Stone wanted the variance for
financial gain and convenience, which are insufficient to
show practical difficulty or unnecessary hardship. Watkins
also placed in the record a copy of a letter that he
previously had sent the Board. In his letter, Watkins argued
the variance would have a negative effect on surrounding
property, cause a nuisance, and fail to provide any
additional employment or tax base for the City.
The Board also heard from the president of Memphis
Stone, who addressed only the proposed conditions, one of
which was reclamation of the land to its original state. The
president stated that reclamation to the original state was
“impossible” since his company would be “taking out 40 to
60 [feet] of material … there is no way… to meet the same
topography that is there now. I’m going to have to create a
lake out there.” Ultimately, the Board upheld the variance
with the following conditions: (1) a two-and-one-half-year
time limit with review every six months; (2) operations
confined to weekdays from 7:00 a.m. to 5:00 p.m.; (3) the
erection and construction of berms to screen the project
from neighboring property and the road; (4) the watering
of objectionable dust; and (5) the imposition of fines for
any violations of the conditions.
The Harrisons appealed the variance to the circuit court[,
which] affirmed the Board’s decision to grant the variance.
It found the Batesville Code required proof of “practical
difficulties or unnecessary hardship” and that Memphis
Stone had provided “ample evidence” to justify the
variance. It noted that Memphis Stone had presented
“evidence of a public need for a good source of local
aggregate and the project would be a good asset for the

31

local community’s economy that will likely be lost to future
residential development based on the location of the
property.”
[T]he Court of Appeals reversed and rendered, finding the
variance constituted a “classic case of spot zoning.” And
“[n]otwithstanding that finding, [it went on to] determine
whether Memphis Stone proved that there was a public
need or a compelling reason for the variance.” It concluded
that the record lacked substantial evidence to support a
finding of public need or that the variance would be an
asset to the local economy. It further found that the record
“lacks evidence of any ‘practical difficulty or unnecessary
hardship’” without any analysis or explanation of those
terms. We granted certiorari to clarify the standards that
should apply when a zoning ordinance uses the language
“practical difficulties or unnecessary hardships” for
granting a variance.
Discussion
A variance generally is defined as the “right to use or to
build on land in a way prohibited by strict application of a
zoning ordinance.” The grant or denial of a variance is
adjudicatory, rather than legislative… . . This Court will
reverse only if the decision “1) is not supported by
substantial evidence, 2) is arbitrary or capricious, 3) is
beyond the scope or power granted to the agency, or 4)
violates one’s constitutional rights.” We review questions of
law under a de novo standard. [The court then decided that
even an improper grant of a variance does not constitute
illegal “spot zoning,” a concept we will study later.]
The Legislature has provided “the governing authority of
any municipality” with the power to enact zoning
regulations “for the purpose of promoting health, safety,
morals, or the general welfare of the community[.]”1 As
1 Miss.Code Ann. § 17-1-3(1) (Rev.2003). Section 17-1-3(1) provides:

32

previously noted, the Board had zoned the land at issue as
single-family residential and community commercial. But
Memphis Stone requested a variance to change the use of
this zoned area. A “use” variance is one of two types of
variances:
With a ‘use’ variance, the owner is
allowed to engage in a use of the land
prohibited by the zoning ordinance.
With a ‘nonuse,’ or ‘area’ variance, the
owner must comply with the zoning
ordinance’s limitations on use of the
land but is allowed to build or
maintain physical improvements that
deviate from the zoning ordinance’s
nonuse limitations.
And this Court noted the distinction in Drews:
Variances were conceived initially as a
means for granting relief from height,
bulk, and location restrictions in the
ordinances which rendered use of the
property impossible or impractical. No
conceptual problems arise when the
variance is granted to authorize minor
departures from the terms of the
ordinance; e.g. to permit a landowner
to place the structure on his lot nearer
the lot line than is permitted by the
set-back or side-yard requirements.
for the purpose of promoting health, safety, morals, or the
general welfare of the community, the governing authority
of any municipality… [is] empowered to regulate the
height, number of stories and size of building and other
structures, the percentage of lot that may be occupied, the
size of the yards, courts and other open spaces, the density
of population, and the location and use of buildings,
structures and land for trade, industry, residence or other
purposes….

Id.

33

Such relief does not authorize a use
inconsistent with the ordinance and,
consequently, does not constitute
rezoning under the guise of a
variance….
On the other hand, serious questions
arise when a variance is granted to
permit a use otherwise prohibited by
an ordinance; e.g., a service station or a
quick-stop grocery in a residential
district. The most obvious danger is
that the variance will be utilized to bypass procedural safeguards required
for valid amendment.
In reviewing the grant of a variance, we start with the
governing zoning ordinances. “A city must follow its
ordinance when granting [a] variance to a zoning
regulation.” The Batesville Code defines “variance” as “[a]
grant of permission… that authorizes the recipient to do
that which, according to the strict letter of this appendix, he
could not otherwise legally do.” The Batesville Code also
provides that the Board may “vary or modify the
application of any of the regulations or provisions of the
ordinance where there are practical difficulties or unnecessary
hardships in the way of carrying out the strict letter of this
ordinance, so that the spirit of this ordinance shall be
observed, public welfare and safety secured and substantial
justice done.”
The Batesville Code provides no definition or guidelines
for determining the meaning of “practical difficulties or
unnecessary hardships.” And neither the record nor the
Board’s decision provides any insight into what criteria it
used to determine the meaning of these terms. The Board
simply stated that the “variance is necessary in order to
avoid practical difficulties or unnecessary hardship on the
use and development of said property be [sic] and it is

34

hereby approved and said variance is hereby granted in said
application.”
While arguably the imposed conditions show the Board’s
effort to comply with the “spirit of the ordinance” so that
“public welfare and safety secured and substantial justice
[be] done[,]” they fail to shed any light upon what “practical
difficulties or unnecessary hardships” existed, authorizing
the Board to grant the variance. The Board merely
provided a conclusion with no findings of fact. As noted by
another jurisdiction when reviewing a variance grant,
“[f]indings of fact which show the actual grounds of a
decision are necessary for an intelligent review of a quasijudicial or administrative determination.” Similarly, in Barnes
v. Board of Supervisors, this Court ruled that Boards should
make findings of fact when granting or denying conditional
use permits, which are also quasi-judicial decisions.
Although in Barnes we upheld the Board’s decision despite
its failure to make specific findings of fact, we did so
because the record clearly supported the Board’s decision.
Here, the only “evidence” found in the record before this
Court was contained in Memphis Stone’s operations
statement: (1) that ten tons of aggregate is needed each year
for new construction and to maintain existing
infrastructure; (2) that it believes the deposit will be an asset
to the local economy; and (3) that the deposit would
otherwise be lost to future development.
The Harrisons argue that this does not constitute evidence
of hardship, and that nothing in the record shows that the
property is unsuitable for the purpose for which it is
zoned–residential and light commercial use. They further
argue that Memphis Stone failed to show that it would
suffer unusual hardship or difficulty greater than any other
resident in the city’s R-1 and C-2 districts. Conversely, the
Board argues that it found the variance would provide a
good source of local aggregate and a benefit to the local
economy. It also argues that its decision was based on its

35

common knowledge of the land and familiarity with the
ordinance.
The language “practical difficulties” and “unnecessary
hardships,” as well as other aspects of the Batesville zoning
ordinance, originated in a 1920 amendment to the General
City Law of New York and the Standard Zoning Act
prepared by the Department of Commerce in the 1920s.
The 1920 amendment provided that:
Where there are practical difficulties in
the way of carrying out the strict letter of
such ordinance, the board of zoning
appeals shall have the power to vary or
modify the application of any of the
regulations or provisions of such
ordinance relating to the use,
construction or alteration of buildings
or structures, or the use of land, so that
the spirit of the ordinance shall be observed,
public safety and welfare secured and
substantial justice done.
And the Standard Zoning Act provided that:
To authorize upon appeal in specific
cases such variance from the terms of
the ordinance as will not be contrary
to the public interest, where, owing to
special
conditions,
a
literal
enforcement of the provisions of the
ordinance will result in unnecessary
hardship, and so that the spirit of the
ordinance shall be observed and substantial
justice done.
While some courts view the terms “practical difficulty” and
“unnecessary hardship” as interchangeable, other
jurisdictions follow New York’s approach and hold that
“practical difficulty” applies to a nonuse or area variance

36

while “unnecessary hardship” applies to a use variance.
Jurisdictions that distinguish the two terms among nonuse
and use variances do so because “an area variance is a
relaxation of one or more incidental limitations to a
permitted use and does not alter the character of a district
as much as a use not permitted by the ordinance.” Even
those jurisdictions that construe “practical difficulties or
unnecessary hardships” together apply a more rigorous
standard for proving a use variance. Likewise, in Drews, we
noted the “serious questions” that arise when a Board
grants a use variance rather than a nonuse or area variance
and insinuated that a higher burden (e.g., unnecessary
hardship) applies to a use variance. Therefore, we follow
the New York approach and hold that the phrases
“practical difficulty” and “unnecessary hardship” apply to
nonuse and use variances respectively, as the applicable
zoning ordinance closely follows the 1920 New York
amendment. We adopt the following definition for
“unnecessary hardship”:
[T]he record must show that (1) the
land in question cannot yield a
reasonable return2 if used only for a
purpose allowed in that zone; (2) that
the plight of the owner is due to
unique3 circumstances [of the land for
which the variance is sought] and not
2 As noted by the Missouri Supreme Court in adopting the New York definition,

the landowner must establish “reasonable return” by submitting evidence that “he
or she will be deprived of all beneficial use of the property under any of the
permitted uses” and this requires “actual proof, often in the form of dollars and
cents evidence.” Matthew, 707 S.W.2d at 417.
3 “[U]niqueness does not require that only the parcel of land in question and none

other be affected by the condition that creates the hardship. What is required … is
that the hardship condition be sufficiently rare that if all similarly situated parcels in
the zoning district were granted variances the district would remain materially
unchanged.” Gail Gudder, Rathkopf’s the Law of Zoning and Planning, § 58:11
(Thomson/West Aug. 2006) (citing Matter of Douglaston Civic Ass’n v. Klein, 51
N.Y.2d 963, 435 N.Y.S.2d 705, 416 N.E.2d 1040 (N.Y.1980)).

37

to the general conditions in the
neighborhood which may reflect the
unreasonableness of the zoning
ordinance itself; and (3) that the use to
be authorized4 by the variance will not
alter the essential character of the
locality.
Whether the hardship is self-created is also relevant to the
determination of granting or denying a use variance.
Similarly, while not determinative of hardship, the Board
should consider the fact Memphis Stone entered into these
leases with actual or constructive knowledge that the land
was zoned R-1 and C-2. The Board also must ensure that
the variance complies with “the spirit of [the] ordinance”
and that “public welfare and safety [be] secured and
substantial justice done.” This requirement “limits the
authority of the board only with respect to the scope and
character of the relief to be granted by way of the
variance.”5
In reviewing the record in this case, we find no evidence
of “unnecessary hardship” as we now define that phrase.
We further find the definition for unnecessary hardship
does not take into account “public need” as Memphis
Stone argues (and the trial court found), but instead
focuses on any alleged “public detriment.”6 Because this
is a case of first impression, we vacate the decision of the
Court of Appeals and reverse the trial court, remanding
the case to the Board so the parties have the opportunity
4 A board should grant a use variance only if it is the “minimum that will afford

relief.” Id. at § 58.12.
5 Gudder, Rathkopf’s the Law of Zoning and Planning at § 58:9. In other words, the

Board does not have to grant the variance as requested; it may impose conditions
or otherwise modify the variance so that it is the “minimum that will afford relief.”
See fn.44 supra.
6 See generally id. at § 58:16 (public detriment is a factor in determining hardship,

while public detriment and public benefit are considered under practical difficulties).

38

to present it with evidence in compliance with this
opinion. Any evidence presented should be made part of
the record, and the Board should provide specific
findings of fact and conclusions of law to support any
decision in this matter.
Janssen v. Holland Charter Twp. Zoning Board of
Appeals
651 N.W.2d 464 (Mich. Ct. App. 2002)
Warner Norcross & Judd, L.L.P. by John H. Logie, Mark
K. Harder, and Christopher R. Uzpen, Holland, for John
W. Janssen and others.
Scholten and Fant, P.C. by Ronald A. Bultje and Linda S.
Howell, Grand Haven, for Holland Charter Township
Zoning Board of Appeals.
Cunnigham Dalman, P.C. by Andrew J. Mulder and Susan
E. Vroegop, Holland, for Barker Brokerage &
Development, Inc. and others.
PER CURIAM.
John W. Janssen and others appeal by leave granted from
the March 22, 2000, order of the circuit court affirming the
decision of defendant Holland Charter Township Zoning
Board of Appeals (ZBA) granting a use variance permitting
the construction of a 250-unit residential development in
an area zoned agricultural. We affirm.
In September 1996, appellees Henry A. and Doris J. Pyle
and Baker Brokerage & Development, Inc., filed an
application with the Holland Charter Township Board
requesting that certain parcels of property consisting of
approximately 115 acres be rezoned from the AAgricultural Zoning District to the R-1 Single Family
Residential Zoning District. The township’s planning
commission voted to recommend that the board deny the
rezoning application. Subsequently, these appellees
amended their application by removing one fifteen-acre

39

parcel, which left two contiguous parcels consisting of
approximately one hundred acres. Again, the planning
commission voted to deny the amended petition.
Thereafter, the Pyles and Baker filed a use variance request
with the ZBA. They sought to have the density
requirements changed so as to allow them to build a 400unit residential development on the property. After
appellee Vistiana Properties, LLC, purchased the property,
it and the Pyles filed an amended use variance petition, in
which they reduced the number of residential units from
400 to 250. Eventually, after holding public hearings, the
ZBA granted the use variance petition. Appellants then
contested the ZBA’s decision in the circuit court, and the
court upheld the ZBA’s decision.
Appellants first argue that the circuit court erred in
concluding that defendant ZBA’s decision to grant the use
variance did not constitute impermissible rezoning because
a one hundred-acre parcel is too large a parcel of land to be
the subject of a use variance. Upon review de novo, we
disagree.
The rules that determine when a zoning board of appeals
may grant a use variance make no mention of the size of a
parcel. A township zoning board of appeals is a municipal
administrative body whose duties include, among other
functions, the granting of variances. M.C.L. § 125.293
provides, in pertinent part, as follows:
Where there are practical difficulties or
unnecessary hardship in the way of
carrying out the strict letter of the
zoning ordinance, the board of appeals
in passing upon appeals may vary or
modify any of its rules or provisions so
that the spirit of the ordinance is
observed, public safety secured, and
substantial justice done.

40

Likewise, Holland Charter Township’s zoning ordinance
provides as follows:
Sec. 20.2 Jurisdiction and powers.
The board of appeals shall have
all powers and jurisdiction
granted by the zoning act, all
powers
and
jurisdiction
prescribed in other articles of the
ordinance and the following
specific
powers
and
jurisdiction….
C. The jurisdiction and power
to authorize, upon appeal, a
variance or modification of this
ordinance where there are
practical
difficulties
or
unnecessary hardship in the
way of carrying out the strict
letter of this ordinance so that
the spirit of this ordinance shall
be observed, public safety
secured and substantial justice
done.
The plain and ordinary language of both the statute and the
ordinance do not set forth any limitations based on the size
of the property owner’s parcel of land. To conclude, as
appellants urge, that the granting of a use variance to a large
parcel of land constitutes de facto rezoning, we would have
to, in effect, add an exclusion for such parcels to the above
statute and ordinance. “This, however, is beyond our
authority because courts may not legislate.” Brandon Charter
Twp. v. Tippett, 241 Mich.App. 417, 423, 616 N.W.2d 243
(2000).
Appellants next contend that the ZBA’s decision to grant
the use variance was not supported by competent, material,

41

and substantial evidence on the record. We disagree. The
decision of a zoning board of appeals should be affirmed
unless it is contrary to law, based on improper procedure,
not supported by competent, material, and substantial
evidence on the record, or an abuse of discretion. Reenders v.
Parker, 217 Mich.App. 373, 378, 551 N.W.2d 474 (1996).
A township zoning board of appeals has the authority to
vary or modify any zoning ordinance to prevent
unnecessary hardship if the spirit of the ordinance is
observed, the public safety is secured, and substantial
justice is done. To conclude that a property owner has
established unnecessary hardship, a zoning board of
appeals must find on the basis of substantial evidence that
(1) the property cannot reasonably be used in a manner
consistent with existing zoning, (2) the landowner’s plight is
due to unique circumstances and not to general conditions
in the neighborhood that may reflect the unreasonableness
of the zoning, (3) a use authorized by the variance will not
alter the essential character of a locality, and (4) the
hardship is not the result of the applicant’s own actions.
Johnson v. Robinson Twp., 420 Mich. 115, 125-126, 359
N.W.2d 526 (1984); Puritan-Greenfield Improvement Ass’n v.
Leo, 7 Mich.App. 659, 672-673, 677, 153 N.W.2d 162
(1967). We conclude that the Pyle appellees presented
sufficient evidence to establish each of these criteria.
“Whether property used in trade or business or held for the
production of income can reasonably be used for a purpose
consistent with existing zoning will, no doubt, ordinarily
turn on whether a reasonable return can be derived from
the property as then zoned.” Puritan-Greenfield at 673-674,
153 N.W.2d 162.11 Contrary to appellants’ argument on

1 The Puritan-Greenfield Court, supra at 674, 153 N.W.2d 162, cautioned that there

are circumstances where a “reasonable return” analysis would be improper when
deciding the “reasonable use” question. The example given was where the property
in issue was a single-family residence. While we agree that the reasonable return

42

appeal, the ZBA’s conclusion that appellee Vistiana could
not receive a reasonable economic return was not based on
some “hypothetical value.” Rather, the ZBA’s finding was
based on an analysis of the rental income received and the
taxes assessed on the property as zoned. In concluding that
the applicants established by substantial evidence that they
could receive no reasonable economic return for the
property as zoned, the ZBA noted that the annual rental
income for the farm was $6,000, and the annual rental
income for the two residences on the property yielded
$12,900. The ZBA further pointed out that the 1998 taxes
on the property amounted to $7,867.42. Thus, the ZBA
concluded that the applicants could not realize a reasonable
economic return, given the rental income from leasing the
farm and the two houses. We hold that the ZBA’s
conclusion that the property cannot reasonably be used in a
manner consistent with existing zoning was supported by
competent, material, and substantial evidence on the
record. Reenders, supra at 378, 551 N.W.2d 474.
We also believe this evidence supports the finding that the
hardship is not the result of the applicants’ own actions.
The increasing taxable value of the property and the
comparatively low rental income derived are not “selfcreated” burdens.
In addition, we hold that there was competent, material,
and substantial evidence to support the ZBA’s conclusion
that the use authorized by the variance would not alter the
essential character of the locality. In considering the
essential character of this locality, one cannot, and should
not, just look at the immediate neighboring properties. The
character of the locality is defined in broader strokes than
such a myopic viewpoint would provide.

analysis should not be relied on in certain cases, its application here is proper. Id.
See also Crawford, Michigan Zoning and Planning (3d ed.), § 6.03, pp. 164-165.

43

The underlying situation presented in the case at bar
involves the changing circumstances and character of this
community. With the growing consolidation of farming
operations throughout the country and the fewer children
willing to follow their parents into farming, the family farm,
once a mainstay of both the economic and cultural
landscape in rural America, has begun to disappear. See
Zeigler, Who will teach our farmers: Learning the value of mentor
programs from state and private programs, 5 Drake J. Agric. L.
279, 280 (2000). Appellants and appellees have found
themselves caught in the tide of this rural transformation.
In other words, the essential character of this community is
not immutable, and is, indeed, in a state of transition.
The use to be made of the subject property not only
recognizes this unfolding change in circumstances, but it
also takes measured steps to balance the pressures inherent
in this course of development. In granting the variance, the
ZBA explained that the proposed cluster housing
development will provide “a large area of open space
around the perimeter of the property, thereby maintaining a
buffer area between the proposed residential uses and the
surrounding agricultural property,” and further concluded
that this factor, as well as the other conditions imposed,
will ensure that the variance will not alter the locality’s
essential character. Included in the list of conditions is a
disclaimer to be included in all deeds conveying an interest
in the subject property that informs purchasers of the
neighboring farming activity and that further provides that,
under certain circumstances, the Michigan Right to Farm
Act2 protects a farm or farm operation from being
considered a public or private nuisance.
This leaves the question whether Vistiana’s plight was
unique to the property. The requirement that the
landowner’s plight be due to unique circumstances does
2 M.C.L. § 286.471 et seq.

44

not mean that the circumstances must exclusively affect
only the single landowner.3 Rather, “[t]he courts have
repeatedly emphasized that the hardship to be unique is
‘not shared by all others,’” Beatrice Block Club Ass’n v. Facen,
40 Mich.App. 372, 381, 198 N.W.2d 828 (1972), quoting
Tireman-Joy-Chicago Improvement Ass’n v. Chernick, 361 Mich.
211, 216, 105 N.W.2d 57 (1960) (emphasis supplied by
Facen Court).
While the subject property has no defining physical
characteristics such as size or topographical peculiarities
that make it unique, we do not believe this necessarily ends
the inquiry. See, e.g., Monaco v. Dist. of Columbia Bd. of Zoning
Adjustment, 407 A.2d 1091, 1097 (D.C., 1979) (examining
the actions of the zoning authorities and the zoning history
of the case). The uniqueness inquiry should not in all cases
be limited to an examination of whether there is a
uniqueness that inheres in the land itself. See Capitol Hill
Restoration Society, Inc. v. Dist. of Columbia Bd. of Zoning
Adjustment, 534 A.2d 939, 942 (D.C., 1987).
Appellees’ claim of “uniqueness” invites consideration of
their plight in light of the situation of other landowners in
the surrounding area. In making such a comparison, it
quickly becomes evident that it is not the unreasonableness
of the zoning ordinance that has led to appellees’ plight. As
the circuit court recognized, when the use variance was
granted, the township’s then current master plan
envisioned that, although zoned agricultural, the subject
land should eventually be used for residential purposes.
Indeed, before appellees’ request, the township had
approved approximately fifty other instances of residential
use of land in areas zoned agricultural. Thus, change in the
character of the locality has not only been countenanced by
the master plan, but the zoning history of the case reveals a
steady, incremental movement in that direction. We believe
3 Crawford, supra at § 6.03, p. 165.

45

that this shows that at the time the variance was sought, the
hardship alleged was not due to the general conditions then
existing in the area. In other words, the remedy does not
necessarily lie in amendment of the zoning ordinance itself.
Given the master plan’s recognition of potential future
growth specifically on lands zoned agricultural, we believe
that restrained and managed development, in part through
the issuance of use variances as the changing conditions
create unique hardships for those remaining agricultural
lands, is a reasoned approach. It satisfies the goals of
upholding the spirit of the ordinance, protects public
safety, and assures that substantial justice is done. Dowerk,
supra.Further, when a “landowner has made the requisite
showing of financial hardship and compatibility of the
proposed use with the character of the neighborhood, the
variance should be granted since to deny it [solely] on the
ground that ‘unique circumstances’ have not been shown
invites a potentially successful assault on the zoning
ordinance as being confiscatory.” In re Family of Woodstock,
Inc., 225 A.D.2d 854, 856, 638 N.Y.S.2d 825 (1996).
Affirmed.
Simplex Technologies v. Town of Newington
145 N.H. 727 (2001)
Gottesman and Hollis, P.A., of Nashua (Anna B. Hantz on the
brief), and Stebbins, Lazos & Van Der Beken, of Manchester
(Henry B. Stebbins on the brief and orally), for the plaintiff.
Peter J. Loughlin of Portsmouth, by brief and orally, for
defendant Town of Newington.
Boynton, Waldron, Doleac, Woodman & Scott, PA., of
Portsmouth, for defendant The Equitable Life Assurance
Society of the United States & The Fox Run Mall Joint
Venture, filed no brief.
H. Bernard Waugh, Jr., of Concord, by brief for the New
Hampshire Municipal Association, as amicus curiae.

46

NADEUA, J.
The plaintiff, Simplex Technologies, Inc. (Simplex), appeals
from an order of the Superior Court (Galway, J.), affirming
a decision of the Town of Newington Zoning Board of
Adjustment (ZBA) denying Simplex’s request for a variance
to develop a portion of its property that fronts Woodbury
Avenue. The defendants are the Town of Newington and
The Equitable Life Assurance Society of the United States
and the Fox Run Mall Joint Venture. We reverse and
remand.
Simplex owns ninety-two acres in Newington between the
Piscataqua River and Woodbury Avenue. For more than
thirty years Simplex has operated a manufacturing facility
on this land. Woodbury Avenue forms a boundary line
between industrial and commercial zoning districts in
Newington. All the property west of Woodbury Avenue,
including two shopping malls, was once in the industrial
zone but now lies within the commercial zone, across the
street from the Simplex property.
There are three other commercial businesses also located
on the east side of Woodbury Avenue, within the
commercial zone. North of the Simplex property along
Woodbury Avenue is a mini-mall located on a ten-acre lot
that was re-zoned for commercial use in 1983. A car
dealership and an electronics retail store are located south
of the Simplex property near the intersection of Woodbury
Avenue and Gosling Road on thirteen acres of commercial
property. The Bank of New Hampshire and the Great Bay
School operate within the industrial zone, but not with
industrial purposes; the bank operates as a nonpermitted
use and the school operates as a nonconforming use.
Seeking to develop 6.2 acres of its property abutting
Woodbury Avenue with a Barnes & Noble bookstore and a
family restaurant, Simplex requested use and area variances
for this property. The ZBA, determining that Simplex met

47

none of the five criteria for a variance, denied its requests.
Simplex appealed to the superior court, arguing that: (1) the
ZBA’s decision was unreasonable; (2) the Town was
estopped from enforcing the zoning ordinance against
Simplex because it was acting in a discriminatory fashion;
and (3) the zoning ordinance was unconstitutional on its
face and as applied to Simplex. The superior court ruled
that the ZBA’s determination was not unreasonable or
unlawful because Simplex did not meet the hardship criteria
for a variance and rejected Simplex’s municipal estoppel
argument. The superior court also rejected Simplex’s
constitutional arguments. This appeal followed.
….
We begin by looking at the present state of land use
variance law. To determine the validity of zoning laws, the
“police power and the right to private property must be
considered together as interdependent, the one qualifying
and limiting the other.” Metzger v. Town of Brentwood, 117
N.H. 497, 502, 374 A.2d 954, 957 (1977) (quotation
omitted). The purpose of a variance is to allow for “a
waiver of the strict letter of the zoning ordinance without
sacrifice to its spirit and purpose.” Husnander v. Town of
Barnstead, 139 N.H. 476, 478, 660 A.2d 477, 478 (1995). By
allowing variances “litigation of constitutional questions
may be avoided and a speedy and adequate remedy
afforded in cases where special conditions” exist. Bouley v.
Nashua, 106 N.H. 79, 84, 205 A.2d 38, 41 (1964)
(quotations omitted).
According to RSA 674:33, I(b), a zoning board of
adjustment may authorize a variance if the following
conditions are met: (1) the variance will not be contrary to
the public interest; (2) special conditions exist such that
literal enforcement of the ordinance results in unnecessary
hardship; (3) the variance is consistent with the spirit of the
ordinance; and (4) substantial justice is done. See RSA
674:33 (1996 & Supp. 2000). In addition, the board may

48

not grant a variance if it diminishes the value of
surrounding properties. See Ryan v. City of Manchester Zoning
Board, 123 N.H. 170, 173, 459 A.2d 244, 245 (1983). The
ZBA determined that Simplex failed to meet any of these
conditions. The superior court affirmed the ZBA’s
decision, analyzing only the question of unnecessary
hardship.
Our recent case law suggests that in seeking a variance, the
hardship requirement is the most difficult to meet. To
establish hardship, property owners must show that an
ordinance unduly restricts the use of their land. See
Governor’s Island Club v. Gilford, 124 N.H. 126, 130, 467 A.2d
246, 248 (1983). In Governor’s Island, we overturned the trial
court’s order affirming the ZBA’s grant of a variance,
stating: “For hardship to exist under our test, the
deprivation resulting from application of the ordinance
must be so great as to effectively prevent the owner from
making any reasonable use of the land.” Id.
In overturning the grant of a variance that allowed a
landowner to expand his pre-existing nonconforming
marina with a boat storage building, we stated: “The
uncontroverted fact that the Marina had been operating as
a viable commercial entity for several years prior to the
variance application is conclusive evidence that a hardship
does not exist.” Grey Rocks Land Trust v. Town of Hebron, 136
N.H. 239, 243, 614 A.2d 1048, 1050 (1992). As in other
cases, we emphasized that “[t]he uniqueness of the land,
not the plight of the owner, determines whether a hardship
exists.” Id. (quotation and citation omitted).
Dissenting in Grey Rocks, Justice Horton was critical of our
restrictive definition of hardship. He discussed the
similarity between our definition and a “substantial taking”
approach. See id. at 247, 614 A.2d at 1052 (Horton, J.,
dissenting). Under this approach, variances are very
difficult to obtain unless evidence establishes that the
property owner cannot use his or her property in any way.

49

See id. (Horton, J., dissenting). This approach “rejects any
claim of right to use property as one sees fit, no matter how
unobtrusive.” Id. (Horton, J., dissenting).
Though variances have been granted, their numbers have
been few, diminished undoubtedly by our reiterated and
restrictive definition of what constitutes an unnecessary
hardship. See, e.g., Husnander, 139 N.H. at 478-79, 660 A.2d
477 at 478-79.
Our current restrictive approach is inconsistent with our
earlier articulations of unnecessary hardship. In Fortuna v.
Zoning Board of Adjustment of Manchester, a car dealership was
granted a variance to expand its nonconforming use by
adding a garage within an apartment zoning district. See
Fortuna v. Zoning Board of Manchester, 95 N.H. 211, 212, 60
A.2d 133, 134 (1948). The record established that this
addition would reduce traffic, but would not diminish the
value of the surrounding properties. See id. at 212-13, 60
A.2d at 135. We found unnecessary hardship existed
because the ordinance interfered with the dealership’s right
to use its property as it saw fit and that its use did not
injure the public or private rights of others. See id. at 21314, 60 A.2d at 135.
Also, our restrictive approach is inconsistent with the
notion that zoning ordinances must be consistent with the
character of the neighborhoods they regulate. In Belanger v.
City of Nashua, the zoning board of adjustment denied a
land owner a variance to expand a nonconforming
commercial use from one room of her house to the whole
house. See Belanger v. City of Nashua, 121 N.H. 389, 430 A.2d
166 (1981). The surrounding area had changed substantially
since it was zoned for single family residential use. See id. at
393, 430 A.2d at 169. Emphasizing that municipalities must
coordinate their zoning ordinances to reflect the current
character of their neighborhoods, we upheld the trial
court’s order vacating the board’s decision. See id.

50

Finally, our restrictive approach is inconsistent with our
constitutional analysis concerning zoning laws. To
safeguard the constitutional rights of landowners, we insist
that zoning ordinances “must be reasonable, not arbitrary,
and must rest upon some ground of difference having a fair
and substantial relation to the object of the regulation.”
Town of Chesterfield v. Brooks, 126 N.H. 64, 69, 489 A.2d 600,
604 (1985) (quotation omitted).
Inevitably and necessarily there is a tension between zoning
ordinances and property rights, as courts balance the right
of citizens to the enjoyment of private property with the
right of municipalities to restrict property use. In this
balancing process, constitutional property rights must be
respected and protected from unreasonable zoning
restrictions. The New Hampshire Constitution guarantees
to all persons the right to acquire, possess, and protect
property. See N.H. CONST. pt. I, arts. 2, 12. These
guarantees limit all grants of power to the State that deprive
individuals of the reasonable use of their land.
We believe our definition of unnecessary hardship has
become too restrictive in light of the constitutional
protections by which it must be tempered. In consideration
of these protections, therefore, we depart today from the
restrictive approach that has defined unnecessary hardship
and adopt an approach more considerate of the
constitutional right to enjoy property. Henceforth,
applicants for a variance may establish unnecessary
hardship by proof that: (1) a zoning restriction as applied to
their property interferes with their reasonable use of the
property, considering the unique setting of the property in
its environment; (2) no fair and substantial relationship
exists between the general purposes of the zoning
ordinance and the specific restriction on the property; and
(3) the variance would not injure the public or private rights
of others.

51

While the trial court properly applied settled law, because
of our departure from the existing definition of hardship,
we remand this case to the superior court to determine
whether Simplex can establish unnecessary hardship under
this new standard.
Simplex also argues that the trial court erred in rejecting its
claim of municipal estoppel. Because Simplex did not raise
this issue in its notice of appeal or obtain leave of this court
to add the question, Simplex has waived the issue of
estoppel and we will not consider it. See SUP. CT. R.
16(3)(b); see also State v. Peterson, 135 N.H. 713, 714-15, 609
A.2d 749, 750-51 (1992).
Finally, Simplex argues that the enforcement of the zoning
ordinance was unconstitutional because the restriction
against commercial development was not equally applied to
other Woodbury Avenue landowners. We decide cases on
constitutional grounds only when necessary. See Olson v.
Fitzwilliam, 142 N.H. 339, 345, 702 A.2d 318, 322 (1997).
Because we reverse and remand on other grounds, we
decline to address the merits of Simplex’s constitutional
claims. See id.
Note
The standards in Simplex were subsequently superseded by the
New Hampshire legislature. Discussing these new standards in
Harborside Associates v. Parade Residence Hotel (N.H. 2011), the
New Hampshire Supreme Court stated:
RSA 674:33, I(b) allows a zoning board to grant a variance if: (1)
“[t]he variance will not be contrary to the public interest”; (2) “[t]he
spirit of the ordinance is observed”; (3) “[s]ubstantial justice is
done”; (4) “[t]he values of surrounding properties are not
diminished”; and (5) “[l]iteral enforcement of the provisions of the
ordinance would result in unnecessary hardship.”
RSA 674:33, I(b) contains two definitions of unnecessary hardship.
See RSA 674:33, I(b)(5)(A), (B). Under the first definition:

52

(A) … “[U]nnecessary hardship”
means that, owing to special
conditions of the property that
distinguish it from other properties in
the area:
(i) No fair and substantial relationship
exists between the general public
purposes of the ordinance provision
and the specific application of that
provision to the property; and
(ii) The proposed use is a reasonable
one.
RSA 674:33, I(b)(5)(A). The first definition of unnecessary
hardship is similar, but not identical, to the test that we adopted in
Simplex Technologies v. Town of Newington, 145 N.H. 727, 73132 (2001). See Laws 2009, 307:5 (statement of legislative intent that
first definition mirror Simplex test).
The statute provides that if an applicant fails to satisfy the first
definition of unnecessary hardship, then it may still obtain a
variance if it satisfies the second definition. See RSA 674:33,
I(b)(5)(B). Under the second definition:
[A]n unnecessary hardship will be
deemed to exist if, and only if, owing
to special conditions of the property
that distinguish it from other
properties in the area, the property
cannot be used in strict conformance
with the ordinance, and a variance is
therefore necessary to enable a
reasonable use of it.
Id. This definition of unnecessary hardship is similar, but not
identical, to the test for unnecessary hardship that we applied
before Simplex. See, e.g., Governor’s Island Club v. Town of
Gilford, 124 N.H. 126, 130 (1983); see also Laws 2009, 307:5

53

(statement of legislative intent that second definition mirror preSimplex test for unnecessary hardship “as exemplified by cases
such as Governor’s Island”).
The statute provides that these definitions apply “whether the
provision of the ordinance from which a variance is sought is a
restriction on use, a dimensional or other limitation on a
permitted use, or any other requirement of the ordinance.” RSA
674:33, I(b). The legislature’s statement of intent indicates that
the purpose of this provision was to “eliminate the separate
‘unnecessary hardship’ standard for ‘area’ variances” that we
adopted in Boccia v. City of Portsmouth, 151 N.H. 85, 92 (2004).
Laws
2009,
307:5.
Krummenacher v. City of Minnetonka
783 N.W.2d 721 (Minn. 2010)
Paul W. Chamberlain, Ryan R. Kuhlmann, Chamberlain
Law Firm, Wayzata, MN, for appellant.
George C. Hoff, Shelley M. Ryan, Hoff, Barry & Kozar,
P.A., Eden Prairie, MN, for respondent City of
Minnetonka.
James M. Susag, Larkin, Hoffman, Daly & Lindgren Ltd.,
Bloomington, MN, for respondent JoAnne Liebeler.
Susan L. Naughton, St. Paul, MN, for amicus curiae League
of Minnesota Cities.
GILDEA, Justice.
This case involves the decision of respondent City of
Minnetonka to grant a variance to respondent JoAnne
Liebeler so that she could expand her nonconforming
garage. Appellant Beat Krummenacher is Liebeler’s
neighbor and he challenges the City’s decision. The district
court upheld the City’s variance, and the court of appeals
affirmed. See Krummenacher v. City of Minnetonka, 768 N.W.2d
377, 384 (Minn.App.2009). Because we conclude that the
City applied the wrong standard to Liebeler’s variance

54

request, we reverse and remand to the City for
reconsideration under the correct standard.
….
Krummenacher argues that the City’s decision was arbitrary
and capricious because the City did not apply the proper
standard to determine whether Liebeler demonstrated
“undue hardship” as defined in Minn.Stat. § 462.357, subd.
6. This provision allows a city to grant a variance “from the
literal provisions of the ordinance in instances where their
strict enforcement would cause undue hardship because of
circumstances unique to the individual property under
consideration.” Minn.Stat. § 462.357, subd. 6.
Minnesota Statutes § 462.357, subd. 6, provides a definition
of “undue hardship,” and that definition requires that three
factors be met. Specifically, the statute defines “undue
hardship” as meaning,
the property in question cannot be put
to reasonable use if used under
conditions allowed by the official
controls, the plight of the landowner is
due to circumstances unique to the
property not created by the landowner,
and the variance, if granted, will not
alter the essential character of the
locality.
Id. To receive a variance, the applicant must show that he
or she meets all of the three statutory requirements of the
“undue hardship” test. Id. In addition to satisfying the
“undue hardship” requirement, the statute allows
municipalities to grant variances only “when it is
demonstrated that such actions will be in keeping with the
spirit and intent of the ordinance.” Id. Krummenacher
argues that Liebeler’s application does not meet any of the
requirements for “undue hardship.”

55

The first factor a variance applicant must establish to satisfy
the statute’s definition of “undue hardship” is that “the
property in question cannot be put to reasonable use if
used under conditions allowed by the official controls.”
Minn.Stat. § 462.357, subd. 6; see also Minnetonka City Code
§ 300.07.1(a). Krummenacher argues that based on the
plain and unambiguous language of the statute, a
municipality may grant a variance only when the property
cannot be put to any reasonable use without it. According
to Krummenacher, Liebeler had a reasonable use for her
garage without the addition of a yoga studio and craft
room–its current use as a storage space for vehicles.
Krummenacher argues therefore that the City did not have
the statutory authority to grant the variance.
The court of appeals rejected this argument, relying on its
decision in Rowell v. Board of Adjustment of Moorhead, 446
N.W.2d 917 (Minn.App.1989), rev. denied (Minn. Dec. 15,
1989). The court in that case interpreted the “undue
hardship” section of Minn.Stat. § 462.357, subd. 6, as
requiring a variance applicant to show that the “property
owner would like to use the property in a reasonable
manner that is prohibited by the ordinance.” Id. at 922.
The City urges that we should embrace the interpretation
of “undue hardship” from Rowell, and it appears from the
record that the Rowell “reasonable manner” standard is the
standard the City used in evaluating Liebeler’s request for a
variance. The City determined that the expansion of the
garage was a reasonable use of the property and that the
request met the other requirements of the statute.
Specifically, as reflected in the City Council Resolution, the
City found that “the proposal is reasonable” and with
respect to “undue hardship,” that “[t]here is an undue
hardship due to the topography of the site, width of the lot,
location of the driveway and existing vegetation.”
The plain language of the statute and our precedent compel
us to reject the City’s invitation to adopt Rowell’s

56

interpretation of “undue hardship.” The statute provides
that to prove “undue hardship,” the variance applicant
must show that “the property in question cannot be put to
a reasonable use” without the variance. Minn.Stat. §
462.357, subd. 6. Notwithstanding this language, the court
of appeals concluded that “[t]his provision does not mean
that a property owner must show the land cannot be put to
any reasonable use without the variance.” Rowell, 446
N.W.2d at 922. The court of appeals essentially rewrote the
statute to mean that a municipality may grant a variance
when the “property owner would like to use the property in
a reasonable manner that is prohibited by the ordinance.”
Id. at 922. Although the Rowell “reasonable manner”
standard has been used for over 20 years, we simply cannot
reconcile that standard with the plain language of the
statute.
The Rowell standard is also inconsistent with our precedent.
In support of the application of a “reasonable manner”
standard for determining “undue hardship,” Rowell cites
Curry v. Young, 285 Minn. 387, 173 N.W.2d 410 (1969), for
the proposition that a variance is “required where a setback
requirement would force a property owner to build a much
smaller structure.” Id. at 922. The version of Minn. Stat. §
462.357 in effect when Curry was decided did not contain
the definition of “undue hardship” that is in the current
version of the statute. See Minn.Stat. § 462.357 (1969).
Moreover, while we discussed in Curry the dimensions of a
structure that could theoretically be built to comply with
the statutory requirements, we based our determination
that the variance was properly granted on the municipality’s
ordinance. That ordinance required a showing of
“particular hardship,” and we concluded that the standard
was met because the “plaintiffs’ lot, in the absence of a
variance, would be unusable for any purpose.” Curry, 285
Minn. at 388-89, 396, 173 N.W.2d at 411, 415. The
standard we applied in Curry, is more rigorous than the

57

“reasonable manner” standard adopted in Rowell, and
appears consistent with the plain language of the first part
of the “undue hardship” definition that is in the current
statute. See Minn. Stat. § 462.357, subd. 6.
In addition, in formulating the “reasonable manner”
standard, the court in Rowell appears to have relied on the
“practical difficulties” standard. See Rowell, 446 N.W.2d at
922. But we have made a clear distinction between the
“practical difficulties” standard and the “undue hardship”
standard. See Stadsvold, 754 N.W.2d at 328-31. As we
explained in Stadsvold, the “practical difficulties” standard
applies to review of county decisions to grant area
variances, while the “undue hardship” standard applies to
all municipal decisions to grant variances. Id. at 327-28 & n.
2. Compare Minn.Stat. § 462.357, subd. 6, with Minn.Stat. §
394.27, subd. 7 (2008).
In Stadsvold, we interpreted Minn.Stat. § 394.27, subd. 7,
which sets forth the statutory standard for county
variances. This statute contains both the “practical
difficulties” standard and a “particular hardship” standard.
Specifically, section 394.27 authorizes a county to grant
variances from “the terms of any official control” but only
when the property owner would face “practical difficulties
or particular hardship” in meeting “the strict letter of any
official control.” Minn.Stat. § 394.27, subd. 7.1 We
1 The same dichotomy of language at issue in Stadsvold existed in the predecessor to

the municipal zoning statute, section 462.357. Until 1965, section 462.22 (enacted
in 1929, repealed in 1965) granted municipalities the power to vary or modify the
application of a zoning regulation where there were “practical difficulties or
unnecessary hardship” in complying with the strict letter of the regulation.
Minn.Stat. § 462.22 (1961). In 1965, the legislature replaced Minn.Stat. § 462.22
with Minn.Stat. § 462.357. Act of May 22, 1965, c. 670, § 7, 1965 Minn. Laws 995,
1000-03. The new statute replaced the “practical difficulties or unnecessary
hardship” standard with the current single “undue hardship” standard. Id. “Undue
hardship” was undefined in the statute until 1982, when the legislature, borrowing
the definition of “hardship” from the county variance statute, Minn.Stat. § 394.27,
added the current definition of “undue hardship” to the statute. Act of Mar. 22,
1982, ch. 507, § 22, 1982 Minn. Laws 592, 593

58

distinguished the “less rigorous ‘practical difficulties’”
standard that applies to area variance applications from the
more rigorous “particular hardship” standard that applies
to use variance applications. Stadsvold, 754 N.W.2d at 33031.
Adopting the Rowell “reasonable manner” standard would
be inconsistent with the distinction we made in Stadsvold
between the “practical difficulties” and “hardship”
standards. The legislature defined the “hardship” standard
in the county statute the same way it defined the “undue
hardship” standard in the municipal statute. Because the
legislature used the same language in both the county and
city variance statutes when defining “hardship,” our
analysis in Stadsvold requires us to conclude that the “undue
hardship” standard in Minn.Stat. § 462.357, subd. 6, is
more demanding than the “practical difficulties” standard
the court of appeals appears to have relied on in Rowell, 446
N.W.2d at 922.
Moreover, with respect to the “practical difficulties”
standard, we identified in Stadsvold several factors the
county should consider in assessing whether that standard
was met:
(1) how substantial the variation is in
relation to the requirement; (2) the
effect the variance would have on
government services; (3) whether the
variance will effect a substantial
change in the character of the
neighborhood or will be a substantial
detriment to neighboring properties;
(4) whether the practical difficulty can
be alleviated by a feasible method
other than a variance; (5) how the
practical difficulty occurred, including
whether the landowner created the
need for the variance; and (6) whether,

59

in light of all of the above factors,
allowing the variance will serve the
interests of justice.
754 N.W.2d at 331 (footnote omitted). Rowell’s
interpretation of the “undue hardship” standard, requiring
only that the proposed use be “reasonable,” would render
the “undue hardship” standard in section 462.357 less
stringent than the “practical difficulties” standard and
much less stringent than the “particular hardship” standard
in the county variance statute, which the “undue hardship”
standard appears to parallel. See Stadsvold, 754 N.W.2d at
331. In short, our analysis in Stadsvold simply does not leave
room for the Rowell “reasonable manner” standard.
We recognize that the standard we apply today, while
followed elsewhere, is not the universal rule.2 For example,
in Simplex Technologies, Inc. v. Town of Newington, 145 N.H.
727, 766 A.2d 713 (2001), the New Hampshire Supreme
Court provided a thorough and insightful review of the
development of land use variance law, and its practical
construction in modern times. The New Hampshire statute
did not contain a specific definition of “unnecessary
hardship,” like our statute does, and the court concluded
that its prior definition of the statutory term “unnecessary
hardship” “ha[d] become too restrictive in light of the
constitutional protections by which it must be tempered.”
Id. at 717. The New Hampshire Supreme Court framed the
issue in the following terms:
Inevitably and necessarily there is a
tension between zoning ordinances
and property rights, as courts balance
While most jurisdictions use the phrase “unnecessary hardship” rather than
“undue hardship” as the applicable standard, many jurisdictions appear to require
that the variance applicant establish real hardship if the variance is denied rather
than simply requiring that the applicant show the reasonableness of the proposed
use. [citations omitted]
2

60

the right of citizens to the enjoyment
of private property with the right of
municipalities to restrict property use.
In
this
balancing
process,
constitutional property rights must be
respected and protected from
unreasonable zoning restrictions.
Id. at 716-17. In light of these considerations, the New
Hampshire Supreme Court said that “unnecessary
hardship” would, in the future, be established when a
landowner showed that (1) a zoning restriction as applied
interferes with a reasonable use of the property,
considering the unique setting of the property in its
environment; (2) no fair and substantial relationship exists
between the general purposes of the zoning ordinance and
the specific restriction on the property; and (3) the variance
would not injure the public or private rights of others. Id. at
717.
Had the Minnesota Legislature not defined “undue
hardship” in Minn.Stat. § 462.357, subd. 6, we might
consider the approach articulated in Simplex. A flexible
variance standard allows municipalities to make modest
adjustments to the detailed application of a regulatory
scheme when a zoning ordinance imposes significant
burdens on an individual, and relief can be fashioned
without harm to the neighbors, the community, or the
overall purposes of the ordinance. See David W. Owens,
The Zoning Variance: Reappraisal and Recommendations for Reform
of a Much-Maligned Tool, 29 Colum. J. Envtl. L. 279, 317
(2004) (“If the variance power is to be used both as a
constitutional safeguard and as a tool for flexibility, zoning
enabling acts and local ordinances should be amended to
delineate these two purposes and set different standards for
each. The failure to make such a distinction underlies much
of the past controversy regarding variances. Courts and
commentators have traditionally viewed the variances as

61

the former–a very limited tool for avoidance of
constitutional infirmity in extraordinary cases. Most
variance petitions, and consequently most board of
adjustment decision-making, have viewed the variances as
the latter–a tool to provide flexible implementation rather
than constitutional infirmity.”).
We recognize that the Rowell “reasonable manner” standard
represents a longstanding interpretation of the undue
hardship standard in Minn.Stat. § 462.357, subd. 6, and that
Minnesota municipalities have been granting variances
under the “reasonable manner” standard for many years.
We also recognize that our decision will result in a
restriction on a municipality’s authority to grant variances
as compared with the “reasonable manner” standard. But
whatever value we may find in a more flexible standard,
particularly with regard to area variances, we cannot ignore
the plain language of the statute. See State v. Peck, 773
N.W.2d 768, 773 (Minn. 2009) (“We have no opportunity
to ignore part of the legislature’s definition.”). We are
unable to interpret the statutory language to mean anything
other than what the text clearly says–that to obtain a
municipal variance, an applicant must establish that “the
property in question cannot be put to a reasonable use if
used under conditions allowed by the official controls.”
Minn.Stat. § 462.357, subd. 6. Therefore, unless and until
the legislature takes action to provide a more flexible
variance standard for municipalities, we are constrained by
the language of the statute to hold that a municipality does
not have the authority to grant a variance unless the
applicant can show that her property cannot be put to a
reasonable use without the variance.
Based on the plain language of the statute, and our
precedent interpreting language similar to “undue
hardship” in the context of a local government’s authority
to grant variances, we reject the “reasonable manner”
standard from Rowell. We hold that the City inaccurately

62

applied the first factor in the “undue hardship” definition
of Minn.Stat. § 462.357, subd. 6. Our resolution of this
issue makes it unnecessary for us to resolve the other issues
Krummenacher raises on appeal.
… . We reverse and remand the matter to the City for
renewed consideration of Liebeler’s variance request in
light of our rejection of the “reasonable manner”
standard
from
Rowell.
2.3. Special Use Permits
Jones v. City of Carbondale
576 N.E.2d 909 (1991)
Paul G. Schoen, Michael F. Dahlen, John S. Rendleman,
III, Feirich, Schoen, Mager, Green, Carbondale, for
plaintiff-appellant.
Patricia S. McMeen, Gilbert, Kimmel, Huffman & Prosser,
Ltd., Carbondale, for defendant-appellee.
JUSTICE CHAPMAN delivered the opinion of the court:
Hill House, Inc., filed an application with the City of
Carbondale (City) for a special use permit on May 30, 1989.
Thereafter, William Jones filed a petition seeking to invoke
the provisions of section 11-13-14 of the Illinois Municipal
Code which provides in pertinent part:
“In case of a written protest against
any proposed amendment of the
regulations or districts, signed and
acknowledged by * * * the owners of
20% of the frontage immediately
adjoining the frontage proposed to be
altered, is [sic] filed with the clerk of
the municipality, the amendment shall
not be passed except by a favorable
vote of two-thirds of the aldermen or
trustees of the municipality then

63

holding office.” (Ill.Rev.Stat.1989, ch.
24, par. 11-13-14.)
The city council took no formal action on Jones’ petition as
it determined that section 11-13-14 was inapplicable to the
grant of a special use permit. On July 3, 1989, the city
council, by a simple majority, adopted a resolution which
granted the special use request submitted by Hill House,
Inc.
Jones then filed a two-count complaint for declaratory
judgment in the circuit court. This appeal concerns the
disposition of count I; therefore, we will limit our
discussion to that count.
In count I, Jones requested that the court: (1) declare the
rights of the plaintiff to invoke the provisions of section
11-13-14 of the Municipal Code; (2) declare the grant of the
special use null and void; and (3) enjoin the City of
Carbondale from issuing the special use certificate. In its
answer to the complaint, the city admitted: (1) that the
objection was filed by the requisite percentage of frontage
owners; (2) that the city council took no formal action on
Jones’ petition invoking the two-thirds majority provision
of section 11-13-14; and (3) that the city council approved
the special use certificate by a vote of three in favor and
two opposed.
Thereafter, Jones filed a motion for summary judgment as
to both counts of his complaint. The city responded that
the granting of the special use was not a violation of either
section 11-13-14 of the Municipal Code or section 15-295.E of the Carbondale Revised Code because neither
section is applicable to a request for a special use permit.
The circuit court denied Jones’ motion for summary
judgment as to counts I and II. Jones thereupon requested
a finding of appealable interlocutory order as to count I of
his complaint, pursuant to Supreme Court Rule 308 (134

64

Ill.2d R. 308). On May 8, 1990, the circuit court entered an
order identifying the issue pursuant to Rule 308 as follows:
“Whether the grant of a special use
permit for property uses which are not
principal permitted uses is an
amendment to the regulations or
districts as contemplated by Section
11-13-14 of the Municipal Code
providing for the requirement of
passage by extra ordinary [sic]
majorities of the zoning authority.”
….
Zoning ordinances typically provide three mechanisms to
accommodate circumstances for which the generalized
ordinance regulatory scheme is imperfect: the variance,
zoning amendment, and special use permit. (Connor,
Zoning, in Illinois Municipal Law ch. 10, § 10.16 (Ill.Inst. for
ContLegal Educ.1978).) While these tools are similar in that
they all deviate from the principal permitted uses of a
zoning ordinance, they differ in their scope and purpose.
A variance is a grant of relief to an owner from the literal
requirements of the ordinance where literal enforcement
would cause him undue hardship. (City of Clinton v. Glasson
(1976), 35 Ill.App.3d 745, 748, 342 N.E.2d 229, 231.) It has
been recognized that because the special use may have the
same impact upon neighboring property as a variance,
procedural safeguards similar to those prescribed for
variances might be desirable for special uses as well. (Kotrich
v. County of Du Page (1960), 19 Ill.2d 181, 187, 166 N.E.2d
601, 605.) However, the supreme court determined that the
procedural requirements for variances are not, without
legislative directive, imposed upon special uses. See Kotrich,
19 Ill.2d at 188,166 N.E.2d at 605.
An amendment to a zoning ordinance changes or alters the
original ordinance or some of its provisions. (Athey v. City of

65

Peru (1974), 22 Ill.App.3d 363, 367, 317 N.E.2d 294, 297.)
In the instant case Jones argues that because the special use
authorizes use of the property contrary to the ordinance, it
is an amendment and the voting requirements attendant to
an amendment apply. We disagree.
The ordinance at issue in this case is set forth in section 152-24 of the Carbondale Revised Code:
“A. Statement of Intent: This district is
created to provide land for purposes
devoted primarily to the production of
agricultural products such as field
crops, livestock, fowl and other
conventional agricultural pursuits.
Other limited compatible uses are also
permitted. This district is also created
to assist in the conservation of the
natural
resources
within
the
jurisdiction of this Article by
encouraging practices which will
conserve soil, * * *. Uses not related to
agriculture are discouraged. When the
public interest will be served and only
when a contribution will be made to
orderly growth, portions of this district
may be rezoned for alternative uses.
B. Permitted Principal Uses and
Structures:
1. all agricultural uses
2. cemeteries
3. churches[.]
******
C. Permitted Accessory Uses and
Structures: Accessory uses and

66

structures customarily incidental to
permitted principal uses and on the
same parcel, including but not limited
to:
1. market facilities for sale of
products grown on the
premises
2. artificial lakes[.]
******
D. Special Uses: After a public hearing
before the Planning Commission, the
City Council may permit as special
uses the following uses which are
subject to: (a) the “Procedures” as
prescribed in 15-2-57; (b) the lot area,
lot width, yards, and height limitations
of this district unless specified
otherwise in the special use; (c) the
performance standards as prescribed in
this district for each special use (if
any):
1. commercial agricultural
storage operation
2. commercial fishing,
hunting lodge, gun club or
related operation
3. drive-in theater
4. licensed home or
institution which provides
for the care or custody or
education or welfare of
persons, not including
hospitals

67

******
(Carbondale Revised Code (1990), section 15-2-24.)
We note that while the “statement of intent” recommends
that the zoning district be used primarily for agricultural
endeavors, the ordinance provides not only for permitted
and accessory principal uses, but also provides for specific
special uses.
A special use is a permission by the Board to an owner to
use his property in a manner contrary to the ordinance
provided that the intended use is one of those specifically
listed in the ordinance and provided that the public
convenience will be served by the use. (Parkview Colonial
Manor Investment Corp. v. Board of Zoning Appeals of O’Fallon
(1979), 70 Ill.App.3d 577, 581, 26 Ill.Dec. 876, 878, 388
N.E.2d 877, 879, citing Rosenfeld v. Zoning Board of Appeals of
Chicago (1958), 19 Ill.App.2d 447, 450, 154 N.E.2d 323,
325.) As stated in Parkview:
“Where special exception uses are
provided for, they have their genesis in the
ordinance and the body to which the
power of administering them is
delegated[] must look to the terms of
the ordinance itself for the measure of
its power.” (Emphasis added.)
(Parkview, 70 Ill.App.3d at 581, 26
Ill.Dec. at 878, 388 N.E.2d at 879.)
The very nature of a special use, whose origins come from
the ordinance itself, is contrasted sharply with the essence
of an amendment’s nature. A permitted special use
authorizes a use of the land pursuant to the existing zoning
ordinance. No change or alteration in the ordinance itself is
required in order to effect a special use. When the special
use was granted in this case, section 15-2-24 of the
Carbondale Revised Code was neither altered nor repealed.
Rather, the only action necessary was the invocation of that

68

portion of the ordinance which listed the permissible
special uses.
Jones points out that the resolution adopted by the city
granting the special use requires the applicant to comply
with four conditions, none of which are contained within
the ordinance. The resolution requires that: (1) the city be
given site plan approval; (2) building construction be done
in accordance with Illinois and Carbondale building codes;
(3) the applicant must connect to city water and sanitary
sewer mains; and (4) the applicant must dedicate land to
allow for street improvements. Jones argues that the city
has clearly amended the zoning regulations by imposing
requirements which are not otherwise imposed on other
landowners within the zoning district.
The Illinois Municipal Code provides in part that:
“a special use shall be permitted only
upon evidence that such use meets
standards established for such
classification in the ordinances, and
the granting of permission therefor
may be subject to conditions
reasonably necessary to meet such
standards. * * *” (Ill.Rev.Stat. 1989, ch.
24, par. 11-13-1.1.)
The ordinance at issue provides that a special use may be
permitted subject to:
“(a) the “Procedures” as prescribed in
15-2-57; (b) the lot area, lot width,
yards, and height limitations of this
district unless specified otherwise in
the special use; (c) the performance
standards as prescribed in this district
for each special use * * *”.
(Carbondale Revised Code (1990),
section 15-2-24(D).)

69

We have reviewed the procedures as prescribed in section
15-2-57 of the Carbondale Revised Code and do not find
the four conditions imposed upon the special use applicant
contrary to the performance standards which are provided
in ‘section 15-2-57. Because the plaintiff has otherwise
failed to demonstrate how the four conditions imposed
upon the special use applicant are not reasonably necessary
to meet the standards as provided in the ordinance
(Ill.Rev.Stat.1989, ch. 24, par. 11-13-1.1), we cannot find
that the imposition of the conditions constitute an
amendment of the ordinance.
….
In conclusion, we find that the grant of a special use permit
for property uses which are not principal permitted uses is
not an amendment to the regulations or districts as
contemplated by section 11-13-14 of the Municipal Code
and does not require passage by extraordinary majorities of
the zoning authority.
Affirmed.
FSL Corp. v. Harrington
262 Ga. 725 (1993)
Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling,
for appellant.
McVay & Stubbs, Robert S. Stubbs III, for appellees.
CLARKE, CHIEF JUSTICE.
The Superior Court of Forsyth County denied appellant
FSL’s petition for mandamus to require the Board of
Commissioners (the Board) of Forsyth County to approve
a special-use permit for a sanitary landfill. Because the
zoning ordinance authorizing the permit provides no
ascertainable limits on the Board’s discretion to grant or
deny applications, we reverse the trial court’s order.

70

FSL contracted to purchase property zoned for agricultural
use located in Forsyth County next to the county landfill in
a sparsely populated area along the Etowah River. The
Etowah is a source of drinking water for the county. A
county ordinance allows property zoned for agriculture to
be used as a sanitary landfill if a special-use permit is
obtained from the Board after review by the County Health
Officer and the Forsyth County Planning Commission
(Commission).
Appellant FSL filed an application with the Forsyth County
Department of Planning and Development on December
20, 1991, for a special-use permit for a sanitary landfill. The
Commission considered FSL’s application at a public
hearing on January 28, 1992. After the hearing, in which
many citizens expressed their disapproval, the Commission
unanimously recommended the denial of the application.
The Board unanimously denied the application on February
24, 1992.
In response to the denial of the application, FSL filed a
petition for mandamus with the Superior Court of Forsyth
County on March 24, 1992. FSL alleged that the Board
based its denial on an unconstitutionally vague ordinance
that provides no limits on the Board’s discretion. The court
denied appellant’s petition on May 27, 1992. We granted
FSL’s application for discretionary appeal on June 30, 1992.
Section 14-1.1 (k) by itself lacks any objective criteria for
approval of a special-use permit. Appellee argues that the
preamble to the Comprehensive Zoning and Land Use
Resolution and Ordinance of Forsyth County contains the
general goals of the ordinance. The preamble provides as
follows:
WHEREAS
the
Board
of
Commissioners wishes to lessen
congestion
in
the
public
thoroughfares, fire and health dangers,

71

and soil erosion and sedimentation;
and
WHEREAS
the
Board
of
Commissioners wishes to assure
adequate light and air, and the sound
development and use of land which
provides adequate transportation,
water supply, drainage, sanitation,
educational
opportunity
and
recreation; and
WHEREAS
the
Board
of
Commissioners wishes to classify land
uses and the distribution of and uses;
and
WHEREAS
the
Board
of
Commissioners wishes to provide for
economically sound and stable land
development by assuring the provision
in land developments of adequate
streets, utilities, services, traffic access
and circulation, public open spaces
and maintenance continuity; and
WHEREAS
the
Board
of
Commissioners wishes to assure
compliance with a comprehensive plan
…
The appellee relies on the case of Phillips v. Mills, Civil
Action No. 86-15,138 (May 29, 1986, Superior Court of
Forsyth County), aff’d without opinion, 256 Ga. XXVIII
(1987). The trial court in Phillips found that this preamble
contained sufficient guidelines for the Board and upheld
the ordinance against a vagueness challenge. In Dinsmore
Dev. Co. v. Cherokee County, 260 Ga. 727 (398 SE2d 539)
(1990), we found that a purpose statement similar to this
preamble contained no objective criteria upon which the

72

zoning board could base its decision. We therefore reversed
the trial court’s denial of mandamus. We hold that Dinsmore
is controlling. The preamble to the ordinance “contains
only a statement of general goals and purposes, and
provides no criteria to govern the [Board’s] determination.”
Dinsmore, supra at 729. Provided all other requirements
have been met, appellant is entitled to approval for the
special-use permit it seeks.
Note
Some other jurisdictions allow very broad discretion in ordinances
providing for special use permits. The Wisconsin Supreme Court,
in Weber v. Town of Saukville (quotation marks and citations omitted),
explained:
[C]onditional use standards often lack
specificity, since their purpose is to
confer a degree of flexibility in the
land use regulations.
If it were possible to find a
legislative draftsman capable of
performing such a task—of
drafting standards to govern the
likely as well as all possible
contingencies relating to a
conditional use—there would be
no need to make the use a
conditional one. In that case they
could be made part of the zoning
ordinance proper requiring no
exercise of discretion on the part
of anyone… . If the purposes of
zoning are to be accomplished,
the master zoning restrictions or
standards must be definite while
the provisions pertaining to a
conditional
use…must
of
necessity be broad and permit an
exercise of discretion.

73

3 Edward H. Ziegler, Jr., Rathkopf’s The Law of Zoning and
Planning § 41.11, at 49 (4th ed. 1996).
2.4. Comprehensive Planning
Hector v. City of Fargo
760 N.W.2d 108 (N.D. 2009)
Jonathan T. Garaas, Garaas Law Firm, DeMores Office
Park, Fargo, ND, for petitioners and appellants.
Mike Miller (argued) and Stacey Tjon Bossart (appeared),
Assistant City Attorneys, Fargo, ND, for respondent and
appellee.
VANDE WALLE, CHIEF JUSTICE.
Fred and Earlyne Hector appealed from a district court
judgment affirming the decision of the Fargo City
Commission to deny their application for zoning map
amendments and growth plan modifications regarding their
property located in south Fargo. We affirm, holding the
City did not act arbitrarily, capriciously or unreasonably
when it denied the Hectors’ zoning request. Furthermore,
we hold the district court did not err when it found the City
had adopted a comprehensive plan as required by N.D.C.C.
s 40-47-03, and the City did not engage in illegal contract
zoning with the Hectors.
….
The Hectors argue the City of Fargo violated North
Dakota statutes by not having a comprehensive plan for its
zoning regulations. Specifically, the Hectors assert that, by
the absence of such a plan, there exists no properly
promulgated set of standards by which to measure the
actions of the City when making zoning decisions. The
Hectors further argue that no such comprehensive plan was
passed under the required statutory procedures.
Section 40-47-01, N.D.C.C., states that the governing body
of a city may pass zoning regulations to promote the health,

74

safety, morals or general welfare of the community. The
Code further dictates that such regulations:
[B]e
made
with
reasonable
consideration as to the character of
each district and its peculiar suitability
for particular uses with a view to
conserving the value of buildings and
encouraging the most appropriate use
of land throughout the city. The
comprehensive plan shall be a
statement in documented text setting
forth explicit goals, objectives, policies,
and standards of the jurisdiction to
guide public and private development
within its control.
N.D.C.C. s 40-47-03 (2008). Zoning regulations must also
go through several formal procedures to be effective,
including: copies of proposed regulations must be filed
with the city auditor, a public hearing must be held on the
regulations, and notice of passed regulations must be
published in the official newspaper of the city. N.D.C.C. s
40-47-04.
Here, the City of Fargo points to a list of over 80 policy
statements as containing the goals, objectives, and
standards of the City pertaining to zoning regulations. This
list, called the “Comprehensive Policy Plan,” provides
detailed plans for the Fargo community. However, the City
of Fargo adopted the Policy Plan as a resolution rather than
as an ordinance. This Court has previously noted the
informal nature of resolutions, and the tendency of such
acts to fall short of establishing a formal, permanent rule of
government. See Mitchell v. City of Parshall, 108 N.W.2d
12, 13-14 (N.D.1961) (reviewing the “temporary” nature of
resolutions which are generally in the form of the
municipality or official body’s opinions rather than binding
law). Regardless of the stricture of the Policy Plan’s

75

passage, the policy statements embodied within the Plan
were later codified in Fargo’s Land Development Code.
The Land Development Code satisfies the procedural
guidelines set forth by N.D.C.C. s 40-47-04, and, like the
Policy Plan, contains the standards by which the City of
Fargo must adhere when making zoning decisions.
Included within its provisions, the Land Development
Code spells out what Fargo may do when zoning in extraterritorial areas (FMC s 20-0108), and denotes what
activities and buildings are permitted in certain zoning areas
(FMC s 20-0401). When the Land Development Code
requires a land use to conform to specific standards, very
strict criteria must be met by any potential user. See FMC s
20-0402 (setting out use-specific standards for several uses,
including off-premise advertising signs, day care, religious
institutions and adult entertainment centers). Furthermore,
it was the Land Development Code which the Planning
Department staff relied upon in its analysis recommending
denial of the Hectors’ proposed amendments, which was
then relied upon by the City Commission when it denied
the Hectors’ application.
Through its detailed standards and restrictions, the Land
Development Code formulates a comprehensive plan
which informs builders and landowners of their rights and
the boundaries within which they must work when
planning their land use. The City of Fargo has complied
with the requirements of N.D.C.C. ss 40-47-03 and 40-4704.
….
Wolf v. City of Ely
493 N.W.2d 846 (1992)
Robert S. Hatala of Crawford, Sullivan, Read, Roemerman
& Brady, P.C., Cedar Rapids, for appellant.
Gary J. Shea of Shea Law Offices, Cedar Rapids, for
appellees.

76

Considered en banc.
ANDREASEN, JUSTICE.
….
John and Pat Wolf own three connecting parcels of land in
or adjacent to the City of Ely that have been identified as
parcels A, B and C. The Wolfs operate a salvage or
junkyard on their property. Parcel A is located in an area
that was zoned manufacturing; parcel B is located in an area
zoned commercial; and parcel C is located in an area zoned
residential or agricultural.
On May 6, 1987, Ely brought an action to enjoin the Wolfs
from operating a salvage yard on parcel A. City of Ely v. John
and Pat Wolf, Linn County, EQ 10962. On October 23,
1989, district judge Paul J. Kilburg entered a decree
invalidating Ely’s manufacturing (M-1) zoning classification
and denying the City’s request for injunctive relief. The
court held the M-1 classification was invalid because the
1978 ordinance constituted exclusionary zoning and was
not promulgated pursuant to a comprehensive plan as
required by Iowa Code section 414.3 (1977). No appeal was
taken from the court’s judgment.
The Wolfs filed the present action on April 9, 1990, seeking
a court judgment declaring the entire zoning ordinance
invalid and their use of their property (parcels A, B and C)
lawful.1 The Wolfs allege the entire zoning ordinance is
invalid for two reasons. First, it was not adopted in
accordance with a comprehensive plan. Second, it is
overbroad and exclusionary in violation of their
constitutional due process rights.
Following trial, district judge Thomas M. Horan entered a
ruling and judgment on June 3, 1991. The court concluded
1 Because no appeal was taken by the Wolfs from the district court judgment, we

need not address their request for issuance of a writ of mandamus contained in
count II of their petition.

77

the “ordinance was not made in accordance with a
comprehensive plan as required by Section 414.3, the
Code.” Accordingly, the court declared Ely’s entire zoning
ordinance invalid.
….
It is said:
Comprehensive zoning is general
zoning throughout a municipality
according to a comprehensive plan to
control and direct the use and
development of property in the area by
dividing it into districts according to
present and potential uses.
Brackett v. City of Des Moines, 246 Iowa 249, 257-58, 67
N.W.2d 542, 546 (1954). Iowa Code section 414.3 requires
that zoning regulations “shall be made in accordance with a
comprehensive plan.” The requirement of a comprehensive
plan is found in the zoning law of those states that have
taken the standard state zoning enabling act as their model.
Vestal, Iowa Land Use and Zoning Law § 3.01(d) (1979). The
act was first drafted in the early 1920s and was adopted in
whole or in part by thirty-five states. Id. at n. 19. The act
did not define the term comprehensive plan.
A majority of courts in states where zoning must be “in
accordance with a comprehensive plan” hold a plan
external to the zoning ordinance is not required. 2 The
American Law of Real Property, Planning and Zoning § 12.02
(1991). However, an increasing number of legislatures
specifically require that a plan be adopted. Id. The
“comprehensive plan” requirement was imposed to prevent
piecemeal and haphazard zoning. Standard State Zoning
Enabling Act (United States Department of Commerce, § 3
n. 22 (1922)). The word “plan” connotes an integrated
product of a rational process; the word “comprehensive”
requires something beyond a piecemeal approach. Kozesnik

78

v. Township of Montgomery, 24 N.J. 154, 166, 131 A.2d 1, 7
(1957). We have suggested the purpose of a comprehensive
plan is “to control and direct the use and development of
property in the area by dividing it into districts according to
present and potential uses.” Plaza Recreation Ctr. v. Sioux
City, 253 Iowa 246, 258, 111 N.W.2d 758, 765 (1961); see
also Bell v. City of Elkhorn, 122 Wis.2d 558, 564-65, 364
N.W.2d 144, 147 (1985) (list of objectives sought to be
achieved through development of a comprehensive plan).
Iowa Code section 358A.5, relating to county zoning,
contains the identical requirement. In discussing this
requirement, we stated: “If the Board gave full
consideration to the problem presented, including the
needs of the public, changing conditions, and the similarity
of other land in the same area, then it has zoned in
accordance with a comprehensive plan.” Montgomery v.
Bremer County Bd. of Supervisors, 299 N.W.2d 687, 695 (Iowa
1980). The Iowa Court of Appeals commented, “nothing in
Chapter 358A requires a county to reduce a comprehensive
plan to written form.” Webb v. Giltner, 468 N.W.2d 838, 840
(Iowa App.1991). The comprehensive plan requirement is
intended to ensure the county board acts rationally rather
than arbitrarily in exercising their delegated zoning
authority. Id. As suggested by the court of appeals, the
generic standard in Montgomery would apply when a county
either has no individualized comprehensive plan or has not
reduced that plan to writing. Id.
The Wolfs challenged the 1978 zoning ordinance in both
the action brought by the City in 1987 and in their action
against the City in 1990. In the 1991 decree, the district
court concluded that a separate formal document called a
comprehensive plan was not required to validate the City’s
zoning ordinance. Nevertheless, the court found “there is
no evidence to indicate that the City engaged in any rational
planning before the adoption of the 1978 ordinance.”

79

This declaratory judgment action was tried as an equitable
action. Our scope of review is de novo. Iowa R.App.P. 4.
In our de novo review of the evidence, we carefully
examine the zoning ordinance and zoning map, the
testimony of witnesses who were involved in the adoption
of the ordinances, and other relevant evidence.
Prior to the adoption of the 1978 zoning ordinance, Ely
had established a planning and zoning commission. Under
a 1976 ordinance, the Ely planning and zoning commission
had authority to make such surveys, studies, maps, or plans
which the commission believed bears a relation to the
general comprehensive plan. The ordinance provided for
the preparation of a comprehensive plan and directed that
the commission
make careful and comprehensive
studies of present conditions and
future growth of the city and with due
regard to its relation to neighboring
territory. The plan shall be made with
the general purpose of guiding and
accomplishing
a
co-ordinated,
adjusted,
and
harmonious
development of the city and its
environments
which
will,
in
accordance with the present and future
needs, best promote health, safety,
morals, order, convenience, prosperity,
and general welfare, as well as
efficiency and economy in the process
of development.
It further provided that after adoption of a comprehensive
plan by the commission an attested copy of the plan shall
be certified to the council. The council could then approve
the plan, and it would constitute the City’s comprehensive
plan. The City council could not take action until it had

80

received the final report from the zoning commission. Iowa
Code § 414.6 (1977).
Contrary to the statutory and ordinance requirements, no
comprehensive plan was developed by the commission and
appropriately presented to the council. At trial, Thomas M.
Tjelmeland, the mayor of Ely, admitted he was unaware of
any written criteria used in development of the 1978 zoning
ordinance. He testified the comprehensive plan consisted
of the City’s zoning ordinance combined with its zoning
map. There were no other documents that he relied upon
in interpreting the zoning ordinance.
A councilman of the City testified that no single person had
been designated as administrative officer responsible for
the administering of the zoning ordinance. The mayor and
members of the Ely council would bring zoning matters to
the entire council on an ad hoc basis. The councilman
further testified that, in making decisions as to whether a
specific use is allowed in a specific zone, he just listened,
and if he thought it was right, he would go along with it.
He had not heard of a comprehensive zoning plan.
The City offered evidence that, in June of 1975, the Linn
County Regional Planning Commission (county
commission) prepared a housing and community
development study and a Linn County regional land use
policy plan. The study recommended Ely and other
nonmetropolitan cities use the plan as a guide for future
growth and development. Although mayor Tjelmeland
represented the City of Ely on the county commission, he
testified he was unaware of any studies conducted when the
1978 zoning ordinance was drafted. He was unaware of any
writing that set forth any proposed or future land use. He
testified the 1975 regional housing and land use policy
plans were not used in any of Ely’s planning or zoning
decisions.

81

The 1978 zoning ordinance was developed by combining
different sections and provisions of two or more “model”
municipal zoning ordinances. Throughout the ordinance,
specific provisions of the model ordinances were deleted,
marked “omit” or additional provisions were added in
longhand. The ordinance established seven districts for
specific use: agricultural (A-1), residential (R-1, R-2, R-3),
commercial (C-1), industrial (M-1), and public (P-1). The
ordinance generally regulates the districts by identifying the
principal permitted uses and special uses for each district.
The special uses are allowed only if the board of adjustment
issues a special permit. The zoning ordinance refers to a
“zoning district map” that is made a part of the ordinance.
At least two, and possibly four, different zoning maps have
been identified as the official city zoning map. The City
offered a crayola-colored zoning map as the official zoning
map. This map was different than the zoning map
identified as Ely’s official zoning map in the first trial in
1989. One of the maps indicates the Wolfs’ “tract C” was
agricultural; the other indicates it was residential. The City
acknowledges the 1978 zoning ordinance and zoning map
have not been officially amended, changed, modified, or
repealed.
Ely’s zoning ordinance and zoning map do not suggest an
integrated product of rational planning. The ordinance
contains glaring omissions and serious structural problems.
Although a significant portion of the land within the city
limits is identified as agricultural land, the zoning ordinance
makes no provisions regulating its use. Some words and
terms that are defined in the ordinance are not used later in
the ordinance. Extensive provisions relating to mobile
homes are included in the definition section. Under the
ordinance provisions, mobile homes are permitted only in
an approved mobile home park. However, a mobile home
park is not a permitted use or special use in any of the
seven districts. Junkyards are specifically defined, although

82

they are not a permitted use or special use in any of the
districts. In one part of the zoning ordinance, the City
prohibits fences of over five feet; in another part it requires
a six-foot fence. The ordinance has twenty-eight separate
parking classes for off-street parking, although the
population of Ely was 275 in 1970 and 425 in 1980.
The structural problems in the zoning ordinance obviously
arose from a careless combining of two or more model
ordinances. Although such a clip-and-paste ordinance could
produce a valid ordinance if carefully and rationally
prepared, here the structure and content of the ordinance
suggests a careless and irrational process was employed.
Other evidence demonstrates the City’s failure to adopt the
zoning ordinance in accordance with a comprehensive plan.
Studies and plans developed by the county commission in
1975 were not considered by the council. The Ely Planning
Commission failed to comply with the City ordinance
requirement that a comprehensive plan be certified to the
council as an attested copy of the plan. Although city
records indicate the commission had presented a proposed
zoning ordinance and zoning map in 1977, the records do
not identify the proposed ordinance and map. Because the
official zoning map was not clearly identified, there was
confusion as to the limitation of uses to be applied to
certain parcels of land. Amendments or changes to the
ordinance and zoning map were reported in the city
records, but council approval was made by resolution,
contrary to ordinance and statutory requirements.
Judge Kilburg in his 1989 decree found there was no
comprehensive plan that would establish a basis for
excluding all junk or salvage yards within Ely’s city limits.
Based upon these deficiencies in the ordinance, the court
stated: “It is unfair to state that the City of Ely had at the
time of its passage, or has since had, a comprehensive plan
in the M-1 district.” The court’s observations have
application to the entire ordinance.

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Judge Horan in his 1991 ruling and judgment found the
evidence presented at trial indicates “very little planning at
best.” We agree with the court’s conclusion that the
evidence failed to show any rational planning before the
adoption of the 1978 zoning ordinance. We, like the district
court, find the City failed to comply with the requirement
that zoning regulations be made in accordance with a
comprehensive plan. Therefore, we need not address the
Wolfs’ argument that the ordinance validity issue was
litigated by the parties and decided by the court in its 1989
decree.
….
AFFIRMED.
All Justices concur except LARSON, J., who dissents and is
joined by HARRIS, J.
LARSON, JUSTICE (dissenting).
I dissent from Division III and the result.
Ely is a small town with limited financial resources, trying
to maintain the aesthetic quality of a rural Iowa community.
This ruling unnecessarily frustrates that effort.
Our cases hold, and the majority concedes, that no formal
plan is required to satisfy the requirement of a
comprehensive plan as a prerequisite to zoning.
Ely’s zoning ordinance is a part of a “comprehensive” plan.
Despite the informality of the plan, any reasonable reading
of the town’s ordinances, maps, and resolutions (which our
cases say may constitute a comprehensive plan) should
make it clear: a junkyard in the middle of town was not to
be a part of its future development.
I would reverse and remand.
HARRIS, J., joins this dissent.

84

Pinecrest Lakes, Inc. v. Shidel
795 So.2d 191 (Fla. 2001)
Jack J. Aiello and Ernest A. Cox, III, of Gunster, Yoakley,
Valdes-Fauli & Stewart, P.A., West Palm Beach, for
appellants.
Richard Grosso, General Counsel, Environmental & Land
Use Law Center, Fort Lauderdale, for appellee.
Stephen H. Grimes and Lawrence E. Sellers, Jr. of Holland
& Knight, LLP., Tallahassee, for Amici Curiae, National
Association of Home Builders, Florida Home Builders
Association, Florida Association of Realtors, and
Association of Florida Community Developers, Inc.
Michael L. Rosen, Tallahassee, for Amicus Curiae, Florida
Legal Foundation, Inc.
Terrell K. Arline, Legal Director, Tallahassee, Thomas G.
Pelham, Kenneth J. Goldberg and Douglas W. Ackerman,
Tallahassee, for Amici Curiae, The Florida Chapter of the
American Planning Association, and 1000 Friends of
Florida, Inc.
FARMER, J.
The ultimate issue raised in this case is unprecedented in
Florida. The question is whether a trial court has the
authority to order the complete demolition and removal of
several multi-story buildings because the buildings are
inconsistent with the County’s comprehensive land use
plan. We conclude that the court is so empowered and
affirm the decision under review.
Some twenty years ago, a developer11 purchased a 500-acre
parcel of land in Martin County and set out to develop it in
1 Originally the developer was Pinecrest Lakes, Inc., the entity which planned and

built Phases One through Ten. In 1997, when we reversed the first appeal in this
case for a trial de novo, the corporation transferred title to Phase Ten to a limited
partnership known as The Villas at Pinecrest Lakes. The trial court substituted the
limited partnership for the corporation as the developer. Consequently, when we

85

phases. Development there is governed by the Martin
County Comprehensive Plan (the Comprehensive Plan).2
Phase One of the property was designated under the
Comprehensive Plan as “Residential Estate,” meaning
single-family homes on individual lots with a maximum
density of 2 units per acre (UPA). The Comprehensive Plan
provides that
“[w]here single family structures
comprise the dominant structure type
within these areas, new development
of undeveloped abutting lands shall be
required to include compatible structure
types of land immediately adjacent to
existing single family development.”
[e.s.]
Phases One through Nine were developed as single-family
homes on individual lots in very low densities.
The subject of this litigation, Phase Ten, is a 21-acre parcel
between Phase One and Jensen Beach Boulevard, a divided
highway designated both as “major” and “arterial.” Phase
Ten was designated by the Comprehensive Plan as
“Medium Density Residential” with a maximum of 8 UPA.
The developer sought approval of three different site plans
before finally erecting the buildings that are the subject of
this litigation. In 1988, the developer first sought approval
for an initial scheme of 3-story apartment buildings with a
density of just under 8 UPA. Karen Shidel, since 1986 an
owner of a single-family residence in the adjoining area of
Phase One, along with other residents, opposed the project
use the term “developer” in this opinion, we refer either to the corporation or the
limited partnership or both as the context requires.
See § 163.3167(2), Fla. Stat. (2000) (“Each local government shall prepare a
comprehensive plan of the type and in the manner set out in this act or shall
prepare amendments to its existing comprehensive plan to conform it to the
requirements of this part in the manner set out in this part.”).
2

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proposed by the developer. This initial site plan for Phase
Ten was approved by the County but never acted upon.
Five years later the developer changed the proposed
scheme to single family residences, and the County
Commission approved a revised site plan for 29 singlefamily homes with a density of 1.37 UPA. Two years after
that, however, the developer again changed its mind and
returned to its original concept of multi-family structures.
This time, the developer sought to develop 136 units in
two-story buildings, with a density of 6.5 UPA. The
County’s growth management staff recommended that the
County Commission approve this second revised site plan
for Phase Ten. Following a hearing at which a number of
people objected to the proposal, including Shidel, the
County Commission approved the revision and issued a
Development Order3 for Phase Ten permitting the
construction of 19 two-story buildings.
Claiming statutory authority, Shidel and another Phase One
homeowner, one Charles Brooks, along with the
Homeowners Associations for Phases One through Nine,
then filed a verified complaint with the Martin County
Commission challenging the consistency of the
Development Order with the Comprehensive Plan,
requesting rescission of the Development Order.4 In
3 See § 163.3164(7) and (8), Fla. Stat. (2000) (“‘Development permit’ includes any

building permit, zoning permit, subdivision approval, rezoning, certification, special
exception, variance, or any other official action of local government having the
effect of permitting the development of land…. ‘Development order’ means any
order granting, denying, or granting with conditions an application for a
development permit.”).
4 See § 163.3215(4), Fla. Stat. (2000) (“As a condition precedent to the institution of

an action pursuant to this section, the complaining party shall first file a verified
complaint with the local government whose actions are complained of, setting
forth the facts upon which the complaint is based and the relief sought by the
complaining party. The verified complaint shall be filed no later than 30 days after
the alleged inconsistent action has been taken. The local government receiving the
complaint shall respond within 30 days after receipt of the complaint. Thereafter,
the complaining party may institute the action authorized in this section. However,

87

response to the verified complaint, after a hearing the
County Commission confirmed its previous decision to
issue the Development Order.
Shidel and Brooks then filed a civil action in the Circuit
Court against Martin County under the same statutory
authority.5 They alleged that the Development Order was
inconsistent with the Comprehensive Plan. The developer
intervened. Shidel and Brooks argued that their statutory
challenge was a de novo proceeding in which the court
should decide in the first instance whether the
Development Order was consistent with the
Comprehensive Plan. Martin County and the developer
argued that the proceeding was in the nature of appellate
review in which the County’s determination was entitled to
deference and the court should consider only whether there
was substantial competent evidence supporting the
Development Order. Basing its decision solely on a review
of the record created before the County Commission, the
trial court found that the Development Order was
consistent with the Comprehensive Plan and entered final
judgment in favor of the developer.
At that point, the developer took stock of its position. It
had prevailed before the County Commission and—at least
initially —in the trial court. Technically, however, its
approval for the project was not final. Developer
considered whether to proceed to construct the buildings
or instead await appellate review of the trial court’s
decision. Ultimately the developer decided to commence
the action shall be instituted no later than 30 days after the expiration of the 30-day
period which the local government has to take appropriate action.”).
5 See § 163.3215(1), Fla. Stat. (1995) (“Any aggrieved or adversely affected party

may maintain an action for injunctive or other relief against any local government
to prevent such local government from taking any action on a development order
… which materially alters the use or density or intensity of use on a particular piece
of property that is not consistent with the comprehensive plan adopted under this
part.”).

88

construction, notwithstanding the pendency of an appeal.
Accordingly, it applied for and received building permits
for construction of Buildings 8, 9, 10, 11 and 12, and
started on each of those buildings while the case was under
consideration in court.6 When construction was just
beginning, Shidel and Brooks sent written notice to the
developer of their intention, should they prove successful
in court, to seek demolition and removal of any
construction undertaken while judicial consideration of the
consistency issue was pending.
Appellate review did not produce the outcome for which
the developer had hoped. In 1997 we reversed the trial
court’s decision that the County’s consistency
determination complied with the Comprehensive Plan.
Poulos v. Martin County, 700 So.2d 163 (Fla. 4th DCA 1997).
Specifically, we concluded that section 163.3215 required
de novo consideration in the trial court on the consistency
issue. Our opinion explained:
“if section 163.3215 was intended to
provide for the circuit court to
conduct an appellate review by
certiorari, then the statutory language
permitting the filing of the action up
to 90 days after the granting of the
development order is in conflict with
the 30 day deadline outlined under the
Florida Rules of Appellate Procedure.”
700 So.2d at 165. We further adopted an analysis by Judge
Wentworth as to the meaning of section 163.3215:
“the … language in the statute …
provides only for a suit or action
clearly contemplating an evidentiary
6 We express no view on the propriety of Martin County issuing building permits

while the case was pending in court.

89

hearing before the court to determine
the consistency issue on its merits in
the light of the proceedings below but
not confined to the matters of record
in such proceedings.”
700 So.2d at 166 (quoting from Gregory v. City of Alachua,
553 So.2d 206, 211 (Fla. 1st DCA 1989) (Wentworth, J.,
dissenting)). We remanded the case for a trial de novo and
for any appropriate relief.
On remand, the trial judge7 proceeded in two stages: the
first stage involved a determination whether the
Development Order was consistent with the
Comprehensive Plan; and the second stage, which became
necessary, addressed the remedy. While the case was
pending on remand, developer continued with
construction. The County conducted final inspections of
Building 11 and 12, issuing certificates of occupancy (CO),
and residents moved into the buildings. At the end of the
consistency phase, the trial court entered a partial judgment
finding that the Development Order was not consistent
with the Comprehensive Plan. The trial de novo then
proceeded to the remedy.
At the conclusion of the remedy phase, the trial court
entered a Final Judgment. The court found that the
Comprehensive Plan established a hierarchy of land uses,
paying deference to lower density residential uses and
providing protection to those areas. The “tiering policy”
required that, for structures immediately adjacent to each
other, any new structures to be added to the area must be
both comparable and compatible to those already built and
occupied.8 The court then found significant differences
7 The original judge assigned to the case was rotated into another division, so the

case was assigned to a new judge.
8 “A project immediately adjacent to lands used or designated for lower intensity

use should be given lesser density. (1) For that portion of said project abutting the

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between the northern tier of Phase One and the adjacent
southern tier of Phase Ten. The structures in Phase One
were single level, single family residences, while the
structures in Phase Ten were two-story apartment buildings
with eight residential units. Therefore, the court found, the
8-residential unit, two-story, apartment buildings in Phase
Ten were not compatible or comparable types of dwelling
units with the single family, single level residences in Phase
One; nor were they of comparable density. Consequently,
the court determined, the Development Order was
inconsistent with the Comprehensive Plan.
As regards the remedy, the Final Judgment found no
evidence indicating that either Brooks or the Homeowners
Association were damaged by any diminution in value. The
court found that the Homeowners Association was not a
person within the meaning of section 163.3215(2) and
therefore had no standing to seek relief under section
163.3215. Accordingly, only plaintiff Shidel was entitled to
seek injunctive relief under section 163.3215.
In granting such relief, the court found that the developer
had acted in bad faith. Specifically, the court found that the
developer continued construction during the pendency of
the prior appeal and continued to build and lease during the
trial— even after losing on the consistency issue. The court
found that the developer “acted at [its] own peril in doing
precisely what this lawsuit sought to prevent and now [is]
subject to the power of the court to compel restoration of
the status prior to construction.” The relief awarded was:
(1) the Court permanently enjoined Martin County
from taking any further action on the subject
existing development or area of lesser density, a density transition zone of
comparable density and compatible dwelling unit types shall be established [e.s.] in the new
project for a depth from the shared property line that is equivalent to the depth of
the first tier of the adjoining development’s lower density (i.e. the depth of the first
block of single-family lots).” Comprehensive Plan, § 4-5(A)(2)(b).

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Development Order for Phase Ten, other than to
rescind it;
(2) the Court permanently enjoined developer and its
successors in interest from any further development
of Phase Ten under the subject Development Order;
and
(3) the Court ordered developer to remove all
apartment buildings from Phase Ten either through
demolition or physical relocation by a date certain.
When the Final Judgment was entered, five of the eightunit buildings had been constructed in Phase Ten
(Buildings 8-12). Buildings 11 and 12 had already received
their CO’s, and fifteen of their sixteen units were actually
occupied. Building 10 was fully completed and was awaiting
final inspection as of the date the remedies stage of trial
began. Buildings 8 and 9 were 50% and 66% completed,
respectively, also as of that date.
Following the entry of Final Judgment, the developer filed
this timely appeal and moved for a stay pending review.9
The trial court granted a stay only as to the demolition
order, allowing lessees to continue in possession of those
apartments in Buildings 9-12 under actual lease when the
trial court entered final judgment, as well as to those leases
in Building 8 in existence as of the date of filing of the
notice of appeal. The developer was prohibited, however,
from entering into any renewals of existing leases upon
expiration of the original term or any new leases of any
apartments. Upon review, we affirmed the stay order. We
now explain our decision on the merits.
I. The Consistency Issue

9 Neither Charles Brooks nor Martin County has appealed the final judgment, or

filed a brief in this appeal by Karen Shidel.

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Initially the developer argues that the trial court erred in the
consistency phase by failing to accord any deference to the
County Commission’s interpretation of its own
Comprehensive Plan when the County approved the
second revised site plan and its multi-story, multi-family
buildings. Conceding that the proceedings are de novo and
that the Development Order is subject to “strict scrutiny”
under the Comprehensive Plan as to the consistency issue,
the developer nevertheless argues that the courts must bow
to the County’s interpretation of its own Comprehensive
Plan and the application of its many elements to the site
plan. Developer argues that the statutes and cases accord
such deference to a local government’s interpretation of its
own Comprehensive Plan and that it was reversible error
for the trial court in this case to fail to do so. In particular,
developer relies on Southwest Ranches Homeowners Ass’n v.
Broward County, 502 So.2d 931 (Fla. 4th DCA 1987), and
B.B. McCormick & Sons, Inc. v. City of Jacksonville, 559 So.2d
252 (Fla. 1st DCA 1990). According to developer, these
cases authorize the use of the highly deferential “fairly
debatable” standard of review—customary with zoning
decisions —to land use determinations such as the issue of
consistency in this case. We disagree.
As we have already seen in this dispute, the applicable
statute provides that:
“[a]ny aggrieved or adversely affected
party may maintain an action for
injunctive or other relief against any
local government to prevent such local
government from taking any action on
a development order … which
materially alters the use or density or
intensity of use on a particular piece of
property that is not consistent with the
comprehensive plan….”

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§ 163.3215(1), Fla. Stat. (2000). This statute obviously
creates an action for an injunction against the enforcement
of a development order, rather than to carry out such an
order. The statute is aimed at development orders—which,
by their very nature, must have been approved by a local
government—so it is clear that the Legislature did not
mean that local governments or developers would be the
parties seeking injunctive relief under this provision.
Moreover there is but one basis for issuing the injunction:
that the development order is not consistent with the
Comprehensive Plan to the detriment of adjoining property
owners. Hence the issuance of an injunction under section
163.3215(1) necessarily requires the judge to determine in
the first instance whether a development order is consistent
with the Comprehensive Plan. When a statute authorizes a
citizen to bring an action to enjoin official conduct that is
made improper by the statute, and that same statute
necessitates a determination by the judge in the action as to
whether the official’s conduct was improper under the
statute, as a general matter the requirement for a
determination of the propriety of the official action should
not be understood as requiring the court to defer to the
official whose conduct is being judged. While the
Legislature could nevertheless possibly have some reason
to require judges to require some deference to the officials
whose conduct was thus put in issue, we would certainly
expect to see such a requirement of deference spelled out
in the statute with unmistakable clarity. Here it is not a
question of any lack of clarity; the statute is utterly silent on
the notion of deference. It is thus apparent that the
structure and text of the statute do not impliedly involve
any deference to the decision of the county officials. So we
necessarily presume none was intended.10
10 To illustrate the point, we draw an analogy. The action by a county approving a

development order could fairly and logically be compared to the actions of
administrative agencies generally. Thus we might contrast section 163.3215(1) with

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Section 163.3194 requires that all development conform to
the approved Comprehensive Plan, and that development
orders be consistent with that Plan.11 The statute is framed
as a rule, a command to cities and counties that they must
comply with their own Comprehensive Plans after they
have been approved by the State. The statute does not say
that local governments shall have some discretion as to
whether a proposed development should be consistent with
the Comprehensive Plan. Consistency with a
Comprehensive Plan is therefore not a discretionary matter.
When the Legislature wants to give an agency discretion
and then for the courts to defer to such discretion, it knows
comparable provisions of the Administrative Procedures Act. Section 120.68
generally grants parties in agency proceedings access to a court after the agency has
finally acted. Section 120.68(4), however, limits review to the record in agency.
There is no similar provision in section 163.3215. Moreover section 120.68(7) spells
out in precise detail exactly what the reviewing court can do. Among its provisions
is the following:
“The court shall remand a case to the agency for further
proceedings consistent with the court’s decision or set
aside agency action, as appropriate, when it finds that …
(b) The agency’s action depends on any finding of fact
that is not supported by competent, substantial evidence
in the record of a hearing conducted pursuant to ss.
120.569 and 120.57; however, the court shall not
substitute its judgment for that of the agency as to the
weight of the evidence on any disputed finding of fact …
(e) the agency’s exercise of discretion was: 1. outside the
range of discretion delegated to the agency by law; 2.
inconsistent with agency rule; 3. inconsistent with officially
stated agency policy or a prior agency practice, if deviation
therefrom is not explained by the agency; or 4. otherwise
in violation of a constitutional or statutory provision; but
the court shall not substitute its judgment for that of the agency on an
issue of discretion.” [e.s.]

§ 120.68(7), Fla. Stat. (2000). There is nothing even remotely comparable in section
163.3215.
11 See § 163.3194(1)(a), Fla. Stat. (2000) (“After a comprehensive plan…has been

adopted in conformity with this act, all development undertaken by, and all actions
taken in regard to development orders by, governmental agencies in regard to land
covered by such plan or element shall be consistent with such plan or element as
adopted.”). [e.s.]

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how to say that. Here it has not. We thus reject the
developer’s contention that the trial court erred in failing to
defer to the County’s interpretation of its own
comprehensive plan.
Before we proceed to assess the trial court’s determination
on the consistency issue, we pause to consider the history
of the land development statutes. The State of Florida did
not assert meaningful formal control over the explosive and
unplanned development of land in this state until the
passage of the first growth management statute, the Local
Government Comprehensive Planning Act of 1975.
Chapter 75-257, Laws of Fla. (the 1975 Act). The 1975 Act
forced counties and cities to adopt comprehensive plans,
but they were left to interpret such plans for themselves,
largely free from effective oversight by the state. See, e.g.,
City of Jacksonville Beach v. Grubbs, 461 So.2d 160, 163 (Fla.
1st DCA 1984) (determination of when to conform more
restrictive zoning ordinances with Comprehensive Plan is
legislative judgment to be made by local governing body,
subject only to limited judicial review for patent
arbitrariness). The requirement of adopting a
Comprehensive Plan was, therefore, only a small step.
Moreover nothing in the legislation required local
governments to comply with their own Comprehensive
Plans or that all development be consistent with the Plan.
By the early 1980’s it was widely recognized that the 1975
Act was proving ineffectual in regulating Florida’s
development. See Reid Ewing, Florida’s Growth Management
Learning Curve, 19 VA. ENVT’L. L.J. 375 (2000). The lack
of state control over interpretation of the Comprehensive
Plan was often cited as a serious deficiency. As one such
criticism described the situation:
“[f]rustration grew at the state level as
well. Lacking the actual power to
approve or disapprove local planning

96

decisions, state and regional planners
could not effectively coordinate and
oversee local planning and regulation.
Local governments changed their
plans ‘willynilly virtually every time a
city council or county commission met
…’”
John M. DeGrove, State and Regional Planning
and Regulatory Activity: The Florida Experience
and Lessons for Other Jurisdictions, C390 ALIABA 397, 428 (1994).
For another thing, the 1975 Act was criticized for failing to
give affected property owners and citizen groups standing
to challenge the land development decisions of local
governments on the grounds that they were inconsistent
with the Comprehensive Plan. The standing issue was
considered in Citizens Growth Management Coalition of West
Palm Beach Inc. v. City of West Palm Beach, 450 So.2d 204 (Fla.
1984) (CGMC). CGMC involved a challenge by a citizens
group to a local decision to allow the construction of a
large scale residential and commercial complex. The court
began by referring to Renard v. Dade County, 261 So.2d 832
(Fla.1972), holding that standing to challenge local
development decisions was limited to the highly deferential
“fairly debatable” standard. Affected property owners in
the vicinity of new development had no standing to seek
enforcement of local comprehensive plans unless they
could “prove special damages different in kind from that
suffered by the community as a whole.” 261 So.2d at 834.
The CGMC court determined that the 1975 Act did not
change these rules on standing. 450 So.2d at 208. The court
reasoned that because the 1975 Act “did not specifically
address the question” of standing, the statute was not
meant to alter the common law standing requirements set
forth in Renard. 450 So.2d at 206-07.

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Again, to return to the criticism, this limitation on standing
to enforce local planning laws resulted in:
“a failure to conform development
decisions to the plan based upon the
fact that citizens lacked standing to
challenge development orders for lack
of consistency with the comprehensive
plan.”
James C. Nicholas & Ruth L. Steiner, Growth Management
and Smart Growth in Florida, 35 WAKE FOREST L.REV.
645, 657 (2000)(quoting Daniel W. O’Connell, Growth
Management in Florida: Will State and Local Governments Get
Their Acts Together?, FLORIDA ENVT’L & URBAN
ISSUES, 1-5 (June 1984)). If affected property owners in
the area of newly permitted development could not
challenge a project on the grounds that it would be
inconsistent with the Comprehensive Plan, that eliminated
the only real check on local government compliance—a
challenge by those most directly affected by a proposed
development.
The growing pressure for a fundamental change in the
growth management law is reflected in the following
statement made just prior to the Legislature’s adoption of
the current law in 1985:
“In response to this lack of citizen
standing, a citizen initiative began last
year and thousands of signatures were
collected around the state to bring the
standing issue to a referendum vote.
The petition specifically calls for a
referendum on the issues of giving
citizens a right in the state constitution
to environmental health and welfare
and providing them with legal standing
to sue if government at the local,

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regional, or state level is not doing its
job.
“That initiative fell just a few thousand
signatures short of the required
number for qualifying for a
referendum in 1984. However, the
initiative is continuing, and I feel
confident that the issue will be brought
to the voters of the state in 1985
unless the legislature addresses the
issue more effectively than it did last
year.”
Kathleen Shea Abrams, An Environmental Word, 1 J. LAND
USE & ENVT’L LAW 155, 159 (1985). Clearly the
pressure from a “civically militant electorate” was growing,
and the elected representatives took notice of it. The result
was the Growth Management Act of 1985. Chap. 85-55,
Laws of Fla. This is essentially the statute we have today,
parts of which have been cited in preceding paragraphs.12
Its most important provision for our purposes was section
163.3215, the provision used by Shidel to bring this action
into court.
In Southwest Ranches, we observed that section 163.3215 had
liberalized standing requirements and demonstrated “a clear
legislative policy in favor of the enforcement of
comprehensive plans by persons adversely affected by local
action.” 502 So.2d at 935. In Parker v. Leon County, 627
So.2d 476, 480 (Fla.1993), the court held that “the
legislature enacted section 163.3215 to ensure the standing
for any person who ‘will suffer an adverse effect to an
interest protected … by the … comprehensive plan.’” 627
So.2d at 479. The Parker court quoted with approval the
above passage from Southwest Ranches. 627 So.2d at 479. See
also Putnam County Envt’l Council, Inc. v. Board of County
12 See supra notes 2, 3, 4 and 5 and accompanying text.

99

Comm’rs of Putnam County, 757 So.2d 590, 593 (Fla. 5th DCA
2000) (“That standard changed, however, with the 1985
adoption of section 163.3215, which liberalized the
standing requirements and ‘demonstrat[ed] a clear
legislative policy in favor of the enforcement of
comprehensive plans by persons adversely affected by local
action.’“). Thus, the criticism described above certainly was
of great influence in the 1985 Legislature’s formulation of
the new standing provision. Affected citizens have been
given a significantly enhanced standing to challenge the
consistency of development decisions with the
Comprehensive Plan.
….
Under section 163.3215 citizen enforcement is the primary
tool for insuring consistency of development decisions with
the Comprehensive Plan. Deference by the courts—
especially of the kind argued by the developer in this
case—would not only be inconsistent with the text and
structure of the statute, but it would ignore the very reasons
for adopting the legislation in the first place. When an
affected property owner in the area of a newly allowed
development brings a consistency challenge to a
development order, a cause of action—as it were—for
compliance with the Comprehensive Plan is presented to
the court, in which the judge is required to pay deference
only to the facts in the case and the applicable law. In light
of the text of section 163.3215 and the foregoing history,
we reject the developer’s contention that the trial court
erred in failing to defer to the County’s interpretation of its
own Comprehensive Plan.
Having thus decided that the trial court was correct in
failing to accord any particular deference to the Martin
County Commission in its interpretation of the
Comprehensive Plan, we now proceed to consider the
court’s determination on the consistency issue. The trial
court explained its decision as follows:

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“The primary claim by [plaintiffs] is
that the juxtaposition of multi-story,
multi-family apartments in Phase 10
directly next to the single family
homes in Phase 1 violates a number of
provisions in the Comprehensive Plan.
The provision of the Comprehensive
Plan that is central to their argument is
section 4-5(A)(2)(b), known as the
‘tiering policy.’ [see n. 6, above]
“The tiering policy was added to the
Comprehensive Plan … to address
how development would be added to
existing
single-family
residential
communities. There was a concern …
over how existing single-family homes
were being impacted by new, adjacent
denser developments….
“The tiering policy required … a
transition zone along the southern
portion of Phase 10 equal to ‘the
depth of the first block of singlefamily lots’ within the northern
portion of Phase 1. The section
requires that development in the first
tier of Phase 10 be limited to
construction ‘of comparable density
and compatible dwelling unit types.’
The court finds that the appropriate
measure is 225 feet, using the shortest
average depth method of computation.
“No transition zone was established
for Phase 10. The buildings along the
first tier of Phase 10 are multi-family,
multi-story, and have balconies. The
southern tier of Phase 10 has a density
of 6.6[UPA]. The overall density of
Phase 10 is 6.5[UPA]. There is no

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meaningful difference in density across
the entire western portion of Phase 10.
The northern tier of Phase 1, on the
other hand, is comprised entirely of
single-family homes on 0.75 acre to 1.2
acre lots, with a density of
0.94[UPA].13
“There was no first tier transition zone
established for Phase 10 as mandated
by section 4-5(A)(2)(b). That section is
not the only provision of the
Comprehensive Plan that mandated
compatible structures within the first
tier of Phase 10. Section 44(M)(1)(e)(2) provided:
… Where single family structures
comprise the dominant structure type
within [residential estate densities (RE0.5A) ], new development on
undeveloped abutting lands shall be
required to include compatible
structure types of lands immediately
adjacent
to
existing
family
development.
… Phase 1 is designated RE-0.5A
…
“It is impossible … to examine the
photographs of the homes in the
northern tier of Phase 1, and the
apartment buildings in the southern
tier of Phase 10, and find that they are
13 At this point in the Final Judgment, the court went on to show in a comparative

table that the change in density between the two tiers represented a 560%
difference, the change in population a 492% difference, and the number of units a
418% difference.

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either ‘compatible dwelling unit types’
or ‘compatible structure types.’ The
only residential structure that could be
less compatible with the northern tier
of Phase 1, would be a multi-story
condominium building. There is no
compatibility between the structures in
the southern tier of Phase 10 and the
northern tier of Phase 1. Further, an
examination of the density of
development in the two tiers at issue,
precludes this court from finding that
they are in any way comparable.
…
“[B]uffering does not grant relief to
the [developer] under section 4-4(I)(5).
That section deals with buffering
between ‘incompatible land uses.’ The
more specific Tiering Policy mandates
compatibility. More importantly, even
to the extent that the Comprehensive
Plan might, in some instances, provide
a builder with the ability to buffer
changes in density, intensity or uses,
the language of sections 44(M)(1)(e)(2) and 4-5(A)(2)(b) simply
do not permit the type of development
that is under construction in Phase
10.”
…
“Based on the foregoing, the Court
finds that the Development Order is
inconsistent with the Comprehensive
Plan. It is not compatible with, nor
does it further the objective, policies,
land uses, densities and intensities in

103

the
Comprehensive
163.3194(3)(a).” [e.o.]

Plan.

§

We have carefully reviewed the record of the trial and the
evidence presented. It is apparent that there is substantial
competent evidence to support these findings. Developer
argues that the court erred in its interpretation of the
“tiering policy,” in deeming it a mandatory requirement
rather than a discretionary guide. We conclude that the trial
court’s construction is consistent with the plain meaning of
the text of the Comprehensive Plan. See Comprehensive
Plan, § 4-5(A)(2)(b) (“a density transition zone of
comparable density and compatible dwelling unit types
shall be established in the new project for a depth from the
shared property line that is equivalent to the depth of the
first tier of the adjoining development’s lower density (i.e.
the depth of the first block of single-family lots).”).
Moreover, given the evidence as to Martin County’s
adoption of the tiering policy, the record clearly supports
the finding that the policy was intended to be applied in all
instances of projects abutting single-family residential areas.
We therefore affirm the finding of inconsistency and
proceed to explain our decision on the remedy.
II. Remedy of Demolition
Developer challenges what it terms the “enormity and
extremity of the injunctive remedy imposed by the trial
court.” It argues that the trial court’s order requiring the
demolition of 5 multi-family residential buildings is the
most radical remedy ever mandated by a Florida court
because of an inconsistency with a Comprehensive Plan.
Specifically, the contention is that the trial judge failed to
balance the equities between the parties and thus ignored
the evidence of a $3.3 million dollar loss the developer will
suffer from the demolition of the buildings. The court
failed to consider alternative remedies in damages, it argues,
that would have adequately remedied any harm resulting

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from the construction of structures inconsistent with the
Comprehensive Plan. Developer maintains that the trial
court erroneously failed to give meaningful consideration to
the traditional elements for the imposition of injunctive
relief. It contends that the trial court proceeded on an
erroneous conclusion that where an injunction is sought on
the basis of a statutory violation, no proof is required as to
the traditional elements for an injunction.
Traditionally, as the trial judge noted, it is true that
injunctions are usually denied where the party seeking such
relief fails to demonstrate a clear legal right, a particular
harm for which there is no adequate remedy at law, and
that considerations of the public interest would support the
injunction. See, e.g., St Lucie County v. St. Lucie Village, 603
So.2d 1289, 1292 (Fla. 4th DCA 1992). These are, of
course, the necessary ingredients for equitable relief when
we labor in the interplay of common law and equity, where
ordinary legal remedies are unavailing.
Nonetheless, as between the State legislature and the
several counties, the Legislature is the dominant creator of
public duties and citizen rights.14 Recognizing that the
Legislature has the sole power to create such public duties
and citizen rights, it logically follows that the Legislature is
necessarily endowed with the authority to specify precisely
what remedies shall be used by judges to enforce a statutory
duty—regardless of whether in general usage such a remedy
usually requires additional factors before it is traditionally
employed.
When the Legislature creates a public duty and a
corresponding right in its citizens to enforce the duty it has
created, and provides explicitly that the remedy of
vindication shall be an injunction, the Legislature has not
See Art. VIII, § 1(f) and (g), Fla. Const. (whether charter or non-charter
government, Counties are granted power to enact only ordinances that are “not
inconsistent with general law”).
14

105

thereby encroached on judicial powers, as the courts held in
Harvey v. Wittenberg, 384 So.2d 940 (Fla. 3rd DCA 1980),
and Times Publishing Co. v. Williams, 222 So.2d 470 (Fla. 2d
DCA 1969). The Times Publishing court explained its theory
of encroachment thus:
“Injunctive relief is an extraordinary
remedy which issues only when justice
requires and there is not adequate
remedy at law, and when there is a real
and imminent danger of irreparable
injury. Statutory authority for such
writs, as in the act before us, are not
uncommon; but it must be
remembered that such writs are in the
first instance judicial writs. If such
statutes purport to give the circuit
courts injunctive power they are
ineffectual, since those courts are
otherwise vested with such powers
under the constitution, § 6(3) Art. V
Constitution of Florida; and if they
purport to dictate to such courts when,
how or under what conditions
injunctions should issue they would
constitute an unlawful legislative
infringement on a judicial function.”
[e.s.]
222 So.2d at 476. Times Publishing and Harvey both held that
the Legislature is limited to specifying certain harms as
irreparable, but the court alone has the discretion to
determine whether the injunction should otherwise issue.
We disagree with this analysis.
We think that is too wooden a construction of legislative
powers where a statute is concededly valid. In our view
when the Legislature provides for an injunction in these
circumstances, it has deliberately made the new public duty
and its corresponding right of enforcement an integrated

106

statutory prescription. By specifying that the public interest
requires that a certain duty be vindicated in the courts and
not primarily within other branches of government, the
Legislature is well within its powers. Surely the Legislature’s
primary role in defining public policy under the
constitution is broad enough to enable it to specify a legal
remedy in an enactment, regardless of whether the
traditional judicial restrictions on that remedy in other,
non-statutory contexts would limit its usage. As the author
of the primary duty, the Legislature alone shapes the form
of its effectuating mechanism.
In section 163.3215, we think the Legislature has
constructed such a statute. The statute leads off with a
declaration that:
“Any aggrieved or adversely affected
party may maintain an action for
injunctive or other relief against any
local government to prevent such local
government from taking any action on
a development order, as defined in s.
163.3164, which materially alters the
use or density or intensity of use on a
particular piece of property that is not
consistent with the comprehensive
plan adopted under this part.”
From the plain and obvious meaning of this text we discern
only two elements to the granting of an injunction against
the enforcement of a development order: (a) the party is
affected or aggrieved by (b) an approved project that is
inconsistent with the Comprehensive Plan. In short, the
existence of an affected neighbor is all that is necessary for
the issuance of an injunction against a proposed land use
that is inconsistent with the Comprehensive Plan.
We note that the statute does not say that the
affected/aggrieved party bringing the action “creates a

107

presumption of irreparable injury” by showing an
inconsistency with the Plan. See, e.g., § 542.335(1)(j), Fla.
Stat. (2000) (“The violation of an enforceable restrictive
covenant creates a presumption of irreparable injury to the
person seeking enforcement of a restrictive covenant.”).
When the Legislature wants to make a lesser intrusion on
traditional equitable jurisdiction, it obviously knows how to
do so. Here the statutory text makes the injunction the first
and preferred remedy to alleviate the affects of in
inconsistent land use. Hence, we read the statute to make
the injunction the presumed remedy where the conditions
prescribed are shown.15
We disagree with the developer’s contention that this
statute was meant to create mere discretion in the court to
issue an injunction. If injunctive relief is the specified,
We reject developer’s argument that demolition is improper simply because
Shidel failed to seek a temporary injunction against any construction while the case
proceeded in court on the consistency issue. In the first place, when the action was
filed the trial court originally thought its role limited to a record review of the
proceedings before the Martin County Commission and concluded that no error
had been shown. Having decided there was no error in the limited review it
thought applicable, the trial court was hardly likely to grant a temporary injunction
while the case was on appeal.
15

Even more important, however, we find nothing in the text of the relevant statutes
making such a request for a temporary injunction a precondition to effective final
relief after a trial de novo when the court finds that the permitted use is
inconsistent with the Comprehensive Plan. We note from other statutes that when
the Legislature means to place restrictions on third party challenges to agency
decisions granting permits, it says so in specific text. Compare § 403.412(2)(c), Fla.
Stat. (2000), with § 163.3215(4), Fla. Stat. (2000), as to preconditions for suit; see also
§ 163.3215(6), Fla. Stat. (2000) (“The signature of an attorney or party constitutes a
certificate that he or she has read the pleading, motion, or other paper and that, to
the best of his or her knowledge, information, and belief formed after reasonable
inquiry, it is not interposed for any improper purpose, such as to harass or to cause
unnecessary delay or for economic advantage, competitive reasons or frivolous
purposes or needless increase in the cost of litigation. If a pleading, motion, or
other paper is signed in violation of these requirements, the court, upon motion or
its own initiative, shall impose upon the person who signed it, a represented party,
or both, an appropriate sanction, which may include an order to pay to the other
party or parties the amount of reasonable expenses incurred because of the filing of
the pleading, motion, or other paper, including a reasonable attorney’s fee.”).

108

primary remedy to correct a violation of a public duty and
to vindicate the right of a person affected by the violation
of that duty, it can properly be deemed a rule that the
Legislature has created, not a grant of discretion. Here the
Legislature has devised an entire statutory scheme to insure
that all counties have a Comprehensive Plan for the
development of land within their respective jurisdictions.
The scheme creates mandatory duties to have a plan,
mandatory duties to have the plan approved by the state,
and once approved mandatory duties to limit all
developments so that they are consistent with the plan’s
requirements. At the end of all these mandatory duties—all
these shalls—comes a new relaxation of the requirements
on standing for citizen suits to enforce comprehensive land
use plans and providing for the issuance of injunctions
when an inconsistency affects another land owner. Judicial
construction of that sole remedy as discretionary strikes us
as remarkably inconsistent with not only the text of the
statute itself but also with the purpose of the entire
legislative scheme.
Developer lays great stress on the size of the monetary loss
that it claims it will suffer from demolition, as opposed to
the much smaller diminution in value that the affected
property owner bringing this action may have suffered. It
contends that a $3.3 million loss far outweighs the evidence
of diminution in the value of Shidel’s property, less than
$26,000. Its primary contention here is that the trial judge
erred in failing to weigh these equities in its favor and deny
any remedy of demolition. Instead, as developer sees it, the
court should have awarded money damages to eliminate the
objector’s diminution in value. Developer argued that it
should be allowed instead of demolition it should also be
allowed to build environmental barriers, green areas of
trees and shrubbery, between the apartment buildings and
the adjoining area of single family homes.

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Developer emphasizes that we deal here with an expensive
development: “a high quality, upscale project;” “forty units
of high-quality garden apartments;” “five upscale multifamily dwellings, housing 40 garden apartments, at a value
of approximately $3 million.” Developer concedes that
there is evidence showing that plaintiff Shidel’s property is
diminished by $26,000. It also concedes that the total
diminution for all the homes bordering its project is just
under $300,000. Developer contends, however, that the real
countervailing harm to all these affected property owners in
the vicinity is not any diminution in the value of their
homes, but instead is merely “knowing that there is an
upscale apartment building approximately a football field
away, partially visible through some trees behind the
house.”
Section 163.3215 says nothing about weighing these
specific equities before granting an injunction. If the
Legislature had intended that injunctive enforcement of
comprehensive plans in the courts be limited to cases
where such imbalances of equities were not present, we
assume that it would have said so. As important, such
balancing if applied generally would lead to substantial noncompliance with comprehensive plans. We doubt that there
will be many instances where the cost of the newly allowed
construction will be less than any diminution resulting from
an inconsistency. Entire projects of the kind permitted here
will frequently far exceed the monetary harms caused to
individual neighbors affected by the inconsistency. In other
words, if balancing the equities—that is, weighing the loss
suffered by the developer against the diminution in value of
the objecting party—were required before demolition could
be ordered, then demolition will never be ordered.
Moreover it is an argument that would allow those with
financial resources to buy their way out of compliance with
comprehensive plans. In all cases where the proposed use is
for multiple acres and multiple buildings, the expenditures

110

will be great. The greater will be its cost, and so will be a
resulting loss from an after-the-fact demolition order. The
more costly and elaborate the project, the greater will be
the “imbalance in the equities.” The more a developer is
able to gild an inconsistency with nature’s ornaments—
trees, plants, flowers and their symbiotic fauna— the more
certain under this argument will be the result that no court
will enjoin an inconsistency and require its removal if
already built.
In this case the alleged inequity could have been entirely
avoided if developer had simply awaited the exhaustion of
all legal remedies before undertaking construction. It is
therefore difficult to perceive from the record any great
inequity in requiring demolition. Shidel let the developer
know when it was just beginning construction of the first
building that she would seek demolition if the court found
the project inconsistent. When developer decided to
proceed with construction in spite of the absence of a final
decision as to the merits of the challenge under section
163.3215, the developer was quite able to foresee that it
might lose the action in court. It could not have had a
reasonable expectation that its right to build what it had
proposed was finally settled. It may have thought the
decision to build before the consistency question was
settled in court a reasonable “business decision,” but that
hardly makes it inequitable to enforce the rule as written.
It also seems quite inappropriate, if balancing of equities
were truly required by this statute, to focus on the relatively
small financial impacts suffered by those adjoining an
inconsistent land use. The real countervailing equity to any
monetary loss of the developer is in the flouting of the legal
requirements of the Comprehensive Plan. Every citizen in
the community is intangibly harmed by a failure to comply
with the Comprehensive Plan, even those whose properties
may not have been directly diminished in value.

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We claim to be a society of laws, not of individual
eccentricities in attempting to evade the rule of law. A
society of law must respect law, not its evasion. If the rule
of law requires land uses to meet specific standards, then
allowing those who develop land to escape its requirements
by spending a project out of compliance would make the
standards of growth management of little real consequence.
It would allow developers such as this one to build in
defiance of the limits and then escape compliance by
making the cost of correction too high. That would render
section 163.3215 meaningless and ineffectual.
In this regard we are drawn to the views expressed in
Welton v. 40 Oak Street Building. Corp., 70 F.2d 377 (7th Cir.
1934), a case of strikingly analogous facts. There the
developer applied for a permit to erect a building, and
proceeded to build while its neighbor objected to the
edifice and sought to show that the building plans did not
comply with the zoning ordinances. When the agency
approved the building he sought relief in the courts, finally
being victorious in the state supreme court. Ownership of
the building meanwhile passed to a federal receiver, and so
the objecting neighbor sought to enforce his remedy by
injunctive relief in the federal court. The trial judge denied
an injunction. On appeal the Court of Appeals disagreed
and ordered a mandatory injunction to “rebuild” the edifice
in compliance with the zoning law, explaining:
“We have earnestly endeavored to
place ourselves in a position to fully
appreciate appellees’ argument to the
effect that enforcement of a right
which arises out of an effort to give
light and air to metropolitan areas is an
equity that is outweighed by the dollars
advanced by builders of twenty story
buildings in defiance of zoning
ordinances. We have also endeavored

112

to obtain appellees’ viewpoint when
they propose a money judgment to
one who suffers small financial loss as
satisfaction for violation of important
ordinances enacted for the benefit of
the public. In the fight for better living
conditions in large cities, in the contest
for more light and air, more health and
comfort, the scales are not well
balanced if dividends to the individuals
outweigh health and happiness to the
community. Financial relief to
appellants is not the only factor in
weighing equities. There is involved
that immeasurable but nevertheless
vital element of respect for, and
compliance with, the health ordinance
of the city. The surest way to stop the
erection of high buildings in defiance
of zoning ordinances is to remove all
possibility of gain to those who build
illegally. Prevention will never be
accomplished by compromise after the
building is erected, or through
payment of a small money judgment to
some individual whose financial loss is
an inconsequential item.”
70 F.2d at 382-83. We agree with the Seventh Circuit that
respect for law, in this case the Comprehensive Plan,
trumps any “inequity” of financial loss arising from
demolition.
Our understanding of section 163.3215 is thus different
from equity’s traditional use of its remedies. If, as we have
shown, an injunction is the statutory remedy to insure
consistency of development of property within the county,
it does not seem to us that the kind of balancing advocated
here would further that goal. In fact it would very likely
lead to even more inconsistent development, particularly as

113

to the kind of large scale project involved here with
multiple buildings for multiple families. As we see it, the
purpose of this statute is precisely against this kind of
thinking. A clear rule is far more likely to erase the kind of
legal unpredictability lamented by developer and amici.
The statute says that an affected or aggrieved party may
bring an action to enjoin an inconsistent development
allowed by the County under its Comprehensive Plan. The
statutory rule is that if you build it, and in court it later
proves inconsistent, it will have to come down. The court’s
injunction enforces the statutory scheme as written. The
County has been ordered to comply with its own
Comprehensive Plan and restrained from allowing
inconsistent development; and the developer has been
found to have built an inconsistent land use and has been
ordered to remove it. The rule of law has prevailed.
We therefore affirm the final judgment of the trial court in
all respects.
GUNTHER AND GROSS, JJ., concur.
Note
As the above cases demonstrate, states vary widely in whether and
they require comprehensive planning at all and in the degree of
consistency required between plans and later-enacted land use
ordinances. Some require comprehensive planning outright. Some
do not. And some provide funding incentives.
For example, in Georgia local governments are not required to
have a comprehensive plan, but they gain access to various grants if
they do. The Department of Community Affairs has been given by
authority to develop “Minimum Standards” for qualifying
comprehensive plans. Its regulations require three components: a
community assessment, a community participation program, and a
community agenda. These components are basically as they sound.
The first is a local inventory and includes development maps and
evaluations of current policies. The second is a plan to engage the
community in the planning process. Only after the Department has

114

approved a local government’s first two components may it
proceed to the community agenda, which is the “plan” part of the
comprehensive plan. It takes the form of a map showing future
development and an implementation program. The plan for
Athens-Clarke
County
is
available
at
http://athensclarkecounty.com/index.aspx?NID=848.
California requires counties and cities to adopt general plans
meeting minimum standards and addressing seven required
elements: Land Use, Circulation, Housing, Conservation, Open
Space, Noise, and Safety. Courts do not probe the merits of a local
government’s plan, but they will ensure “substantial compliance.”
See, e.g., Twaine Harte Homeowners Association v. County of Tuolumne,
138 Cal. App. 3d 664 (1982). California, like Florida, invalidates
zoning inconsistent with the general plan. Simply skimming the
General Plan Guidelines issues by the Governor’s Office of
Planning and Research (available at http://opr.ca.gov/docs/
General_Plan_Guidelines_2003.pdf) will give a good sense of the
planning process.

115

3. Judicial Review
3.1. Substantive Due Process
3.1.1. Federal Courts
Nectow v. City of Cambridge et al.
277 U.S. 183 (1928)
ERROR TO THE SUPREME JUDICIAL COURT OF
MASSACHUSETTS.
Messrs. Judson Hannigan and John E. Hannigan for plaintiff in
error.
Mr. Peter J. Nelligan, with whom Messrs. J. Edward Nally and
Joseph P. Lyons were on the brief, for defendants in error.
MR. JUSTICE SUTHERLAND delivered the opinion of the
Court.
A zoning ordinance of the City of Cambridge divides the
city into three kinds of districts: residential, business and
unrestricted. Each of these districts is sub-classified in
respect of the kind of buildings which may be erected. The
ordinance is an elaborate one, and of the same general
character as that considered by this Court in Euclid v.
Ambler Co., 272 U.S. 365. In its general scope it is conceded
to be constitutional within that decision. The land of
plaintiff in error was put in district R-3, in which are
permitted only dwellings, hotels, clubs, churches, schools,
philanthropic institutions, greenhouses and gardening, with
customary incidental accessories. The attack upon the
ordinance is that, as specifically applied to plaintiff in error,
it deprived him of his property without due process of law
in contravention of the Fourteenth Amendment.
The suit was for a mandatory injunction directing the city
and its inspector of buildings to pass upon an application
of the plaintiff in error for a permit to erect any lawful
buildings upon a tract of land without regard to the
provisions of the ordinance including such tract within a

residential district. The case was referred to a master to
make and report findings of fact. After a view of the
premises and the surrounding territory, and a hearing, the
master made and reported his findings. The case came on
to be heard by a justice of the court, who, after confirming
the master’s report, reported the case for the determination
of the full court. Upon consideration, that court sustained
the ordinance as applied to plaintiff in error, and dismissed
the bill. 260 Mass. 441.
A condensed statement of facts, taken from the master’s
report, is all that is necessary. When the zoning ordinance
was enacted, plaintiff in error was and still is the owner of a
tract of land containing 140,000 square feet, of which the
locus here in question is a part. The locus contains about
29,000 square feet, with a frontage on Brookline street,
lying west, of 304.75 feet, on Henry street, lying north, of
100 feet, on the other land of the plaintiff in error, lying
east, of 264 feet, and on land of the Ford Motor Company,
lying southerly, of 75 feet. The territory lying east and south
is unrestricted. The lands beyond Henry street to the north
and beyond Brookline street to the west are within a
restricted residential district. The effect of the zoning is to
separate from the west end of plaintiff in error’s tract a
strip 100 feet in width. The Ford Motor Company has a
large auto assembling factory south of the locus; and a soap
factory and the tracks of the Boston & Albany Railroad lie
near. Opposite the locus, on Brookline street, and included
in the same district, there are some residences; and
opposite the locus, on Henry street, and in the same
district, are other residences. The locus is now vacant,
although it was once occupied by a mansion house. Before
the passage of the ordinance in question, plaintiff in error
had outstanding a contract for the sale of the greater part
of his entire tract of land for the sum of $63,000. Because
of the zoning restrictions, the purchaser refused to comply
with the contract. Under the ordinance, business and

117

industry of all sorts are excluded from the locus, while the
remainder of the tract is unrestricted. It further appears that
provision has been made for widening Brookline street, the
effect of which, if carried out, will be to reduce the depth
of the locus to 65 feet. After a statement at length of
further facts, the master finds “that no practical use can be
made of the land in question for residential purposes,
because among other reasons herein related, there would
not be adequate return on the amount of any investment
for the development of the property.” The last finding of
the master is:
“I am satisfied that the districting of the plaintiff’s land in a
residence district would not promote the health, safety,
convenience and general welfare of the inhabitants of that
part of the defendant City, taking into account the natural
development thereof and the character of the district and
the resulting benefit to accrue to the whole City and I so
find.”
It is made pretty clear that because of the industrial and
railroad purposes to which the immediately adjoining lands
to the south and east have been devoted and for which they
are zoned, the locus is of comparatively little value for the
limited uses permitted by the ordinance.
We quite agree with the opinion expressed below that a
court should not set aside the determination of public
officers in such a matter unless it is clear that their action
“has no foundation in reason and is a mere arbitrary or
irrational exercise of power having no substantial relation
to the public health, the public morals, the public safety or
the public welfare in its proper sense.” Euclid v. Ambler Co.,
supra, p. 395.

118

An inspection of a plat of the city upon which the zoning
districts are outlined, taken in connection with the master’s
findings, shows with reasonable certainty that the inclusion
of the locus in question is not indispensable to the general
plan. The boundary line of the residential district before
reaching the locus runs for some distance along the streets,
and to exclude the locus from the residential district
requires only that such line shall be continued 100 feet
further along Henry street and thence south along
Brookline street. There does not appear to be any reason
why this should not be done. Nevertheless, if that were all,
we should not be warranted in substituting our judgment
for that of the zoning authorities primarily charged with the
duty and responsibility of determining the question. Zahn v.
Bd. of Public Works, 274 U.S. 325, 328, and cases cited. But
that is not all. The governmental power to interfere by
zoning regulations with the general rights of the land owner
by restricting the character of his use, is not unlimited, and
other questions aside, such restriction cannot be imposed if
it does not bear a substantial relation to the public health,
safety, morals, or general welfare. Euclid v. Ambler Co., supra,
p. 395. Here, the express finding of the master, already
quoted, confirmed by the court below, is that the health,
safety, convenience and general welfare of the inhabitants
of the part of the city affected will not be promoted by the
disposition made by the ordinance of the locus in question.
This finding of the master, after a hearing and an
inspection of the entire area affected, supported, as we
think it is, by other findings of fact, is determinative of the
case. That the invasion of the property of plaintiff in error
was serious and highly injurious is clearly established; and,
since a necessary basis for the support of that invasion is
wanting, the action of the zoning authorities comes within
the ban of the Fourteenth Amendment and cannot be
sustained.
Judgment reversed.

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Coniston Corporation v. Village of Hoffman Estates
844 F.2d 461 (1988)
Francis X. Grossi, Jr., Katten, Muchin & Zavis, Chicago,
Ill., for plaintiffs-appellants.
Richard N. Williams, Hoffman Estates, Ill., David L. Ader,
Ancel, Glink, Diamond, Murphy & Cope, Chicago, Ill., for
defendants-appellees.
Before POSNER, COFFEY, and EASTERBROOK,
Circuit Judges.
POSNER, CIRCUIT JUDGE.
The plaintiffs own a tract of several hundred acres of land,
originally undeveloped, in the Village of Hoffman Estates,
Illinois. Their complaint, laid under the ubiquitous section
1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, charges
that in turning down the site plan for a 17-acre parcel in the
tract, the Village Board of Trustees and its members
violated the Constitution and state law. The district court
dismissed the complaint for failure to state a claim.
The procedure for land development set forth in the
Village’s ordinances — ordinances incorporated by
reference in an agreement that the Village made with the
plaintiffs, annexing their land to the Village — requires first
of all that there be a general plan for development
approved by the Village Board of Trustees. This condition
was met; there is an approved plan for the plaintiffs’ tract.
The next step is that, as development proceeds, the
developer must submit site plans setting forth his plans for
developing particular parcels. The site plan is first
submitted to the Village Plan Commission for its
recommendation and is then forwarded to the Board of
Trustees for its approval or disapproval. No criteria are set
forth in the ordinances or anywhere else to guide the
Board.

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Over the years the plaintiffs have presented a number of
site plans for parcels within their tract, and these plans have
been approved by both the Plan Commission and the
Board of Trustees. For the 17-acre parcel at issue in this
case, the plaintiffs submitted a plan that envisaged the
construction of five single-story commercial buildings with
a total office space of 181,000 square feet. The Plan
Commission recommended approval of the plan, finding
that it conformed to the general plan for the development
of the plaintiffs’ tract and to all applicable legal regulations.
The Board of Trustees, however, disapproved the plan. It
gave no reasons for its action but one of the trustees
indicated that the reason (her reason, at any rate) was that
the village has a lot of unused office space. (The Plan
Commission had also expressed concern with the amount
of vacant office space in the village.) Asked by the plaintiffs
to reconsider its decision the Board went into executive
session and emerged with an announcement that it was
adhering to its original decision. Again there was no
statement of reasons.
Before we get to the merits of the plaintiffs’ appeal we
must decide whether we have jurisdiction. The defendants
had filed a motion under Fed.R.Civ.P. 12(b)(6) to dismiss
the complaint for failure to state a claim. The district judge
granted the motion and ordered the complaint dismissed,
but did not order the entry of a judgment dismissing the
lawsuit; no one had asked him to. The dismissal of a
complaint is not the dismissal of the lawsuit, see Bieneman v.
City of Chicago, 838 F.2d 962 (7th Cir.1988) (per curiam);
Benjamin v. United States, 833 F.2d 669 (7th Cir.1987) (per
curiam), since the plaintiff may be able to amend his
complaint to cure whatever deficiencies had caused it to be
dismissed. As long as the suit itself remains pending in the
district court, there is no final judgment and we have no
jurisdiction under 28 U.S.C. § 1291. This is particularly
clear in a case such as the present one, where the plaintiff

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had not amended his complaint before it was dismissed and
the defendant had not filed a responsive pleading; for then
the plaintiff has a right to amend his complaint without
leave of court. Fed.R.Civ.P. 15(a); Car Carriers, Inc. v. Ford
Motor Co., 745 F.2d 1101, 1111 (7th Cir.1984).
If, however, it is plain that the complaint will not be
amended, perhaps because the grounds of the dismissal
make clear that no amendment could cure the defects in
the plaintiff’s case, the order dismissing the complaint is
final in fact and we have jurisdiction despite the absence of
a formal judgment under Fed.R.Civ.P. 58. See, e.g., Akins v.
Board of Governors, 840 F.2d 1371, 1375 n. 2 (7th Cir.1988);
Hickey v. Duffy, 827 F.2d 234, 238 (7th Cir.1987). That is
this case, notwithstanding the district judge’s mysterious
statement that he was dismissing the complaint “in its
present state.” The complaint sets forth the plaintiffs’ case
in full; there appear to be no disputed or unclear facts; and
the district judge found that the complaint stated no claim
under federal law and he then relinquished his jurisdiction
of the pendent state law counts in accordance with the
usual rule that pendent claims are dismissed when the
federal claims drop out before trial. The plaintiffs have no
feasible options in the district court; the case is over for
them there. Therefore they can appeal — but it would have
been a lot simpler if either the plaintiffs or the defendants
had asked the district court to enter a Rule 58 judgment
order. We hope that, in the future, parties to litigation in
this circuit will do that.
The plaintiffs’ only federal claims are that they were denied
“substantive” and “procedural” due process. They
expressly waived any claim they may have had that the
defendants, by preventing them from developing the 17acre parcel in accordance with the site plan, took their
property without paying just compensation, in violation of
the Fifth and Fourteenth Amendments. In this court they
try to withdraw their waiver because of intervening

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Supreme Court decisions which they argue have broadened
the concept of a regulatory taking, but their effort is futile.
The taking is complete when it occurs, and the duty to pay
just compensation arises then, see, e.g., First Evangelical
Lutheran Church v. County of Los Angeles, ___ U.S. ___, 107
S.Ct. 2378, 2389 n. 10, 96 L.Ed.2d 250 (1987), but the suit
for just compensation is not ripe until it is apparent that the
state does not intend to pay compensation, Williamson
County Regional Planning Comm’n v. Hamilton Bank, 473 U.S.
172, 194, 105 S.Ct. 3108, 3121, 87 L.Ed.2d 126 (1985);
Unity Ventures v. County of Lake, 841 F.2d 770, 773-74 (7th
Cir.1988). These plaintiffs have not explored the possibility
of obtaining compensation for an alleged regulatory taking.
In fact, they do not want compensation; they want their site
plan approved.
One might have thought that the takings clause would
occupy the field of constitutional remedies for
governmental actions that deprive people of their property,
and hence that the plaintiffs’ waiver of their takings claim
would drag their due process claims down with it. But this
is not correct; pushed to its logical extreme, the argument
would read “property” out of the due process clause of the
Fifth and Fourteenth Amendments. Even limited to claims
of denial of substantive due process the argument may fail.
Rather than being viewed simply as a limitation on
governmental power the takings clause could be viewed as
the source of a governmental privilege: to take property for
public use upon payment of the market value of that
property, since “just compensation” has been held to be
satisfied by payment of market value, see, e.g., United States
v. Reynolds, 397 U.S. 14, 16, 90 S.Ct. 803, 805, 25 L.Ed.2d 12
(1970). Compensation in the constitutional sense is
therefore not full compensation, for market value is not the
value that every owner of property attaches to his property
but merely the value that the marginal owner attaches to his
property. Many owners are “intramarginal,” meaning that

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because of relocation costs, sentimental attachments, or the
special suitability of the property for their particular
(perhaps idiosyncratic) needs, they value their property at
more than its market value (i.e., it is not “for sale”). Such
owners are hurt when the government takes their property
and gives them just its market value in return. The taking in
effect confiscates the additional (call it “personal”) value
that they obtain from the property, but this limited
confiscation is permitted provided the taking is for a public
use. It can be argued that if the taking is not for a public
use, it is unconstitutional, but perhaps not as a taking; for
all the takings clause says is “nor shall private property be
taken for public use, without just compensation.” This
language specifies a consequence if property is taken for a
public use but is silent on the consequences if property is
taken for a private one. Perhaps the effect of this silence is
to dump the case into the due process clause. The taking
would then be a deprivation of property without due
process of law. The victim could bring suit under section
1983 against the governmental officials who took or are
threatening to take his property, seeking an injunction
against the taking (or an order to return the property if, it
has been taken already — subject to whatever defense the
Eleventh Amendment might afford against such a remedy)
or full tort damages, not just market value.
There are two objections to this approach. First, the takings
clause may be broad enough to take care of the problem
without the help of the due process clause. The Supreme
Court may believe that the takings clause, of its own force,
forbids any governmental taking not for a public use, even
if just compensation is tendered. There is language to this
effect in a number of opinions, see, e.g., Hawaii Housing
Authority v. Midkiff, 467 U.S. 229, 241, 104 S.Ct. 2321, 2329,
81 L.Ed.2d 186 (1984), though it may be inadvertent, and
there is language in some cases that looks the other way —
or both ways, compare First English Evangelical Lutheran

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Church v. County of Los Angeles, ___ U.S. ___, 107 S.Ct. 2378,
2385, 96 L.Ed.2d 250 (1987), with id. 107 S.Ct. at 2386
(takings clause requires compensation “in the event of
otherwise proper interference amounting to a taking”). In
Midkiff the Court cited, as an example of a case where it
had “invalidated a compensated taking of property for lack
of a justifying public purpose,” 467 U.S. at 241, 104 S.Ct. at
2329,a case (Missouri Pac. Ry. v. Nebraska, 164 U.S. 403, 417,
17 S.Ct. 130, 135, 41 L.Ed. 489 (1896)) where in fact the
Court, after finding there was no public use, had held that
the state had denied the owner due process of law. In other
words, once the privilege created by the takings clause was
stripped away, the state was exposed as having taken a
person’s property without due process of law. But this was
before the takings clause had been held applicable to the
states (via the due process clause of the Fourteenth
Amendment) in Chicago, Burlington & Quincy R.R. v. City of
Chicago, 166 U.S. 226, 236, 17 S.Ct. 581, 584, 41 L.Ed. 979
(1897) — though only a year before.
It seems odd that the takings clause would require just
compensation when property was taken for a public use yet
grant no remedy when the property was taken for a private
use, although the semantics of the clause are consistent
with such an interpretation, as we have seen. Yet well after
the takings clause was deemed absorbed into the due
process clause of the Fourteenth Amendment, the Supreme
Court reviewed a zoning ordinance for conformity to
substantive due process. See Euclid v. Ambler Realty Co., 272
U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). Justice Stevens
has said that the Court in Euclid “fused the two express
constitutional restrictions on any state interference with
private property — that property shall not be taken without
due process nor for a public purpose without just
compensation — into a single standard.” Moore v. City of
East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 1943, 52
L.Ed.2d 531 (1977) (concurring opinion).

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The other objection to the due process route in a case such
as the present one is that it depends on the idea of
“substantive” due process. This is the idea that depriving a
person of life, liberty, or property can violate the due
process clause of the Fifth and Fourteenth Amendments
even if there are no procedural irregularities — even if, for
example, the state after due deliberation has passed a
statute establishing procedures for taking private homes
and giving them to major campaign contributors or people
with red hair, and in taking the plaintiff’s home has
complied scrupulously with the statute’s procedural
requirements.
Substantive due process is a tenacious but embattled
concept. Text and history, at least ancient history, are
against it, though perhaps not decisively. (See generally
Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due
Process of Law, 19 Am.J. Legal Hist. 265 (1975).) A provision
which states that life, liberty, or property may not be taken
without due process of law implies that life, liberty, or
property can be taken with due process of law, and hence
that the only limitations are procedural ones. The term
“due process of law” has been traced back to a fourteenthcentury English statute, in which the term plainly referred
to procedure rather than substance. See 28 Edw. III, ch. 3
(1354) (“no man … shall be put out of land …, nor taken,
nor imprisoned, nor disinherited, nor put to death, without
being brought into answer by due process of law”). In the
seventeenth century Sir Edward Coke confused the picture
by equating the term to Magna Carta’s much vaguer
expression “by the law of the land.” The Supreme Court
adopted Coke’s approach in Murray’s Lessee v. Hoboken Land
& Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed.
372 (1856), pointing out that the Northwest Ordinance and
several state constitutions had used the Magna Carta
language and implying that the terminology was
interchangeable in the Fifth Amendment as well. Even so,

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the term “law of the land” is scarcely pellucid. Further
complications are injected by the much debated legislative
history of the Fourteenth Amendment.
The strongest criticisms of substantive due process are
institutional ones. The concept invests judges with an
uncanalized discretion to invalidate federal and state
legislation. See Illinois Psychological Ass’n v. Falk, 818 F.2d
1337, 1342 (7th Cir.1987); Gumz v. Morrissette, 772 F.2d
1395, 1404-08 (7th Cir.1985) (concurring opinion),
overruled (on the grounds urged in the concurrence) in
Lester v. City of Chicago, 830 F.2d 706 (7th Cir.1987); Chicago
Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 744-45
(7th Cir.1987) (separate majority opinion). It also and by
the same token invites the federal courts to sit in judgment
on almost all state action — including, to come back to the
present case, all zoning decisions. For it is tempting to view
every zoning decision that is adverse to the landowner and
in violation of state law as a deprivation of property.
Property is not a thing, but a bundle of rights, and if the
state confers rights with one hand and takes them away
with the other, by a zoning decision that by violating state
law deprives the owner of a property right and not just a
property interest (the owner’s financial interest in being
able to employ his land in its most valuable use), why is it
not guilty of denying substantive due process?
No one thinks substantive due process should be
interpreted so broadly as to protect landowners against
erroneous zoning decisions. But it is difficult to come up
with limiting concepts that are not completely ad hoc.
Justice Stevens tried — though in the context of judicial
review of an ordinance, rather than of an individual
decision applying an ordinance — in his concurring
opinion in Moore v. City of East Cleveland, supra, 431 U.S. at
520, 97 S.Ct. at 1946, where he suggested that an ordinance
that is not “shown to have any ‘substantial relation to the
public health, safety, morals or general welfare’” and that

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“cuts deeply into a fundamental right associated with the
ownership of residential property” violates the
Constitution.
The present case is so remote from a plausible violation of
substantive due process that we need not decide whether,
or to precisely what extent, the concept limits takings by
state and local governments; or whether the takings clause
does so; or whether both or neither do so and if both
whether there is any practical difference except possibly in
a case like this where the plaintiff waives any claim based
on the takings clause; or, finally, whether the plaintiffs can
force us to confront difficult questions of substantive due
process by their decision to waive a seemingly more
straightforward claim under the takings clause. The Village
of Hoffman Estates did not take the plaintiffs’ land (or in
the language of the due process clause, deprive them of the
land) for a private (hence presumptively unreasonable)
purpose, so even if we assume that if both conditions were
fulfilled the taking or deprivation would violate the due
process clause, the plaintiffs cannot prevail.
As to whether there was a deprivation: Granted, the
rejection of the plaintiffs’ site plan probably reduced the
value of their land. The plan must have represented their
best guess about how to maximize the value of the
property, and almost certainly a better guess than
governmental officials would make even if the officials
were trying to maximize that value, which of course they
were not. But the plaintiffs do not even argue that the
rejection of the site plan reduced the value of their parcel
much, let alone that the parcel will be worthless unless it
can be used to create 181,000 square feet of office space. A
taking is actionable under the takings clause even if it is of
just a sliver of the owner’s property (e.g., a one-foot strip at
the back of a 100-acre estate), see Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73
L.Ed.2d 868 (1982), and we can assume that the same thing

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is true under the due process clause. But in cases under the
takings clause the courts distinguish between taking away
all of the owner’s rights to a small part of his land and
taking away (through regulation) a few of his rights to all of
his land, and grant much broader protection in the first
case. With Loretto compare City of Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668, 674 and n. 8, 96 S.Ct. 2358,
2362 and n. 8, 49 L.Ed.2d 132 (1976); Barbian v. Panagis, 694
F.2d 476, 483-85 (7th Cir.1982), and cases cited there. The
plaintiffs in this case have been deprived of their “right” to
create 181,000 square feet of office space on a 17-acre
parcel of a much larger tract, and that deprivation is a
limited, perhaps minimal, incursion into their property
rights. If so it is not a deprivation at all, in the
constitutional sense, and the due process clause is not in
play. See Wells Fargo Armored Service Corp. v. Georgia Public
Service Comm’n, 547 F.2d 938, 941 (5th Cir.1977); cf. Brown v.
Brienen, 722 F.2d 360, 364 (7th Cir.1983) (dictum); York v.
City of Cedartown, 648 F.2d 231 (5th Cir.1981) (per curiam).
Considering now the grounds as distinct from the
consequences of the defendants’ action, it may seem that
since the Board of Trustees gave no reason for rejecting the
plan we cannot exclude the possibility that the motive for
the rejection was private, so that if (but it is a big if, as we
have just seen) the rejection amounted to a taking or
deprivation of property the plaintiffs’ constitutional rights
may have been violated. And even if, as seems plausible,
the reason given by one trustee was the ground for the
Board’s rejection of the site plan, this reason seems to
amount to nothing more than a desire to protect existing
owners of office buildings from new competition, and thus
makes the rejection look like an effort to transfer wealth
from the plaintiffs to the existing owners. But as
emphasized in our opinion in the Chicago Board of Realtors
case, much governmental action is protectionist or
anticompetitive, see 819 F.2d at 742, 745; and nothing is

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more common in zoning disputes than selfish opposition
to zoning changes. The Constitution does not forbid
government to yield to such opposition; it does not outlaw
the characteristic operations of democratic (perhaps of any)
government, operations which are permeated by pressure
from special interests. Rogin v. Bensalem Township, 616 F.2d
680, 687-88 (3d Cir.1980). There is no suggestion that the
defendants acted out of some partisan political motive that
might raise questions under the First Amendment or, one
of our sister courts has suggested recently, under some
notion of substantive due process, see Bello v. Walker, 840
F.2d 1124, 1129 (3d Cir.1988).
This case presents a garden-variety zoning dispute dressed
up in the trappings of constitutional law — a sure sign of
masquerade being that the plaintiffs do not challenge the
constitutionality of the zoning ordinances of the Village of
Hoffman Estates but argue rather than the Board of
Trustees had no authority under those ordinances to reject
their site plan once the Village Plan Commission had
approved it. If the plaintiffs can get us to review the merits
of the Board of Trustees’ decision under state law, we
cannot imagine what zoning dispute could not be
shoehorned into federal court in this way, there to displace
or postpone consideration of some worthier object of
federal judicial solicitude. Something more is necessary than
dissatisfaction with the rejection of a site plan to turn a
zoning case into a federal case; and it should go without
saying that the something more cannot be merely a
violation of state (or local) law. A violation of state law is
not a denial of due process of law. See, e.g., Hebert v.
Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed.
270 (1926); Kompare v. Stein, 801 F.2d 883, 888 (7th
Cir.1986); Kasper v. Board of Election Comm’rs, 814 F.2d 332,
342 (7th Cir.1987).
Thus we agree with the First Circuit’s decision in Creative
Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st

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Cir.1982), that the fact “that town officials are motivated by
parochial views of local interests which work against
plaintiffs’ plan and which may contravene state subdivision
laws” (or, we add, local ordinances) does not state a claim
of denial of substantive due process. We cited Estabrook
with approval in Burrell v. City of Kankakee, 815 F.2d 1127,
1129 (7th Cir.1987). It is true that there we interpreted
Estabrook to mean that “in order to prevail on a substantive
due process claim, plaintiffs must allege and prove that the
denial of their proposal is arbitrary and unreasonable
bearing no substantial relationship to the public health,
safety or welfare,” id. This formulation, borrowed from
Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114,
121, 71 L.Ed. 303 (1926), which dealt with the validity of
zoning ordinances, not of individual zoning decisions
where arguably the standard of federal judicial review
should be narrower, is broadly worded indeed; but the only
example we gave of a zoning decision that might flunk the
test was one based on race or color, see 815 F.2d at 1129.
Of course if a zoning decision is based on considerations
that violate specific constitutional guarantees, it is invalid;
but in all other cases the decision can be said to deny
substantive due process only if it is irrational. See Shelton v.
City of College Station, 780 F.2d 475, 479-83 (5th Cir.1986);
Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023,
1034-35 (3d Cir.1987). Thus, by “arbitrary and
unreasonable” in Burrell we meant invidious or irrational.
See also Unity Ventures v. County of Lake, supra, 841 F.2d at
775 n. 2. The same test would be appropriate if the zoning
decision were challenged under the equal protection clause
of the Fourteenth Amendment, rather than under the due
process clause of the Fifth or Fourteenth Amendments. See
id.; Parks v. Watson, 716 F.2d 646, 654 (9th Cir.1983) (per
curiam).
At worst, the decision here was mistaken and protectionist;
it was not irrational, so the claim of a denial of substantive

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due process fails. But were the plaintiffs denied procedural
due process? As often, the line between “procedure” and
“substance” is hazy in the setting of the regulation of land
uses. The denial of the plaintiffs’ site plan without a full
statement of reasons is what gives the denial such arbitrary
cast as it may have, and thus lends color to the claim of
irrationality, which is the substantive due process claim; but
the failure to give reasons is also the cornerstone of the
procedural due process claim. It is no good saying that if a
person is deprived of property for a bad reason it violates
substantive due process and if for no reason it violates
procedural due process. Unless the bad reason is invidious
or irrational, the deprivation is constitutional; and the noreason case will sometimes be a case of invidious or
irrational deprivation, too, depending on the motives and
consequences of the challenged action.
The plaintiffs complain not only about the absence of a
statement of reasons but also about the Board of Trustees’
action in going into executive session and about the
absence of any language in the Village’s ordinances to
indicate that the Board of Trustees is authorized to reject a
site plan recommended by the Plan Commission. These
complaints might have considerable force if the zoning
decision had been adjudicative in nature, but it was not.
The very absence of criteria, coupled with the fact that the
Village Board of Trustees is the governing body of the
Village of Hoffman, suggests that, as is usually true of
zoning, the Board’s decision to approve or disapprove a
site plan is a legislative rather than adjudicative decision.
The difference is critical. See Bi-Metallic Investment Co. v. State
Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed.
372 (1915); City of Eastlake v. Forest City Enterprises, Inc.,
supra, 426 U.S. at 675 n. 10, 96 S.Ct. at 2363 n. 10; Griffin
High School v. Illinois High School Ass’n, 822 F.2d 671, 676
(7th Cir.1987); Philly’s v. Byrne, 732 F.2d 87, 92 (7th
Cir.1984). The Constitution does not require legislatures to

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use adjudicative-type procedures, to give reasons for their
enactments, or to act “reasonably” in the sense in which
courts are required to do; as already noted, legislatures can
base their actions on considerations — such as the desire
of a special-interest group for redistributive legislation in its
favor — that would be thought improper in judicial
decision-making. It is odd, though, that the plaintiffs
should complain about the action of the Board of Trustees
in considering their request for reconsideration in executive
session; judicial deliberations are typically more private than
legislative ones.
It is not labels that determine whether action is legislative
or adjudicative. A legislature is not allowed to circumvent
the due process clause by the facile expedient of
announcing that the state’s courts and administrative
agencies are henceforth to be deemed legislative bodies
even though nothing in their powers and procedures has
changed. But neither is the legislature required to judicialize
zoning, and perhaps it would not be well advised to do so.
The decision whether and what kind of land uses to permit
does not have the form of a judicial decision. The potential
criteria and considerations are too open-ended and illdefined. Granted, much modern adjudication has this
character, but the difference is that even modern courts
hesitate to treat the decision-making process as a wideopen search for the result that is just in light of all possible
considerations of distributive and corrective justice, while
legislatures are free to range widely over ethical and
political considerations in deciding what regulations to
impose on society. The decision to make a judgment
legislative is perforce a decision not to use judicial
procedures, since they are geared to the making of more
circumscribed, more “reasoned” judgments. Moreover, if a
state legislature wishes to reserve to itself the type of
decision that in other systems might be given to the
executive or judicial branches, it can do so without violating

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the federal Constitution, which does not require a specific
separation and allocation of powers within state
government. See Highland Farms Dairy, Inc. v. Agnew, 300
U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); United
Beverage Co. v. Indiana Alcoholic Beverage Comm’n, 760 F.2d 155
(7th Cir.1985). It has been argued that the need for
separation of powers is even greater at the state than the
national level, because a smaller polity is more susceptible
to the pressure of factions than a large one. See Comment,
The Guarantee of Republican Government: Proposals for Judicial
Review, 54 U.Chi.L.Rev. 208, 234-35 (1987). The
counterargument is that there is more intergovernmental
competition the lower the level of government. The debate
is foreclosed at our level of the judiciary by higher
authority.
The Board of Trustees is the Village’s legislature, LaSalle
National Bank v. Village of Bloomingdale, 154 Ill.App.3d 918,
928-29, 107 Ill.Dec. 604, 611, 507 N.E.2d 517, 524 (1987),
and it has reserved to itself the final decision in zoning
matters. Naturally it has not sought to tie its hands with
criteria for approval of site plans or with a requirement that
it give reasons for its action and always act in a fishbowl.
The check on its behavior is purely electoral, but, as the
Supreme Court stated in the City of Eastlake case, in a
democratic polity this method of checking official action
cannot be dismissed as inadequate per se. See also BiMetallic Investment Co. v. State Board of Equalization, supra, 239
U.S. at 445, 36 S.Ct. at 142; Philly’s v. Byrne, supra, 732 F.2d
at 91-93.
A reason stressed in Philly’s why legislatures are not
required to follow trial-type procedures is the across-theboard character of legislation. See id. at 92. A statute, unlike
a judicial decision, applies directly to a whole class of
people, and it is this attribute that makes democractic
checking feasible, though it is far from perfect. The smaller
the class affected by a nominally legislative act, the weaker

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the democratic check; in the limit, where the class has only
one member, we have the bill of attainder, which Congress
and state legislatures are forbidden to enact. See U.S.
Const., art. I, §§ 9, 10; Philly’s v. Byrne, supra, 732 F.2d at 93.
The class here is small. This might support an argument
that some type of individualized hearing was required. See
Londoner v. City & County of Denver, 210 U.S. 373, 385-86, 28
S.Ct. 708, 713-14, 52 L.Ed. 1103 (1908). City of Eastlake,
upholding the decision to submit a single landowner’s
zoning application to a referendum, cuts the other way. In
any event, there was a hearing here — maybe not enough
of one to satisfy the requirements of due process in an
adjudicative setting but enough to give the plaintiffs all the
process that due process in zoning could possibly be
thought to require after City of Eastlake.
One point remains to be noted briefly. The district court
dismissed a pendent state law claim that sought a
mandamus directing the defendants to approve the
plaintiffs’ site plan. The ground for the dismissal was, as we
noted, the fact that the federal claims were being dismissed
before trial. That is fine, but we think it useful to add for
future reference that the court had in any event no
jurisdiction to issue a mandamus against state officials for
violating their duties under state law. The interference with
the operation of state government from such a mandamus
would be disproportionate to the need, which can be
satisfied perfectly well (if perhaps with some loss of
convenience) by proceeding in state court. The interference
would be even greater than that caused by the usual
injunction — and the Supreme Court has held that the
federal courts’ pendent jurisdiction may not be used as a
basis for enjoining state officials from violating state law.
See Pennhurst State School & Hospital v. Halderman, 465 U.S.
89, 106, 120-21, 104 S.Ct. 900, 918-19, 79 L.Ed.2d 67
(1984).
AFFIRMED.

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3.1.2. State Courts
Twigg v. County of Will,255 Ill. App.3d 490
627 N.E.2d 742, (1994)
John X. Breslin, Deputy Director, State’s Attys. Appellate
Prosecutor, Ottawa, James Glasgow, Will County State’s
Atty., Joliet, Judith Z. Kelly (argued), State’s Attys.
Appellate Prosecutor, Ottawa, for County of Will.
Thomas R. Wilson (argued), Herschbach, Tracy, Johnson,
Bertani & Wilson, Joliet, for John W. Twigg and Anna M.
Twigg.
JUSTICE BARRY delivered the opinion of the court.
Defendant County of Will appeals from a judgment of the
Circuit Court of Will County declaring defendant’s county
zoning ordinance void and unconstitutional as applied to
the property of plaintiffs John W. and Anna Twigg and
granting injunctive relief to restrain defendant from
enforcing its A-1 (agricultural) zoning regulation with
respect to the subject real estate. The issue in this appeal is
whether the trial court’s decision is contrary to the manifest
weight of the evidence. For reasons that follow, we affirm.
According to the record on appeal, plaintiffs purchased a
35-acre parcel of land in Peotone Township zoned A-1 for
$3750 per acre in 1991. John Twigg testified that he knew
the zoning classification at the time of the purchase, but he
was not aware that the corresponding county ordinance
required a minimum of 10 acres per residential unit. He
testified that he had intended to divide the real estate into
four parcels to provide separate residential lots for himself
and his three adult children and to raise and keep horses.
However, because of complaints of an adjoining propertyowner, plaintiffs sold off the eastern-most 10 acres for
$50,000. They then proposed to divide the remaining
acreage into two 10-acre lots for one son and their
daughter, and to split the last 5 acres into two lots of 2 1/2
acres each for themselves and their other son. Because

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plaintiffs’ plans for the five acres did not conform with the
A-1 classification, they petitioned the Will County Board to
rezone the five acres from A-1 to E-2, which permits
country residential lots of 2 1/2 acres. The Board denied
plaintiffs’ application, and they brought their complaint for
declaratory and injunctive relief in the circuit court.
At trial, plaintiffs presented expert testimony of Thomas
Murphy, a land use planner, and Charles Southcomb, a real
estate appraiser. Murphy testified that E-2 zoning was a
good use of the five-acre parcel and that it would have a
positive effect on the future development of the
surrounding area in that it would increase tax values while
providing attractive residences in the immediate area. He
further opined that the current A-1 zoning had no practical
application and its 10-acre limitation was “somewhat
arbitrary” as applied to plaintiffs’ proposed use. As a
former director of the Will County Regional Planning
Commission, Murphy testified that in his opinion the
county had assigned A-1 classification arbitrarily to all tracts
in Will County that were not otherwise used for nonagricultural purposes when the county zoning ordinance
was adopted in 1978. He testified that the county had a
history of turning down all applications for rezoning to
develop parcels of less than 10 acres. Finally, Murphy
testified that denial of plaintiffs’ proposed use of the fiveacre parcel for two single-family residences adjacent to their
daughter’s horse-keeping operation would do nothing to
preserve the agricultural character of the surrounding area.
Southcomb testified that the plaintiffs’ proposed use of the
five-acre parcel as two lots zoned E-2 was the highest and
best use. He testified that the market value of the land as
currently zoned was $5000 per acre, and that using a
comparable sales analysis it would be $12,000 per acre if
rezoned E-2.
James Shelby, Director of Planning for Will County, and
Bruce Clover, a farmer in the immediate area, testified on

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defendant’s behalf. Shelby testified that there were no
parcels zoned E-2 within a 1 1/2-mile radius of the subject
property. However, he admitted that there are about five
non-conforming parcels with residences on less than 10acre lots within that 1 1/2-mile radius. These all had been
in existence prior to the enactment of the 1978 zoning
ordinance. Shelby testified that residential development was
generally incompatible with agricultural use because the
homeowners complained about farming practices. He also
expressed concern about setting a precedent for residential
development if the rezoning were allowed in this case.
Clover testified that he had leased the subject real estate
from the prior owner and had himself netted about $150
per acre per year on a crop-share basis. He stated that he
bore no animosity toward the plaintiffs, but that
agricultural use was incompatible with residential
development to the extent that mail boxes and garbage
cans along the roadways might hinder the movement of
farm machinery, or children playing in the area might
damage terraces and downspouts. Clover agreed that the
soil was “excellent” for growing crops, including alfalfa,
and for pasturing horses.
At the conclusion of all testimony and closing arguments of
counsel, the court took the matter under advisement. On
February 22, 1993, a written decision was entered granting
declaratory and injunctive relief for plaintiffs, as aforesaid.
Zoning is primarily a legislative function, and it is within
the province of local governmental bodies to determine the
use of land and to establish zoning classifications.
Accordingly, a zoning ordinance will be deemed
constitutional and its validity upheld if it bears any “
‘substantial relationship to the public health, safety,
comfort or welfare.’ ” ( La Grange State Bank v. County of
Cook (1979), 75 Ill.2d 301, 26 Ill.Dec. 673, 675-76, 388
N.E.2d 388, 390-91 ( quoting Tomasek v. City of Des
Plaines (1976), 64 Ill.2d 172, 179-80, 354 N.E.2d 899, 903).)

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A party challenging the validity of a zoning ordinance must
establish both the invalidity of the existing zoning
ordinance and the reasonableness of the proposed use of
the property. ( Glenview State Bank v. Village of Deerfield
(1991), 213 Ill.App.3d 747, 758, 157 Ill.Dec. 330, 338, 572
N.E.2d 399, 407.) The party challenging the ordinance has
the burden of proving by clear and convincing evidence
that the application of the ordinance to the property is
“unreasonable and arbitrary and bears no substantial
relation to public health, safety, morals, or welfare.”
(Cosmopolitan National Bank v. County of Cook (1984),
103 Ill.2d 302, 310, 82 Ill.Dec. 649, 653, 469 N.E.2d 183,
187.) An appellate court may not reverse the trial court’s
findings unless such findings are against the manifest
weight of the evidence. ( Glenview State Bank, 213
Ill.App.3d at 759, 157 Ill.Dec. at 309, 572 N.E.2d at 408.)
The trier of fact is in a better position to assess the
credibility of the witnesses and their opinions, and the
reviewing court may not reverse simply because the
reviewing court may have come to a different conclusion.
Glenview State Bank, 213 Ill.App.3d at 759-60, 157 Ill.Dec.
at 309, 572 N.E.2d at 408.
There are eight factors to consider in determining whether
a zoning ordinance is valid. The first six factors were listed
in La Salle National Bank v. County of Cook (1957), 12
Ill.2d 40, 46-47, 145 N.E.2d 65, 69. They are: (1) the
existing uses and zoning of nearby property; (2) the extent
to which property values are diminished by the particular
zoning restrictions; (3) the extent to which the destruction
of property values of plaintiff promote the health, safety,
morals or welfare of the public; (4) the relative gain to the
public as compared to the hardship imposed upon the
individual property owner; (5) the suitability of the subject
property for the zoned purposes; and (6) the length of time
the property has been vacant as zoned considered in the
context of land development in the area in the vicinity of

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the subject property. The final two factors set forth in
Sinclair Pipeline Co. v. Village of Richton Park (1960), 19
Ill.2d 370, 378, 167 N.E.2d 406, 411, are: (7) the care that
the community has taken to plan its land use development,
and (8) the community need for the proposed use.
Although no one factor is controlling, the first factorexisting uses and zoning of nearby property-is “of
paramount importance.” (Glenview State Bank, 213
Ill.App.3d at 760, 157 Ill.Dec. at 309, 572 N.E.2d at 408.)
Defendant argues in this appeal that this factor weighs
heavily in its favor. We do not agree. As plaintiffs correctly
point out, the quarter section in which the subject property
is situate is divided into nine other ownerships, three of
which contain less than ten acres. Plaintiffs’ five-acre parcel
lies in the northwest corner of the quarter section, and
within the 1 1/2-mile radius surrounding it, several
residences on parcels of less than ten acres are established.
Although none are zoned E-2 and were existing prior to
the 1978 ordinance, the uses of nearby property are not
inconsistent with the E-2 use plaintiffs propose for the
five-acre parcel in question. The trial court specifically
noted that the existing, non-conforming uses of the
surrounding property did not support the county’s position
in this case. We find that the trial court’s conclusion is not
contrary to the manifest weight of the evidence.
With regard to the second factor, defendant argues that the
trial court mistakenly focused on the property’s increase in
market value if rezoned E-2 instead of the diminution of
value, if any, as currently zoned A-1. We agree in part that
the fact that rezoning would enhance the property’s value is
not determinative. However, the evidence presented to the
court established that the highest and best use of the
property was E-2, and there was no evidence that the value
of surrounding property would be diminished by plaintiffs’
proposed use. Thus, to the extent that evidence of property

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value was presented, we do not find that the trial court
erred in weighing this factor in plaintiffs’ favor.
The third and fourth factors, similarly, support the trial
court’s conclusion. Although there is no question that
public morals are not at risk if the rezoning is granted, there
was some testimony that farming practices are not
compatible with residential use. On the other hand,
plaintiffs’ expert witnesses testified that the A-1 limitation
was not substantially related to issues of public health,
safety or general welfare. Plaintiffs propose to build two
residences on five acres adjacent to their daughter’s horsekeeping operation-one for themselves, and the other for an
adult son. Even defendant’s expert witness could not deny
that the horses were an agricultural enterprise. Defense
witnesses’ suggestion that rezoning in this case would set
an unfavorable precedent for future property owners was
purely speculative, self-serving and appropriately
discounted by the trial court in weighing the parties’
evidence. And, inasmuch as plaintiffs’ proposed use of the
entire 25-acre parcel was to unite his family and promote
animal husbandry, thereby preserving the agricultural
character of the area, there is little, if any, public gain to be
realized by enforcing the A-1 classification, and great
hardship would be imposed on plaintiffs to deny the
zoning change.
Factors five and six, as the court noted in its written
decision, do not establish the invalidity of the ordinance.
There is no dispute that the land is suitable for agricultural
use and that it was actively farmed prior to plaintiffs’
purchase of it.
With respect to factor seven, the evidence tended to show
that the current zoning of the area, including plaintiffs’
tract, was assigned in an arbitrary manner without
considering the several non-conforming uses existing when
the land-use plan was adopted and the zoning ordinance
was enacted. The former planning director testified that he

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had expressed his disagreement with the across-the-board
A-1 classification, but that he was overruled by the time the
plan was presented for approval in 1978. A later Land
Resource Management Plan adopted in 1990 pursuant to
the State Local Land Resource Management Planning Act
(50 ILCS 805 (West 1992)) similarly failed to take into
consideration the various residences on parcels under ten
acres surrounding plaintiffs’ property. Thus, despite the
county board’s consistent denial of petitions for rezoning,
the trial court’s conclusion that the land use plan was not
carefully designed is supported by the evidence of record.
Lastly, although no community need for rezoning was
demonstrated (factor eight), a need for rezoning was shown
to exist for plaintiffs in order to accommodate their interest
in uniting with their adult children in a country
environment. Mr. Twigg testified that he had looked at
other parcels in other townships, but the size and selling
price made this particular 35-acre tract appropriate for his
purposes. The promotion of family unity and animal
husbandry in this case is consistent with the community
interest in preserving A-1 agricultural zoning generally.
Although no one factor definitively established the
invalidity of defendant’s ordinance in this case, it is clear
that the court gave great weight to its finding that plaintiffs’
proposed use of the remaining 25 acres of the original 35acre land purchase was generally in harmony with both the
current A-1 agricultural zoning and existing nonconforming uses for smaller residential parcels in the
surrounding area. In our opinion, the court acted within its
discretion in analyzing the factors and weighting them
within the context of the evidence presented here.
In sum, we find that the trial court’s conclusion that
enforcement of the zoning ordinance prohibiting plaintiffs’
proposed development of the five-acre parcel “is arbitrary
and bears no substantial or reasonable relation to public
health, safety, morals, comfort and general welfare” is not

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contrary to the manifest weight of the evidence.
Accordingly, we affirm the court’s judgment declaring the
ordinance void and unconstitutional as applied to plaintiffs’
property and enjoining the defendant from prohibiting the
building of two residences on the five-acre parcel as
proposed.
The judgment of the Circuit Court of Will County is
affirmed.
Affirmed.
McCUSKEY and LYTTON, JJ., concur.
Amberwood Development Corporation v. Board of
Appeals of Boxford
65 Mass. App. Ct. 205 (2005)
Katharine Goree Doyle for the defendants.
Alan L. Grenier for the plaintiffs.
MILLS, J.
In an action brought by Amberwood Development
Corporation (Amberwood) under G. L. c. 240, § 14A, a
judge of the Land Court, reversing the zoning board of
appeals of Boxford (board), ruled that the application of a
provision that prohibits the further subdivision of a lot that
has benefited from an exception to a frontage requirement
in the zoning by-law, while otherwise valid, was
unconstitutional as applied to Amberwood’s lot of
residentially zoned land.1 This is the town’s appeal. We
reverse.

1 Amberwood had initially sought relief in the Land Court under G. L. c. 40A, §

14A, from the board’s denial of its request for a variance. The plaintiffs waived
their appeal of that decision in the Land Court and, therefore, that appeal is not
before this court. Amberwood also included in its count under G. L. c. 240, § 14A,
a claim that the by-law provision was generally invalid. That claim of general
invalidity has been abandoned and is, therefore, deemed waived.

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1. Background.2 Amberwood owns an 8.1 acre lot of land on
Georgetown Road in Boxford.3 The lot was created in 1997
when Amberwood obtained approval to subdivide a tract
containing approximately twenty-two acres into four
separate lots, including the locus.4 John C. Sanidas, as
trustee of the Sanidas Family Trust, is the owner of, and
resident at, 7 Amberwood Lane (Sanidas house lot), which
abuts the locus to the north.5
Both the locus and the Sanidas house lot are in a residential
zoning district where the minimum lot area is two acres,
and the minimum street frontage is 250 feet. The locus has
frontage of only one hundred feet along Georgetown Road,
but Amberwood was able to build a single family home on
the locus by taking advantage of a “frontage exception for
larger lots” (frontage exception) in the Boxford zoning bylaw, § 196-24.D(3), which provides as follows:
“(a) Notwithstanding the [otherwise
applicable dimensional provisions,
including minimum street frontage of
250 feet], a lot in an R-A ResidenceAgricultural District need not have the
specified amount of street frontage,
provided that:
“[1] The area of the lot exceeds by
at least four acres the minimum
2 Facts are essentially taken from the judge’s succinct and thoughtful decision on

cross motions for summary judgment. There appears, as between the parties, no
genuine dispute as to any of the material facts.
3 We will call the lot the “locus.” It is a single lot, though shown as parcels C-1 and

C-2, collectively, on a sketch plan in the addendum to this opinion.
4 The locus evolved and changed slightly from a lot that was created in the 1997

subdivision plan. To the extent relevant, for purposes of this decision, the locus is
essentially one of four lots created by Amberwood in its 1997 subdivision.
5 At the time of proceedings before the town with respect to this case, Sanidas was

the president and treasurer of Amberwood.

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area required for such an R-A
District;
“[2] The lot has a minimum
continuous street frontage of not
less than 50 feet and a width of not
less than 50 feet at any point
between the street and the site of
the dwelling;
“[3] There is not more than one
other such lot with frontage
contiguous to it; and
“[4] It is not, in the opinion of the
Planning Board, so located as to
block the possible future extension
of a dead-end street.
“(b) Notwithstanding any other provisions,
no such lot as described in Subsection D(3)(a)
above on which a dwelling is located shall be
hereafter subdivided, reduced in area”
(emphasis added).
In March of 2000, Amberwood, seeking to convey a twoacre portion of the locus (parcel C-2) to become part of the
Sanidas house lot, sought a variance (G. L. c. 40A, § 10)
from subsection (b) of the frontage exception provision
which otherwise prohibited the two-acre reduction of the
area of the 8.1 acre locus, a lot that had been created by
Amberwood utilizing subsection (a) of that provision.
When the board denied the variance request, Amberwood
appealed pursuant to G. L. c. 40A, § 17, adding a second
count to its complaint pursuant to G. L. c. 240, § 14A,
challenging the frontage exception provision generally and
as applied to the locus in these circumstances.
The Land Court judge noted the legitimacy of the purposes
for the frontage exception, ruling it a valid zoning by-law

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provision. However, upon the precedent of Barney & Carey
Co. v. Milton, 324 Mass. 440 (1949), and Pittsfield v. Oleksak,
313 Mass. 553 (1943), she ruled that the by-law provision
could not legitimately be applied to the locus. The judge
decided that the principal purposes of that provision of the
by-law, preservation of open space and prevention of
further development, would remain unoffended and
unaffected by the conveyance out of the two-acre parcel.
She further noted that Amberwood had announced, in
argument before the Land Court, that a restrictive covenant
would be in place upon the two-acre parcel when conveyed
and that it would remain essentially untouched, as open
space not susceptible to development.6 The judge
essentially ruled that application of the by-law provision in
this case was not necessary to effect its purposes.
2. Discussion. General Laws c. 240, § 14A,7 applies only to
the Land Court, and provides for declaratory relief without

6 The town challenges reliance by the judge upon such a covenant, asserting that it

had never been presented in the proceedings before the local government. We need
not further consider the judge’s reference, or the town’s concern, in view of our
disposition of this case.
7 General Laws c. 240, § 14A, as amended through St. 1977, c. 829, § 14, provides,

in relevant part:

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an existing controversy. See Hansen & Donahue, Inc. v.
Norwood, 61 Mass. App. Ct. 292, 293 (2004). The Land
Court has exclusive jurisdiction in such cases, G. L. c. 185,
§ 1(j), and it has become common for zoning appeals
pursuant to G. L. c. 40A, § 17, especially from denial of
variance requests, to be accompanied by a count under G.
L. c. 240, § 14A, concerning the validity or invalidity of a
zoning restriction applicable to a specific lot or use. The
Land Court is considered a particular court of competence
in such matters. See Harrison v. Braintree, 355 Mass. 651, 654
(1969). See also Kindercare Learning Centers, Inc. v. Westford, 62
Mass. App. Ct. 924 (2004).
“The primary purpose of proceedings under § 14A is to
determine how and with what rights and limitations the
land of the person seeking an adjudication may be used
under the provisions of a zoning enactment in terms
applicable to it, particularly where there is no controversy
and hence no basis for other declaratory relief.” Hansen &
Donahue, Inc. v. Norwood, 61 Mass. App. Ct. at 295, quoting
from Harrison v. Braintree, 355 Mass. at 654. Section 14A is
“The owner of a freehold estate in possession in land may
bring a petition in the land court against a city or town
wherein such land is situated, which shall not be open to
objection on the ground that a mere judgment, order or
decree is sought, for determination as to the validity of a
municipal ordinance, by-law or regulation, passed or
adopted under the provisions of chapter forty A or under
any special law relating to zoning, so called, which
purports to restrict or limit the present or future use,
enjoyment, improvement or development of such land, or
any part thereof, or of present or future structures
thereon, including alterations or repairs, or for
determination of the extent to which any such municipal
ordinance, by-law or regulation affects a proposed use,
enjoyment, improvement or development of such land by
the erection, alteration or repair of structures thereon or
otherwise as set forth in such petition … . The court may
make binding determinations of right interpreting such
ordinances, by-laws or regulations whether any
consequential judgment or relief is or could be claimed or
not.”

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to be broadly construed, Hansen & Donahue, supra, although
the burden is on the landowner to prove that the zoning
regulation is unreasonable as applied to its property. See
Kaplan v. Boston, 330 Mass. 381, 384 (1953). While the
availability of the remedy is not restricted to situations in
which the purchase and sale of the locus is pending, in
Whitinsville Retirement Soc., Inc. v. Northbridge, 394 Mass. 757,
763 (1985), the court explained that “[t]he evil to be
remedied” by G. L. c. 240, § 14A, is “a situation where
someone may be forced to invest in land and then
subsequently find[s] out there are restrictions.” See Clark &
Clark Hotel Corp. v. Building Inspector of Falmouth, 20 Mass.
App. Ct. 206, 210 (1985).8
The town argues that for a by-law provision to be found
invalid as applied, the court must find both a failure to
promote the purposes of the by-law and significant injury
to the property owner, and that neither alone warrants a
determination of invalidity. The town then asserts that the
judge did not find injury to the landowner, that the
landowner made no effort to show any injury, and that
none is evident from the record. The landowner argues that
(a) the judge’s decision is consistent with public policy
because parcel C-2 will remain open space and
undeveloped; (b) there is no second branch to the analysis,
that is, injury to the property owner; and (c) the plaintiff
intends to covenant in perpetuity, nevertheless, to prevent
further development of parcel C-2.
We conclude that there is, essentially, a second branch to
the analysis, and we are persuaded by the town’s argument.
Although the cases have not explicitly articulated a second
8 As to application of the statute, the court in Harrison v. Braintree, 355 Mass. at 654-

655, said, “We deem appropriate a broad construction of c. 240, § 14A. With court
dockets greatly overloaded, access to particular courts of competence in the general
field should not be restricted on narrow grounds and the need for attention to
nonsubstantive issues should be minimized.” As such, we pay particular attention
and accord special deference to the Land Court judge in these cases

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branch “as such,” in Barney & Carey Co. the court ruled that
“[w]here the application of the by-law … has no real or
substantial relation to the public safety, public health or
public welfare but would amount to an arbitrary, unreasonable,
and oppressive deprivation of the owner’s interest in his private
property, then that application of the regulation has been
struck down” (emphasis added). Barney & Carey Co. v.
Milton, 324 Mass. at 445. The emphasized language requires
that Amberwood show significant injury to its interest in
the locus, i.e., that the prohibition against conveying out
parcel C-2 is arbitrary, unreasonable, and oppressive. See
Opinion of the Justices, 333 Mass. 773, 781 (1955). The judge
did not so find, and the record would not, in any event,
support such a finding.
In contrast, the “substantiality” of the injury claimed by the
landowner was determined to be significant in the
following cases. In Barney & Carey Co. v. Milton, supra at
445-447, the land was zoned only for residential purposes
but was not readily usable for dwellings. It was located
some distance from any other dwelling, and bounded by
the Neponset River, extensive marshes, and a highway
beyond which there were further extensive marshes. Id. at
441, 445. After meticulous review of the facts, the court
effectively noted that use of the land for the zoned
residential purposes was a practical impossibility. “In Barney
& Carey Co. … there was, practically speaking, no use left
for the locus when zoned for residences and not for
business.” Lexington v. Simeone, 334 Mass. 127, 131 (1956).
In Pittsfield v. Oleksak, 313 Mass. at 554-555, the ordinance
prevented the maintenance and use of a portable saw mill,
which effectively rendered useless one hundred acres of
timberland, with resulting negative consequences to both
public and private interests. The court concluded that
application of the ordinance “would permanently deprive
the defendant, and therefore the community, of a valuable

149

and otherwise wasting asset” and held that the ordinance
was invalid as applied. Id. at 555.
The residentially zoned land in Nectow v. Cambridge, 277 U.S.
183, 186 (1928), was surrounded by industrial and railroad
uses. The United States Supreme Court noted that “no
practical use [could] be made of the land in question for
residential purposes,” id. at 187, and concluded that “the
invasion of the property … was serious and highly
injurious.” Id. at 189.
We also consider it relevant that Amberwood elected to
create the locus by taking advantage of the frontage
exception that it now seeks to have partially invalidated. We
respect, but do not find compelling as matter of law, the
judge’s observation that the owner, when earlier creating
the subdivision, could have accomplished what he now
seeks, i.e., a 6.1 acre lot to the exclusion of the land
represented as parcel C-2 from that lot.9 ,10
Amberwood, in its application to the board, identified the
purpose of the conveyance as to “provide buffering for the
[Sanidas house lot].” Its application also noted that “[n]o
new lots will be or can be created by the conveyance.”
However, Amberwood can accomplish these purposes
9 We are not unmindful that laches is inapplicable to an as-applied challenge, see

Barney & Carey Co. v. Milton, 324 Mass. at 444, but this is not a situation where a
landowner has acquiesced in a direct invasion of its rights, “a usurpation of power
which violates rights protected by constitutional provisions.” Id. at 445.
10 In the design of subdivisions, and in other regulated land matters, the fact that

initially different designs and choices were possible does not furnish reason for
retroactive design to obviate those earlier choices that have proved to be less
desirable. For example, strict time limits within the statutory scheme of the
subdivision control law are designed to provide record certainty. See Craig v.
Planning Board of Haverhill, 64 Mass. App. Ct. 677, 679 (2005); G. L. c. 41, § 81U.
Compare Martin v. Board of Appeals of Yarmouth, 20 Mass. App. Ct. 972 (1985);
Maurice Callahan & Sons, Inc. v. Board of Appeals of Lenox, 30 Mass. App. Ct. 36, 40
(1991); Perez v. Board of Appeals of Norwood, 54 Mass. App. Ct. 139 (2002) (selfinflicted hardship does not ordinarily constitute “substantial” hardship under G. L.
c. 40A, § 10).

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within the status quo, and without the invalidation of the
by-law provision as applied. For example, the buffering and
prohibition of development can be created by the
conveyance of an easement to the owner of the Sanidas
house lot over parcel C-2, with rights to exclusive
occupation, reserving no rights (other than the underlying
fee ownership) to the owner of the locus.11
The ability to convey one’s land is a recognized property
interest, United States v. General Motors Corp., 323 U.S. 373,
378 (1945), and application of the by-law is some
impediment to that property right. However, numerous
statutes and regulations restrict private property rights.
Here, the impediment is minimal compared with the
circumstances of those cases where courts have invalidated
the application of zoning regulations. See Nectow v.
Cambridge, 277 U.S. at 189; Pittsfield v. Oleksak, 313 Mass. at
555; Barney & Carey Co. v. Milton, 324 Mass. at 445.
Additionally, the relief allowed by the judge below
undermines the uniform application of otherwise valid local
zoning. See G. L. c. 40A, § 4, inserted by St. 1975, c. 808, §
3 (“Any zoning ordinance or by-law which divides cities
and towns into districts shall be uniform within the district
for each class or kind of structures or uses permitted”);
Everpure Ice Mfg. Co. v. Board of Appeals of Lawrence, 324 Mass.
433, 439 (1949) (“A zoning ordinance is intended to apply
uniformly to all property located in a particular district …
and the properties of all the owners in that district [must
be] subjected to the same restrictions for the common
benefit of all”); SCIT, Inc. v. Planning Bd. of Braintree, 19
Mass. App. Ct. 101, 107 (1984) (“[t]he uniformity
requirement is based upon principles of equal treatment: all
land in similar circumstances should be treated alike”); KCI
Mgmt., Inc. v. Board of Appeal of Boston, 54 Mass. App. Ct.
254, 258 (2002), quoting from Lopes v. Peabody, 417 Mass.
11 The zoning application stated that the applicant owns both the locus and the

abutting residential lot (the Sanidas house lot).

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299, 303 (1994) (courts should avoid “a crazy-quilt pattern
of the enforceability of a zoning law intended to have
uniform applicability”). Many, if not all applications of
zoning regulations could be arguably characterized as
unnecessary in any particular case. Numerous arguments of
that nature are made by citizens to building inspectors and
local zoning authorities every year.
The important and difficult balance between the public
interest in the integrity of the local land law, with
requirements for uniform application of zoning, compared
with the relatively minimal restriction upon the landowner’s
property rights in the circumstances of this case, does not
weigh in favor of determining the frontage exception
invalid as applied to the locus. Our conclusion derives
additional support here because the owner’s goal can be
accomplished without such invalidation.
That portion of the judgment declaring the frontage
exception provision in the zoning by-law invalid as applied
is vacated, and a new judgment shall enter declaring that
provision of the by-law valid as applied. The remainder of
the judgment is affirmed.
3.2. Adjudication and Quasi-Adjudication
Louis J. Fasano et al., Respondents, v. The Board of
County Commissioners of Washington County and
A.G.S. Development Company
507 P.2d 23 (Ore. 1973)
Edward J. Sullivan, Washington County Counsel, Hillsboro,
argued and reargued the cause for petitioners. With him on
the briefs were William Bradley Duncan, Asst. County
Counsel, Carrell F. Bradley, Joe D. Bailey, and Schwenn,
Bradley, Batchelor & Bailey, Hillsboro.
Louis J. Fasano, Portland, argued and reargued the cause
for respondents. With him on the briefs were Veatch,
Lovett & Stiner, Portland.

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Donald C. Ashmanskas, Beaverton, argued the cause for
amici curiae on reargument. With him on the briefs were
James M. Mattis, Eugene, Merle Long, Albany, and Edward
C. Harms, Jr., Springfield, on behalf of the League of
Oregon Cities. Also on the briefs were Duane R. Ertsgaard,
Salem, Roy E. Adkins, Eugene, Richard Crist, West Linn,
Paul Mackey, Portland, and Gary Rueter, McMinnville, on
behalf of the Association of Oregon Counties; and Frank
L. Whitaker, Portland, on behalf of Oregon Chapter,
American Institute of Planners.
HOWELL, JUSTICE.
The plaintiffs, homeowners in Washington county,
unsuccessfully opposed a zone change before the Board of
County Commissioners of Washington County. Plaintiffs
applied for and received a writ of review of the action of
the commissioners allowing the change. The trial court
found in favor of plaintiffs, disallowed the zone change,
and reversed the commissioners’ order. The Court of
Appeals affirmed, 489 P.2d 693 (1971), and this court
granted review.
The defendants are the Board of County Commissioners
and A.G.S. Development Company. A.G.S., the owner of
32 acres which had been zoned R-7 (Single Family
Residential), applied for a zone change to P-R (Planned
Residential), which allows for the construction of a mobile
home park. The change failed to receive a majority vote of
the Planning Commission. The Board of County
Commissioners approved the change and found, among
other matters, that the change allows for “increased
densities and different types of housing to meet the needs
of urbanization over that allowed by the existing zoning.”
The trial court, relying on its interpretation of Roseta v.
County of Washington, 254 Or. 161, 458 P.2d 405, 40
A.L.R.3d 364 (1969), reversed the order of the
commissioners because the commissioners had not shown

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any change in the character of the neighborhood which
would justify the rezoning. The Court of Appeals affirmed
for the same reason, but added the additional ground that
the defendants failed to show that the change was
consistent with the comprehensive plan for Washington
county.
According to the briefs, the comprehensive plan of
development for Washington county was adopted in 1959
and included classifications in the county for residential,
neighborhood commercial, retail commercial, general
commercial, industrial park and light industry, general and
heavy industry, and agricultural areas.
The land in question, which was designated “residential” by
the comprehensive plan, was zoned R-7, Single Family
Residential.
Subsequent to the time the comprehensive plan was
adopted, Washington county established a Planned
Residential (P-R) zoning classification in 1963. The P-R
classification was adopted by ordinance and provided that a
planned residential unit development could be established
and should include open space for utilities, access, and
recreation; should not be less than 10 acres in size; and
should be located in or adjacent to a residential zone. The
P-R zone adopted by the 1963 ordinance is of the type
known as a “floating zone,” so-called because the
ordinance creates a zone classification authorized for future
use but not placed on the zoning map until its use at a
particular location is approved by the governing body. The
R-7 classification for the 32 acres continued until April
1970 when the classification was changed to P-R to permit
the defendant A.G.S. to construct the mobile home park
on the 32 acres involved.
The defendants argue that (1) the action of the county
commissioners approving the change is presumptively
valid, requiring plaintiffs to show that the commissioners

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acted arbitrarily in approving the zone change; (2) it was
not necessary to show a change of conditions in the area
before a zone change could be accomplished; and (3) the
change from R-7 to P-R was in accordance with the
Washington county comprehensive plan.
We granted review in this case to consider the questions —
by what standards does a county commission exercise its
authority in zoning matters; who has the burden of meeting
those standards when a request for change of zone is made;
and what is the scope of court review of such actions?
Any meaningful decision as to the proper scope of judicial
review of a zoning decision must start with a
characterization of the nature of that decision. The majority
of jurisdictions state that a zoning ordinance is a legislative
act and is thereby entitled to presumptive validity. This
court made such a characterization of zoning decisions in
Smith v. County of Washington, 241 Or. 380, 406 P.2d 545
(1965):
“Inasmuch as ORS 215.110 specifically
grants to the governing board of the
county the power to amend zoning
ordinances, a challenged amendment is
a legislative act and is clothed with a
presumption in its favor. Jehovah’s
Witnesses v. Mullen et al., 214 Or. 281,
292, 330 P.2d 5, 74 A.L.R.2d 347
(1958), appeal dismissed and cert.
denied, 359 U.S. 436, 79 S.Ct. 940, 3
L.Ed.2d 932 (1959).” 241 Or. at 383,
406 P.2d at 547.
However, in Smith an exception to the presumption was
found and the zoning held invalid. Furthermore, the case
cited by the Smith court, Jehovah’s Witnesses v. Mullen et
al., supra, at least at one point viewed the contested zoning

155

in that case as an administrative as opposed to legislative
act.
At this juncture we feel we would be ignoring reality to
rigidly view all zoning decisions by local governing bodies
as legislative acts to be accorded a full presumption of
validity and shielded from less than constitutional scrutiny
by the theory of separation of powers. Local and small
decision groups are simply not the equivalent in all respects
of state and national legislatures. There is a growing judicial
recognition of this fact of life:
“It is not a part of the legislative
function to grant permits, make special
exceptions, or decide particular cases.
Such activities are not legislative but
administrative,
quasi-judicial,
or
judicial in character. To place them in
the hands of legislative bodies, whose
acts as such are not judicially
reviewable, is to open the door
completely to arbitrary government.”
Ward v. Village of Skokie, 26 Ill.2d
415, 186 N.E.2d 529, 533 (1962)
(Klingbiel, J., specially concurring).
The Supreme Court of Washington, in reviewing a
rezoning decision, recently stated:
“Whatever descriptive characterization
may be otherwise attached to the role
or function of the planning
commission in zoning procedures, e.g.,
advisory,
recommendatory,
investigatory,
administrative
or
legislative, it is manifest * * * that it is
a public agency, * * * a principle [sic]
and statutory duty of which is to
conduct public hearings in specified
planning and zoning matters, enter

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findings of fact — often on the basis
of disputed facts — and make
recommendations
with
reasons
assigned thereto. Certainly, in its role
as a hearing and fact-finding tribunal,
the planning commission’s function
more nearly than not partakes of the
nature of an administrative, quasijudicial proceeding, * * *.” Chrobuck
v. Snohomish County, 78 Wash.2d
884, 480 P.2d 489, 495-496 (1971).
Ordinances laying down general policies without regard to
a specific piece of property are usually an exercise of
legislative authority, are subject to limited review, and may
only be attacked upon constitutional grounds for an
arbitrary abuse of authority. On the other hand, a
determination whether the permissible use of a specific
piece of property should be changed is usually an exercise
of judicial authority and its propriety is subject to an
altogether different test. An illustration of an exercise of
legislative authority is the passage of the ordinance by the
Washington County Commission in 1963 which provided
for the formation of a planned residential classification to
be located in or adjacent to any residential zone. An
exercise of judicial authority is the county commissioners’
determination in this particular matter to change the
classification of A.G.S. Development Company’s specific
piece of property. The distinction is stated, as follows, in
Comment, Zoning Amendments — The Product of
Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130
(1972):
”* * * Basically, this test involves the
determination of whether action
produces a general rule or policy which
is applicable to an open class of
individuals, interest, or situations, or
whether it entails the application of a

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general rule or policy to specific
individuals, interests, or situations. If
the former determination is satisfied,
there is legislative action; if the latter
determination is satisfied, the action is
judicial.” 33 Ohio St.L.J. at 137.
We reject the proposition that judicial review of the county
commissioners’ determination to change the zoning of the
particular property in question is limited to a determination
whether the change was arbitrary and capricious.
In order to establish a standard of review, it is necessary to
delineate certain basic principles relating to land use
regulation.
The basic instrument for county or municipal land use
planning is the “comprehensive plan.” Haar, In Accordance
with a Comprehensive Plan, 68 Harv.L.Rev. 1154 (1955); 1
Yokley, Zoning Law and Practice, § 3-2 (1965); 1 Rathkopf,
The Law of Zoning and Planning, § 9-1 (3d ed. 1969). The
plan has been described as a general plan to control and
direct the use and development of property in a
municipality. Nowicki v. Planning and Zoning Board, 148
Conn. 492, 172 A.2d 386, 389 (1961).
In Oregon the county planning commission is required by
ORS 215.050 to adopt a comprehensive plan for the use of
some or all of the land in the county. Under ORS
215.110(1), after the comprehensive plan has been adopted,
the planning commission recommends to the governing
body of the county the ordinances necessary to “carry out”
the comprehensive plan. The purpose of the zoning
ordinances, both under our statute and the general law of
land use regulation, is to “carry out” or implement the
comprehensive plan. 1 Anderson, American Law of
Zoning, § 1.12 (1968). Although we are aware of the
analytical distinction between zoning and planning, it is
clear that under our statutes the plan adopted by the

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planning commission and the zoning ordinances enacted by
the county governing body are closely related; both are
intended to be parts of a single integrated procedure for
land use control. The plan embodies policy determinations
and guiding principles; the zoning ordinances provide the
detailed means of giving effect to those principles.
ORS 215.050 states county planning commissions “shall
adopt and may from time to time revise a comprehensive
plan.” In a hearing of the Senate Committee on Local
Government, the proponents of ORS 215.050 described its
purpose as follows:
”* * * The intent here is to require a
basic
document,
geared
into
population, land use, and economic
forecasts, which should be the basis of
any zoning or other regulations to be
adopted by the county. * * *”1
In addition, ORS 215.055 provides:
“215.055 Standards for plan. (1) The
plan and all legislation and regulations
authorized by ORS 215.010 to 215.233
shall be designed to promote the
public health, safety and general
welfare and shall be based on the
following
considerations,
among
others: The various characteristics of
the various areas in the county, the
suitability of the areas for particular
land uses and improvements, the land
uses and improvements in the areas,
trends in land improvement, density of
development, property values, the
needs of economic enterprises in the
1 Hearing on Senate Bill 129 before the Senate Committee on Local Government,

52nd Legislative Assembly, February 14, 1963.

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future development of the areas,
needed access to particular sites in the
areas, natural resources of the county
and
prospective
needs
for
development thereof, and the public
need for healthful, safe, aesthetic
surroundings and conditions.”
We believe that the state legislature has conditioned the
county’s power to zone upon the prerequisite that the
zoning attempt to further the general welfare of the
community through consciousness, in a prospective sense,
of the factors mentioned above. In other words, except as
noted later in this opinion, it must be proved that the
change is in conformance with the comprehensive plan.
In proving that the change is in conformance with the
comprehensive plan in this case, the proof, at a minimum,
should show (1) there is a public need for a change of the
kind in question, and (2) that need will be best served by
changing the classification of the particular piece of
property in question as compared with other available
property.
In the instant case the trial court and the Court of Appeals
interpreted prior decisions of this court as requiring the
county commissions to show a change of conditions within
the immediate neighborhood in which the change was
sought since the enactment of the comprehensive plan, or a
mistake in the comprehensive plan as a condition precedent
to the zone change.
In Smith v. Washington County, supra, the land in question
was designated residential under the comprehensive plan,
and the county commissioners enacted an amendatory
ordinance changing the classification to manufacturing.
This court held that the change constituted spot zoning and
was invalid. We stated:

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”* * * Once a [zoning scheme] is
adopted, changes in it should be made
only when such changes are consistent
with the over-all objectives of the plan
and in keeping with changes in the
character of the area or neighborhood
to be covered thereby. * * *”
(Emphasis added) 241 Or. at 384, 406
P.2d at 547.
In Roseta v. Washington County, supra, the land in
question was classified as residential under the
comprehensive plan and had been originally zoned as R-10,
Single Family Residential. The county commissioners
granted a zone change to A-1, Duplex Residential. We held
that the commissioners had not sustained the burden of
proving that the change was consistent with the
comprehensive plan and reversed the order allowing the
zone change. In regard to defendants’ argument that the
change was consistent with the comprehensive plan
because the plan designated the areas as “residential” and
the term included both single family dwellings and duplex
residences, we stated:
”* * * However, the ordinance
established a distinction between the
two types of use by classifying one
area as R-10 and another area as A-1.
It must be assumed that the Board had
some purpose in making a distinction
between these two classifications. It
was for defendant to prove that this
distinction was not valid or that the
change in the character of the use of
the * * * parcel was not inconsistent
with the comprehensive plan.” 254 Or.
at 169, 458 P.2d 405, at 409.

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The instant case could be distinguished from Roseta on the
basis that we are involved with a floating zone which was
not before the court in Roseta.2
However, Roseta should not be interpreted as establishing a
rule that a physical change of circumstances within the
rezoned neighborhood is the only justification for rezoning.
The county governing body is directed by ORS 215.055 to
consider a number of other factors when enacting zoning
ordinances, and the list there does not purport to be
exclusive. The important issues, as Roseta recognized, are
compliance with the statutory directive and consideration
of the proposed change in light of the comprehensive plan.
Because the action of the commission in this instance is an
exercise of judicial authority, the burden of proof should be
placed, as is usual in judicial proceedings, upon the one
seeking change. The more drastic the change, the greater
will be the burden of showing that it is in conformance
with the comprehensive plan as implemented by the
ordinance, that there is a public need for the kind of change
in question, and that the need is best met by the proposal
under consideration. As the degree of change increases, the
burden of showing that the potential impact upon the area
in question was carefully considered and weighed will also
increase. If other areas have previously been designated for
the particular type of development, it must be shown why it
is necessary to introduce it into an area not previously

2 Even in Maryland, the chief exponent of the change or mistake rule, the courts

have not required that there be a showing of changed conditions or mistake in the
original zoning as a condition precedent to granting a zone change when a floating
zone is involved. Bigenho v. Montgomery County Council, 248 Md. 386, 237 A.2d
53 (1968); Bayer v. Siskind, 247 Md. 116, 230 A.2d 316 (1967); Board of County
Com’rs of Howard County v. Tipton, 244 Md. 77, 222 A.2d 701 (1966); Bujno v.
Montgomery County Council, 243 Md. 110, 220 A.2d 126 (1966); Knudsen v.
Montgomery County Council, 241 Md. 436, 217 A.2d 97 (1966); Beall v.
Montgomery County Council, 240 Md. 77, 212 A.2d 751 (1965); Huff v. Board of
Zoning Appeals, 214 Md. 48, 133 A.2d 83 (1957).

162

contemplated and why the property owners there should
bear the burden of the departure.3
Although we have said in Roseta that zoning changes may
be justified without a showing of a mistake in the original
plan or ordinance, or of changes in the physical
characteristics of an affected area, any of these factors
which are present in a particular case would, of course, be
relevant. Their importance would depend upon the nature
of the precise change under consideration.

3 For example, if an area is designated by the plan as generally appropriate for

residential development, the plan may also indicate that some high-density
residential development within the area is to be anticipated, without specifying the
exact location at which that development is to take place. The comprehensive plan
might provide that its goal for residential development is to assure that residential
areas are healthful, pleasant and safe places in which to live. The plan might also list
the following policies which, among others, are to be pursued in achieving that
goal:
High-density residential areas should be located close to the urban core area.
Residential neighborhoods should be protected from any land use activity involving
an excessive level of noise, pollution or traffic volume.
High trip-generating multiple family units should have ready access to arterial or
collector streets.
A variety of living areas and housing types should be provided appropriate to the
needs of the special and general groups they are to serve.
Residential development at urban densities should be within planned sewer and
water service areas and where other utilities can be adequately provided.
Under such a hypothetical plan, property originally zoned for single family
dwellings might later be rezoned for duplexes, for garden apartments, or for highrise apartment buildings. Each of these changes could be shown to be consistent
with the plan. Although in addition we would require a showing that the county
governing body found a bona fide need for a zone change in order to
accommodate new high-density development which at least balanced the disruption
shown by the challengers, that requirement would be met in most instances by a
record which disclosed that the governing body had considered the facts relevant
to this question and exercised its judgment in good faith. However, these changes,
while all could be shown to be consistent with the plan, could be expected to have
differing impacts on the surrounding area, depending on the nature of that area. As
the potential impact on the area in question increases, so will the necessity to show
a justification.

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By treating the exercise of authority by the commission in
this case as the exercise of judicial rather than of legislative
authority and thus enlarging the scope of review on appeal,
and by placing the burden of the above level of proof upon
the one seeking change, we may lay the court open to
criticism by legal scholars who think it desirable that
planning authorities be vested with the ability to adjust
more freely to changed conditions. However, having
weighed the dangers of making desirable change more
difficult against the dangers of the almost irresistible
pressures that can be asserted by private economic interests
on local government, we believe that the latter dangers are
more to be feared.
What we have said above is necessarily general, as the
approach we adopt contains no absolute standards or
mechanical tests. We believe, however, that it is adequate to
provide meaningful guidance for local governments making
zoning decisions and for trial courts called upon to review
them. With future cases in mind, it is appropriate to add
some brief remarks on questions of procedure. Parties at
the hearing before the county governing body are entitled
to an opportunity to be heard, to an opportunity to present
and rebut evidence, to a tribunal which is impartial in the
matter — i.e., having had no pre-hearing or ex parte
contacts concerning the question at issue — and to a
record made and adequate findings executed. Comment,
Zoning Amendments — The Product of Judicial or QuasiJudicial Action, 33 Ohio St.L.J. 130-143 (1972).
When we apply the standards we have adopted to the
present case, we find that the burden was not sustained
before the commission. The record now before us is
insufficient to ascertain whether there was a justifiable basis
for the decision. The only evidence in the record, that of
the staff report of the Washington County Planning
Department, is too conclusory and superficial to support
the zoning change. It merely states:

164

“The staff finds that the requested use
does conform to the residential
designation
of
the
Plan
of
Development. It further finds that the
proposed use reflects the urbanization
of the County and the necessity to
provide increased densities and
different types of housing to meet the
needs of urbanization over that
allowed by the existing zoning. * * *”
Such generalizations and conclusions, without any
statement of the facts on which they are based, are
insufficient to justify a change of use. Moreover, no
portions of the comprehensive plan of Washington County
are before us, and we feel it would be improper for us to
take judicial notice of the plan without at least some
reference to its specifics by counsel.
As there has not been an adequate showing that the change
was in accord with the plan, or that the factors listed in
ORS 215.055 were given proper consideration, the
judgment is affirmed.
BRYSON, JUSTICE (specially concurring).
The basic facts in this case exemplify the prohibitive cost
and extended uncertainty to a homeowner when a
governmental body decides to change or modify a zoning
ordinance or comprehensive plan affecting such owner’s
real property.
This controversy has proceeded through the following
steps:
1. The respondent opposed the zone change before the
Washington County Planning Department and Planning
Commission.
2. The County Commission, after a hearing, allowed the
change.

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3. The trial court reversed (disallowed the change).
4. The Court of Appeals affirmed the trial court.
5. We ordered reargument and additional briefs.
6. This court affirmed.
The principal respondent in this case, Fasano, happens to
be an attorney at law, and his residence is near the
proposed mobile home park of the petitioner A.G.S. No
average homeowner or small business enterprise can afford
a judicial process such as described above nor can a judicial
system cope with or endure such a process in achieving
justice. The number of such controversies is ascending.
In this case the majority opinion, in which I concur, adopts
some sound rules to enable county and municipal planning
commissions and governing bodies, as well as trial courts,
to reach finality in decision. However, the procedure is no
panacea and it is still burdensome.
It is solely within the domain of the legislative branch of
government to devise a new and simplified statutory
procedure to expedite finality of decision.
Board of County Commissioners of Brevard County
Florida v. Jack R. Snyder,627 So.2d 469 (1993)
Robert D. Guthrie, County Atty., and Eden Bentley, Asst.
County Atty., Melbourne, for petitioner.
Frank J. Griffith, Jr., Cianfrogna, Telfer, Reda & Faherty,
P.A., Titusville, for respondents.
Denis Dean and Jonathan A. Glogau, Asst. Attys. Gen.,
Tallahassee, amicus curiae, for Atty. Gen., State of FL.
Nancy Stuparich, Asst. Gen. Counsel, and Jane C. Hayman,
Deputy Gen. Counsel, Tallahassee, amicus curiae, for FL
League of Cities, Inc.
Paul R. Gougelman, III, and Maureen M. Matheson,
Reinman, Harrell, Graham, Mitchell & Wattwood, P.A.,

166

Melbourne, amicus curiae, for Space Coast League of
Cities, Inc., City of Melbourne, and Town of Indialantic.
Richard E. Gentry, FL Home Builders Ass’n, and Robert
M. Rhodes and Cathy M. Sellers, Steel, Hector and Davis,
Tallahassee, amicus curiae, for FL Home Builders Ass’n.
David La Croix, Pennington, Wilkinson & Dunlap, P.A.,
and William J. Roberts, Roberts and Eagan, P.A.,
Tallahassee, amicus curiae, for FL Ass’n of Counties.
David J. Russ and Karen Brodeen, Asst. Gen. Counsels,
Tallahassee, amicus curiae, for FL Dept. of Community
Affairs.
Richard Grosso, Legal Director, Tallahassee, and C. Allen
Watts, Cobb, Cole and Bell, Daytona Beach, amicus curiae,
for 1000 Friends of FL.
Neal D. Bowen, County Atty., Kissimmee, amicus curiae,
for Osceola County.
M. Stephen Turner and David K. Miller, Broad and Cassel,
Tallahassee, amicus curiae, for Monticello Drug Co.
John J. Copelan, Jr., County Atty., and Barbara S.
Monahan, Asst. County Atty. for Broward County, Fort
Lauderdale, and Emeline Acton, County Atty. for
Hillsborough County, Tampa, amici curiae, for Broward
County, Hillsborough County and FL Ass’n of County
Attys., Inc.
Thomas G. Pelham, Holland & Knight, Tallahassee, amicus
curiae, pro se.
GRIMES, JUSTICE.
We review Snyder v. Board of County Commissioners, 595 So.2d
65 (Fla. 5th DCA 1991), because of its conflict with Schauer
v. City of Miami Beach, 112 So.2d 838 (Fla. 1959); City of
Jacksonville Beach v. Grubbs, 461 So.2d 160 (Fla. 1st DCA
1984), review denied, 469 So.2d 749 (Fla. 1985); and Palm
Beach County v. Tinnerman, 517 So.2d 699 (Fla. 4th DCA

167

1987), review denied, 528 So.2d 1183 (Fla. 1988). We have
jurisdiction under article V, section 3(b)(3) of the Florida
Constitution. Jack and Gail Snyder owned a one-half acre
parcel of property on Merritt Island in the unincorporated
area of Brevard County. The property is zoned GU (general
use) which allows construction of a single-family residence.
The Snyders filed an application to rezone their property to
the RU-2-15 zoning classification which allows the
construction of fifteen units per acre. The area is
designated for residential use under the 1988 Brevard
County Comprehensive Plan Future Land Use Map.
Twenty-nine zoning classifications are considered
potentially consistent with this land use designation,
including both the GU and the RU-2-15 classifications.
After the application for rezoning was filed, the Brevard
County Planning and Zoning staff reviewed the application
and completed the county’s standard “rezoning review
worksheet.” The worksheet indicated that the proposed
multifamily use of the Snyders’ property was consistent
with all aspects of the comprehensive plan except for the
fact that it was located in the one-hundred-year flood plain
in which a maximum of only two units per acre was
permitted. For this reason, the staff recommended that the
request be denied.
At the planning and zoning board meeting, the county
planning and zoning director indicated that when the
property was developed the land elevation would be raised
to the point where the one-hundred-year-flood plain
restriction would no longer be applicable. Thus, the
director stated that the staff no longer opposed the
application. The planning and zoning board voted to
approve the Snyders’ rezoning request.
When the matter came before the board of county
commissioners, Snyder stated that he intended to build only
five or six units on the property. However, a number of
citizens spoke in opposition to the rezoning request. Their

168

primary concern was the increase in traffic which would be
caused by the development. Ultimately, the commission
voted to deny the rezoning request without stating a reason
for the denial.
The Snyders filed a petition for certiorari in the circuit
court. Three circuit judges, sitting en banc, reviewed the
petition and denied it by a two-to-one decision. The
Snyders then filed a petition for certiorari in the Fifth
District Court of Appeal.
The district court of appeal acknowledged that zoning
decisions have traditionally been considered legislative in
nature. Therefore, courts were required to uphold them if
they could be justified as being “fairly debatable.” Drawing
heavily on Fasano v. Board of County Commissioners, 264 Or.
574, 507 P.2d 23 (1973), however, the court concluded that,
unlike initial zoning enactments and comprehensive
rezonings or rezonings affecting a large portion of the
public, a rezoning action which entails the application of a
general rule or policy to specific individuals, interests, or
activities is quasi-judicial in nature. Under the latter
circumstances, the court reasoned that a stricter standard of
judicial review of the rezoning decision was required. The
court went on to hold:
(4) Since a property owner’s right to
own and use his property is
constitutionally protected, review of
any governmental action denying or
abridging that right is subject to close
judicial scrutiny. Effective judicial
review, constitutional due process and
other essential requirements of law, all
necessitate that the governmental
agency (by whatever name it may be
characterized) applying legislated land
use restrictions to particular parcels of
privately owned lands, must state

169

reasons for action that denies the
owner the use of his land and must
make findings of fact and a record of
its proceedings, sufficient for judicial
review of: the legal sufficiency of the
evidence to support the findings of
fact made, the legal sufficiency of the
findings of fact supporting the reasons
given and the legal adequacy, under
applicable law (i.e., under general
comprehensive zoning ordinances,
applicable state and case law and state
and federal constitutional provisions)
of the reasons given for the result of
the action taken.
(5) The initial burden is upon the
landowner to demonstrate that his
petition or application for use of
privately owned lands, (rezoning,
special exception, conditional use
permit, variance, site plan approval,
etc.) complies with the reasonable
procedural requirements of the
ordinance and that the use sought is
consistent with the applicable
comprehensive zoning plan. Upon
such a showing the landowner is
presumptively entitled to use his
property in the manner he seeks unless
the opposing governmental agency
asserts and proves by clear and
convincing evidence that a specifically
stated public necessity requires a
specified, more restrictive, use. After
such a showing the burden shifts to
the landowner to assert and prove that
such specified more restrictive land
use constitutes a taking of his property
for public use for which he is entitled

170

to compensation under the taking
provisions of the state or federal
constitutions.
Snyder v. Board of County Commissioners, 595 So.2d at 81
(footnotes omitted).
Applying these principles to the facts of the case, the court
found (1) that the Snyders’ petition for rezoning was
consistent with the comprehensive plan; (2) that there was
no assertion or evidence that a more restrictive zoning
classification was necessary to protect the health, safety,
morals, or welfare of the general public; and (3) that the
denial of the requested zoning classification without
reasons supported by facts was, as a matter of law, arbitrary
and unreasonable. The court granted the petition for
certiorari.
Before this Court, the county contends that the standard of
review for the county’s denial of the Snyders’ rezoning
application is whether or not the decision was fairly
debatable. The county further argues that the opinion
below eliminates a local government’s ability to operate in a
legislative context and impairs its ability to respond to
public comment. The county refers to Jennings v. Dade
County, 589 So.2d 1337 (Fla. 3d DCA 1991), review denied,
598 So.2d 75 (Fla. 1992), for the proposition that if its
rezoning decision is quasi-judicial, the commissioners will
be prohibited from obtaining community input by way of
ex parte communications from its citizens. In addition, the
county suggests that the requirement to make findings in
support of its rezoning decision will place an
insurmountable burden on the zoning authorities. The
county also asserts that the salutary purpose of the
comprehensive plan to provide controlled growth will be
thwarted by the court’s ruling that the maximum use
permitted by the plan must be approved once the rezoning
application is determined to be consistent with it.

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The Snyders respond that the decision below should be
upheld in all of its major premises. They argue that the
rationale for the early decisions that rezonings are
legislative in nature has been changed by the enactment of
the Growth Management Act. Thus, in order to ensure that
local governments follow the principles enunciated in their
comprehensive plans, it is necessary for the courts to
exercise stricter scrutiny than would be provided under the
fairly debatable rule. The Snyders contend that their
rezoning application was consistent with the
comprehensive plan. Because there are no findings of fact
or reasons given for the denial by the board of county
commissioners, there is no basis upon which the denial
could be upheld. Various amici curiae have also submitted
briefs in support of their several positions.
Historically, local governments have exercised the zoning
power pursuant to a broad delegation of state legislative
power subject only to constitutional limitations. Both
federal and state courts adopted a highly deferential
standard of judicial review early in the history of local
zoning. In Village of Euclid v. Ambler Realty Co., 272 U.S. 365,
47 S.Ct. 114, 71 L.Ed. 303 (1926), the United States
Supreme Court held that “[i]f the validity of the legislative
classification for zoning purposes be fairly debatable, the
legislative judgment must be allowed to control.” 272 U.S.
at 388, 47 S.Ct. at 118. This Court expressly adopted the
fairly debatable principle in City of Miami Beach v. Ocean &
Inland Co., 147 Fla. 480, 3 So.2d 364 (1941).
Inhibited only by the loose judicial scrutiny afforded by the
fairly debatable rule, local zoning systems developed in a
markedly inconsistent manner. Many land use experts and
practitioners have been critical of the local zoning system.
Richard
Babcock
deplored
the
effect
of
“neighborhoodism” and rank political influence on the
local decision-making process. Richard F. Babcock, The
Zoning Game (1966). Mandelker and Tarlock recently stated

172

that “zoning decisions are too often ad hoc, sloppy and
self-serving decisions with well-defined adverse
consequences without off-setting benefits.” Daniel R.
Mandelker and A. Dan Tarlock, Shifting the Presumption of
Constitutionality in Land-Use Law, 24 Urb.Law. 1, 2 (1992).
Professor Charles Harr, a leading proponent of zoning
reform, was an early advocate of requiring that local land
use regulation be consistent with a legally binding
comprehensive plan which would serve long range goals,
counteract local pressures for preferential treatment, and
provide courts with a meaningful standard of review.
Charles M. Harr, “In Accordance With A Comprehensive Plan,”
68 Harv.L.Rev. 1154 (1955). In 1975, the American Law
Institute adopted the Model Land Development Code,
which provided for procedural and planning reforms at the
local level and increased state participation in land use
decision-making for developments of regional impact and
areas of critical state concern.
Reacting to the increasing calls for reform, numerous states
have adopted legislation to change the local land use
decision-making process. As one of the leaders of this
national reform, Florida adopted the Local Government
Comprehensive Planning Act of 1975. Ch. 75-257, Laws of
Fla. This law was substantially strengthened in 1985 by the
Growth Management Act. Ch. 85-55, Laws of Fla.
Pursuant to the Growth Management Act, each county and
municipality is required to prepare a comprehensive plan
for approval by the Department of Community Affairs.
The adopted local plan must include “principles, guidelines,
and standards for the orderly and balanced future
economic, social, physical, environmental, and fiscal
development” of the local government’s jurisdictional area.
Section 163.3177(1), Fla. Stat. (1991). At the minimum, the
local plan must include elements covering future land use;
capital improvements generally; sanitary sewer, solid waste,
drainage, potable water, and natural ground water aquifer

173

protection specifically; conservation; recreation and open
space; housing; traffic circulation; intergovernmental
coordination; coastal management (for local government in
the coastal zone); and mass transit (for local jurisdictions
with 50,000 or more people). Id., § 163.3177(6).
Of special relevance to local rezoning actions, the future
land use plan element of the local plan must contain both a
future land use map and goals, policies, and measurable
objectives to guide future land use decisions. This plan
element must designate the “proposed future general
distribution, location, and extent of the uses of land” for
various purposes. Id., § 163.3177(6)(a). It must include
standards to be utilized in the control and distribution of
densities and intensities of development. In addition, the
future land use plan must be based on adequate data and
analysis concerning the local jurisdiction, including the
projected population, the amount of land needed to
accommodate the estimated population, the availability of
public services and facilities, and the character of
undeveloped land. Id., § 163.3177(6)(a).
The local plan must be implemented through the adoption
of land development regulations that are consistent with
the plan. Id. § 163.3202. In addition, all development, both
public and private, and all development orders approved by
local governments must be consistent with the adopted
local plan. Id., § 163.3194(1)(a). Section 163.3194(3), Florida
Statutes (1991), explains consistency as follows:
(a) A development order or land
development regulation shall be
consistent with the comprehensive
plan if the land uses, densities or
intensities, and other aspects of
development permitted by such order
or regulation are compatible with and
further the objectives, policies, land
uses, and densities or intensities in the

174

comprehensive plan and if it meets all
other criteria enumerated by the local
government.
Section 163.3164, Florida Statutes (1991), reads in pertinent
part:
(6) “Development order” means any
order granting, denying, or granting
with conditions an application for a
development permit.
(7) “Development permit” includes
any building permit, zoning permit,
subdivision
approval,
rezoning,
certification,
special
exception,
variance, or any other official action of
local government having the effect of
permitting the development of land.
Because an order granting or denying rezoning constitutes a
development order and development orders must be
consistent with the comprehensive plan, it is clear that
orders on rezoning applications must be consistent with the
comprehensive plan.
The first issue we must decide is whether the Board’s
action on Snyder’s rezoning application was legislative or
quasi-judicial. A board’s legislative action is subject to
attack in circuit court. Hirt v. Polk County Bd. of County
Comm’rs, 578 So.2d 415 (Fla. 2d DCA 1991). However, in
deference to the policy-making function of a board when
acting in a legislative capacity, its actions will be sustained
as long as they are fairly debatable. Nance v. Town of
Indialantic, 419 So.2d 1041 (Fla. 1982). On the other hand,
the rulings of a board acting in its quasi-judicial capacity are
subject to review by certiorari and will be upheld only if
they are supported by substantial competent evidence. De
Groot v. Sheffield, 95 So.2d 912 (Fla. 1957).

175

Enactments of original zoning ordinances have always been
considered legislative. Gulf & Eastern Dev. Corp. v. City of
Fort Lauderdale, 354 So.2d 57 (Fla. 1978); County of Pasco v. J.
Dico, Inc., 343 So.2d 83 (Fla. 2d DCA 1977). In Schauer v.
City of Miami Beach, this Court held that the passage of an
amending zoning ordinance was the exercise of a legislative
function. 112 So.2d at 839. However, the amendment in
that case was comprehensive in nature in that it effected a
change in the zoning of a large area so as to permit it to be
used as locations for multiple family buildings and hotels.
Id. In City of Jacksonville Beach v. Grubbs and Palm Beach County
v. Tinnerman, the district courts of appeal went further and
held that board action on specific rezoning applications of
individual property owners was also legislative. Grubbs, 461
So.2d at 163; Tinnerman, 517 So.2d at 700.
It is the character of the hearing that determines whether or
not board action is legislative or quasi-judicial. Coral Reef
Nurseries, Inc. v. Babcock Co., 410 So.2d 648 (Fla. 3d DCA
1982). Generally speaking, legislative action results in the
formulation of a general rule of policy, whereas judicial action
results in the application of a general rule of policy. Carl J.
Peckingpaugh, Jr., Comment, Burden of Proof in Land Use
Regulations: A Unified Approach and Application to Florida, 8
Fla.St.U.L.Rev. 499, 504 (1980). In West Flagler Amusement
Co. v. State Racing Commission, 122 Fla. 222, 225, 165 So. 64,
65 (1935), we explained:
A judicial or quasi-judicial act
determines the rules of law applicable,
and the rights affected by them, in
relation to past transactions. On the
other hand, a quasi-legislative or
administrative order prescribes what
the
rule
or
requirement
of
administratively determined duty shall
be with respect to transactions to be
executed in the future, in order that

176

same shall be considered lawful. But
even so, quasi-legislative and quasiexecutive orders, after they have
already been entered, may have a
quasi-judicial attribute if capable of
being arrived at and provided by law to
be declared by the administrative
agency only after express statutory
notice, hearing and consideration of
evidence to be adduced as a basis for
the making thereof.
Applying this criterion, it is evident that comprehensive
rezonings affecting a large portion of the public are
legislative in nature. However, we agree with the court
below when it said:
[R]ezoning actions which have an
impact on a limited number of persons
or property owners, on identifiable
parties and interests, where the
decision is contingent on a fact or facts
arrived at from distinct alternatives
presented at a hearing, and where the
decision can be functionally viewed as
policy application, rather than policy
setting, are in the nature of … quasijudicial action… .
Snyder, 595 So.2d at 78. Therefore, the board’s action on
Snyder’s application was in the nature of a quasi-judicial
proceeding and properly reviewable by petition for
certiorari.1

1 One or more of the amicus briefs suggests that Snyder’s remedy was to bring a de

novo action in circuit court pursuant to section 163.3215, Florida Statutes (1991).
However, in Parker v. Leon County, 627 So.2d 476 (Fla. 1993), we explained that this
statute only provides a remedy for third parties to challenge the consistency of
development orders.

177

We also agree with the court below that the review is
subject to strict scrutiny. In practical effect, the review by
strict scrutiny in zoning cases appears to be the same as
that given in the review of other quasi-judicial decisions. See
Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d
996 (Fla.2d DCA 1993) (The term “strict scrutiny” arises
from the necessity of strict compliance with comprehensive
plan.). This term as used in the review of land use decisions
must be distinguished from the type of strict scrutiny
review afforded in some constitutional cases. Compare Snyder
v. Board of County Comm’rs, 595 So.2d 65, 75-76 (Fla. 5th
DCA 1991) (land use), and Machado v. Musgrove, 519 So.2d
629, 632 (Fla. 3d DCA 1987), review denied, 529 So.2d 693
(Fla. 1988), and review denied, 529 So.2d 694 (Fla. 1988) (land
use), with In re Estate of Greenberg, 390 So.2d 40, 42-43 (Fla.
1980) (general discussion of strict scrutiny review in
context of fundamental rights), appeal dismissed, 450 U.S.
961, 101 S.Ct. 1475, 67 L.Ed.2d 610 (1981), Florida High
Sch. Activities Ass’n v. Thomas, 434 So.2d 306 (Fla. 1983)
(equal protection), and Department of Revenue v. Magazine
Publishers of America, Inc., 604 So.2d 459 (Fla. 1992) (First
Amendment).
At this point, we depart from the rationale of the court
below. In the first place, the opinion overlooks the premise
that the comprehensive plan is intended to provide for the
future use of land, which contemplates a gradual and
ordered growth. See City of Jacksonville Beach, 461 So.2d at
163, in which the following statement from Marracci v. City
of Scappoose, 552 P.2d 552, 553 (Or. Ct. App. 1976), was
approved:
[A]
comprehensive
plan
only
establishes a long-range maximum
limit on the possible intensity of land
use; a plan does not simultaneously
establish an immediate minimum limit
on the possible intensity of land use.

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The present use of land may, by
zoning ordinance, continue to be more
limited than the future use
contemplated by the comprehensive
plan.
Even where a denial of a zoning application would be
inconsistent with the plan, the local government should
have the discretion to decide that the maximum
development density should not be allowed provided the
governmental body approves some development that is
consistent with the plan and the government’s decision is
supported by substantial, competent evidence.
Further, we cannot accept the proposition that once the
landowner demonstrates that the proposed use is consistent
with the comprehensive plan, he is presumptively entitled
to this use unless the opposing governmental agency
proves by clear and convincing evidence that specifically
stated public necessity requires a more restricted use. We
do not believe that a property owner is necessarily entitled
to relief by proving consistency when the board action is
also consistent with the plan. As noted in Lee County v.
Sunbelt Equities II, Limited Partnership:
[A]bsent the assertion of some
enforceable property right, an
application for rezoning appeals at
least in part to local officials’ discretion
to accept or reject the applicant’s
argument that change is desirable. The
right of judicial review does not ipso
facto ease the burden on a party seeking
to overturn a decision made by a local
government, and certainly does not
confer any property-based right upon
the owner where none previously
existed.
….

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Moreover, when it is the zoning
classification that is challenged, the
comprehensive plan is relevant only
when the suggested use is inconsistent
with that plan. Where any of several
zoning classifications is consistent with
the plan, the applicant seeking a
change from one to the other is not
entitled to judicial relief absent proof
the status quo is no longer reasonable. It
is not enough simply to be
“consistent”; the proposed change
cannot be inconsistent, and will be
subject to the “strict scrutiny” of
Machado to insure this does not
happen.
619 So.2d at 1005-06.
This raises a question of whether the Growth Management
Act provides any comfort to the landowner when the
denial of the rezoning request is consistent with the
comprehensive plan. It could be argued that the only
recourse is to pursue the traditional remedy of attempting
to prove that the denial of the application was arbitrary,
discriminatory, or unreasonable. Burritt v. Harris, 172 So.2d
820 (Fla. 1965); City of Naples v. Central Plaza of Naples, Inc.,
303 So.2d 423 (Fla. 2d DCA 1974). Yet, the fact that a
proposed use is consistent with the plan means that the
planners contemplated that that use would be acceptable at
some point in the future. We do not believe the Growth
Management Act was intended to preclude development
but only to insure that it proceed in an orderly manner.
Upon consideration, we hold that a landowner seeking to
rezone property has the burden of proving that the
proposal is consistent with the comprehensive plan and
complies with all procedural requirements of the zoning
ordinance. At this point, the burden shifts to the
governmental board to demonstrate that maintaining the

180

existing zoning classification with respect to the property
accomplishes a legitimate public purpose. In effect, the
landowners’ traditional remedies will be subsumed within
this rule, and the board will now have the burden of
showing that the refusal to rezone the property is not
arbitrary, discriminatory, or unreasonable. If the board
carries its burden, the application should be denied.
While they may be useful, the board will not be required to
make findings of fact. However, in order to sustain the
board’s action, upon review by certiorari in the circuit court
it must be shown that there was competent substantial
evidence presented to the board to support its ruling.
Further review in the district court of appeal will continue
to be governed by the principles of City of Deerfield Beach v.
Vaillant, 419 So.2d 624 (Fla. 1982).
Based on the foregoing, we quash the decision below and
disapprove City of Jacksonville Beach v. Grubbs and Palm Beach
County v. Tinnerman, to the extent they are inconsistent with
this opinion. However, in the posture of this case, we are
reluctant to preclude the Snyders from any avenue of relief.
Because of the possibility that conditions have changed
during the extended lapse of time since their original
application was filed, we believe that justice would be best
served by permitting them to file a new application for
rezoning of the property. The application will be without
prejudice of the result reached by this decision and will
allow the process to begin anew according to the procedure
outlined in our opinion.
It is so ordered.
BARKETT, C.J., and OVERTON,
KOGAN and HARDING, JJ., concur.
SHAW,J., dissents.

181

McDONALD,

3.3. Procedure
Frank S. Griswold v. City of Homer
925 P.2d 1015 (Alaska 1996)
Frank S. Griswold, Homer, pro se.
Gordon J. Tans, Perkins Coie, Anchorage, for Appellee.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS,
COMPTON and EASTAUGH, JJ.
EASTAUGH, JUSTICE.
I. INTRODUCTION
In 1992 the Homer City Council adopted Ordinance 92-18
amending Homer’s zoning and planning code to allow
motor vehicle sales and services on thirteen lots in Homer’s
Central Business District. Frank Griswold claims
Ordinance 92-18 is invalid because it constitutes spot
zoning. We affirm the superior court’s rejection of that
claim. Griswold also claims the Ordinance is invalid
because a council member with a personal interest
improperly participated in its adoption. We hold that the
council member should not have participated. We
consequently remand so the superior court can determine
whether that participation invalidates the Ordinance.
Finally, we hold that Griswold is a public interest litigant
who cannot be assessed the City’s attorney’s fees and court
costs.
….
B. Claim of Conflict of Interest
Homer City Council member Brian Sweiven owned one of
the thirteen lots in the reclassified area. He was one of nine
owners directly affected by Ordinance 92-18. It appears
that it was Sweiven who first recommended to the
commission that the rezone apply only to Main Street. An
article in the Homer News was titled “Sweiven proposes

182

commercial zoning for downtown Homer.” The article
refers to the idea of rezoning Main Street as “Sweiven’s
proposal.” Griswold alleges that Sweiven had a
disqualifying conflict of interest under Homer municipal
law and that his participation in the adoption of Ordinance
92-18 therefore invalidates the Ordinance, even though
Sweiven’s vote was not necessary for passage. The superior
court found that Sweiven did not have a disqualifying
conflict of interest and that even if he had, his participation
in the deliberations and vote would not invalidate
Ordinance 92-18.
1. Was there a conflict of interest?
Homer City Code 1.24.040(g) states:
A member of the Council shall declare
a substantial financial interest the
member has in an official action and
ask to be excused from a vote on the
matter. The Mayor or other presiding
officer shall rule on the request;
however, the decision may be
overridden by the majority vote of the
Council. Should a Council member fail
to declare a substantial financial
interest, the Council may move to
disqualify that member from voting by
a majority vote of the body. A Council
member with a conflict of interest
regardless of whether excused from
voting, shall not be allowed to
participate in discussion about the
matter.1

1 In addition, Homer’s City Code mandates that a city official “disclose any financial

interest in any matter before the board or commission before debating or voting
upon the matter” and prohibits the official from participating in the debate or vote

183

The code defines “substantial financial interest” as
1. An interest that will result in
immediate financial gain; or
2. An interest that will result in
financial gain which will occur in the
reasonably foreseeable future. HCC
1.12.010(a). Under common law, “the
focus … [is] on the relationship
between the public official’s financial
interest and the possible result of the
official’s action, regardless of the
official’s intent.” Carney v. State, Bd. of
Fisheries, 785 P.2d 544, 548 (Alaska
1990) (citing Marsh v. Town of Hanover,
113 N.H. 667, 313 A.2d 411, 414-15
(1973)).2 The plain language of HCC
1.24.040(g) appears to coincide with
this principle.
The City Council did not address Sweiven’s alleged conflict
of interest until after the Ordinance had been passed. After
the council passed the Ordinance, the City Attorney
advised the council to address the matter at its next meeting
by having Sweiven declare the facts concerning his
ownership of the land and ask the council to determine
whether his participation in the matter constituted a
conflict of interest under the City Code, and to have the
Mayor then rule on this question. The City Attorney stated
unless the board or commission determines that a financial interest is not
substantial as defined in HCC 1.12.010. HCC 1.12.070 (emphasis added).
2 At 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
39.52.910, requires intent on the part of public officials subject to that Act. See AS
39.52.120(b)(4). However, that Act does not apply to municipal officials. Gates v.
City of Tenakee Springs, 822 P.2d 455, 462 (Alaska 1992). Thus, the common law of
conflicts of interest continues to apply to municipal officers. Carney, 785 P.2d at
547-48.

184

that if the City were to determine that Sweiven had a
disqualifying conflict of interest, it should declare the
Ordinance void. The City Attorney also stated that, in his
opinion, Sweiven’s ownership did not constitute a
disqualifying conflict of interest.
The superior court found that
[t]here has been no showing that
passage of the ordinance will result in
a financial gain to Council member
Sweiven, now or in the future. In fact,
it may act as a detriment. Council
member
Sweiven’s
interest
in
Ordinance No. 92-18 is simply too
remote and/or speculative to require
his disqualification as a legislative
official.
This finding is clearly erroneous. The court further stated,
Plaintiff correctly surmises that
Council Member Sweiven’s purpose
and intent at the time he promoted
and voted for the ordinance are of
crucial importance in determining
whether or not he had a conflict of
interest.
This holding incorrectly states the law, because the proper
focus is on the relationship between the official’s financial
interest and the result of the official’s action, “regardless of
the official’s intent.” Carney, 785 P.2d at 548.
Sweiven had a “substantial financial interest” within the
meaning of HCC 1.12.010(a)(2) in a reclassification which
would increase the permissible uses of his property. Indeed,
it seems inconsistent for the City to argue both that the
Ordinance will benefit the City by increasing the tax base

185

and property values, and that it will not benefit Sweiven’s
lot in a similar fashion.
The City nevertheless asserts that Sweiven’s interest in the
passage of Ordinance 92-18 is too remote and speculative
to constitute a disqualifying interest, and argues that
Sweiven’s property is affected the same way as other
citizens’ property. The City attempts to distinguish Carney
in which we held that fishermen who sat on the Board of
Fisheries could vote on matters affecting the fishing
industry as a whole but were disqualified from voting on
regulations which affected the area in which they actively
fished. We reasoned in Carney that the members should
have abstained from decision-making in areas in which they
had a narrow and specific interest. Id. at 548. The City
argues that Sweiven did not have a narrow and specific
interest because “Mr. Sweiven’s operations (his home and
appliance repair business) are not affected at all by
Ordinance 92-18 (automobile sales and services).”
Ordinance 92-18 does not directly affect all of Homer, or
even a large part of the City or an entire class of its citizens.
Sweiven voted on an amendment which directly affects
only thirteen lots, including his own, out of the 500-some
lots in the CBD. According to the Alaska Department of
Law, the common law requires that a legislator refrain from
voting on a bill which will inure to the legislator’s financial
benefit if the legislator’s interest “is peculiarly personal,
such as when a bill benefits only a tiny class of which the
legislator is a member.” 1982 Formal Op. Att’y Gen. 4133.
Furthermore, it is said in the context of zoning:
Most of the cases [of disqualifying
conflict of interest] have involved a
charge of a more-or-less direct
financial interest, and it is clear that
such an interest is a proper ground of
disqualification, as where the officer

186

himself holds property which is
directly involved in or affected by the
proceeding.
….
The clearest situation in which
disqualifying bias or prejudice is shown
is that where the zoning officer
himself owns property the value of
which will be directly promoted or
reduced by the decision to be made
and it is not surprising that upon a
showing of such interest the courts
have usually held the officer
disqualified.
W.E. Shipley, Annotation, Disqualification for Bias or Interest of
Administrative Officer Sitting in Zoning Proceeding, 10 A.L.R.3d
694, 697 (1966). Sweiven himself apparently believed that
the Ordinance would increase the value of his property. In
recommending the limited rezone to the planning
commission, he stated that “it would increase the tax base
and property values” of the area. The record reflects that
when Sweiven was advocating rezoning the entire CBD, he
was quoted in the Homer News as stating: “Even my own
business. I can’t sell my business, but I can sell my building,
and someone who wants to put a VW repair shop there —
he can’t…. It’s not just me. This gives everybody in town a
lot more options as far as selling their business.” Finally,
Sweiven initially refrained from voting on Ordinance 94-13,
which would have repealed Ordinance 92-18, on the
ground that he had a potential conflict of interest. It
consequently appears that Sweiven had a “substantial
financial interest” as that term is defined in HCC
1.12.010(a).
The superior court’s finding that Sweiven did not have a
disqualifying conflict of interest is clearly erroneous.

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2. What was the effect of the conflict of interest?
There are six voting members on the Homer City Council.
Five voted for Ordinance 92-18 on its first reading. One
was absent. Four weeks later, it passed its second and final
reading, again by a vote of five in favor and one absent.
Thus, without counting Sweiven’s vote, Ordinance 92-18
would have passed. The superior court held that even if
Sweiven had a disqualifying conflict of interest, his
participation and voting would not invalidate the result. In
support it cited Waikiki Resort Hotel v. City of Honolulu, 63
Haw. 222, 624 P.2d 1353, 1370-71 (1981).
Waikiki followed the rule, also articulated in several other
jurisdictions, that where the required majority exists
without the vote of the disqualified member, the member’s
participation in deliberation and voting will not invalidate
the result. 624 P.2d at 1371 (citing Singewald v. Minneapolis
Gas Co., 274 Minn. 556, 142 N.W.2d 739 (1966); Anderson v.
City of Parsons, 209 Kan. 337, 496 P.2d 1333 (1972); Eways v.
Reading Parking Auth., 385 Pa. 592, 124 A.2d 92 (1956)).
The Waikiki court also cited Marshall v. Ellwood City Borough,
189 Pa. 348, 41 A. 994 (1899), where the court reasoned
that because the other four members voted in favor of the
disputed ordinance, the invalid vote of one city councilman
had no legal efficacy; thus, the court would not invalidate
the ordinance. Waikiki, 624 P.2d at 1371.
Waikiki cited decisions from three other jurisdictions
holding that a vote cast by a disqualified member vitiates
the decision in which the member participated, even if the
vote does not change the outcome of the decision. 624
P.2d at 1370 (citing Piggott v. Borough of Hopewell, 22 N.J.
Super. 106, 91 A.2d 667 (1952); Baker v. Marley, 8 N.Y.2d
365, 208 N.Y.S.2d 449, 170 N.E.2d 900 (1960); Buell v. City
of Bremerton, 80 Wash.2d 518, 495 P.2d 1358 (1972)). In
Buell, the court stated:

188

The self-interest of one member of the
planning commission infects the action
of the other members of the
commission regardless of their
disinterestedness.
The
recommendation of the planning
commission to the city council could
not be assumed to be without impact
on the council. More importantly, it
would not appear to the affected
public that it was without impact, and
[the disqualified member’s] actual
financial gain is sufficient to invalidate
the entire proceeding.
495 P.2d at 1362-63 (citations omitted).
These lines of authorities offer a choice between votecounting (Waikiki) and automatic invalidation (Buell). We
have not had occasion to consider this exact issue. In
Carney, we found that four of seven fisheries board
members had a disqualifying conflict. We then held the
board’s regulation invalid: “Because a majority of the votes
cast to pass the regulation are invalid, so is the regulation.”
785 P.2d at 549. Carney did not raise the issue now before
us because there the measure would have been invalidated
under either doctrine.
We decline to follow the vote-counting approach adopted
in Waikiki, notwithstanding its appealing ease of
application. A council member’s role in the adoption or
rejection of an ordinance cannot necessarily be measured
solely by that member’s vote. A conflicted member’s
participation in discussion and debate culminating in the
final vote may influence the votes of the member’s
colleagues. Moreover, the integrity required of public
officeholders demands that the appearance of impropriety
be avoided; the approach adopted in Waikiki will not
always do so. See Falcon v. Alaska Pub. Offices Comm’n, 570

189

P.2d 469, 477 (Alaska 1977) (holding financial disclosure
laws preserve the integrity and fairness of the political
process both in fact and appearance); Warwick v. State ex rel.
Chance, 548 P.2d 384, 388 (Alaska 1976) (“[I]t is important
that the legislature not only avoid impropriety, but also the
appearance of impropriety.”). Cf. AS 39.50.010(b)(1) (public
office is a public trust which should be free from the
danger of conflict of interest). The superior court erred in
holding that Ordinance 92-18 is valid simply because
Sweiven did not cast the decisive vote in its adoption.
We also decline, however, to adopt the rule of automatic
invalidation endorsed in cases such as Buell, 495 P.2d at
1362-63. The vote and participation of a conflicted member
will not invariably alter the votes of other members or
affect the merits of the council’s decision. This is especially
true if the conflict is disclosed or well-known, allowing
other members to assess the merits of the conflicted
member’s comments in light of his or her interest.
Automatic invalidation could needlessly overturn wellconsidered measures which would have been adopted even
if the disqualified member had refrained from participating.
Automatic invalidation has the potential for thwarting
legislative enactments which are not in fact the result of
improper influence.
The dissenting opinion cites HCC 1.12.030 as justification
for its conclusion that participation by a disqualified
member requires invalidation of the council’s action.3

3 The portion of HCC 1.12.030 cited by the dissent states:

A City Councilmember or Mayor with a conflict of
interest under section 1.12.020 shall so declare to the body
as a whole and ask to be excused from voting on the
matter. However, a City Councilmember or Mayor with a
conflict of interest, regardless of whether excused from
voting, shall not be allowed to participate in discussion
about the matter. (Ord.92-49(A) § 4, 1992; Ord. 86-22(S) §
1(part), 1986).

190

HCC 1.12.030 and 1.24.040(g), however, determine
whether a member may vote or participate. They deal with
disqualification, and do not address the consequences of
participation by a conflicted member. The drafters of the
code must have contemplated that violations might occur
notwithstanding the prohibition. They nonetheless
specified no remedy. Had they intended that particular
consequences would follow from violation of the
prohibition, such as the clear-cut remedies of automatic
invalidation or vote-counting, they could have easily so
provided. Their failure to specify a remedy for violation
implies that the drafters intended that the courts fashion
the remedy.
In determining whether the vote of a conflicted member
demands invalidation of an ordinance, courts should keep
in mind the two basic public policy interests served by
impartial decision-making: accuracy of decisions, and the
avoidance of the appearance of impropriety. See generally
Mark W. Cordes, Policing Bias and Conflicts of Interest in Zoning
Decisionmaking, 65 N.D.L.Rev. 161 (1989).
Guided by these basic policy concerns, we conclude that
the following analysis should be applied in determining the
effect of a conflicted vote. Initially the court must
determine whether a member with a disqualifying interest
cast the decisive vote. If so, the ordinance must be
invalidated. Carney, 785 P.2d at 549. If the ordinance would
have passed without the vote of the conflicted member, the
court should examine the following three factors: (1)
whether the member disclosed the interest or the other
council members were fully aware of it; (2) the extent of the
member’s participation in the decision; and (3) the
magnitude of the member’s interest. The first two factors
squarely bear on the accuracy of the council’s decision. All

This language is nearly identical to the similar prohibition in HCC 1.24.040(g), but
also applies to the mayor.

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three factors directly relate to any appearance of
impropriety.
If the interest is undisclosed, the ordinance will generally be
invalid; it can stand only if the magnitude of the member’s
interest, and the extent of his or her participation, are
minimal. If the interest is disclosed, the ordinance will be
valid unless the member’s interest and participation are so
great as to create an intolerable appearance of impropriety.
The party challenging the ordinance bears the burden of
proving its invalidity. We recognize that this analysis is
more difficult to apply than the vote-counting and
automatic invalidation rules. Simple to apply, those rules
are unacceptably rigid.
The factual record before us is not so clear that we can
decide as a matter of law whether invalidation is
appropriate. The record does not reveal whether the other
council members had actual knowledge of Sweiven’s
interest. While Sweiven’s interest in his lot, where he lived
and worked, was open and obvious, this is a matter of
potential factual dispute to be explored on remand.
Likewise, we cannot weigh the extent of Sweiven’s
participation or say whether it may have affected the
outcome of the measure. Nor does the record establish
whether Sweiven was likely in the foreseeable future to
realize any significant appreciation from the reclassification
by selling or servicing motor vehicles or by selling his lot to
someone who intended to do so. We therefore remand so
that the superior court, applying the analysis discussed
above, can determine whether Ordinance 92-18 must be
invalidated.
….
RABINOWITZ, JUSTICE, dissenting in part.
I believe it is of particular significance that Sweiven
participated in the discussion of and voted for Ordinance
92-18. As the court observes, this ordinance does not

192

directly affect all of Homer, or even a large segment of the
City or an entire class of its citizens. More particularly, the
ordinance directly affects only thirteen lots, including
Sweiven’s own, out of approximately 500 lots located
within the Central Business District. The record further
reveals Sweiven’s belief that Ordinance 92-18 would
increase the value of his property. Indeed Sweiven explicitly
stated that “[the proposal] would increase the tax base and
property values” of the area when recommending the
Limited Rezone to the planning commission.4
Based on the foregoing, the court correctly concludes that
“Sweiven had a ‘substantial financial interest’ within the
meaning of HCC 1.12.010(a)5 in a reclassification which
would increase the permissible uses of his property…. The
4 The court notes:

The record reflects that when Sweiven was advocating
rezoning the entire CBD, he was quoted in the Homer
News as stating: “Even my own business. I can’t sell my
business, but I can sell my building, and someone who
wants to put a VW repair shop there — he can’t… . It’s
not just me. This gives everybody in town a lot more
options as far as selling their business.” Finally, Sweiven
refrained from voting on Ordinance 94-13, which would
have repealed Ordinance 92-18, on the ground that he had
a potential conflict of interest.

Op. at 27.
5 At all times relevant to the case at bar, HCC 1.12.010(a) defined “substantial

financial interest” as follows:
1. An interest that will result in immediate financial gain;
or
2. An interest that will result in financial gain which will
occur in the reasonably foreseeable future.

(HCC 1.12.010 has subsequently been amended.)
HCC 1.12.020 provides:
A City Councilmember or Mayor with a substantial
financial interest in an official action to be taken by the
Council has a conflict of interest. (Ord.92-49(A) § 3, 1992;
Ord. 86-22(S) § 1(part), 1986).

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superior court’s finding that Sweiven did not have a
disqualifying conflict of interest is clearly erroneous.” Op.
at 25, 28.
My disagreement with the court’s opinion goes to its
discussion of the effect of Sweiven’s conflict of interest and
the appropriate remedy given the factual context of this
case. Central to my differing analysis are the provisions of
the Homer City ordinances which address the subject of
conflict of interest. In my view, the court’s analysis ignores
that part of the Homer Municipal Code 1.12.030, which
states:
A City Councilmember or Mayor with
a conflict of interest under section
1.12.020 shall so declare to the body as
a whole and ask to be excused from
voting on the matter. However, a City
Councilmember or Mayor with a
conflict of interest, regardless of
whether excused from voting, shall not
be allowed to participate in discussion
about the matter. (Ord.92-49(A) § 4,
1992; Ord. 86-22(S) § 1(part), 1986).6

6 HCC 1.12.040 provides:

The Mayor or, in his absence, the Mayor Pro-Tem or
other presiding officer, shall rule on a request by a City
Councilmember to be excused from voting on a matter
because of a declared conflict of interest. The Mayor Protem or other presiding officer shall rule on a request by
the Mayor to be excused from participating in a matter
because of a declared conflict of interest. (Ord.92-49(A) §
5, 1992; Ord. 86-22(S) § 1 (part), 1986).

HCC 1.12.050 further provides:
A decision of the Mayor or other presiding officer under
Section 1.12.040 may be overridden by a majority vote of
the City Council. (Ord.86-22(S) § 1 (part), 1986).

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The City of Homer, as expressed in section 1.12.030 of its
Code, has adopted a policy which flatly contradicts the
court’s statement that
[t]he vote and participation of a
conflicted member will not invariably
alter the votes of other members or
affect the merits of the council’s
decision. This is especially true if the
conflict is disclosed or well known,
allowing other members to assess the
merits of the conflicted member’s
comments in light of his or her
interest.
Regardless of the wisdom of the City of Homer’s legislative
enactment barring conflicted council members’
participation in decisions,7 the fact remains that the City of
Homer has expressly adopted a rule specifically prohibiting
conflicted council members from taking part in discussion
or voting on the matter of interest. In fact, the prohibition
on discussion is more stringent that the rule on voting —
even when the “Mayor or other presiding officer” decides
that the member need not be excused from voting, and
even when the council chooses not to override that
decision by a simple majority vote, the member is
nonetheless forbidden to participate in the discussion.
The rule adopted by the court pays no heed to this
participation ban contained in the City of Homer’s
municipal code. The portions of the court’s rule which
conflict with the express non-participation policy of HCC
1.12.030 are the following:

7 This court has consistently held that it is not our function to question the wisdom

of legislation. University of Alaska v. Geistauts, 666 P.2d 424, 428 (Alaska 1983);
Alaska Interstate v. Houston, 586 P.2d 618, 621 (Alaska 1978).

195

If the interest is undisclosed, the
ordinance will generally be invalid; it
can stand only if the magnitude of the
member’s interest, and the extent of his
or her participation, are minimal. If the
interest is disclosed, the ordinance will
be valid unless the member’s interest and
participation are so great as to create an
intolerable appearance of impropriety.
(Emphasis added.) In short, the court’s rule would permit a
conflicted council member to participate in the discussion
of a matter before the body responsible for official action
in cases where the conflicting interest has been disclosed,
or where the conflicting interest is undisclosed and the
conflicted member’s participation does not create an
intolerable appearance of impropriety.
Although the court’s formulation might well be adopted as
a general rule, I think it inappropriate to do so in the face
of an ordinance completely prohibiting participation by any
city council member with a substantial conflicting interest
in the subject matter of a proposed ordinance. In this
regard, it is noteworthy that HCC 1.12.030 is not couched
in terms of de minimis levels of participation. On the
contrary, it imposes a complete ban on the conflicted
member’s participation.
Given the participation ban imposed by HCC 1.12.030,
Sweiven’s conflict generating significant financial interest,
and Sweiven’s participation in the discussion of Ordinance
92-18, I conclude that the appropriate remedy is
invalidation of the ordinance.
As the court recognizes, a council member’s role in the
adoption or rejection of an ordinance cannot necessarily be
measured solely by that member’s vote. A conflicted
member’s participation in discussion and debate
culminating in the final vote may influence the votes of the
member’s colleagues. The court also appropriately

196

recognizes that the integrity required of public office
holders demands that even the appearance of impropriety
be avoided.8

See generally Mark W. Cordes, Policing Bias and Conflict of Interest in Zoning
Decisionmaking, 65 N.D.L.Rev. 161 (1989). Here the author writes in part:
8

The second and more common provision is to prohibit
participation when a conflict of interest exists. The
rationales behind this are obvious. Although disclosure
has some restraining effect, a significant conflict might still
affect the substantive outcome of a decision. More
importantly, perceptions of fairness and legitimacy are
only partly addressed by disclosure.
For these reasons disqualification rather than disclosure is
the preferable approach. Although in some instances
disclosure might adequately address the need for
impartiality, in many instances it will only be partially
effective. The inconvenience of adjusting to the
disqualification of a decisionmaker is not so great as to
justify the threat to accuracy and legitimacy posed by the
requirement of mere disclosure.
Beyond determining what effect a conflict of interest
should have on a particular decisionmaker is what judicial
remedies should be available when a zoning decision in
fact involved an improper conflict of interest. In those
instances in which the biased decisionmaker casts a
dispositive vote, courts have consistently invalidated the
decision. This seems appropriate in that both accuracy and
legitimacy concerns are clearly threatened when a decision
appears to turn on the vote of a self-interested
decisionmaker.

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Guided by these principles and the City of Homer’s explicit
ban on a conflicted member’s participation, I respectfully
dissent from the court’s remedy. Rather than remand this
issue, I would hold Ordinance 92-18 invalid because of
council member Sweiven’s participation.9
A more difficult issue is whether the participation of a
conflicting member whose vote was not determinative to a
decision should also result in invalidation. This might
occur in two general situations. First is where the tainted
vote was numerically unnecessary for the decision. Courts
have evenly split on this issue, with a slight majority
favoring invalidation. Courts refusing to invalidate such
decisions have primarily reasoned that even without the
tainted vote the decision would have occurred anyway and
therefore invalidation is improper. In this sense the threat
to accuracy and legitimacy concerns is arguably de minimis
when the particular vote is apparently not crucial to a
decision. In particular, legitimacy concerns are less
threatened when a decision appears inevitable. As a result,
the administrative burden of invalidating and remanding a
decision outweighs any threat to substantive results and
perceptions of fairness.
Despite these distinctions, several strong reasons exist for
invalidating decisions even when a tainted decisionmaker’s
vote was numerically unnecessary for the decision. First,
courts invalidating such decisions have noted that collegial
decisionmaking ideally involves the exchange of ideas and
views, often with the intent of persuading toward a
particular position. The actual contribution of any
particular decisionmaker cannot be measured with
precision, but frequently extends significantly beyond the
actual vote cast. For this reason, a significant threat to
accuracy can exist even when a particular vote was
numerically unnecessary for the decision.
For similar reasons legitimacy concerns also exist even
when a vote is numerically unnecessary. Although
legitimacy concerns are less substantial in such
circumstances, the perception of collegial decisionmaking
and the potential influence of a tainted decisionmaker on
others would violate “appearance of fairness” standards.
Thus, for both accuracy and legitimacy reasons the better
view is that even when a vote is numerically unnecessary
for a decision courts should still invalidate it.

Id. at 214-216 (footnotes omitted).
9 I note my agreement with the court’s other holdings.

198

In re McGlynn
974 A.2d 525 (2009)
H. Peter Nelson, Perkasie, for appellants.
Matthew J. Goodrich, Bangor, for appellee, L.U.R.R.S.
Opinion by JUDGE SIMPSON.
An important issue in this appeal is whether the failure to
strictly comply with the public notice provisions of the
Pennsylvania Municipalities Planning Code (Code) resulted
in a denial of procedural due process so as to render a
decision on a conditional use application void ab initio.
The Board of Supervisors (Board) of Lehigh Township
(Township) granted a conditional use application (Use
Application) filed by L.U.R.R.S. (Applicant). The Use
Application sought approval for development of a
mobile/manufactured home park. Objectors, who actively
participated in multiple hearings on the Use Application,
appealed the Board’s decision to the Court of Common
Pleas of Northampton County (trial court). In addition to
challenging the Township’s notice procedures, Objectors
asserted Applicant does not own all the property subject to
the Use Application, the Application is moot, and the
Application failed to meet the standards of the Lehigh
Township Zoning Ordinance (Ordinance) for the grant of
a
conditional
use
application
and
for
a
mobile/manufactured home park. The trial court affirmed
the Board’s decision, and Objectors appeal. We affirm.
….
In June 2004, Applicant filed the Use Application with the
Township seeking to construct a mobile/manufactured
home park on property located along Mountainview Drive
(Property). The 103-acre Property is located in a Village
Residential
District
(VR),
which
permits
a
mobile/manufactured home park as a conditional use.
Applicant proposed to construct 245 single-family homes

199

designated as
Community.

North

Woods

Manufactured

Home

The Township Planning Commission recommended
approval of the Use Application. Accordingly, the
Township advertised that the Board would hold a public
hearing on the Use Application at its January 31, 2006
meeting. The public notice appeared in the January 19,
2006 edition of a local newspaper of general circulation.
The Township also published a second notice of the public
hearing in the January 23, 2006 edition of the same
newspaper. These publications occurred four days apart.
The Board held the conditional use hearing as scheduled.
Applicant submitted evidence in support of its Use
Application and Objectors, representing themselves, crossexamined Applicant’s witnesses. The Board’s hearing did
not conclude on January 31; rather, the Board held
additional hearings on February 28 and March 27, 2006.
Objectors again actively participated in the hearings by
cross-examining Applicant’s witnesses and offering
evidence.
In a comprehensive decision, the Board set forth findings
of fact and conclusions of law, and examined each
conditional use requirement of the Ordinance as well as the
specific requirements of a mobile/manufactured home
park. It concluded Applicant showed compliance with all
zoning requirements and, therefore, granted the Use
Application with conditions.
Retaining counsel, Objectors appealed the Board’s decision
to the trial court. Among a variety of motions, Objectors
sought to reopen the record. Certified Record (C.R.) Item
9. Objectors also asserted Applicant engaged in
unauthorized tree clearing on the Property. The trial court
ordered that “the entire matter will be remanded to the [Board]
for purposes of presentation of any additional testimony and
evidence.” Id. (emphasis added).

200

The Board held remand hearings in April, May and June
2007. Objectors through Counsel actively participated in
the remand hearings. In October 2007, the Board issued a
second decision confirming its May 2006 decision as
modified by an interim stipulation between the Township
and Applicant. Addressing the matters subject to remand,
the Board noted the wetlands issue arose during the first
round of conditional use hearings and, as a result, it
imposed Conditions 7, 8 and 10, noted below. Concerning
the utility easement, the Board observed that relocation of
homes, roads, and water retention basins impacted by the
easement would be addressed in the subdivision and land
development process. Finally, the Board explained the
Township previously issued and withdrew a violation
notice regarding tree removal on the Property. In short, the
Board found the testimony on remand did not affect its
decision on the Use Application.
Objectors filed a second appeal to common pleas court. A
different trial judge heard Objectors’ appeal. The trial court
affirmed.
….
The first issue Objectors raise involves the concept of
procedural due process. The fundamental components of
procedural due process are notice and opportunity to be
heard. Pessolano v. Zoning Bd. of Adjustment of City of Pittsburgh,
159 Pa.Cmwlth. 313, 632 A.2d 1090 (1993).
Regarding only the conditional use hearing held January 31,
2006, the Township advertised the Board’s hearing on
January 19 and then again on January 23. The publications
occurred four days apart and, according to Objectors,
constituted insufficient public notice under the MPC. There
are no assertions that the Board failed to publish notice of
the remaining five conditional use hearings held in 2006
and 2007. It is also important to note Objectors do not
assert any harm resulting from the Township’s failure to

201

twice advertise the first conditional use hearing at least five
days apart.
Section 908(1) of the MPC requires public notice of Board
hearings. 53 P.S. § 10908(1). Section 107 of the MPC
defines “public notice” as
notice published once each week for
two successive weeks in a newspaper
of general circulation in the
municipality. Such notice shall state
the time and place of the hearing and
the particular nature of the matter to
be considered at the hearing. The first
publication shall not be more than 30
days and the second publication shall
not be less than seven days from the
date of the hearing.
53 P.S. § 10107.
The MPC does not define the term “successive weeks.” We
therefore look to the Statutory Construction Act of 1972, 1
Pa. C.S. §§ 1501-1991, to construe the term’s meaning. It
provides that whenever any statute uses the phrase
“successive weeks” in reference to publishing of notices,
the weeks “shall be construed as calendar weeks [and the]
publication upon any day of such weeks shall be sufficient
publication for that week, but at least five days shall elapse
between each publication.” 1 Pa.C.S. § 1909.
At this juncture, the parties agree the Township’s two
notices of the Board’s January 31 hearing were published
four days apart instead of five days, as required by Section
1909.1 The question then is the result of the defect on the
Use Application.
1 Section 1908 of the Statutory Construction Act provides for the computation of

time when referenced in a statute. 1 Pa.C.S. § 1908. However, Section 1908 does
not apply to Section 1909, above. Id. The trial court therefore looked to the Rules
of Civil Procedure to determine the number of days between publications of the

202

At the outset, we observe Objectors failed to raise their
public notice concerns at anytime before the Board and,
therefore, deprived it of an opportunity to discontinue the
proceedings and start anew. Nevertheless, Objectors cite
several appellate decisions for the proposition that strict
compliance with the MPC’s notice provisions is mandatory
and any deviation renders the local agency’s decision void
ab initio. See Luke v. Cataldi, 593 Pa. 461, 932 A.2d 45 (2007)
(alleged failure to provide public notice or public hearing
before granting conditional use application would render
board’s decision void ab initio; remanded for further
proceedings); Glen-Gery Corp. v. Zoning Hearing Bd. of Dover
Twp., 589 Pa. 135, 907 A.2d 1033 (2006) (a claim alleging a
procedural defect affecting notice or due process rights in
the enactment of an ordinance may be brought beyond
statutory appeal period because, if proven, ordinance is
void ab initio); Schadler v. Zoning Hearing Bd. of Weisenberg
Twp., 578 Pa. 177, 850 A.2d 619 (2004) (failure to make full
text of proposed amendment to zoning ordinance available
for public comment rendered subsequent enactment of the
amendment void ab initio); Lower Gwynedd Twp. v. Gwynedd
Props., Inc., 527 Pa. 324, 591 A.2d 285 (1991) (failure to
publish entire text of ordinance as required by The Second
Class Township Code rendered ordinance void).
After careful consideration, we do not believe reversal of
the Board’s decision is compelled here where Objectors
received all process due and asserted no claim of prejudice
or harm.

hearing notices. Specifically, Rule 106 provides that when any period of time is
referenced in the rules, the period shall be computed by excluding the first day and
including the last day of any such period. Pa. R.C.P. No. 106. In this case, the first
day of the five-day period was January 20 and the last day was January 23; thus,
only four days lapsed between publications. Nevertheless, the trial court recognized
liberal construction of the rules of civil procedure is required so long as the error
does not affect the substantial rights of the parties. See Pa. R.C.P. No. 126. As more
fully explained, the publication error did not affect the parties’ substantive rights.

203

The statutory notice and publication requirements are to
ensure the public’s right to participate in the consideration
and enactment of municipal land use decisions. Lower
Gwynedd Twp. In other words, the notice provisions protect
procedural due process. The concept of due process,
however, is a flexible one and imposes only such
procedural safeguards as the situation warrants. LaFarge
Corp. v. Ins. Dep’t, 557 Pa. 544, 735 A.2d 74 (1999); Fountain
Capital Fund, Inc. v. Pa. Secs. Comm’n, 948 A.2d 208 (Pa.
Cmwlth.2008), appeal denied, ___ Pa. ___, 967 A.2d 961
(2009). Demonstrable prejudice is a key factor in assessing
whether procedural due process was denied. State Dental
Council & Examining Bd. v. Pollock, 457 Pa. 264, 318 A.2d
910 (1974).
The seminal case addressing due process is Mathews v.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
Factually, Mathews concerned the Social Security
Administration’s decision to discontinue cash benefits
without affording the recipient a pre-decisional hearing.
The United States Supreme Court rejected the recipient’s
claim that due process required the agency to hold a
hearing prior to terminating benefits. In doing so, the
Court considered what process is due an individual before a
property interest may be affected by government action. It
identified three factors that must be considered in
formulating the process due: the private interest affected by
the government action; the risk of erroneous deprivation of
such interest through the procedures used and the probable
value, if any, of additional or substitute procedural
safeguards; and finally, the government’s interest, including
the function involved and the administrative burdens that
additional or substitute procedural requirements would
entail. Id. at 335, 96 S.Ct. 893. We address each of these
considerations.
First, we recognize Objectors have an interest in the quiet
use and enjoyment of their properties near the proposed

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use, as well as the right to participate in the Board’s
hearings. Here, however, we discern no deprivation of
Objectors’ interests. In Pessolano, neighboring property
owners appeared at a zoning hearing to oppose a
landowner’s application for a special exception. The zoning
board denied the application, and the landowner appealed
to common pleas court. The landowner did not serve the
neighboring property owners with a notice of appeal. On
appeal, the court reversed the zoning board’s decision,
granted the special exception, and imposed conditions on
the property’s use.
After the appeal period lapsed, the neighboring property
owners petitioned to vacate the court’s order on the basis
they were denied the opportunity to intervene in the
landowner’s appeal. They cited a city zoning ordinance
requiring an appealing party to notify all persons appearing
before the zoning hearing board of an appeal. Sustaining
the landowner’s preliminary objections, the common pleas
court dismissed the petition to vacate. Of import, the court
concluded the landowner’s failure to strictly comply with
the city ordinance did not warrant reversal of its decision
because the property owners did not claim lack of actual
knowledge of the landowner’s appeal.
We affirmed. Cognizant of the procedural safeguards that
notice provisions are to provide, we stated the value and
necessity of strict compliance with the notice requirements
is diminished where the interested parties have actual notice
of the legal proceedings. “[A]ctual notice serves to
accomplish the same purposes that legal notice is intended
to accomplish. Both forms of notice serve to make
interested parties aware of the opportunity to exercise their
legal rights.” Id. at 317, 632 A.2d 1090.
Applying the above principle here, Objectors had actual
notice of the Board’s first conditional use hearing and
actively participated at that time. At no time during the six
Use Applications hearings did Objectors assert to the

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Board lack of actual notice of the first hearing or defective
publication of the required notices. Cf. Citimortgage, Inc. v.
KDR Invs., LLP, 954 A.2d 755 (Pa.Cmwlth.2008) (the
formal requirements of statutory notice for sale of property
for nonpayment of taxes need not be strictly met where
actual notice is established); Aldhelm, Inc., v. Schuylkill County
Tax Claim Bureau, 879 A.2d 400 (Pa.Cmwlth.2005)(same).
Second, the ongoing proceedings here did not risk
depriving Objectors of their interests. At the conclusion of
the first hearing, the Board announced its intention to hold
a second hearing. Likewise, the Board announced a third
hearing at the conclusion of the second hearing. It also
indicated it would publish notice of the upcoming hearings
in a local newspaper and post the Township building. See
C.R., Notes of Testimony (N.T.), Vol. I at 147-48; Vol. II
at 147.
Most significantly, Objectors and their counsel fully
participated in the remand proceedings. The scope of the
remand was not limited; rather, Objectors were able to call
any witness and offer any appropriate document. Thus,
their interests were fully protected.2 Objectors’ participation
Our recent decision in Southeastern Chester County Refuse Authority v. Board of
Supervisors of London Grove Township, 954 A.2d 732 (Pa.Cmwlth.2008), is also
instructive on this point. There, the Southeastern Chester County Refuse Authority
(SECCRA) filed an application to expand its landfill. The township board of
supervisors held hearings on the application over an 18-month period. After denial
of its application, SECCRA claimed the board failed to schedule the hearings in
compliance with the MPC and, thus, it was entitled to a deemed approval. We
affirmed the denial of SECCRA’s application. Important to our decision was the
fact that SECCRA actively participated in the board’s decisions and challenged the
evidence opposing its application over the 18-month period. It never asserted its
right to a deemed approval during that time. In sum, we concluded SECCRA’s
active participation in hearing subsequent to the date it could have asserted a
deemed approval under the MPC manifested its agreement to an extension of time
for a board determination.
2

Southeastern Chester County Refuse Authority confirms that a party’s actions which are
contrary to the rights it seeks to assert may result in waiver of the claimed right.
Here, Objectors should have asserted the Township’s publication of the first Use
Application hearing was defective at the start of the first hearing. They

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with counsel during the unrestricted remand hearings acted
to cure any deficiency in notice of the original set of
hearings. Indeed, Objectors do not assert prejudice by the
manner of publishing notice of the first of the original set
of hearings.
Third, we consider the Township’s interests and burden in
curing the defective notices of the first hearing. It is
conceivable that the entire application process would start
anew. The Township would again incur advertising costs
and counsel fees to cover the same material already offered
in the previous six hearings. Objectors do not suggest any
different information would be offered at new proceedings.
Under these circumstances, a similar result is expected, and
Objectors’ challenge to the proposed use would likely result
in appeals again. The financial and administrative burdens
on the Township are obvious.
In summary, Objectors do not claim harm resulting from
the Township’s failure to twice advertise the first
conditional use hearing in strict compliance with the MPC.
Objectors’ interests were protected by their active
participation during the initial set of hearings and by their
active participation with counsel during unrestricted
remand hearings. Absent a showing of discernible harm, a
denial of due process claim must fail.
….

compounded the issue by failing to raise it before the Board at any of the other five
hearings.

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Maxwell v. Carney
273 Ga. 864 (2001)
Sherwood & Sherwood, J. Carol Sherwood, Jr., Valdosta,
for appellants.
Long Denton & Parrott, Allen Denton, Vann K. Parrott,
Quitman, for appellees.
THOMPSON, JUSTICE.
The Brooks County Board of Commissioners held a
regularly scheduled monthly meeting on November 16,
1999, in the Brooks County Commission’s meeting room.
A number of people, over and above the room’s seating
and standing capacity, showed up for the meeting but they
were unable to get in. Although a larger room in the
building had been used for county meetings, the
commission refused a request to move the meeting to the
larger room. The stated reason for that refusal was that the
public notice specified that the meeting would take place in
the smaller room.
Thereafter, plaintiffs brought this suit seeking injunctive
relief on the ground that the commission violated the Open
Meetings Act, OCGA § 50-14-1 et seq. Following a
hearing, the superior court enjoined the commission “from
conducting public meetings… in the Brooks County Office
Building unless both meeting rooms in the building are
available to the board.” Furthermore, the superior court
ordered that, “if a new site is selected for public meetings
the room shall provide adequate seating and space so that
all members of the public who desire to attend may be
accommodated.” Finally, the superior court held “that a
public notice of a meeting to the effect that all county
commissioner’s meetings in the Brooks County Office
Building at [address] shall be legally sufficient regardless of
which room in the building is utilized.” The commission
appeals asserting the superior court abused its discretion in

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shaping injunctive relief. We affirm in part and reverse in
part.
1. The public notice did not specify in which room the
meeting was to be held. The notice only gave the location
of the building, and a sign with an arrow was placed at the
entrance of the building to indicate which room was to be
used. Moreover, the commission moved a previous meeting
from the regular meeting room to the larger room in the
building without advance notice. Accordingly, we find no
error in that portion of the superior court’s order which
requires the commission to conduct meetings in the larger
meeting room if the usual meeting room is insufficient to
accommodate the public.
Harms v. Adams, 238 Ga. 186, 232 S.E.2d 61 (1977), upon
which the commission relies, is inapposite. In that case, the
meeting was held in the mayor’s office because the regular
meeting room was occupied. Moreover, there was no
evidence that another room was available.
2. The superior court’s injunction is too broad insofar as it
requires the commission to provide adequate seating to
enable all members of the public to attend the meeting. The
superior court would have the commission provide seating
for everyone in the county if they all decided to attend a
meeting. This was not the intent of the Open Meetings Act.
The Open Meetings Act requires adequate, advance notice
of a meeting – not physical access to all members of the
public. See Harms v. Adams, supra.
Judgment affirmed in part and reversed in part.
Kearns-Tribune Corporation v. Salt Lake County
Commission
28 P.3d 686 (Utah 2001)
Michael Patrick O’Brien, Deno G. Himonas, Jeremy M.
Hoffman, Salt Lake City, Charles A. Brown, Lewiston,
Idaho, for plaintiff.

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David E. Yocom, Gavin J. Anderson, Salt Lake City, for
defendant.
Jeffrey J. Hunt, Diana Hagen, David C. Reymann, Salt Lake
City, for amici.
WILKINS, JUSTICE.
¶ 1 This appeal presents the question of whether the Utah
Open and Public Meetings Act, Utah Code Ann. §§ 52-4-1
to -10 (1998), permits the Salt Lake County Commission to
close a meeting to the public in order to consider, with legal
counsel, possible courses of action with respect to an
annexation petition pending before the Salt Lake County
Boundary Commission. The parties filed cross motions for
summary judgment, and the district court ruled in favor of
plaintiff Kearns-Tribune Corporation concluding that by
closing the meeting, the Salt Lake County Commission
violated the Open and Public Meetings Act. We reverse
and remand.
BACKGROUND
¶ 2 In this case, no material differences in the facts were
raised by the parties, only questions about the legal
implications of those facts. We recite the facts accordingly.
¶ 3 The Salt Lake County Commission (“County
Commission”) held a staff meeting on March 30, 1998. The
County Commission customarily treated staff meetings as
subject to the Utah Open and Public Meetings Act, and
therefore the March 30, 1998 meeting was open to the
public. At one point, however, the county attorney’s office
suggested to the County Commission that part of the
meeting be closed. The county attorney’s office wanted to
discuss in private whether to oppose Riverton City’s
petition to annex unincorporated county land that was
pending before the Salt Lake County Boundary
Commission (“Boundary Commission”). The county

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commissioners voted unanimously to close the meeting,
and the public, including the press, was asked to leave.
¶ 4 The county commissioners and their attorneys then met
privately and discussed matters pertaining to Riverton
City’s annexation proposal. The minutes of this closed
meeting reflect that legal counsel first explained to the
Commissioners the factual and procedural circumstances
surrounding the annexation proceeding and the possible
results of the annexation petition, namely that islands of
unincorporated county land would result. Next, counsel
indicated that South Jordan City had protested Riverton
City’s petition. Finally, counsel outlined three possible
courses of action: (1) the County Commission could send a
letter to Riverton City listing technical problems with the
petition, but refrain from appearing before the Boundary
Commission; (2) the County Commission could appear,
through counsel, before the Boundary Commission and
address only technical problems with the petition; or (3) the
County Commission could file a formal protest with the
Boundary Commission opposing the annexation. Counsel
recommended that the county not protest technicalities.
The County Commission voted to appear before the
Boundary Commission and to send a letter to Riverton City
identifying technical problems. The meeting was then
reopened to the public, and adjourned.
¶ 5 The complaint filed by plaintiff Kearns-Tribune
Corporation (“Kearns-Tribune”), a newspaper publishing
company, insists that the Salt Lake County Commission
violated the Utah Open and Public Meetings Act (the
“Act”), arguing that the exception to the Act permitting
closed meetings for “strategy sessions to discuss pending or
reasonably imminent litigation,” Utah Code Ann. § 52-45(1)(a)(iii) (1998), is inapplicable to annexation or boundary
protest proceedings. The County Commission answered
the complaint and filed a motion for summary judgment,
arguing that it appropriately closed the March 30, 1998

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meeting to discuss the county’s legal alternatives to
Riverton City’s annexation petition as pending or
reasonably imminent litigation. Plaintiff responded by filing
a response and a cross-motion for summary judgment.
¶ 6 The district court ruled in favor of Kearns-Tribune,
indicating that the portion of the meeting that was closed
by the County Commission should have been open to the
public. The district court concluded that the County
Commission did not conduct a strategy session, but instead
discussed the underlying policy issues, which the court
stated should be debated publicly. The Salt Lake County
Commission appeals.
….
ANALYSIS
¶ 8 This case requires the interpretation and application of
the Utah Open and Public Meetings Act. Section 52-4-3 of
the Act specifies, “Every meeting is open to the public
unless closed pursuant to Sections 52-4-4 and 52-4-5.”
Section 52-4-4 provides the procedure through which a
meeting may be closed. It reads, in relevant part: “No
closed meeting is allowed except as to matters exempted
under Section 52-4-5… .” The provision under
consideration in this case, section 52-4-5, sets forth seven
purposes for which a meeting may be closed. Four of those
purposes or circumstances permitting closure to the public
of a meeting involve “strategy sessions,” and all four
require that a record of the closed proceedings be kept.
Utah Code Ann. § 52-4-5(1)(a) (1998).
¶ 9 The types of strategy sessions allowing for lawful
closure of an otherwise public meeting include those to
discuss “collective bargaining,” § 52-4-5(1)(a)(ii), “pending
or reasonably imminent litigation,” § 52-4-5(1)(a)(iii), “the
purchase, exchange, or lease of real property where public
discussion … would disclose the … value of the

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property… or prevent the public body from completing the
transaction on the best possible terms,” § 52-4-5(1)(a)(iv),
and “the sale of real property where public discussion …
would disclose the … value of the property… or prevent
… completing the transaction on the best possible terms;
the public body had previously given public notice that the
property would be offered for sale; and the terms of the
sale are publicly disclosed before the public body approves
the sale,” § 52-4-5(1)(a)(v).
¶ 10 We have not had occasion to review and distinguish
the individual categories of closable meetings. The general
nature and tone of the seven exceptions in section 52-45(1), however, suggest a clear legislative intent to ensure
that the public’s business is done in full view of the public
except in those specific instances where either the public,
or a specific individual who is the subject of the meeting,
may be significantly disadvantaged by premature public
disclosure of sensitive information. The ultimate
consequence of closed discussions about the price of real
property, collective bargaining, and a public body’s
approach to pending or reasonably imminent litigation
eventually becomes public. Nevertheless, in each of these
limited circumstances, the public’s general interest was
thought by our legislature to be best served by allowing
confidential discussions to precede the actions that would
disclose the strategy.
¶ 11 In the case before us, the Salt Lake County
Commission relies upon the exception for strategy sessions
to discuss pending or reasonably imminent litigation. See §
52-4-5(1)(a)(iii). The Commission argues that it properly
closed the meeting to the public because it discussed
Riverton City’s petition before the Boundary Commission,
and matters before the Boundary Commission are quasijudicial and therefore qualify as “litigation” for purposes of
the statute. Kearns-Tribune, to the contrary, argues that the
Salt Lake County Commission improperly closed the

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meeting because the topic discussed by the county
commissioners, an annexation dispute, is a legislative or
policy matter, and not pending or reasonably imminent
litigation. The amici, the Society of Professional Journalists
and several news organizations, also argue that the County
Commission improperly closed the meeting because the
county commissioners discussed policy, not litigation
strategy. The amici further contend that the litigation
exception must be strictly construed. The plain meaning of
the term “litigation” implies court proceedings, they argue,
and defining “litigation” to include agency proceedings, like
an annexation proceeding, would result in the litigation
exception eviscerating the general rule of openness
intended by the Act.
¶ 12 Both parties and the amici refer us to our decision in
Common Cause of Utah v. Public Service Commission, 598 P.2d
1312 (Utah 1979). Common Cause is not like this case,
however. In Common Cause, we said that the legislativelycreated Utah Public Service Commission performs a variety
of duties, including those that fall distinctly within
legislative, administrative, and adjudicative categories. Id. at
1314. In order to perform the adjudicative function of
hearing and resolving disputes between competing and
protesting utilities, the Public Service Commission must be
able to deliberate and arrive at decisions in private. Id. We
therefore concluded that the Public Service Commission’s
adjudicative function was quasi-judicial, and that as a result
the Open and Public Meetings Act did not apply when the
Public Service Commission acts in its adjudicative role. Id.
In concluding that the Public Service Commission’s
deliberative sessions need not be open to the public, we
balanced two competing interests:
[T]he obviously desirable objective of
giving the public, … the fullest
possible degree of knowledge of the
matter under consideration, and of

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affording the opportunity to supply
information and to engage in dialogue
and the exchange of ideas[; against the
interest that] after all of the evidence
and information has been furnished to
the Commission, the process of
analysis, deliberation, and arriving at a
decision, should be permitted to take
place in an atmosphere of peace and
privacy, … so that the commissioners
have the opportunity for a frank and
unrestricted discussion and exchange
of ideas in order that they can arrive at
the best possible decision… .
Id. at 1313-14.
¶ 13 This case, however, is different from Common Cause
because here we are not presented with the question of
whether the Salt Lake County Commission closed the
meeting to conduct a quasi-judicial deliberative function,
but whether the County Commission’s meeting could be
closed under the Act to discuss strategy with respect to an
entire adversarial process, the process of protesting an
annexation petition before the county Boundary
Commission. In other words, the question is whether the
entire process before a county boundary commission, a
process that involves both legislative and judicial aspects,
constitutes litigation for purposes of the Open and Public
Meetings Act, from the perspective of the County Commission.
Moreover, we are not balancing interests as we did in
Common Cause. We are interpreting legislation which, on the
one hand expresses clear legislative intent that the
deliberations of state agencies and political subdivisions be
conducted openly, against an exception to that mandate
that permits meetings to be closed for “strategy sessions to
discuss pending or reasonably imminent litigation.” § 52-45.

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I. INTERPRETATION OF EXCEPTIONS TO
THE UTAH OPEN AND PUBLIC MEETINGS
ACT
¶ 14 When we interpret statutes, we “give effect to the
legislative intent, as evidenced by the plain language, in light
of the purpose the statute was meant to achieve.” [citations
omitted]
¶ 15 The legislature expressly declared its purpose in
enacting the Utah Open and Public Meetings Act in section
52-4-1, which reads, “It is the intent of the law that [the]
actions [of the state, its agencies and political subdivisions,]
be taken openly and that their deliberations be conducted
openly.” Utah Code Ann. § 52-4-1 (1998). As a result, we
interpret the Utah Open and Public Meetings Act broadly
to further the declared statutory purpose of openness.
Because we construe the Act broadly, it therefore follows
that the exceptions be strictly construed. In this case we
construe the litigation exception narrowly so as to give
effect to the legislative intent. We further note the intent of
the legislature to permit some meetings to be closed under
certain circumstances. In carrying out the purpose of
openness, the legislature could have chosen to make the
open meetings requirement absolute. It chose, however, to
exclude some meetings from the openness requirement.
¶ 16 The statutory provision in question permits an
otherwise public meeting to be closed by a public body for
“strategy sessions to discuss pending or reasonably
imminent litigation.” Utah Code Ann. § 52-4-5(1)(a)(iii). In
order for the Salt Lake County Commission not to have
violated the Act by closing the March 30, 1998 meeting, the
closed portion of the meeting (1) must have been a strategy
session, (2) the strategy session must have been with
respect to litigation, and (3) the litigation must have been
pending or reasonably imminent.

216

A. Whether the Closed Portion of the Meeting was a
Strategy Session
¶ 17 The trial court, after reviewing the minutes of the
March 30, 1998 meeting in camera, concluded that the
County Commission “did not conduct a strategy session,
rather it discussed the underlying policy question of
whether to take any action at all.” The district court stated
that in order to close a meeting under section 52-45(1)(a)(iii), the focus of the public body’s discussion must
be on litigation strategy, which could include a discussion
of claims or defenses, strengths and weaknesses of the
public body’s position, whether to hire outside counsel,
settlement posture, etc.
¶ 18 We conclude that the closed portion of the meeting
was a strategy session. In generally accepted terms, to
strategize means to devise plans or means to achieve an
end. The Salt Lake County Commission devised a plan or
course of action and put it in motion during the private
portion of the March 30, 1998 meeting. It is uncontested
that counsel for the County Commission explained the
factual and procedural circumstances leading to, and the
possible results of, Riverton City’s annexation petition.
Next, counsel informed the County Commission that
South Jordan City had already protested Riverton City’s
petition and offered three possible courses of action for the
County Commission to take with respect to the petition: (1)
send a letter to Riverton City listing technical problems
with the petition, but refrain from appearing before the
Boundary Commission; (2) appear, through counsel, before
the Boundary Commission and address only technical
problems with the petition; or (3) file a formal protest
opposing the annexation. Moreover, counsel also suggested
that one option regarding the protest of technicalities not
be pursued; and at the end of the private session, the
County Commission selected a course of action, agreeing to
appear before the Boundary Commission and to send a

217

letter to Riverton City identifying technical problems. This
closed session during which the County Commission was
informed of the background of the Riverton City
annexation petition, was advised on how to respond to the
petition, was given a recommended course of action, and
decided on a course of action, constitutes a strategy session.
B. Whether Disputes Before
Commission Constitute Litigation

the

Boundary

¶ 19 Having concluded the closed portion of the meeting
was a strategy session, the question becomes whether the
meeting was a discussion of litigation strategy, or whether it
was strategy with respect to a non-litigation process.
Essentially, we must decide whether an annexation matter
before the Boundary Commission is litigation.
¶ 20 The County Commission reasons that county
boundary commission proceedings are pending or
reasonably imminent litigation because annexation
proceedings before a boundary commission include adverse
parties, representation, notice, witnesses, evidence, exhibits,
transcripts, appeals to the district court, etc., and are
therefore quasi-judicial proceedings that qualify as
litigation. Kearns-Tribune, on the other hand, argues that
boundary commission proceedings are legislative
proceedings, not litigation. The amici also assert that
annexation proceedings are not litigation. They say that the
plain meaning of the term “litigation” implies court
proceedings, and defining “litigation” to include agency
proceedings would result in the litigation exception
swallowing the general rule of openness intended by the
Open and Public Meetings Act. Furthermore, the amici cite
Bradshaw v. Beaver City, 27 Utah 2d 135, 493 P.2d 643 (Utah
1972), and Child v. City of Spanish Fork, 538 P.2d 184 (Utah
1975), for the proposition that annexation proceedings are
legislative functions and are therefore not litigation. They
argue that even though boundary commission proceedings

218

may be similar to litigation procedurally, the substance of
boundary commission decisions is a matter of public policy
that should be debated publicly.
¶ 21 This court has clearly indicated that the determination
of municipal boundaries is a legislative function, see
Sweetwater Props. v. Town of Alta, 622 P.2d 1178, 1180 (Utah
1981); Freeman v. Centerville City, 600 P.2d 1003, 1005 (Utah
1979); Child, 538 P.2d at 186; Bradshaw, 27 Utah 2d at 137,
493 P.2d at 645, and we do not depart from this
conclusion. More accurately, the determination of
municipal boundaries is a function of the state legislature,
as opposed to a local legislative body. This is because local
governmental bodies, as political subdivisions of the state,
have no inherent control over their own boundaries as they
derive their powers from the State. See, e.g., Wisconsin Pub.
Intervenor v. Mortier, 501 U.S. 597, 607-08, 111 S.Ct. 2476,
115 L.Ed.2d 532 (1991) (stating that it is well settled that
local governmental units are created as agencies for
exercising the State’s governmental powers and that the
governmental powers that may be entrusted to local
governments are granted in the absolute discretion of the
State); see also 1 Antieau on Local Government Law § 3.01 (2d
ed.2000). Accordingly, we maintain that the determination
of municipal boundaries, including land annexation, is a
legislative function within the control of the state
legislature.
¶ 22 Our legislature has delegated, to a certain extent, this
authority over annexation and has enacted a statutory
system that controls the annexation process. See Utah Code
Ann. § 10-2-401 to -426 (1999 & Supp.2000). Because of
this statutory scheme, local governments in our state are
authorized to annex land, provided they follow the
statutory guidelines. Moreover, as part of the statutory
framework, the legislature also created a mechanism for the
resolution of annexation disputes. This method of dispute
resolution involves county boundary commissions.

219

¶ 23 The process of annexing an unincorporated area to a
municipality generally begins with the filing of an
annexation petition. Compare Utah Code Ann. § 10-2-402(2)
(1999) (“Except as provided in Section 10-2-418, a
municipality may not annex an unincorporated area unless a
petition under Section 10-2-403 is filed requesting
annexation”), and Utah Code Ann. § 10-2-403(1) (1999)
(“Except as provided in Section 10-2-418, the process to
annex an unincorporated area to a municipality is initiated
by a petition as provided in this section”), with Utah Code
Ann. § 10-2-418 (1999) (explaining how, notwithstanding
subsection 10-2-402(2), a municipality may annex an area
without an annexation petition if, for example, the area to
be annexed consists of islands within or peninsulas
contiguous to the municipality). The annexation petition is
filed with the city recorder or town clerk of the proposed
annexing municipality. § 10-2-403(2)(a). The legislative
body of the proposed annexing municipality may either
deny or accept the petition. § 10-2-405(1)(a). If the
legislative body of the proposed municipality accepts the
petition, the city recorder or town clerk for that
municipality then determines if the petition is valid by
deciding whether the petition meets the necessary
requirements of subsections 10-2-403(2), (3), and (4). § 102-405(2)(a). If the petition passes muster, the city recorder
or town clerk then certifies the petition and provides
written notice of the certification to various persons and
entities, including the county legislative body. § 10-2405(2)(b)(i).
¶ 24 The legislative annexation scheme then permits the
county legislative body to oppose an annexation petition by
filing a protest to the petition, Utah Code Ann. § 10-2407(1)(a)(i) (Supp.2000), thereby creating an adversarial
process. The protest is filed with either the county
boundary commission, § 10-2-407(2)(a)(i)(B)(I), or with the
clerk of the county in which the area proposed for

220

annexation is located if the county has not yet created a
boundary commission, § 10-2-407(2)(a)(i)(B)(II). Regardless
of with whom the protest is filed, an existing boundary
commission must review the annexation petition and
protest, or one must be formed to do so. See Utah Code
Ann. § 10-2-409 (1999) (explaining that at the time a
protest is filed, a boundary commission may already exist
because a county legislative body may create a boundary
commission at any time, and that if a boundary commission
does not exist at the time a protest is filed under section 102-407, the county legislative body must form a boundary
commission within thirty days of the filing of the protest).
In other words, the legislature provided that where an
annexation petition is protested, each county must create,
at some point, a boundary commission to resolve the
dispute.
¶ 25 Once created, the role of a county boundary
commission is to “hear and decide, according to the
provisions of this part,1 each protest filed under Section 102-407, with respect to any area within that county.” § 10-2412. In essence the boundary commission is required to
apply the rules promulgated by the legislature regarding
annexation to factual circumstances before it. The
boundary commission is instructed to issue a written
decision on the proposed annexation. § 10-2-416(2). In this
sense, the mandate to resolve disputes between adverse
parties by applying rules of law to a particular set of facts is
judicial in nature, meaning the boundary commission
performs a judicial function.
¶ 26 However, in performing its role of deciding protests,
the boundary commission generally retains a “feasibility
consultant” to conduct a “feasibility study,” see § 10-2-413,
and then holds a public hearing, see § 10-2-415. A feasibility
1 Part 4 of title 10, chapter 2, of the Utah Code includes sections 401 to 426, the

statutory provisions pertaining to annexation.

221

consultant is required to analyze and report on different
factors pertaining to the area proposed for annexation
including, among other things, population and population
density, natural boundaries, current and five-year
projections of demographics and economic base, projected
growth over the next five years, projected revenues and
costs of governmental services for the next five years,
cultural and social aspects of the surrounding area, and the
potential effect on school districts. § 10-2-413(3)(a). At the
hearing, the feasibility consultant presents the results of the
feasibility study, and the boundary commission takes public
comment. As such, the boundary commission considers
whether a proposed annexation is good policy. In this
sense, the boundary commission acts in a legislative
capacity. In sum, the boundary commission functions as
both a legislative body and an adjudicative body.
¶ 27 Nevertheless, the role of a county boundary
commission is, on the whole, essentially one of resolving
disputes between competing parties, the petitioner and the
protesting party. Thus, even though the boundary
commission engages a consultant to gather information and
present recommendations on matters of policy, the county
boundary commission is mandated by the legislature to
apply the law to the facts and information presented to it
by the feasibility consultant, petitioner, and protester. See §§
10-2-402, 403. For these reasons, we conclude that
boundary commissions act as quasi-judicial bodies when
considering annexation petitions and protests.
¶ 28 In addition, we are further persuaded that the process
of considering annexation petitions and protests is
litigation. First, decisions of a county boundary commission
are subject to judicial review. “Review of a boundary
commission decision may be sought in the district court…
.” § 10-2-417(1). Even though the district court reviews the
decision of the boundary commission under an arbitrary
and capricious standard, see § 10-2-417(2) & (3), the district

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court is authorized to review whether the decision of the
commission was contrary to the annexation laws set forth
by the state legislature.
¶ 29 Plaintiff Kearns-Tribune also acknowledged before the
district court that “a proceeding before a tribunal like the
Utah State Tax Commission would qualify as ‘litigation’ for
the purposes of the litigation exception.” Plaintiff argued
before the district court, however, that proceedings before
the Tax Commission were different from proceedings
before the Salt Lake County Boundary Commission
because, according to plaintiff, the Boundary Commission
lacked rules of procedure like the Tax Commission. We are
persuaded, however, that county boundary commission
proceedings are analogous to contested proceedings before
the State Tax Commission2 and constitute litigation under
the litigation exception to the Open and Public Meetings
Act. The Salt Lake County Boundary Commission
conducts its proceedings pursuant to rules of procedure
and the proceedings before the Boundary Commission bear
all of the necessary accouterments of litigation.
¶ 30 We conclude that while county boundary commissions
perform both legislative and adjudicative functions, the
method of resolving annexation disputes through county
boundary commissions is quasi-judicial, and it constitutes
litigation for purposes of the Utah Public and Open
Meetings Act.
C. Whether the Dispute before the Boundary
Commission was Pending or Reasonably Imminent
¶ 31 In the instant case, it is undisputed that the annexation
proceeding discussed by the County Commission was
2 We have previously indicated that the Tax Commission is a quasi-judicial body,

Salt Lake County v. Tax Comm’n, 532 P.2d 680, 682 (Utah 1975), that is also subject
to judicial review, see Utah Code Ann. §§ 59-1-601 to -610 (outlining the method of
judicial review of tax commission decisions).

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already pending before the Boundary Commission. As a
result, the County Commission did not violate the Open
and Public Meetings Act by closing the March 30, 1998
meeting to discuss whether to protest Riverton City’s
annexation petition before the Salt Lake County Boundary
Commission. As a matter of law, the closed portion of the
meeting constituted a strategy session to discuss pending or
reasonably imminent litigation.
….
CONCLUSION
¶ 35 The district court erred in concluding that the Salt
Lake County Commission violated the Utah Open and
Public Meetings Act when it closed part of the March 30,
1998 meeting to discuss how to address an annexation
petition filed by Riverton City with the Boundary
Commission. The Act permits closed meetings for
“strategy sessions to discuss pending or reasonably
imminent litigation,” § 52-4-5(1)(a)(iii), and the County
Commission conducted a strategy session in which it
discussed courses of action to take regarding Riverton
City’s annexation petition then pending before the Salt
Lake County Boundary Commission, proceedings that
constitute litigation under the Act.
¶ 36 Accordingly, the trial court’s order granting plaintiff’s
motion for summary judgment is reversed, and the award
of attorney fees to plaintiff is vacated.
¶ 37 Chief Justice HOWE, Associate Chief Justice
RUSSON, Justice DURHAM, and Judge TAYLOR concur
in Justice WILKINS’ opinion.
¶ 38 Having disqualified himself, Justice DURRANT does
not participate herein; District Judge TAYLOR sat.

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Shanks v. Dressel
540 F.3d 1082 (2008)
Charles A. Cleveland, Spokane, WA, for the plaintiffsappellants.
James S. Craven, City Attorney, Milton G. Rowland
(argued), Assistant City Attorney, Spokane, WA, for the
Spokane and Spokane employee defendants-appellees.
Steven Schneider, Murphy, Bantz & Bury P.S., Spokane,
WA, for the Dressel defendants-appellees.
FISHER, CIRCUIT JUDGE:
….
The Mission Avenue Historic District (“District”) lies just
north of Gonzaga University in the city of Spokane,
Washington (“Spokane”). The District is listed on the
National Register of Historic Places, a designation
conferred by the Secretary of the Interior pursuant to the
National Historic Preservation Act of 1966 (“NHPA”). See
16 U.S.C. § 470a(a). It is architecturally noteworthy because
it includes a “significant collection of late 19th and early
20th century houses located on one of the city’s oldest
landscaped boulevards.” On both sides of Mission Avenue
are a “variety of Queen Anne, Four Square, Craftsman, and
bungalow style houses that reflect the substantial
architecture of the period and the original suburban
character of the area.”
In March 2005, Spokane granted the Dressels a building
permit to construct a duplex addition to 428 East Mission,
a clapboard-sided, Four Square house located within the
District and inventoried on the District’s nomination for
the National Register of Historic Places. The Dressels
demolished an existing garage on the property and erected
a “box-like dormitory building[ ] … attached” to the
original house.

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We summarize the municipal ordinances that Logan
Neighborhood alleges have been violated. In 1981, the city
amended the Spokane Municipal Code (“SMC”) to provide
“criteria and procedures for the… management of historic
landmarks.” A newly created Historic Landmarks
Commission was charged with the “stewardship of historic
and architecturally-significant properties … to effect the
recognition and preservation of such properties.” Two of
its responsibilities are relevant here: reviewing applications
for “certificates of appropriateness,” as provided by SMC
17D.040.200, and reviewing requests for “administrative
special permits,” as provided by SMC 11.19.270. See SMC
17D.040.080(C)(1)(d), (f).
SMC 17D.040.200 requires owners to obtain a certificate of
appropriateness for “work that affects the exterior … of …
property within an historic district” or for “development or
new construction within an historic district.” In evaluating
an application for a certificate of appropriateness, the
Historic Landmarks Commission “uses the Secretary of the
Interior’s Standards for Rehabilitation and other general
guidelines established and adopted by the commission.”
SMC 17D.040.210(B). The owner of a property and the
Commission may negotiate “different management
standards for a specific piece of property,” subject to the
approval of the Spokane City Council. See SMC
17D.040.270-.280.
SMC 11.19.270 provides for special “development
standards” that apply “only to those historic districts for
which ‘defining characteristics’ have been prepared by the
landmarks commission, and those structures or properties
listed in the National Register of Historic Places.” When
these standards apply, proposed construction requires an
“administrative special permit” from the director of
planning services. The Historic Landmarks Commission
“make[s] recommendations concerning the approval or
denial of the special permit.” SMC 17D.040.080(C)(1)(f). It

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“issues a certificate of appropriateness in support of
approval” only if the construction is “of a character which
is consistent with the defining characteristics of the historic
district, or the U.S. Department of Interior standards in the
case of structures or properties listed in the National
Register but not located within an historic district.” SMC
11.19.270(D)(3)(b). If no action is taken within 35 days, the
application
is
“deemed
approved.”
SMC
11.19.270(D)(3)(c). In any event, the Commission’s
recommendation “will not otherwise preclude” the director
of planning services from reaching a “contrary decision”
upon “consideration of other factors of public interest.” Id.
The Dressels did not seek a certificate of appropriateness
or an administrative special permit for their development of
the 428 East Mission property, nor has Spokane taken any
steps to require them to do so. Logan Neighborhood
alleges that the Dressels’ construction has compromised the
historic character of the Mission Avenue Historic District,
resulting in harm to its “cultural, architectural, educational,
recreational, aesthetic, historic, and economic interests.” Its
complaint asserts three claims: (1) that Spokane violated 42
U.S.C. § 1983 and the Due Process Clause of the
Fourteenth Amendment by not enforcing the Spokane
Municipal Code; (2) that Spokane and the Dressels violated
the National Historic Preservation Act; and (3) that
Spokane and Spokane employees violated the Spokane
Municipal Code. The district court granted Spokane’s
motion for summary judgment and the Dressels’ motion to
dismiss.
….
We are … not convinced by Logan Neighborhood’s
argument that it has been deprived of procedural due
process because it did not have fair notice and an
opportunity to be heard before Spokane issued the Dressels
a building permit. Logan Neighborhood claims a
constitutionally protected property interest in the denial of

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the permit unless the city “compl[ied] with the Spokane
Municipal Code applicable to historic districts.” It contends
that the historic preservation provisions obliged Spokane to
hold a public “design review taking into account the
Mission Avenue Historic District” and complying with the
certificate of appropriateness and administrative special
permit requirements.1 Even if Logan Neighborhood’s
interpretation of the Spokane Municipal Code is correct –
the parties dispute whether construction in the District is
subject to those additional requirements – it has not stated
a viable claim.
The claim is an unusual one; more typically, the plaintiff
asserts that it personally was denied a permit without due
process of law, not that someone else was granted a permit
without the decisionmaker following the procedure
established by state law. See Gagliardi, 18 F.3d at 191
(describing argument as “rather unique”); see generally Dumas
v. Kipp, 90 F.3d 386, 392 (9th Cir.1996) (citing O’Bannon v.
Town Court Nursing Ctr., 447 U.S. 773, 100 S.Ct. 2467, 65
L.Ed.2d 506 (1980), and noting distinction between direct
and indirect beneficiaries of government regulation).
Assuming without deciding that a property owner ever could
have a constitutionally protected interest in the proper
application of zoning restrictions to neighboring properties,
see id. at 192, we conclude that Logan Neighborhood’s
procedural due process claim fails because Spokane’s
historic preservation provisions do not “contain[ ]
mandatory language” that significantly constrains the
decisionmaker’s discretion. Jacobson v. Hannifin, 627 F.2d
177, 180 (9th Cir. 1980).
1 The Spokane Municipal Code directs the “official responsible for processing the

application” for “action which may require a certificate of appropriateness” – for
example, a building permit – to request review by the Historic Landmarks
Commission. See SMC 17D.040.240. The ordinance then provides for a public
comment period, as well as a noticed public hearing. See SMC
17D.040.260(C)(1)(3).

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We apply our conventional analytic framework. See Crown
Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211,
1217 & n.4 (10th Cir.2003) (rejecting distinction between
inquiry for “due process claims brought by a landowner
who received an unfavorable decision on its own application
for a particular land use” and inquiry for claim brought
“challeng[ing] the decision … to grant [a third-party’s]
proposed land use”) (emphasis added); see also Gagliardi, 18
F.3d at 192-93. To obtain relief on a procedural due
process claim, the plaintiff must establish the existence of
“(1) a liberty or property interest protected by the
Constitution; (2) a deprivation of the interest by the
government; [and] (3) lack of process.” Portman v. County of
Santa Clara, 995 F.2d 898, 904 (9th Cir.1993). The Due
Process Clause forbids the governmental deprivation of
substantive rights without constitutionally adequate
procedure. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Not every
procedural requirement ordained by state law, however,
creates a substantive property interest entitled to
constitutional protection. See Dorr v. County of Butte, 795
F.2d 875, 877(9th Cir.1986); see also Town of Castle Rock v.
Gonzales, 545 U.S. 748, 764, 125 S.Ct. 2796, 162 L.Ed.2d
658 (2005); Hayward v. Henderson, 623 F.2d 596, 597 (9th
Cir. 1980). Rather, only those “rules or understandings”
that support legitimate claims of entitlement give rise to
protected property interests. Bd. of Regents v. Roth, 408 U.S.
564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
Logan Neighborhood does not have a legitimate claim of
entitlement to the denial of the Dressels’ permit in
accordance with the historic preservation provisions. Only
if the governing statute compels a result “upon compliance
with certain criteria, none of which involve the exercise of
discretion by the reviewing body,” does it create a
constitutionally protected property interest. Thornton v. City
of St. Helens, 425 F.3d 1158, 1164-65 (9th Cir.2005); see also

229

Foss v. Nat’l Marine Fisheries Serv., 161 F.3d 584, 588 (9th
Cir.1998) (holding that “specific, mandatory” and “carefully
circumscribed” requirements constrained discretion enough
to give rise to property interest). Conversely, “a statute that
grants the reviewing body unfettered discretion to approve
or deny an application does not create a property right.”
Thornton, 425 F.3d at 1164. There is no protected property
interest if “the reviewing body has discretion … to impose
licensing criteria of its own creation.” Id. at 1165.
We have not been directed to any statutory language that
“impose[s] particularized standards … that significantly
constrain” Spokane’s discretion to issue the permits in
question and would create a protected property interest in
the permits’ denial. See Fidelity Fin. Corp. v. Fed. Home Loan
Bank of San Francisco, 792 F.2d 1432, 1436 (9th Cir.1986).
The Historic Landmarks Commission is to apply “defining
characteristics … prepared” and “general guidelines
established and adopted” by that very same body. The
Commission also has the freedom to negotiate “different
management standards” for any particular piece of
property. In deciding whether to approve an administrative
special permit, the director of planning services is to apply
“other factors of public interest” in an unspecified way.
Moreover, the ordinance requires only that the ultimate
decisionmaker “use[ ]” or “consider[ ]” those open-ended
criteria; it does not mandate any outcome. Finally, we are
mindful that, as a matter of Washington law, building codes
are not generally construed to impose an affirmative duty
upon local governments to initiate compliance actions, and
Logan Neighborhood has not directed us to any special
features of Spokane’s historic preservation ordinance. See
Atherton Condo. Apartment-Owners Ass’n Bd. of Dirs. v. Blume
Dev. Co., 115 Wash.2d 506, 799 P.2d 250, 264-65 (1990);
Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447, 450

230

(1988).2 We conclude that the historic preservation
provisions of the Spokane Municipal Code do not create a
constitutionally cognizable property interest in the denial of
a third-party’s building permit.
From this it follows that Logan Neighborhood’s procedural
due process claim fails. Absent a substantive property
interest in the outcome of procedure, Logan Neighborhood
is not constitutionally entitled to insist on compliance with
the procedure itself. “To hold otherwise would immediately
incorporate virtually every regulation into the
Constitution.” Clemente v. United States, 766 F.2d 1358, 1364
(9th Cir.1985). The Tenth and Second Circuits rejected very
similar claims in Crown Point I and Gagliardi, respectively. See
Crown Point I, 319 F.3d at 1216(plaintiffs alleged property
interest in expectation that city would “follow its own
mandatory notice and public hearing procedures as set
forth in a city code, before depriving a [neighboring]
landowner of the use and enjoyment of its property”);
Gagliardi, 18 F.3d at 193 (plaintiffs “complain[ed] of a lack
of notice and contend[ed] that certain affirmative actions
were taken without compliance with the procedures
established for municipal approval”). As is the case here,
the ordinances in question did not significantly limit the
municipal defendants’ discretion, so no substantive
property interest with respect to permitting decisions was
thereby created. See Crown Point I, 319 F.3d at 1217;
Gagliardi, 18 F.3d at 192-93. Given this, both courts
concluded the plaintiffs could not state a claim for a
violation of the Due Process Clause: “The deprivation of a
procedural right to be heard, however, is not actionable
when there is no protected right at stake.” Gagliardi, 18 F.3d
at 193; see also Crown Point I, 319 F.3d at 1217. We agree
Cf. Asche v. Bloomquist, 132 Wash.App. 784, 133 P.3d 475, 479-82 (2006)
(reasoning that plaintiffs “had a property right, created by the … [view protection]
zoning ordinance, in preventing [their neighbors] from building a structure over” a
certain height without their approval).
2

231

with the Second and Tenth Circuits’ reasoning and hold
that Logan Neighborhood does not have a legitimate claim
of entitlement to the “design review” allegedly required by
the Spokane Municipal Code.
Nothing we say here condones unlawful official action, and
we express no view about the legality of Spokane’s
permitting decision as a matter of state law. See, e.g., Wash.
Rev.Code § 36.70C.040 (Washington Land Use Petition
Act); Clemente, 766 F.2d at 1365 (explaining that even when
a plaintiff cannot “successfully claim a constitutionally
cognizable property interest,” it is “well-settled … that
regulations validly prescribed by an agency are binding
upon it”). But we cannot agree with Logan Neighborhood
that it has established a violation of the federal Due Process
Clause. Cf. Carpinteria Valley Farms, Ltd. v. County of Santa
Barbara, 344 F.3d 822, 832 n. 5 (9th Cir.2003) (remarking
that the courts of appeals do not sit as “super zoning
boards or zoning boards of appeals”) (internal quotation
marks omitted).
….
AFFIRMED.
3.4. Discriminatory Zoning
Village of Willowbrook v. Olech,528 U.S. 562
120 S.Ct. 1073 (2000).
PER CURIAM.
Respondent Grace Olech and her late husband Thaddeus
asked petitioner Village of Willowbrook (Village) to
connect their property to the municipal water supply. The
Village at first conditioned the connection on the Olechs
granting the Village a 33-foot easement. The Olechs
objected, claiming that the Village only required a 15-foot
easement from other property owners seeking access to the
water supply. After a 3-month delay, the Village relented

232

and agreed to provide water service with only a 15-foot
easement.
Olech sued the Village, claiming that the Village’s demand
of an additional 18-foot easement violated the Equal
Protection Clause of the Fourteenth Amendment. Olech
asserted that the 33-foot easement demand was “irrational
and wholly arbitrary”; that the Village’s demand was
actually motivated by ill will resulting from the Olechs’
previous filing of an unrelated, successful lawsuit against
the Village; and that the Village acted either with the intent
to deprive Olech of her rights or in reckless disregard of
her rights. App. 10, 12.
The District Court dismissed the lawsuit pursuant to
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a cognizable claim under the Equal Protection Clause.
Relying on Circuit precedent, the Court of Appeals for the
Seventh Circuit reversed, holding that a plaintiff can allege
an equal protection violation by asserting that state action
was motivated solely by a “ ‘spiteful effort to “get” him for
reasons wholly unrelated to any legitimate state objective.’ ”
160 F.3d 386, 387 (1998) (quoting Esmail v. Macrane, 53
F.3d 176, 180 (C.A.7 1995)). It determined that Olech’s
complaint sufficiently alleged such a claim. 160 F.3d, at 388.
We granted certiorari to determine whether the Equal
Protection Clause gives rise to a cause of action on behalf
of a “class of one” where the plaintiff did not allege
membership in a class or group.11 527 U.S. 1067, 120 S.Ct.
10, 144 L.Ed.2d 841 (1999).
1 We note that the complaint in this case could be read to allege a class of five. In

addition to Grace and Thaddeus Olech, their neighbors Rodney and Phyllis
Zimmer and Howard Brinkman requested to be connected to the municipal water
supply, and the Village initially demanded the 33-foot easement from all of them.
The Zimmers and Mr. Brinkman were also involved in the previous, successful
lawsuit against the Village, which allegedly created the ill will motivating the
excessive easement demand. Whether the complaint alleges a class of one or of five
is of no consequence because we conclude that the number of individuals in a class
is immaterial for equal protection analysis.

233

Our cases have recognized successful equal protection
claims brought by a “class of one,” where the plaintiff
alleges that she has been intentionally treated differently
from others similarly situated and that there is no rational
basis for the difference in treatment. See Sioux City Bridge
Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed.
340 (1923); Allegheny Pittsburgh Coal Co. v. Commission
of Webster Cty., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d
688 (1989). In so doing, we have explained that “ ‘the
purpose of the equal protection clause of the Fourteenth
Amendment is to secure every person within the State’s
jurisdiction against intentional and arbitrary discrimination,
whether occasioned by express terms of a statute or by its
improper execution through duly constituted agents.’ ”
Sioux City Bridge Co., supra, at 445, 43 S.Ct. 190 (quoting
Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S.
350, 352, 38 S.Ct. 495, 62 L.Ed. 1154 (1918)).
That reasoning is applicable to this case. Olech’s complaint
can fairly be construed as alleging that the Village
intentionally demanded a 33-foot easement as a condition
of connecting her property to the municipal water supply
where the Village required only a 15-foot easement from
other similarly situated property owners. See Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957). The complaint also alleged that the Village’s
demand was “irrational and wholly arbitrary” and that the
Village ultimately connected her property after receiving a
clearly adequate 15-foot easement. These allegations, quite
apart from the Village’s subjective motivation, are sufficient
to state a claim for relief under traditional equal protection
analysis. We therefore affirm the judgment of the Court of
Appeals, but do not reach the alternative theory of
“subjective ill will” relied on by that court.
It is so ordered.
JUSTICE BREYER, concurring in the result.

234

The Solicitor General and the village of Willowbrook have
expressed concern lest we interpret the Equal Protection
Clause in this case in a way that would transform many
ordinary violations of city or state law into violations of the
Constitution. It might be thought that a rule that looks only
to an intentional difference in treatment and a lack of a
rational basis for that different treatment would work such
a transformation. Zoning decisions, for example, will often,
perhaps almost always, treat one landowner differently
from another, and one might claim that, when a city’s
zoning authority takes an action that fails to conform to a
city zoning regulation, it lacks a “rational basis” for its
action (at least if the regulation in question is reasonably
clear).
This case, however, does not directly raise the question
whether the simple and common instance of a faulty
zoning decision would violate the Equal Protection Clause.
That is because the Court of Appeals found that in this
case respondent had alleged an extra factor as well-a factor
that the Court of Appeals called “vindictive action,”
“illegitimate animus,” or “ill will.” 160 F.3d 386, 388 (C.A.7
1998). And, in that respect, the court said this case
resembled Esmail v. Macrane, 53 F.3d 176 (C.A.7 1995),
because the Esmail plaintiff had alleged that the
municipality’s differential treatment “was the result not of
prosecutorial discretion honestly (even if ineptly-even if
arbitrarily) exercised but of an illegitimate desire to ‘get’
him.” 160 F.3d, at 388.
In my view, the presence of that added factor in this case is
sufficient to minimize any concern about transforming runof-the-mill zoning cases into cases of constitutional right.
For this reason, along with the others mentioned by the
Court, I concur in the result.

235

Anup Enquist v. Oregon Department of Agriculture
553 U.S. 591 (2008)
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
ROBERTS, C. J., delivered the opinion of the Court, in
which SCALIA, KENNEDY, THOMAS, BREYER, and
ALITO, JJ., joined. STEVENS, J., filed a dissenting
opinion, in which SOUTER and GINSBURG, JJ., joined.
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The question in this case is whether a public employee can
state a claim under the Equal Protection Clause by alleging
that she was arbitrarily treated differently from other
similarly situated employees, with no assertion that the
different treatment was based on the employee’s
membership in any particular class. We hold that such a
“class-of-one” theory of equal protection has no place in
the public employment context.
….
Our equal protection jurisprudence has typically been
concerned with governmental classifications that “affect
some groups of citizens differently than others.” McGowan
v. Maryland, 366 U. S. 420, 425 (1961). See, e.g., Ross v.
Moffitt, 417 U. S. 600, 609 (1974) “‘Equal Protection’ …
emphasizes disparity in treatment by a State between
classes of individuals whose situations are arguably
indistinguishable”); San Antonio Independent School Dist. v.
Rodriguez, 411 U. S. 1, 60 (1973) (Stewart, J., concurring)
(“[T]he basic concern of the Equal Protection Clause is
with state legislation whose purpose or effect is to create
discrete and objectively identifiable classes”). Plaintiffs in
such cases generally allege that they have been arbitrarily

236

classified as members of an “identifiable group.” Personnel
Administrator of Mass.v. Feeney, 442 U. S. 256, 279 (1979).
Engquist correctly argues, however, that we recognized in
Olech that an equal protection claim can in some
circumstances be sustained even if the plaintiff has not
alleged class-based discrimination, but instead claims that
she has been irrationally singled out as a so-called “class of
one.” In Olech, a property owner had asked the village of
Willowbrook to connect her property to the municipal
water supply. Although the village had required only a 15foot easement from other property owners seeking access
to the water supply, the village conditioned Olech’s
connection on a grant of a 33-foot easement. Olech sued
the village, claiming that the village’s requirement of an
easement 18 feet longer than the norm violated the Equal
Protection Clause. Although Olech had not alleged that the
village had discriminated against her based on membership
in an identifiable class, we held that her complaint stated a
valid claim under the Equal Protection Clause because it
alleged that she had “been intentionally treated differently
from others similarly situated and that there is no rational
basis for the difference in treatment.” 528 U. S., at 564
(citing Sioux City Bridge Co. v. Dakota County, 260 U. S. 441
(1923), and Allegheny Pittsburgh Coal Co. v. Commission of
Webster Cty., 488 U. S. 336 (1989)).
Recognition of the class-of-one theory of equal protection
on the facts in Olech was not so much a departure from the
principle that the Equal Protection Clause is concerned
with arbitrary government classification, as it was an
application of that principle. That case involved the
government’s regulation of property. Similarly, the cases
upon which the Court in Olech relied concerned property
assessment and taxation schemes. See Allegheny Pittsburgh,
supra; Sioux City Bridge, supra. We expect such legislative or
regulatory classifications to apply “without respect to
persons,” to borrow a phrase from the judicial oath. See 28

237

U. S. C. §453. As we explained long ago, the Fourteenth
Amendment “requires that all persons subjected to …
legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the
liabilities imposed.” Hayes v. Missouri, 120 U. S. 68, 71-72
(1887). When those who appear similarly situated are
nevertheless treated differently, the Equal Protection
Clause requires at least a rational reason for the difference,
to assure that all persons subject to legislation or regulation
are indeed being “treated alike, under like circumstances
and conditions.” Thus, when it appears that an individual is
being singled out by the government, the specter of
arbitrary classification is fairly raised, and the Equal
Protection Clause requires a “rational basis for the
difference in treatment.” Olech, 528 U. S., at 564.
What seems to have been significant in Olech and the cases
on which it relied was the existence of a clear standard
against which departures, even for a single plaintiff, could
be readily assessed. There was no indication in Olech that
the zoning board was exercising discretionary authority
based on subjective, individualized determinations—at least
not with regard to easement length, however typical such
determinations may be as a general zoning matter. See id.,
at 565 (BREYER, J., concurring in result). Rather, the
complaint alleged that the board consistently required only
a 15-foot easement, but subjected Olech to a 33-foot
easement. This differential treatment raised a concern of
arbitrary classification, and we therefore required that the
State provide a rational basis for it.
In Allegheny Pittsburgh, cited by the Olech Court, the
applicable standard was market value, but the county
departed from that standard in basing some assessments on
quite dated purchase prices. Again, there was no suggestion
that the “dramatic differences in valuation” for similar
property parcels, 488 U. S., at 341, were based on
subjective considerations of the sort on which appraisers

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often rely, see id., at 338-342, 345. Sioux City Bridge, also
cited in Olech, was the same sort of case, recognizing an
equal protection claim when one taxpayer’s property was
assessed at 100 percent of its value, while all other property
was assessed at 55 percent, without regard to articulated
differences in the properties. See 260 U. S., at 445-447.
There are some forms of state action, however, which by
their nature involve discretionary decisionmaking based on
a vast array of subjective, individualized assessments. In
such cases the rule that people should be “treated alike,
under like circumstances and conditions” is not violated
when one person is treated differently from others, because
treating like individuals differently is an accepted
consequence of the discretion granted. In such situations,
allowing a challenge based on the arbitrary singling out of a
particular person would undermine the very discretion that
such state officials are entrusted to exercise.
Suppose, for example, that a traffic officer is stationed on a
busy highway where people often drive above the speed
limit, and there is no basis upon which to distinguish them.
If the officer gives only one of those people a ticket, it may
be good English to say that the officer has created a class
of people that did not get speeding tickets, and a “class of
one” that did. But assuming that it is in the nature of the
particular government activity that not all speeders can be
stopped and ticketed, complaining that one has been
singled out for no reason does not invoke the fear of
improper government classification. Such a complaint,
rather, challenges the legitimacy of the underlying action
itself—the decision to ticket speeders under such
circumstances. Of course, an allegation that speeding
tickets are given out on the basis of race or sex would state
an equal protection claim, because such discriminatory
classifications implicate basic equal protection concerns.
But allowing an equal protection claim on the ground that a
ticket was given to one person and not others, even if for

239

no discernible or articulable reason, would be incompatible
with the discretion inherent in the challenged action. It is
no proper challenge to what in its nature is a subjective,
individualized decision that it was subjective and
individualized.
This principle applies most clearly in the employment
context, for employment decisions are quite often
subjective and individualized, resting on a wide array of
factors that are difficult to articulate and quantify… . .
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE SOUTER and
JUSTICE GINSBURG join, dissenting.
….
Our decision in Village of Willowbrook v. Olech, 528 U. S. 562
(2000) (per curiam), applied a rule that had been an
accepted part of our equal protection jurisprudence for
decades: Unless state action that intentionally singles out an
individual, or a class of individuals, for adverse treatment is
supported by some rational justification, it violates the
Fourteenth Amendment’s command that no State shall
“deny to any person within its jurisdiction the equal
protection of the laws.”
Our opinion in Olech emphasized that the legal issue would
have been the same whether the class consisted of one or
five members, because “the number of individuals in a class
is immaterial for equal protection analysis.” Id., at 564, n.
The outcome of that case was not determined by the size
of the disadvantaged class, and the majority does not—
indeed cannot—dispute the settled principle that the Equal
Protection Clause protects persons, not groups. See ante, at
4-5.
Nor did the outcome in Olech turn on the fact that the
Village was discriminating against a property owner rather

240

than an employee. The majority does not dispute that the
strictures of the Equal Protection Clause apply to the States
in their role as employers as well as regulators. See ante, at 5.
And indeed, we have made clear that “the Equal Protection
and Due Process Clauses of the Fourteenth Amendment,
and other provisions of the Federal Constitution afford
protection to employees who serve the government as well
as to those who are served by them, and §1983 provides a
cause of action for all citizens injured by an abridgment of
those protections.” Collins v. Harker Heights, 503 U. S. 115,
119-120 (1992).
Rather, the outcome of Olech was dictated solely by the
absence of a rational basis for the discrimination. As we
explained:
“Our cases have recognized successful
equal protection claims brought by a
‘class of one,’ where the plaintiff
alleges that she has been intentionally
treated differently from others
similarly situated and that there is no
rational basis for the difference in
treatment. In so doing, we have
explained that ‘[t]he purpose of the
equal protection clause of the
Fourteenth Amendment is to secure
every person within the State’s
jurisdiction against intentional and
arbitrary
discrimination,
whether
occasioned by express terms of a
statute or by its improper execution
through duly constituted agents.’
“[Olech’s] complaint also alleged that
the Village’s demand was ‘irrational
and wholly arbitrary’ … . These
allegations, quite apart from the
Village’s subjective motivation, are
sufficient to state a claim for relief

241

under traditional equal protection
analysis.”
528 U. S., at 564, 565 (some internal quotation marks and
citations omitted).
Here, as in Olech, Engquist alleged that the State’s actions
were arbitrary and irrational. In response, the State offered
no explanation whatsoever for its decisions; it did not claim
that Engquist was a subpar worker, or even that her
personality made her a poor fit in the work-place or that
her colleagues simply did not enjoy working with her. In
fact, the State explicitly disclaimed the existence of any
workplace or performance-based rationale.11 … .
In sum, there is no compelling reason to carve arbitrary
public-employment decisions out of the well-established
category of equal protection violations when the familiar
rational review standard can sufficiently limit these claims
to only wholly unjustified employment actions.
Accordingly, I respectfully dissent.

But for this disclaimer, the lower court could have dismissed the claim if it
discerned “any reasonably conceivable state of facts that could provide a rational
basis for the [State’s actions],” even one not put forth by the State. FCC v. Beach
Communications, Inc., 508 U. S. 307, 313 (1993). The disclaimer, however, negated
that possibility.
1

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3.5. Anticompetitive Zoning
City of Columbia et al. v. Omni Outdoor Advertising
Inc.499 U.S. 365 (1991)
No. 89-1671.
Supreme Court of the United States.
Argued November 28, 1990.
Decided April 1, 1991.
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT.
Joel I. Klein argued the cause for petitioners. With him on
the briefs were Paul M. Smith, Roy D. Bates, James S. Meggs,
David W. Robinson II, and Heyward E. McDonald.
A. Camden Lewis argued the cause for respondent. With him
on the brief was Randall M. Chastain.1
JUSTICE SCALIA delivered the opinion of the Court.
This case requires us to clarify the application of the Sherman
Act to municipal governments and to the citizens who seek action
from them.
I
Petitioner Columbia Outdoor Advertising, Inc. (COA), a
South Carolina corporation, entered the billboard business
in the city of Columbia, South Carolina (also a petitioner
here), in the 1940’s. By 1981 it controlled more than 95%
of what has been conceded to be the relevant market. COA
1 Charles Rothfeld, Benna Ruth Solomon, and Peter J. Kalis filed a brief for the National

League of Cities et al. as amici curiae urging reversal.
Steven C. McCracken, Maurice Baskin, and John R. Crews filed a brief for Associated
Builders and Contractors, Inc., as amicus curiae urging affirmance.
Eric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising
Association of America, Inc., as amicus curiae.

243

was a local business owned by a family with deep roots in
the community, and enjoyed close relations with the city’s
political leaders. The mayor and other members of the city
council were personal friends of COA’s majority owner,
and the company and its officers occasionally contributed
funds and free billboard space to their campaigus.
According to respondent Omni Outdoor Advertising, Inc.,
these beneficences were part of a “longstanding” “secret
anticompetitive agreement” whereby “the City and COA
would each use their [sic] respective power and resources to
protect … COA’s monopoly position,” in return for which
“City Council members received advantages made possible
by COA’s monopoly.” Brief for Respondent 12, 16.
In 1981, Omni, a Georgia corporation, began erecting
billboards in and around the city. COA responded to this
competition in several ways. First, it redoubled its own
billboard construction efforts and modernized its existing
stock. Second–according to Omni–it took a number of
anticompetitive private actions, such as offering artificially
low rates, spreading untrue and malicious rumors about
Omni, and attempting to induce Omni’s customers to
break their contracts. Finally (and this is what gives rise to
the issue we address today), COA executives met with city
officials to seek the enactment of zoning ordinances that
would restrict billboard construction. COA was not alone
in urging this course; concerned about the city’s recent
explosion of billboards, a number of citizens, including
writers of articles and editorials in local newspapers,
advocated restrictions.
In the spring of 1982, the city council passed an ordinance
requiring the council’s approval for every billboard
constructed in downtown Columbia. This was later
amended to impose a 180-day moratorium on the
construction of billboards throughout the city, except as
specifically authorized by the council. A state court
invalidated this ordinance on the ground that its conferral

244

of unconstrained discretion upon the city council violated
both the South Carolina and Federal Constitutions. The
city then requested the State’s regional planning authority
to conduct a comprehensive analysis of the local billboard
situation as a basis for developing a final, constitutionally
valid, ordinance. In September 1982, after a series of public
hearings and numerous meetings involving city officials,
Omni, and COA (in all of which, according to Omni,
positions contrary to COA’s were not genuinely
considered), the city council passed a new ordinance
restricting the size, location, and spacing of billboards.
These restrictions, particularly those on spacing, obviously
benefited COA, which already had its billboards in place;
they severely hindered Omni’s ability to compete.
In November 1982, Omni filed suit against COA and the
city in Federal District Court, charging that they had
violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as
amended, 15 U. S. C. §§ 1, 2,2 as well as South Carolina’s
Unfair Trade Practices Act, S. C. Code Ann. § 39-5-140
(1976). Omni contended, in particular, that the city’s
billboard ordinances were the result of an anticompetitive
conspiracy between city officials and COA that stripped
both parties of any immunity they might otherwise enjoy
from the federal antitrust laws. In January 1986, after more
than two weeks of trial, a jury returned general verdicts
against the city and COA on both the federal and state
claims. It awarded damages, before trebling, of $600,000 on
the § 1 Sherman Act claim, and $400,000 on the § 2 claim.3
2 Section 1 provides in pertinent part: “Every contract, combination in the form of

trust or otherwise, or conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be illegal.” 15 U. S. C. § 1.
Section 2 provides in pertinent part: “Every person who shall monopolize, or
attempt to monopolize, or combine or conspire with any other person or persons,
to monopolize any part of the trade or commerce among the several States, or with
foreign nations, shall be deemed guilty of a felony.” 15 U. S. C. § 2.
The monetary damages in this case were assessed entirely against COA, the
District Court having ruled that the city was immunized by the Local Government
3

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The jury also answered two special interrogatories, finding
specifically that the city and COA had conspired both to
restrain trade and to monopolize the market. Petitioners
moved for judgment notwithstanding the verdict,
contending among other things that their activities were
outside the scope of the federal antitrust laws. In
November 1988, the District Court granted the motion.
A divided panel of the United States Court of Appeals for
the Fourth Circuit reversed the judgment of the District
Court and reinstated the jury verdict on all counts. 891 F.
2d 1127 (1989). We granted certiorari, 496 U. S. 935 (1990).
II
In the landmark case of Parker v. Brown, 317 U. S. 341
(1943), we rejected the contention that a program
restricting the marketing of privately produced raisins,
adopted pursuant to California’s Agricultural Prorate Act,
violated the Sherman Act. Relying on principles of
federalism and state sovereignty, we held that the Sherman
Act did not apply to anticompetitive restraints imposed by
the States “as an act of government.” Id., at 352.
Since Parker emphasized the role of sovereign States in a
federal system, it was initially unclear whether the
governmental actions of political subdivisions enjoyed
similar protection. In recent years, we have held that Parker
immunity does not apply directly to local governments, see
Hallie v. Eau Claire, 471 U. S. 34, 38 (1985); Community
Antitrust Act of 1984, 98 Stat. 2750, as amended, 15 U. S. C. §§ 34-36, which
exempts local governments from paying damages for violations of the federal
antitrust laws. Although enacted in 1984, after the events at issue in this case, the
Act specifically provides that it may be applied retroactively if “the defendant
establishes and the court determines, in light of all the circumstances … that it
would be inequitable not to apply this subsection to a pending case.” 15 U. S. C. §
35(b). The District Court determined that it would be, and the Court of Appeals
refused to disturb that judgment. Respondent has not challenged that
determination in this Court, and we express no view on the matter.

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Communications Co. v. Boulder, 455 U. S. 40, 50-51 (1982);
Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 412413 (1978) (plurality opinion). We have recognized,
however, that a municipality’s restriction of competition
may sometimes be an authorized implementation of state
policy, and have accorded Parker immunity where that is
the case.
The South Carolina statutes under which the city acted in
the present case authorize municipalities to regulate the use
of land and the construction of buildings and other
structures within their boundaries.4 It is undisputed that, as
a matter of state law, these statutes authorize the city to
regulate the size, location, and spacing of billboards. It
could be argued, however, that a municipality acts beyond
its delegated authority, for Parker purposes, whenever the
nature of its regulation is substantively or even procedurally
defective. On such an analysis it could be contended, for
4 S. C. Code Ann. § 5-23-10 (1976) (“Building and zoning regulations authorized”)

provides that “[f]or the purpose of promoting health, safety, morals or the general
welfare of the community, the legislative body of cities and incorporated towns
may by ordinance regulate and restrict the height, number of stories and size of
buildings and other structures.”
Section 5-23-20 (“Division of municipality into districts”) provides that “[f]or any
or all of such purposes the local legislative body may divide the municipality into
districts of such number, shape and area as may be deemed best suited to carry out
the purposes of this article. Within such districts it may regulate and restrict the
erection, construction, reconstruction, alteration, repair or use of buildings,
structures or land.”
Section 6-7-710 (“Grant of power for zoning”) provides that “[f]or the purposes of
guiding development in accordance with existing and future needs and in order to
protect, promote and improve the public health, safety, morals, convenience, order,
appearance, prosperity, and general welfare, the governing authorities of
municipalities and counties may, in accordance with the conditions and procedures
specified in this chapter, regulate the location, height, bulk, number of stories and
size of buildings and other structures… . The regulations shall … be designed to
lessen congestion in the streets; to secure safety from fire, panic, and other dangers,
to promote the public health and the general welfare, to provide adequate light and
air; to prevent the overcrowding of land; to avoid undue concentration of
population; to protect scenic areas; to facilitate the adequate provision of
transportation, water, sewage, schools, parks, and other public requirements.”

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example, that the city’s regulation in the present case was
not “authorized” by S. C. Code Ann. § 5-23-10 (1976), see
n. 3, supra, if it was not, as that statute requires, adopted
“for the purpose of promoting health, safety, morals or the
general welfare of the community.” As scholarly
commentary has noted, such an expansive interpretation of
the Parker-defense authorization requirement would have
unacceptable consequences.
“To be sure, state law ‘authorizes’ only
agency decisions that are substantively
and procedurally correct. Errors of
fact, law, or judgment by the agency
are not ‘authorized.’ Erroneous acts or
decisions are subject to reversal by
superior
tribunals
because
unauthorized. If the antitrust court
demands unqualified ‘authority’ in this
sense, it inevitably becomes the
standard reviewer not only of federal
agency activity but also of state and
local activity whenever it is alleged that
the governmental body, though
possessing the power to engage in the
challenged conduct, has actually
exercised its power in a manner not
authorized by state law. We should not
lightly
assume
that
Lafayette’s
authorization requirement dictates
transformation of state administrative
review into a federal antitrust job. Yet
that would be the consequence of
making antitrust liability depend on an
undiscriminating and mechanical
demand for ‘authority’ in the full
administrative law sense.” P. Areeda &
H. Hovenkamp, Antitrust Law ¶
212.3b, p. 145 (Supp. 1989).

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We agree with that assessment, and believe that in order to
prevent Parker from undermining the very interests of
federalism it is designed to protect, it is necessary to adopt
a concept of authority broader than what is applied to
determine the legality of the municipality’s action under
state law. We have adopted an approach that is similar in
principle, though not necessarily in precise application,
elsewhere. See Stump v. Sparkman, 435 U. S. 349 (1978). It
suffices for the present to conclude that here no more is
needed to establish, for Parker purposes, the city’s authority
to regulate than its unquestioned zoning power over the
size, location, and spacing of billboards.
Besides authority to regulate, however, the Parker defense
also requires authority to suppress competition–more
specifically, “clear articulation of a state policy to authorize
anticompetitive conduct” by the municipality in connection
with its regulation. Hallie, 471 U. S., at 40 (internal
quotation omitted). We have rejected the contention that
this requirement can be met only if the delegating statute
explicitly permits the displacement of competition, see id.,
at 41-42. It is enough, we have held, if suppression of
competition is the “foreseeable result” of what the statute
authorizes, id., at 42. That condition is amply met here. The
very purpose of zoning regulation is to displace unfettered
business freedom in a manner that regularly has the effect
of preventing normal acts of competition, particularly on
the part of new entrants. A municipal ordinance restricting
the size, location, and spacing of billboards (surely a
common form of zoning) necessarily protects existing
billboards against some competition from newcomers.5

5 The dissent contends that, in order successfully to delegate its Parker immunity to

a municipality, a State must expressly authorize the municipality to engage (1) in
specifically “economic regulation,” post, at 388, (2) of a specific industry, post, at
391. These dual specificities are without support in our precedents, for the good
reason that they defy rational implementation.

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The Court of Appeals was therefore correct in its
conclusion that the city’s restriction of billboard
construction was prima facie entitled to Parker immunity.
The Court of Appeals upheld the jury verdict, however, by
invoking a “conspiracy” exception to Parker that has been
recognized by several Courts of Appeals. See, e. g.,
Whitworth v. Perkins, 559 F.2d 378 (CA5 1977), vacated, 435
U. S. 992, aff’d on rehearing, 576 F.2d 696 (1978), cert.
denied, 440 U. S. 911 (1979). That exception is thought to
be supported by two of our statements in Parker: “[W]e
have no question of the state or its municipality becoming a
participant in a private agreement or combination by others for
restraint of trade, cf. Union Pacific R. Co. v. United States, 313
U. S. 450.” Parker, 317 U. S., at 351-352 (emphasis added).
“The state in adopting and enforcing the prorate program
made no contract or agreement and entered into no conspiracy in
restraint of trade or to establish monopoly but, as sovereign,
If, by authority to engage in specifically “economic” regulation, the dissent means
authority specifically to regulate competition, we squarely rejected that in Hallie v.
Eau Claire, 471 U. S. 34 (1985), as discussed in text. Seemingly, however, the dissent
means only that the state authorization must specify that sort of regulation
whereunder “decisions about prices and output are made not by individual firms,
but rather by a public body.” Post, at 387. But why is not the restriction of
billboards in a city a restriction on the “output” of the local billboard industry? It
assuredly is–and that is indeed the very gravamen of Omni’s complaint. It seems to
us that the dissent’s concession that “it is often difficult to differentiate economic
regulation from municipal regulation of health, safety, and welfare,” post, at 393, is a
gross understatement. Loose talk about a “regulated industry” may suffice for what
the dissent calls “antitrust parlance,” post, at 387, but it is not a definition upon
which the criminal liability of public officials ought to depend.
Under the dissent’s second requirement for a valid delegation of Parker immunity–
that the authorization to regulate pertain to a specific industry–the problem with
the South Carolina statute is that it used the generic term “structures,” instead of
conferring its regulatory authority industry-by-industry (presumably “billboards,”
“movie houses,” “mobile homes,” “TV antennas,” and every other conceivable
object of zoning regulation that can be the subject of a relevant “market” for
purposes of antitrust analysis). To describe this is to refute it. Our precedents not
only fail to suggest, but positively reject, such an approach. “[T]he municipality
need not ‘be able to point to a specific, detailed legislative authorization’ in order to
assert a successful Parker defense to an antitrust suit.” Hallie, supra, at 39 (quoting
Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 415 (1978)).

250

imposed the restraint as an act of government which the
Sherman Act did not undertake to prohibit.” Id., at 352
(emphasis added). Parker does not apply, according to the
Fourth Circuit, “where politicians or political entities are
involved as conspirators” with private actors in the restraint
of trade. 891 F. 2d, at 1134.
There is no such conspiracy exception. The rationale of
Parker was that, in light of our national commitment to
federalism, the general language of the Sherman Act should
not be interpreted to prohibit anticompetitive actions by
the States in their governmental capacities as sovereign
regulators. The sentences from the opinion quoted above
simply clarify that this immunity does not necessarily obtain
where the State acts not in a regulatory capacity but as a
commercial participant in a given market. That is evident
from the citation of Union Pacific R. Co. v. United States, 313
U. S. 450 (1941), which held unlawful under the Elkins Act
certain rebates and concessions made by Kansas City,
Kansas, in its capacity as the owner and operator of a
wholesale produce market that was integrated with railroad
facilities. These sentences should not be read to suggest the
general proposition that even governmental regulatory action
may be deemed private–and therefore subject to antitrust
liability–when it is taken pursuant to a conspiracy with
private parties. The impracticality of such a principle is
evident if, for purposes of the exception, “conspiracy”
means nothing more than an agreement to impose the
regulation in question. Since it is both inevitable and
desirable that public officials often agree to do what one or
another group of private citizens urges upon them, such an
exception would virtually swallow up the Parker rule: All
anticompetitive regulation would be vulnerable to a
“conspiracy” charge. See Areeda & Hovenkamp, supra, ¶

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203.3b, at 34, and n. 1; Elhauge, The Scope of Antitrust
Process, 104 Harv. L. Rev. 667, 704-705 (1991).6
Omni suggests, however, that “conspiracy” might be
limited to instances of governmental “corruption,” defined
variously as “abandonment of public responsibilities to
private interests,” Brief for Respondent 42, “corrupt or bad
faith decisions,” id., at 44, and “selfish or corrupt motives,”
6 The dissent is confident that a jury composed of citizens of the vicinage will be

able to tell the difference between “independent municipal action and action taken
for the sole purpose of carrying out an anticompetitive agreement for the private
party.” Post, at 395-396. No doubt. But those are merely the polar extremes, which
like the geographic poles will rarely be seen by jurors of the vicinage. Ordinarily the
allegation will merely be (and the dissent says this is enough) that the municipal
action was not prompted “exclusively by a concern for the general public interest,”
post, at 387 (emphasis added). Thus, the real question is whether a jury can tell the
difference–whether Solomon can tell the difference–between municipal-action-notentirely-independent-because-based-partly-on-agreement-with-private-parties that is
lawful and municipal-action-not-entirely-independent-because-based-partly-onagreement-with-private-parties that is unlawful. The dissent does not tell us how to
put this question coherently, much less how to answer it intelligently. “Independent
municipal action” is unobjectionable, “action taken for the sole purpose of carrying
out an anticompetitive agreement for the private party” is unlawful, and everything
else (that is, the known world between the two poles) is unaddressed.
The dissent contends, moreover, that “[t]he instructions in this case, fairly read,
told the jury that the plaintiff should not prevail unless the ordinance was enacted
for the sole purpose of interfering with access to the market.” Post, at 396, n. 9
(emphasis added). That is not so. The sum and substance of the jury’s instructions
here were that anticompetitive municipal action is not lawful when taken as part of
a conspiracy, and that a conspiracy is “an agreement between two or more persons
to violate the law, or to accomplish an otherwise lawful result in an unlawful
manner.” App. 79. Although the District Court explained that “[i]t is perfectly
lawful for any and all persons to petition their government,” the court immediately
added, “but they may not do so as a part or as the object of a conspiracy.” Ibid.
These instructions, then, are entirely circular: An anticompetitive agreement
becomes unlawful if it is part of a conspiracy, and a conspiracy is an agreement to
do something unlawful. The District Court’s observation, upon which the dissent
places so much weight, that “if by the evidence you find that [COA] procured and
brought about the passage of ordinances solely for the purpose of hindering,
delaying or otherwise interfering with the access of [Omni] to the marketing area
involved in this case … and thereby conspired, then, of course, their conduct
would not be excused under the antitrust laws,” id., at 81, see post, at 387, n. 2, is in
no way tantamount to an instruction that this was the only theory upon which the
jury could find an immunity-destroying “conspiracy.”

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ibid. Ultimately, Omni asks us not to define “corruption” at
all, but simply to leave that task to the jury: “[a]t bottom,
however, it was within the jury’s province to determine
what constituted corruption of the governmental process in
their community.” Id., at 43. Omni’s amicus eschews this
emphasis on “corruption,” instead urging us to define the
conspiracy exception as encompassing any governmental
act “not in the public interest.” Brief for Associated
Builders and Contractors, Inc., as Amicus Curiae 5.
A conspiracy exception narrowed along such vague lines is
similarly impractical. Few governmental actions are
immune from the charge that they are “not in the public
interest” or in some sense “corrupt.” The California
marketing scheme at issue in Parker itself, for example, can
readily be viewed as the result of a “conspiracy” to put the
“private” interest of the State’s raisin growers above the
“public” interest of the State’s consumers. The fact is that
virtually all regulation benefits some segments of the
society and harms others; and that it is not universally
considered contrary to the public good if the net economic
loss to the losers exceeds the net economic gain to the
winners. Parker was not written in ignorance of the reality
that determination of “the public interest” in the manifold
areas of government regulation entails not merely
economic and mathematical analysis but value judgment,
and it was not meant to shift that judgment from elected
officials to judges and juries. If the city of Columbia’s
decision to regulate what one local newspaper called
“billboard jungles,” Columbia Record, May 21, 1982, p. 14A, col. 1; App. in No. 88-1388 (CA4), p. 3743, is made
subject to ex post facto judicial assessment of “the public
interest,” with personal liability of city officials a possible
consequence, we will have gone far to “compromise the
States’ ability to regulate their domestic commerce,”
Southern Motor Carriers Rate Conference, Inc. v. United States, 471
U. S. 48, 56 (1985). The situation would not be better, but

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arguably even worse, if the courts were to apply a
subjective test: not whether the action was in the public
interest, but whether the officials involved thought it to be
so. This would require the sort of deconstruction of the
governmental process and probing of the official “intent”
that we have consistently sought to avoid.7 “[W]here the
action complained of … was that of the State itself, the
action is exempt from antitrust liability regardless of the
State’s motives in taking the action.” Hoover v. Ronwin, 466
U. S. 558, 579-580 (1984). See also Llewellyn v. Crothers, 765
F. 2d 769, 774 (CA9 1985) (Kennedy, J.).
The foregoing approach to establishing a “conspiracy”
exception at least seeks (however impractically) to draw the
line of impermissible action in a manner relevant to the
purposes of the Sherman Act and of Parker: prohibiting the
restriction of competition for private gain but permitting
the restriction of competition in the public interest.
Another approach is possible, which has the virtue of
practicality but the vice of being unrelated to those
purposes. That is the approach which would consider
Parker inapplicable only if, in connection with the
governmental action in question, bribery or some other
violation of state or federal law has been established. Such
unlawful activity has no necessary relationship to whether
the governmental action is in the public interest. A mayor is
guilty of accepting a bribe even if he would and should
have taken, in the public interest, the same action for which
the bribe was paid. (That is frequently the defense asserted
to a criminal bribery charge–and though it is never valid in
law, see, e. g., United States v. Jannotti, 673 F. 2d 578, 601
(CA3) (en banc), cert. denied, 457 U. S. 1106 (1982), it is
7 We have proceeded otherwise only in the “very limited and well-defined class of

cases where the very nature of the constitutional question requires [this] inquiry.”
United States v. O’Brien, 391 U. S. 367, 383, n. 30 (1968) (bill of attainder). See also
Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 268, n. 18
(1977) (race-based motivation).

254

often plausible in fact.) When, moreover, the regulatory
body is not a single individual but a state legislature or city
council, there is even less reason to believe that violation of
the law (by bribing a minority of the decisionmakers)
establishes that the regulation has no valid public purpose.
Cf. Fletcher v. Peck, 6 Cranch 87, 130 (1810). To use
unlawful political influence as the test of legality of state
regulation undoubtedly vindicates (in a rather blunt way)
principles of good government. But the statute we are
construing is not directed to that end. Congress has passed
other laws aimed at combating corruption in state and local
governments. See, e. g., 18 U. S. C. § 1951 (Hobbs Act).
“Insofar as [the Sherman Act] sets up a code of ethics at all,
it is a code that condemns trade restraints, not political
activity.” Eastern Railroad Presidents Conference v. Noerr Motor
Freight, Inc., 365 U. S. 127, 140 (1961).
For these reasons, we reaffirm our rejection of any
interpretation of the Sherman Act that would allow
plaintiffs to look behind the actions of state sovereigns to
base their claims on “perceived conspiracies to restrain
trade,” Hoover, 466 U. S., at 580. We reiterate that, with the
possible market participant exception, any action that
qualifies as state action is “ipso facto … exempt from the
operation of the antitrust laws,” id., at 568. This does not
mean, of course, that the States may exempt private action
from the scope of the Sherman Act; we in no way qualify
the well-established principle that “a state does not give
immunity to those who violate the Sherman Act by
authorizing them to violate it, or by declaring that their
action is lawful.” Parker, 317 U. S., at 351 (citing Northern
Securities Co. v. United States, 193 U. S. 197, 332, 344-347
(1904)). See also Schwegmann Brothers v. Calvert Distillers Corp.,
341 U. S. 384 (1951).
III

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While Parker recognized the States’ freedom to engage in
anticompetitive regulation, it did not purport to immunize
from antitrust liability the private parties who urge them to
engage in anticompetitive regulation. However, it is
obviously peculiar in a democracy, and perhaps in
derogation of the constitutional right “to petition the
Government for a redress of grievances,” U. S. Const.,
Amdt. 1, to establish a category of lawful state action that
citizens are not permitted to urge. Thus, beginning with
Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,
supra, we have developed a corollary to Parker: The federal
antitrust laws also do not regulate the conduct of private
individuals in seeking anticompetitive action from the
government. This doctrine, like Parker, rests ultimately
upon a recognition that the antitrust laws, “tailored as they
are for the business world, are not at all appropriate for
application in the political arena.” Noerr, supra, at 141. That
a private party’s political motives are selfish is irrelevant:
“Noerr shields from the Sherman Act a concerted effort to
influence public officials regardless of intent or purpose.”
Mine Workers v. Pennington, 381 U. S. 657, 670 (1965).
Noerr recognized, however, what has come to be known as
the “sham” exception to its rule: “There may be situations
in which a publicity campaign, ostensibly directed toward
influencing governmental action, is a mere sham to cover
what is actually nothing more than an attempt to interfere
directly with the business relationships of a competitor and
the application of the Sherman Act would be justified.” 365
U. S., at 144. The Court of Appeals concluded that the jury
in this case could have found that COA’s activities on
behalf of the restrictive billboard ordinances fell within this
exception. In our view that was error.
The “sham” exception to Noerr encompasses situations in
which persons use the governmental process–as opposed to
the outcome of that process–as an anticompetitive weapon. A
classic example is the filing of frivolous objections to the

256

license application of a competitor, with no expectation of
achieving denial of the license but simply in order to
impose expense and delay. See California Motor Transport Co.
v. Trucking Unlimited, 404 U. S. 508 (1972). A “sham”
situation involves a defendant whose activities are “not
genuinely aimed at procuring favorable government action”
at all, Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.
S. 496, 500, n. 4 (1988), not one “who ‘genuinely seeks to
achieve his governmental result, but does so through improper
means,’” id., at 508, n. 10 (quoting Sessions Tank Liners, Inc. v.
Joor Mfg., Inc., 827 F. 2d 458, 465, n. 5 (CA9 1987)).
Neither of the Court of Appeals’ theories for application of
the “sham” exception to the facts of the present case is
sound. The court reasoned, first, that the jury could have
concluded that COA’s interaction with city officials “‘was
actually nothing more than an attempt to interfere directly
with the business relations [sic] of a competitor.’” 891 F. 2d,
at 1139 (quoting Noerr, supra, at 144). This analysis relies
upon language from Noerr, but ignores the import of the
critical word “directly.” Although COA indisputably set out
to disrupt Omni’s business relationships, it sought to do so
not through the very process of lobbying, or of causing the
city council to consider zoning measures, but rather
through the ultimate product of that lobbying and
consideration, viz., the zoning ordinances. The Court of
Appeals’ second theory was that the jury could have found
“that COA’s purposes were to delay Omni’s entry into the
market and even to deny it a meaningful access to the
appropriate city administrative and legislative fora.” 891 F.
2d, at 1139. But the purpose of delaying a competitor’s
entry into the market does not render lobbying activity a
“sham,” unless (as no evidence suggested was true here) the
delay is sought to be achieved only by the lobbying process
itself, and not by the governmental action that the lobbying
seeks. “If Noerr teaches anything it is that an intent to
restrain trade as a result of the government action sought …

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does not foreclose protection.” Sullivan, Developments in
the Noerr Doctrine, 56 Antitrust L. J. 361, 362 (1987). As
for “deny[ing] … meaningful access to the appropriate city
administrative and legislative fora,” that may render the
manner of lobbying improper or even unlawful, but does
not necessarily render it a “sham.” We did hold in California
Motor Transport, supra, that a conspiracy among private
parties to monopolize trade by excluding a competitor
from participation in the regulatory process did not enjoy
Noerr protection. But California Motor Transport involved a
context in which the conspirators’ participation in the
governmental process was itself claimed to be a “sham,”
employed as a means of imposing cost and delay. (“It is
alleged that petitioners ‘instituted the proceedings and
actions … with or without probable cause, and regardless
of the merits of the cases.’” 404 U. S., at 512.) The holding
of the case is limited to that situation. To extend it to a
context in which the regulatory process is being invoked
genuinely, and not in a “sham” fashion, would produce
precisely that conversion of antitrust law into regulation of
the political process that we have sought to avoid. Any
lobbyist or applicant, in addition to getting himself heard,
seeks by procedural and other means to get his opponent
ignored. Policing the legitimate boundaries of such
defensive strategies, when they are conducted in the
context of a genuine attempt to influence governmental
action, is not the role of the Sherman Act. In the present
case, of course, any denial to Omni of “meaningful access
to the appropriate city administrative and legislative fora”
was achieved by COA in the course of an attempt to
influence governmental action that, far from being a
“sham,” was if anything more in earnest than it should have
been. If the denial was wrongful there may be other
remedies, but as for the Sherman Act, the Noerr exemption
applies.

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Omni urges that if, as we have concluded, the “sham”
exception is inapplicable, we should use this case to
recognize another exception to Noerr immunity–a
“conspiracy” exception, which would apply when
government officials conspire with a private party to
employ government action as a means of stifling
competition. We have left open the possibility of such an
exception, see, e. g., Allied Tube, supra, at 502, n. 7, as have a
number of Courts of Appeals. See, e. g., Oberndorf v. Denver,
900 F. 2d 1434, 1440 (CA10 1990); First American Title Co. of
South Dakota v. South Dakota Land Title Assn., 714 F. 2d
1439, 1446, n. 6 (CA8 1983), cert. denied, 464 U. S. 1042
(1984). At least one Court of Appeals has affirmed the
existence of such an exception in dicta, see Duke & Co. v.
Foerster, 521 F. 2d 1277, 1282 (CA3 1975), and the Fifth
Circuit has adopted it as holding, see Affiliated Capital Corp.
v. Houston, 735 F. 2d 1555, 1566-1568 (1984) (en banc).
Giving full consideration to this matter for the first time,
we conclude that a “conspiracy” exception to Noerr must
be rejected. We need not describe our reasons at length,
since they are largely the same as those set forth in Part II
above for rejecting a “conspiracy” exception to Parker. As
we have described, Parker and Noerr are complementary
expressions of the principle that the antitrust laws regulate
business, not politics; the former decision protects the
States’ acts of governing, and the latter the citizens’
participation in government. Insofar as the identification of
an immunity-destroying “conspiracy” is concerned, Parker
and Noerr generally present two faces of the same coin. The
Noerr-invalidating conspiracy alleged here is just the Parkerinvalidating conspiracy viewed from the standpoint of the
private-sector participants rather than the governmental
participants. The same factors which, as we have described
above, make it impracticable or beyond the purpose of the
antitrust laws to identify and invalidate lawmaking that has
been infected by selfishly motivated agreement with private

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interests likewise make it impracticable or beyond that
scope to identify and invalidate lobbying that has produced
selfishly motivated agreement with public officials. “It
would be unlikely that any effort to influence legislative
action could succeed unless one or more members of the
legislative body became … ‘co-conspirators’” in some sense
with the private party urging such action, Metro Cable Co. v.
CATV of Rockford, Inc., 516 F. 2d 220, 230 (CA7 1975). And
if the invalidating “conspiracy” is limited to one that
involves some element of unlawfulness (beyond mere
anticompetitive motivation), the invalidation would have
nothing to do with the policies of the antitrust laws. In
Noerr itself, where the private party “deliberately deceived
the public and public officials” in its successful lobbying
campaign, we said that “deception, reprehensible as it is,
can be of no consequence so far as the Sherman Act is
concerned.” 365 U. S., at 145.
IV
Under Parker and Noerr, therefore, both the city and COA
are entitled to immunity from the federal antitrust laws for
their activities relating to enactment of the ordinances. This
determination does not entirely resolve the dispute before
us, since other activities are at issue in the case with respect
to COA. Omni asserts that COA engaged in private
anticompetitive actions such as trade libel, the setting of
artificially low rates, and inducement to breach of contract.
Thus, although the jury’s general verdict against COA
cannot be permitted to stand (since it was based on
instructions that erroneously permitted liability for seeking
the ordinances, see Sunkist Growers, Inc. v. Winckler & Smith
Citrus Products Co., 370 U. S. 19, 29-30 (1962)), if the
evidence was sufficient to sustain a verdict on the basis of
these other actions alone, and if this theory of liability has
been properly preserved, Omni would be entitled to a new
trial.

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There also remains to be considered the effect of our
judgment upon Omni’s claim against COA under the South
Carolina Unfair Trade Practices Act. The District Court
granted judgment notwithstanding the verdict on this claim
as well as the Sherman Act claims; the Court of Appeals
reversed on the ground that “a finding of conspiracy to
restrain competition is tantamount to a finding” that the
South Carolina law had been violated, 891 F. 2d, at 1143.
Given our reversal of the “conspiracy” holding, that
reasoning is no longer applicable.
We leave these remaining questions for determination by
the Court of Appeals on remand. The judgment of the
Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE WHITE and JUSTICE
MARSHALL join, dissenting.
Section 1 of the Sherman Act provides in part: “Every
contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be
illegal.” 15 U. S. C. § 1 (emphasis added). Although we have
previously recognized that a completely literal
interpretation of the word “every” cannot have been
intended by Congress,8 the Court today carries this

8 Construing the statute in the light of the common law concerning contracts in

restraint of trade, we have concluded that only unreasonable restraints are
prohibited.

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recognition to an extreme by deciding that agreements
between municipalities, or their officials, and private parties
to use the zoning power to confer exclusive privileges in a
particular line of commerce are beyond the reach of § 1.
History, tradition, and the facts of this case all demonstrate
that the Court’s attempt to create a “better” and less
inclusive Sherman Act, cf. West Virginia University Hospitals,
Inc. v. Casey, 499 U. S. 83, 101 (1991), is ill advised.
I
As a preface to a consideration of the “state action” and socalled “Noerr-Pennington” exemptions to the Sherman Act, it
is appropriate to remind the Court that one of the classic
common-law examples of a prohibited contract in restraint
of trade involved an agreement between a public official
“One problem presented by the language of § 1 of the
Sherman Act is that it cannot mean what it says. The
statute says that ‘every’ contract that restrains trade is
unlawful. But, as Mr. Justice Brandeis perceptively noted,
restraint is the very essence of every contract; read literally,
§ 1 would outlaw the entire body of private contract law.
Yet it is that body of law that establishes the enforceability
of commercial agreements and enables competitive
markets–indeed, a competitive economy– to function
effectively.
“Congress, however, did not intend the text of the
Sherman Act to delineate the full meaning of the statute
or its application in concrete situations. The legislative
history makes it perfectly clear that it expected the courts
to give shape to the statute’s broad mandate by drawing
on common-law tradition. The Rule of Reason, with its
origins in common-law precedents long antedating the
Sherman Act, has served that purpose … . [The Rule of
Reason] focuses directly on the challenged restraint’s
impact on competitive conditions.”

National Society of Professional Engineers v. United States, 435 U. S. 679, 687-688
(1978) (footnotes omitted).
We have also confined the Sherman Act’s mandate by holding that the independent
actions of the sovereign States and their officials are not covered by the language of
the Act. Parker v. Brown, 317 U. S. 341 (1943).

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and a private party. The public official–the Queen of
England– had granted one of her subjects a monopoly in
the making, importation, and sale of playing cards in order
to generate revenues for the crown. A competitor
challenged the grant in The Case of Monopolies, 11 Co. Rep.
84, 77 Eng. Rep. 1260 (Q. B. 1602), and prevailed. Chief
Justice Popham explained on behalf of the bench:
“The Queen was … deceived in her
grant; for the Queen… intended it to
be for the weal public, and it will be
employed for the private gain of the
patentee, and for the prejudice of the
weal public; moreover the Queen
meant that the abuse should be taken
away, which shall never be by this
patent, but potius the abuse will be
increased for the private benefit of the
patentee, and therefore … this grant is
void jure Regio.” Id., at 87a; 77 Eng.
Rep., at 1264.
In the case before us today, respondent alleges that the city
of Columbia, S. C., has entered into a comparable
agreement to give the private petitioner a monopoly in the
sale of billboard advertising. After a 3-week trial, a jury
composed of citizens of the vicinage found that, despite the
city fathers’ denials, there was indeed such an agreement,
presumably motivated in part by past favors in the form of
political advertising, in part by friendship, and in part by the
expectation of a beneficial future relationship–and in any
case, not exclusively by a concern for the general public
interest.9 Today the Court acknowledges the

9 The jury returned its verdict pursuant to the following instructions given by the

District Court:

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anticompetitive consequences of this and similar
agreements but decides that they should be exempted from
the coverage of the Sherman Act because it fears that
enunciating a rule that allows the motivations of public
officials to be probed may mean that innocent municipal
officials may be harassed with baseless charges. The
holding evidences an unfortunate lack of confidence in our
judicial system and will foster the evils the Sherman Act
was designed to eradicate.
II
There is a distinction between economic regulation, on the
one hand, and regulation designed to protect the public
health, safety, and environment. In antitrust parlance a
“regulated industry” is one in which decisions about prices
and output are made not by individual firms, but rather by
a public body or a collective process subject to
governmental approval. Economic regulation of the motor
carrier and airline industries was imposed by the Federal
Government in the 1930’s; the “deregulation” of those
industries did not eliminate all the other types of regulation
that continue to protect our safety and environmental
concerns.
“So if by the evidence you find that that person involved
in this case procured and brought about the passage of
ordinances solely for the purpose of hindering, delaying or
otherwise interfering with the access of the Plaintiff to the
marketing area involved in this case … and thereby
conspired, then, of course, their conduct would not be
excused under the antitrust laws.
“So once again an entity may engage in … legitimate
lobbying … to procure legislati[on] even if the motive
behind the lobbying is anticompetitive.
“If you find Defendants conspired together with the
intent to foreclose the Plaintiff from meaningful access to
a legitimate decision making process with regard to the
ordinances in question, then your verdict would be for the
Plaintiff on that issue.” App. 81.

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The antitrust laws reflect a basic national policy favoring
free markets over regulated markets.10 In essence, the
Sherman Act prohibits private unsupervised regulation of
the prices and output of goods in the marketplace. That
prohibition is inapplicable to specific industries which
Congress has exempted from the antitrust laws and
subjected to regulatory supervision over price and output
decisions. Moreover, the so-called “state-action” exemption
from the Sherman Act reflects the Court’s understanding
that Congress did not intend the statute to pre-empt a
State’s economic regulation of commerce within its own
borders.
The contours of the state-action exemption are relatively
well defined in our cases. Ever since our decision in Olsen v.
Smith, 195 U. S. 332 (1904), which upheld a Texas statute
fixing the rates charged by pilots operating in the Port of
Galveston, it has been clear that a State’s decision to
displace competition with economic regulation is not
prohibited by the Sherman Act. Parker v. Brown, 317 U. S.
341 (1943), the case most frequently identified with the
state-action exemption, involved a decision by California to
substitute sales quotas and price control–the purest form of
economic regulation–for competition in the market for
California raisins.
In Olsen, the State itself had made the relevant pricing
decision. In Parker, the regulation of the marketing of
10 “The Sherman Act reflects a legislative judgment that ultimately competition will

produce not only lower prices, but also better goods and services. ‘The heart of our
national economic policy long has been faith in the value of competition.’ Standard
Oil Co. v. FTC, 340 U. S. 231, 248 [(1951)]. The assumption that competition is the
best method of allocating resources in a free market recognizes that all elements of
a bargain–quality, service, safety, and durability–and not just the immediate cost,
are favorably affected by the free opportunity to select among alternative offers.
Even assuming occasional exceptions to the presumed consequences of
competition, the statutory policy precludes inquiry into the question whether
competition is good or bad.” National Society of Professional Engineers, 435 U. S., at
695.

265

California’s 1940 crop of raisins was administered by state
officials. Thus, when a state agency, or the State itself,
engages in economic regulation, the Sherman Act is
inapplicable. Hoover v. Ronwin, 466 U. S. 558, 568-569
(1984); Bates v. State Bar of Arizona, 433 U. S. 350, 360
(1977).
Underlying the Court’s recognition of this state-action
exemption has been respect for the fundamental principle
of federalism. As we stated in Parker, 317 U. S., at 351: “In
a dual system of government in which, under the
Constitution, the states are sovereign, save only as
Congress may constitutionally subtract from their authority,
an unexpressed purpose to nullify a state’s control over its
officers and agents is not lightly to be attributed to
Congress.”
However, this Court recognized long ago that the
deference due States within our federal system does not
extend fully to conduct undertaken by municipalities.
Rather, all sovereign authority “within the geographical
limits of the United States” resides with “the Government
of the United States, or [with] the States of the Union.
There exist within the broad domain of sovereignty but
these two. There may be cities, counties, and other
organized bodies with limited legislative functions, but they
are all derived from, or exist in, subordination to one or the
other of these.” United States v. Kagama, 118 U. S. 375, 379
(1886).
Unlike States, municipalities do not constitute bedrocks
within our system of federalism. And also unlike States,
municipalities are more apt to promote their narrow
parochial interests “without regard to extraterritorial impact
and regional efficiency.” Lafayette v. Louisiana Power & Light
Co., 435 U. S. 389, 404 (1978); see also The Federalist No.
10 (J. Madison) (describing the greater tendency of smaller
societies to promote oppressive and narrow interests above
the common good). “If municipalities were free to make

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economic choices counseled solely by their own parochial
interests and without regard to their anticompetitive effects,
a serious chink in the armor of antitrust protection would
be introduced at odds with the comprehensive national
policy Congress established.” Lafayette v. Louisiana Power &
Light Co., 435 U. S., at 408. Indeed, “[i]n light of the serious
economic dislocation which could result if cities were free
to place their own parochial interests above the Nation’s
economic goals reflected in the antitrust laws, … we are
especially unwilling to presume that Congress intended to
exclude anticompetitive municipal action from their reach.”
Id., at 412-413.11
Nevertheless, insofar as municipalities may serve to
implement state policies, we have held that economic
regulation administered by a municipality may also be
exempt from Sherman Act coverage if it is enacted
pursuant to a clearly articulated and affirmatively expressed
state directive “to replace competition with regulation.”
Hoover, 466 U. S., at 569. However, the mere fact that a
municipality acts within its delegated authority is not
sufficient to exclude its anticompetitive behavior from the
reach of the Sherman Act.

11 In Owen v. City of Independence, 445 U. S. 622 (1980), this Court recognized that

“notwithstanding [42 U. S. C.] § 1983’s expansive language and the absence of any
express incorporation of common-law immunities, we have, on several occasions,
found that a tradition of immunity was so firmly rooted in the common law and
was supported by such strong policy reasons that ‘Congress would have specifically
so provided had it wished to abolish the doctrine.’ Pierson v. Ray, 386 U. S. 547, 555
(1967).” Id., at 637. Nevertheless, the Court refused to find a firmly established
immunity enjoyed by municipal corporations at common law for the torts of their
agents. “Where the immunity claimed by the defendant was well established at
common law at the time [42 U. S. C.] § 1983 was enacted, and where its rationale
was compatible with the purposes of the Civil Rights Act, we have construed the
statute to incorporate that immunity. But there is no tradition of immunity for
municipal corporations, and neither history nor policy supports a construction of §
1983 that would justify” according them such immunity. Id., at 638. See also Will v.
Michigan Dept. of State Police, 491 U. S. 58, 70 (1989) (“States are protected by the
Eleventh Amendment while municipalities are not …”).

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“Acceptance of such a proposition–that the general grant
of power to enact ordinances necessarily implies state
authorization to enact specific anticompetitive ordinances–
would wholly eviscerate the concepts of ‘clear articulation
and affirmative expression’ that our precedents require.”
Community Communications Co. v. Boulder, 455 U. S. 40, 56
(1982).
Accordingly, we have held that the critical decision to
substitute economic regulation for competition is one that
must be made by the State. That decision must be
articulated with sufficient clarity to identify the industry in
which the State intends that economic regulation shall
replace competition. The terse statement of the reason why
the municipality’s actions in Hallie v. Eau Claire, 471 U. S.
34 (1985), was exempt from the Sherman Act illustrates the
point: “They were taken pursuant to a clearly articulated
state policy to replace competition in the provision of
sewage services with regulation.” Id., at 47.12

12 Contrary to the Court’s reading of Hallie, our opinion in that case emphasized the

industry-specific character of the Wisconsin legislation in explaining why the
delegation satisfied the “clear articulation” requirement. At issue in Hallie was the
town’s independent decision to refuse to provide sewage treatment services to
nearby towns–a decision that had been expressly authorized by the Wisconsin
legislation. 471 U. S., at 41. We wrote:
“Applying the analysis of Lafayette v. Louisiana Power &
Light Co., 435 U. S. 389 (1978), it is sufficient that the
statutes authorized the City to provide sewage services and
also to determine the areas to be served.” Id., at 42.
“Nor do we agree with the Towns’ contention that the
statutes at issue here are neutral on state policy. The
Towns attempt to liken the Wisconsin statutes to the
Home Rule Amendment involved in Boulder, arguing that
the Wisconsin statutes are neutral because they leave the
City free to pursue either anticompetitive conduct or freemarket competition in the field of sewage services. The
analogy to the Home Rule Amendment involved in
Boulder is inapposite. That Amendment to the Colorado
Constitution allocated only the most general authority to
municipalities to govern local affairs. We held that it was
neutral and did not satisfy the ‘clear articulation’

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III
Today the Court adopts a significant enlargement of the
state-action exemption. The South Carolina statutes that
confer zoning authority on municipalities in the State do
not articulate any state policy to displace competition with
economic regulation in any line of commerce or in any
specific industry. As the Court notes, the state statutes were
expressly adopted to promote the “‘health, safety, morals or
the general welfare of the community,’” see ante, at 370, n.
3. Like Colorado’s grant of “home rule” powers to the city
of Boulder, they are simply neutral on the question whether
the municipality should displace competition with
economic regulation in any industry. There is not even an
arguable basis for concluding that the State authorized the
city of Columbia to enter into exclusive agreements with
any person, or to use the zoning power to protect favored
citizens from competition.13 Nevertheless, under the guise

component of the state action test. The Amendment
simply did not address the regulation of cable television.
Under home rule the municipality was to be free to decide
every aspect of policy relating to cable television, as well as
policy relating to any other field of regulation of local
concern. Here, in contrast, the State has specifically
authorized Wisconsin cities to provide sewage services
and has delegated to the cities the express authority to take
action that foreseeably will result in anticompetitive
effects. No reasonable argument can be made that these
statutes are neutral in the same way that Colorado’s Home
Rule Amendment was.” Id., at 43.

We rejected the argument that the delegation was insufficient because it did not
expressly mention the foreseeable anticompetitive consequences of the city of Eau
Claire’s conduct, but we surely did not hold that the mere fact that incidental
anticompetitive consequences are foreseeable is sufficient to immunize otherwise
unauthorized restrictive agreements between cities and private parties.
13 The authority to regulate the “‘location, height, bulk, number of stories and size

of buildings and other structures,’” see ante, at 371, n. 3 (citation omitted), may of
course have an indirect effect on the total output in the billboard industry, see ante,
at 373-374, n. 4, as well as on a number of other industries, but the Court surely
misreads our cases when it implies that a general grant of zoning power represents

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of acting pursuant to a state legislative grant to regulate
health, safety, and welfare, the city of Columbia in this case
enacted an ordinance that amounted to economic
regulation of the billboard market; as the Court recognizes,
the ordinance “obviously benefited COA, which already
had its billboards in place … [and] severely hindered
Omni’s ability to compete.” Ante, at 368.
Concededly, it is often difficult to differentiate economic
regulation from municipal regulation of health, safety, and
welfare. “Social and safety regulation have economic
impacts, and economic regulation has social and safety
effects.” D. Hjelmfelt, Antitrust and Regulated Industries 3
(1985). It is nevertheless important to determine when
purported general welfare regulation in fact constitutes
economic regulation by its purpose and effect of displacing
competition. “An example of economic regulation which is
disguised by another stated purpose is the limitation of
advertising by lawyers for the stated purpose of protecting
the public from incompetent lawyers. Also, economic
regulation posing as safety regulation is often encountered
in the health care industry.” Id., at 3-4.
In this case, the jury found that the city’s ordinance–
ostensibly one promoting health, safety, and welfare–was in
fact enacted pursuant to an agreement between city officials
and a private party to restrict competition. In my opinion
such a finding necessarily leads to the conclusion that the
city’s ordinance was fundamentally a form of economic
regulation of the billboard market rather than a general
welfare regulation having incidental anticompetitive effects.
Because I believe our cases have wisely held that the
decision to embark upon economic regulation is a
nondelegable one that must expressly be made by the State
in the context of a specific industry in order to qualify for
a clearly articulated decision to authorize municipalities to enter into agreements to
displace competition in every industry that is affected by zoning regulation.

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state-action immunity, see, e. g., Olsen v. Smith, 195 U. S. 332
(1904) (Texas pilotage statutes expressly regulated both
entry and rates in the Port of Galveston); Parker v. Brown,
317 U. S. 341 (1943) (California statute expressly
authorized the raisin market regulatory program), I would
hold that the city of Columbia’s economic regulation of the
billboard market pursuant to a general state grant of zoning
power is not exempt from antitrust scrutiny.14
Underlying the Court’s reluctance to find the city of
Columbia’s enactment of the billboard ordinance pursuant
to a private agreement to constitute unauthorized economic
regulation is the Court’s fear that subjecting the
motivations and effects of municipal action to antitrust
scrutiny will result in public decisions being “made subject
to ex post facto judicial assessment of ‘the public interest.’”
Ante, at 377. That fear, in turn, rests on the assumption that
“it is both inevitable and desirable that public officials often
agree to do what one or another group of private citizens
urges upon them.” Ante, at 375.
The Court’s assumption that an agreement between private
parties and public officials is an “inevitable” precondition
for official action, however, is simply wrong.15 Indeed, I am
14 A number of Courts of Appeals have held that a municipality which exercises its

zoning power to further a private agreement to restrain trade is not entitled to
state-action immunity. See, e. g., Westborough Mall, Inc. v. Cape Girardeau, 693 F. 2d
733, 746 (CA8 1982) (“Even if zoning in general can be characterized as ‘state
action,’ … a conspiracy to thwart normal zoning procedures and to directly injure
the plaintiffs by illegally depriving them of their property is not in furtherance of
any clearly articulated state policy”); Whitworth v. Perkins, 559 F. 2d 378, 379 (CA5
1977) (“The mere presence of the zoning ordinance does not necessarily insulate
the defendants from antitrust liability where, as here, the plaintiff asserts that the
enactment of the ordinance was itself a part of the alleged conspiracy to restrain
trade”).
15 No such agreement was involved in Hallie v. Eau Claire, 471 U. S. 34 (1985). In

that case the plaintiffs challenged independent action–the determination of the
service area of the city’s sewage system–that had been expressly authorized by
Wisconsin legislation. The absence of any such agreement provided the basis for
our decision in Fisher v. Berkeley, 475 U. S. 260, 266-267 (1986) (“The distinction
between unilateral and concerted action is critical here… . Thus, if the Berkeley

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persuaded that such agreements are the exception rather
than the rule, and that they are, and should be, disfavored.
The mere fact that an official body adopts a position that is
advocated by a private lobbyist is plainly not sufficient to
establish an agreement to do so. See Fisher v. Berkeley, 475
U. S. 260, 266-267 (1986); cf. Theatre Enterprises, Inc. v.
Paramount Film Distributing Corp., 346 U. S. 537, 541 (1954).
Nevertheless, in many circumstances, it would seem
reasonable to infer–as the jury did in this case–that the
official action is the product of an agreement intended to
elevate particular private interests over the general good.
In this case, the city took two separate actions that
protected the local monopolist from threatened
competition. It first declared a moratorium on any new
billboard construction, despite the city attorney’s advice
that the city had no power to do so. When the moratorium
was invalidated in state-court litigation, it was replaced with
an apparently valid ordinance that clearly had the effect of
creating formidable barriers to entry in the billboard
market. Throughout the city’s decisionmaking process in
enacting the various ordinances, undisputed evidence
demonstrated that Columbia Outdoor Advertising, Inc.,
had met with city officials privately as well as publicly. As
the Court of Appeals noted: “Implicit in the jury verdict
was a finding that the city was not acting pursuant to the
direction or purposes of the South Carolina statutes but
conspired solely to further COA’s commercial purposes to
the detriment of competition in the billboard industry.” 891
F. 2d 1127, 1133 (CA4 1989).
Judges who are closer to the trial process than we are do
not share the Court’s fear that juries are not capable of
recognizing the difference between independent municipal
action and action taken for the sole purpose of carrying out
Ordinance stabilizes rents without this element of concerted action, the program it
establishes cannot run afoul of § 1”).

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an anticompetitive agreement for the private party.16 See, e.
g., In re Japanese Electronic Products Antitrust Litigation, 631 F.
2d 1069, 1079 (CA3 1980) (“The law presumes that a jury
will find facts and reach a verdict by rational means. It does
not contemplate scientific precision but does contemplate a
resolution of each issue on the basis of a fair and
reasonable assessment of the evidence and a fair and
reasonable application of the relevant legal rules”). Indeed,
the problems inherent in determining whether the actions
of municipal officials are the product of an illegal
agreement are substantially the same as those arising in
cases in which the actions of business executives are
subjected to antitrust scrutiny.17
The difficulty of proving whether an agreement motivated
a course of conduct should not in itself intimidate this
Court into exempting those illegal agreements that are
16 The instructions in this case, fairly read, told the jury that the plaintiff should not

prevail unless the ordinance was enacted for the sole purpose of interfering with
access to the market. See n. 2, supra. Thus, this case is an example of one of the
“polar extremes,” see ante, at 375, n. 5, that juries–as well as Solomon–can readily
identify. The mixed motive cases that concern the Court should present no
problem if juries are given instructions comparable to those given below. When the
Court describes my position as assuming that municipal action that was not
prompted “exclusively by a concern for the general public interest” is enough to
create antitrust liability, ibid., it simply ignores the requirement that the plaintiff
must prove that the municipal action is the product of an anticompetitive
agreement with private parties. Contrary to our square holding in Fisher v. Berkeley,
475 U. S. 260 (1986), today the Court seems to assume that municipal action which
is not entirely immune from antitrust scrutiny will automatically violate the antitrust
laws.
17 There are many obstacles to discovering conspiracies, but the most frequent

difficulties are three. First, price-fixers and similar miscreants seldom admit their
conspiracy or agree in the open. Often, we can infer the agreement only from their
behavior. Second, behavior can sometimes be coordinated without any
communication or other observable and reprehensible behavior. Third, the causal
connection between an observable, controllable act–such as a solicitation or
meeting–and subsequent parallel action may be obscure.” 6 P. Areeda, Antitrust
Law ¶ 1400, at 3-4 (1986). See also Turner, The Definition of Agreement under the
Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655
(1962) (discussing difficulties of condemning parallel anticompetitive action absent
explicit agreement among the parties).

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proved by convincing evidence. Rather, the Court should, if
it must, attempt to deal with these problems of proof as it
has in the past–through heightened evidentiary standards
rather than through judicial expansion of exemptions from
the Sherman Act. See, e. g., Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U. S. 574 (1986) (allowing summary
judgment where a predatory pricing conspiracy in violation
of the Sherman Act was founded largely upon
circumstantial evidence); Monsanto Co. v. Spray-Rite Service
Corp., 465 U. S. 752, 768 (1984) (holding that a plaintiff in a
vertical price-fixing case must produce evidence which
“tends to exclude the possibility of independent action”).
Unfortunately, the Court’s decision today converts what
should be nothing more than an anticompetitive agreement
undertaken by a municipality that enjoys no special status in
our federalist system into a lawful exercise of public
decision-making. Although the Court correctly applies
principles of federalism in refusing to find a “conspiracy
exception” to the Parker state-action doctrine when a State
acts in a nonproprietary capacity, it errs in extending the
state-action exemption to municipalities that enter into
private anticompetitive agreements under the guise of
acting pursuant to a general state grant of authority to
regulate health, safety, and welfare. Unlike the previous
limitations this Court has imposed on Congress’ sweeping
mandate in § 1, which found support in our common-law
traditions or our system of federalism, see n. 1, supra, the
Court’s wholesale exemption of municipal action from
antitrust scrutiny amounts to little more than a bold and
disturbing act of judicial legislation which dramatically
curtails the statutory prohibition against “every” contract in
restraint of trade.18
18 As the Court previously has noted:

“In 1972, there were 62,437 different units of local
government in this country. Of this number 23,885 were
special districts which had a defined goal or goals for the

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IV
Just as I am convinced that municipal “lawmaking that has
been infected by selfishly motivated agreement with private
interests,” ante, at 383, is not authorized by a grant of
zoning authority, and therefore not within the state-action
exemption, so am I persuaded that a private party’s
agreement with selfishly motivated public officials is
sufficient to remove the antitrust immunity that protects
private lobbying under Eastern Railroad Presidents Conference v.
Noerr Motor Freight, Inc., 365 U. S. 127 (1961), and Mine
Workers v. Pennington, 381 U. S. 657 (1965). Although I agree
that the “sham” exception to the Noerr-Pennington rule
exempting lobbying activities from the antitrust laws does
not apply to the private petitioner’s conduct in this case for
the reasons stated by the Court in Part III of its opinion, I
am satisfied that the evidence in the record is sufficient to
support the jury’s finding that a conspiracy existed between
the private party and the municipal officials in this case so
as to remove the private petitioner’s conduct from the
scope of Noerr-Pennington antitrust immunity. Accordingly, I
would affirm the judgment of the Court of Appeals as to
both the city of Columbia and Columbia Outdoor
Advertising, Inc.

provision of one or several services, while the remaining
38,552 represented the number of counties, municipalities,
and townships, most of which have broad authority for
general governance subject to limitations in one way or
another imposed by the State. These units may, and do,
participate in and affect the economic life of this Nation
in a great number and variety of ways. When these bodies
act as owners and providers of services, they are fully
capable of aggrandizing other economic units with which
they interrelate, with the potential of serious distortion of
the rational and efficient allocation of resources, and the
efficiency of free markets which the regime of
competition embodied in the antitrust laws is thought to
engender.” Lafayette v. Louisiana Power & Light Co., 435 U.
S. 389, 407-408 (1978) (footnotes omitted).

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I respectfully dissent.
3.6. Spot Zoning
Frank S. Griswold v. City of Homer
925 P.2d 1015 (Alaska 1996)
Frank S. Griswold, Homer, pro se.
Gordon J. Tans, Perkins Coie, Anchorage, for Appellee.
Before MOORE, C.J., and RABINOWITZ, MATTHEWS,
COMPTON and EASTAUGH, JJ.
Eastaugh, Justice. I. INTRODUCTION
In 1992 the Homer City Council adopted Ordinance 92-18
amending Homer’s zoning and planning code to allow
motor vehicle sales and services on thirteen lots in Homer’s
Central Business District. Frank Griswold claims
Ordinance 92-18 is invalid because it constitutes spot
zoning. We affirm the superior court’s rejection of that
claim. Griswold also claims the Ordinance is invalid
because a council member with a personal interest
improperly participated in its adoption. We hold that the
council member should not have participated. We
consequently remand so the superior court can determine
whether that participation invalidates the Ordinance.
Finally, we hold that Griswold is a public interest litigant
who cannot be assessed the City’s attorney’s fees and court
costs.II. FACTS AND PROCEEDINGSAlaska Statute
29.40.020 requires that each first class borough establish a
planning commission which will prepare, submit, and
implement a comprehensive plan.1 This plan must be

1 AS 29.40.030 defines a comprehensive plan as follows:

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adopted before the local government can adopt a zoning
ordinance. AS 29.40.020.040. A borough assembly “[i]n
accordance with a comprehensive plan adopted under AS
29.40.030 and in order to implement the plan … shall
adopt or amend provisions governing the use and
occupancy of land.” AS 29.40.040. That statute requires the
borough to implement the comprehensive plan by adopting
provisions governing land use, including zoning
regulations. Id. A borough may delegate this responsibility
and the planning power to a city within the borough, if the
city consents. AS 29.40.010(b). The Kenai Peninsula
Borough delegated to the City of Homer the zoning
authority for areas within the City.
The City adopted a comprehensive land use plan in 1983
and revised it in 1989. The City Council enacted zoning
ordinances to implement the plans. Motor vehicle sales and
services were not a permissible use within the Central
Business District (CBD). Several businesses provided
automobile services in the CBD before the City adopted
the zoning ordinances. Those businesses were
“grandfathered” into the zoning district and allowed to
continue to provide those services as nonconforming uses,
so long as those uses did not extend beyond the original lot
boundaries and the property owners did not discontinue
their nonconforming uses for more than one year.
[A] compilation of policy statements, goals, standards, and
maps for guiding the physical, social, and economic
development, both private and public, of the first or
second class borough, and may include, but is not limited
to, the following:
(1) statements of policies, goals, and standards;
(2) a land use plan;
(3) a community facilities plan;
(4) a transportation plan; and
(5) recommendations
comprehensive plan.

for

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implementation

of

the

Guy Rosi Sr. owns a parcel (Lot 13) in the CBD.2 Rosi Sr.
has continuously operated an automobile repair service on
Lot 13. His repair business remains a valid nonconforming
use in the CBD. Rosi Sr. also operated an automobile
dealership on Lot 13 until sometime prior to 1990, but lost
the right to continue that nonconforming use on that lot by
discontinuing the vehicle sales business for more than one
year.
Guy Rosi Jr. owns Lot 12, which is adjacent to his father’s
lot. Lot 12 is also in the CBD; because it had never been
used for automobile sales or services, these uses were not
grandfathered for Lot 12.
In 1986 the City received complaints that Lot 12 was being
used for vehicle sales in violation of the zoning ordinance.
In May 1986 Rosi Jr. applied to the Homer Advisory
Planning Commission for a conditional use permit for Lot
12. The commission denied the application. It found that
public services and facilities were adequate to serve the
proposed use. The commission also found that automobile
sales were not consistent with the purpose of the CBD;
were not in harmony with the Comprehensive Plan; would
negatively impact neighborhood character; but might not
negatively impact the value of adjoining property more than
permitted uses.
Rosi Jr. then applied for a contract rezone under Homer
City Code (HCC) 21.63.020(c). The City granted the
application in 1986, rezoning Rosi Jr.’s lot to General
Commercial 1(GC1) and restricting its use to vehicle sales.
Griswold does not challenge the Lot 12 contract rezone in
this litigation.
Rosi Sr.’s Lot 13 was not affected by the Lot 12 contract
rezone. In September 1990 Rosi Sr. requested that the
2 Although the Borough’s tax assessment records indicate that Guy Rosi Sr. owns

only part of Lot 13, the parties and the trial court have referred to his parcel as
“Lot 13.” We do the same.

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CBD be rezoned to allow vehicle sales and related services.
In August 1991 Rosi Sr., stating that he had not received
any response to his earlier request, asked that Lot 13 be
rezoned to allow vehicle sales and related services. During
this period, there were numerous zoning proposals and
public hearings regarding automobile-related services in the
CBD, but some people spoke in favor of rezoning the area.
In January 1992 a commission memorandum informed the
City Manager that the commission had been wrestling with
several possible amendments to the zoning code since
1990, and that “[c]entral to the issue is the Commission’s
desire to rezone the Guy Rosi property to allow for vehicle
sales.” The commission noted that a proposed ordinance
would allow automobile-related services in the CBD only
on Main Street from Pioneer Avenue to the Homer Bypass,
excluding corner lots with frontage on Pioneer Avenue and
the Homer Bypass Road. However, the commission staff
recommended that the council pass an ordinance which
would allow automobile-related services “everywhere in the
Central Business District or nowhere.” The memo stated
that the City Attorney felt the proposed ordinance would
be difficult to enforce and defend.
In April the City Council adopted Ordinance 92-18, which
amended HCC 21.48.020 by adding the following section:
hh. Automobile and vehicle repair,
vehicle maintenance, public garage,
and motor vehicle sales, showrooms
and sales lots, but only on Main Street
from Pioneer Avenue to the Homer
Bypass Road, excluding corner lots
with frontage on Pioneer Avenue or
the Homer Bypass Road, be allowed as
a permitted use.
The Ordinance passed five-to-zero. One council member
was absent. Brian Sweiven was one of the council members

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voting for the amendment. He owned one of the thirteen
lots on which automobile sales and services were to be
allowed under Ordinance 92-18. Sweiven both lived on his
lot and operated an appliance repair business there. In
1994, stating he had a potential conflict of interest, he
refrained from voting on Ordinance 94-13, which would
have repealed subsection (hh). A week later he reversed
that position and voted not to repeal subsection (hh).
Frank Griswold, the plaintiff in this case, owns an
automobile repair shop in the CBD. Its operation was
grandfathered in under the zoning code. He also lives in the
CBD. Griswold’s lot was not one of the thirteen lots
directly affected by Ordinance 92-18. Griswold brought
suit against the City, alleging under several theories that
Ordinance 92-18 is an invalid exercise of the City’s zoning
power and that Sweiven’s participation in the adoption of
Ordinance 92-18 invalidates the Ordinance. Following a
bench trial, the superior court found against Griswold on
all issues. It later ordered him to pay a portion of the City’s
court costs and attorney’s fees. Griswold appeals.
III. DISCUSSION
We have repeatedly held that it is the role of elected
representatives rather than the courts to decide whether a
particular statute or ordinance is a wise one.3 Norene v.
Municipality of Anchorage, 704 P.2d 199, 202 (Alaska 1985);
Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1299
(Alaska 1982). In Concerned Citizens of S. Kenai Peninsula v.
3 This appeal concerns the validity of an enactment of a legislative body, rather than

a decision of a zoning board. See Concerned Citizens of S. Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)(analyzing a Borough Assembly’s
ordinance as a legislative enactment). We are here reviewing a superior court
judgment rejecting claims that a municipal ordinance is invalid. We give
independent consideration to the legal conclusions of the superior court. Beesley v.
Van Doren, 873 P.2d 1280, 1281 (Alaska 1994). We will uphold the superior court’s
findings of fact unless they are clearly erroneous. In re R.K., 851 P.2d 62, 66 (Alaska
1993).

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Kenai Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974), we
stated:
A court’s inquiry into arbitrariness
begins with the presumption that the
action of the legislature is proper. The
party claiming a denial of substantive
due process has the burden of
demonstrating that no rational basis
for the challenged legislation exists.
This burden is a heavy one, for if any
conceivable legitimate public policy for
the enactment is apparent on its face
or is offered by those defending the
enactment, the opponents of the
measure must disprove the factual
basis for such a justification.
(Footnote omitted.) See also 6 Eugene McQuillan, Municipal
Corporations § 20.05, at 12 (3d ed. 1988) (“The validity of an
ordinance will be upheld where there is room for a
difference of opinion ‘even though the correctness of the
legislative judgment is doubtful.’“) (quoting Western Springs
v. Bernhagen, 326 Ill. 100, 156 N.E. 753, 754 (1927)).
However, we will invalidate zoning decisions which are the
result of prejudice, arbitrary decision-making, or improper
motives. See South Anchorage Concerned Coalition v. Coffey, 862
P.2d 168, 174 (Alaska 1993) (“In reviewing zoning
decisions, courts generally try to guard against prejudice,
arbitrary decision-making, and improper motives.”) (citing
3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and
Planning § 41.06, at 41-29, § 41.14(3)(b), at 41-93 (1992)).
Similarly, a legislative body’s zoning decision violates
substantive due process if it has no reasonable relationship
to a legitimate government purpose. Concerned Citizens of S.
Kenai Peninsula, 527 P.2d at 452. Moreover, another court
has noted, “The dividing line between … mere difference
in opinion and what is arbitrary is the line between zoning

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based on objective factual evidence and zoning without a
rational basis.” Smith v. County of Washington, 241 Or. 380,
406 P.2d 545, 548 (1965) (citations omitted).4 In this case,
Griswold argues that the City’s Ordinance does not have a
legitimate basis but rather is arbitrary spot zoning.5
We have not previously had the opportunity to consider
whether a municipality’s planning and zoning enactment is
invalid because it constitutes “spot zoning.” The City states
that “this is not a case of ‘spot zoning’ at all” because the
area in question remains zoned CBD. However, treatise
discussions of spot zoning appear to make no distinction
between cases where a zoning district has been reclassified
and those where a new use without district reclassification
is at issue. See, e.g., 1 Robert M. Anderson American Law of
Zoning 3d § 5.12, at 358 (1986) (“The common [spot
zoning] situation is one in which an amendment is initiated
at the request of an owner or owners who seek to establish
a use prohibited by the existing regulations.”). See also,
Ballenger v. Door County, 131 Wis.2d 422, 388 N.W.2d 624,
627 (App. 1986) (applying spot zoning analysis in a case
where the zoning district remained the same but the
permitted uses within the district were expanded); Concerned
Citizens of S. Kenai Peninsula, 527 P.2d at 452 (whether
zoning decision violates substantive due process depends
on whether it has a reasonable relationship to a legitimate
public purpose).

4 We have

held that, although a planning commission is not required to make
specific findings supporting its decisions, it must articulate reasons for its decisions
sufficient to assist the parties preparing for review and to restrain agencies within
the bounds of their jurisdiction. South Anchorage Concerned Coalition v. Coffey, 862 P.2d
168, 175 (Alaska 1993) (citing City of Nome v. Catholic Bishop of N. Alaska, 707 P.2d
870, 875 (Alaska 1985); and Kenai Peninsula Borough v. Ryherd, 628 P.2d 557, 562
(Alaska 1981)).
5 Griswold also argues that the Ordinance is invalid because it is inconsistent with

the City’s zoning code and comprehensive plan. We consider this argument in
conjunction with our discussion of spot zoning.

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A. Claim of Spot ZoningThe “classic” definition of spot
zoning is “the process of singling out a small parcel of land
for a use classification totally different from that of the
surrounding area, for the benefit of the owner of such
property and to the detriment of other owners….”
Anderson, supra, § 5.12, at 359 (quoting Jones v. Zoning Bd. of
Adjustment of Long Beach, 32 N.J. Super. 397, 108 A.2d 498
(1954)). Spot zoning “is the very antithesis of planned
zoning.” Id.6 Courts have developed numerous variations of
this definition. Id. These variations have but minor
differences and describe any zoning amendment which
“reclassifies a small parcel in a manner inconsistent with
existing zoning patterns, for the benefit of the owner and
to the detriment of the community, or without any
substantial public purpose.” Anderson, supra, § 5.12, at 362.
Professor Ziegler states:
Faced with an allegation of spot
zoning, courts determine first whether
the rezoning is compatible with the
comprehensive plan or, where no plan
exists, with surrounding uses. Courts
then examine the degree of public
benefit gained and the characteristics
6 The City argues that spot zoning should not be considered per se illegal, but

merely descriptive. Thus, whether spot zoning is valid or invalid would depend
upon the facts of each case. See Chrismon v. Guilford County, 322 N.C. 611, 370
S.E.2d 579, 588 (1988); Save Our Rural Env’t v. Snohomish County, 99 Wash.2d 363,
662 P.2d 816 (1983); Tennison v. Shomette, 38 Md. App. 1, 379 A.2d 187 (1977).
However, we will follow the vast majority of jurisdictions which hold that, while
not all small-parcel zoning is illegal, spot zoning is per se illegal. See Chrismon, 370
S.E.2d at 588 (noting that majority of jurisdictions regard spot zoning as a legal
term of art); 3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and Planning §
28.01 n. 2 (4th ed. 1995) (compiling cases holding same); Anderson, supra, § 5.12, at
359 n. 46 (same).
Thus, spot zoning is simply the legal term of art for a zoning decision which affects
a small parcel of land and which is found to be an arbitrary exercise of legislative
power. Cf. Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452 (“[T]he
constitutional guarantee of substantive due process assures only that a legislative
body’s decision is not arbitrary but instead based upon some rational policy.”).

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of land, including parcel size and other
factors
indicating
that
any
reclassification should have embraced
a larger area containing the subject
parcel rather than that parcel alone.
No one particular characteristic
associated with spot zoning, except a
failure to comply with at least the spirit
of a comprehensive plan, is necessarily
fatal to the amendment. Spot zoning
analysis depends primarily on the facts
and circumstances of the particular
case. Therefore the criteria are flexible
and provide guidelines for judicial
balancing of interests.
3 Edward H. Ziegler Jr., Rathkoph’s The Law of Zoning and
Planning § 28.01, at 28-3 (4th ed. 1995).
In accord with the guidance offered by Professor Ziegler,
in determining whether Ordinance 92-18 constitutes spot
zoning, we will consider (1) the consistency of the
amendment with the comprehensive plan; (2) the benefits
and detriments of the amendment to the owners, adjacent
landowners, and community; and (3) the size of the area
“rezoned.”1. Consistency with the comprehensive planJust
as an ordinance which complies with a comprehensive plan
may still constitute an arbitrary exercise of a city’s zoning
power, Watson v. Town Council of Bernalillo, 111 N.M. 374,
805 P.2d 641, 645 (App. 1991), nonconformance with a
comprehensive plan does not necessarily render a zoning
action illegal. Anderson, supra, § 5.06, at 339-40. However,
consistency with a comprehensive plan is one indication
that the zoning action in question has a rational basis and is
not an arbitrary exercise of the City’s zoning power.
Homer’s comprehensive plan divides the city into several
zoning areas. By its own terms, Homer’s comprehensive
plan is not intended to set specific land use standards and

284

boundaries; specific standards and boundaries are instead
implemented through the City’s zoning ordinance. The plan
states, “The City shall encourage a mix of
business/commercial and public/governmental activities in
areas zoned or planned as central business district.” The
plan states that the CBD is “intended primarily for retail
sales and services occurring within enclosed structures.”
The plan’s objectives for the CBD are (1) to guide growth
and development to provide a centrally located business
and commercial area and focal point for the community; (2)
to encourage infilling of the area already designated CBD
before expanding the area; (3) to promote a safe, attractive,
and easily accessible business and commercial core for
pedestrian and vehicular visitors and residents; (4) to attract
and accommodate a variety of uses to fill the business and
commercial needs of downtown Homer; and (5) to tie into
state and federal programs that beautify the business and
commercial core.
Griswold does not dispute that the CBD is intended to
allow commercial uses. He notes however, that although
auto-related services are explicitly permitted in the General
Commercial 1 District under HCC 21.49.020(d), the
planning commission previously denied a conditional use
permit for auto-related services on Main Street, specifically
finding, inter alia, that automobile sales were not consistent
with the purpose of the CBD and were not in harmony
with the comprehensive plan. He also notes that the
comprehensive plan provides that the CBD was meant
primarily for retail sales and services occurring within
enclosed structures. Further, the fact that the City began
phasing out auto-related services in the CBD when it
adopted the comprehensive plan, while simultaneously
specifically permitting these services in the General
Commercial I District, indicates to Griswold that autorelated sales and services were, at least at one time,
considered incompatible with the CBD.

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The superior court concluded that the Ordinance was
consistent with the comprehensive plan. In so concluding,
it considered the policy statement implementing the
Ordinance, and found that the Ordinance “encourages
private investment and infilling” and “enhances convenient
access to other parts of the CBD which are designated for
other uses.” It noted that Policy 4.1 provided: “The City
shall research the nature of land uses and CBD land use
needs and evaluate the need for subzones in the CBD.”
Griswold points to trial evidence that the expansion of
auto-related services in the CBD does not further all the
goals of the comprehensive plan, but he fails to
demonstrate that the superior court’s finding — that the
Ordinance is consistent with the plan — is clearly
erroneous. Although the evidence presented by Griswold
would permit a finding that the City Council had believed in
1986 that auto-related uses were incompatible with the
CBD and the zoning ordinance as it then read, that
evidence does not compel a finding that auto-related uses are
in fact incompatible with the CBD or comprehensive plan,
or that the City Council’s 1992 change of opinion is
unsupportable and arbitrary.
The superior court did not clearly err in making the
findings discussed above. The court permissibly relied on
Policy 4.1, which anticipates the type of action at issue here.
The comprehensive plan does not expressly prohibit
automobile sales or service establishments in the CBD. As
the City notes, motor vehicle sales are most appropriately
classified as a business and commercial use, for which the
CBD was intended under the plan. Homer’s city planner
testified at trial that the Ordinance is in accordance with
Homer’s comprehensive plan. We conclude that the
superior court did not err in holding that Ordinance 92-18
is consistent with the City’s comprehensive plan.

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2. Effect of small-parcel zoning on owner and
community
Perhaps the most important factor in determining whether
a small-parcel zoning amendment will be upheld is whether
the amendment provides a benefit to the public, rather than
primarily a benefit to a private owner. See Anderson, supra,
§§ 5.13-5.14; Ziegler, supra, § 28.03, § 28.04, at 28-19
(calling an amendment intended only to benefit the owner
of the rezoned tract the “classic case” of spot zoning).
Courts generally do not assume that a zoning amendment is
primarily for the benefit of a landowner merely because the
amendment was adopted at the request of the landowner.
Anderson, supra, § 5.13, at 368. If the owner’s benefit is
merely incidental to the general community’s benefit, the
amendment will be upheld. Ziegler, supra, § 28.04, at 28-19
to 28-20. The City argues that Ordinance 92-18 serves the
interests of the general community rather than primarily the
interests of the Rosis. We agree.
a. Benefits
community

and

detriments

to

the

Griswold argues that there are many negative aspects of the
City’s decision to allow auto-related uses in the CBD.
Griswold presented evidence that the neighborhood
character would be harmed by the zoning amendment. He
presented evidence that a newspaper article quoted
Planning Commissioner Cushing as saying that public
opinion was overwhelmingly against allowing auto-related
services in the CBD and that many Homer citizens
expressed the opinion that their homes and businesses
would be harmed by introducing auto-related services into
the area. A real estate agent testified that property in the
CBD has a higher value than property in the GC1 District.
Many jurisdictions, including this one, have held that
interests such as the preservation of neighborhood

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character, traffic safety, and aesthetics are legitimate
concerns. Barber v. Municipality of Anchorage, 776 P.2d 1035,
1037 (Alaska) (holding the government’s interest in
aesthetics is substantial and should be accorded respect),
cert. denied, 493 U.S. 922, 110 S.Ct. 287, 107 L.Ed.2d 267
(1989); Cadoux v. Planning and Zoning Comm’n of Weston, 162
Conn. 425, 294 A.2d 582, 584 (holding increased traffic a
valid reason to deny application for rezone), cert. denied, 408
U.S. 924, 92 S.Ct. 2496, 33 L.Ed.2d 335 (1972). Contrary to
the implication of the City’s argument,7 these are tangible
harms. Moreover, the City itself appears to be concerned
about the effects of auto-related services on property values
and aesthetics, as evidenced by the council’s findings
supporting its confinement of the zoning change to Main
Street,8 and the commission’s earlier finding that use for
automobile sales would negatively impact neighborhood
character.
However, despite this negative aspect of Ordinance 92-18,
it appears that the Ordinance will result in genuine benefits
for the City of Homer. The City notes that before adopting
Ordinance 92-18, for a year and a half it deliberated
proposals which would allow auto-related uses in the CBD
and delineated the many benefits which it believed the
Ordinance will confer upon the community. These benefits
include encouraging filling in vacant places in the CBD;
increasing the tax base and employment in the CBD;
increasing convenience and accessibility for local and
regional customers for vehicle repairs or purchases; and
7 The City argues that Griswold could not show any “concrete detriment” but

instead “could only argue that car lots were not pleasant to look at, they didn’t
alleviate traffic, and other similar arguments.”
8 At trial the City’s planner testified that the Ordinance was restricted to Main

Street to avoid certain negative impacts in more tourist-oriented areas. These
negative impacts include traffic congestion, visual blight, detraction from the
pleasing aesthetic nature of Pioneer Avenue, and conflict with the comprehensive
plan’s goal of promoting sidewalks, pocket parks, and pedestrian amenities in the
CBD.

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promoting orderly growth and development in the CBD.9
Homer’s city planner testified that the Ordinance provides
a convenience to the public and guides growth and
development to a centrally located area, while restricting
such uses to areas away from tourists or to areas for visitors
and pedestrians.
9 Not all of the goals articulated by the City can be considered legitimate per se. For

example, any zoning change which eases restrictions on property use could be said
to further the goal of “filling in vacant places.” Similarly, increasing the tax base
and the employment of a community is not automatically a legitimate zoning goal.
See Concerned Citizens for McHenry, Inc. v. City of McHenry, 76 Ill. App.3d 798, 32
Ill.Dec. 563, 568, 395 N.E.2d 944, 950 (1979) (an increase in the tax base of the
community as the primary justification for a rezone is “totally violative of all the
basic principles of zoning”); Oakwood at Madison, Inc. v. Township of Madison, 117 N.J.
Super. 11, 283 A.2d 353, 357 (1971) (finding that “fiscal zoning per se is irrelevant to
the statutory purposes of zoning [although] ‘alleviating tax burden is a permissible
zoning purpose if done reasonably and in furtherance of a comprehensive plan)
(citing Gruber v. Mayor and Tp. Committee of Raritan Tp., 39 N.J. 1, 186 A.2d 489, 493
(1962))’“; Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489, 497 (1971)
(allowing industrial development on only one site would be arbitrary spot zoning
despite the potential tax revenue the oil refinery would produce). Thus, the goal of
increasing the tax base and employment opportunities is usually legitimate only if
the ordinance is otherwise reasonable and in accordance with the comprehensive
plan.
Some courts have allowed inconsistent small or single parcel rezoning in order to
raise tax revenues or stimulate needed industry if the public receives higher tax
revenue or employment industries. Ziegler, supra, § 28.04, at 28-20. Generally, the
facility being built must be indisputably needed, and the city must have secured
assurance as to the existence and amount of increased employment and tax
revenue. For example, in Information Please Inc. v. County Comm’rs of Morgan County, 42
Colo. App. 392, 600 P.2d 86 (1979), the county rezoned agricultural area to
industrial to accommodate an electric utility after determining the plant would add
$46,000,000 to the tax base of the county, and provide approximately 250 jobs after
it was completed. Id. 600 P.2d at 88. In Watson v. Town Council of Bernalillo, 111 N.M.
374, 805 P.2d 641, 647 (App. 1991), the county made findings that the rezone
would employ eighty-seven people from the community and would produce tax
revenues constituting twenty-five percent of the city’s budget. In Chrismon v.
Guilford County, 322 N.C. 611, 370 S.E.2d 579, 590 (1988), the court approved the
rezoning of two contiguous tracts from agricultural to conditional use industrial
district to facilitate expansion of an already-operating grain elevator. The court
stated that the “[e]vidence clearly shows that [the owner’s] operation is beneficial to
area farmers.” Id. It also noted that spot zoning will be allowed even where the
adjacent property owners object and the owner receives a greater benefit than
others if there is a community-wide need for the rezone. Id.

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The superior court stated that Ordinance 92-18 advances
legitimate legislative goals articulated in HCC 21.28.020
including but not limited to regulating and limiting the
density of populations; conserving and stabilizing the value
of properties; providing adequate open spaces for light and
air; preventing undue concentration of population;
lessening congestion on streets and highways; and
promoting health, safety and general welfare. The court
found “as a matter of fact and law that Ordinance No. 9218 bears a substantial relationship between legitimate
legislative goals and the means chosen to achieve those
goals.”
Griswold has demonstrated that there are some negative
aspects of allowing auto-related uses in the CBD.
Nonetheless, giving proper deference to the City Council as
legislative policymaker and to the superior court as finder
of fact, we cannot conclude that these detriments so
outweigh the benefits of Ordinance 92-18 that we must
hold the Ordinance was arbitrarily and capriciously
adopted.
b. Benefit to the landownerIt appears that initially the City
was primarily concerned with Rosi Sr.’s interests.10 Rosi Sr.
initiated the inquiry into rezoning the CBD. Before the City
amended the zoning code, the planning commission chair
stated that “[c]entral to the issue is the Commission’s desire
to rezone the Guy Rosi property to allow for vehicle sales.”
In 1991 commissioners “voiced their dislike for spot
zoning but felt it important to right a wrong [done to Mr.
Rosi].” The City planning staff stated that “‘spot zoning’ is
not good planning; however there are extenuating
circumstances that support the proposed change in zone.”
The commission supported these conclusions with the
following findings of fact: (1) the property owner had
10 Currently, Rosi Jr.’s lot is not affected by Ordinance 92-18 since that lot has been

contract rezoned to GC1.

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owned and operated a business on the property since the
early 1950’s; (2) public testimony and response to staff were
positive; (3) the City Attorney’s response was positive; and
(4) the business was an expensive business to establish and
maintain. This desire to accommodate the needs of a
businessman who had been in the community for decades
is understandable. Nevertheless, small-parcel zoning
designed merely to benefit one owner constitutes
unwarranted discrimination and arbitrary decision-making,
unless the ordinance amendment is designed to achieve the
statutory objectives of the City’s own zoning scheme, even
where the purpose of the change is to bring a
nonconforming use into conformance or allow it to
expand. See Speakman v. Mayor of N. Plainfield, 8 N.J. 250, 84
A.2d 715, 718-19 (1951). Otherwise, the City would be
forced either to discriminate arbitrarily among landowners
seeking relaxed restrictions or to abandon the concept of
planned zoning altogether. Thus, if assisting Guy Rosi Sr.
was the primary purpose of the Ordinance, we would
invalidate it even if it was not the product of discriminatory
animus.
However, it appears that the City Council was ultimately
motivated to pass the Ordinance because of the community
benefits the council perceived rather than because of the
benefit the Ordinance would confer upon Rosi Sr. The
Ordinance restricted auto-related uses to one street not
because its real intent was to benefit Rosi Sr.’s property,
but, as Homer’s city planner testified, because the City
desired to minimize the negative impact of auto-related
uses, especially the impact of such uses on more pedestrian
and tourist-oriented areas such as Pioneer Avenue. See also
supra note 7. Similarly, it appears that vacant lots located
farther from Pioneer Avenue were excluded not because
Rosi did not own these lots, but in an attempt to prevent
urban sprawl by filling in vacant places in developed areas
before expanding development. These reasons are

291

legitimate, nondiscriminatory justifications for enacting the
Ordinance.3. Size of “rezoned” areaOrdinance 92-18
directly affects 7.29 acres.11 The size of the area reclassified
has been called “more significant [than all other factors] in
determining the presence of spot zoning.” Anderson, supra,
§ 5.15, at 378. The rationale for that statement is that “[i]t is
inherently difficult to relate a reclassification of a single lot
to the comprehensive plan; it is less troublesome to
demonstrate that a change which affects a larger area is in
accordance with a plan to control development for the
benefit of all.” Id. at 379.
We believe that the relationship between the size of
reclassification and a finding of spot zoning is properly
seen as symptomatic rather than causal, and thus that the
size of the area rezoned should not be considered more
significant than other factors in determining whether spot
zoning has occurred. A parcel cannot be too large per se to
preclude a finding of spot zoning, nor can it be so small
that it mandates a finding of spot zoning. Although
Anderson notes that reclassifications of parcels under three
acres are nearly always found invalid, while reclassifications
of parcels over thirteen acres are nearly always found valid,
id., as Ziegler notes, the relative size of the parcel is
invariably considered by courts. Ziegler, supra, § 28.04, at
28-14. One court found spot zoning where the reclassified
parcel was 635 acres in an affected area of 7,680 acres.
Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489,
497 (1971).
Nor does the reclassification of more than one parcel
negate the possibility of finding spot zoning. Ziegler, supra,
§ 28.04, at 28-15. In this case, there was some evidence that
11 There may be an immaterial discrepancy about the size of the reclassified area.

There was testimony Ordinance 92-18 affected 7.29 acres, but the trial court’s
memorandum decision stated the affected lots contained about 7.44 acres. That
decision did not state that the exact size of the parcel was significant to its
determination that the amendment does not constitute illegal spot zoning.

292

the reclassified area may have been expanded to avoid a
charge of spot zoning. Other courts have invalidated
zoning amendments after finding that a multiple-parcel
reclassification was a subterfuge to obscure the actual
purpose of special treatment for a particular landowner. Id.
See Atherton v. Selectmen of Bourne, 337 Mass. 250, 149 N.E.2d
232, 235 (1958) (holding that the amendment is “no less
‘spot zoning’ by the inclusion of the additional six lots than
it would be without them” where proponents of a zoning
change apparently anticipated a charge of spot zoning and
enlarged the area to include the three lots on either side of
the lot in question).
Homer’s CBD is over 400 acres; the reclassified area is 7.29
acres. The CBD appears to contain approximately 500 lots;
the reclassified area contains 13 lots. A comparison of the
size of the area rezoned and the size of the entire CBD is
not in itself sufficient to persuade us that the City’s decision
was the product of prejudice, arbitrary decision-making, or
improper motives. South Anchorage Concerned Coalition v.
Coffey, 862 P.2d 168, 174 (Alaska 1993).
Further, it is not necessarily appropriate to compare the
area of the affected lots with that of the entire CBD. The
comprehensive plan recognized the possibility of subzones.
The City considered significant portions of the CBD to be
inappropriate for automobile sales and services, particularly
Pioneer Avenue and the Bypass. Subtracting those areas
from the entire CBD, the reclassified area on Main Street is
a relatively larger part of the remaining CBD.
Thus, having considered the relative size of the rezoned
area in determining whether Ordinance 92-18 constituted
spot zoning, we hold that the size of the area rezoned does
not require a finding of spot zoning given other factors
supporting a contrary conclusion. We conclude that the
superior court did not err in finding that Ordinance 92-18
does not constitute spot zoning.B. Claim of Conflict of
InterestHomer City Council member Brian Sweiven owned

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one of the thirteen lots in the reclassified area. He was one
of nine owners directly affected by Ordinance 92-18. It
appears that it was Sweiven who first recommended to the
commission that the rezone apply only to Main Street. An
article in the Homer News was titled “Sweiven proposes
commercial zoning for downtown Homer.” The article
refers to the idea of rezoning Main Street as “Sweiven’s
proposal.” Griswold alleges that Sweiven had a
disqualifying conflict of interest under Homer municipal
law and that his participation in the adoption of Ordinance
92-18 therefore invalidates the Ordinance, even though
Sweiven’s vote was not necessary for passage. The superior
court found that Sweiven did not have a disqualifying
conflict of interest and that even if he had, his participation
in the deliberations and vote would not invalidate
Ordinance 92-18.
[The court concluded there was a disqualifying conflict of
interest under the ordinance but that whether the vote
should be invalidated required analysis of facts not yet
found.]
We therefore remand so that the superior court, applying
the analysis discussed above, can determine whether
Ordinance 92-18 must be invalidated.C. Public Interest
Litigant StatusThe superior court found that Griswold was
not a public interest litigant. That finding was clearly
erroneous because Griswold met all four criteria of a public
interest litigant in this case: (1) his lawsuit was designed to
effectuate strong public policies; (2) if Griswold succeeded,
numerous people would have benefited from the lawsuit;
(3) only a private party could be expected to bring the
action; and (4) Griswold lacked sufficient economic
incentive to bring the lawsuit if it did not also involve issues
of general importance….
IV. CONCLUSION

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We hold that Ordinance 92-18 does not constitute spot
zoning, and consequently AFFIRM that aspect of the
judgment below. We hold, however, that council member
Sweiven had a conflict of interest which should have
disqualified him from participating in consideration of the
Ordinance. We consequently REVERSE the court’s finding
that there was no conflict of interest and REMAND so the
superior court can determine whether the Ordinance must
be invalidated. We also REVERSE that portion of the
judgment imposing costs and fees on Griswold.
RABINOWITZ, JUSTICE, dissenting in part.I believe it is of
particular significance that Sweiven participated in the
discussion of and voted for Ordinance 92-18.
….
Rather than remand this issue, I would hold Ordinance
92-18 invalid because of council member Sweiven’s
participation.12

12 I note my agreement with the court’s other holdings.

295

Covington v. The Town of Apex
108 N.C. App. 231 (N.C. Ct. App. 1992)
Grimes and Teich by S. Janson Grimes, Asheville, for
plaintiffs-appellees.
Holleman and Stam by Henry C. Fordham, Jr., Apex, for
defendants-appellants.
Johnson, Judge.
On 26 March 1990, C & D Investment Company, Inc.
(hereinafter C & D) petitioned the Town of Apex to rezone
the property located at 212 S. Salem Street, Apex, N.C.
from Office & Institutional-1 to Conditional Use Business2. The rezoning was sought to permit electronic assembly
by a prospective tenant, A & E Electronic, Inc. (hereinafter
A & E), within the former post office building located on
the subject property.
The subject property is bordered by property zoned as
follows: to its immediate north by property zoned Office to
its immediate east by property zoned Business-1; to its
immediate southeast by property zoned Business-2; to its
immediate south by property zoned Office & Institutional1; and to its immediate west by property zoned Residential6.
On 7 May 1990, the Apex Planning Board held a public
hearing on the rezoning application. The Apex Planning
Director, David Rowland, recommended approval of the
rezoning petition in his memorandum given to the
Planning Board and Board of Commissioners. On 4 June
1990, the Planning Board voted 5-2 to recommend
approval of the rezoning.
On 10 May 1990, several persons, including Donald W.
Grimes who resides next to the subject property, submitted
a valid protest petition to the Town of Apex. The Apex
Board of Commissioners held public hearings on 15 May
1990 and 5 June 1990. After hearing the testimony, the

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board voted 4-1 to amend the zoning ordinance to rezone
the subject property to a Conditional Use Business-2
district with the condition that use of the tract be restricted
to the uses permitted in Office and Institutional-1 plus the
use of electronic assembly. The mayor executed the
ordinance effecting the rezoning on 19 June 1990. Plaintiffs
instituted this action.
Plaintiffs filed suit in the Superior Court of Wake County.
After defendants answered denying plaintiffs’ allegations,
plaintiffs filed a motion for summary judgment.
Defendants also filed a motion for summary judgment. The
Honorable Donald W. Stephens, Superior Court Judge,
granted plaintiffs’ motion and denied defendants’ motion.
Defendants, the Town of Apex and the named
commissioners, gave timely notice of appeal.
….
“Zoning, as a definitional matter, is the regulation by a local
governmental entity of the use of land within a given
community, and of the buildings and structures which may
be located thereon.” Chrismon v. Guilford County, 322 N.C.
611, 617, 370 S.E.2d 579, 583 (1988). “A county’s
legislative body has authority to rezone when reasonably
necessary to do so in the interests of the public health,
safety, morals or general welfare; ordinarily the only
limitation upon this authority is that it may not be exercised
arbitrarily or capriciously.” Nelson v. Burlington, 80 N.C.App.
285, 287, 341 S.E.2d 739, 740-741 (1986). “A duly adopted
zoning ordinance is presumed to be valid, and the burden is
upon the plaintiff to establish its invalidity.” Id.
….
“In this case and indeed in any spot zoning case in North
Carolina courts, two questions must be addressed by the
fact finder: (1) did the zoning activity in the case constitute
spot zoning as our courts have defined that term; and (2) if
so, did the zoning authority make a clear showing of a

297

reasonable basis for the zoning.” Chrismon, 322 N.C. at 625,
370 S.E.2d at 588.
The North Carolina Supreme Court has defined spot
zoning as
A zoning ordinance, or amendment
which singles out and reclassifies a
relatively small tract owned by a single
person and surrounded by a much
larger area uniformly zoned … so as to
relieve the small tract from restrictions
to which the rest of the area is
subjected is called spot zoning.
Dale v. Town of Columbus, 101 N.C.App. 335, 338, 399 S.E.2d
350, 352 (1991); see Blades v. City of Raleigh, 280 N.C. 531,
187 S.E.2d 35 (1972).
An essential element of spot zoning is a small tract of land
owned by a single person and surrounded by a much larger
area uniformly zoned. Plaintiffs’ supporting materials
showed that the parcel of land was a small rectangular lot,
100’ × 275’ in size, and owned by a single owner, C & D.
They also presented materials which showed that the vast
majority of the land surrounding the subject tract is
uniformly zoned.
The Court of Appeals, in Mahaffey v. Forsyth County, 99
N.C.App. 676, 394 S.E.2d 203 (1990), aff’d., 328 N.C. 323,
401 S.E.2d 365 (1991), stated that a tract must be examined
relative to the vast majority ofthe land immediately
surrounding it, not just a small isolated pocket of property.
The vast majority of the land in Mahaffey was zoned
Residential-5 and Residential-6 while property 700 feet
down the highway was zoned Business-1. The Court found
that the property zoned Business-1 was an isolated pocket
of spot zoning and held that the vast majority of the
property surrounding the subject tract, absent the isolated

298

pocket of spot zoning, was uniformly zoned. Mahaffey, 99
N.C.App. at 681, 394 S.E.2d at 206.
In the case sub judice, plaintiffs used zoning maps to show
that the subject tract is surrounded by a vast majority of
property zoned either Residential-6 or Office &
Institutional. Property adjacent to the subject tract is zoned
Business-1 and Business-2. The two isolated pockets of
property zoned Business-1 and Business-2, at the time they
were implemented, were both surrounded by Residential-6
and Office & Institutional zoning. The properties zoned
Business-1 and Business-2 are themselves examples of spot
zoning. On the basis that the property is surrounded by
property uniformly zoned Residential-6 and Office &
Institutional, the zoning ordinance enacted by the Town of
Apex is spot zoning as defined by the North Carolina
Courts.
The North Carolina Supreme Court, however, has
established that spot zoning is not invalid per se. Chrismon,
322 N.C. at 627, 370 S.E.2d at 589. If there is a reasonable
basis for the spot zoning in question, then the spot zoning
is legal and therefore valid. “The practice [of spot zoning] is
not invalid per se but is beyond the authority of the
municipality or county and therefore void only in the
absence of a reasonable basis.” Id.
The North Carolina Supreme Court has enumerated several
factors that are relevant to a showing of the existence of a
sufficient reasonable basis for spot zoning.
1. The size of the tract in question.
2. The compatibility of the disputed action with an
existing comprehensive zoning plan.
3. The benefits and detriments for the owner, his
neighbors and the surrounding community.

299

4. The relationship of the uses envisioned under the
new zoning and the uses currently present in adjacent
tracts.
Chrismon, 322 N.C. at 628, 370 S.E.2d at 589.
The first factor is the size of the tract in question. Plaintiffs
provided evidence that the tract is a single rectangular lot,
100’ × 275’ in size, with a one-story masonry building
containing 3,780 square feet of net interior floor space. The
lot is surrounded by residences on three sides and is
uniformly zoned Residential-6 and Office & Institutional.
The second factor is the compatibility of the disputed
action with an existing comprehensive zoning plan.
“Zoning generally must be accomplished in accordance
with a comprehensive plan in order to promote the general
welfare and serve the purpose of the enabling statute.”
Alderman v. Chatham County, 89 N.C.App. 610, 615-616, 366
S.E.2d 885, 889, disc. review denied, 323 N.C. 171, 373 S.E.2d
103 (1988). The North Carolina General Statutes § 153A341 (1983) addresses this issue:
Zoning regulations shall be made in
accordance with a comprehensive
plan[.] The regulations shall be made
with reasonable consideration as to,
among other things, the character of
the district and its peculiar suitability
for particular uses, and with a view to
conserving the value of buildings and
encouraging the most appropriate use
of land through the county….
In the present case, a comprehensive zoning plan entitled
2010 Land Use Plan was adopted on 5 December 1989.
The plan list several guidelines for future development in
the Town of Apex. The two that are relevant to this appeal
are the following: (1) Use buffer areas and transitional
zoning to protect adjacent existing residential development

300

and (2) Industrial uses should be located adjacent to or near
the major railroad corridors and away from residential
areas. The 2010 land Use Map also provides that South
Salem Street should continue to be zoned and developed
for Office & Institutional uses to provide a transition
between residential and more intensive uses. Although the
property is zoned Conditional Use Business-2 with the
same features as Office & Institutional, the uses to be
employed are industrial in nature. The Town of Apex
enacted a zoning ordinance in direct contravention of its
comprehensive zoning plan.
The third relevant factor is the benefits and detriments to
the owner, his neighbors and the surrounding community.
The standard is not the advantage or
detriment to particular neighboring
landowners, but rather the effect upon
the entire community as a social,
economic and political unit. That
which makes for the exclusive and
preferential benefit of such particular
landowner, with no relation to the
community as a whole, is not a valid
exercise of this sovereign power.
Chrismon, 322 N.C. at 629, 370 S.E.2d at 590, citing
Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150,
198 A. 225, 233 (1938). The benefits to the owner are
monetary in nature. When C & D leased the premises to
the postal service in December 1989, the rent was
$8,000.00 per year. The lease between C & D and A & E,
dated 1 June 1990, fixed the rent at $18,000.00 per year. By
leasing the premises to A & E, C & D will receive a
$10,000.00 increase in rental profits. C & D will also benefit
from the special conditions of the permit which required
additional streetscaping to be performed by the tenant
around the subject property. The zoning change presents
no detriment to C & D.

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The only benefit to the community provided by the zoning
change is one of an aesthetic nature. Again, the prospective
tenant, in accordance with the conditions listed in the
zoning ordinance, is obligated to perform streetscaping
around the premises. No jobs will be created by the zoning
change nor services provided which would specifically
benefit the community. The main detriment to the
community would be the placement of an industrial use in
an area where the property is used for residential and
professional purposes.
In Chrismon, the Court considered the community’s support
of the rezoning ordinance in order to assess the benefit of
the zoning change to the community. In the case sub judice,
there was no support for the purported zoning change. In
fact, sixty Apex residents signed a protest petition in
opposition to the proposed zoning change.
The final factor listed by the Chrismon Court in determining
whether or not a reasonable basis exists for spot zoning
focuses on the compatibility of the uses envisioned in the
rezoned tract with the uses already present in adjacent
tracts. The use envisioned under the new zoning change is
electronic assembly. Present uses of property surrounding
the subject tract include: residential dwellings on three
sides, medical offices, a bank, a pharmacy and a jewelry
store.
Plaintiffs correctly contend that the use envisioned by A &
E is a drastic change from the uses already present in the
surrounding area. Electronic assembly is manufacturing
which is totally different from the various uses that are
already present in the surrounding areas. Ann Sears,
president of A & E, stated in her deposition that at various
times automobiles, vans and tractor trailer trucks would
create a flow of traffic in and out of the premises. This type
of activity would totally destroy the tenor of the basically
residential and professional area. In Chrismon, the Court
declared that “rezoning of a parcel in an old and well

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established residential district to a commercial or industrial
district would be clearly objectionable.” 322 N.C. at 631,
370 S.E.2d at 591.
For the foregoing reasons, the trial court correctly
granted the plaintiffs’ motion for summary judgment and
denied defendants’ motion for summary judgment.
Accordingly, we affirm
Chrismon v. Guildford County
322 N.C. 611 (1988)
Gunn & Messick by Paul S. Messick, Jr., Pittsboro, for
plaintiffs-appellees.
Samuel Moore, Deputy Co. Atty., Greensboro, for
defendants-appellants Guilford County and Members of
the Bd. of Com’rs of Guilford County.
Ralph A. Walker and Osteen, Adams & Tilley by William L.
Osteen, Greensboro, for defendant-appellant Bruce Clapp.
Thomas A. McCormick, Jr., City Atty., City of Raleigh by
Ira J. Botvinick, Deputy City Atty., Raleigh, and Jesse L.
Warren, City Atty., Greensboro, and Henry W. Underhill,
Jr., City Atty., Charlotte, amici curiae.MEYER, JUSTICE.This
was an action by plaintiffs for a declaratory judgment with
regard to an amendment to the Guilford County, North
Carolina, zoning ordinance. Specifically, plaintiffs sought a
judgment declaring that the amendment to the ordinance
adopted 20 December 1982 rezoning defendant Bruce
Clapp’s 8.57 acres of land was unlawful and therefore void.
The principal issue presented on this appeal is whether the
trial court committed reversible error in affirming the
validity of the rezoning in question. The Court of Appeals
reversed, holding, first, that the rezoning in question
constituted illegal “spot zoning” and, second, that it also
constituted illegal “contract zoning.” We hold that the
Court of Appeals erred in both of these conclusions, and
accordingly, we reverse.

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The facts underlying the case are undisputed. Defendant
Bruce Clapp (who is not related to defendant Paul Clapp, a
member of the Guilford County Board of Commissioners)
had been operating a business on a 3.18-acre tract of
property adjacent to his residence in Rock Creek
Township, Guilford County, since 1948. Mr. Clapp’s
business consisted, first, of buying, drying, storing, and
selling grain and, second, of selling and distributing lime,
fertilizer, pesticides, and other agricultural chemicals. The
distinction between these two principal elements of Mr.
Clapp’s business is important to the disposition of this case.
In 1964, Guilford County adopted a comprehensive zoning
ordinance. The ordinance zoned Mr. Clapp’s 3.18-acre
tract, as well as an extensive area surrounding his tract, as
“A-1 Agricultural” (hereinafter “A-1”). Under this
particular zoning classification, one element of the
business— namely, the grain drying and storing
operation—constituted a permitted use. Significantly,
however, the sale and distribution of the lime, fertilizer,
pesticides, and other agricultural chemicals were not uses
permitted by the A-1 classification. However, because this
latter activity pre-existed the ordinance, Mr. Clapp was
allowed to continue to sell agricultural chemicals on the
3.18-acre tract adjacent to his own home. Under the
ordinance, though such sales constituted a nonconforming
use, the sales could be carried on, so long as they were not
expanded.
In 1969, plaintiffs William and Evelyn Chrismon bought a
tract of land from Mr. Clapp and built a home there.
Plaintiffs’ lot is located at the south side of the intersection
of North Carolina Highway 61 and Gun Shop Road.
Highway 61 runs north and south, while Gun Shop Road, a
small, unpaved road, begins at Highway 61 and runs east.
Mr. Clapp’s residence is located on the north side of the
intersection, directly across Gun Shop Road from plaintiffs’
residence. Adjacent to plaintiffs’ lot is an additional 5.06-

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acre tract, also owned by Mr. Clapp. Prior to 1980, that
tract had been used by its owner for the growing of
tobacco.
Beginning in 1980, however, Mr. Clapp moved some
portion of his business operation from the 3.18-acre tract
north of Gun Shop Road to the 5.06-acre tract south of
Gun Shop Road, directly adjacent to plaintiffs’ lot.
Subsequently, Mr. Clapp constructed some new buildings
on this larger tract, erected several grain bins, and generally
enlarged his operation. Concerned by the increased noise,
dust, and traffic caused by Mr. Clapp’s expansion, plaintiffs
filed a complaint with the Guilford County Inspections
Department. The Inspections Department subsequently
notified Mr. Clapp, by letter dated 22 July 1982, that the
expansion of the agricultural chemical operation to the larger
tract adjacent to plaintiffs’ lot constituted an impermissible
expansion of a nonconforming use. The same letter
informed Mr. Clapp further that, though his activity was
impermissible under the ordinance, should he so desire, he
could request a rezoning of the property.
Shortly thereafter, Mr. Clapp applied to have both of the
tracts in question, the 3.18-acre tract north of Gun Shop
Road and the 5.06-acre tract south of Gun Shop Road,
rezoned from A-1 to “Conditional Use Industrial District”
(hereinafter CU-M-2).1 He also applied for a conditional
use permit, specifying in the application that he would use
the property as it was then being used and listing those
improvements he would like to make in the next five years.
Under the CU-M-2 classification, Clapp’s agricultural
chemical operation would become a permitted use upon
1 The 3.18-acre tract and the 5.06-acre tract, taken together, do not correspond

precisely to the 8.57-acre total indicated in Mr. Clapp’s rezoning request. The
record reveals that the additional .33 acre in question corresponds to land adjacent
to one of the tracts for which Mr. Clapp had an option to buy. We make this
explanation for the sake of clarity only; it is not relevant to the disposition of the
case.

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the issuance of the conditional use permit. The Guilford
County Planning Board met on 8 September 1982 and
voted to approve the recommendation of the Planning
Division that the property be rezoned consistent with Mr.
Clapp’s request.
On 20 December 1982, pursuant to appropriate notice, the
Guilford County Board of Commissioners held a public
hearing concerning Mr. Clapp’s rezoning application.
Members of the Board heard statements from Mr. Clapp,
from plaintiffs, and, also, from plaintiffs’ attorney. Several
additional persons had previously spoken in favor of Mr.
Clapp’s rezoning request at earlier Board meetings, stating
that Mr. Clapp’s business provided a service to the farmers
in the immediate vicinity. The Board had also been
presented with a petition signed by eighty-eight persons
favoring the rezoning. Having considered the matter, the
Board members voted to rezone the tracts in question from
A-1 to CU-M-2, and as a part of the same resolution, they
also voted to approve the conditional use permit
application.
Pursuant to this decision by the County to rezone the
property in question, plaintiffs brought this action seeking
to have both the zoning amendment and the conditional
use permit declared invalid. After a trial without a jury, the
trial court found, among other things, that the sale and
distribution of the agricultural chemicals were uses
compatible with the agricultural needs of the surrounding
area. The trial court concluded further that the rezoning
was neither “spot zoning” nor “contract zoning” and also
that the County had not acted arbitrarily in making its
decision. The trial court made neither findings of fact nor
conclusions of law with regard to the issuance of the
conditional use permit.
As indicated above, the Court of Appeals reversed the
decision of the trial court. It held, first, that the rezoning at
issue in this case—namely, the rezoning of Mr. Clapp’s 8.57

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acres from A-1 to CU-M-2—constituted an illegal form of
“spot zoning” and was therefore void. It so held for three
principal reasons: (1) the rezoning was not called for by any
change of conditions on the land; (2) the rezoning was not
called for by the character of the district and the particular
characteristics of the area being rezoned; and (3) the
rezoning was not called for by the classification and use of
nearby land. The Court of Appeals further held that the
mere fact that the uses actually authorized were not, in and
of themselves, incompatible with the general area was not
sufficient to support the trial court’s finding of no illegal
spot zoning on these facts.
The Court of Appeals held, second, that the rezoning in
question also constituted illegal “contract zoning” and was
therefore also void for that alternative reason. Here, stated
the Court of Appeals, the rezoning was accomplished upon
the assurance that Mr. Clapp would submit an application
for a conditional use permit specifying that he would use
the property only in a certain manner. The Court of
Appeals concluded that, in essence, the rezoning here was
accomplished through a bargain between the applicant and
the Board rather than through a proper and valid exercise
of Guilford County’s legislative discretion. According to
the Court of Appeals, this activity constituted illegal
“contract zoning” and was therefore void.
Pursuant to N.C.G.S. § 7A-31, and because this Court was
convinced that this cause involves legal principles of major
significance to the jurisprudence of this State, we allowed
defendants’ petition for discretionary review of the Court
of Appeals’ decision. The questions plainly before us are
these: first, did the rezoning of defendant Clapp’s tract
from A-1 to CU-M-2 by the Guilford County Board of
Commissioners constitute illegal spot zoning; and second,
did the same rezoning constitute illegal contract zoning.
The Court of Appeals answered each question in the

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affirmative. We conclude that the correct answer to both
questions is “no.”
….
We turn now to the question of spot zoning. As we noted
above, in its opinion below, the Court of Appeals held that
the rezoning at issue here—namely, the rezoning of Mr.
Clapp’s two tracts from A-1 to CU-M-2—constituted an
illegal form of “spot zoning” and was therefore void. In
arriving at its holding, the Court of Appeals concluded that
Guilford County had “failed to show a reasonable basis”
for the rezoning in question and cited three principal
reasons for its conclusion: (1) the rezoning was not called
for by any change of conditions on the land; (2) the
rezoning was not called for by the character of the district
and the particular characteristics of the area being rezoned;
and (3) the rezoning was not called for by the classification
and use of nearby land.
While this Court agrees with some portions of the analysis
employed by the Court of Appeals, we must disagree with
that court’s final conclusion. In our firmly held view, the
rezoning accomplished in this case, while admittedly
constituting a form of spot zoning, constituted a legal, and
not an illegal form of spot zoning. Notwithstanding the
Court of Appeals’ conclusion to the contrary, we find that,
on the facts of this case, the county did show a reasonable
basis for the rezoning at issue. Moreover, while this is a
case of first impression in that it involves the practice of
conditional use zoning, we find our result to be consistent
with related zoning cases from other jurisdictions.
Accordingly, the Court of Appeals is reversed on this
question.
We note as an initial matter that there is substantial
disagreement amongst jurisdictions across the nation as to
both the proper definition of and the legal significance of
the term “spot zoning.” Jurisdictions have essentially

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divided into two distinct camps. One group, the majority of
jurisdictions, regards the term “spot zoning” as a legal term
of art referring to a practice which is per se invalid. See 2 A.
Rathkopf & D. Rathkopf, The Law of Zoning and Planning §
28.01 (4th ed. 1987); 1 R. Anderson, American Law of Zoning
§ 5.12 (3d ed. 1986); 2 E. Yokley, Zoning Law and Practice §
13-3 (4th ed. 1978). In such jurisdictions, a judicial
determination that a given rezoning action constitutes spot
zoning is, ipso facto, a determination that the rezoning
action is void.
The position of this first group has been described by one
commentator as follows:
Spot zoning amendments are those
which by their terms single out a
particular lot or parcel of land, usually
small in relative size, and place it in an
area the land use pattern of which is
inconsistent with the small lot or
parcel so placed, thus projecting an
inharmonious land use pattern. Such
amendments are usually triggered by
efforts to secure special benefits for
particular property owners, without
proper regard for the rights of adjacent
landowners. These are the real spot
zoning situations. Under no circumstances
could the tag of validity be attached thereto.
2 E. Yokley, Zoning Law and Practice § 13-3 at 207 (4th ed.
1978) (emphasis added).
A somewhat smaller group of jurisdictions, including our
own, has taken a different approach. In these jurisdictions,
it has been stated that “spot zoning” is a descriptive term
merely, rather than a legal term of art, and that spot zoning
practices may be valid or invalid depending upon the facts
of the specific case. See 2 E. Yokley, Zoning Law and Practice
§ 13-5 (4th ed. 1978); 2 A. Rathkopf & D. Rathkopf, The

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Law of Zoning and Planning § 28.01 n. 1 (4th ed. 1987). See also
Tennison v. Shomette, 38 Md.App. 1, 379 A.2d 187 (1977);
Save Our Rural Environment v. Snohomish County, 99 Wash.2d
363, 662 P.2d 816 (1983) (holding that the practice of spot
zoning is not invalid per se). Unlike in the majority of
jurisdictions, in these jurisdictions, a spot zoning case
poses, not merely the lone question of whether what
occurred on the facts constituted spot zoning. It also poses
the additional question of whether the zoning action, if
spot zoning, was of the legal or illegal variety.
We are firmly amongst this latter group of jurisdictions
which has held that spot zoning is not invalid per se. For
example, in this Court’s opinion in Blades v. City of Raleigh,
280 N.C. 531, 187 S.E.2d 35 (1972), we defined “spot
zoning” as follows:
A zoning ordinance, or amendment,
which singles out and reclassifies a
relatively small tract owned by a single
person and surrounded by a much
larger area uniformly zoned, so as to
impose upon the small tract greater
restrictions than those imposed upon
the larger area, or so as to relieve the
small tract from restrictions to which
the rest of the area is subjected, is
called “spot zoning.”
Id. at 549, 187 S.E.2d at 45. However, having so defined
the practice, we hastened to add that the practice is not
invalid per se but, rather, that it is beyond the authority of
the municipality or county and therefore void only “in the
absence of a clear showing of a reasonable basis” therefor.
Id.
Accordingly, in this case, and indeed in any spot zoning
case in North Carolina courts, two questions must be
addressed by the finder of fact: (1) did the zoning activity in

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the case constitute spot zoning as our courts have defined
that term; and (2) if so, did the zoning authority make a
clear showing of a reasonable basis for the zoning. In the
case at bar, since the action by the Board was so clearly
spot zoning under the Blades definition, this two-part
inquiry can quickly be narrowed to the lone question of
whether there is a clear showing of a reasonable basis. As
the Court of Appeals quite correctly stated in its opinion
below in this case:
The rezoning amendment here clearly
constitutes spot zoning. The rezoned
area was only 8.57 acres and was
uniformly surrounded by property
zoned A-1. The remaining question then is
whether there was a reasonable basis for the
county’s action in spot zoning the 8.57 acre
tract.
Chrismon v. Guilford County, 85 N.C. App. 211, 215, 354
S.E.2d 309, 312 (emphasis added).
It is at this point, however, that we differ with the decision
of the Court of Appeals. As we stated above, in its opinion,
the Court of Appeals concluded, after considering several
different factors, that the Board of County Commissioners
had failed to clearly demonstrate a reasonable basis for its
zoning action and, further, that the action was therefore
void. With due respect, we find the analysis employed by
the Court of Appeals to be flawed. In the view of this
Court, the Board did in fact clearly show a reasonable basis
for its rezoning of Mr. Clapp’s two tracts from A-1 to CUM-2. We are particularly persuaded, first, by the degree of
public benefit created by the zoning action here and,
second, by the similarity of the proposed use of the tracts
under the new conditional use zone to the uses in the
surrounding A-1 areas.

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At the outset, we note that a judicial determination as to
the existence or nonexistence of a sufficient reasonable
basis in the context of spot zoning is, and must be, the
“product of a complex of factors.” 1 R. Anderson, American
Law of Zoning § 5.13 at 364 (3d ed. 1986). The possible
“factors” are numerous and flexible, and they exist to
provide guidelines for a judicial balancing of interests. 2 A.
Rathkopf & D. Rathkopf, The Law of Zoning and Planning §
28.01 (4th ed. 1987). Among the factors relevant to this
judicial balancing are the size of the tract in question; the
compatibility of the disputed zoning action with an existing
comprehensive zoning plan; the benefits and detriments
resulting from the zoning action for the owner of the newly
zoned property, his neighbors, and the surrounding
community; and the relationship between the uses
envisioned under the new zoning and the uses currently
present in adjacent tracts. See id.; 1 R. Anderson, American
Law of Zoning § 5.13 (3d ed. 1986). Once again, the criteria
are flexible, and the specific analysis used depends on the
facts and circumstances of a particular case. 2 A. Rathkopf
& D. Rathkopf, The Law of Planning and Zoning § 28.01 (4th
ed. 1987).
Turning our attention to the case before us, we find the
latter two of the above-mentioned factors to argue
forcefully for the proposition that the rezoning activity here
was supported by a reasonable basis. First, the relative
benefits and detriments accruing to Mr. Clapp, Mr.
Chrismon, and the surrounding area as a result of the
rezoning are instructive. It has been stated that the true vice
of illegal spot zoning is in its inevitable effect of granting a
discriminatory benefit to one landowner and a
corresponding detriment to the neighbors or the
community without adequate public advantage or
justification. 2 E. Yokley, Zoning Law and Practice § 13-3 (4th
ed. 1978); see Smith v. Skagit County, 75 Wash.2d 715, 453
P.2d 832 (1969). Accordingly, while spot zoning which

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creates a great benefit for the owner of the rezoned
property with only an accompanying detriment and no
accompanying benefit to the community or to the public
interest may well be illegal, spot zoning which provides a
service needed in the community in addition to benefitting
the landowner may be proper. See 2 E. Yokley, Zoning Law
and Practice § 13-3 (4th ed. 1978).
Courts from other jurisdictions have held, for example, that
the mere fact that an area is rezoned at the request of a
single owner and is of greater benefit to him than to others
does not make out a case of illegal spot zoning if there is a
public need for it. See, e.g., Jaffe v. City of Davenport, 179 N.W.2d
554 (Iowa 1970); Sweeney v. City of Dover, 108 N.H. 307, 234
A.2d 521 (1967). The Supreme Court of New Jersey long
ago announced a standard for properly weighing the
various benefits and detriments created by disputed zoning
activity. In a statement with which this Court agrees, that
court stated as follows:
The standard is not the advantage or
detriment to particular neighboring
landowners, but rather the effect upon
the entire community as a social,
economic and political unit. That which
makes for the exclusive and preferential
benefit of such particular landowner, with no
relation to the community as a whole, is not a
valid exercise of this sovereign power.
Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 150,
198 A. 225, 233 (1938) (emphasis added).
Turning to the facts of the case at bar, it is manifest that
Mr. Clapp, the owner of the tracts rezoned in this case, has
reaped a benefit by the Board’s action. Specifically, by
virtue of the Board’s decision to rezone the tracts from A-1
to CU-M-2, Mr. Clapp will be able to carry on the
otherwise illegal storage and sale of agricultural chemicals

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on both of his two tracts along Gun Shop Road in rural
Guilford County. It is also beyond question that the
plaintiffs in this case, the Chrismons, have simultaneously
sustained a detriment. They, of course, would prefer that
Mr. Clapp carry on his agricultural chemical operation
somewhere other than next door to their home.
Notwithstanding this, and consistent with the authority
excerpted above, it is important, in our view, to consider
this in the added context of both the benefits of the
rezoning for the surrounding community and for the public
interest.
As the Court of Appeals quite correctly conceded in its
opinion below, “[t]he evidence clearly shows that Mr.
Clapp’s operation is beneficial to area farmers.” Chrismon v.
Guilford County, 85 N.C.App. 211, 218, 354 S.E.2d 309, 31314. The record reveals that members of the farming
community surrounding the disputed land spoke in favor
of the rezoning action during a meeting of the Guilford
County Board of Commissioners prior to the ultimate
meeting of 20 December 1982. Moreover, the record also
reveals that, at one of the Board’s meetings concerning the
proposed rezoning, the Board was presented with a petition
signed by some eighty-eight area residents favoring the
action. While this Court understands that it was the
Chrismons alone who lived next door to the operation, we
do note that it was the Chrismons, and no one else, who
spoke up against the rezoning.
In addition to this record evidence of substantial
community support for Mr. Clapp’s proposed use, there is
additional and more objective evidence that the operation
constitutes a use valuable to the surrounding community.
The area in the vicinity of Mr. Clapp’s operation is zoned
for some miles as exclusively A-1 and is used by many for
farming activities. Quite independent of the indications
from members of the community that they have a
subjective need for Mr. Clapp’s services, it cannot be

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gainsaid that services of this type— namely, the storage and
sale of pesticides, lime, and fertilizer—are valuable in a
farming community such as that here. It has been held
elsewhere that community-wide need for commercial or
industrial facilities usually takes precedence over the
objections of several adjacent property owners. See Citizens
Ass’n of Georgetown, Inc. v. D.C. Zoning Comm’n, 402 A.2d 36
(D.C. App.1979). We believe that to be the case here.
A second factor that we find important in the
determination of a reasonable basis for the spot zoning
here is the similarity between the proposed use of the tracts
under the new conditional use zone and the uses already
present in surrounding areas. In its opinion in this case, the
Court of Appeals stated as follows:
The only finding of fact which would
arguably allow the trial court to
conclude that the rezoning was
supported by a reasonable basis is that
the uses actually authorized were not
incompatible with the general area…. We
cannot agree.
Chrismon v. Guilford County, 85 N.C. App. 211, 218, 354
S.E.2d 309, 313-14 (emphasis added). We disagree strongly
with the Court of Appeals on this point. In our view, even
in the wake of the rezoning of Mr. Clapp’s tracts to CU-M2, the uses present in the rezoned area and the surrounding
A-1 area will remain, by virtue of the restrictions inherent
in conditional use zoning, quite similar. At the very least,
the differences in the uses will certainly not be vast, as is
often the situation in a case of illegal spot zoning.
The compatibility of the uses envisioned in the rezoned
tract with the uses already present in surrounding areas is
considered an important factor in determining the validity
of a spot zoning action. 2 A. Rathkopf & D. Rathkopf, The
Law of Zoning and Planning § 28.04 (4th ed. 1987); 1 R.

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Anderson, American Law of Zoning § 5.16 (3d ed. 1986). One
commentator addressed this factor as follows:
In determining whether a zoning
amendment constitutes spot zoning,
the courts will consider the character
of the area which surrounds the parcel
reclassified by the amendment. Most
likely to be found invalid is an amendment
which reclassifies land in a manner
inconsistent
with
the
surrounding
neighborhood.
1 R. Anderson, American Law of Zoning § 5.16 at 383 (3d ed.
1986) (emphasis added). One court has described the evil
to be avoided as “an attempt to wrench a single small lot
from its environment and give it a new rating which disturbs
the tenor of the neighborhood.” Magnin v. Zoning Commission, 145
Conn. 26, 28, 138 A.2d 522, 523 (1958) (emphasis added).
We see no such disturbance on the facts before us.
While significant disturbances such as the rezoning of a
parcel in an old and well-established residential district to a
commercial or industrial district would clearly be
objectionable, see, e.g., Mraz v. County Comm’rs of Cecil County,
291 Md. 81, 433 A.2d 771 (1981), this is clearly not such a
case. We note first that, in actuality, the rezoning of the
tracts in question from A-1 to CU-M-2, with all of the
attendant restrictions and conditions, really represents very
little change. The A-1 classification, as we stated earlier in
our review of the facts of this case, allows all of Mr. Clapp’s
current operation except for the storage and sale of
agricultural chemicals. The most noticeable activity, and the
activity we suspect the plaintiffs would most like to be rid
of—namely, the storage and sale of grain—is a conforming
use under the A-1 classification and can legally continue
irrespective of any zoning change. In addition, the
conditions accompanying the disputed rezoning in the
form of the conditional use permit essentially restrict Mr.

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Clapp to the very activities in which he is currently
engaging—the storage and sale of agricultural chemicals—
and nothing more.
Second, this is simply not a situation like that alluded to
above in which a radically different land use, by virtue of a
zoning action, appears in the midst of a uniform and
drastically distinct area. No parcel has been “wrenched” out
of the Guilford County landscape and rezoned in a manner
that “disturbs the tenor of the neighborhood.” As we have
noted on several occasions, the area surrounding the tracts
in question is uniformly zoned as A-1 agricultural. The A-1
district, a general use district in the Guilford County
comprehensive zoning scheme, provides for a wide variety
of uses. Conforming uses under the A-1 district include
such disparate uses as single family dwellings, sawmills, fish
or fowl hatcheries, farms, hospitals, and grain mills like the
one Mr. Clapp was in fact operating here. In our view, the
use of the newly rezoned tracts, pursuant to a CU-M-2
assignment, to store and sell agricultural chemicals is simply
not the sort of drastic change from possible surrounding
uses which constitutes illegal spot zoning.
Our research has revealed a case from another jurisdiction,
Earle v. McCarthy, 28 Or.App. 539, 560 P.2d 665 (1977),
which is strikingly similar on the facts to that before us
today. While the court was not specifically called upon
there to address a spot zoning challenge, it upheld the
issuance of a conditional use permit.
In Earle, the Marion County Board of Commissioners
granted defendant a conditional use permit for the
construction of a hop warehouse. The warehouse was to
store a rather large volume of crops from many local hop
growers and was, in addition, to store and sell string and
burlap used in hop production. The proposed site of the
warehouse was in an area of land designated pursuant to
the local zoning ordinance as an EFU (Exclusive Farm
Use) zone, the purpose of which was as follows:

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“The purpose and intent of the
Exclusive Farm Use zone is to provide
areas for the continued practice of
agriculture
and
permit
the
establishment of only those new uses which
are compatible to agricultural activities.”
Earle v. McCarthy, 28 Or.App. 539, 542, 560 P.2d 665, 666
(quoting local ordinance) (emphasis added).
Owners of land near the proposed site of the warehouse
challenged the action of the local board. In the view of the
court, the warehouse constituted, pursuant to the relevant
ordinance, a commercial activity in conjunction with farm
use and was therefore a proper use even within an exclusive
farm use zone. In our opinion, the parallels between the
Oregon case and that before us are striking. The
relationship between the hop warehouse and the
surrounding EFU zone in the Oregon case, in our view,
mirrors the relationship between Mr. Clapp’s agricultural
chemical operation and the adjacent A-1 district in this
case. Here, as there, the local authority’s activity was
proper.
As we noted earlier in this section, cases involving a
challenge to a rezoning action on the basis of possible
illegal spot zoning are very fact specific; their resolution
turns very heavily on the particular facts and circumstances
of the case. This spot zoning case, in which the disputed
action changed a general district zone to a conditional use
zone, is, for that reason, a case of first impression. While
this Court has addressed the issue of spot zoning in North
Carolina cases involving rezoning from one general district
to another, the facts of these cases are not analogous to this
case and are therefore not helpful.
In sum then, while we agree with the Court of Appeals that
the rezoning of Mr. Clapps’ two tracts constituted a form
of spot zoning under the Blades definition, we find, contrary

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to its conclusion, that this activity was of the legal and not
illegal variety. More precisely, we find that, because of the
quite substantial benefits created for the surrounding
community by the rezoning and because of the close
relationship between the likely uses of the rezoned property
and the uses already present in the surrounding tracts, there
was a clear showing of a reasonable basis for the spot
zoning in this instance. It is therefore not void, and the
Court of Appeals is reversed as to this point.
….
3.7. Contract Zoning
Chrismon v. Gilford County
322 N.C. 611 (1988)
Gunn & Messick by Paul S. Messick, Jr., Pittsboro, for
plaintiffs-appellees.
Samuel Moore, Deputy Co. Atty., Greensboro, for
defendants-appellants Guilford County and Members of
the Bd. of Com’rs of Guilford County.
Ralph A. Walker and Osteen, Adams & Tilley by William L.
Osteen, Greensboro, for defendant-appellant Bruce Clapp.
Thomas A. McCormick, Jr., City Atty., City of Raleigh by
Ira J. Botvinick, Deputy City Atty., Raleigh, and Jesse L.
Warren, City Atty., Greensboro, and Henry W. Underhill,
Jr., City Atty., Charlotte, amici curiae.MEYER, JUSTICE.[For
the facts of this case, see the prior section.]
We turn finally to the question of contract zoning. As we
stated above, in its opinion below, the Court of Appeals
also held that the rezoning in question constituted illegal
“contract zoning” and was therefore invalid and void for
that alternative reason. Relying for support primarily on
this Court’s decision in Allred v. City of Raleigh, 277 N.C.
530, 178 S.E.2d 432, the Court of Appeals stated, in
relevant part, as follows:

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[T]he county’s action here also
constitutes
“contract
zoning.”
Rezoning lacks a permissible basis
where it is done “on consideration of
assurances that a particular tract or
parcel will be developed in accordance
with restricted approval plans.”
[>Allred, 277 N.C.] at 545, 178 S.E.2d
at 441.
… In effect, the rezoning was done on
the assurance that Mr. Clapp would
submit an application for a conditional
use permit specifying that he would
use the property only in that manner.
The rezoning here was accomplished
as a direct consequence of the
conditions agreed to by the applicant
rather than as a valid exercise of the
county’s legislative discretion.
Chrismon v. Guilford County, 85 N.C. App. 211, 219, 354
S.E.2d 309, 314 (citations omitted).
We must disagree with the Court of Appeals. In the view of
this Court, the Court of Appeals, in its approach to the
question of whether the rezoning at issue in this case
constituted illegal contract zoning, improperly considered
as equals two very different concepts—namely, valid
conditional use zoning and illegal contract zoning. By virtue
of this treatment of the two quite distinguishable concepts,
the Court of Appeals has, for all intents and purposes,
outlawed conditional use zoning in North Carolina by
equating this beneficial land planning tool with a practice
universally considered illegal. In fact, for the reasons we
will develop below, the two concepts are not to be
considered synonymous. Moreover, we hold that the
rezoning at issue in this case—namely, the rezoning of Mr.
Clapp’s two tracts of land from A-1 to CU-M-2—was, in

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truth, valid conditional use zoning and not illegal contract
zoning.
Illegal contract zoning properly connotes a transaction
wherein both the landowner who is seeking a certain
zoning action and the zoning authority itself undertake
reciprocal obligations in the context of a bilateral contract.
Shapiro, The Case for Conditional Zoning, 41 Temp.L.Q. 267
(1968); D. Mandelker, Land Use Law § 6.59 (1982). One
commentator provides as illustration the following
example:
A Council enters into an agreement
with the landowner and then enacts a
zoning amendment. The agreement,
however, includes not merely the promise of the
owner to subject his property to deed
restrictions; the Council also binds itself to
enact the amendment and not to alter the
zoning change for a specified period of time.
Most courts will conclude that by
agreeing to curtail its legislative power,
the Council acted ultra vires. Such
contract zoning is illegal and the
rezoning is therefore a nullity.
Shapiro, The Case for Conditional Zoning, 41 Temp. L.Q. 267,
269 (1968) (emphasis added). As the excerpted illustration
suggests, contract zoning of this type is objectionable
primarily because it represents an abandonment on the part
of the zoning authority of its duty to exercise independent
judgment in making zoning decisions. See id.; see generally
Wegner, Moving Toward the Bargaining Table: Contract Zoning,
Development Agreements, and the Theoretical Foundations of
Governmental Land Use Deals, 65 N.C.L.Rev. 957 (1987).
As we indicated in Part I above, valid conditional use
zoning, on the other hand, is an entirely different matter.
Conditional use zoning, to repeat, is an outgrowth of the
need for a compromise between the interests of the

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developer who is seeking appropriate rezoning for his tract
and the community on the one hand and the interests of
the neighboring landowners who will suffer if the most
intensive use permitted by the new classification is
instituted. One commentator has described its mechanics
as follows:
An orthodox conditional zoning
situation occurs when a zoning
authority, without committing its own
power, secures a property owner’s
agreement to subject his tract to
certain restrictions as a prerequisite to
rezoning. These restrictions may
require that the rezoned property be
limited to just one of the uses
permitted in the new classification; or
particular physical improvements and
maintenance requirements may be
imposed. Shapiro, The Case For
Conditional Zoning, 41 Temp. L.Q. 267,
270-71 (1968) (emphasis added).
In our view, therefore, the principal differences between
valid conditional use zoning and illegal contract zoning are
related and are essentially two in number. First, valid
conditional use zoning features merely a unilateral promise
from the landowner to the local zoning authority as to the
landowner’s intended use of the land in question, while
illegal contract zoning anticipates a bilateral contract in
which the landowner and the zoning authority make
reciprocal promises. Second, in the context of conditional
use zoning, the local zoning authority maintains its
independent decision-making authority, while in the
contract zoning scenario, it abandons that authority by
binding itself contractually with the landowner seeking a
zoning amendment.

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The Court of Appeals, in its opinion in this case,
determined that “[t]he rezoning here was accomplished as a
direct consequence of the conditions agreed to by the
applicant rather than as a valid exercise of the county’s
legislative discretion.” Chrismon v. Guilford County, 85
N.C.App. 211, 219, 354 S.E.2d 309, 314. In so doing, it
concluded, in essence, that the zoning authority here—
namely, the Guilford County Board of Commissioners—
entered into a bilateral agreement, thereby abandoning its
proper role as an independent decision-maker and
rendering this rezoning action void as illegal contract
zoning. This Court disagrees. We conclude that the zoning
authority neither entered into a bilateral contract nor
abandoned its position as an independent decision-maker.
Therefore, we find what occurred in the case before us to
constitute valid conditional use zoning and not illegal
contract zoning.
First, having carefully reviewed the record in the case, we
find no evidence that the local zoning authority—here, the
Guilford County Board of Commissioners— entered into
anything approaching a bilateral contract with the
landowner—here, Mr. Clapp. The facts of the case reveal
that, pursuant to a filed complaint from the Chrismons, the
Guilford County Inspections Department, by a letter dated
22 July 1982, notified Mr. Clapp that his expansion of the
agricultural chemical operation to the tract adjacent to
plaintiffs’ lot constituted an impermissible expansion of a
nonconforming use. More important for purposes of this
issue, the letter informed Mr. Clapp of his various options
in the following manner:
Mr. Clapp, there are several courses of
action available to you in an effort to
resolve your Zoning Ordinance
violations:
….

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2. You may request rezoning of that
portion of your land involved in the
violations. This is not a guaranteed option.
Shortly after receiving this letter, Mr. Clapp applied to have
both of his tracts of land—the 3.18-acre tract north of Gun
Shop Road and the 5.06-acre tract south of Gun Shop
Road—rezoned from A-1 to CU-M-2. He also filed written
application for a conditional use permit, specifying in the
application that he would continue to use the property as it
was then being used and, in addition, listing those changes
he would like to make in the succeeding five years. While
these applications were ultimately approved by the Guilford
County Board of Commissioners after a substantial period
of deliberation which we highlight below, we are quite
satisfied that the only promises made in this case were
unilateral—specifically, those from Mr. Clapp to the Board
in the form of the substance of his conditional use permit
application. As the letter excerpted above makes clear, no
promises whatever were made by the Board in exchange,
and this rezoning does not therefore fall into the category
of illegal contract zoning.
Second, and perhaps more important, the Board did not, by
virtue of its actions in this case, abandon its position as an
independent decision-maker. The Court of Appeals
concluded that, rather than from a “valid exercise of the
county’s legislative discretion,” the Board’s decision in this
zoning matter in fact resulted from an illegal bargain
between the Board and the landowner, Mr. Clapp. This
conclusion by the Court of Appeals is, in our view, at odds
with the facts developed in the record. On the contrary, we
find that the Board made its decision in this matter only
after a lengthy deliberation completely consistent with both
the procedure called for by the relevant zoning ordinance
and the rules prohibiting illegal contract zoning.

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The Guilford County Zoning Oridnance provides
appropriate procedures to be used by landowners wishing
to apply for rezonings to a conditional use district and for
conditional use permits. Pursuant to the ordinance, a
landowner must apply separately for rezoning to the
appropriate conditional use district and for the conditional
use permit. This second petition—that for the conditional
use permit—must provide specific details of the applicant’s
proposed use of the land affected by the potential permit.
Petitions are directed to the Guilford County Board of
Commissioners and are filed initially in the office of the
Planning Department. The Planning Director submits the
petition and the Planning Department’s recommendation
to the Planning Board. The Planning Board subsequently
makes advisory recommendations to the Board of County
Commissioners, which, following a public hearing held
pursuant to proper notice, makes the final decision as to
whether the rezoning application and the permit will be
approved or disapproved.
It is undisputed, and plaintiffs conceded as much upon oral
argument before this Court, that all procedural
requirements were observed in this case. As we indicated
above, shortly after the Guilford County Inspections
Department notified Mr. Clapp of his violation, he
submitted an application for a rezoning of the tracts in
question. Simultaneously, he applied for a conditional use
permit, specifying how the property was then being used
and, in addition, listing those improvements he would like
to make in the future. The Planning Division
recommended that the property be rezoned accordingly,
and the Guilford County Planning Board voted to approve
that recommendation at their meeting of 8 September
1982.
Pursuant to proper notice, the Guilford County Board of
Commissioners held a public meeting on 20 December
1982 regarding both applications and heard numerous

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statements from all of the concerned parties. During at
least one previous meeting, members of the community
had spoken in favor of Mr. Clapp’s rezoning request,
numerous ideas had been introduced concerning use of the
property, and the Board was presented with a petition
signed by eighty-eight persons favoring the rezoning
request. While the Court of Appeals’ opinion seems to
suggest that the ultimate result of the 20 December 1982
meeting was a foregone conclusion, the record simply does
not reveal as much. Instead, the record reveals that the
Board made its final decision only after what appears to
have been a thorough consideration of the merits of Mr.
Clapp’s applications for rezoning and for a conditional use
permit, as well as of the various alternatives to granting
those applications.1
While the Court of Appeals concluded that the decision at
issue here by the Guilford County Board of Commissioners
was not the result of “a valid exercise of the county’s
legislative discretion,” we find just the opposite. The record
in the case, in our view, while it reveals a unilateral promise
from Mr. Clapp to the Board concerning his proposed use
of the tracts, does not demonstrate the reciprocity featured
in cases of illegal contract zoning. Moreover, the record
also demonstrates, we think quite clearly, that the Board did
not abandon its role as an independent decision-maker.
Rather, after deliberating over information gathered from a
large number of sources and after weighing both the
desired rezoning and permit as well as various alternatives,
the Board rendered a decision. In short, then, we find that
the Board engaged here, not in illegal contract zoning, but in
1 The official minutes of the 20 December 1982 Board of Commissioners meeting

reveal discussion of “attempts [that] had been made to resolve differences between
the owner and his neighbors.” These attempts to resolve the problem short of
rezoning the property apparently included the removal of one grain dryer from the
property, the planting of trees along the property line, the placement of canvas
covers over the grain bins, and discussions with the Environmental Protection
Agency concerning other ways of reducing dust and noise.

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valid conditional use zoning. Accordingly, the Court of
Appeals is reversed as to this issue as well.
IV.In conclusion, this Court has carefully reviewed the
record in its entirety and all of the contentions of the
parties to this action. Consistent with the above, we hold as
follows: (1) the practice of conditional use zoning, insofar
as it is reasonable, neither arbitrary nor unduly
discriminatory, and in the public interest and, subject to our
discussions of spot zoning and contract zoning above, is an
approved practice in this state; (2) the rezoning in this case,
while clearly spot zoning, was not illegal spot zoning in that
it was done pursuant to a clear showing of a reasonable
basis; and (3) the rezoning in this case, because the Board
neither entered into a bilateral agreement nor abandoned its
place as the independent decision-maker, was not illegal
contract zoning.Accordingly, the decision of Court of
Appeals is hereby reversed. The case is remanded to that
court for further remand to the Superior Court, Guilford
County, for reinstatement of the original judgment denying
plaintiffs’ action for a declaratory judgment and affirming
the zoning action of the Guilford County Board of
Commissioners.
REVERSED.
MITCHELL, Justice, dissenting.The zoning amendment
and conditional use permit in this case amounted to written
acceptance by Guilford County of Clapp’s offer—by written
application—to use his property only in certain ways. Thus,
for reasons fully discussed in the opinion of the Court of
Appeals, 85 N.C.App. 211, 354 S.E.2d 309 (1987), Guilford
County’s actions in the present case also amounted to
illegal “contract zoning.” See Blades v. City of Raleigh, 280
N.C. 531, 187 S.E.2d 35 (1972); Allred v. City of Raleigh, 277
N.C. 530, 178 S.E.2d 432 (1971).
I believe that Guilford County was without authority to
engage in any conditional use zoning whatsoever in 1982,

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the time it did so in the present case. Effective 4 July 1985,
the General Assembly amended N.C. G.S. § 153A-342 and
N.C.G.S. § 160A-382 to allow cities and counties to
establish conditional use districts. 1985 N.C.Sess. Laws ch.
607. Although the act was entitled an act to “make clear”
the authority of local governments to establish such
districts, I do not believe that the title controls in this case.
Courts need refer to the title in construing an act only when
the meaning of the act is in doubt.Finance Corp. v. Scheidt,
Comr. of Motor Vehicles, 249 N.C. 334, 106 S.E.2d 555
(1959). Here, the 1985 act expressly authorizes units of
local government to establish conditional use districts upon
a petition by the owners of all the property to be included.
Prior to that enactment, units of local government did not
have such authority. See generally Blades v. City of Raleigh, 280
N.C. 531, 187 S.E.2d 35; Allred v. City of Raleigh, 277 N.C.
530, 178 S.E.2d 432. Therefore, the action of the General
Assembly is fully consistent with the ordinary presumption
that, by amending an existing statute, the legislature
intended a departure from the old law. See Childers v.
Parker’s, Inc., 274 N.C. 256, 162 S.E.2d 481 (1968).
The majority cites numerous scholarly authorities in
support of its very thorough discussion of social policy
arguments in favor of conditional use zoning. Boiled down
to their essence, these arguments simply amount to an
expression of the majority’s view that the authority to
engage in conditional use zoning will give planners and
local governing authorities greater flexibility and that such
flexibility is very valuable. Beyond question, conditional use
zoning authority will give them greater flexibility. Because I
believe that the General Assembly had not authorized
conditional use zoning at the time in question here, I find it
unnecessary to consider whether conditional use zoning
gives so much “flexibility” to local planners and governing
bodies that they are left free to allow or disapprove specific

328

uses of property in an unconstitutionally arbitrary and
unpredictable manner.
For the foregoing reasons, I dissent.
WEBB, J., joins in this dissenting opinion.
WEBB, JUSTICE, dissenting.I join in the dissent of Justice
Mitchell and I add a few comments.
….
I believe that prior to today the rule was that if a person
requested a zoning change and submitted plans of the type
building he would construct if the change were granted,
and the zoning authority made the change based on the
promise to construct such a building, that would be
contract zoning. We have held contrary to this and in doing
so have overruled Blades and Allred.
I vote to affirm the Court of Appeals.
MITCHELL, J., joins in this dissenting opinion
3.8. Nonconforming Uses
City of Red Bank v. Phillips
2007 WL 4460223 (Tenn. Ct. App. 2007).
Arvin H. Reingold, Chattanooga, Tennessee, for the
appellant, Peter H. Phillips.
Arnold A. Stulce, Jr. and Angela C. Larkins, Chattanooga,
Tennessee, for the appellee, City of Red Bank, Tennessee.
CHARLES D. SUSANO, JR.
The City of Red Bank (“City”) filed this declaratory
judgment action against Peter H. Phillips (“Owner”)
alleging that his property at 217 W. Newberry Street was
being utilized for multi-family purposes in violation of its
single family zoning. Owner admitted to the use of the
premises as a three-apartment rental property. He asserted,
however, that the non-conforming use of the property was

329

permitted as a “grandfathered” use. Following a bench trial,
the court found in favor of the City. Owner appeals. We
affirm.
I.
As early as 1951, the structure at 217 W. Newberry Street
was used by the Roberts family as a multi-family dwelling.
The Roberts family maintained a residence in the upstairs
unit. Two downstairs units were rented out. Each unit had
a separate kitchen and bath. This multi-family use
continued until December 2002, when one of the tenants
moved out. Shortly thereafter, Mrs. Mamie Roberts, the
owner of the property, died, leaving only one tenant
utilizing the premises. The final tenant departed in July
2003, and the property remained vacant until March 2004,
when the house was sold by Mrs. Roberts’ estate to Wallis
Properties, LLC. Approximately twenty months passed
during which the property was completely vacant until one
tenant moved in on April 1, 2005.
Prior to purchasing the property in July 2005, Owner and
his mother, Audeline Phillips, inspected the premises. Mrs.
Phillips, a realtor, testified at trial that she had located the
property on the Multiple Listing Service. Mrs. Phillips
noted that when she and her son toured the property, one
unit was occupied. She recalled that all the units were
furnished and the utilities were on. Over the objection of
the City’s attorney, Mrs. Phillips discussed contacting a City
employee who indicated to her that the non-conforming
multi-family use was grandfathered in. She admitted,
however, that she did not request written verification of
this statement. Owner testified that he also had been
advised by someone with the City that the non-conforming
use was subject to grandfather protection. Additionally,
Owner indicated that the property was advertised for sale
during this time as a three-unit rental and was taxed by the
county as commercial property.

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After the City became aware of Owner’s non-conforming
use, it filed a petition for declaratory judgment.1 The
petition alleges, in part, as follows:
The property located at 217 W.
Newberry Street, owned by the
plaintiff has, for many years, been
located in an R-1 Residential Zone….
The permitted uses section of the Red
Bank Zoning Ordinance applicable to
the R-1 Residential Zone does not
permit multi-family residential uses, i.e.
for more than one family to occupy a
dwelling unit in that R-1 Zone.
Accordingly, any use of the premises
… as a multi-family dwelling is in
violation of the Red Bank Zoning
Ordinance and is a “non-conforming
use” pursuant to said Ordinance.
The house and lot … is configured for
three (3) separate apartments/dwelling
units and the respondent has leased or
is offering to lease three (3) separate
dwelling units/apartments located in
that structure. Utilization of the
premises for multi-family occupancy
and/or for more than one dwelling
unit is in violation of the Red Bank
Zoning Ordinance.
Upon information and belief, the
premises … may have been, in times
past, utilized as a multi-family
dwelling. Use of the property as a
multi-family dwelling in times past may
1 The City sought the imposition of a civil penalty of up to $50 per day against

Owner. Because the provisions of the City’s ordinances introduced at trial did not
contain a civil penalty provision, the trial court denied this relief.

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or may not have been lawful pursuant
to “the grandfather clause”….
The petitioner would show that the
premises were owned or occupied
until approximately December 15,
2002 when a former owner died. Since
on or about June of 2003, the premises
have been totally unoccupied until
approximately April 1, 2005, a time
period of 22 months, … On or about
April 1, 2005, a single individual began,
apparently, to live in and occupy one
of the separate apartments….
The Red Bank Zoning Ordinance,
subsection (205.01), provides, in
pertinent part with respect to “nonconforming uses”, as follows:
The lawful use of a building existing at
the time of the passage of this
Ordinance shall not be affected by this
Ordinance, although such use does not
conform to the provisions of this
Ordinance; and such use may be
extended throughout the building …
If such non-conforming building is
removed or the non-conforming use of such
building is discontinued for 100 consecutive
days, … every future use of such
premises shall be in conformity with
the provisions of this Ordinance.
The Petitioner has refused demands
and requests from the City of Red
Bank not to utilize the property …
except as a single family residence.
During the course of a City
Commission meeting on or about
September 13, 2005, the respondent

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made clear his intention to remodel
the separate apartment units and utilize
the property as a multi-family dwelling
and to not conform and adhere to the
requirements of the R-1 Residential
Zone regulations of the Red Bank
Zoning Ordinance.
(Paragraph numbering omitted; emphasis in original).
In Owner’s answer, he stated that at the time he purchased
the property “and at all times prior to said date the property
was maintained and used as a three unit dwelling containing
three separate and distinct apartment units,” the
“apartment units were used as a three unit apartment
structure prior to the enactment of the present R-1
Residential Zone designation and was and is at present a
lawful use as a multi-family dwelling,” and “at the time of
his purchase the property was used as a multi-family
apartment structure.” Owner contended that his nonconforming use of the property should be permitted as a
“grandfathered” use.
After the matter was heard on August 24, 2006, the trial
court, sitting without a jury, determined that (1) the City’s
complaint for declaratory relief and to enforce the zoning
ordinance was sustained and (2) that Owner was enjoined
from using the real estate in a manner not in conformity
with the single-family provisions of the City’s zoning
ordinance. Owner timely appealed.
II.
Owner raises the following issues:
1. The Chancellor’s ruling that the statute does not apply to
protect the non-conforming use of the property was in
error because, even without subsection (g) of Tenn.Code
Ann. s 13-7-208, the statute still applies to protect nonconforming uses.

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2. The Chancellor’s ruling that a “discontinuance” of the
non-conforming use occurred under the ordinance is
erroneous because there was no intent to abandon the
premises and because the property was always held out as a
multiple rental property.
III.
In a non-jury case, our review is de novo upon the record
before us, accompanied by a presumption of correctness as
to the trial court’s findings of fact, unless the evidence
preponderates against those findings. Tenn. R.App. P.
13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.2001).
We accord no such deference to the trial court’s
conclusions of law. S. Constructors, Inc. v. Loudon County
Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.2001); Ganzevoort
v. Russell, 949 S.W.2d 293, 296 (Tenn.1997).
The issues raised on this appeal involve the interpretation
of state statutes and local ordinances. The primary rule of
statutory construction is “to ascertain and give effect to the
intention and purpose of the legislature.” LensCrafters, Inc.
v. Sundquist, 33 S.W.3d 772, 777 (Tenn.2000); Carson
Creek Vacation Resorts, Inc. v. Dep’t of Revenue, 865
S.W.2d 1, 2 (Tenn.1993). To determine legislative intent,
one must look to the natural and ordinary meaning of the
language used in the statute itself. We must examine any
provision within the context of the entire statute and in
light of its over-arching purpose and the goals it serves.
State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000). The
statute should be read “without any forced or subtle
construction which would extend or limit its meaning.”
Nat’l Gas Distribs., Inc. v. State, 804 S.W.2d 66, 67
(Tenn.1991).
Courts are instructed to “give effect to every word, phrase,
clause and sentence of the act in order to carry out the
legislative intent.” Tidwell v. Collins, 522 S.W.2d 674, 677
(Tenn.1975). Courts must presume that the General

334

Assembly selected these words deliberately, Tenn.
Manufactured Hous. Ass’n v. Metro. Gov’t, 798 S.W.2d
254, 257 (Tenn.Ct.App.1990), and that the use of these
words conveys some intent and carries meaning and
purpose. Tenn. Growers, Inc. v. King, 682 S.W.2d 203, 205
(Tenn.1984). The same rules and principles are applied
when construing zoning ordinances. Lions Head
Homeowners’ Ass’n v. Metro. Bd. of Zoning Appeals, 968
S.W.2d 296, 301 (Tenn.Ct.App.1997).
The applicable “grandfather” provision is codified at
Tenn.Code Ann. s 13-7-208 (Supp.2006). The owner
contends that the statute permits him to continue his nonconforming use. The statute provides, in relevant part, as
follows:
In the event that a zoning change
occurs in any land area where such
land area was not previously covered
by any zoning restrictions of any
governmental agency of this state or its
political subdivisions, or where such
land area is covered by zoning
restrictions of a governmental agency
of this state or its political
subdivisions, and such zoning
restrictions differ from zoning
restrictions imposed after the zoning
change, then any industrial, commercial
or business establishment in operation,
permitted to operate under zoning
regulations or exceptions thereto prior
to the zoning change shall be allowed
to continue in operation and be
permitted; provided, that no change in
the use of the land is undertaken by
such industry or business.
Tenn.Code Ann. s 13-7-208(b)(1) (emphasis added).
Subsection (g) of the statute adds the following:

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The provisions of subsections (b)-(d)
shall not apply if an industrial,
commercial, or other business
establishment ceases to operate for a
period of thirty (30) continuous
months and the industrial, commercial,
or other business use of the property
did not conform with the land use
classification as denoted in the existing
zoning regulations for the zoning
district in which it is located. Anytime
after the thirty (30) month cessation,
any use proposed to be established on
the site, including any existing or
proposed on-site sign, must conform
to the provisions of the existing
zoning regulations….
Subsection (g) was added in 2004 and became effective on
May 28, 2004. The trial court found, however, that this
amendment to the statute cannot have retrospective effect
to invalidate a lawful zoning ordinance. Further, the court
determined that the property had already been vacant over
100 days prior to this subsection becoming effective. The
trial court therefore concluded that “this case is controlled
by the law in existence before the 2004 amendments to
Tenn.Code Ann. s 13-7-208, which would be the Red Bank
ordinance.” (Emphasis added).
The City’s ordinance at issue contains the following:
(A) Single-family dwelling.

2. SECTION 11-205.
Non-conforming Uses:
The lawful use of a building existing at
the time of the passage of this

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Ordinance shall not be affected by this
Ordinance, although such use does not
conform to the provisions of this
Ordinance; and such use may be
extended throughout the building…. If
such non-conforming building is
removed or the non-conforming use
of such building is discontinued for
100 consecutive days, every future use
of such premises shall be in
conformity with the provisions of this
Ordinance.
IV.
A.
The trial court determined that Tenn.Code Ann. s 13-7-208
and its subsections did not apply to supersede the
ordinances relied upon by the City. As indicated above, the
trial court specifically found that subsection (g), which
introduces the discontinuance period of 30 months for
non-conforming uses, was not in effect at the time the
events at issue took place.
Owner argues that even without subsection (g), the trial
court erred in assuming that Tenn.Code Ann. s 13-7-208
no longer afforded any protection to the non-conforming
use. He asserts that the statute, without subsection (g), was
in effect at all times pertinent to this litigation. Thus,
Owner contends that while subsection (g) may not apply to
the case at hand, the rest of the statute, including
subsection (b)(1), is applicable. If subsection (g) is
applicable, Owner contends that the property was not
completely unoccupied for thirty months or longer, as
required by law. Tenn.Code Ann. s 13-7-208(g). Therefore,
Owner argues that the trial court committed reversible
error in the manner in which it applied the City’s ordinance.

337

In Bramblett v. Coffee County Planning Comm’n, No.
M2005-01517-COA-R3-CV, 2007 WL 187894, at * 9
(Tenn. Ct.App. M.S., filed January 24, 2007), a panel of this
court indicated as follows:
By its plain language, the statute
[Tenn.Code Ann. s 13-7-208] protects
only “industrial, commercial or
business establishment[s].” Tenn.Code
Ann. s 13-7-208(b)(1); Custom Land
Dev., Inc. v. Town of Coopertown,
168 S.W.3d 764, 775 (Tenn.Ct.App
.2004) (noting that purpose of statute
was “to protect ongoing business
operations”). In zoning parlance, use
of real property for human habitation
is generally classified as “residential,”
regardless of whether someone profits
from it. Zoning laws typically employ
terms
such
as
“commercial,”
“industrial,” and “business” in
contradistinction
to
the
term
“residential.” 6 ZONING LAW AND
PRACTICE s 35-2, at pp. 35-3 to 357; s 38-1, at pp. 38-1 to 38-2; s 39-1, at
pp. 39-1 to 39-5; s 44-1, at p. 44-1. 3
AMERICAN LAW OF ZONING s
18.15, at 304. Tennessee’s zoning
statutes are no exception.
(Capitalization in original; footnotes omitted).
Owner seeks to use the property in an indisputably
residential manner. He desires to lease out the three units
of the premises to individuals and families for human
habitation. Tenn.Code Ann. s 13-7-208 confers no
grandfathering protection for this use. Accordingly, only
the City’s ordinance applies in this matter.
B.

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The power of local governments to enact ordinances
regulating the use of private property is derived from the
state and is delegated to them by the legislature. Henry v.
White, 250 S.W.2d 70, 71 (Tenn.1952); Anderson County v.
Remote Landfill Servs., Inc., 833 S.W.2d 903, 909
(Tenn.Ct.App.1991). Local governments’ statutory power
to employ zoning measures to control the use of land
within their boundaries is firmly established. Draper v.
Haynes, 567 S.W.2d 462, 465 (Tenn.1978). The City’s
zoning ordinance, subsection 205.01, states, in part, that
“[i]f such non-conforming building is removed or the nonconforming use of such building is discontinued for 100
consecutive days, every future use of such premises shall be
in conformity with the provisions of this Ordinance.”
In interpreting a zoning ordinance, a court must strictly
construe the relevant ordinance in favor of the property
owner. Boles v. City of Chattanooga, 892 S.W.2d 416, 420
(Tenn.Ct.App.1994) (citing State ex rel. Wright v. City of
Oak Hill, 321 S.W.2d 557, 559 (Tenn.1959)). A zoning
ordinance is in derogation of the common law because it
operates to deprive an owner of a use of land which might
otherwise be lawful. Oak Hill, 321 S.W.2d at 559.
Under the facts of this case, Owner contends that the trial
court erred in ruling that a lack of tenants constituted a
discontinuance of the non-conforming use for 100
consecutive days. He quotes from 83 Am.Jur.2d Zoning
and Planning s 619 at 534-35 (2003) as follows:
Discontinuance of a nonconforming
use may sometimes be caused by the
loss of a tenant, but this generally does
not result in an abandonment, so long
as the owner makes a diligent effort to
locate a new tenant.
(Citations omitted). Owner further asserts that a lack of
multiple lodgers has been held not to constitute

339

discontinuance where the apartments were still available for
rent. He cites us to James L. Isham, Annotation, Zoning:
Occupation Of Less Than All Dwelling Units As
Discontinuance Or Abandonment Of Multifamily Dwelling
Nonconforming Use, 40 A.L.R. 4th 1012 (1985).
Relying on Boles, Owner asserts that the voluntary and
affirmative actions of the prior owners did not manifest an
intention to abandon the non-conforming multi-family use
of the property. In Boles, an injunction had been issued
which required the closure of an adult-oriented
establishment which wanted to lease its premises to another
lessee of adult products. More than 100 days had passed
since the premises were used for an adult-oriented
establishment, however, the court found that the failure to
maintain its non-conforming use was due to the injunction
and not due to the intent of the owner. This court held as
follows:
The word “discontinued” as used in a
zoning
ordinance
is
generally
construed to be synonymous with the
term “abandoned.” The meaning of
the word “abandoned,” in the zoning
context, generally includes an intention
by the landowner to abandon as well
as an overt act of abandonment.
Boles, 892 S.W.2d at 420 (citing Douglas Hale Gross,
Annotation, Zoning: Right to Resume Nonconforming Use
of Premises After Involuntary Break in the Continuity of
Nonconforming Use Caused by Governmental Activity, 56
A.L.R.3d 138, 151, 152 (1974)). The Boles court noted that
the term “discontinued” or words of
similar import, as utilized in zoning
ordinances
with
specific
time
limitations, should be construed to
include an element of intent,

340

combined with some act-or failure to
act-indicative of abandonment….
Id., 892 S.W.2d at 422. This court added that such an
ordinance will not apply “if the discontinuance of the nonconforming use is purely involuntary in nature.” Id.
Owner further argues that there was no consolidation of
any of the units into one unit and that repairs and
renovations were undertaken without any intent to
combine units. The separate kitchen and bath fixtures and
appliances were maintained, ready for new tenants.
According to Owner, except for the time when they were
being renovated, the units were always available to let. He
also contends that electricity was supplied to all the units
throughout the relevant period and asserts that “[y]ou don’t
keep power on in some of your rental property … if you
are abandoning that use.”
As argued by the City, the circumstances in Toles v. City of
Dyersburg, 39 S.W.3d 138 (Tenn.Ct.App.2000), are very
similar to those in the present matter, namely that the
discontinuance of the non-conforming use was due to the
owners voluntarily not using the property for the nonconforming use and therefore the “grandfather” protection
was lost. In Toles, this court indicated that
[w]e read Boles to support the
proposition that “intent” is only
important where some force outside
the control of the property owner
prevents the continued use of the land
in a particular manner.
39 S.W.3d at 141. Unlike the injunction in Boles, nothing
prevented the prior owners of this property from renting
out the units. As found by the trial court, there was no
extrinsic force which prevented the leasing of the property.

341

There was nothing involuntary about the cessation of the
non-conforming use.
The trial court properly determined that “the protection of
the grandfather clause had been lost long before Owner
bought the property on July 21, 2005” and “the lack of any
tenant for approximately twenty (20) months resulted in the
loss of the grandfather clause’s protection for 217 W.
Newberry Street.” The failure of the Roberts’ Estate
and/or Wallis Properties, LLC to lease the property as a
triplex, or rent to at least two tenants, was a discontinuance
of the non-conforming use.
V.
We do not find that the evidence preponderates against
the trial court’s resolution of this matter. Accordingly, the
judgment of the trial court is affirmed. This case is
remanded to the trial court for enforcement of the trial
court’s judgment and for collection of costs assessed
below, all pursuant to applicable law. Costs on appeal are
taxed to the appellant, Peter H. Phillips.
Suffolk Asphalt Supply v. Board of Trustees of Village
of Westhampton Beach
59 A.D.3d 429 (N.Y. App. Div. 2009)
MASTRO, J.P., FLORIO, COVELLO AND BELEN, JJ., concur.
The plaintiff owns real property within the Village of
Westhampton Beach that has been improved with an
asphalt plant since 1945. In 1985 the Board of Trustees of
the Village of Westhampton Beach (hereinafter the Board
of Trustees) amended the Village’s zoning code so that the
use of the property as an asphalt plant became
nonconforming. The plaintiff acquired the property,
including the asphalt plant, in 1994.
In June 2000 the Board of Trustees adopted Local Law No.
10 (2000) of Village of Westhampton Beach (hereinafter
the local law), which provided that the right to operate and

342

maintain the nonconforming asphalt plant was to terminate
within one year unless the plaintiff applied to the Zoning
Board of Appeals of the Village of Westhampton Beach
(hereinafter the ZBA) for an extension of the termination
date, not to exceed five years from the date that the local
law was adopted. The plaintiff applied to the ZBA for such
an extension almost immediately after the enactment of the
local law, and, in a determination dated May 19, 2005, the
ZBA granted the maximum extension permitted by the
local law and directed the plaintiff to terminate its asphalt
operation effective July 2, 2005.
Meanwhile, the plaintiff commenced this action, inter alia,
for a judgment declaring that the local law is invalid and
unconstitutional since, among other things, the
amortization period provided in the statute is unreasonably
short. After the ZBA made its determination, the plaintiff
moved for summary judgment declaring that the local law
is invalid and unconstitutional.
“The validity of an amortization period depends on its
reasonableness. We have avoided any fixed formula for
determining what constitutes a reasonable period. Instead,
we have held that an amortization period is presumed valid,
and the owner must carry the heavy burden of overcoming
that presumption by demonstrating that the loss suffered is
so substantial that it outweighs the public benefit to be
gained by the exercise of the police power” (Village of
Valatie v Smith, 83 NY2d 396, 400-401 [1994] [citations
omitted]).
“Whether an amortization period is reasonable is a question
which must be answered in light of the facts of each
particular case” (Modjeska Sign Studios v Berle, 43 NY2d 468,
479-480 [1977], appeal dismissed 439 US 809 [1978]).
“Reasonableness is determined by examining all the facts,
including the length of the amortization period in relation
to the investment and the nature of the use. The period of
amortization will normally increase as the amount invested

343

increases or if the amortization applies to a structure rather
than a use” (Matter of Town of Islip v Caviglia, 73 NY2d 544,
561 [1989]). Factors to be considered in determining
reasonableness include “the nature of the business of the
property owner, the improvements erected on the land, the
character of the neighborhood, and the detriment caused
the property owner” (Matter of Harbison v City of Buffalo, 4
NY2d 553, 562-563 [1958]).
“Typically, the period of time allowed has been measured
for reasonableness by considering whether the owners had
adequate time to recoup their investment in the use”
(Village of Valatie v Smith, 83 NY2d at 401). “While an
owner need not be given that period of time necessary to
permit him to recoup his investment entirely, the
amortization period should not be so short as to result in a
substantial loss of his investment” (Modjeska Sign Studios v
Berle, 43 NY2d at 480 [citation omitted]).
Inasmuch as the plaintiff failed to submit any evidence as
to the amount that it actually invested in the business,
there remains a question of fact regarding whether the
amortization period provided in the local law was
reasonable and thus constitutional as applied to the
plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324
[1986]; Chekenian v Town Bd. of Town of Smithtown, 202
AD2d 542, 543 [1994]). With respect to the plaintiff’s
contention that the brevity of the amortization period
rendered the local law unconstitutional on its face, “a
litigant cannot sustain a facial challenge to a law when
that law is constitutional in its application to that litigant”
(Village of Valatie v Smith, 83 NY2d at 403). Accordingly,
the Supreme Court properly denied the plaintiff’s motion
for summary judgment.

344

Trip Associates v. Mayor and City Council of
Baltimore
898 A.2d 449 (2006)
John A. Austin, Towson, for Petitioners.
Sandra R. Gutman, Chief Sol. (Thurman W. Zollicoffer, Jr.,
City Sol., on brief), Baltimore, for Respondent.
BELL, CHIEF JUDGE.The question this case presents is
whether the Board of Municipal and Zoning Appeals (“the
Board”) erred when it restricted the number of days per
week the appellants could operate a valid nonconforming
use. The appellants’ property, located in the B-5-1 Zoning
District in Baltimore City, is being used for the operation
of “Club Choices,” a nightclub and after-hours
establishment that sometimes features adult entertainment.
The Club is owned by the appellant, Anthony Dwight
Triplin (“Triplin”), who also is the owner of Triplin
Associates, Inc. (“Trip”), the other appellant.
Triplin purchased 1815-17 North Charles Street, the
property at issue, in 1983. Prior to his purchase, the
property had been a nightclub featuring adult
entertainment, including male and female exotic dancing.
The adult entertainment had been presented up to five
nights a week since 1979. When Triplin purchased the
property, the applicable zoning ordinance did not prohibit
the use of the property as an adult entertainment facility.
Nevertheless, Triplin reduced the number of nights of nude
or exotic dancing from five to two nights per week,
featuring music and comedy on the other nights. The
Board approved his use of the premise as an “after hours
establishment” in 1992. With this approval, the adult
entertainment was presented after hours, exclusively.
On December 15, 1994, Ordinance No. 443 was enacted.
That ordinance, codified at Baltimore City Code, Art. 30, §
8.0-61, regulated adult entertainment businesses, “where
persons appear in a state of total or partial nudity.” It also

345

provided that “[a]ny adult entertainment business existing
on September 10, 1993 is considered a nonconforming use,
subject to all Class III regulations.”1 Baltimore City Zoning
Code § 13-609. After this Ordinance was passed, Triplin
continued to use the facility as a club that provided adult
entertainment after hours. That use was unchallenged until
April 14, 2000, when a Baltimore City zoning inspector
issued a “Code Violation Notice and Order” to the Club.
The violation notice charged:
“ZONING VIOLATION
“1. Using portion of premises for adult
entertainment without first obtaining
proper
Adult
Entertainment
Ordinance and Adult Entertainment
License. DISCONTINUE SAID USE.
REMOVE
ALL
STOCK,
MATERIAL, EQUIPMENT, AND
ANY
ADVERTISING
SIGNS
ASSOCIATED WITH SAID USE.
OBTAIN
CERTIFICATE
OF
OCCUPANCY
BEFORE
REESTABLISHING ANY USE.”
Triplin appealed to the Board. On appeal, Triplin testified
that Club Choices featured exotic dancing and adult
1 Class III” is defined in the Baltimore City Zoning Code, § 13-401. In describing

what is regulated by the subtitle, it states:
”§ 13-401. Scope of subtitle.
“This subtitle applies to Class III nonconforming uses,
which comprise:
“(1) any nonconforming use of all or part of a structure
that was designated and erected primarily for a use that is
no longer allowed in the district in which it was located;
“(2) any nonconforming use of the lot on which that
structure is located; and
“(3) any nonconforming use of land or structures not
regulated as Class I or Class II.”

346

entertainment two times a week, Wednesdays and Fridays,
for two hours each night. That testimony was confirmed by
employees, who offered further that such dancing with
partial nudity has been presented two nights per week since
1983.
The Board ruled:
“1 … . [A]dult entertainment may be
continued two nights during the week.
“The Board finds that a nonconforming use of the premises for
adult
entertainment
had
been
established prior to Ordinance 443
(adult
entertainment
business
approved December 15, 1994) and
may be continued under Subsection
13-402 of the Zoning Code. The
Board finds that with the above
condition that the request would not
be detrimental to or endanger the
public health, security, general welfare,
or morals or be injurious to the use
and enjoyment of other property in the
immediate vicinity, nor substantially
diminish and impair property values in
the neighborhood. Further, and as
agreed by the appellant that this is
specifically for the appellant Mr.
Triplin, the owner and operator of the
subject site and a copy of the
resolution/decision is to be recorded
in the land records of Baltimore City
and the appellant is to provide to the
Board a court certified copy to be
placed in the file … as part of the
record. The purpose of the recording
requirement is to give the Charles
North Community Association legal
standing to enjoin any uses as adult

347

entertainment to a subsequent
purchaser,
owner,
lessee
or
operator….
“In accordance with the above facts
and findings and subject to the
aforementioned condition, (adult
entertainment two nights a week only)
the Board approves the application.”
Board of Municipal and Zoning Appeals, Appeal No. 32700X, October 12, 2000. Thus, the Board, despite finding
that Club Choices was a valid nonconforming use, limited
that use, based on the testimony, to two nights per week.
Triplin petitioned the Circuit Court for Baltimore City for
judicial review of the Board’s decision. That court affirmed
the Board’s decision … .
A.Title 13 of the Baltimore City Zoning Code establishes
the zoning districts in Baltimore, and “provides for the
regulation of nonconforming uses and noncomplying
structures existing in the various districts.” Baltimore City
Zoning Code § 13-102. Under the Baltimore City Zoning
Code, a “nonconforming use” is defined as “any lawfully
existing use of a structure or of land that does not conform
to the applicable use regulations of the district in which it is
located.” Baltimore City Zoning Code § 13-101(c). A valid
and lawful nonconforming use is established if a property
owner can demonstrate that before, and at the time of, the
adoption of a new zoning ordinance, the property was
being used in a then-lawful manner for a use that, by later
legislation, became non-permitted.
As the Court of Special Appeals recognized,
nonconforming uses are not favored. County Council v.
Gardner, Inc., 293 Md. at 268, 443 A.2d at 119 (“These local
ordinances must be strictly construed in order to effectuate
the purpose of eliminating nonconforming uses.”); Grant v.
Mayor and City Council of Baltimore, 212 Md. 301, 308, 129

348

A.2d 363, 365 (1957) (“Indeed, there is general agreement
that the fundamental problem facing zoning is the inability
to eliminate the nonconforming use”); Colati v. Jirout, 186
Md. 652, 657, 47 A.2d 613, 615 (1946) (noting that the
spirit of the Baltimore City Zoning Ordinance is against the
extension of nonconforming uses). Indeed, in Grant, this
Court stated, “[T]he earnest aim and ultimate purpose of
zoning was and is to reduce nonconformance to
conformance as speedily as possible with due regard to the
legitimate interests of all concerned.” 212 Md. at 307, 129
A.2d at 365. The context for this conclusion was the
historical development of the nonconforming use, which
the Court also detailed:
“Nonconforming uses have been a
problem since the inception of zoning.
Originally they were not regarded as
serious handicaps to its effective
operation; it was felt they would be
few and likely to be eliminated by the
passage of time and restrictions on
their expansion. For these reasons and
because it was thought that to require
immediate cessation would be harsh
and unreasonable, a deprivation of
rights in property out of proportion to
the public benefits to be obtained and,
so, unconstitutional, and finally a red
flag to property owners at a time when
strong opposition might have
jeopardized the chance of any zoning,
most, if not all, zoning ordinances
provided that lawful uses existing on
the effective date of the law could
continue although such uses could not
thereafter be begun.”
Id.

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Nevertheless, a “nonconforming use is a vested right
entitled to constitutional protection.” Amereihn v. Kotras, 194
Md. 591, 601, 71 A.2d 865, 869 (1950). The Court in
Amereihn made that point forcefully. There, after the area in
which a light manufacturing plant was located was zoned as
residential, the neighbors brought a complaint, praying that
the new owners of the plant be restrained from using the
property for manufacturing purposes. This Court, in ruling
against the neighbors, pointed out:
“If a property is used for a factory, and
thereafter the neighborhood in which
it is located is zoned residential, if such
regulations applied to the factory it
would cease to exist, and the zoning
regulation would have the effect of
confiscating such property and
destroying a vested right therein of the
owner. Manifestly this cannot be done,
because it would amount to a
confiscation of the property.”
194 Md. at 601, 71 A.2d at 869 (citations omitted). See also
Board of Zoning Appeals of Howard County v. Meyer, 207 Md.
389, 114 A.2d 626 (1955), in which the Court of Appeals
held that an owner of a truck manufacturing plant on land
that had been rezoned as residential had a valid
nonconforming use, observing, “[t]he law is established
that the zoning of an area as residential cannot apply to a
previously established factory in that area, which is entitled
under the circumstances to constitutional protection.” 207
Md. at 394, 114 A.2d at 628.
A nonconforming use may be reduced to conformance or
eliminated in two ways: by “amortization,” that is, requiring
its termination over a reasonable period of time, and by
“abandonment,” i.e. non-use for a specific of time. Thus, in
Grant, the Court held that an amortization period of five
years to remove nonconforming billboards was valid, and

350

that a five-year period was not an arbitrary time period. 212
Md. at 316, 129 A.2d at 370.
The Baltimore City ordinance takes the “abandonment”
approach. Section 13-406, as we have seen, prohibits the
expansion of any nonconforming use, except as authorized
by the Board. Under § 13-407, “Discontinuance or
abandonment,” the failure actively and continuously to
operate the nonconforming use results in its abandonment.
That section provides:
“(a) Discontinuance or abandonment
“(1) Except as specified in this section,
whenever the active and continuous
operation
of
any
Class
III
nonconforming use, or any part of that
use, has been discontinued for 12
consecutive months:
“(i) the discontinuance constitutes an
abandonment of the discontinued
nonconforming use, or discontinued
part of that use, regardless of any
reservation of an intent to resume
active operations or otherwise not
abandon the use; and
“(ii)
the
discontinued
nonconforming use, or discontinued
part of that use:
“(A)
may
not
reestablished; and

be

“(B) any subsequent use of
any part of the land or
structure previously used for
the discontinued use, or
discontinued part of that use,
must conform to the

351

regulations of the district in
which the land or structure is
located.
“(2) In accordance with Subtitle 7
{“Modifications and Continuances
by Board”} of this title, the Board
may extend the time limit for
discontinuance for 1 or more
additional periods. In no case,
however, may the total of the
additional
time
exceed
12
months.”
Abandonment, as the foregoing ordinance confirms,
focuses not on the owner’s intent, but rather, on whether
the owner failed to use the property as a nonconforming
use in the time period specified in the zoning ordinance. See
Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 581,
709 A.2d 749, 759 (1998) (“There is no hard and fast rule in
nonconforming use abandonments that intent to abandon
must be actually shown when the zoning ordinance or
statute utilizes the word ‘abandonment’“).
On the other hand, the abandonment or discontinuance
must be active and actual. In Mayor and City Council of
Baltimore v. Dembo, Inc., 123 Md.App. 527, 719 A.2d 1007
(1998), the Court of Special Appeals discussed whether the
failure of a property owner to apply for a license to operate
an adult entertainment business after the passage of an
ordinance, in that case, Ordinance 443, the same one as
involved in this case, which prohibited such business in the
district in which it was located, constituted “abandonment”
of the nonconforming use, notwithstanding that he had
actually used the property in that nonconforming manner
throughout the subject period. There, Donald Dembo
owned an adult entertainment establishment called the
“Gentleman’s Gold Club” (“the Gold Club”) which, like
Triplin’s club, was located in a zoning district in which it

352

was not permitted. Like Club Choices, however, the Gold
Club’s use was a valid nonconforming use, having preexisted the ordinance that excluded that use. The city
argued that, by using the property without the required
license for two years, Dembo had essentially terminated his
once lawful nonconforming use. Addressing for the first
time whether or not a failure to apply for a license
constituted an abandonment of a lawful nonconforming
use, the Court of Special Appeals, after analyzing how
other jurisdictions approached the issue, concluded:
“We shall follow the majority of
jurisdictions and apply the rule that a
valid nonconforming use will not be
forfeited by the failure of the business
owner to secure a license to operate
his business. We consider that this rule
accords reasonable protection to the
property right that has been long
recognized under Maryland law as a
vested right subject to constitutional
protection.”
123 Md.App. at 541, 719 A.2d at 1015. Furthermore, the
Court of Special Appeals held that, even without the
license, “Dembo retain[ed] its vested nonconforming use
status to operate a business with adult entertainment. ..”.
There is no issue with regard to Club Choices’ status; it is a
valid Class III nonconforming use property under § 13-609
of the Zoning Code. It is an adult-entertainment business,
presently existing, that was also operating as such on
September 10, 1993, as § 13-609 specifies. As to that status,
there is no contention that Triplin has abandoned or
discontinued it, at least in whole. The issue is, as the Court
of Special Appeals has framed it, whether using the valid
nonconforming use more frequently than it was being used
when the use became nonconforming–presenting adult
entertainment more than two nights per week–would be a

353

prohibited expansion of the use or a mere intensification of
the use.
B.Despite Maryland’s well settled policy against
nonconforming use and the Baltimore City Zoning Code’s
explicit prohibition against expansion of those uses,
Baltimore City Zoning Code § 13-406, Maryland
recognizes, and our cases have held, that an intensification
of a nonconforming use is permissible, so long as the
nature and character of that use is unchanged and is
substantially the same.
In Green, supra, 192 Md. 52, 63 A.2d 326, citizens of
Baltimore City sought to enjoin the Department of
Recreation and Parks of Baltimore City and the Baltimore
Baseball and Exhibition Company from allowing
professional baseball to be played at Baltimore Stadium,
and further to enjoin the use of the loud speaker system,
the flood lights, and the parking facilities nearby. Baltimore
Stadium was constructed prior to 1931, when the district in
which it was located was rezoned residential, 192 Md. at 63,
63 A.2d at 330, after which it was used infrequently for
football games, track meets and civic events. It was used
more frequently after 1939, when lights were installed, a
speaker system having been installed earlier. 192 Md. at 57,
63 A.2d at 327-328. That increased use consisted mainly of
football games and other events, not baseball games. In
1944, however, a fire destroyed the baseball stadium, then
known as Oriole Park. This resulted in more baseball
games being played at Baltimore Stadium. 192 Md. at 5758, 63 A.2d at 328.
When that occurred, neighboring citizens contended that
the use of the Stadium for baseball games for a
considerable portion of the year was an enlargement of the
valid nonconforming use of the Stadium and, therefore,
contravened the zoning ordinance. 192 Md. at 63, 63 A.2d
at 330. They pointed out that, when the zoning ordinance
was enacted, the nonconforming use consisted of

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professional football games and the infrequent, at best,
baseball game. This Court disagreed. Id. Acknowledging
that the “spirit of the zoning ordinance is against the
extension of nonconforming uses and that such uses
should not be perpetuated any longer than necessary,” we
observed:
“We have never held that the more
frequent use of a property for a
purpose which does not conform to
the ordinary restrictions of the
neighborhood is an extension of an
infrequent use of the same building for
a similar purpose. We do not think
such a contention is tenable. Nor does
it seem to us that a different use is
made of the Stadium when the players
of games there are paid. The use of the
property remains the same.”
192 Md. at 63, 63 A.2d at 330. This Court concluded, “we
find that the Department had and has power to lease the
Stadium… for the purposes of professional baseball, and
that such use is not an extension of the non-conforming
use heretofore existing….” 192 Md. at 63-64, 63 A.2d at
330-331.
In Nyburg v. Solmson, 205 Md. 150, 106 A.2d 483 (1954), this
Court addressed the question of whether increased usage of
nonconforming property constituted an unlawful extension
of that use or was simply an intensification of the use. At
issue was property on which a garage had been built in
1920, on which cars of nearby residents were parked. In
front of the garage was an open area, “some 164 feet by
129 feet.” 205 Md. at 153, 106 A.2d at 484. In 1931, after
the neighborhood where the garage was located had been
classified as a residential use district, the garage operation
continued without change. 205 Md. at 153, 106 A.2d at 484.
In 1950, the owners of the garage contracted with a new

355

car company to use the open space for the storage of new
cars. 205 Md. at 154, 106 A.2d at 484. In 1953, a complaint
was made by neighbors that the property was being used in
violation of the zoning ordinance. 205 Md. at 154, 106
A.2d at 484. The Board of Municipal and Zoning Appeals
held that, while the garage owner had a valid
nonconforming use for parking, storage and washing motor
vehicles and the sale of gasoline and accessories, that use
was restricted by the nature and extent of the use to which
the open area in front of the garage was put in 1931, the
result of which was that no more than ten vehicles could be
stored on the lot at any one time. 205 Md. at 154, 106 A.2d
at 484-485. The Baltimore City Court reversed, striking
down the restriction “since it amounted to an attempted
prohibition of a legally valid intensification of use.” 205
Md. at 156, 106 A.2d at 485. On appeal, this Court rejected
the appellant’s argument that, without the restriction the
zoning board placed on the number of cars that could be
stored in the open space, there would be a prohibited
extension of a non-conforming use. 205 Md. at 161, 106
A.2d at 488. Explaining our decision, this Court held:
“[H]ere there is not an extension but
merely an intensification of a long
continued non-conforming use. In
Green v. Garrett, … [t]his Court held
that … ‘more frequent use of a
property for a purpose which does not
conform to the ordinary restrictions of
the neighborhood is an extension of
an infrequent use of the same building
for a similar purpose. We do not think
such a contention is tenable.’ … It was
held that although there was no doubt
that the games played at the stadium
had produced a use greatly in excess of
the former use, that intensification was

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not an extension within the meaning
of the Zoning Ordinance.
“We think that the present case is
controlled by the principle of the
Green case and that the court below
was right in striking down the
restriction which the Board had placed
on the use of the open space in front
of the garage, and in affirming
otherwise the findings of the Board.”
205 Md. at 161-162, 106 A.2d at 488, citing and quoting Green,
192 Md. at 63, 63 A.2d at 330.
Jahnigen v. Staley, 245 Md. 130, 225 A.2d 277 (1967), is
similarly instructive. There, a decree by the Circuit Court
for Anne Arundel County, in addition to restrictions related
to and involving expansions of physical facilities, including
the extension of a pier, occurring after the zoning which
prohibited any non-conforming use to those uses in effect
prior to the date of its adoption, 245 Md. at 133, 225 A.2d
at 279, restricted the nonconforming use of marina
property to the rental of seven rowboats. The waterfront
property had been used by its previous owners as a boat
rental property dating from 1946, when a pier was attached
to the land, and continuing after 1949, when a
comprehensive zoning ordinance rezoned the land and
placed the property into an agricultural classification.
On appeal, this Court reaffirmed the principle that
although the purpose of zoning regulations is to restrict
rather than to expand nonconforming uses, Phillips v. Zoning
Commissioner, 225 Md. 102, 169 A.2d 410 (1961), an
intensification of a non-conforming use is permissible so
long as the nature and character of the use is unchanged
and substantially the same facilities are used. 245 Md. at
137, 225 A.2d at 281, see also Nyburg, 205 Md. 150, 106 A.2d
483. While physical expansions like constructing a new pier

357

and use of the land for services other than what was already
present prior to the effective date of the ordinance were
held to be invalid extensions of the nonconforming use,
245 Md. at 138, 225 A.2d at 282, this Court decided that
“[a]ny increase in the number of rowboats rented would be
an intensification of [the] non-conforming use and would
not be an extension.” 245 Md. at 138, 225 A.2d at 282. The
intensification of a non-conforming use, in short, is
permissible so long as the nature and character of the use is
unchanged and substantially the same facilities are used.
245 Md. at 137, 225 A.2d at 281.
To like effect is Feldstein v. LaVale Zoning Board, 246 Md.
204, 227 A.2d 731 (1967). In that case, the issue involved
whether the expansion of a high rise junkyard owned by the
appellant was an extension of a nonconforming use or an
intensification of a nonconforming use. The junkyard,
operating since 1939, was surrounded by property that was
later rezoned for residential use. The junkyard was
recognized as a nonconforming use; however, the zoning
ordinance provided that “all presently existing junkyards
must be screened within a year by the erection of a fence or
wall or by the planting of trees, shrubbery or other
planting.” 246 Md. at 207-208, 227 A.2d at 732. The
appellant had stacked scrap metal higher than it was able to
be concealed. The zoning board alleged, on that basis, that
the owner had unlawfully expanded the nonconforming
use, and sought an order permanently enjoining the
extension of the junkyard beyond the area occupied at the
time the zoning ordinance was adopted. 246 Md. at 208,
227 A.2d at 732.
The chancellors who heard the cases2 found that the
stacking of junk was not an extension of the
nonconforming use, in violation of the zoning ordinance;
2 Two judges, Harold E. Naughton and James S. Getty, sat for this zoning case in

the Circuit Court for Allegany County.

358

rather, it was, they concluded, an intensification of that use.
246 Md. at 209, 227 A.2d at 733. This Court agreed:
“The zoning ordinance … provides
that a nonconforming use shall not be
extended, but that does not mean that
the vested nonconforming use of the
junkyard owner could not be lawfully
intensified. The chancellors held that
the increase in the quantity and height
of the stored scrap metal was an
intensification and not an extension
under the law. We agree … . While a
nonconforming use should not be
extended or perpetrated longer than
necessary, the more frequent present
use of property for the same or a
similar use than that for which it had
been used less frequently theretofore
was held to be an intensification and
not an extension.”
246 Md. at 211, 227 A.2d at 734, citing Green, 192 Md. 52, 63
A.2d 326; Nyburg, 205 Md. 150, 106 A.2d 483. Jahnigen, 245
Md. 130, 225 A.2d 277. See also County Commissioners of
Carroll County v. Zent, 86 Md.App. 745, 587 A.2d 1205
(1991), in which the Court of Special Appeals, addressing a
parcel of land in Carroll County, Maryland, that was zoned
for agricultural use in 1965, but had had a milk delivery
trucking business on its land since 1923, opined that an
increase in the number of decommissioned delivery trucks
stored for parts on property owned by the business would
be an intensification of the nonconforming use for which it
was using the property, not an illegal extension. 86
Md.App. at 757, 587 A.2d at 1211.
In these cases, we have consistently held that merely
increasing the frequency of a nonconforming use did not
constitute an unlawful extension; rather, it was but an

359

intensification of the use. The Court of Special Appeals
distinguishes these cases on the basis that none of them,
with the exception of Green, dealt with the situation
presented in this case:
“But none of these cases involved an
expansion of the temporal limits of
operation. Each concerned, at most,
increasing the amount of business
performed within an existing temporal
framework-in other words, intensifying
the use of the premises during existing
business hours.”
151 Md.App. at 179-80, 824 A.2d at 984-85.
To be sure, as the intermediate appellate court noted, the
cases, with the exception of Green, do not address the
situation sub judice. On the other hand, Green did not draw,
expressly or otherwise, the distinction that the Court of
Special Appeals draws; we did not, in Green, say, or signal in
any way, that any increase in the nonconforming use,
except temporally, by adding days or hours of operation,
would be an intensification, but that the temporal
modification would be an unlawful expansion of the use.
We do not read the cases so narrowly. In each of the cases,
the frequency of the use of the subject property in the
nonconforming manner was increased, often significantly
so, without regard to the hours of operation. Their focus
was, as it should be, on the actual use made of the property,
not the times when that use occurs.
If the intermediate appellate court is correct, Green is no
longer good law and our definition of “intensification” is
misleading, if not largely meaningless. Indeed, the concept
of intensification would have no meaning at all in the
nightclub context, or in any other where there are discrete
hours of operation, such as retail. In Feldstein, we
distinguished an “intensification” of a nonconforming use

360

from an “extension” of such use, noting that the former is
“the more frequent present use of property for the same or
a similar use than that for which it had been used less
frequently theretofore.” 246 Md. at 211, 227 A.2d at 734.
Increasing the number of nights on which adult
entertainment is presented at Club Choices from two to
five, for example, would fit within the definition of
“intensification”–it would be a “more frequent present use
of property for the same or a similar use than that for
which it had been used less frequently theretofore.” In fact,
that was the rationale for Green; going from infrequent
baseball games to their presentation for much of the year
seems a similar, if not identical, scenario.
As we have seen, the Court of Special Appeals views Green
as being “of little precedential value,” 151 Md.App. at 180,
824 A.2d at 985, if not inapplicable. We have not overruled
Green, we do not now do so. Moreover, we are not at all
sure of the accuracy of the intermediate appellate court’s
observation with respect to the timing of the Green
decision, “before the zoning administrative process was
created,” 151 Md.App. at 180, 824 A.2d at 983, with the
result that “the deference owed an administrative body’s
interpretation of its governing statute and the substantial
evidence rule played no role in the Court’s decision.” Id.
The zoning ordinance was enacted in 1931 and we can
assume that its implementation was entrusted to an
administrative agency. The case did not proceed through
the administrative process, however. It was an action for
injunctive and declaratory relief. Therefore, the
administrative agency was not called upon to, and, thus, did
not opine on the subject. Had it done so, the deference due
it would not have carried the day. The Court, in any event,
would have been required to decide whether that
conclusion of law, to which deference was due, was correct.
Nor are we persuaded by the out-of-state cases upon which
the appellees and the Court of Special Appeals relied. Garb-

361

Ko v. Carrollton Township, 86 Mich. App. 350, 272 N.W.2d
654 supports the proposition for which it is offered, the
Court of Appeals of Michigan having answered in the
affirmative the question, “whether the extension of hours
of a grocery store operating as a nonconforming use
constitutes an expansion of the nonconforming use which
can be lawfully restricted by the defendant township.” 86
Mich.App. at 352-353, 272 N.W.2d at 655. It did so,
however, on the basis of the following Michigan policies:
“that the continuation of a nonconforming use must be
substantially of the same size and same essential nature as
the use existing at the time of passage of a valid zoning
ordinance” and that “[t]he policy of the law is against the
extension or enlargement of nonconforming uses, and
zoning regulations should be strictly construed with respect
to expansion.” Id. at 353, 272 N.W.2d at 655, quoting Norton
Shores v. Carr, 81 Mich.App. 715, 720, 265 N.W.2d 802, 805
(1978); Dearden v. Detroit, 70 Mich.App. 163, 169, 245
N.W.2d 700, 703 (1976); White Lake Township v. Lustig, 10
Mich.App. 665, 674, 160 N.W.2d 353, 357 (1968). These
policies would prohibit the distinction between
intensification and expansion that is, and long has been,
recognized in Maryland.
Time-Low Corp. v. City of LaPorte Bd. of Zoning Appeals,
547 N.E.2d 877 (Ind. Ct.App.1989) also is distinguishable
from the case sub judice. Time-Low purchased a plot of land
on which there was a filling station and then applied for a
building permit to convert the filling station to a
convenience store and gas station. The LaPorte Board of
Zoning Appeals issued the building permit, but limited the
hours of operation of the convenience store. As relevant,
LaPorte’s Zoning Ordinance Code provided:

362

”18.57.030 Change to other nonconforming
use.
“A. A nonconforming use may not be
changed to any other nonconforming
use without the permission of the
board of zoning appeals regardless of
whether or not structural changes are
made or required to be made in the
building or premises.
“B. A nonconforming use changed to
a conforming use may not thereafter
be
changed
back
to
any
nonconforming use without the
permission of the board of zoning
appeals. (Prior code § 29-96)
******
”18.57.060 Remodeling, addition to or
alteration of existing use.
“A lawful nonconforming use existing
at the time of the passage of the
ordinance codified in this title shall not
be remodeled, added to or structurally
altered without the permission of the
board of zoning appeals. (Prior code §
29-99)”
The Court of Appeals of Indiana, Third District, agreed
that the change in nonconforming use that the applicant
sought required approval by the Board, and, thus, was
subject to Board regulation. 547 N.E.2d at 879. In support
of its conclusion, the court identified a list of physical
changes, which it characterized as extensive and which it
determined required Board approval. 547 N.E.2d at 879.
Accordingly, it was in this context that the court stated:

363

“The Board of Zoning Appeals ….
may use its judgment and discretion in
making such modification of the
[building commissioner’s] order and
attach such conditions and restrictions
to the granting of a variance as in its
opinion should be made, so that the
spirit of the ordinance shall be
observed and substantial justice done.”
547 N.E.2d at 880, citing City of E. Chicago v. Sinclair Ref. Co.,
232 Ind. 295, 313-314, 111 N.E.2d 459, 467 (1953).
The other two cases, Incorporated Village v. Hillside Ave.
Restaurant Corp., 55 A.D.2d 927, 390 N.Y.S.2d 637 (1977),
and Cornell Uniforms, Inc. v. Township of Abington, 8
Pa.Cmwlth. 317, 301 A.2d 113, 116 (1973), are both
distinguishable and unpersuasive. Cornell Uniforms, like TimeLow, involved temporal restrictions imposed in the wake of
the substantial physical changes to the property that the
applicant sought when changing its nonconforming use. In
Incorporated Village, while the court upheld restrictions
placed on the operating hours of an adult entertainment
club, its rationale for doing so is, to say the least, sparse; the
court provides little in the way of reasoning as to why it
possessed the authority to temporally restrict the hours of
the nonconforming use.
[Reversed.]
3.9. Vested Rights
Metro. Dev. Comm’n v. Pinnacle Media
836 N.E.2d 422 (Ind. 2005)
Anthony W. Overholt, Jeffrey S. McQuary, Office of
Corporation Counsel, Indianapolis, for Appellant.
Alan S. Townsend, George T. Patton, Jr., Paul D. Vink,
Indianapolis, for Appellee.SULLIVAN, JUSTICE.

364

Pinnacle Media, LLC, seeks a declaration that a change in
the zoning ordinance of the City of Indianapolis
concerning billboard location permits is not applicable to
its plan to erect 10 billboards in Indianapolis. Because no
construction or other work that gave Pinnacle a vested
interest in the billboard project had begun on the billboards
at the time of the ordinance change, the ordinance change
did apply to the 10 billboards.
BackgroundPinnacle Media, LLC, erects and leases
advertising billboards. In July, 1999, after some period of
discussion, the City of Indianapolis advised Pinnacle in
writing that the City’s billboard location permit regulation
did not apply with respect to billboards proposed to be
erected in interstate highway rights-of-way because those
rights-of-way were not covered by the City’s zoning
ordinance.
Pinnacle thereupon embarked on a plan to erect billboards
without applying to the City for a permit. Its plan consisted
of three steps. First, it would lease land for this purpose
from Hoosier Heritage Port Authority, an entity that
owned abandoned railroad rights-of-way at points where
the abandoned railroad rights-of-way intersected with or
were otherwise coextensive with interstate highway rightsof-way. Second, it would seek permits from State
government, specifically, the Indiana Department of
Transportation (“INDOT”), which is responsible for
interstate highways. Third, it would erect the billboards
without seeking any approval from the City. Following this
plan, Pinnacle erected two billboards in 1999, after leasing
rights-of-way and obtaining INDOT permits.
Shortly thereafter, Pinnacle initiated efforts to erect 15
additional billboards by securing additional leases and
submitting additional applications to INDOT. The last of
these applications was submitted on April 19, 2000. A
period of negotiation with the State followed during which
INDOT initially denied all 15 of the applications. Pinnacle

365

appealed the denials and ultimately entered into a
settlement with the State. Well over a year later, on June 18,
2001, INDOT approved 10 of the applications and
Pinnacle abandoned its request for the other five in
accordance with the settlement.
Meanwhile, following the erection of the two initial
billboards, the City re-examined its policy in respect of
excluding interstate highway rights-of-way from the
coverage of its zoning ordinance. On April 26, 2000, the
City officially proposed an amendment to this effect to its
zoning ordinance. Pinnacle and other interested parties
received notice of the proposed amendment on April 28,
and were given the opportunity to appear at a public
hearing on the matter on May 17. On July 10, 2000, the
City-County Council enacted into law an amendment to the
zoning ordinance, assigning zoning classifications to the
previously un-zoned land occupied by interstate highways.
Indianapolis/Marion County Rev.Code §§ 730-100 through
-103. This had the effect of making the City’s billboard
location permit applicable to billboards proposed to be
erected in interstate highway rights-of-way.
Following receipt of the INDOT approvals in 2001,
Pinnacle began erecting one of the billboards. The
City issued a stop work order on grounds that
Pinnacle had not obtained the permit for the billboard
required by the amended zoning ordinance.1 Pinnacle
ceased construction and subsequently filed suit against
the City, seeking a declaration that the amendment to
the zoning ordinance was inapplicable to the 10
permits and that the stop work order was void and
unenforceable. The City filed a motion to dismiss,
1 After this lawsuit was filed, the City took the position that Pinnacle needed the

City’s approval to erect billboards even before the zoning ordinance was amended.
Because we hold that the amended ordinance governs the 10 billboards at issue
here, we need not address this contention.

366

which the trial court denied,2 and both parties
subsequently filed for summary judgment. The trial
court granted summary judgment in favor of Pinnacle
and also concluded that Pinnacle was entitled to
attorney fees because the City engaged in “frivolous,
unreasonable, or groundless litigation.” Appellant’s
App. at 9-10. The Court of Appeals affirmed the
determination of the trial court that the amendment to
the zoning ordinance was inapplicable to the 10
permits but reversed the trial court on the attorney
fees issue. Metro. Dev. Comm’n v. Pinnacle Media, LLC,
811 N.E.2d 404, 414 (Ind.Ct.App.2004). We now
grant transfer and reverse the judgment of the trial
court.Discussion
IThe question of whether Pinnacle’s 10 billboards are
subject to the 2000 zoning ordinance amendment
implicates two disparate lines of Indiana cases. Both lines
employ the term “vested rights” and generally stand for the
proposition that a person’s “vested rights” are protected
against retroactive application of a change in law. But each
line takes a quite different approach to defining or
determining when a “vested right” exists, and these
approaches can lead to different results.
AThe first line of cases arises under a zoning law principle
called “nonconforming use.” A nonconforming use is a use
2 In denying the City’s motion, the trial court found that the City was estopped

from arguing that the doctrine of vested rights did not apply because Pinnacle
detrimentally relied on the City’s representations that it did not have jurisdiction to
issue the improvement location permits. Order on Defendant’s Motion to Dismiss
(Pappas, J., pro tempore), Appellant’s App. at 39. The court relied on our decision
in Equicor Dev. v. Westfield-Washington Twp., 758 N.E.2d 34 (Ind.2001). In Equicor,
this Court made an exception to the general rule that “government entities are not
subject to equitable estoppel.” Id. at 39 (citing State ex rel. Agan v. Hendricks Superior
Court, 250 Ind. 675, 678, 235 N.E.2d 458, 460 (1968)). In Fulton County Advisory Plan
Comm’n v. Groninger, 810 N.E.2d 704 (Ind.2004), we made it clear that we found the
facts in Equicor to be “highly unusual.” Id. at 710. The trial court’s ruling here
preceded Groninger.

367

of property that lawfully existed prior to the enactment of a
zoning ordinance that continues after the ordinance’s
effective date even though it does not comply with the
ordinance’s restrictions. Metro. Dev. Comm’n. v. Marianos, 274
Ind. 67, 408 N.E.2d 1267, 1269 (1980). The general rule is
that a nonconforming use may not be terminated by a new
zoning enactment. See Jacobs v. Mishawaka Bd. of Zoning
Appeals, 182 Ind.App. 500, 501-02, 395 N.E.2d 834, 836
(1979) (“An ordinance prohibiting any continuation of an
existing lawful use within a zoned area is unconstitutional
as a taking of property without due process of law and as
an unreasonable exercise of police power.”). In these
situations, it is often said that the landowner had a “vested
right” in the use of the property before the use became
nonconforming, and because the right was vested, the
government could not terminate it without implicating the
Due Process or Takings Clauses of the Fifth Amendment
of the federal constitution, applicable to the states through
the Fourteenth Amendment.3 U.S. Const., amends V &
XIV. See generally, John J. Delaney and Emily J. Vaias,
Recognizing Vested Development Rights as Protected Property in
Fifth Amendment Due Process and Takings Claims, 49 Wash.
U.J. Urb. & Contemp. L. 27, 31-35 (1996).
A relatively frequent subject of land use litigation is
whether a developer can have a “vested interest” in a
nonconforming use that is only intended – construction has
not yet begun at the time of the new enactment – such that
the government cannot terminate it. See Linda S. Tucker,
Annotation, Activities in Preparation for Building as Establishing
Valid Nonconforming Use or Vested Right to Engage in
Construction for Intended Use, 38 A.L.R.5th 737, 752 (1996 &
Supp.2005).

3 See Bd. of Zoning Appeals v. Leisz, 702 N.E.2d 1026, 1031 (Ind.1998), where we held

that a zoning ordinance that provided for the forfeiture of a prior nonconforming
use if it was not registered did not violate the Fifth and Fourteenth Amendments.

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This Annotation reflects the fact that many courts,
including ours, have been presented with cases where a
developer encounters a zoning change after embarking on a
project but before beginning construction. The leading
Indiana case on this subject – discussed in the Annotation
– is Lutz v. New Albany City Plan Comm’n, 230 Ind. 74, 101
N.E.2d 187 (1951).
As a general proposition, the courts have been willing to
hold that the developer acquires a “vested right” such that
a new ordinance does not apply retroactively if, but only if,
the developer “(1) relying in good faith, (2) upon some act
or omission of the government, (3) … has made substantial
changes or otherwise committed himself to his substantial
disadvantage prior to a zoning change.” Delaney & Vaias,
supra, at 31-35 (citing Sgro v. Howarth, 54 Ill.App.2d 1, 203
N.E.2d 173, 177 (1964)).
Indiana law, as enunciated in Lutz, is consistent with these
principles. In that case, the developer acquired real estate
pursuant to an option agreement that required the seller to
demolish a house on the property and clear the lots for
construction of a gasoline service station. The developer
secured a mortgage commitment to finance the
construction and entered into an agreement by which a
petroleum concern would lease and operate the service
station when built. After all of these actions had been taken
but before construction of the service station itself began,
the city enacted a zoning ordinance that did not permit the
erection of gasoline service stations on the real estate in
question. Lutz, 230 Ind. at 78-79, 101 N.E.2d at 189.
When the developer’s application for a zoning variance was
denied by the Board of Zoning Appeals, the developer
appealed, contending that by entering into the lease and
proceeding to convert the real estate to a service station
prior to the passage of the zoning ordinance, his rights to
use of the property in that way had become vested and that
the application of the zoning ordinance to him was

369

unconstitutional. Id. at 77, 101 N.E.2d at 188. The trial
court affirmed the decision of the Board of Zoning
Appeals, as did this Court:
The zoning ordinance herein is, of
course, subject to any vested rights in
the property of appellants acquired
prior to the enactment of the zoning
law. But where no work has been
commenced,
or
where
only
preliminary work has been done
without going ahead with the
construction of the proposed building,
there can be no vested rights. The fact
that ground had been purchased and
plans had been made for the erection
of the building before the adoption of
the zoning ordinance prohibiting the
kind of building contemplated, is held
not to exempt the property from the
operation of the zoning ordinance.
Structures in the course of
construction at the time of the
enactment or the effective date of the
zoning law are exempt from the
restrictions of the ordinance. The
service station was not in the course of
construction so as to give to appellants
vested rights, and was not a
nonconforming use existing at the
time of passage of the ordinance.
Id. at 81-82, 101 N.E.2d at 190.
BThe second line of cases traces its origin in Indiana law to
zoning law but has over the years been invoked more
generally when a person has an application for a
government permit pending at the time a law governing the
granting of the permit changes.

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The lead case in this line illustrates the point. In Knutson v.
State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959)
(on reh’g), this Court held that an application for approval
of a subdivision plat was not subject to the provisions of a
subdivision control ordinance enacted by a town council
after the date on which the application was first filed.4
The Court in Knutson said that “a municipal council may
not, by the enactment of an emergency ordinance, give
retroactive effect to a pending zoning ordinance thus
depriving a property owner of his right to a building permit
in accordance with a zoning ordinance in effect at the time
of the application of such permit.” Id. at 667, 160 N.E.2d at
201 (citing State ex rel. Fairmount Center Co. v. Arnold, 138
Ohio St. 259, 34 N.E.2d 777 (1941)). The Knutson Court
went on to say that “[t]his rule, we believe, is consistent
with the general rule of law that ordinances or statutes
which are substantive in their effect are not retroactive.” Id.
at 668, 160 N.E.2d. at 201. The Court then quoted the
Corpus Juris Secundum: “[T]he general rule, which is almost
universally supported by the authorities, is that
retrospective laws are unconstitutional if they disturb or
destroy existing or vested rights.” Id. (quoting 16A C.J.S.,
Constitutional Law § 417 at 99-103) (emphasis added).
Knutson has been relied upon by the Court of Appeals in a
number of cases for the proposition that a change in law
cannot be applied retroactively in respect of a permit
The procedural setting of Knutson was somewhat complicated. In unrelated
collateral litigation, a trial court had declared the subdivision control ordinance of
the Town of Dyer to be unconstitutional and this Court found that ruling to
control in Knutson. As such, the question presented in Knutson was whether the
developer was entitled to have its plat approved by the Town Council, whose
decision, in the absence of an effective subdivision control ordinance, was
controlled only by the state statute governing subdivisions. This Court ordered the
Town Council to approve the plat. On rehearing, the Town Council argued that a
new subdivision control ordinance had been enacted after the first had been
declared unconstitutional and that the developer’s application had been properly
denied pursuant to the new ordinance’s terms.
4

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application on file with a permitting agency at the time of
the change. See Steuben County v. Family Dev., Ltd., 753
N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a
permit for a landfill); Yater v. Hancock County Bd. of Health,
677 N.E.2d 526 (Ind.Ct.App.1997) (concerning septic
permits); Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt. of
Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied
(concerning a hazardous waste disposal permit); Bd. of
Zoning Appeals of Ft. Wayne v. Shell Oil Co., 164 Ind.App. 497,
329 N.E.2d 636 (1975) (concerning a building permit for
gas station).
II
In one respect, the Lutz and Knutson precedents are quite
consistent. Both clearly stand for the proposition that
changes in zoning ordinances are “subject to any vested
rights,” Lutz, 230 Ind. at 81, 101 N.E.2d at 190; that such
changes “are unconstitutional if they disturb or destroy
existing or vested rights,” Knutson, 239 Ind. at 667, 160
N.E.2d at 201. But in another respect, Lutz and Knutson lie
in uneasy tension with one another. If the land acquisition,
demolition, and site preparation work in Lutz is not enough
to establish a vested interest, how can it be that the mere
filing in Knutson of a building permit (when, by definition,
no construction has yet begun) is enough to do so? In the
words of one commentator, “[i]t is difficult to see how the
theoretically distinguishable concept of nonconforming use,
protecting owners of developed property from the
provisions of subsequently enacted zoning regulations,
could logically be applied to protect a landowner who has
only reached the stage of applying for a building permit.”
Roland F. Chase, Annotation, Retroactive Effect of Zoning
Regulation, in Absence of Saving Clause, on Pending Application for
Building Permit, 50 A.L.R.3d 596, 607 (1973, Supp.2005).
Pinnacle argues adamantly that this is not a nonconforming
use case for which Lutz is precedent but a permit
application case controlled by Knutson. While for reasons we

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will set forth in a moment we think this is a nonconforming
use case, we also think, at least in respect of building
permits, the Knutson rule should be revisited.
To repeat, the Court in Lutz held that “[t]he zoning
ordinance herein is, of course, subject to any vested rights
in the property of appellants acquired prior to the
enactment of the zoning law. But where no work has been
commenced, or where only preliminary work has been
done without going ahead with the construction of the
proposed building, there can be no vested rights.” Lutz,
230 Ind. at 81, 101 N.E.2d at 190. We think this is the
correct rule for nonconforming uses, one that is the rule of
most jurisdictions. See, e.g., Town of Orangetown v. Magee, 88
N.Y.2d 41, 643 N.Y.S.2d 21, 665 N.E.2d 1061 (1996); Finch
v. Durham, 325 N.C. 352, 384 S.E.2d 8 (1989) (reh’g
denied); Snake River Venture v. Bd. of County Comm’rs, 616
P.2d 744 (Wyo.1980); Houston v. Bd. of City Comm’rs, 218
Kan. 323, 543 P.2d 1010 (1975); Blundell v. West Helena, 258
Ark. 123, 522 S.W.2d 661 (1975); Perkins v. Joint City-Council
Planning Comm’n, 480 S.W.2d 166 (Ky.1972).
If “there can be no vested rights” where “no work has been
commenced, or where only preliminary work has been
done without going ahead with the construction of the
proposed building,” then in logic, the filing of a building
permit – an act that must be done before any work is
commenced – cannot alone give rise to vested rights.
Furthermore, at least as to building permits, Knutson is out
of the mainstream. “In most jurisdictions it is clear that, as
a general rule, … a zoning regulation may be retroactively
applied to deny an application for a building permit, even
though the permit could have been lawfully issued at the
time of application.” Chase, supra, at 607. See, e.g., Town
Pump, Inc. v. Bd. of Adjustment, 292 Mont. 6, 971 P.2d 349
(1998) (upholding the retroactive application of a zoning
change where there was a building permit on file); Whitehead
Oil Co. v. Lincoln, 234 Neb. 527, 451 N.W.2d 702 (1990)

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(noting and applying the “general rule”); Gay v. Mayor of
Lyons, 212 Ga. 438, 93 S.E.2d 352 (1956) (upholding the
retroactive application of a zoning change where there was
a building permit on file); Brougher v. Bd. of Pub. Works, 205
Cal. 426, 271 P. 487 (1928)(same); Cayce v. Hopkinsville, 217
Ky. 135, 289 S.W. 223 (1926) (same).
With respect to building permits, then, Knutson’s suggestion
that having a building permit on file creates a vested right
that cannot be overcome by a change in zoning law is
overruled.5
III
Regardless of Knutson’s viability, we do not believe its rule is
available to Pinnacle in this case. While Pinnacle argues
vehemently that this is not a nonconforming use case, we
believe that it is properly analyzed under Lutz’s principles.
When Pinnacle set out to erect the 10 (initially 15)
billboards, there was no location permit required by the
City. This is exactly the position the developer in Lutz was
in when it started out to develop the gasoline service
station. The question there – as we find it to be here – was
whether, at the time of the change in the zoning ordinance,
construction had proceeded on the project to the point that
the developer had a vested interest. As discussed, the Court
held that the construction had not. Lutz, 230 Ind. at 81, 101
N.E.2d at 190.

5 As noted in the text above, the Knutson principle has been applied to applications

for a number of other types of government permits. See Steuben County v. Family
Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for
a landfill); Yater v. Hancock County Bd. of Health, 677 N.E.2d 526
(Ind.Ct.App.1997)(concerning septic permits); Ind. Dep’t of Envtl. Mgmt. v. Chem.
Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App.1992), trans. denied
(concerning a hazardous waste disposal permit). Because the law and facts in each
of these cases differs materially from those applicable to building permits, we limit
our holding today only to building permits.

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In this case, no construction of any kind had proceeded on
the 10 billboards as of April 26, 2000, the date the
ordinance change was officially proposed, or even July 10,
2000, the date it was enacted. Pinnacle does not present us
with any argument that it made construction expenditures
before the enactment of the zoning ordinance change.6 Nor
could it. It was not until 11 months later, June 18, 2001,
that Pinnacle received the separate approvals required by
the State.
Pinnacle argues that its filing of applications for permits
with the State on April 19, 2000, immunized it from the
City’s zoning change but we see no basis in law or logic for
this proposition. While we acknowledge that at times, state
law can pre-empt local law, see, e.g., Ind.Code § 36-1-3-5(a)
(2005), Pinnacle provides us with no authority that there is
state pre-emption here. Local government enjoys wide
latitude from the State in land use regulation. Its authority
includes “not only all powers granted it by statute, but also
all other powers necessary or desirable in the conduct of its
affairs.” Ind. Dep’t of Natural Res. v. Newton County, 802
N.E.2d 430, 432 (Ind.2004) (quotations and citations
omitted). And while here the City has imposed burdens in
addition to those of the State for a party seeking to erect
6 Compare with State ex rel. Great Lakes Pipe Line Co. v. Hendrickson, 393 S.W.2d 481,

484 (Mo.1965). In Hendrickson, a public utility company had acquired land in a
village for the purpose of installing a pumping station. After having been advised
by the village that it had no zoning regulations, the utility had entered into a
contract for the construction of the station. After the utility’s contractors began
work, the village enacted a zoning ordinance that restricted the erection of
pumping stations. Before the ordinance was enacted, the utility had spent or
committed itself to a total of over $64,000 in addition to the amount that it had
paid for the land. Id. at 482-83. The court found that “[a] structure in the course of
construction at the time of the enactment of the ordinance is protected as a
nonconforming use, but mere preliminary work which is not of a substantial nature
does not constitute a nonconforming use.” Id. at 484. The court then held that
because the utility had completed a portion of the structure and had obligated itself
to a great extent of money before the zoning ordinance was passed, the utility had
established a non-conforming use of the land for the purpose of a pumping station
prior to the enactment of the ordinance and had a vested right thereto. Id.

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billboards in interstate rights-of-way, state law has not been
frustrated by the city zoning ordinance. See id at 433. In
other words, this is not a case where anything the City has
done interferes with State prerogatives. Furthermore,
common experience tells us that permits and approvals
from different agencies and levels of government are often
required for a single project. Compliance with one agency’s
or level’s requirements simply does not constitute
compliance with another’s.
Most telling in this respect is the fact that regardless of
what the City’s billboard location regulation was, or even
whether it had one, Pinnacle would still have been required
to obtain State approval for its project. State approval was
in addition to, and not a substitute for, local approval. That
being so, Pinnacle cannot use its compliance with State
requirements as a substitute for compliance with local
requirements.
ConclusionHaving granted transfer, Indiana Appellate Rule
58(A), we reverse the judgment of the trial court as to its
holding that the zoning ordinance was inapplicable to the
10 permits and remand this matter to the trial court with
instructions to grant the City’s motion for summary
judgment. Because we find that the zoning ordinance was
applicable, we also reverse the trial court’s award to
Pinnacle of attorney fees.
SHEPARD, C.J.,
RUCKERconcur

and

DICKSON,

BOEHM,

and

Valley View Industrial Park, Respondent, v. The City
of Redmond, Appellant,
733 P.2d 182 (Wash. 1987)
Ogden, Ogden & Murphy, by Larry C. Martin, James E. Haney,
and Mark A. Eames, for appellant.
Bogle & Gates and Elaine L. Spencer, for respondent.
CALLOW, J.

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….
Valley View Industrial Park is a general partnership formed
in 1978 to develop this specific parcel of land. Following a
protracted interchange between the partnership and the
City of Redmond, within whose boundaries the property
lies, the partnership initiated this action against the City
seeking (1) a writ of mandamus ordering the City to
proceed with site plan review of its light industrial
development in the Sammamish River Valley; (2) a
declaration that the City’s decision to change the zoning of
its property from light industrial to agricultural use was an
uncompensated taking that violated federal and state
constitutions; and (3) damages and attorney’s fees it
incurred from the time of the zoning change.
The City denied the complaint and interposed the following
defenses: (1) that Valley View had failed to meet procedural
prerequisites to suit, including (a) conformance with the
applicable statute of limitations, (b) exhaustion of
administrative remedies, and (c) laches; (2) that the zoning
change represented a valid exercise of police power; (3) that
even if an unconstitutional taking had occurred, Valley
View was not entitled to interim damages and attorney’s
fees.
The trial court dismissed Valley View’s claim for interim
damages but conducted a trial to the court on the
remaining issues. Following trial, the court found for Valley
View. It held that the zoning change was unconstitutional
and ordered the City to proceed with the site plan review.
The City appealed the decision on the grounds it had
asserted at trial. On Valley View’s motion, the case was
transferred here from the Court of Appeals pursuant to
RAP 4.3.
We affirm the trial court’s judgment which holds that
Valley View acquired vested rights to have five building
permit applications processed under the City of Redmond’s

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light industrial use zoning classification in effect at the time
of filing, we affirm the court’s order retaining upon the
property the light industrial use zoning classification, and
we affirm the denial of damages and deny the request for
attorney fees in the cross appeal.FACTSValley View
intends to develop an industrial park on a 26.71-acre parcel
of property in the Sammamish River Valley. The valley
historically was an agricultural area; the soil is some of the
richest in King County. In recent years the agricultural
character of the Sammamish River Valley has changed
drastically. The population has increased significantly.
Commercial and residential development has replaced
many of the farms and the accompanying agricultural
support services, including feed and fertilizer dealers, farm
equipment sellers, and grain elevators. The area around the
Valley View parcel reflects this transition. The property
immediately to the north remains zoned for agricultural
uses. To the northwest, across the road from Valley View,
are three large industrial developments. Puget Sound Power
and Light holds a 250-foot right of way on Valley View’s
south border. South of that right of way is another
industrial park and property zoned for expected
commercial and residential development. The Sammamish
River marks the east edge of the Valley View property.
Across the river, to the southeast, is the site of a proposed
regional shopping center.
The City of Redmond annexed the Valley View parcel from
King County in 1964, and changed the zoning of the parcel
from agricultural to “light industrial.” In 1970, the City
adopted a comprehensive land use plan setting forth the
City’s official policies and goals for future regulation and
use of property.
The City began revising and updating its land use
regulations to achieve conformity with the 1970
comprehensive plan. Concurrently, the farmlands
preservation movement became a force in King County

378

and applied pressure for agricultural zoning of the parcel.
In 1977, a citizens’ advisory committee was formed for the
purpose of formulating recommendations on the land use
plan and regulatory revisions. The committee conducted
numerous public hearings and meetings, culminating in an
official committee proposal which was forwarded to the
city council. Following receipt of the proposal, the city
council conducted extensive deliberations, including
additional public hearings upon the proposal. On June 5,
1979, the council passed ordinance 875, which adopted the
City’s revised land use goals, policies, plans, regulations and
procedures in a volume entitled Community Development
Guide.
The Community Development Guide included an amended
zoning map which adjusted the boundary between the
agricultural and industrial zones in the Sammamish Valley.
The citizen advisory committee recommended that the
council shift the boundary between the agricultural and
light industrial uses to the south, in alignment with a 250foot-wide power transmission line right of way, thereby
providing a visible and spatial separation of the agricultural
and industrial uses. The city council adopted this
recommendation as a part of its comprehensive zoning
revisions. With adoption of the revised zoning map, the
boundary line was extended to the southern boundary of
the Valley View property to adjoin the 250-foot power line
right of way. The zoning of the Valley View property thus
was revised from light industrial to agricultural use.
Valley View formulated and proceeded with plans to
develop an industrial park on the tract. Valley View
intended the industrial park to consist of 12 buildings,
developed in phases. In the first phase, it intended to build
the infrastructure (i.e., the road, utilities, etc.) and the shell
of the first building. It then intended to market the project
and construct additional buildings as it found tenants for
those buildings. The cost of the infrastructure was

379

projected to be so high that the cost would not be
recovered, and the project would not be profitable until
several of the buildings were completed.
Valley View first initiated contact with the city planning
department on September 3, 1978, by submitting a
preliminary site plan for the proposed development. A city
planner informed Valley View representatives that the
proposed industrial park would be subject to site plan
review under Redmond ordinance 733, which provided that
no building permit could be issued for a commercial or
industrial development without prior site plan approval.
Although the preliminary site plan did not contemplate
construction that would require a shoreline development
permit, the city planner incorrectly informed Valley View
that the proposed industrial park would require a shoreline
substantial development permit due to the proximity of the
Sammamish River.
During the conversation on September 3, Valley View was
requested to file, and as a result on September 7, 1978,
Valley View did file, a more detailed site plan, a SEPA
environmental
checklist, a
shoreline substantial
development permit application and plans for the first of
12 buildings to be constructed in the industrial park. As a
result of the discussion on September 3, in which it was
informed that the City would require a shoreline substantial
development permit, Valley View amended the site plan to
include a building which came within 200 feet of the
Sammamish River.
On September 7, 1978, the head of the City’s building
department refused to proceed on the single building
permit application until site plan review had been
completed on the project.
In a September 18 letter, city officials wrote Valley View
for additional information. In response, Valley View
provided some information on sewers and storm drainage,

380

as well as a revised SEPA checklist, a revised site plan and a
proposed protective covenant. These documents were filed
on October 18.
The City requested no additional information for 3 months.
In the interim, it approved a plan to connect the Valley
View property to the storm sewer system in place at the
industrial park to the south. The City collected $2,500 from
Valley View to pay for the extension. On January 22, 1979,
the City informed Valley View that an environmental
impact statement was necessary.
On February 2, Valley View submitted the names of three
consultants to prepare the EIS. The City responded on
March 6, by selecting a consultant not on the Valley View
list. Attempting to avoid further delay, Valley View sought
an appeal of the EIS decision on March 7. The City stated
that no appeal was possible, but suggested a modification
of the project proposal to obviate the need for an EIS.
Valley View submitted a new proposal according to the
City’s suggested modifications.
In early 1979, Redmond officials informed Valley View that
it would have to file additional building permit applications
in order to vest its rights to construct the entire project if
the City downzoned the property. At that time, the City’s
site plan review process for the project had not been
completed. Valley View then filed four additional building
permit applications. The five buildings, for which building
permit applications were filed, totaled approximately
108,000 square feet of space out of the 466,914 square feet
contemplated by the site plan as a whole. Five was the
maximum number of buildings which Valley View
concluded it was feasible to build prior to obtaining tenants
for them.
On May 22, 1979, Valley View submitted an enlarged site
plan and revised protective covenants and offered to
negotiate with the City concerning dedication to the City of

381

a buffer zone to the north of the Valley View property. On
June 5, 1979, the Redmond City Council enacted the
revised zoning code which downzoned the Valley View
property from light industrial to agricultural use. By letter
dated June 6, 1979, the City rejected Valley View’s
modification of its proposal. Valley View did not appeal the
development plan rezone as allowed by the Redmond
ordinance.
The City’s 1976 version of the Uniform Building Code
called for building permits to lapse after 180 days unless the
permits were renewed for another 180 days. The City
notified Valley View in a May 20, 1980 letter that the
building permit applications were deemed abandoned. City
officials, however, later assured Valley View that it still
could proceed under the permits.
After the downzoning, the City took the position that if
Valley View agreed to limit development to the five filed
building permit applications no EIS would be required.
Valley View contended it could not proceed without an
EIS. The City agreed to proceed with an EIS, but later
reversed itself and refused to proceed. Thereafter, in
response to the City’s change in position, Valley View filed
an application to change the city land use plan and zoning
for the property from agricultural to light industrial use.
The City then began preparation of an EIS for the Valley
View project, and on January 23, 1981, issued a final impact
statement for the project. After issuance of the final impact
statement, the City refused to further process Valley View’s
five building permit applications until the city council had
acted on Valley View’s rezone application.
On April 7, 1981, the city council denied the Valley View
rezone request. Valley View did not appeal this decision.
Thereafter, the parties engaged in further discussion in
which Valley View sought to proceed with a modified
proposal. When the City refused to allow Valley View to
proceed with the modified development, this suit was

382

commenced on July 10, 1981. We have set forth in the
appendix the pertinent trial court findings of fact for two
reasons. First, because a number have been challenged, and
second, because a reading of those findings is extremely
helpful in acquiring an understanding of the factual
situation.
….
III. VESTING
Due process requires governments to treat citizens in a
fundamentally fair manner. West Main Assocs. v. Bellevue, 106
Wn.2d 47, 51, 720 P.2d 782 (1986). Consequently, citizens
must be protected from the fluctuations of legislative
policy, West Main Assocs., at 51 (citing The Federalist No. 44,
at 301 (J. Madison) (J. Cooke ed. 1961)), so that they can
plan their conduct with reasonable certainty as to the legal
consequences. West Main Assocs., at 51. Property
development rights constitute “a valuable property right.”
West Main Assocs., at 50 (quoting from Louthan v. King Cy.,
94 Wn.2d 422, 428, 617 P.2d 977 (1980)). Thus new land
use ordinances must satisfy due process standards by
meeting a 2-part test: (1) the new regulation must aim at
achieving a legitimate public purpose; and (2) the means
used to achieve that purpose must be reasonably necessary
and not unduly oppressive upon individuals. West Main
Assocs., at 52; Norco Constr., Inc. v. King Cy., 97 Wn.2d 680,
684, 649 P.2d 103 (1982).
These due process considerations require that developers
be able to take recognized action under fixed rules
governing the development of their land. West Main Assocs.,
at 51. The right of a property owner to use his property
under the terms of the zoning ordinance prevailing at the
time that he applies for a building permit has been settled
for over half a century. State ex rel. Hardy v. Superior Court,
155 Wash. 244, 284 P. 93 (1930). The precept was stated in

383

State ex rel. Ogden v. Bellevue, 45 Wn.2d 492, 495-96, 275 P.2d
899 (1954), which is often quoted as follows:
A property owner has a vested right to
use his property under the terms of the
zoning ordinance applicable thereto. A
building or use permit must issue as a
matter of right upon compliance with
the
ordinance.
The
discretion
permissible in zoning matters is that
which is exercised in adopting the zone
classifications
with
the
terms,
standards, and requirements pertinent
thereto, all of which must be by
general ordinance applicable to all
persons
alike.
The
acts
of
administering a zoning ordinance do
not go back to the questions of policy
and discretion which were settled at
the time of the adoption of the
ordinance. Administrative authorities
are properly concerned with questions
of compliance with the ordinance, not
with its wisdom. To subject individuals
to questions of policy of administrative
matters would be unconstitutional….
… An owner of property has a vested
right to put it to a permissible use as
provided for by prevailing zoning
ordinances. The right accrues at the
time an application for a building
permit is made. The moves and
countermoves of the parties hereto by
way of passing ordinances and
bringing actions for injunctions,
should and did avail the parties
nothing. A zoning ordinance is not
retroactive so as to affect rights that
have already vested.

384

(Citations omitted.) We have rejected the rule of many
jurisdictions which requires a change of position and a
substantial reliance on the building permit before equitable
estoppel arises to rescue the by then financially extended
landowners. 1 R. Anderson, Zoning § 6.24, at 408-09 (2d ed.
1976). See Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958).
Washington’s “date certain vesting rights doctrine” aims at
insuring that new land-use ordinances do not unduly
oppress development rights, thereby denying a property
owner’s right to due process under the law. See West Main
Assocs., at 50-52. Focusing on the date building permit
applications are submitted protects development rights and,
at the same time, provides two safeguards against developer
speculation: (1) once a permit issues, a time limit is imposed
on construction; and (2) preparing the detailed plans and
specifications required for the application involves a
substantial cost to the developer. Hull v. Hunt, at 130. In
addition, the permit application date facilitates determining
with certainty what the developer has applied for and what
specific rights have accrued as a result. See Hull v. Hunt,
supra at 130; see also Mercer Enters. v. Bremerton, 93 Wn.2d 624,
633, 611 P.2d 1237 (1980) (Utter, C.J., dissenting).
In the ordinary course of events, a developer’s right to
develop in accordance with a particular zoning designation
vests only if the developer files a building permit
application that (1) is sufficiently complete, (2) complies
with existing zoning ordinances and building codes, and (3)
is filed during the effective period of the zoning ordinances
under which the developer seeks to develop. West Main
Assocs., at 51; Allenbach v. Tukwila, 101 Wn.2d 193, 676 P.2d
473 (1984). Due process considerations of fundamental
fairness require this court to look beyond these four
requirements to the conduct of the parties only in the rare
case where city officials clearly frustrate a developer’s
diligent, good faith efforts to complete the permit

385

application process. See Mercer Enters. v. Bremerton, supra;
Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359 (1978).
In Parkridge, this court created a limited exception to the
requirement of completeness of building permit
applications. The issue there was whether a right to develop
land could vest despite an incomplete building permit
application when the developer’s diligent attempts to
complete the application prior to the zoning change had
been obstructed by the local government. This court held
that a development right had vested, notwithstanding the
incompleteness of the application, because the developer’s
good faith conduct merits recognition of the vested right.
Parkridge, at 465-66.
This court then applied the Parkridge rule in Mercer
Enterprises to hold that a developer’s building permit
application, including a site plan, can be considered as a
whole for the purpose of determining whether a building
permit complied with the existing zoning ordinances. Mercer
Enterprises, at 633-34. Although standing alone the building
permit exceeded the density restrictions of the zoning
ordinance, when considered together with the site plan for
the total development project, the building permit densities
were within the density restrictions. The developer’s
building permit application was held sufficient to establish
vested rights in that portion of the project in which
building permit applications were filed.
Here, Valley View argues that it has a vested right to build
the five buildings covered under the five filed permit
applications. In addition, Valley View contends it has a
vested right to build the remaining seven buildings
designated in the site plan filed with Redmond, but not
covered by any permit application. The City argues that the
five permit applications were incomplete and therefore
insufficient to vest Valley View’s rights in those five
buildings, much less the seven buildings for which
applications were not filed. As to the five buildings covered

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by incomplete building permits, we conclude that the
Parkridge rule controls. The trial court’s findings clearly
demonstrate the presence of each of the Parkridge elements:
(1) Valley View diligently and in good faith attempted to
obtain building permits; (2) Redmond officials explicitly
frustrated Valley View’s attempts; and (3) as a result, Valley
View’s building permit applications were incomplete. Thus,
Valley View has a vested right to complete the five
buildings for which it filed building permit applications
under the light industrial zoning classifications.
Whether Valley View’s vested right also encompasses the
remaining seven buildings is a question of first impression
for the court. Like the developer in Mercer Enterprises, Valley
View proposed a phased construction scenario. Also similar
to Mercer Enterprises, throughout the negotiations between
Valley View and Redmond, the 26.71-acre project was
considered as a complete whole. 93 Wn.2d at 628. In Mercer
Enterprises, however, this court was not asked to determine
whether the scope of the vested right encompassed the
entire development proposal. As a general principle, we
reject any attempt to extend the vested rights doctrine to
site plan review. Only where a city’s conduct frustrates the
permit application process will we consider looking to the
entire development proposal contained in a site plan.
Because we have held that Valley View has a vested right to
build the five permit application buildings, we consider
those buildings as having been constructed, and review the
validity of Redmond’s downzoning of Valley View’s
property.
To satisfy due process standards, the City’s downzoning of
Valley View’s property decision, like all zoning decisions,
must bear a substantial relation to the public welfare. See
Cathcart-Maltby-Clearview Comm’ty Coun. v. Snohomish Cy., 96
Wn.2d 201, 211, 634 P.2d 853 (1981). Because Redmond
downzoned the property at the specific request of a
number of citizens’ groups and city officials (finding of fact

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50), and because Valley View’s property was the only tract
downzoned to agricultural zoning (finding of fact 61),
Redmond’s actions constitute rezoning. Cathcart, at 212.
Although Redmond’s rezoning decision is granted some
deference, Save a Neighborhood Env’t v. Seattle, 101 Wn.2d
280, 285, 676 P.2d 1006 (1984), there is no presumption of
validity favoring a rezone. Parkridge, at 462. To survive a
challenge, the City must demonstrate that the rezoning of
Valley View’s property bears a substantial relationship to
the general welfare of the affected community. Save a
Neighborhood Env’t v. Seattle, supra at 286.
The City argues that rezoning Valley View’s property serves
two public interests: (1) the preservation of farmland, and
(2) the belief that the power line that runs along the south
edge of Valley View’s property makes a nicer breaking
point between land zoned industrial and land zoned
agricultural than the north edge of Valley View’s property.
When viewed in light of the five buildings to be built on
the property, the City’s rezoning decision bears no
relationship to the public interest it seeks to serve, much
less a substantial relationship.
Valley View’s property is a single tract of land. As the
illustrative site map indicates, when Valley View constructs
the five buildings covered by permit applications, the
buildings would be so located on the 26.71 acres that its
preservation and use as farmland is no longer feasible. In
addition, with five buildings already built on the property,
the power line no longer provides a break between
industrial and agricultural land. The following map
illustrates the placement on the site of the five buildings for
which building permits have been filed.
Five buildings plus necessary access roads, parking and
utility ingress and egress will so cut up the property that any
agricultural use on the remaining portions of the property
could well be uneconomic. Furthermore nothing in the
record indicates that the right to build just five buildings

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makes financial sense. The practical result of changing the
zoning to agricultural could place Valley View in a situation
where economic realities dictate that no buildings will be
built. This would deny Valley View its rights which vested
upon the filing of the five building permit applications.
As the trial court’s findings indicate, Valley View chose the
number and location of the buildings covered by permit
applications in good faith, basing its decision on a number
of factors including: (1) the City would accept five building
permits as enough to vest the right to build the entire
project (finding of fact 34); (2) the location of the buildings
would offer space to prospective tenants with varying
needs (finding of fact 33); and (3) five buildings was the
maximum number of buildings which Valley View
concluded it was possible to build prior to obtaining
tenants (finding of fact 33). Moreover, the rezoning does
not bear a substantial relationship to the public welfare in
light of the evidence that changes in the Redmond area
made Valley View’s property extremely undesirable for
agricultural use, land to the south and west has been, or
rapidly is being, developed for industrial and commercial
purposes, and the Valley View parcel does not qualify for
the King County Agricultural Lands Preservation Program.
Had the City not explicitly frustrated the building permit
process, Valley View would have constructed five buildings
ranging over the complete area of its single tract of land.
Consequently, the City’s subsequent action to downzone
would not have withstood scrutiny. Therefore, the City may
no longer preclude development of the Valley View
property consistent with the code requirements and
restrictions pertaining to the light industrial classification in
effect at the time the building permit applications were
filed.
We hold that when Valley View filed its five building
permit applications on the subject property, it fixed, and
firmly imprinted upon the parcel, the zoning classification it

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carried at the moment of the filing. The City has lost its
chance to change the zoning classification.
However, “a vested right does not guarantee a developer
the ability to build. A vested right merely establishes the
ordinances to which a building permit and subsequent
development must comply.” West Main Assocs., at 53. If the
Valley View parcel can contain 12 buildings within its
boundaries under the terms of the light industrial
classification, the landowner is entitled to construct that
number. Valley View is required to file building permit
applications for the remaining phases of the project and
comply with applicable City ordinances. The City is
required to act in good faith in processing Valley View’s
application.
….
CONCLUSION
We hold that (1) Valley View has the vested right to have
its five building permit applications processed under the
light industrial use classification in existence at the time
such building permit applications were filed; (2) the entire
property must remain zoned as light industrial with the
possibility of additional light industrial buildings being
constructed on the property subject to compliance with
existing city ordinances; (3) no interim taking occurred
justifying an award of damages for a temporary taking; and
(4) each party shall pay its own attorney fees.
DORE, J. (dissenting)
The separation of powers doctrine is a cornerstone of
American jurisprudence. That which has been left to the
Legislature should not be usurped by the judiciary.
Unfortunately, the majority opinion, by rezoning the parcel
of land owned by Valley View from agricultural to light
industry use, does precisely that. Rezoning large parcels of
property has always been a legislative, rather than a judicial

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function, and the majority’s refusal to follow this timehonored tradition is incorrect and unconstitutional.
I would hold that Valley View has vested rights in the five
buildings for which it has filed building permits, because of
the unwarranted interference of the Redmond planning
officials in processing such permits. However, Valley View
admittedly did not file building permits for the other seven
buildings in the site review plan, as it had failed to locate
tenants which were essential to obtain financing to justify
the preparation and filing of seven additional building
permit applications. As the City of Redmond cannot
interfere or obstruct the processing of building permits
which were never completed or filed, Valley View cannot
under our present case law obtain vested rights for these
structures. The majority by allowing construction of the
seven buildings, which Valley View has yet to file building
permits for, overrules the following cases that have
previously held that vesting rights can only be established
by filing for building permits. State ex rel. Ogden v. Bellevue, 45
Wn.2d 492, 275 P.2d 899 (1954); Hull v. Hunt, 53 Wn.2d
125, 331 P.2d 856 (1958); Parkridge v. Seattle, 89 Wn.2d 454,
573 P.2d 359 (1978); Mercer Enters. v. Bremerton, 93 Wn.2d
624, 611 P.2d 1237 (1980); Norco Constr., Inc. v. King Cy., 97
Wn.2d 680, 649 P.2d 103 (1982). I therefore dissent.
VESTING OF THE FIRST FIVE BUILDING PERMITS
The State of Washington presently has one of the most
liberal vested rights doctrines in the nation. The
requirements of the Washington doctrine are that (1) the
applicant file a building permit application (2) which
complies with the existing zoning ordinance and building
codes and (3) is filed during the effective period of the
zoning ordinances under which the applicant seeks to
develop, and (4) is sufficiently complete. West Main Assocs.
v. Bellevue, 106 Wn.2d 47, 50-51, 720 P.2d 782 (1986). The
doctrine in Washington thus provides that an applicant for
a building permit has a vested right to have the application

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processed under the zoning regulations in effect at the time
the building permit application is filed.
In contrast to the Washington rule, the majority of
jurisdictions hold that even the issuance of a building
permit is insufficient to establish a vested right entitling the
applicant to a nonconforming use. The applicant, in
addition to obtaining a building permit, also must establish
a substantial expenditure or change in position in reliance
on the issued building permit to effectuate a vested right.
See 1 R. Anderson, Zoning §§ 6.24, 6.25 (2d ed. 1976);
Comment, Washington’s Zoning Vested Rights Doctrine, 57
Wash. L. Rev. 139 (1981).
An applicant in Washington on the other hand need not
show a “change in position”; the applicant need only file a
sufficiently complete building permit application to vest his
right to have his application processed under the existing
zoning regulations. Allenbach v. Tukwila, 101 Wn.2d 193,
676 P.2d 473 (1984). The rationale for Washington’s “date
of application” vested rights rule is best enunciated in Hull
v. Hunt, 53 Wn.2d 125, 130, 331 P.2d 856 (1958) as follows:
Notwithstanding the weight of
authority, we prefer to have a date
certain upon which the right vests to
construct in accordance with the
building permit. We prefer not to
adopt a rule which forces the court to
search through (to quote from State ex
rel. Ogden v. Bellevue, supra,) “the moves
and countermoves of … parties … by
way of passing ordinances and
bringing actions for injunctions” — to
which may be added the stalling or
acceleration of administrative action in
the issuance of permits — to find that
date upon which the substantial
change of position is made which
finally vests the right. The more

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practical rule to administer, we feel, is
that the right vests when the party,
property owner or not, applies for his
building permit, if that permit is
thereafter issued. This rule, of course,
assumes that the permit applied for
and granted be consistent with the
zoning ordinances and building codes
in force at the time of application for
the permit.
The court concluded that the extensive expense incurred in
securing building permits justifies a presumption that
developers will not speculate in the enhanced values of land
for which building permits have been hurriedly obtained
prior to a zoning change. Hull, at 130. Thus, Washington’s
bright line vesting rule presumes the developer has acted in
good faith by incurring the substantial costs of filing a
complete building permit.
The right to have a complete building permit processed
under the zoning ordinances in effect at the time of
application is chiefly derived from the doctrine of equitable
estoppel and due process concerns of fundamental fairness.
Although the court will not scrutinize the moves and
countermoves of the parties nor inquire into the extent of
expenditure of moneys, the doctrine prohibits a
municipality from repudiating its prior conduct when a
developer has expended the necessary funds to complete a
building permit application. At this stage in the
development process, notions of fundamental fairness
require that the rules which govern the development be
“fixed” and not subject to the “fluctuating policy” of the
Legislature. West Main Assocs., at 51.
Filing a complete building permit application is the
operative act that converts the developer’s mere
expectation of no zoning change into the vested right to

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have the application considered under the existing zoning,
despite a subsequent effective zoning change.
[T]he right vests when the party,
property owner or not, applies for his
building permit, if that permit is
thereafter issued. This rule, of course,
assumes that the permit applied for
and granted be consistent with the
zoning ordinances and building codes
in force at the time of application for
the permit.
Hull, at 130. See also Mayer Built Homes, Inc. v. Steilacoom, 17
Wn. App. 558, 564 P.2d 1170, review denied, 89 Wn.2d 1009
(1977). However, the holder of vested rights is not thereby
entitled to a building permit or to develop the proposed
project, but to have the building permit decision made on
the basis of regulations in effect at the time of application.
West Main Assocs., at 53.
The requirement that a building permit be sufficiently
complete serves two purposes. First, the completed
application enables a court to determine whether the
building permit application complies with the zoning and
building ordinances. Mercer Enters. v. Bremerton, 93 Wn.2d
624, 631, 633-34, 611 P.2d 1237 (1980) (Utter, C.J.,
dissenting). If a building permit application is not
substantially complete, the municipality must reject the
application and no vested right accrues until the omissions
or irregularities are rectified. Second, the completeness
requirement ensures that the developer has proceeded in
good faith, i.e., incurred an investment sufficient enough to
deter speculation. Hull, at 130. The provisions of the
Uniform Building Code and related standards, 1976 edition,
published by the International Conference of Building
Officials generally set the requirements a building permit
application must conform to in order to obtain a permit
approval. See former RCW 19.27.030. The nature of a

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complete building permit application necessarily requires
the expenditure of substantial sums of money. See, e.g.,
Allenbach v. Tukwila, 101 Wn.2d 193, 195, 676 P.2d 473
(1984).
Applying the Washington vested rights doctrine, both the
majority and I find that (1) Valley View filed five building
permit applications (2) which complied with the light
industrial zoning ordinance and building code and (3) were
filed during the effective period of the light industrial
zoning ordinance under which Valley View sought to
construct the five buildings.
The City contends that the fourth element (completeness)
is lacking due to the need for additional information in the
applications prior to processing. Any incompleteness as to
these five building permit applications is governed by the
rule of Parkridge v. Seattle, 89 Wn.2d 454, 573 P.2d 359
(1978). In Parkridge, this court created a limited exception
to the requirement of completeness of building permit
application. The issue there was whether a right to develop
land could vest despite an incomplete building permit
application when the developer’s diligent attempts to
complete the application prior to the zoning change had
been obstructed by the local government. This court held
that the development right had vested, notwithstanding the
incompleteness of the application, because of the
municipality’s attempts to frustrate the project and the
developer’s good faith conduct merited recognition of the
vested right. See also Mercer Enters. v. Bremerton, 93 Wn.2d
624, 611 P.2d 1237 (1980).
Valley View took numerous steps to comply with the City’s
requests for more information. It modified its plans to
conform to city officials’ ideas, and showed a willingness to
meet necessary shortcomings in the applications. The City,
on the other hand, continually made new demands on
Valley View. If more detailed building plan information was
necessary, the building officer had the power under the

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ordinance to request it. The trial judge found strict
compliance with zoning ordinances. That finding need not
be disturbed. Valley View has the right to have its five
building permits processed.
THE ADDITIONAL SEVEN BUILDING PERMITS
At this juncture, both the majority and I agree that Valley
View has the right to have its five building permits
processed under the ordinances in effect prior to the date
that the City of Redmond rezoned its land. At this point,
however, the majority ignores clear precedent, and
formulates new law without any authority. By rezoning the
land as light industrial, the majority violates the doctrine of
separation of powers and acts as a legislative body. This
should not be allowed, and the City of Redmond
undoubtedly will seek relief in the United States Supreme
Court.
The majority is correct when it states that a rezone must
bear a substantial relationship to the general welfare of the
affected community. Majority, at 640; Save a Neighborhood
Env’t v. Seattle, 101 Wn.2d 280, 286, 676 P.2d 1006 (1984);
Save Our Rural Env’t v. Snohomish Cy., 99 Wn.2d 363, 662
P.2d 816 (1983). The majority, however, for no apparent
reason, holds that the Redmond City Council possesses the
power and authority to rezone thousands of acres of land
from light industrial to agricultural — which of course is
correct — but does not have the authority to decide
whether to end the rezone at the north end of Valley
View’s property or at the south end. The majority for some
incomprehensible reason holds that the city council’s
legislative decision where to end a rezone (which they
decided to end at a 250-foot power line right of way and
not at the point the majority countenances approximately
350 feet north of the power line) bears no substantial
relationship to the general welfare of the affected public.
Not possessing the majority’s omniscient powers of what

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the general welfare of the affected public is, I would defer
to the city council’s determination.
The majority creates this situation by looking at Valley
View’s property as a separate tract of land from the rest of
the rezone, and then assuming that the five buildings have
been built for which Valley View has filed building permits.
Specifically, the majority states: “[w]hen viewed in light of
the five buildings to be built on the property, the City’s
rezoning decision bears no relationship to the public
interest it seeks to serve …” Majority, at 640. I note that
the majority has cited no authority that requires a legislative
body, when considering a rezone, to adjust its action to the
possible developments which may or may not occur on the
property. This is because no such authority exists.
To the contrary, although the construction of a number of
industrial buildings on the parcel may inhibit any
agricultural use of the remaining property, it does not
follow that the agricultural zoning is invalid. Securing
vested rights under a prior zoning classification does not
invalidate the subsequently enacted zoning ordinance; the
holder of vested rights is merely entitled to a
nonconforming use to the extent of the vested rights. 7 P.
Rohan, Zoning § 52.08[4] (1986); 1 R. Anderson, Zoning §§
6.24, 6.25 (2d ed. 1976); R. Settle, Washington Land Use §
2.7(c)(vi) (1983). The remaining land in the parcel is not
considered separate from the nonconforming use in a
determination as to whether there is a possibility for
profitable use of the property.
The logic for this result is apparent. In this case, for
example, neither this court nor the Redmond City Council
(nor anyone else for that matter) has any idea whether or
not Valley View will eventually construct the five buildings
for which it has filed permits. The permit applications may
be invalid, Valley View may decide to abandon one or more
of the buildings, or any number of other events could
prevent the construction of those buildings. This is

397

especially true as a building permit does not give the
developer a vested right in perpetuity to build, but only a
right to build for a limited time period which in the City of
Redmond does not exceed 12 months.
The majority’s solution to this case does not account for
the truly speculative nature of the construction of these
buildings. It assumes they have been built, and then makes
this legislative decision as an excuse to rezone large tracts
of land. Furthermore, it creates the following anomalous
situation. Had Valley View proceeded without hindrance
from the City of Redmond, and had it found tenants for
the other 7 buildings it may have filed and received building
permits for all 12 buildings. These would have contained
time restrictions and Valley View’s vested right to construct
buildings would not have lasted in perpetuity. Instead,
because of the delays, Valley View will be given the right to
develop its site with no time restrictions and the City will
never be able to rezone the land. This makes no sense, yet
it is the result the majority opinion provides.
In the subject case, Valley View did not spend any money
at all to prepare building permits for the last seven
structures. The majority, however, has created a new
standard which allows a developer, by filing a few building
permits, to prohibit legislative bodies from rezoning
adjacent land. This usurps the local legislative power to
rezone land according to its beliefs as to the public welfare,
and should not be allowed. I would only allow Valley View
to have vested rights in the five buildings for which it has
filed building permits.
CONCLUSION
I believe the majority opinion commits a flagrant violation
of the separation of powers doctrine. Article 2 of the
Washington State Constitution and article 1 of the United
States Constitution confine the legislative power to the
legislatures of the municipal, state and federal governments,

398

and not to the judiciary. Rezoning land thus has always
been a legislative act prior to this date, and the majority
advances no theory to justify our unilateral decision to
change this situation. I believe that the City of Redmond
possessed and still possesses the power to rezone the
subject tract of land which includes Valley View’s property,
and that any analysis of what rights Valley View has at this
point should be based on our prior decisions concerning
vested rights, rather than a wholesale denial of the inherent
power of a city to zone land within its own legislative
boundaries.
I would
(1) Set aside the trial court’s judgment;
(2) Grant Valley View vested rights to five building
permit applications, and order the City of Redmond
to process such applications in accordance with the
zoning of the City of Redmond in effect at the time
the permits were filed;
(3) Valley View, of course, is free to apply to the
Redmond City Council for a rezone of the land to
permit construction of the additional seven
buildings.
GOODLOE, J., concurs with DORE, J.
3.10. Neighbor Consent Provisions
City of Chicago v. Stratton
44 N.E. 853 (Ill. 1896)
Farson & Greenfield, for appellant.
S. J. Howe, for appellees.
This was a suit brought under a section of the building
ordinance, and is to recover the penalty for a violation of
the ordinance. The section of the ordinance is as follows:

399

‘Sec. 49. It shall not be lawful for any person to locate,
build, construct or keep in any block in which two-thirds of
the buildings are devoted to exclusive residence purposes, a
livery boarding or sales stable, gas house, gas reservoir,
paint, oil or varnish works, within 200 feet of such
residence, on either side of the street, unless the owners of
a majority of the lots in such block fronting or abutting on
the street consent in writing to the location or construction
of such livery stable, gas house, gas reservoir, paint, oil, or
varnish works therein. Such written consent of the property
owners shall be filed with the commissioner of buildings
before a permit be granted for the construction or keeping
of such livery stable, gas house, gas reservoir, paint, oil or
varnish works.’ It is conceded by the appellees that they are
engaged in keeping a livery, boarding, and sale stable at
Nos. 211 and 213 Evanston avenue, in the city of Chicago;
that they were so engaged on the 7th day of June, 1894, at
said place; and that they did not procure the consent of the
owners of a majority of the lots in such block fronting or
abutting on the street before the erection of said building.
The building which they were occupying on the 7th day of
June, 1894, for that purpose, was constructed under a
building permit to erect a two-story and basement brick
carriage repository and stable in the rear, which was issued
July 28, 1893. Instead of building a stable in the rear, it
appears that the horses-some 30 or more-were kept in the
basement. The building is back about 59 feet from the
street, and has a plank driveway running from the entrance
of the stable, which is about 6 feet above the ground, down
to Evanston avenue. The livery stable and driveway are so
near to a residence building on the adjoining lot that
carriages driving out and in shake the whole building. On
the 7th of June, 1894, there were 31 buildings in the block
in which this livery stable is located, 28 of which were
devoted to exclusive residence purposes. No petition has
ever been signed by a majority of the property owners, as
required by the ordinance governing the location and

400

keeping of livery stables in the city of Chicago. This suit
was originally brought before a justice of the peace, where
judgment was entered against the defendants, and was, by
the defendants, appealed to the circuit court of Cook
county. Upon the trial before the court, a jury having been
waived, certain propositions of law, in pursuance of the
statute, were offered on behalf of the plaintiff, presenting
the question of the legaility of the ordinance in question,
which the court was requested to hold as the law governing
the case, but the court held the section of the ordinance to
be invalid, and entered a finding for the defendants. Motion
for a new trial having been overruled, the court entered
judgment upon the finding. The case was taken by appeal
to the appellate court, where the judgment of the court
below was affirmed. The plaintiff now brings the case to
this court by appeal.
The assignment of error chiefly relied upon is that the court
below refused to hold as law the following propositions of
law submitted on behalf of the plaintiff, the city of
Chicago: ‘(2) The court is requested to hold as a
proposition of law that the provisions of section 49 of the
building ordinance of the city of Chicago passed March 13,
1893, wherein it is ordained that it shall not be lawful for
any person to locate, build, construct, or keep in any block
in which two-thirds of the buildings are devoted to
exclusive residence purposes a livery, boarding, or sales
stable, unless the owners of a majority of the lots in such
block fronting or abutting on the street consent in writing
to the location of such livery stable, is not, under the laws
of the said state of Illinois, a delegation of legislative power
by the common council of said city of Chicago to the
property owners of such block. (3) The court is requested
to hold as a proposition of law that section 49 of the
building ordinance of the city of Chicago passed by the
common council of said city on the 13th day of March, A.
D. 1893, is lawful, valid, and binding upon the defendants

401

in this case, and that under the evidence the plaintiff is
entitled to recover. (4) If the court find from the evidence
that on the 6th day of June, 1894, the defendants were
engaged in keeping a livery, boarding, and sales stable
within the limits of the city of Chicago, and that the said
defendants have not at any time procured in writing the
consent of the owners of a majority of the lots in the block
in which said livery stable is located fronting or abutting on
the street upon which the same is located, in pursuance of
the requirements of section 49 of the certain building
ordinance of the city of Chicago passed by the common
council of said city on the 13th day of March, A. D. 1893;
and, if the court further finds from the evidence that twothirds of the buildings in the block in which said livery
stable is located are devoted to exclusive residence
purposes,-then the court is requested to hold as a
proposition of law that the defendants have been guilty of a
violation of said section 49 of said ordinance, and the
plaintiff is entitled to recover in this suit the penalty
provided in said ordinance for the violation thereof.’
MAGRUDER, J. (after stating the facts).
The eighty-second paragraph of section 1 of article 5 of the
city and village act, which has been adopted by the city of
Chicago, provides that the city council in cities shall have
the power ‘to direct the location and regulate the use and
construction of * * * livery stables * * * within the limits of
the city.’ 3 Starr & C. Ann. St. p. 191. The power to make
laws which the constitution confers upon the legislature
cannot be delegated by the legislature to any other body or
authority. The constitutional maxim which prohibits such
delegation of legislative power is not violated when
municipal corporations are vested with certain powers of
legislation in view of the recognized propriety of conferring
upon such municipal organizations the right to make local
regulations, of the need of which they are supposed to be
beteer judges than the legislature of the state. But such

402

powers as are conferred upon municipality, and, so far as
they are legislative, cannot be delegated to any subordinate
or to any other authority. The same restriction which rests
upon the legislature as to the legislative functions conferred
upon it by the constitution, rests upon a municipal
corporation as to the powers granted to it by the legislature.
Cooley, Const. Lim. (6th Ed.) pp. 137, 138, 248, 249.
Accordingly, ‘the principle is a plain one that the public
powers or trusts devolved by law or charter upon the
council or governing body, to be exercised by it when and
in such manner as it shall judge best, cannot be delegated to
others.’ 1 Dill. Mun. Corp. (4th Ed.) § 96. The question,
then, in the present case is whether the power to direct the
location of livery stables and regulate their use and
construction which has been conferred upon the common
council of the city of Chicago by the city and village act is
delegated by section 49 of the building ordinance to the
owners of a majority of the lots in the blocks therein
specified. That section provides that ‘it shall not be lawful
for any person to locate, build, construct or keep in any
block in which two-thirds of the buildings are devoted to
exclusive residence purposes, a livery, boarding or sales
stable * * * within 200 feet of such residence, on either side
of the street, unless the owners of a majority of the lots in
such block fronting or abutting on the street consent in
writing to the location or construction of such livery stable.’
It is to be noticed that the ordinance does not prohibit the
location or construction or keeping of livery stables in
blocks which are vacant, or where the buildings are devoted
to business purposes, or where less than two-thirds of the
buildings are devoted to exclusive residence purposes. It
forbids the location of such stables in blocks where twothirds of the buildings are devoted to exclusive residence
purposes, but provides that they may be located even in
such blocks if the owners of a majority of the lots therein
consent thereto in writing. There is a general prohibition
against the location of livery stables in blocks where two-

403

thirds of the buildings are devoted to exclusive residence
purposes, and then an exception to the prohibition is
created in favor of blocks of the class designated where a
majority of the lot owners consent in writing to the location
of a livery stable there. We are unable to see how this
exception amounts to a delegation by the common council
of its power to direct the location of livery stables to such
lot owners. While it may be true that a livery stable in a city
or town is not per se a nuisance, ‘yet it becomes so if so
kept or used as to destroy the comfort of owners and
occupants of adjacent premises, and so as to impair the
value of their property.’ 13 Am. & Eng. Enc. Law. p. 935.
A livery stable in close proximity to an existing residence
may be injurious to the comfort, and even health, of the
occupants by the permeation of deleterious gases, and by
the near deposit of offal removed therefrom. Shiras v.
Olinger, 50 Iowa, 571, 32 Am. Rep. 138, and note. As cities
are constructed, the division of the territory is into blocks
bounded by streets. The persons who will be injuriously
affected by a livery stable so kept as to be a nuisance are
those whose residences are in the same block where the
stable is located. The prohibition against the location of a
stable in a residence block is for the benefit of those who
reside there. If those for whose benefit the prohibition is
created make no objection to the location of such a stable
in their midst, an enforcement of the prohibition as to that
block would seem to be unnecessary. By section 49 the lot
owners are not clothed with the power to locate livery
stables, but are merely given the privilege of consenting
that an existing ordinance against the location of a livery
stable in such a block as theirs may not be enforced as
against their block. They are simply allowed to waive the
right to insist upon the enforcement of a legal prohibition
which was adopted for their benefit and comfort. It is
competent for the legislature to pass a law the ultimate
operation of which may, by its own terms, be made to
depend upon a contingency. People v. Hoffman, 116 Ill.

404

587, 5 N. E. 596, and 8 N. E. 788, and cases cited. As was
said by the supreme court of Pennsylvania in Locke’s
Appeal, 72 Pa. St. 491: ‘The true distinction * * * is this:
The legislature cannot delegate its power to make a law, but
it can make a law to delegate a power to determine some
fact or state of things upon which the law makes or intends
to make its own action depend.’ In the case at bar the
ordinance provides for a contingency, to wit, the consent of
a majority of the lot owners in the block upon the
happening of which the ordinance will be inoperative in
certain localities. The operation of the ordinance is made to
depend upon the fact of the consent of a majority of the lot
owners, but the ordinance is complete in itself as passed.
What are known as ‘local option laws’ depend for their
adoption or enforcement upon the votes of some portion
of the people, and yet are not regarded as delegations of
legislative power. 13 Am. & Eng. Enc. Law, p. 991.
Delegation of power to make the law is forbidden, as
necessarily involving a discretion as to what the law shall
be; but there can be no valid objection to a law which
confers an authority or discretion as to its execution, to be
exercised under and in pursuance of the law itself.
Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton
Co., 1 Ohio St. 77. Here the provision in reference to the
consent of the lot owners affects the execution of the
ordinance, rather than its enactment. People v. Salomon, 51
Ill. 37; Bull v. Read, 13 Grat. 78; Cargo of the Brig Aurora
v. United States, 7 Cranch, 382; Alcorn v. Hamer, 38 Miss.
652. The ordinance in question does not delegate to a
majority of the lot owners the right to pass, or even
approve of, it. On the contrary, their consent is in the
nature of a condition subsequent which may defeat the
operation of the prohibition against the location of a livery
stable in a block where two-thirds of the buildings are
devoted to exclusive residence purposes, but which was
never intended to confer upon the ordinance validity as an
expression of the legislative will. Alcorn v. Hamer, supra.

405

The express grant of the power to direct the locaton of
livery stables as made by the legislature to the municipal
corporation carries with it all necessary and proper means
to make the power effectual. Huston v. Clark, 112 Ill. 344.
In other words, a grant of legislative power to do a certain
thing carries with it the power to use all necessary and
proper means to accomplish the end; and the legislature
may authorize others to do things which it might properly,
but cannot conveniently or advantageously, do itself.
Railroad Co. v. Jones, 149 Ill. 361, 37 N. E. 247 In
determining the question of the location of a livery stable
the common council may properly consult the wishes and
ascertain the needs of the residents of the block where the
stable is to be kept, and to that end make their written
consent the basis of the action of the commissioner of
buildings in issuing the permit. In matters of purely local
concern the parties immediately interested may fairly be
supposed to be more competent to judge of their needs
than any central authority. Cooley, Const. Lim. (6th Ed.) p.
138. In Meyers v. Baker, 120 Ill. 567, 12 N. E. 79, there was
involved the question of the validity of a section of the
Criminal Code, which provides that: ‘Whoever during the
time of holding any camp or field meeting for religious
purposes and within one mile of the place of holding such
meeting hawks or peddles goods, wares or merchandise or
without the permission of the authorities having charge of
such meeting establishes any tent, booth or other place for
vending provisions or refreshments or sells or gives away,
or offers to sell or give away any spirituous liquor, wine,
cider or beer or practices or engages in gaming or horse
racing, or exhibits or offers to exhibit any show or play
shall be fined,’ etc. Rev. St. Ill. c. 38, § 59. In that case we
held that ‘the rule which would control an ordinance would
also apply to an act of the legislature,’ and that the statute
did ‘not confer the power to licence on the authorities in
charge of the meeting,’ and we there said: ‘The fact that the
act confers on the authorities the right to consent or refuse

406

consent cannot be held to authorize such authorities to
license. The right to consent or refuse consent is one thing,
while the right or power to license a person to conduct a
certain business at a certain place is quite a different thing.
Had the legislature intended to authorize the authorities to
license, language expressing that intention in plain words
would no doubt have been used. But, however this may be,
we see nothing in the language of the act which can be
construed as authorizing the authorities to license.’ Where
an annexation act of the legislature provided that, when
territory was annexed to a city under the provisions of that
act, and, prior to such annexation, there were in force
ordinances providing that licenses to keep dram shops
should not be issued except upon petition of a majority of
the voters residing within a certain distance of the location
of such proposed dram shop, it was held that such
ordinance still remained in force after the annexation, and
that it was not unreasonable. People v. Cregier, 138 Ill. 401,
28 N. E. 812.
The case of City of St. Louis v. Russell, 116 Mo. 248, 22 S.
W. 470, is relied upon as announcing a different view of the
present question from that which is here expressed, but the
ordinance condemned in that case provided that no livery
stable should ‘be located on any block of ground in St.
Louis without the written consent of the owners of onehalf the ground of said block.’ It will be noticed that in the
Missouri case the ordinance requiring the consent of
adjacent property owners related to the entire city. Under
the operation of such an ordinance livery stables might be
totally suppressed and prohibited everywhere within the
municipal limits. The ordinance, however, in the case at bar
is not thus unreasonable, as it relates only to certain
residence districts, which are clearly defined. Within such
specified residence districts, the city council undoubtedly
has the power to prohibit or forbid the location of livery
stables, and, having the power of total prohibition within

407

those districts, it may impose such conditions and
restrictions in relation to their limited area as it may see fit.
For the reasons stated, we are of the opinion that the
ordinance here in question is not void as being a delegation
of legislative power, and that the circuit court erred in not
holding as law the propositions submitted to it as the same
are set foth in the statement preceding this opinion.
Accordingly the judgments of the appellate and circuit
courts are reversed, and the cause is remanded to the circuit
court for further proceedings in accordance with the views
herein expressed. Reversed and remanded.
Eubank v. City of Richmond
226 U.S. 137 (1912)
ERROR TO THE SUPREME COURT OF APPEALS
OF THE STATE OF VIRGINIA.
Mr. S.S.P. Patteson for plaintiff in error.
Mr. H.R. Pollard for defendant in error.MR. JUSTICE
MCKENNA delivered the opinion of the court.
In error to review a judgment of the Hustings Court of the
city of Richmond affirming a judgment of the Police Court
of the city imposing a fine of $25.00 on plaintiff in error for
alleged violation of an ordinance of the city fixing a
building line. The judgment was affirmed by the Supreme
Court of the State. 110 Virginia, 749.
Plaintiff in error attacks the validity of the ordinance and
the statute under which it was enacted on the ground that
they infringe the Constitution of the United States in that
they deprive plaintiff in error of his property without due
process of law and deny him the equal protection of the
laws.
The statute authorized the councils of cities and towns,
among other things, “to make regulations concerning the
building of houses in the city or town, and in their
discretion,… in particular districts, or along particular

408

streets, to prescribe and establish building lines, or to
require property owners in certain localities or districts to
leave a certain percentage of lots free from buildings, and
to regulate the height of buildings.” Acts of 1908, p. 623, 4.
By virtue of this act the city council passed the following
ordinance: “That whenever the owners of two-thirds of the
property abutting on any street shall, in writing, request the
committee on streets to establish a building line on the side
of the square on which their property fronts, the said
committee shall establish such line so that the same shall
not be less than five feet nor more than thirty feet from the
street line…. And no permit for the erection of any
building upon such front of the square upon which such
building line is so established shall be issued except for the
construction of houses within the limits of such line.” A
fine of not less than twenty-five nor more than five
hundred dollars is prescribed for a violation of the
ordinance.
The facts are as follows: Plaintiff in error is the owner of a
lot thirty-three feet wide on the south side of Grace street
between Twenty-eighth and Twenty-ninth streets. He
applied for and received a permit on the nineteenth of
December, 1908, to build a detached brick building to be
used for a dwelling, according to certain plans and
specifications which had been approved by the building
inspector, dimensions of the building to be 26x59x28 feet
high.
On the ninth of January, 1909, the street committee being
in session, two-thirds of the property owners on the side of
the square where plaintiff in error’s lot is situated,
petitioned for the establishment of a building line, and in
accordance with the petition a resolution was passed
establishing a building line on the line of a majority of the
houses then erected and the building inspector ordered to
be notified. This was done, and the plaintiff in error given
notice that the line established was “about fourteen (14)

409

feet from the true line of the street and on a line with the
majority of the houses.” He was notified further that all
portions of his house “including Octagon Bay, must be set
back to conform to” that line. Plaintiff in error appealed to
the Board of Public Safety, which sustained the building
inspector.
At the time the ordinance was passed the material for the
construction of the house had been assembled, but no
actual construction work had been done. The building
conformed to the line, with the exception of the octagon
bay window referred to above, which projected about three
feet over the line.
The Supreme Court of the State sustained the statute,
saying (p. 752) that it was neither “unreasonable nor
unusual” and that the court was “justified in concluding
that it was passed by the legislature in good faith, and in the
interest of the health, safety, comfort, or convenience of
the public, and for the benefit of the property owners
generally who are affected by its provisions; and that the
enactment tends to accomplish all, or at least some, of
these objects.” The court further said that the validity of
such legislation is generally recognized and upheld as an
exercise of the police power.
Whether it is a valid exercise of the police power is the
question in the case, and that power we have defined, as far
as it is capable of being defined by general words, a number
of times. It is not susceptible of circumstantial precision. It
extends, we have said, not only to regulations which
promote the public health, morals, and safety, but to those
which promote the public convenience or the general
prosperity. C., B. & Q. Ry. Co. v. Drainage Commissioners, 200
U.S. 561. And further, “It is the most essential of powers,
at times the most insistent, and always one of the least
limitable of the powers of government.” District of Columbia
v. Brooke, 214 U.S. 138, 149. But necessarily it has its limits
and must stop when it encounters the prohibitions of the

410

Constitution. A clash will not, however, be lightly inferred.
Governmental power must be flexible and adaptive.
Exigencies arise, or even conditions less peremptory, which
may call for or suggest legislation, and it may be a struggle
in judgment to decide whether it must yield to the higher
considerations expressed and determined by the provisions
of the Constitution. Noble State Bank v. Haskell, 219 U.S.
104. The point where particular interests or principles
balance “cannot be determined by any general formula in
advance.” Hudson Water Co. v. McCarter, 209 U.S. 349, 355.
But in all the cases there is the constant admonition both in
their rule and examples that when a statute is assailed as
offending against the higher guaranties of the Constitution
it must clearly do so to justify the courts in declaring it
invalid. This condition is urged by defendant in error, and
attentive to it we approach the consideration of the
ordinance.
It leaves no discretion in the committee on streets as to
whether the street line shall or shall not be established in a
given case. The action of the committee is determined by
two-thirds of the property owners. In other words, part of
the property owners fronting on the block determine the
extent of use that other owners shall make of their lots, and
against the restriction they are impotent. This we
emphasize. One set of owners determine not only the
extent of use but the kind of use which another set of
owners may make of their property. In what way is the
public safety, convenience or welfare served by conferring
such power? The statute and ordinance, while conferring
the power on some property holders to virtually control
and dispose of the proper rights of others, creates no
standard by which the power thus given is to be exercised;
in other words, the property holders who desire and have
the authority to establish the line may do so solely for their
own interest or even capriciously. Taste (for even so
arbitrary a thing as taste may control) or judgment may vary

411

in localities, indeed in the same locality. There may be one
taste or judgment of comfort or convenience on one side
of a street and a different one on the other. There may be
diversity in other blocks; and viewing them in succession,
their building lines may be continuous or staggering (to
adopt a word of the mechanical arts) as the interests of
certain of the property owners may prompt against the
interests of others. The only discretion, we have seen,
which exists in the Street Committee or in the Committee
of Public Safety, is in the location of the line, between five
and thirty feet. It is hard to understand how public comfort
or convenience, much less public health, can be promoted
by a line which may be so variously disposed.
We are testing the ordinance by its extreme possibilities to
show how in its tendency and instances it enables the
convenience or purpose of one set of property owners to
control the property right of others, and property
determined, as the case may be, for business or residence
— even, it may be, the kind of business or character of
residence. One person having a two-thirds ownership of a
block may have that power against a number having a less
collective ownership. If it be said that in the instant case
there is no such condition presented, we answer that there
is control of the property of plaintiff in error by other
owners of property exercised under the ordinance. This, as
we have said, is the vice of the ordinance, and makes it, we
think, an unreasonable exercise of the police power.
The case requires no further comment. We need not
consider the power of a city to establish a building line or
regulate the structure or height of buildings. The cases
which are cited are not apposite to the present case. The
ordinances or statutes which were passed on had more
general foundation and a more general purpose, whether
exercises of the police power or that of eminent domain.
Nor need we consider the cases which distinguish between
the esthetic and the material effect of regulations the

412

consideration of which occupies some space in the
argument and in the reasoning of the cases.
Judgment reversed and case remanded for further proceedings not
inconsistent with this opinion.
Cary v. City of Rapid City
559 N.W.2d 891 (S.D. 1997)
James S. Nelson and Mark J. Connot of Gunderson,
Palmer, Goodsell & Nelson, and Melvin D. Wedmore,
Rapid City, for Plaintiff and Appellant.
Tamara M. Pier, Assistant City Attorney, Rapid City, for
Defendant and Appellee.MILLER, CHIEF JUSTICE.
Jane Cary petitioned the city of Rapid City, South Dakota,
seeking to rezone certain property from a general
agricultural classification to a medium density residential
classification. The City approved an ordinance granting
Cary’s request. Prior to the effective date of the ordinance,
certain neighboring property owners filed a written protest
of the rezoning pursuant to SDCL 11-4-5. Based on the
protest, the ordinance rezoning Cary’s property was
blocked.
Cary brought an action seeking a declaratory judgment and
a writ of mandamus declaring the rezoning ordinance to be
effective. In addition, she requested that the trial court
declare SDCL 11-4-5 inapplicable to her property and
unconstitutional. The trial court declared SDCL 11-4-5
constitutional and applicable to Cary’s property. Cary
appeals. We reverse.
FACTS
This matter was presented to the trial court by stipulation
of facts. The trial court entered findings of fact (even
though findings are superfluous in a stipulated case,
Muhlenkort v. Union Cty. Land Trust, 530 N.W.2d 658,

413

660 (S.D.1995)) and conclusions of law based on the
stipulation.
Cary’s property, which is located in southwestern Rapid
City, was annexed into the City on September 8, 1992. At
the time of annexation, it was classified as “no use”
property pursuant to Rapid City Municipal Code 17.26.010.
Following annexation, City placed a street assessment of
approximately $90,000 on the western portion of the
property. Additionally, the property’s real estate taxes were
increased from $122.36 in 1990 to $3,678.48 in 1995. The
property, however, continued to be used as a horse pasture
and generated rental income of $150 per year.
On December 6, 1993, City adopted an ordinance rezoning
Cary’s property as “general agriculture” property. The City
Planning Department described this rezoning as follows:
The property was zoned General
Agriculture following annexation into
the City limits.
******
The purpose of the General
Agriculture zoning of this property
was to allow it to be used for
agricultural
purposes
until
development was proposed.
As a result of the street assessment and increased property
taxes, Cary decided to sell the property. In 1995, she
received an offer to purchase which was contingent on the
property being rezoned as “medium density residential” to
allow construction of apartment buildings. According to
the buyers, a medium density residential designation was
the lowest zoning classification which would be cost
effective and economically viable for the property.

414

In an attempt to comply with the buyers’ condition, Cary
filed a petition with City seeking to rezone the property.
She complied with all requirements for rezoning. The
Rapid City Fire Department, Engineering Department,
Building Inspector and City Planning Department
recommended approval of the petition. On September 5,
1995, City approved Ordinance 3224 rezoning Cary’s
property as medium density residential property. In
accordance with the law, the ordinance was published on
September 11, 1995, and scheduled to take effect October
1, 1995. On September 21, 1995, more than forty percent
of the neighboring property owners filed a written protest
pursuant to SDCL 11-4-5. The protesters owned less than
eighteen percent of the property neighboring Cary’s
property. Based on the protest, City took the appropriate
legal position that the ordinance could not be effectuated
because of the provisions of SDCL 11-4-5.
Cary then brought an action in circuit court seeking a
declaratory judgment and a writ of mandamus. She asked
the trial court to declare Ordinance 3224 effective and
require City to rezone the property in compliance with her
petition. Additionally, she requested that SDCL 11-4-5 be
declared inapplicable to the property or, in the alternative,
be declared unconstitutional. The trial court denied her
requests. Cary appeals, raising two issues: (1) Whether
SDCL 11-4-5 applies to the property; and (2) whether
SDCL 11-4-5 is constitutional. Because we find SDCL 114-5 to be unconstitutional, we need not address the first
issue.
DECISION
Whether SDCL 11-4-5 is Constitutional
SDCL 11-4-5 provides:
If such a proposed zoning ordinance
be adopted, the same shall be
published and take effect as other

415

ordinances unless the referendum be
invoked, or unless a written protest be
filed with the auditor or clerk, signed
by at least forty percent of the owners
of equity in the lots included in any
proposed district and the lands within
one hundred fifty feet from any part of
such proposed district measured by
excluding streets and alleys. A
corporation shall be construed to be a
sole owner, and when parcels of land
are in the name of more than one
person, ownership representation shall
be in proportion to the number of
signers who join in the petition in
relation to the number of owners. In
the event such a protest be filed, the
ordinance shall not become effective
as to the proposed district against
which the protest has been filed. Such
written protest shall not be allowed as
to any ordinance regulating or
establishing flood plain areas.
Challenges to the constitutionality of a statute must
overcome formidable requirements.
There is a strong presumption that the laws enacted by the
legislature are constitutional and that presumption is
rebutted only when it clearly, palpably and plainly appears
that the statute violates a provision of the constitution.
Further, the party challenging the constitutionality of a
statute bears the burden of proving beyond a reasonable
doubt that the statute violates a state or federal
constitutional provision. Sedlacek v. South Dakota Teener
Baseball Program, 437 N.W.2d 866, 868 (S.D.1989)
(citations omitted). See also State v. Hauge, 1996 SD 48, ¶
4, 547 N.W.2d 173, 175; Kyllo v. Panzer, 535 N.W.2d 896,
898 (S.D.1995); Specht v. City of Sioux Falls, 526 N.W.2d
727, 729 (S.D.1995); In re Certification of a Question of

416

Law (Elbe), 372 N.W.2d 113, 116 (SD 1985). If a statute
can be construed so as not to violate the constitution, that
construction must be adopted. Simpson v. Tobin, 367
N.W.2d 757, 766 (S.D.1985). Relying on our prior holding
in State Theatre Co. v. Smith, 276 N.W.2d 259, 264
(S.D.1979), the trial court determined SDCL 11-4-5 to be
constitutional. On appeal, Cary argues the protest provision
of the statute is unconstitutional1 because it does not
provide standards and guidelines for the delegation of
legislative authority, nor does it contain a legislative bypass
provision to remove the ultimate legislative authority and
lawmaking power from the protesters. She claims the
absence of such provisions is an unlawful delegation of
legislative power that results in a small number of property
owners being able to prevent a landowner’s use of
property. Cary also contends the holding in State Theatre
was in error and is not controlling in the instant case.
The attorney general was provided proper notice of Cary’s
challenge to the constitutionality of SDCL 11-4-5.
SDCL 11-4-5 has been the subject of previous
constitutional review. In State Theatre, SDCL 11-4-5 was
determined to be a consent statute and held constitutional.
276 N.W.2d at 263-64. In determining SDCL 11-4-5 to be
constitutional, the State Theatre court stated:
SDCL 11-4-5 is not a typical “protest”
statute. Normally enabling acts provide
for the filing of protest petitions by a
specified number of property owners
within a prescribed distance of the
“Ordinarily, we will not rule on the constitutionality of a statute unless the
Attorney General has been notified because when an adjudication of
unconstitutionality may seriously affect the general public, it is proper for the
Attorney General to appear on behalf of the Legislature and the people.” West
Two Rivers Ranch v. Pennington Cty., 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687
(citing Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990); Sharp
v. Sharp, 422 N.W.2d 443, 446 (S.D.1988)).
1

417

land affected by the amendment under
consideration. If sufficient protests are
filed, a larger affirmative vote of the
municipal legislative body than
normally needed to enact an ordinance
is required to adopt the protested
amendment and render the protest
ineffective. R. Anderson, American
Law of Zoning § 4.33 (2d Ed.1966).
These provisions have been held
constitutional when challenged as an
unlawful delegation of legislative
power. Garrity v. District of Columbia,
66 U.S.App. D.C. 256, 86 F.2d 207
(1936); Northwood Properties Co. v.
Perkins, 325 Mich. 419, 39 N.W.2d 25
(1949).
SDCL 11-4-5 does allow protest by
neighboring property owners but does
not include a provision for subsequent
municipal legislative action. The
statute is, therefore, analogous to what
are referred to as “consent” statutes.
These statutes require that the consent
of a certain number of affected
neighbors be obtained before a zoning
ordinance is amended. The legislative
body has no power to overrule; the
neighbors are given the ultimate power
to block the amendment. R. Anderson,
American Law of Zoning § 4.36.
The validity of consents has long been
debated; the absence of standards
relating to the giving of consents has
been a major ground for the invalidity
of consent statutes. There appear to be
two categories of consent statutes:
those requiring consent to establish a

418

restriction and those requiring consent
to waive a restriction. The former are
invalid and the latter valid.
276 N.W.2d at 263. The State Theatre court concluded the
result of the protest by other property owners was
analogous to requiring the consent of a number of affected
property owners. Unlike traditional consent statutes, the
consent under SDCL 11-4-5 was required after the
adoption of the ordinance instead of before the adoption.
Id. The court also determined the absence of a statutory
provision to provide for a review of the protests by a larger
vote of the municipality was indicative of a consent statute
rather than a protest statute. Id. Therefore, the State
Theatre court concluded SDCL 11-4-5 to be a consent
statute. Id. at 264.
For the reasons set forth below, we expressly overrule the
holding in State Theatre and conclude SDCL 11-4-5 is
unconstitutional.
Initially, we must determine whether SDCL 11-4-5 is a
consent statute or a protest statute. When analyzing a
statute to determine legislative intent, we must assume the
legislature had in mind all provisions relating to the same
subject. In re Estate of Smith, 401 N.W.2d 736, 740
(S.D.1987). In SDCL ch 11-4, only SDCL 11-4-9 may
require the consent of neighboring landowners as a
prerequisite to effectuating a zoning ordinance. Under
SDCL 11-4-9, consent of any property owners having a
right to protest an ordinance under SDCL 11-4-5 may be
required in certain circumstances in the discretion of the
governing body. SDCL 11-4-9 provides:
The governing body may by ordinance
require as a condition precedent to the
introduction of any ordinance
proposing changes in the zoning
ordinance that there be first filed with

419

the city auditor or clerk the written
consent of the owners not exceeding
sixty percent of the aggregate area
having the right of protest against such
proposed ordinance if adopted,
determined as provided by § 11-4-5.
SDCL 11-4-5, however, makes no mention of consent as a
prerequisite to effectuating a zoning ordinance but, rather,
provides that forty percent of neighboring property owners
may file a written protest following the adoption of a
zoning ordinance. In the event of such a properly filed
written protest, the adopted ordinance “shall not become
effective.” SDCL 11-4-5.
The express language of SDCL 11-4-9 indicates the
legislature’s inclusion of a consent prerequisite in certain
situations. SDCL 11-4-5 does not use language requiring
consent prior to the adoption of zoning ordinances.
Instead, SDCL 11-4-5 specifically uses language allowing
written protests to be filed after the adoption of zoning
ordinances. SDCL 11-4-9 is a proactive statute which, if
exercised by the appropriate governing body, requires
consent to rezoning ordinances be secured prior to the
adoption of the ordinance. SDCL 11-4-5, on the other
hand, is a reactive statute which allows a written protest to
block an ordinance following its adoption. The distinction
between the language of SDCL 11-4-9 and SDCL 11-4-5
indicates the legislature’s intent to provide two different
and distinct methods by which zoning ordinances may be
limited. We now conclude, based on the plain language of
SDCL 11-4-5, the legislature’s specific inclusion of a
consent provision in SDCL 11-4-9 and the intent of the
legislature as expressed through all provisions of SDCL ch
11-4, that SDCL 11-4-5 is a protest statute.
Having determined SDCL 11-4-5 to be a protest statute, we
now turn to the constitutionality of the statute.

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Legislative power is vested in the legislature and this
essential power may not be abdicated or delegated. SD
Const Art III, § 1; Ind. Community Bankers Ass’n v. State,
346 N.W.2d 737, 743 (S.D.1984); Schryver v. Schirmer, 84
S.D. 352, 171 N.W.2d 634, 635 (1969). When a legislative
body retains a police power, articulated standards and
guidelines to limit the exercise of the police power are
unnecessary. Bashant v. Walter, 78 Misc.2d 64, 355
N.Y.S.2d 39, 44 (N.Y.Sup.Ct.1974). Police powers which
are delegated, however, must include minimum standards
and guidelines for their application. Id. 355 N.Y.S.2d at 45.
The failure to provide standards and guidelines for the
application of the police power constitutes a delegation of
legislative power repugnant to the due process clause of the
Fourteenth Amendment. Seattle Title Trust Co. v. Roberge,
278 U.S. 116, 122, 49 S.Ct. 50, 52, 73 L.Ed. 210, 213
(1928); Bashant, 355 N.Y.S.2d at 45.
Zoning ordinances find their justification in the legislative
police power exerted for the interest and convenience of
the public. Eubank v. Richmond, 226 U.S. 137, 142, 33
S.Ct. 76, 77, 57 L.Ed. 156, 159 (1912). A delegation of this
legislative power requires appropriate standards and
guidelines. Id. See also Drovers Trust & Savings Bank v.
City of Chicago, 18 Ill.2d 476, 165 N.E.2d 314, 315 (1960);
Shannon v. City of Forsyth, 205 Mont. 111, 666 P.2d 750,
752 (1983). Additionally, “ ‘in order for an ordinance to
comply with the requirements essential to the exercise of
police power …, it is essential that there should be an
appellate body, such as the City, with the power to review
exceptional cases.’ ” Shannon, 666 P.2d at 752 (quoting
Freeman v. Board of Adjustment, 97 Mont. 342, 356, 34
P.2d 534, 539 (1934)).
In the instant case, SDCL 11-4-5 does not provide
guidelines or standards for protesting an adopted
ordinance. So long as a certain number of neighboring
property owners file a written petition, those property

421

owners may impose or create restrictions on neighboring
property without reason or justification.
A person’s right to use his or her land for any legitimate
purpose is constitutionally protected. Seattle Trust, 278
U.S. at 121, 49 S.Ct. at 52, 73 L.Ed. at 213. SDCL 11-4-5,
however, allows the use of a person’s property to be held
hostage by the will and whims of neighboring landowners
without adherence or application of any standards or
guidelines. Under SDCL 11-4-5, “the property holders who
desire to have the authority to establish a restriction may do
so solely for their own interests or even capriciously. Taste
(for even so arbitrary a thing as taste may control) or
judgment may vary .” Eubank, 226 U.S. at 144, 33 S.Ct. at
77, 57 L.Ed. at 159. Such a standardless protest statute
allows for unequal treatment under the law and is in clear
contradiction of the protections of the due process clause
of the Fourteenth Amendment. See Id.
Furthermore, SDCL 11-4-5 provides no legislative bypass
to allow for review of a protest. The filing of a written
protest requires that the adopted ordinance “shall not
become effective.” SDCL 11-4-5. By allowing forty percent
of the neighboring property owners to block the
effectuation of an adopted ordinance approved by City, as
being consistent with the best interests of the public, SDCL
11-4-5 allows a potentially small number of neighboring
property owners to make the ultimate determination of the
public’s best interest.2 The absence of a review provision or
some method by which a protest is reviewed by a legislative
body makes the protest filed under SDCL 11-4-5
determinative and final. See Garrity v. District of Columbia,
66 U.S.App. D.C. 256, 86 F.2d 207 (1936); Northwood
2 As presently written, SDCL 11-4-5 would allow the owner of one small parcel of

land within one hundred fifty feet of a large parcel of land to effectively block any
proposed use of the large parcel of land so long as the small parcel owner
constituted forty percent of neighboring property owners and a written protest was
filed.

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Properties v. Perkins, 325 Mich. 419, 39 N.W.2d 25 (1949).
The ultimate determination of the public’s best interest is
for the legislative body, not a minority of neighboring
property owners. See Eubank, 226 U.S. at 143, 33 S.Ct. at
77, 57 L.Ed. at 159. Delegations of legislative authority
which allow this ultimate decision to be made by a minority
of property owners without an opportunity for review are
unlawful. Id.
The protest provision of SDCL 11-4-5 is unconstitutional.
We therefore expressly overrule the previous holding of
State Theatre to the extent that it conflicts with this ruling.
Reversed.
SABERS, AMUNDSON, KONENKAP and GILBERSTON, JJ.,
concur.
Buckeye Community Hope Foundation v. City of
Cuyahoga Falls
82 Ohio St. 3d 539, 697 N.E.2d 181 (1998).
Syllabus by the Court
The citizens of a municipality may not exercise powers of
referendum, by charter or other means, greater than those
powers granted by Section 1f, Article II of the Ohio
Constitution.
Pursuant to Section 1f, Article II of the Ohio Constitution,
actions taken by a municipal legislative body, whether by
ordinance, resolution, or other means, that constitute
administrative action, are not subject to referendum
proceedings.
The passage by a city council of an ordinance approving a
site plan for the development of land, pursuant to existing
zoning and other applicable regulations, constitutes
administrative action and is not subject to referendum
proceedings.
ON MOTION FOR RECONSIDERATION

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Appellant Buckeye Community Hope Foundation
(“Buckeye Hope”), a nonprofit Ohio corporation, develops
housing for individuals through the use of state grants and
tax credits. Buckeye Hope is affiliated with Cuyahoga
Housing Partners, Inc. and Buckeye Community Three L.P.
(“Buckeye Three”), also appellants herein.
In 1995, Buckeye Three purchased a tract of land in
Cuyahoga Falls for the purpose of building a seventy-two
unit apartment complex. The land was zoned for
multifamily use. Subsequently, the Cuyahoga Falls Planning
Commission unanimously approved a site plan concerning
the proposed complex. Pursuant to Section 1.7, Article
VIII of the Charter of Cuyahoga Falls, the plan was then
submitted to the City Council of Cuyahoga Falls for its
approval.
On April 1, 1996, the city council ratified the decision of
the planning commission by passing Ordinance No. 481996. The ordinance provided, in part, that “City Council
approves the plan for development of land situated in an R17 Medium Density Multiple Family zoning district in
accordance with such district and zoning regulations as
stipulated in the Codified Ordinances of the City of
Cuyahoga Falls and as approved by the Planning
Commission * * *.”
Following passage of the ordinance, a group of residents of
Cuyahoga Falls filed referendum petitions with the clerk of
city council. The petitions sought a referendum to approve
or reject Ordinance No. 48-1996, pursuant to Section 2,
Article IX of the municipal charter, which provides, in
relevant part, that the citizens of Cuyahoga Falls “have the
power to approve or reject at the polls any ordinance or
resolution passed by the Council * * *.” (Emphasis added.) The
Summit County Board of Elections then certified that the
petitions contained a sufficient number of valid signatures
to be placed on the November 1996 ballot.

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On May 1, 1996, the appellants filed a complaint against
the appellees in the Court of Common Pleas of Summit
County, requesting injunctive relief and a declaration that
the ordinance could not be challenged by referendum
because its passage by the city council was an
administrative, rather than legislative, action. Appellants
claimed that Section 1f, Article II of the Ohio Constitution
did not grant powers of referendum to citizens of
municipalities on administrative actions taken by municipal
legislative bodies.
The trial court denied the appellants’ request for injunctive
relief. The court also determined that the Charter of
Cuyahoga Falls permitted the residents of the city to
exercise powers of referendum on any action taken by the
city council, regardless of whether the action taken was
legislative or administrative in nature.
Appellants appealed the decision of the trial court to the
Court of Appeals for Summit County. The court of appeals
affirmed the judgment of the trial court, holding that
Section 1f, Article II of the Ohio Constitution does not
limit the referendum powers of charter municipalities such
as Cuyahoga Falls.
Pursuant to the allowance of a discretionary appeal, this
court affirmed the judgment of the court of appeals.
Buckeye Community Hope Found. v. Cuyahoga Falls
(1998), 81 Ohio St.3d 559, 692 N.E.2d 997.
The cause is now before this court upon a motion for
reconsideration filed by the appellants.
Zeiger & Carpenter, John W. Zeiger, Jeffrey A. Lipps and
Michael N. Beekhuizen, Columbus; McFarland Law Office,
and J. Drew McFarland, Granville, for appellants.
MOYER, CHIEF JUSTICE.
This court has invoked the reconsideration procedures set
forth in S.Ct.Prac.R. XI to “correct decisions which, upon

425

reflection, are deemed to have been made in error.” State
ex rel. Huebner v. W. Jefferson Village Council (1995), 75
Ohio St.3d 381, 383, 662 N.E.2d 339, 341. For the reasons
that follow, we grant the appellants’ motion for
reconsideration and reverse the judgment of the court of
appeals.
I
Section 3, Article XVIII of the Ohio Constitution grants
powers of local self-government to municipalities by
providing, “Municipalities shall have authority to exercise
all powers of local self-government and to adopt and
enforce within their limits such local police, sanitary and
other similar regulations, as are not in conflict with general
laws.” In exercising those powers, municipalities may
choose to govern themselves by charter in accordance with
Section 7, Article XVIII of the Ohio Constitution: “Any
municipality may frame and adopt or amend a charter for
its government and may, subject to the provisions of
section 3 of this article, exercise thereunder all powers of
local self-government.”
It is well settled that although the Ohio Constitution grants
broad powers of local self-government to municipalities,
the scope of those powers is not without limits. In Canton
v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337
N.E.2d 766, this court interpreted Section 3, Article XVIII
as follows: “This section, adopted in 1912, preserved the
supremacy of the state in matters of ‘police, sanitary and
other similar regulations,’ while granting municipalities
sovereignty in matters of local self-government, limited only
by other constitutional provisions.” (Emphasis added.) Id. at 65,
73 O.O.2d at 287, 337 N.E.2d at 769. See, also, State ex rel.
Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio
St.3d 17, 20, 577 N.E.2d 645, 647.
In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d
137, 233 N.E.2d 864, paragraph one of the syllabus, we

426

articulated the limits of charter government by stating that
“a charter city has all powers of local self-government except
to the extent that those powers are taken from it or limited by other
provisions of the Constitution or by statutory limitations on the
powers of the municipality which the Constitution has
authorized the General Assembly to impose.” (Emphasis
added.) More recently, we stated that “a municipality that
chooses to adopt a charter does so in order to manage its
own purely local affairs without interference from the state,
with the understanding that these local laws will not conflict with the
Constitution and general laws.” (Emphasis added.) Rispo Realty
& Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564
N.E.2d 425, 426-427.
The City Charter of Cuyahoga Falls provides that voters
may exercise powers of referendum on any ordinance or
resolution passed by the city council. The appellants
contend that this provision conflicts with Section 1f, Article
II of the Constitution, which provides, “The initiative and
referendum powers are hereby reserved to the people of
each municipality on all questions which such
municipalities may now or hereafter be authorizedby law to
control by legislative action; such powers may be exercised
in the manner now or hereafter provided by law.”
Words used in the Constitution are construed according to
their usual or customary meaning. See State ex rel. Herman
v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d
995, 998; R.C. 1.42. Section 1f, Article II reserves
referendum powers to the people of “each municipality.”
Those words are unambiguous. There is no distinction
between charter municipalities and municipalities that have
no charter. Additionally, Section 1f, Article II is the sole
constitutional source of initiative and referendum powers,
reserved by the people of the state to the people of each
municipality.
Section 1f, Article II provides initiative and referendum
powers only on those questions that municipalities “may

427

now or hereafter be authorized by law to control by
legislative action.” We have interpreted this phrase to
exclude, from referendum proceedings, administrative
actions taken by a city council.1 In Myers v. Schiering
(1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, we
held that “under Section 1f of Article II of the Ohio
Constitution, municipal referendum powers are limited to
questions which municipalities are ‘authorized by law to
control by legislative action.’ ” Myers at paragraph one of
the syllabus. There, we determined that the passage of a
resolution “granting a permit for the operation of a sanitary
landfill, pursuant to an existing zoning regulation,
constitutes administrative action and is not subject to
referendum proceedings.” Id. at paragraph two of the
syllabus. See, also, State ex rel. Srovnal v. Linton (1976), 46
Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.
The prior majority opinion in this case determined that
both Myers and Srovnal were inapposite because neither
case presented an issue regarding referendum powers
granted by charter. That conclusion was not correct.
The prior majority opinion reasoned that because Section
1f, Article II is not a self-executing provision, charter
municipalities enacting ancillary legislation to carry out the
principles enunciated in Section 1f, Article II were not
restricted to following the statutory initiative and
referendum procedures enacted by the General Assembly
for non-charter municipalities. Buckeye Hope, 81 Ohio
St.3d at 565-566, 692 N.E.2d at 1001-1002. The prior
majority opinion then concluded that by virtue of Section
7, Article XVIII, charter municipalities were not limited by
Section 1f, Article II to providing referendum powers only

1 As a municipal legislative body, city councils may act in an administrative capacity.

Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500,
paragraph one of the syllabus.

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for actions legislative in nature. Id. at 566, 692 N.E.2d at
1002.
It is true that charter municipalities, in providing for
referendum and initiative powers, are not restricted to the
statutory mechanisms for initiative and referendum
proceedings that govern non-charter municipalities. Charter
provisions may be more restrictive, or less restrictive than
those statutory procedures pursuant to the power of local
self-government granted by the people under Sections 3
and 7 of Article XVIII, as the prior majority opinion noted.
Id. at 565-566, 692 N.E.2d at 1001-1002. However, both
the statutory procedures enacted by the General Assembly
to carry into effect Section 1f, Article II, and provisions
enacted by charter municipalities to do the same, must be
consistent with the specific powers granted by Section 1f,
Article II, since it is the sole constitutional source for
referendum and initiative powers. Otherwise, the meaning
of any constitutional provision that is not self-executing,
and therefore requires ancillary legislation, could be altered
by the words of the legislation carrying the provision into
effect.
Accordingly, there is no persuasive reason to deviate from
our well-established case law as stated in Myers and
Srovnal. Section 1f, Article II clearly limits referendum and
initiative powers to questions that are legislative in nature.
Charter municipalities are subject to this limitation, as the
powers of local self-government granted pursuant to
Sections 3 and 7 of Article XVIII are subject to the
limitations of other provisions of the Constitution. See
Bazell, at paragraph one of the syllabus, and Whitman, 44
Ohio St.2d at 65, 73 O.O.2d at 287, 337 N.E.2d at 769.
The section of the Charter of Cuyahoga Falls providing
that voters may exercise powers of referendum on any
ordinance or resolution passed by the city council is
constitutionally invalid. Voters of Cuyahoga Falls may
exercise powers of referendum on any ordinance or

429

resolution that constitutes legislative action. Section 1f,
Article II does not authorize the residents of Cuyahoga
Falls to initiate referendum proceedings on an action taken
by the city council that is not legislative in nature. Section
1f, Article II permits initiative and referendum powers only
on those matters that constitute legislative action.
Therefore, we hold that the citizens of a municipality may
not exercise powers of referendum, by charter or other
means, greater than those powers granted by Section 1f,
Article II of the Ohio Constitution.
II
The remaining question for our determination is whether
the approval of the site plan by the city council constituted
administrative or legislative action.
The city argued that the approval of the site plan was a
legislative action because the action was taken by adopting
an ordinance. In support of its position, the city cited
Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42
O.O.2d 1, 233 N.E.2d 500, paragraph two of the syllabus,
which states that “the test for determining whether the
action of a legislative body is legislative or administrative is
whether the action taken is one enacting a law, ordinance
or regulation, or executing or administering a law,
ordinance or regulation already in existence.”
The question presented to this court in Donnelly was
whether the action of a city council in failing to approve the
recommendation of the city’s planning commission for a
resubdivision of a parcel of real estate constituted legislative
or administrative action. Id. at 3, 42 O.O.2d at 2, 233
N.E.2d at 501. This court determined that the action was
administrative. Id. at 4, 42 O.O.2d at 3, 233 N.E.2d at 502.
In arriving at that conclusion, the court stated, “ ‘The
crucial test for determining that which is legislative from
that which is administrative or executive is whether the
action taken was one already making a law, or executing or

430

administering a law already in existence.’ * * * If, then, the
action of a legislative body creates a law, that action is legislative,
but if the action of that body consists of executing an existing law, the
action is administrative.” (Emphasis added.) Id. at 4, 42
O.O.2d at 2-3, 233 N.E.2d at 502, citing Kelley v. John
(1956), 162 Neb. 319, 321, 75 N.W.2d 713, 715. Therefore,
paragraph two of the syllabus in Donnelly established that
the test requires an examination of the nature of the action
taken, rather than the mere form in which it is taken.2
Accordingly, the city’s position that the approval of the site
plan was a legislative action because the council took action
via an ordinance (rather than by resolution or other means)
is in error.
Additionally, the city argued that the ordinance approving
the site plan constituted legislative action because city law
stated that decisions made by the city council relating to
approvals of site plans “shall be considered as legislative
rather than administrative actions.” Cuyahoga Falls Zoning
Ordinance No. 1171.03(c). This argument also is without
merit. The city council cannot designate an action as
legislative simply because it desires the action to be
legislative. Donnelly requires that the nature of the action
taken determines whether it is legislative or administrative,
i.e., whether the action creates or establishes law, or
whether the action merely applies existing law to a given
situation. Donnelly at 4, 42 O.O.2d at 2, 233 N.E.2d at 502.
Additionally, it is our constitutional duty, in interpreting the
words of Section 1f, Article II, to independently analyze
whether the action by the city is a legislative action.
The action taken by the city council here was clearly
administrative in nature. Ordinance No. 48-1996 passed by
the city council approved a plan for the “development of
2 The quoted language in the text of Donnelly is instructive in determining the

meaning of paragraph two of the syllabus because paragraph two itself is not stated
within the text.

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land * * * in accordance with such district and zoning
regulations as stipulated in the Codified Ordinances of the
City of Cuyahoga Falls and as approved by the Planning
Commission * * *.” The ordinance merely approves the
planning commission’s application of existing zoning
regulations to the plan submitted by the appellants. The
ordinance has no general, prospective application such that
the action taken would fit within the usual and customary
meaning of the phrase “legislative action” contained in
Section 1f, Article II. See Black’s Law Dictionary (6
Ed.1990) 899 (defining “legislative act” as “law * * * passed
by legislature in contrast to court-made law. One which
prescribes what the law shall be in future cases arising
under its provisions.”). Rather, the city council determined
the rights of the appellants by applying existing law to the
site plan submitted by the appellants. Accordingly,
adoption of Ordinance No. 48-1996 was an administrative
act, and therefore was not a legislative action that could be
subjected to referendum proceedings pursuant to Section
1f, Article II.
Therefore, we hold that pursuant to Section 1f, Article II of
the Ohio Constitution, actions taken by a municipal
legislative body, whether by ordinance, resolution, or other
means, that constitute administrative action, are not subject
to referendum proceedings. The passage by a city council
of an ordinance approving a site plan for the development
of land, pursuant to existing zoning and other applicable
regulations, constitutes administrative action and is not
subject to referendum proceedings.
Pursuant to S.Ct.Prac.R. XI, the timely filing of a motion
for reconsideration temporarily prevents the issuance of a
mandate in accordance with the court’s judgment. A timely
motion was filed in this cause. Thus, this court has not yet
issued a mandate in this action to implement our opinion
rendered on May 6, 1998, and reported at 81 Ohio St.3d
559, 692 N.E.2d 997. Under S.Ct.Prac.R. XI(3)(A)(2),

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where a timely filed motion for reconsideration is granted, a
mandate shall issue at the time the Supreme Court’s
judgment entry on reconsideration is entered. In
accordance with our grant of the motion for
reconsideration today, a mandate implementing this
opinion shall also issue today.
For the foregoing reasons, we grant the motion for
reconsideration and reverse the judgment of the court of
appeals.3
Reconsideration granted and judgment reversed.
PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
LUNDBERG STRATTON, J., concurs separately.
DOUGLAS, RESNICK and FRANCIS E. SWEENEY,
Sr., JJ., dissent.
LUNDBERG STRATTON, JUSTICE, concurring.
As the justice who changed her vote on an opinion that has
already been published, I feel obliged to explain my
decision to reconsider and to join the former dissenters in
issuing a new majority opinion.
As a trial judge, issues before me were frequently clear, easy
to resolve, and more black and white (though certainly not
always). However, when a case reaches the Supreme Court,
the black and white issues have often been resolved by
settlement, fallen by the wayside, or have been resolved by
the lower courts by established precedent, case law, or
statute. More frequently, the issues we accept for full
consideration upon the allowance of a discretionary appeal
are now gray-what did the drafters of the United States or
the Ohio Constitutions mean by this broad language we
3 Our earlier opinion, including paragraphs one and two of the syllabus, as reported

at 81 Ohio St.3d 559, 692 N.E.2d 997, is hereby nullified in all respects by virtue of
our decision today, and thus has no controlling authority.

433

must apply to this narrow fact pattern or to this twentieth
century technology issue? What did the legislature intend by
this confusing statute? Did the legislature even think that
the statute would ever be applied as the parties now
contend it should be? Who is right-the three very
experienced appellate court districts who believe this new
law is constitutional or the four other equally learned and
respected appellate districts who strongly disagree? Does
the court or the General Assembly decide public policy?
What if public policy is overriding the constitutional rights
of a minority? These are tough issues we struggle with daily,
seeking that correct interpretation, that fine balancing of
rights. I constantly challenge myself as to whether this is
the “right” decision or whether I have reached it because
my own judicial philosophy colors my outlook. Am I being
an activist or deferring too much to the legislature? There
are no simple answers.
Into this difficult mix comes Buckeye Community Hope
Found. v. Cuyahoga Falls-that all-too-complex clash
between two groups-the developer seeking to move
forward on an unpopular but worthy project opposed by
the homeowners who do not want that project “in their
backyard.” Both sides have valid, strong legal and
emotional arguments; both firmly believe in their cause;
both look to us to finally resolve the conflict.
I voted with the majority in Buckeye Community Hope
Found. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692
N.E.2d 997, because I passionately believe in the rights of
the voter. It is the cornerstone of our system of justice.
I grew up in three foreign countries as a daughter of
American missionaries. I was born in Thailand and
attended boarding schools in South Viet Nam and
Malaysia. I saw countries governed by military dictators, by
monarchs, by anarchy, and by communists. I came from
the outside to this country, where the right to vote, though
not always exercised, is one of its most cherished

434

foundations, the basis of its representative form of
government. The openness of our government, and the
power of our vote to determine who represents us in our
government, cannot be fully appreciated until one has lived
in countries that do not have those privileges.
Therefore, when I considered the first majority opinion, it
seemed the right decision. The people should have the
ultimate right to decide their own fate, to be the final
arbiters of their community’s course. The majority’s
argument was powerful that Home Rule allowed a
chartered municipality to grant its voters the final say. That
is the strength of our system.
But I forgot in my zeal to affirm the power of the vote that
our forefathers carefully fashioned some checks and
balances that are equally a cornerstone to our system. Our
system of three equal branches, which balance and check
each other, does not exist in many other countries, where
the legislature or the courts are merely puppets of the
executive branch. Yet, to allow any of the three branches to
become more powerful than the other two is to create
instability in our system. Underlying the three branches is
the right to vote, sometimes direct and sometimes
representative. The crafters of our Constitution recognized
that sometimes our representatives need some distance
from the voting so that they can make a decision that may
not be popular at the moment, but may be best or right in
the long haul. Thus, state representatives have close
accountability with two-year terms, senators are more
insulated by four-year terms, and the judiciary by six-year
terms-still accountable but with greater freedom to act as
necessary though it may not be popular.
But predictability and stability are also important to the
survival of our system. A mere change of our President
cannot wipe out decades of law and statutes, as happens in
many countries. The legislature acts as the check against the
arbitrary changes of the administrative branch; the courts as

435

a check against both. Homeowners must be secure in the
knowledge that their deed to their home will survive the
election; businesses must be able to rely on the stability of
contracts, zoning laws, tax laws, and laws governing
relationships, whether their business is to build factories or
to operate a beauty salon. The loss of stability can result in
chaos.
In reconsidering Buckeye Community Hope Found., and in
weighing all of those heavy thoughts and constitutional
issues, about which volumes have been written, I now join
the new majority because I believe it has arrived at the right
analysis; I now believe my former view was wrong. I see
now that the framers of the Ohio Constitution had a good
reason for Section 1f, Article II, in limiting the referendum
to legislative decisions only. But to apply the referendum to
everyday administrative decisions, even if the charter of the
municipality so allows (and I am no longer convinced this
is what the drafters of the charter intended), is to submit
the minutiae of everyday administrative decision-making to
the whim of the voter at the moment. The unpopular
development, the disfavored contract with a school
principal, the neighbor’s new garage approval, or any other
decision could be subject to voter disapproval if an angered
voter was organized or well-funded enough. Chaos and
instability could result. The decisions made by
homeowners, developers, schools, or anyone else could no
longer depend on established zoning approvals or contracts
made-all could be thrown out at whim.
The law of unintended consequences is “the idea that
whenever society takes action to change something, there
will be unanticipated or unintended effects.” Fortune, Aug.,
1996. Sometimes legislative action results in unintentional
consequences. Sometimes our actions do also. We make a
decision that seems right, constitutional, and just at the
time, but cannot always foresee how it can apply in ways
we never intended. I now see the danger of my original

436

vote and the wisdom of the original framers of our
Constitution in limiting referendums to legislative actions
and in not allowing municipalities to exercise powers
greater than the Constitution grants. In this case, Section
1f, Article II trumps the Home Rule Amendment. I believe
this is what the Constitution intends. I now so vote
accordingly.
DOUGLAS, Justice, dissenting.
I dissent from the judgment and opinion of the majority.
Subsequent to our May 6, 1998 decision in Buckeye
Community Hope Found. v. Cuyahoga Falls (1998), 81
Ohio St.3d 559, 692 N.E.2d 997, appellants filed a motion
for reconsideration. However, in granting appellants’
motion, the majority has clearly disregarded the
requirements of S.Ct.Prac.R. XI. Section 2 of S.Ct.Prac.R.
XI provides that a motion for reconsideration shall be
confined strictly to the grounds urged for reconsideration
and that the motion “shall not constitute a reargument of
the case.” Appellants’ motion is premised upon essentially
the same arguments that were initially presented to this
court. In fact, the motion contains absolutely nothing that
warrants a change from our original decision. The majority,
however, in rehearing the cause for whatever undisclosed
reasons, has conveniently ignored the requirements of
S.Ct.Prac.R. XI. Oh well, so much for the rules!
In any event, I also dissent from the judgment and the
opinion of the majority because I cannot agree with the
majority’s severe restriction of the sacrosanct right of
referendum. What is particularly disturbing is that the
majority completely ignores the clear wording of the
drafters of Section 1f, Article II and turns the enabling
provision into an affirmative limitation on the right of
referendum. I continue to believe that our original decision
in Buckeye is correct, is supported by law, and, most
importantly, reflects the fundamental precepts upon which
our state and country are based. In that regard it is

437

interesting to recall, during this time of the year, July 4,
when we celebrate the founding of our country and our
Declaration of Independence, that that sacred document
contains the words “that to secure these rights,
Governments are instituted among Men, deriving their just
powers from the consent of the governed.” (Emphasis added.)
Today, the majority tells the citizens of Cuyahoga Falls, and
all other communities and citizens likely situated, that what
they have voted into their charters means nothing because
if the charter provision in question here can be negated by
the waving of the four-vote magic wand, then no charter
provision is truly sacred. So much for “just powers” being
derived “from the consent of the governed.” Given today’s
holding, Section 2, Article I of the Ohio Constitution
should now read that “all political power is no longer
inherent in the people.”
Finally, this case is not about missionaries, separation of
powers, length of terms of office, the President, or a
“disfavored contract with a school principal.” This case is
about Home Rule Charters voted into existence by electors
in municipalities all across this state having nothing to do,
of course, with the parade of horribles assembled in the
concurring opinion. The citizens of a municipality have the
authority to establish the means and methods to govern
their own affairs.
Accordingly, I dissent. I would deny the motion for
reconsideration and follow our decision reported in 81
Ohio St.3d 559, 692 N.E.2d 997, which affirmed the wellreasoned judgment of the court of appeals.
RESNICK and FRANCIS E. SWEENEY, Sr., JJ., concur
in the foregoing dissenting opinion.

438

City of Cuyahoga Falls, Ohio v. Buckeye Community
Hope Foundation
538 U.S. 188 (2003)
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT.
O’CONNOR, J., delivered the opinion for a unanimous
Court. SCALIA, J., filed a concurring opinion, in which
THOMAS, J., joined, post, p. 200.
Glen D. Nager argued the cause for petitioners. With him on
the briefs were Virgil Arrington, Jr., Michael A. Carvin, and
Michael S. Fried.
David B. Salmons argued the cause pro hac vice for the United
States as amicus curiae urging reversal. With him on the brief
were Solicitor General Olson, Assistant Attorney General Boyd,
Deputy Solicitor General Clement, Mark L. Gross, and Teresa
Kwong.
Edward G. Kramer argued the cause for respondents. With
him on the brief were Diane E. Citrino, Kenneth Kowalski, and
Michael P. Seng.1
JUSTICE O'CONNOR delivered the opinion of the Court.
In 1995, the city of Cuyahoga Falls, Ohio (hereinafter City),
submitted to voters a facially neutral referendum petition
1Briefs of amici curiae urging reversal were filed for the City of Athens, Ohio, et al.

by Barry M. Byron, John E. Gotherman, and Garry E. Hunter; and for the International
Municipal Lawyers Association et al. by Henry W. Underhill, Jr., Charles M. Hinton, Jr.,
and Brad Neighbor.
Briefs of amici curiae urging affirmance were filed for the Lawyers’ Committee for
Civil Rights Under Law et al. by Barbara Arnwine, Thomas J. Henderson, Cheryl L.
Ziegler, Eva Jefferson Paterson, Javier N. Maldonado, and Michael Churchill; for the
National Association of Home Builders by Thomas Jon Ward; for the National Fair
Housing Alliance et al. by Joseph R. Guerra, Thomas Healy, John P. Relman, Meera
Trehan, and Robert G. Schwemm; and for the National Multi Housing Council et al. by
Leo G. Rydzewski and Clarine Nardi Riddle.
John H. Findley and Meriem L. Hubbard filed a brief for the Pacific Legal Foundation
et al. as amici curiae.

439

that called for the repeal of a municipal housing ordinance
authorizing construction of a low-income housing complex.
The United States Court of Appeals for the Sixth Circuit
found genuine issues of material fact with regard to
whether the City violated the Equal Protection Clause, the
Due Process Clause, and the Fair Housing Act, 82 Stat. 81,
as amended, 42 U. S. C. § 3601 et seq., by placing the
petition on the ballot. We granted certiorari to determine
whether the Sixth Circuit erred in ruling that respondents’
suit against the City could proceed to trial.
I
A
In June 1995, respondents Buckeye Community Hope
Foundation, a nonprofit corporation dedicated to
developing affordable housing through the use of lowincome tax credits, and others (hereinafter Buckeye or
respondents), purchased land zoned for apartments in
Cuyahoga Falls, Ohio. In February 1996, Buckeye
submitted a site plan for Pleasant Meadows, a multifamily,
low-income housing complex, to the city planning
commission. Residents of Cuyahoga Falls immediately
expressed opposition to the proposal. See 263 F. 3d 627,
630 (CA6 2001). After respondents agreed to various
conditions, including that respondents build an earthen wall
surrounded by a fence on one side of the complex, the
commission unanimously approved the site plan and
submitted it to the city council for final authorization.
As the final approval process unfolded, public opposition
to the plan resurfaced and eventually coalesced into a
referendum petition drive. See Cuyahoga Falls City Charter,
Art. 9, § 2, App. 14 (giving voters “the power to approve or
reject at the polls any ordinance or resolution passed by the
Council” within 30 days of the ordinance’s passage). At city
council meetings and independent gatherings, some of
which the mayor attended to express his personal

440

opposition to the site plan, citizens of Cuyahoga Falls
voiced various concerns: that the development would cause
crime and drug activity to escalate, that families with
children would move in, and that the complex would
attract a population similar to the one on Prange Drive, the
City’s only African-American neighborhood. See, e. g., 263
F. 3d, at 636-637; App. 98, 139, 191; Tr. 182-185, 270, 316.
Nevertheless, because the plan met all municipal zoning
requirements, the city council approved the project on
April 1, 1996, through City Ordinance No. 48-1996.
On April 29, a group of citizens filed a formal petition with
the City requesting that the ordinance be repealed or
submitted to a popular vote. Pursuant to the charter, which
provides that an ordinance challenged by a petition “shall
[not] go into effect until approved by a majority” of voters,
the filing stayed the implementation of the site plan. Art. 9,
§ 2, App. 15. On April 30, respondents sought an
injunction against the petition in state court, arguing that
the Ohio Constitution does not authorize popular
referendums on administrative matters. On May 31, the
Court of Common Pleas denied the injunction. Civ. No.
96-05-1701 (Summit County), App. to Pet. for Cert. 255a.
A month later, respondents nonetheless requested building
permits from the City in order to begin construction. On
June 26, the city engineer rejected the request after being
advised by the city law director that the permits “could not
be issued because the site plan ordinance ‘does not take
effect’ due to the petitions.” 263 F. 3d, at 633.
In November 1996, the voters of Cuyahoga Falls passed
the referendum, thus repealing Ordinance No. 48-1996. In
a joint stipulation, however, the parties agreed that the
results of the election would not be certified until the
litigation over the referendum was resolved. See Stipulation
and Jointly Agreed upon Preliminary Injunction Order in
No. 5:96 CV 1458 (ND Ohio, Nov. 25, 1996). In July 1998,
the Ohio Supreme Court, having initially concluded that

441

the referendum was proper, reversed itself and declared the
referendum unconstitutional. 82 Ohio St. 3d 539, 697 N. E.
2d 181 (holding that the Ohio State Constitution authorizes
referendums only in relation to legislative acts, not
administrative acts, such as the site-plan ordinance). The
City subsequently issued the building permits, and Buckeye
commenced construction of Pleasant Meadows.
B
In July 1996, with the state-court litigation still pending,
respondents filed suit in federal court against the City and
several city officials, seeking an injunction ordering the City
to issue the building permits, as well as declaratory and
monetary relief. Buckeye alleged that “in allowing a site
plan approval ordinance to be submitted to the electors of
Cuyahoga Falls through a referendum and in rejecting [its]
application for building permits,” the City and its officials
violated the Equal Protection and Due Process Clauses of
the Fourteenth Amendment, as well as the Fair Housing
Act, 42 U. S. C. § 3601. Complaint in No. 5:96 CV 1458 ¶ 1
(ND Ohio, July 5, 1996) (hereinafter Complaint). In June
1997, the District Court dismissed the case against the
mayor in his individual capacity but denied the City’s
motion for summary judgment on the equal protection and
due process claims, concluding that genuine issues of
material fact existed as to both claims. 970 F. Supp. 1289,
1308 (ND Ohio 1997). After the Ohio Supreme Court
declared the referendum invalid in 1998, thus reducing
respondents’ action to a claim for damages for the delay in
construction, the City and its officials again moved for
summary judgment. On November 19, 1999, the District
Court granted the motion on all counts. Civ. No. 5:96 CV
1458, App. to Pet. for Cert. 35a.
The Court of Appeals for the Sixth Circuit reversed. As to
respondents’ equal protection claim, the court concluded
that they had produced sufficient evidence to go to trial on
the allegation that the City, by allowing the referendum

442

petition to stay the implementation of the site plan, gave
effect to the racial bias reflected in the public’s opposition
to the project. See 263 F. 3d, at 639. The court then held
that even if respondents failed to prove intentional
discrimination, they stated a valid claim under the Fair
Housing Act on the theory that the City’s actions had a
disparate impact based on race and family status. See id., at
640. Finally, the court concluded that a genuine issue of
material fact existed as to whether the City, by denying
respondents the benefit of the lawfully approved site plan,
engaged in arbitrary and irrational government conduct in
violation of substantive due process. Id., at 644. We granted
certiorari, 536 U. S. 938 (2002), and now reverse the
constitutional holdings and vacate the Fair Housing Act
holding.
II
Respondents allege that by submitting the petition to the
voters and refusing to issue building permits while the
petition was pending, the City and its officials violated the
Equal Protection Clause. See Complaint ¶ 41. Petitioners
claim that the Sixth Circuit went astray by ascribing the
motivations of a handful of citizens supportive of the
referendum to the City. We agree with petitioners that
respondents have failed to present sufficient evidence of an
equal protection violation to survive summary judgment.
We have made clear that “[p]roof of racially discriminatory
intent or purpose is required” to show a violation of the
Equal Protection Clause. Arlington Heights v. Metropolitan
Housing Development Corp., 429 U. S. 252, 265 (1977) (citing
Washington v. Davis, 426 U. S. 229 (1976)). In deciding the
equal protection question, the Sixth Circuit erred in relying
on cases in which we have subjected enacted, discretionary
measures to equal protection scrutiny and treated
decisionmakers’ statements as evidence of such intent. See
263 F. 3d, at 634-635 (citing Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432, 448 (1985); Arlington Heights v.

443

Metropolitan Housing Development Corp., supra, at 268; and
Hunter v. Erickson, 393 U. S. 385, 392 (1969)). Because
respondents claim injury from the referendum petitioning
process and not from the referendum itself — which never
went into effect — these cases are inapposite. Ultimately,
neither of the official acts respondents challenge reflects
the intent required to support equal protection liability.
First, in submitting the referendum petition to the voters,
the City acted pursuant to the requirements of its charter,
which sets out a facially neutral petitioning procedure. See
Art. 9, § 2. By placing the referendum on the ballot, the
City did not enact the referendum and therefore cannot be
said to have given effect to voters’ allegedly discriminatory
motives for supporting the petition. Similarly, the city
engineer, in refusing to issue the building permits while the
referendum
was
still
pending,
performed
a
nondiscretionary, ministerial act. He acted in response to
the city law director’s instruction that the building permits
“could not … issue” because the charter prohibited a
challenged site-plan ordinance from going into effect until
“approved by a majority of those voting thereon,” App. 16.
See 263 F. 3d, at 633. Respondents point to no evidence
suggesting that these official acts were themselves
motivated by racial animus. Respondents do not, for
example, offer evidence that the City followed the
obligations set forth in its charter because of the referendum’s
discriminatory purpose, or that city officials would have
selectively refused to follow standard charter procedures in
a different case.
Instead, to establish discriminatory intent, respondents and
the Sixth Circuit both rely heavily on evidence of allegedly
discriminatory voter sentiment. See id., at 635-637. But
statements made by private individuals in the course of a
citizen-driven petition drive, while sometimes relevant to
equal protection analysis, see supra, at 194, do not, in and of
themselves, constitute state action for the purposes of the

444

Fourteenth Amendment. Cf. Blum v. Yaretsky, 457 U. S. 991,
1002-1003 (1982) (”’[T]he principle has become firmly
embedded in our constitutional law that the action
inhibited by the first section of the Fourteenth Amendment
is only such action as may fairly be said to be that of the
States’” (quoting Shelley v. Kraemer, 334 U. S. 1, 13 (1948))).
Moreover, respondents put forth no evidence that the
“private motives [that] triggered” the referendum drive
“can fairly be attributed to the State.” Blum v. Yaretsky,
supra, at 1004.
In fact, by adhering to charter procedures, city officials
enabled public debate on the referendum to take place, thus
advancing significant First Amendment interests. In
assessing the referendum as a “basic instrument of
democratic government,” Eastlake v. Forest City Enterprises,
Inc., 426 U. S. 668, 679 (1976), we have observed that
“[p]rovisions for referendums demonstrate devotion to
democracy, not to bias, discrimination, or prejudice,” James
v. Valtierra, 402 U. S. 137, 141 (1971). And our well
established
First
Amendment
admonition
that
“government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable,” Texas v. Johnson, 491 U. S. 397, 414
(1989),dovetails with the notion that all citizens, regardless
of the content of their ideas, have the right to petition their
government. Cf. Meyer v. Grant, 486 U. S. 414, 421-422
(1988) (describing the circulation of an initiative petition as
“‘core political speech’“); Police Dept. of Chicago v. Mosley, 408
U. S. 92, 96 (1972) (“[G]overnment may not grant the use
of a forum to people whose views it finds acceptable, but
deny use to those wishing to express less favored or more
controversial views”). Again, statements made by
decisionmakers or referendum sponsors during deliberation
over a referendum may constitute relevant evidence of
discriminatory intent in a challenge to an ultimately enacted
initiative. See, e. g., Washington v. Seattle School Dist. No. 1, 458

445

U. S. 457, 471 (1982) (considering statements of initiative
sponsors in subjecting enacted referendum to equal
protection scrutiny); Arlington Heights v. Metropolitan Housing
Development Corp., 429 U. S., at 268. But respondents do not
challenge an enacted referendum.
In their brief to this Court, respondents offer an alternative
theory of equal protection liability: that city officials,
including the mayor, acted in concert with private citizens
to prevent Pleasant Meadows from being built because of
the race and family status of its likely residents. See Brief
for Respondents 12-26; Tr. of Oral Arg. 33-34, 36-40, 43.
Respondents allege, among other things, that the city law
director prompted disgruntled voters to file the petition,
that the city council intentionally delayed its deliberations
to thwart the development, and that the mayor stoked the
public opposition. See Brief for Respondents 17. Not only
did the courts below not directly address this theory of
liability, but respondents also appear to have disavowed this
claim at oral argument, focusing instead on the denial of
the permits. See Tr. of Oral Arg. 37-38.
What is more, respondents never articulated a cognizable
legal claim on these grounds. Respondents fail to show that
city officials exercised any power over voters’
decisionmaking during the drive, much less the kind of
“coercive power” either “overt or covert” that would
render the voters’ actions and statements, for all intents and
purposes, state action. Blum v. Yaretsky, 457 U. S., at 1004.
Nor, as noted above, do respondents show that the voters’
sentiments can be attributed in any way to the state actors
against which it has brought suit. See ibid. Indeed, in
finding a genuine issue of material fact with regard to
intent, the Sixth Circuit relied almost entirely on apparently
independent statements by private citizens. See 263 F. 3d,
at 635-637. And in dismissing the claim against the mayor
in his individual capacity, the District Court found no
evidence that he orchestrated the referendum. See 970 F.

446

Supp., at 1321. Respondents thus fail to present an equal
protection claim sufficient to survive summary judgment.
III
In evaluating respondents’ substantive due process claim,
the Sixth Circuit found, as a threshold matter, that
respondents had a legitimate claim of entitlement to the
building permits, and therefore a property interest in those
permits, in light of the city council’s approval of the site
plan. See 263 F. 3d, at 642. The court then held that
respondents had presented sufficient evidence to survive
summary judgment on their claim that the City engaged in
arbitrary conduct by denying respondents the benefit of the
plan. Id., at 644. Both in their complaint and before this
Court, respondents contend that the City violated
substantive due process, not only for the reason articulated
by the Sixth Circuit, but also on the grounds that the City’s
submission of an administrative land-use determination to
the charter’s referendum procedures constituted per se
arbitrary conduct. See Complaint ¶¶ 39, 43; Brief for
Respondents 32-49. We find no merit in either claim.
We need not decide whether respondents possessed a
property interest in the building permits, because the city
engineer’s refusal to issue the permits while the petition
was pending in no sense constituted egregious or arbitrary
government conduct. See County of Sacramento v. Lewis, 523
U. S. 833, 846 (1998) (noting that in our evaluations of
“abusive executive action,” we have held that “only the
most egregious official conduct can be said to be ‘arbitrary
in the constitutional sense’“). In light of the charter’s
provision that “[n]o such ordinance [challenged by a
petition] shall go into effect until approved by a majority of
those voting thereon,” Art. 9, § 2, App. 15, the law
director’s instruction to the engineer to not issue the
permits represented an eminently rational directive. Indeed,
the site plan, by law, could not be implemented until the
voters passed on the referendum.

447

Respondents’ second theory of liability has no basis in our
precedent. As a matter of federal constitutional law, we
have rejected the distinction that respondents ask us to
draw, and that the Ohio Supreme Court drew as a matter of
state law, between legislative and administrative
referendums. In Eastlake v. Forest City Enterprises, Inc., 426 U.
S., at 672, 675, we made clear that because all power stems
from the people, “[a] referendum cannot … be
characterized as a delegation of power,” unlawful unless
accompanied by “discernible standards.” The people retain
the power to govern through referendum “‘with respect to
any matter, legislative or administrative, within the realm of
local affairs.’” Id., at 674, n. 9. Cf. James v. Valtierra, 402 U.
S. 137. Though the “substantive result” of a referendum
may be invalid if it is “arbitrary and capricious,” Eastlake v.
Forest City Enterprises, supra, at 676, respondents do not
challenge the referendum itself. The subjection of the siteplan ordinance to the City’s referendum process, regardless
of whether that ordinance reflected an administrative or
legislative decision, did not constitute per se arbitrary
government conduct in violation of due process.
IV
For the reasons detailed above, we reverse the Sixth
Circuit’s judgment with regard to respondents’ equal
protection and substantive due process claims. The Sixth
Circuit also held that respondents’ disparate impact claim
under the Fair Housing Act could proceed to trial, 263 F.
3d, at 641, but respondents have now abandoned the claim.
See Brief for Respondents 31. We therefore vacate the
Sixth Circuit’s disparate impact holding and remand with
instructions to dismiss, with prejudice, the relevant portion
of the complaint. See Deakins v. Monaghan, 484 U. S. 193,
200 (1988).
The judgment of the United States Court of Appeals for
the Sixth Circuit is, accordingly, reversed in part and

448

vacated in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins,
concurring.
I join the Court’s opinion, including Part III, which
concludes that respondents’ assertions of arbitrary
government conduct must be rejected. I write separately to
observe that, even if there had been arbitrary government
conduct, that would not have established the substantivedue-process violation that respondents claim.
It would be absurd to think that all “arbitrary and
capricious” government action violates substantive due
process — even, for example, the arbitrary and capricious
cancellation of a public employee’s parking privileges. The
judicially created substantive component of the Due
Process Clause protects, we have said, certain “fundamental
liberty interest[s]” from deprivation by the government,
unless the infringement is narrowly tailored to serve a
compelling state interest. Washington v. Glucksberg, 521 U. S.
702, 721 (1997). Freedom from delay in receiving a building
permit is not among these “fundamental liberty interests.”
To the contrary, the Takings Clause allows government
confiscation of private property so long as it is taken for a
public use and just compensation is paid; mere regulation of
land use need not be “narrowly tailored” to effectuate a
“compelling state interest.” Those who claim “arbitrary”
deprivations of nonfundamental liberty interests must look
to the Equal Protection Clause, and Graham v. Connor, 490
U. S. 386, 395 (1989), precludes the use of “‘substantive
due process’” analysis when a more specific constitutional
provision governs.
As for respondents’ assertion that referendums may not be
used to decide whether low-income housing may be built
on their land: that is not a substantive-due-process claim,

449

but rather a challenge to the procedures by which
respondents were deprived of their alleged liberty interest
in building on their land. There is nothing procedurally
defective about conditioning the right to build low-income
housing on the outcome of a popular referendum, cf. James
v. Valtierra, 402 U.S. 137 (1971), and the delay in issuing the
permit was prescribed by a duly enacted provision of the
Cuyahoga Falls City Charter (Art. 9, § 2), which surely
constitutes “due process of law,” see Connecticut Dept. of
Public Safety v. Doe, ante, p. 8 (SCALIA, J., concurring).
With these observations, I join the Court’s opinion.

450

4. Regulatory Takings
4.1. Origins
Mugler v. Kansas
123 U.S. 623 (1887)
ERROR TO THE SUPREME COURT OF THE STATE
OF KANSAS. APPEAL FROM THE CIRCUIT COURT
OF THE UNITED STATES FOR THE DISTRICT OF
KANSAS.
Mr. George G. Vest, for plaintiff in error.
Mr. B.S. Bradford, Attorney General of the State of Kansas,
Mr. George R. Peck, Mr. J.B. Johnson, and Mr. George J. Barker
for defendant in error, submitted on their brief.
Mr. S.B. Bradford, Attorney General of the State of Kansas,
Mr. Edwin A. Austin, Assistant Attorney General of that
State, and Mr. J.F. Tufts, Assistant Attorney General for
Atchison County, Kansas, for appellant submitted on their
brief. October 25, 1887, Mr. Bradford moved the court to
reopen the cause and reassign it for argument. October 26,
1887, the court denied the motion.
Mr. Joseph II. Choate for appellee. Mr. Robert M. Eaton and
Mr. John C. Tomlinson were with him on his brief.
MR. JUSTICE HARLAN delivered the opinion of the court.
These cases involve an inquiry into the validity of certain
statutes of Kansas relating to the manufacture and sale of
intoxicating liquors. [A series of Kansas statutes worked to
prohibit the manufacture or sale of alcoholic beverages.]
The first two are indictments, charging Mugler, the plaintiff
in error, in one case, with having sold, and in the other,
with having manufactured, spirituous, vinous, malt,
fermented, and other intoxicating liquors, in Saline County,
Kansas, without having the license or permit required by
the statute. The defendant, having been found guilty, was
fined, in each case, one hundred dollars, and ordered to be

committed to the county jail until the fine was paid. Each
judgment was affirmed by the Supreme Court of Kansas,
and thereby, it is contended, the defendant was denied
rights, privileges, and immunities guaranteed by the
Constitution of the United States.
The third case – Kansas v. Ziebold & Hagelin – was
commenced by petition filed in one of the courts of the
State. The relief sought is: 1. That the group of buildings in
Atchison County, Kansas, constituting the brewery of the
defendants, partners as Ziebold & Hagelin, be adjudged a
common nuisance, and the sheriff or other proper officer
directed to shut up and abate the same. 2. That the
defendants be enjoined from using, or permitting to be
used, the said premises as a place where intoxicating liquors
may be sold, bartered, or given away, or kept for barter,
sale, or gift, otherwise than by authority of law.
….
The facts necessary to a clear understanding of the
questions, common to these cases, are the following:
Mugler and Ziebold & Hagelin were engaged in
manufacturing beer at their respective establishments,
(constructed specially for that purpose,) for several years
prior to the adoption of the constitutional amendment of
1880. They continued in such business in defiance of the
statute of 1881, and without having the required permit.
Nor did Mugler have a license or permit to sell beer. The
single sale of which he was found guilty occurred in the
State, and after May 1, 1881, that is, after the act of
February 19, 1881, took effect, and was of beer
manufactured before its passage.
The buildings and machinery constituting these breweries
are of little value if not used for the purpose of
manufacturing beer; that is to say, if the statutes are
enforced against the defendants the value of their property
will be very materially diminished.

452

The general question in each case is, whether the foregoing
statutes of Kansas are in conflict with that clause of the
Fourteenth Amendment, which provides that “no State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law.”
[The Court canvasses prior cases and reasons that it is
within a state’s police powers to prohibit alcohol sales and
manufacture.]
Undoubtedly the State, when providing, by legislation, for
the protection of the public health, the public morals, or
the public safety, is subject to the paramount authority of
the Constitution of the United States, and may not violate
rights secured or guaranteed by that instrument, or interfere
with the execution of the powers confided to the general
government. Henderson v. Mayor of New York, 92 U.S. 259;
Railroad Co. v. Husen, 95 U.S. 465; New Orleans Gas Co. v.
Louisiana Light Co., 115 U.S. 650; Walling v. Michigan, 116
U.S. 446; Yick Wo v. Hopkins, 118 U.S. 356; Morgan’s
Steamship Co. v. Louisiana Board of Health, 118 U.S. 455.
Upon this ground – if we do not misapprehend the
position of defendants – it is contended that, as the primary
and principal use of beer is as a beverage; as their respective
breweries were erected when it was lawful to engage in the
manufacture of beer for every purpose; as such
establishments will become of no value as property, or, at
least, will be materially diminished in value, if not employed
in the manufacture of beer for every purpose; the
prohibition upon their being so employed is, in effect, a
taking of property for public use without compensation,
and depriving the citizen of his property without due
process of law. In other words, although the State, in the
exercise of her police powers, may lawfully prohibit the
manufacture and sale, within her limits, of intoxicating
liquors to be used as a beverage, legislation having that

453

object in view cannot be enforced against those who, at the
time, happen to own property, the chief value of which
consists in its fitness for such manufacturing purposes,
unless compensation is first made for the diminution in the
value of their property, resulting from such prohibitory
enactments.
This interpretation of the Fourteenth Amendment is
inadmissible. It cannot be supposed that the States
intended, by adopting that Amendment, to impose
restraints upon the exercise of their powers for the
protection of the safety, health, or morals of the
community. In respect to contracts, the obligations of
which are protected against hostile state legislation, this
court in Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746,
751, said that the State could not, by any contract, limit the
exercise of her power to the prejudice of the public health
and the public morals. So, in Stone v. Mississippi, 101 U.S.
814, 816, where the Constitution was invoked against the
repeal by the State of a charter, granted to a private
corporation, to conduct a lottery, and for which that
corporation paid to the State a valuable consideration in
money, the court said: “No legislature can bargain away the
public health or the public morals. The people themselves
cannot do it, much less their servants… . Government is
organized with a view to their preservation, and cannot
divest itself of the power to provide for them.” Again, in
New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650, 672:
“The constitutional prohibition upon state laws impairing
the obligation or contracts does not restrict the power of
the State to protect the public health, the public morals, or
the public safety, as the one or the other may be involved
in the execution of such contracts. Rights and privileges
arising from contracts with a State are subject to regulations
for the protection of the public health, the public morals,
and the public safety, in the same sense, and to the same

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extent, as are all contracts and all property, whether owned
by natural persons or corporations.”
The principle, that no person shall be deprived of life,
liberty, or property, without due process of law, was
embodied, in substance, in the constitutions of nearly all, if
not all, of the States at the time of the adoption of the
Fourteenth Amendment; and it has never been regarded as
incompatible with the principle, equally vital, because
essential to the peace and safety of society, that all property
in this country is held under the implied obligation that the
owner’s use of it shall not be injurious to the community.
Beer Co.v. Massachusetts, 97 U.S. 25, 32; Commonwealth v. Alger,
7 Cush. 53. An illustration of this doctrine is afforded by
Patterson v. Kentucky, 97 U.S. 501. The question there was as
to the validity of a statute of Kentucky, enacted in 1874,
imposing a penalty upon any one selling or offering for sale
oils and fluids, the product of coal, petroleum, or other
bituminous substances, which would burn or ignite at a
temperature below 130° Fahrenheit. Patterson having sold,
within that commonwealth, a certain oil, for which letterspatent were issued in 1867, but which did not come up to
the standard required by said statute, and having been
indicted therefor, disputed the State’s authority to prevent
or obstruct the exercise of that right. This court upheld the
legislation of Kentucky, upon the ground, that while the
State could not impair the exclusive right of the patentee,
or of his assignee, in the discovery described in the letterspatent, the tangible property, the fruit of the discovery, was
not beyond control in the exercise of her police powers. It
was said: “By the settled doctrines of this court the police
power extends, at least, to the protection of the lives, the
health, and the property of the community against the
injurious exercise by any citizen of his own rights. State
legislation, strictly and legitimately for police purposes,
does not, in the sense of the Constitution, necessarily
intrench upon any authority which has been confided,

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expressly or by implication, to the national government.
The Kentucky statute under examination manifestly
belongs to that class of legislation. It is, in the best sense, a
mere police regulation, deemed essential to the protection
of the lives and property of citizens.” p. 504. Referring to
the numerous decisions of this court guarding the power of
Congress to regulate commerce against encroachment,
under the guise of state regulations, established for the
purpose and with the effect of destroying or impairing
rights secured by the Constitution, it was further said: “It
has, nevertheless, with marked distinctness and uniformity,
recognized the necessity, growing out of the fundamental
conditions of civil society, of upholding state police
regulations which were enacted in good faith, and had
appropriate and direct connection with that protection to
life, health, and property which each State owes to her
citizens.” See also United States v. Dewitt, 9 Wall. 41; License
Tax Cases, 5 Wall. 462; Pervear v. Commonwealth, 5 Wall. 475.
Another decision, very much in point upon this branch of
the case, is Fertilizing Co. v. Hyde Park, 97 U.S. 659, 667, also
decided after the adoption of the Fourteenth Amendment.
The court there sustained the validity of an ordinance of
the village of Hyde Park, in Cook County, Illinois, passed
under legislative authority, forbidding any person from
transporting through that village offal or other offensive or
unwholesome matter, or from maintaining or carrying on
an offensive or unwholesome business or establishment
within its limits. The Fertilizing Company had, at large
expense, and under authority expressly conferred by its
charter, located its works at a particular point in the county.
Besides, the charter of the village, at that time, provided
that it should not interfere with parties engaged in
transporting animal matter from Chicago, or from
manufacturing it into a fertilizer or other chemical product.
The enforcement of the ordinance in question operated to
destroy the business of the company, and seriously to

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impair the value of its property. As, however, its business
had become a nuisance to the community in which it was
conducted, producing discomfort, and often sickness,
among large masses of people, the court maintained the
authority of the village, acting under legislative sanction, to
protect the public health against such nuisance. It said: “We
cannot doubt that the police power of the State was
applicable and adequate to give an effectual remedy. That
power belonged to the States when the Federal
Constitution was adopted. They did not surrender it, and
they all have it now. It extends to the entire property and
business within their local jurisdiction. Both are subject to
it in all proper cases. It rests upon the fundamental
principle that every one shall so use his own as not to
wrong and injure another. To regulate and abate nuisances
is one of its ordinary functions.”
It is supposed by the defendants that the doctrine for
which they contend is sustained by Pumpelly v. Green Bay Co.,
13 Wall. 166. But in that view we do not concur. That was
an action for the recovery of damages for the overflowing
of the plaintiff’s land by water, resulting from the
construction of a dam across a river. The defence was that
the dam constituted a part of the system adopted by the
State for improving the navigation of Fox and Wisconsin
rivers; and it was contended that as the damages of which
the plaintiff complained were only the result of the
improvement, under legislative sanction, of a navigable
stream, he was not entitled to compensation from the State
or its agents. The case, therefore, involved the question
whether the overflowing of the plaintiff’s land, to such an
extent that it became practically unfit to be used, was a
taking of property, within the meaning of the constitution
of Wisconsin, providing that “the property of no person
shall be taken for public use without just compensation
therefor.” This court said it would be a very curious and
unsatisfactory result, were it held that, “if the government

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refrains from the absolute conversion of real property to
the uses of the public, it can destroy its value entirely, can
inflict irreparable and permanent injury to any extent, can,
in effect, subject it to total destruction, without making any
compensation, because, in the narrowest sense of that
word, it is not taken for the public use. Such a construction
would pervert the constitutional provision into a restriction
upon the rights of the citizen, as those rights stood at the
common law, instead of the government, and make it an
authority for the invasion of private right under the pretext
of the public good, which had no warrant in the laws or
practices of our ancestors.” pp. 177, 178.
These principles have no application to the case under
consideration. The question in Pumpelly v. Green Bay
Company arose under the State’s power of eminent domain;
while the question now before us arises under what are,
strictly, the police powers of the State, exerted for the
protection of the health, morals, and safety of the people.
That case, as this court said in Transportation Co. v. Chicago,
99 U.S. 635, 642, was an extreme qualification of the
doctrine, universally held, that “acts done in the proper
exercise of governmental powers, and not directly
encroaching upon private property, though these
consequences may impair its use,” do not constitute a
taking within the meaning of the constitutional provision,
or entitle the owner of such property to compensation
from the State or its agents, or give him any right of action.
It was a case in which there was a “permanent flooding of
private property,” a “physical invasion of the real estate of
the private owner, and a practical ouster of his possession.”
His property was, in effect, required to be devoted to the
use of the public, and, consequently, he was entitled to
compensation.
As already stated, the present case must be governed by
principles that do not involve the power of eminent
domain, in the exercise of which property may not be taken

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for public use without compensation. A prohibition simply
upon the use of property for purposes that are declared, by
valid legislation, to be injurious to the health, morals, or
safety of the community, cannot, in any just sense, be
deemed a taking or an appropriation of property for the
public benefit. Such legislation does not disturb the owner
in the control or use of his property for lawful purposes,
nor restrict his right to dispose of it, but is only a
declaration by the State that its use by any one, for certain
forbidden purposes, is prejudicial to the public interests.
Nor can legislation of that character come within the
Fourteenth Amendment, in any case, unless it is apparent
that its real object is not to protect the community, or to
promote the general well-being, but, under the guise of
police regulation, to deprive the owner of his liberty and
property, without due process of law. The power which the
States have of prohibiting such use by individuals of their
property as will be prejudicial to the health, the morals, or
the safety of the public, is not – and, consistently with the
existence and safety of organized society, cannot be –
burdened with the condition that the State must
compensate such individual owners for pecuniary losses
they may sustain, by reason of their not being permitted, by
a noxious use of their property, to inflict injury upon the
community. The exercise of the police power by the
destruction of property which is itself a public nuisance, or
the prohibition of its use in a particular way, whereby its
value becomes depreciated, is very different from taking
property for public use, or from depriving a person of his
property without due process of law. In the one case, a
nuisance only is abated; in the other, unoffending property
is taken away from an innocent owner.
It is true, that, when the defendants in these cases
purchased or erected their breweries, the laws of the State
did not forbid the manufacture of intoxicating liquors. But
the State did not thereby give any assurance, or come under

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an obligation, that its legislation upon that subject would
remain unchanged. Indeed, as was said in Stone v. Mississippi,
above cited, the supervision of the public health and the
public morals is a governmental power, “continuing in its
nature,” and “to be dealt with as the special exigencies of
the moment may re quire;” and that, “for this purpose, the
largest legislative discretion is allowed, and the discretion
cannot be parted with any more than the power itself.” So
in Beer Co. v. Massachusetts, 97 U.S. 32: “If the public safety
or the public morals require the discontinuance of any
manufacture or traffic, the hand of the legislature cannot be
stayed from providing for its discontinuance by any
incidental inconvenience which individuals or corporations
may suffer.”
….
MR. JUSTICE FIELD delivered the following separate
opinion.
….
These clauses appear to me to deprive one who owns a
brewery and manufactures beer for sale, like the
defendants, of property without due process of law. The
destruction to be ordered is not as a forfeiture upon
conviction of any offence, but merely because the
legislature has so commanded. Assuming, which is not
conceded, that the legislature, in the exercise of that
undefined power of the State, called its police power, may,
without compensation to the owner, deprive him of the use
of his brewery for the purposes for which it was
constructed under the sanction of the law, and for which
alone it is valuable, I cannot see upon what principle, after
closing the brewery, and thus putting an end to its use in
the future for manufacturing spirits, it can order the
destruction of the liquor already manufactured, which it
admits by its legislation may be valuable for some purposes,
and allows to be sold for those purposes. Nor can I see

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how the protection of the health and morals of the people
of the State can require the destruction of property like
bottles, glasses, and other utensils, which may be used for
many lawful purposes. It has heretofore been supposed to
be an established principle, that where there is a power to
abate a nuisance, the abatement must be limited by its
necessity, and no wanton or unnecessary injury can be
committed to the property or rights of individuals. Thus, if
the nuisance consists in the use to which a building is put,
the remedy is to stop such use, not to tear down or to
demolish the building itself, or to destroy property found
within it. Babcock v. City of Buffalo, 56 N.Y. 268; Chenango
Bridge Co. v. Paige, 83 N.Y. 178, 189. The decision of the
court, as it seems to me, reverses this principle.
It is plain that great wrong will often be done to
manufacturers of liquors, if legislation like that embodied in
this thirteenth section can be upheld. The Supreme Court
of Kansas admits that the legislature of the State, in
destroying the values of such kinds of property, may have
gone to the utmost verge of constitutional authority. In my
opinion it has passed beyond that verge, and crossed the
line which separates regulation from confiscation.
Pennsylvania Coal Company v. Mahon,260 U.S. 393 (1922)
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill in equity brought by the defendants in error to
prevent the Pennsylvania Coal Company from mining
under their property in such way as to remove the supports
and cause a subsidence of the surface and of their house.
The bill sets out a deed executed by the Coal Company in
1878, under which the plaintiffs claim. The deed conveys
the surface, but in express terms reserves the right to
remove all the coal under the same, and the grantee takes
the premises with the risk, and waives all claim for damages
that may arise from mining out the coal. But the plaintiffs
say that whatever may have been the Coal Company’s

461

rights, they were taken away by an Act of Pennsylvania,
approved May 27, 1921, P.L. 1198, commonly known there
as the Kohler Act. The Court of Common Pleas found that
if not restrained the defendant would cause the damage to
prevent which the bill was brought, but denied an
injunction, holding that the statute if applied to this case
would be unconstitutional. On appeal the Supreme Court
of the State agreed that the defendant had contract and
property rights protected by the Constitution of the United
States, but held that the statute was a legitimate exercise of
the police power and directed a decree for the plaintiffs. A
writ of error was granted bringing the case to this Court.
The statute forbids the mining of anthracite coal in such
way as to cause the subsidence of, among other things, any
structure used as a human habitation, with certain
exceptions, including among them land where the surface is
owned by the owner of the underlying coal and is distant
more than one hundred and fifty feet from any improved
property belonging to any other person. As applied to this
case the statute is admitted to destroy previously existing
rights of property and contract. The question is whether
the police power can be stretched so far.
Government hardly could go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law. As long
recognized, some values are enjoyed under an implied
limitation and must yield to the police power. But
obviously the implied limitation must have its limits, or the
contract and due process clauses are gone. One fact for
consideration in determining such limits is the extent of the
diminution. When it reaches a certain magnitude, in most if
not in all cases there must be an exercise of eminent
domain and compensation to sustain the act. So the
question depends upon the particular facts. The greatest
weight is given to the judgment of the legislature, but it

462

always is open to interested parties to contend that the
legislature has gone beyond its constitutional power.
This is the case of a single private house. No doubt there is
a public interest even in this, as there is in every purchase
and sale and in all that happens within the commonwealth.
Some existing rights may be modified even in such a case.
Rideout v. Knox, 148 Mass. 368. But usually in ordinary
private affairs the public interest does not warrant much of
this kind of interference. A source of damage to such a
house is not a public nuisance even if similar damage is
inflicted on others in different places. The damage is not
common or public. Wesson v. Washburn Iron Co., 13 Allen,
95, 103. The extent of the public interest is shown by the
statute to be limited, since the statute ordinarily does not
apply to land when the surface is owned by the owner of
the coal. Furthermore, it is not justified as a protection of
personal safety. That could be provided for by notice.
Indeed the very foundation of this bill is that the defendant
gave timely notice of its intent to mine under the house.
On the other hand the extent of the taking is great. It
purports to abolish what is recognized in Pennsylvania as
an estate in land – a very valuable estate – and what is
declared by the Court below to be a contract hitherto
binding the plaintiffs. If we were called upon to deal with
the plaintiffs’ position alone, we should think it clear that
the statute does not disclose a public interest sufficient to
warrant so extensive a destruction of the defendant’s
constitutionally protected rights.
But the case has been treated as one in which the general
validity of the act should be discussed. The Attorney
General of the State, the City of Scranton, and the
representatives of other extensive interests were allowed to
take part in the argument below and have submitted their
contentions here. It seems, therefore, to be our duty to go
farther in the statement of our opinion, in order that it may

463

be known at once, and that further suits should not be
brought in vain.
It is our opinion that the act cannot be sustained as an
exercise of the police power, so far as it affects the mining
of coal under streets or cities in places where the right to
mine such coal has been reserved. As said in a Pennsylvania
case, “For practical purposes, the right to coal consists in
the right to mine it.” Commonwealth v. Clearview Coal Co., 256
Pa. St. 328, 331. What makes the right to mine coal
valuable is that it can be exercised with profit. To make it
commercially impracticable to mine certain coal has very
nearly the same effect for constitutional purposes as
appropriating or destroying it. This we think that we are
warranted in assuming that the statute does.
It is true that in Plymouth Coal Co. v. Pennsylvania, 232 U.S.
531, it was held competent for the legislature to require a
pillar of coal to be left along the line of adjoining property,
that, with the pillar on the other side of the line, would be a
barrier sufficient for the safety of the employees of either
mine in case the other should be abandoned and allowed to
fill with water. But that was a requirement for the safety of
employees invited into the mine, and secured an average
reciprocity of advantage that has been recognized as a
justification of various laws.
The rights of the public in a street purchased or laid out by
eminent domain are those that it has paid for. If in any case
its representatives have been so short sighted as to acquire
only surface rights without the right of support, we see no
more authority for supplying the latter without
compensation than there was for taking the right of way in
the first place and refusing to pay for it because the public
wanted it very much. The protection of private property in
the Fifth Amendment presupposes that it is wanted for
public use, but provides that it shall not be taken for such
use without compensation. A similar assumption is made in
the decisions upon the Fourteenth Amendment. Hairston v.

464

Danville & Western Ry. Co., 208 U.S. 598, 605. When this
seemingly absolute protection is found to be qualified by
the police power, the natural tendency of human nature is
to extend the qualification more and more until at last
private property disappears. But that cannot be
accomplished in this way under the Constitution of the
United States.
The general rule at least is, that while property may be
regulated to a certain extent, if regulation goes too far it will
be recognized as a taking. It may be doubted how far
exceptional cases, like the blowing up of a house to stop a
conflagration, go – and if they go beyond the general rule,
whether they do not stand as much upon tradition as upon
principle. Bowditch v. Boston, 101 U.S. 16. In general it is not
plain that a man’s misfortunes or necessities will justify his
shifting the damages to his neighbor’s shoulders. Spade v.
Lynn & Boston R.R. Co., 172 Mass. 488, 489. We are in
danger of forgetting that a strong public desire to improve
the public condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of paying
for the change. As we already have said, this is a question
of degree – and therefore cannot be disposed of by general
propositions. But we regard this as going beyond any of the
cases decided by this Court. The late decisions upon laws
dealing with the congestion of Washington and New York,
caused by the war, dealt with laws intended to meet a
temporary emergency and providing for compensation
determined to be reasonable by an impartial board. They
went to the verge of the law but fell far short of the present
act. Block v. Hirsh, 256 U.S. 135. Marcus Brown Holding Co. v.
Feldman, 256 U.S. 170. Levy Leasing Co. v. Siegel, 258 U.S.
242.
We assume, of course, that the statute was passed upon the
conviction that an exigency existed that would warrant it,
and we assume that an exigency exists that would warrant
the exercise of eminent domain. But the question at bottom

465

is upon whom the loss of the changes desired should fall.
So far as private persons or communities have seen fit to
take the risk of acquiring only surface rights, we cannot see
that the fact that their risk has become a danger warrants
the giving to them greater rights than they bought.
Decree reversed.
MR. JUSTICE BRANDEIS, dissenting. (multiple citations
omitted)
The Kohler Act prohibits, under certain conditions, the
mining of anthracite coal within the limits of a city in such
a manner or to such an extent “as to cause the …
subsidence of any dwelling or other structure used as a
human habitation, or any factory, store, or other industrial
or mercantile establishment in which human labor is
employed.” Coal in place is land; and the right of the owner
to use his land is not absolute. He may not so use it as to
create a public nuisance; and uses, once harmless, may,
owing to changed conditions, seriously threaten the public
welfare. Whenever they do, the legislature has power to
prohibit such uses without paying compensation; and the
power to prohibit extends alike to the manner, the
character and the purpose of the use. Are we justified in
declaring that the Legislature of Pennsylvania has, in
restricting the right to mine anthracite, exercised this power
so arbitrarily as to violate the Fourteenth Amendment?
Every restriction upon the use of property imposed in the
exercise of the police power deprives the owner of some
right theretofore enjoyed, and is, in that sense, an
abridgment by the State of rights in property without
making compensation. But restriction imposed to protect
the public health, safety or morals from dangers threatened
is not a taking. The restriction here in question is merely
the prohibition of a noxious use. The property so restricted
remains in the possession of its owner. The State does not
appropriate it or make any use of it. The State merely

466

prevents the owner from making a use which interferes
with paramount rights of the public. Whenever the use
prohibited ceases to be noxious – as it may because of
further change in local or social conditions, – the restriction
will have to be removed and the owner will again be free to
enjoy his property as heretofore.
The restriction upon the use of this property can not, of
course, be lawfully imposed, unless its purpose is to protect
the public. But the purpose of a restriction does not cease
to be public, because incidentally some private persons may
thereby receive gratuitously valuable special benefits… . . If
by mining anthracite coal the owner would necessarily
unloose poisonous gasses, I suppose no one would doubt
the power of the State to prevent the mining, without
buying his coal fields. And why may not the State, likewise,
without paying compensation, prohibit one from digging so
deep or excavating so near the surface, as to expose the
community to like dangers? In the latter case, as in the
former, carrying on the business would be a public
nuisance.
It is said that one fact for consideration in determining
whether the limits of the police power have been exceeded
is the extent of the resulting diminution in value; and that
here the restriction destroys existing rights of property and
contract. But values are relative. If we are to consider the
value of the coal kept in place by the restriction, we should
compare it with the value of all other parts of the land.
That is, with the value not of the coal alone, but with the
value of the whole property. The rights of an owner as
against the public are not increased by dividing the interests
in his property into surface and subsoil. The sum of the
rights in the parts can not be greater than the rights in the
whole. The estate of an owner in land is grandiloquently
described as extending ab orco usque ad coelum. But I suppose
no one would contend that by selling his interest above one
hundred feet from the surface he could prevent the State

467

from limiting, by the police power, the height of structures
in a city. And why should a sale of underground rights bar
the State’s power? For aught that appears the value of the
coal kept in place by the restriction may be negligible as
compared with the value of the whole property, or even as
compared with that part of it which is represented by the
coal remaining in place and which may be extracted despite
the statute. Ordinarily a police regulation, general in
operation, will not be held void as to a particular property,
although proof is offered that owing to conditions peculiar
to it the restriction could not reasonably be applied… . .
Where the surface and the coal belong to the same person,
self-interest would ordinarily prevent mining to such an
extent as to cause a subsidence. It was, doubtless, for this
reason that the legislature, estimating the degrees of danger,
deemed statutory restriction unnecessary for the public
safety under such conditions.
….
The [majority’s] conclusion seems to rest upon the
assumption that in order to justify such exercise of the
police power there must be “an average reciprocity of
advantage” as between the owner of the property restricted
and the rest of the community; and that here such
reciprocity is absent. Reciprocity of advantage is an
important consideration, and may even be an essential,
where the State’s power is exercised for the purpose of
conferring benefits upon the property of a neighborhood,
as in drainage projects, or upon adjoining owners, as by
party wall provisions. But where the police power is
exercised, not to confer benefits upon property owners, but
to protect the public from detriment and danger, there is, in
my opinion, no room for considering reciprocity of
advantage. There was no reciprocal advantage to the owner
prohibited from using his oil tanks in 248 U.S. 498; his
brickyard, in 239 U.S. 394; his livery stable, in 237 U.S. 171;
his billiard hall, in 225 U.S. 623; his oleomargarine factory,

468

in 127 U.S. 678; his brewery, in 123 U.S. 623; unless it be
the advantage of living and doing business in a civilized
community. That reciprocal advantage is given by the act to
the coal operators.
Miller v. Schoene
276 U.S. 272 (1928)
Messrs. Randolph Harrison, of Lynchburg, Va., and D. O.
Dechert, of Harrisonburg, Va., for plaintiffs in error.
Mr. F. S. Tavenner, of Woodstock, Va., for defendant in
error.
MR. JUSTICE STONE delivered the opinion of the Court.
Acting under the Cedar Rust Act of Virginia, Acts Va.
1914, c. 36, as amended by Acts Va. 1920, c. 260, now
embodied in Va. Code (1924) as sections 885 to 893,
defendant in error, the state entomologist, ordered the
plaintiffs in error to cut down a large number of
ornamental red cedar trees growing on their property, as a
means of preventing the communication of a rust or plant
disease with which they were infected to the apple orchards
in the vicinity. The plaintiffs in error appealed from the
order to the circuit court of Shenandoah county which,
after a hearing and a consideration of evidence, affirmed
the order and allowed to plaintiffs in error $100 to cover
the expense of removal of the cedars. Neither the judgment
of the court nor the statute as interpreted allows
compensation for the value of the standing cedars or the
decrease in the market value of the realty caused by their
destruction whether considered as ornamental trees or
otherwise. But they save to plaintiffs in error the privilege
of using the trees when felled. On appeal the Supreme
Court of Appeals of Virginia affirmed the judgment. Miller
v. State Entomologist, 146 Va. 175, 135 S. E. 813. Both in
the circuit court and the Supreme Court of Appeals
plaintiffs in error challenged the constitutionality of the
statute under the due process clause of the Fourteenth

469

Amendment and the case is properly here on writ of error.
Judicial Code, § 237a (28 USCA § 344).
The Virginia statute presents a comprehensive scheme for
the condemnation and destruction of red cedar trees
infected by cedar rust. By section 1 it is declared to be
unlawful for any person to ‘own, plant or keep alive and
standing’ on his premises any red cedar tree which is or
may be the source or ‘host plant’ of the communicable
plant disease known as cedar rust, and any such tree
growing within a certain radius of any apple orchard is
declared to be a public nuisance, subject to destruction.
Section 2 makes it the duty of the state entomologist, ‘upon
the request in writing of ten or more reputable freeholders
of any county or magisterial district, to make a preliminary
investigation of the locality * * * to ascertain if any cedar
tree or trees * * * are the source of, harbor or constitute the
host plant for the said disease * * * and constitute a menace
to the health of any apple orchard in said locality, and that
said cedar tree or trees exist within a radius of two miles of
any apple orchard in said locality.’ If affirmative findings
are so made, he is required to direct the owner in writing to
destroy the trees and, in his notice, to furnish a statement
of the ‘fact found to exist whereby it is deemed necessary
or proper to destroy’ the trees and to call attention to the
law under which it is proposed to destroy them. Section 5
authorizes the state entomologist to destroy the trees if the
owner, after being notified, fails to do so. Section 7
furnishes a mode of appealing from the order of the
entomologist to the circuit court of the county, which is
authorized to ‘hear the objections’ and ‘pass upon all
questions involved,’ the procedure followed in the present
case.
As shown by the evidence and as recognized in other cases
involving the validity of this statute, Bowman v. Virginia
State Entomologist, 128 Va. 351, 105 S. E. 141, 12 A. L. R.
1121; Kelleher v. Schoene (D. C.) 14 F. (2d) 341, cedar rust

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is an infectious plant disease in the form of a fungoid
organism which is destructive of the fruit and foliage of the
apple, but without effect on the value of the cedar. Its life
cycle has two phases which are passed alternately as a
growth on red cedar and on apple trees. It is communicated
by spores from one to the other over a radius of at least
two miles. It appears not to be communicable between
trees of the same species, but only from one species to the
other, and other plants seem not to be appreciably affected
by it. The only practicable method of controlling the
disease and protecting apple trees from its ravages is the
destruction of all red cedar trees, subject to the infection,
located within two miles of apple orchards.
The red cedar, aside from its ornamental use, has
occasional use and value as lumber. It is indigenous to
Virginia, is not cultivated or dealt in commercially on any
substantial scale, and its value throughout the state is
shown to be small as compared with that of the apple
orchards of the state. Apple growing is one of the principal
agricultural pursuits in Virginia. The apple is used there and
exported in large quantities. Many millions of dollars are
invested in the orchards, which furnish employment for a
large portion of the population, and have induced the
development of attendant railroad and cold storage
facilities.
On the evidence we may accept the conclusion of the
Supreme Court of Appeals that the state was under the
necessity of making a choice between the preservation of
one class of property and that of the other wherever both
existed in dangerous proximity. It would have been none
the less a choice if, instead of enacting the present statute,
the state, by doing nothing, had permitted serious injury to
the apple orchards within its borders to go on unchecked.
When forced to such a choice the state does not exceed its
constitutional powers by deciding upon the destruction of
one class of property in order to save another which, in the

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judgment of the legislature, is of greater value to the public.
It will not do to say that the case is merely one of a conflict
of two private interests and that the misfortune of apple
growers may not be shifted to cedar owners by ordering the
destruction of their property; for it is obvious that there
may be, and that here there is, a preponderant public
concern in the preservation of the one interest over the
other. Compare Bacon v. Walker, 204 U. S. 311, 27 S. Ct.
289, 51 L. Ed. 499; Missouri, Kansas & Texas R. Co. v.
May, 194 U. S. 267, 24 S. Ct. 638, 48 L. Ed. 971; Chicago,
Terre Haute & Southeastern R. Co. v. Anderson, 242 U. S.
283, 37 S. Ct. 124, 61 L. Ed. 302; Perley v. North Carolina,
249 U. S. 510, 39 S. Ct. 357, 63 L. Ed. 735. And where the
public interest is involved preferment of that interest over
the property interest of the individual, to the extent even of
its destruction, is one of the distinguishing characteristics of
every exercise of the police power which affects property.
Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed.
205; Hadacheck v. Los Angeles, 239 U. S. 394, 36 S. Ct.
143, 60 L. Ed. 348, Ann. Cas. 1917B, 927; Village of Euclid
v. Ambler Realty Co., 272 U. S. 365, 47 S. Ct. 114, 71 L.
Ed. 303; Northwestern Fertilizer Co. v. Hyde Park, 97 U. S.
659, 24 L. Ed. 1036; Northwestern Laundry v. Des Moines,
239 U. S. 486, 36 S. Ct. 206, 60 L. Ed. 396; Lawton v.
Steele, 152 U. S. 133, 14 S. Ct. 499, 38 L. Ed. 385; Sligh v.
Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835,
Reinman v. Little Rock, 237 U. S. 171, 35 S. Ct. 511, 59 L.
Ed. 900.
We need not weigh with nicety the question whether the
infected cedars constitute a nuisance according to the
common law; or whether they may be so declared by
statute. See Hadacheck v. Los Angeles, supra, 411 (36 S. Ct.
143). For where, as here, the choice is unavoidable, we
cannot say that its exercise, controlled by considerations of
social policy which are not unreasonable, involves any
denial of due process. The injury to property here is no

472

more serious, nor the public interest less, than in
Hadacheck v. Los Angeles, supra, Northwestern Laundry v.
Des Moines, supra, Reinman v. Little Rock, supra, or Sligh
v. Kirkwood, supra.
The statute is not, as plaintiffs in error argue, subject to the
vice which invalidated the ordinance considered by this
court in Eubank v. Richmond, 226 U. S. 137, 33 S. Ct. 76,
57 L. Ed. 156, 42 L. R. A. (N. S.) 1123, Ann. Cas. 1914B,
192. That ordinance directed the committee on streets of
the city of Richmond to establish a building line, not less
than five nor more than thirty feet from the street line
whenever requested to do so by the owners of two-thirds
of the property abutting on the street in question. No
property owner might build beyond the line so established.
Of this the court said (page 143 (33 S. Ct. 77)):
It (the ordinance) leaves no discretion
in the committee on streets as to
whether the street (building, semble)
line shall or shall not be established in
a given case. The action of the
committee is determined by two-thirds
of the property owners. In other
words, part of the property owners
fronting on the block determine the
extent of use that other owners shall
make of their lots, and against the
restriction they are impotent.
The function of the property owners there is in no way
comparable to that of the ‘ten or more reputable
freeholders’ in the Cedar Rust Act. They do not determine
the action of the state entomologist. They merely request
him to conduct an investigation. In him is vested the
discretion to decide, after investigation, whether or not
conditions are such that the other provisions of the statute
shall be brought into action; and his determination is
subject to judicial review. The property of plaintiffs in error

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is not subjected to the possibly arbitrary and irresponsible
action of a group of private citizens.
The objection of plaintiffs in error to the vagueness of the
statute is without weight. The state court has held it to be
applicable and that is enough when, by the statute, no
penalty can be incurred or disadvantage suffered in advance
of the judicial ascertainment of its applicability. Compare
Connally v. General Construction Co., 269 U. S. 385, 46 S.
Ct. 126, 70 L. Ed. 322.
Affirmed.
4.2. Theory
Economic Analysis of “Takings” of Private Property, available at
http://cyber.law.harvard.edu/bridge/LawEconomics/takings.htm.
A crucial constitutional question since the founding of the United
States has been the extent to which the state and federal legislatures
are permitted to impair private property rights. From the
beginning, American courts have recognized that governments
must be accorded some latitude in setting and modifying the
entitlements associated with the ownership of land and other
commodities. The courts have refused, however, to acquiesce in all
legislative interferences with private property rights.
The constitutional provisions used to shield property from
governmental encroachment have changed over the course of
American history. Until the end of the nineteenth century, most
regulations of private property emanated from the state
governments, not the federal government. That fact – combined
with the Supreme Court’s ruling that the Bill of Rights was
inapplicable to the states – minimized the significance of the Fifth
Amendment’s ban on uncompensated “takings” of private
property. In the limited number of cases in which the Supreme
Court undertook to review challenges to allegedly confiscatory
legislation, it based its rulings either on broad principles of natural
law or on the contracts clause of Article I, Section 10. In 1897, the
Supreme Court held for the first time that the due-process clause

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of the Fourteenth Amendment “incorporated” against the states
the takings clause of the Fifth Amendment. Since that date the
stream of cases invoking the federal Constitution to challenge
legislative or judicial impairments of property rights has steadily
increased.
Before World War II, legal scholars paid relatively little attention to
the so-called “takings” doctrine. Since the 1950s, however, the
body of academic writing dealing with the issue has mushroomed.
The ambition of the large majority of the authors who have
contributed to the discussion has been to define a principled line
that would enable the courts to differentiate permissible
“regulation” of private property from impermissible (if
uncompensated) expropriation thereof. Prominent among those
who have attempted this feat have been economists.
Economic analysis of the takings doctrine can be traced to a 1967
Harvard Law Review article in which Frank Michelman argued
(among other things) that a judge called on to determine whether
the Fifth Amendment had been violated in a particular case might
plausibly select as her criterion of judgment the maximization of
net social welfare. If that were her ambition, Michelman
contended, the judge should begin by estimating and comparing
the following economic impacts:
1. the net efficiency gains secured by the
government action in question (in other
words, “the excess of benefits produced
by the measure over losses inflicted by
it”);
2. the “settlement costs” – i.e., the costs of
measuring the injuries sustained by
adversely affected parties and of
providing
them
monetary
compensation; and
3. the “demoralization costs” incurred by
not indemnifying them. Michelman’s
definition of the third of these terms
was original and critical; to ascertain the

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“demoralization costs” entailed by not
paying compensation, the judge should
measure “the total of … the dollar value
necessary to offset disutilities which
accrue to losers and their sympathizers
specifically from the realization that no
compensation is offered, and … the
present capitalized dollar value of lost
future production (reflecting either
impaired incentives or social unrest)
caused
by
demoralization
of
uncompensated
losers,
their
sympathizers, and other observers
disturbed by the thought that they
themselves may be subjected to similar
treatment on some other occasion.”
Once the judge has calculated these
impacts, Michelman contended, her job is
straightforward.
 If (1) is the smallest figure, she should
contrive some way to enjoin the action
– for example, by declaring it to be
violative
of
the
constitutional
requirement that private property be
taken only for a “public use.”
 If (2) is the smallest figure, she should
not enjoin the action but should require
that the parties hurt by it be
compensated.
 If (3) is the smallest figure, she should
allow the government to proceed
without indemnifying the victims.
Applying this composite test, Michelman
suggested that some of the guidelines
employed by the Supreme Court when
deciding takings cases, though seemingly
simplistic or senseless, turn out to have
plausible utilitarian justifications. For

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example, the rule that “physical invasion”
by government of private property is always
deemed a taking, though apparently a
clumsy device for separating mild from
severe encroachments on private rights,
turns out to have important redeeming
features: it identifies a set of cases in which
settlement costs (the costs of both
ascertaining liability and measuring the
resultant damages) are likely to be modest
and in which, because of the “psychological
shock, the emotional protest, the symbolic
threat to all property and security”
commonly associated with bald invasions,
“demoralization costs” are likely to be high
– precisely the circumstance in which
compensation is most appropriate.
Similarly, the courts’ sensitivity in takings
cases to the ratio between the economic
injury sustained by the plaintiff and the
overall value of the affected parcel (rather
than to the absolute amount of the
economic injury) makes some sense on the
following plausible assumptions: “(1) that
one thinks of himself not just as owning a
total amount of wealth or income, but also
as owning several discrete things whose
destinies he controls; (2) that deprivation of
one of these mentally circumscribed things
is an event attended by pain of a specially
acute or demoralizing kind, as compared
with what one experiences in response to
the different kind of event consisting of a
general decline in one’s net worth; and (3)
that events of the specially painful kind can
usually be identified by compensation
tribunals with relative ease.”
Michelman’s analysis proved highly influential among
constitutional scholars, but did not go uncontested. In the 1980s,
several younger scholars argued that Michelman had made a crucial

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mistake. When measuring “demoralization costs,” they argued, a
judge should not include the diminution in investment and
“productive activity” caused by not making the victims whole.
Indeed, widespread adoption of Michelman’s strategy would send
precisely the wrong signal to property owners; assured that they
would be indemnified if and when the public needed their land,
they would overinvest in capital improvements – and, in particular,
in capital improvements likely soon to be rendered obsolete by
governmental action or regulation. Inducement of efficient kinds
and levels of activity, the revisionist economists claimed, requires
that economic actors “bear all real costs and benefits of their
decisions” including the risk of future changes in pertinent legal
rules.
From this point (now widely considered convincing), economic
analysis of the takings doctrine has radiated in a variety of
directions. Here are a few:
Insurance Schemes. The guideline just mentioned (that efficiency will
be enhanced by forcing landowners to bear the risk of future
changes in pertinent legal rules) has at least one serious drawback:
It may result in a few landowners suffering very large,
uncompensated losses – a situation economists generally regard as
undesirable. From an efficiency standpoint, the best solution to this
problem would be the development and widespread use of a
private insurance system. Landowners would buy “takings”
insurance, just as they now routinely buy fire insurance. Such a
system would not erode the benefits of making landowners bear
the costs of regulation, because the rate that an insurer charged for
insuring a particular parcel would almost certainly reflect the
likelihood that that particular parcel would later be subject to
governmental action. For example, developers who bought land in
flood plains or on eroding beaches would pay very large premiums,
while landowners in lower-risk areas would pay much lower
premiums. The resultant incentive to avoid developing parcels
likely soon to be regulated is precisely what we would wish to
create.

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Unfortunately, a private market in “takings” insurance has not yet
developed. Various reasons have been suggested for this failure,
but the fact remains that landowners cannot currently shield
themselves against uncompensated takings. Even if private
insurance were available, some landowners undoubtedly would not
purchase it – because they systematically underestimated the danger
of regulation or because they were simply poor planners. Under
these nonideal conditions, some economists have conceded that
governmental compensation for severe land-use regulations may be
economically defensible as, in effect, a form of compulsory statesupplied insurance.
Reconstructing Demoralization Costs. Perhaps the revisionist critique of
“demoralization costs” has gone too far. After all, many people
become unhappy when they experience or witness uncompensated
severe regulations of private property, and those psychic injuries
(measured, as always, by people’s willingness and ability to pay
money to avoid them) must be considered when one tries to design
a takings doctrine that maximizes net social welfare. Moreover,
those costs go further than the (potentially substantial) disutilities
caused by the frustration of people’s “political preferences” – the
pain they experience when they witness behavior they consider
unjust. They include secondary effects that might be called “search
costs”:
A
judicial
decision
denying
compensation in defiance of a popular
perception that it should be
forthcoming
risks
undermining
people’s faith that, by the large, the law
comports with their sense of justice.
Erosion of that faith, in turn, would
reduce people’s willingness to make
decisions – the rationality of which
depends upon the content of the
pertinent legal rules – without taking
the time to “look up” the rules… .
Generally speaking, our willingness to
act in this fashion is efficient; as long

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as the rules are in fact consistent with
our senses of justice, it is desirable,
from an economic standpoint, that we
trust our intuitions. Any material
diminution in that willingness would
give rise to deadweight losses that
merit the attention of a conscientious
economist.
Determining the magnitude of demoralization costs of these
various sorts is, however, very difficult. Frequently, one can argue
plausibly that the psychic injuries caused by a particular sort of
regulation will be huge – or will be insignificant. Consider, for
example, the situation in which land-use regulations are suddenly
tightened, not by the legislature, but by a change in common-law
rules. Will the demoralization costs caused by such putative
“judicial takings” be smaller or larger than those associated with
comparable “legislative takings”? Barton Thompson points to
several circumstances suggesting that they will be smaller: the fact
that courts can more easily disguise the extent to which they are
changing the pertinent land-use regulations; courts’ ability to fall
back on their general reputation for objective and principled
decisionmaking; and the tendency of the doctrine of stare decisis to
mitigate landowners’ anxieties that judicial modification of one
land-use regulation portends more sweeping changes in the future.
Barton acknowledges, however, that many of these factors can be
“flipped,” suggesting that judicial takings will result in unusually
high demoralization costs:
The mysteries and insulation of the
judicial process, for example, might
actually
increase
demoralization.
Property holders may believe that they
at least understand the legislative
process, have some electoral control
over politicians, and know how to
wage a fight on political grounds. They
may feel far more distressed about a
legal process that affects them without

480

apparently
understanding
their
concerns, speaks in a foreign and
confusing tongue, and is directed by
judges over whom they feel they have
no effective popular control. Given
the existence of stare decisis and
people’s expectations that courts will
generally
observe
precedent,
moreover, property holders may fear
disintegration of the social structure
far more when a court significantly
modifies prior property law than when
the legislature engages in traditional
political behavior.
Barton’s avowedly indeterminate analysis of “judicial takings” is
typical of the murk one enters when trying to predict psychic
injuries. In short, demoralization costs are plainly relevant to the
design of an efficient takings doctrine, but their uncertainty makes
economists queasy about relying on them.
“Fiscal Illusions.” Several economists have argued that it is mistaken
to concentrate exclusively upon the effect of constitutional
doctrine on the incentives of landowners to use and improve their
possessions; one must also take into account the incentives of
government officials to regulate private property. Specifically, these
economists have argued that, unless government officials are
compelled somehow to bear the costs of the regulations they
adopt, they will tend to impose on private property inefficiently
tight land-use controls. In this respect, the position of the
government vis-à-vis private landowners is similar to the position
of a private landowner vis-à-vis her neighbors. The purpose of
nuisance law, it is often said, is to force each landowner to
internalize the costs of her activities and thus discourage her from
acting in ways that impose on her neighbors inefficiently high
levels of annoyance (smoke, smells, pollution, excess light, etc.).
Similarly, some economists have argued, the purpose of a justcompensation requirement is to compel government officials to
internalize the costs of their regulatory activities and thus

481

discourage them from fettering landowners excessively. This claim
has been subjected by other economists to two sorts of critique.
First, it is not altogether clear that, unless deterred by a justcompensation requirement, government officials will overregulate.
Louis Kaplow points out that, although it is true that (in the
absence of such a requirement) government officials will not bear
the costs of their regulatory activities, they also will not reap the
benefits of those activities. (In this respect, they are different from
potentially hyperactive private landowners.) There is thus no
reason to assume that, unless leashed by a strict takings doctrine,
officials will run amok. A student Note in the Harvard Law Review
reinforces this point by suggesting two reasons why government
officials might be prone to adopt inefficiently low levels of
regulation: (a) ordinarily, the beneficiaries of land-use restrictions
are more dispersed (and thus less able to make their views known
to their elected representatives) than the landowners adversely
affected by those regulations; and (b) government officials typically
undervalue the interests in regulation of the members of future
generations.
Second, even if the “fiscal-illusion” effect is serious, it is not
obvious that the enforcement of a constitutional just-compensation
requirement is the only – or best – way to offset it. Other strategies
might work as well or better. For example, the student Note just
mentioned contends that optimal levels of regulation might be
achieved equally effectively by assigning to the state the authority
to proscribe without compensation any uses of private land that
government officials believe are injurious to the public – but then
permit adversely affected landowners to buy from the government
exemptions from those regulations. The state’s police power, in
other words, could be treated as an alienable servitude. Unless
transaction costs interfered with the market in such exemptions
(concededly a tricky issue), the adoption of such a system should
(Coase tells us) result in the same, efficient level of regulation as a
regime in which landowners were originally assigned the right not
to be regulated and the state had to expropriate (through the
payment of “just compensation”) the authority to regulate

482

them. Has this growing body of scholarship had any impact on
the courts? Yes and no. Some of the economists’ more basic
arguments have indeed influenced judicial resolution of takings
cases. For example, the causal nihilism typical of most economic
analyses contributed to the partial corrosion of the so-called
noxious-use exception to the ban on uncompensated takings. In
the early twentieth century the Supreme Court consistently and
confidently ruled that when a state forbids the continuation of a
use of land or other property that would be harmful to the public
or to neighbors, it is not obliged to indemnify the owner. For
example, in Miller v. Schoene, the Court upheld on this basis a
Virginia statute that required the owner of ornamental cedar trees
to cut them down because they produced cedar rust that
endangered apple trees in the vicinity. As legal scholars became
increasingly familiar with the economic analysis of doctrinal
problems – and, in particular, with Ronald Coase’s assertion that, in
all cases of conflicting land uses, it is senseless to characterize one
such use as the “cause” of harm to the other – they pointed out
that the Court’s handling of cases like Miller was naive. The activity
of keeping cedar trees in the vicinity of apple orchards is no more
(and no less) “noxious” than the activity of keeping apple orchards
in the vicinity of cedar trees. In the face of this chorus of criticism,
the Court retreated. Its renunciation of the “noxious use” test was
most complete and overt in Justice Brennan’s majority opinion in
the case with which we have been concerned:
We observe that the land uses in issue
in Hadacheck, Miller, and Goldblatt were
perfectly lawful in themselves. They
involved no “blameworthiness, …
moral wrongdoing or conscious act of
dangerous risk-taking which induced
society to shift the cost to a particular
individual.” These cases are better
understood as resting not on any
supposed “noxious” quality of the
prohibited uses but rather on the
ground that the restrictions were

483

reasonably
related
to
the
implementation of a policy – not
unlike historic preservation – expected
to produce a widespread public benefit
and applicable to all similarly situated
property.
For better or worse, however, the Court since Penn Central has
drifted back toward its original view. The justices’ invocations of
the distinction between “noxious” and “innocent” uses have been
more tentative and awkward than in the period before 1960, but
nevertheless have been increasing.
The Court’s opinion in Loretto v. Teleprompter Manhattan CATV
Corp. furnishes a more straightforward illustration of the power of
the economic argument. At issue in the case was a New York
statute empowering a cable television company to install fixtures
on the sides and roofs of privately owned buildings. In holding that
such a “permanent physical occupation” of private property, no
matter how trivial, always constitutes a taking, Justice Marshall
relied twice on Michelman’s 1967 article – first, for Michelman’s
analysis of the historical development of the physical-occupation
rule; and second for his defense of the rule as effective way of
identifying situations involving both low settlement costs and high
demoralization costs.
The newer and more refined variations on the economic theme,
however, have had little if any impact on judicial decisions in this
field. In particular the danger – widely recognized by scholars –
that liberal grants of compensation to property owners adversely
affected by government action will give rise to a “moral hazard”
problem, leading to inefficiently high levels of investment in
improvements likely to be rendered valueless by subsequent
regulation seems to have fallen on deaf judicial ears.
Equally troublesome is the tendency of judges (or their law clerks)
to misuse economic arguments – or at least to deploy them in ways
their originators would have found surprising and distressing.
Perhaps the clearest illustration of such misuse concerns the fate of

484

the phrase: “discrete, investment-backed expectations.” Toward the
close of his 1967 article Michelman provided a brief, avowedly
utilitarian defense of the venerable and much-maligned
“diminution in value” test for determining whether a statute had
effected a taking. The true justification of the test, he argued, is
that, like the physical-invasion test, it mandates compensation in
situations in which property owners will experience severe
psychological injury. Recognition of this justification, Michelman
went on to argue, requires that we reconceive the test slightly:
More
sympathetically
perceived,
however, the test poses not [a] …
loose question of degree; it does not
ask “how much,” but rather … it asks
“whether or not”: whether or not the
measure in question can easily be seen
to have practically deprived the
claimant of some distinctly perceived,
sharply crystallized, investment-backed
expectation.
In his Penn Central opinion, Justice Brennan several times invoked
the language with which Michelman closed his discussion –
without recapitulating, however, the argument on which it was
based. Cut loose from its moorings, Michelman’s proposed test has
since been put to some surprising uses. For example, in KaiserAetna v. United States, the owner of a resort and marina in Hawaii
argued that, by granting it permission to convert a shallow,
landlocked lagoon into a bay accessible to pleasure boats, the Army
Corps of Engineers had forfeited the right subsequently to declare
the bay a navigable waterway open to the public – unless, of
course, it compensated the marina owner. Emphasizing the large
amount of money the petitioner had invested in the project, Justice
Rehnquist and a majority of the Court agreed. A well-established
factor in assessing takings challenges, Rehnquist held, is the extent
to which the challenged government action “interfere[s] with
reasonable investment backed expectations.” In the case at bar, the
interference plainly had been substantial. Whatever one thinks of

485

the merits of the ruling, it is considerably removed from
Michelman’s original point, namely, that total or nearly total
devaluation of a distinct property interest (something that plainly
did not occur in Kaiser-Aetna) should be deemed a taking because of
its likely psychic impact on the owner of the property.
Pennell v. City of San Jose
485 U.S. 1, 42 Cal.3d 365, 228 Cal.Rptr. 726, 721 P.2d 1111
(1986), affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in
which BRENNAN, WHITE, MARSHALL, BLACKMUN,
and STEVENS, JJ., joined. SCALIA, J., filed an opinion
concurring in part and dissenting in part, in which
O’CONNOR, J., joined, post, p. —-. KENNEDY, J., took
no part in the consideration or decision of the case.
Harry D. Miller, Oakland, Cal., for appellants.
Joan R. Gallo, San Jose, Cal., for appellees.
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
This case involves a challenge to a rent control ordinance
enacted by the city of San Jose, California, that allows a
hearing officer to consider, among other factors, the
“hardship to a tenant” when determining whether to
approve a rent increase proposed by a landlord. Appellants
Richard Pennell and the Tri-County Apartment House
Owners Association sued in the Superior Court of Santa
Clara County seeking a declaration that the ordinance, in
particular the “tenant hardship” provisions, are “facially
unconstitutional and therefore … illegal and void.” The
Superior Court entered judgment on the pleadings in favor
of appellants, sustaining their claim that the tenant hardship
provisions violated the Takings Clause of the Fifth
Amendment, as made applicable to the States by the
Fourteenth Amendment. The California Court of Appeal
affirmed this judgment, but the Supreme Court of

486

California reversed, each by a divided vote. The majority of
the Supreme Court rejected appellants’ arguments under
the Takings Clause and the Equal Protection and Due
Process Clauses of the Fourteenth Amendment; the
dissenters in that court thought that the tenant hardship
provisions were a “forced subsidy imposed on the
landlord” in violation of the Takings Clause. On appellants’
appeal to this Court we postponed consideration of the
question of jurisdiction, and now having heard oral
argument we affirm the judgment of the Supreme Court of
California.
The city of San Jose enacted its rent control ordinance
(Ordinance) in 1979 with the stated purpose of
alleviating some of the more
immediate needs created by San Jose’s
housing situation. These needs include
but are not limited to the prevention
of excessive and unreasonable rent
increases, the alleviation of undue
hardships upon individual tenants, and
the assurance to landlords of a fair and
reasonable return on the value of their
property.
San Jose Municipal Ordinance 19696, § 5701.2.
At the heart of the Ordinance is a mechanism for
determining the amount by which landlords subject to its
provisions may increase the annual rent which they charge
their tenants. A landlord is automatically entitled to raise
the rent of a tenant in possession1 by as much as eight
percent; if a tenant objects to an increase greater than eight
percent, a hearing is required before a “Mediation Hearing
1 Under § 5703.3, the Ordinance does not apply to rent or rent increases for new

rental units first rented after the Ordinance takes effect, § 5703.3(a), to the rental of
a unit that has been voluntarily vacated, § 5703.3(b)(1), or to the rental of a unit
that is vacant as a result of eviction for certain specified acts, § 5703.3(b)(2).

487

Officer” to determine whether the landlord’s proposed
increase is “reasonable under the circumstances.” The
Ordinance sets forth a number of factors to be considered
by the hearing officer in making this determination,
including “the hardship to a tenant.” § 5703.28(c)(7).
Because appellants concentrate their attack on the
consideration of this factor, we set forth the relevant
provision of the Ordinance in full:
5703.29. Hardship to Tenants. In the
case of a rent increase or any portion
thereof which exceeds the standard set
in Section 5703.28(a) or (b), then with
respect to such excess and whether or
not to allow same to be part of the
increase allowed under this Chapter,
the Hearing Officer shall consider the
economic and financial hardship
imposed on the present tenant or
tenants of the unit or units to which
such increases apply. If, on balance,
the Hearing Officer determines that
the proposed increase constitutes an
unreasonably severe financial or
economic hardship on a particular
tenant, he may order that the excess of
the increase which is subject to
consideration under subparagraph (c)
of Section 5703.28. or any portion
thereof, be disallowed. Any tenant
whose household income and monthly
housing expense meets certain income
requirements shall be deemed to be
suffering under financial and economic
hardship which must be weighed in
the Hearing Officer’s determination.
The burden of proof in establishing
any other economic hardship shall be
on the tenant.

488

If either a tenant or a landlord is dissatisfied with the
decision of the hearing officer, the Ordinance provides for
binding arbitration. A landlord who attempts to charge or
who receives rent in excess of the maximum rent
established as provided in the Ordinance is subject to
criminal and civil penalties.
Before we turn to the merits of appellants’ contentions we
consider the claim of appellees that appellants lack standing
to challenge the constitutionality of the Ordinance. [The
Court decided there was standing.]
Turning now to the merits, we first address appellants’
contention that application of the Ordinance’s tenant
hardship provisions violates the Fifth and Fourteenth
Amendments’ prohibition against taking of private property
for public use without just compensation. In essence,
appellants’ claim is as follows: § 5703.28 of the Ordinance
establishes the seven factors that a hearing officer is to take
into account in determining the reasonable rent increase.
The first six of these factors are all objective, and are
related either to the landlord’s costs of providing an
adequate rental unit, or to the condition of the rental
market. Application of these six standards results in a rent
that is “reasonable” by reference to what appellants
contend is the only legitimate purpose of rent control: the
elimination of “excessive” rents caused by San Jose’s
housing shortage. When the hearing officer then takes into
account “hardship to a tenant” pursuant to § 5703.28(c)(7)
and reduces the rent below the objectively “reasonable”
amount established by the first six factors, this additional
reduction in the rent increase constitutes a “taking.” This
taking is impermissible because it does not serve the
purpose of eliminating excessive rents – that objective has
already been accomplished by considering the first six
factors – instead, it serves only the purpose of providing
assistance to “hardship tenants.” In short, appellants
contend, the additional reduction of rent on grounds of

489

hardship accomplishes a transfer of the landlord’s property
to individual hardship tenants; the Ordinance forces private
individuals to shoulder the “public” burden of subsidizing
their poor tenants’ housing. As appellants point out, ”it is
axiomatic that the Fifth Amendment’s just compensation
provision is ‘designed to bar Government from forcing
some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a
whole.’” First English Evangelical Lutheran Church of Glendale v.
County of Los Angeles, 482 U.S. 304, 318-319 (1987) (quoting
Armstrong v. United States, 364 U.S. 40, 49,(1960)).
We think it would be premature to consider this contention
on the present record. As things stand, there simply is no
evidence that the “tenant hardship clause” has in fact ever
been relied upon by a hearing officer to reduce a rent below
the figure it would have been set at on the basis of the
other factors set forth in the Ordinance. In addition, there
is nothing in the Ordinance requiring that a hearing officer
in fact reduce a proposed rent increase on grounds of
tenant hardship. Section 5703.29 does make it mandatory
that hardship be considered – it states that “the Hearing
Officer shall consider the economic hardship imposed on
the present tenant” – but it then goes on to state that if
“the proposed increase constitutes an unreasonably severe
financial or economic hardship … he may order that the
excess of the increase” be disallowed. § 5703.29 (emphasis
added). Given the “essentially ad hoc, factual inquiry”
involved in the takings analysis, Kaiser Aetna v. United States,
444 U.S. 164, 175 (1979), we have found it particularly
important in takings cases to adhere to our admonition that
“the constitutionality of statutes ought not be decided
except in an actual factual setting that makes such a
decision necessary.” Hodel v. Virginia Surface Mining &
Reclamation Assn., Inc., 452 U.S. 264, 294-295 (1981). In
Virginia Surface Mining, for example, we found that a
challenge to the Surface Mining Control and Reclamation

490

Act of 1977, 91 Stat. 447, 30 U.S.C. § 1201 et seq., was
“premature,” 452 U.S., at 296, n. 37, and “not ripe for
judicial resolution,” id., at 297, because the property owners
in that case had not identified any property that had
allegedly been taken by the Act, nor had they sought
administrative relief from the Act’s restrictions on surface
mining. Similarly, in this case we find that the mere fact
that a hearing officer is enjoined to consider hardship to
the tenant in fixing a landlord’s rent, without any showing
in a particular case as to the consequences of that
injunction in the ultimate determination of the rent, does
not present a sufficiently concrete factual setting for the
adjudication of the takings claim appellants raise here. Cf.
CIO v. McAdory, 325 U.S. 472, 475-476 (1945) (declining to
consider the validity of a state statute when the record did
not show that the statute would ever be applied to any of
the petitioner’s members).
Appellants also urge that the mere provision in the
Ordinance that a hearing officer may consider the hardship
of the tenant in finally fixing a reasonable rent renders the
Ordinance “facially invalid” under the Due Process and
Equal Protection Clauses, even though no landlord ever
has its rent diminished by as much as one dollar because of
the application of this provision. [The Court decided the
Ordinance was not facially unconstitutional on these
grounds.]
For the foregoing reasons, we hold that it is premature to
consider appellants’ claim under the Takings Clause and we
reject their facial challenge to the Ordinance under the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment. The judgment of the Supreme Court of
California is accordingly
Affirmed.
Justice KENNEDY took no part in the consideration or
decision of this case.

491

JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins,
concurring in part and dissenting in part.
I agree that the tenant hardship provision of the Ordinance
does not, on its face, violate either the Due Process Clause
or the Equal Protection Clause of the Fourteenth
Amendment. I disagree, however, with the Court’s
conclusion that appellants’ takings claim is premature. I
would decide that claim on the merits, and would hold that
the tenant hardship provision of the Ordinance effects a
taking of private property without just compensation in
violation of the Fifth and Fourteenth Amendments.
I
Appellants contend that any application of the tenant
hardship provision of the San Jose Ordinance would effect
an uncompensated taking of private property because that
provision does not substantially advance legitimate state
interests and because it improperly imposes a public burden
on individual landlords. I can understand how such a claim
– that a law applicable to the plaintiffs is, root and branch,
invalid – can be readily rejected on the merits, by merely
noting that at least some of its applications may be lawful.
But I do not understand how such a claim can possibly be
avoided by considering it “premature.” Suppose, for
example, that the feature of the rental ordinance under
attack was a provision allowing a hearing officer to consider
the race of the apartment owner in deciding whether to
allow a rent increase. It is inconceivable that we would say
judicial challenge must await demonstration that this
provision has actually been applied to the detriment of one
of the plaintiffs. There is no difference, it seems to me,
when the facial, root-and-branch challenge rests upon the
Takings Clause rather than the Equal Protection Clause.
….

492

There is no reason thus to shield alleged constitutional
injustice from judicial scrutiny. I would therefore consider
appellants’ takings claim on the merits.
II
The Fifth Amendment of the United States Constitution,
made applicable to the States through the Fourteenth
Amendment, Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,
239 (1897), provides that “private property shall not be
taken for public use, without just compensation.” We have
repeatedly observed that the purpose of this provision is
“to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” Armstrong v.
United States, 364 U.S. 40, 49 (1960); see also First English
Evangelical Lutheran Church of Glendale v. Los Angeles County,
482 U.S. 304, 318-319 (1987); Webb’s Fabulous Pharmacies,
Inc. v. Beckwith, 449 U.S. 155, 163 (1980); Agins v. Tiburon,
supra, 447 U.S., at 260; Penn Central Transportation Co. v. New
York City, 438 U.S. 104, 123 (1978); Monongahela Navigation
Co. v. United States, 148 U.S. 312, 325 (1893).
Traditional land-use regulation (short of that which totally
destroys the economic value of property) does not violate
this principle because there is a cause-and-effect
relationship between the property use restricted by the
regulation and the social evil that the regulation seeks to
remedy. Since the owner’s use of the property is (or, but for
the regulation, would be) the source of the social problem,
it cannot be said that he has been singled out unfairly.
Thus, the common zoning regulations requiring subdividers
to observe lot-size and set-back restrictions, and to dedicate
certain areas to public streets, are in accord with our
constitutional traditions because the proposed property use
would otherwise be the cause of excessive congestion. The
same cause-and-effect relationship is popularly thought to
justify emergency price regulation: When commodities have
been priced at a level that produces exorbitant returns, the

493

owners of those commodities can be viewed as responsible
for the economic hardship that occurs. Whether or not that
is an accurate perception of the way a free-market economy
operates, it is at least true that the owners reap unique
benefits from the situation that produces the economic
hardship, and in that respect singling them out to relieve it
may not be regarded as “unfair.” That justification might
apply to the rent regulation in the present case, apart from
the single feature under attack here.
Appellants do not contest the validity of rent regulation in
general. They acknowledge that the city may
constitutionally set a “reasonable rent” according to the
statutory minimum and the six other factors that must be
considered by the hearing officer (cost of debt servicing,
rental history of the unit, physical condition of the unit,
changes in housing services, other financial information
provided by the landlord, and market value rents for similar
units). San Jose Municipal Ordinance 19696, § 5703.28(c)
(1979). Appellants’ only claim is that a reduction of a rent
increase below what would otherwise be a “reasonable
rent” under this scheme may not, consistently with the
Constitution, be based on consideration of the seventh
factor the hardship to the tenant as defined in § 5703.29. I
think they are right.
Once the other six factors of the Ordinance have been
applied to a landlord’s property, so that he is receiving only
a reasonable return, he can no longer be regarded as a
“cause” of exorbitantly priced housing; nor is he any longer
reaping distinctively high profits from the housing
shortage. The seventh factor, the “hardship” provision, is
invoked to meet a quite different social problem: the
existence of some renters who are too poor to afford even
reasonably priced housing. But that problem is no more
caused or exploited by landlords than it is by the grocers
who sell needy renters their food, or the department stores
that sell them their clothes, or the employers who pay them

494

their wages, or the citizens of San Jose holding the higher
paying jobs from which they are excluded. And even if the
neediness of renters could be regarded as a problem
distinctively attributable to landlords in general, it is not
remotely attributable to the particular landlords that the
Ordinance singles out – namely, those who happen to have
a “hardship” tenant at the present time, or who may
happen to rent to a “hardship” tenant in the future, or
whose current or future affluent tenants may happen to
decline into the “hardship” category.
The traditional manner in which American government has
met the problem of those who cannot pay reasonable
prices for privately sold necessities – a problem caused by
the society at large – has been the distribution to such
persons of funds raised from the public at large through
taxes, either in cash (welfare payments) or in goods (public
housing, publicly subsidized housing, and food stamps).
Unless we are to abandon the guiding principle of the
Takings Clause that “public burdens … should be borne by
the public as a whole,” Armstrong, 364 U.S., at 49, this is the
only manner that our Constitution permits. The fact that
government acts through the landlord-tenant relationship
does not magically transform general public welfare, which
must be supported by all the public, into mere “economic
regulation,” which can disproportionately burden particular
individuals. Here the city is not “regulating” rents in the
relevant sense of preventing rents that are excessive; rather,
it is using the occasion of rent regulation (accomplished by
the rest of the Ordinance) to establish a welfare program
privately funded by those landlords who happen to have
“hardship” tenants.
Of course all economic regulation effects wealth transfer.
When excessive rents are forbidden, for example, landlords
as a class become poorer and tenants as a class (or at least
incumbent tenants as a class) become richer. Singling out
landlords to be the transferors may be within our

495

traditional constitutional notions of fairness, because they
can plausibly be regarded as the source or the beneficiary of
the high-rent problem. Once such a connection is no
longer required, however, there is no end to the social
transformations that can be accomplished by so-called
“regulation,” at great expense to the democratic process.
The politically attractive feature of regulation is not that it
permits wealth transfers to be achieved that could not be
achieved otherwise; but rather that it permits them to be
achieved “off budget,” with relative invisibility and thus
relative immunity from normal democratic processes. San
Jose might, for example, have accomplished something like
the result here by simply raising the real estate tax upon
rental properties and using the additional revenues thus
acquired to pay part of the rents of “hardship” tenants. It
seems to me doubtful, however, whether the citizens of San
Jose would allow funds in the municipal treasury, from
wherever derived, to be distributed to a family of four with
income as high as $32,400 a year – the generous maximum
necessary to qualify automatically as a “hardship” tenant
under the rental Ordinance.2 The voters might well see
other, more pressing, social priorities. And of course what
$32,400-a-year renters can acquire through spurious
“regulation,” other groups can acquire as well. Once the
door is opened it is not unreasonable to expect price
regulations requiring private businesses to give special
discounts to senior citizens (no matter how affluent), or to
2 Under the San Jose Ordinance, “hardship” tenants include (though are not limited

to) those whose “household income and monthly housing expense meets sic the
criteria” for assistance under the existing housing provisions of § 8 of the Housing
and Community Development Act of 1974, 42 U.S.C. § 1437f (1982 ed. and Supp.
III). The United States Department of Housing and Urban Development currently
limits assistance under these provisions for families of four in the San Jose area to
those who earn $32,400 or less per year. Memorandum from U.S. Dept. of
Housing and Urban Development, Assistant Secretary for Housing-Federal
Housing Comm’r, Income Limits for Lower Income and Very Low-Income
Families Under the Housing Act of 1937 (Jan. 15, 1988).

496

students, the handicapped, or war veterans. Subsidies for
these groups may well be a good idea, but because of the
operation of the Takings Clause our governmental system
has required them to be applied, in general, through the
process of taxing and spending, where both economic
effects and competing priorities are more evident.
That fostering of an intelligent democratic process is one of
the happy effects of the constitutional prescription –
perhaps accidental, perhaps not. Its essence, however, is
simply the unfairness of making one citizen pay, in some
fashion other than taxes, to remedy a social problem that is
none of his creation. As the Supreme Court of New Jersey
said in finding unconstitutional a scheme displaying, among
other defects, the same vice I find dispositive here:
A legislative category of economically
needy senior citizens is sound, proper
and sustainable as a rational
classification.
But
compelled
subsidization by landlords or by
tenants who happen to live in an
apartment building with senior citizens
is an improper and unconstitutional
method of solving the problem.
Property Owners Assn. v. North Bergen, 74 N.J. 327, 339
(1977).
I would hold that the seventh factor in § 5703.28(c) of the
San Jose Ordinance effects a taking of property without
just compensation.
4.3. Doctrine
4.3.1. Ad hoc Takings
Penn Central Transportation Co., v. New York City,
438 U.S. 104 (1978)
Daniel M. Gribbon argued the cause for appellants. With him
on the briefs were John R. Bolton and Carl Helmetag, Jr.

497

Leonard Koerner argued the cause for appellees. With him on
the brief were Allen G. Schwartz, L. Kevin Sheridan, and
Dorothy Miner.
Assistant Attorney General Wald argued the cause for the
United States as amicus curiae urging affirmance. On the
brief were Solicitor General McCree, Assistant Attorney General
Moorman, Peter R. Steenland, Jr., and Carl Strass.1
Briefs of amici curiae were filed by Evelle J. Younger, Attorney
General, E. Clement Shute, Jr., and Robert H. Connett,
Assistant Attorneys General, and Richard C. Jacobs, Deputy
Attorney General, for the State of California; and by Eugene
J. Morris for the Real Estate Board of New York, Inc.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question presented is whether a city may, as part of a
comprehensive program to preserve historic landmarks and
historic districts, place restrictions on the development of
individual historic landmarks–in addition to those imposed
by applicable zoning ordinances–without effecting a
“taking” requiring the payment of “just compensation.”
Specifically, we must decide whether the application of
New York City’s Landmarks Preservation Law to the parcel
of land occupied by Grand Central Terminal has “taken” its
owners’ property in violation of the Fifth and Fourteenth
Amendments.

1 Briefs of amici curiae urging affirmance were filed by David Bonderman and Frank B.

Gilbert for the National Trust for Historic Preservation et al.; by Paul S. Byard, Ralph
C. Menapace, Jr., Terence H. Benbow, William C. Chanler, Richard H. Pershan, Francis T. P.
Plimpton, Whitney North Seymour, and Bethuel M. Webster for the Committee to Save
Grand Central Station et al.; and by Louis J. Lefkowitz, Attorney General, Samuel A.
Hirshowitz, First Assistant Attorney General, and Philip Weinberg, Assistant Attorney
General, for the State of New York.

498

I
A
Over the past 50 years, all 50 States and over 500
municipalities have enacted laws to encourage or require
the preservation of buildings and areas with historic or
aesthetic importance.2 These nationwide legislative efforts
have been precipitated by two concerns. The first is
recognition that, in recent years, large numbers of historic
structures, landmarks, and areas have been destroyed3
without adequate consideration of either the values
represented therein or the possibility of preserving the
destroyed properties for use in economically productive
ways.4 The second is a widely shared belief that structures
with special historic, cultural, or architectural significance
enhance the quality of life for all. Not only do these
buildings and their workmanship represent the lessons of
the past and embody precious features of our heritage, they
serve as examples of quality for today. “[H]istoric
conservation is but one aspect of the much larger problem,

See National Trust for Historic Preservation, A Guide to State Historic
Preservation Programs (1976); National Trust for Historic Preservation, Directory
of Landmark and Historic District Commissions (1976). In addition to these state
and municipal legislative efforts, Congress has determined that “the historical and
cultural foundations of the Nation should be preserved as a living part of our
community life and development in order to give a sense of orientation to the
American people,” National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.
S. C. § 470 (b) (1976 ed.), and has enacted a series of measures designed to
encourage preservation of sites and structures of historic, architectural, or cultural
significance. See generally Gray, The Response of Federal Legislation to Historic
Preservation, 36 Law & Contemp. Prob. 314 (1971).
2

3 Over one-half of the buildings listed in the Historic American Buildings Survey,

begun by the Federal Government in 1933, have been destroyed. See Costonis, The
Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85
Harv. L. Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank’s Building Plan Sets Off
Debate on “Progress,” N. Y. Times, Jan. 17, 1971, section 8, p. 1, col. 2.
4 See, e. g., N. Y. C. Admin. Code § 205-1.0 (a) (1976).

499

basically an environmental one, of enhancing–or perhaps
developing for the first time–the quality of life for people.”5
New York City, responding to similar concerns and acting
pursuant to a New York State enabling Act,6 adopted its
Landmarks Preservation Law in 1965. See N. Y. C. Admin.
Code, ch. 8-A, § 205-1.0 et seq. (1976). The city acted from
the conviction that “the standing of [New York City] as a
world-wide tourist center and world capital of business,
culture and government” would be threatened if legislation
were not enacted to protect historic landmarks and
neighborhoods from precipitate decisions to destroy or
fundamentally alter their character. § 205-1.0 (a). The city
believed that comprehensive measures to safeguard
desirable features of the existing urban fabric would benefit
its citizens in a variety of ways: e. g., fostering “civic pride in
the beauty and noble accomplishments of the past”;
protecting and enhancing “the city’s attractions to tourists
and visitors”; “support[ing] and stimul[ating] business and
industry”; “strengthen[ing] the economy of the city”; and
promoting “the use of historic districts, landmarks, interior
landmarks and scenic landmarks for the education, pleasure
and welfare of the people of the city.” § 205-1.0 (b).
The New York City law is typical of many urban landmark
laws in that its primary method of achieving its goals is not
by acquisitions of historic properties,7 but rather by
5 Gilbert, Introduction, Precedents for the Future, 36 Law & Contemp. Prob. 311,

312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation
Law, Washington, D. C., May 1, 1971 (unpublished text, pp. 6-7).
6 See N. Y. Gen. Mun. Law § 96-a (McKinney 1977). It declares that it is the public

policy of the State of New York to preserve structures and areas with special
historical or aesthetic interest or value and authorizes local governments to impose
reasonable restrictions to perpetuate such structures and areas.
7 The consensus is that widespread public ownership of historic properties in urban

settings is neither feasible nor wise. Public ownership reduces the tax base, burdens
the public budget with costs of acquisitions and maintenance, and results in the
preservation of public buildings as museums and similar facilities, rather than as
economically productive features of the urban scene. See Wilson & Winkler, The

500

involving public entities in land-use decisions affecting
these properties and providing services, standards, controls,
and incentives that will encourage preservation by private
owners and users.8 While the law does place special
restrictions on landmark properties as a necessary feature to
the attainment of its larger objectives, the major theme of
the law is to ensure the owners of any such properties both
a “reasonable return” on their investments and maximum
latitude to use their parcels for purposes not inconsistent
with the preservation goals.
….
B
This case involves the application of New York City’s
Landmarks Preservation Law to Grand Central Terminal
(Terminal). The Terminal, which is owned by the Penn
Central Transportation Co. and its affiliates (Penn Central),
is one of New York City’s most famous buildings. Opened
in 1913, it is regarded not only as providing an ingenious
engineering solution to the problems presented by urban
railroad stations, but also as a magnificent example of the
French beaux-arts style.
….
On August 2, 1967, following a public hearing, the
Commission designated the Terminal a “landmark” and
designated the “city tax block” it occupies a “landmark
site.”9 The Board of Estimate confirmed this action on

Response of State Legislation to Historic Preservation, 36 Law & Contemp. Prob.
329, 330-331, 339-340 (1971).
See Costonis, supra n. 2, at 580-581; Wilson & Winkler, supra n. 6; Rankin,
Operation and Interpretation of the New York City Landmark Preservation Law,
36 Law & Contemp. Prob. 366 (1971).
8

9 The Commission’s report stated:

501

September 21, 1967. Although appellant Penn Central had
opposed the designation before the Commission, it did not
seek judicial review of the final designation decision.
On January 22, 1968, appellant Penn Central, to increase its
income, entered into a renewable 50-year lease and sublease
agreement with appellant UGP Properties, Inc. (UGP), a
wholly owned subsidiary of Union General Properties, Ltd.,
a United Kingdom corporation. Under the terms of the
agreement, UGP was to construct a multistory office
building above the Terminal. UGP promised to pay Penn
Central $1 million annually during construction and at least
$3 million annually thereafter. The rentals would be offset
in part by a loss of some $700,000 to $1 million in net
rentals presently received from concessionaires displaced
by the new building.
Appellants UGP and Penn Central then applied to the
Commission for permission to construct an office building
atop the Terminal. Two separate plans, both designed by
architect Marcel Breuer and both apparently satisfying the
terms of the applicable zoning ordinance, were submitted
to the Commission for approval. The first, Breuer I,
provided for the construction of a 55-story office building,
to be cantilevered above the existing facade and to rest on
the roof of the Terminal. The second, Breuer II Revised,10
called for tearing down a portion of the Terminal that
“Grand Central Station, one of the great buildings of
America, evokes a spirit that is unique in this City. It
combines distinguished architecture with a brilliant
engineering solution, wedded to one of the most fabulous
railroad terminals of our time. Monumental in scale, this
great building functions as well today as it did when built.
In style, it represents the best of the French Beaux Arts.”
Record 2240.
10 Appellants also submitted a plan, denominated Breuer II, to the Commission.

However, because appellants learned that Breuer II would have violated existing
easements, they substituted Breuer II Revised for Breuer II, and the Commission
evaluated the appropriateness only of Breuer II Revised.

502

included the 42d Street facade, stripping off some of the
remaining features of the Terminal’s facade, and
constructing a 53-story office building. The Commission
denied a certificate of no exterior effect on September 20,
1968. Appellants then applied for a certificate of
“appropriateness” as to both proposals. After four days of
hearings at which over 80 witnesses testified, the
Commission denied this application as to both proposals.
The Commission’s reasons for rejecting certificates
respecting Breuer II Revised are summarized in the
following statement: “To protect a Landmark, one does not
tear it down. To perpetuate its architectural features, one
does not strip them off.” Record 2255. Breuer I, which
would have preserved the existing vertical facades of the
present
structure,
received
more
sympathetic
consideration…. In conclusion, the Commission stated:
“[We have] no fixed rule against
making additions to designated
buildings–it all depends on how they
are done … . But to balance a 55-story
office tower above a flamboyant
Beaux-Arts facade seems nothing
more than an aesthetic joke. Quite
simply, the tower would overwhelm
the Terminal by its sheer mass. The
‘addition’ would be four times as high
as the existing structure and would
reduce the Landmark itself to the
status of a curiosity.
“Landmarks cannot be divorced from
their settings– particularly when the
setting is a dramatic and integral part
of the original concept. The Terminal,
in its setting, is a great example of
urban design. Such examples are not
so plentiful in New York City that we
can afford to lose any of the few we

503

have. And we must preserve them in a
meaningful way–with alterations and
additions of such character, scale,
materials and mass as will protect,
enhance and perpetuate the original
design rather than overwhelm it.”
Id., at 2251.11
….
The New York Court of Appeals … summarily rejected
any claim that the Landmarks Law had “taken” property
without “just compensation,” id., at 329, 366 N. E. 2d, at
1274, indicating that there could be no “taking” since the
law had not transferred control of the property to the city,
but only restricted appellants’ exploitation of it… . .
II
The issues presented by appellants are (1) whether the
restrictions imposed by New York City’s law upon
appellants’ exploitation of the Terminal site effect a
“taking” of appellants’ property for a public use within the
meaning of the Fifth Amendment, which of course is made
applicable to the States through the Fourteenth
Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.
S. 226, 239 (1897), and, (2), if so, whether the transferable
development rights afforded appellants constitute “just
compensation” within the meaning of the Fifth

11 In discussing Breuer I, the Commission also referred to a number of instances in

which it had approved additions to landmarks: “The office and reception wing
added to Gracie Mansion and the school and church house added to the 12th
Street side of the First Presbyterian Church are examples that harmonize in scale,
material and character with the structures they adjoin. The new Watch Tower Bible
and Tract Society building on Brooklyn Heights, though completely modern in
idiom, respects the qualities of its surroundings and will enhance the Brooklyn
Heights Historic District, as Butterfield House enhances West 12th Street, and
Breuer’s own Whitney Museum its Madison Avenue locale.” Record 2251.

504

Amendment.12 We need only address the question whether
a “taking” has occurred.13
A
Before considering appellants’ specific contentions, it will
be useful to review the factors that have shaped the
12 Our statement of the issues is a distillation of four questions presented in the

jurisdictional statement:
“Does the social and cultural desirability of preserving
historical landmarks through government regulation
derogate from the constitutional requirement that just
compensation be paid for private property taken for
public use?
“Is Penn Central entitled to no compensation for that
large but unmeasurable portion of the value of its rights to
construct an office building over the Grand Central
Terminal that is said to have been created by the efforts of
‘society as an organized entity’?
“Does a finding that Penn Central has failed to establish
that there is no possibility, without exercising its
development rights, of earning a reasonable return on all
of its remaining properties that benefit in any way from
the operations of the Grand Central Terminal warrant the
conclusion that no compensation need be paid for the
taking of those rights?
“Does the possibility accorded to Penn Central, under the
landmark-preservation regulation, of realizing some value
at some time by transferring the Terminal development
rights to other buildings, under a procedure that is
conceded to be defective, severely limited, procedurally
complex and speculative, and that requires ultimate
discretionary approval by governmental authorities, meet
the constitutional requirements of just compensation as
applied to landmarks?”

Jurisdictional Statement 3-4.
The first and fourth questions assume that there has been a taking and raise the
problem whether, under the circumstances of this case, the transferable
development rights constitute “just compensation.” The second and third
questions, on the other hand, are directed to the issue whether a taking has
occurred.
13 As is implicit in our opinion, we do not embrace the proposition that a “taking”

can never occur unless government has transferred physical control over a portion
of a parcel.

505

jurisprudence of the Fifth Amendment injunction “nor
shall private property be taken for public use, without just
compensation.” The question of what constitutes a
“taking” for purposes of the Fifth Amendment has proved
to be a problem of considerable difficulty. While this Court
has recognized that the “Fifth Amendment’s guarantee …
[is] designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole,”
Armstrong v. United States, 364 U. S. 40, 49 (1960), this
Court, quite simply, has been unable to develop any “set
formula” for determining when “justice and fairness”
require that economic injuries caused by public action be
compensated by the government, rather than remain
disproportionately concentrated on a few persons. See
Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962). Indeed, we
have frequently observed that whether a particular
restriction will be rendered invalid by the government’s
failure to pay for any losses proximately caused by it
depends largely “upon the particular circumstances [in that]
case.” United States v. Central Eureka Mining Co., 357 U. S.
155, 168 (1958); see United States v. Caltex, Inc., 344 U. S.
149, 156 (1952).
In engaging in these essentially ad hoc, factual inquiries, the
Court’s decisions have identified several factors that have
particular significance. The economic impact of the
regulation on the claimant and, particularly, the extent to
which the regulation has interfered with distinct
investment-backed expectations are, of course, relevant
considerations. See Goldblatt v. Hempstead, supra, at 594. So,
too, is the character of the governmental action. A “taking”
may more readily be found when the interference with
property can be characterized as a physical invasion by
government, see, e. g., United States v. Causby, 328 U. S. 256
(1946), than when interference arises from some public

506

program adjusting the benefits and burdens of economic
life to promote the common good.
“Government hardly could go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law,”
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 413 (1922),
and this Court has accordingly recognized, in a wide variety
of contexts, that government may execute laws or
programs that adversely affect recognized economic values.
Exercises of the taxing power are one obvious example. A
second are the decisions in which this Court has dismissed
“taking” challenges on the ground that, while the
challenged government action caused economic harm, it
did not interfere with interests that were sufficiently bound
up with the reasonable expectations of the claimant to
constitute “property” for Fifth Amendment purposes. See,
e. g., United States v. Willow River Power Co., 324 U. S. 499
(1945) (interest in high-water level of river for runoff for
tailwaters to maintain power head is not property); United
Statesv. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913)
(no property interest can exist in navigable waters); see also
Demorest v. City Bank Co., 321 U. S. 36 (1944); Muhlker v.
Harlem R. Co., 197 U. S. 544 (1905); Sax, Takings and the
Police Power, 74 Yale L. J. 36, 61-62 (1964).
More importantly for the present case, in instances in
which a state tribunal reasonably concluded that “the
health, safety, morals, or general welfare” would be
promoted by prohibiting particular contemplated uses of
land, this Court has upheld land-use regulations that
destroyed or adversely affected recognized real property
interests. See Nectow v. Cambridge, 277 U. S. 183, 188 (1928).
Zoning laws are, of course, the classic example, see Euclid v.
Ambler Realty Co., 272 U. S. 365 (1926) (prohibition of
industrial use); Gorieb v. Fox, 274 U. S. 603, 608 (1927)
(requirement that portions of parcels be left unbuilt); Welch
v. Swasey, 214 U. S. 91 (1909) (height restriction), which

507

have been viewed as permissible governmental action even
when prohibiting the most beneficial use of the property.
See Goldblatt v. Hempstead, supra, at 592-593, and cases cited;
see also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668,
674 n. 8 (1976).
Zoning laws generally do not affect existing uses of real
property, but “taking” challenges have also been held to be
without merit in a wide variety of situations when the
challenged governmental actions prohibited a beneficial use
to which individual parcels had previously been devoted
and thus caused substantial individualized harm. Miller v.
Schoene, 276 U. S. 272 (1928), is illustrative. In that case, a
state entomologist, acting pursuant to a state statute,
ordered the claimants to cut down a large number of
ornamental red cedar trees because they produced cedar
rust fatal to apple trees cultivated nearby. Although the
statute provided for recovery of any expense incurred in
removing the cedars, and permitted claimants to use the
felled trees, it did not provide compensation for the value
of the standing trees or for the resulting decrease in market
value of the properties as a whole. A unanimous Court held
that this latter omission did not render the statute invalid.
The Court held that the State might properly make “a
choice between the preservation of one class of property
and that of the other” and since the apple industry was
important in the State involved, concluded that the State
had not exceeded “its constitutional powers by deciding
upon the destruction of one class of property [without
compensation] in order to save another which, in the
judgment of the legislature, is of greater value to the
public.” Id., at 279.
….
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is the
leading case for the proposition that a state statute that
substantially furthers important public policies may so
frustrate distinct investment-backed expectations as to

508

amount to a “taking.” There the claimant had sold the
surface rights to particular parcels of property, but
expressly reserved the right to remove the coal thereunder.
A Pennsylvania statute, enacted after the transactions,
forbade any mining of coal that caused the subsidence of
any house, unless the house was the property of the owner
of the underlying coal and was more than 150 feet from the
improved property of another. Because the statute made it
commercially impracticable to mine the coal, id., at 414, and
thus had nearly the same effect as the complete destruction
of rights claimant had reserved from the owners of the
surface land, see id., at 414-415, the Court held that the
statute was invalid as effecting a “taking” without just
compensation. See also Armstrong v. United States, 364 U. S.
40 (1960) (Government’s complete destruction of a
materialman’s lien in certain property held a “taking”);
Hudson Water Co. v. McCarter, 209 U. S. 349, 355 (1908) (if
height restriction makes property wholly useless “the rights
of property … prevail over the other public interest” and
compensation is required). See generally Michelman,
Property, Utility, and Fairness: Comments on the Ethical
Foundations of “Just Compensation” Law, 80 Harv. L.
Rev. 1165, 1229-1234 (1967).
Finally, government actions that may be characterized as
acquisitions of resources to permit or facilitate uniquely
public functions have often been held to constitute
“takings.” United States v. Causby, 328 U. S. 256 (1946), is
illustrative. In holding that direct overflights above the
claimant’s land, that destroyed the present use of the land
as a chicken farm, constituted a “taking” Causby
emphasized that Government had not “merely destroyed
property [but was] using a part of it for the flight of its
planes.” Id., at 262-263, n. 7. See also Griggs v. Allegheny
County, 369 U. S. 84 (1962) (overflights held a taking);
Portsmouth Co. v. United States, 260 U. S. 327 (1922) (United
States military installations’ repeated firing of guns over

509

claimant’s land is a taking); United States v. Cress, 243 U. S.
316 (1917) (repeated floodings of land caused by water
project is a taking); but see YMCA v. United States, 395 U. S.
85 (1969) (damage caused to building when federal officers
who were seeking to protect building were attacked by
rioters held not a taking). See generally Michelman, supra, at
1226-1229; Sax, Takings and the Police Power, 74 Yale L. J.
36 (1964).
B
In contending that the New York City law has “taken”
their property in violation of the Fifth and Fourteenth
Amendments, appellants make a series of arguments,
which, while tailored to the facts of this case, essentially
urge that any substantial restriction imposed pursuant to a
landmark law must be accompanied by just compensation if
it is to be constitutional. Before considering these, we
emphasize what is not in dispute. Because this Court has
recognized, in a number of settings, that States and cities
may enact land-use restrictions or controls to enhance the
quality of life by preserving the character and desirable
aesthetic features of a city, see New Orleans v. Dukes, 427 U.
S. 297 (1976); Young v. American Mini Theatres, Inc., 427 U. S.
50 (1976); Village of Belle Terre v. Boraas, 416 U. S. 1, 9-10
(1974); Berman v. Parker, 348 U. S. 26, 33 (1954); Welch v.
Swasey, 214 U. S., at 108, appellants do not contest that
New York City’s objective of preserving structures and
areas with special historic, architectural, or cultural
significance is an entirely permissible governmental goal.
They also do not dispute that the restrictions imposed on
its parcel are appropriate means of securing the purposes of
the New York City law. Finally, appellants do not challenge
any of the specific factual premises of the decision below.
They accept for present purposes both that the parcel of
land occupied by Grand Central Terminal must, in its
present state, be regarded as capable of earning a

510

reasonable return,14 and that the transferable development
rights afforded appellants by virtue of the Terminal’s
designation as a landmark are valuable, even if not as
valuable as the rights to construct above the Terminal. In
appellants’ view none of these factors derogate from their
claim that New York City’s law has effected a “taking.”
They first observe that the airspace above the Terminal is a
valuable property interest, citing United States v. Causby,
supra. They urge that the Landmarks Law has deprived
them of any gainful use of their “air rights” above the
Terminal and that, irrespective of the value of the
remainder of their parcel, the city has “taken” their right to
this superjacent airspace, thus entitling them to “just
compensation” measured by the fair market value of these
air rights.
Apart from our own disagreement with appellants’
characterization of the effect of the New York City law, see
infra, at 134-135, the submission that appellants may
establish a “taking” simply by showing that they have been
denied the ability to exploit a property interest that they
heretofore had believed was available for development is
quite simply untenable. Were this the rule, this Court would
have erred not only in upholding laws restricting the
development of air rights, see Welch v. Swasey, supra, but also
in approving those prohibiting both the subjacent, see
Goldblatt v. Hempstead, 369 U. S. 590 (1962), and the lateral,
see Gorieb v. Fox, 274 U. S. 603 (1927), development of

14 Both the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state

that appellants are not seeking review of the New York courts’ determination that
Penn Central could earn a “reasonable return” on its investment in the Terminal.
Although appellants suggest in their reply brief that the factual conclusions of the
New York courts cannot be sustained unless we accept the rationale of the New
York Court of Appeals, see Reply Brief for Appellants 12 n. 15, it is apparent that
the findings concerning Penn Central’s ability to profit from the Terminal depend
in no way on the Court of Appeals’ rationale.

511

particular parcels.15 “Taking” jurisprudence does not divide
a single parcel into discrete segments and attempt to
determine whether rights in a particular segment have been
entirely abrogated. In deciding whether a particular
governmental action has effected a taking, this Court
focuses rather both on the character of the action and on
the nature and extent of the interference with rights in the
parcel as a whole–here, the city tax block designated as the
“landmark site.”
Secondly, appellants, focusing on the character and impact
of the New York City law, argue that it effects a “taking”
because its operation has significantly diminished the value
of the Terminal site. Appellants concede that the decisions
sustaining other land-use regulations, which, like the New
York City law, are reasonably related to the promotion of
the general welfare, uniformly reject the proposition that
diminution in property value, standing alone, can establish
a “taking,” see Euclid v. Ambler Realty Co., 272 U. S. 365
(1926) (75% diminution in value caused by zoning law);
Hadacheck v. Sebastian, 239 U. S. 394 (1915) (87 1/2%
diminution in value); cf. Eastlake v. Forest City Enterprises,
Inc., 426 U. S., at 674 n. 8, and that the “taking” issue in
these contexts is resolved by focusing on the uses the
regulations permit. See also Goldblatt v. Hempstead, supra.
Appellants, moreover, also do not dispute that a showing
of diminution in property value would not establish a
“taking” if the restriction had been imposed as a result of
historic-district legislation, see generally Maher v. New
Orleans, 516 F. 2d 1051 (CA5 1975), but appellants argue
15 These cases dispose of any contention that might be based on Pennsylvania Coal

Co. v. Mahon, 260 U. S. 393 (1922), that full use of air rights is so bound up with the
investment-backed expectations of appellants that governmental deprivation of
these rights invariably–i. e., irrespective of the impact of the restriction on the value
of the parcel as a whole–constitutes a “taking.” Similarly, Welch, Goldblatt, and
Gorieb illustrate the fallacy of appellants’ related contention that a “taking” must be
found to have occurred whenever the land-use restriction may be characterized as
imposing a “servitude” on the claimant’s parcel.

512

that New York City’s regulation of individual landmarks is
fundamentally different from zoning or from historicdistrict legislation because the controls imposed by New
York City’s law apply only to individuals who own selected
properties.
Stated baldly, appellants’ position appears to be that the
only means of ensuring that selected owners are not singled
out to endure financial hardship for no reason is to hold
that any restriction imposed on individual landmarks
pursuant to the New York City scheme is a “taking”
requiring the payment of “just compensation.” Agreement
with this argument would, of course, invalidate not just
New York City’s law, but all comparable landmark
legislation in the Nation. We find no merit in it.
….
Next, appellants observe that New York City’s law differs
from zoning laws and historic-district ordinances in that the
Landmarks Law does not impose identical or similar
restrictions on all structures located in particular physical
communities. It follows, they argue, that New York City’s
law is inherently incapable of producing the fair and
equitable distribution of benefits and burdens of
governmental action which is characteristic of zoning laws
and historic-district legislation and which they maintain is a
constitutional requirement if “just compensation” is not to
be afforded. It is, of course, true that the Landmarks Law
has a more severe impact on some landowners than on
others, but that in itself does not mean that the law effects
a “taking.” Legislation designed to promote the general
welfare commonly burdens some more than others. The
owners of the brickyard in Hadacheck, of the cedar trees in
Miller v. Schoene, and of the gravel and sand mine in Goldblatt
v. Hempstead, were uniquely burdened by the legislation

513

sustained in those cases.16 Similarly, zoning laws often
affect some property owners more severely than others but
have not been held to be invalid on that account. For
example, the property owner in Euclid who wished to use
its property for industrial purposes was affected far more
severely by the ordinance than its neighbors who wished to
use their land for residences.
In any event, appellants’ repeated suggestions that they are
solely burdened and unbenefited is factually inaccurate.
This contention overlooks the fact that the New York City
law applies to vast numbers of structures in the city in
addition to the Terminal–all the structures contained in the
31 historic districts and over 400 individual landmarks,
many of which are close to the Terminal.17 Unless we are to
reject the judgment of the New York City Council that the
preservation of landmarks benefits all New York citizens
and all structures, both economically and by improving the
quality of life in the city as a whole–which we are unwilling
Appellants attempt to distinguish these cases on the ground that, in each,
government was prohibiting a “noxious” use of land and that in the present case, in
contrast, appellants’ proposed construction above the Terminal would be
beneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were
perfectly lawful in themselves. They involved no “blameworthiness, … moral
wrongdoing or conscious act of dangerous risk-taking which induce[d society] to
shift the cost to a pa[rt]icular individual.” Sax, Takings and the Police Power, 74
Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any
supposed “noxious” quality of the prohibited uses but rather on the ground that
the restrictions were reasonably related to the implementation of a policy–not
unlike historic preservation–expected to produce a widespread public benefit and
applicable to all similarly situated property.
16

Nor, correlatively, can it be asserted that the destruction or fundamental alteration
of a historic landmark is not harmful. The suggestion that the beneficial quality of
appellants’ proposed construction is established by the fact that the construction
would have been consistent with applicable zoning laws ignores the development in
sensibilities and ideals reflected in landmark legislation like New York City’s. Cf.
West Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S. E. 881, 885-886,
appeal dismissed for want of a substantial federal question, 302 U. S. 658 (1937).
There are some 53 designated landmarks and 5 historic districts or scenic
landmarks in Manhattan between 14th and 59th Streets. See Landmarks
Preservation Commission, Landmarks and Historic Districts (1977).
17

514

to do–we cannot conclude that the owners of the Terminal
have in no sense been benefited by the Landmarks Law.
Doubtless appellants believe they are more burdened than
benefited by the law, but that must have been true, too, of
the property owners in Miller, Hadacheck, Euclid, and
Goldblatt.18
Appellants’ final broad-based attack would have us treat the
law as an instance, like that in United States v. Causby, in
which government, acting in an enterprise capacity, has
appropriated part of their property for some strictly
governmental purpose. Apart from the fact that Causby was
a case of invasion of airspace that destroyed the use of the
farm beneath and this New York City law has in nowise
impaired the present use of the Terminal, the Landmarks
Law neither exploits appellants’ parcel for city purposes nor
facilitates nor arises from any entrepreneurial operations of
the city. The situation is not remotely like that in Causby
where the airspace above the property was in the flight
pattern for military aircraft. The Landmarks Law’s effect is
simply to prohibit appellants or anyone else from
occupying portions of the airspace above the Terminal,
while permitting appellants to use the remainder of the
parcel in a gainful fashion. This is no more an
appropriation of property by government for its own uses
than is a zoning law prohibiting, for “aesthetic” reasons,
two or more adult theaters within a specified area, see
Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), or a
safety regulation prohibiting excavations below a certain
level. See Goldblatt v. Hempstead.
C

18 It is, of course, true that the fact the duties imposed by zoning and historic-

district legislation apply throughout particular physical communities provides
assurances against arbitrariness, but the applicability of the Landmarks Law to a
large number of parcels in the city, in our view, provides comparable, if not
identical, assurances.

515

Rejection of appellants’ broad arguments is not, however,
the end of our inquiry, for all we thus far have established
is that the New York City law is not rendered invalid by its
failure to provide “just compensation” whenever a
landmark owner is restricted in the exploitation of property
interests, such as air rights, to a greater extent than
provided for under applicable zoning laws. We now must
consider whether the interference with appellants’ property
is of such a magnitude that “there must be an exercise of
eminent domain and compensation to sustain [it].”
Pennsylvania Coal Co. v. Mahon, 260 U. S., at 413. That
inquiry may be narrowed to the question of the severity of
the impact of the law on appellants’ parcel, and its
resolution in turn requires a careful assessment of the
impact of the regulation on the Terminal site.
Unlike the governmental acts in Goldblatt, Miller, Causby,
Griggs, and Hadacheck, the New York City law does not
interfere in any way with the present uses of the Terminal.
Its designation as a landmark not only permits but
contemplates that appellants may continue to use the
property precisely as it has been used for the past 65 years:
as a railroad terminal containing office space and
concessions. So the law does not interfere with what must
be regarded as Penn Central’s primary expectation
concerning the use of the parcel. More importantly, on this
record, we must regard the New York City law as
permitting Penn Central not only to profit from the
Terminal but also to obtain a “reasonable return” on its
investment.
Appellants, moreover, exaggerate the effect of the law on
their ability to make use of the air rights above the
Terminal in two respects.19 First, it simply cannot be
maintained, on this record, that appellants have been
19 Appellants, of course, argue at length that the transferable development rights,

while valuable, do not constitute “just compensation.” Brief for Appellants 36-43.

516

prohibited from occupying any portion of the airspace
above the Terminal. While the Commission’s actions in
denying applications to construct an office building in
excess of 50 stories above the Terminal may indicate that it
will refuse to issue a certificate of appropriateness for any
comparably sized structure, nothing the Commission has
said or done suggests an intention to prohibit any
construction above the Terminal. The Commission’s report
emphasized that whether any construction would be
allowed depended upon whether the proposed addition
“would harmonize in scale, material, and character with
[the Terminal].” Record 2251. Since appellants have not
sought approval for the construction of a smaller structure,
we do not know that appellants will be denied any use of
any portion of the airspace above the Terminal.20
Second, to the extent appellants have been denied the right
to build above the Terminal, it is not literally accurate to say
that they have been denied all use of even those preexisting air rights. Their ability to use these rights has not
been abrogated; they are made transferable to at least eight
parcels in the vicinity of the Terminal, one or two of which
have been found suitable for the construction of new office
buildings. Although appellants and others have argued that
New York City’s transferable development-rights program
is far from ideal,21 the New York courts here supportably
found that, at least in the case of the Terminal, the rights
afforded are valuable. While these rights may well not have
constituted “just compensation” if a “taking” had occurred,
the rights nevertheless undoubtedly mitigate whatever
financial burdens the law has imposed on appellants and,
for that reason, are to be taken into account in considering
20 Counsel for appellants admitted at oral argument that the Commission has not

suggested that it would not, for example, approve a 20-story office tower along the
lines of that which was part of the original plan for the Terminal. See Tr. of Oral
Arg. 19.
21 See Costonis, supra n. 2, at 585-589.

517

the impact of regulation. Cf. Goldblatt v. Hempstead, 369 U.
S., at 594 n. 3.
On this record, we conclude that the application of New
York City’s Landmarks Law has not effected a “taking” of
appellants’ property. The restrictions imposed are
substantially related to the promotion of the general
welfare and not only permit reasonable beneficial use of
the landmark site but also afford appellants opportunities
further to enhance not only the Terminal site proper but
also other properties.22
Affirmed.

22 We emphasize that our holding today is on the present record, which in turn is

based on Penn Central’s present ability to use the Terminal for its intended
purposes and in a gainful fashion. The city conceded at oral argument that if
appellants can demonstrate at some point in the future that circumstances have so
changed that the Terminal ceases to be “economically viable,” appellants may
obtain relief. See Tr. of Oral Arg. 42-43.

518

4.3.2. Per se Takings
Lucas v. South Carolina Coastal
505 U.S. 1003 (1992)
A. Camden Lewis argued the cause for petitioner. With him
on the briefs were Gerald M. Finkel and David J. Bederman.
C. C. Harness III argued the cause for respondent. With him
on the brief were T. Travis Medlock, Attorney General of
South Carolina, Kenneth P. Woodington, Senior Assistant
Attorney General, and Richard J. Lazarus.
JUSTICE SCALIA, delivered the opinion of the Court.
In 1986, petitioner David H. Lucas paid $975,000 for two
residential lots on the Isle of Palms in Charleston County,
South Carolina, on which he intended to build single-family
homes. In 1988, however, the South Carolina Legislature
enacted the Beachfront Management Act, S. C. Code Ann.
§ 48-39-250 et seq. (Supp. 1990), which had the direct effect
of barring petitioner from erecting any permanent habitable
structures on his two parcels. See § 48-39-290(A). A state
trial court found that this prohibition rendered Lucas’s
parcels “valueless.” App. to Pet. for Cert. 37. This case
requires us to decide whether the Act’s dramatic effect on
the economic value of Lucas’s lots accomplished a taking
of private property under the Fifth and Fourteenth
Amendments requiring the payment of “just
compensation.” U. S. Const., Amdt. 5.
I
A
South Carolina’s expressed interest in intensively managing
development activities in the so-called “coastal zone” dates
from 1977 when, in the aftermath of Congress’s passage of
the federal Coastal Zone Management Act of 1972, 86 Stat.
1280, as amended, 16 U. S. C. § 1451 et seq., the legislature
enacted a Coastal Zone Management Act of its own. See S.
C. Code Ann. § 48-39-10 et seq. (1987). In its original form,

519

the South Carolina Act required owners of coastal zone
land that qualified as a “critical area” (defined in the
legislation to include beaches and immediately adjacent
sand dunes, § 48-39-10(J)) to obtain a permit from the
newly created South Carolina Coastal Council (Council)
(respondent here) prior to committing the land to a “use
other than the use the critical area was devoted to on
[September 28, 1977].” § 48-39-130(A).
In the late 1970’s, Lucas and others began extensive
residential development of the Isle of Palms, a barrier
island situated eastward of the city of Charleston. Toward
the close of the development cycle for one residential
subdivision known as “Beachwood East,” Lucas in 1986
purchased the two lots at issue in this litigation for his own
account. No portion of the lots, which were located
approximately 300 feet from the beach, qualified as a
“critical area” under the 1977 Act; accordingly, at the time
Lucas acquired these parcels, he was not legally obliged to
obtain a permit from the Council in advance of any
development activity. His intention with respect to the lots
was to do what the owners of the immediately adjacent
parcels had already done: erect singlefamily residences. He
commissioned architectural drawings for this purpose.
The Beachfront Management Act brought Lucas’s plans to
an abrupt end. Under that 1988 legislation, the Council was
directed to establish a “baseline” connecting the
landwardmost “point[s] of erosion … during the past forty
years” in the region of the Isle of Palms that includes
Lucas’s lots. S. C. Code Ann. § 48-39-280(A)(2) (Supp.
1988).1 In action not challenged here, the Council fixed this
1 This specialized historical method of determining the baseline applied because the

Beachwood East subdivision is located adjacent to a so-called “inlet erosion zone”
(defined in the Act to mean “a segment of shoreline along or adjacent to tidal inlets
which are directly influenced by the inlet and its associated shoals,”S. C. Code Ann.
§ 48-39-270(7) (Supp.1988)) that is”not stabilized by jetties,terminal groins, or other
structures,” § 48-39-280(A)(2).For areas other than these unstabilized inlet erosion

520

baseline landward of Lucas’s parcels. That was significant,
for under the Act construction of occupable
improvements2 was flatly prohibited seaward of a line
drawn 20 feet landward of, and parallel to, the baseline. §
48-39-290(A). The Act provided no exceptions.
B
Lucas promptly filed suit in the South Carolina Court of
Common Pleas, contending that the Beachfront
Management Act’s construction bar effected a taking of his
property without just compensation. Lucas did not take
issue with the validity of the Act as a lawful exercise of
South Carolina’s police power, but contended that the Act’s
complete extinguishment of his property’s value entitled
him to compensation regardless of whether the legislature
had acted in furtherance of legitimate police power
objectives. Following a bench trial, the court agreed.
Among its factual determinations was the finding that “at
the time Lucas purchased the two lots, both were zoned for
single-family residential construction and … there were no
restrictions imposed upon such use of the property by
either the State of South Carolina, the County of
Charleston, or the Town of the Isle of Palms.” App. to Pet.
for Cert. 36. The trial court further found that the
Beachfront Management Act decreed a permanent ban on
construction insofar as Lucas’s lots were concerned, and
that this prohibition “deprive[d] Lucas of any reasonable
economic use of the lots, … eliminated the unrestricted
right of use, and render[ed] them valueless.” Id., at 37. The
court thus concluded that Lucas’s properties had been
“taken” by operation of the Act, and it ordered respondent
zones, the statute directs that the baseline be established along “the crest of an ideal
primary oceanfront sand dune.”§ 48-39-280(A)(1).
2 The Act did allow the construction of certain nonhabitable improvements, e. g.,

“wooden walkways no larger in width than six feet,” and “small wooden decks no
larger than one hundred forty-four square feet.” §§ 48-39-290(A)(1) and (2).

521

to pay “just compensation” in the amount of $1,232,387.50.
Id., at 40.
The Supreme Court of South Carolina reversed. It found
dispositive what it described as Lucas’s concession “that
the Beachfront Management Act [was] properly and validly
designed to preserve … South Carolina’s beaches.” 304 S.
C. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an attack
on the validity of the statute as such, the court believed
itself bound to accept the “uncontested … findings” of the
South Carolina Legislature that new construction in the
coastal zone–such as petitioner intended–threatened this
public resource. Id., at 383, 404 S. E. 2d, at 898. The court
ruled that when a regulation respecting the use of property
is designed “to prevent serious public harm,” id., at 383,
404 S. E. 2d, at 899 (citing, inter alia, Mugler v. Kansas, 123 U.
S. 623 (1887)), no compensation is owing under the
Takings Clause regardless of the regulation’s effect on the
property’s value.
Two justices dissented. They acknowledged that our Mugler
line of cases recognizes governmental power to prohibit
“noxious” uses of property–i. e., uses of property akin to
“public nuisances”–without having to pay compensation.
But they would not have characterized the Beachfront
Management Act’s ”primary purpose [as] the prevention of a
nuisance.” 304 S. C., at 395, 404 S. E. 2d, at 906 (Harwell,
J., dissenting). To the dissenters, the chief purposes of the
legislation, among them the promotion of tourism and the
creation of a “habitat for indigenous flora and fauna,”
could not fairly be compared to nuisance abatement. Id., at
396, 404 S. E. 2d, at 906. As a consequence, they would
have affirmed the trial court’s conclusion that the Act’s
obliteration of the value of petitioner’s lots accomplished a
taking.
We granted certiorari. 502 U. S. 966 (1991).
….

522

III
A
Prior to Justice Holmes’s exposition in Pennsylvania Coal Co.
v. Mahon, 260 U. S. 393 (1922), it was generally thought that
the Takings Clause reached only a “direct appropriation” of
property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the
functional equivalent of a “practical ouster of [the owner’s]
possession,” Transportation Co. v. Chicago, 99 U. S. 635, 642
(1879). See also Gibson v. United States, 166 U. S. 269, 275276 (1897). Justice Holmes recognized in Mahon, however,
that if the protection against physical appropriations of
private property was to be meaningfully enforced, the
government’s power to redefine the range of interests
included in the ownership of property was necessarily
constrained by constitutional limits. 260 U. S., at 414-415.
If, instead, the uses of private property were subject to
unbridled, uncompensated qualification under the police
power, “the natural tendency of human nature [would be]
to extend the qualification more and more until at last
private property disappear[ed].” Id., at 415. These
considerations gave birth in that case to the oft-cited
maxim that, “while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a
taking.” Ibid.
Nevertheless, our decision in Mahon offered little insight
into when, and under what circumstances, a given
regulation would be seen as going “too far” for purposes of
the Fifth Amendment. In 70-odd years of succeeding
“regulatory takings” jurisprudence, we have generally
eschewed any “‘set formula’ ” for determining how far is
too far, preferring to “engag[e] in … essentially ad hoc,
factual inquiries.” Penn Central Transportation Co. v. New York
City, 438 U. S. 104, 124 (1978) (quoting Goldblatt v.
Hempstead, 369 U. S. 590, 594 (1962)). See Epstein, Takings:
Descent and Resurrection, 1987 S. Ct. Rev. 1, 4. We have,
however, described at least two discrete categories of

523

regulatory action as compensable without case-specific
inquiry into the public interest advanced in support of the
restraint. The first encompasses regulations that compel the
property owner to suffer a physical “invasion” of his
property. In general (at least with regard to permanent
invasions), no matter how minute the intrusion, and no
matter how weighty the public purpose behind it, we have
required compensation. For example, in Loretto v.
Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982),
we determined that New York’s law requiring landlords to
allow television cable companies to emplace cable facilities
in their apartment buildings constituted a taking, id., at 435440, even though the facilities occupied at most only 1 12
cubic feet of the landlords’ property, see id., at 438, n. 16.
See also United States v. Causby, 328 U. S. 256, 265, and n. 10
(1946) (physical invasions of airspace); cf. Kaiser Aetna v.
United States, 444 U. S. 164 (1979) (imposition of
navigational servitude upon private marina).
The second situation in which we have found categorical
treatment appropriate is where regulation denies all
economically beneficial or productive use of land. See
Agins, 447 U. S., at 260; see also Nollan v. California Coastal
Comm’n, 483 U. S. 825, 834 (1987); Keystone Bituminous Coal
Assn. v. DeBenedictis, 480 U. S. 470, 495 (1987); Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S.
264, 295-296 (1981).3 As we have said on numerous

3 We will not attempt to respond to all of Justice Blackmun’s mistaken citation of

case precedent. Characteristic of its nature is his assertion that the cases we discuss
here stand merely for the proposition “that proof that a regulation does not deny an
owner economic use of his property is sufficient to defeat a facial takings
challenge” and not for the point that ”denial of such use is sufficient to establish a
takings claim regardless of any other consideration.” Post, at 1050, n. 11. The cases
say, repeatedly and unmistakably, that ”’[t]he test to be applied in considering [a]
facial [takings] challenge is fairly straightforward. A statute regulating the uses that
can be made of property effects a taking if it “denies an owner economically viable use of his
land. ”’ ” Keystone, 480 U. S., at 495 (quoting Hodel, 452 U. S., at 295-296(quoting
Agins, 447 U. S., at 260)) (emphasis added).

524

occasions, the Fifth Amendment is violated when land-use
regulation “does not substantially advance legitimate state
interests or denies an owner economically viable use of his land. ”
Agins, supra, at 260 (citations omitted) (emphasis added).4
Justice Blackmun describes that rule (which we do not invent but merely apply
today) as “alter[ing] the long-settled rules of review” by foisting on the State “the
burden of showing [its]regulation is not a taking.” Post, at 1045, 1046. This is of
course wrong. Lucas had to do more than simply file a lawsuit to establish his
constitutional entitlement; he had to show that the Beachfront Management Act
denied him economically beneficial use of his land. Our analysis presumes the
unconstitutionality of state land-use regulation only in the sense that any rule with
exceptions presumes the invalidity of a law that violates it–for example, the rule
generally prohibiting content-based restrictions on speech. See, e. g., Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991) (“A
statute is presumptively inconsistent with the First Amendment if it imposes a
financial burden on speakers because of the content of their speech”). Justice
Blackmun’s real quarrel is with the substantive standard of liability we apply in this
case, a longestablished standard we see no need to repudiate.
4 Regrettably, the rhetorical force of our “deprivation of all economically feasible

use” rule is greater than its precision, since the rule does not make clear the
“property interest” against which the loss of value is to be measured. When, for
example, a regulation requires a developer to leave 90% of a rural tract in its natural
state, it is unclear whether we would analyze the situation as one in which the
owner has been deprived of all economically beneficial use of the burdened portion
of the tract, or as one in which the owner has suffered a mere diminution in value
of the tract as a whole. (For an extreme–and, we think, unsupportable–view of the
relevant calculus, see Penn Central Transportation Co. v. New York City, 42 N. Y. 2d
324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977), aff’d, 438 U. S. 104 (1978),
where the state court examined the diminution in a particular parcel’s value
produced by a municipal ordinance in light of total value of the takings claimant’s
other holdings in the vicinity.) Unsurprisingly, this uncertainty regarding the
composition of the denominator in our “deprivation” fraction has produced
inconsistent pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon,
260 U. S. 393, 414 (1922) (law restricting subsurface extraction of coal held to
effect 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
(Rehnquist, C. J., dissenting); Rose, Mahon Reconstructed: Why the Takings Issue is
Still a Muddle, 57 S. Cal. L. Rev. 561, 566-569 (1984). The answer to this difficult
question may lie in how the owner’s reasonable expectations have been shaped by
the State’s law of property–i. e., whether and to what degree the State’s law has
accorded legal recognition and protection to the particular interest in land with
respect to which the takings claimant alleges a diminution in (or elimination of)
value. In any event, we avoid this difficulty in the present case, since the “interest in
land” that Lucas has pleaded (a fee simple interest) is an estate with a rich tradition
of protection at common law, and since the South Carolina Court of Common

525

We have never set forth the justification for this rule.
Perhaps it is simply, as Justice Brennan suggested, that total
deprivation of beneficial use is, from the landowner’s point
of view, the equivalent of a physical appropriation. See San
Diego Gas & Electric Co. v. San Diego, 450 U. S., at 652
(dissenting opinion). “[F]or what is the land but the profits
thereof[?]” 1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed.
1812). Surely, at least, in the extraordinary circumstance
when no productive or economically beneficial use of land
is permitted, it is less realistic to indulge our usual
assumption that the legislature is simply “adjusting the
benefits and burdens of economic life,” Penn Central
Transportation Co., 438 U. S., at 124, in a manner that secures
an “average reciprocity of advantage” to everyone
concerned, Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415.
And the functional basis for permitting the government, by
regulation, to affect property values without
compensation–that “Government hardly could go on if to
some extent values incident to property could not be
diminished without paying for every such change in the
general law,” id., at 413–does not apply to the relatively rare
situations where the government has deprived a landowner
of all economically beneficial uses.
On the other side of the balance, affirmatively supporting a
compensation requirement, is the fact that regulations that
leave the owner of land without economically beneficial or
productive options for its use–typically, as here, by
requiring land to be left substantially in its natural state–
carry with them a heightened risk that private property is
being pressed into some form of public service under the
guise of mitigating serious public harm. See, e. g., Annicelli v.
South Kingstown, 463 A. 2d 133, 140-141 (R. I. 1983)
(prohibition on construction adjacent to beach justified on
twin grounds of safety and “conservation of open space”);
Pleas found that the Beachfront Management Act left each of Lucas’s beachfront
lots without economic value.

526

Morris County Land Improvement Co. v. Parsippany-Troy Hills
Township, 40 N. J.539, 552-553, 193 A. 2d 232, 240 (1963)
(prohibition on filling marshlands imposed in order to
preserve region as water detention basin and create wildlife
refuge). As Justice Brennan explained: “From the
government’s point of view, the benefits flowing to the
public from preservation of open space through regulation
may be equally great as from creating a wildlife refuge
through formal condemnation or increasing electricity
production through a dam project that floods private
property.” San Diego Gas & Elec. Co., supra, at 652
(dissenting opinion). The many statutes on the books, both
state and federal, that provide for the use of eminent
domain to impose servitudes on private scenic lands
preventing developmental uses, or to acquire such lands
altogether, suggest the practical equivalence in this setting
of negative regulation and appropriation. See, e. g., 16 U. S.
C. § 410ff-1(a) (authorizing acquisition of “lands, waters, or
interests [within Channel Islands National Park] (including
but not limited to scenic easements)”); § 460aa-2(a)
(authorizing acquisition of “any lands, or lesser interests
therein, including mineral interests and scenic easements”
within Sawtooth National Recreation Area); §§ 3921-3923
(authorizing acquisition of wetlands); N. C. Gen. Stat. §
113A-38 (1990) (authorizing acquisition of, inter alia,
“‘scenic easements’ ” within the North Carolina natural and
scenic rivers system); Tenn. Code Ann. §§ 11-15-101 to
XX-XX-XXX (1987) (authorizing acquisition of
“protective easements” and other rights in real property
adjacent to State’s historic, architectural, archaeological, or
cultural resources).
We think, in short, that there are good reasons for our
frequently expressed belief that when the owner of real
property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to

527

leave his property economically idle, he has suffered a
taking.5
B
The trial court found Lucas’s two beachfront lots to have
been rendered valueless by respondent’s enforcement of
the coastal-zone construction ban.6 Under Lucas’s theory
of the case, which rested upon our “no economically viable
use” statements, that finding entitled him to compensation.
Lucas believed it unnecessary to take issue with either the
purposes behind the Beachfront Management Act, or the
5 Justice Stevens criticizes the “deprivation of all economically beneficial use” rule

as “wholly arbitrary,” in that “[the] landowner whose property is diminished in
value 95% recovers nothing,” while the landowner who suffers a complete
elimination of value “recovers the land’s full value.” Post, at 1064. This analysis errs
in its assumption that the landowner whose deprivation is one step short of
complete is not entitled to compensation. Such an owner might not be able to
claim the benefit of our categorical formulation, but, as we have acknowledged
time and again, “[t]he economic impact of the regulation on the claimant and …the
extent to which the regulation has interfered with distinct investment-backed
expectations” are keenly relevant to takings analysis generally. Penn Central
Transportation Co. v. New York City, 438 U. S. 104, 124 (1978). It is true that in at
least some cases the landowner with 95% loss will get nothing, while the landowner
with total loss will recover in full. But that occasional result is no more strange than
the gross disparity between the landowner whose premises are taken for a highway
(who recovers in full) and the landowner whose property is reduced to 5% of its
former value by the highway (who recovers nothing). Takings law is full of these
“allor-nothing” situations.
Justice Stevens similarly misinterprets our focus on “developmental” uses of
property (the uses proscribed by the Beachfront Management Act) as betraying an
“assumption that the only uses of property cognizable under the Constitution are
developmental uses.” Post, at 1065, n. 3. We make no such assumption. Though our
prior takings cases evince an abiding concern for the productive use of, and
economic investment in, land, there are plainly a number of noneconomic interests
in land whose impairment will invite exceedingly close scrutiny under the Takings
Clause. See, e. g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 436
(1982) (interest in excluding strangers from one’s land).
6 This finding was the premise of the petition for certiorari, and since it was not

challenged in the brief in opposition we decline to entertain the argument in
respondent’s brief on the merits, see Brief for Respondent 45-50, that the finding
was erroneous. Instead, we decide the question presented under the same factual
assumptions as did the Supreme Court of South Carolina. See Oklahoma City v.
Tuttle, 471 U. S. 808, 816 (1985).

528

means chosen by the South Carolina Legislature to
effectuate those purposes. The South Carolina Supreme
Court, however, thought otherwise. In its view, the
Beachfront Management Act was no ordinary enactment,
but involved an exercise of South Carolina’s “police
powers” to mitigate the harm to the public interest that
petitioner’s use of his land might occasion. 304 S. C., at
384, 404 S. E. 2d, at 899. By neglecting to dispute the
findings enumerated in the Act7 or otherwise to challenge
7 The legislature’s express findings include the following:

“The General Assembly finds that:
“(1) The beach/dune system along the coast of South
Carolina is extremely important to the people of this State
and serves the following functions:
“(a) protects life and property by serving as a storm
barrier which dissipates wave energy and contributes to
shoreline stability in an economical and effective
manner;
“(b) provides the basis for a tourism industry that
generates approximately two-thirds of South Carolina’s
annual tourism industry revenue which constitutes a
significant portion of the state’s economy. The tourists
who come to the South Carolina coast to enjoy the
ocean and dry sand beach contribute significantly to
state and local tax revenues;
“(c) provides habitat for numerous species of plants and
animals, several of which are threatened or endangered.
Waters adjacent to the beach/ dune system also provide
habitat for many other marine species;
“(d) provides a natural health environment for the
citizens of South Carolina to spend leisure time which
serves their physical and mental wellbeing.
“(2) Beach/dune system vegetation is unique and
extremely important to the vitality and preservation of the
system.
“(3) Many miles of South Carolina’s beaches have been
identified as critically eroding.
“(4) … [D]evelopment unwisely has been sited too close
to the [beach/ dune] system. This type of development
has jeopardized the stability of the beach/dune system,
accelerated erosion, and endangered adjacent property. It

529

the legislature’s purposes, petitioner “concede[d] that the
beach/dune area of South Carolina’s shores is an extremely
valuable public resource; that the erection of new
construction, inter alia, contributes to the erosion and
destruction of this public resource; and that discouraging
new construction in close proximity to the beach/dune area
is necessary to prevent a great public harm.” Id., at 382-383,
404 S. E. 2d, at 898. In the court’s view, these concessions
brought petitioner’s challenge within a long line of this
Court’s cases sustaining against Due Process and Takings
Clause challenges the State’s use of its “police powers” to
enjoin a property owner from activities akin to public
nuisances. See Mugler v. Kansas, 123 U. S. 623 (1887) (law
prohibiting manufacture of alcoholic beverages); Hadacheck
is in both the public and private interests to protect the
system from this unwise development.
“(5) The use of armoring in the form of hard erosion
control devices such as seawalls, bulkheads, and rip-rap to
protect erosion-threatened structures adjacent to the
beach has not proven effective. These armoring devices
have given a falsesense of security to beachfront property
owners. In reality, these hard structures, in many
instances, have increased the vulnerability of beachfront
property to damage from wind and waves while
contributing to the deterioration and loss of the dry sand
beach which is so important to the tourism industry.
“(6) Erosion is a natural process which becomes a
significant problem for man only when structures are
erected in close proximity to the beach/ dune system. It is
in both the public and private interests to afford the
beach/dune system space to accrete and erode in its
natural cycle. This space can be provided only by
discouraging new construction in close proximity to the
beach/dune system and encouraging those who have
erected structures too close to the system to retreat from
it.
…..
“(8) It is in the state’s best interest to protect and to
promote increased public access to South Carolina’s
beaches for out-of-state tourists and South Carolina
residents alike.” S. C. Code Ann. § 48-39-250 (Supp.
1991).

530

v. Sebastian, 239 U. S. 394 (1915) (law barring operation of
brick mill in residential area); Miller v. Schoene, 276 U. S. 272
(1928) (order to destroy diseased cedar trees to prevent
infection of nearby orchards); Goldblatt v. Hempstead, 369 U.
S. 590 (1962) (law effectively preventing continued
operation of quarry in residential area).
It is correct that many of our prior opinions have suggested
that “harmful or noxious uses” of property may be
proscribed by government regulation without the
requirement of compensation. For a number of reasons,
however, we think the South Carolina Supreme Court was
too quick to conclude that that principle decides the
present case. The “harmful or noxious uses” principle was
the Court’s early attempt to describe in theoretical terms
why government may, consistent with the Takings Clause,
affect property values by regulation without incurring an
obligation to compensate–a reality we nowadays
acknowledge explicitly with respect to the full scope of the
State’s police power. See, e. g., Penn Central Transportation Co.,
438 U. S., at 125 (where State “reasonably conclude[s] that
‘the health, safety, morals, or general welfare’ would be
promoted by prohibiting particular contemplated uses of
land,” compensation need not accompany prohibition); see
also Nollan v. California Coastal Comm’n, 483 U. S., at 834-835
(“Our cases have not elaborated on the standards for
determining what constitutes a ‘legitimate state interest[,]’
[but] [t]hey have made clear … that a broad range of
governmental purposes and regulations satisfy these
requirements”). We made this very point in Penn Central
Transportation Co., where, in the course of sustaining New
York City’s landmarks preservation program against a
takings challenge, we rejected the petitioner’s suggestion
that Mugler and the cases following it were premised on,
and thus limited by, some objective conception of
“noxiousness”:

531

“[T]he uses in issue in Hadacheck,
Miller, and Goldblatt were perfectly
lawful in themselves. They involved no
‘blameworthiness,
…
moral
wrongdoing or conscious act of
dangerous risk-taking which induce[d
society] to shift the cost to a
pa[rt]icular individual.’ Sax, Takings
and the Police Power, 74 Yale L. J. 36,
50 (1964). These cases are better
understood as resting not on any
supposed ‘noxious’ quality of the
prohibited uses but rather on the
ground that the restrictions were
reasonably
related
to
the
implementation of a policy–not unlike
historic preservation–expected to
produce a widespread public benefit
and applicable to all similarly situated
property.” 438 U. S., at 133-134, n. 30.
“Harmful or noxious use” analysis was, in other words,
simply the progenitor of our more contemporary
statements that “land-use regulation does not effect a
taking if it ‘substantially advance[s] legitimate state interests’
. .. .” Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U.
S., at 260); see also Penn Central Transportation Co., supra, at
127; Euclid v. Ambler Realty Co., 272 U. S. 365, 387-388
(1926).
The transition from our early focus on control of
“noxious” uses to our contemporary understanding of the
broad realm within which government may regulate
without compensation was an easy one, since the
distinction between “harmpreventing” and “benefitconferring” regulation is often in the eye of the beholder. It
is quite possible, for example, to describe in either fashion
the ecological, economic, and esthetic concerns that
inspired the South Carolina Legislature in the present case.

532

One could say that imposing a servitude on Lucas’s land is
necessary in order to prevent his use of it from “harming”
South Carolina’s ecological resources; or, instead, in order
to achieve the “benefits” of an ecological preserve.8
Compare, e. g., Claridge v. New Hampshire Wetlands Board, 125
N. H. 745, 752, 485 A. 2d 287, 292 (1984) (owner may,
without compensation, be barred from filling wetlands
because landfilling would deprive adjacent coastal habitats
and marine fisheries of ecological support), with, e. g.,
Bartlett v. Zoning Comm’n of Old Lyme, 161 Conn. 24, 30, 282
A. 2d 907, 910 (1971) (owner barred from filling tidal
marshland must be compensated, despite municipality’s
“laudable” goal of “preserv[ing] marshlands from
encroachment or destruction”). Whether one or the other
of the competing characterizations will come to one’s lips
in a particular case depends primarily upon one’s evaluation
of the worth of competing uses of real estate. See
8 In the present case, in fact, some of the “[South Carolina] legislature’s ‘findings’ ”

to which the South Carolina Supreme Court purported to defer in characterizing
the purpose of the Act as “harm-preventing,” 304 S. C. 376, 385, 404 S. E. 2d 895,
900 (1991), seem to us phrased in “benefitconferring” language instead. For
example, they describe the importance of a construction ban in enhancing “South
Carolina’s annual tourism industry revenue,” S. C. Code Ann. § 48-39-250(1)(b)
(Supp. 1991), in “provid[ing] habitat for numerous species of plants and animals,
several of which are threatened or endangered,” § 48-39-250(1)(c), and in
“provid[ing] a natural healthy environment for the citizens of South Carolina to
spend leisure time which serves their physical and mental well-being,” § 48-39250(1)(d). It would be pointless to make the outcome of this case hang upon this
terminology, since the same interests could readily be described in “harmpreventing” fashion.
Justice Blackmun, however, apparently insists that we must make the outcome hinge
(exclusively) upon the South Carolina Legislature’s other, “harm-preventing”
characterizations, focusing on the declaration that “prohibitions on building in
front of the setback line are necessary to protect people and property from storms,
high tides, and beach erosion.” Post, at 1040. He says “[n]othing in the record
undermines [this] assessment,” ibid., apparently seeing no significance in the fact
that the statute permits owners of existing structures to remain (and even to rebuild
if their structures are not “destroyed beyond repair,” S. C. Code Ann. § 48-39290(B) (Supp. 1988)), and in the fact that the 1990 amendment authorizes the
Council to issue permits for new construction in violation of the uniform
prohibition, see S. C. Code Ann. § 48-39-290(D)(1) (Supp. 1991).

533

Restatement (Second) of Torts § 822, Comment g, p. 112
(1979) (“Practically all human activities unless carried on in
a wilderness interfere to some extent with others or involve
some risk of interference”). A given restraint will be seen as
mitigating “harm” to the adjacent parcels or securing a
“benefit” for them, depending upon the observer’s
evaluation of the relative importance of the use that the
restraint favors. See Sax, Takings and the Police Power, 74
Yale L. J. 36, 49 (1964) (“[T]he problem [in this area] is not
one of noxiousness or harm-creating activity at all; rather it
is a problem of inconsistency between perfectly innocent
and independently desirable uses”). Whether Lucas’s
construction of singlefamily residences on his parcels
should be described as bringing “harm” to South Carolina’s
adjacent ecological resources thus depends principally upon
whether the describer believes that the State’s use interest
in nurturing those resources is so important that any
competing adjacent use must yield.9
When it is understood that “prevention of harmful use”
was merely our early formulation of the police power
justification necessary to sustain (without compensation)
any regulatory diminution in value; and that the distinction
between regulation that “prevents harmful use” and that
which “confers benefits” is difficult, if not impossible, to
discern on an objective, value-free basis; it becomes selfevident that noxious-use logic cannot serve as a touchstone
to distinguish regulatory “takings” – which require
compensation – from regulatory deprivations that do not
require compensation. A fortiori the legislature’s recitation
of a noxious-use justification cannot be the basis for
In Justice Blackmun’s view, even with respect to regulations that deprive an
owner of all developmental or economically beneficial land uses, the test for
required compensation is whether the legislature has recited a harm-preventing
justification for its action. See post, at 1039, 1040-1041, 1047-1051. Since such a
justification can be formulated in practically every case, this amounts to a test of
whether the legislature has a stupid staff. We think the Takings Clause requires
courts to do more than insist upon artful harm-preventing characterizations.
9

534

departing from our categorical rule that total regulatory
takings must be compensated. If it were, departure would
virtually always be allowed. The South Carolina Supreme
Court’s approach would essentially nullify Mahon ‘s
affirmation of limits to the noncompensable exercise of the
police power. Our cases provide no support for this: None
of them that employed the logic of “harmful use”
prevention to sustain a regulation involved an allegation
that the regulation wholly eliminated the value of the
claimant’s land. See Keystone Bituminous Coal Assn., 480 U. S.,
at 513-514 (Rehnquist, C. J., dissenting).10
Where the State seeks to sustain regulation that deprives
land of all economically beneficial use, we think it may
resist compensation only if the logically antecedent inquiry
into the nature of the owner’s estate shows that the
proscribed use interests were not part of his title to begin
with.11 This accords, we think, with our “takings”
10 E. g., Mugler v. Kansas, 123 U. S. 623 (1887) (prohibition upon use of a building as

a brewery; other uses permitted); Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531
(1914) (requirement that “pillar” of coal be left in ground to safeguard mine
workers; mineral rights could otherwise be exploited); Reinman v. Little Rock, 237 U.
S. 171 (1915)(declaration that livery stable constituted a public nuisance; other uses
of the property permitted); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (prohibition
of brick manufacturing in residential area; other uses permitted); Goldblatt v.
Hempstead, 369 U. S. 590 (1962) (prohibition on excavation; other uses permitted).
11 Drawing on our First Amendment jurisprudence, see, e. g., Employment Div., Dept.

of Human Resources of Ore. v. Smith, 494 U. S. 872, 878-879 (1990), Justice Stevens
would “loo[k] to the generality of a regulation of property” to determine whether
compensation is owing. Post, at 1072. The Beach front Management Act is general,
in his view, because it “regulates the use of the coastline of the entire State.” Post, at
1074. There may be some validity to the principle Justice Stevens proposes, but it
does not properly apply to the present case. The equivalent of a law of general
application that inhibits the practice of religion without being aimed at religion, see
Oregon v. Smith, supra, is a law that destroys the value of land without being aimed at
land. Perhaps such a law – the generally applicable criminal prohibition on the
manufacturing of alcoholic beverages challenged in Mugler comes to mind – cannot
constitute a compensable taking. See 123 U. S., at 655-656. But a regulation
specifically directed to land use no more acquires immunity by plundering landowners
generally than does a law specifically directed at religious practice acquire immunity
by prohibiting all religions. Justice Stevens’s approach renders the Takings Clause
little more than a particularized restatement of the Equal Protection Clause.

535

jurisprudence, which has traditionally been guided by the
understandings of our citizens regarding the content of,
and the State’s power over, the “bundle of rights” that they
acquire when they obtain title to property. It seems to us
that the property owner necessarily expects the uses of his
property to be restricted, from time to time, by various
measures newly enacted by the State in legitimate exercise
of its police powers; “[a]s long recognized, some values are
enjoyed under an implied limitation and must yield to the
police power.” Pennsylvania Coal Co. v. Mahon, 260 U. S., at
413. And in the case of personal property, by reason of the
State’s traditionally high degree of control over commercial
dealings, he ought to be aware of the possibility that new
regulation might even render his property economically
worthless (at least if the property’s only economically
productive use is sale or manufacture for sale). See Andrus
v. Allard, 444 U. S. 51, 66-67 (1979) (prohibition on sale of
eagle feathers). In the case of land, however, we think the
notion pressed by the Council that title is somehow held
subject to the “implied limitation” that the State may
subsequently eliminate all economically valuable use is
inconsistent with the historical compact recorded in the
Takings Clause that has become part of our constitutional
culture.12
12 After accusing us of “launch[ing] a missile to kill a mouse,” post, at 1036, Justice

Blackmun expends a good deal of throw-weight of his own upon a noncombatant,
arguing that our description of the “understanding” of land ownership that informs
the Takings Clause is not supported by early American experience. That is largely
true, but entirely irrelevant. The practices of the States prior to incorporation of the
Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166
U. S. 226 (1897) – which, as Justice Blackmun acknowledges, occasionally included
outright physical appropriation of land without compensation, see post, at 1056 – were
out of accord with any plausible interpretation of those provisions. Justice
Blackmun is correct that early constitutional theorists did not believe the Takings
Clause embraced regulations of property at all, see post, at 1057-1058, and n. 23, but
even he does not suggest (explicitly, at least) that we renounce the Court’s contrary
conclusion in Mahon. Since the text of the Clause can be read to encompass
regulatory as well as physical deprivations (in contrast to the text originally
proposed by Madison, see Speech Proposing Bill of Rights (June 8, 1789), in 12 J.

536

Where “permanent physical occupation” of land is
concerned, we have refused to allow the government to
decree it anew (without compensation), no matter how
weighty the asserted “public interests” involved, Loretto v.
Teleprompter Manhattan CATV Corp., 458 U. S., at 426 –
though we assuredly would permit the government to assert
a permanent easement that was a pre-existing limitation
upon the landowner’s title. Compare Scranton v. Wheeler, 179
U. S. 141, 163 (1900) (interests of “riparian owner in the
submerged lands … bordering on a public navigable water”
held subject to Government’s navigational servitude), with
Kaiser Aetna v. United States, 444 U. S., at 178-180
(imposition of navigational servitude on marina created and
rendered navigable at private expense held to constitute a
taking). We believe similar treatment must be accorded
confiscatory regulations, i. e., regulations that prohibit all
economically beneficial use of land: Any limitation so
severe cannot be newly legislated or decreed (without
compensation), but must inhere in the title itself, in the
restrictions that background principles of the State’s law of
property and nuisance already place upon land ownership.
A law or decree with such an effect must, in other words,
do no more than duplicate the result that could have been
achieved in the courts – by adjacent landowners (or other
uniquely affected persons) under the State’s law of private
nuisance, or by the State under its complementary power to
abate nuisances that affect the public generally, or
otherwise.13
Madison, The Papers of James Madison 201 (C. Hobson, R. Rutland, W. Rachal, &
J. Sisson ed. 1979) (“No person shall be … obliged to relinquish his property,
where it may be necessary for public use, without a just compensation”), we decline
to do so as well.
13 The principal “otherwise” that we have in mind is litigation absolving the State

(or private parties) of liability for the destruction of “real and personal property, in
cases of actual necessity, to prevent the spreading of a fire” or to forestall other
grave 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).

537

On this analysis, the owner of a lake bed, for example,
would not be entitled to compensation when he is denied
the requisite permit to engage in a land filling operation
that would have the effect of flooding others’ land. Nor the
corporate owner of a nuclear generating plant, when it is
directed to remove all improvements from its land upon
discovery that the plant sits astride an earthquake fault.
Such regulatory action may well have the effect of
eliminating the land’s only economically productive use, but
it does not proscribe a productive use that was previously
permissible under relevant property and nuisance
principles. The use of these properties for what are now
expressly prohibited purposes was always unlawful, and
(subject to other constitutional limitations) it was open to
the State at any point to make the implication of those
background principles of nuisance and property law
explicit. See Michelman, Property, Utility, and Fairness,
Comments on the Ethical Foundations of “Just
Compensation” Law, 80 Harv. L. Rev. 1165, 1239 – 1241
(1967). In light of our traditional resort to “existing rules or
understandings that stem from an independent source such
as state law” to define the range of interests that qualify for
protection as “property” under the Fifth and Fourteenth
Amendments, Board of Regents of State Colleges v. Roth, 408 U.
S. 564, 577 (1972); see, e. g., Ruckelshaus v. Monsanto Co., 467
U. S. 986, 1011-1012 (1984); Hughes v. Washington, 389 U. S.
290, 295 (1967) (Stewart, J., concurring), this recognition
that the Takings Clause does not require compensation
when an owner is barred from putting land to a use that is
proscribed by those “existing rules or understandings” is
surely unexceptional. When, however, a regulation that
declares “off-limits” all economically productive or
beneficial uses of land goes beyond what the relevant
background principles would dictate, compensation must
be paid to sustain it.14
14 Of course, the State may elect to rescind its regulation and thereby avoid having

538

The “total taking” inquiry we require today will ordinarily
entail (as the application of state nuisance law ordinarily
entails) analysis of, among other things, the degree of harm
to public lands and resources, or adjacent private property,
posed by the claimant’s proposed activities, see, e. g.,
Restatement (Second) of Torts §§ 826, 827, the social value
of the claimant’s activities and their suitability to the locality
in question, see, e. g., id., §§ 828(a) and (b), 831, and the
relative ease with which the alleged harm can be avoided
through measures taken by the claimant and the
government (or adjacent private landowners) alike, see, e. g.,
id., §§ 827(e), 828(c), 830. The fact that a particular use has
long been engaged in by similarly situated owners ordinarily
imports a lack of any common-law prohibition (though
changed circumstances or new knowledge may make what
was previously permissible no longer so, see id., § 827,
Comment g. So also does the fact that other landowners,
similarly situated, are permitted to continue the use denied
to the claimant.
It seems unlikely that common-law principles would have
prevented the erection of any habitable or productive
improvements on petitioner’s land; they rarely support
prohibition of the “essential use” of land, Curtin v. Benson,
222 U. S. 78, 86 (1911). The question, however, is one of
state law to be dealt with on remand. We emphasize that to
win its case South Carolina must do more than proffer the
legislature’s declaration that the uses Lucas desires are
inconsistent with the public interest, or the conclusory
assertion that they violate a common-law maxim such as sic
utere tuo ut alienum non laedas. As we have said, a “State, by
ipse dixit, may not transform private property into public
to pay compensation for a permanent deprivation. See First English Evangelical
Lutheran Church, 482 U. S., at 321. But “where the [regulation has] already worked a
taking of all use of property, no subsequent action by the government can relieve it
of the duty to provide compensation for the period during which the taking was
effective.” Ibid.

539

property without compensation … .” Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 164 (1980).
Instead, as it would be required to do if it sought to restrain
Lucas in a commonlaw action for public nuisance, South
Carolina must identify background principles of nuisance
and property law that prohibit the uses he now intends in
the circumstances in which the property is presently found.
Only on this showing can the State fairly claim that, in
proscribing all such beneficial uses, the Beach front
Management Act is taking nothing.15
***
The judgment is reversed, and the case is remanded for
proceedings not inconsistent with this opinion.
So ordered.
JUSTICE KENNEDY, concurring in the judgment.
The case comes to the Court in an unusual posture, as all
my colleagues observe. Ante, at 1010-1011; post, at 1041
(Blackmun, J., dissenting); post, at 1061-1062 (Stevens, J.,
dissenting); post, at 1076-1077 (statement of Souter, J.).
After the suit was initiated but before it reached us, South
Carolina amended its Beach front Management Act to
authorize the issuance of special permits at variance with
the Act’s general limitations. See S. C. Code Ann. § 48-39290(D)(1) (Supp. 1991). Petitioner has not applied for a
special permit but may still do so. The availability of this
alternative, if it can be invoked, may dispose of petitioner’s
claim of a permanent taking. As I read the Court’s opinion,
15 Justice Blackmun decries our reliance on background nuisance principles at least

in part because he believes those principles to be as manipulable as we find the
“harm prevention”/”benefit conferral” dichotomy, see post, at 1054-1055. There is
no doubt some leeway in a court’s interpretation of what existing state law permits
– but not remotely as much, we think, as in a legislative crafting of the reasons for
its confiscatory regulation. We stress that an affirmative decree eliminating all
economically beneficial uses may be defended only if an objectively reasonable
application of relevant precedents would exclude those beneficial uses in the
circumstances in which the land is presently found.

540

it does not decide the permanent taking claim, but neither
does it foreclose the Supreme Court of South Carolina
from considering the claim or requiring petitioner to pursue
an administrative alternative not previously available.
The potential for future relief does not control our
disposition, because whatever may occur in the future
cannot undo what has occurred in the past. The Beach
front Management Act was enacted in 1988. S. C. Code
Ann. § 48-39-250 et seq. (Supp. 1990). It may have deprived
petitioner of the use of his land in an interim period. § 4839-290(A). If this deprivation amounts to a taking, its
limited duration will not bar constitutional relief. It is well
established that temporary takings are as protected by the
Constitution as are permanent ones. First English Evangelical
Lutheran Church of Glendale v. County of Los Angeles, 482 U. S.
304, 318 (1987).
The issues presented in the case are ready for our decision.
The Supreme Court of South Carolina decided the case on
constitutional grounds, and its rulings are now before us.
There exists no jurisdictional bar to our disposition, and
prudential considerations ought not to militate against it.
The State cannot complain of the manner in which the
issues arose. Any uncertainty in this regard is attributable to
the State, as a consequence of its amendment to the Beach
front Management Act. If the Takings Clause is to protect
against temporary deprivations, as well as permanent ones,
its enforcement must not be frustrated by a shifting
background of state law.
Although we establish a framework for remand, moreover,
we do not decide the ultimate question whether a
temporary taking has occurred in this case. The facts
necessary to the determination have not been developed in
the record. Among the matters to be considered on remand
must be whether petitioner had the intent and capacity to
develop the property and failed to do so in the interim
period because the State prevented him. Any failure by

541

petitioner to comply with relevant
requirements will be part of that analysis.

administrative

The South Carolina Court of Common Pleas found that
petitioner’s real property has been rendered valueless by the
State’s regulation. App. to Pet. for Cert. 37. The finding
appears to presume that the property has no significant
market value or resale potential. This is a curious finding,
and I share the reservations of some of my colleagues
about a finding that a beach front lot loses all value because
of a development restriction. Post, at 1043-1045 (Blackmun,
J., dissenting); post, at 1065, n. 3 (Stevens, J., dissenting);
post, at 1076 (statement of Souter, J.). While the Supreme
Court of South Carolina on remand need not consider the
case subject to this constraint, we must accept the finding
as entered below. See Oklahoma City v. Tuttle, 471 U. S. 808,
816 (1985). Accepting the finding as entered, it follows that
petitioner is entitled to invoke the line of cases discussing
regulations that deprive real property of all economic value.
See Agins v. City of Tiburon, 447 U. S. 255, 260 (1980).
The finding of no value must be considered under the
Takings Clause by reference to the owner’s reasonable,
investment-backed expectations. Kaiser Aetna v. United
States, 444 U. S. 164, 175 (1979); Penn Central Transportation
Co. v. New York City, 438 U. S. 104, 124 (1978); see also W.
B. Worthen Co. v. Kavanaugh, 295 U. S. 56 (1935). The
Takings Clause, while conferring substantial protection on
property owners, does not eliminate the police power of
the State to enact limitations on the use of their
property.Mugler v. Kansas, 123 U. S. 623, 669 (1887). The
rights conferred by the Takings Clause and the police
power of the State may coexist without conflict. Property is
bought and sold, investments are made, subject to the
State’s power to regulate. Where a taking is alleged from
regulations which deprive the property of all value, the test
must be whether the deprivation is contrary to reasonable,
investmentbacked expectations.

542

There is an inherent tendency towards circularity in this
synthesis, of course; for if the owner’s reasonable
expectations are shaped by what courts allow as a proper
exercise of governmental authority, property tends to
become what courts say it is. Some circularity must be
tolerated in these matters, however, as it is in other spheres.
E. g., Katz v. United States, 389 U. S. 347 (1967) (Fourth
Amendment protections defined by
reasonable
expectations of privacy). The definition, moreover, is not
circular in its entirety. The expectations protected by the
Constitution are based on objective rules and customs that
can be understood as reasonable by all parties involved.
In my view, reasonable expectations must be understood in
light of the whole of our legal tradition. The common law
of nuisance is too narrow a confine for the exercise of
regulatory power in a complex and interdependent society.
Goldblatt v. Hempstead, 369 U. S. 590, 593 (1962). The State
should not be prevented from enacting new regulatory
initiatives in response to changing conditions, and courts
must consider all reasonable expectations whatever their
source. The Takings Clause does not require a static body
of state property law; it protects private expectations to
ensure private investment. I agree with the Court that
nuisance prevention accords with the most common
expectations of property owners who face regulation, but I
do not believe this can be the sole source of state authority
to impose severe restrictions. Coastal property may present
such unique concerns for a fragile land system that the
State can go further in regulating its development and use
than the common law of nuisance might otherwise permit.
The Supreme Court of South Carolina erred, in my view, by
reciting the general purposes for which the state regulations
were enacted without a determination that they were in
accord with the owner’s reasonable expectations and
therefore sufficient to support a severe restriction on
specific parcels of property. See 304 S. C. 376, 383, 404 S.

543

E. 2d 895, 899 (1991). The promotion of tourism, for
instance, ought not to suffice to deprive specific property
of all value without a corresponding duty to compensate.
Furthermore, the means, as well as the ends, of regulation
must accord with the owner’s reasonable expectations.
Here, the State did not act until after the property had been
zoned for individual lot development and most other
parcels had been improved, throwing the whole burden of
the regulation on the remaining lots. This too must be
measured in the balance. See Pennsylvania Coal Co. v. Mahon,
260 U. S. 393, 416 (1922).
With these observations, I concur in the judgment of the
Court.
JUSTICE BLACKMUN, dissenting.
Today the Court launches a missile to kill a mouse.
The State of South Carolina prohibited petitioner Lucas
from building a permanent structure on his property from
1988 to 1990. Relying on an unreviewed (and implausible)
state trial court finding that this restriction left Lucas’
property valueless, this Court granted review to determine
whether compensation must be paid in cases where the
State prohibits all economic use of real estate. According to
the Court, such an occasion never has arisen in any of our
prior cases, and the Court imagines that it will arise
“relatively rarely” or only in “extraordinary circumstances.”
Almost certainly it did not happen in this case.
Nonetheless, the Court presses on to decide the issue, and
as it does, it ignores its jurisdictional limits, remakes its
traditional rules of review, and creates simultaneously a new
categorical rule and an exception (neither of which is
rooted in our prior case law, common law, or common
sense). I protest not only the Court’s decision, but each
step taken to reach it. More fundamentally, I question the
Court’s wisdom in issuing sweeping new rules to decide
such a narrow case. Surely, as Justice Kennedy

544

demonstrates, the Court could have reached the result it
wanted without inflicting this damage upon our Takings
Clause jurisprudence.
My fear is that the Court’s new policies will spread beyond
the narrow confines of the present case. For that reason, I,
like the Court, will give far greater attention to this case
than its narrow scope suggests – not because I can
intercept the Court’s missile, or save the targeted mouse,
but because I hope perhaps to limit the collateral damage.
….
Statement of JUSTICE SOUTER.
I would dismiss the writ of certiorari in this case as having
been granted improvidently. After briefing and argument it
is abundantly clear that an unreviewable assumption on
which this case comes to us is both questionable as a
conclusion of Fifth Amendment law and sufficient to
frustrate the Court’s ability to render certain the legal
premises on which its holding rests.
The petition for review was granted on the assumption that
the State by regulation had deprived the owner of his entire
economic interest in the subject property. Such was the
state trial court’s conclusion, which the State Supreme
Court did not review. It is apparent now that in light of our
prior cases, see, e. g., Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470, 493-502 (1987); Andrus v. Allard,
444 U. S. 51, 65-66 (1979); Penn Central Transportation Corp.
v. New York City, 438 U. S. 104, 130-131 (1978), the trial
court’s conclusion is highly questionable. While the
respondent now wishes to contest the point, see Brief for
Respondent 45-50, the Court is certainly right to refuse to
take up the issue, which is not fairly included within the
question presented, and has received only the most
superficial and one-sided treatment before us.

545

Because the questionable conclusion of total deprivation
cannot be reviewed, the Court is precluded from
attempting to clarify the concept of total (and, in the
Court’s view, categorically compensable) taking on which it
rests, a concept which the Court describes, see ante, at
1016-1017, n. 6, as so uncertain under existing law as to
have fostered inconsistent pronouncements by the Court
itself. Because that concept is left uncertain, so is the
significance of the exceptions to the compensation
requirement that the Court proceeds to recognize. This
alone is enough to show that there is little utility in
attempting to deal with this case on the merits.
….
4.3.3. Per se vs. Ad hoc
Tahoe-Sierra Preservation Council, Inc. v. Tahoe
Regional Planning Agency
535 U.S. 302 (2002)
Michael M. Berger argued the cause for petitioners. With him
on the briefs were Gideon Kanner and Lawrence L. Hoffman.
John G. Roberts, Jr., argued the cause for respondents. With
him on the brief were Frankie Sue Del Papa, Attorney
General of Nevada, and William J. Frey, Deputy Attorney
General, Bill Lockyer, Attorney General of California,
Richard M. Frank, Chief Assistant Attorney General,
Matthew Rodriquez, Senior Assistant Attorney General, and
Daniel L. Siegel, Supervising Deputy Attorney General, E.
Clement Shute, Jr., Fran M. Layton, Ellison Folk, John L.
Marshall, and Richard J. Lazarus.
Solicitor General Olson argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Acting Assistant Attorney General Cruden, Deputy Solicitor
General Kneedler, and Malcolm L. Stewart.
JUSTICE STEVENS delivered the opinion of the Court.

546

The question presented is whether a moratorium on
development imposed during the process of devising a
comprehensive land-use plan constitutes a per se taking of
property requiring compensation under the Takings Clause
of the United States Constitution.1 This case actually
involves two moratoria ordered by respondent Tahoe
Regional Planning Agency (TRPA) to maintain the status
quo while studying the impact of development on Lake
Tahoe and designing a strategy for environmentally sound
growth. The first, Ordinance 81-5, was effective from
August 24, 1981, until August 26, 1983, whereas the second
more restrictive Resolution 83-21 was in effect from
August 27, 1983, until April 25, 1984. As a result of these
two directives, virtually all development on a substantial
portion of the property subject to TRPA’s jurisdiction was
prohibited for a period of 32 months. Although the
question we decide relates only to that 32-month period, a
brief description of the events leading up to the moratoria
and a comment on the two permanent plans that TRPA
adopted thereafter will clarify the narrow scope of our
holding.
I
The relevant facts are undisputed. The Court of Appeals,
while reversing the District Court on a question of law,
accepted all of its findings of fact, and no party challenges
those findings. All agree that Lake Tahoe is “uniquely
beautiful,” 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that
President Clinton was right to call it a “‘national treasure
that must be protected and preserved,’ ” ibid., and that
Mark Twain aptly described the clarity of its waters as “‘not
merely transparent, but dazzlingly, brilliantly so,’ ” ibid.
1 Often referred to as the “Just Compensation Clause,” the final Clause of the Fifth

Amendment provides: ”… nor shall private property be taken for public use
without just compensation.” It applies to the States as well as the Federal
Government. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239, 241 (1897);
Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155, 160 (1980).

547

(emphasis added) (quoting M. Twain, Roughing It 174-175
(1872)).
Lake Tahoe’s exceptional clarity is attributed to the absence
of algae that obscures the waters of most other lakes.
Historically, the lack of nitrogen and phosphorous, which
nourish the growth of algae, has ensured the transparency
of its waters.2 Unfortunately, the lake’s pristine state has
deteriorated rapidly over the past 40 years; increased land
development in the Lake Tahoe Basin (Basin) has
threatened the “‘noble sheet of blue water’ ” beloved by
Twain and countless others. 34 F. Supp. 2d, at 1230. As the
District Court found, “[d]ramatic decreases in clarity first
began to be noted in the late 1950’s/early 1960’s, shortly
after development at the lake began in earnest.” Id., at 1231.
The lake’s unsurpassed beauty, it seems, is the wellspring of
its undoing.
The upsurge of development in the area has caused
“increased nutrient loading of the lake largely because of
the increase in impervious coverage of land in the Basin
resulting from that development.” Ibid.
[The Court recounts the history of inter-governmental
cooperation and land use regulations since the 1960s that
have attempted to solve the water quality problems. A
three-year moratorium was imposed while TRPA
developed a regional water quality plan. When that plan was
complete, California sued, alleging the plan was inadequate
to protect Lake Tahoe. The federal court entered an
injunction that essentially continued the moratorium for
another three years, until 1987 when a new regional plan
was completed. Around the same time that California filed
2 According to a Senate Report: “Only two other sizable lakes in the world are of

comparable quality–Crater Lake in Oregon, which is protected as part of the Crater
Lake National Park, and Lake Baikal in the [former] Soviet Union. Only Lake
Tahoe, however, is so readily accessible from large metropolitan centers and is so
adaptable to urban development.” S. Rep. No. 91-510, pp. 3-4 (1969).

548

suit, Petitioners –- a total of around 2,400 landowners -–
also filed their suit, seeking compensation for the
moratorium that had been in effect from 1981-1984. That
litigation became protracted “produc[ing] four opinions by
the Court of Appeals for the Ninth Circuit and several
published District Court opinions.” The majority in this
case held that only the 1981 moratorium, not the additional
delay caused by the federal injunction was before it. It also
characterized Petitioners as mounting only a facial
challenge to the moratorium. “For petitioners, it is enough
that a regulation imposes a temporary deprivation–no
matter how brief–of all economically viable use to trigger a
per se rule that a taking has occurred.”]
***
IV
The text of the Fifth Amendment itself provides a basis for
drawing a distinction between physical takings and
regulatory takings. Its plain language requires the payment
of compensation whenever the government acquires
private property for a public purpose, whether the
acquisition is the result of a condemnation proceeding or a
physical appropriation. But the Constitution contains no
comparable reference to regulations that prohibit a
property owner from making certain uses of her private
property.3 Our jurisprudence involving condemnations and
physical takings is as old as the Republic and, for the most
part, involves the straightforward application of per se rules.
Our regulatory takings jurisprudence, in contrast, is of
In determining whether government action affecting property is an
unconstitutional deprivation of ownership rights under the Just Compensation
Clause, a court must interpret the word “taken.” When the government condemns
or physically appropriates the property, the fact of a taking is typically obvious and
undisputed. When, however, the owner contends a taking has occurred because a
law or regulation imposes restrictions so severe that they are tantamount to a
condemnation or appropriation, the predicate of a taking is not self-evident, and
the analysis is more complex.
3

549

more recent vintage and is characterized by “essentially ad
hoc, factual inquiries,” Penn Central, 438 U. S., at 124,
designed to allow “careful examination and weighing of all
the relevant circumstances.” Palazzolo, 533 U. S., at 636
(O’Connor, J., concurring).
When the government physically takes possession of an
interest in property for some public purpose, it has a
categorical duty to compensate the former owner, United
States v. Pewee Coal Co., 341 U. S. 114, 115 (1951), regardless
of whether the interest that is taken constitutes an entire
parcel or merely a part thereof. Thus, compensation is
mandated when a leasehold is taken and the government
occupies the property for its own purposes, even though
that use is temporary. United States v. General Motors Corp.,
323 U. S. 373 (1945); United States v. Petty Motor Co., 327 U.
S. 372 (1946). Similarly, when the government appropriates
part of a roof top in order to provide cable TV access for
apartment tenants, Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419 (1982); or when its planes use private
airspace to approach a government airport, United States v.
Causby, 328 U. S. 256 (1946), it is required to pay for that
share no matter how small. But a government regulation
that merely prohibits landlords from evicting tenants
unwilling to pay a higher rent, Block v. Hirsh, 256 U. S. 135
(1921); that bans certain private uses of a portion of an
owner’s property, Village of Euclid v. Ambler Realty Co., 272
U. S. 365 (1926); Keystone Bituminous Coal Assn. v.
DeBenedictis, 480 U. S. 470 (1987); or that forbids the private
use of certain airspace, Penn Central Transp. Co. v. New York
City, 438 U. S. 104 (1978), does not constitute a categorical
taking. “The first category of cases requires courts to apply
a clear rule; the second necessarily entails complex factual
assessments of the purposes and economic effects of
government actions.” Yee v. Escondido, 503 U. S. 519, 523
(1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S.,
at 489, n. 18.

550

This longstanding distinction between acquisitions of
property for public use, on the one hand, and regulations
prohibiting private uses, on the other, makes it
inappropriate to treat cases involving physical takings as
controlling precedents for the evaluation of a claim that
there has been a “regulatory taking,”4 and vice versa. For
the same reason that we do not ask whether a physical
appropriation advances a substantial government interest or
whether it deprives the owner of all economically valuable
use, we do not apply our precedent from the physical
takings context to regulatory takings claims. Land-use
regulations are ubiquitous and most of them impact
property values in some tangential way–often in completely
unanticipated ways. Treating them all as per se takings would
transform government regulation into a luxury few
governments could afford. By contrast, physical
appropriations are relatively rare, easily identified, and
usually represent a greater affront to individual property
rights.5 “This case does not present the ‘classi[c] taking’ in
4 To illustrate the importance of the distinction, the Court in Loretto, 458 U. S., at

430, compared two wartime takings cases, United States v. Pewee Coal Co., 341 U. S.
114, 116 (1951), in which there had been an “actual taking of possession and
control” of a coal mine, and United States v. Central Eureka Mining Co., 357 U. S. 155
(1958), in which, “by contrast, the Court found no taking where the Government
had issued a wartime order requiring nonessential gold mines to cease operations .
.. .” 458 U. S., at 431. Loretto then relied on this distinction in dismissing the
argument that our discussion of the physical taking at issue in the case would affect
landlord-tenant laws. “So long as these regulations do not require the landlord to
suffer the physical occupation of a portion of his building by a third party, they will
be analyzed under the multifactor inquiry generally applicable to nonpossessory
governmental activity.” Id., at 440 (citing Penn Central ).
According to The Chief Justice’s dissent, even a temporary, useprohibiting
regulation should be governed by our physical takings cases because, under Lucas v.
South Carolina Coastal Council, 505 U. S. 1003, 1017 (1992), “from the landowner’s
point of view,” the moratorium is the functional equivalent of a forced leasehold,
post, at 348. Of course, from both the landowner’s and the government’s standpoint
there are critical differences between a leasehold and a moratorium. Condemnation
of a leasehold gives the government possession of the property, the right to admit
and exclude others, and the right to use it for a public purpose. A regulatory taking,
by contrast, does not give the government any right to use the property, nor does it
dispossess the owner or affect her right to exclude others.
5

551

which the government directly appropriates private
property for its own use,” Eastern Enterprises v. Apfel, 524 U.
S. 498, 522 (1998); instead the interference with property
rights “arises from some public program adjusting the
benefits and burdens of economic life to promote the
common good,” Penn Central, 438 U. S., at 124.
Perhaps recognizing this fundamental distinction,
petitioners wisely do not place all their emphasis on
analogies to physical takings cases. Instead, they rely
principally on our decision in Lucas v. South Carolina Coastal
Council, 505 U. S. 1003 (1992)–a regulatory takings case
that, nevertheless, applied a categorical rule–to argue that
the Penn Central framework is inapplicable here. A brief
review of some of the cases that led to our decision in
Lucas, however, will help to explain why the holding in that
case does not answer the question presented here.
As we noted in Lucas, it was Justice Holmes’ opinion in
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922),6 that
gave birth to our regulatory takings jurisprudence.7 In
The Chief Justice stretches Lucas ’ “equivalence” language too far. For even a
regulation that constitutes only a minor infringement on property may, from the
landowner’s perspective, be the functional equivalent of an appropriation. Lucas
carved out a narrow exception to the rules governing regulatory takings for the
“extraordinary circumstance” of a permanent deprivation of all beneficial use. The
exception was only partially justified based on the “equivalence” theory cited by
The Chief Justice’s dissent. It was also justified on the theory that, in the “relatively
rare situations where the government has deprived a landowner of all economically
beneficial uses,” it is less realistic to assume that the regulation will secure an
“average reciprocity of advantage,” or that government could not go on if required
to pay for every such restriction. 505 U. S., at 1017-1018. But as we explain, infra, at
339-341, these assumptions hold true in the context of a moratorium.
6 The case involved “a bill in equity brought by the defendants in error to prevent
the Pennsylvania Coal Company from mining under their property in such way as
to remove the supports and cause a subsidence of the surface and of their house.”
Mahon, 260 U. S., at 412. Mahon sought to prevent Pennsylvania Coal from mining
under his property by relying on a state statute, which prohibited any mining that
could undermine the foundation of a home. The company challenged the statute as
a taking of its interest in the coal without compensation.
7 In Lucas, we explained: “Prior to Justice Holmes’s exposition in Pennsylvania Coal

Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause

552

subsequent opinions we have repeatedly and consistently
endorsed Holmes’ observation that “if regulation goes too
far it will be recognized as a taking.” Id., at 415. Justice
Holmes did not provide a standard for determining when a
regulation goes “too far,” but he did reject the view
expressed in Justice Brandeis’ dissent that there could not
be a taking because the property remained in the
possession of the owner and had not been appropriated or
used by the public.8 After Mahon, neither a physical
appropriation nor a public use has ever been a necessary
component of a “regulatory taking.”
In the decades following that decision, we have “generally
eschewed” any set formula for determining how far is too
far, choosing instead to engage in “‘essentially ad hoc,
factual inquiries.’ ” Lucas, 505 U. S., at 1015 (quoting Penn
Central, 438 U. S., at 124). Indeed, we still resist the
reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457,
551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s]
possession,’ Transportation Co. v. Chicago, 99 U. S. 635, 642 (1879) … . Justice
Holmes recognized in Mahon, however, that if the protection against physical
appropriations of private property was to be meaningfully enforced, the
government’s power to redefine the range of interests included in the ownership of
property was necessarily constrained by constitutional limits. 260 U. S., at 414-415.
If, instead, the uses of private property were subject to unbridled, uncompensated
qualification under the police power, ‘the natural tendency of human nature [would
be] to extend the qualification more and more until at last private property
disappear[ed].’ Id., at 415. These considerations gave birth in that case to the oftcited maxim that, ‘while property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.’ Ibid. ” 505 U. S., at 1014 (citation
omitted).
8 Justice Brandeis argued: “Every restriction upon the use of property imposed in

the exercise of the police power deprives the owner of some right theretofore
enjoyed, and is, in that sense, an abridgment by the State of rights in property
without making compensation. But restriction imposed to protect the public health,
safety or morals from dangers threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious use. The property so restricted
remains in the possession of its owner. The State does not appropriate it or make
any use of it. The State merely prevents the owner from making a use which
interferes with paramount rights of the public.” Mahon, 260 U. S., at 417 (dissenting
opinion).

553

temptation to adopt per se rules in our cases involving
partial regulatory takings, preferring to examine “a number
of factors” rather than a simple “mathematically precise”
formula.9 Justice Brennan’s opinion for the Court in Penn
Central did, however, make it clear that even though
multiple factors are relevant in the analysis of regulatory
takings claims, in such cases we must focus on “the parcel
as a whole”:
“‘Taking’ jurisprudence does not
divide a single parcel into discrete
segments and attempt to determine
whether rights in a particular segment
have been entirely abrogated. In
deciding
whether
a
particular
governmental action has effected a
taking, this Court focuses rather both
on the character of the action and on
the nature and extent of the
interference with rights in the parcel as
a whole–here, the city tax block
designated as the ‘landmark site.’ ” Id.,
at 130-131.
This requirement that “the aggregate must be viewed in its
entirety” explains why, for example, a regulation that
prohibited commercial transactions in eagle feathers, but
did not bar other uses or impose any physical invasion or
restraint upon them, was not a taking. Andrus v. Allard, 444
U. S. 51, 66 (1979). It also clarifies why restrictions on the
In her concurring opinion in Palazzolo, 533 U. S., at 633, Justice O’Connor
reaffirmed this approach: “Our polestar instead remains the principles set forth in
Penn Central itself and our other cases that govern partial regulatory takings. Under
these cases, interference with investment-backed expectations is one of a number
of factors that a court must examine.” Ibid. “Penn Central does not supply
mathematically precise variables, but instead provides important guide posts that
lead to the ultimate determination whether just compensation is required.” Id., at
634. “The temptation to adopt what amount to per se rules in either direction must
be resisted. The Takings Clause requires careful examination and weighing of all
the relevant circumstances in this context.” Id., at 636.
9

554

use of only limited portions of the parcel, such as setback
ordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a
requirement that coal pillars be left in place to prevent mine
subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U. S., at 498,were not considered regulatory takings. In
each of these cases, we affirmed that “where an owner
possesses a full ‘bundle’ of property rights, the destruction
of one ‘strand’ of the bundle is not a taking.” Andrus, 444
U. S., at 65-66.
While the foregoing cases considered whether particular
regulations had “gone too far” and were therefore invalid,
none of them addressed the separate remedial question of
how compensation is measured once a regulatory taking is
established. In his dissenting opinion in San Diego Gas &
Elec. Co. v. San Diego, 450 U. S. 621, 636 (1981), Justice
Brennan identified that question and explained how he
would answer it:
“The constitutional rule I propose
requires that, once a court finds that a
police power regulation has effected a
‘taking,’ the government entity must
pay just compensation for the period
commencing on the date the
regulation first effected the ‘taking,’
and ending on the date the
government entity chooses to rescind
or otherwise amend the regulation.”
Id., at 658.
Justice Brennan’s proposed rule was subsequently endorsed
by the Court in First English, 482 U. S., at 315, 318, 321.
First English was certainly a significant decision, and nothing
that we say today qualifies its holding. Nonetheless, it is
important to recognize that we did not address in that case
the quite different and logically prior question whether the
temporary regulation at issue had in fact constituted a
taking.

555

In First English, the Court unambiguously and repeatedly
characterized the issue to be decided as a “compensation
question” or a “remedial question.” Id., at 311 (“The
disposition of the case on these grounds isolates the
remedial question for our consideration”); see also id., at
313, 318. And the Court’s statement of its holding was
equally unambiguous: “We merely hold that where the
government’s activities have already worked a taking of all use
of property, no subsequent action by the government can
relieve it of the duty to provide compensation for the
period during which the taking was effective.” Id., at 321
(emphasis added). In fact, First English expressly disavowed
any ruling on the merits of the takings issue because the
California courts had decided the remedial question on the
assumption that a taking had been alleged. Id., at 312-313
(“We reject appellee’s suggestion that … we must
independently evaluate the adequacy of the complaint and
resolve the takings claim on the merits before we can reach
the remedial question”). After our remand, the California
courts concluded that there had not been a taking, First
English Evangelical Church of Glendale v. County of Los Angeles,
210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we
declined review of that decision, 493 U. S. 1056 (1990).
To the extent that the Court in First English referenced the
antecedent takings question, we identified two reasons why
a regulation temporarily denying an owner all use of her
property might not constitute a taking. First, we recognized
that “the county might avoid the conclusion that a
compensable taking had occurred by establishing that the
denial of all use was insulated as a part of the State’s
authority to enact safety regulations.” 482 U. S., at 313.
Second, we limited our holding “to the facts presented”
and recognized “the quite different questions that would
arise in the case of normal delays in obtaining building
permits, changes in zoning ordinances, variances, and the
like which [were] not before us.” Id., at 321. Thus, our

556

decision in First English surely did not approve, and
implicitly rejected, the categorical submission that
petitioners are now advocating.
Similarly, our decision in Lucas is not dispositive of the
question presented. Although Lucas endorsed and applied a
categorical rule, it was not the one that petitioners propose.
Lucas purchased two residential lots in 1988 for $975,000.
These lots were rendered “valueless” by a statute enacted
two years later. The trial court found that a taking had
occurred and ordered compensation of $1,232,387.50,
representing the value of the fee simple estate, plus interest.
As the statute read at the time of the trial, it effected a
taking that “was unconditional and permanent.” 505 U. S.,
at 1012. While the State’s appeal was pending, the statute
was amended to authorize exceptions that might have
allowed Lucas to obtain a building permit. Despite the fact
that the amendment gave the State Supreme Court the
opportunity to dispose of the appeal on ripeness grounds, it
resolved the merits of the permanent takings claim and
reversed. Since “Lucas had no reason to proceed on a
‘temporary taking’ theory at trial,” we decided the case on
the permanent taking theory that both the trial court and
the State Supreme Court had addressed. Ibid.
The categorical rule that we applied in Lucas states that
compensation is required when a regulation deprives an
owner of ”all economically beneficial uses” of his land. Id.,
at 1019. Under that rule, a statute that “wholly eliminated
the value” of Lucas’ fee simple title clearly qualified as a
taking. But our holding was limited to “the extraordinary
circumstance when no productive or economically
beneficial use of land is permitted.” Id., at 1017. The
emphasis on the word “no” in the text of the opinion was,
in effect, reiterated in a footnote explaining that the
categorical rule would not apply if the diminution in value

557

were 95% instead of 100%. Id., at 1019, n. 8.10 Anything
less than a “complete elimination of value,” or a “total
loss,” the Court acknowledged, would require the kind of
analysis applied in Penn Central. Lucas, 505 U. S., at 10191020, n. 8.11
Certainly, our holding that the permanent “obliteration of
the value” of a fee simple estate constitutes a categorical
taking does not answer the question whether a regulation
prohibiting any economic use of land for a 32-month
period has the same legal effect. Petitioners seek to bring
this case under the rule announced in Lucas by arguing that
we can effectively sever a 32-month segment from the
remainder of each landowner’s fee simple estate, and then
ask whether that segment has been taken in its entirety by
the moratoria. Of course, defining the property interest
taken in terms of the very regulation being challenged is
circular. With property so divided, every delay would
become a total ban; the moratorium and the normal permit
process alike would constitute categorical takings.
Petitioners’ “conceptual severance” argument is unavailing
because it ignores Penn Central ‘s admonition that in
regulatory takings cases we must focus on “the parcel as a
whole.” 438 U. S., at 130– 131. We have consistently
rejected such an approach to the “denominator” question.
See Keystone, 480 U. S., at 497. See also Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension Trust for
Southern Cal., 508 U. S. 602, 644 (1993) (“To the extent that
any portion of property is taken, that portion is always
taken in its entirety; the relevant question, however, is
whether the property taken is all, or only a portion of, the
Justice Kennedy concurred in the judgment on the basis of the regulation’s
impact on “reasonable, investment-backed expectations.” 505 U. S., at 1034.
10

11 It is worth noting that Lucas underscores the difference between physical and

regulatory takings. See supra, at 322-325. For under our physical takings cases it
would be irrelevant whether a property owner maintained 5% of the value of her
property so long as there was a physical appropriation of any of the parcel.

558

parcel in question”). Thus, the District Court erred when it
disaggregated petitioners’ property into temporal segments
corresponding to the regulations at issue and then analyzed
whether petitioners were deprived of all economically
viable use during each period. 34 F. Supp. 2d, at 1242-1245.
The starting point for the court’s analysis should have been
to ask whether there was a total taking of the entire parcel;
if not, then Penn Central was the proper framework.12
An interest in real property is defined by the metes and
bounds that describe its geographic dimensions and the
term of years that describes the temporal aspect of the
owner’s interest. See Restatement of Property §§ 7-9
(1936). Both dimensions must be considered if the interest
is to be viewed in its entirety. Hence, a permanent
deprivation of the owner’s use of the entire area is a taking
of “the parcel as a whole,” whereas a temporary restriction
that merely causes a diminution in value is not. Logically, a
fee simple estate cannot be rendered valueless by a
temporary prohibition on economic use, because the
property will recover value as soon as the prohibition is
lifted. Cf. Agins v. City of Tiburon, 447 U. S., at 263, n. 9
(“Even if the appellants’ ability to sell their property was
limited during the pendency of the condemnation
proceeding, the appellants were free to sell or develop their
property when the proceedings ended. Mere fluctuations in
value during the process of governmental decisionmaking,
absent extraordinary delay, are ‘incidents of ownership.
They cannot be considered as a “taking” in the
constitutional sense’ ” (quoting Danforth v. United States, 308
U. S. 271, 285 (1939))).
Neither Lucas, nor First English, nor any of our other
regulatory takings cases compels us to accept petitioners’
12 The

Chief Justice’s dissent makes the same mistake by carving out a 6-year
interest in the property, rather than considering the parcel as a whole, and treating
the regulations covering that segment as analogous to a total taking under Lucas,
post, at 351.

559

categorical submission. In fact, these cases make clear that
the categorical rule in Lucas was carved out for the
“extraordinary case” in which a regulation permanently
deprives property of all value; the default rule remains that,
in the regulatory taking context, we require a more fact
specific inquiry. Nevertheless, we will consider whether the
interest in protecting individual property owners from
bearing public burdens “which, in all fairness and justice,
should be borne by the public as a whole,” Armstrong v.
United States, 364 U. S., at 49, justifies creating a new rule
for these circumstances.13
V
Considerations of “fairness and justice” arguably could
support the conclusion that TRPA’s moratoria were takings
of petitioners’ property based on any of seven different
theories. First, even though we have not previously done
so, we might now announce acategorical rule that, in the
interest of fairness and justice, compensation is required
whenever government temporarily deprives an owner of all
economically viable use of her property. Second, we could
craft a narrower rule that would cover all temporary
landuse restrictions except those “normal delays in
obtaining building permits, changes in zoning ordinances,
variances, and the like” which were put to one side in our
opinion in First English, 482 U. S., at 321. Third, we could
adopt a rule like the one suggested by an amicus supporting
petitioners that would “allow a short fixed period for
deliberations to take place without compensation–say
maximum one year–after which the just compensation

Armstrong, like Lucas, was a case that involved the “total destruction by the
Government of all value” in a specific property interest. 364 U. S., at 48-49. It is
nevertheless perfectly clear that Justice Black’s oft-quoted comment about the
underlying purpose of the guarantee that private property shall not be taken for a
public use without just compensation applies to partial takings as well as total
takings.
13

560

requirements” would “kick in.”14 Fourth, with the benefit
of hindsight, we might characterize the successive actions
of TRPA as a “series of rolling moratoria” that were the
functional equivalent of a permanent taking.15 Fifth, were it
not for the findings of the District Court that TRPA acted
diligently and in good faith, we might have concluded that
the agency was stalling in order to avoid promulgating the
environmental threshold carrying capacities and regional
plan mandated by the 1980 Compact. Cf. Monterey v. Del
Monte Dunes at Monterey, Ltd., 526 U. S. 687, 698 (1999).
Sixth, apart from the District Court’s finding that TRPA’s
actions represented a proportional response to a serious
risk of harm to the lake, petitioners might have argued that
the moratoria did not substantially advance a legitimate
state interest, see Agins and Monterey. Finally, if petitioners
had challenged the application of the moratoria to their
individual parcels, instead of making a facial challenge,
some of them might have prevailed under a Penn Central
analysis.
As the case comes to us, however, none of the last four
theories is available. The “rolling moratoria” theory was
presented in the petition for certiorari, but our order
granting review did not encompass that issue, 533 U. S. 948
(2001); the case was tried in the District Court and
reviewed in the Court of Appeals on the theory that each of
the two moratoria was a separate taking, one for a 2-year
period and the other for an 8-month period. 216 F. 3d, at
769. And, as we have already noted, recovery on either a
bad faith theory or a theory that the state interests were
insubstantial is foreclosed by the District Court’s
14 Brief for the Institute for Justice as Amicus Curiae 30. Although amicus describes

the 1-year cutoff proposal as the “better approach by far,”ibid., its primary
argument is that Penn Central should be overruled, id., at 20 (”All partial takings by
way of land use restriction should be subject to the same prima facie rules for
compensation as a physical occupation for a limited period of time”).
15 Brief for Petitioners 44.See also Pet. for Cert. i.

561

unchallenged findings of fact. Recovery under a Penn Central
analysis is also foreclosed both because petitioners
expressly disavowed that theory, and because they did not
appeal from the District Court’s conclusion that the
evidence would not support it. Nonetheless, each of the
three per se theories is fairly encompassed within the
question that we decided to answer.
With respect to these theories, the ultimate constitutional
question is whether the concepts of “fairness and justice”
that underlie the Takings Clause will be better served by
one of these categorical rules or by a Penn Central inquiry
into all of the relevant circumstances in particular cases.
From that perspective, the extreme categorical rule that any
deprivation of all economic use, no matter how brief,
constitutes a compensable taking surely cannot be
sustained. Petitioners’ broad submission would apply to
numerous “normal delays in obtaining building permits,
changes in zoning ordinances, variances, and the like,” 482
U. S., at 321, as well as to orders temporarily prohibiting
access to crime scenes, businesses that violate health codes,
fire-damaged buildings, or other areas that we cannot now
foresee. Such a rule would undoubtedly require changes in
numerous practices that have long been considered
permissible exercises of the police power. As Justice
Holmes warned in Mahon, “[g]overnment hardly could go
on if to some extent values incident to property could not
be diminished without paying for every such change in the
general law.” 260 U. S., at 413. A rule that required
compensation for every delay in the use of property would
render routine government processes prohibitively
expensive or encourage hasty decisionmaking. Such an
important change in the law should be the product of
legislative rulemaking rather than adjudication.16
16 In addition, we recognize the anomaly that would be created if we were to apply

Penn Central when a landowner is permanently deprived of 95% of the use of her
property, Lucas, 505 U. S.,at 1019, n. 8, and yet find a per se taking anytime the same

562

More importantly, for reasons set out at some length by
Justice O’Connor in her concurring opinion in Palazzolo v.
Rhode Island, 533 U. S., at 636, we are persuaded that the
better approach to claims that a regulation has effected a
temporary taking “requires careful examination and
weighing of all the relevant circumstances.” In that opinion,
Justice O’Connor specifically considered the role that the
“temporal relationship between regulatory enactment and
title acquisition” should play in the analysis of a takings
claim. Id., at 632. We have no occasion to address that
particular issue in this case, because it involves a different
temporal relationship–the distinction between a temporary
restriction and one that is permanent. Her comments on
the “fairness and justice” inquiry are, nevertheless,
instructive:
“Today’s holding does not mean that
the timing of the regulation’s
enactment relative to the acquisition of
title is immaterial to the Penn Central
analysis. Indeed, it would be just as
much error to expunge this
consideration from the takings inquiry
as it would be to accord it exclusive
significance. Our polestar instead
remains the principles set forth in Penn
Central itself and our other cases that
govern partial regulatory takings.
Under these cases, interference with
investment-backed expectations is one
of a number of factors that a court
must examine… .

property owner is deprived of all use for only five days. Such a scheme would
present an odd inversion of Justice Holmes’ adage: “A limit in time, to tide over a
passing trouble, well may justify a law that could not be upheld as a permanent
change.” Block v. Hirsh, 256 U. S. 135, 157 (1921).

563

“The Fifth Amendment forbids the
taking of private property for public
use without just compensation. We
have
recognized
that
this
constitutional guarantee is ’ “designed
to bar Government from forcing some
people alone to bear public burdens
which, in all fairness and justice,
should be borne by the public as a
whole.”’ Penn Central, [438 U. S.], at
123-124 (quoting Armstrong v. United
States, 364 U. S. 40, 49 (1960)). The
concepts of ‘fairness and justice’ that
underlie the Takings Clause, of course,
are less than fully determinate.
Accordingly, we have eschewed ‘any
“set formula” for determining when
“justice and fairness” require that
economic injuries caused by public
action be compensated by the
government, rather than remain
disproportionately concentrated on a
few persons.’ Penn Central, supra, at 124
(quoting Goldblatt v. Hempstead, 369 U.
S. 590, 594 (1962)). The outcome
instead ‘depends largely “upon the
particular circumstances [in that]
case.”’ Penn Central, supra, at 124
(quoting United States v. Central Eureka
Mining Co., 357 U. S. 155, 168 (1958)).”
Id., at 633.
In rejecting petitioners’ per se rule, we do not hold that the
temporary nature of a land-use restriction precludes finding
that it effects a taking; we simply recognize that it should
not be given exclusive significance one way or the other.
A narrower rule that excluded the normal delays associated
with processing permits, or that covered only delays of
more than a year, would certainly have a less severe impact

564

on prevailing practices, but it would still impose serious
financial constraints on the planning process.17 Unlike the
“extraordinary circumstance” in which the government
deprives a property owner of all economic use, Lucas, 505
U. S., at 1017, moratoria like Ordinance 81-5 and
Resolution 83–21 are used widely among land-use planners
to preserve the status quo while formulating a more
permanent development strategy.18 In fact, the consensus in
the planning community appears to be that moratoria, or
17 Petitioners fail to offer a persuasive explanation for why moratoria should be

treated differently from ordinary permit delays. They contend that a permit
applicant need only comply with certain specific requirements in order to receive
one and can expect to develop at the end of the process, whereas there is nothing
the landowner subject to a moratorium can do but wait, with no guarantee that a
permit will be granted at the end of the process. Brief for Petitioners 28. Setting
aside the obvious problem with basing the distinction on a course of events we can
only know after the fact–in the context of a facial challenge–petitioners’ argument
breaks down under closer examination because there is no guarantee that a permit
will be granted, or that a decision will be made within a year. See, e. g., Dufau v.
United States, 22 Cl. Ct. 156 (1990) (holding that 16-month delay in granting a
permit did not constitute a temporary taking). Moreover, under petitioners’
modified categorical rule, there would be no per se taking if TRPA simply delayed
action on all permits pending a regional plan. Fairness and justice do not require
that TRPA be penalized for achieving the same result, but with full disclosure.
18 See, e. g., Santa Fe Village Venture v. Albuquerque, 914 F. Supp. 478, 483 (N. M.

1995) (30-month moratorium on development of lands within the Petroglyph
National Monument was not a taking); Williams v. Central, 907 P. 2d 701, 703-706
(Colo. App. 1995) (10-month moratorium on development in gaming district while
studying city’s ability to absorb growth was not a compensable taking); Woodbury
Place Partners v. Woodbury, 492 N. W. 2d 258 (Minn. App. 1993) (moratorium
pending review of plan for land adjacent to interstate highway was not a taking
even though it deprived property owner of all economically viable use of its
property for two years); Zilber v. Moranga, 692 F. Supp. 1195 (ND Cal. 1988) (18month development moratorium during completion of a comprehensive scheme
for open space did not require compensation). See also Wayman, Leaders Consider
Options for Town Growth, Charlotte Observer, Feb. 3, 2002, p. 15M (describing
10-month building moratorium imposed “to give town leaders time to plan for
development”); Wallman, City May Put Reins on Beach Projects, Sun-Sentinel, May
16, 2000, p. 1B (2-year building moratorium on beach front property in Fort
Lauderdale pending new height, width, and dispersal regulations); Foderaro, In
Suburbs, They’re Cracking Down on the Joneses, N. Y. Times, Mar. 19, 2001, p.
A1 (describing moratorium imposed in Eastchester, New York, during a review of
the town’s zoning code to address the problem of oversized homes); Dawson,
Commissioners recommend Aboite construction ban be lifted, Fort Wayne News
Sentinel, May 4, 2001, p. 1A (3-year moratorium to allow improvements in the
water and sewage treatment systems).

565

“interim development controls” as they are often called, are
an essential tool of successful development.19 Yet even the
weak version of petitioners’ categorical rule would treat
these interim measures as takings regardless of the good
faith of the planners, the reasonable expectations of the
landowners, or the actual impact of the moratorium on
property values.20
The interest in facilitating informed decisionmaking by
regulatory agencies counsels against adopting a per se rule
that would impose such severe costs on their deliberations.
Otherwise, the financial constraints of compensating
property owners during a moratorium may force officials to
rush through the planning process or to abandon the
practice altogether. To the extent that communities are
forced to abandon using moratoria, landowners will have
incentives to develop their property quickly before a
comprehensive plan can be enacted, thereby fostering
inefficient and ill-conceived growth. A finding in the 1980
Compact itself, which presumably was endorsed by all three
legislative bodies that participated in its enactment, attests
to the importance of that concern. 94 Stat. 3243 (“The
19 See J. Juergensmeyer & T. Roberts, Land Use Planning and Control Law §§

5.28(G) and 9.6 (1998); Garvin & Leitner, Drafting Interim Development
Ordinances: Creating Time to Plan, 48 Land Use Law & Zoning Digest 3 (June
1996) (“With the planning so protected, there is no need for hasty adoption of
permanent controls in order to avoid the establishment of nonconforming uses, or
to respond in an ad hoc fashion to specific problems. Instead, the planning and
implementation process may be permitted to run its full and natural course with
widespread citizen input and involvement, public debate, and full consideration of
all issues and points of view”); Freilich, Interim Development Controls: Essential
Tools for Implementing Flexible Planning and Zoning, 49 J. Urb. L. 65 (1971).
20 The Chief Justice offers another alternative, suggesting that delays of six years or

more should be treated as per se takings. However, his dissent offers no explanation
for why 6 years should be the cutoff point rather than 10 days, 10 months, or 10
years. It is worth emphasizing that we do not reject a categorical rule in this case
because a 32-month moratorium is just not that harsh. Instead, we reject a
categorical rule because we conclude that the Penn Central framework adequately
directs the inquiry to the proper considerations–only one of which is the length of
the delay.

566

legislatures of the States of California and Nevada find that
in order to make effective the regional plan as revised by
the agency, it is necessary to halt temporarily works of
development in the region which might otherwise absorb
the entire capability of the region for further development
or direct it out of harmony with the ultimate plan”).
….
We would create a perverse system of incentives were we
to hold that landowners must wait for a takings claim to
ripen so that planners can make well-reasoned decisions
while, at the same time, holding that those planners must
compensate landowners for the delay.
Indeed, the interest in protecting the decisional process is
even stronger when an agency is developing a regional plan
than when it is considering a permit for a single parcel. In
the proceedings involving the Lake Tahoe Basin, for
example, the moratoria enabled TRPA to obtain the benefit
of comments and criticisms from interested parties, such as
the petitioners, during its deliberations.21 Since a categorical
rule tied to the length of deliberations would likely create
added pressure on decisionmakers to reach a quick
resolution of land-use questions, it would only serve to
disadvantage those landowners and interest groups who are
not as organized or familiar with the planning process.
Moreover, with a temporary ban on development there is a
lesser risk that individual landowners will be “singled out”
to bear a special burden that should be shared by the public
as a whole. Nollan v. California Coastal Comm’n, 483 U. S. 825,
835 (1987). At least with a moratorium there is a clear
21 Petitioner Preservation Council, “through its authorized representatives, actively

participated in the entire TRPA regional planning process leading to the adoption
of the 1984 Regional Plan at issue in this action, and attended and expressed its
views and concerns, orally and in writing, at each public hearing held by the
Defendant TRPA in connection with the consideration of the 1984 Regional Plan
at issue herein, as well as in connection with the adoption of Ordinance 81-5 and
the Revised 1987 Regional Plan addressed herein.” App. 24.

567

“reciprocity of advantage,” Mahon, 260 U. S., at 415,
because it protects the interests of all affected landowners
against immediate construction that might be inconsistent
with the provisions of the plan that is ultimately adopted.
“While each of us is burdened somewhat by such
restrictions, we, in turn, benefit greatly from the restrictions
that are placed on others.” Keystone, 480 U. S., at 491. In
fact, there is reason to believe property values often will
continue to increase despite a moratorium. See, e. g., Growth
Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218
(Md. 1976) (noting that land values could be expected to
increase 20% during a 5-year moratorium on development).
Cf. Forest Properties, Inc. v. United States, 177 F. 3d 1360, 1367
(CA Fed. 1999) (record showed that market value of the
entire parcel increased despite denial of permit to fill and
develop lake-bottom property). Such an increase makes
sense in this context because property values throughout
the Basin can be expected to reflect the added assurance
that Lake Tahoe will remain in its pristine state. Since in
some cases a 1-year moratorium may not impose a burden
at all, we should not adopt a rule that assumes moratoria
always force individuals to bear a special burden that
should be shared by the public as a whole.
It may well be true that any moratorium that lasts for more
than one year should be viewed with special skepticism. But
given the fact that the District Court found that the 32
months required by TRPA to formulate the 1984 Regional
Plan was not unreasonable, we could not possibly conclude
that every delay of over one year is constitutionally
unacceptable.22 Formulating a general rule of this kind is a

22 We note that the temporary restriction that was ultimately upheld in the First

English case lasted for more than six years before it was replaced by a permanent
regulation. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles,
210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989).

568

suitable task for state legislatures.23 In our view, the
duration of the restriction is one of the important factors
that a court must consider in the appraisal of a regulatory
takings claim, but with respect to that factor as with respect
to other factors, the “temptation to adopt what amount to
per se rules in either direction must be resisted.” Palazzolo,
533 U. S., at 636 (O’Connor, J., concurring). There may be
moratoria that last longer than one year which interfere
with reasonable investment-backed expectations, but as the
District Court’s opinion illustrates, petitioners’ proposed
rule is simply “too blunt an instrument” for identifying
those cases. Id., at 628. We conclude, therefore, that the
interest in “fairness and justice” will be best served by
relying on the familiar Penn Central approach when deciding
cases like this, rather than by attempting to craft a new
categorical rule.
Accordingly, the judgment of the Court of Appeals is
affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA
and JUSTICE THOMAS join, dissenting.

23 Several States already have statutes authorizing interim zoning ordinances with

specific time limits. See Cal. Govt. Code Ann. § 65858 (West Supp. 2002)
(authorizing interim ordinance of up to two years); Colo. Rev. Stat. § 30-28-121
(2001) (six months); Ky. Rev. Stat. Ann. § 100.201 (2001) (one year); Mich. Comp.
Laws Ann. § 125.215 (West 2001) (three years); Minn. Stat. § 394.34 (2000) (two
years); N. H. Rev. Stat. Ann. § 674:23 (West 2001) (one year); Ore. Rev. Stat. Ann.
§ 197.520 (1997) (10 months); S. D. Codified Laws § 11-2–10 (2001) (two years);
Utah Code Ann. § 17-27-404 (1995) (18 months); Wash. Rev. Code § 35.63.200
(2001); Wis. Stat. § 62.23(7)(d) (2001) (two years). Other States, although without
specific statutory authority, have recognized that reasonable interim zoning
ordinances may be enacted. See, e. g., S. E. W. Freil v. Triangle Oil Co., 76 Md. App.
96, 543 A. 2d 863 (1988); New Jersey Shore Builders Assn. v. Dover Twp. Comm., 191 N.
J. Super. 627, 468 A. 2d 742 (1983); SCA Chemical Waste Servs., Inc. v. Konigsberg, 636
S. W. 2d 430 (Tenn. 1982); Sturgess v. Chilmark, 380 Mass. 246, 402 N. E. 2d 1346
(1980); Lebanon v. Woods, 153 Conn. 182, 215 A. 2d 112 (1965).

569

For over half a decade petitioners were prohibited from
building homes, or any other structures, on their land.
Because the Takings Clause requires the government to pay
compensation when it deprives owners of all economically
viable use of their land, see Lucas v. South Carolina Coastal
Council, 505 U. S. 1003 (1992), and because a ban on all
development lasting almost six years does not resemble any
traditional land-use planning device, I dissent.
I
“A court cannot determine whether a regulation has gone
‘too far’ unless it knows how far the regulation goes.”
MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340,
348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U. S.
393, 415 (1922)).24 In failing to undertake this inquiry, the
Court ignores much of the impact of respondent’s conduct
on petitioners. Instead, it relies on the flawed determination
of the Court of Appeals that the relevant time period lasted
only from August 1981 until April 1984.
….
Because respondent caused petitioners’ inability to use their
land from 1981 through 1987, that is the appropriate period
of time from which to consider their takings claim.
24 We are not bound by the Court of Appeals’ determination that petitioners’ claim

under 42 U. S. C. § 1983 (1994 ed., Supp. V) permitted only challenges to
Ordinance 81-5 and Regulation 83-21. Petitioners sought certiorari on the Court of
Appeals’ ruling that respondent Tahoe Regional Planning Agency (hereinafter
respondent) did not cause petitioners’ injury from 1984 to 1987. Pet. for Cert. 2730. We did not grant certiorari on any of the petition’s specific questions presented,
but formulated the following question: “Whether the Court of Appeals properly
determined that a temporary moratorium on land development does not constitute
a taking of property requiring compensation under the Takings Clause of the
United States Constitution?” 533 U. S. 948-949 (2001). This Court’s Rule 14(1)(a)
provides that a “question presented is deemed to comprise every subsidiary
question fairly included therein.” The question of how long the moratorium on
land development lasted is necessarily subsumed within the question whether the
moratorium constituted a taking. Petitioners did not assume otherwise. Their brief
on the merits argues that respondent “effectively blocked all construction for the
past two decades.” Brief for Petitioners 7.

570

II
I now turn to determining whether a ban on all economic
development lasting almost six years is a taking. Lucas
reaffirmed our “frequently expressed” view that “when the
owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has
suffered a taking.” 505 U. S., at 1019. See also Agins v. City
of Tiburon, 447 U. S. 255, 258-259 (1980). The District
Court in this case held that the ordinances and resolutions
in effect between August 24, 1981, and April 25, 1984, “did
in fact deny the plaintiffs all economically viable use of
their land.” 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The
Court of Appeals did not overturn this finding. And the
1984 injunction, issued because the environmental
thresholds issued by respondent did not permit the
development of single-family residences, forced petitioners
to leave their land economically idle for at least another
three years. The Court does not dispute that petitioners
were forced to leave their land economically idle during this
period. See ante, at 312. But the Court refuses to apply
Lucas on the ground that the deprivation was “temporary.”
Neither the Takings Clause nor our case law supports such
a distinction. For one thing, a distinction between
“temporary” and “permanent” prohibitions is tenuous. The
“temporary” prohibition in this case that the Court finds is
not a taking lasted almost six years.25 The “permanent”
prohibition that the Court held to be a taking in Lucas
lasted less than two years. See 505 U. S., at 1011-1012. The
“permanent” prohibition in Lucas lasted less than two years
because the law, as it often does, changed. The South
Carolina Legislature in 1990 decided to amend the 1988
Beach front Management Act to allow the issuance of
25 Even under the Court’s mistaken view that the ban on development lasted only

32 months, the ban in this case exceeded the ban in Lucas.

571

“‘special permits’ for the construction or reconstruction of
habitable structures seaward of the baseline.” Id., at 10111012. Landuse regulations are not irrevocable. And the
government can even abandon condemned land. See United
States v. Dow, 357 U. S. 17, 26 (1958). Under the Court’s
decision today, the takings question turns entirely on the
initial label given a regulation, a label that is often without
much meaning. There is every incentive for government to
simply label any prohibition on development “temporary,”
or to fix a set number of years. As in this case, this initial
designation does not preclude the government from
repeatedly extending the “temporary” prohibition into a
long-term ban on all development. The Court now holds
that such a designation by the government is conclusive
even though in fact the moratorium greatly exceeds the
time initially specified. Apparently, the Court would not
view even a 10-year moratorium as a taking under Lucas
because the moratorium is not “permanent.”
Our opinion in First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U. S. 304 (1987), rejects
any distinction between temporary and permanent takings
when a landowner is deprived of all economically beneficial
use of his land. First English stated that “‘temporary takings
which, as here, deny a landowner all use of his property, are
not different in kind from permanent takings, for which the
Constitution clearly requires compensation.” Id., at 318.
Because of First English ‘s rule that “temporary deprivations
of use are compensable under the Takings Clause,” the
Court in Lucas found nothing problematic about the later
developments that potentially made the ban on
development temporary. 505 U. S., at 1011-1012 (citing
First English, supra ); see also 505 U. S., at 1033 (Kennedy, J.,
concurring in judgment) (“It is well established that
temporary takings are as protected by the Constitution as
are permanent ones” (citing First English, supra, at 318)).

572

More fundamentally, even if a practical distinction between
temporary and permanent deprivations were plausible, to
treat the two differently in terms of takings law would be at
odds with the justification for the Lucas rule. The Lucas rule
is derived from the fact that a “total deprivation of
beneficial use is, from the landowner’s point of view, the
equivalent of a physical appropriation.” 505 U. S., at 1017.
The regulation in Lucas was the “practical equivalence” of a
long-term physical appropriation, i. e., a condemnation, so
the Fifth Amendment required compensation. The
“practical equivalence,” from the landowner’s point of
view, of a “temporary” ban on all economic use is a forced
leasehold. For example, assume the following situation:
Respondent is contemplating the creation of a National
Park around Lake Tahoe to preserve its scenic beauty.
Respondent decides to take a 6-year leasehold over
petitioners’ property, during which any human activity on
the land would be prohibited, in order to prevent any
further destruction to the area while it was deciding
whether to request that the area be designated a National
Park.
Surely that leasehold would require compensation. In a
series of World War II-era cases in which the Government
had condemned leasehold interests in order to support the
war effort, the Government conceded that it was required
to pay compensation for the leasehold interest.26 See United
States v. Petty Motor Co., 327 U. S. 372 (1946); United States v.
General Motors Corp., 323 U. S. 373, 376 (1945). From
26 There was no dispute that just compensation was required in those cases. The

disagreement involved how to calculate that compensation. In United States v.
General Motors Corp., 323 U. S. 373 (1945), for example, the issues before the Court
were how to value the leasehold interest (i. e., whether the “long-term rental value
[should be] the sole measure of the value of such short-term occupancy,” id., at
380), whether the Government had to pay for the respondent’s removal of
personal property from the condemned warehouse, and whether the Government
had to pay for the reduction in value of the respondent’s equipment and fixtures
left in the warehouse. Id., at 380-381.

573

petitioners’ standpoint, what happened in this case is no
different than if the government had taken a 6-year lease of
their property. The Court ignores this “practical
equivalence” between respondent’s deprivation and the
deprivation resulting from a leasehold. In so doing, the
Court allows the government to “do by regulation what it
cannot do through eminent domain–i. e., take private
property without paying for it.” 228 F. 3d 998, 999 (CA9
2000) (Kozinski, J., dissenting from denial of rehearing en
banc).
Instead of acknowledging the “practical equivalence” of
this case and a condemned leasehold, the Court analogizes
to other areas of takings law in which we have
distinguished
between
regulations
and
physical
appropriations, see ante, at 321-324. But whatever basis
there is for such distinctions in those contexts does not
apply when a regulation deprives a landowner of all
economically beneficial use of his land. In addition to the
“practical equivalence” from the landowner’s perspective of
such a regulation and a physical appropriation, we have
held that a regulation denying all productive use of land
does not implicate the traditional justification for
differentiating between regulations and physical
appropriations. In “the extraordinary circumstance when no
productive or economically beneficial use of land is
permitted,” it is less likely that “the legislature is simply
‘adjusting the benefits and burdens of economic life’ … in
a manner that secures an ‘average reciprocity of advantage’
to everyone concerned,” Lucas, supra, at 1017-1018 (quoting
Penn Central Transp. Co. v. New York City, 438 U. S., at 124,
and Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415), and
more likely that the property “is being pressed into some
form of public service under the guise of mitigating serious
public harm,” Lucas, supra, at 1018.
The Court also reads Lucas as being fundamentally
concerned with value, ante, at 329-331, rather than with the

574

denial of “all economically beneficial or productive use of
land,” 505 U. S., at 1015. But Lucas repeatedly discusses its
holding as applying where ”no productive or economically
beneficial use of land is permitted.” Id., at 1017; see also
ibid. (“[T]otal deprivation of beneficial use is, from the
landowner’s point of view, the equivalent of a physical
appropriation”); id., at 1016 (“[T]he Fifth Amendment is
violated when land-use regulation … denies an owner
economically viable use of his land”); id., at 1018 (“[T]he functional
basis for permitting the government, by regulation, to
affect property values without compensation … does not
apply to the relatively rare situations where the government
has deprived a landowner of all economically beneficial
uses”); ibid. (“[T]he fact that regulations that leave the
owner of land without economically beneficial or
productive options for its use … carry with them a
heightened risk that private property is being pressed into
some form of public service”); id., at 1019 (“[W]hen the
owner of real property has been called upon to sacrifice all
economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has
suffered a taking”). Moreover, the Court’s position that
value is the sine qua non of the Lucas rule proves too much.
Surely, the land at issue in Lucas retained some market value
based on the contingency, which soon came to fruition (see
supra, at 347), that the development ban would be amended.
Lucas is implicated when the government deprives a
landowner of “all economically beneficial or productive use
of land.” 505 U. S., at 1015. The District Court found, and
the Court agrees, that the moratorium “temporarily”
deprived petitioners of “‘all economically viable use of their
land.’ ” Ante, at 316. Because the rationale for the Lucas rule
applies just as strongly in this case, the “temporary” denial
of all viable use of land for six years is a taking.

575

III
The Court worries that applying Lucas here compels finding
that an array of traditional, short-term, land-use planning
devices are takings. Ante, at 334-335, 337-338. But since the
beginning of our regulatory takings jurisprudence, we have
recognized that property rights “are enjoyed under an
implied limitation.” Mahon, supra, at 413.
….
But a moratorium prohibiting all economic use for a period
of six years is not one of the longstanding, implied
limitations of state property law.27 Moratoria are “interim
controls on the use of land that seek to maintain the status
quo with respect to land development in an area by either
‘freezing’ existing land uses or by allowing the issuance of
building permits for only certain land uses that would not
be inconsistent with a contemplated zoning plan or zoning
change.” 1 E. Ziegler, Rathkopf’s The Law of Zoning and
Planning § 13:3, p. 13-6 (4th ed. 2001). Typical moratoria
thus prohibit only certain categories of development, such
as fast-food restaurants, see Schafer v. New Orleans, 743 F. 2d
1086 (CA5 1984), or adult businesses, see Renton v. Playtime
Theatres, Inc., 475 U. S. 41 (1986), or all commercial
development, see Arnold Bernhard & Co. v. Planning &
Zoning Comm’n, 194 Conn. 152, 479 A. 2d 801 (1984). Such
moratoria do not implicate Lucas because they do not
deprive landowners of all economically beneficial use of
their land. As for moratoria that prohibit all development,
these do not have the lineage of permit and zoning
27 Six years is not a “cutoff point,” ante, at 338, n. 34; it is the length involved in this

case. And the “explanation” for the conclusion that there is a taking in this case is
the fact that a 6-year moratorium far exceeds any moratorium authorized under
background principles of state property law. See infra, at 353-354. This case does
not require us to undertake a more exacting study of state property law and discern
exactly how long a moratorium must last before it no longer can be considered an
implied limitation of property ownership (assuming, that is, that a moratorium on
all development is a background principle of state property law, see infra, at 353).

576

requirements and thus it is less certain that property is
acquired under the “implied limitation” of a moratorium
prohibiting all development. Moreover, unlike a permit
system in which it is expected that a project will be
approved so long as certain conditions are satisfied, a
moratorium that prohibits all uses is by definition
contemplating a new land-use plan that would prohibit all
uses.
But this case does not require us to decide as a categorical
matter whether moratoria prohibiting all economic use are
an implied limitation of state property law, because the
duration of this “moratorium” far exceeds that of ordinary
moratoria. As the Court recognizes, ante, at 342, n. 37, state
statutes authorizing the issuance of moratoria often limit
the moratoria’s duration. California, where much of the
land at issue in this case is located, provides that a
moratorium “shall be of no further force and effect 45 days
from its date of adoption,” and caps extension of the
moratorium so that the total duration cannot exceed two
years. Cal. Govt. Code Ann. § 65858(a) (West Supp. 2002);
see also Minn. Stat. § 462.355, subd. 4 (2000) (limiting
moratoria to 18 months, with one permissible extension,
for a total of two years). Another State limits moratoria to
120 days, with the possibility of a single 6-month extension.
Ore. Rev. Stat. Ann. § 197.520(4) (1997). Others limit
moratoria to six months without any possibility of an
extension. See Colo. Rev. Stat. § 30-28-121 (2001); N. J.
Stat. Ann. § 40:55D-90(b) (1991).28 Indeed, it has long been
understood that moratoria on development exceeding these
short time periods are not a legitimate planning device. See,

28 These are just some examples of the state laws limiting the duration of moratoria.

There are others. See, e. g., Utah Code Ann. §§ 17-27– 404(3)(b)(i)–(ii) (1995)
(temporary prohibitions on development “may not exceed six months in duration,”
with the possibility of extensions for no more than “two additional six-month
periods”). See also ante, at 337, n. 31.

577

e. g., Holdsworth v. Hague, 9 N. J. Misc. 715, 155 A. 892
(1931).
Resolution 83-21 reflected this understanding of the limited
duration of moratoria in initially limiting the moratorium in
this case to 90 days. But what resulted–a “moratorium”
lasting nearly six years–bears no resemblance to the shortterm nature of traditional moratoria as understood from
these background examples of state property law.
Because the prohibition on development of nearly six years
in this case cannot be said to resemble any “implied
limitation” of state property law, it is a taking that requires
compensation.
***
Lake Tahoe is a national treasure, and I do not doubt that
respondent’s efforts at preventing further degradation of
the lake were made in good faith in furtherance of the
public interest. But, as is the case with most governmental
action that furthers the public interest, the Constitution
requires that the costs and burdens be borne by the public
at large, not by a few targeted citizens. Justice Holmes’
admonition of 80 years ago again rings true: “We are in
danger of forgetting that a strong public desire to improve
the public condition is not enough to warrant achieving the
desire by a shorter cut than the constitutional way of paying
for the change.” Mahon, 260 U. S., at 416.
Lingle, Governor of Hawaii, et al. v. Chevron U.S.A.
Inc.
544 U.S. 528 (2005)
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT.
Mark J. Bennett, Attorney General of Hawaii, argued the
cause for petitioners. With him on the briefs were Michael
L. Meaney, Deputy Attorney General, Seth P. Waxman, Paul
R. Q. Wolfson, Robert G. Dreher, and John D. Echeverria.

578

Deputy Solicitor General Kneedler argued the cause for the
United States as amicus curiae in support of petitioners. With
him on the brief were Acting Solicitor General Clement,
Assistant Attorney General Keisler, Malcolm L. Stewart, Mark B.
Stern, and Sharon Swingle.
Craig E. Stewart argued the cause for respondent. With him
on the brief were Donald B. Ayer, Michael S. Fried, and Louis
K. Fisher.
JUSTICE O'CONNOR delivered the opinion of the Court.
On occasion, a would-be doctrinal rule or test finds its way
into our case law through simple repetition of a phrase –
however fortuitously coined. A quarter century ago, in
Agins v. City of Tiburon, 447 U. S. 255 (1980), the Court
declared that government regulation of private property
“effects a taking if [such regulation] does not substantially
advance legitimate state interests… .” Id., at 260. Through
reiteration in a half dozen or so decisions since Agins, this
language has been ensconced in our Fifth Amendment
takings jurisprudence. See Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U. S. 687, 704 (1999) (citing cases).
In the case before us, the lower courts applied Agins’
“substantially advances” formula to strike down a Hawaii
statute that limits the rent that oil companies may charge to
dealers who lease service stations owned by the companies.
The lower courts held that the rent cap effects an
uncompensated taking of private property in violation of
the Fifth and Fourteenth Amendments because it does not
substantially advance Hawaii’s asserted interest in
controlling retail gasoline prices. This case requires us to
decide whether the “substantially advances” formula
announced in Agins is an appropriate test for determining
whether a regulation effects a Fifth Amendment taking. We
conclude that it is not.
….

579

II
A
The Takings Clause of the Fifth Amendment, made
applicable to the States through the Fourteenth, see Chicago,
B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), provides
that private property shall not “be taken for public use,
without just compensation.” As its text makes plain, the
Takings Clause “does not prohibit the taking of private
property, but instead places a condition on the exercise of
that power.” First English Evangelical Lutheran Church of
Glendale v. County of Los Angeles, 482 U. S. 304, 314 (1987).
In other words, it “is designed not to limit the
governmental interference with property rights per se, but
rather to secure compensation in the event of otherwise
proper interference amounting to a taking.” Id., at 315
(emphasis in original). While scholars have offered various
justifications for this regime, we have emphasized its role in
“bar[ring] Government from forcing some people alone to
bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” Armstrong v.
United States, 364 U.S. 40, 49 (1960); see also Monongahela
Nav. Co. v. United States, 148 U. S. 312, 325 (1893).
The paradigmatic taking requiring just compensation is a
direct government appropriation or physical invasion of
private property. See, e.g., United States v. Pewee Coal Co., 341
U. S. 114 (1951) (Government’s seizure and operation of a
coal mine to prevent a national strike of coal miners
effected a taking); United States v. General Motors Corp., 323
U. S. 373 (1945) (Government’s occupation of private
warehouse effected a taking). Indeed, until the Court’s
watershed decision in Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393 (1922), “it was generally thought that the Takings
Clause reached only a ‘direct appropriation’ of property, or
the functional equivalent of a ‘practical ouster of [the
owner’s] possession.’” Lucas v. South Carolina Coastal Council,
505 U. S. 1003, 1014 (1992)(citations omitted and emphasis

580

added; brackets in original); see also id., at 1028, n. 15
(“[E]arly constitutional theorists did not believe the Takings
Clause embraced regulations of property at all”).
Beginning with Mahon, however, the Court recognized that
government regulation of private property may, in some
instances, be so onerous that its effect is tantamount to a
direct appropriation or ouster – and that such “regulatory
takings” may be compensable under the Fifth Amendment.
In Justice Holmes’ storied but cryptic formulation, “while
property may be regulated to a certain extent, if regulation
goes too far it will be recognized as a taking.” 260 U. S., at
415. The rub, of course, has been – and remains – how to
discern how far is “too far.” In answering that question, we
must remain cognizant that “government regulation – by
definition – involves the adjustment of rights for the public
good,” Andrus v. Allard, 444 U. S. 51, 65 (1979), and that
“Government hardly could go on if to some extent values
incident to property could not be diminished without
paying for every such change in the general law,” Mahon,
supra, at 413.
Our precedents stake out two categories of regulatory
action that generally will be deemed per se takings for Fifth
Amendment purposes. First, where government requires an
owner to suffer a permanent physical invasion of her
property – however minor – it must provide just
compensation. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419 (1982) (state law requiring landlords to
permit cable companies to install cable facilities in
apartment buildings effected a taking). A second categorical
rule applies to regulations that completely deprive an owner
of ”all economically beneficial us[e]” of her property. Lucas,
505 U. S., at 1019 (emphasis in original). We held in Lucas
that the government must pay just compensation for such
“total regulatory takings,” except to the extent that
“background principles of nuisance and property law”

581

independently restrict the owner’s intended use of the
property. Id., at 1026-1032.
Outside these two relatively narrow categories (and the
special context of land-use exactions discussed below, see
infra, at 546-548), regulatory takings challenges are
governed by the standards set forth in Penn Central Transp.
Co. v. New York City, 438 U. S. 104 (1978). The Court in
Penn Central acknowledged that it had hitherto been “unable
to develop any ‘set formula’” for evaluating regulatory
takings claims, but identified “several factors that have
particular significance.” Id., at 124. Primary among those
factors are “[t]he economic impact of the regulation on the
claimant and, particularly, the extent to which the
regulation has interfered with distinct investment-backed
expectations.” Ibid. In addition, the “character of the
governmental action” – for instance whether it amounts to
a physical invasion or instead merely affects property
interests through “some public program adjusting the
benefits and burdens of economic life to promote the
common good” – may be relevant in discerning whether a
taking has occurred. Ibid. The Penn Central factors – though
each has given rise to vexing subsidiary questions – have
served as the principal guidelines for resolving regulatory
takings claims that do not fall within the physical takings or
Lucas rules. See, e. g., Palazzolo v. Rhode Island, 533 U. S. 606,
617-618 (2001); id., at 632-634 (O’CONNOR, J.,
concurring).
Although our regulatory takings jurisprudence cannot be
characterized as unified, these three inquiries (reflected in
Loretto, Lucas, and Penn Central) share a common
touchstone. Each aims to identify regulatory actions that
are functionally equivalent to the classic taking in which
government directly appropriates private property or ousts
the owner from his domain. Accordingly, each of these
tests focuses directly upon the severity of the burden that
government imposes upon private property rights. The

582

Court has held that physical takings require compensation
because of the unique burden they impose: A permanent
physical invasion, however minimal the economic cost it
entails, eviscerates the owner’s right to exclude others from
entering and using her property – perhaps the most
fundamental of all property interests. See Dolan v. City of
Tigard, 512 U. S. 374, 384 (1994); Nollan v. California Coastal
Comm’n, 483 U. S. 825, 831-832 (1987); Loretto, supra, at 433;
Kaiser Aetna v. United States, 444 U. S. 164, 176 (1979). In the
Lucas context, of course, the complete elimination of a
property’s value is the determinative factor. See Lucas, supra,
at 1017 (positing that “total deprivation of beneficial use is,
from the landowner’s point of view, the equivalent of a
physical appropriation”). And the Penn Central inquiry turns
in large part, albeit not exclusively, upon the magnitude of a
regulation’s economic impact and the degree to which it
interferes with legitimate property interests.
B
In Agins v. City of Tiburon, a case involving a facial takings
challenge to certain municipal zoning ordinances, the Court
declared that “[t]he application of a general zoning law to
particular property effects a taking if the ordinance does
not substantially advance legitimate state interests, see
Nectow v. Cambridge, 277 U. S. 183, 188 (1928), or denies an
owner economically viable use of his land, see Penn Central
Transp. Co. v. New York City, 438 U. S. 104, 138, n. 36
(1978).” 447 U. S., at 260. Because this statement is phrased
in the disjunctive, Agins’ “substantially advances” language
has been read to announce a stand-alone regulatory takings
test that is wholly independent of Penn Central or any other
test. Indeed, the lower courts in this case struck down
Hawaii’s rent control statute based solely upon their
findings that it does not substantially advance a legitimate
state interest. See supra, at 534, 536. Although a number of
our takings precedents have recited the “substantially
advances” formula minted in Agins, this is our first

583

opportunity to consider its validity as a freestanding takings
test. We conclude that this formula prescribes an inquiry in
the nature of a due process, not a takings, test, and that it
has no proper place in our takings jurisprudence.
There is no question that the “substantially advances”
formula was derived from due process, not takings,
precedents. In support of this new language, Agins cited
Nectow v. Cambridge, 277 U. S. 183, a 1928 case in which the
plaintiff claimed that a city zoning ordinance “deprived him
of his property without due process of law in contravention
of the Fourteenth Amendment,” id., at 185. Agins then
went on to discuss Village of Euclid v. Ambler Realty Co., 272
U. S. 365 (1926), a historic decision holding that a
municipal zoning ordinance would survive a substantive
due process challenge so long as it was not “clearly
arbitrary and unreasonable, having no substantial relation to
the public health, safety, morals, or general welfare.” Id., at 395
(emphasis added); see also Nectow, supra, at 187-188
(quoting the same “substantial relation” language from
Euclid).
When viewed in historical context, the Court’s reliance on
Nectow and Euclid is understandable. Agins was the Court’s
first case involving a challenge to zoning regulations in
many decades, so it was natural to turn to these seminal
zoning precedents for guidance. See Brief for United States
as Amicus Curiae in Agins v. City of Tiburon, O. T. 1979, No.
79-602, pp. 12-13 (arguing that Euclid “set out the
principles applicable to a determination of the facial validity
of a zoning ordinance attacked as a violation of the Takings
Clause of the Fifth Amendment”). Moreover, Agins’
apparent commingling of due process and takings inquiries
had some precedent in the Court’s then-recent decision in
Penn Central. See 438 U. S., at 127 (stating in dicta that “[i]t
is … implicit in Goldblatt [v. Hempstead, 369 U. S. 590
(1962),] that a use restriction on real property may
constitute a ‘taking’ if not reasonably necessary to the

584

effectuation of a substantial public purpose, see Nectow v.
Cambridge, supra”). But see Goldblatt v. Hempstead, 369 U. S.
590, 594-595 (1962) (quoting “‘reasonably necessary’”
language from Lawton v. Steele, 152 U. S. 133, 137 (1894), a
due process case, and applying a deferential
“‘reasonableness’” standard to determine whether a
challenged regulation was a “valid exercise of the … police
power” under the Due Process Clause). Finally, when Agins
was decided, there had been some history of referring to
deprivations of property without due process of law as
“takings,” see, e. g., Rowan v. Post Office Dept., 397 U. S. 728,
740 (1970), and the Court had yet to clarify whether
“regulatory takings” claims were properly cognizable under
the Takings Clause or the Due Process Clause, see
Williamson County Regional Planning Comm’n v. Hamilton Bank
of Johnson City, 473 U. S. 172, 197-199 (1985).
Although Agins’ reliance on due process precedents is
understandable, the language the Court selected was
regrettably imprecise. The “substantially advances” formula
suggests a means-ends test: It asks, in essence, whether a
regulation of private property is effective in achieving some
legitimate public purpose. An inquiry of this nature has
some logic in the context of a due process challenge, for a
regulation that fails to serve any legitimate governmental
objective may be so arbitrary or irrational that it runs afoul
of the Due Process Clause. See, e. g., County of Sacramento v.
Lewis, 523 U. S. 833, 846 (1998)(stating that the Due
Process Clause is intended, in part, to protect the individual
against “the exercise of power without any reasonable
justification in the service of a legitimate governmental
objective”). But such a test is not a valid method of
discerning whether private property has been “taken” for
purposes of the Fifth Amendment.
In stark contrast to the three regulatory takings tests
discussed above, the “substantially advances” inquiry
reveals nothing about the magnitude or character of the burden a

585

particular regulation imposes upon private property rights.
Nor does it provide any information about how any
regulatory burden is distributed among property owners. In
consequence, this test does not help to identify those
regulations whose effects are functionally comparable to
government appropriation or invasion of private property;
it is tethered neither to the text of the Takings Clause nor
to the basic justification for allowing regulatory actions to
be challenged under the Clause.
Chevron appeals to the general principle that the Takings
Clause is meant “‘to bar Government from forcing some
people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.’”
Brief for Respondent 17-21 (quoting Armstrong, 364 U. S.,
at 49). But that appeal is clearly misplaced, for the reasons
just indicated. A test that tells us nothing about the actual
burden imposed on property rights, or how that burden is
allocated, cannot tell us when justice might require that the
burden be spread among taxpayers through the payment of
compensation. The owner of a property subject to a
regulation that effectively serves a legitimate state interest may
be just as singled out and just as burdened as the owner of
a property subject to an ineffective regulation. It would make
little sense to say that the second owner has suffered a
taking while the first has not. Likewise, an ineffective
regulation may not significantly burden property rights at
all, and it may distribute any burden broadly and evenly
among property owners. The notion that such a regulation
nevertheless “takes” private property for public use merely
by virtue of its ineffectiveness or foolishness is untenable.
Instead of addressing a challenged regulation’s effect on
private property, the “substantially advances” inquiry
probes the regulation’s underlying validity. But such an
inquiry is logically prior to and distinct from the question
whether a regulation effects a taking, for the Takings Clause
presupposes that the government has acted in pursuit of a

586

valid public purpose. The Clause expressly requires
compensation where government takes private property
”for public use.” It does not bar government from interfering
with property rights, but rather requires compensation “in
the event of otherwise proper interference amounting to a
taking.” First English Evangelical Lutheran Church, 482 U. S., at
315 (emphasis added). Conversely, if a government action
is found to be impermissible – for instance because it fails
to meet the “public use” requirement or is so arbitrary as to
violate due process – that is the end of the inquiry. No
amount of compensation can authorize such action.
Chevron’s challenge to the Hawaii statute in this case
illustrates the flaws in the “substantially advances” theory.
To begin with, it is unclear how significantly Hawaii’s rent
cap actually burdens Chevron’s property rights. The parties
stipulated below that the cap would reduce Chevron’s
aggregate rental income on 11 of its 64 lessee-dealer
stations by about $207,000 per year, but that Chevron
nevertheless expects to receive a return on its investment in
these stations that satisfies any constitutional standard. See
supra, at 534. Moreover, Chevron asserted below, and the
District Court found, that Chevron would recoup any
reductions in its rental income by raising wholesale gasoline
prices. See supra, at 535. In short, Chevron has not clearly
argued – let alone established – that it has been singled out
to bear any particularly severe regulatory burden. Rather,
the gravamen of Chevron’s claim is simply that Hawaii’s
rent cap will not actually serve the State’s legitimate interest
in protecting consumers against high gasoline prices.
Whatever the merits of that claim, it does not sound under
the Takings Clause. Chevron plainly does not seek
compensation for a taking of its property for a legitimate
public use, but rather an injunction against the enforcement
of a regulation that it alleges to be fundamentally arbitrary
and irrational.

587

Finally, the “substantially advances” formula is not only
doctrinally untenable as a takings test – its application as such
would also present serious practical difficulties. The Agins
formula can be read to demand heightened means-ends
review of virtually any regulation of private property. If so
interpreted, it would require courts to scrutinize the
efficacy of a vast array of state and federal regulations – a
task for which courts are not well suited. Moreover, it
would empower – and might often require – courts to
substitute their predictive judgments for those of elected
legislatures and expert agencies.
Although the instant case is only the tip of the proverbial
iceberg, it foreshadows the hazards of placing courts in this
role. To resolve Chevron’s takings claim, the District Court
was required to choose between the views of two opposing
economists as to whether Hawaii’s rent control statute
would help to prevent concentration and supracompetitive
prices in the State’s retail gasoline market. Finding one
expert to be “more persuasive” than the other, the court
concluded that the Hawaii Legislature’s chosen regulatory
strategy would not actually achieve its objectives. See 198 F.
Supp. 2d, at 1187-1193. The court determined that there
was no evidence that oil companies had charged, or would
charge, excessive rents. See id., at 1191. Based on this and
other findings, the District Court enjoined further
enforcement of Act 257’s rent cap provision against
Chevron. We find the proceedings below remarkable, to
say the least, given that we have long eschewed such
heightened scrutiny when addressing substantive due
process challenges to government regulation. See, e. g.,
Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 124-125
(1978); Ferguson v. Skrupa, 372 U. S. 726, 730-732 (1963).
The reasons for deference to legislative judgments about
the need for, and likely effectiveness of, regulatory actions
are by now well established, and we think they are no less
applicable here.

588

For the foregoing reasons, we conclude that the
“substantially advances” formula announced in Agins is not
a valid method of identifying regulatory takings for which
the Fifth Amendment requires just compensation. Since
Chevron argued only a “substantially advances” theory in
support of its takings claim, it was not entitled to summary
judgment on that claim.
….
***
Twenty-five years ago, the Court posited that a regulation
of private property “effects a taking if [it] does not
substantially advance [a] legitimate state interes[t].” Agins,
447 U. S., at 260. The lower courts in this case took that
statement to its logical conclusion, and in so doing,
revealed its imprecision. Today we correct course. We hold
that the “substantially advances” formula is not a valid
takings test, and indeed conclude that it has no proper
place in our takings jurisprudence. In so doing, we reaffirm
that a plaintiff seeking to challenge a government regulation
as an uncompensated taking of private property may
proceed under one of the other theories discussed above –
by alleging a “physical” taking, a Lucas-type “total
regulatory taking,” a Penn Central taking, or a land-use
exaction violating the standards set forth in Nollan and
Dolan. Because Chevron argued only a “substantially
advances” theory in support of its takings claim, it was not
entitled to summary judgment on that claim. Accordingly,
we reverse the judgment of the Ninth Circuit and remand
the case for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KENNEDY, concurring.
This separate writing is to note that today’s decision does
not foreclose the possibility that a regulation might be so

589

arbitrary or irrational as to violate due process. Eastern
Enterprises v. Apfel, 524 U. S. 498, 539 (1998) (KENNEDY,
J., concurring in judgment and dissenting in part). The
failure of a regulation to accomplish a stated or obvious
objective would be relevant to that inquiry. Chevron
voluntarily dismissed its due process claim without
prejudice, however, and we have no occasion to consider
whether Act 257 of the 1997 Hawaii Session Laws
“represents one of the rare instances in which even such a
permissive standard has been violated.” Apfel, supra, at 550.
With these observations, I join the opinion of the Court.
4.4. Procedural Issues
Williamson County Regional Planning Commission et
al. v. Hamilton Bank of Johnson City
473 U.S. 172 (1985)
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Robert L. Estes argued the cause for petitioners. With him
on the brief was M. Milton Sweeney.
Edwin S. Kneedler argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were
Solicitor General Lee, Assistant Attorney General Habicht, Deputy
Solicitor General Claiborne, and David C. Shilton.
G. T. Nebel argued the cause for respondent. With him on
the brief was Gus Bauman.
JUSTICE BLACKMUN delivered the opinion of the Court.
Respondent, the owner of a tract of land it was developing
as a residential subdivision, sued petitioners, the Williamson
County (Tennessee) Regional Planning Commission and its
members and staff, in United States District Court, alleging
that petitioners’ application of various zoning laws and
regulations to respondent’s property amounted to a
“taking” of that property. At trial, the jury agreed and

590

awarded respondent $350,000 as just compensation for the
“taking.” Although the jury’s verdict was rejected by the
District Court, which granted a judgment notwithstanding
the verdict to petitioners, the verdict was reinstated on
appeal. Petitioners and their amici urge this Court to
overturn the jury’s award on the ground that a temporary
regulatory interference with an investor’s profit expectation
does not constitute a “taking” within the meaning of the
Just Compensation Clause of the Fifth Amendment,1 or,
alternatively, on the ground that even if such interference
does constitute a taking, the Just Compensation Clause
does not require money damages as recompense. Before we
reach those contentions, we examine the procedural
posture of respondent’s claim.
I
A
Under Tennessee law, responsibility for land-use planning
is divided between the legislative body of each of the State’s
counties and regional and municipal “planning
commissions.” The county legislative body is responsible
for zoning ordinances to regulate the uses to which
particular land and buildings may be put, and to control the
density of population and the location and dimensions of
buildings. Tenn. Code Ann. § 13-7-101 (1980). The
planning commissions are responsible for more specific
regulations governing the subdivision of land within their
region or municipality for residential development. §§ 13-3403, 13-4-303. Enforcement of both the zoning ordinances
and the subdivision regulations is accomplished in part
through a requirement that the planning commission
1 “[N]or shall private property be taken for public use, without just compensation.”

The Fifth Amendment’s prohibition, of course, applies against the States through
the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241
(1897); see also San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 623, n. 1
(1981).

591

approve the plat of a subdivision before the plat may be
recorded. §§ 13-3-402, 13-4-302 (1980 and Supp. 1984).
Pursuant to § 13-7-101, the Williamson County “Quarterly
Court,” which is the county’s legislative body, in 1973
adopted a zoning ordinance that allowed “cluster”
development of residential areas. Under “cluster” zoning,
both the size and the width of
individual residential lots in … [a]
development may be reduced,
provided … that the overall density of
the entire tract remains constant –
provided, that is, that an area
equivalent to the total of the areas thus
‘saved’ from each individual lot is
pooled and retained as common open
space.
2 N. Williams, American Land Planning Law § 47.01, pp.
212-213 (1974).
Cluster zoning thus allows housing units to be grouped, or
“clustered” together, rather than being evenly spaced on
uniform lots.
As required by § 13-3-402, respondent’s predecessor-ininterest (developer) in 1973 submitted a preliminary plat for
the cluster development of its tract, the Temple Hills
Country Club Estates (Temple Hills), to the Williamson
County Regional Planning Commission for approval. At
that time, the county’s zoning ordinance and the
Commission’s subdivision regulations required developers
to seek review and approval of subdivision plats in two
steps. The developer first was to submit for approval a
preliminary plat, or “initial sketch plan,” indicating, among
other things, the boundaries and acreage of the site, the
number of dwelling units and their basic design, the
location of existing and proposed roads, structures, lots,
utility layouts, and open space, and the contour of the land.

592

App. in No. 82-5388 (CA6), pp. 857, 871 (CA App.). Once
approved, the preliminary plat served as a basis for the
preparation of a final plat. Under the Commission’s
regulations, however, approval of a preliminary plat “will
not constitute acceptance of the final plat.” Id., at 872.
Approval of a preliminary plat lapsed if a final plat was not
submitted within one year of the date of the approval,
unless the Commission granted an extension of time, or
unless the approval of the preliminary plat was renewed.
Ibid. The final plat, which is the official authenticated
document that is recorded, was required to conform
substantially to the preliminary plat, and, in addition, to
include such details as the lines of all streets, lots,
boundaries, and building setbacks. Id., at 875.
On May 3, 1973, the Commission approved the developer’s
preliminary plat for Temple Hills. App. 246-247. The plat
indicated that the development was to include 676 acres, of
which 260 acres would be open space, primarily in the form
of a golf course. Id., at 422. A notation on the plat indicated
that the number of “allowable dwelling units for total
development” was 736, but lot lines were drawn in for only
469 units. The areas in which the remaining 276 units were
to be placed were left blank and bore the notation “this
parcel not to be developed until approved by the planning
commission.” The plat also contained a disclaimer that
“parcels with note ‘this parcel not to be developed until
approved by the planning commission’ not a part of this
plat and not included in gross area.” Ibid. The density of
736 allowable dwelling units was calculated by multiplying
the number of acres (676) by the number of units allowed
per acre (1.089). Id., at 361. Although the zoning
regulations in effect in 1973 required that density be
calculated “on the basis of total acreage less fifty percent
(50%) of the land lying in the flood plain … and less fifty
percent (50%) of all land lying on a slope with a grade in
excess of twenty-five percent (25%),” CA App. 858, no

593

deduction was made from the 676 acres for such land. Tr.
369.
Upon approval of the preliminary plat, the developer
conveyed to the county a permanent open space easement
for the golf course, and began building roads and installing
utility lines for the project. App. 259-260. The developer
spent approximately $3 million building the golf course,
and another $500,000 installing sewer and water facilities.
Defendant’s Ex. 96. Before housing construction was to
begin on a particular section, a final plat of that section was
submitted for approval. Several sections, containing a total
of 212 units, were given final approval by 1979. App. 260,
270, 278, 423. The preliminary plat, as well, was reapproved
four times during that period. Id., at 270, 274, 362, 423.
In 1977, the county changed its zoning ordinance to require
that calculations of allowable density exclude 10% of the
total acreage to account for roads and utilities. Id., at 363;
CA App. 862. In addition, the number of allowable units
was changed to one per acre from the 1.089 per acre
allowed in 1973. Id., at 858, 862; Tr. 1169-1170, 1183. The
Commission continued to apply the zoning ordinance and
subdivision regulations in effect in 1973 to Temple Hills,
however, and reapproved the preliminary plat in 1978. In
August 1979, the Commission reversed its position and
decided that plats submitted for renewal should be
evaluated under the zoning ordinance and subdivision
regulations in effect when the renewal was sought. App.
279-282. The Commission then renewed the Temple Hills
plat under the ordinances and regulations in effect at that
time. Id., at 283-284.
In January 1980, the Commission asked the developer to
submit a revised preliminary plat before it sought final
approval for the remaining sections of the subdivision. The
Commission reasoned that this was necessary because the
original preliminary plat contained a number of surveying
errors, the land available in the subdivision had been

594

decreased inasmuch as the State had condemned part of the
land for a parkway, and the areas marked “reserved for
future development” had never been platted. Plaintiff’s
Exs. 1078 and 1079; Tr. 164-168. A special committee
(Temple Hills Committee) was appointed to work with the
developer on the revision of the preliminary plat. Plaintiff’s
Ex. 1081; Tr. 169-170.
The developer submitted a revised preliminary plat for
approval in October 1980.2 Upon review, the
Commission’s staff and the Temple Hills Committee noted
several problems with the revised plat. App. 304-305. First,
the allowable density under the zoning ordinance and
subdivision regulations then in effect was 548 units, rather
than the 736 units claimed under the preliminary plat
approved in 1973. The difference reflected a decrease in
18.5 acres for the parkway, a decrease of 66 acres for the
10% deduction for roads, and an exclusion of 44 acres for
50% of the land lying on slopes exceeding a 25% grade.
Second, two cul-de-sac roads that had become necessary
because of the land taken for the parkway exceeded the
maximum length allowed for such roads under the
subdivision regulations in effect in both 1980 and 1973.
Third, approximately 2,000 feet of road would have grades
in excess of the maximum allowed by county road
regulations. Fourth, the preliminary plat placed units on
land that had grades in excess of 25% and thus was
considered undevelopable under the zoning ordinance and
subdivision regulations. Fifth, the developer had not
fulfilled its obligations regarding the construction and
maintenance of the main access road. Sixth, there were
inadequate fire protection services for the area, as well as
inadequate open space for children’s recreational activities.
Finally, the lots proposed in the preliminary plat had a road
2 The developer also submitted the preliminary plat that had been approved in 1973

and reapproved on several subsequent occasions, contending that it had the right to
develop the property according to that plat. As we have noted, that plat did not
indicate how all of the parcels would be developed. App. 84-85.

595

frontage that was below the minimum required by the
subdivision regulations in effect in 1980.
The Temple Hills Committee recommended that the
Commission grant a waiver of the regulations regarding the
length of the cul-de-sacs, the maximum grade of the roads,
and the minimum frontage requirement. Id., at 297, 304306. Without addressing the suggestion that those three
requirements be waived, the Commission disapproved the
plat on two other grounds: first, the plat did not comply
with the density requirements of the zoning ordinance or
subdivision regulations, because no deduction had been
made for the land taken for the parkway, and because there
had been no deduction for 10% of the acreage attributable
to roads or for 50% of the land having a slope of more
than 25%; and second, lots were placed on slopes with a
grade greater than 25%. Plaintiff’s Ex. 9112.
The developer then appealed to the County Board of
Zoning Appeals for an “interpretation of the Residential
Cluster zoning [ordinance] as it relates to Temple Hills.”3
3 The Board of Zoning Appeals was empowered:

“a. To hear and decide appeals on any permit, decision,
determination, or refusal made by the [County] Building
Commissioner or other administrative official in the
carrying out or enforcement of any provision of this
Resolution; and to interpret the Zoning map and this
Resolution.
…..
“c. To hear and decide applications for variances from the
terms of this Resolution. Such variances shall be granted
only where by reason of exceptional narrowness,
shallowness, or shape of a specific piece of property which
at the time of adoption of this Resolution was a lot of
record, or where by reason of exceptional topographic
situations or conditions of a piece of property the strict
application of the provisions of this Resolution would
result in practical difficulties to or undue hardship upon
the owner of such property.” Plaintiff’s Ex. 9112.

See also Tenn. Code. Ann. §§ 13-7-106 to 13-7-109 (1980).

596

App. 314. On November 11, 1980, the Board determined
that the Commission should apply the zoning ordinance
and subdivision regulations that were in effect in 1973 in
evaluating the density of Temple Hills. Id., at 328. It also
decided that in measuring which lots had excessive grades,
the Commission should define the slope in a manner more
favorable to the developer. Id., at 329.
On November 26, respondent, Hamilton Bank of Johnson
City, acquired through foreclosure the property in the
Temple Hills subdivision that had not yet been developed,
a total of 257.65 acres. Id., at 189-190. This included many
of the parcels that had been left blank in the preliminary
plat approved in 1973. In June 1981, respondent submitted
two preliminary plats to the Commission – the plat that had
been approved in 1973 and subsequently reapproved
several times, and a plat indicating respondent’s plans for
the undeveloped areas, which was similar to the plat
submitted by the developer in 1980. Id., at 88. The new plat
proposed the development of 688 units; the reduction from
736 units represented respondent’s concession that 18.5
acres should be removed from the acreage because that
land had been taken for the parkway. Id., at 424, 425.
On June 18, the Commission disapproved the plat for eight
reasons, including the density and grade problems cited in
the October 1980 denial, as well as the objections the
Temple Hills Committee had raised in 1980 to the length of
two cul-de-sacs, the grade of various roads, the lack of fire
protection, the disrepair of the main-access road, and the
minimum frontage. Id., at 370. The Commission declined
to follow the decision of the Board of Zoning Appeals that
the plat should be evaluated by the 1973 zoning ordinance
and subdivision regulations, stating that the Board lacked
jurisdiction to hear appeals from the Commission. Id., at
187-188, 360-361.
B

597

Respondent then filed this suit in the United States District
Court for the Middle District of Tennessee, pursuant to 42
U. S. C. § 1983, alleging that the Commission had taken its
property without just compensation and asserting that the
Commission should be estopped under state law from
denying approval of the project.4 Respondent’s expert
witnesses testified that the design that would meet each of
the Commission’s eight objections would allow respondent
to build only 67 units, 409 fewer than respondent claims it
is entitled to build,5 and that the development of only 67
sites would result in a net loss of over $1 million. App. 377.
Petitioners’ expert witness, on the other hand, testified that
the Commission’s eight objections could be overcome by a
design that would allow development of approximately 300
units. Tr. 1467-1468.
After a 3-week trial, the jury found that respondent had
been denied the “economically viable” use of its property in
violation of the Just Compensation Clause, and that the
Commission was estopped under state law from requiring
respondent to comply with the current zoning ordinance
and subdivision regulations rather than those in effect in
1973. App. 32-33. The jury awarded damages of $350,000
for the temporary taking of respondent’s property. Id., at
33-34.6 The court entered a permanent injunction requiring
Respondent also alleged that the Commission’s refusal to approve the plat
violated respondent’s rights to substantive and procedural due process and denied
it equal protection. The District Court granted a directed verdict to petitioners on
the substantive due process and equal protection claims, and the jury found that
respondent had not been denied procedural due process. App. 32. Those issues are
not before us.
4

5 Id., at 377; Tr. 238-243. Respondent claimed it was entitled to build 476 units: the

736 units allegedly approved in 1973 minus the 212 units already built or given final
approval and minus 48 units that were no longer available because land had been
taken from the subdivision for the parkway.
6 Although the

record is less than clear, it appears that the jury calculated the
$350,000 award by determining a fair rate of return on the value of the property for
the time between the Commission’s rejection of the preliminary plat in 1980 and
the jury’s verdict in March 1982. See id., at 800-805; Tr. of Oral Arg. 25, 32-33. In

598

the Commission to apply the zoning ordinance and
subdivision regulations in effect in 1973 to Temple Hills,
and to approve the plat submitted in 1981. Id., at 34.
The court then granted judgment notwithstanding the
verdict in favor of the Commission on the taking claim,
reasoning in part that respondent was unable to derive
economic benefit from its property on a temporary basis
only, and that such a temporary deprivation, as a matter of
law, cannot constitute a taking. Id., at 36, 41. In addition,
the court modified its permanent injunction to require the
Commission merely to apply the zoning ordinance and
subdivision regulations in effect in 1973 to the project,
rather than requiring approval of the plat, in order to allow
the parties to resolve “legitimate technical questions of
whether plaintiff meets the requirements of the 1973
regulations,” id., at 42, through the applicable state and
local appeals procedures.7
A divided panel of the United States Court of Appeals for
the Sixth Circuit reversed. 729 F. 2d 402 (1984). The court
held that application of government regulations affecting
an owner’s use of property may constitute a taking if the
regulation denies the owner all “economically viable” use of
the land, and that the evidence supported the jury’s finding
that the property had no economically feasible use during
the time between the Commission’s refusal to approve the
preliminary plat and the jury’s verdict. Id., at 405-406.
Rejecting petitioners’ argument that respondent never had
light of our disposition of the case, we need not reach the question whether that
measure of damages would provide just compensation, or whether it would be
appropriate if respondent’s cause of action were viewed as stating a claim under the
Due Process Clause.
7 While respondent’s appeal was pending before the Court of Appeals, the parties

reached an agreement whereby the Commission granted a variance from its cul-desac and road-grade regulations and approved the development of 476 units, and
respondent agreed, among other things, to rebuild existing roads, and build all new
roads, according to current regulations. App. to Brief for Petitioners 35.

599

submitted a plat that complied with the 1973 regulations,
and thus never had acquired rights that could be taken, the
court held that the jury’s estoppel verdict indicates that the
jury must have found that respondent had acquired a
“vested right” under state law to develop the subdivision
according to the plat submitted in 1973. Id., at 407. Even if
respondent had no vested right under state law to finish the
development, the jury was entitled to find that respondent
had a reasonable investment-backed expectation that the
development could be completed, and that the actions of
the Commission interfered with that expectation. Ibid.
The court rejected the District Court’s holding that the
taking verdict could not stand as a matter of law. A
temporary denial of property could be a taking, and was to
be analyzed in the same manner as a permanent taking.
Finally, relying upon the dissent in San Diego Gas & Electric
Co. v. San Diego, 450 U. S. 621, 636 (1981), the court
determined that damages are required to compensate for a
temporary taking.8
II
We granted certiorari to address the question whether
Federal, State, and local Governments must pay money
damages to a landowner whose property allegedly has been
“taken” temporarily by the application of government
regulations. 469 U. S. 815 (1984). Petitioners and their amici
8 Judge Wellford dissented. 729 F. 2d, at 409. He did not agree that the evidence

supported a finding that respondent’s property had been taken, in part because
there was no evidence that respondent had formally requested a variance from the
regulations. Even if there was a temporary denial of the “economically viable” use
of the property, Judge Wellford would have held that mere fluctuations in value
during the process of governmental decisionmaking are ” ‘incidents of ownership’ ”
and cannot be considered a ” ‘taking,’ ” id., at 410, quoting Agins v. Tiburon, 447 U.
S. 255, 263, n. 9 (1980). He also did not agree that damages could be awarded to
remedy any taking, reasoning that the San Diego Gas dissent does not reflect the
views of the majority of this Court, and that this Court never has awarded damages
for a temporary taking where there was no invasion, physical occupation, or
“seizure and direction” by the State of the landowner’s property. 729 F. 2d, at 411.

600

contend that we should answer the question in the negative
by ruling that government regulation can never effect a
“taking” within the meaning of the Fifth Amendment.
They recognize that government regulation may be so
restrictive that it denies a property owner all reasonable
beneficial use of its property, and thus has the same effect
as an appropriation of the property for public use, which
concededly would be a taking under the Fifth Amendment.
According to petitioners, however, regulation that has such
an effect should not be viewed as a taking. Instead, such
regulation should be viewed as a violation of the
Fourteenth Amendment’s Due Process Clause, because it is
an attempt by government to use its police power to effect
a result that is so unduly oppressive to the property owner
that it constitutionally can be effected only through the
power of eminent domain. Violations of the Due Process
Clause, petitioners’ argument concludes, need not be
remedied by “just compensation.”
The Court twice has left this issue undecided. San Diego Gas
& Electric Co. v. San Diego, supra; Agins v. Tiburon, 447 U. S.
255, 263 (1980). Once again, we find that the question is
not properly presented, and must be left for another day.
For whether we examine the Planning Commission’s
application of its regulations under Fifth Amendment
“taking” jurisprudence, or under the precept of due
process, we conclude that respondent’s claim is premature.
III
We examine the posture of respondent’s cause of action
first by viewing it as stating a claim under the Just
Compensation Clause. This Court often has referred to
regulation that “goes too far,” Pennsylvania Coal Co. v.
Mahon, 260 U. S. 393, 415 (1922), as a “taking.” See, e. g.,
Ruckelshaus v. Monsanto Co., 467 U. S. 986, 1004-1005 (1984);
Agins v. Tiburon, 447 U. S., at 260; Prune Yard Shopping Center
v. Robins, 447 U. S. 74, 83 (1980);Kaiser Aetna v. United States,
444 U. S. 164, 174 (1979); Andrus v. Allard, 444 U. S. 51, 65-

601

66 (1979); Penn Central Transp. Co. v. New York City, 438 U.
S. 104, 124 (1978); Goldblatt v. Hempstead, 369 U. S. 590, 594
(1962); United States v. Central Eureka Mining Co., 357 U. S.
155, 168 (1958). Even assuming that those decisions meant
to refer literally to the Taking Clause of the Fifth
Amendment, and therefore stand for the proposition that
regulation may effect a taking for which the Fifth
Amendment requires just compensation, see San Diego, 450
U. S., at 647-653 (dissenting opinion), and even assuming
further that the Fifth Amendment requires the payment of
money damages to compensate for such a taking, the jury
verdict in this case cannot be upheld. Because respondent
has not yet obtained a final decision regarding the
application of the zoning ordinance and subdivision
regulations to its property, nor utilized the procedures
Tennessee provides for obtaining just compensation,
respondent’s claim is not ripe.
A
As the Court has made clear in several recent decisions, a
claim that the application of government regulations effects
a taking of a property interest is not ripe until the
government entity charged with implementing the
regulations has reached a final decision regarding the
application of the regulations to the property at issue. In
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452
U. S. 264 (1981), for example, the Court rejected a claim
that the Surface Mining Control and Reclamation Act of
1977, 91 Stat. 447, 30 U. S. C. § 1201 et seq., effected a
taking because:
There is no indication in the record
that appellees have availed themselves
of the opportunities provided by the
Act to obtain administrative relief by
requesting either a variance from the
approximate-original-contour
requirement of § 515(d) or a waiver

602

from the surface mining restrictions in
§ 522(e). If [the property owners] were
to seek administrative relief under
these
procedures,
a
mutually
acceptable solution might well be
reached with regard to individual
properties, thereby obviating any need
to address the constitutional questions.
The potential for such administrative
solutions confirms the conclusion that
the taking issue decided by the District
Court simply is not ripe for judicial
resolution.
452 U. S., at 297 (footnote omitted).
Similarly, in Agins v. Tiburon, supra, the Court held that a
challenge to the application of a zoning ordinance was not
ripe because the property owners had not yet submitted a
plan for development of their property. 447 U. S., at 260.
In Penn Central Transp. Co. v. New York City, supra, the Court
declined to find that the application of New York City’s
Landmarks Preservation Law to Grand Central Terminal
effected a taking because, although the Landmarks
Preservation Commission had disapproved a plan for a 50story office building above the terminal, the property
owners had not sought approval for any other plan, and it
therefore was not clear whether the Commission would
deny approval for all uses that would enable the plaintiffs
to derive economic benefit from the property. 438 U. S., at
136-137.
Respondent’s claim is in a posture similar to the claims the
Court held premature in Hodel. Respondent has submitted a
plan for developing its property, and thus has passed
beyond the Agins threshold. But, like the Hodel plaintiffs,
respondent did not then seek variances that would have
allowed it to develop the property according to its
proposed plat, notwithstanding the Commission’s finding

603

that the plat did not comply with the zoning ordinance and
subdivision regulations. It appears that variances could
have been granted to resolve at least five of the
Commission’s eight objections to the plat. The Board of
Zoning Appeals had the power to grant certain variances
from the zoning ordinance, including the ordinance’s
density requirements and its restriction on placing units on
land with slopes having a grade in excess of 25%. Tr. 12041205; see n. 3, supra. The Commission had the power to
grant variances from the subdivision regulations, including
the cul-de-sac, road-grade, and frontage requirements.9
Indeed, the Temple Hills Committee had recommended
that the Commission grant variances from those
regulations. App. 304-306. Nevertheless, respondent did
not seek variances from either the Board or the
Commission.
Respondent argues that it “did everything possible to
resolve the conflict with the commission,” Brief for
Respondent 42, and that the Commission’s denial of
approval for respondent’s plat was equivalent to a denial of
variances. The record does not support respondent’s claim,
however. There is no evidence that respondent applied to
the Board of Zoning Appeals for variances from the zoning
9 The subdivision regulations in effect in 1980 and 1981 provided:

“Variances may
conditions:

be

granted

under the

following

“Where the subdivider can show that strict adherence to
these regulations would cause unnecessary hardship, due
to conditions beyond the control of the subdivider. If the
subdivider creates the hardship due to his design or in an
effort to increase the yield of lots in his subdivision, the
variance will not be granted.
“Where the Planning Commission decides that there are
topographical or other conditions peculiar to the site, and
a departure from their regulations will not destroy their
intent.”

CA App. 932.

604

ordinance. As noted, the developer sought a ruling that the
ordinance in effect in 1973 should be applied, but neither
respondent nor the developer sought a variance from the
requirements of either the 1973 or 1980 ordinances.
Further, although the subdivision regulations in effect in
1981 required that applications to the Commission for
variances be in writing, and that notice of the application be
given to owners of adjacent property,10 the record contains
no evidence that respondent ever filed a written request for
variances from the cul-de-sac, road-grade, or frontage
requirements of the subdivision regulations, or that
respondent ever gave the required notice.11 App. 212-213;
see also Tr. 1255-1257.

10 The Commission’s regulations required that

“Each applicant must file with the Planning Commission a
written request for variance stating at least the following:
“a. The variance requested.
“b. Reason or circumstances requiring the variance.
“c. Notice to the adjacent property owners that a variance
is being requested.
“Without the application any condition shown on the plat
which would require a variance will constitute grounds for
disapproval of the plat.”

Id., at 933.
11 Respondent’s predecessor-in-interest requested, and apparently was granted, a

waiver of the 10% road-grade regulation for section VI of the subdivision. See
Plaintiff’s Exs. 1078, 9094. The predecessor-in-interest wrote a letter on January 3,
1980, that respondent contends must be construed as a request for a waiver of the
road-grade regulation for the entire subdivision:
“I contend that the road grade and slope question … is
adequately provided for by both the [subdivision]
Regulations and the Zoning Ordinance. In both, the
Planning Commission is given the authority to approve
roads that have grades in excess of 10%.

605

Indeed, in a letter to the Commission written shortly before
its June 18, 1981, meeting to consider the preliminary
sketch, respondent took the position that it would not
request variances from the Commission until after the
Commission approved the proposed plat:
[Respondent] stands ready to work
with the Planning Commission
concerning the necessary variances.
Until the initial sketch is renewed,
however, and the developer has an
opportunity to do detailed engineering
work it is impossible to determine the
exact nature of any variances that may
be needed.
Plaintiff’s Ex. 9028, p. 6.
The Commission’s regulations clearly indicated that unless
a developer applied for a variance in writing and upon
notice to other property owners, “any condition shown on
the plat which would require a variance will constitute
grounds for disapproval of the plat.” CA App. 933. Thus,
in the face of respondent’s refusal to follow the procedures
“In our particular case, it was common knowledge from
the beginning that due to the character of the land
involved that there would be roads that exceeded the 10%
slope. In fact in our first Section there is a stretch of road
that exceeds the 10%; therefore I respectfully request that
this letter be made an official part of the Planning
Commission Minutes of January 3, 1980 and further the
Zoning Approval which has been granted be allowed to
stand without any changes.”

Defendants’ Ex. 96.
Even assuming, arguendo, that the letter constituted a request for a variance,
respondent’s taking claim nevertheless is not ripe. There is no evidence that
respondent requested variances from the regulations that formed the basis of the
other objections raised by the Commission, such as those regulating the length of
cul-de-sacs. Absent a final decision regarding the application of all eight of the
Commission’s objections, it is impossible to tell whether the land retained any
reasonable beneficial use or whether respondent’s expectation interests had been
destroyed.

606

for requesting a variance, and its refusal to provide specific
information about the variances it would require,
respondent hardly can maintain that the Commission’s
disapproval of the preliminary plat was equivalent to a final
decision that no variances would be granted.
As in Hodel, Agins, and Penn Central, then, respondent has
not yet obtained a final decision regarding how it will be
allowed to develop its property. Our reluctance to examine
taking claims until such a final decision has been made is
compelled by the very nature of the inquiry required by the
Just Compensation Clause. Although “[t]he question of
what constitutes a ‘taking’ for purposes of the Fifth
Amendment has proved to be a problem of considerable
difficulty,” Penn Central Transp. Co. v. New York City, 438 U.
S., at 123, this Court consistently has indicated that among
the factors of particular significance in the inquiry are the
economic impact of the challenged action and the extent to
which it interferes with reasonable investment-backed
expectations. Id., at 124. See also Ruckelshaus v. Monsanto Co.,
467 U. S., at 1005; PruneYard Shopping Center v. Robins, 447
U. S., at 83; Kaiser Aetna v. United States, 444 U. S., at 175.
Those factors simply cannot be evaluated until the
administrative agency has arrived at a final, definitive
position regarding how it will apply the regulations at issue
to the particular land in question.
Here, for example, the jury’s verdict indicates only that it
found that respondent would be denied the economically
feasible use of its property if it were forced to develop the
subdivision in a manner that would meet each of the
Commission’s eight objections. It is not clear whether the
jury would have found that the respondent had been
denied all reasonable beneficial use of the property had any
of the eight objections been met through the grant of a
variance. Indeed, the expert witness who testified regarding
the economic impact of the Commission’s actions did not
itemize the effect of each of the eight objections, so the

607

jury would have been unable to discern how a grant of a
variance from any one of the regulations at issue would
have affected the profitability of the development. App.
377; see also id., at 102-104. Accordingly, until the
Commission determines that no variances will be granted, it
is impossible for the jury to find, on this record, whether
respondent “will be unable to derive economic benefit”
from the land.12
Respondent asserts that it should not be required to seek
variances from the regulations because its suit is predicated
upon 42 U. S. C. § 1983, and there is no requirement that a
plaintiff exhaust administrative remedies before bringing a
12 The District Court’s instructions allowed the jury to find a taking if it ascertained

that “the regulations in question as applied to [respondent’s] property denied
[respondent] economically viable use of its property.” Tr. 2016. That instruction
seems to assume that respondent’s taking theory was simply that its property was
rendered valueless by the application of new zoning laws and subdivision
regulations in 1980. The record indicates, however, that respondent’s claim was
based upon a state-law theory of “vested rights,” and that the alleged “taking” was
the Commission’s interference with respondent’s “expectation interest” in
completing the development according to its original plans. The evidence that it
was not economically feasible to develop just the 67 units respondent claims the
Commission’s actions would limit it to developing was based upon the cost of
building the development according to the original plan. The expected income
from 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
development that would not have had to have been installed for a development of
only 67 units. App. 191-197; Tr. 690; see also id., at 2154-2155. Thus, the evidence
appears to indicate that it would not be profitable to develop 67 units because
respondent had made various expenditures in the expectation that the development
would contain far more units; the evidence does not appear to support the
proposition that, aside from those “reliance” expenditures, development of 67 units
on the property would not be economically feasible.
We express no view of the propriety of applying the “economic viability” test when
the taking claim is based upon such a theory of “vested rights” or “expectation
interest.” Cf. Andrus v. Allard, 444 U. S. 51, 66 (1979) (analyzing a claim that
Government regulations effected a taking by reducing expected profits). It is
sufficient for our purposes to note that whether the “property” taken is viewed as
the land itself or respondent’s expectation interest in developing the land as it
wished, it is impossible to determine the extent of the loss or interference until the
Commission has decided whether it will grant a variance from the application of
the regulations.

608

§ 1983 action. Patsy v. Florida Board of Regents, 457 U. S. 496
(1982). The question whether administrative remedies must
be exhausted is conceptually distinct, however, from the
question whether an administrative action must be final
before it is judicially reviewable. See FTC v. Standard Oil Co.,
449 U. S. 232, 243 (1980); Bethlehem Steel Corp. v. EPA, 669
F. 2d 903, 908 (CA3 1982). See generally 13A C. Wright, A.
Miller, & E. Cooper, Federal Practice and Procedure §
3532.6 (1984). While the policies underlying the two
concepts often overlap, the finality requirement is
concerned with whether the initial decisionmaker has
arrived at a definitive position on the issue that inflicts an
actual, concrete injury; the exhaustion requirement
generally refers to administrative and judicial procedures by
which an injured party may seek review of an adverse
decision and obtain a remedy if the decision is found to be
unlawful or otherwise inappropriate. Patsy concerned the
latter, not the former.
The difference is best illustrated by comparing the
procedure for seeking a variance with the procedures that,
under Patsy, respondent would not be required to exhaust.
While it appears that the State provides procedures by
which an aggrieved property owner may seek a declaratory
judgment regarding the validity of zoning and planning
actions taken by county authorities, see Fallin v. Knox County
Bd. of Comm’rs, 656 S. W. 2d 338 (Tenn. 1983); Tenn. Code
Ann. §§ 27-8-101, 27-9-101 to 27-9-113, and XX-XX-XXX
to XX-XX-XXX (1980 and Supp. 1984), respondent would
not be required to resort to those procedures before
bringing its § 1983 action, because those procedures clearly
are remedial. Similarly, respondent would not be required
to appeal the Commission’s rejection of the preliminary
plat to the Board of Zoning Appeals, because the Board
was empowered, at most, to review that rejection, not to
participate in the Commission’s decisionmaking.

609

Resort to those procedures would result in a judgment
whether the Commission’s actions violated any of
respondent’s rights. In contrast, resort to the procedure for
obtaining variances would result in a conclusive
determination by the Commission whether it would allow
respondent to develop the subdivision in the manner
respondent proposed. The Commission’s refusal to
approve the preliminary plat does not determine that issue;
it prevents respondent from developing its subdivision
without obtaining the necessary variances, but leaves open
the possibility that respondent may develop the subdivision
according to its plat after obtaining the variances. In short,
the Commission’s denial of approval does not conclusively
determine whether respondent will be denied all reasonable
beneficial use of its property, and therefore is not a final,
reviewable decision.
B
A second reason the taking claim is not yet ripe is that
respondent did not seek compensation through the
procedures the State has provided for doing so.13 The Fifth
Amendment does not proscribe the taking of property; it
proscribes taking without just compensation. Hodel v.
Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S., at
297, n. 40. Nor does the Fifth Amendment require that just
compensation be paid in advance of, or contemporaneously
with, the taking; all that is required is that a ” ‘reasonable,
certain and adequate provision for obtaining compensation’
13 Again, it is necessary

to contrast the procedures provided for review of the
Commission’s actions, such as those for obtaining a declaratory judgment, see
Tenn. Code Ann. §§ 29-14-101 to XX-XX-XXX (1980), with procedures that allow
a property owner to obtain compensation for a taking. Exhaustion of review
procedures is not required. See Patsy v. Florida Board of Regents, 457 U. S. 496 (1982).
As we have explained, however, because the Fifth Amendment proscribes takings
without just compensation, no constitutional violation occurs until just compensation
has been denied. The nature of the constitutional right therefore requires that a
property owner utilize procedures for obtaining compensation before bringing a §
1983 action.

610

” exist at the time of the taking. Regional Rail Reorganization
Act Cases, 419 U. S. 102, 124-125 (1974) (quoting Cherokee
Nation v. Southern Kansas R. Co., 135 U. S. 641, 659 (1890)).
See also Ruckelshaus v. Monsanto Co., 467 U. S., at 1016;
Yearsley v. W. A. Ross Construction Co., 309 U. S. 18, 21
(1940); Hurley v. Kincaid, 285 U. S. 95, 104 (1932). If the
government has provided an adequate process for
obtaining compensation; and if resort to that process
“yield[s] just compensation,” then the property owner “has
no claim against the Government” for a taking. Monsanto,
467 U. S., at 1013, 1018, n. 21. Thus, we have held that
taking claims against the Federal Government are
premature until the property owner has availed itself of the
process provided by the Tucker Act, 28 U. S. C. § 1491.
Monsanto, 467 U. S., at 1016-1020. Similarly, if a State
provides an adequate procedure for seeking just
compensation, the property owner cannot claim a violation
of the Just Compensation Clause until it has used the
procedure and been denied just compensation.
The recognition that a property owner has not suffered a
violation of the Just Compensation Clause until the owner
has unsuccessfully attempted to obtain just compensation
through the procedures provided by the State for obtaining
such compensation is analogous to the Court’s holding in
Parratt v. Taylor, 451 U. S. 527 (1981). There, the Court
ruled that a person deprived of property through a random
and unauthorized act by a state employee does not state a
claim under the Due Process Clause merely by alleging the
deprivation of property. In such a situation, the
Constitution does not require predeprivation process
because it would be impossible or impracticable to provide
a meaningful hearing before the deprivation. Instead, the
Constitution is satisfied by the provision of meaningful
postdeprivation process. Thus, the State’s action is not
“complete” in the sense of causing a constitutional injury
“unless or until the state fails to provide an adequate

611

postdeprivation remedy for the property loss.” Hudson v.
Palmer, 468 U. S. 517, 532, n. 12 (1984). Likewise, because
the Constitution does not require pretaking compensation,
and is instead satisfied by a reasonable and adequate
provision for obtaining compensation after the taking, the
State’s action here is not “complete” until the State fails to
provide adequate compensation for the taking.14
Under Tennessee law, a property owner may bring an
inverse condemnation action to obtain just compensation
for an alleged taking of property under certain
circumstances. Tenn. Code Ann. § 29-16-123 (1980). The
statutory scheme for eminent domain proceedings outlines
the procedures by which government entities must exercise
the right of eminent domain. §§ 29-16-101 to XX-XXXXX. The State is prohibited from “enter[ing] upon
[condemned] land” until these procedures have been
utilized and compensation has been paid the owner, § 2916-122, but if a government entity does take possession of
the land without following the required procedures,
the owner of such land may petition
for a jury of inquest, in which case the
same proceedings may be had, as near
14 The analogy to Parratt is imperfect because Parratt does not extend to situations

such as those involved in Logan v. Zimmerman Brush Co., 455 U. S. 422 (1982), in
which the deprivation of property is effected pursuant to an established state policy
or procedure, and the State could provide predeprivation process. Unlike the Due
Process Clause, however, the Just Compensation Clause has never been held to
require pretaking process or compensation. Ruckelshaus v. Monsanto Co., 467 U. S.
986, 1016 (1984). Nor has the Court ever recognized any interest served by
pretaking compensation that could not be equally well served by post-taking
compensation. Under the Due Process Clause, on the other hand, the Court has
recognized that predeprivation process is of “obvious value in reaching an accurate
decision,” that the “only meaningful opportunity to invoke the discretion of the
decisionmaker is likely to be before the [deprivation] takes effect,” Cleveland Board of
Education v. Loudermill, 470 U. S. 532, 543 (1985), and that predeprivation process
may serve the purpose of making an individual feel that the government has dealt
with him fairly. See Carey v. Piphus, 435 U. S. 247, 262 (1978). Thus, despite the
Court’s holding in Logan, Parratt’s reasoning applied here by analogy because of the
special nature of the Just Compensation Clause.

612

as may be, as hereinbefore provided;
or he may sue for damages in the
ordinary way … .
§ 29-16-123.
The Tennessee state courts have interpreted § 29-16-123 to
allow recovery through inverse condemnation where the
“taking” is effected by restrictive zoning laws or
development regulations. See Davis v. Metropolitan Govt. of
Nashville, 620 S. W. 2d 532, 533-534 (Tenn. App. 1981);
Speight v. Lockhart, 524 S. W. 2d 249 (Tenn. App. 1975).
Respondent has not shown that the inverse condemnation
procedure is unavailable or inadequate, and until it has
utilized that procedure, its taking claim is premature.
….
San Remo Hotel, L.P. v. City and County of San
Francisco
545 U.S. 323 (2005)
CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
Paul F. Utrecht argued the cause for petitioners. With him
on the briefs was Andrew M. Zacks.
Seth P. Waxman argued the cause for respondents. With him
on the brief were Andrew W. Schwartz, Fran M. Layton,
Ellison Folk, Edward C. DuMont, and Therese M. Stewart.
JUSTICE STEVENS delivered the opinion of the Court.
This case presents the question whether federal courts may
craft an exception to the full faith and credit statute, 28 U.
S. C. § 1738, for claims brought under the Takings Clause
of the Fifth Amendment.
Petitioners, who own and operate a hotel in San Francisco,
California (hereinafter City), initiated this litigation in
response to the application of a city ordinance that required
them to pay a $567,000 “conversion fee” in 1996. After the

613

California courts rejected petitioners’ various state-law
takings claims, they advanced in the Federal District Court
a series of federal takings claims that depended on issues
identical to those that had previously been resolved in the
state-court action. In order to avoid the bar of issue
preclusion, petitioners asked the District Court to exempt
from § 1738’s reach claims brought under the Takings
Clause of the Fifth Amendment.
Petitioners’ argument is predicated on Williamson County
Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473
U. S. 172 (1985), which held that takings claims are not ripe
until a State fails “to provide adequate compensation for
the taking.” Id., at 195. Unless courts disregard § 1738 in
takings cases, petitioners argue, plaintiffs will be forced to
litigate their claims in state court without any realistic
possibility of ever obtaining review in a federal forum. The
Ninth Circuit’s rejection of this argument conflicted with
the Second Circuit’s decision in Santini v. Connecticut
Hazardous Waste Management Serv., 342 F. 3d 118 (2003). We
granted certiorari to resolve the conflict, 543 U. S. 1032
(2004),1 and now affirm the judgment of the Ninth Circuit.
I
The San Remo Hotel is a three-story, 62-unit hotel in the
Fisherman’s Wharf neighborhood in San Francisco. In
December 1906, shortly after the great earthquake and fire
destroyed most of the City, the hotel – then called the
“New California Hotel” – opened its doors to house
dislocated individuals, immigrants, artists, and laborers. The
1 Although petitioners asked this Court to review two separate questions, our grant

of certiorari was limited exclusively to the question whether “a Fifth Amendment
Takings claim [is] barred by issue preclusion based on a judgment denying
compensation solely under state law, which was rendered in a state court
proceeding that was required to ripen the federal Takings claim?” Pet. for Cert. i.
Thus, we have no occasion to reach petitioners’ claim that, under California law,
the substantive state takings law decision of the California Supreme Court was not
entitled to preclusive effect in federal court. See Brief for Petitioners 19-21.

614

City officially licensed the facility to operate as a hotel and
restaurant in 1916, and in 1922 the hotel was given its
current name. When the hotel fell into financial difficulties
and a “dilapidated condition” in the early 1970’s, Robert
and Thomas Field purchased the facility, restored it, and
began to operate it as a bed and breakfast inn. See San Remo
Hotel, L. P. v. City and County of San Francisco, 100 Cal. Rptr.
2d 1, 5 (Cal. App. 2000) (officially depublished).
In 1979, San Francisco’s Board of Supervisors responded
to “a severe shortage” of affordable rental housing for
elderly, disabled, and low-income persons by instituting a
moratorium on the conversion of residential hotel units
into tourist units. San Francisco Residential Hotel Unit
Conversion and Demolition Ordinance (hereinafter Hotel
Conversion Ordinance or HCO) §§ 41.3(a)-(g), App. to Pet.
for Cert. 195a-197a. Two years later, the City enacted the
first version of the Hotel Conversion Ordinance to regulate
all future conversions. San Francisco Ordinance No. 33081, codified in § 41.1 et seq. Under the 1981 version of the
HCO, a hotel owner could convert residential units into
tourist units only by obtaining a conversion permit. And
those permits could be obtained only by constructing new
residential units, rehabilitating old ones, or paying an “in
lieu” fee into the City’s Residential Hotel Preservation
Fund Account. See §§ 41.12-41.13, App. to Pet. for Cert.
224a-231a. The City substantially strengthened the HCO in
1990 by eliminating several exceptions that had existed in
the 1981 version and increasing the size of the “in lieu” fee
hotel owners must pay when converting residential units.
See 145 F. 3d 1095, 1099 (CA9 1998).
The genesis of this protracted dispute lies in the 1981
HCO’s requirement that each hotel “file an initial unit
usage report containing” the “number of residential and
tourist units in the hotel[s] as of September 23, 1979.” §
41.6(b)(1), App. to Pet. for Cert. 206a. Jean Iribarren was
operating the San Remo Hotel, pursuant to a lease from

615

petitioners, when this requirement came into effect.
Iribarren filed the initial usage report for the hotel, which
erroneously reported that all of the rooms in the hotel were
“residential” units.2 The consequence of that initial
classification was that the City zoned the San Remo Hotel
as “residential hotel” – in other words, a hotel that
consisted entirely of residential units. And that zoning
determination ultimately meant that, despite the fact that
the San Remo Hotel had operated in practice as a tourist
hotel for many years, 145 F. 3d, at 1100, petitioners were
required to apply for a conditional use permit to do
business officially as a “tourist hotel,” San Remo Hotel, L. P.
v. City and County of San Francisco, 27 Cal. 4th 643, 654, 41 P.
3d 87, 94 (2002).
After the HCO was revised in 1990, petitioners applied to
convert all of the rooms in the San Remo Hotel into tourist
use rooms under the relevant HCO provisions and
requested a conditional use permit under the applicable
zoning laws. In 1993, the City Planning Commission
granted petitioners’ requested conversion and conditional
use permit, but only after imposing several conditions, one
of which included the requirement that petitioners pay a
$567,000 “in lieu” fee.3 Petitioners appealed, arguing that
the HCO requirement was unconstitutional and otherwise
improperly applied to their hotel. See id., at 656, 41 P. 3d, at

2 It seems that despite this initial classification, the San Remo Hotel has operated as

a mixed hotel for tourists and long-term residents since long before the HCO was
enacted. According to the California Supreme Court, in “a 1992 declaration by
[petitioners], Iribarren filed the ‘incorrect’ initial unit usage report without their
knowledge. They first discovered the report in 1983 when they resumed operation
of the hotel. They protested the residential use classification in 1987, but were told
it could not be changed because the appeal period had passed.” San Remo Hotel, L.
P. v. City and County of San Francisco, 27 Cal. 4th 643, 654, 41 P. 3d 87, 94 (2002).
3 The application specifically required petitioners (1) to pay for 40 percent of the

cost of replacement housing for the 62 lost residential units; (2) to offer lifetime
leases to any then-current residential users; and (3) to “obtain variances from floorarea ratio and parking requirements.” Id., at 656, 41 P. 3d, at 95.

616

95. The City Board of Supervisors rejected petitioners’
appeal on April 19, 1993.
In March 1993, petitioners filed for a writ of administrative
mandamus in California Superior Court. That action lay
dormant for several years, and the parties ultimately agreed
to stay that action after petitioners filed for relief in Federal
District Court.
Petitioners filed in federal court for the first time on May 4,
1993. Petitioners’ first amended complaint alleged four
counts of due process (substantive and procedural) and
takings (facial and as-applied)4 violations under the Fifth
and Fourteenth Amendments to the United States
Constitution, one count seeking damages under Rev. Stat. §
1979, 42 U. S. C. § 1983, for those violations, and one
pendent state-law claim. The District Court granted
respondents summary judgment. As relevant to this action,
the court found that petitioners’ facial takings claim was
untimely under the applicable statute of limitations, and
that the as-applied takings claim was unripe under
Williamson County, 473 U. S. 172.
On appeal to the Court of Appeals for the Ninth Circuit,
petitioners took the unusual position that the court should
not decide their federal claims, but instead should abstain
under Railroad Comm’n of Tex. v. Pullman Co., 312 U. S. 496
(1941), because a return to state court could conceivably
moot the remaining federal questions. See App. 67-68; see
also 145 F. 3d, at 1101. The Court of Appeals obliged
petitioners’ request with respect to the facial challenge, a
4 Specifically, count 3 alleged that the HCO was facially unconstitutional under the

Takings Clause because it “fails to substantially advance legitimate government
interests, deprives plaintiffs of the opportunity to earn a fair return on its
investment, denies plaintiffs economically viable use of their property, and forces
plaintiffs to bear the public burden of housing the poor, all without just
compensation.” First Amended and Supplemental Complaint, No. C-93-1644-DLJ
(ND Cal., Jan. 24, 1994), p. 20, ¶ 49. Count 4, which advanced petitioners’ asapplied Takings Clause violation, was predicated on the same rationale. Id., at 21.

617

request that respondents apparently viewed as an
“outrageous act of chutzpah.” Id., at 1105. That claim, the
court reasoned, was “ripe the instant the 1990 HCO was
enacted,” id., at 1102, and appropriate for Pullman
abstention principally because petitioners’ “entire case”
hinged on the propriety of the planning commission’s
zoning designation – the precise subject of the pending
state mandamus action, 145 F. 3d, at 1105.5 The court,
however, affirmed the District Court’s determination that
petitioners’ as-applied takings claim – the claim that the
application of the HCO to the San Remo Hotel violated
the Takings Clause – was unripe. Because petitioners had
failed to pursue an inverse condemnation action in state
court, they had not yet been denied just compensation as
contemplated by Williamson County. 145 F. 3d, at 1105.
At the conclusion of the Ninth Circuit’s opinion, the court
appended a footnote stating that petitioners would be free
to raise their federal takings claims in the California courts.
If, however, they wanted to “retain [their] right to return to
federal court for adjudication of [their] federal claim, [they]
must make an appropriate reservation in state court.” Id., at
1106, n. 7 (citations omitted).6 That is precisely what
petitioners attempted to do when they reactivated the
dormant California case. Yet petitioners advanced more
than just the claims on which the federal court had
abstained, and phrased their state claims in language that
sounded in the rules and standards established and refined
by this Court’s takings jurisprudence. Petitioners claimed,
for instance, that “imposition of the fee ‘fails to
substantially advance a legitimate government interest’ and
that ‘[t]he amount of the fee imposed is not roughly
5 The Court of Appeals did not answer the question whether this claim was barred

by the statute of limitations, as the District Court had held.
The reservation discussed in the Ninth Circuit’s opinion was the common
reservation of federal claims made in state litigation under England v. Louisiana Bd. of
Medical Examiners, 375 U. S. 411, 420-421 (1964).
6

618

proportional to the impact’ of the proposed tourist use of
the San Remo Hotel.” 27 Cal. 4th, at 656,41 P. 3d, at 95
(quoting petitioners’ second amended state complaint).7
The state trial court dismissed petitioners’ amended
complaint, but the intermediate appellate court reversed.
The court held that petitioners’ claim that the payment of
the “in lieu” fee effected a taking should have been
evaluated under heightened scrutiny. Under more exacting
scrutiny, the fee failed this Court’s “essential nexus” and
“rough proportionality” tests because, inter alia, it was based
on the original flawed designation that the San Remo Hotel
was an entirely “residential use” facility. See id., at 657-658,
41 P. 3d, at 96-97 (summarizing appellate court opinion)
(internal quotation marks omitted).
The California Supreme Court reversed over the partial
dissent of three justices.8 The court initially noted that
petitioners had reserved their federal causes of action and
had sought no relief for any violation of the Federal
Constitution. Id., at 649, n. 1, 41 P. 3d, at 91, n. 1.9 In the
portion of its opinion discussing the Takings Clause of the
California Constitution, however, the court noted that “we
appear to have construed the clauses congruently.” Id., at
664, 41 P. 3d, at 100-101 (citing cases). Accordingly, despite
the fact that petitioners sought relief only under California
7 With respect to claims that a regulation fails to advance a legitimate state interest,

see generally Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 540-545 (2005). With
respect to “rough proportionality” claims, see generally Nollan v. California Coastal
Comm’n, 483 U. S. 825 (1987); Dolan v. City of Tigard, 512 U. S. 374 (1994).
8 Justice Baxter and Justice Chin opined that because some hotel rooms had been

previously rented to tourists, the “in lieu” payment was excessive. 27 Cal. 4th, at
691, 41 P. 3d, at 119-120. Justice Brown opined that a 1985 statute had effectively
superseded the HCO and disagreed with the majority’s analysis of the
constitutional issues. Id., at 699, 700-704, 41 P. 3d, at 125-128.
9 “Plaintiffs sought no relief in state court for violation of the Fifth Amendment to

the United States Constitution. They explicitly reserved their federal causes of
action. As their petition for writ of mandate, as well, rests solely on state law, no
federal question has been presented or decided in this case.” Id., at 649, n. 1, 41 P.
3d, at 91, n. 1.

619

law, the state court decided to “analyze their takings claim
under the relevant decisions of both this court and the
United States Supreme Court.” Ibid., 41 P. 3d, at 101.10
….
Applying the “reasonable relationship” test, the court
upheld the HCO on its face and as applied to petitioners.
As to the facial challenge, the court concluded that the
HCO’s mandated conversion fees “bear a reasonable
relationship to the loss of housing … in the generality or great
majority of cases… .” Id., at 673, 41 P. 3d, at 107. With
respect to petitioners’ as-applied challenge, the court
concluded that the conversion fee was reasonably based on
the number of units designated for conversion, which itself
was based on petitioners’ own estimate that had been
provided to the City in 1981 and had remained
unchallenged for years. Id., at 678, and n. 17, 41 P. 3d, at
110-111, and n. 17. The court therefore reversed the
appellate court and reinstated the trial court’s order
dismissing petitioners’ complaint.
Petitioners did not seek a writ of certiorari from the
California Supreme Court’s decision in this Court. Instead,
they returned to Federal District Court by filing an
amended complaint based on the complaint that they had
filed prior to invoking Pullman abstention.11 The District
10 See also id., at 665, 41 P. 3d, at 101 (“[I]t is the last mentioned prong of the high

court’s takings analysis that is at issue here” (emphasis added)).
11 The third amended complaint, which was filed on November 14, 2002, alleged

two separate counts. See App. 88-93. Count 1 alleged that the HCO was facially
unconstitutional and unconstitutional as applied to petitioners because (a) it failed
“to substantially advance legitimate government interests”; (b) it forced petitioners
“to bear the public burden of housing the poor”; and (c) it imposed unreasonable
conditions on petitioners’ request for a conditional use permit (the in lieu fee and
the required lifetime leases to residential tenants). Id., at 88-89. Count 2 sought
relief under 42 U. S. C. § 1983 based on (a) extortion through the imposition of the
$567,000 fee; (b) an actual taking of property under Penn Central Transp. Co. v. New
York City, 438 U. S. 104 (1978); (c) the failure of the HCO as applied to petitioners to
advance legitimate state interests; (d) the City’s requirement that petitioners bear the full cost of
providing a general public benefit (public housing) without just compensation.

620

Court held that petitioners’ facial attack on the HCO was
not only barred by the statute of limitations, but also by the
general rule of issue preclusion. See App. to Pet. for Cert.
85a-86a.12 The District Court reasoned that 28 U. S. C. §
1738 requires federal courts to give preclusive effect to any
state-court judgment that would have preclusive effect
under the laws of the State in which the judgment was
rendered. Because California courts had interpreted the
relevant substantive state takings law coextensively with
federal law, petitioners’ federal claims constituted the same
claims that had already been resolved in state court.
The Court of Appeals affirmed. The court rejected
petitioners’ contention that general preclusion principles
should be cast aside whenever plaintiffs “must litigate in
state court pursuant to Pullman and/or Williamson County.”
364 F. 3d 1088, 1096 (CA9 2004). Relying on unambiguous
Circuit precedent and the absence of any clearly
contradictory decisions from this Court, the Court of
Appeals found itself bound to apply general issue
preclusion doctrine. Given that general issue preclusion
principles governed, the only remaining question was
whether the District Court properly applied that doctrine;
the court concluded that it did. The court expressly rejected
petitioners’ contention “that California takings law is not
coextensive with federal takings law,” ibid., and held that
the state court’s application of the “reasonable
relationship” test was an “‘equivalent determination’ of
such claims under the federal takings clause,” id., at 1098.13
We granted certiorari and now affirm.
12 The District Court found that most of petitioners’ as-applied claims amounted to nothing more

than improperly labeled facial challenges. See App. to Pet. for Cert. 82a-85a. The remainder of
petitioners’ as-applied claims, the court held, was barred by the statute of limitations. Id., at 84a85a.
13 California courts apply issue preclusion to a final judgment in earlier litigation

between the same parties if “(1) the issue decided in the prior case is identical with
the one now presented; (2) there was a final judgment on the merits in the prior
case, and (3) the party to be estopped was a party to the prior adjudication.” 364 F.

621

II
Article IV, § 1, of the United States Constitution demands
that “Full Faith and Credit shall be given in each State to
the public Acts, Records, and judicial Proceedings of every
other State. And the Congress may by general Laws
prescribe the Manner in which such Acts, Records and
Proceedings shall be proved, and the Effect thereof.” In
1790, Congress responded to the Constitution’s invitation
by enacting the first version of the full faith and credit
statute. See Act of May 26, 1790, ch. 11, 1 Stat. 122.14 The
modern version of the statute, 28 U. S. C. § 1738, provides
that “judicial proceedings … shall have the same full faith
and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in
the courts of such State … .” This statute has long been
understood to encompass the doctrines of res judicata, or
“claim preclusion,” and collateral estoppel, or “issue
preclusion.” See Allen v. McCurry, 449 U. S. 90, 94-96
(1980).15
The general rule implemented by the full faith and credit
statute – that parties should not be permitted to relitigate
issues that have been resolved by courts of competent

3d, at 1096. The court reasoned that the California Supreme Court’s decision
satisfied those criteria because petitioners’ takings challenges “raised in state court
are identical to the federal claims … and are based on the same factual allegations.”
Ibid. Our limited review in this case does not include the question whether the
Court of Appeals’ reading of California preclusion law was in error.
14 “This statute has existed in essentially unchanged form since its enactment just

after the ratification of the Constitution … .” Allen v. McCurry, 449 U. S. 90, 96, n. 8
(1980).
15 “Under res judicata, a final judgment on the merits of an action precludes the

parties or their privies from relitigating issues that were or could have been raised
in that action. Under collateral estoppel, once a court has decided an issue of fact
or law necessary to its judgment, that decision may preclude relitigation of the issue
in a suit on a different cause of action involving a party to the first case.” Id., at 94
(citations omitted).

622

jurisdiction – predates the Republic.16 It “has found its way
into every system of jurisprudence, not only from its
obvious fitness and propriety, but because without it, an
end could never be put to litigation.” Hopkins v. Lee, 6
Wheat. 109, 114 (1821). This Court has explained that the
rule
is demanded by the very object for
which civil courts have been
established, which is to secure the
peace and repose of society by the
settlement of matters capable of
judicial determination. Its enforcement
is essential to the maintenance of
social order; for, the aid of judicial
tribunals would not be invoked for the
vindication of rights of person and
property, if, as between parties and
their privies, conclusiveness did not
attend the judgments of such tribunals
in respect of all matters properly put in
issue and actually determined by them.
Southern Pacific R. Co. v. United States, 168 U. S. 1, 49 (1897).
As this case is presented to us, under our limited grant of
certiorari, we have only one narrow question to decide:
whether we should create an exception to the full faith and
credit statute, and the ancient rule on which it is based, in
order to provide a federal forum for litigants who seek to
advance federal takings claims that are not ripe until the

16 “The authority of the res judicata, with the limitations under which it is admitted,

is derived by us from the Roman law and the Canonists.” Washington, Alexandria, &
Georgetown Steam-Packet Co. v. Sickles, 24 How. 333, 341 (1861); see also id., at 343
(noting that the rule also has its pedigree “[i]n the courts upon the continent of
Europe, and in the courts of chancery and admiralty in the United States and Great
Britain, where the function of adjudication is performed entire by a tribunal
composed of one or more judges …”).

623

entry of a final state judgment denying just compensation.
See Williamson County, 473 U. S. 172.17
The essence of petitioners’ argument is as follows: because
no claim that a state agency has violated the federal Takings
Clause can be heard in federal court until the property
owner has “been denied just compensation” through an
available state compensation procedure, id., at 195, “federal
courts [should be] required to disregard the decision of the
state court” in order to ensure that federal takings claims
can be “considered on the merits in … federal court.” See
Brief for Petitioners 8, 14. Therefore, the argument goes,
whenever plaintiffs reserve their claims under England v.
Louisiana Bd. of Medical Examiners, 375 U. S. 411 (1964),
federal courts should review the reserved federal claims de
novo, regardless of what issues the state court may have
decided or how it may have decided them.
We reject petitioners’ contention. Although petitioners
were certainly entitled to reserve some of their federal
claims, as we shall explain, England does not support their
erroneous expectation that their reservation would fully
negate the preclusive effect of the state-court judgment
with respect to any and all federal issues that might arise in
the future federal litigation. Federal courts, moreover, are
not free to disregard 28 U. S. C. § 1738 simply to guarantee
that all takings plaintiffs can have their day in federal court.
We turn first to England.
III

17 We did not grant certiorari on many of the issues discussed by the parties and

amici. We therefore assume for purposes of our decision that all other issues in this
protracted controversy have been correctly decided. We assume, for instance, that
the Ninth Circuit properly interpreted California preclusion law; that the California
Supreme Court was correct in its determination that California takings law is
coextensive with federal law; that, as a matter of California law, the HCO was
lawfully applied to petitioners’ hotel; and that under California law, the “in lieu” fee
was imposed evenhandedly and substantially advanced legitimate state interests.

624

England involved a group of plaintiffs who had graduated
from chiropractic school, but sought to practice in
Louisiana without complying with the educational
requirements of the State’s Medical Practice Act. 375 U. S.,
at 412. They filed suit in federal court challenging the
constitutionality of the Act. The District Court invoked
Pullman abstention and stayed the proceedings to enable the
Louisiana courts to decide a preliminary and essential
question of state law – namely, whether the state statute
applied at all to chiropractors. 375 U. S., at 413.18 The state
court, however, reached beyond the state-law question and
held not only that the statute applied to the plaintiffs but
also that its application was consistent with the Fourteenth
Amendment to the Federal Constitution. The Federal
District Court then dismissed the federal action without
addressing the merits of the federal claim.
On appeal, we held that when a federal court abstains from
deciding a federal constitutional issue to enable the state
courts to address an antecedent state-law issue, the plaintiff
may reserve his right to return to federal court for the
disposition of his federal claims. Id., at 419. In that case, the
antecedent state issue requiring abstention was distinct from
the reserved federal issue. See id., at 418-419. Our
discussion of the “typical case” in which reservations of
federal issues are appropriate makes clear that our holding
was limited to cases that are fundamentally distinct from
petitioners’. “Typical” England cases generally involve
federal constitutional challenges to a state statute that can
be avoided if a state court construes the statute in a
particular manner.19 In such cases, the purpose of
18 We stressed in England that abstention was essential to prevent the district court

from deciding “‘questions of constitutionality on the basis of preliminary guesses
regarding local law.’” 375 U. S., at 416, n. 7 (quoting Spector Motor Service, Inc. v.
McLaughlin, 323 U. S. 101, 105 (1944)).
19 375 U. S., at 420 (describing the “typical case” as one in which “the state courts

are asked to construe a state statute against the backdrop of a federal constitutional
challenge”).

625

abstention is not to afford state courts an opportunity to
adjudicate an issue that is functionally identical to the
federal question. To the contrary, the purpose of Pullman
abstention in such cases is to avoid resolving the federal
question by encouraging a state-law determination that may
moot the federal controversy. See 375 U. S., at 416-417,and
n. 7.20 Additionally, our opinion made it perfectly clear that
the effective reservation of a federal claim was dependent
on the condition that plaintiffs take no action to broaden
the scope of the state court’s review beyond decision of the
antecedent state-law issue.21
Our holding in England does not support petitioners’
attempt to relitigate issues resolved by the California courts.
With respect to petitioners’ facial takings claims, the Court
of Appeals invoked Pullman abstention after determining
that a ripe federal question existed – namely, “the facial
takings challenge to the 1990 HCO.” 145 F. 3d, at 1105.22 It
did so because “‘land use planning is a sensitive area of
social policy’” and because petitioners’ pending state
mandamus action had the potential of mooting their facial
challenge to the HCO by overturning the City’s original
20 As we explained in Allen, 449 U. S., at 101-102, n. 17, “[t]he holding in England

depended entirely on this Court’s view of the purpose of abstention in such a case:
Where a plaintiff properly invokes federal-court jurisdiction in the first instance on a
federal claim, the federal court has a duty to accept that jurisdiction. Abstention
may serve only to postpone, rather than to abdicate, jurisdiction, since its purpose
is to determine whether resolution of the federal question is even necessary, or to
obviate the risk of a federal court’s erroneous construction of state law.” (Emphasis
added and citations omitted.)
21 375 U. S., at 419 (“[I]f a party freely and without reservation submits his federal

claims for decision by the state courts, litigates them there, and has them decided
there, then … he has elected to forgo his right to return to the District Court”).
Petitioners’ facial challenges to the HCO were ripe, of course, under Yee v.
Escondido, 503 U. S. 519, 534 (1992), in which we held that facial challenges based
on the “substantially advances” test need not be ripened in state court – the claims
do “not depend on the extent to which petitioners are deprived of the economic
use of their particular pieces of property or the extent to which these particular
petitioners are compensated.” Ibid.
22

626

classification of the San Remo Hotel as a “residential”
property. Ibid. Thus, petitioners were entitled to insulate
from preclusive effect one federal issue – their facial
constitutional challenge to the HCO – while they returned
to state court to resolve their petition for writ of mandate.
Petitioners, however, chose to advance broader issues than
the limited issues contained within their state petition for
writ of administrative mandamus on which the Ninth
Circuit relied when it invoked Pullman abstention. In their
state action, petitioners advanced not only their request for
a writ of administrative mandate, 27 Cal. 4th, at 653, 41 P.
3d, at 93, but also their various claims that the HCO was
unconstitutional on its face and as applied for (1) its failure
to substantially advance a legitimate interest, (2) its lack of a
nexus between the required fees and the ultimate objectives
sought to be achieved via the ordinance, and (3) its
imposition of an undue economic burden on individual
property owners. Id., at 672-676, 41 P. 3d, at 106-109. By
broadening their state action beyond the mandamus
petition to include their “substantially advances” claims,
petitioners effectively asked the state court to resolve the
same federal issues they asked it to reserve. England does
not support the exercise of any such right.
Petitioners’ as-applied takings claims fare no better. As an
initial matter, the Court of Appeals did not abstain with
respect to those claims. Instead, the court found that they
were unripe under Williamson County. The court therefore
affirmed the District Court’s dismissal of those claims. 145
F. 3d, at 1106. Unlike their “substantially advances” claims,
petitioners’ as-applied claims were never properly before
the District Court, and there was no reason to expect that
they could be relitigated in full if advanced in the state
proceedings. See Allen, 449 U. S., at 101, n. 17. In short,
our opinion in England does not support petitioners’
attempt to circumvent § 1738.
IV

627

Petitioners’ ultimate submission, however, does not rely on
England alone. Rather, they argue that federal courts simply
should not apply ordinary preclusion rules to state-court
judgments when a case is forced into state court by the
ripeness rule of Williamson County. For support, petitioners
rely on the Court of Appeals for the Second Circuit’s
decision in Santini, 342 F. 3d, at 130.
In Santini, the Second Circuit held that parties “who litigate
state-law takings claims in state court involuntarily”
pursuant to Williamson County cannot be precluded from
having those very claims resolved “by a federal court.” 342
F. 3d, at 130. The court did not rest its decision on any
provision of the federal full faith and credit statute or our
cases construing that law. Instead, the court reasoned that
“[i]t would be both ironic and unfair if the very procedure
that the Supreme Court required [plaintiffs] to follow
before bringing a Fifth Amendment takings claim … also
precluded [them] from ever bringing a Fifth Amendment
takings claim.” Ibid. We find this reasoning unpersuasive
for several reasons.
First, both petitioners and Santini ultimately depend on an
assumption that plaintiffs have a right to vindicate their
federal claims in a federal forum. We have repeatedly held,
to the contrary, that issues actually decided in valid statecourt judgments may well deprive plaintiffs of the “right”
to have their federal claims relitigated in federal court. See,
e. g., Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75,
84 (1984); Allen, 449 U. S., at 103-104. This is so even when
the plaintiff would have preferred not to litigate in state
court, but was required to do so by statute or prudential
rules. See id., at 104. The relevant question in such cases is
not whether the plaintiff has been afforded access to a
federal forum; rather, the question is whether the state
court actually decided an issue of fact or law that was
necessary to its judgment.

628

In Allen, the plaintiff, Willie McCurry, invoked the Fourth
and Fourteenth Amendments in an unsuccessful attempt to
suppress evidence in a state criminal trial. After he was
convicted, he sought to remedy his alleged constitutional
violation by bringing a suit for damages under 42 U. S. C. §
1983 against the officers who had entered his home.
Relying on “‘the special role of federal courts in protecting
civil rights’” and the fact that § 1983 provided the “only
route to a federal forum,” the Court of Appeals held that
McCurry was entitled to a federal trial unencumbered by
collateral estoppel. 449 U. S., at 93. We rejected that
argument emphatically.
The actual basis of the Court of
Appeals’ holding appears to be a
generally framed principle that every
person asserting a federal right is
entitled to one unencumbered
opportunity to litigate that right in a
federal district court, regardless of the
legal posture in which the federal claim
arises. But the authority for this
principle is difficult to discern. It
cannot lie in the Constitution, which
makes no such guarantee, but leaves
the scope of the jurisdiction of the
federal district courts to the wisdom of
Congress. And no such authority is to
be found in § 1983 itself … . There is,
in short, no reason to believe that
Congress intended to provide a person
claiming a federal right an unrestricted
opportunity to relitigate an issue
already decided in state court simply
because the issue arose in a state
proceeding in which he would rather
not have been engaged at all.

629

Id., at 103-104 (footnote omitted).23
As in Allen, we are presently concerned only with issues
actually decided by the state court that are dispositive of
federal claims raised under § 1983. And, also as in Allen, it
is clear that petitioners would have preferred not to have
been forced to have their federal claims resolved by issues
decided in state court. Unfortunately for petitioners, it is
entirely unclear why their preference for a federal forum
should matter for constitutional or statutory purposes.
The only distinction between this case and Allen that is
possibly relevant is the fact that petitioners here originally
invoked the jurisdiction of a Federal District Court, which
abstained on Pullman grounds while petitioners returned to
state court. But petitioners’ as-applied takings claims were
never properly before the District Court because they were
unripe. And, as we have already explained, the Court of
Appeals invoked Pullman abstention only with respect to
petitioners’ “substantially advances” takings challenge,
which petitioners then gratuitously presented to the state
court. At a bare minimum, with respect to the facial takings
claim, petitioners were “in an offensive posture in [their]
state-court proceeding, and could have proceeded first in
federal court had [they] wanted to litigate [their
“substantially advances”] federal claim in a federal forum.”
Migra, 465 U. S., at 85, n. 7. Thus, the only distinction
between this case and Allen is a distinction of no relevant
significance.
23 We expressed similar views in Migra v. Warren City School Dist. Bd. of Ed., 465 U. S.

75, 84 (1984):
“Although such a division may seem attractive from a
plaintiff’s perspective, it is not the system established by §
1738. That statute embodies the view that it is more
important to give full faith and credit to state-court
judgments than to ensure separate forums for federal and
state claims. This reflects a variety of concerns, including
notions of comity, the need to prevent vexatious litigation,
and a desire to conserve judicial resources.”

630

The second reason we find petitioners’ argument
unpersuasive is that it assumes that courts may simply
create exceptions to 28 U. S. C. § 1738 wherever courts
deem them appropriate. Even conceding, arguendo, the
laudable policy goal of making federal forums available to
deserving litigants, we have expressly rejected petitioners’
view. “Such a fundamental departure from traditional rules
of preclusion, enacted into federal law, can be justified only
if plainly stated by Congress.” Kremer v. Chemical Constr.
Corp., 456 U. S. 461, 485 (1982). Our cases have therefore
made plain that “an exception to § 1738 will not be
recognized unless a later statute contains an express or
implied partial repeal.” Id., at 468 (citing Allen, 449 U. S., at
99). Even when the plaintiff’s resort to state court is
involuntary and the federal interest in denying finality is
robust, we have held that Congress “must ‘clearly manifest’
its intent to depart from § 1738.” 456 U. S., at 477.
The same concerns animate our decision here. Congress
has not expressed any intent to exempt from the full faith
and credit statute federal takings claims. Consequently, we
apply our normal assumption that the weighty interests in
finality and comity trump the interest in giving losing
litigants access to an additional appellate tribunal. As we
explained in Federated Department Stores, Inc. v. Moitie, 452 U.
S. 394 (1981):
[W]e do not see the grave injustice
which would be done by the
application of accepted principles of
res judicata. ‘Simple justice’ is achieved
when a complex body of law
developed over a period of years is
evenhandedly applied. The doctrine of
res judicata serves vital public interests
beyond any individual judge’s ad hoc
determination of the equities in a
particular case. There is simply ‘no
principle of law or equity which

631

sanctions the rejection by a federal
court of the salutary principle of res
judicata.’
Id., at 401 (quoting Heiserv. Woodruff, 327 U. S. 726, 733
(1946)).
Third, petitioners have overstated the reach of Williamson
County throughout this litigation. Petitioners were never
required to ripen the heart of their complaint – the claim
that the HCO was facially invalid because it failed to
substantially advance a legitimate state interest – in state
court. See Yee v. Escondido, 503 U. S. 519, 534 (1992).
Petitioners therefore could have raised most of their facial
takings challenges, which by their nature requested relief
distinct from the provision of “just compensation,” directly
in federal court.24 Alternatively, petitioners had the option
of reserving their facial claims while pursuing their asapplied claims along with their petition for writ of
administrative mandamus. Petitioners did not have the
right, however, to seek state review of the same substantive
issues they sought to reserve. The purpose of the England
reservation is not to grant plaintiffs a second bite at the
apple in their forum of choice.
With respect to those federal claims that did require
ripening, we reject petitioners’ contention that Williamson
County forbids plaintiffs from advancing their federal claims
in state courts. The requirement that aggrieved property
owners must seek “compensation through the procedures
the State has provided for doing so,” 473 U. S., at 194, does
not preclude state courts from hearing simultaneously a
plaintiff’s request for compensation under state law and the
claim that, in the alternative, the denial of compensation
24 In all events, petitioners may no longer advance such claims given our recent

holding that the “‘substantially advances’ formula is not a valid takings test, and
indeed … has no proper place in our takings jurisprudence.” Lingle, 544 U. S., at
548.

632

would violate the Fifth Amendment of the Federal
Constitution. Reading Williamson County to preclude
plaintiffs from raising such claims in the alternative would
erroneously interpret our cases as requiring property
owners to “resort to piecemeal litigation or otherwise unfair
procedures.” MacDonald, Sommer & Frates v. Yolo County, 477
U. S. 340, 350, n. 7 (1986).
It is hardly a radical notion to recognize that, as a practical
matter, a significant number of plaintiffs will necessarily
litigate their federal takings claims in state courts. It was
settled well before Williamson County that “a claim that the
application of government regulations effects a taking of a
property interest is not ripe until the government entity
charged with implementing the regulations has reached a
final decision regarding the application of the regulations to
the property at issue.” 473 U. S., at 186. As a consequence,
there is scant precedent for the litigation in federal district
court of claims that a state agency has taken property in
violation of the Fifth Amendment’s takings clause. To the
contrary, most of the cases in our takings jurisprudence,
including nearly all of the cases on which petitioners rely,
came to us on writs of certiorari from state courts of last
resort.25
Moreover, this is not the only area of law in which we have
recognized limits to plaintiffs’ ability to press their federal
claims in federal courts. See, e. g., Fair Assessment in Real
Estate Assn., Inc. v. McNary, 454 U. S. 100, 116 (1981)
(holding that taxpayers are “barred by the principle of
comity from asserting § 1983 actions against the validity of
25 See, e. g., Dolan, 512 U. S., at 383; Yee, 503 U. S., at 526; Nollan, 483 U. S., at 830;

First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S.
304, 310-311 (1987); Penn Central, 438 U. S., at 120-122. Indeed, Justice Holmes’
famous “too far” formulation, which spawned our regulatory takings jurisprudence,
was announced in a case that came to this Court via a writ of certiorari to
Pennsylvania’s highest court. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415
(1922).

633

state tax systems in federal courts”). State courts are fully
competent to adjudicate constitutional challenges to local
land-use decisions. Indeed, state courts undoubtedly have
more experience than federal courts do in resolving the
complex factual, technical, and legal questions related to
zoning and land-use regulations.
At base, petitioners’ claim amounts to little more than the
concern that it is unfair to give preclusive effect to statecourt proceedings that are not chosen, but are instead
required in order to ripen federal takings claims. Whatever
the merits of that concern may be, we are not free to
disregard the full faith and credit statute solely to preserve
the availability of a federal forum. The Court of Appeals
was correct to decline petitioners’ invitation to ignore the
requirements of 28 U. S. C. § 1738. The judgment of the
Court of Appeals is therefore affirmed.
It is so ordered
CHIEF JUSTICE REHNQUIST, with whom JUSTICE
O'CONNOR, JUSTICE KENNEDY, and JUSTICE THOMAS join,
concurring in the judgment.
I agree that the judgment of the Court of Appeals should
be affirmed. Whatever the reasons for petitioners’ chosen
course of litigation in the state courts, it is quite clear that
they are now precluded by the full faith and credit statute,
28 U. S. C. § 1738, from relitigating in their 42 U. S. C. §
1983 action those issues which were adjudicated by the
California courts. See Migra v. Warren City School Dist. Bd. of
Ed., 465 U. S. 75, 84 (1984); Allen v. McCurry, 449 U. S. 90,
103-105 (1980). There is no basis for us to except from §
1738’s reach all claims brought under the Takings Clause.
See, e. g., Kremer v. Chemical Constr. Corp., 456 U. S. 461, 485
(1982). I write separately to explain why I think part of our
decision in Williamson County Regional Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U. S. 172 (1985), may
have been mistaken.

634

In Williamson County, the respondent land developer filed a
§ 1983 suit in federal court alleging a regulatory takings
claim after a regional planning commission disapproved
respondent’s plat proposals, but before respondent
appealed that decision to the zoning board of appeals. Id.,
at 181-182. Rather than reaching the merits, we found the
claim was brought prematurely. Id., at 200. We first held
that the claim was “not ripe until the government entity
charged with implementing the regulations [had] reached a
final decision regarding the application of the regulations to
the property at issue.” Id., at 186. Because respondent failed
to seek variances from the planning commission or the
zoning board of appeals, we decided that respondent had
failed to meet the final-decision requirement. Id., at 187191. We then noted a “second reason the taking claim [was]
not yet ripe”: “respondent did not seek compensation
through the procedures the State [had] provided for doing
so.” Id., at 194. Until the claimant had received a final
denial of compensation through all available state
procedures, such as by an inverse condemnation action, we
said he could not “claim a violation of the Just
Compensation Clause.” Id., at 195-196.
It is not clear to me that Williamson County was correct in
demanding that, once a government entity has reached a
final decision with respect to a claimant’s property, the
claimant must seek compensation in state court before
bringing a federal takings claim in federal court. The Court
in Williamson County purported to interpret the Fifth
Amendment in divining this state-litigation requirement.
See, e. g., id., at 194, n. 13 (“The nature of the constitutional
right … requires that a property owner utilize procedures
for obtaining compensation before bringing a § 1983
action”). More recently, we have referred to it as merely a
prudential requirement. Suitum v. Tahoe Regional Planning
Agency, 520 U. S. 725, 733-734 (1997). It is not obvious that
either constitutional or prudential principles require

635

claimants to utilize all state compensation procedures
before they can bring a federal takings claim. Cf. Patsy v.
Board of Regents of Fla., 457 U. S. 496, 516 (1982)(holding
that plaintiffs suing under § 1983 are not required to have
exhausted state administrative remedies).26
The Court today attempts to shore up the state-litigation
requirement by referring to Fair Assessment in Real Estate
Assn., Inc. v. McNary, 454 U. S. 100 (1981). Ante, at 347.
There, we held that the principle of comity (reflected in the
Tax Injunction Act, 28 U. S. C. § 1341) bars taxpayers from
asserting § 1983 claims against the validity of state tax
systems in federal courts. 454 U. S., at 116. Our decision
that such suits must be brought in state court was driven by
the unique and sensitive interests at stake when federal
courts confront claims that States acted impermissibly in
administering their own tax systems. Id., at 102-103, 107113. Those historically grounded, federalism-based
concerns had led to a longstanding, “fundamental principle
of comity between federal courts and state governments
…, particularly in the area of state taxation,” a principle
which predated the enactment of § 1983 itself. Id., at 103,
107-114. We decided that those interests favored requiring
that taxpayers bring challenges to the validity of state tax
systems in state court, despite the strong interests favoring
federal court review of alleged constitutional violations by
state officials. Id., at 115-116.
The Court today makes no claim that any such
longstanding principle of comity toward state courts in
handling federal takings claims existed at the time
Williamson County was decided, nor that one has since
26 In creating the state-litigation rule, the Court, in addition to relying on the Fifth

Amendment’s text, analogized to Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984),
and Parratt v. Taylor, 451 U. S. 527 (1981). As several of petitioners’ amici in this case
have urged, those cases provided limited support for the state-litigation
requirement. See Brief for Defenders of Property Rights et al. as Amici Curiae 9-12;
Brief for Elizabeth J. Neumont et al. as Amici Curiae 10-14.

636

developed. The Court does remark, however, that state
courts are more familiar with the issues involved in local
land-use and zoning regulations, and it suggests that this
makes it proper to relegate federal takings claims to state
court. Ante, at 347. But it is not apparent that any such
expertise matches the type of historically grounded,
federalism-based interests we found necessary to our
decision in Fair Assessment. In any event, the Court has not
explained why we should hand authority over federal
takings claims to state courts, based simply on their relative
familiarity with local land-use decisions and proceedings,
while allowing plaintiffs to proceed directly to federal court
in cases involving, for example, challenges to municipal
land-use regulations based on the First Amendment, see, e.
g., Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986); Young
v. American Mini Theatres, Inc., 427 U. S. 50 (1976), or the
Equal Protection Clause, see, e. g., Cleburne v. Cleburne Living
Center, Inc., 473 U. S. 432 (1985); Village of Belle Terre v.
Boraas, 416 U. S. 1 (1974). In short, the affirmative case for
the state-litigation requirement has yet to be made.
Finally, Williamson County’s state-litigation rule has created
some real anomalies, justifying our revisiting the issue. For
example, our holding today ensures that litigants who go to
state court to seek compensation will likely be unable later
to assert their federal takings claims in federal court. Ante,
at 346-347. And, even if preclusion law would not block a
litigant’s claim, the Rooker-Feldman doctrine might, insofar
as Williamson County can be read to characterize the state
courts’ denial of compensation as a required element of the
Fifth Amendment takings claim. See Exxon Mobil Corp. v.
Saudi Basic Industries Corp., 544 U. S. 280 (2005). As the
Court recognizes, ante, at 346-347, Williamson County all but
guarantees that claimants will be unable to utilize the
federal courts to enforce the Fifth Amendment’s just
compensation guarantee. The basic principle that state
courts are competent to enforce federal rights and to

637

adjudicate federal takings claims is sound, see ante, at 347,
and would apply to any number of federal claims. Cf. 28 U.
S. C. § 2254 (providing for limited federal habeas review of
state-court adjudications of alleged violations of the
Constitution). But that principle does not explain why
federal takings claims in particular should be singled out to
be confined to state court, in the absence of any asserted
justification or congressional directive.27
***
I joined the opinion of the Court in Williamson County. But
further reflection and experience lead me to think that the
justifications for its state-litigation requirement are suspect,
while its impact on takings plaintiffs is dramatic. Here, no
court below has addressed the correctness of Williamson
County, neither party has asked us to reconsider it, and
resolving the issue could not benefit petitioners. In an
appropriate case, I believe the Court should reconsider
whether plaintiffs asserting a Fifth Amendment takings
claim based on the final decision of a state or local
government entity must first seek compensation in state
courts.

Indeed, in some States the courts themselves apply the state-litigation
requirement from Williamson County Regional Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U. S. 172 (1985), refusing to entertain any federal takings claim
until the claimant receives a final denial of compensation through all the available
state procedures. See, e. g., Breneric Assoc. v. City of Del Mar, 69 Cal. App. 4th 166,
188-189, 81 Cal. Rptr. 2d 324, 338-339 (1998); Melillo v. City of New Haven, 249
Conn. 138, 154, n. 28, 732 A. 2d 133, 143, n. 28 (1999). This precludes litigants
from asserting their federal takings claim even in state court. The Court tries to
avoid this anomaly by asserting that, for plaintiffs attempting to raise a federal
takings claim in state court as an alternative to their state claims, Williamson County
does not command that the state courts themselves impose the state-litigation
requirement. Ante, at 346. But that is so only if Williamson County’s state-litigation
requirement is merely a prudential rule, and not a constitutional mandate, a
question that the Court today conspicuously leaves open.
27

638

4.5. Exactions
Dolan v. City of Tigard,512 U.S. 374
114 S. Ct. 2309 (1994)
David B. Smith, Tigard, OR, for petitioner.
Timothy V. Ramis, Portland, OR, for respondent.
Edwin S. Kneedler, Washington, DC, for U.S., as amicus
curiae by special leave of the Court.
CHIEF JUSTICE REHNQUIST delivered the opinion of the
Court.
Petitioner challenges the decision of the Oregon Supreme
Court which held that the city of Tigard could condition
the approval of her building permit on the dedication of a
portion of her property for flood control and traffic
improvements. 317 Ore. 110, 854 P.2d 437 (1993). We
granted certiorari to resolve a question left open by our
decision in Nollan v. California Coastal Comm’n, 483 U.S.
825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), of what is the
required degree of connection between the exactions
imposed by the city and the projected impacts of the
proposed development.
I
The State of Oregon enacted a comprehensive land use
management program in 1973. Ore.Rev.Stat. ss 197.005197.860 (1991). The program required all Oregon cities and
counties to adopt new comprehensive land use plans that
were consistent with the statewide planning goals. ss
197.175(1), 197.250. The plans are implemented by land
use regulations which are part of an integrated hierarchy of
legally binding goals, plans, and regulations. ss 197.175,
197.175(2)(b). Pursuant to the State’s requirements, the city
of Tigard, a community of some 30,000 residents on the
southwest edge of Portland, developed a comprehensive
plan and codified it in its Community Development Code

639

(CDC). The CDC requires property owners in the area
zoned Central Business District to comply with a 15%
open space and landscaping requirement, which limits total
site coverage, including all structures and paved parking, to
85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert.
G-16 to G-17. After the completion of a transportation
study that identified congestion in the Central Business
District as a particular problem, the city adopted a plan for
a pedestrian/bicycle pathway intended to encourage
alternatives to automobile transportation for short trips.
The CDC requires that new development facilitate this plan
by dedicating land for pedestrian pathways where provided
for in the pedestrian/bicycle pathway plan.1
The city also adopted a Master Drainage Plan (Drainage
Plan). The Drainage Plan noted that flooding occurred in
several areas along Fanno Creek, including areas near
petitioner’s property. Record, Doc. No. F, ch. 2, pp. 2-5 to
2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also
established that the increase in impervious surfaces
associated with continued urbanization would exacerbate
these flooding problems. To combat these risks, the
Drainage Plan suggested a series of improvements to the
Fanno Creek Basin, including channel excavation in the
area next to petitioner’s property. App. to Pet. for Cert. G13, G-38. Other recommendations included ensuring that
the floodplain remains free of structures and that it be
preserved as greenways to minimize flood damage to
structures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The
CDC s 18.86.040.A.1.b provides: “The development shall facilitate
pedestrian/bicycle circulation if the site is located on a street with designated
bikepaths or adjacent to a designated greenway/open space/park. Specific items to
be addressed [include]: (i) Provision of efficient, convenient and continuous
pedestrian and bicycle transit circulation systems, linking developments by
requiring dedication and construction of pedestrian and bikepaths identified in the
comprehensive plan. If direct connections cannot be made, require that funds in
the amount of the construction cost be deposited into an account for the purpose
of constructing paths.” App. to Brief for Respondent B-33 to B-34.
1

640

Drainage Plan concluded that the cost of these
improvements should be shared based on both direct and
indirect benefits, with property owners along the waterways
paying more due to the direct benefit that they would
receive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86
and CDC s 18.164.100 and the Tigard Park Plan carry out
these recommendations.
Petitioner Florence Dolan owns a plumbing and electric
supply store located on Main Street in the Central Business
District of the city. The store covers approximately 9,700
square feet on the eastern side of a 1.67-acre parcel, which
includes a gravel parking lot. Fanno Creek flows through
the southwestern corner of the lot and along its western
boundary. The year-round flow of the creek renders the
area within the creek’s 100-year floodplain virtually
unusable for commercial development. The city’s
comprehensive plan includes the Fanno Creek floodplain as
part of the city’s greenway system.
Petitioner applied to the city for a permit to redevelop the
site. Her proposed plans called for nearly doubling the size
of the store to 17,600 square feet and paving a 39-space
parking lot. The existing store, located on the opposite side
of the parcel, would be razed in sections as construction
progressed on the new building. In the second phase of the
project, petitioner proposed to build an additional structure
on the northeast side of the site for complementary
businesses and to provide more parking. The proposed
expansion and intensified use are consistent with the city’s
zoning scheme in the Central Business District. CDC s
18.66.030, App. to Brief for Petitioner C-1 to C-3.
The City Planning Commission (Commission) granted
petitioner’s permit application subject to conditions
imposed by the city’s CDC. The CDC establishes the
following standard for site development review approval:

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“Where landfill and/or development is
allowed within and adjacent to the
100-year floodplain, the City shall
require the dedication of sufficient
open land area for greenway adjoining
and within the floodplain. This area
shall include portions at a suitable
elevation for the construction of a
pedestrian/bicycle pathway within the
floodplain in accordance with the
adopted pedestrian/bicycle plan.”
CDC s 18.120.180.A.8, App. to Brief
for Respondent B-45 to B-46.
Thus, the Commission required that petitioner dedicate the
portion of her property lying within the 100-year floodplain
for improvement of a storm drainage system along Fanno
Creek and that she dedicate an additional 15-foot strip of
land adjacent to the floodplain as a pedestrian/bicycle
pathway.2 The dedication required by that condition
encompasses approximately 7,000 square feet, or roughly
10% of the property. In accordance with city practice,
petitioner could rely on the dedicated property to meet the
15% open space and landscaping requirement mandated by
the city’s zoning scheme. App. to Pet. for Cert. G-28 to G29. The city would bear the cost of maintaining a
landscaped buffer between the dedicated area and the new
store. Id., at G-44 to G-45.
Petitioner requested variances from the CDC standards.
Variances are granted only where it can be shown that,
owing to special circumstances related to a specific piece of
the land, the literal interpretation of the applicable zoning
2 The city’s decision includes the following relevant conditions: “1. The applicant

shall dedicate to the City as Greenway all portions of the site that fall within the
existing 100-year floodplain [of Fanno Creek] ( i.e., all portions of the property
below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot
floodplain boundary. The building shall be designed so as not to intrude into the
greenway area.” App. to Pet. for Cert. G-43.

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provisions would cause “an undue or unnecessary
hardship” unless the variance is granted. CDC s 18.134.010,
App. to Brief for Respondent B-47.3 Rather than posing
alternative mitigating measures to offset the expected
impacts of her proposed development, as allowed under
the CDC, petitioner simply argued that her proposed
development would not conflict with the policies of the
comprehensive plan. Id., at E-4. The Commission denied
the request.
The Commission made a series of findings concerning the
relationship between the dedicated conditions and the
projected impacts of petitioner’s project. First, the
Commission noted that “[i]t is reasonable to assume that
customers and employees of the future uses of this site
could utilize a pedestrian/bicycle pathway adjacent to this
3 CDC s 18.134.050 contains the following criteria whereby the decisionmaking

authority can approve, approve with modifications, or deny a variance request:
“(1) The proposed variance will not be materially
detrimental to the purposes of this title, be in conflict with
the policies of the comprehensive plan, to any other
applicable policies and standards, and to other properties
in the same zoning district or vicinity;
“(2) There are special circumstances that exist which are
peculiar to the lot size or shape, topography or other
circumstances over which the applicant has no control,
and which are not applicable to other properties in the
same zoning district;
“(3) The use proposed will be the same as permitted under
this title and City standards will be maintained to the
greatest extent possible, while permitting some economic
use of the land;
“(4) Existing physical and natural systems, such as but not
limited to traffic, drainage, dramatic land forms, or parks
will not be adversely affected any more than would occur
if the development were located as specified in the title;
and
“(5) The hardship is not self-imposed and the variance
requested is the minimum variance which would alleviate
the hardship.”

App. to Brief for Respondent B-49 to B-50.

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development for their transportation and recreational
needs.” City of Tigard Planning Commission Final Order
No. 91-09 PC, App. to Pet. for Cert. G-24. The
Commission noted that the site plan has provided for
bicycle parking in a rack in front of the proposed building
and “[i]t is reasonable to expect that some of the users of
the bicycle parking provided for by the site plan will use the
pathway adjacent to Fanno Creek if it is constructed.” Ibid.
In addition, the Commission found that creation of a
convenient, safe pedestrian/bicycle pathway system as an
alternative means of transportation “could offset some of
the traffic demand on [nearby] streets and lessen the
increase in traffic congestion.” Ibid.
The Commission went on to note that the required
floodplain dedication would be reasonably related to
petitioner’s request to intensify the use of the site given the
increase in the impervious surface. The Commission stated
that the “anticipated increased storm water flow from the
subject property to an already strained creek and drainage
basin can only add to the public need to manage the stream
channel and floodplain for drainage purposes.” Id., at G37. Based on this anticipated increased storm water flow,
the Commission concluded that “the requirement of
dedication of the floodplain area on the site is related to the
applicant’s plan to intensify development on the site.” Ibid.
The Tigard City Council approved the Commission’s final
order, subject to one minor modification; the city council
reassigned the responsibility for surveying and marking the
floodplain area from petitioner to the city’s engineering
department. Id., at G-7.
Petitioner appealed to the Land Use Board of Appeals
(LUBA) on the ground that the city’s dedication
requirements were not related to the proposed
development, and, therefore, those requirements
constituted an uncompensated taking of her property under
the Fifth Amendment. In evaluating the federal taking

644

claim, LUBA assumed that the city’s findings about the
impacts of the proposed development were supported by
substantial evidence. Dolan v. Tigard, LUBA 91-161 (Jan.
7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9.
Given the undisputed fact that the proposed larger building
and paved parking area would increase the amount of
impervious surfaces and the runoff into Fanno Creek,
LUBA concluded that “there is a ‘reasonable relationship’
between the proposed development and the requirement to
dedicate land along Fanno Creek for a greenway.” Id., at D16. With respect to the pedestrian/bicycle pathway, LUBA
noted the Commission’s finding that a significantlylarger
retail sales building and parking lot would attract larger
numbers of customers and employees and their vehicles. It
again found a “reasonable relationship” between alleviating
the impacts of increased traffic from the development and
facilitating the provision of a pedestrian/bicycle pathway as
an alternative means of transportation. Ibid.
The Oregon Court of Appeals affirmed, rejecting
petitioner’s contention that in Nollan v. California Coastal
Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677
(1987), we had abandoned the “reasonable relationship”
test in favor of a stricter “essential nexus” test. 113
Ore.App. 162, 832 P.2d 853 (1992). The Oregon Supreme
Court affirmed. 317 Ore. 110, 854 P.2d 437 (1993). The
court also disagreed with petitioner’s contention that the
Nollan Court abandoned the “reasonably related” test. 317
Ore., at 118, 854 P.2d, at 442. Instead, the court read
Nollan to mean that an “exaction is reasonably related to
an impact if the exaction serves the same purpose that a
denial of the permit would serve.” 317 Ore., at 120, 854
P.2d, at 443. The court decided that both the
pedestrian/bicycle pathway condition and the storm
drainage dedication had an essential nexus to the
development of the proposed site. Id., at 121, 854 P.2d, at
443. Therefore, the court found the conditions to be

645

reasonably related to the impact of the expansion of
petitioner’s business. Ibid4 We granted certiorari, 510 U.S.
989, 114 S.Ct. 544, 126 L.Ed.2d 446 (1993), because of an
alleged conflict between the Oregon Supreme Court’s
decision and our decision in Nollan, supra.
II
The Takings Clause of the Fifth Amendment of the United
States Constitution, made applicable to the States through
the Fourteenth Amendment, Chicago, B. & Q.R. Co. v.
Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979
(1897), provides: “[N]or shall private property be taken for
public use, without just compensation.”5 One of the
principal purposes of the Takings Clause is “to bar
Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole.” Armstrong v. United
States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554
(1960). Without question, had the city simply required
petitioner to dedicate a strip of land along Fanno Creek for
4 The Supreme Court of Oregon did not address the consequences of petitioner’s

failure to provide alternative mitigation measures in her variance application and we
take the case as it comes to us. Accordingly, we do not pass on the constitutionality
of the city’s variance provisions.
Justice STEVENS’ dissent suggests that this case is actually grounded in
“substantive” due process, rather than in the view that the Takings Clause of the
Fifth Amendment was made applicable to the States by the Fourteenth
Amendment. But there is no doubt that later cases have held that the Fourteenth
Amendment does make the Takings Clause of the Fifth Amendment applicable to
the States, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122, 98
S.Ct. 2646, 2658, 57 L.Ed.2d 631 (1978); Nollan v. California Coastal Comm’n, 483
U.S. 825, 827, 107 S.Ct. 3141, 3143, 97 L.Ed.2d 677 (1987). Nor is there any doubt
that these cases have relied upon Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226,
17 S.Ct. 581, 41 L.Ed. 979 (1897), to reach that result. See, e.g., Penn Central,
supra, 438 U.S., at 122, 98 S.Ct., at 2658 (“The issu[e] presented … [is] whether the
restrictions imposed by New York City’s law upon appellants’ exploitation of the
Terminal site effect a ‘taking’ of appellants’ property for a public use within the
meaning of the Fifth Amendment, which of course is made applicable to the States
through the Fourteenth Amendment, see Chicago, B. & Q.R. Co. v. Chicago, 166
U.S. 226, 239, 17 S.Ct. 581, 585, 41 L.Ed. 979 (1897)”).
5

646

public use, rather than conditioning the grant of her permit
to redevelop her property on such a dedication, a taking
would have occurred. Nollan, supra, 483 U.S., at 831, 107
S.Ct., at 3145. Such public access would deprive petitioner
of the right to exclude others, “one of the most essential
sticks in the bundle of rights that are commonly
characterized as property.” Kaiser Aetna v. United States,
444 U.S. 164, 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 332
(1979).
On the other side of the ledger, the authority of state and
local governments to engage in land use planning has been
sustained against constitutional challenge as long ago as our
decision in Village of Euclid v. Ambler Realty Co., 272 U.S.
365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). “Government
hardly could go on if to some extent values incident to
property could not be diminished without paying for every
such change in the general law.” Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322
(1922). A land use regulation does not effect a taking if it
“substantially advance[s] legitimate state interests” and does
not “den [y] an owner economically viable use of his land.”
Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980).6
The sort of land use regulations discussed in the cases just
cited, however, differ in two relevant particulars from the
present case. First, they involved essentially legislative
determinations classifying entire areas of the city, whereas
here the city made an adjudicative decision to condition
petitioner’s application for a building permit on an
6 There can be no argument that the permit conditions would deprive petitioner of

“economically beneficial us[e]” of her property as she currently operates a retail
store on the lot. Petitioner assuredly is able to derive some economic use from her
property. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019,
112 S.Ct. 2886, 2895, 120 L.Ed.2d 798 (1992); Kaiser Aetna v. United States, 444
U.S. 164, 175, 100 S.Ct. 383, 390, 62 L.Ed.2d 332 (1979); Penn Central Transp. Co.
v. New York City, supra, 438 U.S., at 124, 98 S.Ct., at 2659.

647

individual parcel. Second, the conditions imposed were not
simply a limitation on the use petitioner might make of her
own parcel, but a requirement that she deed portions of the
property to the city. In Nollan, supra, we held that
governmental authority to exact such a condition was
circumscribed by the Fifth and Fourteenth Amendments.
Under the well-settled doctrine of “unconstitutional
conditions,” the government may not require a person to
give up a constitutional right-here the right to receive just
compensation when property is taken for a public use-in
exchange for a discretionary benefit conferred by the
government where the benefit sought has little or no
relationship to the property. See Perry v. Sindermann, 408
U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v.
Board of Ed. of Township High School Dist. 205, Will
Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d
811 (1968).
Petitioner contends that the city has forced her to choose
between the building permit and her right under the Fifth
Amendment to just compensation for the public
easements. Petitioner does not quarrel with the city’s
authority to exact some forms of dedication as a condition
for the grant of a building permit, but challenges the
showing made by the city to justify these exactions. She
argues that the city has identified “no special benefits”
conferred on her, and has not identified any “special
quantifiable burdens” created by her new store that would
justify the particular dedications required from her which
are not required from the public at large.
III
In evaluating petitioner’s claim, we must first determine
whether the “essential nexus” exists between the
“legitimate state interest” and the permit condition exacted
by the city. Nollan, 483 U.S., at 837, 107 S.Ct., at 3148. If
we find that a nexus exists, we must then decide the
required degree of connection between the exactions and

648

the projected impact of the proposed development. We
were not required to reach this question in Nollan, because
we concluded that the connection did not meet even the
loosest standard. Id., at 838, 107 S.Ct., at 3149. Here,
however, we must decide this question.
A
We addressed the essential nexus question in Nollan. The
California Coastal Commission demanded a lateral public
easement across the Nollans’ beachfront lot in exchange
for a permit to demolish an existing bungalow and replace
it with a three-bedroom house. Id., at 828, 107 S.Ct., at
3144. The public easement was designed to connect two
public beaches that were separated by the Nollan’s
property. The Coastal Commission had asserted that the
public easement condition was imposed to promote the
legitimate state interest of diminishing the “blockage of the
view of the ocean” caused by construction of the larger
house.
We agreed that the Coastal Commission’s concern with
protecting visual access to the ocean constituted a
legitimate public interest. Id., at 835, 107 S.Ct., at 3148. We
also agreed that the permit condition would have been
constitutional “even if it consisted of the requirement that
the Nollans provide a viewing spot on their property for
passersby with whose sighting of the ocean their new house
would interfere.” Id., at 836, 107 S.Ct., at 3148. We
resolved, however, that the Coastal Commission’s
regulatory authority was set completely adrift from its
constitutional moorings when it claimed that a nexus
existed between visual access to the ocean and a permit
condition requiring lateral public access along the Nollans’
beachfront lot. Id., at 837, 107 S.Ct., at 3148. How
enhancing the public’s ability to “traverse to and along the
shorefront” served the same governmental purpose of
“visual access to the ocean” from the roadway was beyond

649

our ability to countenance. The absence of a nexus left the
Coastal Commission in the position of simply trying to
obtain an easement through gimmickry, which converted a
valid regulation of land use into ” ‘an out-and-out plan of
extortion.’ ” Ibid., quoting J.E.D. Associates, Inc. v.
Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981).
No such gimmicks are associated with the permit
conditions imposed by the city in this case. Undoubtedly,
the prevention of flooding along Fanno Creek and the
reduction of traffic congestion in the Central Business
District qualify as the type of legitimate public purposes we
have upheld. Agins, 447 U.S., at 260-262, 100 S.Ct., at
2141-2142. It seems equally obvious that a nexus exists
between preventing flooding along Fanno Creek and
limiting development within the creek’s 100-year
floodplain. Petitioner proposes to double the size of her
retail store and to pave her now-gravel parking lot, thereby
expanding the impervious surface on the property and
increasing the amount of storm water runoff into Fanno
Creek.
The same may be said for the city’s attempt to reduce
traffic congestion by providing for alternative means of
transportation. In theory, a pedestrian/bicycle pathway
provides a useful alternative means of transportation for
workers and shoppers: “Pedestrians and bicyclists
occupying dedicated spaces for walking and/or bicycling …
remove potential vehicles from streets, resulting in an
overall improvement in total transportation system flow.”
A. Nelson, Public Provision of Pedestrian and Bicycle
Access Ways: Public Policy Rationale and the Nature of
Private Benefits 11, Center for Planning Development,
Georgia Institute of Technology, Working Paper Series
(Jan. 1994). See also Intermodal Surface Transportation
Efficiency Act of 1991, Pub.L. 102-240, 105 Stat.1914
(recognizing pedestrian and bicycle facilities as necessary
components of any strategy to reduce traffic congestion).

650

B
The second part of our analysis requires us to determine
whether the degree of the exactions demanded by the city’s
permit conditions bears the required relationship to the
projected impact of petitioner’s proposed development.
Nollan, supra, 483 U.S., at 834, 107 S.Ct., at 3147, quoting
Penn Central Transp. Co. v. New York City, 438 U.S. 104,
127, 98 S.Ct. 2646, 2660, 57 L.Ed.2d 631 (1978) (” ‘[A] use
restriction may constitute a “taking” if not reasonably
necessary to the effectuation of a substantial government
purpose’ “). Here the Oregon Supreme Court deferred to
what it termed the “city’s unchallenged factual findings”
supporting the dedication conditions and found them to be
reasonably related to the impact of the expansion of
petitioner’s business. 317 Ore., at 120-121, 854 P.2d, at 443.
The city required that petitioner dedicate “to the City as
Greenway all portions of the site that fall within the
existing 100-year floodplain [of Fanno Creek] … and all
property 15 feet above [the floodplain] boundary.” Id., at
113, n. 3, 854 P.2d, at 439, n. 3. In addition, the city
demanded that the retail store be designed so as not to
intrude into the greenway area. The city relies on the
Commission’s rather tentative findings that increased storm
water flow from petitioner’s property “can only add to the
public need to manage the [floodplain] for drainage
purposes” to support its conclusion that the “requirement
of dedication of the floodplain area on the site is related to
the applicant’s plan to intensify development on the site.”
City of Tigard Planning Commission Final Order No. 9109 PC, App. to Pet. for Cert. G-37.
The city made the following specific findings relevant to
the pedestrian/bicycle pathway:
“In addition, the proposed expanded
use of this site is anticipated to
generate additional vehicular traffic

651

thereby increasing congestion on
nearby collector and arterial streets.
Creation of a convenient, safe
pedestrian/bicycle pathway system as
an alternative means of transportation
could offset some of the traffic
demand on these nearby streets and
lessen the increase in traffic
congestion.” Id., at G-24.
The question for us is whether these findings are
constitutionally sufficient to justify the conditions imposed
by the city on petitioner’s building permit. Since state
courts have been dealing with this question a good deal
longer than we have, we turn to representative decisions
made by them.
In some States, very generalized statements as to the
necessary connection between the required dedication and
the proposed development seem to suffice. See, e.g.,
Billings Properties, Inc. v. Yellowstone County, 144 Mont.
25, 394 P.2d 182 (1964) ; Jenad, Inc. v. Scarsdale, 18
N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966). We
think this standard is too lax to adequately protect
petitioner’s right to just compensation if her property is
taken for a public purpose.
Other state courts require a very exacting correspondence,
described as the “specifi[c] and uniquely attributable” test.
The Supreme Court of Illinois first developed this test in
Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill.2d
375, 380, 176 N.E.2d 799, 802 (1961).7 Under this standard,
if the local government cannot demonstrate that its
The “specifically and uniquely attributable” test has now been adopted by a
minority of other courts. See, e.g., J.E.D. Associates, Inc. v. Atkinson, 121 N.H.
581, 585, 432 A.2d 12, 15 (1981); Divan Builders, Inc. v. Planning Bd. of Twp. of
Wayne, 66 N.J. 582, 600-601, 334 A.2d 30, 40 (1975); McKain v. Toledo City Plan
Comm’n, 26 Ohio App.2d 171, 176, 270 N.E.2d 370, 374 (1971); Frank Ansuini,
Inc. v. Cranston, 107 R.I. 63, 69, 264 A.2d 910, 913 (1970).
7

652

exaction is directly proportional to the specifically created
need, the exaction becomes “a veiled exercise of the power
of eminent domain and a confiscation of private property
behind the defense of police regulations.” Id., at 381, 176
N.E.2d, at 802. We do not think the Federal Constitution
requires such exacting scrutiny, given the nature of the
interests involved.
A number of state courts have taken an intermediate
position, requiring the municipality to show a “reasonable
relationship” between the required dedication and the
impact of the proposed development. Typical is the
Supreme Court of Nebraska’s opinion in Simpson v. North
Platte, 206 Neb. 240, 245, 292 N.W.2d 297, 301 (1980),
where that court stated:
“The distinction, therefore, which
must be made between an appropriate
exercise of the police power and an
improper exercise of eminent domain
is whether the requirement has some
reasonable relationship or nexus to the
use to which the property is being
made or is merely being used as an
excuse for taking property simply
because at that particular moment the
landowner is asking the city for some
license or permit.”
Thus, the court held that a city may not require a property
owner to dedicate private property for some future public
use as a condition of obtaining a building permit when such
future use is not “occasioned by the construction sought to
be permitted.” Id., at 248, 292 N.W.2d, at 302.
Some form of the reasonable relationship test has been
adopted in many other jurisdictions. See, e.g., Jordan v.
Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965);
Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976)

653

(requiring a showing of a reasonable relationship between
the planned subdivision and the municipality’s need for
land); College Station v. Turtle Rock Corp., 680 S.W.2d
802, 807 (Tex.1984); Call v. West Jordan, 606 P.2d 217, 220
(Utah 1979) (affirming use of the reasonable relation test).
Despite any semantical differences, general agreement
exists among the courts “that the dedication should have
some reasonable relationship to the needs created by the
[development].” Ibid. See generally Note ” ‘Take’ My
Beach Please!”: Nollan v. California Coastal Commission
and a Rational-Nexus Constitutional Analysis of
Development Exactions, 69 B.U.L.Rev. 823 (1989); see also
Parks v. Watson, 716 F.2d 646, 651-653 (CA9 1983).
We think the “reasonable relationship” test adopted by a
majority of the state courts is closer to the federal
constitutional norm than either of those previously
discussed. But we do not adopt it as such, partly because
the term “reasonable relationship” seems confusingly
similar to the term “rational basis” which describes the
minimal level of scrutiny under the Equal Protection Clause
of the Fourteenth Amendment. We think a term such as
“rough proportionality” best encapsulates what we hold to
be the requirement of the Fifth Amendment. No precise
mathematical calculation is required, but the city must make
some sort of individualized determination that the required
dedication is related both in nature and extent to the impact
of the proposed development.8
8 Justice STEVENS’ dissent takes us to task for placing the burden on the city to

justify the required dedication. He is correct in arguing that in evaluating most
generally applicable zoning regulations, the burden properly rests on the party
challenging the regulation to prove that it constitutes an arbitrary regulation of
property rights. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47
S.Ct. 114, 71 L.Ed. 303 (1926). Here, by contrast, the city made an adjudicative
decision to condition petitioner’s application for a building permit on an individual
parcel. In this situation, the burden properly rests on the city. See Nollan, 483 U.S.,
at 836, 107 S.Ct., at 3148. This conclusion is not, as he suggests, undermined by
our decision in Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d
531 (1977), in which we struck down a housing ordinance that limited occupancy

654

Justice STEVENS’ dissent relies upon a law review article
for the proposition that the city’s conditional demands for
part of petitioner’s property are “a species of business
regulation that heretofore warranted a strong presumption
of constitutional validity.” Post, at 2325. But simply
denominating a governmental measure as a “business
regulation” does not immunize it from constitutional
challenge on the ground that it violates a provision of the
Bill of Rights. In Marshall v. Barlow’s, Inc., 436 U.S. 307,
98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), we held that a statute
authorizing a warrantless search of business premises in
order to detect OSHA violations violated the Fourth
Amendment. See also Air Pollution Variance Bd., of Colo.
v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40
L.Ed.2d 607 (1974); New York v. Burger, 482 U.S. 691, 107
S.Ct. 2636, 96 L.Ed.2d 601 (1987). And in Central Hudson
Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447
U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we held
that an order of the New York Public Service Commission,
designed to cut down the use of electricity because of a fuel
shortage, violated the First Amendment insofar as it
prohibited advertising by a utility company to promote the
use of electricity. We see no reason why the Takings Clause
of the Fifth Amendment, as much a part of the Bill of
Rights as the First Amendment or Fourth Amendment,
should be relegated to the status of a poor relation in these
comparable circumstances. We turn now to analysis of
whether the findings relied upon by the city here, first with
respect to the floodplain easement, and second with respect
to the pedestrian/bicycle path, satisfied these requirements.

of a dwelling unit to members of a single family as violating the Due Process
Clause of the Fourteenth Amendment. The ordinance at issue in Moore intruded
on choices concerning family living arrangements, an area in which the usual
deference to the legislature was found to be inappropriate. Id., at 499, 97 S.Ct., at
1935.

655

It is axiomatic that increasing the amount of impervious
surface will increase the quantity and rate of storm water
flow from petitioner’s property. Record, Doc. No. F, ch. 4,
p. 4-29. Therefore, keeping the floodplain open and free
from development would likely confine the pressures on
Fanno Creek created by petitioner’s development. In fact,
because petitioner’s property lies within the Central
Business District, the CDC already required that petitioner
leave 15% of it as open space and the undeveloped
floodplain would have nearly satisfied that requirement.
App. to Pet. for Cert. G-16 to G-17. But the city demanded
more-it not only wanted petitioner not to build in the
floodplain, but it also wanted petitioner’s property along
Fanno Creek for its greenway system. The city has never
said why a public greenway, as opposed to a private one,
was required in the interest of flood control.
The difference to petitioner, of course, is the loss of her
ability to exclude others. As we have noted, this right to
exclude others is “one of the most essential sticks in the
bundle of rights that are commonly characterized as
property.” Kaiser Aetna, 444 U.S., at 176, 100 S.Ct., at 391.
It is difficult to see why recreational visitors trampling
along petitioner’s floodplain easement are sufficiently
related to the city’s legitimate interest in reducing flooding
problems along Fanno Creek, and the city has not
attempted to make any individualized determination to
support this part of its request.
The city contends that the recreational easement along the
greenway is only ancillary to the city’s chief purpose in
controlling flood hazards. It further asserts that unlike the
residential property at issue in Nollan, petitioner’s property
is commercial in character, and therefore, her right to
exclude others is compromised. Brief for Respondent 41,
quoting United States v. Orito, 413 U.S. 139, 142, 93 S.Ct.
2674, 2677, 37 L.Ed.2d 513 (1973) (” ‘The Constitution
extends special safeguards to the privacy of the home’ “).

656

The city maintains that “[t]here is nothing to suggest that
preventing [petitioner] from prohibiting [the easements]
will unreasonably impair the value of [her] property as a
[retail store].” PruneYard Shopping Center v. Robins, 447
U.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980).
Admittedly, petitioner wants to build a bigger store to
attract members of the public to her property. She also
wants, however, to be able to control the time and manner
in which they enter. The recreational easement on the
greenway is different in character from the exercise of
state-protected rights of free expression and petition that
we permitted in PruneYard. In PruneYard, we held that a
major private shopping center that attracted more than
25,000 daily patrons had to provide access to persons
exercising their state constitutional rights to distribute
pamphlets and ask passers-by to sign their petitions. Id., at
85, 100 S.Ct., at 2042. We based our decision, in part, on
the fact that the shopping center “may restrict expressive
activity by adopting time, place, and manner regulations
that will minimize any interference with its commercial
functions.” Id., at 83, 100 S.Ct., at 2042. By contrast, the
city wants to impose a permanent recreational easement
upon petitioner’s property that borders Fanno Creek.
Petitioner would lose all rights to regulate the time in which
the public entered onto the greenway, regardless of any
interference it might pose with her retail store. Her right to
exclude would not be regulated, it would be eviscerated.
If petitioner’s proposed development had somehow
encroached on existing greenway space in the city, it would
have been reasonable to require petitioner to provide some
alternative greenway space for the public either on her
property or elsewhere. See Nollan, 483 U.S., at 836, 107
S.Ct., at 3148 (“Although such a requirement, constituting a
permanent grant of continuous access to the property,
would have to be considered a taking if it were not attached
to a development permit, the Commission’s assumed

657

power to forbid construction of the house in order to
protect the public’s view of the beach must surely include
the power to condition construction upon some concession
by the owner, even a concession of property rights, that
serves the same end”). But that is not the case here. We
conclude that the findings upon which the city relies do not
show the required reasonable relationship between the
floodplain easement and the petitioner’s proposed new
building.
With respect to the pedestrian/bicycle pathway, we have no
doubt that the city was correct in finding that the larger
retail sales facility proposed by petitioner will increase
traffic on the streets of the Central Business District. The
city estimates that the proposed development would
generate roughly 435 additional trips per day.9 Dedications
for streets, sidewalks, and other public ways are generally
reasonable exactions to avoid excessive congestion from a
proposed property use. But on the record before us, the
city has not met its burden of demonstrating that the
additional number of vehicle and bicycle trips generated by
petitioner’s development reasonably relate to the city’s
requirement for a dedication of the pedestrian/bicycle
pathway easement. The city simply found that the creation
of the pathway “could offset some of the traffic demand …
and lessen the increase in traffic congestion.”10
As Justice Peterson of the Supreme Court of Oregon
explained in his dissenting opinion, however, “[t]he
findings of fact that the bicycle pathway system ’could offset
9 The city uses a weekday average trip rate of 53.21 trips per 1,000 square feet.

Additional Trips Generated = 53.21 X (17,600-9,720). App. to Pet. for Cert. G-15.
In rejecting petitioner’s request for a variance from the pathway dedication
condition, the city stated that omitting the planned section of the pathway across
petitioner’s property would conflict with its adopted policy of providing a
continuous pathway system. But the Takings Clause requires the city to implement
its policy by condemnation unless the required relationship between petitioner’s
development and added traffic is shown.
10

658

some of the traffic demand’ is a far cry from a finding that
the bicycle pathway system will, or is likely to, offset some of
the traffic demand.” 317 Ore., at 127, 854 P.2d, at 447
(emphasis in original). No precise mathematical calculation
is required, but the city must make some effort to quantify
its findings in support of the dedication for the
pedestrian/bicycle pathway beyond the conclusory
statement that it could offset some of the traffic demand
generated.
IV
Cities have long engaged in the commendable task of land
use planning, made necessary by increasing urbanization,
particularly in metropolitan areas such as Portland. The
city’s goals of reducing flooding hazards and traffic
congestion, and providing for public greenways, are
laudable, but there are outer limits to how this may be
done. “A strong public desire to improve the public
condition [will not] warrant achieving the desire by a
shorter cut than the constitutional way of paying for the
change.” Pennsylvania Coal, 260 U.S., at 416, 43 S.Ct., at
160.
The judgment of the Supreme Court of Oregon is reversed,
and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and
JUSTICE GINSBURG join, dissenting.
The record does not tell us the dollar value of petitioner
Florence Dolan’s interest in excluding the public from the
greenway adjacent to her hardware business. The mountain
of briefs that the case has generated nevertheless makes it
obvious that the pecuniary value of her victory is far less
important than the rule of law that this case has been used
to establish. It is unquestionably an important case.

659

Certain propositions are not in dispute. The enlargement of
the Tigard unit in Dolan’s chain of hardware stores will
have an adverse impact on the city’s legitimate and
substantial interests in controlling drainage in Fanno Creek
and minimizing traffic congestion in Tigard’s business
district. That impact is sufficient to justify an outright
denial of her application for approval of the expansion. The
city has nevertheless agreed to grant Dolan’s application if
she will comply with two conditions, each of which
admittedly will mitigate the adverse effects of her proposed
development. The disputed question is whether the city has
violated the Fourteenth Amendment to the Federal
Constitution by refusing to allow Dolan’s planned
construction to proceed unless those conditions are met.
The Court is correct in concluding that the city may not
attach arbitrary conditions to a building permit or to a
variance even when it can rightfully deny the application
outright. I also agree that state court decisions dealing with
ordinances that govern municipal development plans
provide useful guidance in a case of this kind. Yet the
Court’s description of the doctrinal underpinnings of its
decision, the phrasing of its fledgling test of “rough
proportionality,” and the application of that test to this case
run contrary to the traditional treatment of these cases and
break considerable and unpropitious new ground.
I
Candidly acknowledging the lack of federal precedent for
its exercise in rulemaking, the Court purports to find
guidance in 12 “representative” state court decisions. To do
so is certainly appropriate.11 The state cases the Court
consults, however, either fail to support or decidedly
undermine the Court’s conclusions in key respects.

11 Cf. Moore v. East Cleveland, 431 U.S. 494, 513-521, 97 S.Ct. 1932, 52 L.Ed.2d

531 (1977) (STEVENS, J., concurring in judgment).

660

First, although discussion of the state cases permeates the
Court’s analysis of the appropriate test to apply in this case,
the test on which the Court settles is not naturally derived
from those courts’ decisions. The Court recognizes as an
initial matter that the city’s conditions satisfy the “essential
nexus” requirement announced in Nollan v. California
Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d
677 (1987), because they serve the legitimate interests in
minimizing floods and traffic congestions. Ante, at 23172318.12 The Court goes on, however, to erect a new
constitutional hurdle in the path of these conditions. In
addition to showing a rational nexus to a public purpose
that would justify an outright denial of the permit, the city
must also demonstrate “rough proportionality” between
the harm caused by the new land use and the benefit
obtained by the condition. Ante, at 2319. The Court also
decides for the first time that the city has the burden of
establishing the constitutionality of its conditions by
making an “individualized determination” that the
condition in question satisfies the proportionality
requirement. See Ibid.
Not one of the state cases cited by the Court announces
anything akin to a “rough proportionality” requirement.
For the most part, moreover, those cases that invalidated
12 In Nollan the Court recognized that a state agency may condition the grant of a

land use permit on the dedication of a property interest if the dedication serves a
legitimate police-power purpose that would justify a refusal to issue the permit. For
the first time, however, it held that such a condition is unconstitutional if the
condition “utterly fails” to further a goal that would justify the refusal. 483 U.S., at
837, 107 S.Ct., at 3148. In the Nollan Court’s view, a condition would be
constitutional 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
S.Ct., at 3148. “Although such a requirement, constituting a permanent grant of
continuous access to the property, would have to be considered a taking if it were
not attached to a development permit, the Commission’s assumed power to forbid
construction of the house in order to protect the public’s view of the beach must
surely include the power to condition construction upon some concession by the
owner, even a concession of property rights, that serves the same end.” Ibid.

661

municipal ordinances did so on state law or unspecified
grounds roughly equivalent to Nollan ‘s “essential nexus”
requirement. See, e.g.,
Simpson v. North Platte, 206 Neb. 240, 245-248, 292
N.W.2d 297, 301-302 (1980) (ordinance lacking “reasonable
relationship” or “rational nexus” to property’s use violated
Nebraska Constitution); J.E.D. Associates, Inc. v.
Atkinson, 121 N.H. 581, 583-585, 432 A.2d 12, 14-15
(1981) (state constitutional grounds). One case purporting
to apply the strict “specifically and uniquely attributable”
test established by Pioneer Trust & Savings Bank v. Mount
Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961),
nevertheless found that test was satisfied because the
legislature had decided that the subdivision at issue created
the need for a park or parks. Billings Properties, Inc. v.
Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182,
187-188 (1964). In only one of the seven cases upholding a
land use regulation did the losing property owner petition
this Court for certiorari. See Jordan v. Menomonee Falls,
28 Wis.2d 608, 137 N.W.2d 442 (1965), appeal dism’d, 385
U.S. 4, 87 S.Ct. 36, 17 L.Ed.2d 3 (1966) (want of substantial
federal question). Although 4 of the 12 opinions mention
the Federal Constitution-2 of those only in passing-it is
quite obvious that neither the courts nor the litigants
imagined they might be participating in the development of
a new rule of federal law. Thus, although these state cases
do lend support to the Court’s reaffirmance of Nollan’s
reasonable nexus requirement, the role the Court accords
them in the announcement of its newly minted second
phase of the constitutional inquiry is remarkably inventive.
In addition, the Court ignores the state courts’ willingness
to consider what the property owner gains from the
exchange in question. The Supreme Court of Wisconsin,
for example, found it significant that the village’s approval
of a proposed subdivision plat “enables the subdivider to
profit financially by selling the subdivision lots as home-

662

building sites and thus realizing a greater price than could
have been obtained if he had sold his property as unplatted
lands.” Jordan v. Menomonee Falls, 28 Wis.2d, at 619-620,
137 N.W.2d, at 448. The required dedication as a condition
of that approval was permissible “[i]n return for this
benefit.” Ibid. See also Collis v. Bloomington, 310 Minn. 5,
11-13, 246 N.W.2d 19, 23-24 (1976) (citing Jordan );
College Station v. Turtle Rock Corp., 680 S.W.2d 802, 806
(Tex.1984) (dedication requirement only triggered when
developer chooses to develop land). In this case, moreover,
Dolan’s acceptance of the permit, with its attached
conditions, would provide her with benefits that may well
go beyond any advantage she gets from expanding her
business. As the United States pointed out at oral
argument, the improvement that the city’s drainage plan
contemplates would widen the channel and reinforce the
slopes to increase the carrying capacity during serious
floods, “confer[ring] considerable benefits on the property
owners immediately adjacent to the creek.” Tr. of Oral Arg.
41-42.
The state court decisions also are enlightening in the extent
to which they required that the entire parcel be given
controlling importance. All but one of the cases involve
challenges to provisions in municipal ordinances requiring
developers to dedicate either a percentage of the entire
parcel (usually 7 or 10 percent of the platted subdivision) or
an equivalent value in cash (usually a certain dollar amount
per lot) to help finance the construction of roads, utilities,
schools, parks, and playgrounds. In assessing the legality of
the conditions, the courts gave no indication that the
transfer of an interest in realty was any more objectionable
than a cash payment. See, e.g., Jenad, Inc. v. Scarsdale, 18
N.Y.2d 78, 271 N.Y.S.2d 955, 218 N.E.2d 673 (1966);
Jordan v. Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d
442 (1965); Collis v. Bloomington, 310 Minn. 5, 246
N.W.2d 19 (1976). None of the decisions identified the

663

surrender of the fee owner’s “power to exclude” as having
any special significance. Instead, the courts uniformly
examined the character of the entire economic transaction.
II
It is not merely state cases, but our own cases as well, that
require the analysis to focus on the impact of the city’s
action on the entire parcel of private property. In Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 98
S.Ct. 2646, 57 L.Ed.2d 631 (1978), we stated that takings
jurisprudence “does not divide a single parcel into discrete
segments and attempt to determine whether rights in a
particular segment have been entirely abrogated.” Id., at
130-131, 98 S.Ct., at 2662. Instead, this Court focuses
“both on the character of the action and on the nature and
extent of the interference with rights in the parcel as a
whole.” Ibid. Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318,
62 L.Ed.2d 210 (1979), reaffirmed the nondivisibility
principle outlined in Penn Central, stating that “[a]t least
where an owner possesses a full ‘bundle’ of property rights,
the destruction of one ‘strand’ of the bundle is not a taking,
because the aggregate must be viewed in its entirety.” 444
U.S., at 65-66, 100 S.Ct., at 327.13 As recently as last Term,
we approved the principle again. See Concrete Pipe &
Products of Cal., Inc. v. Construction Laborers Pension
Trust for Southern Cal., 508 U.S. 602, 644, 113 S.Ct. 2264,
2290, 124 L.Ed.2d 539 (1993) (explaining that “a claimant’s
parcel of property [cannot] first be divided into what was
taken and what was left” to demonstrate a compensable
taking). Although limitation of the right to exclude others
undoubtedly constitutes a significant infringement upon
property ownership, Kaiser Aetna v. United States, 444
13 Similarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470,

498-499, 107 S.Ct. 1232, 1249, 94 L.Ed.2d 472 (1987), we concluded that “[t]he 27
million tons of coal do not constitute a separate segment of property for takings
law purposes” and that “[t]here is no basis for treating the less than 2% of
petitioners’ coal as a separate parcel of property.”

664

U.S. 164, 179-180, 100 S.Ct. 383, 393, 62 L.Ed.2d 332
(1979), restrictions on that right do not alone constitute a
taking, and do not do so in any event unless they
“unreasonably impair the value or use” of the property.
PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-84,
100 S.Ct. 2035, 2041-2042, 64 L.Ed.2d 741 (1980).
The Court’s narrow focus on one strand in the property
owner’s bundle of rights is particularly misguided in a case
involving the development of commercial property. As
Professor Johnston has noted:
“The subdivider is a manufacturer,
processer, and marketer of a product;
land is but one of his raw materials. In
subdivision control disputes, the
developer is not defending hearth and
home against the king’s intrusion, but
simply attempting to maximize his
profits from the sale of a finished
product. As applied to him,
subdivision control exactions are
actually
business
regulations.”
Johnston,
Constitutionality
of
Subdivision Control Exactions: The
Quest for A Rationale, 52 Cornell L.Q.
871, 923 (1967).14
The exactions associated with the development of a retail
business are likewise a species of business regulation that

14 Johnston’s article also sets forth a fair summary of the state cases from which the

Court purports to derive its “rough proportionality” test. See 52 Cornell L.Q., at
917. Like the Court, Johnston observed that cases requiring a “rational nexus”
between exactions and public needs created by the new subdivision-especially
Jordan v. Menomonee Falls, 28 Wis.2d 608, 137 N.W.2d 442 (1965)-“stee[r] a
moderate course” between the “judicial obstructionism” of Pioneer Trust &
Savings Bank v. Mount Prospect, 22 Ill.2d 375, 176 N.E.2d 799 (1961), and the
“excessive deference” of Billings Properties, Inc. v. Yellowstone County, 144
Mont. 25, 394 P.2d 182 (1964). 52 Cornell L.Q., at 917.

665

heretofore warranted
constitutional validity.

a

strong

presumption

of

In Johnston’s view, “if the municipality can demonstrate
that its assessment of financial burdens against subdividers
is rational, impartial, and conducive to fulfillment of
authorized planning objectives, its action need be
invalidated only in those extreme and presumably rare cases
where the burden of compliance is sufficiently great to
deter the owner from proceeding with his planned
development.” Id., at 917. The city of Tigard has
demonstrated that its plan is rational and impartial and that
the conditions at issue are “conducive to fulfillment of
authorized planning objectives.” Dolan, on the other hand,
has offered no evidence that her burden of compliance has
any impact at all on the value or profitability of her planned
development. Following the teaching of the cases on which
it purports to rely, the Court should not isolate the burden
associated with the loss of the power to exclude from an
evaluation of the benefit to be derived from the permit to
enlarge the store and the parking lot.
The Court’s assurances that its “rough proportionality” test
leaves ample room for cities to pursue the “commendable
task of land use planning,” ante, at 2322-even twice
avowing that “[n]o precise mathematical calculation is
required,” ante, at 2319, 2322-are wanting given the result
that test compels here. Under the Court’s approach, a city
must not only “quantify its findings,” ante, at 2322, and
make “individualized determination[s]” with respect to the
nature and the extent of the relationship between the
conditions and the impact, ante, at 2319, 2320, but also
demonstrate “proportionality.” The correct inquiry should
instead concentrate on whether the required nexus is
present and venture beyond considerations of a condition’s
nature or germaneness only if the developer establishes that
a concededly germane condition is so grossly
disproportionate to the proposed development’s adverse

666

effects that it manifests motives other than land use
regulation on the part of the city.15 The heightened
requirement the Court imposes on cities is even more
unjustified when all the tools needed to resolve the
questions presented by this case can be garnered from our
existing case law.
III
Applying its new standard, the Court finds two defects in
the city’s case. First, while the record would adequately
support a requirement that Dolan maintain the portion of
the floodplain on her property as undeveloped open space,
it does not support the additional requirement that the
floodplain be dedicated to the city. Ante, at 2320-2322.
Second, while the city adequately established the traffic
increase that the proposed development would generate, it
failed to quantify the offsetting decrease in automobile
traffic that the bike path will produce. Ante, at 2321-2322.
Even under the Court’s new rule, both defects are, at most,
nothing more than harmless error.
In her objections to the floodplain condition, Dolan made
no effort to demonstrate that the dedication of that portion
of her property would be any more onerous than a simple
prohibition against any development on that portion of her
property. Given the commercial character of both the
existing and the proposed use of the property as a retail
store, it seems likely that potential customers “trampling
along petitioner’s floodplain,” ante, at 2320, are more
valuable than a useless parcel of vacant land. Moreover, the
duty to pay taxes and the responsibility for potential tort
liability may well make ownership of the fee interest in
15 Dolan’s attorney overstated the danger when he suggested at oral argument that

without some requirement for proportionality, “[t]he City could have found that
Mrs. Dolan’s new store would have increased traffic by one additional vehicle trip
per day [and] could have required her to dedicate 75, 95 percent of her land for a
widening of Main Street.” Tr. of Oral Arg. 52-53.

667

useless land a liability rather than an asset. That may explain
why Dolan never conceded that she could be prevented
from building on the floodplain. The city attorney also
pointed out that absent a dedication, property owners
would be required to “build on their own land” and “with
their own money” a storage facility for the water runoff. Tr.
of Oral Arg. 30-31. Dolan apparently “did have that
option,” but chose not to seek it. Id., at 31. If Dolan might
have been entitled to a variance confining the city’s
condition in a manner this Court would accept, her failure
to seek that narrower form of relief at any stage of the state
administrative and judicial proceedings clearly should
preclude that relief in this Court now.
The Court’s rejection of the bike path condition amounts
to nothing more than a play on words. Everyone agrees
that the bike path “could” offset some of the increased
traffic flow that the larger store will generate, but the
findings do not unequivocally state that it will do so, or tell
us just how many cyclists will replace motorists. Predictions
on such matters are inherently nothing more than
estimates. Certainly the assumption that there will be an
offsetting benefit here is entirely reasonable and should
suffice whether it amounts to 100 percent, 35 percent, or
only 5 percent of the increase in automobile traffic that
would otherwise occur. If the Court proposes to have the
federal judiciary micro-manage state decisions of this kind,
it is indeed extending its welcome mat to a significant new
class of litigants. Although there is no reason to believe that
state courts have failed to rise to the task, property owners
have surely found a new friend today.
IV
The Court has made a serious error by abandoning the
traditional presumption of constitutionality and imposing a
novel burden of proof on a city implementing an
admittedly valid comprehensive land use plan. Even more
consequential than its incorrect disposition of this case,

668

however, is the Court’s resurrection of a species of
substantive due process analysis that it firmly rejected
decades ago.16
The Court begins its constitutional analysis by citing
Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 17
S.Ct. 581, 585, 41 L.Ed. 979 (1897), for the proposition
that the Takings Clause of the Fifth Amendment is
“applicable to the States through the Fourteenth
Amendment.” Ante, at 2316. That opinion, however,
contains no mention of either the Takings Clause or the
Fifth Amendment;17 it held that the protection afforded by
the Due Process Clause of the Fourteenth Amendment
extends to matters of substance as well as procedure,18 and
that the substance of “the due process of law enjoined by
the Fourteenth Amendment requires compensation to be
made or adequately secured to the owner of private
property taken for public use under the authority of a
State.” 166 U.S., at 235, 236-241, 17 S.Ct., at 584, 584-586.
It applied the same kind of substantive due process analysis
more frequently identified with a better known case that
accorded similar substantive protection to a baker’s liberty
interest in working 60 hours a week and 10 hours a day. See
Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed.
937 (1905).19
16 See, e.g., Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963).
17 An earlier case deemed it “well settled” that the Takings Clause “is a limitation

on the power of the Federal government, and not on the States.” Pumpelly v.
Green Bay Co., 13 Wall. 166, 177, 20 L.Ed. 557 (1872).
18 The

Court held that a State “may not, by any of its agencies, disregard the
prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within
the letter of the statute prescribing forms of procedure in the courts and give the
parties interested the fullest opportunity to be heard, and yet it might be that its
final action would be inconsistent with that amendment. In determining what is
due process of law regard must be had to substance, not to form.” Chicago, B. &
Q.R. Co. v. Chicago, 166 U.S. 226, 234-235, 17 S.Ct. 581, 584, 41 L.Ed. 979 (1897).
19 The Lochner Court refused to presume that there was a reasonable connection

between the regulation and the state interest in protecting the public health. 198

669

Later cases have interpreted the Fourteenth Amendment’s
substantive protection against uncompensated deprivations
of private property by the States as though it incorporated
the text of the Fifth Amendment’s Takings Clause. See,
e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480
U.S. 470, 481, n. 10, 107 S.Ct. 1232, 1240, n. 10, 94 L.Ed.2d
472 (1987). There was nothing problematic about that
interpretation in cases enforcing the Fourteenth
Amendment against state action that involved the actual
physical invasion of private property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427433, 102 S.Ct. 3164, 3172-3175, 73 L.Ed.2d 868 (1982);
Kaiser Aetna v. United States, 444 U.S., at 178-180, 100
S.Ct., at 392-393. Justice Holmes charted a significant new
course, however, when he opined that a state law making it
“commercially impracticable to mine certain coal” had
“very nearly the same effect for constitutional purposes as
appropriating or destroying it.” Pennsylvania Coal Co. v.
Mahon, 260 U.S. 393, 414, 43 S.Ct. 158, 159, 67 L.Ed. 322
(1922). The so-called “regulatory takings” doctrine that the
Holmes dictum20 kindled has an obvious kinship with the
line of substantive due process cases that Lochner
exemplified. Besides having similar ancestry, both doctrines
are potentially open-ended sources of judicial power to
invalidate state economic regulations that Members of this
Court view as unwise or unfair.
This case inaugurates an even more recent judicial
innovation than the regulatory takings doctrine: the
application of the “unconstitutional conditions” label to a
mutually beneficial transaction between a property owner
U.S., at 60-61, 25 S.Ct., at 544. A similar refusal to identify a sufficient nexus
between an enlarged building with a newly paved parking lot and the state interests
in minimizing the risks of flooding and traffic congestion proves fatal to the city’s
permit conditions in this case under the Court’s novel approach.
20 See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S., at 484, 107 S.Ct.,

at 1241 (explaining why this portion of the opinion was merely “advisory”).

670

and a city. The Court tells us that the city’s refusal to grant
Dolan a discretionary benefit infringes her right to receive
just compensation for the property interests that she has
refused to dedicate to the city “where the property sought
has little or no relationship to the benefit.”21 Although it is
well settled that a government cannot deny a benefit on a
basis that infringes constitutionally protected interests“especially [one’s] interest in freedom of speech,” Perry v.
Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33
L.Ed.2d 570 (1972)-the “unconstitutional conditions”
doctrine provides an inadequate framework in which to
analyze this case.22

Ante, at 2317. The Court’s entire explanation reads: “Under the well-settled
doctrine of ‘unconstitutional conditions,’ the government may not require a person
to give up a constitutional right-here the right to receive just compensation when
property is taken for a public use-in exchange for a discretionary benefit conferred
by the government where the benefit sought has little or no relationship to the
property.”
21

22 Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall. 445, 451, 22

L.Ed. 365 (1874), the “unconstitutional conditions” doctrine has for just as long
suffered from notoriously inconsistent application; it has never been an
overarching principle of constitutional law that operates with equal force regardless
of the nature of the rights and powers in question. See, e.g., Sunstein, Why the
Unconstitutional Conditions Doctrine is an Anachronism, 70 B.U.L.Rev. 593, 620
(1990) (doctrine is “too crude and too general to provide help in contested cases”);
Sullivan, Unconstitutional Conditions, 102 Harv.L.Rev. 1415, 1416 (1989) (doctrine
is “riven with inconsistencies”); Hale, Unconstitutional Conditions and
Constitutional Rights, 35 Colum.L.Rev. 321, 322 (1935) (“The Supreme Court has
sustained many such exertions of power even after announcing the broad doctrine
that would invalidate them”). As the majority’s case citations suggest, ante, at 2316,
modern decisions invoking the doctrine have most frequently involved First
Amendment liberties, see also, e.g., Connick v. Myers, 461 U.S. 138, 143-144, 103
S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983); Elrod v. Burns, 427 U.S. 347, 361-363, 96
S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976) (plurality opinion); Sherbert v. Verner, 374
U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963); Speiser v. Randall, 357
U.S. 513, 518-519, 78 S.Ct. 1332, 1338, 2 L.Ed.2d 1460 (1958). But see Posadas de
Puerto Rico Associates v. Tourism Co. of P.R., 478 U.S. 328, 345-346, 106 S.Ct.
2968, 2979, 92 L.Ed.2d 266 (1986) (“[T]he greater power to completely ban casino
gambling necessarily includes the lesser power to ban advertising of casino
gambling”). The necessary and traditional breadth of municipalities’ power to
regulate property development, together with the absence here of fragile and easily
“chilled” constitutional rights such as that of free speech, make it quite clear that

671

Dolan has no right to be compensated for a taking unless
the city acquires the property interests that she has refused
to surrender. Since no taking has yet occurred, there has
not been any infringement of her constitutional right to
compensation. See Preseault v. ICC, 494 U.S. 1, 11-17, 110
S.Ct. 914, 921-924, 108 L.Ed.2d 1 (1990) (finding takings
claim premature because property owner had not yet
sought compensation under Tucker Act); Hodel v. Virginia
Surface Mining & Reclamation Assn., Inc., 452 U.S. 264,
294-295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981) (no
taking where no one “identified any property … that has
allegedly been taken”).
Even if Dolan should accept the city’s conditions in
exchange for the benefit that she seeks, it would not
necessarily follow that she had been denied “just
compensation” since it would be appropriate to consider
the receipt of that benefit in any calculation of “just
compensation.” See Pennsylvania Coal Co. v. Mahon, 260
U.S., at 415, 43 S.Ct., at 160 (noting that an “average
reciprocity of advantage” was deemed to justify many laws);
Hodel v. Irving, 481 U.S. 704, 715, 107 S.Ct. 2076, 2082, 95
L.Ed.2d 668 (1987) (such ” ‘reciprocity of advantage’ ”
weighed in favor of a statute’s constitutionality). Particularly
in the absence of any evidence on the point, we should not
presume that the discretionary benefit the city has offered
is less valuable than the property interests that Dolan can
retain or surrender at her option. But even if that
discretionary benefit were so trifling that it could not be
considered just compensation when it has “little or no
relationship” to the property, the Court fails to explain why
the same value would suffice when the required nexus is
present. In this respect, the Court’s reliance on the
“unconstitutional conditions” doctrine is assuredly novel,
and arguably incoherent. The city’s conditions are by no
the Court is really writing on a clean slate rather than merely applying “well-settled”
doctrine. Ante, at 2316.

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means immune from constitutional scrutiny. The level of
scrutiny, however, does not approximate the kind of review
that would apply if the city had insisted on a surrender of
Dolan’s First Amendment rights in exchange for a building
permit. One can only hope that the Court’s reliance today
on First Amendment cases, see ante, at 2317 (citing Perry v.
Sindermann, supra, and Pickering v. Board of Ed. of
Township High School Dist. 205, Will Cty., 391 U.S. 563,
568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)), and its
candid disavowal of the term “rational basis” to describe its
new standard of review, see ante, at 2319, do not signify a
reassertion of the kind of superlegislative power the Court
exercised during the Lochner era.
The Court has decided to apply its heightened scrutiny to a
single strand-the power to exclude-in the bundle of rights
that enables a commercial enterprise to flourish in an urban
environment. That intangible interest is undoubtedly
worthy of constitutional protection-much like the
grandmother’s interest in deciding which of her relatives
may share her home in Moore v. East Cleveland, 431 U.S.
494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). Both interests
are protected from arbitrary state action by the Due
Process Clause of the Fourteenth Amendment. It is,
however, a curious irony that Members of the majority in
this case would impose an almost insurmountable burden
of proof on the property owner in the Moore case while
saddling the city with a heightened burden in this case.23
23 The author of today’s opinion joined Justice Stewart’s dissent in Moore v. East

Cleveland, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977). There the dissenters
found it sufficient, in response to my argument that the zoning ordinance was an
arbitrary regulation of property rights, that “if the ordinance is a rational attempt to
promote ‘the city’s interest in preserving the character of its neighborhoods,’
Young v. American Mini Theatres [Inc.,] 427 U.S. 50, 71 [96 S.Ct. 2440, 2452, 49
L.Ed.2d 310 (1976) ] (opinion of STEVENS, J.), it is … a permissible restriction on
the use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365 [47
S.Ct. 114, 71 L.Ed. 303 (1926) ], and Nectow v. Cambridge, 277 U.S. 183 [48 S.Ct.
447, 72 L.Ed. 842 (1928) ].” Id., 431 U.S., at 540, n. 10, 97 S.Ct., at 1956, n. 10. The
dissent went on to state that my calling the city to task for failing to explain the

673

In its application of what is essentially the doctrine of
substantive due process, the Court confuses the past with
the present. On November 13, 1922, the village of Euclid,
Ohio, adopted a zoning ordinance that effectively
confiscated 75 percent of the value of property owned by
the Ambler Realty Company. Despite its recognition that
such an ordinance “would have been rejected as arbitrary
and oppressive” at an earlier date, the Court (over the
dissent of Justices Van Devanter, McReynolds, and Butler)
upheld the ordinance. Today’s majority should heed the
words of Justice Sutherland:
“Such regulations are sustained, under
the complex conditions of our day, for
reasons analogous to those which
justify traffic regulations, which,
before the advent of automobiles and
rapid transit street railways, would
have been condemned as fatally
arbitrary and unreasonable. And in this
there is no inconsistency, for while the
meaning of constitutional guaranties
never varies, the scope of their
application must expand or contract to
meet the new and different conditions
which are constantly coming within
the field of their operation. In a
changing world, it is impossible that it
should be otherwise.” Village of
Euclid v. Ambler Realty Co., 272 U.S.
365, 387, 47 S.Ct. 114, 118, 71 L.Ed.
303 (1926).

need for enacting the ordinance ”place[d] the burden on the wrong party.” Ibid.
(emphasis added). Recently, two other Members of today’s majority severely
criticized the holding in Moore. See United States v. Carlton, 512 U.S. 26, 40-42,
114 S.Ct. 2018, 2027, 129 L.Ed.2d 22 (1994) (SCALIA, J., concurring in judgment);
see also id., at 39, 114 S.Ct. at 2020 (SCALIA, J., concurring in judgment) (calling
the doctrine of substantive due process “an oxymoron”).

674

In our changing world one thing is certain: uncertainty will
characterize predictions about the impact of new urban
developments on the risks of floods, earthquakes, traffic
congestion, or environmental harms. When there is doubt
concerning the magnitude of those impacts, the public
interest in averting them must outweigh the private interest
of the commercial entrepreneur. If the government can
demonstrate that the conditions it has imposed in a land
use permit are rational, impartial and conducive to fulfilling
the aims of a valid land use plan, a strong presumption of
validity should attach to those conditions. The burden of
demonstrating that those conditions have unreasonably
impaired the economic value of the proposed improvement
belongs squarely on the shoulders of the party challenging
the state action’s constitutionality. That allocation of
burdens has served us well in the past. The Court has
stumbled badly today by reversing it.
I respectfully dissent.
JUSTICE SOUTER, dissenting.
This case, like Nollan v. California Coastal Comm’n, 483
U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987), invites the
Court to examine the relationship between conditions
imposed by development permits, requiring landowners to
dedicate portions of their land for use by the public, and
governmental interests in mitigating the adverse effects of
such development. Nollan declared the need for a nexus
between the nature of an exaction of an interest in land (a
beach easement) and the nature of governmental interests.
The Court treats this case as raising a further question, not
about the nature, but about the degree, of connection
required between such an exaction and the adverse effects
of development. The Court’s opinion announces a test to
address this question, but as I read the opinion, the Court
does not apply that test to these facts, which do not raise
the question the Court addresses.

675

First, as to the floodplain and greenway, the Court
acknowledges that an easement of this land for open space
(and presumably including the five feet required for needed
creek channel improvements) is reasonably related to flood
control, see ante, at 2317-2318, 2320, but argues that the
“permanent recreational easement” for the public on the
greenway is not so related, see ante, at 2320-2321. If that is
so, it is not because of any lack of proportionality between
permit condition and adverse effect, but because of a lack
of any rational connection at all between exaction of a
public recreational area and the governmental interest in
providing for the effect of increased water runoff. That is
merely an application of Nollan ‘s nexus analysis. As the
Court notes, “[i]f petitioner’s proposed development had
somehow encroached on existing greenway space in the
city, it would have been reasonable to require petitioner to
provide some alternative greenway space for the public.”
Ante, at 2321. But that, of course, was not the fact, and the
city of Tigard never sought to justify the public access
portion of the dedication as related to flood control. It
merely argued that whatever recreational uses were made of
the bicycle path and the 1-foot edge on either side were
incidental to the permit condition requiring dedication of
the 15-foot easement for an 8-foot-wide bicycle path and
for flood control, including open space requirements and
relocation of the bank of the river by some 5 feet. It seems
to me such incidental recreational use can stand or fall with
the bicycle path, which the city justified by reference to
traffic congestion. As to the relationship the Court
examines, between the recreational easement and a purpose
never put forth as a justification by the city, the Court
unsurprisingly finds a recreation area to be unrelated to
flood control.
Second, as to the bicycle path, the Court again
acknowledges the “theor[etically]” reasonable relationship
between “the city’s attempt to reduce traffic congestion by

676

providing [a bicycle path] for alternative means of
transportation,” ante, at 2318, and the “correct” finding of
the city that “the larger retail sales facility proposed by
petitioner will increase traffic on the streets of the Central
Business District,” ante, at 2321. The Court only faults the
city for saying that the bicycle path “could” rather than
“would” offset the increased traffic from the store, ante, at
2322. That again, as far as I can tell, is an application of
Nollan, for the Court holds that the stated connection
(“could offset”) between traffic congestion and bicycle
paths is too tenuous; only if the bicycle path “would” offset
the increased traffic by some amount could the bicycle path
be said to be related to the city’s legitimate interest in
reducing traffic congestion.
I cannot agree that the application of Nollan is a sound one
here, since it appears that the Court has placed the burden
of producing evidence of relationship on the city, despite
the usual rule in cases involving the police power that the
government is presumed to have acted constitutionally.24
Having thus assigned the burden, the Court concludes that
the city loses based on one word (“could” instead of
“would”), and despite the fact that this record shows the
connection the Court looks for. Dolan has put forward no
evidence that the burden of granting a dedication for the
bicycle path is unrelated in kind to the anticipated increase
in traffic congestion, nor, if there exists a requirement that
24 See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 594-596, 82 S.Ct. 987, 990, 8

L.Ed.2d 130 (1962); United States v. Sperry Corp., 493 U.S. 52, 60, 110 S.Ct. 387,
393-394, 107 L.Ed.2d 290 (1989). The majority characterizes this case as involving
an “adjudicative decision” to impose permit conditions, ante, at 2390, n. 8, but the
permit conditions were imposed pursuant to Tigard’s Community Development
Code. See, e.g., s 18.84.040, App. to Brief for Respondent B-26. The adjudication
here was of Dolan’s requested variance from the permit conditions otherwise
required to be imposed by the Code. This case raises no question about
discriminatory, or “reverse spot,” zoning, which “singles out a particular parcel for
different, less favorable treatment than the neighboring ones.” Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 132, 98 S.Ct. 2646, 2663, 57 L.Ed.2d
631 (1978).

677

the relationship be related in degree, has Dolan shown that
the exaction fails any such test. The city, by contrast,
calculated the increased traffic flow that would result from
Dolan’s proposed development to be 435 trips per day, and
its Comprehensive Plan, applied here, relied on studies
showing the link between alternative modes of
transportation, including bicycle paths, and reduced street
traffic congestion. See, e.g., App. to Brief for Respondent
A-5, quoting City of Tigard’s Comprehensive Plan (”
‘Bicycle and pedestrian pathway systems will result in some
reduction of automobile trips within the community’ “).
Nollan, therefore, is satisfied, and on that assumption the
city’s conditions should not be held to fail a further rough
proportionality test or any other that might be devised to
give meaning to the constitutional limits. As Members of
this Court have said before, “the common zoning
regulations requiring subdividers to … dedicate certain
areas to public streets, are in accord with our constitutional
traditions because the proposed property use would
otherwise be the cause of excessive congestion.” Pennell v.
San Jose, 485 U.S. 1, 20, 108 S.Ct. 849, 862, 99 L.Ed.2d 1
(1988) (SCALIA, J., concurring in part and dissenting in
part). The bicycle path permit condition is fundamentally
no different from these.
In any event, on my reading, the Court’s conclusions about
the city’s vulnerability carry the Court no further than
Nollan has gone already, and I do not view this case as a
suitable vehicle for taking the law beyond that point. The
right case for the enunciation of takings doctrine seems
hard to spot. See Lucas v. South Carolina Coastal Council,
505 U.S. 1003, 1076, 112 S.Ct. 2886, 2925, 120 L.Ed.2d 798
(1992) (statement of SOUTER, J.).

678

4.6. German Takings Law
Summary of German Law Relating to Compensation
Resulting from Land Use Planning
From the Basic Law for the Federal Republic of
Germany
(Grundgesetz, GG)
Article 14 [Property, inheritance, expropriation]
1. Property and the right of inheritance shall be guaranteed.
Their content and limits shall be defined by the laws.
2. Property entails obligations. Its use shall also serve the
public good.
3. Expropriation shall only be permissible for the public good.
It may only be ordered by or pursuant to a law that
determines the nature and extent of compensation. Such
compensation shall be determined by establishing an
equitable balance between the public interest and the
interests of those affected. In case of dispute respecting the
amount of compensation, recourse may be had to the
ordinary courts.
The following is a brief summary adapted from Takings International:
A Comparative Perspective on Land Use Regulations and Compensation
Rights, Rachelle Alterman, ed., American Bar Association, 2010.
The chapter on the Federal Republic of Germany was authored by
Gerd Schmidt-Eichstaedt.
Under the Basic Law, compensation for expropriation must be
provided for in a law that expropriates. But even regulations that
are not deemed expropriating may require compensation under
other laws. Namely, sections 39-44 of the Federal Building Code
(Baugesetzbuch) provide for compensation for injuries from land use
planning. Such causes of action are distinct from those claiming
injury from unlawful action under civil law.

679

Land Use Plans that Designate Private Property for Public Uses
Under German planning law, binding land-use plans (or B-plans)
may be relied upon by developers, and developments that comply
with these plans will usually be permitted. These plans may also
designate privately held property for public uses, such as roads,
schools, and environmental protection. Actually making the public
use requires the government to resort to expropriation procedures,
but often the lands are purchased through voluntary negotiation.
A problem arises when there is a long interval between the plan
and the realization of the public use. As might be guessed, it often
takes time to move from planning stages to implementation. If it’s
reasonable for the landowner to keep using his property during this
period, then he must do so. He may not make improvements that
increase the value of the property, and thus what the public must
pay when the planned public use is ready to be implemented,
without the consent of the government. If, on the other hand,
maintaining the current use is infeasible, the landowner may initiate
a claim for transfer of title, which would result in compensation.
Lesser, but still substantial, impacts on the current use may trigger
compensation for what is lost.
Land use plans that grant public rights to walk or drive through
property also result in compensation, at least where the property’s
value is reduced significantly.
Land Use Plans that Alter Permitted Private Uses
Under section 42 of the Federal Building Code, a landowner is
entitled to develop according to a B-plan for a period of seven
years after the plan’s adoption. If the plan is altered during that
time, landowners are entitled to compensation for the reduction in
property values, whether or not they have developed in accordance
with the plan. After seven years have elapsed, a change in the plan
will lead to compensation only if (1) it reduces the value of a use
the landowner is actually making, (2) the amended plan designates
the landowner’s property for a public use, or (3) the uses the
amended plan allows the landowner to make are insubstantial. If
development is made impossible by factors outside of the

680

developer’s control, such as a development moratorium, then this
period is added to the seven years. And again, to the extent a plan
interferes with a current use, compensation is generally required, no
matter how long it has been since the plan was last changed.
In the United States, changes in plans that lead to less valuable uses
are called “downzonings.” And current uses that do not comply
with the new plan are called non-conforming uses. Many
jurisdictions in the U.S. permit non-conforming uses to continue,
despite the new zoning, for a certain period, until the landowner
changes the use, or until the ownership of the property changes.
Not all downzonings in Germany are permitted. Courts may strike
them down as “balancing errors” if they are not justified by what
Schmidt-Eichstaedt calls “solid town planning principles.” This
would amount to a substantive attack on the plan, rather than a
claim that an otherwise legitimate plan triggered a compensation
obligation.
Developers may also seek compensation for specific development
expenditures made in reliance on an existing plan that was later
amended. This would result in compensation for engineering and
architectural services, for example, to the extent the new plan
reduces their value.
Finally, German law authorizes municipalities to freeze
development during the preparation of a new plan. Without this
authority, developers might rush to develop, perhaps unwisely, and
in ways that will make implementation of the new plan and its goals
difficult. The Federal Building Code authorizes a freeze when a
municipality decides to prepare or amend a B-plan. This freeze lasts
for two years, but may be extended for an additional year. A fourth
year may be added to the freeze if “special circumstances” so
require. No compensation is owed for development forestalled by
the freeze.

681

Excerpt from Gregory S. Alexander, Property as a

Fundamental Constitutional Right? The German
Example
88 Cornell L. Rev. 733 (2003)
Unlike the U.S. Supreme Court, the German Constitutional Court
has been clear about the legal source used in defining what interests
are protected as constitutional property.1 For Article 14 purposes,
the Basic Law itself defines the meaning of the term “ownership”
(Eigentum). Constitutional property is not limited to those interests
defined as property by nonconstitutional law (that is, the German
Civil Code.) The Constitutional Court has clearly and consistently
stated that the term “ownership” (or “property”) has a broader
meaning under Article 14 than it has for private law purposes
under the Civil Code.
Although the Court looks to the Basic Law to define the range of
protected interests, its approach is not one of direct textual
interpretation. Rather, it identifies the substantive interests that
animate the Basic Law as a whole. These interests serve as criteria
used to distinguish those interests that count as constitutional
property from those that do not. This strategy, although textually
rooted, differs in important ways from the “originalist” and
“traditionalist” approaches favored by conservative American
judges and constitutional scholars. The German approach avoids
temporally freezing the meaning of constitutional property in any
particular historical moment, permitting Article 14’s protection
over time to embrace new and unprecedented sorts of interests.
For a lucid and insightful discussion of the muddled state of American
constitutional doctrine on this question, see Thomas W. Merrill, The Landscape of
Constitutional Property, 86 Va. L. Rev. 885 (2000). The difference between the
American and German experiences may be due in part to the fact that the German
Basic Law has a single property clause and a single property-dependent doctrine,
while the American Constitution has two property clauses (the Fifth and
Fourteenth Amendments) and three property-dependent doctrines (the takings
doctrine of the Fifth Amendment and the procedural-due-process and substantivedue-process doctrines of the Fourteenth Amendment). Of course, the mere
existence of multiple references to property in the American Constitution does not
necessitate a multiplicity of meanings.
1

682

Behind this approach to defining the constitutional limits of
governmental power over property is a certain level of distrust of
the market as a reliable mechanism for serving the public good
(Gemeinwohl) with respect to particular sorts of resources. This has
been especially so with respect to natural resources. The Court has
been remarkably solicitous of environmental regulations aimed at
protecting natural resources that the Court has characterized as
basic to human existence.
An important example of this development is the notorious series
of “Groundwater Cases” (Naβsausskiesungsentscheidungen), litigated
before the federal Supreme Civil Court (Bundesgerichtshof) as well as
the Constitutional Court. These cases, especially the Constitutional
Court’s opinion, are among the most widely discussed
constitutional property cases in Germany of the past several
decades and are worth reflecting on to consider what they indicate
about current German legal attitudes toward property, the market,
and the public weal.
The litigation concerned the constitutional validity of the 1976
amendments to the Federal Water Resources Act
(Wasserhaushaltgesetz), first enacted in 1957. The most important of
these amendments was a provision requiring anyone wishing to
make virtually any use of surface or groundwater to obtain a
permit. That amendment represented an extension of the Act’s
basic premise, which declared that
the attainment of a sensible and useful
distribution of the surface water and
groundwater, in quantity and quality,
for the whole Federal Republic … [can
be achieved only] if the free
disposition by private owners is
restricted and if the interest of the
public weal is the starting point for all
action.

683

Under the Act, the owner of the surface has no entitlement to such
a use permit; indeed, the permit must be denied wherever the
proposed use threatens the “public weal.”
The plaintiff, who owned and operated a gravel pit, applied for a
permit to use the water beneath his land. He had previously taken
groundwater for decades for the purpose of extracting gravel, but
the city denied him permission to continue doing so because his
quarry operation threatened the city’s water wells. He sued for
damages, claiming that the permit denial was an uncompensated
expropriation of his property that is unconstitutional under Article
14 of the Basic Law.
The federal Supreme Civil Court, the highest civil court in
Germany, held that the permit denial indeed violated the plaintiff’s
constitutional property right and that the amendment to the Water
Resources Act was unconstitutional under Article 14(1). Under
German law, however, only the Constitutional Court has the
authority to declare statutes unconstitutional, so the Supreme Civil
Court was required to submit the case to the Constitutional Court.
The latter Court held that the Water Resources Act was
constitutional and that the permit denial was not an expropriation
of the plaintiff’s constitutionally protected property. In the course
of a long and extraordinarily complicated opinion, the Court
squarely rejected a conception of property that identifies as its
primary function the maximization of individual wealth. The Court
stated, “From the constitutional guarantee of property the owner
cannot derive a right to be permitted to make use of precisely that
which promises the greatest possible economic advantage.” The
Court acknowledged that the constitutional guarantee of property
in Article 14(1) prohibits the legislature from undermining the basic
existence of the right embedded in the private law of property in a
way that removes or substantially impairs the guaranteed zone of
freedom under Article 14. The guarantee of the legal institution of
property, the Court continued, is not encroached on, however,
when the security and defense of resources that are vital to the
common welfare of the public are placed under the authority of the
public, rather than the private, legal order.

684

Water is such a resource. The Court stated that, whatever the
meaning of ownership for private law purposes, the constitutional
meaning of land ownership has never entailed ownership of water
below the surface. Legal rights concerning ground water are not
determined by, or at least not primarily by, the ordinary rules of
property law under the Civil Code (Bürgerliches Gesetzbuch, or BGB),
because property rights in groundwater are inherently and
historically public, not private, in character.2 Private rights in land
end when they reach the water level. Consequently, the Water
Resources Act, in subjecting the owner’s ability to exploit
groundwater to a permit system, did not take from landowners any
property right (Anspruch) that they ever had under the Constitution.
So, the German Constitutional Court regards water as special, too
important to be left completely to the market, or private ordering,
to allocate. One is left, though, to answer the nagging question of
why water is special. Why, exactly, do private property rights not
extend to groundwater in the same way that they do to land? A
coherent, substantive answer to this question is absolutely
necessary if one is to assuage the Supreme Civil Court’s entirely
understandable fear that regulatory measures like the Federal Water
Law have effectively erased the line between the social obligation
of ownership, on the one hand, and expropriation, on the other. If
regulatory measures limiting or even eliminating private rights to
resources can always be rationalized as simply expressions of the
Sozialbindung, then hardly any protection against uncompensated
expropriations under Article 14(3) would remain. The doctrine of
regulatory takings (enteignungsgleicher Eingriff) would be emptied of all
2 The Supreme Civil Court had reasoned that ownership of land confers ownership

of water below the land relying on a provision of the Civil Code that states that
“[t]he right of the owner of a parcel of land extends to the space above the surface
and to the resources below the surface,” § 905 BGB. American property lawyers
will recognize this norm as the counterpart to the common-law maxim usque ad
coelum et ad infernos (up to the sky and down to the depths). The Constitutional
Court never questioned that this is correct as a matter of private law, but it
concluded that the constitutional meaning of property is not determined solely by
the private-law meaning, but is determined by the constitution itself. BVerfGE 58
at 335.

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content. In Justice Holmes’s terms, it would be impossible to say
that a regulation “goes too far.”
Unfortunately, it was just at this most crucial stage that the
Constitutional Court’s analysis broke down. The Court relied on
two factors, history and social need, to explain why property rights
in water are so limited–why groundwater is essentially or inherently
public in character. Historically, the Court pointed out, German
private law has separated property rights concerning land and
water. This separation was constitutionally authorized at least since
the time of the German constitution of 1871, the Court noted.
Fine, but that does not answer the question; it only changes the
character of the question. Why has it historically been
constitutional to assign property rights in land to the private realm
and rights in water to the public realm?
The Court gave more extended consideration to the functional role
of water in society. As part of its reasoning that the Water Law falls
within the “contents and limits” (Inhalt und Schranken) of ownership
of land, a matter over which the legislature has complete regulatory
authority,3 the Court emphasized that social changes occurring in
this century have necessitated certain adjustments in the legal
regulation of water. Water has always been a vital resource to
society, the Court pointed out, but it has become even more so in
modern German society.] As the Court observed, the processes of
growing industrialization, urbanization, and construction have
increased the scarcity and social importance of water. The Court
declared that
water is one of the most important
bases of all of human, animal, and
plant life. [Today] it is used not only
for drinking and personal use, but also
3 This statement requires an important caveat: Under Article 14(1), the legislature

has sole competence to define the “contents and limits” of ownership, see
Grundgesetz [GG] art. 14(1) (F.R.G.), but Article 19(2) requires that the
Constitutional Court define the essence of the constitutionally protected property
right, Grundgesetz [GG] art. 19(2) (F.R.G.) (“In no case may the essential content
of a basic right be encroached upon.”).

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as a factor of industrial production.
Because of these simultaneous yet
diverse demands, it was previously
established
as
a
matter
of
constitutional law that an orderly water
management scheme was vital for the
population as well as for the overall
economy.
At this point, one wants to say, yes, water is essential to life, but so
are many other resources. Would the Court be prepared to hold
that the Basic Law does not recognize private property rights in all
other natural resources that are necessary for life? Indeed, what
about land, which clearly also is essential to the existence of
animals and plants? Are we to surmise that private ownership of
land is somehow being put in jeopardy? That hardly seems likely.
The point is that it begs the question simply to declare that because
certain resources are essential to human existence, the
constitutional status of property rights in those resources must
somehow be different from property rights in other resources.
There are, however, important differences between water and land.
The most obvious respect in which subterranean water differs from
land, of course, is water’s “fugitive,” or ambient character. Whereas
land is necessarily immobile, underground water is not. The
Constitutional Court alluded to this factor when discussing the
functional significance of water. The Court emphasized that, as a
human resource, water is now vital both for purposes of drinking
and industry, and the increase in these social uses has brought the
two more and more in conflict with each other. This is especially
true in the case of groundwater, the Court noted. In that context,
there is an inevitable conflict between commercial uses such as
excavation of subsurface resources and the community interest in
protecting both the supply and quality of subterranean water. The
constitutional status of water must be determined by taking into
account the need to reconcile these conflicting social interests. The
Court concluded that the first priority must be to preserve the
quality of drinking water; industrial uses of groundwater, such as

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the discharge of chemicals into it, simply cannot be left to the
discretion of each owner of land parcels. Why? Why not rely on the
market, predicated on private property rights, to achieve an
efficient allocation of groundwater?
Although the Court’s answer here was a bit murky, its reasoning
echoes points that some American property scholars have made
concerning the limits of the market as a means of allocating rights
in groundwater. These scholars have pointed out that, left as a
commons, groundwater involves major problems with externalities,
or spillover effects. Self-interest is not a reliable means of
protecting a resource whose use, especially given the resource’s
fugitive character, has substantial external effects. As Eric
Freyfogle has stated, “In the case of water, … many external harms
affect ecosystems and future generations, or are otherwise
uncertain in scope and infeasible to calculate or trace.” Flowing
water, Freyfogle points out, is “communally embedded,” both in a
social and an ecological sense. The ecological community includes
“soils, plants, animals, microorganisms, nutrient flows, and
hydrological cycles.” These two communities are themselves so
interdependent that a threat to one is a threat to the other. Under
these circumstances, any individual use of water profoundly affects
the entire community and directly implicates the common weal.
As the Constitutional Court stated, the major legal question is
whether shifting water regulation from the private to the public
realm can be constitutionally justified. The argument was made that
individual rights in groundwater are constitutionally inseparable
from ownership of the surface. Rejecting this argument, the Court
stated that federal regulation of groundwater use would not
effectively empty landownership of all its content (Substanzentleerung
des Grundeigentums). Landownership would not become completely
subordinated to the social obligation. Merely subjecting the owner’s
right to use groundwater to regulatory approval does not remove
the entire use-interest from the bundle of rights. Even if it did, the
Court reasoned, there would be no constitutional violation because
the right to use groundwater is not a twig that is essential to private
ownership of the land. The Court stated that ownership of land is

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valuable primarily with respect to use of the surface, not
subterranean water. Even with respect to the surface, the
Constitution permits regulation of various uses: “The
constitutionally guaranteed right to property does not permit the
owner to make use of just that use having the greatest economic
value.”
The Court’s second basis for the constitutional validity of the
Federal Water Law did not involve the constitutional property right
itself, but instead drew from the principle of equality. Article 3 of
the Constitution secures a principle of equality (das
Gleichbehandlungsgebot), which the Court has repeatedly stated
informs the meaning of other constitutional values, including
property. The plaintiff had argued that the Federal Water Law
arbitrarily burdened him, thus violating his Article 3 equality right,
because his quarry was located close to groundwater while other
quarry owners were not affected. The Court had little difficulty
dismissing that objection, pointing out that the regulation affected
all similarly situated quarry owners equally.
Similarly, the regulation did not violate the constitutional principle
of proportionality (Verhaltnismäβigkeit), because no particular owner
was singled out to bear a disproportionate share of the burden
necessary to achieve the benefits sought by the statute.
The final significant aspect of the case concerns the recurrent
problem of legal transitions. The Federal Water Law denied the
plaintiff a legal right that he once had and had previously exercised;
he had been quarrying gravel since 1936, and under the law existing
at that time, the right of property clearly protected the right to use
groundwater. The Court directly confronted the familiar dilemma:
stability versus dynamism. On the side of stability, the Court stated,
It would be incompatible with the content
of the Constitution if the government were
authorized suddenly and without any
transitional period to block the continued
exercise of property rights that had required
substantial capital investment. Such a law
… would upset confidence in the stability

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of the legal order, without which
responsible structuring and planning of life
would be impossible in the area of property
ownership.
The Court was equally frank about the need to avoid freezing the
distribution of property rights extant at any given time:
The constitutional guarantee of ownership
exercised by the plaintiff does not imply
that a property interest, once recognized,
would have to be preserved in perpetuity or
that it could be taken away only by way of
expropriation [i.e., with compensation].
[This Court] has repeatedly ruled that the
legislature is not faced with the alternative
of either preserving old legal positions or
taking them away in exchange for
compensation every time an area of law is
to be regulated anew.
The Constitution resolves this dilemma, the Court said, by
permitting the legislature to “restructure individual legal positions
by issuing an appropriate and reasonable transition rule whenever
the public interest merits precedence over some justified
expectation, based on continuity of practice, in the continuance of
a vested right.” The statute followed this constitutionally
sanctioned path by providing a grace period of five years, during
which owners could continue to use groundwater without a permit.
Because the Act did not take effect until thirty-one months after its
enactment, the claimant effectively had almost eight years of
continued use. Moreover, owners could get an extension if they
had filed for a permit. The consequence of these provisions in the
instant case, the Court noted, was that the plaintiff had been able
to continue his gravel operations for some seventeen years after the
statute’s enactment. Under these circumstances, the statute’s
transition provisions reasonably accommodated the plaintiff’s
economic interest.
German constitutional scholars have debated whether the
“Groundwater Cases” made obsolete the concept of a regulatory

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taking (enteignungsgleicher Eingriff, or equivalent expropriation). In
American terms, the question is whether there remains an inverse
condemnation action available to property owners. It is
understandable why some scholars believe that there is not. The
Court did, after all, permit the legislature to wipe away, without
compensation, a discrete property right that had once been
expressly recognized. How could there be any circumstance, then,
in which the legislative obliteration of a legally recognized property
interest would trigger the obligation to compensate? How could
there be any circumstance in which the legislature has “gone too
far” ?
One distinguished German scholar has argued that the case,
properly read, does not abolish the idea of compensation for
regulatory takings. He points out that the Constitutional Court
never mentioned the doctrine of regulatory takings anywhere in its
opinion. More significantly, subsequent developments in the case
reveal that the possibility of compensation for a regulatory taking is
far from dead. Following the Constitutional Court’s decision, the
case went back to the Supreme Court. That Supreme Court
awarded the plaintiff compensation. It did so on the theory that,
although the basic principle of property protection emerges from
constitutional principles, the particulars of protection must be
determined based on nonconstitutional law (einfaches Recht). The
relevant nonconstitutional basis for state liability in the case, said
the Court, is the principle of individual sacrifice
(Aufopferungsgedanke). If governmental action sacrifices an individual
for the benefit of the general public, the state is liable to
compensate the individual in an action that is similar to, but not
technically, an “expropriation,” as used in Article 14(3).4
What really seems to be going on here is a tug-of-war game between the
Constitutional Court and the Supreme Civil Court, with the latter taking a more
expansive view of the state’s obligation to compensate private owners for
governmental encroachment of their property interests. In American terms, the
conflict is somewhat analogous to the difference between the views of Justice
Brennan and Chief Justice Rehnquist in the Penn Central case. See Penn Cent.
Transp. Co. v. New York City, 438 U.S. 104 (1978). Ossenbühl has expressed the
interesting idea that the alternative, nonconstitutional basis for compensation in
4

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This debate has continued without any clear resolution, leaving this
aspect of German state liability law (Staatshaftungsrecht) in
considerable confusion. Whatever its legal basis, the Supreme Civil
Court’s decision does seem to leave open the possibility of
monetary compensation for regulatory takings. More interestingly,
it creates the possibility of compensation without a taking in cases in
which justice seems to demand it even though the Constitution
does not.
Three final comparative points about the “Groundwater Cases”
need to be made. First, the case makes clear that the German
Constitutional Court, like its American counterpart, has rejected
what in American takings literature has become known as
“conceptual severance.” Conceptual severance, a term first coined
by Margaret Jane Radin, means that every incident of ownership,
every twig in the bundle of rights, is itself ownership. The
implication of conceptual severance, of course, would be to
strengthen vastly the bite of the Takings Clause, because virtually
every regulation affecting private ownership of any resource would
become a taking of ownership itself. The U.S. Supreme Court’s
reaction to conceptual severance has been somewhat ambiguous,
but the German Court clearly rejected it, at least with respect to the
relationship between land and subsurface resources. In fact, none
of the Court’s decisions under its constitutional property clause
provides any basis at all for supposing that the Court is prepared to
entertain such an approach.
The second point concerns the Court’s statement in the
“Groundwater Cases” that the constitutional right to property does
not guarantee the right to exploit the resource for its highest
economic value. This statement indicates that German
constitutional protection of property is not rooted either in notions
of wealth maximization or libertarianism. Eliminating those two
possible theoretical bases of constitutional protection of property
cases of regulatory takings should be customary law. That is, the concept of
enteigungsgleicher Eingriff should be separated from Article 14 of the Grundgesetz and
treated as a matter of customary law.

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has important implications for determining how a wide variety of
contemporary American takings disputes would be resolved under
German law. Wetlands regulation is an obvious example.
Landowners (especially farmers) whose parcels include regulated
wetlands have been very vocal in recent years about their supposed
constitutional right to capture the full potential market value of the
affected land. Using the Takings Clause, they have challenged
wetlands regulations precisely on the ground that they deprive the
owner of the ability to put the land to its highest economic use.
Whether or not German courts might find another basis for
striking down wetlands regulations, they clearly would reject the
basic premise of the attack on American wetlands regulations.
The third respect in which American property lawyers can learn
from the “Groundwater Cases” concerns the approach that the
German Court took to determine that the property interest in
question was what Carol Rose has called “inherently public
property.” The Court focused on both the social necessity of the
resource and the degree of social interdependence associated with
the resource and the conditions of contemporary society. What the
Court implicitly said was the following: Any use of flowing water
by any single person or group of persons affects both the social
and ecological communities in multiple ways, and it is unrealistic to
suppose that any given owner will take into account all of these
external effects. Indeed, precisely because of the intensity of the
social and ecological interdependence that characterizes flowing
water, no owner can possibly take into account all or even most of
the external effects of a given use when choosing among possible
uses. The consequences of any given use by an individual are both
wildly unpredictable and profoundly felt by the entire community.
Under such circumstances of intense interdependency, the
boundary between meum and tuum is both meaningless and
dangerously misleading. A resource whose use so profoundly
affects the interdependent social and natural communities is
inherently public and can only be regulated by public norms as
expressions of the common will. Under this view, the German
Federal Water Law at issue in the “Groundwater Cases” is not

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redistributive. It does not take an asset from A and give it to B.
Rather, the statute is premised on the understanding that
groundwater, for constitutional purposes at least, is now and always
has been both A’s and B’s. It is not the state’s property, but
property that is “inherently public.”

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