8 S.Ct. 273
Supreme Court of the United States

MUGLER

v.

STATE OF KANSAS,¹ (two cases.)
STATE OF KANSAS ex rel. TUFTS, Asst. Atty. Gen., Gen.,

v.

ZIEBOLD et al.

December 5, 1887.

Synopsis

In Error to the Supreme Court of the State of Kansas. Appeal from the Circuit Court of the United States for the District of Kansas.

The defendant, Peter Mugler, was prosecuted criminally in two different cases for the violation of the prohibitory liquor law of the state of Kansas. In the first case, the indictment contained one count, charging that the defendant ‘did unlawfully manufacture, and did assist and abet in the manufacture, of certain intoxicating liquors on, to-wit, the first day of November, A. D. 1881, in violation of the provisions of an act entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, mechanical, and scientific purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’' The trial was had in this case before the court, without a jury, upon an agreed statement of facts, which statement of facts is as follows: ‘It is hereby stipulated and agreed that the facts in the above-entitled case are, and that the evidence would prove them to be, as follows: That the defendant, Peter Mugler, has been a resident of the state of Kansas continually since the year 1872; that, being foreign born, he in that year declared his intention to become a citizen of the United States, and always since that time, intending to become such citizen, he did, in the month of June, 1881, by the judgment of the district court of Wyandotte county, Kansas, become a full citizen of the United States and of the state of Kansas; that in the year 1877, said defendant erected and furnished a brewery on lots Nos. 152 and 154, on Third street, in the city of Salina, Saline county, Kansas, for use in the manufacture of an intoxicating malt liquor, commonly known as **274 beer; that such building was specially constructed and adapted for the manufacture of such malt liquor, at an actual cost and expense to said defendant of ten thousand dollars, and was used by him for the purpose for which it was designed and intended after its completion in 1877, and up to May 1, 1881; that said brewery was at all times after its completion, and on May 1, 1881, worth the sum of ten thousand dollars for use in the manufacture of said beer, and is not worth to exceed the sum of twenty-five hundred dollars for any other purpose; that said defendant, since October 1, 1881, has used said brewery in the manner and for the purpose for which it was constructed and adapted, by the manufacture therein of such intoxicating malt liquors, and at the time of the manufacture of said malt liquor said defendant had no permit to manufacture the same for medical, scientific, or mechanical purposes, as provided by chapter 128 of the Laws of 1881. And the foregoing was all the evidence introduced in this case, and upon which a finding of guilty was made.’ The defendant was found guilty, and fined $100, and appealed to the supreme court of the state of Kansas, where the court below was affirmed. A writ of error was sued out, upon the grounds that the proceedings in said suit involved the validity of a constitutional enactment of the state of Kansas, and of a statute of said state; the defendant claiming that said constitutional enactment and statute are in violation of the constitution of the United States, and the judgment of said supreme court of the state of Kansas being in favor of the validity of said enactment and statute.

Plaintiff in error invoked in the argument before the supreme court of the state of Kansas a portion of the first section of the fourteenth amendment to the constitution of the United States, which provides: ‘Nor shall any state deprive any person of life, liberty, or property without due process of law.’ The amendment to the constitution of the state of Kansas which is complained of is as follows: ‘The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific, and mechanical purposes.’Const. Kan. art. 15, § 10. This amendment was adopted by the people November 2, 1880. The statute complained of is chapter 128 of the Laws of Kansas, passed in 1881. That statute became operative May 1, 1881. Section 8 of that statute is as follows: ‘Any person, without taking out and having a permit to manufacture intoxicating liquors as provided in this act, who shall manufacture, or aid, assist, or abet in the manufacture, of any of the liquors mentioned in section 1 of this act, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall suffer the same punishment as provided in the last preceding section of this act for unlawfully selling such liquors.’ Section 5 of that statute is as follows: ‘No person shall manufacture or assist in the manufacture of intoxicating liquors in this state, except for medical, scientific, and mechanical purposes. Any person or persons desiring to manufacture any of the liquors mentioned in section one of this act, for medical, scientific, and mechanical purposes, shall present to the probate judge of the county wherein such business is proposed to be carried on a petition asking a permit for such purpose, setting forth the name of the applicant, the place where it is desired to carry on such business, and the kind of liquor to be manufactured. Such petition shall have appended thereto a certificate, signed by at least twelve citizens of the township or city where such business is sought to be established, certifying that such applicant is a person of good moral character, temperate in his habits, and a proper person to manufacture and sell intoxicating liquors. Such applicant shall file with said petition a bond to the state of Kansas, in the sum of ten thousand dollars, conditioned that, for any violation of the provisions of this act, said bond shall be forfeited. Such bond shall be signed by said applicant or applicants, as principal or principals, and by at least three sureties, who shall justify, under oath, in the sum of seven thousand dollars each, and who shall be of the number signing said petition. The probate judge shall consider such petition and **275 bond, and, if satisfied that such petition is true, and that the bond is sufficient, may, in his discretion, grant a permit to manufacture intoxicating liquors for medical, scientific, and mechanical purposes. The said permit, the order granting the same, and the bond and justification thereon, shall be forth with recorded by said probate judge in the same manner and with like offect as in a case of a permit to sell such liquors as provided in section two of this act; and the probate judge shall be entitled to the same fee for his services, to be paid by the applicant. Such manufacturer shall keep a book, wherein shall be entered a complete record of the liquors manufactured by him, the sales made, with the dates thereof, the name and residence of the purchaser, the kind and quantity of liquors sold, and the price received or charged therefor. An abstract of such record, verified by the affidavit of the manufacturer, shall be filed quarterly in said probate court, at the end of each quarter during the period covered by such permit. Such manufacturer shall sell the liquor so manufactured only for medical, mechanical, and scientific purposes, and only in original packages. He shall not sell such liquors for medical purposes except to druggists, who, at the time of such sale, shall be duly authorized to sell intoxicating liquors as provided in this act; and he shall sell such liquors to no other person or persons, associations or corporations, except for scientific or mechanical purposes, and then only in quantities not less than five gallons.’

The case of State ex rel. Tufts v. Ziebold et al. is a civil case, commenced in the district court of Atchison county, Kansas, in the name of the state, by the assistant attorney general for that county, to abate an alleged nuisance, to-wit, a place where intoxicating liquors are bartered, sold, and given away, and are kept for barter, sale, and gift, in violation of law, and a place where intoxicating liquors are manufactured for barter, sale, and gift, in the state of Kansas, and to perpetually enjoin the defendants from using or permitting to be used the premises described in the petition for the purposes mentioned, in violation of the prohibitory law of the state of Kansas. The defendants filed with the clerk of the district court a bond and petition for removal to the circuit court of the United States; and, on the hearing of said petition, the same was overruled by the judge of the district court, who rendered the following opinion, retaining the cases for trial:

‘The State of Kansas ex rel. J. F. Tufts, Assistant Attorney General, Plaintiff, vs. Ziebold & Hagelin, Defendants.

‘On application to remove to United States circuit court.

‘MARTIN, J. This is an action under the clause of section 13 of the prohibitory liquor law, which was added by the legislature of 1885; the relator, averring that the defendants have no permit from the probate judge of this county, either to manufacture or sell intoxicating liquors, and that they are doing both at their brewery, near the city of Atchison, asks that they be enjoined from selling, and from manufacturing for sale, in the state of Kansas, any malt, vinous, spirituous, fermented, or other intoxicating liquors. The defendants have filed an answer, containing a general denial, and also an averment to the effect that the defendant's brewery, which is alleged to be of the value of $60,000, was erected prior to the adoption of the prohibitory amendment to the constitution of this state, and the passage of the prohibitory law, for the purpose of manufacturing beer, and that it is adapted to no other purpose, and that if the defendants are prevented from the operation thereof for the purpose for which it was erected, the same will be wholly lost to the defendants, and that said prohibitory act is unconstitutional and void. The defendants have also presented a petition and bond for the removal of the case to the circuit court of the United States for the District of Kansas for trial. In the petition for removal it is alleged that said prohibitory act is in contravention of article 4, and section 1 of article 14, of the amendments to the constitution of the United States.

**276 ‘The record presents for adjudication certain federal questions which will require the removal of the cause, unless the propositions involved have been settled by decisions of the supreme court of the United States. But, as stated by the present learned judge for the Eighth circuit, ‘when a proposition has once been decided by the supreme court, it can no longer be said that in it there still remains a federal question.’State v. Bradley, 26 Fed. Rep. 289. It is a part of the constitutional history of this country that the 10 amendments to the federal constitution, numbered 1 to 10, inclusive, which were submitted to the state for ratification by the first congress at its first session, were intended as limitations upon the powers of the federal government, and not as restrictions upon the authority of the states; and as a result no state statute can be held null and void by any court, state or federal, on account of a supposed conflict with these amendments, or any of them. Article 4, which is quoted in the petition for removal, and which relates to unreasonable searches and seizures, may therefore be dismissed from our consideration. Barron v. Mayor, etc., 7 Pet. 243; Livingston's Lessee v. Moore, Id. 469, 551, 552; Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of Maryland, 18 How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S. v. Cruikshank, 92 U. S. 542, 552.

‘The real point suggested by the petition for removal is whether, in view of the decisions of the supreme court of the United States, it is yet an open question that the prohibitory liquor law of this state, in so far as it restricts the right to sell and manufacture beer, is or is not in contravention of section 1 of article 14 of said amendment, which reads as follows:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privilege or immunity of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.'

‘Our own supreme court, in a case nearly like this one, has held that the act is not in conflict with this section, Justice BREWER, (now of the federal circuit bench,) dissenting. State v. Mugler, 29 Kan. 252. The United States circuit court for the Northern district of Georgia also takes the same view as our supreme court in the case of a brewery similarly affected by the recent local option law of Georgia. Weil v. Calhoun, 25 Fed. Rep. 865. In the case of State v. Walruff, 26 Fed. Rep. 178, Judge BREWER adheres, however, to his dissenting opinion in the Mugler Case, and holds the statute in question to be in conflict with the fourteenth amendment, because no provision is made in the act for the payment of damages to property and business injuriously affected by its operation; and this decision has been followed by Judge LOVE, of the federal district court for Iowa, in two cases. [Kessinger v. Hinkhouse, Mahin v. Pfeiffer,] 27 Fed. Rep. 883, 892. The decisions of the state courts of last resort, and of the inferior federal courts, are not conclusive upon the interpretation of the federal constitution. The supreme court of the United States is, however, the final expositor and arbiter of all disputed questions touching the scope and meaning of that sacred instrument, and its decisions thereon are binding upon all courts, both state and federal.

‘Is the doctrine of the Walruff Case supported by these decisions? With the utmost deference to the opinion of Judge BREWER, we are constrained to think not. The authorities cited by him certainly do not justify his proposition, and other cases not referred to are inconsistent with his views. He treats the Walruff brewery as if taken by the state for public use without just compensation. Yet this alone, if true, would not be a matter of federal cognizance. By the fifth amendment the federal government was inhibited from depriving any person of life, liberty, or property without due process of **277 law, and also from taking private property for public use without just compensation? But, as remarked by Justice MILLER in Davidson v. New Orleans, 96 U. S. 97, 105, in commenting on the clause of the fourteenth amendment forbidding the state from depriving any person of his property without due process of law, ‘if private property is taken for public uses without just compensation, it must be remembered that when the fourteenth amendment was adopted, the provision on that subject in immediate juxtaposition in the fifth amendment with the one we are construing was left out and this was taken.’ Prior to the adoption of the fourteenth amendment, a man whose property was taken by any state process for public use, without just compensation, could not on that ground resort to the federal courts for redress. His remedy was in the state courts, and it remains so to this day, that amendment being entirely silent upon the subject. But the doctrine in the Walruff Case seems to assume that the deprivation of property without due process of law is the same thing as the taking of private property for public use without just compensation, or that the former includes the latter. But the statesmen who framed the early amendments were at least as wise and had as accurate an understanding of the import of the words in a fundamental law as any who have succeeded them. They were not given to a waste of words, nor the useless and perplexing repetition of the same proposition in different forms. They recognized the fact that private property might be taken for public use under regular process without just compensation, and also that a man might be deprived of his property without due process of law, and yet obtain compensation therefor to the full measure of its value; and the federal government was inhibited from both of these forms of injustice, while the states were left free to establish such rules on the subject as they deemed proper. Since the adoption of the fourteenth amendment, however, the fact that a person is deprived of his property by a state, without due process of law, constitutes a ground for the exercise of jurisdiction by the federal courts. Referring to this subject in the case of Davidson v. New Orleans, supra, Justice MILLER says: ‘It is not a little remarkable that, while this provision has been in the constitution of the United States as a restraint upon the authority of the federal government for nearly a century, and while during all that time the manner in which the powers of that government have been exercised has been watched with jealousy, and subjected to the most rigid criticism in all its branches, this special limitation upon its powers has rarely been invoked in the judicial forum or the more enlarged theater of public discussion. But while it has been a part of the constitution as a restraint upon the powers of the states only a very few years, the docket of this court is crowded with cases in which we are asked to hold that state courts and state legislatures have deprived their own citizens of life, liberty, and property without due process of law. There is here abundant evidence that there exists some strange misconception of the scope of the provision as found in the fourteenth amendment. In fact, it would seem from the character of many of the cases before us, and the arguments made in them, that the clause under consideration is looked upon as a means of bringing to the test of the decision of this court the abstract opinions of every unsuccessful litigant in a state court of justice of the decision against him, and of the merits of the legislation on which such a decision may be founded.’

‘Neither the state nor the federal courts ever had any rightful power to avoid an act of a state legislature, because by such court deemed impolitic or unreasonable. It could only be so avoided when in contravention of the constitution of the state, or of the federal constitution, or some act of congress passed or treaty made in pursuance of its authority. The views of a court upon the merits or demerits of a statute have nothing to do with its validity. In the Walruff Case an effort appears to be made to blend and combine two principles,-one embraced in the fourteenth amendment; and the other entirely **278 outside of the constitution,-and then to show that the Kansas liquor law is in conflict with the combined principle. The syllabus of the case shows this. It reads as follows: ‘The prohibitory amendment to the constitution of Kansas, and the laws passed in pursuance thereof, condemn and confiscate to public use all property then in use for the manufacture of the prohibited articles, and, having failed to provide compensation therefor, are in violation of the fourteenth amendment to the constitution of the United States, as taking property without due process of law.’ Waiving, however, for the present, this unwarranted blending of constitutional and extra-constitutional principles, it is safe to assert that no decision of the supreme court of the United States either establishes or tends to establish the doctrine that a liquor law such as ours operates upon the owners of distilleries or breweries as a taking of private property for public use, or as a deprivation of property without a due process of law.

‘The scope of the first section of the fourteenth amendment was first fully discussed by that tribunal in the Slaughter-House Cases, 16 Wall. 36:‘The legislature of Louisiana, on March 8, 1869, passed an act conferring upon the defendant company, a corporation created by the act, the exclusive right, for twenty-five years, to have and maintain slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter, within the parishes of Orleans, Jefferson, and St. Bernard, a territory comprising an area of 1,154 square miles, including the city of New Orleans, and prohibiting all other persons from keeping or having slaughter-houses, landings for cattle, and yards for confining cattle intended for slaughter, within said limits, and requiring that all cattle and other animals to be slaughtered for food in that district should be brought to the slaughter-houses and works of said company, to be slaughtered upon the payment of a fee and certain perquisites to the company for such service. The plaintiffs, an association of butchers, averred that, prior to the passage of the act in question, they were engaged in the business of procuring and bringing to said parishes, animals suitable for human food, and in preparing the same for market; that in the prosecution of this business they had provided in these parishes suitable establishments for landing, sheltering, keeping, and slaughtering cattle, and the sale of meat; that with their association about 400 persons were connected, and that in said parishes almost 1,000 persons were thus engaged in procuring, preparing, and selling animal food. It is evident that the establishment of the plaintiffs would be rendered almost valueless, and their business substantially broken up, by the operation of the monopoly created by the legislature. And yet the supreme court held that this legislation was not in contravention of any of the provisions of the fourteenth amendment, but that it was a valid exercise of the police power of the state of Louisiana, with which the federal courts could not rightfully interfere.’ In the entire official report of the case, embracing nearly one hundred cases, and including the brief of the unsuccessful counsel, the opinion of the court, and the views of three dissenting justices, there is not a word of reference to the taking of private property for public use without first compensation. The learned justice did not seem to regard this as one of the evils that the fourteenth amendment was designed to remedy. To the argument that the butchers were deprived of their property without due process of law, Justice MILLER, delivering the opinion of the court, answered as follows: ‘It is sufficient to say that, under no construction of that provision that we have ever seen, or that we deemed admissible, can the restraint imposed by the state of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision.’

‘In the case of Bartemeyer v. Iowa, 18 Wall. 129-133, Justice MILLER, again delivering the opinion of the court, says: ‘The weight of authority is overwhelming that no such immunity has heretofore existed as would prevent **279 state legislatures from regulating, and even prohibiting, the traffic in intoxicating drinks, with a solitary exception. That exception is the case of a law operating so rigidly on property in existence at the time of its passage, absolutely prohibiting its sale, as to amount to depriving the owner of his property. A single case (Wynehamer v. People, 13 N. Y. 485) has held that as to such property the statute would be void for that reason. But no case has held that such a law was void as violating the privileges or immunities of citizens of a state or of the United States. If, however, such a proposition is seriously urged, we think that the right to sell intoxicating liquors, so far as such right exists, is not one of the rights growing out of citizenship of the United States, and in this regard the case falls within the principles laid down by the court in the Slaughter-House Cases.’ The ‘solitary exception’ from the principle is then referred to as follows: ‘But if it were true, and if it were fairly presented to us, that the defendant was the owner of the glass of intoxicating liquor which he sold to Hickey at the time that the state of Iowa first imposed an absolute prohibition on the sale of such liquor, then we can see that two very grave questions would arise, namely: First, whether this would be a statute depriving him of his property without due process of law; and, secondly, whether it would be so far a violation of the fourteenth amendment in that regard as would call for judicial action by this court.’ And Justice FIELD, concurring specially, says: ‘I have no doubt of the power of the state to regulate the sale of intoxicating liquors, when such regulation does not amount to the destruction of the right of property in them. The right of property in an article involves the power to sell and dispose of such article, as well as to use and enjoy it. Any act which declares that the owner shall neither sell nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law.’

‘In the Walruff Case, Judge BREWER lays great stress upon those passages relating to the doctrine in the New York case. But what relevancy they had to the Walruff Case in difficult to imagine. It was not claimed that Walruff had any beer that was manufactured prior to the adoption of the prohibitory amendment and the passage of the prohibitory law of 1881; and if such a fact had been made to appear, still neither said amendment nor the act of 1881 imposed an absolute prohibition upon the sale of such beer, and not even the slightest restriction upon its use, except that the owner shall not become drunk by imbibing it. Although the tenth amendment to our state constitution, and the legislation in pursuance thereof, are commonly called ‘prohibitory,’ yet they are not so in strictness of speech, as fully stated by our supreme court in the Mugler case. The evident purpose of both is to diminish the evils of intemperance by placing the manufacture and sale of intoxicating liquors under regulations more strict than those formerly existing.

‘It is said, however, that Walruff owned a brewery,-a building and its appurtenances especially adapted to the manufacture of beer,-prior to the adoption of said amendment. This is a great remove from the ‘solitary exception’ mentioned by Justice MILLER in the Iowa case,-a remove from the product in the manufactory. But the title to such brewery is in no manner affected or incumbered by the amendment and the statutes. Neither the real estate nor the personal property is ‘taken’ by the state for public use. The state obtains no title, no easement, no license,-nothing. And the owner is in nowise deprived of his property; he parts with nothing. It is true that the state restricts and regulates to some extent the use of such property, so that, in the opinion of the legislature, it shall not be an instrument of hurt and injury to the public. And this brings us to the quotation by Judge BREWER from the opinion of Justice FIELD in the Chicago Elevator Case, entitled ‘Munn v. Illinois,’ 94 U. S. 113, 141, as follows: ‘All that is beneficial in property arises from its use and the fruits of that use; and whatever deprives a person of them deprives him of all that is desirable or valuable in **280 the title and possession. If the constitutional guaranty extends no further than to prevent a deprivation of title and possession, and allows a deprivation of use, and the fruits of that use, it does not merit the encomiums it has received.’ It must be remembered, however, that this is not the opinion of the court, but only the view of one of the two dissenting justices. The court, by Chief Justice WAITE, states as its opinion that, by the powers inherent in every sovereignty, a government may regulate the conduct of its citizens towards each other, and, when necessary for the public good, the manner in which each shall use his own property. Accordingly, it was held that, notwithstanding the provisions of the fourteenth amendment to the constitution of the United States, the grain elevators built in Chicago by private enterprise, with private capital, and owned by individuals prior to the adoption of the constitution of 1870 by the people of Illinois, were so far subject to the power of the state under that constitution that a subsequent legislature might make rules and regulations for the government of elevators in their dealings with their patrons, and might fix the value of the use of such elevator property by establishing maximum rates for the storage, handling, and transfer of grain. The case of Beer Co. v. Massachusetts, 97 U. S. 25, reaffirms Bartemeyer v. Iowa, and upholds to the fullest extent the authority of the states over the manufacture and sale of intoxicating liquors, subject to the one exception specified in the Iowa case, which has been already fully discussed. In this case, however, the beer company relied upon certain chartered privileges in the nature of a contract, rather than upon the fourteenth amendment; but the court held that the legislature could not by any contract divest itself of its police power, which was held to extend to the protection of the lives, health, and property of her citizens, the maintenance of good order, and the preservation of the public good. See, further, as to the police powers of the state, Patterson v. Kentucky, 97 U. S. 501, and authorities cited. In Stone v. Mississippi, 101 U. S. 814, it appeared that in 1867 the legislature of Mississippi granted a charter to a lottery company for twenty-five years, in consideration of a stipulated sum in cash, and the annual payment of a further sum, and a percentage of receipts for the sale of tickets. A provision of the constitution adopted in convention May 15, 1868, and ratified by the people December 1, 1869, declares that ‘the legislature shall never authorize any lottery, nor shall the sale of lottery tickets be allowed, nor shall any lottery heretofore authorized be permitted to be drawn, or tickets therein to be sold.’ And he also held that the prohibition of such lotteries was not an infringement of vested rights within the meaning of the constitution of the United States, and that the legislature could not, by chartering a lottery company, defeat the will of the people of a state authoritatively expressed in relation to the continuance of such business in their midst. The lottery company did not invoke any immunity by reason of the fourteenth amendment, although it was officially promulgated long before the ratification of the state constitution by the people of Mississippi. It relied, as did the beer company in the preceding case, upon the clause of the constitution of the United States declaring that no state shall pass any law impairing the obligation of contracts. And neither the aggrieved parties nor the court seem to have discovered that the proceedings constituted a taking of private property for public use without just compensation, nor a privation of property without due process of law. In Foster v. Kansas, 112 U. S. 201, 5 Sup. Sup. Ct. Rep. 8, (32 Kan. 765,) the supreme court of the United States, in an opinion covering only a few lines, holds our Kansas liquor law of 1881 to be valid, and not repugnant to the constitution of the United States, on the authority of the Iowa and Massachusetts cases before referred to. And the amendment of 1885 to the act of 1881 did not render the liquor law any more objectionable on any ground raised in this case or the Walruff Case.

‘Some quotations have already been made from the opinion of the court **281 in Davidson v. New Orleans, 96 U. S. 97, where an assessment of certain real estate in New Orleans, for draining swamps of that city, was resisted in the state courts on the ground that the proceeding deprived the owner of his property without due process of law, in violation of the fourteenth amendment. But it was held that neither the corporate agency by which the work was done, the excessive price which the statute allowed therefor, nor the relative importance of the work to the value of the land assessed, nor the fact that the assessment was made before the work was done, nor that it was unequal as regards the benefits conferred, nor that the personal judgments were rendered for the amounts assessed, were matters in which the state authorities were controlled by the federal constitution, and the assessment was therefore held valid as against any objections which could be raised in the supreme court of the United States on a proceeding in error from the supreme court of Louisiana.

‘In Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. Rep. 357, the court held that the fourteenth amendment of the constitution does not impair the police power of a state, and that an ordinance of the city of San Francisco, prohibiting washing and ironing in public laundries and wash-houses, within defined territorial limits, from 10 o'clock at night to 6 in the morning, was purely a police regulation within the competency of a municipality possessed of the ordinary powers. And in another case, under the same ordinance, (Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. Rep. 730,) it was held to be no valid ground of constitutional objection that the ordinance permitted other and different kinds of business to be done within the hours prohibited to laundries and wash-houses. This ordinance was intended to and did bear heavily upon the Chinese, who owned and kept laundries and wash-houses in that city, and such establishments must have been greatly depreciated in value by the enforcement of this restrictive regulation; yet the supreme court decided that the fourteenth amendment did not invest the federal courts with any power to grant relief, Justice FIELD delivering the unanimous opinion of the court in both cases.

‘In the case of Railway Co. v. Humes, 115 U. S. 514, 6 Sup. Ct. Rep. 110, it was held that a statute of Missouri requiring every railway corporation in the state to erect and maintain fences and cattle-guards on the side of its road, and, if it does not, making it liable to double the amount of damages occasioned thereby and done by its agents, cars, or engines to cattle or other animals on its road, does not deprive a railroad corporation, against which such double damages are recovered, of its property without due process of law, or deny it the equal protection of the law in violation of the fourteenth amend ment. Justice FIELD, in delivering the opinion of the court, refers with approval to the remarks of Justice MILLER, in Davidson v. New Orleans, respecting the general misconception of the scope of these provisions, and says: ‘If the laws enacted by a state be within the legitimate sphere of legislative power, and their enforcement be attended with the observance of those general rules which our system of jurisprudence prescribes for the security of private rights, the harshness, injustice, and oppressive character of such laws will not invalidate them as affecting life, liberty, or property without due process of law.’ And again: ‘It is hardly necessary to say that the hardship, impolicy, or injustice of state laws is not necessarily an objection to their constitutional validity; and that the remedy for evils of that character is to be sought from state legislatures. Our jurisdiction cannot be invoked unless some right claimed under the constitution, laws, or treaty of the United States is invaded. This court is not a harbor where refuge can be found from every act of ill-advised and oppressive state legislation.’

‘This review of the leading decisions of the supreme court of the United States, giving a construction to section 1 of the fourteenth amendment, taken with the admitted doctrine of that court prior to said amendment, that the **282 manufacture and sale of intoxicating liquors within a state were purely and exclusively matters of state regulation and control, is sufficient to establish the following propositions, namely: (1) The first clause of that section relates to the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the state, and the right to manufacture and sell intoxicating liquors is not one of those privileges and immunities which by that clause the states are forbidden to abridge. (2) The states have as complete power now, as ever, to so regulate the use of property within their limits that it shall not be made an instrument of injury to the public, but rather to promote the general welfare. (3) The regulation of the manufacture and sale of intoxicating liquors within a state, being matters of public and internal government, are not impaired by said section 1 of the fourteenth amendment; but the powers of the state to deal with the subject are as full, complete, and exclusive since as before the adoption of said amendment, provided that the owner of property be not deprived of it without due process of law. (4) The present law of this state, prohibiting the defendants from manufacturing and selling beer without a permit, and restricting the purposes for which it may be manufactured and sold, is not a taking of the defendants' brewery by the state for public use, nor a deprivation of the defendants of their brewery, within any admissible construction of those respective clauses of said section. (5) And these propositions, having been settled by repeated decisions of the supreme court of the United States, there is no longer a federal question which should be certified by a state court to an inferior federal court for decision.

‘The cases cited in the opinion in the Walruff Case, other than those already referred to, appear to be entirely irrelevant, unless it be in the case in 18 How. 272, which discusses the meaning of the phrase ‘due process of law,’ but it is not inconsistent with any position taken in this opinion. Pumpelly v. Green Bay Co., 13 Wall. 166, is cited as a ‘leading case.’ The action was commenced before the adoption of the fourteenth amendment, and it involved the construction of that provision of the constitution of the state of Wisconsin which declares that ‘the property of no person shall be taken for public use without just compensation therefor.’ The plaintiff's land to the extent of 640 acres was overflowed by reason of a dam erected by the defendant company, and had been substantially submerged before the action was commenced, and it was held that this was such a taking of the plaintiff's land as required compensation to be made,-a principle which would certainly be law in Kansas, the very principle of our mill-dam act. But here the defendant corporation obtained a valuable easement upon the land of the plaintiff, who was almost wholly deprived of its actual possession and use. The Illinois, New Jersey, and New York cases referred to in the opinion also treat of the right of eminent domain and the qualifications of that right, but they are no nearer in point than the case in 13 Wall. The doctrine of the Walruff Case is that, by force of the fourteenth amendment, a state cannot alter its laws and institute what it deems necessary reforms without first making compensation to those who would suffer a consequential loss by the change.

‘At the beginning of the civil war, the business of the distiller was as free from interference and taxation by the general government as any other industry or manufacture. In order to raise revenue for the prosecution of the war, however, distilled spirits were taxed to several times their first cost, and distilleries were placed under the strictest government surveillance; and although during late years the tax has in part abated, yet the absolute government control still continues. Under the operation of the internal revenue laws, hundreds of the owners of the smaller distilleries were compelled to close them, or flee with them to the mountains and become ‘moonshiners,’ and their investments in them became almost a total loss. But, although by the fifth amendment the federal government has always been forbidden from taking**283 private property for public use without just compensation, and also from depriving any person of life, liberty, or property without due process of law, yet we have never heard of the presentation of a claim by a ruined distiller against the government, for the reparation of his loss, and such a claim would certainly not be seriously entertained. But why is not such a claim against the United States as good as a like claim by the defendants upon this state? May not the state safely go as far in the exercise of her police power for the protection of the property, health, and morals of her inhabitants as the United States may proceed, under her power of taxation, to raise revenue to defray her extraordinary expenses? We will suppose the case of a new state where, either because no apparent necessity existed, or from inadvertence or neglect, no statute was enacted against the keeping of gambling-houses, and while this state of affairs existed many such places were established, at a large outlay of money, and the proprietors were carrying on a lucrative business. Must the state, as a condition precedent to the enforcement of legislation against the evil, purchase and pay for the houses, or their furniture and gambling devices, together with the good-will of their business? And the same inquiry might be made as to houses of ill fame and lotteries, under similar circumstances. Think of the states being compelled to buy up gambling-houses, brothels, and lotteries, and the good-will of such establishments, before any statute for their suppression could be enforced! Judge LOVE, following the authority and logic of the Walruff Case, holds that the protection of the fourteenth amendment extends to dram-shops or saloons which were in existence prior to the enactment of the Iowa prohibitory liquor law, and that the state must buy them out in order to their suppession. And the principle carried to its legitimate conclusion will also embrace all the supposed cases hereinbefore named, and cover them with like immunity.

‘Such a construction of the beneficent and liberal provisions of the first section of the fourteenth amendment is utterly untenable and inadmissible. The fourteenth is one of the three amendments growing out of the civil war, having in the main a unity of purpose in three successive steps: First, the emancipation of an enslaved race; secondly, the clothing of that race with national and state citizenship and full civil rights; and, thirdly, their political enfranchisement as a guaranty against the invasion of their newly-acquired rights. And, as Justice MILLER says in the Slaughter-House Cases, in giving the construction to any of these amendments, it is necessary to keep this main purpose steadily in view, although their letter and spirit must apply to all cases coming within their purview, whether the party concerned be of African descent or not. Neither the advocates nor the opponents of the fourteenth amendment, while it was the subject of discussion in congress, before the state legislatures, and by the people, ever placed any such construction upon such section 1, as that set forth in the Walruff Case. If its advocates had avowed a construction so degrading to the states, and so subversive of their authority, it is doubtful if it would have been ratified by a single member of the Union. Happily, the supreme court of the United States has repeatedly spoken in such terms as to give assurance against any fear that such an interpretation of that section shall ever become the law of the land.

‘The applications to remove the case to the United States circuit court for trial will be denied.’

The defendants, however, filed in said court a transcript of the record in the case, and the same was docketed in said court as pending therein. The state filed a verified plea in abatement, and to the jurisdiction of the court, controverting the facts alleged in the petition for the removal as the grounds of such removal. To this plea the defendants filed an answer, (replication?) and, upon the issue joined on the plea by such answer, the cause was submitted to the court. By agreement, the proofs of the parties, plaintiff and defendants, were **284 made by affidavits, all objections being waived, and no question being raised on either side as to the proper practice of taking proof on such an issue. Upon the hearing of the plea in abatement, it appearing that the answers to said pleas were not verified, it was agreed that each of said pleas should be considered as denied, only in so far as the same were denied in the affidavits filed for the defense in said case. It was also admitted that no application for a permit to sell or manufacture liquor on the premises described in the petition, the selling or manufacturing of which was sought to be enjoined, had ever been made by either of the defendants under the law. It was also agreed that, upon the evidence offered upon said hearing, the said judge should consider, adjudge, and issue such order of injunction, if any, as ought to be issued in said case, provided the said case was retained in that court. The court overruled the plea in abatement, holding the case for hearing in the circuit court. After wards the complainant and appellant filed an amended and recast bill, alleging and praying as in the original petition in the state court, but framed according to the equity pleadings. This amended and recast bill contains, in addition to the allegations in the original bill, substantially these three following propositions: First, that all rights, interests, estate, and title in and to said premises, vested in said defendants, were acquired with a full knowledge that all places where intoxicating liquors are sold in violation of law, were by the statutes of said state of Kansas declared to be a common nuisance, and directed to be shut up and abated as public nuisances; second, that none of the malt, vinous, spirituous, fermented, or other intoxicating liquors now in possession of said defendants on said premises, the barter, sale, or gift of which in violation of the laws of the state of Kansas is sought to be enjoined in this action, were in existence prior to the adoption of said constitutional amendment, and the enactment of said acts by the legislature of the state of Kansas; third, that at the time said defendants erected the buildings and the appurtenances on the premises described in plaintiff's petition, and at the time said defendants acquired their present rights, interests, estate, and title to said premises, the sale, barter, and giving away of spirituous, vinous, fermented, or other intoxicating liquors, without first taking out and having a license or permit, was prohibited by the laws of said state, punished by fine and imprisonment, and all places where such liquors were sold or given away in violation of the law were declared to be common nuisances, and directed to be shut up and abated as such. These propositions were also contained in the plea in abatement. In addition to these allegations, and as part of the bill, there were annexed full copies of the laws of the state of Kansas, which authorize these proceedings, and also the law upon which the first and third of the foregoing propositions are based.

The defendants filed their answer to said amended and recast bill, alleging that, at the time they purchased and erected the buildings and premises described in the bill, the laws of the state of Kansas permitted the manufacture of beer and intoxicating liquors without any restrictions. That said buildings and premises were erected for that especial purpose; and that said property was useless for any other purpose than for that for which they were constructed, to-wit, the manufacture of beer and other intoxicating liquors, and if enjoined from prosecuting that particular business, they would suffer a total loss of the value of the buildings; that the law under which this prosecution was instituted was void and unconstitutional, and the provisions thereof were in violation of and in contravention to the provisions of article 4, and section 1 of article 14, of the amendments to the constitution of the United States.

On Thursday, February 10, 1887, at the November term, 1886, this cause being submitted on bill and answer, a final decree was made and pronounced in the cause, wherein it was, in substance, adjudged and decreed that the complainant and appellant, the state of Kansas, on the relation of J. F. Tufts, assistant attorney general of the state of Kansas for Atchison county, Kansas, **285 was not entitled to the relief prayed for, and dismissing said bill at the cost of said complainant and appellant. The complainant then brought this appeal to this court.

ASSIGNMENT OF ERRORS.

The complainant and appellant assigns as error, and asks for a reversal upon, the following rulings of the court below: First, that the court below erred in overruling the plea in abatement to the jurisdiction of the court, and in holding the case for hearing; second, that the court below erred in rendering a final decree on the bill and answer for the defendants, and dismissing complainant's bill.

This statute and constitutional amendment have received a construction at the hands of the supreme court of Kansas, Prohibitory Amendment Cases, 24 Kan. 700, and the case at bar, State v. Mugler, 29 Kan. 252, defining the privileges and liabilities under the old law and under the new. In 1877, when plaintiff in error, Mugler, erected his brewery, he had a right to manufacture beer or any other intoxicating liquors which he chose. He can do so still, provided he obtains a permit, which can be obtained by complying with the law. In 1877 he could manufacture intoxicating liquors for any purpose. Under the amendment, he can only manufacture for medical, scientific, and mechanical purposes. In 1877 he had no right to sell intoxicating liquors in any quantity, in any place, or to any person in Kansas, without a license. State v. Volmer, 6 Kan. 371; Dolson v. Hope, 7 Kan. 161; Alexander v. O'Donnell, 12 Kan. 608. Such is still the law. The license is now called a permit.

The word ‘property,’ as used in Const. U. S. 14th Amend., means the right of use and the right of disposal, without any control save only by the law of the land. Bl. Comm. 138. The police power of the state is a part of the law of the land. It does not affirmatively appear that plaintiff in error, Mugler, was the owner of the property at the time of the passage of the amendment, or at the time of the commission of the offense. If he was at the time he made his investment, he had-First, the right to sell it; second, the right to use it, limited by the police power of the state; and, by reason of statutes then in force, this right was a defeasible one,-a mere privilege or license. The right to manufacture and sell intoxicating liquors has always been held, by the common law of England, by the courts and legislatures of the states, by this court, and by the congress of the United States, as a peculiarly temporary, defeasible, and transient right, as particularly subject to the police power. The right of plaintiff in error to use his property at the time he acquired it for the purpose for which it was erected was, under the statutes of Kansas, but a mere license. The right to sell was a license. Mugler v. State, 29 Kan. 252. Sale is the object of manufacture.Brown v. Maryland, 12 Wheat. 419. The right to manufacture includes the right to sell. Beer Co. v. Massachusetts, 97 U. S. 32. To take away the right to sell is to take away, de facto, the right to manufacture. As to the right to manufacture for sale outside the state, see State v. Walruff, 26 Fed. Rep. 178. A state, in the enactment of a law, contemplates the existence of no other sovereignty than itself. Bartemeyer v. Iowa, 18 Wall. 129; Wynehamer v. People, 13 N. Y. 378. It does not appear that plaintiff in error was situated so as to sell outside of the state with profit. It follows, then, that plaintiff's privileges at the time he made his investment were expressly defeasible under the laws then in force.

It is not claimed that plaintiff has been deprived of his property objectively considered. He still has possession of it. He still has the right to sell it. Nor is it claimed that he is deprived of its use generally. The only claim is that **286 he is deprived of the privilege to use it for the manufacture of liquors for sale as a beverage. The absolute prohibition of the sale of intoxicating liquors is not contravened by anything in the constitution of the United States. Foster v. Kansas, 112 U. S. 205, 5 Sup. Ct. Rep. 97; Beer Co. v. Massachusetts, 97 U. S. 25;Bartemeyer v. Iowa, 18 Wall. 129. Sale is the object of manufacture. Everything in this case indicates that the sole and only purpose plaintiff had in erecting his brewery was to use it in the manufacture of intoxicants for sale within the state. Plaintiff in error has only been deprived of a privilege which both by the statutes of Kansas and the common law, was always defeasible.

The law was within the police power of the state. Prior to the adoption of the fourteenth amendment, it was conceded that the regulation of the liquor traffic was purely and exclusively a matter of state control. License Cases, 5 How. 504, 631; Com. v. Kendall, 12 Cush. 414;Com.v. Clapp, 5 Gray, 97;Com. v. Howe, 13 Gray, 26; Santo v. State, 2 Iowa, 165; Our House v. State, 4 G. Greene, 172;Zumhoff v. State, Id. 526; State v. Donehey, 8 Iowa, 396; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary, 26 Conn. 179; Oviatt v. Pond, 29 Conn. 479;People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244; Jones v. People, 14 Ill. 196; State v. Prescott, 27 Vt. 194; Lincoln v. Smith, Id. 328; Gill v. Parker, 31 Vt. 610. But see Beebe v. State, 6 Ind. 501;Meshmeyer v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378.It is also competent to declare the traffic a nuisance, and to provide legal process for its condemnation and destruction, and to seize and condemn the building occupied. Our House v. State, 4 G. Greene, 172; Lincoln v. Smith, 27 Vt. 328; Oviatt v. Pond, 29 Conn. 479; State v. Robinson, 33 Me. 568; License Cases, 5 How. 589. But see Wynehamer v. People, 13 N. Y. 378; Welch v. Stowell, 2 Doug. (Mich.) 332.See, also, Cooley, Const. Lim. (Ed. 1868) 581, 583, 584.

Since the adoption of the fourteenth amendment, all rights are held subject to the police power, and this power cannot by any contract be divested. Beer Co. v. Massachusetts, 97 U. S. 25. The amendment was not designed to interfere with the police power. Barbier v. Connelly, 113 U. S. 27, 5 Sup. Ct. Rep. 357. A proceeding similar to the one at bar was held not to raise a federal question. Schmidt v. Cobb, 119 U. S. 286, 7 Sup. Ct. Rep. 1373. Inferior federal courts have held the same doctrine. Weil v. Calhoun, 25 Fed. Rep. 872; U. S. v. Nelson, 29 Fed. Rep. 202. The Oleomargarine Cases are recent illustrations. Powell v. Com., 7 Atl. Rep. 913; State v. Addington, 12 Mo. App. 214, 77 Mo. 115; State v. Smyth, 14 R. I. 100. See, also, the regulation of the sale of milk. Com. v. Evans, 132 Mass. 11;State v. Newton, 45 N. J. Law, 469; People v. Clipperly, 101 N. Y. 634, 4 N. E. Rep. 107, reversing 44 Hun, 319. The regulations of the opium traffic. Ex parte Yung Jon, 28 Fed. Rep. 308. The enactment in this case falls far short of those which have heen upheld by this court in Beer Co. v. Massachusetts, 97 U. S. 25, and in the Slaughter-House Cases. Only a single case has decided that a statute of this kind is unconstitutional, (Wynehamer v. People, 13 N. Y. 378,) and in that case it was not held void as violating a privilege or immunity, but the statute operated so rigidly on property in existence at the time, absolutely prohibiting its sale, as to amount to depriving the owner of his property. It is not shown in this case that the beer was on hand at the time of the adoption of the amendment.

In the case of State of Kansas v. Ziebold et al., the allegations of the plea that the defendants are not deprived of the right to use their premises for the purpose of manufacturing beer for sale in other states, and that their property **287 is as valuable for that purpose as if used for the purpose of manufacturing for sale in this state are not denied, and must be taken as true. The fourteenth amendment only extends to the rights that individuals have as citizens of the United States, and not to such as they have as citizens of the state. Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. Rep. 580.

This law is not in violation of article 4, Const. U. S., relating to unreasonable searches and seizures, since that article is a limitation on the power of the federal government, and not a restriction on the authority of the state. Barron v. Baltimore, 7 Pet. 243; Livingston's Lessee v. Moore, 7 Pet. 469, 551, 552; Fox v. State of Ohio, 5 How. 410, 434, 435; Smith v. State of Maryland, 18 How. 71, 76; Twitchell v. Com., 7 Wall. 321, 325, 326; U. S. v. Cruikshank, 92 U. S. 542, 552.

The vested rights here claimed to be invaded rest not upon express legislative authority. At the time of the purchase of the premises and the making of the improvements, the munufacture of intoxicating liquors was free from tax, license, or restraint. The sale of such liquors has always been under restraint, and places where such liquor was kept for sale in violation of law have always been declared to be nuisances. To hold that these appellees had a right to continue the use of these premises for a purpose which the legislature of the state has declared to be detrimental to the state, until compensation is made, would be to hold that there is, because of the absence of restrictive legislation at the time the improvements were made, an implied contract right vested in them that the state would never interfere with them if they made improvements adapted to this particular business. The supreme court has said that no express contract of this kind can be made. Beer Co.v. Massachusetts, 97 U. S. 25; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Stone v. Mississippi, 101 U. S. 814; Union Co. v. Landing Co., 113 U. S. 746, 4 Sup. Ct. Rep. 652; Gas Co. v. Light Co. 115 U. S. 650, 6 Sup. Ct. Rep. 252. In the case of Union Co. v. Landing Co., the defendants, relying on a grant from the legislature of an exclusive right for 20 years, made extensive improvements adapted to their particular kind of business, and yet the supreme court held that the grant was no protection against subsequent legislation; that the right of the state to protect public health and public morals could not be contracted away by one legislature so as to bind its successor. In the case at bar the property, except for a particular use, is not interfered with, and their vested rights, if any, exist because they made improvements, not under express legislative authority granted them to engage in this business, but in the absence of any legislation. Can there be a vested right in the use of property to manufacture beer more sacred than the contract rights above cited?

All rights are held subject to the police power. It is not a taking of private property for public use, but a salutary restraint on a noxious use by the owner. That this power extends to the right to regulate, prohibit, and suppress the liquor traffic has not been doubted since the License Cases, 5 How. 504. Dill. Mun. Corp. 136; Tied. Lim. Police Power, §§ 122, 122a; 2 Kent, Comm. 340; People v. Hawley, 3 Mich. 330; Com.v. Tewksbury, 11 Metc. 55. To hold otherwise would be destructive of all social organization. Coates v. Mayor of New York, 7 Cow. 585.These laws are presumed to be passed for the public good, and cannot be said to impair any right or the obligation of any contract, or to do any injury in the proper and legal sense of these terms. Com. v. Intoxicating Liquors, (Beer Co. v. Massachusetts, 97 U. S. 25,) 115 Mass. 153, citing Com. v. Alger, 7 Cush. 85, 86; Thorpe v. Railroad Co., 27 Vt. 140;People v. Hawley, Mich. 330; Presbyterian Church v. New York, 5 Cow. 538; Vanderbilt v. Adams, 7 Cow. 349; Coates v. New York, Id. 585, 604, 606. The right to compensation for private property taken for public use is foreign to the subject of preventing or abating public nuisances. City of St. Louis v. Stern, 3 Mo. App. 48.

This act has been held to be constitutional. State v. Mugler, 29 Kan. 252.

Vested rights which do not rest on contract may be divested without, on the provision of the constitution, that no state shall pass any law impairing the obligation of contracts. Satterlee v. Matthewson, 2 Pet. 380; Watson v. Mercer, 8 Pet. 88, and cases cited; Louisiana v. Mayor of New Orleans, 109 U. S. 285, 3 Sup. Ct. Rep. 211.

No better presentation of this case can be made than is contained in the opinion of Judge MARTIN on the petition for removal to the circuit court, (see statement of facts.)

The law of Kansas, prohibiting the manufacture of ‘any spirituous, malt, vinous, fermented, or other intoxicating liquors' except for ‘medical, scientific, and mechanical purposes is in conflict with article 14 of the constitution.

In the indictment there was no allegation and no attempt to prove that the beer was manufactured for sale or barter. The proposition in the Kansas constitution is that no citizen shall manufacture, even for his own use, or for exportation, any intoxicating liquors. The state has the power to prohibit the manufacture of intoxicating liquors for sale or barter within its own limits; but it has no power to prohibit any citizen to manufacture for his own use, or for export, or storage, any article of food or drink not endangering or affecting the rights of others. In the implied compact between the state and the citizen, certain rights are reserved by the latter, with which the state cannot interfere. These are guarantied by the federal and state constitutions in the provisions which protect ‘life, liberty, and property.’ Under the doctrines of the Commune, the state has the right to control the tastes, appetites, and habits of the citizen. But under our form of government, the state does not attempt to control the citizen except as to his conduct to others. John Stuart Mill on ‘Liberty,’ 145, 146; 2 Kent, Comm. 1; 1 Cooley, Bl. 122, 123; Munn v. People of Illinois, 94 U. S. 113, citing Thorpe v. Railroad Co., 27 Vt. 143. The right to manufacture beer for his own use, either food or drink, is certainly an absolute or natural right reserved to every citizen. It is a right guarantied by the fourteenth amendment; and when the legislature of Kansas punishes the plaintiff in error for simply manufacturing beer, it deprives him of that right ‘without due process of law,’ and denies to him ‘the equal protection of the laws.’

If the legislature can prescribe what a man shall or shall not manufacture, ignoring the question of whether he intends to dispose of it to others, or whether its manufacture is dangerous in the process of manufacturing to the lives or property of others, then the same power can prescribe the tastes, habits, and expenditure of every citizen. The right of the state to prohibit unwholesome trades, etc., is based on the general principle that every person ought to so use his own as not to injure his neighbors. This is the police power; and it is much easier to perceive and realize the existence and sources of it than to mark its boundaries. Slaughter-House Cases, 16 Wall. 36; Union Co. v. Landing Co., 111 U. S. 588, 4 Sup. Ct. Rep. 652, (opinions of Justices BRADLEY and FIELD;) Com. v. Alger, 7 Cush. 84. But broad and comprehensive as is this power, it cannot extend to the individual tastes and habits of the citizen. License Cases, 5 How. 583. Whatever may be the injurious results from the use of beer, it will not be contended that there is anything in the process of manufacturing it which endangers the lives or property of others. Corfield v. Coryell, 4 Wash. C. C. 371. There can be no doubt but that ‘citizens of the United States' and ‘citizens of the states' have the natural right to manufacture beer for individual use. To this right is added the right, secured by the other clause of the fourteenth amendment, ‘nor shall any state deprive any person of life, liberty, or property without due process of law.’

‘Due process of law’ means such an exertion of the power of government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. Cooley, Const. Lim. 356; Wynehamer v. People, 13 N. Y. 432; State v. Allen, 2 McCord, 56; Sears v. Cottrell, 5 Mich. 251; Taylor v. Porter, 4 Hill, 140; Hoke v. Henderson, 4 Dev. 15; James v. Reynolds' Adm'rs, 2 Tex. 251; Kennard v. Louisiana, 92 U. S. 480. The article is a restraint on the judicial and executive powers of government, and cannot be so construed as to leave to congress to make any process, due process of law. Murray's Lessee v. Land & Imp. Co., 18 How. 276. In Dartmouth College Case, 4 Wheat. 518, Mr. Webster defined ‘due process of law’ to be the general law which hears before it condemns. See, also, Brown v. Hummel, 6 Pa. St. 86; Norman v. Heist, 5 Watts & S. 171. ‘The general laws governing society’ guaranty the right to manufacture beer; and until the citizen attempts to sell or barter, he cannot be punished. If all that is charged in this indictment be proved, no offense is shown to have been committed under the laws of any free people. Under the power to regulate, the state cannot deprive the citizen of the lawful use of his property, if it does not injuriously affect or endanger others. Lake View v. Cemetery Co., 70 Ill. 191. Nor can it, in the exercise of the police power, enact laws that are unnecessary, and that will be oppressive to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37-40; Tenement-House Cigar Cases, 98 N. Y. 98;People v. Marx, 99 N. Y. 377; Intoxicating Liquor Cases, 25 Kan. 765, (opinion of Judge BREWER;) Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 135; Dash v. Van Kleeck, 7 Johns. 477; Taylor v. Porter, 4 Hill, 146, (per BRONSON, J.;) Goshen v. Stonington, 4 Conn. 225, (per HOSMER, J.)

But this statute deprives the plaintiff in error directly and absolutely of his property, without ‘due process of law.’ By the enactment of this statute the property is reduced in value, not indirectly or consequentially, but by direct prohibition of its real and primary use. This question was not passed on in Bartemeyer v. Iowa, 18 Wall. 129. To destroy the right to manufacture beer for a beverage is to deprive the owner of his property, although he is left the right to manufacture for other purposes, since that is the ordinary, usual, and principal use of beer. Wynehamer v. People, 13 N. Y. 387. This is an attempt not merely to legislate for the future but an attempt to destroy vested rights by legislative enactment without compensation, and without ‘due process of law.’ Wilkinson v. Leland, 2 Pet. 657. See, also, Munn v. People of Illinois, 94 U. S. 113, (per FIELD, J.;) Bartemeyer v. Iowa, (BRADLEY, J.,) 18 Wall. 129; Beer Co. v. Massachusetts, 97 U. S. 25. That private property cannot be taken for public purposes, without just compensation, is a fundamental maxim of all governments. Munn v. People of Illinois, (FIELD, J.,) 94 U. S. 113. As to the distinction between taking for public use and destruction, and also direct or consequential damages or loss, see Sedg. St. & Const. Law, 519-524, and notes. Taking need not be confined to actual physical appropriation. Id. If the owner is deprived of the use for which it was designed, to retain title and possession is of little consequence. Munnv. People of Illinois, supra, citing Bronson v. Kinzie, (TANEY, C. J.,) 1 How. 311. This question was effectually disposed of by this court. Pumpelly v. Green Bay Co., 13 Wall. 177. The court below adopted the rule of consequential and remote damages as laid down in Transportation Co. v. City of Chicago, 99 U. S. 838, citing Cooley, Const. Lim. 542, and notes. That rule has no application to this case. Since this case was heard it has been decided that depriving a citizen by express prohibition from the use of his property for the sake of the public is a taking of private property for public use. State v. Walruff, 26 Fed. Rep. 178. See, also, for an exhaustive discussion of the right to compensation, Wynehamer v. People, 13 N. Y. 378; Beebe v. State, 6 Ind. 501; Tenement-House Cigar Cases, 98 N. Y. 98.

The entire scheme of the thirteenth section, which sttempts by mere legislative enactment to convert the building and machinery of appellees into a common nuisance, and to compass their destruction, and also which attempts to execute the criminal law against the persons of appellees, by equitable proceedings instead of a common-law trial, is an attempt to deprive these persons of their property and liberty without ‘due process of law.’ The proceedings provided for in the thirteenth section are additional to the ordinary methods of trial, conviction, and punishment provided by the other sections of the act. By this section the legislature finding a brewery in operation within the state, which up to the time of the passage of the act was a lawful business, eo instante, without notice, trial, or hearing, by the mere exercise of its arbitrary caprice, declares it to be a common nuisance, and prescribes to consequences which are to follow inevitably by judicial mandate commanded by statute, and involving and permitting the exercise of no judicial discretion. The court is not to determine the brewery to be a nuisance, but is to find it to be one. And the court is commanded by its officers, to take possession of and shut up the place, and abate the nuisance by destroying all the property, not as a forfeiture consequent on conviction, but merely because the legislature to commands, and without the intervention of a real judicial action. And, again, an injunction shall issue, which is an injunction against a crime, and the violation of the injunction is punished as for contempt, by the process of a court of equity, which may be more severe than the penalty upon trial and conviction for keeping and maintaining the nuisance. And by section 14 the state shall not be required to prove the one fact which constitutes the offense, viz., that the party did not have a permit, thus taking away the presumption of innocence from the party charged.

This whole proceeding is but an attempt to administer criminal law in equity. That this is a criminal proceeding see Fisher v. McGirr, 1 Gray, 26; Greene v. Briggs, 1 Curt. 328; Hibbard v. People, 4 Mich. 129; Neitzel v. City of Concordia, 14 Kan. 446; Boyd v. U. S., 116 U. S. 616, 6 Sup. Ct. Rep. 524.A legislative enactment cannot make that a nuisance which is not such in fact. To make such a determination is a judicialfunction. Rights of property cannot be so arbitrarily destroyed or injured. Yates v. Milwaukee, 10 Wall. 497, 504, 505;Hutton v. City of Comden, 39 N. J. Law, 122, 129, 130; Cooley, Const. Lim. (5th Ed.) 110, and notes, 446; Lowry v. Rainwater, 70 Mo. 152;Jeck v. Anderson, 57 Cal. 251. Such a legislative determination would also be void, because, where the fact of injury to public health or morals did not exist, as here, it would be a violation of the absolute right of the citizen to follow such pursuit as he sees fit, provided it be not in fact ‘injurious to the community.’ People v. Marx, 99 N. Y. 386, 2 N. E. Rep. 29, and cases cited. Such legislation is unconstitutional. Quintini v. City of Bay St. Louis, 1 South. Rep. 625, 628.

Criminal law cannot be administered in a court of equity. Even in cases of public nuisances, where equity has jurisdiction, exceptional and extremely limited as it is, the question of nuisance or not must in cases of doubt be tried by a jury, and the injunction will be granted or not as that fact is decided. 2 Story, Eq. Jur. § 923. In practice the jurisdiction is applied almost exclusively to nuisances in the nature of purprestures upon public rights and property. Id. §§ 921-924. But the jurisdiction is never exercised on any idea that the nuisance is a crime, or with a view of preventing or punishing a criminal act. 1 Bish. Crim. Proc. § 1417. Equity has no jurisdiction in matters of crime. Lawrencev. Smith, (Lord ELDON,) Jac. 471, 473. Equity does not interfere to enforce penal laws unless the act is in itself a nuisance. Mayor, etc., of Hudson v. Thorne, 7 Paige, 261; **291 Davis v. American Soc., etc., 75 N. Y. 362, 368; Kramer v. Police Dept. N. Y., 21 Jones & S. 492; 1 Bish. Crim. Proc. §§ 1412-1417; 1 Spence, Eq. Jur. *689-* 690. With the principle that ‘the settled course of judicial proceedings' is ‘due process of law,’ in view, (Murray's Lessee v. Improvement Co., 18 How. 280; Walker v. Sauvinet, 92 U. S. 90, 93,) the fourteenth amendment was adopted. On principle this secures jury trial in the states in all cases in which, at the time of its adoption, such trial was deemed a fundamental right. The Kansas constitution (section 5, Bill of Rights) provides that the right of trial by jury shall be inviolate. Section 10. In all prosecutions the accused shall have a speedy public trial by jury. No act is valid which conflicts with these provisions. Railway v. Railway, 31 Kan. 661, 3 Pac. Rep. 284. A jury trial is preserved in that state in all cases in which it existed prior to the adoption of the constitution. In re Rolf, 30 Kan. 762, 763, 1 Pac. Rep. 523; Kimball v. Connor, 3 Kan. 415, 432;Ross v. Commissioners, 16 Kan. 418. A prosecution for a matter made penal by the laws of the state, as for selling liquor without a license, is ‘unquestionably a criminal action.’ Neitzel v. City of Concordia, 14 Kan. 446, 448. In re Rolf, 30 Kan. 760, 761, 1 Pac. Rep. 523. And upon the point that section 14 dispenses with proof of the single fact which constitutes the crime, thereby taking a way the presumption of innocence, not only is the section unconstitutional, but all the other parts of the act equally so.

This act deprives the appellees of their liberty and property without due process of law, and abridges the privileges and immunities of the appellees as citizens of the United States within the meaning of the fourteenth amendment. At the time of the passage of this act it was one of the fundamental rights of appellees, as citizens, to manufacture beer, and to use their brewery for that purpose. The state could only restrain this right by virtue of the police power, which could only be exercised to the extent reasonable and necessary for the preservation and promotion of the morals and health of the people of Kansas. This act goes further than this. It destroys their property for the public use other than for police purposes, and without compensation. This is depriving them of their property without due process of law. This provision of the constitution is to be liberally construed, (Boyd v. U. S. 116 U. S. 635, 6 Sup. Ct. Rep. 524,) that there may be no arbitrary deprivationof life or liberty, or arbitrary spoliation of property. Barbier v. Connolly, 113 U. S. 31, 5 Sup. Ct. Rep. 357; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064. This question has never been decided by this court. Beer Co. v. Massachusetts, 97 U. S. 25, arose under the right of the state to impair the obligation of the contract entered into between the state and the company by its charter. In Bartemeyer v. Iowa, 18 Wall. 129, the court refused to decide the question on a moot case. In the License Cases, 5 How. 589, the sole question under consideration was the violation of the commerce clause. The Slaughter-House Cases, 16 Wall. 36, did not touch upon this question, as they decided that the police power could regulate slaughter-houses, even to the extent of granting a monopoly, and demonstrated that all persons could still pursue their business of slaughtering subject to these regulations. The cases of Union Co. v. Landing Co., 111 U. S. 746, 4 Sup. Ct. Rep. 652; Fertilizing Co. v. Hyde Park, 97 U. S. 659; and Stone v. Mississippi, 101 U. S. 814,-all arose and were decided under the contract clause of the constitution.

The police power cannot go beyond the limit of what is necessary and reasonable for guarding against the evil which injures or threatens the public welfare in the given case, and the legislature, under the guise of that power, cannot strike down innocent occupations and destroy private property, the destruction of which is not reasonably necessary to accomplish the needed reform; and this, too, although the legislature is the judge in each case of the extent to which the evil is to be regulated or prohibited. Where the occupation is in itself immoral, there can be no question as to the right of the legislature. **292 2 Kent, Comm. 340. Nor is it denied that every one holds his property subject to the proper exercise of the police power. Dill. Mun. Corp. 136; Tied. Lim. Police Power, §§ 122, 122a; Com. v. Tewksbury, 11 Metc. 55. Nor that the legislature can destroy vested rights in the proper excercise of this power. Coates v. Mayor of New York, 7 Cow. 585. But the unqualified statement that when the legislature has exercised its right of judging, by the enactment of a prohibition, all other departments of the government are bound by the decision, which no court has a right to review, (Bish. St. Cr. § 995,) cannot be true. The legislative power cannot authorize manifest injustice by positive enactment, or take away security for personal liberty or private property, for the protection whereof government was established. Calder v. Bull, 3 Dall. 386. The state cannot deprive the citizen of the lawful use of his property if it does not injuriously effect others. Lake View v. Cemetery Co., 70 Ill. 191. The state cannot enact laws, not necessary to the preservation of the health and safety of the community, that will be oppressive and burdensome to the citizen. Railway Co. v. City of Jacksonville, 67 Ill. 37. The constitutional guaranty of life, liberty, and pursuit of happiness is not limited by the temporary caprice of a present majority, and can be limited only by the absolute necessities of the public. Intoxicating Liquor Cases, (BREWER, J.,) 25 Kan. 765;Tenement-House Cigar Case, 98 N. Y. 98; Cooley, Const. Lim. (5th Ed.) 110, 445, 446. No proposition is more firmly established than that the citizen has the right to adopt and follow such lawful and industrial pursuit, not injurious to the community, as he may see fit. People v. Marx, 99 N. Y. 377, 386, 2 N. E. Rep. 29. The mere existence of a brewery in operation, or of beer therein in vats, or packages not intended for consumption in the state is not in any way detrimental to the safety, health, or morals of the people of Kansas; nor can it be said that there is anything immoral in the business of brewing, or in beer itself, as in gambling or lotteries. Stone v. Mississippi, 101 U. S. 814.

There is no question that this enactment does in the sense of the law deprive appellees of their property. Pumpelly v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141.

It is a fundamental principle that where a nuisance is to be abated, the abatement must be limited by its necessities, and no wanton injury must be committed. The remedy is to stop the use to which the building is put, not to tear down or destroy the structure itself. Babcock v. City of Buffalo, 56 N. Y. 268,affirming1 Sheld. 317; Bridge Co. v. Paige, 83 N. Y. 188-190; Wood, Nuis. § 738. The nuisance here is sale within the state. To that extent alone can the legislature authorize the nuisance to be abated or the property destroyed.

The act itself does not contain the limitation put upon it in argument, that the manufacture is only prohibited for sale, barter, or gift within the state, and as a vital part of the prohibition is unconstitutional, the whole is unconstitutional. Wynehamer v. People, 13 N. Y. 378.

But if the legislature has the power claimed for it, then the application of the act to the brewery owned, possessed, and used by appellees at the time of the passage of the act violates the fourteenth amendment, because it deprives them of their property without ‘due process of law.’ Wynehamer v. People, 13 N. Y. 378. The legislature can only take private property by awarding compensation. 1 Bl. Comm. 139. For a definition of ‘due process of law,’ see Wynehamer v. People, 13 N. Y. 378, 392, citing Norman v. Heist, 5 Watts & S. 193; Taylor v. Porter, 4 Hill, 145; Hoke v. Henderson, 4 Dev. 15; 2 Kent, Comm. 13. All that is beneficial in property is the use. Pumpelly v. Green Bay Co., 13 Wall. 177; Munn v. Illinois, 94 U. S. 141, citing 1 Bl. Comm. 138; 2 Kent, Comm. 320. When a law annihilates the value of property, and strips it of the attributes by which it is alone distinguished as property, the owner is deprived of it. Wynehamer v. People, 13 N. Y. 398. In **293 order to make a taking of property ‘due process of law’ there must be adequate compensation. Sinnickson v. Johnson, 17 N. J. Law, 129; Gardner v. Newburgh, 2 Johns. Ch. 162; Pumpelly v. Green Bay Co., 13 Wall. 166. See on the whole subject the opinion of Judge BREWER, State v. Walruff, 26 Fed. Rep. 178. The criticisms of this opinion by Judge MARTIN in the present case are more specious than sound.

Opinion

STATEMENT OF FACTS BY THE COURT.

These cases involve an inquiry into the validity of certain statutes of Kansas relating to the manufacture and sale of intoxicating liquors. The first two are indictments, charging Mugler, the plaintiff in error, in one case, with having sold, and in the other with, having manufactured, spirituous, vinous, malt, fermented, and other intoxicating liquors, in Saline county, Kansas, without having the license or permit required by the statute. The defendant, having been found guilty, was fined, in each case, $100, and ordered to be committed to the county jail until the fine was paid. Each judgment was affirmed by the supreme court of Kansas, and thereby, it is contended, the defendant was denied rights, privileges, and immunities guarantied by the constitution of the United States. The third case (Kansas v. Ziebold & Hagelin) was commenced by petition filed in one of the courts of the state. The relief sought is (1) that the group of buildings in Atchison county, Kansas, constituting the brewery of the defendants, partners as Ziebold & Hagelin, be adjudged a common nuisance, and the sheriff or other proper officer directed to shut up and abate the same; (2) that the defendants be enjoined from using, or permitting to be used, the said premises as a place where intoxicating liquors may be sold, bartered, or given away, or kept for barter, sale, or gift, otherwise than by authority of law. The defendants answered, denying the allegations of the petition, and averring-First, that said buildings were erected by them prior to the adoption, by the people of Kansas, of the constitutional amendment prohibiting the manufacture and sale of intoxicating liquors for other than medicinal, scientific, and mechanical purposes, and before the passage of the prohibitory liquor statute of that state; second, that they were erected for the purpose of manufacturing beer, and cannot be put to any other use, and, if not so used, they will be of little value; third, that the statute under which said suit is brought is void under the fourteenth amendment of the constitution of the United States. Upon the petition and bond of the defendants, the cause was removed into the circuit court of the United States for the district of Kansas, upon the ground that the suit was one arising under the constitution of the United States. A motion to remand it to the state court was denied. The pleadings were recast so as to conform to the equity practice in the courts of the United States; and, the cause having been heard upon bill and answer, the suit was dismissed. From that decree the state prosecutes an appeal.

By a statute of Kansas, approved March 3, 1868, it was made a misdemeanor, punishable by fine and imprisonment, for any one, directly or indirectly, to sell spirituous, vinous, fermented, or other intoxicating liquors, without having a dram-shop, tavern, or grocery license. It was also enacted, among other things, that every place where intoxicating liquors were sold in violation of the statute should be taken, held, and deemed to be a common nuisance; and it was required that all rooms, taverns, eating-houses, bazaars, restaurants, groceries, coffee-houses, cellars, or other places of public resort where intoxicating liquors were sold, in violation of law, should be abated as public nuisances. Gen. St. Kan. 1868, c. 35. But in 1880 the people of Kansas adopted a more stringent policy. On the second of November of that year they ratified an amendment to the state constitution, which declared that the manufacture and sale of intoxicating liquors should be forever prohibited in that state, except for medical, scientific, and mechanical **294 purposes. In order to give effect to that amendment, the legislature repealed the act of 1868, and passed an act, approved February 19, 1881, to take effect May 1, 1881, entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ Its first section provides ‘that any person or persons who shall manufacture, sell, or barter any spirituous, malt, vinous, fermented, or other intoxicating liquors shall be guilty of a misdemeanor: provided, however, that such liquors may be sold for medical, scientific, and mechanical purposes, as provided in this act.’ The second section makes it unlawful for any person to sell or barter for either of such excepted purposes any malt, vinous, spirituous, fermented, or other intoxicating liquors without having procured a druggist's permit therefor, and prescribes the conditions upon which such permit may be granted. The third section relates to the giving by physicians of prescriptions for intoxicating liquors to be used by their patients, and the fourth, to the sale of such liquors by druggists. The fifth section forbids any person from manufacturing or assisting in the manufacture of intoxicating liquors in the state, except for medical, scientific, and mechanical purposes, and makes provision for the granting of licenses to engage in the business of manufacturing liquors for such excepted purposes. The seventh section declares it to be a misdemeanor for any person, not having the required permit, to sell or barter, directly or indirectly, spirituous, malt, vinous, fermented, or other intoxicating liquors; the punishment prescribed being, for the first offense, a fine of not less than one hundred nor more than five hundred dollars, or imprisonment in the county jail not less than twenty nor more than ninety days; for the second offense, a fine of not less than two hundred nor more than five hundred dollars, or imprisonment in the county jail not less than sixty days nor more than six months; and for every subsequent offense, a fine not less than five hundred nor more than one thousand dollars, or imprisonment in the county jail not less than three months nor more than one year, or both such fine and imprisonment, in the discretion of the court. The eighth section provides for similar fines and punishments against persons who manufacture, or aid, assist, or abet the manufacture of, any intoxicating liquors without having the required permit. The thirteenth section declares, among other things, all places where intoxicating liquors are manufactured, sold, bartered, or given away, or are kept for sale, barter, or use, in violation of the act, to be common nuisances, and provides that upon the judgment of any court having jurisdiction finding such place to be a nuisance, the proper officer shall be directed to shut up and abate the same.

Under that statute, the prosecutions against Mugler were instituted. It contains other sections in addition to those above referred to; but as they embody merely the details of the general scheme adopted by the state for the prohibition of the manufacture and sale of intoxicating liquors, except for the purposes specified, it is unnecessary to set them out. On the seventh of March, 1885, the legislature passed an act amendatory and supplementary to that of 1881. The thirteenth section of the former act, being the one upon which the suit against Ziebold & Hagelin is founded, will be given in full in a subsequent part of this opinion.

The facts necessary to a clear understanding of the questions, common to these cases, are the following: Mugler and Ziebold & Hagelin were engaged in manufacturing beer at their respective establishments, (constructed specially for that purpose,) for several years prior to the adoption of the constitutional amendment of 1880. They continued in such business in defiance of the statute of 1881, and without having the required permit.

 Nor did Mugler have a license or permit to sell beer. The single sale of which he was found guilty occurred in the state, and after May 1, 1881, that is, after the act of February 19, 1881, took effect, and was of beer manufactured before its passage. **295 The buildings and machinery constituting these breweries are of little value if not used for the purpose of manufacturing beer; that is to say, if the statutes are enforced against the defendants the value of their property will be very materially diminished.

Attorneys and Law Firms

*637 George R. Peck, J. B. Johnson, George J. Barker, Gleed & Gleed, and S. B. Bradford, Atty. Gen., for the State.

*638 Also S. B. Bradford, Atty. Gen., (Edwin A. Austin, Asst. Atty. Gen., and J. F. Tufts, Asst. Atty. Gen., Atchison County, of counsel,) for the State.

*628 G. G. Vest, for plaintiff in error, Mugler, and for appellees, Ziebold & Hagelin.

Robert M. Eaton, John C. Tomlinson, and Joseph H. Choate, for appellees, Ziebold & Hagelin.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The general question in each case is whether the foregoing statutes of Kansas are in conflict with that clause of the fourteenth amendment, which provides that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law.’ That legislation by a state prohibiting the manufacture within her limits of intoxicating liquors, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the constitution of the United States, is made clear by the decisions of this court, rendered before and since the adoption of the fourteenth amendment; to some of which, in view of questions to be presently considered, it will be well to refer.

In the License Cases, 5 How. 504, the question was whether certain statutes of Massachusetts, Rhode Island, and New Hampshire, relating to the sale of spirituous liquors, were repugnant to the constitution of the United States. In determining that question, it became necessary to inquire whether there was any conflict between the exercise by congress of its power to regulate commerce with foreign countries, or among the several states, and the exercise by a state of what are called police powers. Although the members of the court did *658 not fully agree as to the grounds upon which the decision should be placed, they were unanimous in holding that the statutes then under examination were not inconsistent with the constitution of the United States, or with any act of congress. Chief Justice TANEY said: ‘If any state deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper.’ Mr. Justice MCLEAN, among other things, said: ‘A state regulates its domestic commerce, contracts, the transmission of estates, real and personal, and acts upon internal matters which relate to its moral and political welfare. Over these subjects the federal government has no power. * * * The acknowledged police power of a state extends often to the destruction of property. A nuisance may be abated. Everything prejudicial to the health or morals of a city may be removed.’ Mr. Justice WOODBURY observed: ‘How can they [the states] be sovereign within their respective spheres, without power to regulate all their internal commerce, as well as police, and direct how, when, and where it shall be conducted in articles intimately connected either with public morals or public safety or public prosperity?’ Mr. Justice GRIER, in still more empathic language, said: ‘The true question presented by these cases, and one which I am not disposed to evade, is whether the states have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism, and crime. * * * Without attempting to define what are the peculiar subjects or limits of this power, it may safely be affirmed that every law for the restraint or punishment of crime, for the preservation of the public peace, health, and morals must come within this category. * * * It is not necessary, for the sake of justifying the state legislation now under consideration, to array the appalling statistics of misery, pauperism, and crime which have their origin in the use or abuse of ardent spirits. The *659 police power, which is exclusively in the states, is alone competent to the correction of these **296 great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.’

In Bartemeyer v. Iowa, 18 Wall. 129, it was said that, prior to the adoption of the fourteenth amendment, state enactments, regulating or prohibiting the traffic in intoxicating liquors, raised no question under the constitution of the United States; and that such legislation was left to the discretion of the respective states, subject to no other limitations than those imposed by their own constitutions, or by the general principles supposed to limit all legislative power. Referring to the contention that the right to sell intoxicating liquors was secured by the fourteenth amendment, the court said that, ‘so far as such a right exists, it is not one of the rights growing out of citizenship of the United States.’ In Beer Co. v. Massachusetts, 97 U. S. 33, it was said that, ‘as a measure of police regulation, looking to the preservation of public morals, a state law prohibiting the manufacture and sale of intoxicating liquors is not repugnant to any clause of the constitution of the United States.’ Finally, in Foster v. Kansas, 112 U. S. 206, 5 Sup. Ct. Rep. 97, the court said that the question as to the constitutional power of a state to prohibit the manufacture and sale of intoxicating liquors was no longer an open one in this court. These cases rest upon the acknowledged right of the states of the Union to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of their people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the constitution of the United States. The power to establish such regulations, as was said in Gibbons v. Ogden, 9 Wheat. 203, reaches everything within the territory of a state not surrendered to the national government.

It is, however, contended that, although the state may prohibit the manufacture of intoxicating liquors for sale or barter within her limits, for general use as a beverage, ‘no convention or legislature has the right, under our form of government, *660 to prohibit any citizen from manufacturing for his own use, or for export or storage, any article of food or drink not endangering or affecting the rights of others.’ The argument made in support of the first branch of this proposition, briefly stated, is that, in the implied compact between the state and the citizen, certain rights are reserved by the latter, which are guarantied by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the state cannot interfere; that among those rights is that of manufacturing for one's use either food or drink; and that while, according to the doctrines of the commune, the state may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself. It will be observed that the proposition, and the argument made in support of it, equally concede that the right to manufacture drink for one's personal use is subject to the condition that such manufacture does not endanger or affect the rights of others. If such manufacture does prejudicially affect the rights and interests of the community, it follows, from the very premises stated, that society has the power to protect itself, by legislation, against the injurious consequences of that business. As was said in Munn v. Illinois, 94 U. S. 124, while power does not exist with the whole people to control rights that are purely and exclusively private, government may require ‘each citizen to so conduct himself, and so use his own property, as not unnecessarily to injure another.’ But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding **297 only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they *661 please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.

It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of a statute, (Sinking Fund Cases, 99 U. S. 718,) the courts must obey the constitution rather than the law-making department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. ‘To what purpose,’ it was said in Marbury v. Madison, 1 Cranch, 137, 167, ‘are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty, indeed, are under a solemn duty, to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the constitution.

Keeping in view these principles, as governing the relations of the judicial and legislative departments of government with each other, it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the *662 manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage, is not fairly adapted to the end of protecting the community against the evils which confessedly result from the excessive use of ardent spirits. There is no justification for holding that the state, under the guise merely of police regulations, is here aiming to deprive the citizen of his constitutional rights; for we cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to every one, that the idleness, disorder, pauperism, and crime existing in the country, are, in some degree at least, traceable to this evil. If, therefore, a state deems the absolute prohibition of the manufacture and sale within her limits, of intoxicating liquors, for other than medical, scientific, and mechanical purposes, to be necessary to the peace and security of society, the courts cannot, without usurping legislative functions, override the will of the people as thus expressed by their chosen representatives. They have nothing to do with the mere policy of legislation. Indeed, it is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the constitution to another department. And so, if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the efforts to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. So far from such a regulation having no relation to the general end sought to be accomplished, the entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage. Those rights are best secured, in our government, by the observance, upon the part of all, of such regulations as are established by competent authority to promote the common good. No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare.

This conclusion is unavoidable, unless the fourteenth amendment of the constitution takes from the states of the Union those powers of police that were reserved at the time the original constitution was adopted. But this court has declared, upon full consideration, Barbier v. Connolly 113 U. S. 31, that the fourteenth amendment had no such effect. After observing, among other things, that that amendment forbade the arbitrary deprivation of life or liberty, and the arbitrary spoliation of property, and secured equal protection to all under like circumstances, in respect as well to their personal and civil rights as to their acquisition and enjoyment of property, the court said: ‘But neither the amendment, broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed ‘its police power,’ to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.' Undoubtedly the state, when providing, by legislation, for the protection of the public health, the public morals, or the public safety, is subject to the paramount authority of the constitution of the United States, and may not violate rights secured or guarantied by that instrument, or interfere with the execution of the powers confided to the general government. Henderson v. Mayor of New York, 92 U. S. 259; Railroad v. Husen, 95 U. S. 465; Gas-Light Co. v. Light Co., 115 U. S. 650, 6 Sup. Ct. Rep. 252; *664 Walling v. Michigan, 116 U. S. 446, 6 Sup. Ct. Rep. 454; Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. Rep. 1064; Steam-Ship Co. v. Board of Health, 118 U. S. 455, 6 Sup. Ct. Rep. 1114.

Upon this ground, if we do not misapprehend the position of defendants, it is contended that, as the primary and principal use of beer is as a beverage; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property, or, at least, will be materially diminished in value, if not employed in the manufacture of beer for every purpose,-the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property without due process of law. In other words, although the state, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happen to own property, the chief value of which consists in its fitness for such manufacturing purposes, unless compensation is first made for the diminution in the value of their property, resulting from such prohibitory enactments.

This interpretation of the fourteenth amendment is inadmissible. It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health, or morals of the community. In respect to contracts, the obligations **299 of which are protected against hostile state legislation, this court in Union Co. v. Landing Co., 111 U. S. 751, 4 Sup. Ct. Rep. 652, said that the state could not, by any contract, limit the exercise of her power to the prejudice of the public health and the public morals. So, in Stone v. Mississippi, 101 U. S. 816, where the constitution was invoked against the repeal by the state of a charter, granted to a private corporation, to conduct a lottery, and for which that corporation paid to the state a valuable consideration in money, the court said: ‘No legislature can bargain away the public health or the public morals. The people themselves cannot do it, much less their servants. * * * Government is organized *665 with a view to their preservation, and cannot divest itself of the power to provide for them.’ Again, in Gas-Light Co. v. Light Co., 115 U. S. 650, 672, 6 Sup. Ct. Rep. 252: ‘The constitutional prohibition upon state laws impairing the obligation of contracts does not restrict the power of the state to protect the public health, the public morals, or the public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a state are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense, and to the same extent, as are all contracts and all property, whether owned by natural persons or corporations.’

The principal that no person shall be deprived of life, liberty, or property without due process of law, was embodied, in substance, in the constitutions of nearly all, if not all, of the states at the time of the adoption of the fourteenth amendment; and it has never been regarded as incompatible with the principle, equally vital, because essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community. Beer Co. v. Massachusetts, 97 U. S. 32; Com.v. Alger, 7 Cush. 53. An illustration of this doctrine is afforded by Patterson v. Kentucky, 97 U. S. 501. The question there was as to the validity of a statute of Kentucky, enacted in 1874, imposing a penalty upon any one selling or offering for sale oils and fluids, the product of coal, petroleum, or other bituminous substances, which would burn or ignite at a temperature below 1300 Fahrenheit. Patterson having sold within that commonwealth, a certain oil, for which letters patent were issued in 1867, but which did not come up to the standard required by said statute, and having been indicted therefor, disputed the state's authority to prevent or obstruct the exercise of that right. This court upheld the legislation of Kentucky, upon the ground that, while the state could not impair the exclusive right of the patentee, or of his assignee, in the discovery described in the letters patent, the tangible property, the fruit of the discovery, was not beyond control in the exercise of her *666 police powers. It was said: ‘By the settled doctrines of this court, the police power extends, at least, to the protection of the lives, the health, and the property of the community against the injurious exercise by any citizen of his own rights. State legislation, strictly and legitimately for police purposes, does not, in the sense of the constitution, necessarily intrench upon any authority which has been confided, expressly or by implication, to the national government. The Kentucky statute under examination manifestly belongs to that class of legislation. It is, in the best sense, a mere policy regulation, deemed essential to the protection of the lives and property of citizens.’ Referring to the numerous decisions of this court guarding the power of congress to regulate commerce against encroachment, under the guise of state regulations, established for the purpose and with the effect of destroying or impairing rights secured by the constitution, it was further said: ‘It has, nevertheless, with marked distinctness and uniformity, recognized the necessity, growing out of the fundamental conditions of civil society, of upholding state police regulations which were enacted in good faith, and had appropriate and direct connection with that protection to life, health, and property which each state owes to her citizens.’ **300 See, also, U. S. v. Dewitt, 9 Wall. 41; License Tax Cases, 5 Wall. 462; Pervear v. Com., Id. 475.

Another decision very much in point upon this branch of the case, is Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667, also decided after the adoption of the fourteenth amendment. The court there sustained the validity of an ordinance of the village of Hyde Park, in Cook county, Illinois, passed under legislative authority, forbidding any person from transporting through that village offal or other offensive or unwholesome matter, or from maintaining or carrying on an offensive or unwholesome business or establishment within its limits. The fertilizing company, had, at large expense, and under authority expressly conferred by its charter, located its works at a particular point in the county. Besides, the charter of the village, at that time, provided that it should not interfere with parties engaged in transporting animal matter from Chicago, *667 or from manufacturing it into a fertilizer or other chemical product. The enforcement of the ordinance in question operated to destroy the business of the company, and seriously to impair the value of its property. As, however, its business had become a nuisance to the community in which it was conducted, producing discomfort, and often sickness, among large masses of people, the court maintained the authority of the village, acting under legislative sanction, to protect the public health against such nuisance. It said: ‘We cannot doubt that the police power of the state was applicable and adequate to give an effectual remedy. That power belonged to the states when the federal constitution was adopted. They did not surrender it, and they all have it now. It extends to the entire property and business within their local jurisdiction. Both are subject to it in all proper cases. It rests upon the fundamental principle that every one shall so use his own as not to wrong and injure another. To regulate and abate nuisances is one of its ordinary functions.’

It is supposed by the defendants that the doctrine for which they contend is sustained by Pumpelly v. Green Bay Co., 13 Wall. 168. But in that view we do not concur. This was an action for the recovery of damages for the overflowing of the plaintiff's land by water, resulting from the construction of a dam across a river. The defense was that the dam constituted a part of the system adopted by the state for improving the navigation of Fox and Wisconsin rivers; and it was contended that, as the damages of which the plaintiff complained were only the result of the improvement, under legislative sanction, of a navigable stream, he was not entitled to compensation from the state or its agents. The case, therefore, involved the question whether the overflowing of the plaintiff's land, to such an extent that it became practically unfit to be used, was a taking of property, within the meaning of the constitution of Wisconsin, providing that ‘the property of no person shall be taken for public use without just compensation therefor.’ This court said it would be a very curious and unsatisfactory result, were it held that, ‘if the government refrains from the absolute conversion of real *668 property to the uses of the public, it can destroy its value entirely, can in flict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private rights under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.’

These principles have no application to the case under consideration. The question in Pumpelly v. Green Bay Co., arose under the state's power of eminent domain; while the question now before us arises under what are, strictly, the police powers of the state, exerted for the protection of the health, morals, and safety of the people. That case, as this court said in **301 Transportation Co. v. Chicago, 99 U. S. 642,was an extreme qualification of the doctrine, universally held, that ‘acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though these consequences may impair its use,’ do not constitute a taking within the meaning of the constitutional provision, or entitle the owner of such property to compensation from the state or its agents, or give him any right of action. It was a case in which there was a ‘permanent flooding of private property,’ a ‘physical invasion of the real estate of the private owner, and a practical ouster of his possession.’ His property was, in effect, required to be devoted to the use of the public, and, consequently, he was entitled to compensation.

As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or *669 an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the fourteenth amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property, as will be prejudicial to the health, the morals, or the safety of the public, is not, and, consistently with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. It is true, when the defendants in these cases purchased or erected their breweries, the laws of the state did not forbid the manufacture of intoxicating liquors. But the state did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, 101 U. S. 814, the supervision of the public health and the public morals is a governmental power, ‘continuing in its nature,’ and ‘to be dealt with as the special exigencies of the moment may require;’ and that, ‘for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.’ So in Beer Co. v. Massachusetts *670 , 97 U. S. 32: ‘If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer.’

It now remains to consider certain questions relating particularly to the thirteenth section of the act of 1885. That section, which takes the place of section 13 of the act of 1881, is as follows:

‘Sec. 13. All places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this act, are hereby declared to be common nuisances, and upon the judgment of any court having jurisdiction finding such place to be a nuisance under this **302 section, the sheriff, his deputy, or under-sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut up and abate such place by taking possession thereof and destroying all intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance, and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than ninety days. The attorney general, county attorney, or any citizen of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in such proceeding, shall be punished as for contempt, by a fine of not less than one hundred nor more than five hundred dollars, or by imprisonment in the county jail not less than thirty days nor more than six months, or by both such fine and imprisonment, in the discretion of the court.’

*It is contended by counsel in the case of Kansas v. Ziebold & Hagelin that the entire scheme of this section is an attempt to deprive persons who come within its provisions of their property and of their liberty without due process of law; especially when taken in connection with that clause of section 14, (amendatory of section 21 of the act of 1881,) which provides that, ‘in prosecutions under this act, by indictment or otherwise, * * * it shall not be necessary in the first instance for the state to prove that the party charged did not have a permit to sell intoxicating liquors for the excepted purposes.’ We are unable to perceive anything in these regulations inconsistent with the constitutional guaranties of liberty and property. The state having authority to prohibit the manufacture and sale of intoxicating liquors for other than medical, scientific, and mechanical purposes, we do not doubt her power to declare that any place, kept and maintained for the illegal manufacture and sale of such liquors, shall be deemed a common nuisance, and be abated, and, at the same time, to provide for the indictment and trial of the offender. One is a proceeding against the property used for forbidden purposes, while the other is for the punishment of the offender.

It is said that by the thirteenth section of the act of 1885, the legislature, finding a brewery within the state in actual operation, without notice, trial, or hearing, by the mere exercise of its arbitrary caprice, declares it to be a common nuisance, and then prescribes the consequences which are to follow inevitably by judicial mandate required by the statute, and involving and permitting the exercise of no judicial discretion or judgment; that the brewery being found in operation, the court is not to determine whether it is a common nuisance, but, under the command of the statute, is to find it to be one; that it is not the liquor made, or the making of it, which is thus enacted to be a common nuisance, but the place itself, including all the property used in keeping and maintaining the common nuisance; that the judge having thus signed without inquiry, and, it may be, contrary to the fact and against his own judgment, the edict of the legislature, the court is commanded to take possession by its officers of the *672 peace and shut it up; nor is all this destruction of property, by legislative edict, to be made as a forfeiture consequent upon conviction of any offense, but merely because the legislature so commands; and it is done by a court of equity, without any previous conviction first had, or any trial known to the law. This, certainly, is a formidable arraignment of the legislation of Kansas, and if it were founded upon a just interpretation of her statutes, the court would have no difficulty in declaring that they could not be enforced without infringing the constitutional rights of the citizen. But those statutes have no such scope, and are attended with no **303 such results as the defendants suppose. The court is not required to give effect to a legislative ‘decree’ or ‘edict,’ unless every enactment by the lawmaking power of a state is to be so characterized. It is not declared that every establishment is to be deemed a common nuisance because it may have been maintained prior to the passage of the statute as a place for manufacturing intoxicating liquors. The statute is prospective in its operation; that is, it does not put the brand of a common nuisance upon any place, unless, after its passage, that place is kept and maintained for purposes declared by the legislature to be injurious to the community. Nor is the court required to adjudge any place to be a common nuisance simply because it is charged by the state to be such. It must first find it to be of that character; that is, must ascertain, in some legal mode, whether, since the statute was passed, the place in question has been, or is being, so used as to make it a common nuisance.

Equally untenable is the proposition that proceedings in equity for the purposes indicated in the thirteenth section of the statute are inconsistent with due process of law. ‘In regard to public nuisances,’ Mr. Justice Story says, ‘the jurisdiction of courts of equity seems to be of a very ancient date, and has been distinctly traced back to the reign of Queen Elizabeth. The jurisdiction is applicable, not only to public nuisances, strictly so called, but also to purprestures upon public rights and property. * * * In case of public nuisances, properly so called, an indictment lies to abate them, and to punish the *673 offenders. But an information also lies in equity to redress the grievance by way of injunction.’ 2 Stroy, Eq. Jur. §§ 921, 922. The ground of this jurisdiction in cases of purpresture, as well as of public nuisances, is the ability of courts of equity to give a more speedy, effectual, and permanent remedy than can be had at law. They cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury. District Atty. v. Railroad Co., 16 Gray, 245; Attorney Gen. v. Railroad, 3 N. J. Eq. 139; Attorney Gen. v. Ice Co., 104 Mass. 244; State v. Mayor, 5 Port. (Ala.) 279, 294; Hoole v. Attorney Gen., 22 Ala. 194; Attorney Gen. v. Hunter, 1 Dev. Eq. 13; Attorney Gen. v. Forbes, 2 Mylne & C. 123, 129, 133; Attorney Gen. v. Railway Co., 1 Drew. & S. 161; Eden, Inj. 259; Kerr, Inj. (2d Ed.) 168.

As to the objection that the statute makes no provision for a jury trial in cases like this one, it is sufficient to say that such a mode of trial is not required in suits in equity brought to abate a public nuisance. The statutory direction that an injunction issue at the commencement of the action is not to be construed as dispensing with such preliminary proof as is necessary to authorize an injunction pending the suit.

The court is not to issue an injunction simply because one is asked, or because the charge is made that a common nuisance is maintained in violation of law. The statute leaves the court at liberty to give effect to the principle that an injunction will not be granted to restrain a nuisance, except upon clear and satisfactory evidence that one exists. Here the fact to be ascertained was not whether a place, kept and maintained for *674 purposes forbidden by the statute, was per se a nuisance, that fact being conclusively determind by the statute itself, but whether the place in question was so kept and maintained. If the proof upon that point is not full or sufficient, the court can refuse an injunction, or postpone action until the state first obtains the verdict of a jury in her favor. In this case, it cannot be denied that the defendants kept and maintained a place that is within the statutory definition of a common nuisance. Their petition **304 for the removal of the cause from the state court, and their answer to the bill, admitted every fact necessary to maintain this suit, if the statute, under which it was brought, was constitutional.

Touching the provision that in prosecutions, by indictment or otherwise, the state need not, in the first instance, prove that the defendant has not the permit required by the statute, we may remark that, if it has any application to a proceeding like this, it does not deprive him of the presumption that he is innocent of any violation of law. It is only a declaration that when the state has proven that the place described is kept and maintained for the manufacture or sale of intoxicating liquors, such manufacture or sale being unlawful except for specified purposes, and then only under a permit, the prosecution need not prove a negative, namely, that the defendant has not the required license or permit. If the defendant has such license or permit, he can easily produce it, and thus overthrow the prima facie case established by the state.

A portion of the argument in behalf of the defendants is to the effect that the statutes of Kansas forbid the manufacture of intoxicating liquors to be exported, or to be carried to other states, and, upon that ground, are repugnant to the clause of the constitution of the United States, giving congress power to regulate commerce with foreign nations and among the several states. We need only say, upon this point, that there is no intimation in the record that the beer which the respective defendants manufactured was intended to be carried out of the state or to foreign countries. And, without expressing an opinion as to whether such facts would have constituted a good defense, we observe that it will be time enough to decide a case of that character when it shall come before us.

For the reasons stated, we are of opinion that the judgments of the supreme court of Kansas have not denied to Mugler, the plaintiff in error, any right, privilege, or immunity secured to him by the constitution of the United States, and its judgment, in each case, is accordingly affirmed. We are also of opinion that the circuit court of the United States erred in dismissing the bill of the state against Ziebold & Hagelin. The decree in that case is reversed, and the cause remanded, with directions to enter a decree granting to the state such relief as the act of March 7, 1885, authorizes. It is so ordered.

FIELD, J., (dissenting.)

I concur in the judgment rendered by this court in the first two cases,-those coming from the supreme court of Kansas. I dissent from the judgment in the last case, the one coming from the circuit court of the United States. I agree to so much of the opinion as asserts that there is nothing in the constitution or laws of the United States affecting the validity of the act of Kansas prohibiting the sale of intoxicating liquors manufactured in the state, except for the purposes mentioned. But I am not prepared to say that the state can prohibit the manufacture of such liquors within its limits if they are intended for exportation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, if congress has authorized their importation, though the act of Kansas is broad enough to include both such manufacture and sale. The right to import an article of merchandise, recognized as such by the commercial world, whether the right be given by act of congress or by treaty with a foreign country, would seem necessarily to carry the right to sell the article when imported. In Brown v. Maryland, 12 Wheat. 447, Chief Justice MARSHALL, in delivering the opinion of this court, said as follows: ‘Sale is the object of importation, and is an essential ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, *676 then, as importation itself. It must be considered as a component part of the power to regulate commerce. **305 Congress has a right, not only to authorize importation, but to authorize the importer to sell.’

If one state can forbid the sale within its limits of an imported article, so may all the states, each selecting a different article. There would then be little uniformity of regulations with respect to articles of foreign commerce imported into different states, and the same may be also said of regulations with respect to articles of interstate commerce. And we know it was one of the objects of the formation of the federal constitution to secure uniformity of commercial regulations against discriminating state legislation. The construction of the commercial clause of the constitution, upon which the License Cases, 7 How., were decided, appears to me to have been substantially abandoned in later decisions. Hall v. De Cuir, 95 U. S. 485; Welton v. State of Missouri, 91 U. S. 275; County of Mobile v. Kimball, 102 U. S. 691;Transportation Co. v. Parkersburgh, 107 U. S. 691, 2 Sup. Ct. Rep. 732; Ferry Co. v. Pennsylvania, 114 U. S. 196, 5 Sup. Ct. Rep. 826;Railway Co. v. Illinois, 18 U. S. 557, 7 Sup. Ct. Rep. 4. I make this reservation that I may not hereafter be deemed concluded by a general concurrence in the opinion of the majority.

I do not agree to what is said with reference to the case from the United States circuit court. That was a suit in equity brought for the abatement of the brewery owned by the defendants. It is based upon clauses in the thirteenth section of the act of Kansas, which are as follows: ‘All places where intoxicating liquors are manufactured, sold, bartered, or given away in violation of any of the provisions of this act, or where intoxicating liquors are kept for sale, barter, or delivery in violation of this act, are hereby declared to be common nuisances; and upon the judgment of any court having jurisdiction finding such place to be a nuisance under this section, the sheriff, his deputy, or under-sheriff, or any constable of the proper county, or marshal of any city where the same is located, shall be directed to shut *677 up and abate such place by taking possession thereof and destroying all intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining said nuisance; and the owner or keeper thereof shall, upon conviction, be adjudged guilty of maintaining a common nuisance, and shall be punished by a fine of not less than one hundred dollars, nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days, nor more than ninety days. The attorney general, county attorney, or any citizen of the county where such nuisance exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required.’

By a previous section all malt, vinous, and fermented liquors are classed as intoxicating liquors, and their manufacture, barter, and sale are equally prohibited. By the thirteenth section, as is well said by counsel, the legislature, without notice to the owner or hearing of any kind, declares every place where such liquors are sold, bartered, or given away, or kept for sale, barter, or delivery, (in this case a brewery, where beer was manufactured and sold, which, up to the passage of the act, was a lawful industry,) to be a common nuisance; and then prescribes what shall follow, upon a court having jurisdiction finding one of such places to be what the legislature has already pronounced it. The court is not to determine whether the place is a common nuisance in fact, but is to find it to be so if it comes within the definition of the statute, and, having thus found it, the executive officers of the court are to be directed to shut up and abate the place by taking possession of it; and, as though this were not sufficient security against the continuance of the business, they are to be required to destroy all the liquor found therein, and all other property used in keeping and maintaining the nuisance. It matters **306 not whether they are of such a character as could be used in any other business, or be of value for any other purposes. No discretion is left in the judge or in the officer.*678 These clauses appear to me to deprive one who owns a brewery and manufactures beer for sale, like the defendants, of property without due process of law. The destruction to be ordered is not as a forfeiture upon conviction of any offense, but merely because the legislature has so commanded. Assuming, which is not conceded, that the legislature, in the exercise of that undefined power of the state, called its ‘police power,’ may, without compensation to the owner, deprive him of the use of his brewery for the purposes for which it was constructed under the sanction of the law, and for which alone it is valuable, I cannot see upon what principle, after closing the brewery, and thus putting an end to its use in the future for manufacturing spirits, it can order the destruction of the liquor already manufactured, which it admits by its legislation may be valuable for some purposes, and allows it to be sold for those purposes. Nor can I see how the protection of the health and morals of the people of the state can require the destruction of property like bottles, glasses, and other utensils, which may be used for many lawful purposes. It has heretofore been supposed to be an established principle that where there is a power to abate a nuisance, the abatement must be limited by its necessity, and no wanton or unnecessary injury can be committed to the property or rights of individuals. Thus, if the nuisance consists in the use to which a building is put, the remedy is to stop such use, not to tear down or to demolish the building itself, or to destroy property found within it. Babcock v. City of Buffalo, 56 N. Y. 268; Bridge Co. v. Paige, 83 N. Y. 189.The decision of the court, as it seems to me, reverses this principle.

It is plain that great wrong will often be done to manufacturers of liquors if legislation like that embodied in this thirteenth section can be upheld. The supreme court of Kansas admits that the legislature of the state, in destroying the values of such kinds of property, may have gone to the utmost verge of constitutional authority. In my opinion it has passed beyond that verge, and crossed the line which separates regulation from confiscation.

FOOTNOTES

1 .  Affirming State v. Mugler, 29 Kan. 252.

No. 549.

PENNSYLVANIA COAL COMPANY v. MAHON ET AL.

Decided December 11, 1922.

Argued November 14, 1922.

Mr. John W. Davis with whom Mr. Frank W. Wheaton, Mr. Henry S. Drinker, Jr., and Mr. Reese H. Harris were on the brief, for plaintiff in error.

Mr. W. L. Pace, .with whom Mr. H. J. Mahon was on the brief, for defendants in error.

Mr. George Boss Hull, with whom Mr. George E. Alter, Attorney General of the State of Pennsylvania, was on the brief, for the State of Pennsylvania, by special leave of court, as amici curiae.

Mr. Philip V. Mattes, by leave of court, filed a brief on behalf of the City of Scranton, as amicus curiae.

Mr. Philip V. Mattes, Mr. Frank M. Walsh and Mr. Owen J. Roberts, by leave of court, filed a brief on behalf of the Scranton Surface Protective Association, as amici curiae.

Mr. C. La Rue Munson and Mr. Edgar Munson, by leave of court, filed a brief on behalf of the Scranton Gas & Water Company, as amici curiae.

Mr. Justice Holmes

delivered the opinion of the Court.

This is a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house. The bill sets out a deed executed by the Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but in express terms re­serves the right to remove all the coal under the same, and the grantee takes the premises with the risk, and waives all claim for damages that may arise from mining out the coal. But the plaintiffs say that whatever may have been the Coal Company’s rights, they were taken away by an Act of Pennsylvania, approved May 27, 1921, P. L. 1198, commonly known there as the Kohler Act. The Court of Common Pleas found that if not restrained the defendant would cause the damage to prevent which the bill was brought, but denied an injunction, holding that the statute if applied to this case would be uncon­stitutional. On appeal the Supreme Court of the State agreed that the defendant had contract and property rights protected by the Constitution of the United States, but held that the statute was a legitimate exercise of the police power and directed a decree for the plaintiffs. A writ of error was granted bringing the case to this Court.

The statute forbids the mining of anthracite coal in such way as to cause the subsidence of, among other things, any structure used as a human habitation, with certain exceptions, including among them land where the surface is owned by the owner of the underlying coal and is distant more than one hundred and fifty feet from any improved property belonging to any other person. As applied to this case the statute is admitted to destroy previously existing rights of property and contract. The question is whether the police power can be stretched so far.

Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But ob­viously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legisla­ture, but it always is open to interested parties to con­tend that the legislature has gone beyond its constitu­tional power. 

This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually in ordinary private affairs the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance even if similar damage is inflicted on others in different places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen, 95, 103. The extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Further­more, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land—a very valuable estate—and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs’ position alone, we should think it clear that the statute does not disclose a public interest suffi­cient to warrant so extensive a destruction of the defend­ant’s constitutionally protected rights.

But the case has been treated as one in which the gen­eral validity of the act should be discussed. The Attorney General of the State, the City of Scranton, and the repre­sentatives of other extensive interests were allowed to take part in the argument below and have submitted their contentions here. It seems, therefore, to be our duty to go farther in the statement of our opinion, in order that it may be known at once, and that further suits should not be brought in vain.

It is our opinion that the act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved. As said in a Pennsyl­vania case, “For practical purposes, the right to coal con­sists in the right to mine it.” Commonwealth v. Clear­view Coal Co., 256 Pa. St. 328, 331. What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitu­tional purposes as appropriating or destroying it. This we think that we are warranted in assuming that the statute does.

It is true that in Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531, it was held competent for the legislature to require a pillar of coal to be left along the line of adjoin­ing property, that, with the pillar on the other side of the line, would be a barrier sufficient for the safety of the em­ployees of either mine in case the other should be aban­doned and allowed to fill with water. But that was a re­quirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage, that has been recognized as a justification of various laws.

The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so short sighted as to acquire only surface rights without the right of sup­port, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place and refusing to pay for it because the public wanted it very much. The protection of pri­vate property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. Hairston v. Danville & Western Ry. Co., 208 U.S. 598, 605. When this seemingly absolute protec­tion is found to be qualified by the police power, the natural tendency of human nature is to extend the quali­fication more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States.

The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go—and if they go beyond the general rule, whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U.S. 16. In general it is not plain that a man’s misfortunes or necessities will justify his shifting the damages to his neighbor’s shoulders. Spade v. Lynn & Boston R. R. Co., 172 Mass. 488, 489. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitu­tional way of paying for the change. As we already have said, this is a question of degree—and therefore cannot be disposed of by general propositions. But we regard this as going beyond any of the cases decided by this Court. The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They went to the verge of the law but fell far short of the present act. Block v. Hirsh, 256 U.S. 135. Marcus Brown Holding Co. v. Feldman, 2­56 U.S. 170. Levy Leasing Co. v. Siegel, 258 U.S. 242.

We assume, of course, that the statute was passed upon the conviction that an exigency existed that would war­rant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought.

Decree reversed.

Mr. Justice Brandeis,

dissenting.

The Kohler Act prohibits, under certain conditions, the mining of anthracite coal within the limits of a city in such a manner or to such an extent “as to cause the ... subsidence of any dwelling or other structure used as a human habitation, or any factory, store, or other indus­trial or mercantile establishment in which human labor is employed.” Coal in place is land; and the right of the owner to use his land is not absolute. He may not so use it as to create a public nuisance; and uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they do, the legislature has power to prohibit such uses without paying compensa­tion; and the power to prohibit extends alike to the man­ner; the character and the purpose of the use. Are we justified in declaring that the Legislature of Pennsylvania has, in restricting the right to mine anthracite, exercised this power so arbitrarily as to violate the Fourteenth Amendment?

Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to pro­ject the public health, safety or morals from dangers threatened is not a taking. The restriction here in ques­tion is merely the prohibition of a noxious use. The ­property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be hoxious,—as it may because of further change in local or social conditions,—the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. 

The restriction upon the use of this property can not, of course, be lawfully imposed, unless its purpose is to protect the public. But the purpose of a restriction does not cease to be public, because incidentally some private persons may thereby receive gratuitously valuable spe­cial benefits. Thus, owners of low buildings may obtain, through statutory restrictions upon the height of neigh­boring structures, benefits equivalent to an easement of light and air. Welch v. Swasey, 214 U.S. 91. Compare Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61; Walls v. Midland Carbon Co., 254 U.S. 300. Further­more, a restriction, though imposed for a public purpose, will not be lawful, unless the restriction is an appropriate means to the public end. But to keep coal in place is surely an appropriate means of preventing subsidence of the surface; and ordinarily it is the only available means. Restriction upon use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put. The liquor and the oleomargarine cases settled that. Mugler v. Kansas, 123 U.S. 623, 668, 669; Powell v. Pennsylvania, 127 U.S. 678, 682. See also Hadacheck v. Los Angeles, 239 U.S. 394; Pierce Oil Corporation v. City of Hope, 248 U.S. 498. Nor is a restriction imposed through exercise of the police power inappropriate as a means, merely because the same end might be effected through exercise of the power of eminent domain, or otherwise at public expense. Every restriction upon the height of buildings might be secured through acquiring by eminent domain the right of each owner to build above the limiting height; but it is settled that the State need not resort to that power. Compare Laurel Hill Cemetery v. San Francisco, 216 U.S. 358; Missouri Pacific Ry. Co. v. Omaha, 235 U.S. 121. If by mining anthracite coal the owner would necessarily unloose poisonous gasses, I suppose no one would doubt the power of the State to prevent the mining, without buying his coal fields. And why may not the State, likewise, without paying com­pensation, prohibit one from digging so deep or excavat­ing so near the surface, as to expose the community to like dangers? In the latter case, as in the former, carryi­ng on the business would be a public nuisance.

It is said that one fact for consideration in determining whether the limits of the police power have been exc­eeded is the extent of the resulting diminution in value; and that here the restriction destroys existing rights of property and contract. But values are relative. If we are to consider the value of the coal kept in place by the rest­riction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts can not be greater than the rights in the whole. The estate of an owner in land is grandiloquently described as extending ab orco usque ad coelum. But I suppose no one would contend that by selling his interest above one hundred feet from the surface he could prevent the State from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the State’s power? For aught that appears the value of the coal kept in place by the restriction may be negligible as compared with the value of the whole property, or even as compared with that part of it which is represented by the coal remaining in place and which may be extracted despite the statute. Ordinarily a police regulation, gen­eral in operation, will not be held void as to a particular property, although proof is offered that owing to condi­tions peculiar to it the restriction could not reasonably be applied. See Powell v. Pennsylvania, 127 U.S. 678, 681, 684; Murphy v. California, 226 U.S. 623, 629. But even if the particular facts are to govern, the statute should, in my opinion, be upheld in this case. For the defendant has failed to adduce any evidence from which it appears that to restrict its mining operations was an unreasonable exercise of the police power. Compare Reinman v. Little Rock, 237 U.S. 171, 177, 180; Pierce Oil Corporation v. City of Hope, 248 U.S. 498, 500. Where the surface and the coal belong to the same per­son, self-interest would ordinarily prevent mining to such an extent as to cause a subsidence. It was, doubtless, for this reason that the legislature, estimating the degrees of danger, deemed statutory restriction unnecessary for the public safety under such conditions.

It is said that this is a case of a single dwelling house; that the restriction upon mining abolishes a valuable estate hitherto secured by a contract with the plaintiffs; and that the restriction upon mining cannot be justified, as a protection of personal safety, since that could be pro­vided for by notice. The propriety of deferring a good deal to tribunals on the spot has been repeatedly recog­nized. Welch v. Swasey, 214 U.S. 91, 106; Laurel Hill Cemetery v. San Francisco, 216 U.S. 358, 365; Patsone v. Pennsylvania, 232 U.S. 138, 144. May we say that notice would afford adequate protection of the public safety where the legislature and the highest court of the State, with greater knowledge of local conditions, have declared, in effect, that it would not? If public safety is imperiled, surely neither grant, nor contract, can prevail against the exercise of the police power. Fertilizing Co. v. Hyde Park, 97 U.S. 659; Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U.S. 548; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U.S. 372; St. Louis Poster Advertising Co. v. St. Louis, 249 U.S. 269. The rule that the State’s power to take appropriate meas­ures to guard the safety of all who may be within its jurisdiction may not be bargained away was applied to compel carriers to establish grade crossings at their own expense despite contracts to the contrary; Chicago, Bur­lington & Quincy R. R. Co. v. Nebraska, 170 U.S. 57; and, likewise, to supersede, by an employers’ liability act, the provision of a charter exempting a railroad from liability for death of employees, since the civil liability was deemed a matter of public concern, and not a mere private right. Texas & New Orleans R. R. Co. v. Miller, 221 U.S. 408. Compare Boyd v. Alabama, 94 U.S. 645; Stone v. Mississippi, 101 U.S. 814; Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746; Douglas v. Kentucky, 168 U.S. 488; Pennsylvania Hospital v. Philadelphia, 245 U.S. 20, 23. Nor can existing contracts between private individuals preclude exercise of the police power: “One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.” Hudson County Water Co. v. McCarter, 209 U.S. 349, 357; Knoxville Water Co. v. Knoxville, 189 U.S. 434, 438; Rast v. Van Deman & Lewis Co., 240 U.S. 342. The fact that this suit is brought by a private person is, of course, im­material to protect the community through invoking the aid, as litigant, of interested private citizens is not a novelty in our law. That it may be done in Pennsylvania was decided by its Supreme Court in this case. And it is for a State to say how its public policy shall be enforced.

This case involves only mining which causes subsidence of a dwelling house. But the Kohler Act contains pro­visions in addition to that quoted above; and as to these, also, an opinion is expressed. These provisions deal with mining under cities to such an extent as to cause sub­sidence of— 

(a) Any public building or any structure customarily used by the public as a place of resort, assemblage, or amusement, including, but not being limited to, churches, schools, hospitals, theatres, hotels, and railroad stations.

(b) Any street, road, bridge, or other public passage­way, dedicated to public use or habitually used by the public.

(c) Any track, roadbed, right of way, pipe, conduit, wire, or other facility, used in the service of the public by any municipal corporation or public service company as defined by the Public Service Company Law.

A prohibition of mining which causes subsidence of such structures and facilities is obviously enacted for a public purpose; and it seems, likewise, clear, that mere notice of intention to mine would not in this connection secure the public safety. Yet it is said that these provi­sions of the act cannot be sustained as an exercise of the police power where the right to mine such coal has been reserved. The conclusion seems to rest upon the assump­tion that in order to justify such exercise of the police power there must be “an average reciprocity of advan­tage” as between the owner of the property restricted and ­the rest of the community; and that here such reciprocity is absent. Reciprocity of advantage is an important con­sideration, and may even be an essential, where the State’s power is exercised for the purpose of conferring benefits upon the property of a neighborhood, as in drainage proj­ects, Wurts v. Hoagland, 114 U.S. 606; Fallbrook Irri­gation District v. Bradley, 164 U.S. 112; or upon adjoin­ing owners, as by party wall provisions, Jackman v. Rosenbaum Co., ante, 22. But where the police power is exercised, not to confer benefits upon property owners, but to protect the public from detriment and danger, there is, in my opinion, no room for considering reci­procity of advantage. There was no reciprocal advantage to the owner prohibited from using his oil tanks in 248 U.S. 498; his brickyard, in 239 U.S. 394; his livery stable, in 237 U.S. 171; his billiard hall, in 225 U.S. 623; his oleomargarine factory, in 127 U.S. 678; his brewery, in 123 U.S. 623; unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.

No. 77-444.

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

Decided June 26, 1978

Argued April 17, 1978

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

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

Leonard Koerner argued the cause for appellees. With him on the brief were Allen G. Schwartz, L. Kevin Sheridan, and Dorothy Miner.

Assistant Attorney General Wald argued the cause for the United States as amicus curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney Gen­eral Moorman, Peter R. Steenland, Jr., and Carl Strass *

*

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

Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, E. Clement Shute, Jr., and Robert H. Connett, Assistant Attorneys Gen­eral, and Richard C. Jacobs, Deputy Attorney General, for the State of California; and by Eugene J. Morris for the Real Estate Board of New York, Inc.

Mr. Justice Brennan

delivered the opinion of the Court.

The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks—in addition to those imposed by applicable zoning ordinances—without effecting a “taking” requiring the payment of “just compensation.” Specifically, we must decide whether the application of New York City’s Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has “taken” its owners’ property in violation of the Fifth and Fourteenth Amendments.

I

A

Over the past 50 years, all 50 States and over 500 munici­palities have enacted laws to encourage or require the preser­vation of buildings and areas with historic or aesthetic importance.1 These nationwide legislative efforts have been precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, land­marks, and areas have been destroyed2 without adequate con­sideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways.3 The second is a widely shared belief that structures with special historic, cultural, or ar­chitectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. “[H]is­toric conservation is but one aspect of the much larger prob­lem, basically an environmental one, of enhancing—or per­haps developing for the first time—the quality of life for people."4

New York City, responding to similar concerns and acting pursuant to a New York State enabling Act,5 adopted its Landmarks Preservation Law in 1965. See N. Y. C. Admin. Code, ch. 8-A, § 205-1.0 et seq. (1976). The city acted from the conviction that “the standing of [New York City] as a world-wide tourist center and world capital of business, cul­ture and government” would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character. § 205-1.0 (a). The city believed that com­prehensive measures to safeguard desirable features of the existing urban fabric would benefit its citizens in a variety of ways: e.g., fostering “civic pride in the beauty and noble accomplishments of the past”; protecting and enhancing “the city’s attractions to tourists and visitors”; “support[ing] and stimul[ating] business and industry”; “strengthen[ing] the economy of the city”; and promoting “the use of historic dis­tricts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city.” § 205-1.0 (b).

The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties,6 but rather by involving public entities in land-use decisions affecting these properties and providing services, standards, controls, and incentives that will encourage preservation by private owners and users.7 While the law does place special restrictions on landmark properties as a necessary feature to the attainment of its larger objectives, the major theme of the law is to ensure the owners of any such properties both a “reasonable return” on their investments and maximum latitude to use their parcels for purposes not inconsistent with the preservation goals.

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

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

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

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

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

B

This case involves the application of New York City’s Land­marks Preservation Law to Grand Central Terminal (Termi­nal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City’s most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style.

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

On August 2, 1967, following a public hearing, the Commis­sion designated the Terminal a “landmark” and designated the “city tax block” it occupies a “landmark site.” 16 The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designa­tion before the Commission, it did not seek judicial review of the final designation decision.

On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sub­lease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in net rentals presently received from concessionaires displaced by the new building.

Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal. Two separate plans, both designed by archi­tect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval. The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Ter­minal. The second, Breuer II Revised,17 called for tearing down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal’s facade, and constructing a 53-story office building. The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certifi­cate of “appropriateness” as to both proposals. After four days of hearings at which over 80 witnesses testified, the Com­mission denied this application as to both proposals.

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

The Commission’s reasons for rejecting certificates respect­ing Breuer II Revised are summarized in the following state­ment: “To protect a Landmark, one does not tear it down. To perpetuate its architectural features, one does not strip them off.” Record 2255. Breuer I, which would have preserved the existing vertical facades of the present structure, received more sympathetic consideration. The Commission first fo­cused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade and that one additional tower could do no further damage and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city and that a 55-story tower atop the Terminal would be far more detrimental to its south facade than the Pan-Ameri­can Building 375 feet away. Moreover, the Commission found that from closer vantage points the Pan-American Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. In conclusion, the Commission stated:

“[We have] no fixed rule against making additions to designated buildings—it all depends on how they are done .... But to balance a 55-story office tower above a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addi­tion’ would be four times as high as the existing structure and would reduce the Landmark itself to the status of a curiosity.

“Landmarks cannot be divorced from their settings—particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way—with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design rather than overwhelm it.” Id., at 2251.18

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

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

The New York Court of Appeals affirmed. 42 N. Y. 2d 324, 366 N. E. 2d 1271 (1977). That court summarily rejected any claim that the Landmarks Law had “taken” property without “just compensation,” id., at 329, 366 N. E. 2d, at 1274, indicating that there could be no “taking” since the law had not transferred control of the property to the city, but only restricted appellants’ exploitation of it. In that circumstance, the Court of Appeals held that appel­lants’ attack on the law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a “reasonable return” on the “privately created and privately managed ingredient” of the Terminal. Id., at 328, 366 N. E. 2d, at 1273.23 The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central’s extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the con­struction of office buildings, were valuable to appellants and provided “significant, perhaps 'fair,' compensation for the loss of rights above the terminal itself.” Id., at 333-336, 366 N. E. 2d, at 1276-1278.

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

II

The issues presented by appellants are (1) whether the restrictions imposed by New York City’s law upon appellants’ exploitation of the Terminal site effect a “taking” of appel­lants’ property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897), and, (2), if so, whether the transferable development rights afforded appel­lants constitute “just compensation” within the meaning of the Fifth Amendment.24 We need only address the question whether a “taking” has occurred.25

A

Before considering appellants’ specific contentions, it will be useful to review the factors that have shaped the jurispru­dence of the Fifth Amendment injunction “nor shall private property be taken for public use, without just compensation.” The question of what constitutes a “taking” for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the “Fifth Amendment’s guarantee . . . [is] designed to bar Govern­ment from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,” Armstrong v. United States, 364 U.S. 40, 49 (1960), this Court, quite simply, has been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely “upon the particular circumstances [in that] case.” United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958); see United States v. Caltex, Inc., 344 U.S. 149, 156 (1952).

In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regula­tion on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed ex­pectations are, of course, relevant considerations. See Gold­blatt v. Hempstead, supra, at 594. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be character­ized as a physical invasion by government, see, e.g., United States v. Causby, 328 U.S. 256 (1946), than when interfer­ence arises from some public program adjusting the benefits and burdens of economic life to promote the common good.

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922), and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example. A second are the decisions in which this Court has dismissed “taking” challenges on the ground that, while the challenged government action caused economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute "property” for Fifth Amendment pur­poses. See, e.g., United States v. Willow River Power Co., 324 U.S. 499 (1945) (interest in high-water level of river for runoff for tailwaters to maintain power head is not prop­erty) ; United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913) (no property interest can exist in naviga­ble waters); see also Demorest v. City Bank Co., 321 U.S. 36 (1944); Muhlker v. Harlem R. Co., 197 U.S. 544 (1905); Sax, Takings and the Police Power, 74 Yale L. J. 36, 61-62 (1964).

More importantly for the present case, in instances in which a state tribunal reasonably concluded that “the health, safety, morals, or general welfare” would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulations that destroyed or adversely affected rec­ognized real property interests. See Nectow v. Cambridge, 277 U.S. 183, 188 (1928). Zoning laws are, of course, the classic example, see Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (prohibition of industrial use); Gorieb v. Fox, 274 U.S. 603, 608 (1927) (requirement that portions of parcels be left unbuilt); Welch v. Swasey, 214 U.S. 91 (1909) (height restriction), which have been viewed as permissible govern­mental action even when prohibiting the most beneficial use of the property. See Goldblatt v. Hempstead, supra, at 592-­593, and cases cited; see also Eastlake v. Forest City Enter­prises, Inc., 426 U.S. 668, 674 n. 8 (1976).

Zoning laws generally do not affect existing uses of real property, but “taking” challenges have also been held to be without merit in a wide variety of situations when the chal­lenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm. Miller v. Schoene, 276 U.S. 272 (1928), is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole. A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make “a choice between the preservation of one class of property and that of the other” and since the apple industry was important in the State involved, concluded that the State had not exceeded “its constitutional powers by deciding upon the destruction of one class of property [with­out compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public.” Id., at 279.

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

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

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), is the leading case for the proposition that a state statute that substantially furthers important public policies may so frus­trate distinct investment-backed expectations as to amount to a “taking.” There the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Because the statute made it commercially impracticable to mine the coal, id., at 414, and thus had nearly the same effect as the complete destruction of rights claimant had reserved from the owners of the surface land, see id., at 414-415, the Court held that the statute was invalid as effecting a “taking” without just compensation. See also Armstrong v. United States, 364 U.S. 40 (1960) (Government’s complete destruc­tion of a materialman’s lien in certain property held a “taking”); Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908) (if height restriction makes property wholly useless “the rights of property . . . prevail over the other public interest” and compensation is required). See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1229-1234 (1967).

Finally, government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely pub­lic functions have often been held to constitute “takings.” United States v. Causby, 328 U.S. 256 (1946), is illustrative. In holding that direct overflights above the claimant’s land, that destroyed the present use of the land as a chicken farm, constituted a “taking,” Causby emphasized that Government had not “merely destroyed property [but was] using a part of it for the flight of its planes.” Id., at 262-263, n. 7. See also Griggs v. Allegheny County, 369 U.S. 84 (1962) (overflights held a taking); Portsmouth Co. v. United States, 260 U.S. 327 (1922) (United States military installations’ repeated firing of guns over claimant’s land is a taking); United States v. Cress, 243 U.S. 316 (1917) (repeated floodings of land caused by water project is a taking); but see YMCA v. United States, 395 U.S. 85 (1969) (damage caused to building when federal officers who were seeking to protect building were attacked by rioters held not a taking). See generally Michelman, supra, at 1226-1229; Sax, Takings and the Police Power, 74 Yale L. J. 36 (1964).

B

In contending that the New York City law has “taken” their property in violation of the Fifth and Fourteenth Amendments, appellants make a series of arguments, which, while tailored to the facts of this case, essentially urge that any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional. Before considering these, we emphasize what is not in dispute. Because this Court has recognized, in a number of settings, that States and cities may enact land-use restrictions or controls to enhance the quality of life by pre­serving the character and desirable aesthetic features of a city, see New Orleans v. Dukes, 427 U.S. 297 (1976); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) ; Village of Belle Terre v. Boraas, 416 U.S. 1, 9-10 (1974); Berman v. Parker, 348 U.S. 26, 33 (1954); Welch v. Swasey, 214 U.S., at 108, appellants do not contest that New York City’s objec­tive of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. They also do not dispute that the re­strictions imposed on its parcel are appropriate means of securing the purposes of the New York City law. Finally, appellants do not challenge any of the specific factual prem­ises of the decision below. They accept for present pur­poses both that the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return,26 and that the transferable devel­opment rights afforded appellants by virtue of the Terminal’s designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In appellants’ view none of these factors derogate from their claim that New York City’s law has effected a “taking.”

They first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their “air rights” above the Ter­minal and that, irrespective of the value of the remainder of their parcel, the city has “taken” their right to this super-jacent airspace, thus entitling them to “just compensation” measured by the fair market value of these air rights.

Apart from our own disagreement with appellants’ charac­terization of the effect of the New York City law, see infra, at 134-135, the submission that appellants may establish a “tak­ing” simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, see Welch v. Swasey, supra, but also in approving those prohibit­ing both the subjacent, see Goldblatt v. Hempstead, 369 U.S. 590 (1962), and the lateral, see Gorieb v. Fox, 274 U.S. 603 (1927), development of particular parcels.27 “Taking” juris­prudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular seg­ment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block designated as the “landmark site.”

Secondly, appellants, focusing on the character and impact of the New York City law, argue that it effects a “taking” because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sus­taining other land-use regulations, which, like the New York City law, are reasonably related to the promotion of the gen­eral welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a “taking,” see Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (75% diminution in value caused by zoning law); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (87½% diminution in value); cf. Eastlake v. Forest City Enterprises, Inc., 426 U.S., at 674 n. 8, and that the “taking” issue in these contexts is resolved by focusing on the uses the regulations permit. See also Goldblatt v. Hempstead, supra. Appellants, moreover, also do not dispute that a showing of diminution in property value would not establish a “taking” if the restriction had been imposed as a result of historic-district legislation, see generally Maher v. New Orleans, 516 F. 2d 1051 (CA5 1975), but appel­lants argue that New York City’s regulation of individual landmarks is fundamentally different from zoning or from his­toric-district legislation because the controls imposed by New York City’s law apply only to individuals who own selected properties.

Stated baldly, appellants’ position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a “taking” requiring the payment of “just compensation.” Agreement with this argument would, of course, invalidate not just New York City’s law, but all comparable landmark legislation in the Nation. We find no merit in it.

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

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

Next, appellants observe that New York City’s law differs from zoning laws and historic-district ordinances in that the Landmarks Law does not impose identical or similar restric­tions on all structures located in particular physical com­munities. It follows, they argue, that New York City’s law is inherently incapable of producing the fair and equitable distribution of benefits and burdens of governmental action which is characteristic of zoning laws and historic-district leg­islation and which they maintain is a constitutional require­ment if “just compensation” is not to be afforded. It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a “taking.” Legislation designed to promote the general welfare commonly burdens some more than others. The owners of the brickyard in Hadacheck, of the cedar trees in Miller v. Schoene, and of the gravel and sand mine in Ooldblatt v. Hempstead, were uniquely burdened by the legislation sustained in those cases.30 Similarly, zon­ing laws often affect some property owners more severely than others but have not been held to be invalid on that account. For example, the property owner in Euclid who wished to use its property for industrial purposes was affected far more severely by the ordinance than its neighbors who wished to use their land for residences.

In any event, appellants’ repeated suggestions that they are solely burdened and unbenefited is factually inaccurate. This contention overlooks the fact that the New York City law applies to vast numbers of structures in the city in addition to the Terminal—all the structures contained in the 31 his­toric districts and over 400 individual landmarks, many of which are close to the Terminal.31 Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole—which we are unwilling to do—we cannot conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. Doubtless appellants believe they are more burdened than benefited by the law, but that must have been true, too, of the property owners in Miller, Hadacheck, Euclid, and Goldblatt.32

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

C

Rejection of appellants’ broad arguments is not, however, the end of our inquiry, for all we thus far have established is that the New York City law is not rendered invalid by its failure to provide “just compensation” whenever a landmark owner is restricted in the exploitation of property interests, such as air rights, to a greater extent than provided for under applicable zoning laws. We now must consider whether the interference with appellants’ property is of such a magnitude that “there must be an exercise of eminent domain and com­pensation to sustain [it].” Pennsylvania Coal Co. v. Mahon, 260 U.S., at 413. That inquiry may be narrowed to the question of the severity of the impact of the law on appel­lants’ parcel, and its resolution in turn requires a careful assessment of the impact of the regulation on the Terminal site.

Unlike the governmental acts in Goldblatt, Miller, Causby, Griggs, and Hadacheck, the New York City law does not inter­fere in any way with the present uses of the Terminal. Its designation as a landmark not only permits but contemplates that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central’s pri­mary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a “reasonable return” on its investment.

Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects.33 First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission’s actions in denying applications to construct an office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriate­ness for any comparably sized structure, nothing the Commis­sion has said or done suggests an intention to prohibit any con­struction above the Terminal. The Commission’s report emphasized that whether any construction would be allowed depended upon whether the proposed addition “would har­monize in scale, material, and character with [the Terminal].” Record 2251. Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the air­space above the Terminal.34

Second, to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those pre-existing air rights. Their ability to use these rights has not been abro­gated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office build­ings. Although appellants and others have argued that New York City’s transferable development-rights program is far from ideal,35 the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have consti­tuted “just compensation” if a “taking” had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that rea­son, are to be taken into account in considering the impact of regulation. Cf. Goldblatt v. Hempstead, 369 U.S., at 594 n. 3.

On this record, we conclude that the application of New York City’s Landmarks Law has not effected a “taking” of appellants’ property. The restrictions imposed are substan­tially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties.36

Affirmed.

1

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

2

Over one-half of the buildings listed in the Historic American Build­ings Survey, begun by the Federal Government in 1933, have been de­stroyed. See Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 Harv. L. Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank’s Building Plan Sets Off Debate on “Progress,” N. Y. Times, Jan. 17,1971, section 8, p. 1, col. 2.

3

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

4

Gilbert, Introduction, Precedents for the Future, 36 Law & Contemp. Prob. 311, 312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation Law, Washington, D. C., May 1, 1971 (unpublished text, pp. 6-7).

5

See N. Y. Gen. Mun. Law § 96-a (McKinney 1977). It declares that it is the public policy of the State of New York to preserve structures and areas with special historical or aesthetic interest or value and authorizes local governments to impose reasonable restrictions to perpetuate such structures and areas.

6

The consensus is that widespread public ownership of historic proper­ties in urban settings is neither feasible nor wise. Public ownership reduces the tax base, burdens the public budget with costs of acquisitions and maintenance, and results in the preservation of public buildings as museums and similar facilities, rather than as economically productive features of the urban scene. See Wilson & Winkler, The Response of State Legislation to Historic Preservation, 36 Law & Contemp. Prob. 329, 330-331, 339-340 (1971).

7

See Costonis, supra n. 2, at 580-581; Wilson & Winkler, supra n. 6; Rankin, Operation and Interpretation of the New York City Landmark Preservation Law, 36 Law & Contemp. Prob. 366 (1971).

8

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

9

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

10

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

11

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

12

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

13

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

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

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

14

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

15

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

16

The Commission’s report stated:

“Grand Central Station, one of the great buildings of America, evokes a spirit that is unique in this City. It combines distinguished architecture with a brilliant engineering solution, wedded to one of the most fabulous railroad terminals of our time. Monumental in scale, this great building functions as well today as it did when built. In style, it represents the best of the French Beaux Arts.” Record 2240.

17

Appellants also submitted a plan, denominated Breuer II, to the Commission. However, because appellants learned that Breuer II would have violated existing easements, they substituted Breuer II Revised for Breuer II, and the Commission evaluated the appropriateness only of Breuer II Revised.

18

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

19

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

20

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

21

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

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

22

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

23

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

24

Our statement of the issues is a distillation of four questions pre­sented in the jurisdictional statement:

“Does the social and cultural desirability of preserving historical land­marks through government regulation derogate from the constitutional requirement that just compensation be paid for private property taken for public use?

“Is Penn Central entitled to no compensation for that large but unmeas­urable portion of the value of its rights to construct an office building over the Grand Central Terminal that is said to have been created by the efforts of 'society as an organized entity’?

“Does a finding that Penn Central has failed to establish that there is no possibility, without exercising its development rights, of earning a reasonable return on all of its remaining properties that benefit in any way from the operations of the Grand Central Terminal warrant the con­clusion that no compensation need be paid for the taking of those rights?

“Does the possibility accorded to Penn Central, under the landmark-­preservation regulation, of realizing some value at some time by transfer­ring the Terminal development rights to other buildings, under a procedure that is conceded to be defective, severely limited, procedurally complex and speculative, and that requires ultimate discretionary approval by governmental authorities, meet the constitutional requirements of just com­pensation as applied to landmarks?” Jurisdictional Statement 3-4.

The first and fourth questions assume that there has been a taking and raise the problem whether, under the circumstances of this case, the trans­ferable development rights constitute “just compensation.” The second and third questions, on the other hand, are directed to the issue whether a taking has occurred.

25

As is implicit in our opinion, we do not embrace the proposition that a “taking” can never occur unless government has transferred physical control over a portion of a parcel.

26

Both the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state that appellants are not seeking review of the New York courts’ determination that Penn Central could earn a “reasonable return” on its investment in the Terminal. Although appellants suggest in their reply brief that the factual conclusions of the New York courts cannot be sustained unless we accept the rationale of the New York Court of Appeals, see Reply Brief for Appellants 12 n. 15, it is apparent that the findings concerning Penn Central’s ability to profit from the Terminal depend in no way on the Court of Appeals’ rationale.

27

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

28

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

29

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

30

Appellants attempt to distinguish these cases on the ground that, in each, government was prohibiting a “noxious” use of land and that in the present case, in contrast, appellants’ proposed construction above the Terminal would be beneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no “blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual.” Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any supposed “noxious” quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy—not unlike historic preservation—expected to produce a wide­spread public benefit and applicable to all similarly situated property.

Nor, correlatively, can it be asserted that the destruction or fundamental alteration of a historic landmark is not harmful. The suggestion that the beneficial quality of appellants’ proposed construction is established by the fact that the construction would have been consistent with applicable zoning laws ignores the development in sensibilities and ideals reflected in landmark legislation like New York City’s. Cf. West Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S. E. 881, 885-886, appeal dismissed for want of a substantial federal question, 302 U.S. 658 (1937).

31

There are some 53 designated landmarks and 5 historic districts or scenic landmarks in Manhattan between 14th and 59th Streets. See Land­marks Preservation Commission, Landmarks and Historic Districts (1977).

32

It is, of course, true that the fact the duties imposed by zoning and historic-district legislation apply throughout particular physical communi­ties provides assurances against arbitrariness, but the applicability of the Landmarks Law to a large number of parcels in the city, in our view, provides comparable, if not identical, assurances.

33

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

34

Counsel for appellants admitted at oral argument that the Commis­sion has not suggested that it would not, for example, approve a 20-story office tower along the lines of that which was part of the original plan for the Terminal. See Tr. of Oral Arg. 19.

35

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

36

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

Mr. Justice Rehnquist,

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

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

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

Where a relatively few individual buildings, all separated from one another, are singled out and treated differently from surrounding buildings, no such reciprocity exists. The cost to the property owner which results from the imposition of restrictions applicable only to his property and not that of his neighbors may be substantial—in this case, several million dollars—with no comparable reciprocal benefits. And the cost associated with landmark legislation is likely to be of a com­pletely different order of magnitude than that which results from the imposition of normal zoning restrictions. Unlike the regime affected by the latter, the landowner is not simply prohibited from using his property for certain purposes, while allowed to use it for all other purposes. Under the historic-­landmark preservation scheme adopted by New York, the property owner is under an affirmative duty to preserve his property as a landmark at his own expense. To suggest that because traditional zoning results in some limitation of use of the property zoned, the New York City landmark preservation scheme should likewise be upheld, represents the ultimate in treating as alike things which are different. The rubric of “zoning” has not yet sufficed to avoid the well-established proposition that the Fifth Amendment bars the “Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). See discussion infra, at 147-150.

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

I

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

A

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

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

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

B

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

1

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

“A prohibition simply upon the use of property for pur­poses that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, cannot be—burdened with the condition that the State must compensate such indi­vidual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community.” Mugler v. Kansas, 123 U.S. 623, 668-669.

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

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

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

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

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

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

2

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

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

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

Less than 20 years ago, this Court reiterated that the

“Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensa­tion was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S., at 49.

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

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

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

C

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

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

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

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

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

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

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

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

II

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

1

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

2

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

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

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

3

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

4

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

5

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

6

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

7

“Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors.” 188 U.S., at 470.

8

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

9

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

10

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

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

11

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

12

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

13

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

14

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

No. 81-244.

LORETTO v. TELEPROMPTER MANHATTAN CATV CORP. et al.

Decided June 30, 1982

Argued March 30, 1982

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

with whom Justice Brennan and Justice White join,

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

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

*

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

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

Justice Marshall

delivered the opinion of the Court.

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

I

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

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

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

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

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

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

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

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

II

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

A

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

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

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

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

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

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

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

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

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

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

As the Court further explained,

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

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

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

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

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

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

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

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

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

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

B

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

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

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

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

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

C

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

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

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

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

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

III

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

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

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

It is so ordered.

1

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

2

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

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

3

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

“1. No landlord shall

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

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

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

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

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

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

4

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

5

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

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

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

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

6

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

7

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

8

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

9

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

10

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

11

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

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

12

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

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

13

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

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

14

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

15

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

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

16

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

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

17

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

18

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

19

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

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

20

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

Justice Blackmun,

dissenting.

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

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

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

I

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

The Court of Appeals held that

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

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

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

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

II

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

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

A

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

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

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

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

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

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

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

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

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

B

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

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

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

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

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

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

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

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

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

III

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

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

1

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

2

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

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

3

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

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

4

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

5

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

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

6

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

7

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

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

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

8

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

9

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

10

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

11

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

12

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

No. 91-453.

LUCAS v. SOUTH CAROLINA COASTAL COUNCIL

Decided June 29, 1992

Argued March 2, 1992

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

A. Camden Lewis argued the cause for petitioner. With him on the briefs were Gerald M. Finkel and David J. Bederman.

C. C. Harness III argued the cause for respondent. With him on the brief were T. Travis Medlock, Attorney General of South Carolina, Kenneth P. Woodington, Senior Assistant Attorney General, and Richard J. Lazarus *

*

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

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

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

Justice Scalia

delivered the opinion of the Court.

In 1986, petitioner David H. Lucas paid $976,000 for two residential lots on the Isle of Palms in Charleston County, South Carolina, on which he intended to build single-family homes. In 1988, however, the South Carolina Legislature enacted the Beachfront Management Act, S.C. Code Ann. § 48-39-250 et seq. (Supp. 1990), which had the direct effect of barring petitioner from erecting any permanent habitable structures on his two parcels. See § 48-39-290(A). A state trial court found that this prohibition rendered Lucas’s par­cels "valueless.” App. to Pet. for Cert. 37. This case re­quires us to decide whether the Act’s dramatic effect on the economic value of Lucas’s lots accomplished a taking of pri­vate property under the Fifth and Fourteenth Amendments requiring the payment of “just compensation.” U.S. Const., Amdt. 5.

I

A

South Carolina’s expressed interest in intensively manag­ing development activities in the so-called “coastal zone” dates from 1977 when, in the aftermath of Congress’s pas­sage of the federal Coastal Zone Management Act of 1972, 86 Stat. 1280, as amended, 16 U.S.C. § 1451 et seq., the legis­lature enacted a Coastal Zone Management Act of its own. See S.C. Code Ann. § 48-39-10 et seq. (1987). In its original form, the South Carolina Act required owners of coastal zone land that qualified as a “critical area” (defined in the legisla­tion to include beaches and immediately adjacent sand dunes, § 48-39-10(J)) to obtain a permit from the newly created South Carolina Coastal Council (Council) (respondent here) prior to committing the land to a “use other than the use the critical area was devoted to on [September 28, 1977].” § 48-39-130(A).

In the late 1970’s, Lucas and others began extensive resi­dential development of the Isle of Palms, a barrier island situated eastward of the city of Charleston. Toward the close of the development cycle for one residential subdivision known as “Beachwood East,” Lucas in 1986 purchased the two lots at issue in this litigation for his own account. No portion of the lots, which were located approximately 300 feet from the beach, qualified as a “critical area” under the 1977 Act; accordingly, at the time Lucas acquired these par­cels, he was not legally obliged to obtain a permit from the Council in advance of any development activity. His inten­tion with respect to the lots was to do what the owners of the immediately adjacent parcels had already done: erect single-­family residences. He commissioned architectural drawings for this purpose.

The Beachfront Management Act brought Lucas’s plans to an abrupt end. Under that 1988 legislation, the Council was directed to establish a “baseline” connecting the landward-­most “point[s] of erosion ... during the past forty years” in the region of the Isle of Palms that includes Lucas’s lots. S.C. Code Ann. § 48-39-280(A)(2) (Supp. 1988).1 In action not challenged here, the Council fixed this baseline landward of Lucas’s parcels. That was significant, for under the Act construction of occupable improvements2 was flatly prohib­ited seaward of a line drawn 20 feet landward of, and parallel to, the baseline. § 48-39-290(A). The Act provided no exceptions.

B

Lucas promptly filed suit in the South Carolina Court of Common Pleas, contending that the Beachfront Management Act’s construction bar effected a taking of his property with­out just compensation. Lucas did not take issue with the validity of the Act as a lawful exercise of South Carolina’s police power, but contended that the Act’s complete extin­guishment of his property’s value entitled him to compensa­tion regardless of whether the legislature had acted in fur­therance of legitimate police power objectives. Following a bench trial, the court agreed. Among its factual determina­tions was the finding that “at the time Lucas purchased the two lots, both were zoned for single-family residential con­struction and . . . there were no restrictions imposed upon such use of the property by either the State of South Caro­lina, the County of Charleston, or the Town of the Isle of Palms.” App. to Pet. for Cert. 36. The trial court further found that the Beachfront Management Act decreed a per­manent ban on construction insofar as Lucas’s lots were concerned, and that this prohibition “deprive[d] Lucas of any reasonable economic use of the lots, . . . eliminated the unrestricted right of use, and rendered] them valueless.” Id., at 37. The court thus concluded that Lucas’s properties had been “taken” by operation of the Act, and it ordered respondent to pay “just compensation” in the amount of $1,232,387.50. Id., at 40.

The Supreme Court of South Carolina reversed. It found dispositive what it described as Lucas’s concession “that the Beachfront Management Act [was] properly and validly de­signed to preserve ... South Carolina’s beaches.” 304 S.C. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an attack on the validity of the statute as such, the court believed itself bound to accept the “uncontested ... findings” of the South Carolina Legislature that new construction in the coastal zone—such as petitioner intended—threatened this public resource. Id., at 383, 404 S. E. 2d, at 898. The court ruled that when a regulation respecting the use of property is designed “to prevent serious public harm,” id., at 383, 404 S. E. 2d, at 899 (citing, inter alia, Mugler v. Kansas, 123 U.S. 623 (1887)), no compensation is owing under the Tak­ings Clause regardless of the regulation’s effect on the prop­erty’s value.

Two justices dissented. They acknowledged that our Mugler line of cases recognizes governmental power to pro­hibit “noxious” uses of property—i.e., uses of property akin to “public nuisances”—without having to pay compensation. But they would not have characterized the Beachfront Man­agement Act’s “primary purpose [as] the prevention of a nui­sance.” 304 S.C., at 395, 404 S. E. 2d, at 906 (Harwell, J., dissenting). To the dissenters, the chief purposes of the leg­islation, among them the promotion of tourism and the cre­ation of a “habitat for indigenous flora and fauna,” could not fairly be compared to nuisance abatement. Id., at 396, 404 S. E. 2d, at 906. As a consequence, they would have af­firmed the trial court’s conclusion that the Act’s obliteration of the value of petitioner’s lots accomplished a taking.

We granted certiorari. 502 U.S. 966 (1991).

II

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

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

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

III

A

Prior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), it was generally thought that the Takings Clause reached only a “direct appropria­tion” of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a “practical ouster of [the owner’s] possession,” Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879). See also Gibson v. United States, 166 U.S. 269, 275-276 (1897). Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of property was neces­sarily constrained by constitutional limits. 260 U.S., at 414-415. If, instead, the uses of private property were sub­ject to unbridled, uncompensated qualification under the po­lice power, “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].” Id., at 415. These consid­erations gave birth in that case to the oft-cited maxim that, “while property may be regulated to a certain extent, if reg­ulation goes too far it will be recognized as a taking.” Ibid.

Nevertheless, our decision in Mahon offered little insight into when, and under what circumstances, a given regulation would be seen as going “too far” for purposes of the Fifth Amendment. In 70-odd years of succeeding “regulatory takings” jurisprudence, we have generally eschewed any “‘set formula’” for determining how far is too far, preferring to “engag[e] in . . . essentially ad hoc, factual inquiries.” Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978) (quoting Goldblatt v. Hempstead, 369 U.S. 590, 594 (1962)). See Epstein, Takings: Descent and Resur­rection, 1987 S. Ct. Rev. 1, 4. We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physi­cal “invasion” of his property. In general (at least with re­gard to permanent invasions), no matter how minute the in­trusion, and no matter how weighty the public purpose behind it, we have required compensation. For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), we determined that New York’s law requiring landlords to allow television cable companies to emplace cable facilities in their apartment buildings constituted a tak­ing, id., at 435-440, even though the facilities occupied at most only 1 1/2 cubic feet of the landlords’ property, see id., at 438, n. 16. See also United States v. Causby, 328 U.S. 256, 265, and n. 10 (1946) (physical invasions of airspace); cf. Kai­ser Aetna v. United States, 444 U.S. 164 (1979) (imposition of navigational servitude upon private marina).

The second situation in which we have found categorical treatment appropriate is where regulation denies all eco­nomically beneficial or productive use of land. See Agins, 447 U.S., at 260; see also Nollan v. California Coastal Comm’n, 483 U.S. 825, 834 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 295-296 (1981).6 As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests or denies an owner economically viable use of his land.” Agins, supra, at 260 (citations omitted) (emphasis added).7

We have never set forth the justification for this rule. Per­haps it is simply, as Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San Diego, 450 U.S., at 652 (dissenting opinion). “[F]or what is the land but the profits thereof[?]” 1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812). Surely, at least, in the extraordinary circumstance when no productive or economically beneficial use of land is permitted, it is less realistic to indulge our usual assumption that the legislature is simply “adjusting the benefits and bur­dens of economic life,” Penn Central Transportation Co., 438 U.S., at 124, in a manner that secures an “average reciproc­ity of advantage” to everyone concerned, Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415. And the functional basis for permitting the government, by regulation, to affect property values without compensation—that “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law,” id., at 413—does not apply to the relatively rare situations where the government has de­prived a landowner of all economically beneficial uses.

On the other side of the balance, affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use—typically, as here, by requir­ing land to be left substantially in its natural state—carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. See, e.g., Annicelli v. South Kingstown, 463 A. 2d 133, 140-141 (R. 1.1983) (prohi­bition on construction adjacent to beach justified on twin grounds of safety and “conservation of open space”); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N. J. 539, 552-553, 193 A. 2d 232, 240 (1963) (prohibition on filling marshlands imposed in order to pre­serve region as water detention basin and create wildlife refuge). As Justice Brennan explained: “From the gov­ernment's point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property.” San Diego Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equiva­lence in this setting of negative regulation and appropriation. See, e.g., 16 U.S.C. § 410ff-1(a) (authorizing acquisition of “lands, waters, or interests [within Channel Islands National Park] (including but not limited to scenic easements)”); § 460aa-2(a) (authorizing acquisition of “any lands, or lesser interests therein, including mineral interests and scenic easements” within Sawtooth National Recreation Area); §§ 3921-3923 (authorizing acquisition of wetlands); N.C. Gen. Stat. § 113A-38 (1990) (authorizing acquisition of, inter alia, “'scenic easements’” within the North Carolina natural and scenic rivers system); Tenn. Code Ann. §§ 11-15-101 to 11-­15-108 (1987) (authorizing acquisition of “protective ease­ments” and other rights in real property adjacent to State’s historic, architectural, archaeological, or cultural resources).

We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.8

B

The trial court found Lucas’s two beachfront lots to have been rendered valueless by respondent’s enforcement of the coastal-zone construction ban.9 Under Lucas’s theory of the case, which rested upon our "no economically viable use” statements, that finding entitled him to compensation. Lucas believed it unnecessary to take issue with either the purposes behind the Beachfront Management Act, or the means chosen by the South Carolina Legislature to effectu­ate those purposes. The South Carolina Supreme Court, however, thought otherwise. In its view, the Beachfront Management Act was no ordinary enactment, but involved an exercise of South Carolina’s “police powers” to mitigate the harm to the public interest that petitioner’s use of his land might occasion. 304 S.C., at 384, 404 S. E. 2d, at 899. By neglecting to dispute the findings enumerated in the Act10 or otherwise to challenge the legislature’s purposes, petitioner “concede[d] that the beach/dune area of South Car­olina's shores is an extremely valuable public resource; that the erection of new construction, inter alia, contributes to the erosion and destruction of this public resource; and that discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm.” Id, at 382-383, 404 S. E. 2d, at 898. In the court’s view, these concessions brought petitioner’s challenge within a long line of this Court’s cases sustaining against Due Proc­ess and Takings Clause challenges the State’s use of its “po­lice powers” to enjoin a property owner from activities akin to public nuisances. See Mugler v. Kansas, 123 U.S. 623 (1887) (law prohibiting manufacture of alcoholic beverages); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (law barring operation of brick mill in residential area); Miller v. Schoene, 276 U.S. 272 (1928) (order to destroy diseased cedar trees to prevent infection of nearby orchards); Goldblatt v. Hemp­stead, 369 U.S. 590 (1962) (law effectively preventing contin­ued operation of quarry in residential area).

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

“[T]he uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no ‘blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual.’ Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any sup­posed ‘noxious’ quality of the prohibited uses but rather on the ground that the restrictions were reasonably re­lated to the implementation of a policy—not unlike his­toric preservation—expected to produce a widespread public benefit and applicable to all similarly situated property.” 438 U.S., at 133-134, n. 30.

“Harmful or noxious use” analysis was, in other words, sim­ply the progenitor of our more contemporary statements that “land-use regulation does not effect a taking if it ‘substan­tially advance[s] legitimate state interests’. . . ." Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U.S., at 260); see also Penn Central Transportation Co., supra, at 127; Euclid v. Ambler Realty Co., 272 U.S. 365, 387-388 (1926).

The transition from our early focus on control of “noxious” uses to our contemporary understanding of the broad realm within which government may regulate without compensa­tion was an easy one, since the distinction between “harm-­preventing” and “benefit-conferring” regulation is often in the eye of the beholder. It is quite possible, for example, to describe in either fashion the ecological, economic, and es­thetic concerns that inspired the South Carolina Legislature in the present case. One could say that imposing a servi­tude on Lucas’s land is necessary in order to prevent his use of it from “harming” South Carolina’s ecological resources; or, instead, in order to achieve the “benefits” of an ecologi­cal preserve.11 Compare, e.g., Claridge v. New Hampshire Wetlands Board, 125 N. H. 745, 752, 485 A. 2d 287, 292 (1984) (owner may, without compensation, be barred from filling wetlands because landfilling would deprive adjacent coastal habitats and marine fisheries of ecological support), with, e.g., Bartlett v. Zoning Comm’n of Old Lyme) 161 Conn. 24, 30, 282 A. 2d 907, 910 (1971) (owner barred from filling tidal marshland must be compensated, despite municipality’s “laudable” goal of “preserv[ing] marshlands from encroach­ment or destruction”). Whether one or the other of the competing characterizations will come to one’s lips in a par­ticular case depends primarily upon one’s evaluation of the worth of competing uses of real estate. See Restatement (Second) of Torts § 822, Comment g, p. 112 (1979) (“Practi­cally all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference”). A given restraint will be seen as mitigating “harm” to the adjacent parcels or securing a “benefit” for them, depending upon the observer’s evaluation of the rela­tive importance of the use that the restraint favors. See Sax, Takings and the Police Power, 74 Yale L. J. 36,49 (1964) (“[T]he problem [in this area] is not one of noxiousness or harm-creating activity at all; rather it is a problem of in­consistency between perfectly innocent and independently desirable uses”). Whether Lucas’s construction of single-­family residences on his parcels should be described as bring­ing “harm” to South Carolina’s adjacent ecological resources thus depends principally upon whether the describer be­lieves that the State’s use interest in nurturing those re­sources is so important that any competing adjacent use must yield.12

When it is understood that “prevention of harmful use” was merely our early formulation of the police power justifi­cation necessary to sustain (without compensation) any regu­latory diminution in value; and that the distinction between regulation that “prevents harmful use” and that which “con­fers benefits” is difficult, if not impossible, to discern on an objective, value-free basis; it becomes self-evident that noxious-use logic cannot serve as a touchstone to distinguish regulatory “takings”—which require compensation—from regulatory deprivations that do not require compensation. A fortiori the legislature’s recitation of a noxious-use justifi­cation cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. If it were, departure would virtually always be allowed. The South Carolina Supreme Court’s approach would essentially nullify Mahon’s affirmation of limits to the noncompensable exercise of the police power. Our cases provide no support for this: None of them that employed the logic of “harmful use” prevention to sustain a regulation involved an allega­tion that the regulation wholly eliminated the value of the claimant’s land. See Keystone Bituminous Coal Assn., 480 U.S., at 513-514 (Rehnquist, C. J., dissenting).13

Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.14 This accords, we think, with our “takings” jurisprudence, which has traditionally been guided by the understandings of our citizens regarding the content of, and the State’s power over, the “bundle of rights” that they acquire when they obtain title to property. It seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; “[a]s long recognized, some values are enjoyed under an implied limitation and must yield to the police power.” Pennsylva­nia Coal Co. v. Mahon, 260 U.S., at 413. And in the case of personal property, by reason of the State’s traditionally high degree of control over commercial dealings, he ought to be aware of the possibility that new regulation might even ren­der his property economically worthless (at least if the prop­erty’s only economically productive use is sale or manufac­ture for sale). See Andrus v. Allard, 444 U.S. 51, 66-67 (1979) (prohibition on sale of eagle feathers). In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the “implied limitation” that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact re­corded in the Takings Clause that has become part of our constitutional culture.15

Where “permanent physical occupation” of land is con­cerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted “public interests” involved, Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S., at 426—though we as­suredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the land­owner’s title. Compare Scranton v. Wheeler, 179 U.S. 141, 163 (1900) (interests of “riparian owner in the submerged lands ... bordering on a public navigable water” held subject to Government’s navigational servitude), with Kaiser Aetna v. United States, 444 U.S., at 178-180 (imposition of naviga­tional servitude on marina created and rendered navigable at private expense held to constitute a taking). We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent land­owners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complemen­tary power to abate nuisances that affect the public gener­ally, or otherwise.16

On this analysis, the owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others’ land. Nor the cor­porate owner of a nuclear generating plant, when it is di­rected to remove all improvements from its land upon discov­ery that the plant sits astride an earthquake fault. Such regulatory action may well have the effect of eliminating the land’s only economically productive use, but it does not pro­scribe a productive use that was previously permissible under relevant property and nuisance principles. The use of these properties for what are now expressly prohibited purposes was always unlawful, and (subject to other consti­tutional limitations) it was open to the State at any point to make the implication of those background principles of nui­sance and property law explicit. See Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv. L. Rev. 1165, 1239-­1241 (1967). In light of our traditional resort to “existing rules or understandings that stem from an independent source such as state law” to define the range of interests that qualify for protection as “property” under the Fifth and Fourteenth Amendments, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); see, e.g., Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011-1012 (1984); Hughes v. Washington, 389 U.S. 290, 295 (1967) (Stewart, J., concurring), this recognition that the Takings Clause does not re­quire compensation when an owner is barred from putting land to a use that is proscribed by those “existing rules or understandings” is surely unexceptional. When, however, a regulation that declares “off-limits” all economically produc­tive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it.17

The “total taking” inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily en­tails) analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, posed by the claimant’s proposed activities, see, e.g., Re­statement (Second) of Torts §§ 826, 827, the social value of the claimant’s activities and their suitability to the locality in question, see, e.g., id., §§ 828(a) and (b), 881, and the rela­tive ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike, see, e.g., id., §§ 827(e), 828(c), 830. The fact that a particular use has long been en­gaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circum­stances or new knowledge may make what was previously permissible no longer so, see id., § 827, Comment g. So also does the fact that other landowners, similarly situated, are permitted to continue the use denied to the claimant.

It seems unlikely that common-law principles would have prevented the erection of any habitable or productive im­provements on petitioner’s land; they rarely support prohibi­tion of the “essential use” of land, Curtin v. Benson, 222 U.S. 78, 86 (1911). The question, however, is one of state law to be dealt with on remand. We emphasize that to win its case South Carolina must do more than proffer the legislature’s declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they vio­late a common-law maxim such as sic utere tuo ut alienum non laedas. As we have said, a “State, by ipse dixit, may not transform private property into public property without compensation . . . .” Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164 (1980). Instead, as it would be required to do if it sought to restrain Lucas in a common-­law action for public nuisanee, South Carolina must identify background principles of nuisance and property law that pro­hibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing.18

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

So ordered.

1

This specialized historical method of determining the baseline applied because the Beachwood East subdivision is located adjacent to a so-called "inlet erosion zone” (defined in the Act to mean "a segment of shoreline along or adjacent to tidal inlets which are directly influenced by the inlet and its associated shoals,” S.C. Code Ann. § 48-39-270(7) (Supp. 1988)) that is “not stabilized by jetties, terminal groins, or other structures,” § 48-39-280(A)(2). For areas other than these unstabilized inlet erosion zones, the statute directs that the baseline be established along “the crest of an ideal primary oceanfront sand dune.” § 48-39-280(A)(l).

2

The Act did allow the construction of certain nonhabitable improve­ments, e.g., “wooden walkways no larger in width than six feet,” and “small wooden decks no larger than one hundred forty-four square feet.” §§ 48-39-290(A)(l) and (2).

3

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

4

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

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

5

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

6

We will not attempt to respond to all of Justice Blackmun’s mistaken citation of case precedent. Characteristic of its nature is his assertion that the cases we discuss here stand merely for the proposition “that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial takings challenge” and not for the point that “denial of such use is sufficient to establish a takings claim regardless of any other consideration.” Post, at 1060, n. 11. The cases say, repeatedly and unmistakably, that “‘[t]he test to be applied in considering [a] facial [takings] challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it “denies an owner economically viable use of his land.”’” Keystone, 480 U.S., at 495 (quot­ing Hodel, 452 U.S., at 295-296 (quoting Agins, 447 U.S., at 260)) (empha­sis added).

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

7

Regrettably, the rhetorical force of our “deprivation of all economically feasible use” rule is greater than its precision, since the rule does not make clear the “property interest” against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole. (For an extreme—and, we think, unsupportable—view of the relevant calculus, see Penn Central Transportation Co. v. New York City, 42 N. Y. 2d 324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977), aff’d, 438 U.S. 104 (1978), where the state court examined the diminution in a partic­ular parcel’s value produced by a municipal ordinance in light of total value of the takings claimant’s other holdings in the vicinity.) Unsurprisingly, this uncertainty regarding the composition of the denominator in our “dep­rivation” fraction has produced inconsistent pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922) (law restricting subsurface extraction of coal held to effect a taking), with Key­stone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497-502 (1987) (nearly identical law held not to effect a taking); see also id., at 515-520 (Rehnquist, C. J., dissenting); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561,566-569 (1984). The answer to this difficult question may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property—i.e., whether and to what degree the State’s law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value. In any event, we avoid this difficulty in the present case, since the “interest in land” that Lucas has pleaded (a fee simple interest) is an estate with a rich tradition of protection at common law, and since the South Carolina Court of Common Pleas found that the Beachfront Management Act left each of Lucas’s beachfront lots without economic value.

8

Justice Stevens criticizes the “deprivation of all economically bene­ficial use” rule as “wholly arbitrary,” in that “[the] landowner whose prop­erty is diminished in value 95% recovers nothing,” while the landowner who suffers a complete elimination of value “recovers the land’s full value.” Post, at 1064. This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compen­sation. Such an owner might not be able to claim the benefit of our cate­gorical formulation, but, as we have acknowledged time and again, “[t]he economic impact of the regulation on the claimant and . . . the extent to which the regulation has interfered with distinct investment-backed expectations” are keenly relevant to takings analysis generally. Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978). It is true that in at least some cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in full. But that occasional result is no more strange than the gross disparity between the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is full of these “all-or-nothing" situations.

Justice Stevens similarly misinterprets our focus on “developmental” uses of property (the uses proscribed by the Beachfront Management Act) as betraying an “assumption that the only uses of property cognizable under the Constitution are developmental uses.” Post, at 1066, n. 3. We make no such assumption. Though our prior takings cases evince an abid­ing concern for the productive use of, and economic investment in, land, there are plainly a number of noneconomic interests in land whose impair­ment will invite exceedingly close scrutiny under the Takings Clause. See, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436 (1982) (interest in excluding strangers from one’s land).

9

This finding was the premise of the petition for certiorari, and since it was not challenged in the brief in opposition we decline to entertain the argument in respondent’s brief on the merits, see Brief for Respondent 45-50, that the finding was erroneous. Instead, we decide the question presented under the same factual assumptions as did the Supreme Court of South Carolina. See Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).

10

The legislature’s express findings include the following:

“The General Assembly finds that:

“(1) The beach/dune system along the coast of South Carolina is ex­tremely important to the people of this State and serves the following functions:

“(a) protects life and property by serving as a storm barrier which dissi­pates wave energy and contributes to shoreline stability in an economical and effective manner;

“(b) provides the basis for a tourism industry that generates approxi­mately two-thirds of South Carolina’s annual tourism industry revenue which constitutes a significant portion of the state’s economy. The tour­ists who come to the South Carolina coast to enjoy the ocean and dry sand beach contribute significantly to state and local tax revenues;

“(c) provides habitat for numerous species of plants and animals, several of which are threatened or endangered. Waters adjacent to the beach/dune system also provide habitat for many other marine species;

“(d) provides a natural health environment for the citizens of South Car­olina to spend leisure time which serves their physical and mental well-­being.

“(2) Beach/dune system vegetation is unique and extremely important to the vitality and preservation of the system.

“(3) Many miles of South Carolina’s beaches have been identified as crit­ically eroding.

“(4) ... [D]evelopment unwisely has been sited too close to the [beach/dune] system. This type of development has jeopardized the stability of the beaeh/dune system, accelerated erosion, and endangered adjacent property. It is in both the public and private interests to protect the system from this unwise development.

“(5) The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armor­ing devices have given a false sense of security to beachfront property owners. In reality, these hard structures, in many instances, have in­creased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry.

“(6) Erosion is a natural process which becomes a significant problem for man only when structures are erected in close proximity to the beach/dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. This space can be provided only by discouraging new construction in close prox­imity to the beach/dune system and encouraging those who have erected structures too close to the system to retreat from it.

“(8) It is in the state’s best interest to protect and to promote increased public access to South Carolina’s beaches for out-of-state tourists and South Carolina residents alike.” S.C. Code Ann. § 48-39-250 (Supp. 1991).

11

In the present case, in fact, some of the “[South Carolina] legislature’s ‘findings’” to which the South Carolina Supreme Court purported to defer in characterizing the purpose of the Act as “harm-preventing,” 304 S.C. 376, 385, 404 S. E. 2d 895, 900 (1991), seem to us phrased in “benefit-­conferring” language instead. For example, they describe the importance of a construction ban in enhancing “South Carolina’s annual tourism indus­try revenue,” S.C. Code Ann. § 48-39-250(l)(b) (Supp. 1991), in “provid­ing] habitat for numerous species of plants and animals, several of which are threatened or endangered,” § 48-39-250(l)(c), and in “provid[ing] a natural healthy environment for the citizens of South Carolina to spend leisure time which serves their physical and mental well-being,” § 48-39-­250(l)(d). It would be pointless to make the outcome of this case hang upon this terminology, since the same interests could readily be described in “harm-preventing” fashion.

Justice Blackmun, however, apparently insists that we must make the outcome hinge (exclusively) upon the South Carolina Legislature’s other, “harm-preventing” characterizations, focusing on the declaration that “prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion.” Post, at 1040. He says “[n]othing in the record undermines [this] assess­ment,” ibid., apparently seeing no significance in the fact that the statute permits owners of existing structures to remain (and even to rebuild if their structures are not “destroyed beyond repair,” S.C. Code Ann. § 48-39-290(B) (Supp. 1988)), and in the fact that the 1990 amendment authorizes the Council to issue permits for new construction in violation of the uniform prohibition, see S.C. Code Ann. § q48-39-290(D)(l) (Supp. 1991).

12

In Justice Blackmun’s view, even with respect to regulations that deprive an owner of all developmental or economically beneficial land uses, the test for required compensation is whether the legislature has recited a harm-preventing justification for its action. See post, at 1039, 1040-1041, 1047-1051. Since such a justification can be formulated in practically every case, this amounts to a test of whether the legislature has a stupid staff. We think the Takings Clause requires courts to do more than insist upon artful harm-preventing characterizations.

13

E.g., Mugler v. Kansas, 123 U.S. 623 (1887) (prohibition upon use of a building as a brewery; other uses permitted); Plymouth Coal Co. v. Pennsylvania, 232 U.S. 531 (1914) (requirement that “pillar” of coal be left in ground to safeguard mine workers; mineral rights could otherwise be exploited); Reinman v. Little Rock, 237 U.S. 171 (1915) (declaration that livery stable constituted a public nuisance; other uses of the property permitted); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (prohibition of brick manufacturing in residential area; other uses permitted); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (prohibition on excavation; other uses permitted).

14

Drawing on our First Amendment jurisprudence, see, e.g., Employ­ment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878-879 (1990), Justice Stevens would “loo[k] to the generality of a regulation of property” to determine whether compensation is owing. Post, at 1072. The Beachfront Management Act is general, in his view, because it “regulates the use of the coastline of the entire State.” Post, at 1074. There may be some validity to the principle Justice Stevens proposes, but it does not properly apply to the present case. The equiva­lent of a law of general application that inhibits the practice of religion without being aimed at religion, see Oregon v. Smith, supra, is a law that destroys the value of land without being aimed at land. Perhaps such a law—the generally applicable criminal prohibition on the manufacturing of alcoholic beverages challenged in Mugler comes to mind—cannot consti­tute a compensable taking. See 128 U.S., at 655-656. But a regulation specifically directed to land use no more acquires immunity by plundering landowners generally than does a law specifically directed at religious practice acquire immunity by prohibiting all religions. Justice Ste­vens’s approach renders the Takings Clause little more than a particular­ized restatement of the Equal Protection Clause.

15

After accusing us of “launch[ing] a missile to kill a mouse,” post, at 1036, Justice Blackmun expends a good deal of throw-weight of his own upon a noncombatant, arguing that our description of the “understanding” of land ownership that informs the Takings Clause is not supported by early American experience. That is largely true, but entirely irrelevant. The practices of the States prior to incorporation of the Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897)—which, as Justice Blackmun acknowledges, occasionally in­cluded outright physical appropriation of land without compensation, see post, at 1056—were out of accord with any plausible interpretation of those provisions. Justice Blackmun is correct that early constitutional theorists did not believe the Takings Clause embraced regulations of prop­erty at all, see post, at 1057-1058, and n. 23, but even he does not suggest (explicitly, at least) that we renounce the Court’s contrary conclusion in Mahon. Since the text of the Clause can be read to encompass regulatory as well as physical deprivations (in contrast to the text originally proposed by Madison, see Speech Proposing Bill of Rights (June 8, 1789), in 12 J. Madison, The Papers of James Madison 201 (C. Hobson, R. Rutland, W. Rachal, & J. Sisson ed. 1979) (“No person shall be ... obliged to relin­quish his property, where it may be necessary for public use, without a just compensation”), we decline to do so as well.

16

The principal “otherwise” that we have in mind is litigation absolving the State (or private parties) of liability for the destruction of “real and personal property, in cases of actual necessity, to prevent the spreading of a fire” or to forestall other grave threats to the lives and property of others. Bowditch v. Boston, 101 U.S. 16, 18-19 (1880); see United States v. Pacific R. Co., 120 U.S. 227, 238-239 (1887).

17

Of course, the State may elect to rescind its regulation and thereby avoid having to pay compensation for a permanent deprivation. See First English Evangelical Lutheran Church, 482 U.S., at 321. But “where the [regulation has] already worked a taking of all use of property, no sub­sequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Ibid.

18

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

Justice Kennedy,

concurring in the judgment.

The case comes to the Court in an unusual posture, as all my colleagues observe. Ante, at 1010-1011; post, at 1041 (Blackmun, J., dissenting); post, at 1061-1062 (Stevens, J., dissenting); post, at 1076-1077 (statement of Souter, J.). After the suit was initiated but before it reached us, South Carolina amended its Beachfront Management Act to author­ize the issuance of special permits at variance with the Act’s general limitations. See S.C. Code Ann. § 48-39-290(D)(l) (Supp. 1991). Petitioner has not applied for a special permit but may still do so. The availability of this alternative, if it can be invoked, may dispose of petitioner’s claim of a perma­nent taking. As I read the Court’s opinion, it does not de­cide the permanent taking claim, but neither does it foreclose the Supreme Court of South Carolina from considering the claim or requiring petitioner to pursue an administrative al­ternative not previously available.

The potential for future relief does not control our disposi­tion, because whatever may occur in the future cannot undo what has occurred in the past. The Beachfront Manage­ment Act was enacted in 1988. S.C. Code Ann. § 48-39-250 et seq. (Supp. 1990). It may have deprived petitioner of the use of his land in an interim period. § 48-39-290(A). If this deprivation amounts to a taking, its limited duration will not bar constitutional relief. It is well established that temporary takings are as protected by the Constitution as are permanent ones. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987).

The issues presented in the case are ready for our decision. The Supreme Court of South Carolina decided the case on constitutional grounds, and its rulings are now before us. There exists no jurisdictional bar to our disposition, and pru­dential considerations ought not to militate against it. The State cannot complain of the manner in which the issues arose. Any uncertainty in this regard is attributable to the State, as a consequence of its amendment to the Beachfront Management Act. If the Takings Clause is to protect against temporary deprivations, as well as permanent ones, its enforcement must not be frustrated by a shifting back­ground of state law.

Although we establish a framework for remand, moreover, we do not decide the ultimate question whether a temporary taking has occurred in this case. The facts necessary to the determination have not been developed in the record. Among the matters to be considered on remand must be whether petitioner had the intent and capacity to develop the property and failed to do so in the interim period because the State prevented him. Any failure by petitioner to com­ply with relevant administrative requirements will be part of that analysis.

The South Carolina Court of Common Pleas found that petitioner’s real property has been rendered valueless by the State’s regulation. App. to Pet. for Cert. 37. The finding appears to presume that the property has no significant mar­ket value or resale potential. This is a curious finding, and I share the reservations of some of my colleagues about a finding that a beachfront lot loses all value because of a de­velopment restriction. Post, at 1043-1045 (Blackmun, J., dissenting); post, at 1065, n. 3 (Stevens, J., dissenting); post, at 1076 (statement of Souter, J.). While the Supreme Court of South Carolina on remand need not consider the case subject to this constraint, we must accept the finding as entered below. See Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Accepting the finding as entered, it follows that petitioner is entitled to invoke the line of cases discussing regulations that deprive real property of all economic value. See Agins v. City of Tiburon, 447 U.S. 255, 260 (1980).

The finding of no value must be considered under the Takings Clause by reference to the owner’s reasonable, investment-backed expectations. Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Central Transporta­tion Co. v. New York City, 438 U.S. 104, 124 (1978); see also W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935). The Takings Clause, while conferring substantial protection on property owners, does not eliminate the police power of the State to enact limitations on the use of their property. Mugler v. Kansas, 123 U.S. 623, 669 (1887). The rights con­ferred by the Takings Clause and the police power of the State may coexist without conflict. Property is bought and sold, investments are made, subject to the State’s power to regulate. Where a taking is alleged from regulations which deprive the property of all value, the test must be whether the deprivation is contrary to reasonable, investment-­backed expectations.

There is an inherent tendency towards circularity in this synthesis, of course; for if the owner’s reasonable expecta­tions are shaped by what courts allow as a proper exercise of governmental authority, property tends to become what courts say it is. Some circularity must be tolerated in these matters, however, as it is in other spheres. E.g., Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment pro­tections defined by reasonable expectations of privacy). The definition, moreover, is not circular in its entirety. The expectations protected by the Constitution are based on ob­jective rules and customs that can be understood as reason­able by all parties involved.

In my view, reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regula­tory power in a complex and interdependent society. Gold­blatt v. Hempstead, 369 U.S. 590, 593 (1962). The State should not be prevented from enacting new regulatory initia­tives in response to changing conditions, and courts must consider all reasonable expectations whatever their source. The Takings Clause does not require a static body of state property law; it protects private expectations to ensure pri­vate investment. I agree with the Court that nuisance pre­vention accords with the most common expectations of prop­erty owners who face regulation, but I do not believe this can be the sole source of state authority to impose severe restrictions. Coastal property may present such unique concerns for a fragile land system that the State can go fur­ther in regulating its development and use than the common law of nuisance might otherwise permit.

The Supreme Court of South Carolina erred, in my view, by reciting the general purposes for which the state regula­tions were enacted without a determination that they were in accord with the owner’s reasonable expectations and therefore sufficient to support a severe restriction on specific parcels of property. See 304 S.C. 376,383,404 S. E. 2d 895, 899 (1991). The promotion of tourism, for instance, ought not to suffice to deprive specific property of all value without a corresponding duty to compensate. Furthermore, the means, as well as the ends, of regulation must accord with the owner’s reasonable expectations. Here, the State did not act until after the property had been zoned for individual lot development and most other parcels had been improved, throwing the whole burden of the regulation on the remain­ing lots. This too must be measured in the balance. See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

With these observations, I concur in the judgment of the Court.

Justice Blackmun,

dissenting.

Today the Court launches a missile to kill a mouse.

The State of South Carolina prohibited petitioner Lucas from building a permanent structure on his property from 1988 to 1990. Relying on an unreviewed (and implausible) state trial court finding that this restriction left Lucas’ prop­erty valueless, this Court granted review to determine whether compensation must be paid in cases where the State prohibits all economic use of real estate. According to the Court, such an occasion never has arisen in any of our prior cases, and the Court imagines that it will arise “relatively rarely” or only in “extraordinary circumstances.” Almost certainly it did not happen in this case.

Nonetheless, the Court presses on to decide the issue, and as it does, it ignores its jurisdictional limits, remakes its tra­ditional rules of review, and creates simultaneously a new categorical rule and an exception (neither of which is rooted in our prior case law, common law, or common sense). I pro­test not only the Court’s decision, but each step taken to reach it. More fundamentally, I question the Court’s wis­dom in issuing sweeping new rules to decide such a narrow case. Surely, as Justice Kennedy demonstrates, the Court could have reached the result it wanted without in­flicting this damage upon our Takings Clause jurisprudence.

My fear is that the Court’s new policies will spread beyond the narrow confines of the present case. For that reason, I, like the Court, will give far greater attention to this case than its narrow scope suggests—not because I can intercept the Court’s missile, or save the targeted mouse, but because I hope perhaps to limit the collateral damage.

I

A

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

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

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

B

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

C

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

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

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

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

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

II

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

This rule is “compelled by the very nature of the inquiry required by the Just Compensation Clause,” because the fac­tors applied in deciding a takings claim “simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regu­lations at issue to the particular land in question.” William­son County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 190, 191 (1985). See also MacDonald, Sommer & Frates, 477 U.S., at 348 (“A court cannot determine whether a regulation has gone ‘too far’ un­less it knows how far the regulation goes”) (citation omitted).

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

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

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

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

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

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

Even if I agreed with the Court that there were no juris­dictional barriers to deciding this case, I still would not try to decide it. The Court creates its new takings jurispru­dence based on the trial court’s finding that the property had lost all economic value.6 This finding is almost certainly erroneous. Petitioner still can enjoy other attributes of ownership, such as the right to exclude others, “one of the most essential sticks in the bundle of rights that are com­monly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979). Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer. State courts frequently have recognized that land has eco­nomic value where the only residual economic uses are recre­ation or camping. See, e.g., Turnpike Realty Co. v. Ded­ham, 362 Mass. 221, 284 N. E. 2d 891 (1972); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972), cert. denied, 409 U.S. 1108 (1973); Hall v. Board of Environmental Protection, 528 A. 2d 453 (Me. 1987). Peti­tioner also retains the right to alienate the land, which would have value for neighbors and for those prepared to enjoy proximity to the ocean without a house.

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

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

III

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

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

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

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

IV

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

A

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

This Court repeatedly has recognized the ability of gov­ernment, in certain circumstances, to regulate property without compensation no matter how adverse the financial effect on the owner may be. More than a century ago, the Court explicitly upheld the right of States to prohibit uses of property injurious to public health, safety, or welfare without paying compensation: “A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property.” Mugler v. Kansas, 123 U.S., at 668-669. On this basis, the Court upheld an ordi­nance effectively prohibiting operation of a previously lawful brewery, although the “establishments will become of no value as property.” Id., at 664; see also id., at 668.

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

More recently, in Goldblatt, the Court upheld a town regu­lation that barred continued operation of an existing sand and gravel operation in order to protect public safety. 369 U.S., at 596. “Although a comparison of values before and after is relevant,” the Court stated, “it is by no means conclusive.”9 Id., at 594. In 1978, the Court declared that “in instances in which a state tribunal reasonably concluded that ‘the health, safety, morals, or general welfare’ would be pro­moted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulation that destroyed ... recognized real property interests.” Penn Central Transp. Co., 438 U.S., at 125. In First English Evangelical Lu­theran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), the owner alleged that a floodplain ordinance had deprived it of “all use” of the property. Id, at 312. The Court remanded the case for consideration whether, even if the ordinance denied the owner all use, it could be justified as a safety measure.10 Id., at 313. And in Key­stone Bituminous Coal, the Court summarized over 100 years of precedent: “[T]he Court has repeatedly upheld regu­lations that destroy or adversely affect real property intere­sts.”11 480 U.S., at 489, n. 18.

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

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

B

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

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

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

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

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

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

C

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

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

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

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

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

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

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

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

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

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

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

V

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

I dissent.

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

Justice Stevens,

dissenting.

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

I

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

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

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

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

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

II

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

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

The Categorical Rule

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

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

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

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

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

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

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

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

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

The Nuisance Exception

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

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

“It is true, that, when the defendants . .. erected their breweries, the laws of the State did not forbid the manu­facture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obliga­tion, that its legislation upon that subject would remain unchanged. [T]he supervision of the public health and the public morals is a governmental power, ‘continuing in its nature,’ and ‘to be dealt with as the special exigen­cies of the moment may require;’ .. . ‘for this purpose, the largest legislative discretion is allowed, and the dis­cretion cannot be parted with any more than the power itself.’” Id., at 669.

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

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

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

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

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

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

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

III

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

The Just Compensation Clause “was designed to bar Gov­ernment from forcing some people alone to bear public bur­dens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong, 364 U.S., at 49. Ac­cordingly, one of the central concerns of our takings ju­risprudence is “prevent[ing] the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893). We have, therefore, in our takings law frequently looked to the generality of a regula­tion of property.7

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

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

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

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

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

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

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

Accordingly, I respectfully dissent.

Statement of Justice Souter.

I would dismiss the writ of certiorari in this case as having been granted improvidently. After briefing and argument it is abundantly clear that an unreviewable assumption on which this case comes to us is both questionable as a conclu­sion of Fifth Amendment law and sufficient to frustrate the Court’s ability to render certain the legal premises on which its holding rests.

The petition for review was granted on the assumption that the State by regulation had deprived the owner of his entire economic interest in the subject property. Such was the state trial court’s conclusion, which the State Supreme Court did not review. It is apparent now that in light of our prior cases, see, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 493-502 (1987); Andrus v. Al­lard, 444 U.S. 51, 65-66 (1979); Penn Central Transporta­tion Corp. v. New York City, 438 U.S. 104, 130-131 (1978), the trial court’s conclusion is highly questionable. While the respondent now wishes to contest the point, see Brief for Respondent 45-50, the Court is certainly right to refuse to take up the issue, which is not fairly included within the question presented, and has received only the most superfi­cial and one-sided treatment before us.

Because the questionable conclusion of total deprivation cannot be reviewed, the Court is precluded from attempting to clarify the concept of total (and, in the Court’s view, cate­gorically compensable) taking on which it rests, a concept which the Court describes, see ante, at 1016-1017, n. 6, as so uncertain under existing law as to have fostered inconsistent pronouncements by the Court itself. Because that concept is left uncertain, so is the significance of the exceptions to the compensation requirement that the Court proceeds to recog­nize. This alone is enough to show that there is little utility in attempting to deal with this case on the merits.

The imprudence of proceeding to the merits in spite of these unpromising circumstances is underscored by the fact that, in doing so, the Court cannot help but assume some­thing about the scope of the uncertain concept of total depri­vation, even when it is barred from explicating total dep­rivation directly. Thus, when the Court concludes that the application of nuisance law provides an exception to the gen­eral rule that complete denial of economically beneficial use of property amounts to a compensable taking, the Court will be understood to suggest (if it does not assume) that there are in fact circumstances in which state-law nuisance abate­ment may amount to a denial of all beneficial land use as that concept is to be employed in our takings jurisprudence under the Fifth and Fourteenth Amendments. The nature of nui­sance law, however, indicates that application of a regulation defensible on grounds of nuisance prevention or abatement will quite probably not amount to a complete deprivation in fact. The nuisance enquiry focuses on conduct, not on the character of the property on which that conduct is per­formed, see 4 Restatement (Second) of Torts § 821B (1979) (public nuisance); id., § 822 (private nuisance), and the reme­dies for such conduct usually leave the property owner with other reasonable uses of his property, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 90 (5th ed. 1984) (public nuisances usually reme­died by criminal prosecution or abatement), id., § 89 (private nuisances usually remedied by damages, injunction, or abate­ment); see also, e.g., Mugler v. Kansas, 128 U.S. 623, 668-­669 (1887) (prohibition on use of property to manufacture intoxicating beverages “does not disturb the owner in the control or use of his property for lawful purposes, nor re­strict his right to dispose of it, but is only a declaration by the State that its use ... for certain forbidden purposes, is prejudicial to the public interests”); Hadacheck v. Sebastian, 239 U.S. 394, 412 (1915) (prohibition on operation of brick­yard did not prohibit extraction of clay from which bricks were produced). Indeed, it is difficult to imagine property that can be used only to create a nuisance, such that its sole economic value must presuppose the right to occupy it for such seriously noxious activity.

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

1

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

2

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

3

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

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

4

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

5

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

6

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

7

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

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

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

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

8

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

9

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

10

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

11

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

12

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

13

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

No. 00-1167.

TAHOE-SIERRA PRESERVATION COUNCIL, INC., et al. v. TAHOE REGIONAL PLANNING AGENCY et al.

Decided April 23, 2002

Argued January 7, 2002 —

with whom Justice Scalia and Justice Thomas join,

with whom Justice Scalia joins,

Michael M. Berger argued the cause for petitioners. With him on the briefs were Gideon Kanner and Lawrence L. Hoffman.

John G. Roberts, Jr., argued the cause for respondents. With him on the brief were Frankie Sue Del Papa, Attorney General of Nevada, and William J. Frey, Deputy Attorney General, Bill Lockyer, Attorney General of California, Rich­ard M. Frank, Chief Assistant Attorney General, Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, E. Clement Shute, Jr., Fran M. Layton, Ellison Folk, John L. Marshall, and Richard J. Lazarus.

Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Assistant Attorney General Cruden, Deputy Solicitor General Kneedler, and Malcolm L. Stewart.*

*

Briefs of amici curiae urging reversal were filed for the American Association of Small Property Owners et al. by Martin S. Kaufman; for the American Farm Bureau Federation et al. by John J. Rademacher and Nancy McDonough; for the Institute for Justice by William H. Mellor, Clint Bolick, Scott Bullock, and Richard A. Epstein; for the National Association of Home Builders by Christopher G. Senior and David Crump; for the Pacific Legal Foundation et al. by R. S. Radford, June Babiracki Barlow, and Sonia M. Younglove; and for the Washington Legal Founda­tion by Daniel J. Popeo, Rickard A. Samp, and Douglas B. Levene.

Briefs of amici curiae urging affirmance were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Bridget Asay, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Richard Blumentkal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Tkomas F. Reilly of Massachusetts, Mike McGrath of Montana, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Roy Cooper of North Carolina, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodriguez of Puerto Rico, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Ten­nessee, John Cornyn of Texas, and Christine O. Gregoire of Washington; for the American Planning Association et al. by Robert H. Freilich; for the Council of State Governments et al. by Richard Ruda and Timothy J. Dowling; for the National Audubon Society et al. by John D. Echeverria; and for Thomas Dunne et al. by Karl M. Manheim.

Nancie G. Marzulla filed a brief for Defenders of Property Rights as amicus curiae.

Justice Stevens

delivered the opinion of the Court.

The question presented is whether a moratorium on de­velopment imposed during the process of devising a com­prehensive land-use plan constitutes a per se taking of prop­erty requiring compensation under the Takings Clause of the United States Constitution.1 This case actually involves two moratoria ordered by respondent Tahoe Regional Plan­ning Agency (TRPA) to maintain the status quo while study­ing the impact of development on Lake Tahoe and design­ing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Reso­lution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property sub­ject to TRPA’s jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two per­manent plans that TRPA adopted thereafter will clarify the narrow scope of our holding.

The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is “uniquely beautiful,” 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that Presi­dent Clinton was right to call it a “‘national treasure that must be protected and preserved,’” ibid., and that Mark Twain aptly described the clarity of its waters as “‘not merely transparent, but dazzlingly, brilliantly so,’” ibid. (emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)).

Lake Tahoe’s exceptional clarity is attributed to the ab­sence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters.2 Unfortunately, the lake’s pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threat­ened the “‘noble sheet of blue water’” beloved by Twain and countless others. 34 F. Supp. 2d, at 1230. As the Dis­trict Court found, “[d]ramatic decreases in clarity first began to be noted in the late 1950’s/early 1960’s, shortly after devel­opment at the lake began in earnest.” Id., at 1231. The lake’s unsurpassed beauty, it seems, is the wellspring of its undoing.

The upsurge of development in the area has caused “in­creased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin result­ing from that development.” Ibid.

“Impervious coverage—such as asphalt, concrete, build­ings, and even packed dirt—prevents precipitation from being absorbed by the soil. Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area—especially one covered with indige­nous vegetation, which softens the impact of the rain­drops themselves.” Ibid.

Given this trend, the District Court predicted that “unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity.”3

Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered “high hazard” lands. Moreover, certain areas near streams or wetlands known as “Stream Environment Zones” (SEZs) are especially vulnerable to the impact of development be­cause, in their natural state, they act as filters for much of the debris that runoff carries. Because “[t]he most ob­vious response to this problem ... is to restrict develop­ment around the lake—especially in SEZ lands, as well as in areas already naturally prone to runoff,” id., at 1232, con­servation efforts have focused on controlling growth in these high hazard areas.

In the 1960’s, when the problems associated with the burgeoning development began to receive significant atten­tion, jurisdiction over the Basin, which occupies 501 square miles, was shared by the States of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two States adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats, no. 998, p. 1900, § 1; 1968 Nev. Stats, p. 4, which Congress approved in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set goals for the protection and preser­vation of the lake and created TRPA as the agency assigned “to coordinate and regulate development in the Basin and to conserve its natural resources.” Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 394 (1979).

Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance that divided the land in the Basin into seven “land capability districts,” based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a “land coverage coefficient—a recommended limit on the percentage of such land that could be covered by impervious surface.” Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1, 2, and 3 is characterized as “high hazard” or “sensitive,” while land in districts 4, 5, 6, and 7 is “low hazard” or “non-sensitive.” The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, at 1232.

Unfortunately, the 1972 ordinance allowed numerous ex­ceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRPA that it withdrew its financial support and uni­laterally imposed stricter regulations on the part of the Basin located in California. Eventually the two States, with the approval of Congress and the President, adopted an ex­tensive amendment to the compact that became effective on December 19, 1980. Pub. L. 96-551, 94 Stat. 3233; Cal. Govt. Code Ann. § 66801 (West Supp. 2002); Nev. Rev. Stat. § 277.200 (1980).

The 1980 Tahoe Regional Planning Compact (Compact) re­defined the structure, functions, and voting procedures of TRPA, App. 37, 94 Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed it to develop regional “environmental thresh­old carrying capacities”—a term that embraced “standards for air quality, water quality, soil conservation, vegetation preservation and noise.” 94 Stat. 3235,3239. The Compact provided that TRPA “shall adopt” those standards within 18 months, and that “[w]ithin 1 year after” their adoption (i.e., by June 19,1983), it “shall” adopt an amended regional plan that achieves and maintains those carrying capacities. Id., at 3240. The Compact also contained a finding by the legislatures of California and Nevada “that in order to make effective the regional plan as revised by [TRPA], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan.” Id., at 3243. Accord­ingly, for the period prior to the adoption of the final plan (“or until May 1, 1983, whichever is earlier”), the Compact itself prohibited the development of new subdivisions, condo­miniums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978.4

During this period TRPA was also working on the de­velopment of a regional water quality plan to comply with the Clean Water Act, 33 U.S.C. § 1288 (1994 ed.). Despite the fact that TRPA performed these obligations in “good faith and to the best of its ability,” 34 F. Supp. 2d, at 1233, after a few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two moratoria on development that petitioners challenge in this pro­ceeding. The ordinance provided that it would become ef­fective on August 24, 1981, and remain in effect pending, the adoption of the permanent plan required by the Compact. App. 159, 191.

The District Court made a detailed analysis of the ordi­nance, noting that it might even prohibit hiking or pic­nicking on SEZ lands, but construed it as essentially ban­ning any construction or other activity that involved the removal of vegetation or the creation of land coverage on all SEZ lands, as well as on class 1, 2, and 3 lands in California. 34 F. Supp. 2d, at 1233-1235. Some permits could be ob­tained for such construction in Nevada if certain findings were made. Id., at 1235. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new resi­dences on SEZ lands in either State and on class 1, 2, and 3 lands in California.

Given the complexity of the task of defining “environ­mental threshold carrying capacities” and the division of opinion within TRPA’s governing board, the District Court found that it was “unsurprising” that TRPA failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Ibid. Under a liberal reading of the Compact, TRPA then had until August 26, 1983, to adopt a new regional plan. 94 Stat. 3240. “Unfortunately, but again not surprisingly, no regional plan was in place as of that date.” 34 F. Supp. 2d, at 1235. TRPA therefore adopted Resolution 83-21, “which completely suspended all project reviews and approvals, including the acceptance of new proposals,” and which remained in effect until a new regional plan was adopted on April 26, 1984. Thus, Resolu­tion 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In com­bination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case.

On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implemen­tation on the ground that it failed to establish land-use con­trols sufficiently stringent to protect the Basin. Id., at 1236. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a com­pletely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions.

II

Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRPA and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Pres­ervation Council, Inc., a nonprofit membership corporation representing about 2,000 owners of both improved and unim­proved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing “at a time of their choosing” a single-family home “to serve as a permanent, retirement or vacation residence,” id., at 86. When they made those pur­chases, they did so with the understanding that such con­struction was authorized provided that “they complied with all reasonable requirements for building.” Ibid.5

Petitioners’ complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions.6 For present purposes, however, we need only describe those courts’ disposition of the claim that three actions taken by TRPA—Ordinance 81-5, Resolution 83-21, and the 1984 regional plan—constituted takings of peti­tioners’ property without just compensation.7 Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari.8 Thus, we limit our discussion to the lower courts’ disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21).

The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restric­tion on the owner’s use of her property that it produces “nearly the same result as a direct appropriation.” 34 F. Supp. 2d, at 1238. The court noted that all of the claims in this case “are of the ‘regulatory takings’ variety.” Id., at 1239. Citing our decision in Agins v. City of Tiburon, 447 U.S. 255 (1980), it then stated that a “regulation will con­stitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land.” 34 F. Supp. 2d, at 1239. The District Court rejected the first alterna­tive based on its finding that “further development on high hazard lands such as [petitioners’] would lead to significant additional damage to the lake.” Id., at 1240.9 With respect to the second alternative, the court first considered whether the analysis adopted in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), would lead to the conclusion that TRPA had effected a “partial taking,” and then whether those actions had effected a “total taking.”10

Emphasizing the temporary nature of the regulations, the testimony that the “average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years,” and the failure of petitioners to offer specific evidence of harm, the District Court concluded that “consideration of the Penn Central factors clearly leads to the conclusion that there was no taking.” 34 F. Supp. 2d, at 1240. In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the “average” pur­chasers’ intent and found that such purchasers “did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit.” Id., at 1241.11

The District Court had more difficulty with the “total taking” issue. Although it was satisfied that petitioners’ property did retain some value during the moratoria,12 it found that they had been temporarily deprived of “all eco­nomically viable use of their land.” Id., at 1245. The court concluded that those actions therefore constituted “cate­gorical” takings under our decision in Lucas v. South Caro­lina Coastal Council, 505 U.S. 1003 (1992). It rejected TRPA’s response that Ordinance 81-5 and Resolution 83-­21 were “reasonable temporary planning moratoria” that should be excluded from Lucas’ categorical approach. The court thought it “fairly clear” that such interim actions would not have been viewed as takings prior to our deci­sions in Lucas and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), because “[z]oning boards, cities, counties and other agencies used them all the time to ‘maintain the status quo pending study and governmental decision making.’” 34 F. Supp. 2d, at 1248-1249 (quoting Williams v. Central, 907 P. 2d 701, 706 (Colo. App. 1995)). After expressing uncer­tainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRPA’s actions did so, partly because neither the ordinance nor the resolution, even though in­tended to be temporary from the beginning, contained an express termination date. 34 F. Supp. 2d, at 1250-1251.13 Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24, 1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Id., at 1255.

Both parties appealed. TRPA successfully challenged the District Court’s takings determination, and petitioners un­successfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court’s findings or conclusions con­cerning its application of Penn Central. With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument “that the regulations con­stitute a taking under the ad hoc balancing approach de­scribed in Penn Central” and that they did not “dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact.”14 Accordingly, the only question before the court was “whether the rule set forth in Lucas applies—that is, whether a cate­gorical taking occurred because Ordinance 81-5 and Reso­lution 83-21 denied the plaintiffs ‘all economically benefi­cial or productive use of land.’” 216 F. 3d 764, 773 (2000). Moreover, because petitioners brought only a facial chal­lenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking.

Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners’ fee interest in the properties, no categorical taking had occurred. It reasoned:

“Property interests may have many different dimen­sions. For example, the dimensions of a property in­terest may include a physical dimension (which de­scribes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs’ argument is that we should conceptually sever each plaintiff’s fee interest into discrete segments in at least one of these dimensions—the temporal one—and treat each of those segments as separate and dis­tinct property interests for purposes of takings analysis. Under this theory, they argue that there was a cate­gorical taking of one of those temporal segments.” Id., at 774.

Putting to one side “cases of physical invasion or occupa­tion,” ibid., the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a “planning regulation that prevents the development of a parcel for a temporary pe­riod of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type of use across all of the parcel.” Id., at 776. In each situa­tion, a regulation that affects only a portion of the parcel—whether limited by time, use, or space—does not deprive the owner of all economically beneficial use.15

The Court of Appeals distinguished Lucas as applying to the “‘relatively rare’” case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a “temporal ‘slice’” of the fee interest and a form of regulation that is widespread and well established. 216 F. 3d, at 773-774. It also rejected petitioners’ argument that our decision in First English was controlling. Accord­ing to the Court of Appeals, First English concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has occurred. 216 F. 3d, at 778. Faced squarely with the question whether a taking had occurred, the court held that Penn Central was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District Court’s conclusion that they could not make out a taking claim under the Penn Central factors.

Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en banc. 228 F. 3d 998 (2000). In the dissenters’ opinion, the panel’s holding was not faithful to this Court’s decisions in First English and Lucas, nor to Jus­tice Holmes admonition in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922), that “‘a strong public desire to improve the public condition is not enough to warrant achiev­ing the desire by a shorter cut than the constitutional way of paying for the change.’” 228 F. 3d, at 1003. Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. 533 U.S. 948 (2001). We now affirm.

III

Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enact­ment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to com­pensate her for the value of its use during that period. Hence, they “face an uphill battle,” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987), that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners’ investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for im­posing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation—no matter how brief—of all economically viable use to trig­ger a per se rule that a taking has occurred. Petitioners assert that our opinions in First English and Lucas have already endorsed their view, and that it is a logical applica­tion of the principle that the Takings Clause was “designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

We shall first explain why our cases do not support their proposed categorical rule—indeed, fairly read, they implic­itly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither “yes, always” nor “no, never”; the answer depends upon the par­ticular circumstances of the case.16 Resisting “[t]he temp­tation to adopt what amount to per se rules in either direc­tion,” Palazzolo v. Rhode Island, 533 U.S. 606, 636 (2001) (O’Connor, J., concurring), we conclude that the circum­stances in this case are best analyzed within the Penn Cen­tral framework.

IV

The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regu­latory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical ap­propriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from making certain uses of her private property.17 Our juris­prudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regula­tory takings jurisprudence, in contrast, is of more recent vintage and is characterized by “essentially ad hoc, fac­tual inquiries,” Penn Central, 438 U.S., at 124, designed to allow “careful examination and weighing of all the relevant circumstances.” Palazzolo, 533 U.S., at 636 (O’Connor, J., concurring).

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

This longstanding distinction between acquisitions of prop­erty for public use, on the one hand, and regulations pro­hibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a “regulatory taking,”18 and vice versa. For the same rea­son that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings con­text to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential way—often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater af­front to individual property rights.19 “This case does not present the ‘classi[c] taking’ in which the government di­rectly appropriates private property for its own use,” East­ern Enterprises v. Apfel, 524 U.S. 498, 522 (1998); instead the interference with property rights “arises from some public program adjusting the benefits and burdens of eco­nomic life to promote the common good,” Penn Central, 438 U.S., at 124.

Perhaps recognizing this fundamental distinction, peti­tioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)—a regulatory takings case that, never­theless, applied a categorical rule—to argue that the Penn Central framework is inapplicable here. A brief review of some of the cases that led to our decision in Lucas, however, will help to explain why the holding in that case does not answer the question presented here.

As we noted in Lucas, it was Justice Holmes’ opinion in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922),20 that gave birth to our regulatory takings jurisprudence.21 In subsequent opinions we have repeatedly and consistently endorsed Holmes’ observation that “if regulation goes too far it will be recognized as a taking.” Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes “too far,” but he did reject the view ex­pressed in Justice Brandeis’ dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.22. After Mahon, neither a physical appropriation nor a public use has ever been a necessary component of a “regulatory taking.”

In the decades following that decision, we have “generally eschewed” any set formula for determining how far is too far, choosing instead to engage in “‘essentially ad hoc, fac­tual inquiries.’” Lucas, 505 U.S., at 1015 (quoting Penn Central, 438 U.S., at 124). Indeed, we still resist the temp­tation to adopt per se rules in our cases involving par­tial regulatory takings, preferring to examine “a number of factors” rather than a simple “mathematically precise” formula.23 Justice Brennan’s opinion for the Court in Penn Central did, however, make it clear that even though mul­tiple factors are relevant in the analysis of regulatory tak­ings claims, in such cases we must focus on “the parcel as a whole”:

“‘Taking’ jurisprudence does not divide a single par­cel into discrete segments and attempt to determine whether rights in a particular segment have been en­tirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole—here, the city tax block desig­nated as the ‘landmark site.’” Id., at 130-131.

This requirement that “the aggregate must be viewed in its entirety” explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. Andrus v. Allard, 444 U.S. 51, 66 (1979). It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, Gorieb v. Fox, 274 U.S. 603 (1927), or a require­ment that coal pillars be left in place to prevent mine sub­sidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S., at 498, were not considered regulatory takings. In each of these cases, we affirmed that “where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking.” Andrus, 444 U.S., at 65-66.

While the foregoing cases considered whether particular regulations had “gone too far” and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is established. In his dissenting opinion in San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 636 (1981), Justice Brennan identified that question and explained how he would answer it:

“The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a ‘taking,’ the government entity must pay just compen­sation for the period commencing on the date the regula­tion first effected the ‘taking,’ and ending on the date the government entity chooses to rescind or otherwise amend the regulation.” Id., at 658.

Justice Brennan’s proposed rule was subsequently endorsed by the Court in First English, 482 U.S., at 315, 318, 321. First English was certainly a significant decision, and noth­ing that we say today qualifies its holding. Nonetheless, it is important to recognize that we did not address in that case the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking.

In First English, the Court unambiguously and repeatedly characterized the issue to be decided as a “compensation question” or a “remedial question.” Id., at 311 (“The dispo­sition of the case on these grounds isolates the remedial question for our consideration”); see also id., at 313, 318. And the Court’s statement of its holding was equally unam­biguous: “We merely hold that where the government’s activ­ities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” Id., at 321 (emphasis added). In fact, First English expressly disavowed any ruling on the merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. Id., at 312-313 (“We reject appellee’s suggestion that... we must independently evalu­ate the adequacy of the complaint and resolve the takings claim on the merits before we can reach the remedial ques­tion”). After our remand, the California courts concluded that there had not been a taking, First English Evangelical Church of Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we declined review of that decision, 493 U.S. 1056 (1990).

To the extent that the Court in First English referenced the antecedent takings question, we identified two reasons why a regulation temporarily denying an owner all use of her property might not constitute a taking. First, we rec­ognized that “the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State’s author­ity to enact safety regulations.” 482 U.S., at 313. Second, we limited our holding “to the facts presented” and recog­nized “the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which [were] not before us.” Id., at 321. Thus, our decision in First English surely did not approve, and implicitly rejected, the categorical submission that petitioners are now advocating.

Similarly, our decision in Lucas is not dispositive of the question presented. Although Lucas endorsed and applied a categorical rule, it was not the one that petitioners propose. Lucas purchased two residential lots in 1988 for $975,000. These lots were rendered “valueless” by a statute enacted two years later. The trial court found that a taking had occurred and ordered compensation of $1,232,387.50, repre­senting the value of the fee simple estate, plus interest. As the statute read at the time of the trial, it effected a taking that “was unconditional and permanent.” 505 U.S., at 1012. While the State’s appeal was pending, the stat­ute was amended to authorize exceptions that might have allowed Lucas to obtain a building permit. Despite the fact that the amendment gave the State Supreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits of the permanent takings claim and reversed. Since “Lucas had no reason to proceed on a ‘tem­porary taking’ theory at trial,” we decided the case on the permanent taking theory that both the trial court and the State Supreme Court had addressed. Ibid.

The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of “all economically beneficial uses” of his land. Id., at 1019. Under that rule, a statute that “wholly eliminated the value” of Lucas’ fee simple title clearly qualified as a taking. But our holding was limited to “the extraordinary circumstance when no productive or economically beneficial use of land is permitted.” Id., at 1017. The emphasis on the word “no” in the text of the opinion was, in effect, re­iterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% in­stead of 100%. Id., at 1019, n. 8.24 Anything less than a “complete elimination of value,” or a “total loss,” the Court acknowledged, would require the kind of analysis applied in Penn Central. Lucas, 505 U.S., at 1019-1020, n. 8.25

Certainly, our holding that the permanent “obliteration of the value” of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in Lucas by arguing that we can effectively sever a 32-month segment from the remain­der of each landowner’s fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners’ “concep­tual severance” argument is unavailing because it ignores Penn Central’s admonition that in regulatory takings cases we must focus on “the parcel as a whole.” 438 U.S., at 130-­131. We have consistently rejected such an approach to the “denominator” question. See Keystone, 480 U.S., at 497. See also Concrete Pipe & Products of Cal., Inc. v. Construc­tion Laborers Pension Trust for Southern Cal., 508 U.S. 602, 644 (1993) (“To the extent that any portion of property is taken, that portion is always taken in its entirety; the rele­vant question, however, is whether the property taken is all, or only a portion of, the parcel in question”). Thus, the Dis­trict Court erred when it disaggregated petitioners’ prop­erty into temporal segments corresponding to the regula­tions at issue and then analyzed whether petitioners were deprived of all economically viable use during each period. 34 F. Supp. 2d, at 1242-1245. The starting point for the court’s analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn Central was the proper framework.26

An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the term of years that describes the temporal aspect of the own­er’s interest. See Restatement of Property §§ 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent depriva­tion of the owner’s use of the entire area is a taking of “the parcel as a whole,” whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will re­cover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U.S., at 263, n. 9 (“Even if the appel­lants’ ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceed­ings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are ‘incidents of ownership. They cannot be considered as a “taking” in the constitutional sense’” (quoting Danforth v. United States, 308 U.S. 271, 285 (1939))).

Neither Lucas, nor First English, nor any of our other regulatory takings cases compels us to accept petitioners’ categorical submission. In fact, these cases make clear that the categorical rule in Lucas was carved out for the “extraordinary case” in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. Nevertheless, we will consider whether the interest in protecting individual property owners from bearing public burdens “which, in all fairness and justice, should be borne by the public as a whole,” Armstrong v. United States, 364 U.S., at 49, justifies creating a new rule for these circumstances.27

V

Considerations of “fairness and justice” arguably could support the conclusion that TRPA’s moratoria were takings of petitioners’ property based on any of seven different theories. First, even though we have not previously done so, we might now announce a categorical rule that, in the interest of fairness and justice, compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Second, we could craft a narrower rule that would cover all temporary land-­use restrictions except those “normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like” which were put to one side in our opinion in First English, 482 U.S., at 321. Third, we could adopt a rule like the one suggested by an amicus supporting peti­tioners that would “allow a short fixed period for delib­erations to take place without compensation—say maximum one year—after which the just compensation requirements” would “kick in.”28 Fourth, with the benefit of hindsight, we might characterize the successive actions of TRPA as a “series of rolling moratoria” that were the functional equiva­lent of a permanent taking.29 Fifth, were it not for the find­ings of the District Court that TRPA acted diligently and in good faith, we might have concluded that the agency was stalling in order to avoid promulgating the environmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 698 (1999). Sixth, apart from the District Court’s finding that TRPA’s actions represented a proportional response to a serious risk of harm to the lake, petitioners might have argued that the moratoria did not substantially advance a legitimate state interest, see Agins and Monterey. Finally, if petitioners had challenged the ap­plication of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have pre­vailed under a Penn Central analysis. 

As the case comes to us, however, none of the last four theories is available. The “rolling moratoria” theory was presented in the petition for certiorari, but our order grant­ing review did not encompass that issue, 533 U.S. 948 (2001); the case was tried in the District Court and reviewed in the Court of Appeals on the theory that each of the two mora­toria was a separate taking, one for a 2-year period and the other for an 8-month period. 216 F. 3d, at 769. And, as we have already noted, recovery on either a bad faith theory or a theory that the state interests were insubstantial is fore­closed by the District Court’s unchallenged findings of fact. Recovery under a Penn Central analysis is also foreclosed both because petitioners expressly disavowed that theory, and because they did not appeal from the District Court’s conclusion that the evidence would not support it. Nonethe­less, each of the three per se theories is fairly encompassed within the question that we decided to answer.

With respect to these theories, the ultimate constitutional question is whether the concepts of “fairness and justice” that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn Central inquiry into all of the relevant circumstances in particular cases. From that perspective, the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners’ broad submission would apply to numerous “normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like,” 482 U.S., at 321, as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous prac­tices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” 260 U.S., at 413. A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.30

More importantly, for reasons set out at some length by Justice O’Connor in her concurring opinion in Palazzolo v. Rhode Island, 533 U.S., at 636, we are persuaded that the better approach to claims that a regulation has effected a temporary taking “requires careful examination and weigh­ing of all the relevant circumstances.” In that opinion, Justice O’Connor specifically considered the role that the “temporal relationship between regulatory enactment and title acquisition” should play in the analysis of a takings claim. Id., at 632. We have no occasion to address that particular issue in this case, because it involves a differ­ent temporal relationship—the distinction between a tem­porary restriction and one that is permanent. Her com­ments on the “fairness and justice” inquiry are, neverthe­less, instructive:

“Today’s holding does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consid­eration from the takings inquiry as it would be to ac­cord it exclusive significance. Our polestar instead re­mains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine....

“The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is '“designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”’ Penn Central, [438 U.S.], at 123-124 (quoting Arm­strong v. United States, 364 U.S. 40, 49 (1960)). The concepts of ‘fairness and justice’ that underlie the Takings Clause, of course, are less than fully deter­minate. Accordingly, we have eschewed ‘any “set for­mula” for determining when “justice and fairness” re­quire that economic injuries caused by public action be compensated by the government, rather than re­main disproportionately concentrated on a few persons.’ Penn Central, supra, at 124 (quoting Goldblatt v. Hemp­stead, 369 U.S. 590, 594 (1962)). The outcome instead ‘depends largely “upon the particular circumstances [in that] case.’” Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958)).” Id., at 633.

In rejecting petitioners’ per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.

A narrower rule that excluded the normal delays asso­ciated with processing permits, or that covered only delays of more than a year, would certainly have a less severe im­pact on prevailing practices, but it would still impose serious financial constraints on the planning process.31 Unlike the “extraordinary circumstance” in which the government de­prives a property owner of all economic use, Lucas, 505 U.S., at 1017, moratoria like Ordinance 81-5 and Resolution 83-­21 are used widely among land-use planners to preserve the status quo while formulating a more permanent develop­ment strategy.32 In fact, the consensus in the planning com­munity appears to be that moratoria, or “interim develop­ment controls” as they are often called, are an essential tool of successful development.33 Yet even the weak version of petitioners’ categorical rule would treat these interim meas­ures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values.34

The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating prop­erty owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. A finding in the 1980 Compact itself, which pre­sumably was endorsed by all three legislative bodies that participated in its enactment, attests to the importance of that concern. 94 Stat. 3243 (“The legislatures of the States of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan”).

As Justice Kennedy explained in his opinion for the Court in Palazzolo, it is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims:

“These cases stand for the important principle that a landowner may not establish a taking before a land-­use authority has the opportunity, using its own rea­sonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner’s first having followed reasonable and necessary steps to allow regulatory agencies to ex­ercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum [v. Tahoe Regional Planning Agency, 520 U.S. 725, 736, and n. 10 (1997)] (noting difficulty of demonstrating that ‘mere enactment’ of regulations restricting land use effects a taking).” 533 U.S., at 620-621.

We, would create a perverse system of incentives were we to hold that landowners must wait for a takings claim to ripen so that planners can make well-reasoned decisions while, at the same time, holding that those planners must compensate landowners for the delay.

Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for ex­ample, the moratoria enabled TRPA to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.35 Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as or­ganized or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be “singled out” to bear a special burden that should be shared by the public as a whole. Nollan v. California Coastal Comm'n, 483 U.S. 825, 835 (1987). At least with a moratorium there is a clear “reciprocity of advantage,” Mahon, 260 U.S., at 415, because it protects the interests of all affected landowners against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. “While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others.” Keystone, 480 U.S., at 491. In fact, there is reason to believe property values often will continue to in­crease despite a moratorium. See, e.g., Growth Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218 (Md. 1976) (noting that land values could be expected to increase 20% during a 5-year moratorium on development). Cf. For­est Properties, Inc. v. United States, 177 F. 3d 1360, 1367 (CA Fed. 1999) (record showed that market value of the en­tire parcel increased despite denial of permit to fill and de­velop lake-bottom property). Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole.

It may well be true that any moratorium that lasts for more than one year should be viewed with special skepti­cism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Re­gional Plan was not unreasonable, we could not possibly con­clude that every delay of over one year is constitutionally unacceptable.36 Formulating a general rule of this kind is a suitable task for state legislatures.37 In our view, the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim, but with respect to that factor as with respect to other factors, the “temptation to adopt what amount to per se rules in either direction must be resisted.” Palaz­zolo, 533 U.S., at 636 (O’Connor, J., concurring). There may be moratoria that last longer than one year which in­terfere with reasonable investment-backed expectations, but as the District Court’s opinion illustrates, petitioners’ pro­posed rule is simply “too blunt an instrument” for identifying those cases. Id., at 628. We conclude, therefore, that the interest in “fairness and justice” will be best served by rely­ing on the familiar Penn Central approach when deciding cases like this, rather than by attempting to craft a new cate­gorical rule.

Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

1

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

2

According to a Senate Report: “Only two other sizable lakes in the world are of comparable quality—Crater Lake in Oregon, which is pro­tected as part of the Crater Lake National Park, and Lake Baikal in the [former] Soviet Union. Only Lake Tahoe, however, is so readily accessible from large metropolitan centers and is so adaptable to urban develop­ment.” S. Rep. No. 91-510, pp. 3-4 (1969).

3

The District Court added: “Or at least, for a very, very long time. Es­timates are that, should the lake turn green, it could take over 700 years for it to return to its natural state, if that were ever possible at all.” 34 F. Supp. 2d, at 1231.

4

App. 104-107. This moratorium did not apply to rights that had vested before the effective date of the 1980 Compact. Id., at 107-108. Two months after the 1980 Compact became effective, TRPA adopted its Ordinance 81-1 broadly defining the term “project” to include the construction of any new residence and requiring owners of land in dis­tricts 1, 2, or 3, to get a permit from TRPA before beginning construction of homes on their property. 34 F. Supp. 2d 1226, 1233 (Nev. 1999).

5

As explained, supra, at 309, the petitioners who purchased land after the 1972 compact did so amidst a heavily regulated zoning scheme. Their property was already classified as part of land capability districts 1, 2, and 3, or SEZ land. And each land classification was subject to regu­lations as to the degree of artificial disturbance the land could safely sustain.

6

911 F. 2d 1331 (1990); 938 F. 2d 153 (1991); 34 F. 3d 753 (1994); 216 F. 3d 764 (2000); 611 F. Supp. 110 (1985); 808 F. Supp. 1474 (1992); 808 F. Supp. 1484 (1992).

7

In 1991, petitioners amended their complaint to allege that the adop­tion of the 1987 plan also constituted an unconstitutional taking. Ulti­mately both the District Court and the Court of Appeals held that this claim was barred by California’s 1-year statute of limitations and Nevada’s 2-year statute of limitations. See 216 F. 3d, at 785-789. Although the validity of the 1987 plan is not before us, we note that other litigants have challenged certain applications of that plan. See Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997).

8

In his dissent, The Chief Justice contends that the 1984 plan is before us because the 1980 Compact is a proximate cause of petitioners’ injuries, post, at 343-345. Petitioners, however, do not challenge the Court of Appeals’ holding on causation in their briefs on the merits, pre­sumably because they understood when we granted certiorari on the ques­tion “[w]hether the Court of Appeals properly determined that a tempo­rary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution,” 533 U.S. 948 (2001), we were only interested in the narrow question decided today. Throughout the District Court and Court of Appeals decisions the phrase “temporary moratorium” refers to two things and two things only: Ordinance 81-5 and Resolution 83-21. The dissent’s novel theory of causation was not briefed, nor was it discussed during oral argument.

9

As the District Court explained: “There is a direct connection be­tween the potential development of plaintiffs’ lands and the harm the lake would suffer as a result thereof. Further, there has been no suggestion by the plaintiffs that any less severe response would have adequately addressed the problems the lake was facing. Thus it is difficult to see how a more proportional response could have been adopted. Given that TRPA’s actions had widespread application, and were not aimed at an indi­vidual landowner, the plaintiffs would appear to bear the burden of proof on this point. They have not met this burden—nor have they really at­tempted to do so. Although unwilling to stipulate to the fact that TRPA’s actions substantially advanced a legitimate state interest, the plaintiffs did not seriously contest the matter at trial.” 34 F. Supp. 2d, at 1240 (citation omitted).

10

The Penn Central analysis involves “a complex of factors including the regulation’s economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action.” Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).

11

The court stated that petitioners “had plenty of time to build before the restrictions went into effect—and almost everyone in the Tahoe Basin knew in the late 1970s that a crackdown on development was in the works.” In addition, the court found “the fact that no evidence was intro­duced regarding the specific diminution in value of any of the plaintiffs’ individual properties clearly weighs against a finding that there was a partial taking of the plaintiffs’ property.” 34 F. Supp. 2d, at 1241.

12

The pretrial order describes purchases by the United States Forest Service of private lots in environmentally sensitive areas during the periods when the two moratoria were in effect. During the 2-year period ending on August 26, 1983, it purchased 215 parcels in California at an average price of over $19,000 and 45 parcels in Nevada at an average price of over $39,000; during the ensuing 8-month period, it purchased 167 California parcels at an average price of over $29,000 and 27 Nevada parcels at an average price of over $41,000. App. 76-77. Moreover, during those periods some owners sold sewer and building allocations to owners of higher capability lots “for between $15,000 and $30,000.” Id., at 77.

13

Ordinance 81-5 specified that it would terminate when the regional plan became finalized. And Resolution 83-21 was limited to 90 days, but was renewed for an additional term. Nevertheless, the District Court distinguished these measures from true “temporary” moratoria because there was no fixed date for when they would terminate. 34 F. Supp. 2d, at 1250-1251.

14

216 F. 3d, at 773. “Below, the district court ruled that the regula­tions did not constitute a taking under Penn Central’s ad hoc approach, but that they did constitute a categorical taking under Lucas [v. South Carolina Coastal Council, 505 U.S. 1003 (1992)]. See Tahoe-Sierra Pres­ervation Council, 34 F. Supp. 2d at 1238-45. The defendants appealed the district court’s latter holding, but the plaintiffs did not appeal the former. And even if arguments regarding the Penn Central test were fairly encompassed by the defendants’ appeal, the plaintiffs have stated explicitly on this appeal that they do not argue that the regulations con­stitute a taking under the ad hoc balancing approach described in Penn Central.” Ibid.

15

The Court of Appeals added:

“Each of these three types of regulation will have an impact on the parcel’s value, because each will affect an aspect of the owner’s ‘use’ of the prop­erty—by restricting when the ‘use’ may occur, where the ‘use’ may occur, or how the ‘use’ may occur. Prior to Agins [v. City of Tiburon, 447 U.S. 255 (1980)], the Court had already rejected takings challenges to regula­tions eliminating all ‘use’ on a portion of the property, and to regulations restricting the type of ‘use’ across the breadth of the property. See Penn Central, 438 U.S. at 130-31 . . . ; Keystone Bituminous Coal Ass’n, 480 U.S. at 498-99...; Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 384, 397 . . . (1926) (75% diminution in value caused by zoning law); see also William C. Haas & Co. v. City & County of San Francisco, 605 F. 2d 1117, 1120 (9th Cir. 1979) (value reduced from $2,000,000 to $100,000). In those cases, the Court ‘uniformly reject[ed] the proposition that diminu­tion in property value, standing alone, can establish a “taking.”’ Penn Central, 438 U.S. at 131 .. .; see also Concrete Pipe and Products, Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 645 . . . (1993). There is no plausible basis on which to distinguish a similar diminution in value that results from a temporary suspension of development.” Id., at 776-777.

16

Despite our clear refusal to hold that a moratorium never effects a taking, The Chief Justice accuses us of “allow[ing] the government to ‘. . . take private property without paying for it,’” post, at 349. It may be true that under a Penn Central analysis petitioners’ land was taken and compensation would be due. But petitioners failed to challenge the District Court’s conclusion that there was no taking under Penn Central. Supra, at 317, and n. 14.

17

In determining whether government action affecting property is an unconstitutional deprivation of ownership rights under the Just Com­pensation Clause, a court must interpret the word “taken.” When the government condemns or physically appropriates the property, the fact of a taking is typically obvious and undisputed. When, however, the owner contends a taking has occurred because a law or regulation im­poses restrictions so severe that they are tantamount to a condemnation or appropriation, the predicate of a taking is not self-evident, and the analysis is more complex.

18

To illustrate the importance of the distinction, the Court in Loretto, 458 U.S., at 430, compared two wartime takings cases, United States v. Pewee Coal Co., 341 U.S. 114, 116 (1951), in which there had been an “actual taking of possession and control” of a coal mine, and United States v. Central Eureka Mining Co., 357 U.S. 155 (1958), in which, “by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations . . ." 458 U.S., at 431. Loretto then relied on this distinction in dismissing the argument that our discussion of the physical taking at issue in the case would affect landlord-tenant laws. “So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity.” Id., at 440 (citing Penn Central).

19

According to The Chief Justice’s dissent, even a temporary, use-­prohibiting regulation should be governed by our physical takings cases because, under Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992), “from the landowner’s point of view,” the moratorium is the functional equivalent of a forced leasehold, post, at 348. Of course, from both the landowner’s and the government’s standpoint there are critical differences between a leasehold and a moratorium. Condemnation of a leasehold gives the government possession of the property, the right to admit and exclude others, and the right to use it for a public purpose. A regulatory taking, by contrast, does not give the government any right to use the property, nor does it dispossess the owner or affect her right to exclude others.

The Chief Justice stretches Lucas’ “equivalence” language too far. For even a regulation that constitutes only a minor infringement on prop­erty may, from the landowner’s perspective, be the functional equivalent of an appropriation. Lucas carved out a narrow exception to the rules governing regulatory takings for the “extraordinary circumstance” of a permanent deprivation of all beneficial use. The exception was only partially justified based on the “equivalence” theory cited by The Chief Justice’s dissent. It was also justified on the theory that, in the “rela­tively rare situations where the government has deprived a landowner of all economically beneficial uses,” it is less realistic to assume that the regu­lation will secure an “average reciprocity of advantage,” or that govern­ment could not go on if required to pay for every such restriction. 505 U.S., at 1017-1018. But as we explain, infra, at 339-341, these assump­tions hold true in the context of a moratorium.

20

The case involved “a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their prop­erty in such way as to remove the supports and cause a subsidence of the surface and of their house.” Mahon, 260 U.S., at 412. Mahon sought to prevent Pennsylvania Coal from mining under his property by relying on a state statute, which prohibited any mining that could undermine the foundation of a home. The company challenged the statute as a taking of its interest in the coal without compensation.

21

In Lucas, we explained: “Prior to Justice Holmes’s exposition in Penn­sylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago, 99 U.S. 635, 642 (1879) .... Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government’s power to redefine the range of interests included in the ownership of prop­erty was necessarily constrained by constitutional limits. 260 U.S., at 414-415. If, instead, the uses of private property were subject to un­bridled, uncompensated qualification under the police power, ‘the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared].’ Id., at 415. These considerations gave birth in that case to the oft-cited maxim that, ‘while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.’ Ibid.’’ 505 U.S., at 1014 (citation omitted).

22

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

23

In her concurring opinion in Palazzolo, 533 U.S., at 633, Justice O’Connor reaffirmed this approach: “Our polestar instead remains the principles set forth in Penn Central itself and our other cases that gov­ern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine.” Ibid. “Penn Central does not supply mathe­matically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required.” Id., at 634. “The temptation to adopt what amount to per se rules in either direction must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context.” Id., at 636.

24

Justice Kennedy concurred in the judgment on the basis of the reg­ulation’s impact on “reasonable, investment-backed expectations.” 505 U.S., at 1034.

25

It is worth noting that Lucas underscores the difference between physical and regulatory takings. See supra, at 322-325. For under our physical takings cases it would be irrelevant whether a property owner maintained 5% of the value of her property so long as there was a physical appropriation of any of the parcel.

26

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

27

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

28

Brief for the Institute for Justice as Amicus Curiae 30. Although amicus describes the 1-year cutoff proposal as the “better approach by far,” ibid., its primary argument is that Penn Central should be over­ruled, id., at 20 (“All partial takings by way of land use restriction should be subject to the same prima facie rules for compensation as a physical occupation for a limited period of time”).

29

Brief for Petitioners 44. See also Pet. for Cert. i.

30

In addition, we recognize the anomaly that would be created if we were to apply Penn Central when a landowner is permanently deprived of 95% of the use of her property, Lucas, 505 U.S., at 1019, n. 8, and yet find a per se taking anytime the same property owner is deprived of all use for only five days. Such a scheme would present an odd inversion of Justice Holmes’ adage: “A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.” Block v. Hirsh, 256 U.S. 135, 157 (1921).

31

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

32

See, e.g., Santa Fe Village Venture v. Albuquerque, 914 F. Supp. 478, 483 (N. M. 1995) (30-month moratorium on development of lands within the Petroglyph National Monument was not a taking); Williams v. Cen­tral, 907 P. 2d 701, 703-706 (Colo. App. 1995) (10-month moratorium on development in gaming district while studying city’s ability to absorb growth was not a compensable taking); Woodbury Place Partners v. Wood­bury, 492 N. W. 2d 258 (Minn. App. 1993) (moratorium pending review of plan for land adjacent to interstate highway was not a taking even though it deprived property owner of all economically viable use of its property for two years); Zilber v. Moranga, 692 F. Supp. 1195 (ND Cal. 1988) (18-month development moratorium during completion of a compre­hensive scheme for open space did not require compensation). See also Wayman, Leaders Consider Options for Town Growth, Charlotte Ob­server, Feb. 3, 2002, p. 15M (describing 10-month building moratorium imposed “to give town leaders time to plan for development”); Wallman, City May Put Reins on Beach Projects, Sun-Sentinel, May 16, 2000, p. 1B (2-year building moratorium on beachfront property in Fort Lauderdale pending new height, width, and dispersal regulations); Foderaro, In Sub­urbs, They’re Cracking Down on the Joneses, N.Y. Times, Mar. 19, 2001, p. A1 (describing moratorium imposed in Eastchester, New York, during a review of the town’s zoning code to address the problem of oversized homes); Dawson, Commissioners recommend Aboite construction ban be lifted, Fort Wayne News Sentinel, May 4, 2001, p. 1A (3-year moratorium to allow improvements in the water and sewage treatment systems).

33

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

34

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

35

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

36

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

37

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

Chief Justice Rehnquist,

dissenting.

For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Be­cause the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), and because a ban on all de­velopment lasting almost six years does not resemble any traditional land-use planning device, I dissent.

I

“A court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Mac­Donald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)).1 In failing to undertake this inquiry, the Court ignores much of the impact of respondent’s conduct on peti­tioners. Instead, it relies on the flawed determination of the Court of Appeals that the relevant time period lasted only from August 1981 until April 1984. Ante, at 312, 313-314. During that period, Ordinance 81-5 and Regulation 83-21 prohibited development pending the adoption of a new re­gional land-use plan. The adoption of the 1984 Regional Plan (hereinafter Plan or 1984 Plan) did not, however, change anything from petitioners’ standpoint. After the adoption of the 1984 Plan, petitioners still could make no use of their land.

The Court of Appeals disregarded this post-April 1984 deprivation on the ground that respondent did not “cause” it. In a 42 U.S.C. § 1983 action, “the plaintiff must demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” 216 F. 3d 764, 783 (CA9 2000). Applying this principle, the Court of Appeals held that the 1984 Plan did not amount to a taking because the Plan actually allowed permits to issue for the construction of single-family resi­dences. Those permits were never issued because the Dis­trict Court immediately issued a temporary restraining order, and later a permanent injunction that lasted until 1987, prohibiting the approval of any building projects under the 1984 Plan. Thus, the Court of Appeals concluded that the “1984 Plan itself could not have, constituted a taking,” because it was the injunction, not the Plan, that prohibited development during this period. Id., at 784. The Court of Appeals is correct that the 1984 Plan did not cause petition­ers’ injury. But that is the right answer to the wrong ques­tion. The causation question is not limited to whether the 1984 Plan caused petitioners’ injury; the question is whether respondent caused petitioners’ injury.

We have never addressed the § 1983 causation requirement in the context of a regulatory takings claim, though language in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), suggests that ordinary principles of proximate cause govern the causation inquiry for takings claims. Id., at 124. The causation standard does not require much elaboration in this case, because respondent was undoubtedly the “moving force” behind petitioners’ inability to build on their land from August 1984 through 1987. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978) (§ 1983 causation established when government action is the “moving force” behind the alleged constitutional violation). The injunction in this case issued because the 1984 Plan did not comply with the 1980 Tahoe Regional Planning Compact (Compact) and regulations issued pursuant to the Compact. And, of course, respondent is responsible for the Compact and its regulations.

On August 26, 1982, respondent adopted Resolution 82-11. That resolution established “environmental thresholds for water quality, soil conservation, air quality, vegetation pres­ervation, wildlife, fisheries, noise, recreation, and scenic re­sources.” California v. Tahoe Regional Planning Agency, 766 F. 2d 1308, 1311 (CA9 1985). The District Court en­joined the 1984 Plan in part because the Plan would have allowed 42,000 metric tons of soil per year to erode from some of the single-family residences, in excess of the Reso­lution 82-11 threshold for soil conservation. Id., at 1315; see also id., at 1312. Another reason the District Court enjoined the 1984 Plan was that it did not comply with article V(g) of the Compact, which requires a finding, “with respect to each project, that the project will not cause the estab­lished [environmental] thresholds to be exceeded.” Ibid. Thus, the District Court enjoined the 1984 Plan because the Plan did not comply with the environmental requirements of respondent’s regulations and of the Compact itself.

Respondent is surely responsible for its own regulations, and it is also responsible for the Compact as it is the gov­ernmental agency charged with administering the Compact. Compact, Art. 1(c), 94 Stat. 3234. It follows that respondent was the “moving force” behind petitioners’ inability to de­velop their land from April 1984 through the enactment of the 1987 plan. Without the environmental thresholds estab­lished by the Compact and Resolution 82-11, the 1984 Plan would have gone into effect and petitioners would have been able to build single-family residences. And it was certainly foreseeable that development projects exceeding the en­vironmental thresholds would be prohibited; indeed, that was the very purpose of enacting the thresholds.

Because respondent caused petitioners’ inability to use their land from 1981 through 1987, that is the appropriate period of time from which to consider their takings claim.

II

I now turn to determining whether a ban on all economic development lasting almost six years is a taking. Lucas re­affirmed our “frequently expressed” view that “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” 505 U.S., at 1019. See also Agins v. City of Tiburon, 447 U.S. 255, 258-259 (1980). The District Court in this case held that the ordinances and resolu­tions in effect between August 24, 1981, and April 25, 1984, “did in fact deny the plaintiffs all economically viable use of their land.” 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The Court of Appeals did not overturn this finding. And the 1984 injunction, issued because the environmental thresh­olds issued by respondent did not permit the development of single-family residences, forced petitioners to leave their land economically idle for at least another three years. The Court does not dispute that petitioners were forced to leave their land economically idle during this period. See ante, at 312. But the Court refuses to apply Lucas on the ground that the deprivation was “temporary.”

Neither the Takings Clause nor our case law supports such a distinction. For one thing, a distinction between “temporary” and “permanent” prohibitions is tenuous. The “temporary” prohibition in this case that the Court finds is not a taking lasted almost six years.2 The “permanent” prohibition that the Court held to be a taking in Lucas lasted less than two years. See 505 U.S., at 1011-1012. The “per­manent” prohibition in Lucas lasted less than two years be­cause the law, as it often does, changed. The South Carolina Legislature in 1990 decided to amend the 1988 Beachfront Management Act to allow the issuance of “'special permits’ for the construction or reconstruction of habitable struc­tures seaward of the baseline.” Id., at 1011-1012. Land-­use regulations are not irrevocable. And the government can even abandon condemned land. See United States v. Dow, 357 U.S. 17, 26 (1958). Under the Court’s decision today, the takings question turns entirely on the initial label given a regulation, a label that is often without much mean­ing. There is every incentive for government to simply label any prohibition on development “temporary,” or to fix a set number of years. As in this case, this initial desig­nation does not preclude the government from repeatedly extending the “temporary” prohibition into a long-term ban on all development. The Court now holds that such a desig­nation by the government is conclusive even though in fact the moratorium greatly exceeds the time initially specified. Apparently, the Court would not view even a 10-year mora­torium as a taking under Lucas because the moratorium is not “permanent.”

Our opinion in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987), rejects any distinction between temporary and per­manent takings when a landowner is deprived of all economi­cally beneficial use of his land. First English stated that “‘temporary takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires com­pensation.” Id., at 318. Because of First English’s rule that “temporary deprivations of use are compensable under the Takings Clause,” the Court in Lucas found nothing problematic about the later developments that potentially made the ban on development temporary. 505 U.S., at 1011-1012 (citing First English, supra); see also 505 U.S., at 1033 (Kennedy, J., concurring in judgment) (“It is well established that temporary takings are as protected by the Constitution as are permanent ones” (citing First English, supra, at 318)).

More fundamentally, even if a practical distinction be­tween temporary and permanent deprivations were plausi­ble, to treat the two differently in terms of takings law would be at odds with the justification for the Lucas rule. The Lucas rule is derived from the fact that a “total depriva­tion of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.” 505 U.S., at 1017. The regulation in Lucas was the “practical equiva­lence” of a long-term physical appropriation, i.e., a condem­nation, so the Fifth Amendment required compensation. The “practical equivalence,” from the landowner’s point of view, of a “temporary” ban on all economic use is a forced leasehold. For example, assume the following situation: Re­spondent is contemplating the creation of a National Park around Lake Tahoe to preserve its scenic beauty. Respond­ent decides to take a 6-year leasehold over petitioners’ prop­erty, during which any human activity on the land would be prohibited, in order to prevent any further destruction to the area while it was deciding whether to request that the area be designated a National Park.

Surely that leasehold would require compensation. In a series of World War II-era cases in which the Government had condemned leasehold interests in order to support the war effort, the Government conceded that it was required to pay compensation for the leasehold interest.3 See United States v. Petty Motor Co., 327 U.S. 372 (1946); United States v. General Motors Corp., 323 U.S. 373, 376 (1945). From petitioners’ standpoint, what happened in this case is no different than if the government had taken a 6-year lease of their property. The Court ignores this “practical equiva­lence” between respondent’s deprivation and the depriva­tion resulting from a leasehold. In so doing, the Court allows the government to “do by regulation what it cannot do through eminent domain—i.e., take private property with­out paying for it.” 228 F. 3d 998, 999 (CA9 2000) (Kozinski, J., dissenting from denial of rehearing en banc).

Instead of acknowledging the “practical equivalence” of this case and a condemned leasehold, the Court analogizes to other areas of takings law in which we have distinguished between regulations and physical appropriations, see ante, at 321-324. But whatever basis there is for such distinc­tions in those contexts does not apply when a regulation de­prives a landowner of all economically beneficial use of his land. In addition to the “practical equivalence” from the landowner’s perspective of such a regulation and a physical appropriation, we have held that a regulation denying all productive use of land does not implicate the traditional justification for differentiating between regulations and physical appropriations. In “the extraordinary circumstance when no productive or economically beneficial use of land is permitted,” it is less likely that “the legislature is simply ‘adjusting the benefits and burdens of economic life’... in a manner that secures an ‘average reciprocity of advantage’ to everyone concerned,” Lucas, supra, at 1017-1018 (quoting Penn Central Transp. Co. v. New York City, 438 U.S., at 124, and Pennsylvania Coal Co. v. Mahon, 260 U.S., at 415), and more likely that the property “is being pressed into some form of public service under the guise of mitigating serious public harm,” Lucas, supra, at 1018.

The Court also reads Lucas as being fundamentally con­cerned with value, ante, at 329-331, rather than with the denial of “all economically beneficial or productive use of land,” 505 U.S., at 1015. But Lucas repeatedly discusses its holding as applying where “no productive or economically beneficial use of land is permitted.” Id., at 1017; see also ibid. (“[T]otal deprivation of beneficial use is, from the land­owner’s point of view, the equivalent of a physical appropria­tion”); id., at 1016 (“[T]he Fifth Amendment is violated when land-use regulation ... denies an owner economically viable use of his land”); id., at 1018 (“[T]he functional basis for permitting the government, by regulation, to affect property values without compensation . .. does not apply to the rela­tively rare situations where the government has deprived a landowner of all economically beneficial uses”); ibid. (“[T]he fact that regulations that leave the owner of land without economically beneficial or productive options for its use . . . carry with them a heightened risk that private property is being pressed into some form of public service”); id., at 1019 (“[W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking”). Moreover, the Court’s position that value is the sine qua non of the Lucas rule proves too much. Surely, the land at issue in Lucas retained some mar­ket value based on the contingency, which soon came to fru­ition (see supra, at 347), that the development ban would be amended.

Lucas is implicated when the government deprives a land­owner of “all economically beneficial or productive use of land.” 505 U.S., at 1015. The District Court found, and the Court agrees, that the moratorium “temporarily” de­prived petitioners of “‘all economically viable use of their land.’” Ante, at 316. Because the rationale for the Lucas rule applies just as strongly in this case, the “temporary” denial of all viable use of land for six years is a taking.

III

The Court worries that applying Lucas here compels find­ing that an array of traditional, short-term, land-use plan­ning devices are takings. Ante, at 334-335, 337-338. But since the beginning of our regulatory takings jurisprudence, we have recognized that property rights “are enjoyed under an implied limitation.” Mahon, supra, at 413. Thus, in Lucas, after holding that the regulation prohibiting all eco­nomically beneficial use of the coastal land came within our categorical takings rule, we nonetheless inquired into whether such a result “inhere[d] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” 505 U.S., at 1029. Because the regulation at issue in Lucas purported to be permanent, or at least long term, we con­cluded that the only implied limitation of state property law that could achieve a similar long-term deprivation of all eco­nomic use would be something “achieved in the courts—by adjacent landowners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate nuisances that af­fect the public generally, or otherwise.” Ibid.

When a regulation merely delays a final land-use decision, we have recognized that there are other background princi­ples of state property law that prevent the delay from being deemed a taking. We thus noted in First English that our discussion of temporary takings did not apply “in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like.” 482 U.S., at 321. We reiterated this last Term: “The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions.” Palazzolo v. Rhode Island, 533 U.S. 606, 627 (2001). Zoning regulations existed as far back as colonial Boston, see Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 789 (1995), and New York City enacted the first comprehensive zoning ordinance in 1916, see 1 Anderson’s American Law of Zoning § 3.07, p. 92 (K. Young rev. 4th ed. 1995). Thus, the short-term delays attendant to zoning and permit regimes are a longstanding feature of state property law and part of a landowner’s reasonable investment-backed expectations. See Lucas, supra, at 1034 (Kennedy, J., con­curring in judgment).

But a moratorium prohibiting all economic use for a period of six years is not one of the longstanding, implied limitations of state property law.4 Moratoria are “interim controls on the use of land that seek to maintain the status quo with respect to land development in an area by either ‘freezing’ existing land uses or by allowing the issuance of build­ing permits for only certain land uses that would not be inconsistent with a contemplated zoning plan or zoning change.” 1 E. Ziegler, Rathkopf’s The Law of Zoning and Planning § 13:3, p. 13-6 (4th ed. 2001). Typical moratoria thus prohibit only certain categories of development, such as fast-food restaurants, see Schafer v. New Orleans, 743 F. 2d 1086 (CA5 1984), or adult businesses, see Renton v. Play­time Theatres, Inc., 475 U.S. 41 (1986), or all commercial development, see Arnold Bernhard & Co. v. Planning & Zoning Comm’n, 194 Conn. 152, 479 A. 2d 801 (1984). Such moratoria do not implicate Lucas because they do not de­prive landowners of all economically beneficial use of their land. As for moratoria that prohibit all development, these do not have the lineage of permit and zoning requirements and thus it is less certain that property is acquired under the “implied limitation” of a moratorium prohibiting all de­velopment. Moreover, unlike a permit system in which it is expected that a project will be approved so long as certain conditions are satisfied, a moratorium that prohibits all uses is by definition contemplating a new land-use plan that would prohibit all uses.

But this case does not require us to decide as a categorical matter whether moratoria prohibiting all economic use are an implied limitation of state property law, because the duration of this “moratorium” far exceeds that of ordinary moratoria. As the Court recognizes, ante, at 342, n. 37, state statutes authorizing the issuance of moratoria often limit the moratoria’s duration. California, where much of the land at issue in this case is located, provides that a mora­torium “shall be of no further force and effect 45 days from its date of adoption,” and caps extension of the moratorium so that the total duration cannot exceed two years. Cal. Govt. Code Ann. § 65858(a) (West Supp. 2002); see also Minn. Stat. § 462.355, subd. 4 (2000) (limiting moratoria to 18 months, with one permissible extension, for a total of two years). Another State limits moratoria to 120 days, with the possibility of a single 6-month extension. Ore. Rev. Stat. Ann. § 197.520(4) (1997). Others limit moratoria to six months without any possibility of an extension. See Colo. Rev. Stat. § 30-28-121 (2001); N. J. Stat. Ann. § 40:55D-90(b) (1991).5 Indeed, it has long been understood that moratoria on development exceeding these short time periods are not a legitimate planning device. See, e.g., Holdsworth v. Hague, 9 N. J. Misc. 715, 155 A. 892 (1931).

Resolution 83-21 reflected this understanding of the lim­ited duration of moratoria in initially limiting the morato­rium in this case to 90 days. But what resulted—a “mora­torium” lasting nearly six years—bears no resemblance to the short-term nature of traditional moratoria as understood from these background examples of state property law.

Because the prohibition on development of nearly six years in this case cannot be said to resemble any “implied limitation” of state property law, it is a taking that re­quires compensation.

Lake Tahoe is a national treasure, and I do not doubt that respondent’s efforts at preventing further degradation of the lake were made in good faith in furtherance of the public interest. But, as is the case with most governmental action that furthers the public interest, the Constitution requires that the costs and burdens be borne by the public at large, not by a few targeted citizens. Justice Holmes’ admonition of 80 years ago again rings true: “We are in danger of for­getting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.” Mahon, 260 U.S., at 416.

1

We are not bound by the Court of Appeals’ determination that peti­tioners’ claim under 42 U.S.C. § 1983 (1994 ed., Supp. V) permitted only challenges to Ordinance 81-5 and Regulation 83-21. Petitioners sought certiorari on the Court of Appeals’ ruling that respondent Tahoe Regional Planning Agency (hereinafter respondent) did not cause petitioners’ injury from 1984 to 1987. Pet. for Cert. 27-30. We did not grant certiorari on any of the petition’s specific questions presented, but formulated the following question: “Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?” 533 U.S. 948-949 (2001). This Court’s Rule 14(l)(a) provides that a “question presented is deemed to comprise every subsidiary question fairly included therein.” The question of how long the moratorium on land development lasted is necessarily subsumed within the question whether the moratorium constituted a taking. Peti­tioners did not assume otherwise. Their brief on the merits argues that respondent “effectively blocked all construction for the past two decades.” Brief for Petitioners 7.

2

Even under the Court’s mistaken view that the ban on development lasted only 32 months, the ban in this case exceeded the ban in Lucas.

3

There was no dispute that just compensation was required in those cases. The disagreement involved how to calculate that compensation. In United States v. General Motors Corp., 323 U.S. 373 (1945), for ex­ample, the issues before the Court were how to value the leasehold in­terest (i.e., whether the “long-term rental value [should be] the sole meas­ure of the value of such short-term occupancy,” id., at 380), whether the Government had to pay for the respondent’s removal of personal property from the condemned warehouse, and whether the Government had to pay for the reduction in value of the respondent’s equipment and fixtures left in the warehouse. Id., at 380-381.

4

Six years is not a “cutoff point,” ante, at 338, n. 34; it is the length involved in this case. And the “explanation” for the conclusion that there is a taking in this case is the fact that a 6-year moratorium far exceeds any moratorium authorized under background principles of state property law. See infra, at 353-354. This case does not require us to undertake a more exacting study of state property law and discern exactly how long a moratorium must last before it no longer can be considered an im­plied limitation of property ownership (assuming, that is, that a mora­torium on all development is a background principle of state property law, see infra, at 353).

5

These are just some examples of the state laws limiting the dura­tion of moratoria. There are others. See, e.g., Utah Code Ann. §§ 17-27-­404(3)(b)(i)-(ii) (1995) (temporary prohibitions on development “may not exceed six months in duration,” with the possibility of extensions for no more than “two additional six-month periods”). See also ante, at 337, n. 81.

Justice Thomas,

dissenting.

I join The Chief Justice’s dissent. I write separately to address the majority’s conclusion that the temporary moratorium at issue here was not a taking because it was not a “taking of ‘the parcel as a whole.’” Ante, at 332. While this questionable rule* has been applied to various alleged regulatory takings, it was, in my view, rejected in the context of temporal deprivations of property by First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 318 (1987), which held that temporary and permanent takings “are not different in kind” when a landowner is deprived of all beneficial use of his land. I had thought that First English put to rest the notion that the “relevant denominator” is land’s infinite life. Consequently, a regulation effecting a total depriva­tion of the use of a so-called “temporal slice” of property is compensable under the Takings Clause unless background principles of state property law prevent it from being deemed a taking; “total deprivation of use is, from the land­owner’s point of view, the equivalent of a physical appro­priation.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017 (1992).

A taking is exactly what occurred in this case. No one seriously doubts that the land-use regulations at issue ren­dered petitioners’ land unsusceptible of any economically beneficial use. This was true at the inception of the mora­torium, and it remains true today. These individuals and families were deprived of the opportunity to build single­family homes as permanent, retirement, or vacation resi­dences on land upon which such construction was authorized when purchased. The Court assures them that “a tempo­rary prohibition on economic use” cannot be a taking because “[l]ogically . . . the property will recover value as soon as the prohibition is lifted.” Ante, at 332. But the “logical” assurance that a “temporary restriction . . . merely causes a diminution in value,” ibid., is cold comfort to the property owners in this case or any other. After all, “[i]n the long run we are all dead.” J. Keynes, Monetary Reform 88 (1924).

I would hold that regulations prohibiting all productive uses of property are subject to Lucas’ per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the “temporary” mora­torium is lifted. To my mind, such potential future value bears on the amount of compensation due and has nothing to do with the question whether there was a taking in the first place. It is regrettable that the Court has charted a markedly different path today.

*

The majority’s decision to embrace the “parcel as a whole” doctrine as settled is puzzling. See, e.g., Palazzolo v. Rhode Island, 533 U.S. 606, 631 (2001) (noting that the Court has “at times expressed discomfort with the logic of [the parcel as a whole] rule”); Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1017, n. 7 (1992) (recognizing that “uncertainty regarding the composition of the denominator in [the Court’s] ‘deprivation’ fraction has produced inconsistent pronouncements by the Court,” and that the relevant calculus is a “difficult question”).

No. 93-518.

DOLAN v. CITY OF TIGARD

Decided June 24, 1994

Argued March 23, 1994

Rehnquist, C. J., delivered the opinion of the Court, in which O’Con­nor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun and Ginsburg, JJ., joined, post, p. 396. Souter, J., filed a dissenting opinion, post, p. 411.

with whom Justice Blackmun and Justice Ginsburg join, dissenting.

David B. Smith argued the cause and filed briefs for petitioner.

Timothy V. Ramis argued the cause for respondent. With him on the brief were James M. Coleman and Richard J. Lazarus.

Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Schiffer, James E. Brookshire, and Martin W. Matzen*

*

Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by James D. Holzhauer, Timothy S. Bishop, John J. Rademacher, and Richard L. Krause; for Defenders of Property Rights et al. by Nancie G. Marzulla; for the Georgia Public Policy Foundation et al. by G. Stephen Parker; for the Institute for Justice by William H. Mellor III, Clint Bolick, and Richard A Epstein; for the National Association of Home Builders et al. by William H. Ethier, Mary DiCrescenzo, and Stephanie McEvily; for the National Association of Realtors et al. by Richard M. Stephens; for the Pacific Legal Foundation by Ronald A Zumbrun, Robin L. Rivett, James S. Burling, Deborah J. La Fetra, and John M. Groen; for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar; for Jon A. Chandler, pro se; and for Terence Wellner et al. by Daniel G. Marsh.

Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Jack M. Sabatino and Mary Carol Jacobson, Assistant Attorneys General, and Rachel J. Horowitz, Deputy Attorney General, and by the Attorneys Gen­eral for their respective jurisdictions as follows: Grant Woods of Arizona, Richard Blumenthal of Connecticut, Robert A Butterworth of Florida, Elizabeth Barrett-Anderson of Guam, Robert A. Marks of Hawaii, Mi­chael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Joseph P. Mazwrek of Montana, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New York, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode Island, Charles W. Burson of Tennessee, Rosalie S. Ballentine of the Virgin Islands, and Joseph B. Meyer of Wyoming; for the State of Oregon by Theodore R. Kulongoski, Attorney General, Thomas A. Balmer, Deputy Attorney Gen­eral, Virginia L. Linder, Solicitor General, and Michael D. Reynolds and John T. Bagg, Assistant Attorneys General; for Broward County by John J. Copelan, Jr., and Anthony C. Musto; for the City of New York by Paul A. Crotty, Leonard J. Koerner, and Linda H. Young; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for the Association of State Floodplan Managers by Michael J. Bean; for the Rails-to-Trails Con­servancy et al. by Andrea C. Ferster, Daniel L. Rabinowitz, and Glenn P. Sugameli; for the National Association of Counties et al. by Richard Ruda, Lee Fennell, and Barbara E. Etkind; for the National Audubon Society by John D. Echeverria; and for 1000 Friends of Oregon et al. by H. Bissell Carey III, Dwight H. Merriam, and Edward J. Sullivan.

Briefs of amici curiae were filed for the Mountain States Legal Founda­tion et al. by William Perry Pendley; for the Northwest Legal Foundation by Jeanette R. Burrage; and for Thomas H. Nelson, pro se, et al.

Chief Justice Rehnquist

delivered the opinion of the Court.

Petitioner challenges the decision of the Oregon Supreme Court which held that the city of Tigard could condition the approval of her building permit on the dedication of a portion of her property for flood control and traffic improvements. 317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the pro­posed development.

I

The State of Oregon enacted a comprehensive land use management program in 1973. Ore. Rev. Stat. §§ 197.005-­197.860 (1991). The program required all Oregon cities and counties to adopt new comprehensive land use plans that were consistent with the statewide planning goals. §§ 197.175(1), 197.250. The plans are implemented by land use regulations which are part of an integrated hierarchy of legally binding goals, plans, and regulations. §§ 197.175, 197.175(2)(b). Pursuant to the State’s requirements, the city of Tigard, a community of some 30,000 residents on the southwest edge of Portland, developed a comprehensive plan and codified it in its Community Development Code (CDC). The CDC requires property owners in the area zoned Cen­tral Business District to comply with a 15% open space and landscaping requirement, which limits total site coverage, in­cluding all structures and paved parking, to 85% of the par­cel. CDC, ch. 18.66, App. to Pet. for Cert. G-16 to G-17. After the completion of a transportation study that identified congestion in the Central Business District as a particular problem, the city adopted a plan for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips. The CDC requires that new development facilitate this plan by dedicating land for pedes­trian pathways where provided for in the pedestrian/bicycle pathway plan.1

The city also adopted a Master Drainage Plan (Drainage Plan). The Drainage Plan noted that flooding occurred in several areas along Fanno Creek, including areas near peti­tioner’s property. Record, Doc. No. F, ch. 2, pp. 2-5 to 2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also established that the increase in impervious surfaces associated with con­tinued urbanization would exacerbate these flooding prob­lems. To combat these risks, the Drainage Plan suggested a series of improvements to the Fanno Creek Basin, including channel excavation in the area next to petitioner’s property. App. to Pet. for Cert. G-13, G-38. Other recommendations included ensuring that the floodplain remains free of struc­tures and that it be preserved as greenways to minimize flood damage to structures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The Drainage Plan concluded that the cost of these improvements should be shared based on both direct and indirect benefits, with property owners along the water­ways paying more due to the direct benefit that they would receive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86 and CDC § 18.164.100 and the Tigard Park Plan carry out these recommendations.

Petitioner Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek’s 100-year floodplain virtually unusable for commercial development. The city’s comprehensive plan includes the Fanno Creek floodplain as part of the city’s greenway system.

Petitioner applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet and paving a 39-space park­ing lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction pro­gressed on the new building. In the second phase of the project, petitioner proposed to build an additional structure on the northeast side of the site for complementary busi­nesses and to provide more parking. The proposed expan­sion and intensified use are consistent with the city’s zoning scheme in the Central Business District. CDC § 18.66.030, App. to Brief for Petitioner C-l to C-3.

The City Planning Commission (Commission) granted peti­tioner’s permit application subject to conditions imposed by the city’s CDC. The CDC establishes the following stand­ard for site development review approval:

“Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan.” CDC § 18.120.180.A.8, App. to Brief for Respondent B-45 to B-46.

Thus, the Commission required that petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle path­way.2 The dedication required by that condition encom­passes approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city’s zoning scheme. App. to Pet. for Cert. G-28 to G-29. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store. Id., at G-44 to G-45.

Petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause “an undue or unnecessary hardship” unless the variance is granted. CDC § 18.134.010, App. to Brief for Respondent B-47.3 Rather than posing alterna­tive mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, peti­tioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. Id., at E-4. The Commission denied the request.

The Commission made a series of findings concerning the relationship between the dedicated conditions and the pro­jected impacts of petitioner’s project. First, the Commis­sion noted that “[i]t is reasonable to assume that customers and employees of the future uses of this site could utilize a pedestrian/bicycle pathway adjacent to this development for their transportation and recreational needs.” City of Ti­gard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-24. The Commission noted that the site plan has provided for bicycle parking in a rack in front of the proposed building and “[i]t is reasonable to expect that some of the users of the bicycle parking provided for by the site plan will use the pathway adjacent to Fanno Creek if it is constructed.” Ibid. In addition, the Commission found that creation of a convenient, safe pedestrian/bicycle path­way system as an alternative means of transportation “could offset some of the traffic demand on [nearby] streets and lessen the increase in traffic congestion.” Ibid.

The Commission went on to note that the required flood­plain dedication would be reasonably related to petitioner’s request to intensify the use of the site given the increase in the impervious surface. The Commission stated that the “anticipated increased storm water flow from the subject property to an already strained creek and drainage basin can only add to the public need to manage the stream channel and floodplain for drainage purposes.” Id., at G-37. Based on this anticipated increased storm water flow, the Commis­sion concluded that “the requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify development on the site.” Ibid. The Tigard City Council approved the Commission’s final order, subject to one minor modification; the city council reassigned the re­sponsibility for surveying and marking the floodplain area from petitioner to the city’s engineering department. Id., at G-7.

Petitioner appealed to the Land Use Board of Appeals (LUBA) on the ground that the city’s dedication require­ments were not related to the proposed development, and, therefore, those requirements constituted an uncompensated taking of her property under the Fifth Amendment. In evaluating the federal taking claim, LUBA assumed that the city’s findings about the impacts of the proposed develop­ment were supported by substantial evidence. Dolan v. Ti­gard, LUBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9. Given the undisputed fact that the pro­posed larger building and paved parking area would increase the amount of impervious surfaces and the runoff into Fanno Creek, LUBA concluded that “there is a ‘reasonable relation­ship’ between the proposed development and the require­ment to dedicate land along Fanno Creek for a greenway.” Id., at D-16. With respect to the pedestrian/bicycle path­way, LUBA noted the Commission’s finding that a signifi­cantly larger retail sales building and parking lot would at­tract larger numbers of customers and employees and their vehicles. It again found a “reasonable relationship” be­tween alleviating the impacts of increased traffic from the development and facilitating the provision of a pedestrian/bicycle pathway as an alternative means of transportation. Ibid.

The Oregon Court of Appeals affirmed, rejecting peti­tioner’s contention that in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), we had abandoned the “reason­able relationship” test in favor of a stricter “essential nexus” test. 113 Ore. App. 162, 832 P. 2d 853 (1992). The Oregon Supreme Court affirmed. 317 Ore. 110, 854 P. 2d 437 (1993). The court also disagreed with petitioner’s contention that the Nollan Court abandoned the “reasonably related” test. 317 Ore., at 118, 854 P. 2d, at 442. Instead, the court read Nollan to mean that an “exaction is reasonably related to an impact if the exaction serves the same purpose that a denial of the permit would serve.” 317 Ore., at 120, 854 P 2d, at 443. The court decided that both the pedestrian/bicycle pathway condition and the storm drainage dedication had an essential nexus to the development of the proposed site. Id., at 121, 854 P. 2d, at 443. Therefore, the court found the conditions to be reasonably related to the impact of the expansion of petitioner’s business. Ibid.4 We granted cer­tiorari, 510 U.S. 989 (1993), because of an alleged conflict between the Oregon Supreme Court’s decision and our deci­sion in Nollan, supra.

II

The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chi­cago, 166 U.S. 226, 239 (1897), provides: “[N]or shall private property be taken for public use, without just compensa­tion.” 5 One of the principal purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960). Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Nollan, supra, at 831. Such public access would deprive petitioner of the right to exclude others, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

On the other side of the ledger, the authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). “Government hardly could go on if to some ex­tent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). A land use regulation does not effect a taking if it “substan­tially advance[s] legitimate state interests” and does not “den[y] an owner economically viable use of his land.” Agins. v. City of Tiburon, 447 U.S. 255, 260 (1980).6

The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars from the present case. First, they involved essentially legislative de­terminations classifying entire areas of the city, whereas here the city made an adjudicative decision to condition peti­tioner’s application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own par­cel, but a requirement that she deed portions of the property to the city. In Nollan, supra, we held that governmental authority to exact such a condition was circumscribed by the Fifth and Fourteenth Amendments. Under the well-settled doctrine of “unconstitutional conditions,” the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken for a public use—in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. See Perry v. Sindermann, 408 U.S. 593 (1972); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968).

Petitioner contends that the city has forced her to choose between the building permit and her right under the Fifth Amendment to just compensation for the public easements. Petitioner does not quarrel with the city’s authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. She argues that the city has identified “no special benefits” conferred on her, and has not identified any “special quantifiable burdens” created by her new store that would justify the particular dedications re­quired from her which are not required from the public at large.

III

In evaluating petitioner’s claim, we must first determine whether the “essential nexus” exists between the “legitimate state interest” and the permit condition exacted by the city. Nollan, 483 U.S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed de­velopment. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. Id., at 838. Here, how­ever, we must decide this question.

A

We addressed the essential nexus question in Nollan. The California Coastal Commission demanded a lateral pub­lic easement across the Nollans’ beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house. Id., at 828. The public ease­ment was designed to connect two public beaches that were separated by the Nollans’ property. The Coastal Commis­sion had asserted that the public easement condition was im­posed to promote the legitimate state interest of diminishing the “blockage of the view of the ocean” caused by construc­tion of the larger house.

We agreed that the Coastal Commission’s concern with protecting visual access to the ocean constituted a legitimate public interest. Id., at 835. We also agreed that the permit condition would have been constitutional “even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.” Id., at 836. We resolved, however, that the Coastal Commission’s regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between vis­ual access to the ocean and a permit condition requiring lat­eral public access along the Nollans’ beachfront lot. Id., at 837. How enhancing the public’s ability to “traverse to and along the shorefront” served the same governmental pur­pose of “visual access to the ocean” from the roadway was beyond our ability to countenance. The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into “‘an out-and-out plan of extortion.’” Ibid., quoting J. E. D. Associates, Inc. v. Atkin­son, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981).

No such gimmicks are associated with the permit condi­tions imposed by the city in this case. Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. Agins, 447 U.S., at 260-262. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek’s 100-year floodplain. Petitioner proposes to double the size of her re­tail store and to pave her now-gravel parking lot, thereby expanding the impervious surface on the property and in­creasing the amount of storm water runoff into Fanno Creek.

The same may be said for the city’s attempt to reduce traf­fic congestion by providing for alternative means of transpor­tation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers: “Pedestrians and bicyclists occupying dedicated spaces for walking and/or bicycling ... remove potential ve­hicles from streets, resulting in an overall improvement in total transportation system flow.” A. Nelson, Public Provi­sion of Pedestrian and Bicycle Access Ways: Public Policy Rationale and the Nature of Private Benefits 11, Center for Planning Development, Georgia Institute of Technology, Working Paper Series (Jan. 1994). See also Intermodal Sur­face Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1914 (recognizing pedestrian and bicycle facilities as necessary components of any strategy to reduce traffic congestion).

B

The second part of our analysis requires us to determine whether the degree of the exactions demanded by the city’s permit conditions bears the required relationship to the pro­jected impact of petitioner’s proposed development. Nollan, supra, at 834, quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 127 (1978) (“‘[A] use restriction may constitute a “taking” if not reasonably necessary to the effec­tuation of a substantial government purpose’”). Here the Oregon Supreme Court deferred to what it termed the “city’s unchallenged factual findings” supporting the dedication con­ditions and found them to be reasonably related to the im­pact of the expansion of petitioner’s business. 317 Ore., at 120-121, 854 P. 2d, at 443.

The city required that petitioner dedicate “to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek]... and all property 15 feet above [the floodplain] boundary.” Id., at 113, n. 3, 854 P. 2d, at 439, n. 3. In addition, the city demanded that the retail store be designed so as not to intrude into the green-­way area. The city relies on the Commission’s rather tenta­tive findings that increased storm water flow from petition­er’s property “can only add to the public need to manage the [floodplain] for drainage purposes” to support its conclusion that the “requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify develop­ment on the site.” City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-37.

The city made the following specific findings relevant to the pedestrian/bicycle pathway:

“In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion.” Id., at G-24.

The question for us is whether these findings are constitu­tionally sufficient to justify the conditions imposed by the city on petitioner’s building permit. Since state courts have been dealing with this question a good deal longer than we have, we turn to representative decisions made by them.

In some States, very generalized statements as to the nec­essary connection between the required dedication and the proposed development seem to suffice. See, e.g., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966). We think this standard is too lax to adequately protect petitioner’s right to just compensation if her property is taken for a public purpose.

Other state courts require a very exacting correspondence, described as the “specifi[c] and uniquely attributable” test. The Supreme Court of Illinois first developed this test in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N. E. 2d 799, 802 (1961).7 Under this standard, if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes “a veiled exercise of the power of eminent domain and a confiscation of private property behind the de­fense of police regulations.” Id., at 381,176 N. E. 2d, at 802. We do not think the Federal Constitution requires such ex­acting scrutiny, given the nature of the interests involved.

A number of state courts have taken an intermediate posi­tion, requiring the municipality to show a “reasonable rela­tionship” between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska’s opinion in Simpson v. North Platte, 206 Neb. 240, 245, 292 N. W. 2d 297, 301 (1980), where that court stated:

“The distinction, therefore, which must be made be­tween an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property sim­ply because at that particular moment the landowner is asking the city for some license or permit.”

Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not “occasioned by the construction sought to be permitted.” Id., at 248, 292 N. W. 2d, at 302.

Some form of the reasonable relationship test has been adopted in many other jurisdictions. See, e.g., Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976) (requiring a showing of a reasonable relationship between the planned subdivision and the municipality’s need for land); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807 (Tex. 1984); Call v. West Jordan, 606 P. 2d 217, 220 (Utah 1979) (affirming use of the reasonable relation test). Despite any semantical differences, general agreement exists among the courts “that the dedication should have some reasonable relationship to the needs created by the [development].” Ibid. See generally Note, “‘Take’ My Beach Please!”: Nollan v. California Coastal Commission and a Rational-­Nexus Constitutional Analysis of Development Exactions, 69 B. U. L. Rev. 823 (1989); see also Parks v. Watson, 716 F. 2d 646, 651-653 (CA9 1983).

We think the “reasonable relationship” test adopted by a majority of the state courts is closer to the federal constitu­tional norm than either of those previously discussed. But we do not adopt it as such, partly because the term “rea­sonable relationship” seems confusingly similar to the term “rational basis” which describes the minimal level of scru­tiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as “rough proportional­ity” best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calcula­tion is required, but the city must make some sort of individ­ualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.8

Justice Stevens’ dissent relies upon a law review article for the proposition that the city’s conditional demands for part of petitioner’s property are “a species of business regu­lation that heretofore warranted a strong presumption of constitutional validity.” Post, at 402. But simply denomi­nating a governmental measure as a “business regulation” does not immunize it from constitutional challenge on the ground that it violates a provision of the Bill of Rights. In Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), we held that a statute authorizing a warrantless search of business prem­ises in order to detect OSHA violations violated the Fourth Amendment. See also Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U.S. 861 (1974); New York v. Burger, 482 U.S. 691 (1987). And in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (1980), we held that an order of the New York Public Service Commission, designed to cut down the use of electricity because of a fuel shortage, violated the First Amendment insofar as it prohibited advertising by a utility company to promote the use of electricity. We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amend­ment, should be relegated to the status of a poor relation in these comparable circumstances. We turn now to analy­sis of whether the findings relied upon by the city here, first with respect to the floodplain easement, and second with respect to the pedestrian/bicycle path, satisfied these requirements.

It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm water flow from petitioner’s property. Record, Doc. No. F, ch. 4, p. 4-29. Therefore, keeping the floodplain open and free from development would likely confine the pressures on Fanno Creek created by petitioner’s development. In fact, because petitioner’s property lies within the Central Busi­ness District, the CDC already required that petitioner leave 15% of it as open space and the undeveloped floodplain would have nearly satisfied that requirement. App. to Pet. for Cert. G-16 to G-17. But the city demanded more—it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner’s property along Fanno Creek for its greenway system. The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control.

The difference to petitioner, of course, is the loss of her ability to exclude others. As we have noted, this right to exclude others is “one of the most essential sticks in the bun­dle of rights that are commonly characterized as property.” Kaiser Aetna, 444 U.S., at 176. It is difficult to see why recreational visitors trampling along petitioner’s floodplain easement are sufficiently related to the city’s legitimate in­terest in reducing flooding problems along Fanno Creek, and the city has not attempted to make any individualized deter­mination to support this part of its request.

The city contends that the recreational easement along the greenway is only ancillary to the city’s chief purpose in con­trolling flood hazards. It further asserts that unlike the res­idential property at issue in Nollan, petitioner’s property is commercial in character and, therefore, her right to exclude others is compromised. Brief for Respondent 41, quoting United States v. Orito, 413 U.S. 139, 142 (1973) (“‘The Con­stitution extends special safeguards to the privacy of the home’”). The city maintains that “[t]here is nothing to sug­gest that preventing [petitioner] from prohibiting [the ease­ments] will unreasonably impair the value of [her] property as a [retail store].” PruneYard Shopping Center v. Robins, 447 U.S. 74, 83 (1980).

Admittedly, petitioner wants to build a bigger store to attract members of the public to her property. She also wants, however, to be able to control the time and manner in which they enter. The recreational easement on the greenway is different in character from the exercise of state-protected rights of free expression and petition that we permitted in PruneYard. In PruneYard, we held that a major private shopping center that attracted more than 25,000 daily patrons had to provide access to persons exercis­ing their state constitutional rights to distribute pamphlets and ask passers-by to sign their petitions. Id., at 85. We based our decision, in part, on the fact that the shopping center “may restrict expressive activity by adopting time, place, and manner regulations that will minimize any in­terference with its commercial functions.” Id., at 83. By contrast, the city wants to impose a permanent recreational easement upon petitioner’s property that borders Fanno Creek. Petitioner would lose all rights to regulate the time in which the public entered onto the greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated.

If petitioner’s proposed development had somehow en­croached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her prop­erty or elsewhere. See Nollan, 483 U.S., at 836 (“Although such a requirement, constituting a permanent grant of con­tinuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end”). But that is not the case here. We conclude that the findings upon which the city re­lies do not show the required reasonable relationship be­tween the floodplain easement and the petitioner’s proposed new building.

With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traf­fic on the streets of the Central Business District. The city estimates that the proposed development would generate roughly 435 additional trips per day.9 Dedications for streets, sidewalks, and other public ways are generally rea­sonable exactions to avoid excessive congestion from a pro­posed property use. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner’s development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway “could offset some of the traffic demand ... and lessen the increase in traffic congestion.”10

As Justice Peterson of the Supreme Court of Oregon ex­plained in his dissenting opinion, however, “[t]he findings of fact that the bicycle pathway system ‘could offset some of the traffic demand’ is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand.” 317 Ore., at 127, 854 P. 2d, at 447 (emphasis in original). No precise mathematical calculation is required, but the city must make some effort to quantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated.

IV

Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization, particularly in metropolitan areas such as Portland. The city’s goals of reducing flooding hazards and traffic conges­tion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. “A strong public desire to improve the public condition [will not] war­rant achieving the desire by a shorter cut than the constitu­tional way of paying for the change.” Pennsylvania Coal, 260 U.S., at 416.

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

It is so ordered.

Justice Stevens,

The record does not tell us the dollar value of petitioner Florence Dolan’s interest in excluding the public from the greenway adjacent to her hardware business. The moun­tain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case.

Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan’s chain of hardware stores will have an adverse impact on the city’s legitimate and substan­tial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard’s business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nev­ertheless agreed to grant Dolan’s application if she will com­ply with two conditions, each of which admittedly will miti­gate the adverse effects of her proposed development. The disputed question is whether the city has violated the Four­teenth Amendment to the Federal Constitution by refusing to allow Dolan’s planned construction to proceed unless those conditions are met.

The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a vari­ance even when it can rightfully deny the application out­right. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court’s de­scription of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of “rough proportionality,” and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground.

I

Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guid­ance in 12 “representative” state court decisions. To do so is certainly appropriate.1 The state cases the Court con­sults, however, either fail to support or decidedly undermine the Court’s conclusions in key respects.

First, although discussion of the state cases permeates the Court’s analysis of the appropriate test to apply in this case, the test on which the Court settles is not naturally derived from those courts’ decisions. The Court recognizes as an initial matter that the city’s conditions satisfy the “essential nexus” requirement announced in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), because they serve the legitimate interests in minimizing floods and traffic con­gestions. Ante, at 387-388.2 The Court goes on, however, to erect a new constitutional hurdle in the path of these con­ditions. In addition to showing a rational nexus to a public purpose that would justify an outright denial of the permit, the city must also demonstrate “rough proportionality” be­tween the harm caused by the new land use and the benefit obtained by the condition. Ante, at 391. The Court also decides for the first time that the city has the burden of es­tablishing the constitutionality of its conditions by making an “individualized determination” that the condition in ques­tion satisfies the proportionality requirement. See ibid.

Not one of the state cases cited by the Court announces anything akin to a “rough proportionality” requirement. For the most part, moreover, those cases that invalidated municipal ordinances did so on state law or unspecified grounds roughly equivalent to Nollan’s “essential nexus” re­quirement. See, e.g., Simpson v. North Platte, 206 Neb. 240, 245-248, 292 N. W. 2d 297, 301-302 (1980) (ordinance lacking “reasonable relationship” or “rational nexus” to prop­erty’s use violated Nebraska Constitution); J. E. D. Associ­ates, Inc. v. Atkinson, 121 N. H. 581, 583-585, 432 A. 2d 12, 14-15 (1981) (state constitutional grounds). One case pur­porting to apply the strict “specifically and uniquely attribut­able” test established by Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), never­theless found that test was satisfied because the legislature had decided that the subdivision at issue created the need for a park or parks. Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P. 2d 182, 187-188 (1964). In only one of the seven cases upholding a land use regula­tion did the losing property owner petition this Court for certiorari. See Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965), appeal dism’d, 385 U.S. 4 (1966) (want of substantial federal question). Although 4 of the 12 opinions mention the Federal Constitution—2 of those only in passing—it is quite obvious that neither the courts nor the litigants imagined they might be participating in the development of a new rule of federal law. Thus, although these state cases do lend support to the Court’s reaffirmance of Nollan’s reasonable nexus requirement, the role the Court accords them in the announcement of its newly minted second phase of the constitutional inquiry is remarkably inventive.

In addition, the Court ignores the state courts’ willingness to consider what the property owner gains from the ex­change in question. The Supreme Court of Wisconsin, for example, found it significant that the village’s approval of a proposed subdivision plat “enables the subdivider to profit financially by selling the subdivision lots as home-building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands.” Jordan v. Menomonee Falls, 28 Wis. 2d, at 619-620; 137 N. W. 2d, at 448. The required dedication as a condition of that approval was permissible “[i]n return for this benefit.” Ibid. See also Collis v. Bloomington, 310 Minn. 5, 11-13, 246 N. W. 2d 19, 23-24 (1976) (citing Jordan); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 806 (Tex. 1984) (dedi­cation requirement only triggered when developer chooses to develop land). In this case, moreover, Dolan’s acceptance of the permit, with its attached conditions, would provide her with benefits that may well go beyond any advantage she gets from expanding her business. As the United States pointed out at oral argument, the improvement that the city’s drainage plan contemplates would widen the chan­nel and reinforce the slopes to increase the carrying capacity during serious floods, “confer[ring] considerable benefits on the property owners immediately adjacent to the creek.” Tr. of Oral Arg. 41-42.

The state court decisions also are enlightening in the ex­tent to which they required that the entire parcel be given controlling importance. All but one of the cases involve challenges to provisions in municipal ordinances requiring developers to dedicate either a percentage of the entire par­cel (usually 7 or 10 percent of the platted subdivision) or an equivalent value in cash (usually a certain dollar amount per lot) to help finance the construction of roads, utilities, schools, parks, and playgrounds. In assessing the legality of the conditions, the courts gave no indication that the transfer of an interest in realty was any more objectionable than a cash payment. See, e.g., Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976). None of the decisions identified the surrender of the fee owner’s “power to exclude” as having any special significance. In­stead, the courts uniformly examined the character of the entire economic transaction.

II

It is not merely state cases, but our own cases as well, that require the analysis to focus on the impact of the city’s action on the entire parcel of private property. In Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978), we stated that takings jurisprudence “does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abro­gated.” Id., at 130-131. Instead, this Court focuses “both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.” Ibid. Andrus v. Allard, 444 U.S. 51 (1979), reaffirmed the nondivisibility principle outlined in Penn Central, stating that “[a]t least where an owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is not a taking, because the aggregate must be viewed in its entirety.” 444 U.S., at 65-66.3 As recently as last Term, we approved the principle again. See Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U.S. 602, 644 (1993) (explaining that “a claimant’s parcel of property [cannot] first be divided into what was taken and what was left” to demonstrate a compensable taking). Although limitation of the right to ex­clude others undoubtedly constitutes a significant infringe­ment upon property ownership, Kaiser Aetna v. United States, 444 U.S. 164, 179-180 (1979), restrictions on that right do not alone constitute a taking, and do not do so in any event unless they “unreasonably impair the value or use” of the property. PruneYard Shopping Center v. Robins, 447 U.S. 74, 82-84 (1980).

The Court’s narrow focus on one strand in the property owner’s bundle of rights is particularly misguided in a case involving the development of commercial property. As Pro­fessor Johnston has noted:

“The subdivider is a manufacturer, processer, and marketer of a product; land is but one of his raw materi­als. In subdivision control disputes, the developer is not defending hearth and home against the king’s intru­sion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdi­vision control exactions are actually business regula­tions.” Johnston, Constitutionality of Subdivision Con­trol Exactions: The Quest for A Rationale, 52 Cornell L. Q. 871, 923 (1967).4

The exactions associated with the development of a retail business are likewise a species of business regulation that heretofore warranted a strong presumption of constitu­tional validity.

In Johnston’s view, “if the municipality can demonstrate that its assessment of financial burdens against subdividers is rational, impartial, and conducive to fulfillment of author­ized planning objectives, its action need be invalidated only in those extreme and presumably rare cases where the bur­den of compliance is sufficiently great to deter the owner from proceeding with his planned development.” Id., at 917. The city of Tigard has demonstrated that its plan is rational and impartial and that the conditions at issue are “conducive to fulfillment of authorized planning objectives.” Dolan, on the other hand, has offered no evidence that her burden of compliance has any impact at all on the value or profitability of her planned development. Following the teaching of the cases on which it purports to rely, the Court should not iso­late the burden associated with the loss of the power to exclude from an evaluation of the benefit to be derived from the permit to enlarge the store and the parking lot.

The Court’s assurances that its “rough proportionality” test leaves ample room for cities to pursue the “commendable task of land use planning,” ante, at 396—even twice avowing that “[n]o precise mathematical calculation is required,” ante, at 391, 395—are wanting given the result that test compels here. Under the Court’s approach, a city must not only “quantify its findings,” ante, at 395, and make “individualized determination[s]” with respect to the nature and the extent of the relationship between the conditions and the impact, ante, at 391, 393, but also demonstrate “proportionality.” The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond considera­tions of a condition’s nature or germaneness only if the devel­oper establishes that a concededly germane condition is so grossly disproportionate to the proposed development’s ad­verse effects that it manifests motives other than land use regulation on the part of the city.5 The heightened require­ment the Court imposes on cities is even more unjustified when all the tools needed to resolve the questions presented by this case can be garnered from our existing case law.

III

Applying its new standard, the Court finds two defects in the city’s case. First, while the record would adequately support a requirement that Dolan maintain the portion of the floodplain on her property as undeveloped open space, it does not support the additional requirement that the flood­plain be dedicated to the city. Ante, at 392-395. Second, while the city adequately established the traffic increase that the proposed development would generate, it failed to quan­tify the offsetting decrease in automobile traffic that the bike path will produce. Ante, at 395-396. Even under the Court’s new rule, both defects are, at most, nothing more than harmless error.

In her objections to the floodplain condition, Dolan made no effort to demonstrate that the dedication of that portion of her property would be any more onerous than a simple prohibition against any development on that portion of her property. Given the commercial character of both the exist­ing and the proposed use of the property as a retail store, it seems likely that potential customers “trampling along pe­titioner’s floodplain,” ante, at 393, are more valuable than a useless parcel of vacant land. Moreover, the duty to pay taxes and the responsibility for potential tort liability may well make ownership of the fee interest in useless land a liability rather than an asset. That may explain why Dolan never conceded that she could be prevented from building on the floodplain. The city attorney also pointed out that absent a dedication, property owners would be required to “build on their own land” and “with their own money” a stor­age facility for the water runoff. Tr. of Oral Arg. 30-31. Dolan apparently “did have that option,” but chose not to seek it. Id., at 31. If Dolan might have been entitled to a variance confining the city’s condition in a manner this Court would accept, her failure to seek that narrower form of relief at any stage of the state administrative and judicial proceed­ings clearly should preclude that relief in this Court now.

The Court’s rejection of the bike path condition amounts to nothing more than a play on words. Everyone agrees that the bike path “could” offset some of the increased traffic flow that the larger store will generate, but the findings do not unequivocally state that it will do so, or tell us just how many cyclists will replace motorists. Predictions on such matters are inherently nothing more than estimates. Cer­tainly the assumption that there will be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent, or only 5 percent of the increase in automobile traffic that would otherwise occur. If the Court proposes to have the federal judiciary micro­manage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants. Al­though there is no reason to believe that state courts have failed to rise to the task, property owners have surely found a new friend today.

IV

The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequen­tial than its incorrect disposition of this case, however, is the Court’s resurrection of a species of substantive due process analysis that it firmly rejected decades ago.6

The Court begins its constitutional analysis by citing Chi­cago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239 (1897), for the proposition that the Takings Clause of the Fifth Amend­ment is “applicable to the States through the Fourteenth Amendment.” Ante, at 383. That opinion, however, con­tains no mention of either the Takings Clause or the Fifth Amendment;7 it held that the protection afforded by the Due Process Clause of the Fourteenth Amendment extends to matters of substance as well as procedure,8 and that the sub­stance of “the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State.” 166 U.S., at 235, 236-­241. It applied the same kind of substantive due process analysis more frequently identified with a better known case that accorded similar substantive protection to a baker’s liberty interest in working 60 hours a week and 10 hours a day. See Lochner v. New York, 198 U.S. 45 (1905).9

Later cases have interpreted the Fourteenth Amend­ment’s substantive protection against uncompensated depri­vations of private property by the States as though it incor­porated the text of the Fifth Amendment’s Takings Clause. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 481, n. 10 (1987). There was nothing problem­atic about that interpretation in cases enforcing the Four­teenth Amendment against state action that involved the actual physical invasion of private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-­433 (1982); Kaiser Aetna v. United States, 444 U.S., at 178-180. Justice Holmes charted a significant new course, however, when he opined that a state law making it “commercially impracticable to mine certain coal” had “very nearly the same effect for constitutional purposes as appropriating or destroying it.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922). The so-called “regulatory takings” doctrine that the Holmes dictum10 kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar an­cestry, both doctrines are potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair.

This case inaugurates an even more recent judicial innova­tion than the regulatory takings doctrine: the application of the “unconstitutional conditions” label to a mutually benefi­cial transaction between a property owner and a city. The Court tells us that the city’s refusal to grant Dolan a discre­tionary benefit infringes her right to receive just compensa­tion for the property interests that she has refused to dedi­cate to the city “where the property sought has little or no relationship to the benefit.”11 Although it is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests—“especially [one’s] interest in freedom of speech,” Perry v. Sindermann, 408 U.S. 593, 597 (1972)—the “unconstitutional conditions” doctrine provides an inadequate framework in which to ana­lyze this case.12

Dolan has no right to be compensated for a taking unless the city acquires the property interests that she has refused to surrender. Since no taking has yet occurred, there has not been any infringement of her constitutional right to com­pensation. See Preseault v. ICC, 494 U.S. 1, 11-17 (1990) (finding takings claim premature because property owner had not yet sought compensation under Tucker Act); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 294-295 (1981) (no taking where no one “identified any property ... that has allegedly been taken”).

Even if Dolan should accept the city’s conditions in ex­change for the benefit that she seeks, it would not necessarily follow that she had been denied “just compensation” since it would be appropriate to consider the receipt of that benefit in any calculation of “just compensation.” See Pennsylva­nia Coal Co. v. Mahon, 260 U.S., at 415 (noting that an “av­erage reciprocity of advantage” was deemed to justify many laws); Hodel v. Irving, 481 U.S. 704, 715 (1987) (such “‘reci­procity of advantage’” weighed in favor of a statute’s consti­tutionality). Particularly in the absence of any evidence on the point, we should not presume that the discretionary ben­efit the city has offered is less valuable than the property interests that Dolan can retain or surrender at her option. But even if that discretionary benefit were so trifling that it could not be considered just compensation when it has “little or no relationship” to the property, the Court fails to explain why the same value would suffice when the required nexus is present. In this respect, the Court’s reliance on the “un­constitutional conditions” doctrine is assuredly novel, and arguably incoherent. The city’s conditions are by no means immune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan’s First Amendment rights in exchange for a building permit. One can only hope that the Court’s reliance today on First Amendment cases, see ante, at 385 (citing Perry v. Sinder­mann, supra, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)), and its candid disavowal of the term “rational basis” to de­scribe its new standard of review, see ante, at 391, do not signify a reassertion of the kind of superlegislative power the Court exercised during the Lochner era.

The Court has decided to apply its heightened scrutiny to a single strand—the power to exclude—in the bundle of rights that enables a commercial enterprise to flourish in an urban environment. That intangible interest is undoubtedly worthy of constitutional protection—much like the grand­mother’s interest in deciding which of her relatives may share her home in Moore v. East Cleveland, 431 U.S. 494 (1977). Both interests are protected from arbitrary state action by the Due Process Clause of the Fourteenth Amend­ment. It is, however, a curious irony that Members of the majority in this case would impose an almost insurmountable burden of proof on the property owner in the Moore case while saddling the city with a heightened burden in this case.13

In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordi­nance “would have been rejected as arbitrary and oppres­sive” at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds, and Butler) upheld the ordinance. Today’s majority should heed the words of Justice Sutherland:

“Such regulations are sustained, under the complex con­ditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreason­able. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926).

In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic con­gestion, or environmental harms. When there is doubt con­cerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of the commercial entrepreneur. If the government can demon­strate that the conditions it has imposed in a land use permit are rational, impartial and conducive to fulfilling the aims of a valid land use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the eco­nomic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state action’s constitutionality. That allocation of burdens has served us well in the past. The Court has stumbled badly today by reversing it.

I respectfully dissent.

1

CDC § 18.86.040.A.l.b provides: “The development shall facilitate pedestrian/bicycle circulation if the site is located on a street with desig­nated bikepaths or adjacent to a designated greenway/open space/park. Specific items to be addressed [include]: (i) Provision of efficient, conven­ient and continuous pedestrian and bicycle transit circulation systems, linking developments by requiring dedication and construction of pedes­trian and bikepaths identified in the comprehensive plan. If direct con­nections cannot be made, require that funds in the amount of the construc­tion cost be deposited into an account for the purpose of constructing paths.” App. to Brief for Respondent B-33 to B-34.

2

The city’s decision includes the following relevant conditions: “1. The applicant shall dedicate to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] (i.e., all portions of the property below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary. The building shall be designed so as not to intrude into the greenway area.” App. to Pet. for Cert. G-43.

3

CDC § 18.134.050 contains the following criteria whereby the decision-­making authority can approve, approve with modifications, or deny a vari­ance request:

“(1) The proposed variance will not be materially detrimental to the pur­poses of this title, be in conflict with the policies of the comprehensive plan, to any other applicable policies and standards, and to other proper­ties in the same zoning district or vicinity;

“(2) There are special circumstances that exist which are peculiar to the lot size or shape, topography or other circumstances over which the appli­cant has no control, and which are not applicable to other properties in the same zoning district;

“(3) The use proposed will be the same as permitted under this title and City standards will be maintained to the greatest extent possible, while permitting some economic use of the land;

“(4) Existing physical and natural systems, such as but not limited to traf­fic, drainage, dramatic land forms, or parks will not be adversely affected any more than would occur if the development were located as specified in the title; and

“(5) The hardship is not self-imposed and the variance requested is the minimum variance which would alleviate the hardship.” App. to Brief for Respondent B-49 to B-50.

4

The Supreme Court of Oregon did not address the consequences of petitioner’s failure to provide alternative mitigation measures in her vari­ance application and we take the case as it comes to us. Accordingly, we do not pass on the constitutionality of the city’s variance provisions.

5

Justice Stevens’ dissent suggests that this case is actually grounded in “substantive” due process, rather than in the view that the Takings Clause of the Fifth Amendment was made applicable to the States by the Fourteenth Amendment. But there is no doubt that later cases have held that the Fourteenth Amendment does make the Takings Clause of the Fifth Amendment applicable to the States, see Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122 (1978); Nollan v. California Coastal Comm’n, 483 U.S. 825, 827 (1987). Nor is there any doubt that these cases have relied upon Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897), to reach that result. See, e.g., Penn Central, supra, at 122 (“The issu[e] presented . . . [is] whether the restrictions imposed by New York City’s law upon appellants’ exploitation of the Terminal site effect a ‘tak­ing’ of appellants’ property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chi­cago, 166 U.S. 226, 239 (1897)”).

6

There can be no argument that the permit conditions would deprive petitioner of “economically beneficial us[e]” of her property as she cur­rently operates a retail store on the lot. Petitioner assuredly is able to derive some economic use from her property. See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992); Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979); Penn Central Transp. Co. v. New York City, supra, at 124.

7

The “specifically and uniquely attributable” test has now been adopted by a minority of other courts. See, e.g., J. E. D. Associates, Inc. v. Atkin­son, 121 N. H. 581, 585, 432 A. 2d 12, 15 (1981); Divan Builders, Inc. v. Planning Bd. of Twp. of Wayne, 66 N. J. 582, 600-601, 334 A. 2d 30, 40 (1975); McKain v. Toledo City Plan Comm’n, 26 Ohio App. 2d 171, 176, 270 N. E. 2d 370, 374 (1971); Frank Ansuini, Inc. v. Cranston, 107 R. I. 63, 69, 264 A. 2d 910, 913 (1970).

8

Justice Stevens’ dissent takes us to task for placing the burden on the city to justify the required dedication. He is correct in arguing that in evaluating most generally applicable zoning regulations, the burden properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights. See, e.g., Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Here, by contrast, the city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel. In this situation, the burden properly rests on the city. See Nollan, 483 U.S., at 836. This conclusion is not, as he suggests, undermined by our decision in Moore v. East Cleve­land, 431 U.S. 494 (1977), in which we struck down a housing ordinance that limited occupancy of a dwelling unit to members of a single family as violating the Due Process Clause of the Fourteenth Amendment. The ordinance at issue in Moore intruded on choices concerning family living arrangements, an area in which the usual deference to the legislature was found to be inappropriate. Id., at 499.

9

The city uses a weekday average trip rate of 53.21 trips per 1,000 square feet. Additional Trips Generated = 53.21 X (17,600 - 9,720). App. to Pet. for Cert. G-15.

10

In rejecting petitioner’s request for a variance from the pathway dedi­cation condition, the city stated that omitting the planned section of the pathway across petitioner’s property would conflict with its adopted policy of providing a continuous pathway system. But the Takings Clause re­quires the city to implement its policy by condemnation unless the re­quired relationship between petitioner’s development and added traffic is shown.

1

Cf. Moore v. East Cleveland, 431 U.S. 494, 513-521 (1977) (Stevens, J., concurring in judgment).

2

In Nollan the Court recognized that a state agency may condition the grant of a land use permit on the dedication of a property interest if the dedication serves a legitimate police-power purpose that would justify a refusal to issue the permit. For the first time, however, it held that such a condition is unconstitutional if the condition “utterly fails” to further a goal that would justify the refusal. 483 U.S., at 837. In the Nollan Court’s view, a condition would be constitutional even if it required the Nollans to provide a viewing spot for passers-by whose view of the ocean was obstructed by their new house. Id., at 836. “Although such a re­quirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid con­struction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some conces­sion by the owner, even a concession of property rights, that serves the same end.” Ibid.

3

Similarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 498-499 (1987), we concluded that “[t]he 27 million tons of coal do not constitute a separate segment of property for takings law pur­poses” and that “[t]here is no basis for treating the less than 2% of petition­ers’ coal as a separate parcel of property.”

4

Johnston’s article also sets forth a fair summary of the state cases from which the Court purports to derive its “rough proportionality” test. See 52 Cornell L. Q., at 917. Like the Court, Johnston observed that cases requiring a “rational nexus” between exactions and public needs created by the new subdivision—especially Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965)—“stee[r] a moderate course” between the “judicial obstructionism” of Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), and the “excessive defer­ence” of Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964). 52 Cornell L. Q., at 917.

5

Dolan’s attorney overstated the danger when he suggested at oral argument that without some requirement for proportionality, “[t]he City could have found that Mrs. Dolan’s new store would have increased traffic by one additional vehicle trip per day [and] could have required her to dedicate 75, 95 percent of her land for a widening of Main Street.” Tr. of Oral Arg. 52-53.

6

See, e.g., Ferguson v. Skrupa, 372 U.S. 726 (1963).

7

An earlier case deemed it “well settled” that the Takings Clause “is a limitation on the power of the Federal government, and not on the States.” Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1872).

8

The Court held that a State “may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law regard must be had to substance, not to form.” Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 234-235 (1897).

9

The Lochner Court refused to presume that there was a reasonable connection between the regulation and the state interest in protecting the public health. 198 U.S., at 60-61. A similar refusal to identify a suffi­cient nexus between an enlarged building with a newly paved parking lot and the state interests in minimizing the risks of flooding and traffic con­gestion proves fatal to the city’s permit conditions in this case under the Court’s novel approach.

10

See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S., at 484 (explaining why this portion of the opinion was merely “advisory”).

11

Ante, at 385. The Court’s entire explanation reads: “Under the well-­settled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right—here the right to re­ceive just compensation when property is taken for a public use—in ex­change for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property.”

12

Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall. 445, 451 (1874), the “unconstitutional conditions” doctrine has for just as long suffered from notoriously inconsistent application; it has never been an overarching principle of constitutional law that operates with equal force regardless of the nature of the rights and powers in question. See, e.g., Sunstein, Why the Unconstitutional Conditions Doctrine is an Anach­ronism, 70 B. U. L. Rev. 593, 620 (1990) (doctrine is “too crude and too general to provide help in contested cases”); Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is “riven with inconsistencies”); Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321, 322 (1935) (“The Supreme Court has sus­tained many such exertions of power even after announcing the broad doctrine that would invalidate them”). As the majority’s case citations suggest, ante, at 385, modern decisions invoking the doctrine have most frequently involved First Amendment liberties, see also, e.g., Connick v. Myers, 461 U.S. 138, 143-144 (1983); Elrod v. Burns, 427 U.S. 347, 361-363 (1976) (plurality opinion); Sherbert v. Verner, 374 U.S. 398, 404 (1963); Speiser v. Randall, 357 U.S. 513, 518-519 (1958). But see Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328, 345-346 (1986) (“[T]he greater power to completely ban casino gambling necessar­ily includes the lesser power to ban advertising of casino gambling”). The necessary and traditional breadth of municipalities’ power to regulate property development, together with the absence here of fragile and easily “chilled” constitutional rights such as that of free speech, make it quite clear that the Court is really writing on a clean slate rather than merely applying “well-settled” doctrine. Ante, at 385.

13

The author of today’s opinion joined Justice Stewart’s dissent in Moore v. East Cleveland, 431 U.S. 494 (1977). There the dissenters found it sufficient, in response to my argument that the zoning ordinance was an arbitrary regulation of property rights, that “if the ordinance is a rational attempt to promote ‘the city’s interest in preserving the character of its neighborhoods,’ Young v. American Mini Theatres, [Inc.,] 427 U.S. 60, 71 (opinion of Stevens, J.), it is ... a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365, and Nectow v. Cambridge, 277 U.S. 183.” Id., at 540, n. 10. The dissent went on to state that my calling the city to task for failing to explain the need for enacting the ordinance “place[d] the burden on the wrong party.” Ibid, (emphasis added). Recently, two other Members of today’s majority severely criticized the holding in Moore. See United States v. Carlton, 512 U.S. 26, 40-42 (1994) (Scalia, J., concurring in judgment); see also id., at 39 (Scalia, J., concurring in judgment) (calling the doctrine of sub­stantive due process “an oxymoron”).

Justice Souter,

dissenting.

This case, like Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987), invites the Court to examine the relation­ship between conditions imposed by development permits, requiring landowners to dedicate portions of their land for use by the public, and governmental interests in mitigating the adverse effects of such development. Nollan declared the need for a nexus between the nature of an exaction of an interest in land (a beach easement) and the nature of govern­mental interests. The Court treats this case as raising a further question, not about the nature, but about the degree, of connection required between such an exaction and the adverse effects of development. The Court’s opinion an­nounces a test to address this question, but as I read the opinion, the Court does not apply that test to these facts, which do not raise the question the Court addresses.

First, as to the floodplain and greenway, the Court ac­knowledges that an easement of this land for open space (and presumably including the five feet required for needed creek channel improvements) is reasonably related to flood control, see ante, at 387, 392-393, but argues that the “permanent recreational easement” for the public on the greenway is not so related, see ante, at 393-395. If that is so, it is not be­cause of any lack of proportionality between permit condition and adverse effect, but because of a lack of any rational con­nection at all between exaction of a public recreational area and the governmental interest in providing for the effect of increased water runoff. That is merely an application of Nol­lan’s nexus analysis. As the Court notes, “[i]f petitioner’s proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public.” Ante, at 394. But that, of course, was not the fact, and the city of Tigard never sought to jus­tify the public access portion of the dedication as related to flood control. It merely argued that whatever recreational uses were made of the bicycle path and the 1-foot edge on either side were incidental to the permit condition requiring dedication of the 15-foot easement for an 8-foot-wide bicycle path and for flood control, including open space requirements and relocation of the bank of the river by some 5 feet. It seems to me such incidental recreational use can stand or fall with the bicycle path, which the city justified by reference to traffic congestion. As to the relationship the Court exam­ines, between the recreational easement and a purpose never put forth as a justification by the city, the Court unsurpris­ingly finds a recreation area to be unrelated to flood control.

Second, as to the bicycle path, the Court again acknowl­edges the “theor[etically]” reasonable relationship between “the city’s attempt to reduce traffic congestion by providing [a bicycle path] for alternative means of transportation,” ante, at 387, and the “correct” finding of the city that “the larger retail sales facility proposed by petitioner will in­crease traffic on the streets of the Central Business Dis­trict,” ante, at 395. The Court only faults the city for saying that the bicycle path “could” rather than “would” offset the increased traffic from the store, ante, at 396. That again, as far as I can tell, is an application of Nollan, for the Court holds that the stated connection (“could offset”) between traffic congestion and bicycle paths is too tenuous; only if the bicycle path “would” offset the increased traffic by some amount could the bicycle path be said to be related to the city’s legitimate interest in reducing traffic congestion.

I cannot agree that the application of Nollan is a sound one here, since it appears that the Court has placed the burden of producing evidence of relationship on the city, despite the usual rule in cases involving the police power that the gov­ernment is presumed to have acted constitutionally.* Hav­ing thus assigned the burden, the Court concludes that the city loses based on one word (“could” instead of “would”), and despite the fact that this record shows the connection the Court looks for. Dolan has put forward no evidence that the burden of granting a dedication for the bicycle path is unrelated in kind to the anticipated increase in traffic conges­tion, nor, if there exists a requirement that the relationship be related in degree, has Dolan shown that the exaction fails any such test. The city, by contrast, calculated the in­creased traffic flow that would result from Dolan’s proposed development to be 435 trips per day, and its Comprehensive Plan, applied here, relied on studies showing the link be­tween alternative modes of transportation, including bicycle paths, and reduced street traffic congestion. See, e.g., App. to Brief for Respondent A-5, quoting City of Tigard’s Com­prehensive Plan (“‘Bicycle and pedestrian pathway systems will result in some reduction of automobile trips within the community’”). Nollan, therefore, is satisfied, and on that assumption the city’s conditions should not be held to fail a further rough proportionality test or any other that might be devised to give meaning to the constitutional limits. As Members of this Court have said before, “the common zoning regulations requiring subdividers to . . . dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property use would other­wise be the cause of excessive congestion.” Pennell v. San Jose, 485 U.S. 1, 20 (1988) (Scalia, J., concurring in part and dissenting in part). The bicycle path permit condition is fundamentally no different from these.

In any event, on my reading, the Court’s conclusions about the city’s vulnerability carry the Court no further than Nol­lan has gone already, and I do not view this case as a suitable vehicle for taking the law beyond that point. The right case for the enunciation of takings doctrine seems hard to spot. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1076 (1992). (statement of Souter, J.).

*

See, e.g., Goldblatt v. Hempstead, 369 U.S. 590, 594-596 (1962); United States v. Sperry Corp., 493 U.S. 52, 60 (1989). The majority characterizes this case as involving an “adjudicative decision” to impose permit condi­tions, ante, at 391, n. 8, but the permit conditions were imposed pursuant to Tigard’s Community Development Code. See, e.g., § 18.84.040, App. to Brief for Respondent B-26. The adjudication here was of Dolan’s re­quested variance from the permit conditions otherwise required to be im­posed by the Code. This case raises no question about discriminatory, or “reverse spot,” zoning, which “singles out a particular parcel for different, less favorable treatment than the neighboring ones.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 132 (1978).