JUSTICE HASSELL

delivered the opinion of the Court.

In this appeal, we consider whether certain provisions in a county’s subdivision ordinance violate the Dillon Rule.

*500The facts relevant to our disposition of this appeal are not in dispute. Countryside Investment Company, L.C. (Countryside Investment), is the contract purchaser of a parcel of land consisting of approximately 140 acres located in Augusta County. The parcel was given an R-10 residential zoning classification under the Augusta County Zoning Ordinance in effect in 1973. This ordinance, which established minimum lot size and minimum floor space requirements, provided for a minimum lot area of 9,000 square feet for property having an R-10 zoning classification.

In 1995, the Augusta County Board of Supervisors enacted a new zoning ordinance which prescribed a minimum lot area requirement of 12,000 square feet. Pursuant to the terms of the new ordinance, the parcel at issue in this appeal enjoyed the benefit of a “grandfather” clause which retained the minimum lot area requirement of 9,000 square feet for lots which might be subdivided within the parcel until the year 2006.

In September 1997, Countryside Investment submitted to the Augusta County Department of Community Development a master plan for a proposed subdivision of the parcel which would contain approximately 427 residential lots. The Department reviewed the master plan and concluded that the plan complied with the technical requirements of the County’s Subdivision Ordinance. The Augusta County Planning Commission reviewed the master plan and unanimously recommended approval by the Board of Supervisors.

The Board discussed the master plan during several meetings. The Board also considered comments from the public and evidence about the impact that the proposed subdivision would have upon the County’s water and sewer capacity, public school division, transportation capacities, drainage, and adjacent neighborhoods.

At a meeting in November 1997, the Board tentatively denied approval of the master plan. The Board enumerated several reasons for its tentative denial: (1) “a subdivision of this size located in an area that is predominantly rural in character should, consistent with good planning practice, anticipate, account for and accommodate some of the needs for non-residential community-type facilities [such as] . . . sites for religious institutions, passive and active recreational facilities, and day-care centers”; (2) “the overall density” of the subdivision and “its potential significant impact on public facilities and public utilities in the northern sector of Augusta County, should not exceed a figure of about two residences per acre, or approximately 270 single-family residences for the entire tract”; (3) some of the *501property may not be suitable for residential development and; the “current proposal to construct 427 residences . . . would result in an increase in population that cannot be readily accommodated by the existing public facilities and utilities serving [that] area.”

The Board, in an attempt to modify the master plan, recommended that Countryside Development: increase the size of the residential lots; create a “number of large lots of varying sizes suitable for the construction of community-type facilities such as churches, nursery schools, and/or day care centers”; set aside portions of the property “which are least suitable for development as open space designed to preserve natural areas where the residents can engage in passive and active leisure and recreational activities”; and devote “more space, if necessary, to adequately deal with storm water drainage and detention.”

Countryside Investment initiated this proceeding against the Board and Augusta County (collectively the Board) in the circuit court pursuant to Code § 15.2-2260, seeking judicial review of the Board’s disapproval of the preliminary master plan. The Board filed responsive pleadings, the parties stipulated certain evidence, and the circuit court conducted an ore terms hearing.

The circuit court ruled, among other things, that §§21-6 and -7 of the Augusta County Subdivision Ordinance, upon which the Board relied when it tentatively denied the master plan, violated the Dillon Rule because those sections were not authorized by the enabling legislation in Code §§ 15.2-2241 and -2242. The court entered a decree which ordered approval of the master plan, and enjoined the Board from taking any action inconsistent with the decree. The Board appeals.

Code § 15.2-2240, which is a part of the Virginia Land Subdivision and Development Act, states that “[t]he governing body of every locality shall adopt an ordinance to assure the orderly subdivision of land and its development.”1 Code § 15.2-2241, which prescribes the mandatory provisions which must be included in a subdivision ordinance enacted by a governing body, states in relevant part:

“A subdivision ordinance shall include reasonable regulations and provisions that apply to or provide:

*502“3. For adequate provisions for drainage and flood control and other public purposes, and for light and air, and for identifying soil characteristics; . . . .”

The Board, purportedly relying upon Code § 15.2-2241, enacted the Augusta County Subdivision Ordinance which contained the following provisions pertinent to our resolution of this appeal:

Ҥ 21-6.

“A. All lots shall be of sufficient size, shape and dimension to meet all the [zoning] requirements of . . . this Code.

“B. Size and shape of all lots shall be subject to approval of the Board of Supervisors. In no case shall the area or dimensions be less than that required by Chapter 25 or by approved proffered conditions applicable to any zoning district.

Ҥ 21-7.

“If in the opinion of the Board of Supervisors any tract of land is unsuitable for subdivision, it shall not be subdivided. A tract shall be deemed unsuitable for subdivision if adequate provision cannot be made for any public purpose, including, but not limited to: drainage and flood control, protection of light and air, and the preservation of a rural environment which is also conducive to a diverse agricultural, industrial, commercial and residential economy.”

The Board argues that the circuit court erred by holding that §§21-6 and -7 of the Subdivision Ordinance are void because they violate the Dillon Rule. Continuing, the Board states that when “the General Assembly has delegated the state’s police power, the locality is not required to have specific authority for every provision in its ordinance. Considerable discretion is left to the local government in such matters.” The Board also asserts that even if specific authority for §§ 21-6 and -7 is necessary, such authority does exist. Responding, Countryside Investment asserts that even though the power of subdivision control is a delegation of the State’s police power to a local governing body, such authority is subject to statutorily prescribed limitations; §§ 21-6 and -7 of Augusta County Subdivision Ordinance exceed those limitations and, thus, violate the Dillon Rule. We agree with Countryside Investment.

We have held that the General Assembly, in providing for local control of land subdivision, delegated to each locality a portion of the police power of this Commonwealth. National Realty Corp. v. *503 City of Virginia Beach, 209 Va. 172, 174-75, 163 S.E.2d 154, 156 (1968); Bd. of Supervisors v. Georgetown Land Co., 204 Va. 380, 383, 131 S.E.2d 290, 292 (1963). However, we have also recognized that “[t]he power of a municipality, unlike that of the State legislature, must be exercised pursuant to an express grant.” National Realty Corp., 209 Va. at 175, 163 S.E.2d at 156; see also Bd. of Supervisors v. Reed’s Landing Corp., 250 Va. 397, 400, 463 S.E.2d 668, 669 (1995); Hylton Enterprises v. Bd. of Supervisors, 220 Va. 435, 440, 258 S.E.2d 577, 581 (1979).

We stated in City of Chesapeake v. Gardner Enterprises, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997), that

“[t]he Dillon Rule of strict construction controls our determination of the powers of local governing bodies. This rule provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable. Ticonderoga Farms v. County of Loudoun, 242 Va. 170, 173-74, 409 S.E.2d 446, 448 (1991); City of Richmond v. Confrere Club of Richmond, 239 Va. 77, 79, 387 S.E.2d 471, 473 (1990). When a local ordinance exceeds the scope of this authority, the ordinance is invalid. See City of Richmond, 239 Va. at 80, 387 S.E.2d at 473; Tabler v. Board of Supervisors, 221 Va. 200, 204, 269 S.E.2d 358, 361 (1980).”

We specifically discussed the application of the Dillon Rule to counties in Bd. of Supervisors v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975):

“In Virginia the powers of boards of supervisors are fixed by statute and are limited to those conferred expressly or by necessary implication. Gordon v. Fairfax County, 207 Va. 827, 832, 153 S.E.2d 270, 274 (1967); Johnson v. Goochland County, 206 Va. 235, 237, 142 S.E.2d 501, 502 (1965). This rule is a corollary to Dillon’s Rule that municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable. City of Richmond v. County Board, 199 Va. 679, 684-85, 101 S.E.2d 641, 644-45 (1958).”

*504In National Realty Corp., supra, we considered whether an ordinance which imposed a fee for the examination and approval of final subdivision plats and made payment of the fee a prerequisite to the recording of the plat by the clerk of the circuit court contravened the Virginia Land Subdivision and Development Act. In National Realty Corp., we acknowledged, as we recognize here, that the General Assembly, in providing for local control of land subdivision, delegated a portion of its police power to local governing bodies. Provisions in a local subdivision ordinance, however, must derive power from an authorization from the General Assembly. 209 Va. at 177, 163 S.E.2d at 157-58. Since the local governing body was not empowered to impose the fee, we held the ordinance invalid. Id., 163 S.E.2d at 158.

We hold that §§ 21-6 and -7 of the County’s Subdivision Ordinance are void because the General Assembly did not authorize the Board to enact the challenged requirements in a subdivision ordinance. Neither Code § 15.2-2241, which prescribes the mandatory provisions which must be included in a subdivision ordinance, nor Code § 15.2-2242, which prescribes optional provisions that may be included in a subdivision ordinance, authorizes a governing body to enact provisions in a subdivision ordinance which specify the size and shapes of lots to be subdivided. Additionally, neither Code § 15.2-2241 nor -2242 authorizes a governing body to prohibit a subdivision of property if the proposed subdivision is not conducive to the preservation of a rural environment.2

The Board asserts that it has considerable discretion when deciding what to include in a subdivision ordinance. We disagree. As we have already stated, pursuant to the strict construction required by the Dillon Rule, the Board does not have unfettered discretion when deciding what matters it may include in its subdivision ordinance. Rather, the Board must include those requisites which are mandated in Code § 15.2-2241 and may, at the Board’s discretion, include the optional provisions of a subdivision ordinance contained in Code § 15.2-2242. Additionally, the Board is entitled to exercise discretion only to the extent permitted by Code §§ 15.2-2241 and -2242. See Helmick v. Town of Warrenton, 254 Va. 225, 232-33, 492 S.E.2d 113, 117 (1997). The Board is not, however, permitted to *505ignore the requisites contained in Code §§ 15.2-2241 and -2242 and, under the guise of a subdivision ordinance, enact standards which would effectively permit it to rezone property in a manner inconsistent with the uses permitted by the property’s zoning classification.

We find no merit in the Board’s argument that Code § 15.2-2200 authorizes the challenged provisions in the County’s Subdivision Ordinance. Code § 15.2-2200 states:

“This chapter is intended to encourage localities to improve the public health, safety, convenience and welfare of its citizens and to plan for the fiiture development of communities to the end that transportation systems be carefully planned; that new community centers be developed with adequate highway, utility, health, educational, and recreational facilities; that the need for mineral resources and the needs of agriculture, industry and business be recognized in future growth; that residential areas be provided with healthy surroundings for family life; that agricultural and forestal land be preserved; and that the growth of the community be consonant with the efficient and economical use of public funds.”

This statute, a general declaration of the General Assembly’s intent for Chapter 22 of Title 15.2 concerning planning, subdivision of land, and zoning, does not confer upon the Board the power to enact a subdivision ordinance which is more expansive than the enumerated requisites contained in Code §§ 15.2-2241 and -2242.

In view of the foregoing, we do not consider the Board’s remaining assignments of error or Countryside Investment’s assignments of cross-error. Accordingly, we will affirm the decree of the circuit court.

Affirmed.

ROBERTSON, Judge.

Section 89.060, RSMo 1994, permits thirty percent of the landowners affected by a zoning change to file a petition protesting the change to the legislative body of a municipality. In that event, the zoning ordinance does not take effect unless two-thirds of the members of the municipality’s legislative body vote in favor of the change. The City of Springfield, Missouri, a charter city, adopted charter section 11.18. The charter provision recognizes as valid a protest petition signed by ten percent of the affected landowners and requires that three-quarters of the members of the Springfield city council vote in favor of a change to override the protest petition. This case presents two issues: First, whether section 89.060 violates article VI, section 22 of the Missouri Constitution. Second, whether Springfield’s ordinance is valid given the constitutional requirement that charter cities may exercise only such powers as are “not limited or denied ... by statute. . . .” Mo. Const. art. VI, § 19(a).

The trial court found that the ordinance conflicted with section 89.060 and, thereby, violated section 19(a). Springfield appealed. We have jurisdiction. Art. V, § 3. The judgment of the trial court is affirmed.

I.

The parties stipulate the relevant facts.

Respondents Dorothy and Genevieve Hay-don asked the City to rezone a parcel of land to permit a bed and breakfast in an area previously zoned for single family residences. More than ten percent, but less than thirty percent, of the affected landowners opposed the zoning change and filed a petition with the city council before the council considered the zoning change request. When the zoning change did not receive a three-quarter’s majority, the council declared that the request for a change in zoning failed.

Respondents Lon and Debora Goff sought a change in zoning to permit a small motel in place of the ear wash or self-service storage units previously approved. Affected landowners filed a timely protest petition with the city council, which met the requirements of charter section 11.18, but not section 89.060. The council received the petition and voted 5-3 in favor of the change. Because the zoning change did not receive the three-quarter’s majority required by section 11.18 following the filing of a protest, the council declared the zoning-change request defeated.

*788Springfield filed a declaratory judgment action against the Goffs, seeking a declaration of the validity of section 11.18. The Goffs filed a motion for summary judgment. The trial court permitted the Haydons to intervene as defendants and entered judgment in favor of the Goffs and Haydons. The trial court’s order declared that section 11.18 of the Springfield charter conflicted with section 89.060 in violation of article VI, section 19(a). Springfield appealed.

II.

Section 89.060, RSMo 1994, relates to changes in zoning regulations and provides:

Such regulations, restrictions, and boundaries may from time to time be amended, supplemented, changed, modified or repealed. In case, however, of a protest against such change duly signed and acknowledged by the owners of thirty percent or more, either of the areas of the land (exclusive of streets and alleys) included in such proposed change or within an area determined by lines drawn parallel to and one hundred and eighty-five feet distant from the boundaries of the district proposed to be changed, such amendment shall not become effective except by the favorable vote of two-thirds of all the members of the legislative body of such municipality....

(Emphasis added.) Prior to 1988, section 89.060 required only ten percent of the affected landowners to sign a protest petition and required a three-quarter’s vote of the members of the municipal legislative body to override the protest. See § 89.060, RSMo 1986. Until 1988, Springfield, had no independent charter provision concerning zoning protest petitions. Instead, its charter reflected the language and requirements of section 89.060.

Following the 1988 amendments, Springfield initially adopted zoning protest petition requirements identical to those contained in the new section 89.060. However, on April 4, 1989, Springfield’s voters approved an amendment to the city’s charter, adopting section 11.18, which restored the right of ten percent of affected landowners to file a valid protest against a proposed zoning change, and required a three-quarter’s majority of the city council to override a valid protest petition and to approve a zoning change. Section 11.18 provides:

Notwithstanding any other law to the contrary, whenever a valid protest petition is filed in opposition to the rezoning of land, the zoning change shall not become effective except by the favorable vote of three fourths of all the members of the City Council. In order for a protest petition to be valid against the change, it shall be duly signed and acknowledged by the owners of ten percent or more, either of the areas of the land (exclusive of streets and alleys) included in such proposed change, or within an area determined by lines drawn parallel to and one hundred and eighty-five feet distant from the boundaries of the land proposed to be changed. In the event it is determined that this provision is invalid, then the city council shall have the authority to determine the percentage for a protest petition and to require more than a simple majority of the full council to rezone property when a valid protest petition is filed in opposition to the rezoning.

(Emphasis added.)

A.

Springfield first urges that section 89.060 violates article VI, section 22. That constitutional provision states: “No law shall be enacted creating or fixing the powers, duties or compensation of any municipal office or employment for any city ... adopting its own charter....” Springfield argues that any attempt by the legislature to establish procedures that cities must follow to effect zoning changes is “an attempt to define the powers of municipal officers.”

In State ex rel. Sprague v. City of St. Joseph, 549 S.W.2d 873, 879 (Mo. banc 1977), this Court struck down a statute, section 341.040, RSMo 1969, as applied to charter cities, that purported to create a board of plumbers, impose board duties upon the city’s chairman of the board of health, require the mayor to name and the council to approve two members of the board, set terms and compensation for board members, pre*789scribe duties of board members, and create the office of plumbing inspector. Sprague, 549 S.W.2d at 875. The Court determined that the provisions of the statute created and fixed the powers, duties and compensation of the municipal offices of plumbing examiner and plumbing inspector and that article VI, section 22, prohibited the General Assembly from applying that statute to charter cities.

In State ex rel. Burke v. Cervantes, 428 S.W.2d 791 (Mo. banc 1968), the Court considered the validity of statutes that purported to require the mayor of St. Louis, a charter city, to assume the additional duty of appointing a firemen’s arbitration board. The Court found that both statutes, as applied to constitutional charter cities, were unconstitutional and void because they imposed duties upon a municipal officer and created a municipal office.

The constitutional authority to cities to adopt and amend a charter, Mo. Const. art. VI, §§ 19-22, intends to grant cities broad authority to tailor a form of government that its citizens believe will best serve their interests. State ex rel. St. Louis Fire Fighters Ass’n. Local No. 73, AFL-CIO v. Stemmler, 479 S.W.2d 456, 458-59 (Mo. banc 1972). While the power of charter cities is not without boundaries — article VI, section 19(a), requires that charter city ordinances be consistent with the constitution and “not limited or denied” by state statutes — the General Assembly is expressly prohibited from dictating the types of municipal offices and employment charter cities must establish or the powers or compensation of officers and employees of charter cities. Art. VI, § 22.

Springfield argues that the General Assembly’s establishment of the majority by which the members of the city council must vote to approve a zoning change over a protest petition is tantamount to fixing the powers of a municipal office. We do not read section 22 so broadly. Instead, by its plain language, section 22 is limited to prohibiting the General Assembly from enacting state laws prescribing the individual offices of a charter city and the duties and compensation of the officers holding those offices. Section 22 applies only to individual offices. In other words, the General Assembly may not tell the officers of a charter city what they must do; it may, however, limit the powers a charter city may exercise through its officers. Consistent with this understanding of section 22, the constitution does not prohibit the legislature from establishing procedures by which charter cities may make substantive determinations regarding the uses of private property through zoning regulation.

Section 89.060 does not violate article VI, section 22. It neither creates a municipal office or employment, nor fixes the powers, duties or compensation of a municipal office or employment. Rather, section 89.060 places limitations upon the exercise of powers by the governing bodies of municipalities. The statute, a provision of the Missouri Zoning Enabling Act, section 89.010, et seq., RSMo 1994, requires legislative bodies to follow certain procedures for rezoning land in the face of a valid protest petition, i.e., one signed by thirty percent of affected landowners. Section 89.060 is constitutional.

B.

The second issue is whether the adoption of section 11.18 of Springfield’s charter purports to grant the city a power denied it by state statute in violation of article VI, section 19(a). A charter provision that conflicts with a state statute is void. State ex rel. Hannah v. City of St. Charles, 676 S.W.2d 508, 513 (Mo. banc 1984). A conflict exists where a charter “permits what the statute prohibits” or “prohibits what the statute permits.” Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 211 (Mo. banc 1986).

Sections 89.010 to 89.140 constitute the sole source of authority for cities in zoning matters. City of Moline Acres v. Heidbreder, 367 S.W.2d 568, 572 (Mo. banc 1963). Consequently, a city must conform to the terms of the state’s grant of authority when exercising its powers relating to zoning. McCarty v. City of Kansas City, 671 S.W.2d 790, 793 (Mo.App.1984). A city follows the terms of the grant of zoning authority by adhering to all of the procedures set forth in sections 89.050 to 89.070. State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030, 1032 (1930).

*790Section 89.060 permits a protest against a zoning change by the owners of “thirty percent or more” of the affected property. Section 11.18 reduces the statutory percentage to ten percent. Section 89.060 does not permit a protest by less than thirty percent of the owners.

Section 89.060 also requires that upon the filing of a valid protest petition a zoning change must be approved by two-thirds of a municipality’s legislative body. Section 11.18 requires a three-quarter’s super-majority of the Springfield city council to approve a zoning change over a protest petition. Section 89.060 does not permit approval by more than two-thirds of a legislative body.

In permitting protests by a lower percentage of owners and requiring a greater percentage of votes by members of the city council to override protests, section 11.18 allows what section 89.060 prohibits. Therefore, section 11.18 violates article VI, section 19(a) of the constitution. Section 11.18 is void.

III.

The judgment of the trial court is affirmed.

All concur.

OPINION OF THE COURT

Graffeo, J.

We are asked in these two appeals whether towns may ban oil and gas production activities, including hydrofracking, within municipal boundaries through the adoption of local zoning laws. We conclude that they may because the supersession clause in the statewide Oil, Gas and Solution Mining Law (OGSML) does not preempt the home rule authority vested in municipalities to regulate land use. The orders of the Appellate Division should therefore be affirmed.

L

Matter of Wallach v Town of Dryden

Respondent Town of Dryden is a rural community located in Tompkins County, New York. Land use in Dryden is governed by a comprehensive plan and zoning ordinance. The underlying goal of the comprehensive plan is to “[p] reserve the rural and small town character of the Town of Dryden, and the quality of life its residents enjoy, as the town continues to grow in the coming decades.” Despite the fact that oil and gas drilling has not historically been associated with Dryden, its location within the Marcellus Shale region has piqued the interest of the natural gas industry.

The Marcellus Shale formation covers a vast area across sections of a number of states, including New York, Pennsylvania, Ohio and West Virginia. Natural gas — primarily methane — is found in shale deposits buried thousands of feet below the surface and can be extracted through the combined use of horizontal drilling and hydrofracking. To access the natural gas, a well is drilled vertically to a location just above the target depth, at which point the well becomes a horizontal tunnel in order to maximize the number of pathways through which the gas may be removed. The process of hydraulic fracturing — commonly referred to as hydrofracking — can then commence. Hydrofracking involves the injection of large amounts of pressurized fluids (water and chemicals) to stimulate or fracture the shale formations, causing the release of the natural gas (see generally US *740Dept of Energy, Natural Gas from Shale: Questions and Answers [Apr. 2013], available at http://www.energy.gov/sites/prod/files/2013/04/f0/complete_brochure.pdf [accessed June 18, 2014]).1

In 2006, petitioner Norse Energy Corp. USA (Norse), through its predecessors, began acquiring oil and gas leases from landowners in Dryden for the purpose of exploring and developing natural gas resources.2 The Town Board took the position that gas extraction activities were prohibited in Dryden because such operations fell within the catch-all provision of its zoning ordinance that precluded any uses not specifically allowed. Nevertheless, the Town Board decided to engage in a “clarification” of the issue. After holding a public hearing and reviewing a number of relevant scientific studies, the Town Board unanimously voted to amend the zoning ordinance in August 2011 to specify that all oil and gas exploration, extraction and storage activities were not permitted in Dryden. The amendment also purported to invalidate any oil and gas permit issued by a state or federal agency. In adopting the amendment, the Town Board declared that the industrial use of land in the “rural environment of Dryden” for natural gas purposes “would endanger the health, safety and general welfare of the community through the deposit of toxins into the air, soil, water, environment, and in the bodies of residents.”

A month later, Norse commenced this hybrid CPLR article 78 proceeding and declaratory judgment action to challenge the validity of the zoning amendment. Norse asserted that Dryden lacked the authority to prohibit natural gas exploration and extraction activities because section 23-0303 (2) of the Environmental Conservation Law (ECL) — the supersession clause in the Oil, Gas and Solution Mining Law — demonstrated that the state legislature intended to preempt local zoning laws that curtailed energy production. In response, Dryden moved for summary judgment, seeking a declaration that the zoning amendment was a valid exercise of its home rule powers.

*741Supreme Court granted Dryden’s motion and declared the amendment valid with one exception — it struck down the provision invalidating state and federal permits (35 Misc 3d 450 [Sup Ct, Tompkins County 2012]). The Appellate Division affirmed, rejecting Norse’s claim that the OGSML preempted Dryden’s zoning amendment (108 AD3d 25 [3d Dept 2013]). We granted Norse leave to appeal (21 NY3d 863 [2013]).

Cooperstown Holstein Corporation v Town of Middlefield

Defendant Town of Middlefield, which includes a portion of the Village of Cooperstown, is located in Otsego County, New York, and its principal industries are agriculture and tourism. Its land use is regulated by a master plan and zoning ordinance. Similar to Dryden, there has been no oil or gas presence in Middlefield until 2007, when plaintiff Cooperstown Holstein Corporation (CHC) executed two leases with a landowner to explore the possibility of developing natural gas resources through hydrofracking.

Although the Town claimed that its zoning ordinance already prohibited natural gas exploration on the basis that it was not listed as a permissible land use, it undertook a lengthy and detailed review of the issue in 2011. After commissioning a study to weigh the impacts that hydrofracking would have on Middlefield and conducting public meetings, the Town Board, by a unanimous vote, amended its master plan to adopt a zoning provision classifying a range of heavy industrial uses, including oil, gas and solution mining and drilling, as prohibited uses. The Town Board reasoned that the “Cooperstown area is known worldwide for its clean air, clean water, farms, forests, hills, trout streams, scenic viewsheds, historic sites, quaint village and hamlets, rural lifestyle, recreational activities, sense of history, and history of landscape conservation,” and concluded that industrialization, such as hydrofracking, would “eliminate many of these features” and “irreversibly overwhelm the rural character of the Town.”

CHC promptly brought this action to set aside the zoning law, contending that it was preempted by the supersession provision in the OGSML. CHC and Middlefield each moved for summary judgment. Supreme Court denied CHC’s motion and granted Middlefield’s cross motion to dismiss the complaint, upholding the legality of the zoning law (35 Misc 3d 767 [Sup Ct, Otsego County 2012]). The Appellate Division affirmed (106 AD3d 1170 [3d Dept 2013]), and we granted CHC leave to appeal (21 NY3d 863 [2013]).

*742II

On appeal, Norse and CHC, supported by several amici curiae, press their contention that Dryden and Middlefield (collectively, the Towns) lacked the authority to proscribe hydrofracking and associated natural gas activities within their town boundaries. They assert that the energy policy of New York, as exemplified by the statewide OGSML, requires a uniform approach and cannot be subject to regulation by a melange of the state’s 932 towns. They maintain that the OGSML contains a supersession clause that expressly preempts all local zoning laws, like those enacted by the Towns, which restrict or forbid oil and gas operations on real property within a municipality. The Towns, joined by other amici curiae, respond that the courts below correctly concluded that they acted within their home rule authority in adopting the challenged local laws. They urge that the ability of localities to restrict the industrial use of land with the aims of preserving the characteristics of their communities and protecting the health, safety and general welfare of their citizens implicates the very essence of municipal governance. They further contend that, when analyzed under the principles set forth in our precedent, the OGSML and its supersession clause do not extinguish their zoning powers. Unlike our dissenting colleagues, we believe that the Towns have the better argument.

Our analysis begins with a review of the source of municipal authority to regulate land use and the limits the State may impose on this power. Article IX, the “home rule” provision of the New York Constitution, states that “every local government shall have power to adopt and amend local laws not inconsistent with the provisions of this constitution or any general law . . . except to the extent that the legislature shall restrict the adoption of such a local law” (NY Const, art IX, § 2 [c] [ii]). To implement this constitutional mandate, the state legislature enacted the Municipal Home Rule Law, which empowers local governments to pass laws both for the “protection and enhancement of [their] physical and visual environment” (Municipal Home Rule Law § 10 [1] [ii] [a] [11]) and for the “government, protection, order, conduct, safety, health and well-being of persons or property therein” (Municipal Home Rule Law § 10 [1] [ii] [a] [12]). The legislature likewise authorized towns to enact zoning laws for the purpose of fostering “the health, safety, morals, or the general welfare of the community” (Town Law §261; see also Statute of Local Governments § 10 [6] [granting *743towns “the power to adopt, amend and repeal zoning regulations”]). As a fundamental precept, the legislature has recognized that the local regulation of land use is “[a]mong the most important powers and duties granted ... to a town government” (Town Law § 272-a [1] [b]).

We, too, have designated the regulation of land use through the adoption of zoning ordinances as one of the core powers of local governance (see DJL Rest. Corp. v City of New York, 96 NY2d 91, 96 [2001]). Without question, municipalities may “enact land-use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of [the community]” (Trustees of Union Coll, in Town of Schenectady in State of N.Y. v Members of Schenectady City Council, 91 NY2d 161, 165 [1997] [internal quotation marks and citation omitted]). And we have repeatedly highlighted the breadth of a municipality’s zoning powers to “provide for the development of a balanced, cohesive community” in consideration of “regional needs and requirements” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 683 [1996]; see also Udell v Haas, 21 NY2d 463, 469 [1968] [“Underlying the entire concept of zoning is the assumption that zoning can be a vital tool for maintaining a civilized form of existence”]).

That being said, as a political subdivision of the State, a town may not enact ordinances that conflict with the State Constitution or any general law (see Municipal Home Rule Law § 10 [1] [i], [ii]). Under the preemption doctrine, a local law promulgated under a municipality’s home rule authority must yield to an inconsistent state law as a consequence of “the untrammeled primacy of the Legislature to act with respect to matters of State concern” (Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372, 377 [1989] [internal quotation marks, ellipses and citation omitted]). But we do not lightly presume preemption where the preeminent power of a locality to regulate land use is at stake. Rather, we will invalidate a zoning law only where there is a “clear expression of legislative intent to preempt local control over land use” (Gernatt, 87 NY2d at 682).

Aware of these principles, Norse and CHC do not dispute that, absent a state legislative directive to the contrary, municipalities would ordinarily possess the home rule authority to restrict the use of land for oil and gas activities in furtherance of local interests. They claim, however, that the state legislature has clearly expressed its intent to preempt zoning laws of local governments through the OGSML’s “supersession clause,” which reads:

*744“The provisions of this article [i.e., the OGSML] shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries-, but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law” (ECL 23-0303 [2] [emphasis added]).

According to Norse and CHC, this provision should be interpreted broadly to reach zoning laws that restrict, or, as presented here, prohibit oil and gas activities, including hydrofracking, within municipal boundaries.

We do not examine the preemptive sweep of this supersession clause on a blank slate. The scope of section 23-0303 (2) must be construed in light of our decision in Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]), which articulated the analytical framework to determine whether a supersession clause expressly preempts a local zoning law. There, we held that this question may be answered by considering three factors: (1) the plain language of the supersession clause; (2) the statutory scheme as a whole; and (3) the relevant legislative history. The goal of this three-part inquiry, as with any statutory interpretation analysis, is to discern the legislature’s intent.3 Before applying the tripartite test to the supersession clause at issue, it is necessary to discuss Frew Run in more detail as that precedent bears directly on the outcome of these cases.

At issue in Frew Run was the validity of the Town of Carroll’s zoning ordinance establishing a zoning district where sand and gravel operations were not permitted. A company seeking to open a sand and gravel mine in the town challenged the zoning law, arguing that it was preempted by the supersession clause in the statewide Mined Land Reclamation Law (MLRL), which, at the time, provided:

“For the purposes stated herein, this title shall supersede all other state and local laws relating to the extractive mining industry, provided, however, that nothing in this title shall be construed to *745prevent any local government from enacting local zoning ordinances or other local laws which impose stricter mined land reclamation standards or requirements than those found herein” (ECL 23-2703 [former (2)] [emphasis added]).

We rejected the mining company’s contention that the clause preempted the land use restriction, explaining that the plain language of the phrase “local laws relating to the extractive mining industry” did not encompass zoning provisions. Instead, we held that the zoning law “relates not to the extractive mining industry but to an entirely different subject matter and purpose . . . the use of land in the Town of Carroll” (Frew Run, 71 NY2d at 131 [internal quotation marks and citation omitted]). Drawing a distinction between local regulations addressing “the actual operation and process of mining” and zoning laws regulating land use generally, we concluded that only the former category was preempted by the MLRL’s supersession clause (id. at 133). In effect, local laws that purported to regulate the “how” of mining activities and operations were preempted whereas those limiting “where” mining could take place were not (see id. at 131).

We further determined that our plain language construction of the supersession clause in Frew Run was consistent with the MLRL as a whole and its legislative history — the second and third factors. We noted that the binary purposes of the MLRL were “to foster a healthy, growing mining industry” and to “aid in assuring that land damaged by mining operations is restored to a reasonably useful and attractive condition” (id. at 132 [internal quotation marks and citation omitted]), and that the legislative history reflected a goal of promoting the “mining industry by the adoption of standard and uniform restrictions and regulations to replace the existing patchwork system of local ordinances” (id. [internal quotation marks, brackets and citation omitted]). From the statutory scheme and legislative history, we discerned that the “sole purpose” of the supersession clause was to prevent localities from enacting ordinances “dealing with the actual operation and process of mining” because such laws would “frustrate the statutory purpose of encouraging mining through standardization of regulations pertaining to mining operations” (id. at 133). In contrast, zoning laws restricting the location of mining operations within a town fell outside the preemptive orbit of the clause because “nothing in the Mined Land Reclamation Law or its history *746. . . suggests that its reach was intended to be broader than necessary to preempt conflicting regulations dealing with mining operations and reclamation of mined lands” (id.).

Guided by these principles, we now apply Frew Run’s three-part inquiry to the OGSML’s supersession clause.

(1) Plain Language

The first factor in assessing whether a supersession provision preempts local control over land use requires us to examine the words of the clause itself. And because the text of a statutory provision “is the clearest indicator of legislative intent” (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660 [2006]), this factor is most important.

The operative text of the OGSML’s supersession clause is quite close to the provision we analyzed in Frew Run, preempting local laws “relating to the regulation of the oil, gas and solution mining industries” (ECL 23-0303 [2]; compare ECL 23-2703 [former (2)] [preempting local laws “relating to the extractive mining industry”]). Based on the similarities between the two state statutes, we decline the invitation of Norse and CHC to ascribe a broader meaning to the language used in the OGSML. To the contrary, the distinction we drew in Frew Run applies with equal force here, such that ECL 23-0303 (2) is most naturally read as preempting only local laws that purport to regulate the actual operations of oil and gas activities, not zoning ordinances that restrict or prohibit certain land uses within town boundaries. Plainly, the zoning laws in these cases are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries. Although the zoning laws will undeniably have an impact on oil and gas enterprises, as in Frew Run, “this incidental control resulting from the municipality’s exercise of its right to regulate land use through zoning is not the type of regulatory enactment relating to the [oil, gas and solution mining industries] which the Legislature could have envisioned as being within the prohibition of the statute” (Frew Run, 71 NY2d at 131).

Nevertheless, Norse and CHC, relying on the secondary clause in the OGSML’s supersession provision — preserving “local government jurisdiction over local roads or the rights of local governments under the real property tax law” (ECL 23-0303 [2]) — contend that the operative text cannot be limited to local laws that purport to regulate the actual operations of oil and *747gas companies. They submit that the secondary clause’s exemption of local jurisdiction over roads and taxes makes sense only if the preemptive span of the operative text is broader than we have allowed because roads and taxes are not associated with “operations.” Consequently, they argue that there would have been no need for the legislature to exclude them from the operative language if supersession was limited to local laws aimed at oil and gas operations.

We find this textual argument misplaced because local regulation of roads and taxes can fairly be characterized as touching on the operations of the oil and gas industries and would have been preempted absent the secondary savings clause. The state legislature’s decision to preserve “local government jurisdiction over local roads” was appropriate given the heavy truck and equipment traffic typically associated with oil and gas production, including water and wastewater hauling. Local laws dictating the number of daily truck trips or the weight and length of vehicles bear directly on industry operations and would otherwise be preempted absent the secondary clause. Similarly, the preservation of “the rights of local governments under the real property tax law” must be read in conjunction with section 594 of the Real Property Tax Law, which allows municipalities to impose taxes on oil and gas businesses. Because these special taxes are based on the level of production, they can be viewed as affecting the operations of the oil and gas industry, such that it was reasonable for the legislature to carve out an exception from the preemptive scope of the operative text. We are therefore unpersuaded by the claim of Norse and CHC that the plain language of ECL 23-0303 (2) as a whole supports preemption of the Towns’ zoning laws.4

*748Indeed, it is instructive to compare the OGSML’s supersession clause to other statutes that clearly preempt home rule zoning powers. Unlike ECL 23-0303 (2), such provisions often explicitly include zoning in the preemptive language employed by the legislature (see e.g. ECL 27-1107 [prohibiting municipalities from requiring “any approval, consent, permit, certificate or other condition including conformity with local zoning or land use laws and ordinances” for the siting of hazardous waste facilities]; Mental Hygiene Law § 41.34 [f] [“A community residence established pursuant to this section and family care homes shall be deemed a family unit, for the purposes of local laws and ordinances”]; Racing, Pari-Mutuel Wagering and Breeding Law § 1366 [“Notwithstanding any inconsistent provision of law, gaming authorized at a location pursuant to this article shall be deemed an approved activity for such location under the relevant city, county, town, or village land use or zoning ordinances, rules, or regulations”]).

Further, the legislative schemes of which these preemption clauses are a part typically include other statutory safeguards that take into account local considerations that otherwise would have been protected by traditional municipal zoning powers (see e.g. ECL 27-1103 [2] [g] [requiring the Department of Environmental Conservation to consider the “impact on the municipality where the facility is to be sited in terms of health, safety, cost and consistency with local planning, zoning or land use laws and ordinances”]; Mental Hygiene Law § 41.34 [c] [allowing municipalities a means of objecting to the placement of community residential facilities]; Racing, Pari-Mutuel Wagering and Breeding Law § 1320 [2] [mandating the consideration of local impacts and community support in the siting of gaming facilities]). Norse and CHC are unable to point to any comparable measures in the OGSML that account for the salient local interests in the context of drilling and hydrofracking activities.

*749In sum, the plain language of ECL 23-0303 (2) does not support preemption with respect to the Towns’ zoning laws.

(2) Statutory Scheme

The second factor relevant to discerning whether a supersession clause preempts local zoning powers involves an assessment of the clause’s role in the statutory framework as a whole. We therefore turn to the OGSML — article 23 of the Environmental Conservation Law.

The stated purposes of the OGSML are fourfold: (i) “to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste”; (ii) “to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had”; (iii) to protect the “correlative rights of all owners and the rights of all persons including landowners and the general public”; and (iv) to regulate “the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal wells” (ECL 23-0301).

In furtherance of these goals, the OGSML sets forth a detailed regime under which the New York State Department of Environmental Conservation is entrusted to regulate oil, gas and solution mining activities and to promulgate and enforce appropriate rules. In particular, the Department is empowered to “[r]equire the drilling, casing, operation, plugging and replugging of wells and reclamation of surrounding land in accordance with the rules and regulations of the department” (ECL 23-0305 [8] [d]); enter and plug or replug abandoned wells when the owner has violated Department regulations (ECL 23-0305 [8] [e]); compel operators to furnish the Department with a bond to ensure compliance (ECL 23-0305 [8] [k]); order the immediate suspension of drilling operations that are in violation of Department regulations (ECL 23-0305 [8] [g]); require operators to file well logs and samples with the Department (ECL 23-0305 [8] [i]); grant well permits for oil and gas drilling (ECL 23-0501); issue orders governing the appropriate spacing between oil and gas wells to promote efficient drilling and prevent waste (ECL 23-0503); oversee the integration of oil and gas fields to prevent waste (ECL 23-0701, 23-0901); execute leases on behalf of the State for oil and gas exploration and production (ECL 23-1101); and issue permits for underground storage reservoirs (ECL 23-1301).

*750Based on these provisions, it is readily apparent that the OGSML is concerned with the Department’s regulation and authority regarding the safety, technical and operational aspects of oil and gas activities across the State. The supersession clause in ECL 23-0303 (2) fits comfortably within this legislative framework since it invalidates local laws that would intrude on the Department’s regulatory oversight of the industry’s operations, thereby ensuring uniform exploratory and extraction processes related to oil and gas production. Similar to the scope of the MLRL in Frew Run, we perceive nothing in the various provisions of the OGSML indicating that the supersession clause was meant to be broader than required to preempt conflicting local laws directed at the technical operations of the industry.

And contrary to the position advanced by Norse and CHC, we see no inconsistency between the preservation of local zoning authority and the OGSML’s policies of preventing “waste” and promoting a “greater ultimate recovery of oil and gas” (ECL 23-0301), or the statute’s spacing provisions for wells (see ECL 23-0501, 23-0503). Waste is used as a term of art in the OGSML meaning, among other things, the “inefficient, excessive or improper use of, or the unnecessary dissipation of reservoir energy” and the “locating, spacing, drilling, equipping, operating, or producing of any oil or gas well or wells in a manner which causes or tends to cause reduction in the quantity of oil or gas ultimately recoverable” (ECL 23-0101 [20] [b], [c]). The OGSML’s overriding concern with preventing waste is limited to inefficient or improper drilling activities that result in the unnecessary waste of natural resources. Nothing in the statute points to the conclusion that a municipality’s decision not to permit drilling equates to waste. The OGSML’s related goal of ensuring a “greater ultimate recovery” and its well-spacing provisions — designed to limit the number of wells that may be drilled into an underground pool of oil or gas — are likewise directly related to the concept of waste prevention and do not compel a different result. As the Appellate Division below aptly observed in the Dryden case:

“the well-spacing provisions of the OGSML concern technical, operational aspects of drilling and are separate and distinct from a municipality’s zoning authority, such that the two do not conflict, but rather, may harmoniously coexist; the zoning law will dictate in which, if any, districts drilling may occur, while the OGSML instructs operators as to *751the proper spacing of the units within those districts in order to prevent waste” (108 AD3d at 37).

Consequently, our interpretation of the OGSML’s supersession clause is consistent with the overarching statutory structure.5

(3) Legislative History

The third and final factor for review in deciding whether the supersession clause preempts local zoning powers requires that we examine the OGSML’s legislative history.

The roots of the OGSML extend back to the Interstate Compact to Conserve Oil and Gas, a multi-state agreement created in 1935 and sanctioned by Congress to address the national problem of overproduction of oil and gas pools and the resulting waste caused by unchecked, unspaced and inefficient drilling. In 1941, New York joined the Interstate Compact, whose sole purpose was “to conserve oil and gas by the prevention of physical waste thereof from any cause” (ECL 23-2101 [codification of the Interstate Compact]). More than 20 years later, in conjunction with New York’s participation in the Interstate Compact, the state legislature enacted a comprehensive statutory framework for promoting the conservation of oil and gas resources — the forerunner to the OGSML — in section 70 et seq. of the former Conservation Law (L 1963, ch 959). As originally enacted, the statute’s stated policy was, in part, “to foster, encourage and promote the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste” (former Conservation Law § 70).6

In 1978, the state legislature amended the OGSML to modify its policy by replacing the phrase “to foster, encourage and *752 promote the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste” with “to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste” (ECL 23-0301, as amended by L 1978, ch 396, § 1 [emphasis added]). The legislation also transferred the task of encouraging and promoting the prudent development of New York’s energy resources to the Energy Law (see Energy Law § 3-101, as amended by L 1978, ch 396, § 2) for the purpose of establishing “the Energy Office as the State agency primarily responsible for promoting the development of energy resources” and removing “such promotional responsibilities from the Department of Environmental Conservation which would, however, retain regulatory responsibilities over such resources” (Governor’s Program Bill Mem at 1, Bill Jacket, L 1978, ch 396).

Subsequently, the supersession clause at issue was adopted by the state legislature in 1981 in conjunction with amendments to various statutes such as the Finance Law, the ECL and the Real Property Tax Law (L 1981, ch 846). The 1981 amendments also imposed new drilling fees (see ECL 23-1903, as added by L 1981, ch 846, § 14), created monetary sanctions for violations of the OGSML (see ECL 71-1307, as added by L 1981, ch 846, § 17), and set up an oil and gas fund. The legislative history reflects that, prior to the amendments, the Department of Environmental Conservation had been unable “to effectively regulate and service the industry” because recent growth in drilling had exceeded the Department’s capabilities (Sponsor’s Mem at 2, Bill Jacket, L 1981, ch 846). Explaining that the Department was finding it difficult to fulfill its “regulatory responsibilities” under its existing funding and powers, Governor Hugh Carey confirmed that the amendments were needed to provide the Department with the monies required to implement its “updated regulatory program” as well as “additional enforcement powers necessary to enable it to provide for the efficient, equitable and environmentally safe development of the State’s oil and gas resources” (Governor’s Approval Mem at 1-2, Bill Jacket, L 1981, ch 846). The legislative history, however, sheds no additional light on the supersession clause, referencing it only once with no elaboration (see Budget Report on Bills at 1, Bill Jacket, L 1981, ch 846 [“The existing and amended oil and gas law would supersede all local laws or ordinances regulating the oil, gas, and solution mining industries”]).

*753Nothing in the legislative history undermines our view that the supersession clause does not interfere with local zoning laws regulating the permissible and prohibited uses of municipal land. Indeed, the pertinent passages make no mention of zoning at all, much less evince an intent to take away local land use powers. Rather, the history of the OGSML and its predecessor makes clear that the state legislature’s primary concern was with preventing wasteful oil and gas practices and ensuring that the Department had the means to regulate the technical operations of the industry.

In sum, application of the three Frew Run factors — the plain language, statutory scheme and legislative history — to these appeals leads us to conclude that the Towns appropriately acted within their home rule authority in adopting the challenged zoning laws. We can find no legislative intent, much less a requisite “clear expression,” requiring the preemption of local land use regulations.

III.

As a fallback position, Norse and CHC suggest that, even if the OGSML’s supersession clause does not preempt all local zoning laws, it should be interpreted as preempting zoning ordinances, like the two here, that completely prohibit hydrofracking. In their view, supported by the dissent, it may be valid to restrict oil and gas operations from certain residential areas of a town — much like the zoning law in Frew Run — but an outright ban goes too far and cannot be seen as anything but a local law that regulates the oil and gas industry, thereby running afoul of the supersession clause. But this contention is foreclosed by Matter of Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996]), our decision following Frew Run.

In Gernatt — decided after the legislature had codified Frew Run’s holding in an amendment to the MLRL’s supersession clause — the Town of Sardinia amended its zoning ordinance to eliminate all mining as a permitted use throughout the town. A mining company challenged the zoning law under the MLRL’s supersession clause and, in an argument mirroring the one advanced by Norse and CHC, asserted that Frew Run left “municipalities with the limited authority to determine in which zoning districts mining may be conducted but not the authority to prohibit mining in all zoning districts” (Gernatt, 87 NY2d at 681). We squarely rejected this cramped reading of Frew Run, reiterating that “zoning ordinances are not the type of regula*754tory provision the Legislature foresaw as preempted by the Mined Land Reclamation Law; the distinction is between ordinances that regulate property uses and ordinances that regulate mining activities” (id. at 681-682 [emphasis omitted]). We held that nothing in Frew Run or the MLRL obligated a town that “contains extractable minerals ... to permit them to be mined somewhere within the municipality” (id. at 683). Put differently, in a passage that has particular resonance here, we explained:

“A municipality is not obliged to permit the exploitation of any and all natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers to prevent damage to the rights of others and to promote the interests of the community as a whole” (id. at 684).

Manifestly, Dryden and Middlefield engaged in a reasonable exercise of their zoning authority as contemplated in Gernatt when they adopted local laws clarifying that oil and gas extraction and production were not permissible uses in any zoning districts. The Towns both studied the issue and acted within their home rule powers in determining that gas drilling would permanently alter and adversely affect the deliberately-cultivated, small-town character of their communities. And contrary to the dissent’s posture, there is no meaningful distinction between the zoning ordinance we upheld in Gernatt, which “eliminate[d] mining as a permitted use” in Sardinia (id. at 683), and the zoning laws here classifying oil and gas drilling as prohibited land uses in Dryden and Middlefield. Hence, Norse’s and CHC’s position that the town-wide nature of the hydrofracking bans rendered them unlawful is without merit, as are their remaining contentions.

IV.

At the heart of these cases lies the relationship between the State and its local government subdivisions, and their respective exercise of legislative power. These appeals are not about whether hydrofracking is beneficial or detrimental to the economy, environment or energy needs of New York, and we pass no judgment on its merits. These are major policy questions for the coordinate branches of government to resolve. The discrete issue before us, and the only one we resolve today, is whether the state legislature eliminated the home rule capacity of municipalities to pass zoning laws that exclude oil, gas and *755hydrofracking activities in order to preserve the existing character of their communities. There is no dispute that the state legislature has this right if it chooses to exercise it. But in light of ECL 23-0303 (2)’s plain language, its place within the OGSML’s framework and the legislative background, we cannot say that the supersession clause — added long before the current debate over high-volume hydrofracking and horizontal drilling ignited — evinces a clear expression of preemptive intent. The zoning laws of Dryden and Middlefield are therefore valid.

Accordingly, in each case, the order of the Appellate Division should be affirmed, with costs.

Pigott, J.

(dissenting). Environmental Conservation Law § 23-0303 (2) states that “[t]he provisions of this article shall supersede all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law” (emphasis supplied). Municipalities may without a doubt regulate land use through enactment of zoning laws, but, in my view, the particular zoning ordinances in these cases relate to the regulation of the oil, gas and solution mining industries and therefore encroach upon the Department of Environmental Conservation’s regulatory authority. For this reason, I respectfully dissent.

The zoning ordinances of Dryden and Middlefield do more than just regulate land use, they regulate oil, gas and solution mining industries under the pretext of zoning (see Zoning Ordinance of Town of Dryden § 2104 [1] [“Prohibited Uses (1) Prohibition against the Exploration for or Extraction (of) Natural Gas and/or Petroleum”]; Zoning Ordinance of Town of Middlefield art II [B] [7]; art V [A] [“Prohibited Uses: Heavy industry and all oil, gas or solution mining and drilling are prohibited uses”]).

In Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126 [1987]) — a case involving a supersession clause contained in the Mined Land Reclamation Law (MLRL) (see former ECL 23-2703 [2])* — we made clear that there is a distinction between zoning ordinances that regulate land use and local *756ordinances that regulate the mining industry. The former, which involve the division of the municipality into zones and the establishment of permitted uses within those zones, relate not to the extractive mining industry, but rather, to the regulation of land use generally (see Frew Run, 71 NY2d at 131).

The ordinances here, however, do more than just “regulate land use generally” (id.), they purport to regulate the oil, gas and solution mining activities within the respective towns, creating a blanket ban on an entire industry without specifying the zones where such uses are prohibited. In light of the language of the zoning ordinances at issue — which go into great detail concerning the prohibitions against the storage of gas, petroleum exploration and production materials and equipment in the respective towns — it is evident that they go above and beyond zoning and, instead, regulate those industries, which is exclusively within the purview of the Department of Environmental Conservation. In this fashion, prohibition of certain activities is, in effect, regulation.

Unlike the situation in Matter of Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996]) — which involved a zoning ordinance that eliminated mining as a permitted use in all districts — the ordinances in these appeals do more than just delineate prohibited uses. Where zoning ordinances encroach upon the DEC’s regulatory authority and extend beyond the municipality’s power to regulate land use generally, the ordinances have run afoul of ECL 23-0303 (2).

Chief Judge Lippman and Judges Read, Rivera and AbdusSalaam concur with Judge Graffeo; Judge Pigott dissents in an opinion in which Judge Smith concurs.

In each case: Order affirmed, with costs.

OPINION

GORDON, Chief Justice.

William Jachimek and Harvard Square Associates Limited Partnership (collectively Jachimek) petitioned for review of the court of appeals’ order declining to accept jurisdiction over Jachimek’s special action. Jachimek also filed an appeal in the court of appeals asking for review of the same issues. We transferred the appeal to the Supreme Court and consolidated it with the petition for review. We accepted jurisdiction to determine whether a City of Phoenix (City) ordinance that requires pawn shops in the “Inebriate District” to obtain a use permit, even though pawn shops are a permitted use in the C-2 zone, violates the uniformity requirement of A.R.S. § 9-462.-01(C). We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), and Ariz.R.Sp. Act. 8, 17B A.R.S.

FACTUAL AND PROCEDURAL BACKGROUND

Jachimek owns a building that he wished to lease for use as a pawn shop. The property is zoned commercial C-2, and pawn shops are normally a permitted use in a C-2 zone. See Phoenix City Code, Ch. IV, § 417. In 1981, however, the City passed an ordinance (the Ordinance) adding section 109(A)(7)(c) to the Phoenix Zoning Ordinance. The Ordinance created an “Inebriate District” in the area bounded by 19th Avenue, McDowell Road, 20th Street, and Buckeye Road. It required use permits for various uses in this area, including pawn shops, that otherwise would be permitted uses in a C-2 district.1

When the City denied Jachimek’s application for a use permit, he sued to have the Ordinance declared invalid. On cross motions for summary judgment, the trial court granted the City’s motion and upheld the Ordinance. The court found that the Inebriate District “is in fact and in law an overlay zone.” The court concluded, however, that the Ordinance does not violate the uniformity requirement because the City has the power under A.R.S. § 9-462.-01(A)(1) and the slum clearance and redevelopment statutes to create a unique district. Jachimek filed a special action in the court of appeals, but that court declined to accept jurisdiction.

DISCUSSION

Jachimek argues that the Ordinance treats C-2 property in the Inebriate District differently than C-2 property anywhere else in the City. Therefore, he contends that the Ordinance is invalid because it violates the uniformity requirement of A.R.S. § 9-462.01(C). We agree.

Because municipal zoning authority comes from the state, “the power must be exercised within the limits and in the manner prescribed in the grant and not otherwise.” City of Scottsdale v. Scotts *319 dale Associated Merchants, Inc., 120 Ariz. 4, 5, 583 P.2d 891, 892 (1978) (citing City of Scottsdale v. Superior Court, 103 Ariz. 204, 439 P.2d 290 (1968)); see Hart v. Bayless Inv. & Trading Co., 86 Ariz. 379, 384, 346 P.2d 1101, 1105 (1959). Cities must strictly comply with the statute delegating them the authority to act. Scottsdale Associated Merchants, 120 Ariz. at 5, 583 P.2d at 892; see Hart, 86 Ariz. at 390, 346 P.2d at 1109. Any attempt to exercise the zoning authority without complying with the statutory conditions is void. Hart, 86 Ariz. at 384, 346 P.2d at 1105. With these general principles in mind, we must examine whether the City has authority to require use permits for pawn shops on C-2 property in the Inebriate District while not requiring them for pawn shops on C-2 property in other parts of the City.

I. A.R.S. § 9-462.01(C)

Section 9-462.01(C) provides that “[a]ll zoning regulations shall be uniform for each class or kind of building or use of land throughout each zone, but the regulations in one type of zone may differ from those in other types of zones.” (Emphasis added.) The obvious purpose of a statutory uniformity requirement “is to assure property owners that there shall be no improper discrimination, all owners of the same class and in the same [zone] being treated alike____” Bartsch v. Planning & Zoning Comm’n of Trumbull, 6 Conn.App. 686, 689, 506 A.2d 1093, 1095 (1986) (citation omitted); see 1 N. Williams & J. Taylor, American Planning Law: Land Use and the Police Power § 31.01 (1988 Rev.) (statutory uniformity requirements represent “a reenactment in statutory form of the general principle underlying the equal protection clause — that all land in similar circumstances should be zoned alike, and that differential treatment must be justified by a showing of different circumstances justifying such treatment”).

The City argues that the Ordinance does not violate the uniformity requirement because it does not establish a “special zone.” Rather, the Ordinance requires a use permit “regardless of the zoning on the parcels upon which the use is proposed.” Thus, the City argues, “it is the use of property in a specific area of the city which requires that a use permit be obtained for certain uses, not the zoning of the property.” We reject this argument because, regardless of the labels applied to the Ordinance, its effect is to require a use permit for Jachimek’s C-2 property but not for C-2 property in other parts of the City. We agree with the trial court that the Ordinance “in fact and in law [creates] an overlay zone.”

Creating an overlay zone and requiring a use permit for uses that are permitted without such a permit in other C-2 districts in the City violates the plain and unambiguous language of § 9-462.01(C) that “[a]ll zoning regulations shall be uniform for each class or kind of ... use of land throughout each zone.” See Henry v. White, 194 Tenn. 192, 198, 250 S.W.2d 70, 72 (1952) (concluding that a similar uniformity requirement clearly and unequivocally forbids the city “from permitting on certain streets in a given district the use of buildings for a purpose that is forbidden everywhere else in that district.”). It also violates the policy of equal treatment underlying § 9-462.01(C) because it “is exactly the arbitrary and discriminatory use of the police power which the statute was designed to prevent.” See Bartsch, 6 Conn.App. at 690-91, 506 A.2d at 1096 (requiring a buffer between one zone of a particular classification and another zone of a different classification in one instance but not in others violates the statutory uniformity requirement).

Our conclusion that the Ordinance violates the uniformity requirement is consistent with cases from other jurisdictions that have considered similar statutes. See, e.g., Boerschinger v. Elkay Enters., 32 Wis.2d 168, 173, 145 N.W.2d 108, 111 (1966) (striking down an ordinance that in effect required some rendering plants in the industrial district to obtain approval from the board of appeals while exempting the owners of one plant from seeking approval); Carleton Tennis Assocs. v. Town of Clay, 131 Misc.2d 522, 523-24, 500 N.Y.S.2d 908, 908-09 (N.Y.Sup.Ct.1985) (striking down an *320ordinance that prohibited food and beverage service near an industrial park even though food and beverage service is generally permitted in C-5 zones).

Thus, unless some other statute provides an exception to the uniformity requirement under the facts of this case, we must declare the Ordinance invalid. We turn now to a discussion of other statutes that allegedly give the City authority to utilize the use permit procedure in the Inebriate District.

II. A.R.S. § 9-k62.01(A)(l)

Section 9-462.01(A)(l) authorizes cities to “[r]egulate the use of buildings, structures and land as between agriculture, residence, industry, business and other purposes.” The City relies on the trial court’s minute entry to support its argument that § 9-462.01(A)(l) authorizes the use permit procedure utilized in the Inebriate District.2 The trial court found that the City could have created a new zone in the area within the Inebriate District because such a zone would be a legitimate “other purpose’’ under § 9-462.01(A)(l). The court also found that doing so would not violate the uniformity requirement because the zoning regulations within that .unique zone would have been uniform. It then concluded that even though the City attempted to create an overlay district rather than creating a unique zone, the creation of this overlay district does not violate the uniformity requirement because the City has the power to create a unique zone. We disagree.

Section 9-462.01(A)(l) merely authorizes the City to engage in use zoning. It does not authorize the City to create an overlay zone in which use permits are required for specified uses on property that is zoned the same as property in other parts of the City for which use permits are not required. As we determined above, such an overlay zone violates the uniformity requirement of § 9-462.01(C).3 The uniformity requirement in § 9-462.01(C) is part of the same statutory section as § 9-462.01(A)(l). The only reasonable way to construe § 9-462.01(C), therefore, is as a limitation on the zoning authority granted to the City by § 9-462.-01(A)(1). Thus, the City must comply with the uniformity requirement in § 9-462.-01(C) when exercising its zoning authority.

The trial court found that because the City has the power to create a unique zone, it also has the power to create an overlay district such as the Inebriate District. Even assuming that the City has the power to create a unique zone,4 we do not believe it has the power to create an overlay district in which use permits are required when the underlying zoning, which *321the City did not attempt to change, does not require use permits. The City’s power to create a unique zone is not relevant to determining whether it may create an overlay district without changing the underlying zoning because the City may have the power to create a unique zone and nonetheless lack the power to create an overlay district. Moreover, permitting the City to create an overlay district merely because it could have created a unique zone would violate the rule that cities must strictly comply with the zoning enabling statutes. See Scottsdale Associated Merchants, 120 Ariz. at 5, 583 P.2d at 892; Hart, 86 Ariz. at 390, 346 P.2d at 1109.

III. A.R.S. § 9-462.01(0(1)

Section 9-462.01(C)(l) provides in part that: “Within individual zones, there may be uses permitted on a conditional basis under which additional requirements must be met, such as, but not limited to, requiring site plan review and approval by the planning agency.” The City argues that because this paragraph appears in § 9-462.01(C), the uniformity section of the statute, requiring use permits in the Inebriate District is consistent with the uniformity requirement. We disagree.

Section 9-462.01(C)(l), when read in context with § 9-462.01(C), authorizes the City to uniformly require use permits for specified uses within a zone. It does not authorize the City to require use permits for property in one part of a zone but not for property in another part of the same zone. Thus, although the City may have the power to require use permits for pawn shops throughout the C-2 zone, it cannot require use permits for pawn shops on C-2 property in the Inebriate District while not requiring use permits for pawn shops on C-2 property in other parts of the City.

IV. A.R.S. §§ 36-1471 to 36-1491

The City argues that the slum clearance and redevelopment statutes, A.R.S. §§ 36-1471 to 36-1491, authorize the City’s use permit procedure because the legislature intended to give cities additional power to control slum and redevelopment areas in addition to the zoning powers that existed before the slum clearance and redevelopment statutes were adopted. We disagree.

Section 36-1490 provides that “[t]he powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.” We do not believe, however, that these additional powers include the power to implement a use permit procedure that violates the uniformity requirement of § 9-462.01(C). Rather, the additional powers the legislature contemplated were the powers to acquire property, to improve the property acquired, to dispose of the property acquired, and to provide other assistance in connection with these functions. See A.R.S. § 36-1472(4) (declaring that these functions “are public uses and purposes for which public money may be expended and the power of eminent domain exercised”); see generally A.R.S. §§ 36-1471 to 36-1491.

The legislature did provide that any public body5 may zone or rezone “[wjhere otherwise authorized to perform functions of a similar character.” § 36-1487(A)(7)(c) (emphasis added). Cities are “otherwise authorized” to zone and rezone by the municipal zoning enabling statutes, §§ 9-462 to 9-462.08. The “where otherwise authorized” language, however, indicates that the City must comply with the zoning enabling statutes, including § 9-462.01(C), when it zones or rezones property to aid its redevelopment projects. Thus, the slum clearance and redevelopment statutes do not provide an exception to the uniformity requirement of § 9-462.01(C).

DISPOSITION

We reverse the trial court’s order granting the City’s motion for summary judg*322ment, vacate the court of appeals’ order declining to accept jurisdiction, and declare the Ordinance invalid. We remand this case to the trial court for proceedings consistent with this opinion.

FELDMAN, V.C.J., and CAMERON, MOELLER and CORCORAN, JJ., concur.

Wilkins, J.

The plaintiff landowner sought a declaration from the Land Court concerning the lawfulness of provisions in the zoning by-law of the defendant town that purported to bar the use of any land in the town for retail business or service purposes unless authorized by a special permit *346granted by the town’s planning board.2 On cross motions for summary judgment, a judge of the Land Court ruled that the town’s zoning by-law which, speaking generally, permitted only residential uses in the town as of right and all other uses only if the planning board granted a special permit, violated G. L. c. 40A (1988 ed.). The judgment declared only that the special permit provisions of the by-law were invalid and left intact the provisions that limited uses of land in the town to residential purposes. The town appealed.3 We granted direct appellate review.

Aside from an overlay floodplain zone, the town is zoned for residential uses in two districts: one, in which the plaintiff’s land lies, is a general residential district, and the other is a special district, known as the Jug End residential district. In the general residential district, beyond uses that must be permitted by statute (G. L. c. 40A, § 4), Egremont allows as of right: a one-family dwelling; a two-family dwelling; home occupations in certain circumstances; and roadside stands. Certain other uses are permitted under § 4.3 of the zoning by-law by special permit from the planning board. These uses are multi-family dwellings (§ 4.3.1.1); retail business or consumer service establishments (§ 4.3.1.2), and “[a]ny other use determined by the Planning Board and not offensive or detrimental to the neighborhood” (§ 4.3.1.3). The judgment ruled invalid all of § 4.3 and thus eliminated all rights to the special permit uses we have just listed.

The motion judge reasoned that the Egremont by-law violated the uniformity provisions of G. L. c. 40A, § 4, and that the planning board’s discretion to grant special permits was too broad to meet the requirements of G. L. c. 40A, § 9. The *347judge relied on Smith v. Board of Appeals of Fall River, 319 Mass. 341 (1946), and the Appeals Court opinion in SCIT, Inc. v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101 (1984). Although we agree with the motion judge that authority to grant a special permit for “[a]ny other use [i.e., not a multi-family or retail commercial use] determined by the Planning Board” exceeds permissible statutory limits, the special permit authorization for “multi-family dwellings” and for “retail business or consumer service establishments” in the general residential district is not unlawful on its face.

Smith v. Board of Appeals of Fall River, supra at 344, concerned an ordinance describing relatively specific special permit uses but lacking standards to guide the city’s special permit granting authority. As we shall point out, the Egremont by-law has ample guiding provisions to instruct the planning board in deciding whether to issue a special permit. Since the Smith opinion, judicial attitudes have become more tolerant of the discretionary special permitting process. “The standards [for the guidance of a special permit granting authority] need not be of such a detailed nature that they eliminate entirely the element of discretion from the board’s decision. It would be difficult, if not impossible, to forsee and specify, by ordinance or by-law, every circumstance or combination of circumstances under which special permits should be granted or withheld. ‘The degree of certainty with which standards for the exercise of discretion are set up must necessarily depend on the subject matter and the circumstances.’ Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 118 [1955].” MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638 (1970).

The reasoning of SCIT, Inc. v. Planning Bd. of Braintree, supra at 101, is consistent with the views we express in this opinion and does not support the landowner’s broad challenge to the special permit provisions of the Egremont zoning by-law. In that case, one portion of the zoning by-law purported to authorize certain uses in business districts, while another portion of the by-law purported to make all uses in business districts subject to the grant of a special permit. Id. *348at 106-107. The Appeals Court invalidated the special permit provision because G. L. c. 40A did not allow a municipality to make “a// uses in a business district conditional on the issuance of a discretionary special permit” (emphasis in original). Id. at 101. The wide discretion that the by-law gave to the board of appeals to allow or forbid any business use in the zoning district was contrary to the underlying assumption of G. L. c. 40A, § 4, that a zoning by-law must permit at least one use in each zoning district as a matter, of right. Id. at 107. Moreover, the statutory provision (G. L. c. 40A, § 9) that special permits are to be “granted only for uses specifically authorized” would not justify a by-law in which not even one use was generally authorized in a zoning district and all uses required a special permit. Id. at 109-110.

Egremont is a rural town in the Berkshire hills. Its voters decided that the town would have a single zoning district (except for one special residential district) in which, in addition to uses permitted by statute (G. L. c. 40A, § 4), single family and two-family uses would be allowed as a matter of right and certain other uses would be permitted if the planning board were to issue a special permit. We see no violation of G. L. c. 40A, § 4, in such a provision, provided that it adequately defines the uses that may be specially permitted and satisfies other statutory conditions. Section four does not direct that every municipality adopting a zoning by-law have more than one zoning district or that such a by-law permit business uses as of right in some part of the municipality. Once a use is generally authorized in a zoning district, § 9 of G. L. c. 40A allows the issuance of special permits, authorized pursuant to a town by-law (or city ordinance), for other specified uses, provided that certain standards and conditions are met.

There can be no serious question about the adequacy of the standards that the by-law requires the Egremont board of appeals to apply in passing on a request for a special permit. The board must find that the proposed use is in harmony with the general intent and purpose of the zoning by-law (see also G. L. c. 40A, § 9); is essential or desirable to the public *349convenience or welfare; is not detrimental to adjacent uses or to the existing or planned future character of the neighborhood; will not create undue traffic congestion or unduly impair pedestrian safety; and will not overload any public water, drainage, or sewer facility.

The Egremont by-law adequately describes some but not all of the types of uses for which the planning board may issue special permits. The by-law authorization for granting special permits for multi-family dwellings and for “retail business or consumer service establishments” is sufficiently specific to satisfy the requirement of § 9 that such permits be authorized “for specific types of uses.” We agree with the motion judge, however, that the authorization of special permits for “[a]ny other use determined by the Planning Board and not offensive or detrimental to the neighborhood” (§ 4.3.1.3 of the by-law) does not sufficiently define any “specific” type of use as § 9 requires and is, therefore, invalid. There is, however, no reason to strike as invalid more than the offending provision. The balance of the town’s expression of the authority of the planning board to issue special permits is independent of the invalid provision. See Del Duca v. Town Adm’r of Methuen, 368 Mass. 1, 13 (1975). The judgment to be entered shall declare that § 4.3.1.3 of the Egremont zoning by-law is invalid. We have rejected the landowner’s facial challenge to the zoning provision that permits new retail establishments in Egremont only on the granting of a special permit (§ 4.3.1.2), and the judgment shall state that § 4.3.1.2 is not facially invalid. We do not understand the landowner to be asserting the invalidity of the surviving special permit provisions on some theory we have not discussed. That question can be considered, however, on remand in the Land Court. The judgment and the order granting the plaintiff’s motion for summary judgment and denying the town’s motion for summary judgment are vacated.

So ordered.

Opinion

BORDEN, J.

The dispositive issue in this certified appeal is whether the continued maintenance of a certain “no rental” condition imposed on a zoning variance granted to the plaintiffs in 1986 by the defendant, the zoning board of appeals of the town of Fairfield (board), which the plaintiffs did not challenge by direct appeal at that time, violates the public policy against restraints against alienation of property. The plaintiffs, Sebastian Gangemi and Rebecca J. Gangemi, appeal, pursuant to our grant of certification, from the judgment of the Appellate Court affirming the judgment of the trial court. The trial court dismissed the plaintiffs’ appeal from the defendant’s denial of their application to invalidate the no rental condition for lack of subject matter jurisdiction.2 The plaintiffs claim that the trial court improperly dismissed their appeal because the continued maintenance of the condition violates the strong public policy against restraints on the alienation of *145property.3 We agree. Accordingly, we reverse the judgment of the Appellate Court.

In 1986, the plaintiffs secured a zoning variance from the board, one condition of which was “[o]wner occupancy only.”4 In 1996, the Fairfield zoning enforcement officer determined that the plaintiffs were violating the condition by renting their property, and he ordered them to comply with the condition. The plaintiffs applied to the board requesting that it invalidate the condition. The board denied the application. The plaintiffs appealed to the trial court, which rendered judgment dismissing the appeal. The plaintiffs appealed to the Appellate Court, which affirmed the trial court’s judgment. Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 736 A.2d 167 (1999). This certified appeal followed.5

The procedural history and certain of the undisputed facts of the case are set forth in the opinion of the Appellate Court as follows. “[T]he plaintiffs are the owners of property located at 863 Fairfield Beach Road in Fairfield. On March 13, 1986, the plaintiffs filed an application with the board requesting a variance in the setback requirements from the Fairfield zoning regula*146tions. The variance that the plaintiffs sought would have allowed them to enlarge their nonconforming home6 and also would have allowed them to convert the home from summer use to year-round use. The plaintiffs asserted that to complete the conversion of the home, they needed to enclose the existing porch, enlarge the bathroom and construct a furnace room. In their application, the plaintiffs indicated that they ‘[intended] to use the property for family use only on a year-round basis.’

“The board conducted a public hearing on the plaintiffs’ application. On May 1,1986, the board granted the plaintiffs’ application subject to the following conditions: (1) the plaintiffs would provide two off-street parking spaces; and (2) the use of the home would be limited to family use and would not be used for rental purposes.7 The plaintiffs did not appeal or otherwise challenge the validity or imposition of either condition. Thereafter, in 1990, the plaintiffs moved out of the home and started renting the property to various tenants. On May 20,1996, Peter Marsala, Fairfield’s zoning enforcement officer, issued to the plaintiffs an order to comply that indicated that the plaintiffs were violating the board’s conditional approval by renting the home and *147ordered the plaintiffs to have the tenants vacate the subject property.

“Thereafter, on June 3, 1996, the plaintiffs filed an application with the board requesting that the board invalidate the no rental condition and, thereby, reverse the order to comply. On August 1, 1996, the board conducted a public hearing and denied the plaintiffs’ application.8 The plaintiffs appealed from the board’s decision to the Superior Court on August 21,1996, pursuant to General Statutes § 8-8 (b). The Superior Court concluded that the plaintiffs’ failure to file an appeal challenging the validity of the no rental condition within fifteen days from the date when notice of the board’s decision was published in 1986 deprived the court of subject matter jurisdiction to entertain the appeal.” Id.,'561-63.

In addition, certain other sets of facts are undisputed. The first involves the extent and context of the variance at issue as it is currently maintained. The variance permitted the plaintiffs to reduce the required side setback line from 7 feet to 3.2 feet, thus giving them an additional 3.8 feet of footprint and adding 59.6 square feet to then-house. In this connection, we note that the variance also gave the plaintiffs permission to convert the house from a seasonal cottage to a year-round dwelling by *148enclosing the open porch and adding a one-story addition in order to enlarge the bathroom and construct a furnace room. At oral argument before this court, the parties informed us that, at the time the variance was granted, applicable zoning regulations permitted only seasonal use of the plaintiffs’ property. The parties further informed us, however, that the zoning regulations have since been amended to eliminate the prior seasonal restriction, thereby permitting year-round use.9 Thus, under the current zoning regulations, the plaintiffs’ house, as well as all of the other houses in the Fairfield beach district, may now be used year-round irrespective of the variance and its original conditions.

Second, the property in question is located within the Fairfield beach district, which is subject to § 11.1.1 of the Fairfield zoning regulations. Section 11.1.1 of the Fairfield zoning regulations imposes the following limitations: “A single detached dwelling for one family . . . [and] no dwelling or dwelling unit in the Beach District may be occupied by more than four (4) unrelated persons.” Thus, there is nothing in the zoning regulations that prohibits either the plaintiffs or any other property owners in the beach district from renting their houses to others. Moreover, there is nothing in our zoning statutes that, at least specifically, permits such a flat prohibition.

The third set of facts involves the absence from the applicable zoning restrictions of any provision limiting occupancy to “families.”10 The only restriction in this *149regard is in § 11.1.1 of the Fairfield zoning regulations that “no dwelling or dwelling unit in the Beach District may be occupied by more than four (4) unrelated persons.” Thus, presumably all other property owners in the beach district are permitted, and but for the no rental condition in question the plaintiffs would be permitted, to rent their houses to four friends or, for that matter, to four individuals who do not even know one another but who are willing to share a beach rental for the summer—or even for the entire year. In fact, all the property owners in the beach district, including the plaintiffs, could legally sell their properties to four such individuals. The point is that the town has not seen fit to limit occupancy in the beach district beyond these two elements: (1) no more than four unrelated persons; and (2) occupying a single-family type structure.

With this undisputed factual background in mind, we turn to the legal standard that controls the present case. In Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 102, 616 A.2d 793 (1992), we held that the plaintiff, “having secured [certain zoning] permits in 1983 subject to condition seven and not having challenged the condition by appeal at that time, was precluded from doing so in the 1986 enforcement proceedings at issue in this case.” Two considerations, which are relevant to the present case,11 led to that conclusion.

First, we reasoned that the rules requiring a contemporaneous appeal from the imposition of a zoning condition, and thus depriving a trial court of subject matter jurisdiction over a subsequent challenge, rest “on the need for stability in land use planning and the need for justified reliance by all interested parties—the inter*150ested property owner, any interested neighbors and the town—on the decisions of the zoning authorities.” Id. Second, we noted that “there are limits to the notion that subject matter jurisdictional defects may be raised at any time”; id., 103; and that those limits applied to that case because “[t]he lack of jurisdiction, if any, was far from obvious, [the plaintiff] had the opportunity to challenge it at the time, and we perceive [d] no strong policy reasons to give [the plaintiff] a second opportunity to do so now.” Id., 104.

Despite this conclusion and reasoning, however, we “recognize[d] . . . that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy.”12 (Emphasis added.) Id., 104-105. We conclude that, under the facts of the present case, the continued maintenance of the no rental condition violates our strong public policy against restrictions on the free alienability of property.

We begin by emphasizing that, under this prong of the Upjohn Co. formulation, we focus, not on the state of affairs that existed when the condition at issue originally was imposed, but on the current state of affairs in which the condition is being enforced. Thus, in the present case, we do not focus, as we do with regard to the first prong of Upjohn Co., on whether the condition *151was so far outside the normal limits of zoning authority that there could not have been any “justified reliance” on the challenged condition. Id., 105. Instead, we focus on the “continued maintenance” of the condition, and whether, irrespective of the fact that the condition was “previously unchallenged,” it nonetheless currently “violatejs] some strong public policy.” Id.

It is undisputable that “[i]t is the policy of the law not to uphold restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” Peiter v. Degenring, 136 Conn. 331, 336, 71 A.2d 87 (1949). It is also undisputable that this policy is strong and deeply rooted. J. Dukeminier & J. Krier, Property (3d Ed. 1993) p. 223 (“[t]he rule against direct restraints on alienation is an old one, going back to the fifteenth century or perhaps even earlier”). Moreover, it is undisputable that the right of property owners to rent their real estate is one of the bundle of rights that, taken together, constitute the essence of ownership of property. See, e.g., id., p. 86 (“[property] consists of a number of disparate rights, a ‘bundle’ of them: the right to possess, the right to use, the right to exclude, the right to transfer”). The question that the present case poses, therefore, is whether, under the facts of this case, the continued maintenance of the no rental condition serves “a legal and useful purpose.” Peiter v. Degenring, supra, 336; see also T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 89 n.185 (“[t]he real question is whether a valid zoning objective is being served”). We conclude that it does not.

Owners of a single-family residence can do one of three economically productive things13 with the resi*152dence: (1) live in it; (2) rent it; or (3) sell it.14 Thus, if the owners of a single-family residence do not choose, for reasons of family size15 or other valid reasons, to live in the house they own, their only viable options are to rent it or to divest themselves entirely of their ownership by selling it. Stripping the plaintiffs of essentially one third of their bundle of economically productive rights constituting ownership is a very significant restriction on their right of ownership. In addition, when the variance was granted in 1986, the no rental condition deprived the plaintiffs only of the right to rent their property on a seasonal basis.16 With the change in the zoning regulations, however, the plaintiffs now also have lost the more significant right to rent their property on a year-round basis, resulting in a total loss of the right to rent.

Furthermore, the maintenance of the no rental condition in the present case not only strips the plaintiffs of one of those three options, it also significantly reduces the value of the third because when they do put the house on the market it will necessarily bring significantly less than the fair market value that it would have commanded without the condition. It takes little imagination to predict that the only pool of potential buyers for a house with a no rental condition perma*153nently attached to it would be those persons who are so confident that their life circumstances will never change that, despite the passage of time or changes in health or family circumstance, they will, forever, either occupy the house or sell it. Moreover, those potential buyers also will have to be supremely confident that, when they go to sell it, they also will be able to find buyers who have the same degree and type of confidence. Needless to say, this surely will be a very small pool of buyers, thus significantly and adversely affecting the fair market value of the house.

Finally, insofar as this record discloses, the condition limiting the plaintiffs’ economic use of the house to occupancy, and prohibiting their economic use of it by renting it, is a limitation that does not adhere to the rest of the property owners in the beach district. Thus, the most obvious consequence of the continued maintenance of the no rental condition on the plaintiffs’ property is to give those other property owners a grossly unfair advantage over the plaintiffs in the marketplace. A house, particularly a house located in a beach district, that can never be rented obviously would be significantly less desirable to a potential purchaser than the rest of the houses in the beach district, which do not have such a drastic limitation on their economic use.17

Neither the state zoning statutes nor the local zoning regulations place any such limitation on those other property owners. Thus, whatever adverse consequences to other properties may be imagined to flow from occupancy of the houses in the beach district by *154 renters as opposed to owners cannot be reasonably attributable to the plaintiffs’ use of their property, because presumably no other properties are so encumbered. Put another way, if all or most of the other houses in the beach district legally can be rented to any group of four or fewer unrelated persons, we fail to see how this condition on this one house conceivably may serve any legal or useful purpose—except to maintain the unfair market advantage that the other unencumbered houses have, a purpose that the law should hardly label as “legal and useful . . . .” Peiter v. Degenring, supra, 136 Conn. 336.

Finally, the continued maintenance of this no rental condition violates another strong and deeply rooted policy, namely, the policy against economic waste. Our law has long recognized such a policy. See Levesque v. D & M Builders, Inc., 170 Conn. 177, 181-82, 365 A.2d 1216 (1976). By artificially and significantly devaluing the plaintiffs’ property, as compared to the value of the surrounding parcels, the continued maintenance of the condition in question removes from the marketplace, and thereby from the economy, that significant differential in value. We can see no legal or useful purpose in doing so. The consequence of such conduct is economic waste.

We acknowledge that permitting the plaintiffs to challenge the condition now means that they will receive what could be regarded as a windfall, because they secured a variance in 1986 coupled with the no rental condition, and it is possible that, had the condition not been imposed, either the zoning authority might not have granted the variance18 or an aggrieved neighbor *155might have successfully challenged the granting of the variance by way of appeal at that time. Moreover, for the period between 1986, when they secured the variance, and whenever the zoning regulations were amended to eliminate the seasonal use restriction on the beach district, the plaintiffs had the full benefit of the variance. That, however, does not alter our conclusion, however, for two reasons.

First, whenever the law permits a previously imposed condition to be challenged collaterally—as the dictum in Upjohn Co. suggested and as we now hold—some similar windfall is afforded the property owner. Indeed, subsequent to our decision in Upjohn Co. we implicitly permitted a condition that was personal to the property owner to be challenged collaterally. See Reid v. Zoning Board, of Appeals, 235 Conn. 850, 670 A.2d 1271 (1996). Thus, the presence alone of such a windfall cannot be enough to preclude such a collateral attack because it is inherent in the Upjohn Co. formulation. Second, on the facts of the present case the windfall amounts to: (1) an additional 3.8 feet of width and 59.6 square feet to the plaintiffs’ house; and (2) the full use of the variance for a finite period of time, namely, from 1986 to whenever the zoning regulations were amended. Against this, however, must be balanced the current effects of the condition. Those effects are: (1) the drastic and direct restriction on the alienability of the plaintiffs’ property; (2) its grossly unfair consequence, when compared with the freedom of alienability of the other property owners in the beach district; and (3) the fact that the restriction is, unlike the second part of the windfall, temporally unlimited—in fact, permanent. This balance leads us to conclude that the no rental condition is so restrictive of the plaintiffs’ ability to alienate their property that it outweighs the public policy considerations underlying the bar on collateral *156attacks.19 We need not, and do not, decide whether a no rental condition may never be valid in the zoning context. Compare Kirsch Holding Co. v. Manasquan, 59 N.J. 241, 281 A.2d 513 (1971) (invalidating regulation prohibiting rental to groups of persons not meeting statutory definition of family), United Property Owners Assn. of Belmar v. Belmar, 185 N.J. Super. 163, 447 A.2d 933 (1982) (invalidating regulation prohibiting rental for one year or less when residence not intended to be permanent residence of renter), Kulak v. Zoning Hearing Board, 128 Pa. Commw. 457, 563 A.2d 978 (1989) (condition to special exception requiring apartment building owner to reside in one apartment did not serve any valid zoning purpose, but owner nonetheless bound because not appealed from when imposed), and 5 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning (4th Ed. Ziegler 2000) § 56A.02 [1] [e], p. 56A-8 (“[t]he principle that zoning enabling acts authorize local regulation of land use’ and not regulation of the ‘identity or status’ of owners or persons who occupy the land would likely be held to apply to invalidate zoning provisions distinguishing between owner-occupied and rental housing”), with Ewing v. Carmel-bythe-Sea, 234 Cal. App. 3d 1579, 286 Cal. Rptr. 382 (1991), cert. denied, 504 U.S. 914, 112 S. Ct. 1950, 118 L. Ed. 2d 554 (1992) (upholding constitutionality of ordinance prohibiting rental of residential property for fewer than thirty days), and Kasper v. Brookhaven, 142 App. Div. 2d 213, 535 N.Y.S.2d 621 (1988) (upholding ordinance requiring homeowners who apply for accessory rental apartments to occupy principal residence).

It may be that where such a condition is imposed by virtue of a statute or regulation that is of district-wide *157application and is tailored to a specific land use policy; see, e.g., Ewing v. Carmel-by-the-Sea, supra, 234 Cal. App. 3d 1590 (maintenance of residential character of district by prohibiting very short-term rentals); such a condition might be valid. Where, however, as in the present case, the no rental condition is not district-wide and therefore presumably applies only to the property at issue, thereby affording the other property owners in the beach district a distinct market advantage, and there is no other regulation even approaching its scope or purpose, the continued maintenance of the no rental condition serves no valid purpose, and violates the strong and deeply rooted public policy in favor of the free and unrestricted alienability of property.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further proceedings according to law.

In this opinion NORCOTT, PALMER and VERTEFEU-ILLE, Js., concurred.

SULLIVAN, J.,

with whom MCDONALD, C. J., and KATZ, J., join, dissenting. The plaintiffs, Sebastian Gangemi and Rebecca J. Gangemi, claim that: (1) the no rental condition imposed by the defendant, the zoning board of appeals of the town of Fairfield (board), in connection with the board’s granting of a setback variance was personal to them and, therefore, void; (2) the board had no jurisdiction to impose the condition; (3) there was no reasonable relationship between the condition and the land use regulatoiy purpose threatened by the granting of the variance; (4) the condition discriminates against renters and, therefore, is against the strong public policy favoring the development of housing opportunities for all residents and the promotion of housing choice and economic diversity; (5) the condition violates the public policy favoring free and *158unrestricted alienation of property; (6) the condition violates public policy in that it violates article first, § 1, of the Connecticut constitution; and (7) the condition violates public policy in that it constitutes a taking of property without just compensation in violation of the federal and state constitutions. On the basis of the foregoing claims, the plaintiffs argue that, although they failed to appeal the imposition of the variance within the statutory time period, they may attack the no rental condition in a collateral enforcement action.

The majority concludes that the no rental condition violates the public policy against unreasonable restraints on alienation, and, therefore, that the plaintiffs’ claim is excepted from the general bar on collateral attacks. I respectfully disagree. For the reasons that follow, I do not believe that this case falls within any exception to the bar on collateral attacks.

I

Regarding the plaintiffs’ first claim, I agree with the conclusion of the Appellate Court that, because the no rental condition was not personal to the plaintiffs, it was not invalid under Reto v. Zoning Board of Appeals, 235 Conn. 850, 857-58, 670 A.2d 1271 (1996). See Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 567-68, 736 A.2d 167 (1999).

II

I next address the plaintiffs’ claim that the imposition of the no rental condition was outside the jurisdiction of the board, thereby permitting the plaintiffs to attack the condition collaterally pursuant to Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992).1

*159I first review the law governing the general scope of the board’s power. The powers delegated by the state to zoning boards of appeals are set forth in General Statutes § 8-6.* 2 This court previously has held that *160“[z]oning is an exercise of the police power. Zoning regulates the use of land irrespective of who may be the owner of such land at any given time and is defined as a general plan to control and direct the use and development of property in a municipality or a large part of it by dividing it into districts according to the present and potential use of the properties. State ex rel. Spiros v. Payne, 131 Conn. 647, 652, 41 A.2d 908 [1945] .... Karp v. Zoning Board, 156 Conn. 287, 297-98, 240 A.2d 845 (1968). As a creature of the state, the . . . [town whether acting itself or through its zoning board of appeals] can exercise only such powers as are expressly granted to it, or such powers as are necessary to enable it to discharge the duties and carry into effect the objects and purposes of its creation. Baker v. Norwalk, 152 Conn. 312, 314, 206 A.2d 428 [1965] . . . Bredice v. Norwalk, 152 Conn. 287, 292, 206 A.2d 433 [1964]; State ex rel. Sloane v. Reidy, 152 Conn. 419, 423, 209 A.2d 674 [1965]. In other words, in order to determine whether the [zoning action] in question was within the authority of the [board] . . . we do not search for a statutory prohibition against such an [action]; rather, we must search for statutory authority for the [action], Avonside, Inc. v. Zoning & Planning Commission, 153 Conn. 232, 236, 215 A.2d 409 (1965); [accord] Blue Sky Bar, Inc. v. Stratford, 203 Conn. 14, 19, 523 A.2d 467 (1987).” (Internal quotation marks omitted.) Builders Service Corp. v. Planning & Zoning Commission, 208 Conn. 267, 274-75, 545 A.2d 530 (1988).

*161This court previously has concluded that “[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance.” Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). The power to impose conditions is implied in the power to grant variances. See id. The purpose of a condition, however, must be to ensure that the variance is “in harmony with the general purpose and intent of the zoning ordinance.” Id.; see also General Statutes § 8-6 (a) (3).3

In Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 100-101, this court recognized the following principles: (1) the authority of a zoning board of appeals to impose conditions on a special permit is limited to the authority delegated to the town, and, therefore, on a direct appeal, this court would invalidate any condition that the agency had no authority to impose; and (2) certain actions by a zoning agency may be attacked after the time period for a direct appeal has lapsed, generally because there has been “defective statutorily required published notice to the public.” Id., 101. This court concluded, however, that “[n] either of these principles . . . requires the conclusion . . . that the recipient of a zoning permit that had been granted subject to a condition may accept both the benefits of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal . . . and then, years later, defend against the enforcement of the condition by attacking its validity ab initio.” (Citation omitted.) Id., 101-102.

“[W]e have uniformly held that failure to file a zoning appeal within the statutory time period deprives the trial court of jurisdiction over the appeal. Cardoza v. Zoning Commission, 211 Conn. 78, 82, 557 A.2d 545 (1989); Carpenter v. Planning & Zoning Commission, *162176 Conn. 581, 593, 409 A.2d 1029 (1979). We have also consistently held that when a party has a statutory right of appeal from the decision of an administrative agency, [it] may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. Carpenters. Planning & Zoning Commission, supra, 598 .... Moreover, we have ordinarily recognized that the failure of a party to appeal from the action of a zoning authority renders that action final so that the correctness of that action is no longer subject to review by a court. Haynes v. Power Facility Evaluation Council, 177 Conn. 623, 629-30, 419 A.2d 342 (1979); see Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 418 A.2d 82 (1979). All of these rules rest in large part, at least in the zoning context, on the need for stability in land use planning and the need for justified reliance by all interested parties— the interested property owner, any interested neighbors and the town—on the decisions of the zoning authorities. It would be inconsistent with those needs to permit ... a challenge to a condition imposed on a zoning permit when the town seeks to enforce it [many] years later. See Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 163, 535 A.2d 382, cert. denied, 207 Conn. 804, 540 A.2d 373 (1988) (permitting collateral attack on special permit condition would make land use regulation system impractical and unworkable).” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 102-103.

“[T]here are limits to the notion that subject matter jurisdictional defects may be raised at any time. . . . [T]he modem law of civil procedure suggests that even litigation about subject matter jurisdiction should take into account the importance of the principle of the finality of judgments, particularly when the parties have had a full opportunity originally to contest the jurisdic*163tion of the adjudicatory tribunal. [F.] James & [G.] Hazard, Civil Procedure (2d Ed. 1977) § 13.16, [pp.] 695-97; Restatement (Second), Judgments [§] 15 (Tent. Draft No. 5 1978). Monroe v. Monroe, 177 Conn. 173, 178, 413 A.2d 819 [appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979)]. Under this rationale, at least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so. [F.] James & [G.] Hazard, [supra, § 13.16, p.] 695; Restatement (Second), Judgments, supra [§ 15]. . . . Vogel v. Vogel, 178 Conn. 358, 362-63, 422 A.2d 271 (1979); see also Connecticut Pharmaceutical Assn., Inc. v. Milano, 191 Conn. 555, 560, 468 A.2d 1230 (1983); Daly v. Daly, 19 Conn. App. 65, 69-70, 561 A.2d 951 (1989); Morris v. Irwin, 4 Conn. App. 431, 433-34, 494 A.2d 626 (1985).” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 103-104.

“[This court] recognize[s], however . . . that there may be exceptional cases in which a previously unchallenged condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it, or in which the continued maintenance of a previously unchallenged condition would violate some strong public policy. It may be that in such a case a collateral attack on such a condition should be permitted.” Id., 104-105.

In Upjohn Co., this court considered the validity of a condition to a special permit rather than a condition to a variance; see id., 97; the latter of which is at issue in this case. This court has recognized that the power to impose conditions on special permits, unlike the power to impose conditions on variances, “must be *164found in the regulations themselves . . . and . . . maynotbe altered.” (Internal quotation marks omitted.) Lurie v. Planning & Zoning Commission, 160 Conn. 295, 304, 278 A.2d 799 (1971). I would conclude, however, that there is nothing in Upjohn Co. to suggest that this court’s reasoning in that case is not applicable to variance conditions. If a condition to a variance does not operate to ensure that the variance is in harmony with the purpose and intent of legitimate zoning ordinances, it is not within the zoning power delegated to the board. See Burlington v. Jencik, supra, 168 Conn. 509; cf. Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 65, 574 A.2d 212 (1990) (variance condition that is not reasonable is not within power of zoning board of appeals to impose). Under Upjohn Co., if the lack of such power in the present case was obvious, or the imposition of the condition was “so far outside what could have been regarded as a valid exercise of zoning power”; Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105; then I would hold that the plaintiffs may attack the no rental condition collaterally.

This court previously has not considered whether there are circumstances under which a variance condition prohibiting the rental of real property may advance a legitimate purpose or intent of the zoning ordinances and thus come within the purview of the zoning power delegated to the zoning boards of appeal. We have recognized, however, “ [t]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . .” (Citations omitted.) Reid v. Zoning Board of Appeals, supra, 235 Conn. 857; see also Dinan v. Board of Zoning Appeals, 220 Conn. 61, 66-67 n.4, 595 A.2d 864 (1991) (“the identity of the user is irrelevant to zoning”); Builders Service Corp. v. Planning & Zoning Commission, supra, 208 Conn. 285 (“[z]oning is concerned with the use of property and not primarily with its ownership” [internal quotation marks omitted]). This *165principle derives from the more general principle that “zoning power may only be used to regulate the use, not the user of the land.” (Internal quotation marks omitted.) Reid v. Zoning Board of Appeals, supra, 857, quoting T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) p. 88. These principles suggest that a regulation that limits occupancy of a property to owners of the property is not within the zoning power. This, in turn, suggests that a variance condition that operates to achieve the same end does not advance a legitimate zoning purpose.

The general trend, both in this state and in other jurisdictions, however, has been toward a less strict application of the principle that the zoning power must be used to regulate the use and not the user of the land. See Dinan v. Board of Zoning Appeals, supra, 220 Conn. 67 (considering validity of ordinance restricting “the term family to persons related by blood, marriage or adoption” and concluding that “[i]f there is a reasonable basis to support the separate treatment for zoning purposes of families of related individuals as compared to groups of unrelated individuals, the broad grant of authority conferred by [General Statutes] § 8-2 to adopt regulations designed ... to promote . . . the general welfare must be deemed to sanction a zoning regulation reflecting that distinction in the uses permitted in different zoning districts” [internal quotation marks omitted]); id., 66-67 n.4 (“the identity of the user is irrelevant to zoning, but user terminology may be employed to describe particular uses”); Taxpayers Assn. of Weymouth Township, Inc. v. Weymouth Township, 71 N.J. 249, 259, 275, 364 A.2d 1016 (1976), cert. denied sub nom. Feldman v. Weymouth Township, 430 U.S. 977, 97 S. Ct. 1672, 52 L. Ed. 2d 373 (1977) (zoning ordinance limiting mobile home units to trailer parks and their use to families in which head of household is at least fifty-two years old is within zoning power as promoting *166general welfare); id., 277 (observing that “regulation of land use cannot be precisely dissociated from regulation of land users” [emphasis in original]); Bonner Properties, Inc. v. Franklin Township Planning Board, 185 N.J. Super. 553, 572, 449 A.2d 1350 (1982) (zoning ordinance prohibiting certain form of land ownership was within power delegated to municipality under enabling statute); id., 567 (principle that “the zoning power . . . cannot be employed to regulate ownership of land or the identity of its occupants” implicitly overruled); see also 5 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning (4th Ed. Ziegler 2000) § 56A.02 [1] [c], p. 56A-5 (“this ultra vires principle that zoning regulates the use of land and not the status or identity of the owner or person who occupies the land has not always been strictly applied”). These authorities suggest that regulations that restrict forms of ownership and that affect the occupants, rather than the particular use, of a property, may be valid if they are reasonably related to a legitimate zoning purpose. But see FGL & L Property Corp. v. Rye, 66 N.Y.2d 111, 114, 116, 485 N.E.2d 986, 495 N.Y.S.2d 321 (1985) (recognizing that “it is a ‘fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it’ ” and holding that planning board does not have power to require certain form of ownership).

Although this court previously has not considered the issue, other jurisdictions have considered the application of the principle that the zoning power must be exercised to regulate the use, not the user, to restrictions on the rental of property. A number of courts have upheld such restrictions. See, e.g., Ewing v. Carmel-by-the-Sea, 234 Cal. App. 3d 1579, 1584, 1598, 286 Cal. Rptr. 382 (1991), cert. denied, 504 U.S 914, 112 S. Ct. 1950, 118 L. Ed. 2d 554 (1992) (upholding constitutionality of ordinance prohibiting -rental of residential property for fewer than thirty days as protecting residential *167character of neighborhood and having “substantial relation to the public health, safety, morals or general welfare” [internal quotation marks omitted]);4 Kasper v. Brookhaven, 142 App. Div. 2d 213, 215-19, 535 N.Y.S.2d 621 (1988) (upholding ordinance limiting availability of permits for accessory rental apartments to those homeowners who occupy home in which accessory rental apartment is to be maintained); id., 222 (recognizing that “many zoning laws extend beyond the mere regulation of property to affect the owners and users thereof’).

Several courts, however, have invalidated zoning actions restricting the rental of property. See Kirsch Holding Co. v. Manasquan, 59 N.J. 241, 251-52, 281 A.2d 513 (1971) (holding that zoning ordinances prohibiting rental to groups of individuals not qualifying as families under statutory definition violates substantive due process);5 United Property Owners Assn. of Belmar v. *168 Belmar, 185 N.J. Super. 163, 167, 170, 171, 447 A.2d 933, cert. denied, 91 N.J. 568, 453 A.2d 880 (1982) (invalidating portion of ordinance prohibiting temporary or seasonal rentals except when occupant intends to reside permanently in dwelling as “an extreme limitation on rights of ownership of private property” and arbitrary); Kulak v. Zoning Hearing Board, 128 Pa. Commw. 457, 462, 563 A.2d 978 (1989) (concluding that condition to special exception to zoning regulations requiring owner of apartment building to reside in one apartment did not serve zoning purpose because “[t]he . . . identity of an apartment occupant obviously has no relationship to public health, safety or general welfare,” but holding that, because original owner had not appealed imposition of condition, he nevertheless was bound by it); see also 5 A. Rathkopf & D. Rathkopf, supra, § 56A.02, p. 56A-8 (“[t]he principle that zoning enabling acts authorize local regulation of land use and not regulation of the identity or status of owners or persons who occupy the land would likely be held to apply to invalidate zoning provisions distinguishing between owner-occupied and rental housing” [internal quotation marks omitted]).

In light of the foregoing legal authorities, I would conclude that this court need not decide whether the no rental condition was within the board’s power because, even if it is assumed that it was not, the board’s lack *169of subject matter jurisdiction was not obvious, and the imposition of the condition was not so far outside the authority delegated to the board by the state that any reliance on that condition, and on the plaintiffs’ failure to appeal, was unjustified. As I noted previously in this opinion, there are no Connecticut appellate cases considering whether a limitation or prohibition on renting is within the zoning power, and the case law of other jurisdictions is split on the issue. Accordingly, for reasons that I will discuss more fully in part III of this opinion, the board reasonably could have believed that the no rental condition advanced the legitimate zoning puipose of enhancing the residential character of the neighborhood and its year-round stability, a purpose that was threatened by the granting of the variance.

The majority distinguishes the no rental condition from the no rental regulations upheld in other jurisdictions on the grounds that the no rental condition is not district-wide and is not tailored to a specific land use policy. I would note, however, that, although the owner occupancy requirement in Kasper v. Brookhaven, supra, 142 App. Div. 2d 213, was a district-wide ordinance in the sense that it applied to anyone in the district who wished to maintain an accessory apartment, it operated, in effect, as a condition to a special permit. See id., 215-16 (ordinance allowed maintenance of accessory apartment upon obtaining special permit). Furthermore, the court in Kasper found that the owner occupancy requirement had “the permissible legislative purpose of providing occupying homeowners of modest means with additional income for use in retaining ownership of their residences”; id., 223; a purpose less related to land use than the purposes advanced by the board in the present case. Accordingly, without necessarily agreeing with the court in Kasper, I would conclude that case does support the board’s claim that the *170imposition of the no rental condition was within the powers delegated to it by the state.

I would conclude that the board reasonably could have believed that the imposition of the no rental condition was within its power. Although, as the plaintiffs note, such a reasonable belief would not have conferred subject matter jurisdiction on the board, it does indicate that any lack of jurisdiction was not obvious and that reliance on the condition by interested parties was justified. I further note that there is no claim in this case that the plaintiffs did not have a prior opportunity to challenge the condition at the time the variance was granted. Finally, I note that the plaintiffs themselves, in their application for a variance, represented that: “Owners intend to use the property for family use only on a [year-round] basis.” Interested parties reasonably could have inferred from the plaintiffs’ application that the plaintiffs intended to use the property themselves, and not for rental purposes. I recognize, as the plaintiffs note, that their representation that the property would be for family use only did not confer subject matter jurisdiction on the board to limit the use of the property to the plaintiffs. Nevertheless, because the inference that the plaintiffs did not intend to rent the property was reasonable, I would conclude that reliance on the condition was not unjustified.

Accordingly, I would conclude that the no rental condition is not subject to collateral attack on the ground that the lack of jurisdiction to impose it was obvious, or that it was “so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it . . . .” Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105.

Ill

Relying on Burlington v. Jencik, supra, 168 Conn. 506, the plaintiffs also argue that, even if the board had *171the power to impose a no rental condition, it did not have the authority to do so in this case. Specifically, the plaintiffs claim that the condition had no relationship to the granting of the variance and that, accordingly, they may collaterally attack it. Cf. Upjohn Co. v. Board of Zoning Appeals, supra, 224 Conn. 105. Because I would not decide, as a general matter, that the board had no jurisdiction to impose the no rental condition, I must address this argument.

In Burlington v. Jencik, supra, 168 Conn. 507, the defendant property owners sought a variance from the building setback lines in order to build a garage. The zoning board of appeals granted the variance on the condition that the garage would “be used exclusively for the private garaging of automobiles and not for commercial repair work of any type.” (Internal quotation marks omitted.) Id. Commercial uses generally were allowed in the zone. See id., 510. The defendants did not appeal from that decision. Id., 508. The property owners built the garage and used it for the storage and sale of merchandise. Id. The town brought an action seeking to enjoin the property owners from using the garage for commercial purposes and prevailed. Id. The property owners appealed to this court. Id.

This court noted that the function of a condition to a variance is to “[alleviate] the harm which might otherwise result” from the granting of the variance without the condition. Id., 509. This court concluded that the condition banning commercial use was in harmony with the purpose of the variance from the setback requirements, which was to relieve intolerable parking conditions in the neighborhood, and upheld it as a valid use of the zoning power. Id., 510-11.

I would not conclude in the present case that the no rental condition was so obviously unrelated to the variance from the setback requirements that the plain*172tiffs should be permitted to attack the condition collaterally. As this court implicitly recognized in Jencik, a condition to a variance need not be directly related to the alleviation of a threat to the purposes of the specific regulation from which the applicant received the variance. The ban on commercial uses in Jencik did not directly further the zoning goals underlying setback requirements. See Rogers v. Zoning Board of Appeals, 154 Conn. 484, 487, 227 A.2d 91 (1967) (“[t]he obvious purpose of yard requirements and setback lines is to prevent fibre hazards, provide for proper drainage and make suitable provision for light and air”). Rather, the imposition of a condition on a variance is a valid exercise of the board’s power when the condition is reasonably related to the alleviation of harms to the general purpose and intent of the zoning ordinances potentially caused by granting the variance. Burlington v. Jencik, supra, 168 Conn. 509.

In the present case, the board reasonably could have believed that the no rental condition alleviated the harm caused by permitting the intensification of the plaintiffs’ nonconforming use of their property. In granting the variance—which had the effect of permitting year-round use of the property—only on the condition that the property would not be rented, the board reasonably could have believed that, even though its action could result in an increase in the population density of the neighborhood during winter months, which the board saw as a harm to the zoning scheme, the condition mitigated that harm by advancing the neighborhood’s character as a place for family residences and its year-round stability.6 On the other hand, had the board *173granted the variance without the owner occupancy requirement, its action potentially would have contributed to the population density of the neighborhood during the winter months and its instability year round, without any countervailing benefits to the neighborhood. Thus, contrary to the plaintiffs’ argument, the board was not necessarily discriminating arbitrarily against families that rent a property in favor of families that own and occupy a property, but, rather, was attempting, at least arguably, to promote continuous use by families on a year-round basis. I would not conclude that this was an obviously illegitimate zoning purpose.7

The majority points out that the board stated at oral argument that the zoning regulations were changed *174after the variance in the present case was granted to eliminate restrictions on year-round use. I first note that the board represented in its brief to this court that, when the variance was granted, § 2.5.1 of the Fairfield zoning regulations governed changes from seasonal to year-round use. Section 2.5.1, however, governs extensions of nonconforming uses in general and does not address the issue of year-round use. I would conclude, therefore, that the record is insufficient for this court to determine whether there was any change in the regulations concerning year-round use and, if so, what that change entailed.

Even if it is assumed, however, that there was such a change, that would not change my analysis. Even if the change in regulations gave the plaintiffs the abstract right to occupy their house year round, without the existence of the setback variance, which enabled the plaintiffs to enlarge a bathroom in order to install a shower, and to install a furnace room, they would not have been able to do so. The essential point is that, regardless of what the regulations allowed for conforming properties, the variance allowed an intensification of the plaintiffs’ nonconforming use, and, therefore, the board had the power to impose conditions to alleviate potential harms caused by that intensification. I would conclude that the board reasonably could have concluded that the no rental condition did so.

Furthermore, it is important to emphasize that the board did not single out the plaintiffs’ property for special or discriminatory regulation vis-a-vis other neighboring properties or in general, but imposed the no rental condition because the plaintiffs themselves applied to the board for a variance, i.e., special and discriminatory favorable treatment. In my view, under the circumstances of this case, in which the plaintiffs themselves volunteered in their application that, if the board were to grant the variance, they would use the *175property for family use only, it would be unjustified to allow them to attack that condition now, while allowing them to retain the benefit of the variance.

Accordingly, without deciding whether the no rental condition would be found on a direct appeal to be related to the alleviation of the harm caused by granting the variance or, if not, whether a less restrictive limitation on renting would be permissible, I would conclude that the board reasonably could have believed that the condition advanced the purpose and intent of the zoning scheme, and, therefore, that the absence of any relationship between the condition and the variance was not obvious. Therefore, I would conclude that the no rental condition in the present case does not fall within the narrow exception to the bar on collateral attacks set forth in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105.

IV

I now address the plaintiffs’ claim that the no rental condition falls within the exception to the bar on collateral attacks for zoning actions that violate a strong public policy.

A

The plaintiffs first argue that the prohibition on renting is discriminatory against renters and, therefore, in violation of § 8-2 (a),8 which provides that the regulation *176of land shall encourage the development of housing opportunities for all residents of the municipality and promote housing choice and economic diversity. I would follow the Appellate Court’s reasoning and conclusion that the plaintiffs do not have standing to raise this claim. See Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 569-70 n.8.

B

The plaintiffs also argue that the no rental condition restricts their ability to grant a periodic tenancy in their property and, therefore, violates the public policy against “restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” Peiter v. Degenring, 136 Conn. 331, 336, 71 A.2d 87 (1949).

I recognize that, to some extent, the no rental condition restricts the plaintiffs’ ability to alienate their property. This court implicitly recognized, however, in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, that there occasionally will be restrictions, including otherwise improper restrictions, on property rights, that, because of the important public policy favoring reliability and finality of zoning actions, are not subject to collateral attack, even though they probably would be invalidated in a direct appeal. See id., 104-105 & n.6.1 would conclude that the no rental condition *177is not so restrictive of the plaintiffs’ ability to alienate their property that that consideration outweighs the important public policy considerations underlying the bar on collateral attacks.

The majority states that, in this case, this court should not “focus ... on whether the condition was so far outside the normal limits of zoning authority that there could not have been any justified reliance on the challenged condition. . . . Instead, [this court should] focus on the continued maintenance of the condition, and whether, irrespective of the fact that the condition was previously unchallenged, it nonetheless currently violate[s] some strong public policy.” (Citation omitted; internal quotation marks omitted.) To the extent that the majority suggests that the considerations of reliance, fairness and finality underlying the policy against permitting collateral attacks of zoning decisions; see Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104 n.6; are not at issue when a decision implicates public policy rather than the limits of zoning authority, I disagree. Nothing in Upjohn Co. supports such a distinction. Nor does the case law of other jurisdictions. As I discuss later in this opinion, one court has held that, even when a condition is of a type that, several years after having been imposed, is found to be “ ‘an out-and-out plan of extortion’ ” and in violation of the state constitution, the policy favoring finality of zoning decisions operates to bar the property owners from challenging the condition after the time limitation on appeals has expired. Auburn v. McEvoy, 131 N.H. 383, 384-85, 553 A.2d 317 (1988) (Souter, J.).9 In McEvoy, *178the condition operated to require the property owners to convey 3.3 acres of their property to the town outright. Id., 384. Thus, the property owners in McEvoy were deprived of every stick in their bundle of property rights, not, as in the present case, just one.10 Thus, I would conclude that, regardless of whether the zoning action is alleged to be outside the zoning power or to violate some public policy, this court must weigh the burden imposed by the action against the considerations of reliance and finality underlying the bar on collateral attacks.

In the present case, the public policy at issue is “the policy of the law not to uphold restrictions upon the free and unrestricted alienation of property unless they serve a legal and useful purpose.” (Emphasis added.) Peiter v. Degenring, supra, 136 Conn. 336. As I previously noted, I would conclude that the board reasonably could have believed that the no rental condition did serve a legal and useful purpose. Accordingly, I would conclude that the board reasonably could have believed that the condition did not violate the public policy against restraints on alienation, and, therefore, reliance on the condition was not unjustified under the public policy prong of Upjohn Co. Therefore, I would conclude that the plaintiffs cannot prevail on this claim.

C

The plaintiffs also claim that the condition violates the constitution of Connecticut, article first, § 1, which *179provides in relevant part: “[N]o man or set of men are entitled to exclusive public emoluments or privileges from the community.” The plaintiffs, however, have failed to provide any authority or analysis in support of this claim. “We are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly.” (Citation omitted; internal quotation marks omitted.) State v. Henderson, 47 Conn. App. 542, 558, 706 A.2d 480, cert. denied, 244 Conn. 908, 713 A.2d 829 (1998). Accordingly, I would decline to consider this claim.

D

Finally, the plaintiffs claim that the no rental condition was an unconstitutional taking under the fifth and fourteenth amendments to the United States constitution, and article first, § 11, of the constitution of Connecticut.11 I do not agree with the Appellate Court’s *180conclusion that, because “the Superior Court lacked subject matter jurisdiction to entertain the appeal, it is unnecessary ... to address this claim.” Gangemi v. Zoning Board of Appeals, supra, 54 Conn. App. 561 n.3. Although, according to the Appellate Court, the Superior Court did not have jurisdiction to hear the appeal on the ground that imposition of the condition was obviously outside the board’s power, an unconstitutional condition may violate strong public policy and, therefore, fall within the public policy exception to the bar on collateral attacks. Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 105. Accordingly, I would address the plaintiffs’ claim that the condition is subject to collateral attack because it is unconstitutional.

I first consider whether an unconstitutional condition automatically should come within the public policy exception to the general bar on collateral attacks. In Upjohn Co., this court implicitly recognized that not every zoning action that restricts property rights, but is not reasonably related to advancing a legitimate zoning purpose and is therefore ultra vires, will be excepted from the general bar on collateral attacks. I see no reason why a different rule should apply to a zoning action that has unconstitutionally infringed upon property rights. Therefore, I would conclude that an unconstitutional zoning action should not be excepted automatically from the bar on collateral attacks.

This conclusion is bolstered by the ruling of the Supreme Court of New Hampshire in Auburn v. McEvoy, supra, 131 N.H. 383. In that case, the defendant property owners had sought approval for the subdivision of their property. Id. The town’s subdivision regulations conditioned approval of a subdivision application *181on the developer’s dedication of at least 5 percent of the total area of the subdivision to the town. Id., 383-84. The subdivision was approved subject to the condition, and the property owners did not appeal. Id., 384. Thereafter, the Supreme Court of New Hampshire ruled in J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12 (1981), that such ordinances violate the state constitution. The property owners sought recon-veyance of the property that had been dedicated to the town, and the town brought a declaratory judgment action to determine the rights of the parties. Auburn v. McEvoy, supra, 384. The trial court ruled against the property owners on the ground of laches; id.; based on a finding “that changed circumstances would render any reconveyance inequitable . . . [because] the subdivision’s residents were aware when they purchased their properties that the lot in question was meant to remain available for recreation, and had changed their positions expecting that the lot would remain commercially undeveloped.” Id., 385.

On appeal, the Supreme Court of New Hampshire recognized that the purpose of the statutory time limitation for bringing appeals from zoning decisions was to “endue such [decisions] with finality, at least insofar as the [decision] applies a town’s land use regulations in the particular instance”; id.; and noted that a broad rule exempting constitutional claims from the time limitation “would be justifiable only if the appeal period . . . imposed an unreasonable restriction on the assertion of constitutional property rights, whereas the [property owners] have proffered no reason to suppose that this is so.” Id., 388. Accordingly, the court held that the property owners were barred from bringing the claim. Id.

I am persuaded by the reasoning of the court in McEvoy. Nevertheless, our suggestion in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 104-105, *182that there may be exceptional cases in which collateral attacks may be brought against zoning actions that violate strong public policy, would lead me to reject a categorical rule barring collateral attacks on unconstitutional zoning actions. Rather, by analogy to our holding in Upjohn Co. that a zoning action that is allegedly ultra vires is subject to collateral attack only when the lack of subject matter jurisdiction is obvious or the action is “so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it”; id., 105; I would conclude that allegedly unconstitutional zoning actions are subject to collateral attack only when the unconstitutionality is obvious, or when the action is so invasive of constitutional property rights that there could have been no justified reliance on it.

Accordingly, I would consider whether the no rental condition is in this category of unconstitutional zoning actions that is subject to collateral attack. The plaintiffs, relying on Dolan v. Tigard, 512 U.S. 374, 377, 391, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) (considering constitutionality of condition to approval of building permit requiring that landowner dedicate portion of land to public use and holding that there must be “ ‘rough proportionality’ ” between dedication and nature and impact of proposed development), and Nollan v. California Coastal Commission, 483 U.S. 825, 827, 837, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987) (considering constitutionality of condition to approval of building permit requiring that landowner grant public easement across property and holding that unless condition serves same governmental purpose as original building restriction, condition is “ ‘an out-and-out plan of extortion’ ” and thus unconstitutional), argue that the no rental condition does not meet the constitutional requirement that a condition imposed by a zoning agency be related to the discretionary benefit that the *183agency is conferring. The court in Dolan and Nollan considered whether exactions, that, in and of themselves, clearly would have been unconstitutional takings; Dolan v. Tigard, supra, 384; Nollan v. California Coastal Commission, supra, 831; were constitutional conditions to the approval of building permits when imposed in exchange for the granting of discretionary government benefits. The court concluded that the exactions were unconstitutional takings, because, in each case, there was an insufficient nexus between the condition and the benefit. See Dolan v. Tigard, supra, 394-95; Nollan v. California Coastal Commission, supra, 837.

The board argues, however, that, in the present case, the no rental condition was not a per se unconstitutional taking and, therefore, not subject to analysis under Dolan and Nollan. Although I recognize, as is discussed later in this opinion, that a zoning action that is ultra vires may be an unconstitutional taking per se, I would agree with the board. Analyzing the condition from the perspective of the board’s reasonable belief that the imposition of the condition was within its authority, the condition did not constitute a regulatory taking and was not so invasive of the plaintiffs’ constitutional property rights that there could have been no justified reliance thereon.

This court previously has held that, “[w]hile [a]ll property is held subject to the right of government to regulate its use in the exercise of the police power; Figarsky v. Historic District Commission, 171 Conn. 198, 206, 368 A.2d 163 (1976); if regulation goes too far, it will be recognized as a taking. . . . Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014, 112 S. Ct. 2886,120 L. Ed. 2d 798 (1992). In analyzing regulatory action to determine whether it goes too far, we are mindful that the difference between a regulation that results in a compensable taking and one that does not *184generally is a matter of degree. Luf v. Southbury, 188 Conn. 336, 349, 449 A.2d 1001 (1982). Although at one extreme a regulation may deprive an owner of the beneficial use of property so as to constitute a practical confiscation, thereby requiring compensation; see Lucas v. South Carolina Coastal Council, supra, 1015; Bauer v. Waste Management of Connecticut, Inc., 234 Conn. 221, 256, 662 A.2d 1179 (1995); if a regulation results in something less than a practical confiscation, the determination of whether a taking has occurred must be made on the facts of each case with consideration being given not only to the degree of diminution in the value of the land but also to the nature and degree of public harm to be prevented and to the alternatives available to the landowner. . . . The financial effect on a particular owner must be balanced against the health, safety and welfare of the community. . . . Bauer v. Waste Management of Connecticut, Inc., supra, 256; see Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 492, 107 S. Ct. 1232, 94 L. Ed. 2d 472 (1987) (determination of whether regulatory action constitutes taking necessarily requires weighing of private and public interests).” (Internal quotation marks omitted.) Cohen v. Hartford, 244 Conn. 206, 220-21, 710 A.2d 746 (1998). “[0]ur test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property . . . .” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., supra, 253. “[W]e have held that zoning reclassifications can constitute an unconstitutional taking when they leave a property owner with no economically viable use of his [or her] land other than exploiting its natural state.’’'’ (Emphasis in original; internal quotation marks omitted.) Id., 254.

The no rental condition does not deprive the plaintiffs of all economically viable use of their property. They *185may occupy the property themselves or, as the board has noted, they may relinquish the variance and rent it out seasonally. Furthermore, although I would not decide in the present case whether the burden imposed by the condition was balanced by its advancement of a legitimate zoning purpose when the condition was imposed, inasmuch as the absence of any such purpose was not obvious, I would conclude that any effect of the condition on the value of the property is mitigated, at the present time, by the public “need for stability in land use planning and the need for justified reliance by all interested parties ... on the decisions of the zoning authorities” that underlie the policy against allowing collateral attacks. Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 102. Accordingly, because the condition is not an obviously unconstitutional regulatory taking, I would conclude that it is not subject to collateral attack, especially in light of the fact that the plaintiffs volunteered the condition before the board had granted the variance.

I recognize that a zoning action that is beyond the zoning power may constitute an unconstitutional taking, no matter how far it goes. E.g., Nectow v. Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842 (1928); see also Port Clinton Associates v. Board of Selectmen, 217 Conn. 588, 600, 587 A.2d 126, cert. denied, 502 U.S. 814, 112 S. Ct. 64, 116 L. Ed. 2d 39 (1991) (“[w]hen the regulation itself is not a ‘valid’ exercise of the police power, United States Supreme Court precedents imply that no matter how ‘far’ it goes, the regulation may constitute a taking”). I concluded in part II of this opinion, however, that the board reasonably could have believed that the no rental condition was within its authority to impose, and that the imposition of that condition, therefore, was not an obviously invalid use of the board’s power. Therefore, without deciding whether the condition, as an ultra vires action, was an unconsti*186tutional taking under Nectow, I would conclude that, because the board’s lack of jurisdiction was not obvious, any such unconstitutionality was not obvious.

In sum, I would conclude that the no rental condition does not fall within any of the exceptions to the bar on collateral attacks of zoning actions, and that the trial court, therefore, lacked subject matter jurisdiction to entertain the plaintiffs’ appeal.

Accordingly, I respectfully dissent.

DANA, J.

[¶ 1] Eric and Patricia Kosalka appeal from a judgment entered in the Superior Court (Sagadahoc County, Calkins, J.) upholding as constitutional a provision of the Georgetown Shoreland Zoning Ordinance that all conditional use developments “conserve natural beauty.” Several abutting landowners cross appeal, contending that the proposed site is located within a zone that does not allow campgrounds as conditional uses. The record supports a finding that the proposed site is in a district that allows campgrounds. We conclude, however, that the “conserve natural beauty” requirement is an unconstitutional stan-dardless delegation of legislative authority and therefore a violation of due process. We vacate the judgment.

I. BACKGROUND

[¶ 2] On February 21, 1997, Eric and Patricia Kosalka submitted an application to the Georgetown Planning Board (GPB) for a permit to construct a nine-trailer recreational vehicle campground1 on property owned by Eric’s mother, Ruth Kosal-ka.

*185[¶ 3] The Georgetown Shoreland Zoning Ordinance places all property within the shoreland zone into one of three districts — the Resource Protection District, the General Development Distinct, and the Limited Residential-Recreational District. The Ordinance provides that the Resource Protection District includes, among other areas, all areas within the 100-year flood plain except “those areas which are currently developed.” The General Development District includes areas of two or more acres “devoted to intensive recreational, commercial, or industrial activities” and the Limited Residential-Recreational District is a catch-all district, including all areas not included in either the Resource Protection District or the General Development District.

[¶ 4] The Ordinance directs individuals to the Georgetown “Shoreland Zoning Map” to confirm that property rests in certain districts. Although the Ordinance places the site of the proposed campground in the Resource Protection District because it is located within the 100-year flood plain, the Shoreland Zoning Map places the site in the Limited Residential-Recreational District. The Ordinance provides that “[w]here uncertainty exists as to the exact location of the district boundary lines, the Board of Appeals shall be the final authority as to the location.”

[¶ 5] The Ordinance further provides that campgrounds are allowed, as a conditional use, in both the General Development and the Limited Residential-Recreational Districts. To qualify as a conditional use, a proposed campground must: (1) “not result in unsafe or unhealthy conditions”; (2) “not result in erosion or sedimentation”; (8) “not result in pollution”; (4) “not result in damage to spawning grounds, fish, aquatic life, bird and other wildlife habitat”; (5) “conserve shoreland vegetation”; (6) “conserve visual points of access to waters”; (7) “conserve actual points of public access to waters”; (8) “conserve natural beauty”; and (9) “avoid problems associated with flood plain development and use.”

[¶ 6] The GPB denied the Kosalkas’ application, concluding that the proposed site was located in Resource Protection District of the shoreland zone because it was within the 100-year flood plain and was not developed. The GPB also found that the proposed campground did not satisfy the conditional use guidelines because it did not “conserve the natural beauty” of the area.

[¶ 7] The Kosalkas appealed the GPB’s decision to the Georgetown Board of Zoning Appeals (ZBA). The ZBA partially reversed the GPB, finding that the proposed campground was located in the Limited Residential-Recreational District because the lot was “actually developed.” Nevertheless, the ZBA denied the Kosal-kas’ application because it concluded that it did not have jurisdiction to consider whether the “conserve natural beauty” requirement was constitutional.

[¶ 8] The Kosalkas filed a complaint in the Superior Court pursuant to M.R. Civ. P. 80B, challenging the constitutionality of the “natural beauty” requirement. Several abutting landowners also filed their own complaint challenging the Board’s ruling that the proposed campground was located in the Limited Residential-Recreational District. After the two complaints were consolidated, the Court affirmed the ZBA’s conclusion that the proposed development is located in the Limited Residential-Recreational District, and found that the Ko-salkas “failed to demonstrate that [the natural beauty language] is unconstitutional on its face.” The Superior Court remanded the case to the ZBA to consider whether the proposed campground satisfied the Ordinance’s natural beauty requirement.

[¶ 9] On remand, the ZBA held public hearings, visited the site, viewed pictures and plans, and concluded that the proposed campground would not conserve the area’s natural beauty. The ZBA, therefore, affirmed the Planning Board’s denial *186of a campground permit. The Kosalkas again appealed to the Superior Court, which affirmed. This appeal followed.2

II. DISCUSSION

[¶ 10] As an initial matter, we review the Intervenors’ claim that the ZBA erred in concluding that the proposed development falls within the Limited Residential-Recreational District. The Intervenors bear the burden of establishing that the ZBA’s conclusion was an abuse of discretion, an error of law, or unsupported by substantial evidence in the record. See Herrick v. Town of Mechanic Falls, 673 A.2d 1348, 1349 (Me.1996). The Ordinance provides that a lot within the geographic boundaries of the Resource Protection District may nevertheless fall within the Limited Residential-Recreational District if that lot is “actually developed.” Further, the Ordinance defines a lot to include land registered in the Registry of Deeds. Here, the ZBA found that because the only lot registered in the registry of deeds supported a house, a driveway, a shack, and mowed fields, the lot was “actually developed.” We cannot say that this determination is an abuse of discretion, an error of law, or is made without evidentiary support. To the contrary, the ZBA’s decision is well within its discretion and is well supported by competent evidence in the record. Accordingly, we conclude that the ZBA did not err or abuse its discretion when it concluded that the lot fell within the “actually developed” exemption, and was therefore in the Limited Residential-Recreational District.3

[¶ 11] Turning to the Kosalkas’ constitutional challenge, the Kosalkas bear the burden of demonstrating that the Ordinance is unconstitutional. See Gorham v. Town of Cape Elizabeth, 625 A.2d 898, 900 (Me.1993). The Kosalkas argue that the “conserve natural beauty” requirement is an unconstitutional delegation of legislative authority because it fails to “furnish a guide which will enable those to whom the law is to be applied to reasonably determine their rights.” Stucki v. Plavin, 291 A.2d 508, 510 (Me.1972). We agree.

[¶ 12] We have noted in the conditional use context that “in order to withstand attack as an impermissible legislative delegation of authority, ordinances that establish criteria for acceptance of a conditional use must specify sufficient reasons why such a use may be denied.” Gorham, 625 A.2d at 900. Developers are entitled to know with reasonable clarity what they must do under state or local land use control laws to obtain the permits or approvals they seek. Waterville Hotel Corp. v. Board of Zoning Appeals, 241 A.2d 50, 53 (Me.1968); see also Cope v. Inhabitants of Brunswick, 464 A.2d 223, 227 (Me.1983) (compliance with the “health, safety and welfare of the public and the essential character of the area” not sufficiently specific); Shapiro Bros. Shoe Co. v. Lewiston-Auburn Shoeworkers Protective Ass’n, 320 A.2d 247, 253 (Me.1974) (the public should not have to guess at the meaning of a statute “leaving them without assurance that their behavior complies with legal requirements .... ”).

[¶ 13] In Stucki v. Plavin, we held unconstitutional a zoning ordinance that allowed lots that straddled district lines to be governed by the less restrictive district, “provided, however, that such extension of use into the more restrictive portion shall meet the approval of the Zoning Board of Appeals.” Stucki, 291 A.2d at 509. In striking down that provision, we noted that *187the ZBA was forced to consider, “Under what set of facts do we grant or withhold approval?” and the applicant had to ask, “What must I present to gain the Board’s approval?” Id. at 511. We concluded that “[i]f there is no language in the ordinance, which, by reasonable interpretation answers these questions, the [ordinance] ... is void on its face.” Id.

[¶ 14] Additionally, in Wakelin v. Town of Yarmouth, 523 A.2d 575, 576 (Me.1987), we struck down a zoning ordinance that gave the ZBA the discretion to deny special exception applications because the proposed use was not “compatible with the existing uses in the neighborhood, with respect to ... intensity of use ... and density of development.” Id. We concluded that the ordinance “fails to articulate the quantitative standards necessary to transform the unmeasured qualities ‘intensity of use’ and ‘density of development’ into specific criteria objectively useable by both the Board and the applicant.” Id. at 577. Without such specific objective criteria, the ZBA was “free to express a legislative-type opinion about what is appropriate for the community .” Id.

[¶ 15] Here, the Georgetown Ordinance requires that all development “conserve natural beauty.” However, all development, to some extent, destroys or impairs “natural beauty.” If the provision means that all natural beauty must be conserved, then all development must be banned. Because the provision cannot reasonably be interpreted to ban all development, the question becomes: How much destruction is okay? Or, put another way; How much conservation is required? On this question, however, the Georgetown Ordinance, like the ordinance in Stucki, is silent. Neither developers nor the ZBA are given any guidance on how to interpret the “conserve natural beauty” requirement. Instead, developers are left guessing at how much conservation is necessary, and the ZBA is free to grant or deny permits as it sees fit.

[¶ 16] Unlike the requirements in cases such as Gorham and Waterville Hotel, there is simply no way to quantify “natural beauty.” The Georgetown Ordinance does not answer the questions first posed in Stucki — what must an applicant do to obtain a permit; and under what set of facts should the ZBA grant or deny the application. No one can adequately advise the Kosalkas (or any other Georgetown developer) how to create a development plan that will satisfy the requirement because, without guidance in the Ordinance, the ZBA is free to grant or deny permits on whatever set of facts it sees fit. This is precisely the problem we sought to avoid in Wakelin. Under the Georgetown Ordinance, a developer can bury all utilities, maintain the site’s vegetation, and even plant additional trees, and still fall short in the minds of ZBA members, who are free to make legislative-type decisions based on any factor they independently deem appropriate.

[¶ 17] Because the condition that all proposed developments “conserve natural beauty” is an unmeasurable quality, totally lacking in cognizable,- quantitative standards, this condition is an unconstitutional delegation of legislative authority and vio-lative of the due process clause. Additionally, because the Georgetown Planning Board concluded that the proposed campground satisfied all other requirements found in the Ordinance, we vacate the judgment of the Superior Court and remand to the ZBA with instructions to grant the conditional use permit.4

The entry is:

Judgment vacated and remanded to the Superior Court with instructions to remand to the ZBA with instructions to grant the conditional use permit.

Opinion

KLEIN, P. J.

Appellant SP Star Enterprises, Inc. (Star), holds a certificate of occupancy from the City of Los Angeles (the City) permitting Star to operate an adult club featuring nude entertainment in a two-story, 7,000-square-foot converted warehouse/manufacturing facility zoned M3-1 on Ducommun Street north of Little Tokyo. Star also holds a franchise to operate a Penthouse-branded adult cabaret. This case involves Star’s application for a conditional use permit for the sale and onsite consumption of alcohol at the club.

The City’s zoning administrator granted Star’s application for one year. The Los Angeles Hompa Hongwanji Buddhist Temple (the Temple) and the Fukui Mortuary appealed the approval to the City’s central area planning commission (APC). The appeal was supported by the Los Angeles Police Department, two city council members, the Central City East Association and numerous private citizens who argued the proposed use is not compatible with the religious and community uses in the area or the redevelopment of the area north of Little Tokyo.

Star responded its upscale business would improve tourism in the area as Penthouse cabarets had in other cities and would have no adverse impact on the neighborhood. Further, Star already was licensed to offer fully nude dancing, and issuance of the conditional use permit would trigger Department of Alcoholic Beverage Control (ABC) regulations which limit adult entertainment to topless dancing on stages at least six feet from the nearest patron.

The APC conducted a public hearing at which it upheld the appeal, resulting in the denial of the conditional use permit. Star then sought a writ of mandate. The trial court denied Star’s writ petition, indicating it would uphold the APC’s ruling whether it applied a substantial evidence or a de novo standard of review. This appeal followed.

*462The thrust of Star’s attack on the APC’s ruling and the trial court’s denial of its writ petition is that Star is entitled to preferential treatment because it engages in a disfavored form of protected expression. Thus,- the standards under which the APC operated must be strictly scrutinized to avoid giving the APC unbridled discretion to regulate speech. Star also contends the APC’s findings were a pretext for discriminating against disfavored speech and were not supported by substantial evidence.

We conclude the case does not involve free speech but the right to sell alcohol, which is not a protected activity and does not involve a fundamental vested right. (Yu v. Alcoholic Bev. etc. Appeals Bd. (1992) 3 Cal.App.4th 286, 297 [4 Cal.Rptr.2d 280].) Thus, the standards under which the APC upheld the appeal need not reflect the “ ‘ “precision of regulation” ’ ” required when a municipality regulates protected activity. (Burton v. Municipal Court (1968) 68 Cal.2d 684, 691 [68 Cal.Rptr. 721, 441 P.2d 281].) Rather, because the standards applied by the APC are not vague or arbitrary and the APC’s decision finds substantial support in the record, we affirm the trial court’s order denying Star’s writ petition.

FACTS AND PROCEDURAL BACKGROUND

1. Star is granted a conditional use permit; the Temple and Fukui Mortuary appeal.

Star initially obtained a building certificate from the City to convert a two-story warehouse/manufacturing facility into a gentleman’s club with seating for 177 patrons, 133 parking spaces, and hours of operation from 11:00 a.m. to 2:00 a.m. daily. The City thereafter granted Star a certificate of occupancy permitting it to offer nude entertainment.

Star then sought a conditional use permit for the sale and consumption of a full line of alcoholic beverages with live entertainment consisting of clothed and topless dancing. The application disclosed the club would have no kitchen and would have happy hour from 4:00 to 7:00 p.m. daily.

The zoning administrator conducted a public hearing and thereafter granted Star’s application for a conditional use permit for one year. The approval letter stated the site is a comer parcel with 150 feet of frontage on the north side of Ducommun Street and approximately 138 feet along Vignes Street. The property is improved with a warehouse building with rooftop and interior parking accessed via Commercial Street. Surrounding properties are charac*463terized by commercial/industrial buildings occupied by perishable food cold storage, food processing operations, and a City maintenance yard.

The Temple and the Fukui Mortuary appealed the approval to the APC, which conducted a public hearing on the matter.

2. The public hearing before the APC.

a. The zoning administrator’s explanation of the approval.

Zoning administrator Albert Landini approved Star’s application because ABC guidelines for this census tract permit one onsite license for the sale of alcohol and one offsite license and, at the current time, there are no licenses. The area had a low crime rate and, although it had been claimed there were two artists’ lofts nearby, no residential properties had been identified and residential use in the area clearly was in the minority. Landini noted Star voluntarily had agreed to conditions on the signage of the building, the site has a large amount of parking and construction of the club has been completed. Landini noted the permit had a life of one year and Star had accepted this condition based on its substantial belief in the nature of its business.

b. Position of the proponents of the appeal.

Gerald Fukui, the fifth generation operator of the Fukui Mortuary on East Temple Street, testified the mortuary has been serving the Japanese-American community since 1918. They have a chapel which accommodates 150 people and is used for funerals and memorial services involving all faiths and religions. The mortuary conducts more than 500 services per year, and many services continue into the night as is the Japanese-American custom. The mortuary is approximately three blocks from the site of the proposed permit. The sale of alcoholic beverages in such proximity to the mortuary would be disruptive, dangerous and contrary to the environment of grieving family and friends. Fukui indicated there already was a problem with Little Pedro’s, a bar directly across the street from the Temple at First and Vignes Streets. Loud, boisterous patrons of Little Pedro’s park and urinate in the mortuary’s parking lot and act disrespectfully when passing the entrance to the chapel. Fukui noted the mortuary will be between the new cabaret and Little Pedro’s.

On behalf of the Temple, Eric Kurimura testified the permit will create an unsafe environment for families congregating at the Temple. Kurimura feared disruption of numerous religious services and youth programs. Also, the *464increased sale of alcohol in the area would be adverse to the changing nature of the community. The Temple operates a daycare center from 8:00 a.m. to 6:00 p.m. five days a week. The Temple also has funeral services, memorial services and weddings, most of which take place in the evening. The permit did not require Star to sell food and the Temple was concerned that intoxicated people leaving the cabaret would engage in boisterous conduct.

A member of the Temple noted the cabaret would be open when the children who attended the daycare center took monthly field trips and were dropped off on Vignes Street between Ducommun and Temple Streets. These field trips would occur during the hours of operation of the cabaret. Another member of the Temple expressed fear of cars racing on Vignes Street on Friday night when the Temple had approximately 100 children involved in its scout program.

Brandy Chappell, planning deputy for Councilmember Jan Perry of the ninth council district, expressed concern that issuance of the permit would result in an increase in drunk driving in the neighboring residential communities. Chappell noted problems had occurred at the Grand Avenue club and the Stock Exchange club and concluded the conditional use permit was not in the best interests of Little Tokyo or the Arts District. Chappell noted the Little Tokyo community had opposed a conditional use permit for the Neptune project which was at Third and Alameda Streets and was not a cabaret. The opposition was based solely on alcohol use.

Jessica Wethington McLean, the planning director for Councilmember Jose Huizar of council district 14, testified the area is undergoing revitalization. The area had a “tremendous” amount of crime five to seven years earlier but it was “cleaned up, because we have a vision for this area.” McLean noted a new business improvement district (BID) was scheduled to open in January and the City wanted to mix residential and light industrial uses in the area. The Fukui Mortuary is 18 feet beyond the 500-foot notification limit and the Temple provides religious services to the community, which is “burgeoning.” McLean indicated an alcohol permit was not compatible with the council’s vision for the area or the long-term plan.

Estella Lopez, executive director of the Central City East Association which represents the interests of 1,500 property owners, supported the appeal on behalf of the residents of the Arts District, property owners and business owners who wished to eliminate nuisance uses. The Arts District was in transition with more residential use anticipated and the proposed use was wrong for this community at this time.

*465The owner of Heet Sound Products, 150 feet from the proposed use, opposed the application anticipating the club would cause based on increased noise and drunkenness in the evenings and on the weekend.

Los Angeles Police Lieutenant Tom Brosh indicated that based on 28 years of experience, when alcohol is combined with this type of establishment and late hours, it generally leads to “disaster.” “And I can guarantee that I’m going to be out there on some Saturday night at 1:00 in the morning handling a murder, because it’s just going to happen. That’s just the way it is.” Brosh predicted the crime rate would increase dramatically just when the area was undergoing a renaissance. Brosh noted a new multistory residential structure was being built at Temple and Alameda Streets, businesses were trying to revitalize the area and there were artists’ lofts in the area. Brosh also noted the county jail was a few blocks away and people are released from the jail at all times of the day and night. Brosh predicted an increase in panhandling and crime. Brosh indicated that even if the cabaret provided security inside the club, problems arise when patrons leave.

Los Angeles Police Lieutenant Raymond Garvin testified the club was seven blocks from the skid row area and the contemplated use would attract the element the police are trying to abate under the Safer Cities Initiative.

c. Opposition to the appeal.

Counsel for Star indicated Star has invested more than $1 million in the property and Star’s licensing agreement with Penthouse required Star to run an upscale club. Also, although the conditional use permit did not require the sale of food, Star’s licensing agreement with Penthouse required Star to offer food. Counsel noted that, without a liquor license, the club could offer fully nude dancing. However, with a liquor license, ABC regulations limited the club’s entertainment to topless and the performers were required to be on stages six feet from the nearest patron. Counsel noted the building is basically a concrete box which will emit no noise and all parking is on the interior and the roof of the structure. Counsel asserted there would be no need for customers to park on the street or walk in the neighborhood and the business would have security at all times it was open. Also, the funeral home is 518 feet from the site and the Temple is more than 1,000 feet from the site. Thus, both were outside the 500-foot statutory notice range.

d. Remarks of the commissioners.

Commissioner Chanchanit Martorell indicated the commission had to consider that the community “is experiencing a total turnaround, a revitaliza*466tion, a [r]enaissance.” Martorell stated the community wants to be hospitable to families and noted Lieutenant Brosh had testified, based on his 28 years of experience, that disaster follows if you combine alcohol, testosterone and late hours. Also the cabaret was in close proximity to the county jail and skid row where there is a great deal of drug and alcohol abuse. Martorell indicated the APC’s obligation was to see that “this community is given a chance—given an opportunity to turn around.” Martorell concluded, “It’s just not a compatible use . . . .” “[W]e want to move forward, not backward.”

Commissioner Franklin Acevedo indicated difficulty reconciling operation of a cabaret with the community spaces located nearby. Acevedo suggested children at the daycare center might be in danger of injury from a drunk driving incident after lunch.

Commission President Young Kim indicated Star had a right to operate this type of facility at the location. However, Kim did not think the number of alcohol licenses in this census tract was relevant in that other census tracts have an overconcentration of alcohol permits.

e. The APC’s ruling.

The APC upheld the appeal by a vote of three to one. The APC found the use was not desirable to the public convenience or welfare, was materially detrimental to the character of development of the community and was not in harmony with the objectives of the general plan.

The APC adopted proposed findings of fact as required by the Los Angeles Municipal Code (LAMC).1 The APC found as follows: “The proposed location will not be desirable to the public convenience or welfare” in that it is “not in accordance with the greater development pattern of the surrounding *467community. It is not respectful of what is referred to as sacred space; associated with both the nearby Buddhist temple, and with the mortuary. And it provides a potentially dangerous mixture of the sale of alcoholic beverages and [an] otherwise permitted use of land that, in the opinion of the Los Angeles Police Department, can result in increased crime rates.”

“The use will be materially detrimental to the character of development in the immediate neighborhood, because this area is one that is emerging as a unique residential community in the establishment of various artists and resident lofts . . . .”

The APC also noted that, because of the proximity to downtown, this area will be increasingly important as a residential resource and the proposed use of the land would be detrimental to that use.

The APC further found the proposed location will not be in harmony with the various elements and objectives of the general plan. Although the property is zoned for heavy industrial use, it is also located in an increasingly important area that has been recognized by elected officials as one in which there is a significant change in land use, away from manufacturing to housing and artist activities and the proposed future establishment of a BID. The APC found approval of the requested use “will adversely affect the economic welfare of the community because there has been a wholesale outcry from various public and quasi governmental organizations representing business and cultural activities that claim such use in this neighborhood . . . will be detrimental to their long-term goals and objectives of providing a better business environment for the Arifs] District as well as for the Little Tokyo area.”

“While the crime statistics are low for this area, and the associated alcohol beverage sales are also nonexistent in the subject census tract, it can be found that the proposed use will result in an undue concentration of premises for the sale or dispensing ... of alcoholic beverages when the larger surrounding community, including ... the downtown area, is taken into consideration. [][] In this larger area, it has been demonstrated by verbal testimony from the Council office and the police department that there are troublesome issues involving the mixture of alcohol and a nightclub, or other cabaret like activities.”

In finding the proposed use would detrimentally affect the surrounding community, the APC considered the increasing number of residences in the area. Although these residences are outside the immediate notification radius, *468they are nonetheless in close enough proximity that they should be considered as potentially being troubled by the proposed use.

“Further, in reaching a finding of detrimental impact, the [APC] has considered testimony from the police department regarding the effect of the sale of alcoholic beverages in such establishment, and the resulting criminal activity that is potentially likely to appear.” The APC also considered the impact “sales of alcoholic beverages might have on school children walking to and from school activities, and using a shuttle bus that stops in close proximity to the subject site.”

3. Star institutes proceedings under Code of Civil Procedure section 1094.5.

Star sought review of the APC’s ruling in the trial court through administrative mandamus pursuant to Code of Civil Procedure section 1094.5. After conducting a hearing, the trial court denied Star’s mandamus petition. The trial court found substantial evidence supported the APC’s ruling. In so finding, the trial court indicated it would reach the same decision regardless of the standard of review applied. This appeal followed.

CONTENTIONS

Star contends the APC and the trial court denied Star an economic benefit because Star engaged in a disfavored form of protected expression. Star further contends the standards under which the APC operated gave it unbridled discretion to regulate speech, the APC’s rationale for denying the permit was a pretext for discriminating against disfavored speech, denial of the permit on the grounds of future redevelopment endowed the APC with unconstitutional discretion to regulate speech and the APC’s findings were not supported by substantial evidence.

DISCUSSION

1. Standard of review.

The exclusive remedy for judicial review of administrative action affecting land use is a proceeding under Code of Civil Procedure section 1094.5. (Saad v. City of Berkeley (1994) 24 Cal.App.4th 1206, 1211 [30 Cal.Rptr.2d 95]; Code Civ. Proc., § 1094.5, subd. (a).) A trial court’s review of an administrative decision is subject to two possible standards depending on the nature of the right involved. (Mann v. Department of Motor Vehicles (1999) 76 Cal.App.4th 312, 320 [90 Cal.Rptr.2d 277].)

*469If the administrative decision involved or substantially affected a “fundamental vested right,” the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence. (Bixby v. Pierno (1971) 4 Cal.3d 130, 143-144 [93 Cal.Rptr. 234, 481 P.2d 242]; see Code Civ. Proc., § 1094.5, subd. (c).)

Where no fundamental vested right is involved, the trial court’s review is limited to examining the administrative record to determine whether the agency’s decision and its findings are supported by substantial evidence in light of the whole record. (Bixby v. Pierno, supra, 4 Cal.3d at pp. 143-144.)

Regardless of the nature of the right involved or the standard of judicial review applied in the trial court, an appellate court reviewing a trial court’s ruling on administrative mandamus applies a substantial evidence standard. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824 [85 Cal.Rptr.2d 696, 977 P.2d 693]; Bixby v. Pierno, supra, 4 Cal.3d at pp. 143-144.) “If a fundamental vested right was involved and the trial court therefore exercised independent judgment, it is the trial court’s judgment that is the subject of appellate court review. [Citations.] On the other hand, if the superior court properly applied substantial evidence review because no fundamental vested right was involved, then the appellate court’s function is identical to that of the trial court. It reviews the administrative record to determine whether the agency’s findings were supported by substantial evidence, resolving all conflicts in the evidence and drawing all inferences in support of them. [Citations.]” (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1058 [48 Cal.Rptr.3d 563], fn. omitted.)

Under the substantial evidence test, the agency’s findings are presumed to be supported by the administrative record and the appellant challenging them has the burden to show they are not. (JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at p. 1062; Mann v. Department of Motor Vehicles, supra, 76 Cal.App.4th at p. 318; Saad v. City of Berkeley, supra, 24 Cal.App.4th at p. 1212.) “When more than one inference can be reasonably deduced from the facts, the appellate court cannot substitute its deductions for those of the superior court.” (Pasadena Unified Sch. Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314 [142 Cal.Rptr. 439, 572 P.2d 53].)

*4702. Star’s application for a conditional use permit for the sale and onsite consumption of alcohol does not involve a fundamental vested right.

Star asserts topless dancing is a recognized form of protected activity. (J. L. Thomas, Inc. v. County of Los Angeles (1991) 232 Cal.App.3d 916, 924 [283 Cal.Rptr. 815].) Star argues that because the APC’s decision impacts Star’s ability to engage in protected activity, the trial court was required to conduct an independent review of the record. (Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, 1195 [124 Cal.Rptr.2d 867]; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 909 [31 Cal.Rptr. 800, 383 P.2d 152].)

Determination whether a right is fundamental is made on a case-by-case basis. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) “[A]s a general rule, when a case involves or affects purely economic interests, courts are far less likely to find a right to be of the fundamental vested character. [Citations.]” (JKH Enterprises, Inc. v. Department of Industrial Relations, supra, 142 Cal.App.4th at pp. 1060-1061.) Thus, “ ‘[administrative decisions which result in restricting a property owner’s return on his property, increasing the cost of doing business, or reducing profits are considered impacts on economic interests, rather than on fundamental vested rights.’ (E.W.A.P., Inc. v. City of Los Angeles (1997) 56 Cal.App.4th 310, 325, 326-327 [65 Cal.Rptr.2d 325]....)” (Id. at p. 1061.)

It is clear that an initial application for a conditional use permit to sell alcohol for onsite consumption does not involve a fundamental vested right or Star’s right of free speech. On the contrary, it is generally accepted that “the liquor business is fraught with danger to the community, and may therefore be either entirely prohibited, or permitted under such conditions as are prescribed by the regulatory agency, which has broad power in this respect. [Citations.]” (Yu v. Alcoholic Bev. etc. Appeals Bd., supra, 3 Cal.App.4th at p. 296.)

The cases cited by Star, Rubin and Zeitlin, involve sectarian prayer in city council meetings and whether a book was obscene, respectively. Both of these issues are grounded in constitutional rights. However, the impact of the APC’s decision on Star’s business was purely economic. Star already has a certificate to operate as an adult club offering nude entertainment. Thus, the matter in issue in this case is not the right to engage in protected activity, but the right to sell alcohol for onsite consumption. As a result, the trial court properly applied the substantial evidence test, rather than the independent *471judgment standard. We therefore review the APC’s decision and its findings to determine whether they are supported in light of the administrative record.

3. Vague Standards.

a. Star’s arguments.

Star contends the APC’s decision was based on vague standards that gave it unbridled discretion “to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.” (Lakewood v. Plain Dealer Publishing Co. (1988) 486 U.S. 750, 759 [100 L.Ed.2d 771, 108 S.Ct. 2138].) Star claims the APC’s ruling “plainly imposes a financial disincentive only on speech of a particular content.” (Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd. (1991) 502 U.S. 105, 116 [116 L.Ed.2d 476, 112 S.Ct. 501].) Star asserts that because the APC gave Star the option of engaging in protected speech without an alcohol permit or refraining from that speech, the APC was required to base its ruling on “narrow, objective and definite standards . . . .” (Jersey’s All-American Bar v. Wash. Liquor Control (W.D.Wn. 1999) 55 F.Supp.2d 1131, 1138.)

Star argues that, “[i]n considering the constitutionality of ordinances in the category of that involved here ‘ “precision of regulation must be the touchstone” ’ [citation] and the standards set forth therein must be ‘susceptible of objective measurement’. . . .” (Burton v. Municipal Court, supra, 68 Cal.2d at p. 691.) Star notes the APC found the “proposed location would not be desirable to the public convenience or welfare,” “the location is not proper in relation to adjacent uses or the development of the community, the use will be materially detrimental to the character of the development in the immediate neighborhood,” and “the use will not be in harmony with the various elements and objectives of the General Plan.”

Star contends terms such as “proper,” “materially detrimental,” “in harmony” and “immediate neighborhood” are unconstitutionally vague and fail to give the applicant a standard it can understand and meet. (Smith v. County of Los Angeles (1994) 24 Cal.App.4th 990, 1006-1007 [29 Cal.Rptr.2d 680].) Thus, the standards applied by the APC constitute unconstitutional “administrative censorship in an extreme form.” (Largent v. Texas (1943) 318 U.S. 418, 422 [87 L.Ed. 873, 63 S.Ct. 667].) Star concludes the denial of the permit was an unconstitutional burden on speech and, in the absence of precise standards, the APC’s decision was arbitrary as a matter of law.

*472b. Speech versus onsite sale and consumption of alcohol.

The authority cited by Star uniformly involves speech, not onsite sale and consumption of alcohol. (Lakewood v. Plain Dealer Publishing Co., supra, 486 U.S. 750 [mayor’s absolute authority over annual applications to place news racks on public property amounted to a prior restraint]; Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., supra, 502 U.S. 105 [requirement that proceeds of book sales be turned over to victims imposes a financial disincentive only on speech of a particular content]; Jersey’s All-American Bar v. Wash. Liquor Control, supra, 55 F.Supp.2d 1131 [permit required before liquor license holder could provide dancing or entertainment]; Burton v. Municipal Court, supra, 68 Cal.2d at p. 687 [prohibition of exhibiting motion pictures without a permit if the operation did not “ ‘comport with the peace, health, safety, convenience, good morals, and general welfare of the public’ ” or if the applicant is “ ‘unfit to be trusted with the privileges granted by such permit, or has a bad moral character, intemperate habits or a bad reputation for truth, honesty, or integrity’ ”]; Largent v. Texas, supra, 318 U.S. at p. 419 [ordinance making it unlawful to sell books or merchandise without a permit].)

Here, Star already has a license to engage in protected activity at the Ducommun Street location. Consequently, this case, unlike those cited by Star, involves not speech but the onsite sale and consumption of alcohol. Indeed, even without the conditional use permit, Star is licensed to offer fully nude entertainment. The denial of a conditional use permit for the onsite sale and consumption of alcohol might render Star’s activity less profitable. However, this is not a case in which the APC has “decided to regulate health and safety via a license to speak . . . .” (Jersey’s All-American Bar v. Wash. Liquor Control, supra, 55 F.Supp.2d at p. 1137.)

c. Standard of review applicable to the LAMC provisions at issue.

Because this case involves the onsite sale and consumption of alcohol, we do not subject the LAMC to the strict level of scrutiny applicable in cases involving freedom of speech. “[T]he rule announced in Burton [requiring precision in the standards under which a permit may be issued] applies only to those situations in which the operation of a licensing ordinance impinges upon the exercise of First Amendment activities, rather than ordinary commercial enterprises. [Citation.]” (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 72 [101 Cal.Rptr. 768, 496 P.2d 840].) Absent an ascertainable effect upon First Amendment activities, the provisions of the LAMC provide an adequate standard to guide the APC’s discretion, namely, that it must exercise its power in a reasonable, rather than arbitrary, manner to promote the interest of the public. (7 Cal.3d at p. 72.)

*473The provisions of the LAMC relating to the issuance of a conditional use permit based on a finding the “ ‘proposed location will be desirable to the public convenience or welfare and will be in harmony with the various elements and objectives of the Master Plan’ ” specifically have been upheld against challenges of vagueness. (Stoddard v. Edelman (1970) 4 Cal.App.3d 544, 548 [84 Cal.Rptr. 443]; Case v. City of Los Angeles (1963) 218 Cal.App.2d 36, 42 [32 Cal.Rptr. 271]; Wheeler v. Gregg (1949) 90 Cal.App.2d 348 [203 P.2d 37].)

Further, land use ordinances precluding uses detrimental to the “ ‘general welfare’ ” are not unconstitutionally vague. (Novi v. City of Pacifica (1985) 169 Cal.App.3d 678, 680 [215 Cal.Rptr. 439].) “In fact, a substantial amount of vagueness is permitted in California zoning ordinances: ‘[I]n California, the most general zoning standards are usually deemed sufficient. “The standard is sufficient if the administrative body is required to make its decision in accord with the general health, safety, and welfare standard.” [Citation.]’ ” (Id. at p. 682; see Higgins v. City of Santa Monica (1964) 62 Cal.2d 24, 30 [41 Cal.Rptr. 9, 396 P.2d 41].)

In sum, the provisions of the LAMC in issue must be upheld as a reasonable exercise of the City’s police power to license and regulate business activities.

4. Personal antipathy.

Star contends the comments of the commissioners at the hearing reveal an acknowledgement that Star had a First Amendment right to issuance of the permit and the APC improperly voted in favor of the appeal based on personal antipathy or community opposition. Star relies on the comments by the commissioners and the APC’s decision that the combination of alcohol and testosterone is a “recipe for disaster.” Star notes the statements of the individual commissioners mirror those contained in Smith v. County of Los Angeles, supra, 24 Cal.App.4th at page 1007. Star concludes the APC discriminated against it based on the content of its speech.

However, the record does not support Star’s claim the commissioners opposed issuance of the conditional use permit based on animosity toward adult entertainment. Rather, the opposition was to the sale and onsite consumption of alcohol and the impact intoxicated individuals would have on the neighborhood, especially the religious services and community activities offered by the Temple and fine mortuary. At the hearing, the representative of City Councilmember Jan Perry made it clear the opposition to the proposed use was grounded in the sale and consumption of alcohol, which had been opposed at other locations that did not offer adult entertainment. Thus, the *474record reveals the opposition to Star’s permit was not based on Star’s intent to engage in protected activity. Rather, the opposition centered on Star’s onsite sale and consumption of alcohol.

Smith is distinguishable. In Smith, an application for a conditional use permit for a nude dancing club was denied pursuant to a zoning ordinance that applied only to adult businesses. One of the commissioners in Smith went on a “tirade” against adult businesses and indicated “everything possible” would be done “to eliminate them entirely from the county.” (Smith v. County of Los Angeles, supra, 24 Cal.App.4th at p. 1007.) No similar remarks are found in the present record.

5. Future redevelopment.

Star next asserts the APC repeatedly stated the proposed use would be inconsistent with unspecified plans for redevelopment of the community that included the Arts District, the proposed BID and the Little Tokyo area. Star notes the APC found there had been a “wholesale outcry from the various public and quasi-govemmental organizations representing business and cultural activities claiming that the sale of alcoholic beverages at the subject location will be detrimental to their long-term goals of providing a better business environment for the Art[s] District as well as the Little Tokyo area.” Star asserts Gammoh v. City of Anaheim (1999) 73 Cal.App.4th 186 [86 Cal.Rptr.2d 194] held a municipality cannot exclude an adult cabaret on the ground it would hinder redevelopment.

Gammoh does not apply here. In Gammoh, the City of Anaheim was found to have used redevelopment as “a tool for a city to arbitrarily exclude adult businesses.” (Gammoh v. City of Anaheim, supra, 73 Cal.App.4th at p. 199.) Gammoh held a city may not deny a permit based on a desire for redevelopment when the exercise of First Amendment rights is involved. As has been noted, Star has a permit to operate an adult business featuring nude entertainment. This case involves onsite consumption of alcohol which properly may be regulated based on anticipated future uses of the area.

6. The APC’s findings are supported by substantial evidence.

Star contends the APC improperly denied issuance of the conditional use permit based on conjecture and surmise rather than substantial evidence. (Reimel v. Alcoholic Bev. etc. App. Bd. (1967) 255 Cal.App.2d 40, 45 [62 Cal.Rptr. 778].) Star notes that mere proximity to a school or a church is not, as a matter of law, good cause which will sustain denial of a license. (Ibid.) Star further contends the trial court’s finding that “nearby residents opposed the application” is unsupported because there are no nearby residents and the *475site, which is zoned M3-1, is surrounded by industrial uses. Also, the APC’s concern about proximity to skid row and the county jail lacks any relevance in determining the impact Star’s operation will have on the neighborhood.

Star additionally asserts there was no evidence to support the APC’s finding “crime potential exists when you combine alcohol sales and testosterone.” Star argues it is settled that topless entertainment is not contrary to public welfare and morals or a justification for limiting the service of alcoholic beverages. (Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 103 [84 Cal.Rptr. 113, 465 P.2d 1].) Star maintains Boreta rejected the notion topless entertainment combined with the service of alcohol leads to “improper activities and socially deleterious consequences . . . .” (Ibid.) Star asserts that here, as in Boreta, there is “no evidence in the record which would permit us to conclude that the evils which the Department seeks to avoid are in fact related to the use of topless waitresses . . . .” (Id. at p. 104.)

Star argues the combination of alcohol and adult entertainment is inherent in the inclusion of “bar” in LAMC’s definition of an “adult cabaret.” Thus, the municipal code itself contemplates the onsite sale and consumption of alcohol at adult cabarets.2

Star concludes the APC’s hearing and decision were “a search for any reason to deny the CUP for an adult business rather than a dispassionate examination of the evidence and an objective weighing of the factors bearing on a correct decision.” (Smith v. County of Los Angeles, supra, 24 Cal.App.4th at pp. 1007-1008.) Star claims other aspects of the APC’s ruling constitute “gibberish,” citing the conclusion the community wanted “the area to move forward, and not move backward, and the sale of alcohol at the subject location will not promote forward movement.” Thus, the APC’s finding lacks substantial support and must be set aside.

Star’s contention fails because the evidence offered at the hearing indicated approval of Star’s application would have a negative impact on the character and integrity of the neighborhood. The owner of the mortuary and representatives of the Temple indicated issuance of the permit would adversely impact the ability of the mortuary and the Temple to conduct services in a dignified and respectful environment based on problems encountered with patrons of another bar in the area. Others expressed concern that issuance of the permit would place individuals attending functions at the Temple and the daycare facility at risk of drunk drivers.

*476Although a liquor license may not be denied solely based on proximity to a school (Reimel v. Alcoholic Bev. etc. App. Bd., supra, 255 Cal.App.2d at p. 45), such proximity is an appropriate factor to consider in determining whether to grant a permit (Weiss v. State Board of Equalization (1953) 40 Cal.2d 772 [256 P.2d 1] [proximity to a high school]; Schaub’s Inc. v. Dept. Alc. Bev. Control (1957) 153 Cal.App.2d 858 [315 P.2d 459] [proximity to church providing youth services properly considered in denying offsite consumption license to a supermarket]).

Additionally, concern of neighbors is sufficient to constitute substantial evidence that a contemplated use is detrimental to the welfare of the community. (Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 337 [25 Cal.Rptr.2d 842]; Harris v. City of Costa Mesa (1994) 25 Cal.App.4th 963 [31 Cal.Rptr.2d 1].) Harris noted “ ‘expert testimony on these issues is not necessary. It is appropriate and even necessary for the [agency] to consider the interest of neighboring property owners in reaching a decision whether to grant or deny a land use entitlement and the opinions of neighbors may constitute substantial evidence on this issue. [Citations.]’ ” (Harris, at p. 973.)

With respect to the APC’s assertedly inappropriate correlation of alcohol, testosterone and inappropriate behavior, the case upon which Star places its primary reliance, Boreta, is distinguishable. Boreta addressed whether the ABC abused its discretion in revoking a liquor license based on the ABC’s determination the “use of topless waitresses, in itself and without more, is conduct contrary to public morals and thus in itself constitutes grounds” for the revocation of a liquor license. (Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control, supra, 2 Cal.3d at p. 100.) Boreta held such a finding is an abuse of discretion unless the agency first considers and evaluates the effects of the course of conduct. (Id. at p. 99.) Thus, Boreta stands for the proposition it is improper to presume that service of alcohol combined with adult entertainment is inherently contrary to public welfare. (Santa Ana Food Market, Inc. v. Alcoholic Beverage Control Appeals Bd. (1999) 76 Cal.App.4th 570, 575 [90 Cal.Rptr.2d 523].)

Here, the APC did not make a per se finding that alcohol and testosterone do not mix. Rather, the APC based this conclusion on the testimony of Los Angeles Police Department officers who testified against granting the permit based on their experience with similar clubs. Addressing Star’s argument the APC had based its ruling on speculation, the trial court stated: “This is from their observation; this is from their experience. The police officers’ testimony . . . was extremely well supported here in this case. Given the many records I have read, this was very convincing here to me.”

*477We agree with the trial court’s assessment and conclude that substantial evidence supports the APC’s ruling.

7. The low crime rate does not mandate issuance of the permit.

Star notes the APC found “the crime statistics are low for this area and the associated alcoholic beverage sales establishments are non-existent in the subject census tract . . . .”3 Nonetheless, the APC “found that the proposed use will result in an undue concentration of premises for the sale or dispensing ... of alcoholic beverages when the larger surrounding community, including . . . the downtown area, is taken into consideration, [f] In this larger area, it has been demonstrated by verbal testimony from the Council office and the police department that there are troublesome issues involving the mixture of alcohol and a nightclub, or other cabaret like activities.”

Star contends the APC’s finding the crime rate in the area is low mandates a ruling in Star’s favor. Star asserts there is no evidence to support the APC’s finding that granting the application will result in “an undue concentration of premises for the sale or dispensing ... of alcoholic beverages” giving consideration to the crime rate.

Star notes it was undisputed the area has a very low crime rate. The APC stated: “[C]rime is not currently a problem and [the] community can maintain that standard in part by the withholding of alcohol beverage permits when such could lead to neighborhood problems.” Star concludes it was denied the conditional use permit because the crime rate was too low.

Problems at existing bars support denial of additional permits in the area. (Weiss v. State Board of Equalization, supra, 40 Cal.2d at p. 777 [permit denial upheld despite no other liquor licenses in the area based on proximity of residential area].)

Here, the testimony and evidence submitted to the APC was rationally related to preservation of the character and integrity of the neighborhood based on current conditions and problems experienced in the area. Thus, the evidence supports the APC’s ruling and the trial court’s denial of Star’s writ petition.4

*478DISPOSITION

The order denying Star’s petition for writ of administrative mandate is affirmed. The City shall recover costs on appeal.

Croskey, L, and Kitching, J., concurred.

. SULLIVAN, Justice.

Pinnacle Media, LLC, seeks a declaration that a change in the zoning ordinance of the City of Indianapolis concerning billboard location permits is not applicable to its plan to erect 10 billboards in Indianapolis. Because no construction or other work that gave Pinnacle a vested interest in the billboard project had begun on the billboards at the time of the ordinance change, the ordinance change did apply to the 10 billboards.

Background

Pinnacle Media, LLC, erects and leases advertising billboards. In July, 1999, after some period of discussion, the City of Indianapolis advised Pinnacle in writing that the City's billboard location permit regulation did not apply with respect to billboards proposed to be erected in interstate highway rights-of-way because those rights-of-way were not covered by the City's zoning ordinance.

Pinnacle thereupon embarked on a plan to erect billboards without applying to the City for a permit. Its plan consisted of three steps. First, it would lease land for this purpose from Hoosier Heritage Port Authority, an entity that owned abandoned railroad rights-of-way at points where the abandoned railroad rights-of-way intersected with or were otherwise coextensive with interstate highway rights-of-way. Second, it would seek permits from State government, specifically, the Indiana Department of Transportation ("INDOT"), which is responsible for interstate highways. Third, it would erect the billboards without seeking any approval from the City. Following this plan, Pinnacle erected two billboards in 1999, after leasing rights-of-way and obtaining INDOT permits.

*424Shortly thereafter, Pinnacle initiated efforts to erect 15 additional billboards by securing additional leases and submitting additional applications to INDOT. The last of these applications was submitted on April 19, 2000. A period of negotiation with the State followed during which IN-DOT initially denied all 15 of the applications. Pinnacle appealed the denials and ultimately entered into a settlement with the State. 'Well over a year later, on June 18, 2001, INDOT approved 10 of the applications and Pinnacle abandoned its request for the other five in accordance with the settlement.

Meanwhile, following the erection of the two initial billboards, the City re-examined its policy in respect of excluding interstate highway rights-of-way from the coverage of its zoning ordinance. On April 26, 2000, the City officially proposed an amendment to this effect to its zoning ordinance. Pinnacle and other interested parties received notice of the proposed amendment on April 28, and were given the opportunity to appear at a public hearing on the matter on May 17. On July 10, 2000, the City-County Council enacted into law an amendment to the zoning ordinance, assigning zoning classifications to the previously un-zoned land occupied by interstate highways. Indianapolis/Marion County Rev.Code §§ 7830-100 through -103. This had the effect of making the City's billboard location permit applicable to billboards proposed to be erected in interstate highway rights-of-way.

Following receipt of the INDOT approvals in 2001, Pinnacle began erecting one of the billboards. The City issued a stop work order on grounds that Pinnacle had not obtained the permit for the billboard required by the amended zoning ordinance.1 Pinnacle ceased construction and subsequently filed suit against the City, seeking a declaration that the amendment to the zoning ordinance was inapplicable to the 10 permits and that the stop work order was void and unenforeea-ble. The City filed a motion to dismiss, which the trial court denied,2 and both parties subsequently filed for summary judgment. The trial court granted summary judgment in favor of Pinnacle and also concluded that Pinnacle was entitled to attorney fees because the City engaged in "frivolous, unreasonable, or groundless litigation." Appellant's App. at 9-10. The Court of Appeals affirmed the determination of the trial court that the amendment to the zoning ordinance was inapplicable to the 10 permits but reversed the trial court on the attorney fees issue. Metro. Dev. Comm'n v. Pinnacle Media, LLC, 811 N.E.2d 404, 414 (Ind.Ct.App. *4252004). We now grant transfer and reverse the judgment of the trial court.

Discussion

I

The question of whether Pinnacle's 10 billboards are subject to the 2000 zoning ordinance amendment implicates two disparate lines of Indiana cases. Both lines employ the term "vested rights" and generally stand for the proposition that a person's "vested rights" are protected against retroactive application of a change in law. But each line takes a quite different approach to defining or determining when a "*zested right" exists, and these approaches can lead to different results.

A

The first line of cases arises under a zoning law principle called "nonconforming use." A nonconforming use is a use of property that lawfully existed prior to the enactment of a zoning ordinance that continues after the ordinance's effective date even though it does not comply with the ordinance's restrictions. Metro. Dev. Comm'n. v. Marianos, 274 Ind. 67, 408 N.E.2d 1267, 1269 (1980). The general rule is that a nonconforming use may not be terminated by a new zoning enactment. See Jacobs v. Mishawaka Bd. of Zoning Appeals, 182 Ind.App. 500, 501-02, 895 N.E.2d 834, 836 (1979) ("An ordinance prohibiting any continuation of an existing lawful use within a zoned area is unconstitutional as a taking of property without due process of law and as an unreasonable exercise of police power."). In these situations, it is often said that the landowner had a "vested right" in the use of the property before the use became nonconforming, and because the right was vested, the government could not terminate it without implicating the Due Process or Takings Clauses of the Fifth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment.3 U.S. Const., amends V & XIV. See generally, John J. Delaney and Emily J. Vaias, Recognizing Vested Development Rights as Protected Property in Fifth Amendment Due Process and Takings Claims, 49 Wash. U.J. Urb. & Contemp. L. 27, 81-85 (1996).

A relatively frequent subject of land use litigation is whether a developer can have a "vested interest" in a nonconforming use that is only intended-construction has not yet begun at the time of the new enactment-such that the government cannot terminate it. See Linda S8. Tucker, Annotation, Activities in Preparation for Building as Establishing Valid Nonconforming Use or Vested Right to Engage in Construction for Intended Use, 38 A.L.R.Sth 737, 752 (1996 & Supp.2005).

This Annotation reflects the fact that many courts, including ours, have been presented with cases where a developer encounters a zoning change after embarking on a project but before beginning construction. The leading Indiana case on this subject-discussed in the Annotation-is Lutz v. New Albany City Plan Comm'n, 2830 Ind. 74, 101 N.E.2d 187 (1951).

As a general proposition, the courts have been willing to hold that the developer acquires a "vested right" such that a new ordinance does not apply retroactively if, but only if, the developer "(1) relying in good faith, (2) upon some act or omission of the government, (8) ... has made substantial changes or otherwise committed himself to his substantial disadvantage pri- *426or to a zoning change." Delaney & Vaias, supra, at 31-85 (citing Sgro v. Howarth, 54 Ill.App.2d 1, 203 N.E.2d 173, 177 (1964)).

Indiana law, as enunciated in Luiz is consistent with these principles. In that case, the developer acquired real estate pursuant to an option agreement that required the seller to demolish a house on the property and clear the lots for construction of a gasoline service station. The developer secured a mortgage commitment to finance the construction and entered into an agreement by which a petroleum concern would lease and operate the service station when built. After all of these actions had been taken but before construction of the service station itself began, the city enacted a zoning ordinance that did not permit the erection of gasoline service stations on the real estate in question. Lutz, 230 Ind. at 78-79, 101 N.E.2d at 189.

When the developer's application for a zoning variance was denied by the Board of Zoning Appeals, the developer appealed, contending that by entering into the lease and proceeding to convert the real estate to a service station prior to the passage of the zoning ordinance, his rights to use of the property in that way had become vested and that the application of the zoning ordinance to him was unconstitutional. Id. at 77, 101 N.E.2d at 188. The trial court affirmed the decision of the Board of Zoning Appeals, as did this Court:

The zoning ordinance herein is, of course, subject to any vested rights in the property of appellants acquired prior to the enactment of the zoning law. But where no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building, there can be no vested rights. The fact that ground had been purchased and plans had been made for the erection of the building before the adoption of the zoning ordinance prohibiting the kind of building contemplated, is held not to exempt the property from the operation of the zoning ordinance. Structures in the course of construction at the time of the enactment or the effective date of the zoning law are exempt from the restrictions of the ordinance. The service station was not in the course of construction so as to give to appellants vested rights, and was not a nonconforming use existing at the time of passage of the ordinance.

Id. at 81-82, 101 N.E.2d at 190.

B

The second line of cases traces its origin in Indiana law to zoning law but has over the years been invoked more generally when a person has an application for a government permit pending at the time a law governing the granting of the permit changes.

The lead case in this line illustrates the point. In Knutson v. State ex rel. Seberger, 239 Ind. 656, 160 N.E.2d 200 (1959) (on reh'g), this Court held that an application for approval of a subdivision plat was not subject to the provisions of a subdivision control ordinance enacted by a town council after the date on which the application was first filed.4

*427The Court in Knutson said that "a municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application of such permit." Id. at 667, 160 N.E.2d at 201 (citing State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777 (1941)). The Knutson Court went on to say that "[this rule, we believe, is consistent with the general rule of law that ordinances or statutes which are substantive in their effect are not retroactive." Id. at 668, 160 N.E.2d. at 201. The Court then quoted the Corpus Juris Secundum: "[The general rule, which is almost universally supported by the authorities, is that retrospective laws are unconstitutional if they disturb or destroy existing or vested rights." Id. (quoting 16A C.J.S., Constitutional Law § 417 at 99-103) (emphasis added).

Knutson has been relied upon by the Court of Appeals in a number of cases for the proposition that a change in law cannot be applied retroactively in respect of a permit application on file with a permitting agency at the time of the change. See Steuben County v. Family Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for a landfill); Yater v. Hancock County Bd. of Health, 677 NE.2d 526 (Ind.Ct.App.1997) (concerning septic permits); Ind. Dept of Envtl. Mgmt. v. Chem. Waste Mgmt. of Ind., Inc., 604 N.E.2d 1199 (Ind.Ct.App. 1992), trams. denied (concerning a hazardous waste disposal permit); Bd. of Zoning Appeals of Ft. Wayne v. Shell Oil Co., 164 Ind.App. 497, 329 N.E.2d 636 (1975) (concerning a building permit for gas station).

II

In one respect, the Lutz and Knutson precedents are quite consistent. Both clearly stand for the proposition that changes in zoning ordinances are "subject to any vested rights," Lutz, 230 Ind. at 81, 101 N.E.2d at 190; that such changes "are unconstitutional if they disturb or destroy existing or vested rights," Knutson, 239 Ind. at 667, 160 N.E.2d at 201. But in another respect, Lutz and Knutson lie in uneasy tension with one another. If the land acquisition, demolition, and site preparation work in Lutz is not enough to establish a vested interest, how can it be that the mere filing in Knutson of a building permit (when, by definition, no construction has yet begun) is enough to do so? In the words of one commentator, "lilt is difficult to see how the theoretically distinguishable concept of nonconforming use, protecting owners of developed property from the provisions of subsequently enacted zoning regulations,; could logically be applied to protect a landowner who has only reached the stage of applying for a building permit." Roland F. Chase, Anuno-tation, Retroactive Effect of Zoning Regulation, in Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d 596, 607 (1973, Supp.2005).

Pinnacle argues adamantly that this is not a nonconforming use case for which Lutz is precedent but a permit application case controlled by Knutson. While for reasons we will set forth in a moment we think this is a nonconforming use case, we also think, at least in respect of building permits, the Knutson rule should be revisited.

*428To repeat, the Court in Lutz held that "[the zoning ordinance herein is, of course, subject to any vested rights in the property of appellants acquired prior to the enactment of the zoning law. But where no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building, there can be no vested rights." Lutz, 230 Ind. at 81, 101 N.E.2d at 190. We think this is the correct rule for nonconforming uses, one that is the rule of most jurisdictions. See, e.g., Town of Orangetown v. Magee, 88 N.Y.2d 41, 648 N.Y.S.2d 21, 665 N.E.2d 1061 (1996); Finch v. Durham, 325 N.C. 352, 384 S.E.2d 8 (1989) (reh'g denied); Snake River Venture v. Bd. of County Comm'rs, 616 P.2d 744 (Wyo.1980); Houston v. Bd. of City Comm'rs, 218 Kan. 323, 543 P.2d 1010 (1975); Blundell v. West Helena, 258 Ark. 128, 522 S.W.2d 661 (1975); Perkins v. Joint City-Council Planning Comm'n, 480 S.W.2d 166 (Ky.1972).

' If "there can be no vested rights" where "no work has been commenced, or where only preliminary work has been done without going ahead with the construction of the proposed building," then in logic, the filing of a building permit-an act that must be done before any work is commenced-eannot alone give rise to vested rights.

Furthermore, at least as to building permits, Knutson is out of the mainstream. "In most jurisdictions it is clear that, as a general rule, ... a zoning regulation may be retroactively applied to deny an applica-

tion for a building permit, even though the permit could have been lawfully issued at the time of application." Chase, supra, at 607. See, eg., Town Pump, Inc. v. Bd. of Adjustment, 292 Mont. 6, 971 P.2d 349 (1998) (upholding the retroactive application of a zoning change where there was a building permit on file); Whitehead Oil Co. v. Lincoln, 284 Neb. 527, 451 N.W.2d 702 (1990) (noting and applying the "general rule"); Gay v. Mayor of Lyons, 212 Ga. 438, 93 S.E.2d 352 (1956) (upholding the retroactive application of a zoning change where there was a building permit on file); Brougher v. Bd. of Pub. Works, 205 Cal. 426, 271 P. 487 (1928) (same); Cayce v. Hopkinsville, 217 Ky. 185, 289 S.W. 223 (1926) (same).

With respect to building permits, then, Knutson 's suggestion that having a building permit on file creates a vested right that cannot be overcome by a change in zoning law is overruled.5

III

Regardless of Kmutson's viability, we do not believe its rule is available to Pinnacle in this case. While Pinnacle argues vehemently that this is not a noneon-forming use case, we believe that it is properly analyzed under Lutz's principles. When Pinnacle set out to erect the 10 (initially 15) billboards, there was no location permit required by the City. This is exactly the position the developer in Lutz was in when it started out to develop the gasoline service station. The question there-as we find it to be here-was *429whether, at the time of the change in the zoning ordinance, construction had proceeded on the project to the point that the developer had a vested interest. As discussed, the Court held that the construction had not. Lutz, 230 Ind. at 81, 101 N.E.2d at 190.

In this case, no construction of any kind had proceeded on the 10 billboards as of April 26, 2000, the date the ordinance change was officially proposed, or even July 10, 2000, the date it was enacted. Pinnacle does not present us with any argument that it made construction expenditures before the enactment of the zoning ordinance change.6 Nor could it. It was not until 11 months later, June 18, 2001, that Pinnacle received the separate approvals required by the State.

Pinnacle argues that its filing of applications for permits with the State on April 19, 2000, immunized it from the City's zoning change but we see no basis in law or logic for this proposition. While we acknowledge that at times, state law can pre-empt local law, see, eg., Ind.Code § 36-1-3-5(a) (2005), Pinnacle provides us with no authority that there is state preemption here. Local government enjoys wide latitude from the State in land use regulation. Its authority includes "not only all powers granted it by statute, but also all other powers necessary or desirable in the conduct of its affairs." Ind. Dep't of Natural Res. v. Newton County, 802 N.E.2d 430, 432 (Ind.2004) (quotations and citations omitted). And while here the City has imposed burdens in addition to those of the State for a party seeking to erect billboards in interstate rights-of-way, state law has not been frustrated by the city zoning ordinance. See id at 433. In other words, this is not a case where anything the City has done interferes with State prerogatives. Furthermore, common experience tells us that permits and approvals from different agencies and levels of government are often required for a single project. Compliance with one agency's or level's requirements simply does not constitute compliance with another's.

Most telling in this respect is the fact that regardless of what the City's billboard location regulation was, or even whether it had one, Pinnacle would still have been required to obtain State approval for its project. State approval was in addition to, and not a substitute for, local approval. That being so, Pinnacle cannot use its compliance with State requirements as a substitute for compliance with local requirements.

Conclusion

Having granted transfer, Indiana Appellate Rule 58(A), we reverse the judgment of the trial court as to its holding that the *430zoning ordinance was inapplicable to the 10 permits and remand this matter to the trial court with instructions to grant the City's motion for summary judgment. Because we find that the zoning ordinance was applicable, we also reverse the trial court's award to Pinnacle of attorney fees.

SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.

BAKER, Justice.

This appeal arises out of a petition for writ of certiorari filed by the appellant, Michael Geisler, against the appellee, the *164City Council of Cedar Falls. Geisler challenged the district court’s dismissal of his claims that the City (hereinafter referred to as “the City”) acted illegally in denying his proposed site plan for the development of real estate in the College Hill Neighborhood Overlay Zoning District (hereinafter referred to as “the Overlay District”) and its subsequent enactment of a six-month moratorium on development in the Overlay District. The district court dismissed Geisler’s claim that the moratorium was illegal on a motion to dismiss. Subsequently, on a motion for summary judgment, the court dismissed his remaining claim that the City acted illegally in denying approval of Geisler’s site plan for the project because the ordinance that ultimately prohibited the project was under discussion at the time of Geisler’s initial application.

The City has asserted that its issuance of the moratorium was a legislative function, and therefore, it is not reviewable by a writ of certiorari because certiorari review is only available when the lower tribunal is acting in a quasi-judicial capacity. We find the City’s adoption of a moratorium is a legislative function and, therefore, not reviewable. We also find that the district court applied incorrect law in determining whether the City illegally denied Geisler’s site plan and failed to consider whether the change in zoning was done in bad faith. Because the district court erred in granting summary judgment based upon an incorrect standard, we reverse and remand for further proceedings consistent with this opinion.

I. Background Facts and Prior Proceedings.

In 2004, Geisler purchased real estate located in the Overlay District of Cedar Falls, Iowa, for the purpose of developing an eight-unit apartment complex. In May of 2005, he submitted a site plan for redevelopment of the land to the Cedar Falls Planning and Zoning Commission. At the Commission’s May 18, 2005, meeting, city planner Martin Ryan stated that the site plan met all the basic ordinance requirements. However, there was a large amount of resident opposition to the proposed development, and the Commission voted to deny approval of Geisler’s site plan.

The regular Cedar Falls City Council meeting was held on May 23, 2005. At the meeting, the Council considered Geisler’s proposed site plan. Several Overlay District residents expressed concerns about the plan, including the increase in traffic it would generate and the detrimental effect to single-family homes in the area. The Council denied the site plan under Cedar Falls City Ordinance No. 29 — 160(f) because it was “inconsistent with the character of the neighborhood due to architectural design ... [and was] not of comparable scale and character in relation to adjoining properties.” Under the ordinance in effect in May of 2005, the Council had the discretion to determine whether the site plan was compatible with surrounding buildings.

At the May 28, 2005, meeting, a motion also passed to discuss a temporary moratorium to study the issue of multi-family unit construction in the Overlay District. At the next City Council meeting on June 13, 2005, the City Council passed a resolution imposing a moratorium on all development or construction of multi-family housing in the Overlay District.

Also on this date, Geisler submitted a revised site plan to the City Department of Development. It was not processed in time to be discussed at the meeting. Later, on July 11, 2005, a city official refused to consider Geisler’s revised site plan, effectively denying the project. After fur*165ther study of a proposed zoning amendment, the City Council passed a resolution on December 12, 2005, down-zoning the Overlay District, prohibiting all development or construction of multi-family housing. Geisler did not resubmit the site plan after the enactment of the ordinance.

On June 22, 2005, Geisler filed a petition for writ of certiorari in the district court alleging that the City acted illegally by denying his site plan and subsequently passing the moratorium on development in the Overlay District. The petition stated these were illegal acts and an unconstitutional taking of his property for public use without just compensation. On July 25, 2005, the City filed a motion to dismiss Geisler’s petition for lack of subject matter jurisdiction.

On February 6, 2006, the district court issued an order overruling in part and granting in part the City’s motion to dismiss. The trial court overruled the City’s motion with regard to denial of the site plan because the record was not sufficient to conclude the City denied the plan because it intended to impose a moratorium on development. The court granted the City’s motion as to Geisler’s claim that the City acted illegally in imposing the moratorium, ruling the City was within its legislative authority to do so. Subsequently, the City filed a motion for summary judgment on the remaining claim, which the court granted because the December 2005 ordinance that prohibited the project was under discussion at the time Geisler submitted his initial site plan in May 2005. Geisler appeals.

II. Scope of Review.

Our review of the judgment entered by the district court in a certiorari proceeding is governed by the rules applicable to appeals in ordinary actions. Iowa R. Civ. P. 1.1412.

The moratorium issue comes to us from the district court’s grant of a motion to dismiss. A court can grant a motion to dismiss if the plaintiff fails to state a claim upon which any relief may be granted. Iowa R. Civ. P. 1.421(l)(f). On appeal, we review a district court’s ruling on a motion to dismiss for correction of errors at law. See Iowa R.App. P. 6.907 (2009); see also Mlynarik v. Bergantzel, 675 N.W.2d 584, 586 (Iowa 2004). A court cannot consider factual allegations contained in the motion or the documents attached to the motion. Berger v. Gen. United Group, Inc., 268 N.W.2d 630, 634 (Iowa 1978). The court must ignore these facts, except those of which the court may take judicial notice. Winneshiek Mut. Ins. Ass’n v. Roach, 257 Iowa 354, 365, 132 N.W.2d 436, 443 (1965). In determining whether to grant the motion to dismiss, a court views the well-pled facts of the petition “in the light most favorable to the plaintiff with doubts resolved in that party’s favor.” Haupt v. Miller, 514 N.W.2d 905, 911 (Iowa 1994). The purpose of the motion is to test the legal sufficiency of the petition. Berger, 268 N.W.2d at 634.

The issue of whether the City illegally denied Geisler’s site plan comes to us on appeal from a ruling on a motion for summary judgment.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to establish there is no genuine issue of material fact, and the facts must be viewed in the light most favorable to the nonmoving party.

Rodda v. Vermeer Mfg., 734 N.W.2d 480, 483 (Iowa 2007).

III. Merits.

A. Legality of Moratorium. The City claimed that a writ of certiorari is an *166improper remedy for challenging the moratorium, as the district court lacked subject matter jurisdiction over the legislative actions of the Cedar Falls City Council. The City contended that the issuance of a moratorium is a legislative function. Geis-ler disputed that a moratorium is a legislative function, asserting that it is a judicial function. He also asserted that the City acted illegally in imposing the moratorium.

In granting the motion to dismiss, the district court noted that the City “was within its legislative authority and discretion in issuing its development moratorium.” In his resistance to the City’s motion to dismiss, Geisler did not raise, and the court did not rule on his current claim, that in passing the moratorium, the City failed to follow procedures required by Iowa Code section 414.4 and the City’s zoning ordinance. Because Geisler failed to raise this issue in his resistance, we do not address this claim. See State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997) (“Issues not raised before the district court, including constitutional issues, cannot be raised for the first time on appeal.”). We are, therefore, confronted only with the issue of whether the enactment of a moratorium is a legislative function and Geisler’s challenge to the City’s authority to enact the moratorium.

A writ of certiorari will not lie against the City if it was exercising a legislative function at the time it enacted the moratorium; such actions are not reviewable by the courts. Stream v. Gordy, 716 N.W.2d 187, 191 (Iowa 2006). This rule arises from the traditional separation of powers between the three branches of government. “The chief characteristic of the legislative function is the determination of broad policies or principles for the conduct of society’s affairs.” Goodell v. Humboldt County, 575 N.W.2d 486, 493 (Iowa 1998). We have long held that an amendment of a zoning ordinance is a legislative function. Boomhower v. Cerro Gordo County Bd. of Adjustment, 163 N.W.2d 75, 77 (Iowa 1968).

In enacting the moratorium until a revised zoning ordinance could be reviewed, the City was performing a traditional legislative function. Brown v. Crawford County, 960 F.2d 1002, 1012 (11th Cir.1992); Jackson Ct. Condos., Inc. v. City of New Orleans, 874 F.2d 1070, 1076 (5th Cir.1989). A moratorium aids a governing body in performing the legislative task of municipal planning. See Schafer v. City of New Orleans, 743 F.2d 1086, 1090 (5th Cir.1984) (“Interim development controls such as this moratorium have been found to play an important role in municipal planning. They aid in ‘bridging the gap between planning and its implementation into legal measures.’ They may, as here, be used to preserve the status quo while study of the area and its needs is completed. This moratorium on land use serves a significant public purpose.” (quoting 3 Patrick J. Rohan, Zoning and Land Use Controls § 22.01, at 22-2 (1984))).

To the extent Geisler disagrees with the City’s exercise of this legislative function, his recourse is “review by the electorate at the next election.” Stream, 716 N.W.2d at 192. We hold a writ of certiorari will not lie to review the action of the City in imposing the moratorium because it was exercising a legislative function.

B. Legality of Site Plan Denial. In his original petition, Geisler also challenged the City’s denial of his proposed site plan. There was a change in the Overlay District’s zoning ordinance from the time Geisler submitted his project and it was denied in May of 2005, to the time the City’s refusal to approve his site plan was reviewed by the district court. The district court granted sum*167mary judgment to the City on Geisler’s claim that the City illegally denied his site plan. In granting the City’s motion for summary judgment, the district court applied what has been referred to as the pending ordinance rule concluding that “at the time the site plan was denied there was pending concern, discussion and intention to amend the zoning ordinance and the site plan was denied for reasons that fueled the moratorium and zoning changes.” Because the district court believed there was a pending ordinance at the time of Geisler’s application, the court applied the new ordinance in effect at the time of the court’s decision, which ordinance prohibited multi-family housing, and found the City’s denial was appropriate. We must determine whether the district court was correct in applying the pending ordinance rule to Geisler’s claim. Contrary to the pending ordinance rule applied by the district court, we have adopted the rule that “ ‘a reviewing or appellate court must decide a case based on the zoning law as it exists at the time of the court’s decision.’ ” U.S. Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 717 (Iowa 1999) (quoting Edward H. Zeigler, Rathkopf s The Law of Zoning and Planning § 26.02[2][a], at 26-3 to 26-4 (4th ed.1996)). We do not retreat from that position.1

Under the rule adopted in U.S. Cellular, the district court should have applied the new zoning ordinance that was passed on December 12, 2005, in determining the legality of the City’s denial of Geisler’s site plan, unless an exception to this rule applied.

We have recognized two exceptions to the rule that the reviewing court applies the law in effect at the time of its review. Id. at 718. First, a developer may acquire a vested right because of substantial expenditures made in reliance on the previously existing ordinance, thereby precluding application of the new ordinance. Id. Second, a reviewing court will not apply a new ordinance if officials acted in bad faith by denying or delaying approval of a properly submitted and conforming site plan in order to alter a zoning ordinance to bar the prospective development. Id. at 717.

We have previously discussed the substantial expenditure exception. In Quality Refrigerated Services Inc. v. City of Spencer, 586 N.W.2d 202 (Iowa 1998), we noted that an affected landowner may acquire vested rights under certain circumstances:

The only vested right that a property owner may acquire is the right to complete the development of his property in accordance with his plans as of the effective date of the new ordinance....

To determine whether a property owner has acquired a vested right, we engage in a two-part analysis: (1) did the property owner make substantial expenditures toward the use in question prior to the zoning change; and (2) were the expenditures made by the property owner lawful.

Quality Refrigerated Servs., 586 N.W.2d at 206 (emphasis added) (citations omitted); see also Keller v. City of Council Bluffs, 246 Iowa 202, 212-13, 66 N.W.2d 113, 119 *168(1954). We held that without the required building permit, the landowner’s expenditures were illegal and, therefore, could not be relied upon to acquire a vested right. Quality Refrigerated Servs., 586 N.W.2d at 207.

At the point when Cedar Falls rezoned Geisler’s property, effectively stopping the project, no building permit had been issued. Because only expenditures made pursuant to a validly-issued permit will support the vested rights exception, U.S. Cellular, 589 N.W.2d at 718, Geisler had acquired no vested rights and cannot rely upon this exception.

We also discussed the bad-faith exception in U.S. Cellular. The Board of Adjustment for the City of Des Moines denied U.S. Cellular’s request to construct a cell phone tower in an area that permitted such use but required a special permit. Id. at 714. After the site plan’s denial, the Board rezoned the area to prohibit the requested use. Id. at 715 n. 2. This court affirmed the ruling of the district court finding bad faith on behalf of the Board. Id. at 718-19. To find bad faith, we required illegality of the denial2 coupled with an improper purpose. Id.

In the context of a zoning decision, “ ‘[a]n illegality is established if the board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious.’ ” Perkins v. Bd. of Supervisors, 636 N.W.2d 58, 64 (Iowa 2001) (quoting Norland v. Worth County Compensation Bd., 323 N.W.2d 251, 253 (Iowa 1982)). In U.S. Cellular, we found that the application was denied without any legal justification even though it met all of the requirements of the then existing ordinance. U.S. Cellular, 589 N.W.2d at 718-19. We specifically noted that the Board’s professed reasons for denial were not based on either the ordinance in effect at the time of application or the ordinance that was subsequently passed. Id. at 718. Further, the Board misrepresented both the facts allegedly supporting the application’s original denial and the facts allegedly supporting the change in ordinance. Id. Under those circumstances, we found the Board’s actions “patently illegal.” Id.

Of course, not every erroneous denial of a permit is done in bad faith. The deci-sionmaker must act with an improper purpose for the denial to be in bad faith. See id. at 717. The Board’s improper purpose in U.S. Cellular was illegally denying the application to produce a delay thereby giving the Board time “to enact the new ordinance prohibiting the requested use.” Id. at 719.

Other states have discussed the issue of what constitutes an improper purpose in finding bad faith. Certain examples are clear, such as punishing a political opponent or denying a barber shop license to protect the decisionmaker’s competing shop. Brady v. Town of Colchester, 863 F.2d 205, 216 (2d Cir.1988); Wilkerson v. Johnson, 699 F.2d 325, 328-29 (6th Cir.1983). Other examples are less clear. In New Jersey, the court found bad faith because, after concluding the change in the zoning ordinance seemed to bear no relation to public health, safety, morals, or general welfare and was arbitrary, it found the change was “for no other purpose than to preclude a use which for seventeen *169years has been lawful.” Brown v. Terhune, 125 N.J.L. 618, 18 A.2d 73, 74 (1941).

Courts have also found bad faith when municipalities attempt “to zone out a use” or stop a particular project. State ex. rel. Humble Oil & Refining Co. v. Wahner, 25 Wis.2d 1, 130 N.W.2d 304, 311 (1964). In Humble Oil, this conclusion was based upon the fact that “town officials were trying to keep one jump ahead of Humble and were attempting to change the rules after they had been hailed into court” by Humble. Id. From these cases, it can be discerned that an improper purpose exists when a zoning authority adopts a new zoning regulation designed to frustrate a particular applicant’s plans for development.3

We find that the district court erred in relying on the pending ordinance rule rather than applying the legal principles set out in U.S. Cellular. Because the district court did not consider whether the site plan denial was done in bad faith, we remand the issue of bad faith to the district court to determine whether the City illegally denied the site plan and whether an improper purpose existed. We note that the court has the ability to take additional evidence on this issue. See Iowa R. Civ. P. 1.1410.

IV. Disposition.

We conclude that the City’s adoption of a moratorium is a legislative function and, therefore, not reviewable. We also find that the district court erred in awarding summary judgment on the denial of Geis-ler’s site plan because the district court applied incorrect law in determining whether the City illegally denied Geisler’s site plan and failed to consider whether the denial was done in bad faith. We therefore remand this case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Bridgewater, C. J.

The City of LaCenter appeals the decision of the Clark County Superior Court, which affirmed the hearings examiner’s determination that LaCenter’s transportation impact fee ordinance is subject to the vesting statute for land use ordinances, RCW 58.17.033. We hold that the vesting statute does not apply to transportation impact fees (TIFs) because they do not fall within the definition of “land use control ordinances.” We therefore hold that LaCenter’s impact fee could be applied to New Castle Investments’ proposed development even though New Castle’s application for preliminary plat approval was perfected prior to the effective date for LaCenter’s TIF ordinance. We reverse.

New Castle Investments (NCI) applied to the City of LaCenter for preliminary plat approval on April 7, 1996. Two days later, on April 9, LaCenter adopted its TIF *227ordinance, LaCenter Municipal Code (LCMC) 17.07. LaCenter’s TIF became effective on April 16.

A hearing on the preliminary plat was held before a city hearings examiner. The hearings examiner issued an order granting approval of the preliminary plat and found that LaCenter’s TIF did not apply to the NCI’s proposed development because it became effective after the preliminary plat application was perfected.

LaCenter appealed the hearings examiner’s decision and a hearing was held before the LaCenter City Council. The Council affirmed the examiner’s decision except with respect to his conclusion that the TIF did not apply, which the Council reversed.

NCI then appealed the Council’s decision to the Clark County Superior Court. The court reversed the Council’s decision and reinstated the hearings examiner’s order, finding that the TIF did not apply to the development.

LaCenter appeals the superior court’s order and seeks the reinstatement of the Council’s order. Three amici curiae briefs have been filed in this case: (1) by the City of Vancouver and the Washington State Association of Municipal Attorneys; (2) by the Building Industry Association; and (3) by the Washington Cities Insurance Authority and the Cities of Battle Ground, Camas, and Washougal. For convenience, references made to the arguments of the City of LaCenter and the two amici briefs from the City of Vancouver, et al., and the Washington Cities Insurance Authority, et al., will be collectively attributed to “the Cities,” and references made to the arguments of NCI or the Building Industry Association will be attributed to “the Developers.”

The only issue in this case is whether the land use vesting statute, RCW 58.17.033, applies to TIFs assessed on new development. The vesting statute, RCW 58.17.033(1), provides:

A proposed division of land, as defined in RCW 58.17.020, shall be considered under the subdivision or short subdivision *228ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official.

(Emphasis added.) The resolution of this case depends upon the meaning of the phrase “land use control ordinances,” which is not defined in the statute. Specifically, the issue is whether that term can be used to describe a fee used to pay for city facilities, such as traffic signals or a park, that may be indirectly impacted by new development. The dispute in this case, at its essence, is over the timing of the fee’s calculation. The Cities assert the calculation should be made when the building permit is issued; the Developers want it to occur at the time of the application. The Cities assert that TIFs are not land use control ordinances because the Legislature never intended the vesting statute to apply to TIFs and because, as a tax, TIFs do not fall within the definition of land use control ordinance. The Developers contend that TIFs are land use ordinances and are not taxes.

Statutory construction is a question of law reviewed de novo under the error of law standard. See Waste Management of Seattle, Inc. v. Utilities & Transp. Comm’n, 123 Wn.2d 621, 627, 869 P.2d 1034 (1994) (citing City of Pasco v. Public Employment Relations Comm’n, 119 Wn.2d 504, 507, 833 P.2d 381 (1992); Inland Empire Distribution Sys., Inc. v. Utilities & Transp. Comm’n, 112 Wn.2d 278, 282, 770 P.2d 624, 87 A.L.R.4th 627 (1989)). A court will afford deference to an agency’s construction of a statute only if the statute is ambiguous and the agency is charged with the administration and enforcement of the statute at issue. Waste Management, 123 Wn.2d at 628. Only then will agency interpretation be given “great weight” in determining legislative intent. Id. (citing Pasco, 119 Wn.2d at 507) (citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 813-14, 828 P.2d 549 (1992)). The authority to interpret statutes ultimately lies with the courts. Waste *229 Management, 123 Wn.2d at 627 (citing Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 325-26, 646 P.2d 113 (1982)).

“In construing statutes, the primary objective is to ascertain the intent of the Legislature.” Cowiche, 118 Wn.2d at 813. Clear language will be given effect. People’s Org. for Wash. Energy Resources v. Utilities & Transp. Comm’n, 104 Wn.2d 798, 825, 711 P.2d 319 (1985). If a term is defined in a statute, that definition is used. Cowiche, 118 Wn.2d at 813. Absent a statutory definition, the term is generally accorded its plain and ordinary meaning unless a contrary legislative intent appears. Dennis v. Department of Labor & Indus., 109 Wn.2d 467, 479-80, 745 P.2d 1295 (1987).

I. Statutory Language

The Developers claim that this case can be resolved simply by a plain reading of the statute. But the statute does not define “other land use control ordinances.” The Developers assert that a TIF is a land use control ordinance because it is a land use ordinance. TIFs were authorized by the Growth Management Act (GMA), which regulates land use, and TIFs apply only to land use projects. But the Cities argue that a TIF does not “control” development, in the sense that it limits or changes the development in any way. The Cities’ argument comports with the dictionary definition of control, which is the “[p]ower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The ability to exercise a restraining or directing influence over something.” Black’s Law Dictionary 329 (6th ed. 1990). TIFs do not exercise a restraining or directing influence over land use; they increase only the cost. Therefore, if we look only at the individual meaning of the word control, TIFs do not “control” land use. But the dictionary definition of one word does not decide this case, for our primary goal is to ascertain the Legislature’s intended meaning of the term. Therefore, we will look at *230the Legislature’s expressions of its intent, as well as past interpretations of the vesting statute, to decide whether the vesting statute was intended to apply to TIFs.

II. Legislative Intent

The Cities contend that applying the vesting statute to TIFs would be contrary to legislative intent. The Cities believe that the Legislature did not intend that TIFs would be calculated until the building permit is issued.

The Legislature addressed the time for vesting of TIFs in the original version of the creating legislation.

(5) Notwithstanding any other provision of sections 43 through 48 of this act, that portion of a project for which a valid building permit has been issued prior to the effective date of a county, city, or town impact fee ordinance, adopted pursuant to sections 43 through 48 of this act, shall not be subject to impact fees under such ordinance so long as the building permit remains valid and construction is commenced and is pursued according to the terms of the permit.

Laws of 1990, 1st Ex. Sess., ch. 17, § 45. (Clerk’s Papers (CP) 128.) Thus, the Legislature expressly stated that the impact fees vested upon the issuance of a building permit (rather than upon filing the application). Unfortunately for our purposes, this section was vetoed by the Governor for reasons unrelated to the time for vesting.1 Nevertheless, the Cities argue that the presence of this provision within the original legislation shows that the Legislature did not intend TIFs to vest at the time of application.

The Developers contend that section five cannot be considered legislative intent because it was vetoed. The general rule is: “In exercising the veto power, the governor acts as a part of the legislative bodies and the act is to be considered now just as it would have been if the vetoed *231provisions had never been written into the bill at any stage of the proceedings.” Shelton Hotel Co. v. Bates, 4 Wn.2d 498, 506, 104 P.2d 478 (1940). But in this case, the Governor’s veto statement made clear that it was not section five that he objected to, but another section. The Governor’s veto statement is a part of legislative intent. Department of Ecology v. Theodoratus, 135 Wn.2d 582, 594, 957 P.2d 1241 (1998). Therefore, section five is a reflection of legislative intent and it does indicate that the Legislature intended that TIFs vest at the time the permit is issued, rather than at the time of application.

III. Common Law Vested Rights Doctrine

At common law, “[t]he purpose of the vested rights doctrine [was] to provide a measure of certainty to developers and to protect their expectations against fluctuating land use policy.” Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 278, 943 P.2d 1378 (1997). The common law purpose is consistent with the Legislature’s expressed purpose for the vesting statute. The Final Legislative Report on the bill enacting RCW 58.17.033 stated, in part, that the statute was intended to prevent a project from being “ ‘obstructed by enacting new zoning ordinances or building codes.’ ” Noble Manor, 133 Wn.2d at 277 (quoting Final Legislative Report, 50th Legis., Reg. Sess. 255 (1987)).

But although the vested rights doctrine was to protect developers, there are “important competing policy concerns regarding vested rights for land use”:

[D]evelopment interests protected by the vested rights doctrine come at a cost to the public interest because the practical effect of recognizing a vested right is to sanction the creation of a new nonconforming use. If a vested right is too easily granted, the public interest is subverted. However, we also recognize developers’ needs for certainty and fairness in planning their developments. . . . [T]he Legislature has made the policy decision that developers should be able to develop their property according to the laws in effect at the time they make completed application for subdivision or short subdivision of their property.

*232 Noble Manor, 133 Wn.2d at 280 (citations omitted). With these concerns in mind, it is important that the vested rights doctrine not be applied more broadly than its intended scope. The cost of a development, which is the only aspect of development affected by TIFs, is a large part of the developer’s decision making. Certainly it is to the developer’s advantage if the cost can be determined early in the process and with some degree of certainty. But it does not necessarily follow that the cost of development is the type of expectation the vested rights doctrine was intended to protect.

The right that vests, according to Noble Manor, is “the right to have the uses disclosed in [the applicant’s] application considered by the county or local government under the laws in existence at the time of the application.” 133 Wn.2d at 283. According to legal commentators, “[t]he vested rights rule is generally limited to those laws which can loosely be considered ‘zoning’ laws.” Wash. State Bar Ass’n, Washington Real Property Desk Book, § 97.8(2)(d) (3d ed. 1996). A TIF does not limit the use of land, nor does it resemble a zoning law. Instead, a TIF merely affects the ultimate cost of the development. Thus, it is not the type of right that vests under the vested rights doctrine.

At its core, a TIF is a fee charged to new development. The Court of Appeals has held in a somewhat different context that “it is inappropriate to apply the vesting doctrine to fees.” Lincoln Shiloh Assocs. v. Mukilteo Water Dist., 45 Wn. App. 123, 128, 724 P.2d 1083, 742 P.2d 177, review denied, 107 Wn.2d 1014 (1986). Lincoln held that there is no vested right to lower fees charged for connecting to a water system:

Lincoln is not being forced to use its land or build differently from that which Lincoln was able to do at the time its plans were approved by the District. Instead, the cost is increased. Lincoln had no more than an expectation that the connecting charges would remain at $6,400. There is no vested right here to the connection fee remaining $6,400.

45 Wn. App. at 128-29. Although the fees addressed in *233 Lincoln are in a different category than TIFs, the reasoning in that case is equally applicable here.

Therefore, it would be inconsistent with the purpose behind the vested rights doctrine and the vesting statute to apply it to fees such as TIFs.

IV Regulation or Tax?

The Cities also argue that the definition of “land use control ordinance” does not reasonably include taxes, and that TIFs are taxes. The Developers dispute that TIFs are taxes, arguing instead that they are regulatory fees. Whether a charge imposed by a governmental entity is a tax or a regulatory fee depends upon three factors: (1) whether the primary purpose is to raise revenue (tax) or to regulate (regulatory fee); (2) “whether the money collected must be allocated only to the authorized regulatory purpose;” and (3) “whether there is a direct relationship between the fee charged and the service received by those who pay the fee or between the fee charged and the burden produced by the fee payer.” Covell v. City of Seattle, 127 Wn.2d 874, 879, 905 P.2d 324 (1995).

In Hillis Homes, Inc. v. Snohomish County, 97 Wn.2d 804, 805, 650 P.2d 193 (1982), the court determined that county ordinances that impose fees on new residential subdivisions and housing proposals to fund public infrastructure are taxes rather than regulatory fees. Although this case was decided before the adoption of the GMA and before the TIF legislation, the fees it evaluates are nearly identical to TIFs and the case is therefore analogous. Like TIFs, the fees in Hillis Homes were imposed on new subdivisions in order to mitigate the impact of new development on parks, solid waste disposal facilities, roads, and law enforcement. Id. at 806. Also, like TIFs, there were restrictions on the use and handling of the fees: the fees were to be deposited in special accounts, and use of the fees was to be restricted to capital improvements that would benefit the geographical area from which the payment was made. Id. The court held that the purpose of imposing these fees was to raise revenue:

*234The terms of both ordinances clearly provide that the fees are to be applied to offset the costs of providing specified services. Neither ordinance makes any provision for regulation of residential developments. Therefore, it appears that the primary purpose, if not the only purpose of both ordinances, is to raise revenue rather than to regulate residential developments. For this reason, we hold that the ordinances impose a tax.

Hillis Homes, 97 Wn.2d at 810.

Like the fees in Hillis Homes, here with TIFs, there can be no question but that the purpose of TIFs is to finance public facilities and system improvements, brother words, to raise revenue. See RCW 82.02.050; RCW 82.02.090(3). Although these fees may have some land-use related objectives, such as ensuring orderly growth (RCW 82.02-.050(1)(b); LCMC 17.07.020(B)), these fees are not “merely tools in the regulation of land subdivision.” Hillis Homes, 97 Wn.2d at 809. The primary purpose of the fees is to raise money. Under Hillis Homes, the determination that the purpose is fiscal is sufficient to support the determination that the fees are taxes. Id.

TIFs also resemble taxes according to the other two Coveil factors. TIFs serve a public purpose or to “pay for public facilities.” RCW 82.02.090(3); RCW 82.02.050(1)(a). And there is no direct relationship between the fees charged and the particular development. Although impact fees must be “reasonably related” to the impact of new development on the public infrastructure, they are not individually calculated for each new development, but rather are based on a general calculation that applies to all new development. RCW 82.02.090(3); RCW 82.02.050(3) and (4); RCW 82.02.060. The developers argue that the “heightened scrutiny” mandated by Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994), and Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), would apply to impact fees and would require a direct relationship between the fees *235and the burden produced or benefit received by the payor. But even if the standard articulated in Dolan and Nollan applies, the fee need be only roughly proportional to the projected impact of new development. Dolan, 512 U.S. at 391. This is not a direct relationship. Therefore, consideration of the three Covell factors leads to the conclusion that TIFs are taxes rather than regulatory fees.

But the Developers contend that TIFs are not taxes because, unlike taxes, there are restrictions placed on the handling and use of the money.2 This argument is not persuasive. Similar restrictions were placed on the fees considered in Hillis Homes, yet the court still found them to be taxes. Also, the statute authorizing TIFs requires a nexus between the fee charged and the use made of the money, which the Developers argue is not the character of a tax. However, as the Cities point out, an even greater nexus requirement is placed on special assessment taxes,3 where the assessed property must be specially benefited by the improvements, as distinguished from a general benefit to the entire district. See Bellevue Plaza, Inc. v. City of Bellevue, 121 Wn.2d 397, 404, 851 P.2d 662 (1993). Thus, the nature of TIFs is not inherently inconsistent with their characterization as taxes.

But their resemblance to taxes is inconsistent with placing TIFs within the definition of “land use control ordinance.” The placement of TIFs among tax statutes, rather than land use regulations, indicates that they are in a different category from other land use statutes. RCW 82.02.050 through RCW 82.02.090 (the GMA impact fee statute) was adopted as part of the GMA in 1990. But it was not placed in the RCW chapters governing land use control or development regulation; instead, it was codified *236among excise taxes in RCW 82. RCW 82.02.050(3)(a) directs that the fees “[s]hall only be imposed for system improvements that are reasonably related to the new development.” And RCW 82.02.090(9) defines “system improvements” as follows: “ ‘System improvements’ mean public facilities that are included in the capital facilities plan and are designed to provide service to service areas within the community at large, in contrast to project improvements.” For example, new development may result in additional road traffic that necessitates additional traffic signals, or it may result in additional use of city parks, and TIFs may be used by the cities to improve these public facilities to meet the predicted additional demand. By the clear language of the statute, GMA impact fees are not intended to compensate local governments for the direct impacts of specific development projects on specific components of local infrastructure systems or to finance programs that regulate development. Local governments have the authority to impose exaction and dedication requirements to mitigate for direct project impacts under SEPA, the Local Transportation Act, and RCW 82.02.020.

We do not hold that these fees are taxes, but only that these fees do not fall within the vesting statute as “land use control ordinances.” By their nature, TIFs are fees that augment tax dollars; they are another source of revenue for improvements that benefit the public in general, and they are not intended to regulate the particular development. Thus, we are satisfied through our analysis of the Covell factors and Hillis Homes that TIFs have characteristics that distinguish them from regulations. The statutory character of TIFs indicates that the impact fee is in a different category from other land use statutes and does not fall within the definition of “land use control ordinance.”

V Public Policy

Finally, to apply the vesting statute to TIFs would thwart the Legislature’s intent that TIFs be “reasonably related *237to the new development that creates additional demand and need for public facilities, that is a proportionate share of the cost of the public facilities, and that is used for facilities that reasonably benefit the new development.” RCW 82.02.090(3). These are perhaps the reasons the Legislature required TIFs to be tied to the local growth management plan, which evolves over time. RCW 82.02.050(4). The time lag between the application for preliminary plat approval and the issuance of the permit application may be many years.4 Thus, the fee calculated by LaCenter at the time of preliminary plat approval would bear little relationship to the actual impact of growth at the time the permit is issued.

The TIFs do not affect the physical aspects of development (i.e., building height, setbacks, or sidewalk widths) or the type of uses allowed (i.e., residential, commercial, or industrial). If they did, then TIFs would be subject to the vested rights doctrine. In other words, “[the developer] is not being forced to use its land or build differently from that which [the developer] was able to do at the time its plans were approved .... Instead, the cost is increased.” Lincoln Shiloh Assocs., 45 Wn. App. at 128. To freeze the calculation of the impact fee at the time of application would disconnect planning and financing from the actual effects of growth. The Legislature has stated that the indirect effects of growth can be recovered. If the fee were frozen, then new growth could take place without the developer paying its fair share for improving public facilities. The developer could be paying an impact fee that reflects a planning effort and a cost that is no longer relevant. The TIFs must be calculated when the growth is to occur, at the time of the building permits; otherwise cities would be underfunded to pay for the indirect costs of new growth.

Because TIFs do not “control” land use, do not affect the developer’s rights with regard to the physical use *238of his or her land, and are best characterized as revenue raising devices rather than land use regulation, we hold that the definition of “land use control ordinances” does not include TIFs. This holding is consistent with legislative intent and public policy behind the TIF and the vesting statute. The vesting statute does not apply to TIFs.

Reversed.

Seinfeld and Hunt, JJ., concur.

Review denied at 140 Wn.2d 1019 (2000).

*215HASELTON, P. J.

Petitioner, Fountain Village Development Company, petitions for review of a final opinion and order of the Land Use Board of Appeals (LUBA), determining that Fountain Village had lost an alleged vested right to complete and use a log cabin on land zoned for commercial forest use. Respondent, cross-petitioner Multnomah County, does not challenge LUBA’s determination of the vested rights issue but, by way of a “conditional cross-petition,” asserts that if we reverse or modify LUBA’s decision, we should direct LUBA to determine certain additional matters. We reverse and remand on the petition and affirm on the cross-petition.1

The basic facts are not in dispute, and we take them, in the greater part, from LUBA’s opinion. In 1985, the landowner constructed a concrete bunker for the purpose of growing marijuana plants on 38 acres in east Multnomah County. At that time, the property was zoned for Multiple Use Forest (MUF). MUF zoning permitted a dwelling on a parcel of 38 acres or more.2

The owner began construction of a log cabin on top of the bunker sometime before March 1987. Because the owner lacked a building permit for the construction, Multnomah County issued a “stop work order.” By March 10, 1987, the landowner applied for, and was issued, a building permit for the log cabin construction. Work on the cabin continued, but it was not finished. After 1987, there was no further construction, and there were no further expenditures toward construction. In 1991, a renewed building permit issued, but no construction was undertaken under the renewed permit. LUBA characterized the 1987 permit as having expired.3

*216In 1992, federal agents found marijuana on the property and subsequently seized the property, apparently because it was purchased with the proceeds of illegal drug trafficking. Multnomah County then acquired title to the property. On January 7,1993, the county changed the zoning from MUF to Commercial Forest Use (CFU). In the CFU zone, a single family dwelling is a conditional use, not an outright permitted use. MCC 11.15.2050(B). The effect of the zone change was that a person who sought to build a dwelling on the property would have to obtain specific permission for the dwelling subject to county conditions.

The former landowner reacquired the 38-acre property, and, in a series of transactions in 1993 and 1994, the present petitioner, Fountain Village Development Company, purchased it. Petitioner paid some $25,000 for the two-acre portion upon which the cabin is sited. In 1994, the county approved a lot line adjustment that reduced the portion of the property housing the cabin to 2.96 acres. The remainder of the property was sold.

In 1995, petitioner spent some $3,000 to clear soil off the bunker, construct a road to the site, and hire an engineer to review the integrity of the uncompleted log cabin. Petitioner made no efforts to complete the cabin for occupancy because interest rates for second-home loans were then unfavorable. Between 1995 and 1998, petitioner cleared brush, replaced broken windows, and maintained the roof, but did not perform any work to complete the cabin. Petitioner applied for a loan to complete the cabin in 1998 when interest rates fell.

On September 24,1999, petitioner asked the county for a legal status determination regarding the cabin. The county issued an administrative decision, which concluded *217that petitioner had no vested right to complete and use the cabin. The administrative decision treated the residential use as a nonconforming use and said the use had been abandoned or discontinued under the county code. The decision relied on MCC 11.15.8805(B), which provides:

“If a non-conforming structure or use is abandoned or discontinued for any reason for more than two years, it shall not be re-established unless the resumed use conforms with the requirements of this code at the time of the proposed resumption.”

Petitioner sought review before a hearing officer. The hearing officer considered the matter and concluded that any vested right to complete and use the cabin as a nonconforming use had been abandoned or discontinued. The hearing officer determined that the code governing nonconforming uses applied because, “[a]s vested rights are simply a right to complete establishing a nonconforming use, it is logical to find that the rules that govern the loss of nonconforming rights apply to vested rights.” Petitioner took the matter to the Board of Commissioners, which affirmed the hearing officer’s decision but also incorporated suggested findings by intervenor respondent - cross-respondent Rochlin. Among those proposed and incorporated findings was the proposition that petitioner, as applicant, had not “carried the burden of showing there was not a 2-year discontinuation of substantial effort to finish” the development.4 (Emphasis added.)

Before LUBA, petitioner attacked the county’s application of its code provisions addressing abandonment and discontinuance of a nonconforming use. Petitioner asserted that the county code could not possibly be applied to its circumstance because the code at MCC 11.15.8805 governs “uses,” and, in this case, no “use” had been established. In other words, to petitioner, a vested right to complete a use is not a nonconforming use and could not be treated as such.

*218In the alternative, petitioner argued that, because the county code expressly provides that “a nonconforming structure or use may be maintained with ordinary care,” MCC 11.15.8805(C), the county could not conclude that petitioner had lost its vested right through abandonment or discontinuance. Petitioner also contended that the county’s ostensible reliance on a “substantial effort” standard for discontinuance was erroneous as inconsistent with the “ordinary care” language of MCC 11.15.8805(C). Petitioner also pointed to facts showing that it maintained the cabin during the same years that the county relied on in finding that the use had been abandoned or discontinued.

LUBA did not address whether petitioner, in fact, had a vested right in completing and using the cabin. Rather, LUBA concluded that, even assuming that such a vested right had ever existed: (1) It could be lost in the same manner as nonconforming use — i.e., through abandonment or discontinuance, MCC 11.15.8805(B); and (2) substantial evidence supported the countys finding of discontinuance.

LUBA’s fundamental holding is that “vested rights, like nonconforming use rights, may be lost where the holder fails to diligently exercise those rights.” In particular, petitioner’s alleged vested right to build was subject to being forfeited by abandonment or discontinuance pursuant to ORS 215.130(5) and (10) and MCC 11.15.8805(B).5 As support for that conclusion, LUBA invoked Clackamas County v. *219 Holmes, 11 Or App 1, 501 P2d 333 (1972), rev’d on other grounds 265 Or 193, 508 P2d 190 (1973), for the proposition that “Oregon courts have consistently treated a vested right as a nonconforming use that differs primarily in that the landowner need not establish ‘actual use.’ ”6 See also Twin Rocks Watseco v. Sheets, 15 Or App 445, 448, 516 P2d 472 (1973), rev den (1974) (construing “use of any building” in ORS 215.130(5) to mean an existing building or one upon which substantial work has been completed).

By extension, LUBA rejected petitioner’s assertion that the only restrictions applicable to continuance of a vested right are equitable defenses, such as laches. Indeed, LUBA observed that it would be incongruous to confer greater protection on the vested right to create a use than on the eventual use itself.

Petitioner argued, nonetheless, that abandonment requires proof of an intent to abandon the putative use, and that here there was no evidence of such an intent. Petitioner pointed specifically to its maintenance of the unfinished structure from 1995 to 1998, and asserted that it was reasonable to delay finishing the cabin because of unfavorable interest rates at the time. LUBA agreed with petitioner that there was not substantial evidence in the record to show an intent during the period 1995-98 to abandon a right to complete and use the cabin.

That determination did not end the matter, however, because MCC 11.15.8805(B) provides that a nonconforming use may be lost by either abandonment or discontinuance and, while the former requires proof of intent to relinquish a known right, the latter does not. Consequently, LUBA next considered whether the petitioner’s failure to continue development of the cabin resulted in loss through “discontinuance.”

*220 In that regard, petitioner argued that its maintenance of the cabin precluded any finding of discontinuance. LUBA rejected that argument and, in doing so, apparently sustained the county’s determination that there was a “discontinuance of substantial effort to finish the development” over the requisite two-year period:

“According to petitioner, because MCC 11.15.8805(C) allows a nonconforming use or structure to be ‘maintained with ordinary care,’ such maintenance during a period of time negates a finding of discontinuance during that period. We disagree. The county’s decision views a vested right to complete a partially completed building to be lost if there is ‘discontinuance of substantial effort to finish the development’ over the requisite two-year period. There is no dispute that petitioner’s actions in maintaining the site over the period 1995 to 1998 did nothing to finish the development.”7

On review, petitioner reiterates its arguments before LUBA. We begin with petitioner’s core contention that statutes and local laws governing nonconforming uses do not apply to vested rights generally, much less to petitioner’s circumstances specifically.8

Petitioner asserts, in effect, that if the legislature had wanted to include vested rights within the scope of the laws governing nonconforming uses, it could have, and would *221have, said so explicitly. Instead, in petitioner’s view, the legislature enacted “vesting statutes” that give landowners a right to develop their property under regulations existing when the right vested. As an example of such a “vesting statute,” petitioner points to ORS 215.427(3), which requires that, in certain circumstances, approval or denial of a land use application “shall be based upon the standards and criteria that were applicable at the time the application was first submitted.” Thus, in petitioner’s view, as long as a vested right has not been realized through actual use (here, the completion of the cabin), it is not subject to nonconforming use treatment. In sum, petitioner argues that

“the legislature recognizes two related but distinct set of rights — the vested right of a property owner to build a development under a certain set of regulations [quoting statutes], versus the right of a property owner to use of the property (ORS 215.130), even though the use or structure no longer conforms to the existing regulations. The county and LUBA confuse and conflate these two related but distinct property interests.” (Emphasis in original.)

We reject petitioner’s proposed mutually exclusive dichotomization of “vested rights” and “nonconforming uses.” Nothing in Oregon’s case law or statutes precludes subjecting vested rights to develop property to the same limitations that apply to nonconforming uses generally — and, indeed, as addressed below, not to do so would yield incongruous results. Moreover, under ORS 215.050(1),9 counties are responsible for adopting comprehensive plans, as well as zoning, subdivision, and other ordinances applicable to all land within the county. Just as the regulation of existing nonconforming uses is a matter within a county’s authorized land use purview, so too is the regulation of vested rights to develop — which are, in effect, inchoate nonconforming uses. The fact that ORS 215.130 does not explicitly use the term *222“vested rights” does not mean that local governments responsible for ordinances controlling land use are powerless to address and regulate the conditions under which vested rights may be extinguished. We conclude, therefore, that Multnomah County’s application of MCC 11.15.8805 in this case was within the county’s authority.

The Supreme Court’s decisions in Holmes and Polk County v. Martin, 292 Or 69, 636 P2d 952 (1981), comport with that understanding. In Holmes, the court did not address the question of whether a vested right alleged to have been abandoned or discontinued would be tested under the law governing nonconforming uses. However, the court did introduce its discussion of the facts necessary to show existence of a vested right by observing that the “allowance of nonconforming uses applies not only to those actually in existence but also to uses which are in various stages of develop-, ment when the zoning ordinance is enacted.” Holmes, 265 Or at 197.

In Martin, the court considered Polk County’s claim for injunctive relief in which the county asserted that the defendant’s intermittent use of a rock quarry was not sufficient to confer any right to a nonconforming use and not sufficient to continue the use. In addition, the county asserted that interruption of the use and the defendant’s use of the property after the zoning law became effective resulted in an unauthorized enlargement or prohibited increase in the use. See ORS 215.130(9). The court disagreed and, in the course of its opinion, expanded somewhat on its discussion of vested rights in Holmes. It characterized Holmes as addressing

“the degree of development which must exist before an owner of partially developed property can be said to have established a ‘lawful use’ of property under the statutes, so as to use the property as intended even though the use would not be permitted under the zoning law which became effective while the property was being improved.” Martin, 292 Or at 80.

The court in Martin treated the right to continue development and use the property as a “vested right” but, at the same time, considered the question of whether the landowner had abandoned the right to use the property under ORS *223215.130. In that sense, the court’s framing of the controversy before it showed that it viewed the vested right (to develop a use) as having merged into the fully developed nonconforming use.

Thus, nothing in Martin or in Holmes suggests that the court viewed a vested right to develop property, or an unfinished use, as a distinct variety of property right immune from discontinuance or abandonment under regulations controlling nonconforming uses. Rather, the two cases suggest just the opposite. That is, one may secure a vested right to construct a nonconforming use, but there is no reason to afford that right different or greater protections than the ultimate use itself.

Our case law is similar. In Eklund v. Clackamas County, 36 Or App 73, 583 P2d 567 (1978), overruled on other grounds by Forman v. Clatsop County, 63 Or App 617, 665 P2d 365 (1983), aff'd 297 Or 129 (1984), we were asked to review a trial court determination that a developer had a vested right to build a subdivision, including a vested right to serve the subdivision from an existing community water system. Citing Holmes, we said that “allowance of a nonconforming use applies not only to a use in existence but also to uses which are in various stages of development at the time the ordinance is enacted.” Eklund, 36 Or App at 81. We reviewed the facts under the criteria identified in Holmes for assessing evidence of a nonconforming use and concluded that the trial court was correct “in finding that petitioners had established a vested right to complete the project based on a nonconforming use.” Id. at 82. In sum, while not equating vested rights with nonconforming use rights, we treated the two as inextricably related.

In Milcrest Corp. v. Clackamas County, 59 Or App 177, 650 P2d 963 (1982), a developer had sought approval of a planned unit development and had made expenditures and performed work toward completion of that project. The county’s new comprehensive plan made the development nonconforming. We concluded that the developer had, as a result of its actions, “acquired a vested right in a nonconforming use.” Milcrest, 59 Or App at 181 (emphasis added). We *224also found, given the facts, that the developer did not abandon its right by applying for and obtaining approval of a revised planned unit development. Again, while not expressly so stating, we implicitly assumed that the “vested right” to complete the nonconforming planned unit development could be subject to loss by abandonment.10

In sum, Oregon case law does not square with petitioner’s view that a vested right to proceed with development and completion of a nonconforming use is immune from the controls authorized under ORS 215.130. Rather, the available Oregon precedent strongly implies the contrary.

One final, practical consideration buttresses our . conclusion that LUBA was correct in concluding that vested rights may be lost by abandonment or discontinuance. As LUBA observed:

“We can conceive of no reason why a vested right should be treated more favorably than a nonconforming use with respect to the duration of that right or the requirement for diligent exercise. If petitioner’s view were correct, the holder of a vested right is in a considerably more secure position than the holder of a nonconforming use, even though the latter may have invested far more capital to complete the use, and may have more to lose if that use is terminated. Further, under petitioner’s view, the holder of a vested right can allow the land or structure to sit idle for an extended, perhaps unlimited, period of time, while the owner of a nonconforming use must employ the land or structure even under adverse economic conditions, to avoid loss of that right through discontinuance.”

We agree with LUBA that there is no reason to afford the “inchoate” entitlement to a use greater protection from loss than the actual use would ultimately enjoy. We thus conclude that LUBA correctly determined that MCC 11.15.8805 applied to petitioner’s claimed vested right to construct the cabin.

Notwithstanding that conclusion, a remand is required. In its second assignment of error, petitioner raises *225a variety of challenges to LUBA’s determination that the alleged vested right was lost through discontinuance. One of those arguments is essential to the balance of the analysis, and its ultimate disposition may either obviate or alter the remaining arguments.

As noted, the county, through incorporation of intervenor Rochlin’s proposed material,11 endorsed and ostensibly applied the proposition that a vested right can be lost through discontinuance unless the holder engages in “substantial effort [s] to finish the development” within the requisite period. See 176 Or App at 217. LUBA, in affirming — and, particularly, in performing its substantial evidence review— tested the evidence against that standard.

In doing so, however, LUBA does not appear to have addressed petitioner’s threshold argument that the applicable standard, if any, is “ordinary care” and not “substantial efforts” to complete. MCC 11.15.8805(C) provides that a “non-conforming structure or use may be maintained with ordinary care.” Conversely, neither ORS 215.130 nor MCC 11.15.8805 uses the term “substantial efforts.” We do not understand LUBA to have explained why “ordinary care” is not the controlling standard or why — given the appropriate relationship between subsections (B) and (C) — “substantial efforts” can or should be the standard. Because that question is central to the inquiry, we remand to LUBA to, at a minimum, explain why “substantial efforts” and not “ordinary care” is the controlling standard for purposes of loss of a vested right pursuant to MCC 11.15.8805. Given that disposition, we decline, for prudential reasons, to address petitioner’s remaining arguments in this posture.

We turn, briefly, to the county’s conditional cross-petition. The county asserts that, if we, for any reason, reverse and remand to LUBA on the petition (as we are *226doing), we should direct LUBA on remand to also enter findings on three matters that were not essential to its original analysis and disposition.12

We decline to so direct LUBA on remand. It may be that, depending on LUBA’s assessment of the “ordinary care” versus “substantial efforts” question, LUBA might find it preferable or necessary to address one or more of the matters that the county has identified. Or it may be that those matters remain extraneous to LUBA’s analysis and disposition. The choice is a prudential matter within LUBA’s sound judgment, and we will not compel or constrain that judgment.

Reversed and remanded on petition for proceedings consistent with this opinion; affirmed on cross-petition.

GLICKMAN, Associate Judge:

This is round two in an appeal by the West End Citizens Association (“WECA”) of a Certificate of Occupancy (“C of 0”) granted to intervenor, Foggy Bottom Grocery, LLC. Intervenor does business under the name FoBoGro. The C of O allowed FoBoGro to operate a grocery in a residentially zoned neighborhood of the District of Columbia known as Foggy Bottom. In round one, the Board of Zoning Adjustment (“BZA”) concluded that the proposed grocery business would not constitute an improper expansion of a nonconforming use and therefore upheld the C of 0. This court reversed that decision. On remand, the BZA again rejected WECA’s appeal of the C of 0, this time on equitable estoppel grounds. Before us now is WECA’s petition for review of that determination. For the reasons that follow, we affirm.

I.

The building at the center of this controversy is a three-story row house located at 2140 F Street, N.W. It has been the site of a grocery store since 1946. The operation of that grocery on one floor of the building has been a lawful nonconforming use in a residentially zoned area since at least May 12, 1958, when the modern zoning map became effective.

In 2008, FoBoGro became interested in acquiring and modernizing the grocery business there. Before doing so, it applied for a new C of 0 to allow the entire building to be used for a grocery store and what its application referred to as a “sandwich shop.” The Zoning Administrator approved the application and issued the requested C of 0 on August 21, 2008. The C of 0 provided that the total area of the building that could be devoted to the approved uses was 1,835 square feet, which encompassed all three floors. After receiving this C of 0, FoBoGro purchased the business, leased the building from George Washington University, and eventually began renovating the property.

WECA did not learn of FoBoGro’s August 2008 C of 0 until around August 2009. It then complained to the Zoning Administrator that the C of 0 improperly expanded a nonconforming use in two respects: by allowing the operation of a grocery to *902expand from one floor of the building to all three floors, and by permitting the operation of a sandwich shop at the location in addition to a grocery. In response to WECA’s complaints, the Zoning Administrator sent a revocation notice to FoBoGro on October 14, 2009. “Because you changed the prior use of the Property in your application by the adding of a proposed ‘sandwich shop use,”’ the notice stated, “the C of 0 ... was issued in error.” The notice did not cite the alleged expansion of the grocery store use from one to three floors as a basis for revocation.1

FoBoGro opposed the threatened revocation. It explained that it merely intended to sell sandwiches and other prepared foods for off-premises consumption only, as a component of its grocery business. This explanation satisfied the Zoning Administrator that no expansion of the nonconforming use was planned. On November 4, 2009, he issued a new C of O to FoBoGro to replace the August 2008 C of O. The new C of O continued to permit a grocery business to be conducted in the 1,835 square foot space at 2140 F Street. The only differences were that it described the authorized use as including an “accessory prepared food shop” instead of a “sandwich shop,” and it stated explicitly that the approved occupancy comprised three floors of the building.

WECA promptly appealed the November 2009 C of O to the BZA. It contended that the C of 0 impermissibly expanded the existing nonconforming grocery use by permitting FoBoGro to use the entire building in the grocery business instead of only one floor, and by permitting the operation of an accessory prepared foods shop. FoBoGro disputed these contentions and asserted affirmative equitable defenses of laches and estoppel.2

After a hearing at which the Zoning Administrator and other witnesses testified, the BZA rendered its initial decision in this case. It ruled that the C of O did not authorize an impermissible expansion of the nonconforming grocery store use, because that use had not been limited in the past to only one floor of the building, and because the incidental sale of prepared food for off-site consumption was part of the grocery business. The BZA therefore *903denied WECA’s appeal of the C of 0 without finding it necessary to address FoBoG-ro’s equitable defenses.

WECA sought reyiew in this court. In an unpublished memorandum opinion, we affirmed the BZA’s determination that the sale of prepared food was encompassed in the grocery use. We held, however, that the nonconforming grocery use at 2140 F Street had been limited by the terms of earlier C of O’s to one floor of the building, and that it was improper for the November 2009 C of O to permit the expansion of such use to the rest of the building. We remanded the record to the BZA for it to consider three remaining issues: the timeliness of WECA’s appeal of the Zoning Administrator’s approval of the expanded grocery use, and FoBoGro’s laches and estoppel defenses to the revocation of its C of O.3

In its decision on remand, the BZA ruled that FoBoGro had forfeited a challenge to the timeliness of WECA’s appeal4 and had not established a laches defense. The BZA concluded, however, that FoBoGro’s equitable estoppel defense to revocation of its C of O was meritorious. Accordingly, the BZA dismissed the remaining portion of WECA’s appeal.

The augmented record of the proceedings before the BZA has been returned to this court for a final decision on WECA’s petition for review. In compliance with our remand order, the parties have advised us of their positions with respect to the BZA’s decision. FoBoGro concurs with the order of dismissal and does not seek review of the BZA’s determinations regarding timeliness and laches. WECA argues that the BZA erred in accepting FoBoGro’s estoppel defense and asks us to reverse the dismissal. Our review of the BZA’s determination is limited in nature. We must affirm its factual findings as long as they are based on substantial evidence in the record and, ultimately, we must sustain its action unless it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.5

II.

Because of the public interest in enforcement of the zoning laws, stringent conditions are placed on the assertion of an equitable estoppel defense against the government, and “its application is limited to situations when the equities are strongly in favor of the party invoking the doctrine.” 6 Thus, as the BZA correctly rec*904ognized, we typically have said that to make out a case of estoppel, a party must show that “(1) acting in good faith, (2) on affirmative acts of [the zoning authority], (3) he made expensive and permanent improvements in reliance thereon, and (4) the equities strongly favor him.”7 For the equities to favor the party claiming an estoppel, any injury to the public that would flow from the non-enforcement of the zoning law must be minimal and outweighed by the injury estoppel would avoid.8

The BZA concluded the requirements of equitable estoppel were satisfied in this case because it found that (1) the Zoning Administrator’s 2008 C of 0 permitted the entire building to be used for the operation of a grocery; (2) FoBoGro proceeded reasonably and in good faith, having no reason to believe the 2008 C of O impermissi-bly expanded the nonconforming grocery use; (3) FoBoGro relied on the 2008 C of O by spending “considerable sums” to purchase the grocery business, lease the building, enter into various contracts, renovate the building, and incur other business expenses; and (4) the equities favored FoBoGro, because of its good faith and objectively reasonable reliance on the 2008 C of O, and because the BZA found *905“no evidence” that the neighborhood would be harmed by the continued operation of “a grocery store that has been a neighborhood institution for over 60 years.”

WECA’s principal argument on appeal is that FoBoGro “could not have relied justifiably or reasonably”9 on the 2008 C of O when it incurred the bulk of its renovation expenses, because it did so after WECA commenced its attack on the C of O in August 2009.10 But as the BZA appreciated, FoBoGro relied on the 2008 C of O to its considerable financial detriment in other ways well before it learned of WECA’s challenge to the legality of its C of O, for example by purchasing the grocery business and entering into a lease of the building. Although our cases in the zoning context have focused on whether the party invoking estoppel made expensive and permanent improvements in reliance on the erroneous governmental decision, we see no reason in principle why other forms of reliance cannot equally support an estoppel. Any error by the BZA in taking FoBoGro’s renovation costs into account strikes us as surely inconsequential.11

WECA also argues that FoBoGro was precluded from asserting its estoppel defense because the C of O at issue in the present proceedings is not the 2008 C of O on which it relied, but rather is the replacement C of O that the Zoning Administrator issued in November 2009. We do not agree, because the latter C of O continued without material change the earlier authorization in the 2008 C of O of a grocery úse on all three floors of the building, and FoBoGro had no reason or occasion to assert its estoppel defense at any time before WECA appealed the 2009 C of O.

Furthermore, contrary to WECA’s contention, the BZA’s finding that FoBoGro acted in good faith is not undermined by the fact that its principal (Mr. Hart) identified himself as the business owner in the application for the 2008 C of O before FoBoGro actually purchased the grocery. This fact was not concealed and there is no indication that the Zoning Administrator was misled in any way or that WECA or any other party was prejudiced by the irregularity.

Finally, regarding the BZA’s assessment of the competing equities, WECA disagrees with the finding that the expansion of the nonconforming grocery store use from one to three floors will not harm the surrounding neighborhood. WECA appears to complain that the BZA failed to address its claims of prejudice. However, WECA does not even attempt to demonstrate that the BZA’s finding lacks sub-_ stantial support in the record, nor does it point us to evidence of any actual harm flowing from the grocery store operation. WECA’s expressed concerns about possible adverse effects on the area’s tranquility, traffic, and property values were speculative and unsubstantiated. In our view, *906the BZA’s dismissal .of those concerns — it found “no evidence” of harm and stated that “[i]n fact, WECA has never argued that it has been harmed in any way by the operations of the grocery store” — was within the ambit of its discretion as fact finder.

In sum, we are not persuaded that the BZA materially erred in finding on the record before it that FoBoGro satisfied all the requirements for an equitable estoppel of the revocation of its C of 0. We likewise are not persuaded that the BZA misunderstood or misapplied the law, that it acted arbitrarily or capriciously, or that it abused its discretion. Accordingly, we uphold the determination that FoBoGro established its estoppel defense and affirm the BZA’s order of December 8, 2014, dismissing the remainder of WECA’s appeal of the November 2009 C of O issued to FoBoGro.

So ordered.

Peters, J.

The principal issue in this case is whether a municipality can be estopped from enforcing its zoning regulations because of a longstanding pattern of conduct permitting unauthorized uses of private property. The plaintiff town of West Hartford, acting by its building inspector, Edward A. Dombroskas, sued to enjoin the defendants Joseph P. Rechel and Shirley T. Rechel from operating two rooming houses in the town. After a court trial, a permanent injunction was issued, from which the defendants have appealed.

The underlying facts found by the trial court in its memorandum of decision are essentially undisputed. The two properties owned by the defendants are located at 55 Highland Street and 739 Prospect Avenue, in an area zoned by the town of West Hartford as an R-10 district, which is a one-family residential *116district. In such a district, rooming or boarding houses are permitted only as accessory uses, if the owner uses the premises as his own residence and limits the number of roomers to three or less. Rooming houses as main uses, without an owner in residence, are now and have been, since at least 1925, totally forbidden. Even as accessory uses, rooming houses require appropriate town licenses. These zoning regulations, although adopted in their present form in 1968, do not vary materially from regulations first adopted in 1945. Before 1945, rooming houses were permitted as accessory uses without any limit on the number of roomers who might share-the houses with their resident owners.

The history of the disputed properties reveals that, prior to 1941, they were used for single family purposes. At some time during the early 1940’s, both properties were converted into rooming houses, in which substantial numbers of boarders received room and board, with the owner retaining an apartment on the premises.1 Thereafter, the properties became rooming houses without an. owner in residence, and were so operated by the defendants, who bought the house on Highland Street in 1962 and the other, on Prospect Avenue, in 1965.

From 1949 to 1967, the town issued rooming house licenses to the defendants and their predecessors in title.2 Despite the receipt of properly submitted applications for subsequent years, the town refused thereafter to take any action to issue further licenses. The building inspector wrote the defendants in 1969 to inform them *117that their rooming houses, since they rented to more than three roomers, were not allowable uses in the town. The following year, however, town corporation counsel gave a formal opinion that the defendants’ properties, because of their history of continuing use as boarding houses, qualified as legal nonconforming uses.3 Despite that opinion, the town brought the present lawsuit in 1975.

The trial court, upon reviewing this finding of facts, came to the following conclusions of law. The properties were not, and never had been, operated as legal accessory uses. When first converted to rooming house use, the number of boarders was so disproportionate to the residential uses of the principal occupants that the uses did not qualify as accessory uses. Furthermore, even if the early uses had been accessory in nature, they had thereafter lost their accessory character by abandonment. The defendants, having themselves never resided on the properties and having operated them as businesses for the generation of income from roomers, could no longer rely on the prior uses. After abandonment, a prior legal use is lost and cannot be revived. Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 181, 377 A.2d 280 (1977). The defendants had therefore failed to prove their special defense of “prior legal nonconforming use.”

The trial court further concluded that the defendants could not prevail on their equitable defenses of laches and estoppel. With respect to laches, the court determined that the town had not unreasonably delayed its enforcement of its 1968 ordinances. With respect to estoppel, the court expressed doubt about the availabil*118ity of such a defense against a municipality and found an absence of “hard evidence’ ’ that the defendants had suffered any loss “because of any action of the town.”

Finally, the trial court rejected the defendants’ argument that the town had so far abandoned its zoning plan in the immediate area of the defendants’ properties that enforcement of its regulations against the defendants was arbitrary and capricious. Having viewed the properties and the neighborhood, the court found no evidence either of abandonment of the town plan or of arbitrariness in its enforcement.

In their appeal from the trial court’s order permanently enjoining their use of 55 Highland Street and 739 Prospect Avenue as rooming or boarding houses in violation of Article 4 of the town zoning regulations, the defendants rely principally on their arguments of estoppel and laches although they also contest the conclusion that they had not proven their acquisition of a nonconforming use.4 We shall consider these claims in the reverse order, taking up first the question of legal nonconforming use.

With regard to the legal status of their properties, the defendants now concede that they can prevail only if they can establish that the houses were actually used as accessory rooming houses before 1945. They dispute the trial court’s contrary finding by pointing to evidence that the houses were in fact used as rooming houses in 1943 and 1948. This evidence is supported, they claim, by the town’s subsequent issuance of rooming house licenses, which creates a presumption that the houses complied with the town’s zoning ordinances.

*119The fallacy in this argument is that it fails to overcome the trial court’s finding that the rooming houses were being operated illegally as main uses, rather than legally as accessory uses, in the years at issue. It was not sufficient to establish that the owners then resided in the rooming houses. The defendants have not directly challenged the trial court’s factual finding that there was a disproportion between the number of boarders and the resident owners but dispute instead its consequent conclusion that such a disproportion prevented the boarding uses from being “accessory.” The defendants argue that such disproportion is irrelevant since it was not until 1945 that the town limited to three the number of roomers who could legally be housed in a residential accessory rooming house. It does not, however, follow that accessory use had no numerical limitation whatsoever before 1945. The trial court was, in our view, entirely within its province in inferring that the concept of accessory use necessarily required an inquiry into the extent to which actual uses were incidental to the underlying permitted residential uses of the property. See Lawrence v. Zoning Board of Appeals, 158 Conn. 509, 511-13, 264 A.2d 552 (1969); Fox v. Zoning Board of Appeals, 146 Conn. 70, 74-75, 147 A.2d 472 (1958). We therefore find no error in the trial court’s conclusion that the properties, while they became rooming houses, were never operated as accessory uses in conformity with applicable town regulations.

The defendants’ remaining arguments with respect to legal nonconforming uses cannot survive, once this first conclusion of the trial court is upheld. Subsequent town licensing is important for the defendants’ claims of estoppel but cannot per se convert illegal main uses into legal accessory uses. Given the other facts found by the trial court, the court was entitled to find that *120any presumption of legality attaching to the issuance of the licenses had been adequately rebutted by the town’s evidence of continued illegal uses. Finally, we need not review the defendants’ claims that they never intended to abandon any legal uses of their property, since they are unable to prevail on nonabandonment without first establishing as its predicate the prior legality of the uses they seek to preserve.

We turn then to the defendants’ claim that the equitable principle of laches makes it improper for the town to enjoin their rooming houses even if these rooming houses are otherwise unauthorized under town regulations. The defendants acknowledge that Bianco v. Darien, 157 Conn. 548, 556, 254 A.2d 898 (1969), permitting a town to enforce its zoning ordinances after a thirty-six year lapse, stands in the way of their recovery on this theory. Whether we conclude, as did the trial court, that the town is enforcing its 1968 zoning enactments or, as the defendants maintain, its similar 1924 and 1945 ordinances, we are not prepared, in the circumstances of this case, to overrule our holding in Bianco that “[a] zoning commission ‘is not estopped by laches from enforcing its zoning laws.’ ” Id.; see 3 Rathkopf, Law of Zoning and Planning (4th Ed. 1982) § 45.05[2],

A defense based on laches would have us focus on the effect of inaction, of the mere passage of time. See 9 McQuillin, Municipal Corporations (3d Rev. Ed. 1978) § 27.56. The defendants’ final argument, however, focuses on affirmative conduct of the town which, they maintain, was of such a character as now to estop the town from obtaining an equitable remedy against them.

*121This court has recently restated the law of municipal estoppel. In Zoning Commission v. Lescynski, 188 Conn. 724, 731-32, 453 A.2d 1144 (1982), we held that, in special circumstances, a municipality may be estopped from enforcing its zoning regulations. We recognized that estoppel always requires “proof of two essential elements: the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242, 413 A.2d 834 (1979); Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 353, 365 A.2d 1093 (1976); Pet Care Products, Inc. v. Barnett, 150 Conn. 42, 53-54, 184 A.2d 797 (1962).” Zoning Commission v. Lescynski, supra, 731. In municipal zoning cases, however, estoppel may be invoked “(1) only with great caution, (2) only when the resulting violation has been unjustifiably induced by an agent having authority in such matters, and (3) only when special circumstances make it highly inequitable or oppressive to enforce the regulations. Dupuis v. Submarine Base Credit Union, Inc., supra, 354.” Id., 732; see also 8A McQuillin, Municipal Corporations (3d Rev. Ed. 1976) § 25.349; 9 McQuillin, supra, § 27.56; 3 Rathkopf, Law of Zoning and Planning (4th Ed. 1982) § 45.05[1] [b],

Lescynski puts to rest some of the controversy surrounding zoning estoppel. Contrary to the view of the plaintiff, a municipality can be estopped by erroneous acts of its officers from enforcing its zoning ordinances, as long as those officers act within the scope of their authority. The determination that the town’s building inspector (who was also its zoning enforcement officer) acted erroneously in issuing rooming house licenses for *122the premises in question does not, therefore, defeat the defendants’ claim of estoppel. See Town of Largo v. Imperial Homes Corporation, 309 So. 2d 571, 574 (Fla. App. 1975); Cities Service Oil Co. v. City of Des Plaines, 21 Ill. 2d 157, 160-63, 171 N.E.2d 605 (1961); Abbeville Arms v. City of Abbeville, 273 S.C. 491, 494, 257 S.E.2d 716 (1979); see also 3 McQuillin, Municipal Corporations (3d Rev. Ed. 1982) § 12.126a; 3 Rathkopf, supra, § 45.05[3] Pd]. The building inspector was, pursuant to town ordinances, the proper person to issue such licenses and the proper person to certify that the rooming house was or would be in compliance with existing zoning regulations. Any other construction of who is “an agent having authority in such matters”; Lescynski, supra, 732; would entirely defeat any and all claims of estoppel. Had the municipal agent’s conduct been in conformity with zoning regulations, his legally authorized acts would automatically have conferred indefeasible rights upon the claimant. It is only when the municipal agent acts in good faith,5 within the scope of his authority, but in error, that the occasion for invocation of estoppel can arise. See Jantausch v. Verona, 41 N.J. Super. 89, 95, 124 A.2d 14 (1956), aff’d, 24 N.J. 326, 131 A.2d 881 (1957); see also 3 Rathkopf, supra, § 45.05[3] [d].

The defendants therefore have a right, pursuant to Lescynski, to a defense based upon estoppel, if they can factually demonstrate its remaining components. The final question before us, therefore, is whether they have satisfied this substantial burden of proof. The defendants were required to show that the agents of the town acted to induce their reliance and that the defendants relied on the town’s actions to their detriment to such *123an extent that enforcement of the town’s zoning regulations would be “highly inequitable or oppressive.” Zoning Commission v. Lescynski, supra, 732.

The trial court’s determination that the defendants failed to establish their defense of estoppel appears to have been derived in part from its conclusion that zoning estoppel would never bind a municipality. That conclusion, reached before our decision in Lescynski, was in error. The trial court went on, however, to conclude in the alternative that the defendants had failed to prove that they had suffered “a loss by any action of the town.” In context, the court seems to have found a failure to show intentional action by the town calculated to induce reliance on the part of the defendants.6 On this basis, the court found it unnecessary to deliberate the other criteria of estoppel which the defendants would have had to establish before their defense could prevail.

The facts upon which the defendants rely to show inducement are the rooming house licenses issued from 1949 to 1966, whose legitimacy was attested by two separate opinions of two town corporation counsel, one in 1957 and one in 1970. The defendants testified without contradiction that they inquired into the availability of rooming house licenses before they bought their properties. They applied for a license for one of the houses in 1962 while they were still negotiating its purchase. Even though the building inspector had no personal contact with the defendants, he was fully aware of the uses to which the defendants and their predecessors in title intended to put the property. In these circumstances the pattern of officially licensing the properties as rooming houses constituted an inducement to the defendants to purchase them for *124the same purpose. Inducement for the purposes of estoppel requires a mental state which is a general intent to act rather than a special intent to mislead. It is sufficient if actions are taken with an awareness that they would be relied upon; it is not necessary to prove that the actions were intended knowingly to mislead the party claiming estoppel. See Evanston v. Robbins, 117 Ill. App. 2d 278, 286, 254 N.E.2d 536 (1969). The trial court’s ruling to the contrary was therefore in error.

The facts found by the trial court similarly establish that the defendants did not fail to exercise due diligence when they relied upon the conduct of the town. While it may be true, as the plaintiff argues, that the relevant town ordinances were available for the defendants’ inspection, it is equally true that the defendants, as lay persons, could not reasonably be expected to detect problems with apparent prior conforming uses that two separate corporation counsel had been unable to uncover. In the circumstances, it was not unreasonable for the defendants to assume that the rooming houses which they were purchasing constituted legal rather than illegal nonconforming uses. Although the plaintiff takes the defendants to task for undertaking “an obviously incomplete and inadequate investigation,” the plaintiff does not specify what more the defendants should have done. This element of estoppel is therefore also proven.

The final element of estoppel which the trial court did not reach cannot however be determined on the present record. As we have previously noted, the defendants must show not only unjustifiable inducement but also reliance of such a nature that it would be “highly inequitable or oppressive to enforce the [town’s zoning] regulations.” Zoning Commission v. Lescynski, 188 Conn. 724, 732, 453 A.2d 1144 (1982). *125On the issue of reliance, the record discloses testimony by the defendants that the market value of their properties reflected their assumed rooming house status, and that their properties had been altered by substantial expenditures consistent with their boarding house use. The record further discloses a neighborhood which, despite some nonresidential uses, the trial court, after inspection, found not inconsistent with town enforcement of rooming house zoning regulations. There is, however, nothing before us to show that in granting the injunction, the trial court undertook the process of weighing competing equitable considerations to determine whether the town’s conduct, the extent of the defendants’ reliance and the condition of the neighborhood, warranted the equitable relief sought by the town. Such a weighing process involves the exercise of discretion by the trier of fact and not by an appellate tribunal. Because we cannot tell whether this is one of the special cases in which zoning estoppel, although only invoked with great caution, is appropriate, there must be a new trial on this remaining aspect of the defense of estoppel.

We recognize that this litigation has been of long duration. Our remand is not intended to permit retrial of anything other than that aspect of estoppel which requires the defendants to prove so substantial a loss that the award of injunctive relief to enforce the town’s zoning regulations would, in light of all the circumstances, be highly inequitable or oppressive.

There is error, the judgment is set aside, and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.