No. 77-444.

PENN CENTRAL TRANSPORTATION CO. et al. v. NEW YORK CITY et al.

Decided June 26, 1978

Argued April 17, 1978

Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Stevens, J., joined, post, p. 138.

Daniel M. Gribbon argued the cause for appellants. With him on the briefs were John R. Bolton and Carl Helmetag, Jr.

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 *

*

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. Charder, Richard FI. 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.

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.

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.1 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 destroyed2 without adequate con­sideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways.3 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, basically an environmental one, of enhancing—or per­haps developing for the first time—the quality of life for people."4

New York City, responding to similar concerns and acting pursuant to a New York State enabling Act,5 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,6 but rather by 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.7 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.

The operation of the law can be briefly summarized. The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad based, 11-member agency8 assisted by a technical staff. The Commission first performs the function, critical to any landmark preservation effort, of identifying properties and areas that have “a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.” § 207-­1.0 (n); see § 207-1.0 (h). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the ordinance’s criteria, it will designate a building to be a “landmark,” § 207-1.0 (n),9 situ­ated on a particular “landmark site,” § 207-1.0 (o),10 or will designate an area to be a “historic district," §207-1.0 (h).11 After the Commission makes a designation, New York City’s Board of Estimate, after considering the relationship of the designated property “to the master plan, the zoning resolu­tion, projected public improvements and any plans for the renewal of the area involved,” § 207-2.0 (g)(1), may modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. Thus far, 31 historic districts and over 400 individual landmarks have been finally designated,12 and the process is a continuing one.

Final designation as a landmark results in restrictions upon the property owner’s options concerning use of the landmark site. First, the law imposes a duty upon the owner to keep the exterior features of the building “in good repair” to assure that the law’s objectives not be defeated by the landmark’s falling into a state of irremediable disrepair. See § 207-­10.0 (a). Second, the Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring that decisions concerning con­struction on the landmark site are made with due considera­tion of both the public interest in the maintenance of the structure and the landowner’s interest in use of the property. See §§ 207-4.0 to 207-9.0.

In the event an owner wishes to alter a landmark site, three separate procedures are available through which administra­tive approval may be obtained. First, the owner may apply to the Commission for a “certificate of no effect on protected architectural features”: that is, for an order approving the improvement or alteration on the ground that it will not change or affect any architectural feature of the landmark and will be in harmony therewith. See § 207-5.0. Denial of the certificate is subject to judicial review.

Second, the owner may apply to the Commission for a certificate of “appropriateness.” See § 207-6.0. Such certif­icates will be granted if the Commission concludes—focusing upon aesthetic, historical, and architectural values—that the proposed construction on the landmark site would not unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Again, denial of the certificate is subject to judicial review. Moreover, the owner who is denied either a certificate of no exterior effect or a certificate of appropriate­ness may submit an alternative or modified plan for approval. The final procedure—seeking a certificate of appropriateness on the ground of “insufficient return,” see § 207-8.0—provides special mechanisms, which vary depending on whether or not the landmark enjoys a tax exemption,13 to ensure that designa­tion does not cause economic hardship.

Although the designation of a landmark and landmark site restricts the owner’s control oyer the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City’s zoning laws, owners of real property who have not developed their property to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city block. See New York City, Zoning Resolu­tion Art. I, ch. 2, § 12-10 (1978) (definition of “zoning lot”). A 1968 ordinance gave the owners of landmark sites addi­tional opportunities to transfer development rights to other parcels. Subject to a restriction that the floor area of the transferee lot may not be increased by more than 20% above its authorized level, the ordinance permitted transfers from a landmark parcel to property across the street or across a street intersection. In 1969, the law governing the conditions under which transfers from landmark parcels could occur was liberal­ized, see New York City Zoning Resolutions 74-79 to 74-793, apparently to ensure that the Landmarks Law would not un­duly restrict the development options of the owners of Grand Central Terminal. See Marcus, Air Rights Transfers in New York City, 36 Law & Contemp. Prob. 372, 375 (1971). The class of recipient lots was expanded to include lots “across a street and opposite to another lot or lots which except for the intervention of streets or street intersections f[or]m a series extending to the lot occupied by the landmark building [, provided that] all lots [are] in the same ownership.” New York City Zoning Resolution 74-79 (emphasis deleted).14 In addition, the 1969 amendment permits, in highly commer­cialized areas like midtown Manhattan, the transfer of all unused development rights to a single parcel. Ibid.

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.

The Terminal is located in midtown Manhattan. Its south facade faces 42d Street and that street’s intersection with Park Avenue. At street level, the Terminal is bounded on the west by Vanderbilt Avenue, on the east by the Commodore Hotel, and on the north by the Pan-American Building. Although a 20-story office tower, to have been located above the Terminal, was part of the original design, the planned tower was never constructed.15 The Terminal itself is an eight-story structure which Penn Central uses as a railroad station and in which it rents space not needed for railroad purposes to a variety of commercial interests. The Terminal is one of a number of properties owned by appellant Penn Central in this area of midtown Manhattan. The others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building and other office buildings along Park Avenue, and the Yale Club. At least eight of these are eligible to be recipients of development rights afforded the Terminal by virtue of landmark designation.

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.” 16 The Board of Estimate confirmed this action on 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,17 called for tearing down a portion of the Terminal that 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.

[2: Reproductions of the proposals appear https://perma.cc/44C6-YNR From: http://www.architakes.com/?p=13036]

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. The Commission first fo­cused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade and that one additional tower could do no further damage and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city and that a 55-story tower atop the Terminal would be far more detrimental to its south facade than the Pan-Ameri­can Building 375 feet away. Moreover, the Commission found that from closer vantage points the Pan-American Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. 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 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 2251.18

Appellants did not seek judicial review of the denial of either certificate. Because the Terminal site enjoyed a tax exempt­ion,19 remained suitable for its present and future uses, and was not the subject of a contract of sale, there were no further administrative remedies available to appellants as to the Breuer I and Breuer II Revised plans. See n. 13, supra. Further, ap­pellants did not avail themselves of the opportunity to develop and submit other plans for the Commission’s consideration and approval. Instead, appellants filed suit in New York Su­preme Court, Trial Term, claiming, inter alia, that the applica­tion of the Landmarks Preservation Law had “taken” their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. Appellants sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site, and damages for the “temporary taking” that occurred between August 2, 1967, the designation date, and the date when the restrictions arising from the Landmarks Law would be lifted. The trial court granted the injunctive and declara­tory relief, but severed the question of damages for a “tem­porary taking.” 20

Appellees appealed, and the New York Supreme Court, Appellate Division, reversed. 50 App. Div. 2d 265, 377 N. Y. S. 2d 20 (1975). The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of pro­tecting landmarks and therefore that appellants could sustain their constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property. The Appellate Division held that the evidence appellants introduced at trial—“Statements of Revenues and Costs,” purporting to show a net operating loss for the years 1969 and 1971, which were prepared for the instant litigation—had not satisfied their burden.21 First, the court rejected the claim that these statements showed that the Terminal was operating at a loss, for in the court’s view, appellants had improperly attributed some railroad operating expenses and taxes to their real estate operations, and compounded that error by failing to impute any rental value to the vast space in the Terminal devoted to railroad purposes. Further, the Appellate Divi­sion concluded that appellants had failed to establish either that they were unable to increase the Terminal’s commercial income by transforming vacant or underutilized space to revenue-producing use, or that the unused development rights over the Terminal could not have been profitably transferred to one or more nearby sites.22 The Appellate Division con­cluded that all appellants had succeeded in showing was that they had been deprived of the property’s most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property.

The New York Court of Appeals affirmed. 42 N. Y. 2d 324, 366 N. E. 2d 1271 (1977). That court 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. In that circumstance, the Court of Appeals held that appel­lants’ attack on the law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a “reasonable return” on the “privately created and privately managed ingredient” of the Terminal. Id., at 328, 366 N. E. 2d, at 1273.23 The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central’s extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the con­struction of office buildings, were valuable to appellants and provided “significant, perhaps 'fair,' compensation for the loss of rights above the terminal itself.” Id., at 333-336, 366 N. E. 2d, at 1276-1278.

Observing that its affirmance was “[o]n the present record,” and that its analysis had not been fully developed by counsel at any level of the New York judicial system, the Court of Appeals directed that counsel “should be entitled to present . . . any additional submissions which, in the light of [the court’s] opinion, may usefully develop further the factors discussed.” Id., at 337, 366 N. E. 2d, at 1279. Appellants chose not to avail themselves of this opportunity and filed a notice of appeal in this Court. We noted probable jurisdiction. 434 U.S. 983 (1977). We affirm.

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 Amendment.24 We need only address the question whether a “taking” has occurred.25

A

Before considering appellants’ specific contentions, it will be useful to review the factors that have shaped the 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 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 States v. 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 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.

Again, Hadacheck v. Sebastian, 239 U.S. 394 (1915), upheld a law prohibiting the claimant from continuing his otherwise lawful business of operating a brickyard in a particular physi­cal community on the ground that the legislature had reason­ably concluded that the presence of the brickyard was inconsistent with neighboring uses. See also United States v. Central Eureka Mining Co., supra (Government order closing gold mines so that skilled miners would be available for other mining work held not a taking): Atchison, T. & S. F. R. Co. v. Public Utilities Comm’n, 346 U.S. 346 (1953) (railroad may be required to share cost of constructing railroad grade im­provement) ; Walls v. Midland Carbon Co., 254 U.S. 300 (1920) (law prohibiting manufacture of carbon black upheld); Reinman v. Little Rock, 237 U.S. 171 (1915) (law prohibiting livery stable upheld); Mugler v. Kansas, 123 U.S. 623 (1887) (law prohibiting liquor business upheld).

Goldblatt v. Hempstead, supra, is a recent example. There, a 1958 city safety ordinance banned any excavations below the water table and effectively prohibited the claimant from continuing a sand and gravel mining business that had been operated on the particular parcel since 1927. The Court upheld the ordinance against a “taking” challenge, although the ordinance prohibited the present and presumably most beneficial use of the property and had, like the regulations in Miller and Hadacheck, severely affected a particular owner. The Court assumed that the ordinance did not prevent the owner’s reasonable use of the property since the owner made no showing of an adverse effect on the value of the land. Because the restriction served a substantial public purpose, the Court thus held no taking had occurred. It is, of course, implicit in Goldblatt that a use restriction on real prop­erty may constitute a “taking” if not reasonably necessary to the effectuation, of a substantial public purpose, see Nectow v. Cambridge, supra; cf. Moore v. East Cleveland, 431 U.S. 494, 513-514 (1977) (Stevens, J., concurring), or perhaps if it has an unduly harsh impact upon the owner’s use of the property.

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 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 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 reasonable return,26 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 super-jacent 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 particular parcels.27 “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) (87½% 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 that New York City’s regulation of individual landmarks is fundamentally different from zoning or from his­toric-district 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.

It is true, as appellants emphasize, that both historic-dis­trict legislation and zoning laws regulate all properties within given physical communities whereas landmark laws apply only to selected parcels. But, contrary to appellants’ suggestions, landmark laws are not like discriminatory, or “reverse spot,” zoning: that is, a land-use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. See 2 A. Rathkopf, The Law of Zoning and Planning 26-4, and n. 6 (4th ed. 1978). In con­trast to discriminatory zoning, which is the antithesis of land-­use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city,28 and as noted, over 400 landmarks and 31 historic districts have been designated pursuant to this plan.

Equally without merit is the related argument that the decision to designate a structure as a landmark “is inevitably arbitrary or at least subjective, because it is basically a matter of taste,” Reply Brief for Appellants 22, thus unavoidably sin­gling out individual landowners for disparate and unfair treat­ment. The argument has a particularly hollow ring in this case. For appellants not only did not seek judicial review of either the designation or of the denials of the certificates of appropriateness and of no exterior effect, but do not even now suggest that the Commission’s decisions concerning the Terminal were in any sense arbitrary or unprincipled. But, in any event, a landmark owner has a right to judicial review of any Commission decision, and, quite simply, there is no basis whatsoever for a conclusion that courts will have any greater difficulty identifying arbitrary or discriminatory action in the context of landmark regulation than in the context of classic zoning or indeed in any other context.29

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 Ooldblatt v. Hempstead, were uniquely burdened by the legislation sustained in those cases.30 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.31 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 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.32

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

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.33 First, it simply cannot be maintained, on this record, that appellants have been 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.34

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 pre-existing 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,35 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 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.36

Affirmed.

1

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

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.

3

See, e.g., N. Y. C. Admin. Code § 205-1.0 (a) (1976).

4

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).

5

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.

6

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 Response of State Legislation to Historic Preservation, 36 Law & Contemp. Prob. 329, 330-331, 339-340 (1971).

7

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

The ordinance creating the Commission requires that it include at least three architects, one historian qualified in the field, one city planner or landscape architect, one realtor, and at least one resident of each of the city’s five boroughs. N. Y. C. Charter § 534 (1976). In addition to the ordinance’s requirements concerning the composition of the Commission, there is, according to a former chairman, a “prudent tradition” that the Commission include one or two lawyers, preferably with experience in municipal government, and several laymen with no specialized qualifica­tions other than concern for the good of the city. Goldstone, Aesthetics in Historic Districts, 36 Law & Contemp. Prob. 379, 384-385 (1971).

9

“'Landmark.’ Any improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural character­istics of the city, state or nation and which has been designated as a land­mark pursuant to the provisions of this chapter.” § 207-1.0 (n).

10

“'Landmark site.’ An improvement parcel or part thereof on which is situated a landmark and any abutting improvement parcel or part thereof used as and constituting part of the premises on which the land­mark is situated, and which has been designated as a landmark site pur­suant to the provisions of this chapter.” § 207-1.0 (o).

11

"'Historic district.’ Any area which: (1) contains improvements which: (a) have a special character or special historical or aesthetic inter­est or value; and (b) represent one or more periods or styles of architec­ture typical of one or more eras in the history of the city; and (c) cause such area, by reason of such factors, to constitute a distinct section of the city; and (2) has been designated as a historic district pursuant to the pro­visions of this chapter.” § 207-1.0 (h), The Act also provides for the designation of a “scenic landmark,” see § 207-1.0 (w), and an “interior landmark.” See § 207-1.0 (m).

12

See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977). Although appellants are cor­rect in noting that some of the designated landmarks are publicly owned, the vast majority are, like Grand Central Terminal, privately owned structures.

13

If the owner of a non-tax-exempt parcel has been denied certificates of appropriateness for a proposed alteration and shows that he is not earning a reasonable return on the property in its present state, the Commission and other city agencies must assume the burden of developing a plan that will enable the landmark owner to earn a reasonable return on the landmark site. The plan may include, but need not be limited to, partial or complete tax exemption, remission of taxes, and authorizations for altera­tions, construction, or reconstruction appropriate for and not inconsistent with the purposes of the law. § 207-8.0 (c). The owner is free to accept or reject a plan devised by the Commission and approved by the other city agencies. If he accepts the plan, he proceeds to operate the property pursuant to the plan. If he rejects the plan, the Commission may rec­ommend that the city proceed by eminent domain to acquire a protective interest in the landmark, but if the city does not do so within a specified time period, the Commission must issue a notice allowing the property owner to proceed with the alteration or improvement as originally pro­posed in his application for a certificate of appropriateness.

Tax-exempt structures are treated somewhat differently. They become eligible for special treatment only if four preconditions are satisfied: (1) the owner previously entered into an agreement to sell the parcel that was contingent upon the issuance of a certificate of approval; (2) the property, as it exists at the time of the request, is not capable of earning a reasonable return; (3) the structure is no longer suitable to its past or present purposes; and (4) the prospective buyer intends to alter the land­mark structure. In the event the owner demonstrates that the property in its present state is not earning a reasonable return, the Commission must either find another buyer for it or allow the sale and construction to proceed.

But this is not the only remedy available for owners of tax-exempt land­marks. As the case at bar illustrates, see infra, at 121, if an owner files suit and establishes that he is incapable of earning a “reasonable return” on the site in its present state, he can be afforded judicial relief. Similarly, where a landmark owner who enjoys a tax exemption has demonstrated that the landmark structure, as restricted, is totally inadequate for the owner’s “legitimate needs,” the law has been held invalid as applied to that parcel. See Lutheran Church v. City of New York, 35 N. Y. 2d 121, 316 N. E. 2d 305 (1974).

14

To obtain approval for a proposed transfer, the landmark owner must follow the following procedure. First, he must obtain the permission of the Commission which will examine the plans for the development of the transferee lot to determine whether the planned construction would be compatible with the landmark. Second, he must obtain the approbation of New York City’s Planning Commission which will focus on the effects of the transfer on occupants of the buildings in the vicinity of the trans­feree lot and whether the landmark owner will preserve the landmark. Finally, the matter goes to the Board of Estimate, which has final au­thority to grant or deny the application. See also Costonis, supra n. 2, at 585-586.

15

The Terminal’s present foundation includes columns, which were built into it for the express purpose of supporting the proposed 20-story tower.

16

The Commission’s report stated:

“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.

17

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.

18

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 Rouse enhances West 12th Street, and Breuer’s own Whitney Museum its Madison Avenue locale.” Record 2251.

19

See N. Y. Real Prop. Tax Law § 489-aa et seq. (McKinney Supp. 1977).

20

Although that court suggested that any regulation of private property to protect landmark values was unconstitutional if “just compensation” were not afforded, it also appeared to rely upon its findings: first, that the cost to Penn Central of operating the Terminal building itself, exclu­sive of purely railroad operations, exceeded the revenues received from concessionaires and tenants in the Terminal; and second, that the special transferable development rights afforded Penn Central as an owner of a landmark site did not “provide compensation to plaintiffs or minimize the harm suffered by plaintiffs due to the designation of the Terminal as a landmark.”

21

These statements appear to have reflected the costs of maintaining the exterior architectural features of the Terminal in “good repair” as required by the law. As would have been apparent in any case therefore, the existence of the duty to keep up the property was here—and will pre­sumably always be—factored into the inquiry concerning the constitution­ality of the landmark restrictions.

The Appellate Division also rejected the claim that an agreement of Penn Central with the Metropolitan Transit Authority and the Connecti­cut Transit Authority provided a basis for invalidating the application of the Landmarks Law.

22

The record reflected that Penn Central had given serious considera­tion to transferring some of those rights to either the Biltmore Hotel or the Roosevelt Hotel.

23

The Court of Appeals suggested that in calculating the value of the property upon which appellants were entitled to earn a reasonable return, the “publicly created” components of the value of the property—i.e., those elements of its value attributable to the “efforts of organized so­ciety” or to the “social complex” in which the Terminal is located—had to be excluded. However, since the record upon which the Court of Appeals decided the case did not, as that court recognized, contain a basis for segregating the privately created from the publicly created elements of the value of the Terminal site and since the judgment of the Court of Appeals in any event rests upon bases that support our affirmance, see infra, this page and 122, we have no occasion to address the question whether it is permissible or feasible to separate out the “social increments” of the value of property. See Costonis, The Disparity Issue: A Context for the Grand Central Terminal Decision, 91 Harv. L. Rev. 402, 416-417 (1977).

24

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.

25

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.

26

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.

27

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.

28

Although the New York Court of Appeals contrasted the New York City Landmarks Law with both zoning and historic-district legislation and stated at one point that landmark laws do not “further a general com­munity plan,” 42 N. Y. 2d 324, 330, 366 N. E. 2d 1271, 1274 (1977), it also emphasized that the implementation of the objectives of the Land­marks Law constitutes an “acceptable reason for singling out one par­ticular parcel for different and less favorable treatment." Ibid., 366 N. E. 2d, at 1275. Therefore, we do not understand the New York Court of Appeals to disagree with our characterization of the law.

29

When a property owner challenges the application of a zoning or­dinance to his property, the judicial inquiry focuses upon whether the challenged restriction can reasonably be deemed to promote the objectives of the community land-use plan, and will include consideration of the treatment of similar parcels. See generally Nectow v. Cambridge, 277 U.S. 183 (1928). When a property owner challenges a landmark designa­tion or restriction as arbitrary or discriminatory, a similar inquiry pre­sumably will occur.

30

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.

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).

31

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).

32

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.

33

Appellants, of course, argue at length that the transferable develop­ment rights, while valuable, do not constitute “just compensation.” Brief for Appellants 36-43.

34

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.

35

See Costonis, supra n. 2, at 585-589.

36

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.

Mr. Justice Rehnquist,

with whom The Chief Justice and Mr. Justice Stevens join, dissenting.

Of the over one million buildings and structures in the city of New York, appellees have singled out 400 for desig­nation as official landmarks.1 The owner of a building might initially be pleased that his property has been chosen by a distinguished committee of architects, historians, and city planners for such a singular distinction. But he may well discover, as appellant Penn Central Transportation Co. did here, that the landmark designation imposes upon him a sub­stantial cost, with little or no offsetting benefit except for the honor of the designation. The question in this case is whether the cost associated with the city of New York’s desire to pre­serve a limited number of “landmarks” within its borders must be borne by all of its taxpayers or whether it can instead be imposed entirely on the owners of the individual properties.

Only in the most superficial sense of the word can this case be said to involve “zoning.” 2 Typical zoning restric­tions may, it is true, so limit the prospective uses of a piece of property as to diminish the value of that property in the abstract because it may not be used for the forbidden pur­poses. But any such abstract decrease in value will more than likely be at least partially offset by an increase in value which flows from similar restrictions as to use on neighboring properties. All property owners in a designated area are placed under the same restrictions, not only for the benefit of the municipality as a whole but also for the common benefit of one another. In the words of Mr. Justice Holmes, speaking for the Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), there is “an average reciprocity of advantage.”

Where a relatively few individual buildings, all separated from one another, are singled out and treated differently from surrounding buildings, no such reciprocity exists. The cost to the property owner which results from the imposition of restrictions applicable only to his property and not that of his neighbors may be substantial—in this case, several million dollars—with no comparable reciprocal benefits. And the cost associated with landmark legislation is likely to be of a com­pletely different order of magnitude than that which results from the imposition of normal zoning restrictions. Unlike the regime affected by the latter, the landowner is not simply prohibited from using his property for certain purposes, while allowed to use it for all other purposes. Under the historic-­landmark preservation scheme adopted by New York, the property owner is under an affirmative duty to preserve his property as a landmark at his own expense. To suggest that because traditional zoning results in some limitation of use of the property zoned, the New York City landmark preservation scheme should likewise be upheld, represents the ultimate in treating as alike things which are different. The rubric of “zoning” has not yet sufficed to avoid the well-established proposition that the Fifth Amendment bars the “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 discussion infra, at 147-150.

In August 1967, Grand Central Terminal was designated a landmark over the objections of its owner Penn Central. Immediately upon this designation, Penn Central, like all owners of a landmark site, was placed under an affirmative duty, backed by criminal fines and penalties, to keep “ex­terior portions” of the landmark “in good repair.” Even more burdensome, however, were the strict limitations that were thereupon imposed on Penn Central’s use of its property. At the time Grand Central was designated a landmark, Penn Central was in a precarious financial condition. In an effort to increase its sources of revenue, Penn Central had entered into a lease agreement with appellant UGP Properties, Inc., under which UGP would construct and operate a multistory office building cantilevered above the Terminal building. During the period of construction, UGP would pay Penn Central $1 million per year. Upon completion, UGP would rent the building for 50 years, with an option for another 25 years, at a guaranteed minimum rental of $3 million per year. The record is clear that the proposed office building was in full compliance with all New York zoning laws and height limitations. Under the Landmarks Preservation Law, how­ever, appellants could not construct the proposed office build­ing unless appellee Landmarks Preservation Commission issued either a “Certificate of No Exterior Effect” or a “Cer­tificate of Appropriateness.” Although appellants’ archi­tectural plan would have preserved the facade of the Terminal, the Landmarks Preservation Commission has refused to ap­prove the construction.

I

The Fifth Amendment provides in part: “nor shall private property be taken for public use, without just compensation.” 3 In a very literal sense, the actions of appellees violated this constitutional prohibition. Before the city of New York declared Grand Central Terminal to be a landmark, Penn Central could have used its “air rights” over the Terminal to build a multistory office building, at an apparent value of several million dollars per year. Today, the Terminal cannot be modified in any form, including the erection of additional stories, without the permission of the Landmark Preservation Commission, a permission which appellants, despite good-faith attempts, have so far been unable to obtain. Because the Taking Clause of the Fifth Amendment has not always been read literally, however, the constitutionality of appellees’ actions requires a closer scrutiny of this Court’s interpretation of the three key words in the Taking Clause—“property,” “taken,” and “just compensation.” 4

A

Appellees do not dispute that valuable property rights have been destroyed. And the Court has frequently emphasized that the term “property” as used in the Taking Clause includes the entire “group of rights inhering in the citizen’s [owner­ship].” United States v. General Motors Corp., 323 U.S. 373 (1945). The term is not used in the

“vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] . . . denote[s] the group of rights inhering in the citizen’s relation to the physical thing, as the right to possess, use and dispose of it. .. . The constitutional provision is addressed to every sort of interest the citizen may possess.” Id., at 377-378 (em­phasis added).

While neighboring landowners are free to use their land and “air rights” in any way consistent with the broad boundaries of New York zoning, Penn Central, absent the permission of appellees, must forever maintain its property in its present state.5 The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties.6

B

Appellees have thus destroyed—in a literal sense, “taken”—substantial property rights of Penn Central. While the term “taken” might have been narrowly interpreted to include only physical seizures of property rights, “the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner rather than the accretion of a right or interest to the sovereign constitutes the taking.” Id., at 378. See also United States v. Lynah, 188 U.S. 445, 469 (1903);7 Dugan v. Rank, 372 U.S. 609, 625 (1963). Because “not every destruction or injury to property by governmental action has been held to be a 'taking’ in the constitutional sense,” Armstrong v. United States, 364 U.S., at 48, however, this does not end our inquiry. But an examination of the two exceptions where the destruction of property does not consti­tute a taking demonstrates that a compensable taking has occurred here.

1

As early as 1887, the Court recognized that the government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use.

“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. . . . 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.” Mugler v. Kansas, 123 U.S. 623, 668-669.

Thus, there is no “taking” where a city prohibits the operation of a brickyard within a residential area, see Hadacheck v. Sebastian, 239 U.S. 394 (1915), or forbids excavation for sand and gravel below the water line, see Goldblatt v. Hempstead, 369 U.S. 590 (1962). Nor is it relevant, where the govern­ment is merely prohibiting a noxious use of property, that the government would seem to be singling out a particular prop­erty owner. Hadacheck, supra, at 413.8

The nuisance exception to the taking guarantee is not coterminous with the police power itself. The question is whether the forbidden use is dangerous to the safety, health, or welfare of others. Thus, in Curtin v. Benson, 222 U.S. 78 (1911), the Court held that the Government, in prohibiting the owner of property within the boundaries of Yosemite National Park from grazing cattle on his property, had taken the owner’s property. The Court assumed that the Government could constitutionally require the owner to fence his land or take other action to prevent his cattle from straying onto others’ land without compensating him.

“Such laws might be considered as strictly regulations of the use of property, of so using it that no injury could result to others. They would have the effect of making the owner of land herd his cattle on his own land and of making him responsible for a neglect of it.” Id., at 86.

The prohibition in question, however, was “not a prevention of a misuse or illegal use but the prevention of a legal and essential use, an attribute of its ownership.” Ibid.

Appellees are not prohibiting a nuisance. The record is clear that the proposed addition to the Grand Central Terminal would be in full compliance with zoning, height limitations, and other health and safety requirements. Instead, appellees are seeking to preserve what they believe to be an outstanding example of beaux arts architecture. Penn Central is pre­vented from further developing its property basically because too good a job was done in designing and building it. The city of New York, because of its unadorned admiration for the design, has decided that the owners of the building must preserve it unchanged for the benefit of sightseeing New Yorkers and tourists.

Unlike land-use regulations, appellees’ actions do not merely prohibit Penn Central from using its property in a narrow set of noxious ways. Instead, appellees have placed an affirm­ative duty on Penn Central to maintain the Terminal in its present state and in “good repair.” Appellants are not free to use their property as they see fit within broad outer boundaries but must strictly adhere to their past use except where appel­lees conclude that alternative uses would not detract from the landmark. While Penn Central may continue to use the Terminal as it is presently designed, appellees otherwise “exer­cise complete dominion and control over the surface of the land,” United States v. Causby, 328 U.S. 256, 262 (1946), and must compensate the owner for his loss. Ibid. “Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired.” United States v. Dickinson, 331 U.S. 745, 748 (1947). See also Dugan v. Rank, supra, at 625.9

2

Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross section of land and thereby “secure[s] an average reciprocity of advantage.” Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415.10 It is for this reason that zoning does not constitute a “taking.” While zoning at times reduces individual property values, the burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is harmed by one aspect of the zoning will be benefited by another.

Here, however, a multimillion dollar loss has been imposed on appellants; it is uniquely felt and is not offset by any benefits flowing from the preservation of some 400 other “landmarks” in New York City. Appellees have imposed a substantial cost on less than one one-tenth of one percent of the buildings in New York City for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the “taking” protection is directed. The Fifth Amendment

“prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.” Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893).

Less than 20 years ago, this Court reiterated that the

“Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensa­tion was 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., at 49.

Cf. Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 428-430 (1935).11

As Mr. Justice Holmes pointed out in Pennsylvania Coal Co. v. Mahon, “the question at bottom” in an eminent domain case “is upon whom the loss of the changes desired should fall.” 260 U.S., at 416. The benefits that appellees believe will flow from preservation of the Grand Central Terminal will accrue to all the citizens of New York City. There is no reason to believe that appellants will enjoy a substantially greater share of these benefits. If the cost of preserving Grand Central Terminal were spread evenly across the entire population of the city of New York, the burden per person would be in cents per year — a minor cost appellees would surely concede for the benefit accrued. Instead, however, appellees would impose the entire cost of several million dol­lars per year on Penn Central. But it is precisely this sort of discrimination that the Fifth Amendment prohibits.12

Appellees in response would argue that a taking only occurs where a property owner is denied all reasonable value of his property.13 The Court has frequently held that, even where a destruction of property rights would not otherwise constitute a taking, the inability of the owner to make a reasonable return on his property requires compensation under the Fifth Amendment. See, e.g., United States v. Lynah, 188 U.S., at 470. But the converse is not true. A taking does not become a noncompensable exercise of police power simply because the government in its grace allows the owner to make some “reasonable” use of his property. “[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.” United States v. Cress, 243 U.S. 316, 328 (1917); United States v. Causby, 328 U.S., at 266. See also Coldblatt v. Hempstead, 369 U.S., at 594.

C

Appellees, apparently recognizing that the constraints im­posed on a landmark site constitute a taking for Fifth Amend­ment purposes, do not leave the property owner empty­handed. As the Court notes, ante, at 113-114, the property owner may theoretically “transfer” his previous right to develop the landmark property to adjacent properties if they are under his control. Appellees have coined this system “Transfer Development Rights,” or TDR’s.

Of all the terms used in the Taking Clause, “just compensa­tion” has the strictest meaning. The Fifth Amendment does not allow simply an approximate compensation but requires “a full and perfect equivalent for the property taken.” Monongahela Navigation Co. v. United States, 148 U.S., at 326.

“[I]f the adjective ‘just’ had been omitted, and the pro­vision was simply that property should not be taken with­out compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective ‘just.’ There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken.” Ibid.

See also United States v. Lynah, supra, at 465; United States v. Pewee Coal Co., 341 U.S. 114, 117 (1951). And the determination of whether a “full and perfect equivalent” has been awarded is a “judicial function.” United States v. New River Collieries Co., 262 U.S. 341, 343-344 (1923). The fact that appellees may believe that TDR’s provide full compen­sation is irrelevant.

“The legislature may determine what private property is needed for public purposes—that is a question of a politi­cal and legislative character; but when the taking has been ordered, then the question of compensation is judi­cial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has de­clared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry.” Mononga­hela Navigation Co. v. United States, supra, at 327.

Appellees contend that, even if they have “taken” appel­lants’ property, TDR’s constitute “just compensation.” Ap­pellants, of course, argue that TDR’s are highly imperfect compensation. Because the lower courts held that there was no “taking,” they did not have to reach the question of whether or not just compensation has already been awarded. The New York Court of Appeals’ discussion of TDR’s gives some support to appellants:

“The many defects in New York City’s program for de­velopment rights transfers have been detailed else­where .... The area to which transfer is permitted is severely limited [and] complex procedures are required to obtain a transfer permit.” 42 N. Y. 2d 324, 334-335, 366 N. E. 2d 1271, 1277 (1977).

And in other cases the Court of Appeals has noted that TDR’s have an “uncertain and contingent market value” and do “not adequately preserve” the value lost when a building is declared to be a landmark. French Investing Co. v. City of New York, 39 N. Y. 2d 587, 591, 350 N. E. 2d 381, 383, appeal dismissed, 429 U.S. 990 (1976). On the other hand, there is evidence in the record that Penn Central has been offered substantial amounts for its TDR's. Because the rec­ord on appeal is relatively slim, I would remand to the Court of Appeals for a determination of whether TDR’s constitute a “full and perfect equivalent for the property taken."14

II

Over 50 years ago, Mr. Justice Holmes, speaking for the Court, warned that the courts were “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.” Penn­sylvania Coal Co. v. Mahon, 260 U.S., at 416. The Court’s opinion in this case demonstrates that the danger thus fore­seen has not abated. The city of New York is in a precarious financial state, and some may believe that the costs of land­mark preservation will be more easily borne by corporations such as Penn Central than the overburdened individual tax­payers of New York. But these concerns do not allow us to ignore past precedents construing the Eminent Domain Clause to the end that the desire to improve the public condi­tion is, indeed, achieved by a shorter cut than the constitu­tional way of paying for the change.

1

A large percentage of the designated landmarks are public structures (such as the Brooklyn Bridge, City Hall, the Statue of Liberty and the Municipal Asphalt Plant) and thus do not raise Fifth Amendment taking questions. See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977 and Jan. 10, 1978, Supple­ment). Although the Court refers to the New York ordinance as a comprehensive program to preserve historic landmarks, ante, at 107, the ordinance is not limited to historic buildings and gives little guidance to the Landmarks Preservation Commission in its selection of landmark sites. Section 207-1.0 (n) of the Landmarks Preservation Law, as set forth in N. Y. C. Admin. Code, ch. 8-A (1976), requires only that the selected landmark be at least 30 years old and possess “a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation.”

2

Even the New York Court of Appeals conceded that “[t]his is not a zoning case. . . . Zoning restrictions operate to advance a comprehensive community plan for the common good. Each property owner in the zone is both benefited and restricted from exploitation, presumably without discrimination, except for permitted continuing nonconforming uses. The restrictions may be designed to maintain the general character of the area, or to assure orderly development, objectives inuring to the benefit of all, which property owners acting individually would find difficult or impos­sible to achieve ....

“Nor does this case involve landmark regulation of a historic district. . . . [In historic districting, as in traditional zoning,] owners although burdened by the restrictions also benefit, to some extent, from the furtherance of a general community plan.

“Restrictions on alteration of individual landmarks are not designed to further a general community plan. Landmark restrictions are designed to prevent alteration or demolition of a single piece of property. To this extent, such restrictions resemble 'discriminatory’ zoning restrictions, prop­erly condemned . . . .” 42 N. Y. 2d 324, 329-330, 366 N. E. 2d 1271, 1274 (1977).

3

The guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the Fourteenth Amendment. Although the state “legislature may prescribe a form of procedure to be observed in the taking of private property for public use, ... it is not due process of law if provision be not made for compensation.” Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 236 (1897).

4

The Court’s opinion touches base with, or at least attempts to touch base with, most of the major eminent domain cases decided by this Court. Its use of them, however, is anything but meticulous. In citing to United States v. Caltex, Inc., 344 U.S. 149, 156 (1952), for example, ante, at 124, the only language remotely applicable to eminent domain is stated in terms of “the destruction of respondents’ terminals by a trained team of engineers in the face of their impending seizure by the enemy.” 344 U.S., at 156.

5

In particular, Penn Central cannot increase the height of the Terminal. This Court has previously held that the “air rights” over an area of land are “property” for purposes of the Fifth Amendment. See United States v. Causby, 328 U.S. 256 (1946) (“air rights” taken by low-flying air­planes); Griggs v. Allegheny County, 369 U.S. 84 (1962) (same); Ports­mouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922) (firing of projectiles over summer resort can constitute taking). See also Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716 (1906) (stringing of telephone wire across property constitutes a taking).

6

It is, of course, irrelevant that appellees interfered with or destroyed property rights that Penn Central had not yet physically used. The Fifth Amendment must be applied with “reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the imme­diate future.” Boom Co. v. Patterson, 98 U.S. 403, 408 (1879) (emphasis added).

7

“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 invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” 188 U.S., at 470.

8

Each of the cases cited by the Court for the proposition that legisla­tion which severely affects some landowners but not others does not effect a “taking” involved noxious uses of property. See Hadacheck; Miller v. Schoene, 276 U.S. 272 (1928); Goldblatt. See ante, at 125-127, 133.

9

In Monongahela Navigation Co. v. United States, 148 U.S. 312 (1893), the Monangahela company had expended large sums of money in improving the Monongahela River by means of locks and dams. When the United States condemned this property for its own use, the Court held that full compensation had to be awarded. “Suppose, in the improvement of a navigable stream, it was deemed essential to construct a canal with locks, in order to pass around rapids or falls. Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of paying full compensation for all private property taken there can be as little doubt.” Id., at 337. Under the Court’s rationale, however, where the Government wishes to preserve a pre-existing canal system for public use, it need not condemn the property but need merely order that it be preserved in its present form and be kept “in good repair.”

10

Appellants concede that the preservation of buildings of historical or aesthetic importance is a permissible objective of state action. Brief for Appellants 12. Cf. Berman v. Parker, 348 U.S. 26 (1954); United States v. Gettysburg Electric R. Co., 160 U.S. 668 (1896).

For the reasons noted in the text, historic zoning, as has been under­taken by cities such as New Orleans, may well not require compensation under the Fifth Amendment.

11

“It is true that the police power embraces regulations designed to promote public convenience or the general welfare, and not merely those in the interest of public health, safety and morals. . . . But when par­ticular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured. . . . While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit, and indeed, suffer serious detriment, . . . so-called assessments for public improvements laid upon particular property owners are ordinarily constitutional only if based on benefits received by them.” 294 U.S., at 429-430.

12

The fact that the Landmarks Preservation Commission may have allowed additions to a relatively few landmarks is of no comfort to appel­lants. Ante, at 118 n. 18. Nor is it of any comfort that the Commission refuses to allow appellants to construct any additional stories because of their belief that such construction would not be aesthetic. Ante, at 117-118.

13

Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define “reasonable return” for a variety of types of property (farmlands, residential prop­erties, commercial and industrial areas), but the Court must define the particular property unit that should be examined. For example, in this case, if appellees are viewed as having restricted Penn Central’s use of its “air rights,” all return has been denied. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). The Court does little to resolve these questions in its opinion. Thus, at one point, the Court implies that the question is whether the restrictions have “an unduly harsh impact upon the owner’s use of the property,” ante, at 127; at another point, the question is phrased as whether Penn Central can obtain “a ‘reasonable return’ on its investment,” ante, at 136; and, at yet another point, the question becomes whether the landmark is “economically viable,” ante, at 138 n. 36.

14

The Court suggests, ante, at 131, that if appellees are held to have “taken” property rights of landmark owners, not only the New York City Landmarks Preservation Law, but “all comparable landmark legislation in the Nation,” must fall. This assumes, of course, that TDR’s are not “just compensation” for the property rights destroyed. It also ignores the fact that many States and cities in the Nation have chosen to preserve land­marks by purchasing or condemning restrictive easements over the facades of the landmarks and are apparently quite satisfied with the results. See, e.g., Ore. Rev. Stat. §§ 271.710, 271.720 (1977); Md. Ann. Code, Art 41, § 181A (1978); Va. Code §§ 10-145.1 and 10-138 (e) (1978); Richmond, Va., City Code § 17-23 et seq. (1975). The British National Trust has effectively used restrictive easements to preserve landmarks since 1937. See National Trust Act, 1937, 1 Edw. 8 and 1 Geo. 6 ch. lvii, §§ 4 and 8. Other States and cities have found that tax incentives are also an effective means of encouraging the private preservation of landmark sites. See, e.g., Conn. Gen. Stat. § 12-127a (1977); Ill. Rev. Stat., ch. 24, § 11-48.2-6 (1976); Va. Code § 10-139 (1978). The New York City Landmarks Preservation Law departs drastically from these traditional, and constitu­tional, means of preserving landmarks.

No. 81-244.

LORETTO v. TELEPROMPTER MANHATTAN CATV CORP. et al.

Decided June 30, 1982

Argued March 30, 1982

Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan and White, JJ., joined, post, p. 442.

with whom Justice Brennan and Justice White join,

Michael S. Gruen argued the cause and filed briefs for appellant.

Erwin N. Griswold argued the cause for appellees. With him on the brief for appellees Teleprompter Manhattan CATV Corp. et al. was Michael Lesch. Frederick A. O. Schwarz, Jr., and Leonard Koemer filed a brief for appellee City of New York.*

*

Michael D. Botwin and James J. Bierbower filed a brief for the Na­tional Satellite Cable Association et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed by Robert Abrams, Attorney General, pro se, Shirley Adelson Siegel, Solicitor General, and Lawrence J. Logan, Assistant Attorney General, for the Attorney General of New York; by Brenda L. Fox, James H. Ewalt, and Robert St. John Roper for the National Cable Television Association, Inc.; and by Stuart Robinowitz and Richard A. Rosen for the New York State Cable Televi­sion Association.

Justice Marshall

delivered the opinion of the Court.

This case presents the question whether a minor but per­manent physical occupation of an owner’s property author­ized by government constitutes a “taking” of property for which just compensation is due under the Fifth and Four­teenth Amendments of the Constitution. New York law provides that a landlord must permit a cable television com­pany to install its cable facilities upon his property. N.Y. Exec. Law § 828(1) (McKinney Supp. 1981-1982). In this case, the cable installation occupied portions of appellant’s roof and the side of her building. The New York Court of Appeals ruled that this appropriation does not amount to a taking. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). Because we conclude that such a physical occupation of property is a taking, we reverse.

I

Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Tele­prompter Corp. and Teleprompter Manhattan CATV (col­lectively Teleprompter)1 permission to install a cable on the building and the exclusive privilege of furnishing cable television (CATV) services to the tenants. The New York Court of Appeals described the installation as follows:

“On June 1, 1970 TelePrompter installed a cable slightly less than one-half inch in diameter and of ap­proximately 30 feet in length along the length of the building about 18 inches above the roof top, and direc­tional taps, approximately 4 inches by 4 inches by 4 inches, on the front and rear of the roof. By June 8, 1970 the cable had been extended another 4 to 6 feet and cable had been run from the directional taps to the ad­joining building at 305 West 105th Street.” Id., at 135, 423 N. E. 2d, at 324.

Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails pene­trating the masonry at approximately two-foot intervals, and other equipment is installed by bolts.

Initially, Teleprompter’s roof cables did not service appel­lant’s building. They were part of what could be described as a cable “highway” circumnavigating the city block, with service cables periodically dropped over the front or back of a building in which a tenant desired service. Crucial to such a network is the use of so-called “crossovers”—cable lines ex­tending from one building to another in order to reach a new group of tenants.2 Two years after appellant purchased the building, Teleprompter connected a “noncrossover” line—i.e., one that provided CATV service to appellant’s own ten­ants—by dropping a line to the first floor down the front of appellant’s building.

Prior to 1973, Teleprompter routinely obtained authoriza­tion for its installations from property owners along the cable’s route, compensating the owners at the standard rate of 5% of the gross revenues that Teleprompter realized from the particular property. To facilitate tenant access to CATV, the State of New York enacted § 828 of the Executive Law, effective January 1, 1973. Section 828 provides that a landlord may not “interfere with the installation of cable tele­vision facilities upon his property or premises,” and may not demand payment from any tenant for permitting CATV, or demand payment from any CATV company “in excess of any amount which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable.”3 The landlord may, however, require the CATV company or the tenant to bear the cost of installation and to indemnify for any damage caused by the installation. Pursuant to § 828(l)(b), the State Commission has ruled that a one-time $1 payment is the normal fee to which a landlord is entitled. In the Mat­ter of Implementation of Section 828 of the Executive Law, No. 90004, Statement of General Policy (New York State Commission on Cable Television, Jan. 15, 1976) (Statement of General Policy), App. 51-52; Clarification of General Policy (Aug. 27, 1976), App. 68-69. The Commission ruled that this nominal fee, which the Commission concluded was equiv­alent to what the landlord would receive if the property were condemned pursuant to New York’s Transportation Corpora­tions Law, satisfied constitutional requirements “in the ab­sence of a special showing of greater damages attributable to the taking.” Statement of General Policy, App. 52.

Appellant did not discover the existence of the cable until after she had purchased the building. She brought a class action against Teleprompter in 1976 on behalf of all owners of real property in the State on which Teleprompter has placed CATV components, alleging that Teleprompter’s installation was a trespass and, insofar as it relied on § 828, a taking with­out just compensation. She requested damages and injunc­tive relief.4 Appellee City of New York, which has granted Teleprompter an exclusive franchise to provide CATV within certain areas of Manhattan, intervened. The Supreme Court, Special Term, granted summary judgment to Tele­prompter and the city, upholding the constitutionality of § 828 in both crossover and noncrossover situations. 98 Misc. 2d 944, 415 N. Y. S. 2d 180 (1979). The Appellate Di­vision affirmed without opinion. 73 App. Div. 2d 849, 422 N. Y. S. 2d 550 (1979).

On appeal, the Court of Appeals, over dissent, upheld the statute. 53 N. Y. 2d 124, 423 N. E. 2d 320 (1981). The court concluded that the law requires the landlord to allow both crossover and noncrossover installations but permits him to request payment from the CATV company under § 828(l)(b), at a level determined by the State Cable Commission, only for noncrossovers. The court then ruled that the law serves a legitimate police power purpose—eliminating landlord fees and conditions that inhibit the development of CATV, which has important educational and community benefits. Reject­ing the argument that a physical occupation authorized by government is necessarily a taking, the court stated that the regulation does not have an excessive economic impact upon appellant when measured against her aggregate property rights, and that it does not interfere with any reasonable investment-backed expectations. Accordingly, the court held that § 828 does not work a taking of appellant’s property. Chief Judge Cooke dissented, reasoning that the physical appropriation of a portion of appellant’s property is a taking without regard to the balancing analysis courts ordinarily employ in evaluating whether a regulation is a taking.

In light of its holding, the Court of Appeals had no occasion to determine whether the $1 fee ordinarily awarded for a noncrossover installation was adequate compensation for the taking. Judge Gabrielli, concurring, agreed with the dissent that the law works a taking but concluded that the $1 pre­sumptive award, together with the procedures permitting a landlord to demonstrate a greater entitlement, affords just compensation. We noted probable jurisdiction. 454 U.S. 938 (1981).

II

The Court of Appeals determined that § 828 serves the legitimate public purpose of “rapid development of and maxi­mum penetration by a means of communication which has im­portant educational and community aspects,” 53 N. Y. 2d, at 143-144, 423 N. E. 2d, at 329, and thus is within the State’s police power. We have no reason to question that deter­mination. It is a separate question, however, whether an otherwise valid regulation so frustrates property rights that compensation must be paid. See Penn Central Transporta­tion Co. v. New York City, 438 U.S. 104, 127-128 (1978); Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182, 193 (1928). We conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. Our constitutional his­tory confirms the rule, recent cases do not question it, and the purposes of the Takings Clause compel its retention.

A

In Penn Central Transportation Co. v. New York City, supra, the Court surveyed some of the general principles governing the Takings Clause. The Court noted that no “set formula” existed to determine, in all cases, whether com­pensation is constitutionally due for a government restric­tion of property. Ordinarily, the Court must engage in “essentially ad hoc, factual inquiries.” Id., at 124. But the inquiry is not standardless. The economic impact of the regulation, especially the degree of interference with investment-backed expectations, is of particular significance. “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, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Ibid, (citation omitted).

As Penn Central affirms, the Court has often upheld sub­stantial regulation of an owner’s use of his own property where deemed necessary to promote the public interest. At the same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that when the physical intrusion reaches the extreme form of a permanent physical occupa­tion, a taking has occurred. In such a case, “the character of the government action” not only is an important factor in resolving whether the action works a taking but also is determinative.

When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invari­ably found a taking.5 As early as 1872, in Pumpelly v. Green Bay Co., 13 Wall. 166, this Court held that the defendant’s construction, pursuant to state authority, of a dam which permanently flooded plaintiff’s property constituted a taking. A unanimous Court stated, without qualification, that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artifi­cial structure placed on it, so as to effectually destroy or im­pair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181. Seven years later, the Court re­emphasized the importance of a physical occupation by distin­guishing a regulation that merely restricted the use of pri­vate property. In Northern Transportation Co. v. Chicago, 99 U.S. 635 (1879), the Court held that the city’s construc­tion of a temporary dam in a river to permit construction of a tunnel was not a taking, even though the plaintiffs were thereby denied access to their premises, because the obstruc­tion only impaired the use of plaintiffs’ property. The Court distinguished earlier cases in which permanent flooding of private property was regarded as a taking, e.g., Pumpelly, supra, as involving “a physical invasion of the real estate of the private owner, and a practical ouster of his possession.” In this case, by contrast, “[n]o entry was made upon the plaintiffs’ lot.” 99 U.S., at 642.

Since these early cases, this Court has consistently distin­guished between flooding cases involving a permanent physi­cal occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner’s property that causes consequential damages within, on the other. A taking has always been found only in the for­mer situation. See United States v. Lynah, 188 U.S. 445, 468-470 (1903); Bedford v. United States, 192 U.S. 217, 225 (1904); United States v. Cress, 243 U.S. 316, 327-328 (1917); Sanguinetti v. United States, 264 U.S. 146, 149 (1924) (to be a taking, flooding must “constitute an actual, permanent in­vasion of the land, amounting to an appropriation of, and not merely an injury to, the property”); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809-810 (1950).

In St. Louis v. Western Union Telegraph Co., 148 U.S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one pre­sented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a tele­graph company’s placement of telegraph poles on the city’s public streets. The Court reasoned:

“The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The or­dinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation thereof are temporary and shifting. The space he occu­pies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the tele­graph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as re­spects its actual use for purposes of highway and per­sonal travel, wholly lost to the public. . . .

“. . . It matters not for what that exclusive appro­priation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may if it chooses exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the por­tion thus appropriated.” Id., at 98-99,101-102 (empha­sis added).6

Similarly, in Western Union Telegraph Co. v. Pennsylva­nia R. Co., 195 U.S. 540 (1904), a telegraph company con­structed and operated telegraph lines over a railroad’s right of way. In holding that federal law did not grant the com­pany the right of eminent domain or the right to operate the lines absent the railroad’s consent, the Court assumed that the invasion of the telephone lines would be a compensable taking. Id., at 570 (the right-of-way “cannot be appropri­ated in whole or in part except upon the payment of com­pensation”). Later cases, relying on the character of a phys­ical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner’s use of the rest of his land. See, e.g., Lovett v. West Va. Central Gas Co., 65 W. Va. 739, 65 S. E. 196 (1909); Southwestern Bell Tele­phone Co. v. Webb, 393 S. W. 2d 117, 121 (Mo. App. 1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 (1922). See generally 2 J. Sackman, Nichols’ Law of Eminent Domain § 6.21 (rev. 3d ed. 1980).7

More recent cases confirm the distinction between a per­manent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U.S. 256 (1946), the Court ruled that frequent flights immediately above a landowner’s property constituted a taking, comparing such overflights to the quintessential form of a taking:

“If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.” Id., at 261 (footnote omitted).

As the Court further explained,

“We would not doubt that, if the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a par­tial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to sub­tract from the owner’s full enjoyment of the property and to limit his exploitation of it.” Id., at 264-265.

The Court concluded that the damages to the respondents “were not merely consequential. They were the product of a direct invasion of respondents’ domain.” Id., at 265-266. See also Griggs v. Allegheny County, 369 U.S. 84 (1962).

Two wartime takings cases are also instructive. In United States v. Pewee Coal Co., 341 U.S. 114 (1951), the Court unanimously held that the Government’s seizure and direction of operation of a coal mine to prevent a national strike of coal miners constituted a taking, though members of the Court differed over which losses suffered during the pe­riod of Government control were compensable. The plural­ity had little difficulty concluding that because there had been an “actual taking of possession and control,” the taking was as clear as if the Government held full title and owner­ship. Id., at 116 (plurality opinion of Black, J., with whom Frankfurter, Douglas, and Jackson, JJ., joined; no other Jus­tice challenged this portion of the opinion). In United States v. Central Eureka Mining Co., 357 U.S. 155 (1958), by con­trast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort. Over dissenting Justice Harlan’s complaint that “as a practi­cal matter the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States,” id., at 181, the Court reasoned that “the Government did not oc­cupy, use, or in any manner take physical possession of the gold mines or of the equipment connected with them.” Id., at 165-166. The Court concluded that the temporary though severe restriction on use of the mines was justified by the ex­igency of war.8 Cf. YMCA v. United States, 395 U.S. 85, 92 (1969) (“Ordinarily, of course, government occupation of pri­vate property deprives the private owner of his use of the property, and it is this deprivation for which the Constitution requires compensation”).

Although this Court’s most recent cases have not ad­dressed the precise issue before us, they have emphasized that physical invasion cases are special and have not repudi­ated the rule that any permanent physical occupation is a taking. The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest that a permanent physical occupation would ever be exempt from the Takings Clause.

Penn Central Transportation Co. v. New York City, as noted above, contains one of the most complete discussions of the Takings Clause. The Court explained that resolving whether public action works a taking is ordinarily an ad hoc inquiry in which several factors are particularly significant—the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 438 U.S., at 124. The opinion does not repudiate the rule that a permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.9

In Kaiser Aetna v. United States, 444 U.S. 164 (1979), the Court held that the Government’s imposition of a naviga­tional servitude requiring public access to a pond was a tak­ing where the landowner had reasonably relied on Govern­ment consent in connecting the pond to navigable water. The Court emphasized that the servitude took the land­owner’s right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as prop­erty.” Id., at 176. The Court explained:

“This is not a case in which the Government is exercising its regulatory power in a manner that will cause an in­substantial devaluation of petitioner’s private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. . . . And even if the Government physically invades only an easement in property, it must nonetheless pay compensation. See United States v. Causby, 328 U.S. 256, 265 (1946); Portsmouth Co. v. United States, 260 U.S. 327 (1922).­Id., at 180 (emphasis added).

Although the easement of passage, not being a permanent occupation of land, was not considered a taking per se, Kaiser Aetna reemphasizes that a physical invasion is a government intrusion of an unusually serious character.10

Another recent case underscores the constitutional distinc­tion between a permanent occupation and a temporary physi­cal invasion. In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court upheld a state constitutional re­quirement that shopping center owners permit individuals to exercise free speech and petition rights on their property, to which they had already invited the general public. The Court emphasized that the State Constitution does not pre­vent the owner from restricting expressive activities by im­posing reasonable time, place, and manner restrictions to minimize interference with the owner’s commercial functions. Since the invasion was temporary and limited in nature, and since the owner had not exhibited an interest in excluding all persons from his property, “the fact that [the solicitors] may have ‘physically invaded’ [the owners’] property cannot be viewed as determinative.” Id., at 84.11

In short, when the “character of the governmental action,” Penn Central, 438 U.S., at 124, is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.

B

The historical rule that a permanent physical occupation of another’s property is a taking has more than tradition to com­mend it. Such an appropriation is perhaps the most serious form of invasion of an owner’s property interests. To bor­row a metaphor, cf. Andrus v. Allard, 444 U.S. 51, 65-66 (1979), the government does not simply take a single “strand” from the “bundle” of property rights: it chops through the bundle, taking a slice of every strand.

Property rights in a physical thing have been described as the rights “to possess, use and dispose of it.” United States v. General Motors Corp., 323 U.S. 373, 378 (1945). To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from posses­sion and use of the space. The power to exclude has tradi­tionally been considered one of the most treasured strands in an owner’s bundle of property rights.12 See Kaiser Aetna, 444 U.S., at 179-180; see also Restatement of Property § 7 (1936). Second, the permanent physical occupation of prop­erty forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property. Although deprivation of the right to use and obtain a profit from prop­erty is not, in every case, independently sufficient to estab­lish a taking, see Andrus v. Allard, supra, at 66, it is clearly relevant. Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the pur­chaser will also be unable to make any use of the property.

Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner’s property. As Part II-A, supra, indicates, property law has long pro­tected an owner’s expectation that he will be relatively undis­turbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1228, and n. 110 (1967). Furthermore, such an oc­cupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirm­ative duties on the owner, since the owner may have no con­trol over the timing, extent, or nature of the invasion. See n. 19, infra.

The traditional rule also avoids otherwise difficult line-­drawing problems. New would disagree that if the State re­quired landlords to permit third parties to install swimming pools on the landlords’ rooftops for the convenience of the tenants, the requirement would be a taking. If the cable in­stallation here occupied as much space, again, few would dis­agree that the occupation would be a taking. But constitu­tional protection for the rights of private property cannot be made to depend on the size of the area permanently occu­pied.13 Indeed, it is possible that in the future, additional cable installations that more significantly restrict a landlord’s use of the roof of his building will be made. Section 828 re­quires a landlord to permit such multiple installations.14

Finally, whether a permanent physical occupation has oc­curred presents relatively few problems of proof. The place­ment of a fixed structure on land or real property is an obvi­ous fact that will rarely be subject to dispute. Once the fact of occupation is shown, of course, a court should consider the extent of the occupation as one relevant factor in determining the compensation due.15 For that reason, moreover, there is less need to consider the extent of the occupation in deter­mining whether there is a taking in the first instance.

C

Teleprompter’s cable installation on appellant’s building constitutes a taking under the traditional test. The installa­tion involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupy­ing space immediately above and upon the roof and along the building’s exterior wall.16

In light of our analysis, we find no constitutional difference between a crossover and a noncrossover installation. The portions of the installation necessary for both crossovers and noncrossovers permanently appropriate appellant’s property. Accordingly, each type of installation is a taking.

Appellees raise a series of objections to application of the traditional rule here. Teleprompter notes that the law ap­plies only to buildings used as rental property, and draws the conclusion that the law is simply a permissible regulation of the use of real property. We fail to see, however, why a physical occupation of one type of property but not another type is any less a physical occupation. Insofar as Tele­prompter means to suggest that this is not a permanent phys­ical invasion, we must differ. So long as the property re­mains residential and a CATV company wishes to retain the installation, the landlord must permit it.17

Teleprompter also asserts the related argument that the State has effectively granted a tenant the property right to have a CATV installation placed on the roof of his building, as an appurtenance to the tenant’s leasehold. The short an­swer is that § 828(l)(a) does not purport to give the tenant any enforceable property rights with respect to CATV instal­lation, and the lower courts did not rest their decisions on this ground.18 Of course, Teleprompter, not appellant’s ten­ants, actually owns the installation. Moreover, the govern­ment does not have unlimited power to redefine property rights. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980) (“a State, by ipse dixit, may not transform private property into public property without compensation”).

Finally, we do not agree with appellees that application of the physical occupation rule will have dire consequences for the government’s power to adjust landlord-tenant relation­ships. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (discrimination in places of public accommodation); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946) (fire regulation); Bowles v. Willingham, 321 U.S. 503 (1944) (rent control); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242 (1922) (emergency housing law); Block v. Hirsh, 256 U.S. 135 (1921) (rent control). In none of these cases, however, did the government authorize the permanent occupation of the landlord’s property by a third party. Consequently, our holding today in no way alters the analysis governing the State’s power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke de­tectors, fire extinguishers, and the like in the common area of a building. 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. See Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).19

III

Our holding today is very narrow. We affirm the tradi­tional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the char­acter of the invasion is qualitatively more intrusive than per­haps any other category of property regulation. We do not, however, question the equally substantial authority uphold­ing a State’s broad power to impose appropriate restrictions upon an owner’s use of his property.

Furthermore, our conclusion that § 828 works a taking of a portion of appellant’s property does not presuppose that the fee which many landlords had obtained from Teleprompter prior to the law’s enactment is a proper measure of the value of the property taken. The issue of the amount of compensa­tion that is due, on which we express no opinion, is a matter for the state courts to consider on remand.20

The judgment of the New York Court of Appeals is re­versed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

1

Teleprompter Manhattan CATV was formerly a subsidiary, and is now a division, of Teleprompter Corp.

2

The Court of Appeals defined a “crossover” more comprehensively as occurring:

“[W]hen (1) the line servicing the tenants in a particular building is ex­tended to adjacent or adjoining buildings, (2) an amplifier which is placed on a building is used to amplify signals to tenants in that building and in a neighboring building or buildings, and (3) a line is placed on a building, none of the tenants of which are provided CATV service, for the purpose of providing service to an adjoining or adjacent building.” 53 N. Y. 2d, at 133, n. 6, 423 N. E. 2d, at 323, n. 6.

3

New York Exec. Law §828 (McKinney Supp. 1981-1982) provides in part:

“1. No landlord shall

“a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:

“i. that the installation of cable television facilities conform to such rea­sonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants;

“ii. that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and

“iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities.

“b. demand or accept payment from any tenant, in any form, in ex­change for permitting cable television service on or within his property or premises, or from any cable television company in exchange therefor in ex­cess of any amount which the commission shall, by regulation, determine to be reasonable; or

“c. discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not.”

4

Class-action status was granted in accordance with appellant’s request, except that owners of single-family dwellings on which a CATV component had been placed were excluded. Notice to the class has been postponed, however, by stipulation.

5

Professor Michelman has accurately summarized the case law concern­ing the role of the concept of physical invasions in the development of takings jurisprudence:

“At one time it was commonly held that, in the absence of explicit expro­priation, a compensable ‘taking’ could occur only through physical en­croachment and occupation. The modern significance of physical occupa­tion is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, ‘regularly’ use, or ‘permanently’ occupy, space or a thing which theretofore was understood to be under private ownership.” Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1184 (1967) (emphasis in original; footnotes omitted).

See also 2 J. Sackman, Nichols’ Law of Eminent Domain 6-50, 6-51 (rev. 3d ed. 1980); L. Tribe, American Constitutional Law 460 (1978).

For historical discussions, see 53 N. Y. 2d, at 157-158, 423 N. E. 2d, at 337-338 (Cooke, C. J., dissenting); F. Bosselman, D. Callies, & J. Banta, The Taking Issue 51 (1973); Stoebuek, A General Theory of Eminent Do­main, 47 Wash. L. Rev. 553, 600-601 (1972); Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 S. Ct. Rev. 63, 82; Cormack, Legal Concepts in Cases of Emi­nent Domain, 41 Yale L. J. 221, 225 (1931).

6

The City of New York objects that this case only involved a city’s right to charge for use of its streets, and not the power of eminent domain; the city could have excluded the company from any use of its streets. But the physical occupation principle upon which the right to compensation was based has often been cited as authority in eminent domain cases. See, e.g., Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U.S. 540, 566-567 (1904); California v. United States, 395 F. 2d 261, 263, n. 4 (CA9 1968). Also, the Court squarely held that insofar as the company relied on a federal statute authorizing its use of post roads, an appropria­tion of state property would require compensation. St. Louis v. Western Union Telegraph Co., 148 U.S., at 101.

7

Early commentators viewed a physical occupation of real property as the quintessential deprivation of property. See, e.g., 1 W. Blackstone, Commentaries *139; J. Lewis, Law of Eminent Domain in the United States 197 (1888) (“Any invasion of property, except in case of necessity . . . , either upon, above or below the surface, and whether temporary or permanent, is a taking: as by constructing a ditch through it, passing under it by a tunnel, laying gas, water or sewer pipes in the soil, or extending structures over it, as a bridge or telephone wire” (footnote omitted; em­phasis in original)); 1 P. Nichols, Law of Eminent Domain 282 (2d ed. 1917).

8

Indeed, although dissenting Justice Harlan would have treated the re­striction as if it were a physical occupation, it is significant that he relied on physical appropriation as the paradigm of a taking. See United States v. Central Eureka Mining Co., 357 U.S., at 181, 183-184.

9

The City of New York and the opinion of the Court of Appeals place great emphasis on Penn Central’s reference to a physical invasion “by gov­ernment,” 438 U.S., at 124, and argue that a similar invasion by a private party should be treated differently. We disagree. A permanent physical occupation authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is the occupant. See, e.g., Pumpelly v. Green Bay Co., 13 Wall. 166 (1872). Penn Central simply holds that in cases of physical invasion short of permanent appropri­ation, the fact that the government itself commits an invasion from which it directly benefits is one relevant factor in determining whether a taking has occurred. 438 U.S., at 124, 128.

10

See also Andrus v. Allard, 444 U.S. 51 (1979). That case held that the prohibition of the sale of eagle feathers was not a taking as applied to traders of bird artifacts. “The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. ... In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the pro­tected birds. . . . [L]oss of future profits—unaccompanied by any physi­cal property restriction—provides a slender reed upon which to rest a takings claim.” Id., at 65-66.

11

Teleprompter’s reliance on labor cases requiring companies to permit access to union organizers, see, e.g., Hudgens v. NLRB, 424 U.S. 507 (1976); Central Hardware Co. v. NLRB, 407 U.S. 539 (1972); NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), is similarly misplaced. As we recently explained:

“[T]he allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees’ § 7 rights [to organize under the Na­tional Labor Relations Act], After the requisite need for access to the em­ployer’s property has been shown, the access is limited to (i) union organiz­ers; (ii) prescribed non-working areas of the employer’s premises; and (iii) the duration of the organization activity. In short, the principle of accom­modation announced in Babcock is limited to labor organization campaigns, and the ‘yielding’ of property rights it may require is both temporary and limited.” Central Hardware Co., supra, at 545.

12

The permanence and absolute exclusivity of a physical occupation dis­tinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), Kaiser Aetna v. United States, 444 U.S. 164 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property.

The dissent objects that the distinction between a permanent physical occupation and a temporary invasion will not always be clear. Post, at 448. This objection is overstated, and in any event is irrelevant to the critical point that a permanent physical occupation is unquestionably a tak­ing. In the antitrust area, similarly, this Court has not declined to apply a per se rule simply because a court must, at the boundary of the rule, apply the rule of reason and engage in a more complex balancing analysis.

13

In United States v. Causby, 328 U.S. 256 (1946), the Court approv­ingly cited Butler v. Frontier Telephone Co., 186 N. Y. 486, 79 N. E. 716 (1906), holding that ejectment would lie where a telephone wire was strung across the plaintiff’s property without touching the soil. The Court quoted the following language:

“‘[A]n owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts stand­ing upon abutting lots without touching the surface of plaintiff’s land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be dis­turbed.’” 328 U.S., at 265, n. 10, quoting Butler v. Frontier Telephone Co., supra, at 491-492, 79 N. E. 718.

14

Although the City of New York has granted an exclusive franchise to Teleprompter, it is not required to do so under state law, see N. Y. Exec. Law § 811 et seq. (McKinney Supp. 1981-1982), and future changes in tech­nology may cause the city to reconsider its decision. Indeed, at present some communities apparently grant nonexclusive franchises. Brief for National Satellite Cable Association et al. as Amici Curiae 21.

15

In this case, the Court of Appeals noted testimony preceding the enact­ment of § 828 that the landlord’s interest in excluding cable installation “consists entirely of insisting that some negligible unoccupied space remain unoccupied.” 53 N. Y. 2d, at 141, 423 N. E. 2d, at 328 (emphasis omitted). The State Cable Commission referred to the same testimony in establish­ing a $1 presumptive award. Statement of General Policy, App. 48.

A number of the dissent’s arguments—that § 828 “likely increases both the building’s resale value and its attractiveness on the rental market,” post, at 452, and that appellant might have no alternative use for the cable-­occupied space, post, at 453-454—may also be relevant to the amount of compensation due. It should be noted, however, that the first argument is speculative and is contradicted by appellant’s testimony that she and “the whole block” would be able to sell their buildings for a higher price absent the installation. App. 100.

16

It is constitutionally irrelevant whether appellant (or her predecessor in title) had previously occupied this space, since a “landowner owns at least as much of the space above the ground as he can occupy or use in con­nection with the land.” United States v. Causby, supra, at 264.

The dissent asserts that a taking of about one-eighth of a cubic foot of space is not of constitutional significance. Post, at 443. The assertion ap­pears to be factually incorrect, since it ignores the two large silver boxes that appellant identified as part of the installation. App. 90; Loretto Affi­davit in Support of Motion for Summary Judgment (Apr. 21, 1978), Appel­lants’ Appendix in No. 8300/76 (N. Y. App.), p. 77. Although the record does not reveal their size, appellant states that they are approximately 18" x 12" x 6", Brief for Appellant 6 n.*, and appellees do not dispute this state­ment. The displaced volume, then, is in excess of 114 cubic feet. In any event, these facts are not critical: whether the installation is a taking does not depend on whether the volume of space it occupies is bigger than a breadbox.

17

It is true that the landlord could avoid the requirements of § 828 by ceasing to rent the building to tenants. But a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation. Teleprompter’s broad “use-dependency” argu­ment proves too much. For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apart­ments as permanent government offices. The right of a property owner to exclude a stranger’s physical occupation of his land cannot be so easily manipulated.

18

We also decline to hazard an opinion as to the respective rights of the landlord and tenant under state law prior to enactment of § 828 to use the space occupied by the cable installation, an issue over which the parties sharply disagree.

19

If § 828 required landlords to provide cable installation if a tenant so desires, the statute might present a different question from the question before us, since the landlord would own the installation. Ownership would give the landlord rights to the placement, manner, use, and possibly the dis­position of the installation. The fact of ownership is, contrary to the dis­sent, not simply “incidental,” post, at 450; it would give a landlord (rather than a CATV company) full authority over the installation except only as government specifically limited that authority. The landlord would de­cide how to comply with applicable government regulations concerning CATV and therefore could minimize the physical, esthetic, and other effects of the installation. Moreover, if the landlord wished to repair, demolish, or construct in the area of the building where the installation is located, he need not incur the burden of obtaining the CATV company’s cooperation in moving the cable.

In this case, by contrast, appellant suffered injury that might have been obviated if she had owned the cable and could exercise control over its in­stallation. The drilling and stapling that accompanied installation appar­ently caused physical damage to appellant’s building. App. 83, 95-96,104. Appellant, who resides in her building, further testified that the cable in­stallation is “ugly.” Id., at 99. Although § 828 provides that a landlord may require “reasonable” conditions that are “necessary” to protect the appearance of the premises and may seek indemnity for damage, these pro­visions are somewhat limited. Even if the provisions are effective, the inconvenience to the landlord of initiating the repairs remains a cognizable burden.

20

In light of our disposition of appellant’s takings claim, we do not ad­dress her contention that § 828 deprives her of property without due proc­ess of law.

Justice Blackmun,

dissenting.

If the Court’s decisions construing the Takings Clause state anything clearly, it is that “[t]here is no set formula to determine where regulation ends and taking begins.” Goldblatt v. Town of Hempstead, 369 U.S. 590, 594 (1962).1

In a curiously anachronistic decision, the Court today ac­knowledges its historical disavowal of set formulae in almost the same breath as it constructs a rigid per se takings rule: “a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve.” Ante, at 426. To sustain its rule against our recent precedents, the Court erects a strained and untenable dis­tinction between “temporary physical invasions,” whose con­stitutionality concededly “is subject to a balancing process,” and “permanent physical occupations,” which are “taking[s] without regard to other factors that a court might ordinarily examine.” Ante, at 432.

In my view, the Court’s approach “reduces the constitu­tional issue to a formalistic quibble” over whether property has been “permanently occupied” or “temporarily invaded.” Sax, Takings and the Police Power, 74 Yale L. J. 36, 37 (1964). The Court’s application of its formula to the facts of this case vividly illustrates that its approach is potentially dangerous as well as misguided. Despite its concession that “States have broad power to regulate . . . the landlord-tenant relationship . . . without paying compensation for all eco­nomic injuries that such regulation entails,” ante, at 440, the Court uses its rule to undercut a carefully considered legisla­tive judgment concerning landlord-tenant relationships. I therefore respectfully dissent.

I

Before examining the Court’s new takings rule, it is worth reviewing what was “taken” in this case. At issue are about 36 feet of cable one-half inch in diameter and two 4" x 4" x 4" metal boxes. Jointly, the cable and boxes occupy only about one-eighth of a cubic foot of space on the roof of appellant’s Manhattan apartment building. When appellant purchased that building in 1971, the “physical invasion” she now chal­lenges had already occurred.2 Appellant did not bring this action until about five years later, demanding 5% of appellee Teleprompter’s gross revenues from her building, and claim­ing that the operation of N. Y. Exec. Law § 828 (McKinney Supp. 1981-1982) “took” her property. The New York Su­preme Court, the Appellate Division, and the New York Court of Appeals all rejected that claim, upholding § 828 as a valid exercise of the State’s police power.

The Court of Appeals held that

“the State may proscribe a trespass action by landlords generally against a cable TV company which places a cable and other fixtures on the roof of any landlord’s building, in order to protect the right of the tenants of rental property, who will ultimately have to pay any charge a landlord is permitted to collect from the cable TV company, to obtain TV service in their respective apartments.” 53 N. Y. 2d 124, 153, 423 N. E. 2d 320, 335 (1981).

In so ruling, the court applied the multifactor balancing test prescribed by this Court’s recent Takings Clause deci­sions. Those decisions teach that takings questions should be resolved through “essentially ad hoc, factual inquiries,” Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979), into “such factors as the character of the governmental action, its economic impact, and its interference with reasonable invest­ment-backed expectations.” PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980). See 53 N. Y. 2d, at 144-­151, 423 N. E. 2d, at 330-334.

The Court of Appeals found, first, that § 828 represented a reasoned legislative effort to arbitrate between the interests of tenants and landlords and to encourage development of an important educational and communications medium.3 Id., at 143-145, 423 N. E. 2d, at 329-330. Moreover, under PruneYard Shopping Center v. Robins, 447 U.S., at 83-84, the fact that § 828 authorized Teleprompter to make a minor physical intrusion upon appellant’s property was in no way determinative of the takings question. 53 N. Y. 2d, at 146-147, 423 N. E. 2d, at 331.4

Second, the court concluded that the statute’s economic im­pact on appellant was de minimis because § 828 did not affect the fair return on her property. 53 N. Y. 2d, at 148-150, 423 N. E. 2d, at 332-333. Third, the statute did not interfere with appellant’s reasonable investment-backed expectations. Id., at 150-151, 423 N. E. 2d, at 333-334. When appellant purchased the building, she was unaware of the existence of the cable. See n. 2, supra. Thus, she could not have in­vested in the building with any reasonable expectation that the one-eighth cubic foot of space occupied by the cable tele­vision installment would become income-productive. 53 N. Y. 2d, at 155, 423 N. E. 2d, at 336.

II

Given that the New York Court of Appeals’ straight­forward application of this Court’s balancing test yielded a finding of no taking, it becomes clear why the Court now constructs a per se rule to reverse. The Court can escape the result dictated by our recent takings cases only by resort­ing to bygone precedents and arguing that “permanent physi­cal occupations” somehow differ qualitatively from all other forms of government regulation.

The Court argues that a per se rule based on “permanent physical occupation” is both historically rooted, see ante, at 426-435, and jurisprudentially sound, see ante, at 435-438. I disagree in both respects. The 19th-century precedents relied on by the Court lack any vitality outside the agrarian context in which they were decided.5 But if, by chance, they have any lingering vitality, then, in my view, those cases stand for a constitutional rule that is uniquely unsuited to the modern urban age. Furthermore, I find logically untenable the Court’s assertion that § 828 must be analyzed under a per se rule because it “effectively destroys” three of “the most treasured strands in an owner’s bundle of property rights,” ante, at 435.

A

The Court’s recent Takings Clause decisions teach that nonphysical government intrusions on private property, such as zoning ordinances and other land-use restrictions, have become the rule rather than the exception. Modern government regulation exudes intangible “externalities” that may diminish the value of private property far more than minor physical touchings. Nevertheless, as the Court rec­ognizes, it has “often upheld substantial regulation of an owner’s use of his own property where deemed necessary to promote the public interest.” Ante, at 426. See, e.g., Agins v. City of Tiburon, 447 U.S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124-125 (1978); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

Precisely because the extent to which the government may injure private interests now depends so little on whether or not it has authorized a “physical contact,” the Court has avoided per se takings rules resting on outmoded distinctions between physical and nonphysical intrusions. As one com­mentator has observed, a takings rule based on such a dis­tinction is inherently suspect because “its capacity to distin­guish, even crudely, between significant and insignificant losses is too puny to be taken seriously.” Michelman, Prop­erty, Utility, and Fairness: Comments on the Ethical Foun­dations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1227 (1967).

Surprisingly, the Court draws an even finer distinction to­day—between “temporary physical invasions” and “perma­nent physical occupations.” When the government author­izes the latter type of intrusion, the Court would find “a tak­ing without regard to the public interests” the regulation may serve. Ante, at 426. Yet an examination of each of the three words in the Court’s “permanent physical occupation” formula illustrates that the newly created distinction is even less substantial than the distinction between physical and nonphysical intrusions that the Court already has rejected.

First, what does the Court mean by “permanent”? Since all “temporary limitations on the right to exclude” remain “subject to a more complex balancing process to determine whether they are a taking,” ante, at 435, n. 12, the Court presumably describes a government intrusion that lasts for­ever. But as the Court itself concedes, § 828 does not re­quire appellant to permit the cable installation forever, but only “[s]o long as the property remains residential and a CATV company wishes to retain the installation.” Ante, at 439. This is far from “permanent.”

The Court reaffirms that “States have broad power to reg­ulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails.” Ante, at 440. Thus, § 828 merely defines one of the many statutory responsibilities that a New Yorker accepts when she enters the rental business. If appellant occupies her own building, or converts it into a commercial property, she becomes per­fectly free to exclude Teleprompter from her one-eighth cubic foot of roof space. But once appellant chooses to use her property for rental purposes, she must comply with all rea­sonable government statutes regulating the landlord-tenant relationship.6 If § 828 authorizes a “permanent” occupation, and thus works a taking “without regard to the public inter­ests that it may serve,” then all other New York statutes that require a landlord to make physical attachments to his rental property also must constitute takings, even if they serve indisputably valid public interests in tenant protection and safety.7

The Court denies that its theory invalidates these statutes, because they “do not require the landlord to suffer the physi­cal occupation of a portion of his building by a third party.” Ante, at 440. But surely this factor cannot be determi­native, since the Court simultaneously recognizes that tem­porary invasions by third parties are not subject to a per se rule. Nor can the qualitative difference arise from the inci­dental fact that, under § 828, Teleprompter, rather than ap­pellant or her tenants, owns the cable installation. Cf. ante, at 440, and n. 19. If anything, § 828 leaves appellant better off than do other housing statutes, since it ensures that her property will not be damaged esthetically or physically, see n. 4, supra, without burdening her with the cost of buying or maintaining the cable.

In any event, under the Court’s test, the “third party” problem would remain even if appellant herself owned the cable. So long as Teleprompter continuously passed its elec­tronic signal through the cable, a litigant could argue that the second element of the Court’s formula—a “physical touching” by a stranger—was satisfied and that § 828 therefore worked a taking.8 Literally read, the Court’s test opens the door to endless metaphysical struggles over whether or not an indi­vidual’s property has been “physically” touched. It was pre­cisely to avoid “permit[ting] technicalities of form to dictate consequences of substance,” United States v. Central Eureka Mining Co., 357 U.S. 155, 181 (1958) (Harlan, J., dissent­ing), that the Court abandoned a “physical contacts” test in the first place.

Third, the Court’s talismanic distinction between a con­tinuous “occupation” and a transient “invasion” finds no basis in either economic logic or Takings Clause precedent. In the landlord-tenant context, the Court has upheld against takings challenges rent control statutes permitting “tempo­rary” physical invasions of considerable economic magni­tude. See, e.g., Block v. Hirsh, 256 U.S. 135 (1921) (stat­ute permitting tenants to remain in physical possession of their apartments for two years after the termination of their leases). Moreover, precedents record numerous other “tem­porary” officially authorized invasions by third parties that have intruded into an owner’s enjoyment of property far more deeply than did Teleprompter’s long-unnoticed cable. See, e.g., PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (leafletting and demonstrating in busy shopping center); Kaiser Aetna v. United States, 444 U.S. 164 (1979) (public easement of passage to private pond); United States v. Causby, 328 U.S. 256 (1946) (noisy airplane flights over private land). While, under the Court’s balancing test, some of these “temporary invasions” have been found to be tak­ings, the Court has subjected none of them to the inflexible per se rule now adapted to analyze the far less obtrusive “occupation” at issue in the present case. Cf. ante, at 430-431, 432-435.

In sum, history teaches that takings claims are properly evaluated under a multifactor balancing test. By directing that all “permanent physical occupations” automatically are compensable, “without regard to whether the action achieves an important public benefit or has only minimal economic im­pact on the owner,” ante, at 434-435, the Court does not fur­ther equity so much as it encourages litigants to manipulate their factual allegations to gain the benefit of its per se rule. Cf. n. 8, supra. I do not relish the prospect of distinguishing the inevitable flow of certiorari petitions attempting to shoe­horn insubstantial takings claims into today’s “set formula.”

B

Setting aside history, the Court also states that the perma­nent physical occupation authorized by § 828 is a per se taking because it uniquely impairs appellant’s powers to dispose of, use, and exclude others from, her property. See ante, at 435-438. In fact, the Court’s discussion nowhere demon­strates how § 828 impairs these private rights in a manner qualitatively different from other garden-variety landlord-­tenant legislation.

The Court first contends that the statute impairs appel­lant’s legal right to dispose of cable-occupied space by trans­fer and sale. But that claim dissolves after a moment’s reflection. If someone buys appellant’s apartment building, but does not use it for rental purposes, that person can have the cable removed, and use the space as he wishes. In such a case, appellant’s right to dispose of the space is worth just as much as if § 828 did not exist.

Even if another landlord buys appellant’s building for rental purposes, § 828 does not render the cable-occupied space valueless. As a practical matter, the regulation en­sures that tenants living in the building will have access to cable television for as long as that building is used for rental purposes, and thereby likely increases both the building’s resale value and its attractiveness on the rental market.9

In any event, § 828 differs little from the numerous other New York statutory provisions that require landlords to install physical facilities “permanently occupying” common spaces in or on their buildings. As the Court acknowledges, the States traditionally—and constitutionally—have exer­cised their police power “to require landlords to . . . provide utility connections, mailboxes, smoke detectors, fire extin­guishers, and the like in the common area of a building.” Ante, at 440. Like § 828, these provisions merely ensure tenants access to services the legislature deems important, such as water, electricity, natural light, telephones, inter­communication systems, and mail service. See n. 7, supra. A landlord’s dispositional rights are affected no more ad­versely when he sells a building to another landlord subject to § 828, than when he sells that building subject only to these other New York statutory provisions.

The Court also suggests that § 828 unconstitutionally alters appellant’s right to control the use of her one-eighth cubic foot of roof space. But other New York multiple dwelling statutes not only oblige landlords to surrender significantly larger portions of common space for their tenants’ use, but also compel the landlord—rather than the tenants or the pri­vate installers—to pay for and to maintain the equipment. For example, New York landlords are required by law to provide and pay for mailboxes that occupy more than five times the volume that Teleprompter’s cable occupies on ap­pellant’s building. See Tr. of Oral Arg. 42-43, citing N. Y. Mult. Dwell. Law § 57 (McKinney 1974). If the State con­stitutionally can insist that appellant make this sacrifice so that her tenants may receive mail, it is hard to understand why the State may not require her to surrender less space, filled at another’s expense, so that those same tenants can re­ceive television signals.

For constitutional purposes, the relevant question cannot be solely whether the State has interfered in some minimal way with an owner’s use of space on her building. Any intel­ligible takings inquiry must also ask whether the extent of the State’s interference is so severe as to constitute a compensa­ble taking in light of the owner’s alternative uses for the property.10 Appellant freely admitted that she would have had no other use for the cable-occupied space, were Tele­prompter’s equipment not on her building. See App. 97 (Dep­osition of Jean A. Loretto).

The Court’s third and final argument is that § 828 has de­prived appellant of her “power to exclude the occupier from possession and use of the space” occupied by the cable. Ante, at 435. This argument has two flaws. First, it unjus­tifiably assumes that appellant’s tenants have no countervail­ing property interest in permitting Teleprompter to use that space.11 Second, it suggests that the New York Legislature may not exercise its police power to affect appellant’s com­mon-law right to exclude Teleprompter even from one-eighth cubic foot of roof space. But this Court long ago recognized that new social circumstances can justify legislative modifica­tion of a property owner’s common-law rights, without com­pensation, if the legislative action serves sufficiently impor­tant public interests. See Munn v. Illinois, 94 U.S. 113, 134 (1877) (“A person has no property, no vested interest, in any rule of the common law. . . . Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circum­stance”); United States v. Causby, 328 U.S., at 260-261 (In the modern world, “[c]ommon sense revolts at the idea” that legislatures cannot alter common-law ownership rights).

As the Court of Appeals recognized, § 828 merely deprives appellant of a common-law trespass action against Tele­prompter, but only for as long as she uses her building for rental purposes, and as long as Teleprompter maintains its equipment in compliance with the statute. Justice Mar­shall recently and most aptly observed:

“[Appellant’s] claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State .... If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common-law rights were also found immune from revision by State or Fed­eral Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.” PruneYard Shopping Center v. Robins, 447 U.S., at 93 (concurring opinion).

III

In the end, what troubles me most about today’s decision is that it represents an archaic judicial response to a modern social problem. Cable television is a new and growing, but somewhat controversial, communications medium. See Brief for New York State Cable Television Association as Amicus Curiae 6-7 (about 25% of American homes with tele­visions—approximately 20 million families—currently sub­scribe to cable television, with the penetration rate expected to double by 1990). The New York Legislature not only rec­ognized, but also responded to, this technological advance by enacting a statute that sought carefully to balance the inter­ests of all private parties. See nn. 3 and 4, supra. New York’s courts in this litigation, with only one jurist in dissent, unanimously upheld the constitutionality of that considered legislative judgment.

This Court now reaches back in time for a per se rule that disrupts that legislative determination.12 Like Justice Black, I believe that “the solution of the problems precipitated by . . . technological advances and new ways of living cannot come about through the application of rigid constitutional re­straints formulated and enforced by the courts.” United States v. Causby, 328 U.S., at 274 (dissenting opinion). I would affirm the judgment and uphold the reasoning of the New York Court of Appeals.

1

See Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Andrus v. Allard, 444 U.S. 51, 65 (1979) (“There is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appro­priate”); Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978); United States v. Caltex, Inc., 344 U.S. 149, 156 (1952) (“No rigid rules can be laid down to distinguish compensable losses from noncompensable losses”); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922) (a takings question “is a question of degree—and therefore can­not be disposed of by general propositions”).

2

In January 1968, appellee Teleprompter signed a 5-year installation agreement with the building’s previous owner in exchange for a flat fee of $50. Appellee installed both the 30-foot main cable and its 4- to 6-foot “crossover” extension in June 1970. For two years after taking possession of the building and the appurtenant equipment, appellant did not object to the cable’s presence. Indeed, despite numerous inspections, appellant had never even noticed the equipment until Teleprompter first began to pro­vide cable television service to one of her tenants. 53 N. Y. 2d 124, 134-135, 423 N. E. 2d 320, 324 (1981). Nor did appellant thereafter ever specifically ask Teleprompter to remove the components from her building. App. 107, 108, 110.

Although the Court alludes to the presence of “two large silver boxes” on appellant’s roof, ante, at 438, n. 16, the New York Court of Appeals’ opin­ion nowhere mentions them, nor are their dimensions stated anywhere in the record.

3

The court found that the state legislature had enacted § 828 to “prohibit gouging and arbitrary action” by “landlords [who] in many instances have imposed extremely onerous fees and conditions on cable access to their buildings.” 53 N. Y. 2d, at 141, 423 N. E. 2d, at 328, citing testimony of Joseph C. Swidler, Chairman of the Public Service Commission, before the Joint Legislative Committee considering the CATV bill.

Given the growing importance of cable television, the legislature decided that urban tenants’ need for access to that medium justified a minor intru­sion upon the landlord’s interest, which “consists entirely of insisting that some negligible unoccupied space remain unoccupied. The tenant’s inter­est clearly is more substantial, consisting of a right to receive (and perhaps send) communications from and to the outside world. In the electronic age, the landlord should not be able to preclude a tenant from obtaining CATV service (or to exact a surcharge for allowing the service) any more than he could preclude a tenant from receiving mail or telegrams directed to him.” Ibid., citing Regulation of Cable Television by the State of New York, Report to the New York Public Service Commission by Commis­sioner William K. Jones 207 (1970).

4

Section 828 carefully regulates the cable television company’s phys­ical intrusion onto the landlord’s property. If the landlord requests, the company must conform its installations “to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and well-being of other tenants.” N. Y. Exec. Law § 828(l)(a)(i) (McKinney Supp. 1981-1982). Furthermore, the company must “agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities.” § 828(l)(a)(iii). Finally, the statute authorizes the landlord to require either “the cable television company or the tenant or a combination thereof [to] bear the entire cost of the installation, operation or removal” of any equipment. § 828(1)(a)(ii).

5

The Court properly acknowledges that none of our recent takings deci­sions have adopted a per se test for either temporary physical invasions or permanent physical occupations. See ante, at 432-435, and 435, n. 12. While the Court relies on historical dicta to support its per se rule, the only holdings it cites fall into two categories: a number of cases involving flood­ing, ante, at 427-428, and St. Louis v. Western Union Telegraph Co., 148 U.S. 92 (1893), cited ante, at 428.

In 1950, the Court noted that the first line of cases stands for “the princi­ple that the destruction of privately owned land by flooding is ‘a taking’ to the extent of the destruction caused,” and that those rulings had already “been limited by later decisions in some respects.” United States v. Kan­sas City Life Ins. Co., 339 U.S. 799, 809-810. Even at the time of its decision, St. Louis v. Western Union Telegraph Co. addressed only the question “[w]hether the city has power to collect rental for the use of streets and public places” when a private company seeks exclusive use of land whose “use is common to all members of the public, and . . . [is] open equally to citizens of other States with those of the State in which the street is situate.” 148 U.S., at 98-99. On its face, that issue is distinct from the question here: whether appellant may extract from Teleprompter a fee for the continuing use of her roof space above and beyond the fee set by statute, namely, “any amount which the commission shall, by regula­tion, determine to be reasonable.” N. Y. Exec. Law § 828(1)(b) (McKin­ney Supp. 1982).

6

In my view, the fact that § 828 incidentally protects so-called “cross­over” wires that do not currently serve tenants, see ante, at 422, n. 2, does not affect § 828’s fundamental character as a piece of landlord-tenant legis­lation. As the Court recognizes, ante, at 422, crossovers are crucial links in the cable “highway,” and represent the simplest and most economical way to provide service to tenants in a group of buildings in close proximity. Like the Court, I find “no constitutional difference between a crossover and a noncrossover installation,” ante, at 438. Even assuming, arguendo, that the crossover extension in this case works a taking, I would be pre­pared to hold that the incremental governmental intrusion caused by that 4- to 6-foot wire, which occupies the cubic volume of a child’s building block, is a de minimis deprivation entitled to no compensation.

7

See, e.g., N. Y. Mult. Dwell. Law § 35 (McKinney 1974) (requiring en­trance doors and lights); § 36 (windows and skylights for public halls and stairs); § 50-a (Supp. 1982) (locks and intercommunication systems); § 50-c (lobby attendants); § 51-a (peepholes); § 51-b (elevator mirrors); § 53 (fire escapes); § 57 (bells and mail receptacles); § 67(3) (fire sprinklers). See also Queenside Hills Realty Co. v. Saxl, 328 U.S. 80 (1946) (upholding constitutionality of New York fire sprinkler provision).

These statutes specify in far greater detail than § 828 what types of physical facilities a New York landlord must provide his tenants and where he must provide them. See, e.g., N. Y. Mult. Dwell. Law § 75 (McKinney 1974) (owners of multiple dwellings must provide “proper appliances to re­ceive and distribute an adequate supply of water,” including “a proper sink with running water and with a two-inch waste and trap”); § 35 (owners of multiple dwellings with frontage exceeding 22 feet must provide “at least two lights, one at each side of the entrance way, with an aggregate illumi­nation of one hundred fifty watts or equivalent illumination”); § 50-a(2) (Supp. 1981-1982) (owners of Class A multiple dwellings must provide in­tercommunication system “located at an automatic self-locking door giving public access to the main entrance hall or lobby”).

Apartment building rooftops are not exempted. See § 62 (landlords must place parapet walls and guardrails on their roofs “three feet six inches or more in height above the level of such area”).

8

Indeed, appellant’s counsel made precisely this claim at oral argument. Urging the rule which the Court now adopts, appellant’s counsel suggested that a taking would result even if appellant owned the cable. "[T]he pre­cise location of the easement [taken by Teleprompter changes] from the surface of the roof to inside the wire. . . . [T]he wire itself is owned by the landlord, but the cable company has the right to pass its signal through the wire without compensation to the landlord, for its commercial benefit.” Tr. of Oral Arg. 15.

9

In her pretrial deposition, appellant conceded not only that owners of other apartment buildings thought that the cable’s presence had enhanced the market value of their buildings, App. 102-108, but also that her own tenants would have been upset if the cable connection had been removed. Id., at 107, 108, 110.

10

For this reason, the Court provides no support for its per se rule by asserting that the State could not require landlords, without compensation, “to permit third parties to install swimming pools,” ante, at 436, or vending and washing machines, ante, at 439, n. 17, for the convenience of tenants. Presumably, these more intrusive government regulations would create difficult takings problems even under our traditional balancing approach. Depending on the character of the governmental action, its economic impact, and the degree to which it interfered with an owner’s reasonable investment-backed expectations, among other things, the Court’s hypo­thetical examples might or might not constitute takings. These examples hardly prove, however, that a permanent physical occupation that works a de minimis interference with a private property interest is a taking per se.

11

It is far from clear that, under New York law, appellant’s tenants would lack all property interests in the few square inches on the exterior of the building to which Teleprompter’s cable and hardware attach. Under modern landlord-tenant law, a residential tenancy is not merely a posses­sory interest in specified space, but also a contract for the provision of a package of services and facilities necessary and appurtenant to that space. See R. Schoshinski, American Law of Landlord and Tenant § 3:14 (1980). A modern urban tenant’s leasehold often includes not only contractual, but also statutory, rights, including the rights to an implied warranty of hab­itability, rent control, and such services as the landlord is obliged by stat­ute to provide. Cf. n. 7, supra.

12

Happily, the Court leaves open the question whether § 828 provides landlords like appellant sufficient compensation for their actual losses. See ante, at 441. Since the State Cable Television Commission’s regula­tions permit higher than nominal awards if a landlord makes “a special showing of greater damages,” App. 52, the concurring opinion in the New York Court of Appeals found that the statute awards just compensation. See 53 N. Y. 2d, at 155, 423 N. E. 2d, at 336 (“[I]t is obvious that a land­lord who actually incurs damage to his property or is restricted in the use to which he might put that property will receive compensation commensu­rate with the greater injury”). If, after the remand following today’s deci­sion, this minor physical invasion is declared to be a taking deserving little or no compensation, the net result will have been a large expenditure of judicial resources on a constitutional claim of little moment.

No. 91-453.

LUCAS v. SOUTH CAROLINA COASTAL COUNCIL

Decided June 29, 1992

Argued March 2, 1992

Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Thomas, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment, post, p. 1032. Blackmun, J., post, p. 1036, and Stevens, J., post, p. 1061, filed dissenting opinions. Souter, J., filed a separate statement, post, p. 1076.

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 *

*

Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Clegg, Acting Deputy Assistant Attorney General Cohen, Edwin S. Kneedler, Peter R. Steenland, James E. Brookshire, John A Bryson, and Martin W. Matzen; for United States Senator Steve Symms et al. by Peter D. Dickson, Howard E. Shapiro, and D. Eric Hultman; for the American Farm Bureau Federation et al. by James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John J. Rademacher, and Rickard L. Krause; for the American Mining Congress et al. by George W. Miller, Walter A Smith, Jr., Stuart A. Sanderson, William E. Hynan, and Robert A Kirshner; for the Chamber of Commerce of the United States of America by Stephen A. Bokat, Robin S. Conrad, Herbert L. Fenster, and Tami Lyn Azorsky; for Defenders of Property Rights et al. by Nancy G. Marzulla; for the Fire Island Association, Inc., by Bernard S. Meyer; for the Institute for Justice by Richard A. Epstein, William H. Mellor III, Clint Bolick, and Jona­than W. Emord; for the Long Beach Island Oceanfront Homeowners Asso­ciation et al. by Theodore J. Carlson; for the Mountain States Legal Foun­dation et al. by William Perry Pendley; for the National Association of Home Builders et al. by Michael M. Berger and William H. Ethier; for the Nemours Foundation, Inc., by John J. Mullenholz; for the Northern Virginia Chapter of the National Association of Industrial and Office Parks et al. by John Holland Foote and John F. Cahill; for the Pacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and R. S. Radford; and for the South Carolina Policy Council Education Foundation et al. by G. Stephen Parker.

Briefs of amici curiae urging affirmance were filed for the State of California by Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General, Richard M. Frank and Craig C. Thompson, Supervising Deputy Attorneys General, and Maria Dante Brown and Virna L. Santos, Deputy Attorneys General; for the State of Florida et al. by Robert A Butterworth, Attorney General of Florida, and Lewis F. Hubener, Assistant At­torney General, James H. Evans, Attorney General of Alabama, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price, Attorney General of Hawaii, Bonnie J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, J. Joseph Cur-­ran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney Gen­eral of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hu­bert H. Humphrey III, Attorney General of Minnesota, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, John P. Arnold, Attorney General of New Hampshire, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney Gen­eral of New York, and Jerry Boone, Solicitor General, Lacy H. Thornburg, Attorney General of North Carolina, Charles S. Crookham, Attorney Gen­eral of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Jorges Perez-Diaz, Attorney General of Puerto Rico, James E. O’Neil, Attorney General of Rhode Island, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, James E. Doyle, Attorney General of Wisconsin, Dan Morales, Attorney General of Texas, and Brian A Goldman, for Broward County et al. by John J. Copelan, Jr., Herbert W. A Thiele, and H. Hamilton Rice, Jr.; for California Cities and Counties by Robin D. Faisant, Gary T. Ragghianti, Manuela Albu­querque, F. Thomas Caporael, William Camil, Scott H. Howard, Roger Picquet, Joseph Barron, David J. Erwin, Charles J. Williams, John Cal­houn, Robert K. Booth, Jr., Anthony S. Alperin, Leland H. Jordan, John L. Cook, Jayne Williams, Gary L. Gillig, Dave Larsen, Don G. Kircher, Jean Leonard Harris, Michael F. Dean, John W. Witt, C. Alan Sumption, Joan Gallo, George Rios, Daniel S. Hentschke, Joseph Lawrence, Peter Bulens, and Thomas Haas; for Nueces County, Texas, et al. by Peter A. A. Berle, Glenn P. Sugameli, Ann Powers, and Zygmunt J. B. Plater; for the American Planning Association et al. by H. Bissell Carey III and Gary A Owen; for Members of the National Growth Management Leadership Project by John A Humbach; for the Municipal Art Society of New York, Inc., by William E. Hegarty, Michael S. Gruen, Philip K. Howard, Nor­man Marcus, and Philip Weinberg; for the National Trust for Historic Preservation in the United States by Lloyd N. Cutler, Louis R. Cohen, David R. Johnson, Peter B. Hutt II, Jerold S. Kayden, David A Doheny, and Elizabeth S. Merritt; for the Sierra Club et al. by Lawrence N. Minch, Laurens H. Silver, and Charles M. Chambers; and for the U. S. Conference of Mayors et al. by Richard Ruda, Michael G. Dzialo, and Barbara Etkind.

Briefs of amici curiae were filed for the National Association of Real­tors by Ralph W. Holmen; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.

Justice Scalia

delivered the opinion of the Court.

In 1986, petitioner David H. Lucas paid $976,000 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, 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 single-­family 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 landward-­most “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 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 rendered] 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 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).

II

As a threshold matter, we must briefly address the Coun­cil’s suggestion that this case is inappropriate for plenary review. After briefing and argument before the South Car­olina Supreme Court, but prior to issuance of that court’s opinion, the Beachfront Management Act was amended to authorize the Council, in certain circumstances, to issue “special permits” for the construction or reconstruction of habitable structures seaward of the baseline. See S.C. Code Ann. § 48-39-290(D)(l) (Supp. 1991). According to the Council, this amendment renders Lucas’s claim of a perma­nent deprivation unripe, as Lucas may yet be able to secure permission to build on his property. “[The Court’s] cases,” we are reminded, “uniformly reflect an insistence on knowing the nature and extent of permitted development before adju­dicating the constitutionality of the regulations that purport to limit it.” MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351 (1986). See also Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). Because petitioner “has not yet obtained a final decision regarding how [he] will be allowed to develop [his] property,” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 190 (1985), the Council argues that he is not yet entitled to definitive adjudication of his takings claim in this Court.

We think these considerations would preclude review had the South Carolina Supreme Court rested its judgment on ripeness grounds, as it was (essentially) invited to do by the Council. See Brief for Respondent 9, n. 3. The South Car­olina Supreme Court shrugged off the possibility of further administrative and trial proceedings, however, preferring to dispose of Lucas’s takings claim on the merits. Cf., e.g., San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 631-632 (1981). This unusual disposition does not preclude Lucas from applying for a permit under the 1990 amendment for future construction, and challenging, on takings grounds, any denial. But it does preclude, both practically and le­gally, any takings claim with respect to Lucas’s past depriva­tion, i.e., for his having been denied construction rights dur­ing the period before the 1990 amendment. See generally First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987) (holding that temporary deprivations of use are compensable under the Takings Clause). Without even so much as commenting upon the consequences of the South Carolina Supreme Court’s judgment in this respect, the Council insists that per­mitting Lucas to press his claim of a past deprivation on this appeal would be improper, since “the issues of whether and to what extent [Lucas] has incurred a temporary taking ... have simply never been addressed.” Brief for Respondent 11. Yet Lucas had no reason to proceed on a “temporary taking” theory at trial, or even to seek remand for that pur­pose prior to submission of the case to the South Carolina Supreme Court, since as the Act then read, the taking was unconditional and permanent. Moreover, given the breadth of the South Carolina Supreme Court’s holding and judg­ment, Lucas would plainly be unable (absent our intervention now) to obtain further state-court adjudication with respect to the 1988-1990 period.

In these circumstances, we think it would not accord with sound process to insist that Lucas pursue the late-created “special permit” procedure before his takings claim can be considered ripe. Lucas has properly alleged Article III in­jury in fact in this case, with respect to both the pre-1990 and post-1990 constraints placed on the use of his parcels by the Beachfront Management Act.3 That there is a discre­tionary “special permit” procedure by which he may re­gain—for the future, at least—beneficial use of his land goes only to the prudential “ripeness” of Lucas’s challenge, and for the reasons discussed we do not think it prudent to apply that prudential requirement here. See Esposito v. South Carolina Coastal Council, 939 F. 2d 165, 168 (CA4 1991), cert. denied, post, p. 1219.4 We leave for decision on re­mand, of course, the questions left unaddressed by the South Carolina Supreme Court as a consequence of its categorical disposition.5

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, 275-276 (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 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 435-440, even though the facilities occupied at most only 1 1/2 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).6 As we have said on numerous 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).7

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. 1.1983) (prohi­bition on construction adjacent to beach justified on twin grounds of safety and “conservation of open space”); 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 11-­15-108 (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 leave his property economically idle, he has suffered a taking.8

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.9 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 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 Act10 or otherwise to challenge 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 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”:

“[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 “harm-­preventing” and “benefit-conferring” 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. 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.11 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 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 single-­family 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.12

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 self-evident 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 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).13

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.14 This accords, we think, with our “takings” 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.15

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.16

On this analysis, the owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling 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.17

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), 881, 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 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 common-­law action for public nuisanee, 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 Beachfront Management Act is taking nothing.18

The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

So ordered.

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 zones, the statute directs that the baseline be established along “the crest of an ideal primary oceanfront sand dune.” § 48-39-280(A)(l).

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)(l) and (2).

3

Justice Blackmun insists that this aspect of Lucas’s claim is “not justiciable,” post, at 1042, because Lucas never fulfilled his obligation under Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), to “submi[t] a plan for develop­ment of [his] property” to the proper state authorities, id., at 187. See post, at 1043. But such a submission would have been pointless, as the Council stipulated below that no building permit would have been issued under the 1988 Act, application or no application. Record 14 (stipula­tions). Nor does the peculiar posture of this case mean that we are with­out Article III jurisdiction, as Justice Blackmun apparently believes. See post, at 1042, and n. 5. Given the South Carolina Supreme Court's dismissive foreclosure of further pleading and adjudication with respect to the pre-1990 component of Lucas’s takings claim, it is appropriate for us to address that component as if the case were here on the pleadings alone. Lucas properly alleged injury in fact in his complaint. See App. to Pet. for Cert. 154 (complaint); id., at 156 (asking “damages for the temporary taking of his property” from the date of the 1988 Act's passage to "such time as this matter is finally resolved”). No more can reasonably be de­manded. Cf First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 312-313 (1987). Justice Black­mun finds it “baffling," post, at 1043, n. 5, that we grant standing here, whereas “just a few days ago, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992),” we denied standing. He sees in that strong evidence to sup­port his repeated imputations that the Court “presses” to take this case, post, at 1036, is “eager to decide” it, post, at 1045, and is unwilling to “be denied,” post, at 1042. He has a point: The decisions are indeed very close in time, yet one grants standing and the other denies it. The distinction, however, rests in law rather than chronology. Lujan, since it involved the establishment of injury in fact at the summary judgment stage, re­quired specific facts to be adduced by sworn testimony; had the same chal­lenge to a generalized allegation of injury in feet been made at the plead­ing stage, it would have been unsuccessful.

4

In that case, the Court of Appeals for the Fourth Circuit reached the merits of a takings challenge to the 1988 Beachfront Management Act identical to the one Lucas brings here even though the Act was amended, and the special permit procedure established, while the case was under submission. The court observed:

“The enactment of the 1990 Act during the pendency of this appeal, with its provisions for special permits and other changes that may affect the plaintiffs, does not relieve us of the need to address the plaintiffs’ claims under the provisions of the 1988 Act. Even if the amended Act cured all of the plaintiffs’ concerns, the amendments would not foreclose the possi­bility that a taking had occurred during the years when the 1988 Act was in effect.” Esposito v. South Carolina Coastal Council, 939 F. 2d 165, 168 (1991).

5

Justice Blackmun states that our “intense interest in Lucas’ plight ... would have been more prudently expressed by vacating the judgment below and remanding for further consideration in light of the 1990 amend­ments” to the Beachfront Management Act. Post, at 1045, n. 7. That is a strange suggestion, given that the South Carolina Supreme Court ren­dered its categorical disposition in this case after the Act had been amended, and after it had been invited to consider the effect of those amendments on Lucas’s case. We have no reason to believe that the jus­tices of the South Carolina Supreme Court are any more desirous of using a narrower ground now than they were then; and neither “prudence” nor any other principle of judicial restraint requires that we remand to find out whether they have changed their mind.

6

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 1060, 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).

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 long-­established standard we see no need to repudiate.

7

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, 497-502 (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 Pleas found that the Beachfront Management Act left each of Lucas’s beachfront lots without economic value.

8

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 “all-or-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 1066, 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).

9

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).

10

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 well-­being.

“(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 beaeh/dune system, accelerated erosion, and endangered adjacent property. It 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 false sense 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).

11

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 “benefit-­conferring” 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(l)(b) (Supp. 1991), in “provid­ing] habitat for numerous species of plants and animals, several of which are threatened or endangered,” § 48-39-250(l)(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,” § 48-39-­250(l)(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 “harm-preventing” 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. § 48-39-290(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. § q48-39-290(D)(l) (Supp. 1991).

12

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.

13

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).

14

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 Beachfront 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 128 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.

15

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. 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.

16

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, 18-19 (1880); see United States v. Pacific R. Co., 120 U.S. 227, 238-239 (1887).

17

Of course, the State may elect to rescind its regulation and thereby avoid having 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.

18

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.

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 Beachfront Management Act to author­ize the issuance of special permits at variance with the Act’s general limitations. See S.C. Code Ann. § 48-39-290(D)(l) (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, 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 Beachfront 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. § 48-39-290(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 Beachfront 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 petitioner to com­ply with relevant administrative requirements will be part of that analysis.

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 beachfront 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, investment-­backed expectations.

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. 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 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.

I

A

In 1972 Congress passed the Coastal Zone Management Act. 16 U.S.C. § 1451 et seq. The Act was designed to pro­vide States with money and incentives to carry out Congress’ goal of protecting the public from shoreline erosion and coastal hazards. In the 1980 amendments to the Act, Congress directed States to enhance their coastal pro­grams by “[p]reventing or significantly reducing threats to life and the destruction of property by eliminating develop­ment and redevelopment in high-hazard areas.”1 16 U.S.C. § 1456b(a)(2) (1988 ed., Supp. II).

South Carolina began implementing the congressional directive by enacting the South Carolina Coastal Zone Man­agement Act of 1977. Under the 1977 Act, any construction activity in what was designated the “critical area” required a permit from the South Carolina Coastal Council (Council), and the construction of any habitable structure was prohib­ited. The 1977 critical area was relatively narrow.

This effort did not stop the loss of shoreline. In October 1986, the Council appointed a “Blue Ribbon Committee on Beachfront Management” to investigate beach erosion and propose possible solutions. In March 1987, the Committee found that South Carolina’s beaches were “critically erod­ing,” and proposed land-use restrictions. Report of the South Carolina Blue Ribbon Committee on Beachfront Man­agement i, 6-10 (Mar. 1987). In response, South Carolina enacted the Beachfront Management Act on July 1, 1988. S.C. Code Ann. § 48-39-260 et seq. (Supp. 1990). The 1988 Act did not change the uses permitted within the designated critical areas. Rather, it enlarged those areas to encompass the distance from the mean high watermark to a setback line established on the basis of “the best scientific and historical data” available.2 S.C. Code Ann. § 48-39-280 (Supp. 1991).

B

Petitioner Lucas is a contractor, manager, and part owner of the Wild Dune development on the Isle of Palms. He has lived there since 1978. In December 1986, he purchased two of the last four pieces of vacant property in the develop­ment.3 The area is notoriously unstable. In roughly half of the last 40 years, all or part of petitioner’s property was part of the beach or flooded twice daily by the ebb and flow of the tide. Tr. 84. Between 1957 and 1963, petitioner’s property was under water. Id., at 79, 81-82. Between 1963 and 1973 the shoreline was 100 to 150 feet onto petitioner’s property. Ibid. In 1973 the first line of stable vegetation was about halfway through the property. Id., at 80. Between 1981 and 1983, the Isle of Palms issued 12 emergency orders for sandbagging to protect property in the Wild Dune develop­ment. Id., at 99. Determining that local habitable struc­tures were in imminent danger of collapse, the Council issued permits for two rock revetments to protect condominium de­velopments near petitioner’s property from erosion; one of the revetments extends more than halfway onto one of his lots. Id., at 102.

C

The South Carolina Supreme Court found that the Beach­front Management Act did not take petitioner’s property without compensation. The decision rested on two premises that until today were unassailable—that the State has the power to prevent any use of property it finds to be harmful to its citizens, and that a state statute is entitled to a pre­sumption of constitutionality.

The Beachfront Management Act includes a finding by the South Carolina General Assembly that the beach/dune sys­tem serves the purpose of “protect[ing] life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and ef­fective manner.” S.C. Code Ann. § 48-39-250(l)(a) (Supp. 1990). The General Assembly also found that “development 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.” § 48-39-250(4); see also § 48-39-250(6) (discussing the need to “afford the beach/dune system space to accrete and erode”).

If the state legislature is correct that the prohibition on building in front of the setback line prevents serious harm, then, under this Court’s prior cases, the Act is constitutional. “Long ago it was recognized 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, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to en­force it.” Keystone Bituminous Coal Assn. v. DeBenedic­tis, 480 U.S. 470, 491-492 (1987) (internal quotation marks omitted); see also id., at 488-489, and n. 18. The Court con­sistently has upheld regulations imposed to arrest a signifi­cant threat to the common welfare, whatever their economic effect on the owner. See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 592-593 (1962); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Gorieb v. Fox, 274 U.S. 603, 608 (1927); Mugler v. Kansas, 123 U.S. 623 (1887).

Petitioner never challenged the legislature’s findings that a building ban was necessary to protect property and life. Nor did he contend that the threatened harm was not suffi­ciently serious to make building a house in a particular loca­tion a “harmful” use, that the legislature had not made suffi­cient findings, or that the legislature was motivated by anything other than a desire to minimize damage to coastal areas. Indeed, petitioner objected at trial that evidence as to the purposes of the setback requirement was irrelevant. Tr. 68. The South Carolina Supreme Court accordingly un­derstood petitioner not to contest the State’s position that “discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm,” 304 S.C. 376, 383, 404 S. E. 2d 895, 898 (1991), and “to prevent serious injury to the community.” Id., at 387, 404 S. E. 2d, at 901. The court considered itself “bound by these uncontested legislative findings ... [in the absence of] any attack whatsoever on the statutory scheme.” Id., at 383, 404 S. E. 2d, at 898.

Nothing in the record undermines the General Assembly’s assessment that prohibitions on building in front of the set­back line are necessary to protect people and property from storms, high tides, and beach erosion. Because that legisla­tive determination cannot be disregarded in the absence of such evidence, see, e.g., Euclid, 272 U.S., at 388; O’Gor­man & Young, Inc. v. Hartford Fire Ins. Co., 282 U.S. 251, 257-258 (1931) (Brandeis, J.), and because its determination of harm to life and property from building is sufficient to prohibit that use under this Court’s cases, the South Carolina Supreme Court correctly found no taking.

II

My disagreement with the Court begins with its decision to review this case. This Court has held consistently that a land-use challenge is not ripe for review until there is a final decision about what uses of the property will be permitted. The ripeness requirement is not simply a gesture of good will to land-use planners. In the absence of “a final and au­thoritative determination of the type and intensity of devel­opment legally permitted on the subject property,” MacDon­ald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986), and the utilization of state procedures for just com­pensation, there is no final judgment, and in the absence of a final judgment there is no jurisdiction, see San Diego Gas & Electric Co. v. San Diego, 450 U.S. 621, 633 (1981); Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

This rule is “compelled by the very nature of the inquiry required by the Just Compensation Clause,” because the fac­tors applied in deciding a takings claim “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.” William­son County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 190, 191 (1985). See also MacDonald, Sommer & Frates, 477 U.S., at 348 (“A court cannot determine whether a regulation has gone ‘too far’ un­less it knows how far the regulation goes”) (citation omitted).

The Court admits that the 1990 amendments to the Beach­front Management Act allowing special permits preclude Lucas from asserting that his property has been perma­nently taken. See ante, at 1011-1012. The Court agrees that such a claim would not be ripe because there has been no final decision by respondent on what uses will be permitted. The Court, however, will not be denied: It determines that petitioner’s “temporary takings” claim for the period from July 1,1988, to June 25, 1990, is ripe. But this claim also is not justiciable.4

From the very beginning of this litigation, respondent has argued that the courts

“lac[k] jurisdiction in this matter because the Plaintiff has sought no authorization from Council for use of his property, has not challenged the location of the baseline or setback line as alleged in the Complaint and because no final agency decision has been rendered concerning use of his property or location of said baseline or setback line.” Tr. 10 (answer, as amended).

Although the Council’s plea has been ignored by every court, it is undoubtedly correct.

Under the Beachfront Management Act, petitioner was entitled to challenge the setback line or the baseline or ero­sion rate applied to his property in formal administrative, followed by judicial, proceedings. S.C. Code Ann. § 48-39-­280(E) (Supp. 1991). Because Lucas failed to pursue this administrative remedy, the Council never finally decided whether Lucas’ particular piece of property was correctly categorized as a critical area in which building would not be permitted. This is all the more crucial because Lucas ar­gued strenuously in the trial court that his land was per­fectly safe to build on, and that his company had studies to prove it. Tr. 20, 25, 36. If he was correct, the Council’s final decision would have been to alter the setback line, elim­inating the construction ban on Lucas’ property.

That petitioner’s property fell within the critical area as initially interpreted by the Council does not excuse petition­er’s failure to challenge the Act’s application to his property in the administrative process. The claim is not ripe until petitioner seeks a variance from that status. “[W]e have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking.” United States v. Riverside Bayview Ho­mes, Inc., 474 U.S. 121, 126 (1985). See also Williamson County, 473 U.S., at 188 (claim not ripe because respondent did not seek variances that would have allowed it to develop the property, notwithstanding the commission’s finding that the plan did not comply with the zoning ordinance and subdi­vision regulations).5

Even if I agreed with the Court that there were no juris­dictional barriers to deciding this case, I still would not try to decide it. The Court creates its new takings jurispru­dence based on the trial court’s finding that the property had lost all economic value.6 This finding is almost certainly erroneous. Petitioner still can enjoy other attributes of ownership, such as 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 (1979). Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer. State courts frequently have recognized that land has eco­nomic value where the only residual economic uses are recre­ation or camping. See, e.g., Turnpike Realty Co. v. Ded­ham, 362 Mass. 221, 284 N. E. 2d 891 (1972); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972), cert. denied, 409 U.S. 1108 (1973); Hall v. Board of Environmental Protection, 528 A. 2d 453 (Me. 1987). Peti­tioner also retains the right to alienate the land, which would have value for neighbors and for those prepared to enjoy proximity to the ocean without a house.

Yet the trial court, apparently believing that “less value” and “valueless” could be used interchangeably, found the property “valueless.” The court accepted no evidence from the State on the property’s value without a home, and peti­tioner’s appraiser testified that he never had considered what the value would be absent a residence. Tr. 54-55. The appraiser’s value was based on the fact that the “highest and best use of these lots . . . [is] luxury single family de­tached dwellings.” Id., at 48. The trial court appeared to believe that the property could be considered “valueless” if it was not available for its most profitable use. Absent that erroneous assumption, see Goldblatt, 369 U.S., at 592, I find no evidence in the record supporting the trial court’s conclu­sion that the damage to the lots by virtue of the restrictions was “total.” Record 128 (findings of fact). I agree with the Court, ante, at 1020, n. 9, that it has the power to decide a case that turns on an erroneous finding, but I question the wisdom of deciding an issue based on a factual premise that does not exist in this case, and in the judgment of the Court will exist in the future only in “extraordinary circum­stance[s],” ante, at 1017.

Clearly, the Court was eager to decide this case.7 But eagerness, in the absence of proper jurisdiction, must—and in this case should have been—met with restraint.

III

The Court’s willingness to dispense with precedent in its haste to reach a result is not limited to its initial jurisdic­tional decision. The Court also alters the long-settled rules of review.

The South Carolina Supreme Court’s decision to defer to legislative judgments in the absence of a challenge from peti­tioner comports with one of this Court’s oldest maxims: “[T]he existence of facts supporting the legislative judgment is to be presumed.” United States v. Carotene Products Co., 304 U.S. 144, 152 (1938). Indeed, we have said the legisla­ture’s judgment is “well-nigh conclusive.” Berman v. Par­ker, 348 U.S. 26, 32 (1964). See also Sweet v. Rechel, 159 U.S. 380, 392 (1895); Euclid, 272 U.S., at 388 (“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control”).

Accordingly, this Court always has required plaintiffs chal­lenging the constitutionality of an ordinance to provide “some factual foundation of record” that contravenes the leg­islative findings. O’Gorman & Young, 282 U.S., at 258. In the absence of such proof, “the presumption of constitution­ality must prevail.” Id., at 257. We only recently have re­affirmed that claimants have the burden of showing a state law constitutes a taking. See Keystone Bituminous Coal, 480 U.S., at 485. See also Goldblatt, 369 U.S., at 594 (citing “the usual presumption of constitutionality” that applies to statutes attacked as takings).

Rather than invoking these traditional rules, the Court de­cides the State has the burden to convince the courts that its legislative judgments are correct. Despite Lucas’ complete failure to contest the legislature’s findings of serious harm to life and property if a permanent structure is built, the Court decides that the legislative findings are not sufficient to jus­tify the use prohibition. Instead, the Court “emphasize[s]” the State must do more than merely proffer its legislative judgments to avoid invalidating its law. Ante, at 1031. In this case, apparently, the State now has the burden of show­ing the regulation is not a taking. The Court offers no justi­fication for its sudden hostility toward state legislators, and I doubt that it could.

IV

The Court does not reject the South Carolina Supreme Court’s decision simply on the basis of its disbelief and dis­trust of the legislature’s findings. It also takes the opportu­nity to create a new scheme for regulations that eliminate all economic value. From now on, there is a categorical rule finding these regulations to be a taking unless the use they prohibit is a background common-law nuisance or property principle. See ante, at 1028-1031.

A

I first question the Court’s rationale in creating a category that obviates a “case-specific inquiry into the public interest advanced,” ante, at 1015, if all economic value has been lost. If one fact about the Court’s takings jurisprudence can be stated without contradiction, it is that “the particular cir­cumstances of each case” determine whether a specific re­striction will be rendered invalid by the government’s failure to pay compensation. United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958). This is so because al­though we have articulated certain factors to be considered, including the economic impact on the property owner, the ultimate conclusion “necessarily requires a weighing of pri­vate and public interests.” Agins, 447 U.S., at 261. When the government regulation prevents the owner from any eco­nomically valuable use of his property, the private interest is unquestionably substantial, but we have never before held that no public interest can outweigh it. Instead the Court’s prior decisions “uniformly reject the proposition that dimi­nution in property value, standing alone, can establish a ‘tak­ing.’” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 131 (1978).

This Court repeatedly has recognized the ability of gov­ernment, in certain circumstances, to regulate property without compensation no matter how adverse the financial effect on the owner may be. More than a century ago, the Court explicitly upheld the right of States to prohibit uses of property injurious to public health, safety, or welfare without paying 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.” Mugler v. Kansas, 123 U.S., at 668-669. On this basis, the Court upheld an ordi­nance effectively prohibiting operation of a previously lawful brewery, although the “establishments will become of no value as property.” Id., at 664; see also id., at 668.

Mugler was only the beginning in a long line of cases.8 In Powell v. Pennsylvania, 127 U.S. 678 (1888), the Court up­held legislation prohibiting the manufacture of oleomarga­rine, despite the owner’s allegation that “if prevented from continuing it, the value of his property employed therein would be entirely lost and he be deprived of the means of livelihood.” Id., at 682. In Hadacheck v. Sebastian, 239 U.S. 394 (1915), the Court upheld an ordinance prohibiting a brickyard, although the owner had made excavations on the land that prevented it from being utilized for any purpose but a brickyard. Id., at 405. In Miller v. Schoene, 276 U.S. 272 (1928), the Court held that the Fifth Amendment did not require Virginia to pay compensation to the owner of cedar trees ordered destroyed to prevent a disease from spreading to nearby apple orchards. The “preferment of [the public 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.” Id., at 280. Again, in Omnia Commer­cial Co. v. United States, 261 U.S. 502 (1923), the Court stated that “destruction of, or injury to, property is fre­quently accomplished without a ‘taking’ in the constitutional sense.” Id., at 508.

More recently, in Goldblatt, the Court upheld a town regu­lation that barred continued operation of an existing sand and gravel operation in order to protect public safety. 369 U.S., at 596. “Although a comparison of values before and after is relevant,” the Court stated, “it is by no means conclusive.”9 Id., at 594. In 1978, the Court declared that “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 regulation that destroyed ... recognized real property interests.” Penn Central Transp. Co., 438 U.S., at 125. In First English Evangelical Lu­theran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), the owner alleged that a floodplain ordinance had deprived it of “all use” of the property. Id, at 312. The Court remanded the case for consideration whether, even if the ordinance denied the owner all use, it could be justified as a safety measure.10 Id., at 313. And in Key­stone Bituminous Coal, the Court summarized over 100 years of precedent: “[T]he Court has repeatedly upheld regu­lations that destroy or adversely affect real property intere­sts.”11 480 U.S., at 489, n. 18.

The Court recognizes that “our prior opinions have sug­gested that ‘harmful or noxious uses’ of property may be proscribed by government regulation without the require­ment of compensation,” ante, at 1022, but seeks to reconcile them with its categorical rule by claiming that the Court never has upheld a regulation when the owner alleged the loss of all economic value. Even if the Court’s factual prem­ise were correct, its understanding of the Court’s cases is distorted. In none of the cases did the Court suggest that the right of a State to prohibit certain activities without pay­ing compensation turned on the availability of some residual valuable use.12 Instead, the cases depended on whether the government interest was sufficient to prohibit the activity, given the significant private cost.13

These cases rest on the principle that the State has full power to prohibit an owner’s use of property if it is harmful to the public. “[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not ‘taken’ anything when it asserts its power to enjoin the nuisance-like activity.” Keystone Bituminous Coal, 480 U.S., at 491, n. 20. It would make no sense under this theory to suggest that an owner has a constitutionally protected right to harm others, if only he makes the proper showing of economic loss.14 See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 418 (1922) (Brandeis, J., dissenting) (“Restriction upon [harmful] use does not become inappro­priate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put”).

B

Ultimately even the Court cannot embrace the full implica­tions of its per se rule: It eventually agrees that there cannot be a categorical rule for a taking based on economic value that wholly disregards the public need asserted. Instead, the Court decides that it will permit a State to regulate all economic value only if the State prohibits uses that would not be permitted under “background principles of nuisance and property law.”15 Ante, at 1031.

Until today, the Court explicitly had rejected the conten­tion that the government’s power to act without paying com­pensation turns on whether the prohibited activity is a common-law nuisance.16 The brewery closed in Mugler it­self was not a common-law nuisance, and the Court specifi­cally stated that it was the role of the legislature to deter­mine what measures would be appropriate for the protection of public health and safety. See 123 U.S., at 661. In up­holding the state action in Miller, the Court found it unnec­essary to "weigh with nicety the question whether the in­fected cedars constitute a nuisance according to common law; or whether they may be so declared by statute.” 276 U.S., at 280. See also Goldblatt, 369 U.S., at 593; Hadacheck, 239 U.S., at 411. Instead the Court has relied in the past, as the South Carolina court has done here, on legislative judg­ments of what constitutes a harm.17

The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without grant­ing compensation because “the distinction between ‘harm-preventing’ and ‘benefit-conferring’ regulation is often in the eye of the beholder.” Ante, at 1024. Since the character­ization will depend “primarily upon one’s evaluation of the worth of competing uses of real estate,” ante, at 1025, the Court decides a legislative judgment of this kind no longer can provide the desired “objective, value-free basis” for upholding a regulation, ante, at 1026. The Court, however, fails to explain how its proposed common-law alternative escapes the same trap.

The threshold inquiry for imposition of the Court's new rule, “deprivation of all economically valuable use,” itself cannot be determined objectively. As the Court admits, whether the owner has been deprived of all economic value of his property will depend on how “property” is defined. The “composition of the denominator in our ‘deprivation’ fraction,” ante, at 1017, n. 7, is the dispositive inquiry. Yet there is no “objective” way to define what that denominator should be. “We have long understood that any land-use reg­ulation can be characterized as the ‘total’ deprivation of an aptly defined entitlement....Alternatively, the same regula­tion can always be characterized as a mere ‘partial’ with­drawal from full, unencumbered ownership of the landhold­ing affected by the regulation....”18 Michelman, Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988).

The Court’s decision in Keystone Bituminous Coal illus­trates this principle perfectly. In Keystone, the Court de­termined that the “support estate” was “merely a part of the entire bundle of rights possessed by the owner.” 480 U.S., at 501. Thus, the Court concluded that the support estate’s destruction merely eliminated one segment of the total prop­erty. Ibid. The dissent, however, characterized the sup­port estate as a distinct property interest that was wholly destroyed. Id., at 519. The Court could agree on no “value-free basis” to resolve this dispute.

Even more perplexing, however, is the Court’s reliance on common-law principles of nuisance in its quest for a value-­free takings jurisprudence. In determining what is a nui­sance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common-law public and private nuisance law is simply a determination whether a particular use causes harm. See Prosser, Private Action for Public Nui­sance, 52 Va. L. Rev. 997 (1966) (“Nuisance is a French word which means nothing more than harm”). There is nothing magical in the reasoning of judges long dead. They deter­mined a harm in the same way as state judges and legisla­tures do today. If judges in the 18th and 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not legislators? There simply is no reason to believe that new interpretations of the hoary common-law nuisance doctrine will be particularly “objective” or “value free.”19 Once one abandons the level of generality of sic utere tuo ut alienum non laedas, ante, at 1031, one searches in vain, I think, for anything resembling a principle in the common law of nuisance.

C

Finally, the Court justifies its new rule that the legislature may not deprive a property owner of the only economically valuable use of his land, even if the legislature finds it to be a harmful use, because such action is not part of the “‘long rec­ognized’” “understandings of our citizens.” Ante, at 1027. These “understandings” permit such regulation only if the use is a nuisance under the common law. Any other course is “inconsistent with the historical compact recorded in the Tak­ings Clause.” Ante, at 1028. It is not clear from the Court’s opinion where our “historical compact” or “citizens’ under­standing” comes from, but it does not appear to be history.

The principle that the State should compensate individuals for property taken for public use was not widely established in America at the time of the Revolution.

“The colonists... inherited... a concept of property which permitted extensive regulation of the use of that property for the public benefit—regulation that could even go so far as to deny all productive use of the property to the owner if, as Coke himself stated, the regulation ‘extends to the public benefit... for this is for the public, and every one hath benefit by it.’” F. Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of the King’s Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606) (hereinafter Bosselman).

See also Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 697, n. 9 (1985).20

Even into the 19th century, state governments often felt free to take property for roads and other public projects without paying compensation to the owners.21 See M. Hor-witz, The Transformation of American Law, 1780-1860, pp. 63-64 (1977) (hereinafter Horwitz); Treanor, 94 Yale L. J., at 695. As one court declared in 1802, citizens “were bound to contribute as much of [land], as by the laws of the country, were deemed necessary for the public convenience.” M’Clen­achan v. Curwin, 3 Yeates 362, 373 (Pa. 1802). There was an obvious movement toward establishing the just compen­sation principle during the 19th century, but “there contin­ued to be a strong current in American legal thought that regarded compensation simply as a ‘bounty given ... by the State’ out of ‘kindness’ and not out of justice.” Horwitz 65, quoting Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa. 1830). See also State v. Dawson, 3 Hill 100, 103 (S.C. 1836).22

Although, prior to the adoption of the Bill of Rights, America was replete with land-use regulations describing which activities were considered noxious and forbidden, see Bender, The Takings Clause: Principles or Politics?, 34 Buffalo L. Rev. 735, 751 (1985); L. Friedman, A History of American Law 66-68 (1973), the Fifth Amendment’s Takings Clause originally did not extend to regulations of property, whatever the effect.23 See ante, at 1014. Most state courts agreed with this narrow interpretation of a taking. “Until the end of the nineteenth century . . . jurists held that the constitution protected possession only, and not value.” Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and “Takings” Clause Jurisprudence, 60 S. Cal. L. Rev. 1, 76 (1986); Bosselman 106. Even indirect and consequential in­juries to property resulting from regulations were excluded from the definition of a taking. See ibid.; Callender v. Marsh, 1 Pick. 418, 430 (Mass. 1823).

Even when courts began to consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public.24 In the Coates cases, for example, the Supreme Court of New York found no taking in New York’s ban on the interment of the dead within the city, although “no other use can be made of these lands.” Coates v. City of New York, 7 Cow. 585, 592 (N.Y. 1827). See also Brick Presbyte­rian Church v. City of New York, 5 Cow. 538 (N.Y. 1826); Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass. 1851); St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 146, 137 S. W. 929, 942 (1911), appeal dism’d, 231 U.S. 761 (1913). More recent cases reach the same result. See Con­solidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism’d, 371 U.S. 36 (1962); Nassr v. Commonwealth, 394 Mass. 767, 477 N. E. 2d 987 (1985); Eno v. Burlington, 125 Vt. 8, 209 A. 2d 499 (1965); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972).

In addition, state courts historically have been less likely to find that a government action constitutes a taking when the affected land is undeveloped. According to the South Carolina court, the power of the legislature to take unim­proved land without providing compensation was sanctioned by “ancient rights and principles.” Lindsay v. Commission­ers, 2 S.C.L. 38, 57 (1796). “Except for Massachusetts, no colony appears to have paid compensation when it built a state-owned road across unimproved land. Legislatures provided compensation only for enclosed or improved land.” Treanor, 94 Yale L. J., at 695 (footnotes omitted). This rule was followed by some States into the 1800’s. See Horwitz 63-65.

With similar result, the common agrarian conception of property limited owners to “natural” uses of their land prior to and during much of the 18th century. See id., at 32. Thus, for example, the owner could build nothing on his land that would alter the natural flow of water. See id., at 44; see also, e.g., Merritt v. Parker, 1 Coxe 460, 463 (N.J. 1795). Some more recent state courts still follow this reasoning. See, e.g., Just v. Marinette County, 56 Wis. 2d 7, 201 N. W. 2d 761, 768 (1972).

Nor does history indicate any common-law limit on the State’s power to regulate harmful uses even to the point of destroying all economic value. Nothing in the discussions in Congress concerning the Takings Clause indicates that the Clause was limited by the common-law nuisance doctrine. Common-law courts themselves rejected such an under­standing. They regularly recognized that it is “for the legis­lature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public.” Tewksbury, 11 Mete., at 57.25 Chief Justice Shaw explained in upholding a regulation prohibiting construction of wharves, the existence of a taking did not depend on “whether a certain erection in tide water is a nuisance at common law or not.” Alger, 7 Cush., at 104; see also State v. Paul, 5 R. I. 185, 193 (1858); Commonwealth v. Parks, 155 Mass. 531, 532, 30 N. E. 174 (1892) (Holmes, J.) (“[T]he legis­lature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances”).

In short, I find no clear and accepted “historical compact” or “understanding of our citizens” justifying the Court’s new takings doctrine. Instead, the Court seems to treat history as a grab bag of principles, to be adopted where they support the Court’s theory, and ignored where they do not. If the Court decided that the early common law provides the back­ground principles for interpreting the Takings Clause, then regulation, as opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period provides the background principles, then regulation might be compensable, but the Court would have to confront the fact that legislatures regularly determined which uses were prohibited, independent of the common law, and inde­pendent of whether the uses were lawful when the owner purchased. What makes the Court’s analysis unworkable is its attempt to package the law of two incompatible eras and peddle it as historical fact.26

V

The Court makes sweeping and, in my view, misguided and unsupported changes in our takings doctrine. While it limits these changes to the most narrow subset of govern­ment regulation—those that eliminate all economic value from land—these changes go far beyond what is necessary to secure petitioner Lucas’ private benefit. One hopes they do not go beyond the narrow confines the Court assigns them to today.

I dissent.

1

The country has come to recognize that uncontrolled beachfront devel­opment can cause serious damage to life and property. See Brief for Si­erra Club et al. as Amici Curiae 2-5. Hurricane Hugo’s September 1989 attack upon South Carolina’s coastline, for example, caused 29 deaths and approximately $6 billion in property damage, much of it the result of un­controlled beachfront development. See Zalkin, Shifting Sands and Shift­ing Doctrines: The Supreme Court’s Changing Takings Doctrine and South Carolina’s Coastal Zone Statute, 79 Calif. L. Rev. 205, 212-213 (1991). The beachfront buildings are not only themselves destroyed in such a storm, “but they are often driven, like battering rams, into adjacent inland homes.” Ibid. Moreover, the development often destroys the natural sand dune barriers that provide storm breaks. Ibid.

2

The setback line was determined by calculating the distance landward from the crest of an ideal oceanfront sand dune which is 40 times the annual erosion rate. S.C. Code Ann. § 48-39-280 (Supp. 1991).

3

The properties were sold frequently at rapidly escalating prices before Lucas purchased them. Lot 22 was first sold in 1979 for $96,660, sold in 1984 for $187,500, then in 1985 for $260,000, and, finally, to Lucas in 1986 for $475,000. He estimated its worth in 1991 at $650,000. Lot 24 had a similar past. The record does not indicate who purchased the properties prior to Lucas, or why none of the purchasers held on to the lots and built on them. Tr. 44-46.

4

The Court’s reliance, ante, at 1013, on Esposito v. South Carolina Coastal Council, 939 F. 2d 165, 168 (CA4 1991), cert. denied, post, p. 1219, in support of its decision to consider Lucas’ temporary takings claim ripe is misplaced. In Esposito the plaintiffs brought a facial challenge to the mere enactment of the Act. Here, of course, Lucas has brought an as-­applied challenge. See Brief for Petitioner 16. Facial challenges are ripe when the Act is passed; applied challenges require a final decision on the Act’s application to the property in question.

5

Even more baffling, given its decision, just a few days ago, in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Court decides petitioner has demonstrated injury in fact. In his complaint, petitioner made no allegations that he had any definite plans for using his property. App. to Pet. for Cert. 153-156. At trial, Lucas testified that he had house plans drawn up, but that he was “in no hurry” to build “because the lot was appreciating in value.” Tr. 28-29. The trial court made no findings of fact that Lucas had any plans to use the property from 1988 to 1990. “‘[S]ome day’ intentions—without any description of concrete plans, or indeed even any specification of when the some day will be—do not sup­port a finding of the ‘actual or imminent’ injury that our cases require.” 504 U.S., at 564. The Court circumvents Defenders of Wildlife by decid­ing to resolve this case as if it arrived on the pleadings alone. But it did not. Lucas had a full trial on his claim for “‘damages for the temporary taking of his property’ from the date of the 1988 Act’s passage to ‘such time as this matter is finally resolved,’” ante, at 1013, n. 3, quoting the complaint, and failed to demonstrate any immediate concrete plans to build or sell.

6

Respondent contested the findings of fact of the trial court in the South Carolina Supreme Court, but that court did not resolve the issue. This Court’s decision to assume for its purposes that petitioner had been denied all economic use of his land does not, of course, dispose of the issue on remand.

7

The Court overlooks the lack of a ripe and justiciable claim apparently out of concern that in the absence of its intervention Lucas will be unable to obtain further adjudication of his temporary takings claim. The Court chastises respondent for arguing that Lucas’ temporary takings claim is premature because it failed “so much as [to] commen[t]” upon the effect of the South Carolina Supreme Court’s decision on petitioner’s ability to ob­tain relief for the 2-year period, and it frets that Lucas would "be unable (absent our intervention now) to obtain further state-court adjudication with respect to the 1988-1990 period.” Ante, at 1012. Whatever the ex­planation for the Court’s intense interest in Lucas’ plight when ordinarily we are more cautious in granting discretionary review, the concern would have been more prudently expressed by vacating the judgment below and remanding for further consideration in light of the 1990 amendments. At that point, petitioner could have brought a temporary takings claim in the state courts.

8

Prior to Mugler, the Court had held that owners whose real property is wholly destroyed to prevent the spread of a fire are not entitled to compensation. Bowditch v. Boston, 101 U.S. 16, 18-19 (1880). And the Court recognized in the License Cases, 5 How. 604, 689 (1847) (opinion of McLean, J.), that “[t]he acknowledged police power of a State extends often to the destruction of property.”

9

That same year, an appeal came to the Court asking “[w]hether zoning ordinances which altogether destroy the worth of valuable land by prohib­iting the only economic use of which it is capable effect a taking of real property without compensation.” Juris. Statement, O. T. 1962, No. 307, p. 5. The Court dismissed the appeal for lack of a substantial federal question. Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism’d, 371 U.S. 36 (1962).

10

On remand, the California court found no taking in part because the zoning regulation “involves this highest of public interests—the preven­tion of death and injury.” First Lutheran Church v. Los Angeles, 210 Cal. App. 3d 1353, 1370, 258 Cal. Rptr. 893, 904 (1989), cert. denied, 493 U.S. 1056 (1990).

11

The Court's suggestion that Agins v. City of Tiburon, 447 U.S. 255 (1980), a unanimous opinion, created a new per se rule, only now discov­ered, is unpersuasive. In Agins, the Court stated that “no precise rule determines when property has been taken” but instead that “the question necessarily requires a weighing of public and private interest.” Id., at 260-262. The other cases cited by the Court, ante, at 1015, repeat the Agins sentence, but in no way suggest that the public interest is irrelevant if total value has been taken. The Court has indicated that proof that a regulation does not deny an owner economic use of his property is suffi­cient to defeat a facial takings challenge. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 295-297 (1981). But the conclusion that a regulation is not on its face a taking because it allows the landowner some economic use of property is a far cry from the proposi­tion that denial of such use is sufficient to establish a takings claim regard­less of any other consideration. The Court never has accepted the latter proposition.

The Court relies today on dicta in Agins, Hodel, Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470 (1987), for its new categorical rule. Ante, at 1015-1016. I prefer to rely on the directly contrary holdings in cases such as Mugler v. Kansas, 123 U.S. 623 (1887), and Hadacheck v. Sebastian, 239 U.S. 394 (1915), not to mention contrary statements in the very cases on which the Court relies. See Agins, 447 U.S., at 260-262; Keystone Bituminous Coal, 480 U.S., at 489, n. 18, 491-492.

12

Miller v. Schoene, 276 U.S. 272 (1928), is an example. In the course of demonstrating that apple trees are more valuable than red cedar trees, the Court noted that red cedar has “occasional use and value as lumber.” Id., at 279. But the Court did not discuss whether the timber owned by the petitioner in that case was commercially salable, and nothing in the opinion suggests that the State’s right to require uncompensated felling of the trees depended on any such salvage value. To the contrary, it is clear from its unanimous opinion that the Schoene Court would have sus­tained a law requiring the burning of cedar trees if that had been neces­sary to protect apple trees in which there was a public interest: The Court spoke of preferment of the public interest over the property interest of the individual, "to the extent even of its destruction.” Id., at 280.

13

The Court seeks to disavow the holdings and reasoning of Mugler and subsequent cases by explaining that they were the Court’s early efforts to define the scope of the police power. There is language in the earliest takings cases suggesting that the police power was considered to be the power simply to prevent harms. Subsequently, the Court expanded its understanding of what were government’s legitimate interests. But it does not follow that the holding of those early cases—that harmful and noxious uses of property can be forbidden whatever the harm to the prop­erty owner and without the payment of compensation—was repudiated. To the contrary, as the Court consciously expanded the scope of the police power beyond preventing harm, it clarified that there was a core of public interests that overrode any private interest. See Keystone Bituminous Coal, 480 U.S., at 491, n. 20.

14

“Indeed, it would be extraordinary to construe the Constitution to require a government to compensate private landowners because it denied them ‘the right’ to use property which cannot be used without risking injury and death.” First Lutheran Church, 210 Cal. App. 3d, at 1366, 258 Cal. Rptr., at 901-902.

15

Although it refers to state nuisance and property law, the Court ap­parently does not mean just any state nuisance and property law. Public nuisance was first a common-law creation, see Newark, The Boundaries of Nuisance, 65 L. Q. Rev. 480, 482 (1949) (attributing development of nui­sance to 1535), but by the 1800’s in both the United States and England, legislatures had the power to define what is a public nuisance, and particu­lar uses often have been selectively targeted. See Prosser, Private Ac­tion for Public Nuisance, 52 Va. L. Rev. 997, 999-1000 (1966); J. Stephen, A General View of the Criminal Law of England 105-107 (2d ed. 1890). The Court’s references to “common-law” background principles, however, indicate that legislative determinations do not constitute “state nuisance and property law” for the Court.

16

Also, until today the fact that the regulation prohibited uses that were lawful at the time the owner purchased did not determine the constitu­tional question. The brewery, the brickyard, the cedar trees, and the gravel pit were all perfectly legitimate uses prior to the passage of the regulation. See Mugler v. Kansas, 123 U.S., at 654; Hadacheck v. Sebas­tian, 239 U.S. 394 (1915); Miller, 276 U.S., at 272; Goldblatt v. Hempstead, 369 U.S. 590 (1962). This Court explicitly acknowledged in Hadacheek that “[a] vested interest cannot be asserted against [the police power] be­cause of conditions once obtaining. To so hold would preclude develop­ment and fix a city forever in its primitive conditions.” 239 U.S., at 410 (citation omitted).

17

The Court argues that finding no taking when the legislature prohibits a harmful use, such as the Court did in Mugler and the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania Coal. See ante, at 1022-1023. Justice Holmes, the author of Pennsylvania Coal, joined Miller v. Schoene, 276 U.S. 272 (1928), six years later. In Miller, the Court adopted the exact approach of the South Carolina court: It found the cedar trees harmful, and their destruction not a taking, whether or not they were a nuisance. Justice Holmes apparently believed that such an approach did not repudiate his earlier opinion. Moreover, this Court already has been over this ground five years ago, and at that point rejected the assertion that Pennsylvania Coal was inconsistent with Mugler, Hadacheck, Miller, or the others in the string of “noxious use” cases, recognizing instead that the nature of the State’s action is critical in takings analysis. Keystone Bituminous Coal, 480 U.S., at 490.

18

See also Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1192-1193 (1967); Sax, Takings and the Police Power, 74 Yale L. J. 36, 60 (1964).

19

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all people, and has been applied indiscriminately to everything from an alarm­ing advertisement to a cockroach baked in a pie.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts 616 (5th ed. 1984) (footnotes omitted). It is an area of law that “straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste.” W. Rodgers, Environmental Law § 2.4, p. 48 (1986) (footnotes omitted). The Court itself has noted that “nuisance concepts” are “often vague and indeterminate.” Milwaukee v. Illinois, 451 U.S. 304, 317 (1981).

20

See generally Sax, 74 Yale L. J., at 56-59. “The evidence certainly seems to indicate that the mere fact that government activity destroyed existing economic advantages and power did not disturb [the English theo­rists who formulated the compensation notion] at all.” Id., at 56. Profes­sor Sax contends that even Blackstone, “remembered champion of the lan­guage of private property,” did not believe that the Compensation Clause was meant to preserve economic value. Id., at 58-69.

21

In 1796, the attorney general of South Carolina responded to property holders’ demand for compensation when the State took their land to build a road by arguing that “there is not one instance on record, and certainly none within the memory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands.” Lindsay v. Commissioners, 2 S.C.L. 38, 49 (1796).

22

Only the Constitutions of Vermont and Massachusetts required that compensation be paid when private property was taken for public use; and although eminent domain was mentioned in the Pennsylvania Constitution, its sole requirement was that property not be taken without the consent of the legislature. See Grant, The "Higher Law” Background of the Law of Eminent Domain, in 2 Selected Essays on Constitutional Law 912, 916-916 (1938). By 1868, five of the original States still had no just compensa­tion clauses in their Constitutions. Ibid.

23

James Madison, author of the Takings Clause, apparently intended it to apply only to direct, physical takings of property by the Federal Gov­ernment. See Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 711 (1985). Professor Sax argues that although “contemporaneous commen­tary upon the meaning of the compensation clause is in very short supply,” 74 Yale L. J., at 58, the “few authorities that are available” indicate that the Clause was “designed to prevent arbitrary government action,” not to protect economic value. Id., at 58-60.

24

For this reason, the retroactive application of the regulation to for­merly lawful uses was not a controlling distinction in the past. “Nor can it make any difference that the right is purchased previous to the passage of the by-law,” for “[e]very right, from an absolute ownership in property, down to a mere easement, is purchased and holden subject to the restric­tion, that it shall be so exercised as not to injure others. Though, at the time, it be remote and inoffensive, the purchaser is bound to know, at his peril, that it may become otherwise.” Coates v. City of New York, 7 Cow. 585, 605 (N.Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538, 542 (N.Y. 1826); Commonwealth v. Tewksbury, 11 Metc. 55 (Mass. 1846); State v. Paul, 5 R. I. 185 (1858).

25

More recent state-court decisions agree. See, e.g., Lane v. Mt. Ver­non, 38 N.Y. 2d 344, 348-349, 342 N. E. 2d 571, 573 (1976); Commonwealth v. Baker, 160 Pa. Super. 640, 641-642, 53 A. 2d 829, 830 (1947).

26

The Court asserts that all early American experience, prior to and after passage of the Bill of Rights, and any case law prior to 1897 are “entirely irrelevant” in determining what is “the historical compact re­corded in the Takings Clause.” Ante, at 1028, and n. 15. Nor apparently are we to find this compact in the early federal takings cases, which clearly permitted prohibition of harmful uses despite the alleged loss of all value, whether or not the prohibition was a common-law nuisance, and whether or not the prohibition occurred subsequent to the purchase. See supra, at 1047-1048, 1052-1053, and n. 16. I cannot imagine where the Court finds its “historical compact,” if not in history.

Justice Stevens,

dissenting.

Today the Court restricts one judge-made rule and ex­pands another. In my opinion it errs on both counts. Proper application of the doctrine of judicial restraint would avoid the premature adjudication of an important constitu­tional question. Proper respect for our precedents would avoid an illogical expansion of the concept of “regulatory takings.”

I

As the Court notes, ante, at 1010-1011, South Carolina’s Beachfront Management Act has been amended to permit some construction of residences seaward of the line that frus­trated petitioner’s proposed use of his property. Until he ex­hausts his right to apply for a special permit under that amend­ment, petitioner is not entitled to an adjudication by this Court of the merits of his permanent takings claim. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 351 (1986).

It is also not clear that he has a viable “temporary tak­ings” claim. If we assume that petitioner is now able to build on the lot, the only injury that he may have suffered is the delay caused by the temporary existence of the absolute statutory ban on construction. We cannot be sure, however, that that delay caused petitioner any harm because the rec­ord does not tell us whether his building plans were even temporarily frustrated by the enactment of the statute.1 Thus, on the present record it is entirely possible that peti­tioner has suffered no injury in fact even if the state statute was unconstitutional when he filed this lawsuit.

It is true, as the Court notes, that the argument against deciding the constitutional issue in this case rests on pruden­tial considerations rather than a want of jurisdiction. I think it equally clear, however, that a Court less eager to decide the merits would follow the wise counsel of Justice Brandeis in his deservedly famous concurring opinion in Ashwander v. TVA, 297 U.S. 288, 341 (1936). As he ex­plained, the Court has developed “for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.” Id., at 346. The second of those rules applies directly to this case.

“2. The Court will not ‘anticipate a question of consti­tutional law in advance of the necessity of deciding it.’ Liverpool, N. Y. & P. S. S. Co. v. Emigration Commis­sioners, 113 U.S. 33, 39; [citing five additional cases]. ‘It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U.S. 283, 295.” Id., at 346-347.

Cavalierly dismissing the doctrine of judicial restraint, the Court today tersely announces that “we do not think it pru­dent to apply that prudential requirement here.” Ante, at 1013. I respectfully disagree and would save consideration of the merits for another day. Since, however, the Court has reached the merits, I shall do so as well.

II

In its analysis of the merits, the Court starts from the premise that this Court has adopted a “categorical rule that total regulatory takings must be compensated,” ante, at 1026, and then sets itself to the task of identifying the ex­ceptional cases in which a State may be relieved of this cate­gorical obligation, ante, at 1027-1029. The test the Court announces is that the regulation must “do no more than duplicate the result that could have been achieved” under a State’s nuisance law. Ante, at 1029. Under this test the categorical rule will apply unless the regulation merely makes explicit what was otherwise an implicit limitation on the owner’s property rights.

In my opinion, the Court is doubly in error. The categori­cal rule the Court establishes is an unsound and unwise addi­tion to the law and the Court’s formulation of the exception to that rule is too rigid and too narrow.

The Categorical Rule

As the Court recognizes, ante, at 1015, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), provides no support for its—or, indeed, any—categorical rule. To the contrary, Jus­tice Holmes recognized that such absolute rules ill fit the inquiry into “regulatory takings.” Thus, in the paragraph that contains his famous observation that a regulation may go “too far” and thereby constitute a taking, the Justice wrote: “As we already have said, this is a question of de­gree—and therefore cannot be disposed of by general propo­sitions.” Id., at 416. What he had “already ... said” made perfectly clear that Justice Holmes regarded economic injury to be merely one factor to be weighed: “One fact for consider­ation in determining such limits is the extent of the diminu­tion [of value.] So the question depends upon the particular facts.” Id., at 413.

Nor does the Court’s new categorical rule find support in decisions following Mahon. Although in dicta we have sometimes recited that a law “effects a taking if [it]... de­nies an owner economically viable use of his land,” Agins v. City of Tiburon, 447 U.S. 255, 260 (1980), our rulings have rejected such an absolute position. We have frequently—and recently—held that, in some circumstances, a law that renders property valueless may nonetheless not constitute a taking. See, e.g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 313 (1987); Goldblatt v. Hempstead, 369 U.S. 590, 596 (1962); United States v. Caltex, 344 U.S. 149, 155 (1952); Miller v. Schoene, 276 U.S. 272 (1928); Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915); Mugler v. Kansas, 123 U.S. 623, 657 (1887); cf. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011 (1984); Connolly v. Pension Benefit Guaranty Corporation, 475 U.S. 211, 225 (1986). In short, as we stated in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 490 (1987), “‘Although a comparison of values before and after’ a regulatory action ‘is relevant, ... it is by no means conclusive.’”

In addition to lacking support in past decisions, the Court’s new rule is wholly arbitrary. A landowner whose property is diminished in value 95% recovers nothing, while an owner whose property is diminished 100% recovers the land’s full value. The case at hand illustrates this arbitrariness well. The Beachfront Management Act not only prohibited the building of new dwellings in certain areas, it also prohibited the rebuilding of houses that were “destroyed beyond repair by natural causes or by fire.” 1988 S.C. Acts 634, § 3; see also Esposito v. South Carolina Coastal Council, 939 F. 2d 165, 167 (CA4 1991).2 Thus, if the homes adjacent to Lucas’ lot were destroyed by a hurricane one day after the Act took effect, the owners would not be able to rebuild, nor would they be assured recovery. Under the Court’s categorical ap­proach, Lucas (who has lost the opportunity to build) recov­ers, while his neighbors (who have lost both the opportunity to build and their homes) do not recover. The arbitrariness of such a rule is palpable.

Moreover, because of the elastic nature of property rights, the Court’s new rule will also prove unsound in practice. In response to the rule, courts may define “property” broadly and only rarely find regulations to effect total takings. This is the approach the Court itself adopts in its revisionist read­ing of venerable precedents. We are told that—notwith­standing the Court’s findings to the contrary in each case—the brewery in Mugler, the brickyard in Hadacheck, and the gravel pit in Goldblatt all could be put to “other uses” and that, therefore, those cases did not involve total regulatory takings.3 Ante, at 1026, n. 13.

On the other hand, developers and investors may market specialized estates to take advantage of the Court’s new rule. The smaller the estate, the more likely that a regulatory change will effect a total taking. Thus, an investor may, for example, purchase the right to build a multifamily home on a specific lot, with the result that a zoning regulation that allows only single-family homes would render the investor’s property interest “valueless.”4 In short, the categorical rule will likely have one of two effects: Either courts will alter the definition of the “denominator” in the takings “frac­tion,” rendering the Court’s categorical rule meaningless, or investors will manipulate the relevant property interests, giving the Court’s rule sweeping effect. To my mind, nei­ther of these results is desirable or appropriate, and both are distortions of our takings jurisprudence.

Finally, the Court’s justification for its new categorical rule is remarkably thin. The Court mentions in passing three arguments in support of its rule; none is convincing. First, the Court suggests that “total deprivation of feasible use is, from the landowner’s point of view, the equivalent of a physical appropriation.” Ante, at 1017. This argument proves too much. From the “landowner’s point of view,” a regulation that diminishes a lot’s value by 50% is as well “the equivalent” of the condemnation of half of the lot. Yet, it is well established that a 50% diminution in value does not by itself constitute a taking. See Euclid v. Ambler Realty Co., 272 U.S. 365, 384 (1926) (75% diminution in value). Thus, the landowner’s perception of the regulation cannot justify the Court’s new rule.

Second, the Court emphasizes that because total takings are “relatively rare” its new rule will not adversely affect the government’s ability to “go on.” Ante, at 1018. This argument proves too little. Certainly it is true that defining a small class of regulations that are per se takings will not greatly hinder important governmental functions—but this is true of any small class of regulations. The Court’s sug­gestion only begs the question of why regulations of this particular class should always be found to effect takings.

Finally, the Court suggests that “regulations that leave the owner . . . without economically beneficial . . . use . . . carry with them a heightened risk that private property is being pressed into some form of public service.” Ibid. As discussed more fully below, see Part III, infra, I agree that the risks of such singling out are of central concern in takings law. However, such risks do not justify a per se rule for total regulatory takings. There is no necessary correla­tion between “singling out” and total takings: A regulation may single out a property owner without depriving him of all of his property, see, e.g., Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987); J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 432 A. 2d 12 (1981); and it may deprive him of all of his property without singling him out, see, e.g., Mugler v. Kansas, 123 U.S. 623 (1887); Hadacheck v. Sebastian, 239 U.S. 394 (1915). What matters in such cases is not the degree of diminution of value, but rather the specificity of the expropriating act. For this reason, the Court’s third justification for its new rule also fails.

In short, the Court’s new rule is unsupported by prior de­cisions, arbitrary and unsound in practice, and theoretically unjustified. In my opinion, a categorical rule as important as the one established by the Court today should be sup­ported by more history or more reason than has yet been provided.

The Nuisance Exception

Like many bright-line rules, the categorical rule estab­lished in this case is only “categorical” for a page or two in the U. S. Reports. No sooner does the Court state that “total regulatory takings must be compensated,” ante, at 1026, than it quickly establishes an exception to that rule.

The exception provides that a regulation that renders property valueless is not a taking if it prohibits uses of prop­erty that were not “previously permissible under relevant property and nuisance principles.” Ante, at 1029-1030. The Court thus rejects the basic holding in Mugler v. Kan­sas, 123 U.S. 623 (1887). There we held that a statewide statute that prohibited the owner of a brewery from making alcoholic beverages did not effect a taking, even though the use of the property had been perfectly lawful and caused no public harm before the statute was enacted. We squarely rejected the rule the Court adopts today:

“It is true, that, when the defendants . .. 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 an obliga­tion, that its legislation upon that subject would remain unchanged. [T]he 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 require;’ .. . ‘for this purpose, the largest legislative discretion is allowed, and the dis­cretion cannot be parted with any more than the power itself.’” Id., at 669.

Under our reasoning in Mugler, a State’s decision to pro­hibit or to regulate certain uses of property is not a compensable taking just because the particular uses were previously lawful. Under the Court’s opinion today, however, if a State should decide to prohibit the manufacture of asbestos, ciga­rettes, or concealable firearms, for example, it must be pre­pared to pay for the adverse economic consequences of its decision. One must wonder if government will be able to “go on” effectively if it must risk compensation “for every such change in the general law.” Mahon, 260 U.S., at 413.

The Court’s holding today effectively freezes the State’s common law, denying the legislature much of its traditional power to revise the law governing the rights and uses of property. Until today, I had thought that we had long aban­doned this approach to constitutional law. More than a cen­tury ago we recognized that “the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.” Munn v. Illinois, 94 U.S. 113, 134 (1877). As Justice Mar­shall observed about a position similar to that adopted by the Court today:

“If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U.S. 45 (1905), when common-law rights were also found immune from revi­sion by State or Federal Government. Such an ap­proach would freeze the common law as it has been con­structed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result.” PruneYard Shopping Center v. Robins, 447 U.S. 74, 93 (1980) (con­curring opinion).

Arresting the development of the common law is not only a departure from our prior decisions; it is also profoundly unwise. The human condition is one of constant learning and evolution—both moral and practical. Legislatures im­plement that new learning; in doing so they must often re­vise the definition of property and the rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated the emancipation of all slaves, it, in effect, redefined “property.” On a lesser scale, our ongoing self-education produces similar changes in the rights of property owners: New appreciation of the significance of endangered species, see, e.g., Andrus v. Al­lard, 444 U.S. 51 (1979); the importance of wetlands, see, e.g., 16 U.S.C. § 3801 et seq.; and the vulnerability of coastal lands, see, e.g., 16 U.S.C. § 1451 et seq., shapes our evolving understandings of property rights.

Of course, some legislative redefinitions of property will effect a taking and must be compensated—but it certainly cannot be the case that every movement away from common law does so. There is no reason, and less sense, in such an absolute rule. We live in a world in which changes in the economy and the environment occur with increasing fre­quency and importance. If it was wise a century ago to allow government “‘the largest legislative discretion’” to deal with “‘the special exigencies of the moment,”’ Mugler, 123 U.S., at 669, it is imperative to do so today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.5

The Court’s categorical approach rule will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and en­vironmental regulation. As this case—in which the claims of an individual property owner exceed $1 million—well demonstrates, these officials face both substantial uncer­tainty because of the ad hoc nature of takings law and unac­ceptable penalties if they guess incorrectly about that law.6

Viewed more broadly, the Court’s new rule and exception conflict with the very character of our takings jurisprudence. We have frequently and consistently recognized that the definition of a taking cannot be reduced to a “set formula” and that determining whether a regulation is a taking is “essentially [an] ad hoc, factual inquir[y].” Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978) (quoting Goldblatt v. Hempstead, 369 U.S., at 594). This is unavoidable, for the determination whether a law ef­fects a taking is ultimately a matter of “fairness and justice,” Armstrong v. United States, 364 U.S. 40, 49 (1960), and “nec­essarily requires a weighing of private and public interests,” Agins, 447 U.S., at 261. The rigid rules fixed by the Court today clash with this enterprise: “fairness and justice” are often disserved by categorical rules.

III

It is well established that a takings case “entails inquiry into [several factors:] the character of the governmental action, its economic impact, and its interference with rea­sonable investment-backed expectations.” PruneYard, 447 U.S., at 83. The Court’s analysis today focuses on the last two of these three factors: The categorical rule addresses a regulation’s “economic impact,” while the nuisance exception recognizes that ownership brings with it only certain “expec­tations.” Neglected by the Court today is the first and, in some ways, the most important factor in takings analysis: the character of the regulatory action.

The Just Compensation Clause “was 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, 364 U.S., at 49. Ac­cordingly, one of the central concerns of our takings ju­risprudence is “prevent[ing] the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). We have, therefore, in our takings law frequently looked to the generality of a regula­tion of property.7

For example, in the case of so-called “developmental exactions,” we have paid special attention to the risk that partic­ular landowners might “b[e] singled out to bear the burden” of a broader problem not of his own making. Nollan, 483 U.S., at 835, n. 4; see also Pennell v. San Jose, 485 U.S. 1, 23 (1988). Similarly, in distinguishing between the Kohler Act (at issue in Mahon) and the Subsidence Act (at issue in Keystone), we found significant that the regulatory function of the latter was substantially broader. Unlike the Kohler Act, which simply transferred back to the surface owners certain rights that they had earlier sold to the coal compa­nies, the Subsidence Act affected all surface owners—includ­ing the coal companies—equally. See Keystone, 480 U.S., at 486. Perhaps the most familiar application of this princi­ple of generality arises in zoning cases. A diminution in value caused by a zoning regulation is far less likely to con­stitute a taking if it is part of a general and comprehensive land-use plan, see Euclid v. Amber Realty Co., 272 U.S. 365 (1926); conversely, “spot zoning” is far more likely to consti­tute a taking, see Penn Central, 438 U.S., at 132, and n. 28.

The presumption that a permanent physical occupation, no matter how slight, effects a taking is wholly consistent with this principle. A physical taking entails a certain amount of “singling out.”8 Consistent with this principle, physical occupations by third parties are more likely to effect takings than other physical occupations. Thus, a regulation requir­ing the installation of a junction box owned by a third party, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), is more troubling than a regulation requiring the installation of sprinklers or smoke detectors; just as an order granting third parties access to a marina, Kaiser Aetna v. United States, 444 U.S. 164 (1979), is more troubling than an order requiring the placement of safety buoys in the marina.

In analyzing takings claims, courts have long recognized the difference between a regulation that targets one or two parcels of land and a regulation that enforces a statewide policy. See, e.g., A. A. Profiles, Inc. v. Ft. Lauderdale, 850 F. 2d 1483, 1488 (CA11 1988); Wheeler v. Pleasant Grove, 664 F. 2d 99, 100 (CA5 1981); Trustees Under Will of Pomeroy v. Westlake, 357 So. 2d 1299, 1304 (La. App. 1978); see also Burrows v. Keene, 121 N. H. 590, 596, 432 A. 2d 15, 21 (1981); Herman Glick Realty Co. v. St. Louis County, 545 S. W. 2d 320, 324-325 (Mo. App. 1976); Huttig v. Richmond Heights, 372 S. W. 2d 833, 842-843 (Mo. 1963). As one early court stated with regard to a waterfront regulation, “If such re­straint were in fact imposed upon the estate of one proprie­tor only, out of several estates on the same line of shore, the objection would be much more formidable.” Common­wealth v. Alger, 61 Mass. 63, 102 (1851).

In considering Lucas’ claim, the generality of the Beach­front Management Act is significant. The Act does not tar­get particular landowners, but rather regulates the use of the coastline of the entire State. See S.C. Code Ann. § 48-­39-10 (Supp. 1990). Indeed, South Carolina’s Act is best un­derstood as part of a national effort to protect the coastline, one initiated by the federal Coastal Zone Management Act of 1972. Pub. L. 92-583, 86 Stat. 1280, codified as amended at 16 U.S.C. § 1451 et seq. Pursuant to the federal Act, every coastal State has implemented coastline regulations.9 Moreover, the Act did not single out owners of undeveloped land. The Act also prohibited owners of developed land from rebuilding if their structures were destroyed, see 1988 S.C. Acts 634, § 3,10 and what is equally significant, from repairing erosion control devices, such as seawalls, see S.C. Code Ann. § 48-39-290(B)(2) (Supp. 1990). In addition, in some situations, owners of developed land were required to “renouris[h] the beach ... on a yearly basis with an amount ... of sand . . . not.. . less than one and one-half times the yearly volume of sand lost due to erosion.” 1988 S.C. Acts 634, § 3, p. 5140.11 In short, the South Carolina Act imposed substantial burdens on owners of developed and undeveloped land alike.12 This generality indicates that the Act is not an effort to expropriate owners of undeveloped land.

Admittedly, the economic impact of this regulation is dra­matic and petitioner's investment-backed expectations are substantial. Yet, if anything, the costs to and expectations of the owners of developed land are even greater: I doubt, however, that the cost to owners of developed land of renour­ishing the beach and allowing their seawalls to deteriorate effects a taking. The costs imposed on the owners of unde­veloped land, such as petitioner, differ from these costs only in degree, not in kind.

The impact of the ban on developmental uses must also be viewed in light of the purposes of the Act. The legislature stated the purposes of the Act as “protect[ing], preserv[ing], restor[ing] and enhanc[ing] the beach/dune system” of the State not only for recreational and ecological purposes, but also to “protec[t] life and property.” S.C. Code Ann. § 48-­39-260(l)(a) (Supp. 1990). The State, with much science on its side, believes that the “beach/dune system [acts] as a buffer from high tides, storm surge, [and] hurricanes.” Ibid. This is a traditional and important exercise of the State’s police power, as demonstrated by Hurricane Hugo, which in 1989, caused 29 deaths and more than $6 billion in property damage in South Carolina alone.13

In view of all of these factors, even assuming that petition­er’s property was rendered valueless, the risk inherent in investments of the sort made by petitioner, the generality of the Act, and the compelling purpose motivating the South Carolina Legislature persuade me that the Act did not effect a taking of petitioner’s property.

Accordingly, I respectfully dissent.

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.

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.

The imprudence of proceeding to the merits in spite of these unpromising circumstances is underscored by the fact that, in doing so, the Court cannot help but assume some­thing about the scope of the uncertain concept of total depri­vation, even when it is barred from explicating total dep­rivation directly. Thus, when the Court concludes that the application of nuisance law provides an exception to the gen­eral rule that complete denial of economically beneficial use of property amounts to a compensable taking, the Court will be understood to suggest (if it does not assume) that there are in fact circumstances in which state-law nuisance abate­ment may amount to a denial of all beneficial land use as that concept is to be employed in our takings jurisprudence under the Fifth and Fourteenth Amendments. The nature of nui­sance law, however, indicates that application of a regulation defensible on grounds of nuisance prevention or abatement will quite probably not amount to a complete deprivation in fact. The nuisance enquiry focuses on conduct, not on the character of the property on which that conduct is per­formed, see 4 Restatement (Second) of Torts § 821B (1979) (public nuisance); id., § 822 (private nuisance), and the reme­dies for such conduct usually leave the property owner with other reasonable uses of his property, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 90 (5th ed. 1984) (public nuisances usually reme­died by criminal prosecution or abatement), id., § 89 (private nuisances usually remedied by damages, injunction, or abate­ment); see also, e.g., Mugler v. Kansas, 128 U.S. 623, 668-­669 (1887) (prohibition on use of property to manufacture intoxicating beverages “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 ... for certain forbidden purposes, is prejudicial to the public interests”); Hadacheck v. Sebastian, 239 U.S. 394, 412 (1915) (prohibition on operation of brick­yard did not prohibit extraction of clay from which bricks were produced). Indeed, it is difficult to imagine property that can be used only to create a nuisance, such that its sole economic value must presuppose the right to occupy it for such seriously noxious activity.

The upshot is that the issue of what constitutes a total deprivation is being addressed by indirection, and with un­certain results, in the Court’s treatment of defenses to com­pensation claims. While the issue of what constitutes total deprivation deserves the Court’s attention, as does the rela­tionship between nuisance abatement and such total depri­vation, the Court should confront these matters directly. Be­cause it can neither do so in this case, nor skip over those preliminary issues and deal independently with defenses to the Court’s categorical compensation rule, the Court should dismiss the instant writ and await an opportunity to face the total deprivation question squarely. Under these circum­stances, I believe it proper for me to vote to dismiss the writ, despite the Court’s contrary preference. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 755 (1984) (Burger, C. J.); United States v. Shannon, 342 U.S. 288, 294 (1952) (Frankfurter, J.).

1

In this regard, it is noteworthy that petitioner acquired the lot about 18 months before the statute was passed; there is no evidence that he ever sought a building permit from the local authorities.

2

This aspect of the Act was amended in 1990. See S.C. Code Ann. § 48-39-290(B) (Supp. 1990).

3

Of course, the same could easily be said in this case: Lucas may put his land to “other uses”—fishing or camping, for example—or may sell his land to his neighbors as a buffer. In either event, his land is far from “valueless.”

This highlights a fundamental weakness in the Court’s analysis: its fail­ure to explain why only the impairment of “economically beneficial or productive use,” ante, at 1015 (emphasis added), of property is relevant in takings analysis. I should think that a regulation arbitrarily prohibiting an owner from continuing to use her property for bird watching or sun­bathing might constitute a taking under some circumstances; and, con­versely, that such uses are of value to the owner. Yet the Court offers no basis for its assumption that the only uses of property cognizable under the Constitution are developmental uses.

4

This unfortunate possibility is created by the Court’s subtle revision of the “total regulatory takings” dicta. In past decisions, we have stated that a regulation effects a taking if it “denies an owner economically viable use of his land,” Agins v. City of Tiburon, 447 U.S. 255, 260 (1980) (em­phasis added), indicating that this “total takings” test did not apply to other estates. Today, however, the Court suggests that a regulation may effect a total taking of any real property interest. See ante, at 1016-­1017, n. 7.

5

Even measured in terms of efficiency, the Court’s rule is unsound. The Court today effectively establishes a form of insurance against certain changes in land-use regulations. Like other forms of insurance, the Court’s rule creates a “moral hazard” and inefficiencies: In the face of uncertainty about changes in the law, developers will overinvest, safe in the knowledge that if the law changes adversely, they will be entitled to compensation. See generally Farber, Economic Analysis and Just Com­pensation, 12 Int’l Rev. of Law & Econ. 125 (1992).

6

As the Court correctly notes, in regulatory takings, unlike physical takings, courts have a choice of remedies. See ante, at 1030, n. 17. They may “invalidat[e the] excessive regulation” or they may “allo[w] the regu­lation to stand and orde[r] the government to afford compensation for the permanent taking.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 335 (1987) (Stevens, J., dissenting); see also id., at 319-321. In either event, however, the costs to the government are likely to be substantial and are therefore likely to impede the development of sound land-use policy.

7

This principle of generality is well rooted in our broader understand­ings of the Constitution as designed in part to control the “mischiefs of faction.” See The Federalist No. 10, p. 43 (G. Wills ed. 1982) (J. Madison).

An analogous concern arises in First Amendment law. There we have recognized that an individual's rights are not violated when his religious practices are prohibited under a neutral law of general applicability. For example, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 879-880 (1990), we observed:

“[Our] decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’ United States v. Lee, 455 U.S. 252, 263, n. 3 (1982) (Stevens, J., concurring in judgment).... In Prince v. Massachusetts, 321 U.S. 158 (1944), we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in ‘excluding [these children] from doing there what no other children may do.’ Id., at 171. In Braunfeld v. Brown, 366 U.S. 599 (1961) (plurality opinion), we upheld Sunday-closing laws against the claim that they burdened the reli­gious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U.S. 437, 461 (1971), we sustained the military Selective Service System against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds.”

If such a neutral law of general applicability may severely burden consti­tutionally protected interests in liberty, a comparable burden on property owners should not be considered unreasonably onerous.

8

See Levmore, Takings, Torts, and Special Interests, 77 Va. L. Rev. 1333, 1352-1354 (1991).

9

See Zalkin, Shifting Sands and Shifting Doctrines: The Supreme Court’s Changing Takings Doctrine and South Carolina’s Coastal Zone Statute, 79 Calif L. Rev. 205, 216-217, nn. 46-47 (1991) (collecting statutes).

10

This provision was amended in 1990. See S.C. Code Ann. § 48-39-­290(B) (Supp. 1990).

11

This provision was amended in 1990; authority for renourishment was shifted to local governments. See S.C. Code Ann. § 48-39-350(A) (Supp. 1990).

12

In this regard, the Act more closely resembles the Subsidence Act in Keystone than the Kohler Act in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), and more closely resembles the general zoning scheme in Euclid v. Amber Realty Co., 272 U.S. 365 (1926), than the specific land­mark designation in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).

13

Zalkin, 79 Calif L. Rev., at 212-213.