OPINION OF THE COURT

ALITO, Circuit Judge.

United Artists Theatre Circuit, Inc. (“United Artists”), an owner and operator of movie theaters, sought land development approval from Warrington Township Pennsylvania, (“Township”), to construct and operate a multiplex theater on land that United Artists owned. United Artists claims that Warrington Township and its Board of Supervisors (the “Board”) complicated and delayed approval of United Artists’ development plan, and thereby allowed a competitor to beat United Artists in a race to build a movie theater in the Township, which is too small to support two theaters. United Artists alleges that the Township and individual members of the Board engaged in this conduct because they wanted the Township to receive an improper “impact fee” from the competing developer. In this appeal, the defendant Supervisors contest the District Court’s denial of their qualified-immunity-based motion for summary judgnent. We vacate and remand.

As a threshold issue, we conclude that the law-of-the-case doctrine does not preclude us from considering whether, as a result of the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), United Artists was required to show that the Supervisors’ conduct “shocked the conscience.” On the merits, we hold that Lewis has superceded prior decisions of our Court holding that a plaintiff asserting that a municipal land-use decision violated substantive due process need only show that the municipal officials acted with an “improper motive.” Thus, Bello v. Walker, 840 F.2d 1124 (3d Cir.1988), and its progeny are no longer good law.

*395I.

A.

The dispute underlying this case arises out of a development race between United Artists’ proposed multiplex and a competing multiplex theater development proposed by Regal Cinema and developer Bruce Goodman. The record shows that the two companies were competing to obtain approval of their plans by the Township because the market could support only one of the theaters. Goodman agreed to pay the Township an annual “impact fee”2 of $100,000, but United Artists refused the Township’s repeated requests for such a payment. United Artists asserts that, because of Goodman’s promise to pay this fee, the Township allowed his project to “sail through the land development process,” while United Artists’ proposal was repeatedly stalled.

The Board of Supervisors’ review process consisted of two phases, preliminary approval and final approval. In January 1996, United Artists submitted a preliminary plan for its theater to the Township Planning Commission, an independent body of local officials that makes recommendations regarding land-use plans to the Board of Supervisors. Along with the preliminary plan, United Artists submitted a traffic impact study, which led the Township to require, as a precondition to the issuance of an occupancy permit, the installation of a separate left-turn lane into the theater. United Artists failed to acquire the property necessary to make this improvement and expressed its intention to request a waiver of the condition or to sue for relief. United Artists claims that its failure to construct the road improvement was a mere pretext for the Township’s refusal to support its theater proposal and that this refusal was actually motivated by the Township’s desire to obtain an impact fee from Goodman and Regency Cinema.

After granting preliminary approval of United Artists’ proposal, the Township attempted to change the terms of that approval by requiring United Artists to obtain an easement for the road improvement and to complete the installation of signals before construction could begin, rather than before the time of occupancy, as was originally provided in the preliminary approval. United Artists then brought suit against the Township in the Court of Common Pleas of Bucks County, and that court found the change in conditions to be unlawful under the Pennsylvania Municipalities Planning Code. On appeal, the Commonwealth Court agreed. After succeeding in this state court litigation and eliminating the building permit condition, United Artists began this action against the Township and the Supervisors in federal court.

In the meantime, the Board granted preliminary approval of the Goodman proposal on February 4, 1997' — one month after the initial application was submitted — and final approval was granted on May 21, 1997. By contrast, United Artists did not receive preliminary approval until March 18, 1997, 14 months after submitting its initial application. The Board then tabled its vote on United Artists’ application for final approval on three occasions, each time asking if United Artists would pay an impact fee. The Board granted final approval of the United Artists proposal on September 16, 1997. The Goodman/Regal Cinema multiplex was eomplet-*396ed in 1999; United Artists never built a theater in Warrington.

B.

United Artists’ complaint in this case asserted procedural and substantive due process claims under 42 U.S.C. § 1983, as well as supplementary state law claims. As defendants, the complaint named the Township and the members of the Board of Supervisors' — Gerald Anderson, Joseph Lavin, Douglas Skinner, Wayne Bullock, and Katherine Watson (“Supervisors”) — in both their official and individual capacities. Asserting the defense of qualified immunity, the Supervisors moved for summary judgment, and in December 1999, the District Court denied the Supervisors’ motion with respect to the substantive due process claim, while granting that motion with respect to the procedural due process claim.

On appeal, a prior panel of our Court, in an unpublished opinion, vacated the order of the District Court and remanded for further proceedings. The panel held that the District Court had erred in failing to analyze each Supervisor’s qualified immunity claim individually, and the panel instructed the District Court to make such an analysis on remand. United Artists Theatre Circuit, Inc. v. Twp. Of Warrington, No. 00-1064 (3d Cir., filed Nov. 29, 2000) (“United Artists I”), in App. at 112a-118a. In the text of its opinion, the panel stated that the District Court had “properly analyzed the supervisors’ request for qualified immunity on summary judgment, having found that United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right.” Id. at 4, in App. at 117a. However, in an accompanying footnote the panel stated that it “express[ed] no opinion” at that time as to whether, in the wake of the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), it was necessary for United Artists to show that the Supervisors’ conduct “shocked the conscience.” Id. at 4 n. 2, in App. at 117a.

On remand, the District Court considered the Supervisors’ claims individually and again denied their motion for summary judgment on qualified immunity grounds. Aug. 15, 2001, Order, in App. at 3a-26a. The District Court held that United Artists had provided evidence permitting a factfinder to conclude that the Board intentionally delayed approval of plaintiffs project because it wished to receive the impact fee offered by Goodman. If proved, the court believes the monetary motivation of the Board was improper and would constitute a violation of substantive due process. Id. at 14, in App. at 16a (emphasis added). The District Court also held that there was sufficient evidence to conclude that each individual supervisor had subjected United Artists’ proposal to heightened scrutiny and had purposefully delayed approval because of the impact fee offered by the competitor. Id. at 19, in App. at 21a. Addressing the panel’s reference to the shocks-the-conscience test, the District Court opined that the “shocks the conscience” and “improper motive” tests are essentially the same and that, in any event, a post-Lewis opinion issued by our Court [Woodwind Estates Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir.2000)] suggested that Lewis had not altered prior circuit precedent. Id. at 9 n. 5, in App. at 11a. The Supervisors then took the present appeal.3

*397II.

As a preliminary matter, United Artists argues that this panel’s authority in this case is severely limited by the law-of-the-case doctrine. Under this doctrine, “one panel of an appellate court generally will not reconsider questions that another panel has decided on a prior appeal in the same case.” In re City of Philadelphia Litigation, 158 F.3d 711, 717 (3d Cir.1998).4 United Artists argues that the panel that heard the prior appeal in this case implicitly rejected the proposition that United Artists’ substantive due process claim requires proof of conduct that shocks the conscience. We disagree.

The prior panel made two statements that are relevant for present purposes. First, as noted, the prior panel stated: “[W]e believe the District Court properly analyzed the supervisors’ request for qualified immunity on summary judgment, having found that United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right.” United Artists I at 4, in App. at 1172a. United Artists claims that this statement “constitutes a conclusive determination that may not be disturbed under the law of the case doctrine.” Br. of Appellee at 18.

If the prior panel had said nothing more than the statement quoted above, we might be inclined to agree with United Artists, but the prior panel made an additional important statement. In footnote 2 of its opinion, the Court observed that it had raised two issues sua sponte at oral argument and that one of these was “whether the ‘shocks the conscience’ standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), is applicable to substantive due process claims like the one at issue here.” United Artists I at 4 n. 2, in App. at 1172a. The panel continued: “At this time, we express no opinion ivhether these matters are appropriate in determining the merits of the substantive due process claim.” Id. at 4 n. 2, in App. at 1172a (emphasis added).

We interpret this last statement to mean that the panel left open the question whether the “shocks the conscience” standard announced in Lewis is applicable to United Artists’ substantive due process claim. In other words, while the panel, as stated in the main text of its opinion, had concluded that United Artists was entitled to survive summary judgment under our Court’s “existing case law,” United Artists I at 4, in App. at 1172a, the panel did not decide whether that prior circuit case law had been superceded by Lewis. Presumably because the issue was raised by the panel on its own at argument and was not briefed by the parties, the panel left this issue for consideration in the first instance by the District Court and then, if necessary, by a subsequent panel.

While we believe, as noted, that this is the best interpretation of the prior panel’s decision, our conclusion that the law-of-the-case doctrine does not foreclose our consideration of this issue is not dependent on this interpretation. At the very least, footnote 2 of the prior panel opinion creates considerable ambiguity as to whether the prior panel held that conduct that “shocks the conscience” is needed in the present context. “Courts apply the law of the case doctrine when their prior decisions in an ongoing case either *398expressly resolved an issue or necessarily resolved it by implication.” Aramony v. United Way of America, 254 F.3d 403, 410 (2d Cir.2001) (emphasis added) (citing 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478, at 789 (1981)). Here, the prior panel did not “expressly” or by necessary implication decide the “shocks the conscience” issue. The law-of-the-case doctrine relieves a court of the obligation of considering an issue twice, but we must be careful to prevent the doctrine from being used to prevent a properly raised argument from being considered even once. Where there is substantial doubt as to whether a prior panel actually decided an issue, the later panel should not be foreclosed from considering the issue. Accordingly, we conclude that the law-of-the-case doctrine does not apply and that the prior panel opinion does not foreclose our review of the applicable standard governing United Artists’ substantive due process claim.

Our dissenting colleague disagrees with this conclusion because he believes that the prior panel’s first statement represents the panel’s holding and that the second statement is “mere dicta.” Dissent at 404. The dissent, however, does not explain why the second statement should be regarded as dictum, and we must respectfully disagree with his position.

To reiterate, the prior panel at oral argument sua sponte raised the issue “whether the ‘shocks the conscience’ standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), is applicable to substantive due process claims like the one at issue here.” The panel then wrote:

At this time, we express no opinion whether these matters [including the applicability of Lewis’s “shocks the conscience” standard] are appropriate in determining the merits of the substantive due process claim.

United Artists I at 4 n. 2, in App. at 117a (emphasis added).

This language strongly suggests that the prior panel was not speaking in the abstract about the application of Lewis to a similar substantive due process claim in some future case. (Such a statement would be “mere dicta.”) Rather, the prior panel was addressing “the substantive due process claim” in this case, and what the panel said about that claim was that the panel was not expressing an opinion about the application of Lewis “[a]t this time”— which implied that our Court might express an opinion about that claim at some future time. Thus, because we believe that the prior panel left this issue open (and certainly did not clearly resolve the issue,) we regard the issue as open and we therefore turn to the merits of the Supervisors’ argument.

III.

A.

As noted, the Supervisors moved for summary judgment on qualified immunity grounds. Qualified immunity generally protects government officials performing discretionary functions from civil damages. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity applies so long as the officials’ “conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. In determining whether qualified immunity applies, we ask: (1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and if so, (2) whether the right was clearly established at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Eddy v. Virgin *399 Islands Water and Power Authority, 256 F.3d 204, 208 (3d Cir.2001). A right is clearly established if “its outlines are sufficiently clear that a reasonable officer would understand that his actions violate the right.” Sterling v. Borough of Minersville, 232 F.3d 190, 193 (3d Cir.2000). Therefore, our task is “ ‘to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all,’ before reaching the question of whether the right was clearly established at the time.” Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 251 (2d Cir.2001) (quoting Lewis, 523 U.S. at 841 n. 5, 118 S.Ct. 1708); see also Nicholas v. Pennsylvania State University, 227 F.3d 133, 139-40 (3d Cir.2000) (“To prevail on a non-legislative substantive due process claim, ‘a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment’s due process protection applies.’ ”) (quoting Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir.2000)). To answer this question, we must determine the appropriate legal standard to apply to substantive due process claims.

B.

In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court explained the standard that applies when a plaintiff alleges that an action taken by an executive branch official violated substantive due process. The Court observed that “the core of the concept” of due process is “protection against arbitrary action” and that “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense.’ ” Id. at 845-46, 118 S.Ct. 1708 (citation omitted). After noting its long history of speaking of “the cognizable level of executive abuse of power as that which shocks the conscience,” id. at 846, 118 S.Ct. 1708 (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)), the Court continued:

Most recently, in Collins v. Harker Heights, [503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)], we said again that the substantive component of the Due Process Clause is violated by executive action only when it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.”

Lewis, 523 U.S. at 847, 118 S.Ct. 1708 (emphasis added). See also Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir.1994) (en bane) (“[T]he substantive component of the Due Process Clause can only be violated by governmental employees when their conduct amounts to an abuse of official power that ‘shocks the conscience.’”). At the same time, however, the Lewis Court acknowledged that “the measure of what is conscience-shocking is no calibrated yard stick,” Lewis, 523 U.S. at 847, 118 S.Ct. 1708, and that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in another.” Id. at 850, 118 S.Ct. 1708.5

Our Court has echoed these comments. Since Lewis, our cases have repeatedly acknowledged that executive action vio*400lates substantive due process only when it shocks the conscience but that the meaning of this standard varies depending on the factual context. See, e.g., Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir.2002); Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396, 400 (3d Cir.2000); Nicini v. Morra, 212 F.3d 798, 809 (3d Cir.2000) (en banc); Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d Cir.1999).

Despite Lewis and the post-Lewis Third Circuit cases cited above, United Artists maintains that this case is not governed by the “shocks the conscience” standard, but by the less demanding “improper motive” test that originated with Bello v. Walker, 840 F.2d 1124 (3d Cir.1988), and was subsequently applied by our court in a line of land-use cases. In these cases, we held that a municipal land use decision violates substantive due process if it was made for any reason “unrelated to the merits,” Herr v. Pequea Township, 274 F.3d 109, 111 (3d Cir.2001) (citing cases), or with any “improper motive.” See, e.g., Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir.2000); Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir.1995); DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592 (3d Cir.1995); Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir.1993); Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir.1991).

These cases, however, cannot be reconciled with Lewis’s explanation of substantive due process analysis. Instead of demanding conscience-shocking conduct, the Bello line of cases endorses a much less demanding “improper motive” test for governmental behavior. Although the District Court opined that there are “few differences between the [shocks the conscience] standard and the improper motive standard,” we must respectfully disagree. Aug. 15, 2001 order at 9 n. 5, in App. at 11a. The “shocks the conscience” standard encompasses “only the most egregious official conduct.” Lewis, 523 U.S. at 846, 118 S.Ct. 1708. In ordinary parlance, the term “improper” sweeps much more broadly, and neither Bello nor the cases that it spawned ever suggested that conduct could be “improper” only if it shocked the conscience. We thus agree with the Supervisors that the Bello line of cases is in direct conflict with Lewis.

We also reject the District Court’s suggestion that the application of the Bello “improper motive” test in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir.2000), which came after Lewis, means that our Court has sub silentio held that Lewis did not alter prior circuit law. The opinion in Woodwind Estates makes no mention of Lewis, and Lewis was not even cited in the Woodwind Estates briefs. Under these circumstances, Woodwind Estates clearly does not preclude us from considering whether Bello and its progeny remain good law. As the Supreme Court commented in Texas v. Cobb, 532 U.S. 162, 169, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001), when it was argued that one of its prior decisions had decided a question that the parties had not argued and the Court had not addressed: “Constitutional rights are not defined by inferences from opinions which did not address the question at issue.”6

The dissent, however, asserts: “Unlike the Majority, I am fully comfortable as*401suming that this Court in Woodwind ... (as in any other case it decides) was completely aware of the content of all published Supreme Court case law that may bear on the case at hand, especially in such a fundamental area as Due Process.” Dissent at 405-06. This image of the omniscient circuit judge — who has every potentially pertinent precedent in mind at all times and never fails to grasp their possible implications — is flattering but perhaps not entirely accurate. And in any event, the dissent’s assumption about what the Woodwind Estates panel was “aware of’ is beside the point. The pertinent question is not whether the members of the Woodwind Estates panel had read and recalled Lewis or even whether its possible implications for the Bello line of cases crossed their minds. Rather, the pertinent question is whether the Woodwind Estates panel, without providing so much as a hint in their opinion that they were doing so, decided that Lewis did not undermine the Bello line of cases and thereby foreclosed this panel or any other panel from considering that question. The answer to that question is too obvious to need stating. It is not an accepted practice of any appellate court to decide important questions without revealing that it has done so.

In sum, we see no reason why the present case should be exempted from the Lewis shocks-the-conscience test simply because the case concerns a land use dispute. Such a holding would be inconsistent with the plain statements in Lewis and our own post-Lewis cases that we have already noted. Since Lewis, our court has applied the “shocks the conscience” standard in a variety of contexts. See, e.g., Boyanowski v. Capital Area Intermediate Unit, 215 F.3d 396 (3d Cir.2000) (applying the “shocks the conscience” test to a claim of civil conspiracy); Fuentes v. Wagner, 206 F.3d 335 (3d Cir.2000) (finding the “shocks the conscience” standard appropriate in an excessive force claim in the context of a prison disturbance); Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir.1999) (applying the “shocks the conscience” standard in the child custody context). There is no reason why land use cases should be treated differently. We thus hold that, in light of Lewis, Bello and its progeny are no longer good law.7

*402We note that our holding today brings our Court into line with several other Courts of Appeals that have ruled on substantive due process claims in land-use disputes. See, e.g., Chesterfield Development Corp. v. City of Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir.1992) (holding that allegations that the city arbitrarily applied a zoning ordinance were insufficient to state a substantive due process claim, and stating in dicta that the “decision would be the same even if the City had knowingly enforced the invalid zoning ordinance in bad faith.... A bad-faith violation of state law remains only a violation of state law.”); PFZ Properties, Inc. v. Rodriguez, 928 F.2d 28, 32 (1st Cir.1991) (“Even assuming that ARPE engaged in delaying tactics and refused to issue permits for the Vacia Talega project based on considerations outside the scope of its jurisdiction under Puerto Rico law, such practices, without more, do not rise to the level of violations of the federal constitution under a substantive due process label.”).

Application of the “shocks the conscience” standard in this context also prevents us from being cast in the role of a “zoning board of appeals.” Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir.1982) (quoting Village of Belle Terre v. Boraas, 416 U.S. 1, 13, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974) (Marshall, J., dissenting)); see also Nestor Colon Medina & Sucesores, Inc. v. Custodio, 964 F.2d 32, 45-46 (1st Cir.1992) (disagreeing with Bello and stating that “we have consistently held that the due process clause may not ordinarily be used to involve federal courts in the rights and wrongs of local planning disputes”). The First Circuit in Estabrook observed that every appeal by a disappointed developer from an adverse ruling of the local planning board involves some claim of abuse of legal authority, but “[i]t is not enough simply to give these state law claims constitutional labels such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under section 1983.” Estabrook, 680 F.2d at 833. Land-use decisions are matters of local concern, and such disputes should not be transformed into substantive due process claims based only on allegations that government officials acted with “improper” motives.

IV.

Having found that the District Court applied the wrong standard for evaluating United Artists’ substantive due process claim, we do not reach the second qualified immunity inquiry as to whether the constitutional right was clearly established at the time of the violation. We vacate the District Court’s denial of the Supervisors’ summary judgment motion and remand the case for further proceedings to determine whether United Artists can survive the Supervisors’ summary judgment motion in light of Lewis.

COWEN, Circuit Judge,

dissenting.

I.

The issue presented to the previous panel was whether the plaintiff had alleged a violation of a clearly established constitutional right that was sufficiently clear to a reasonable government official, specifically a township supervisor. In deciding that issue, this Court expressly affirmed the District Court’s use of the “improper motive” standard when it held that “we believe the [District [C]ourt properly analyzed the supervisors’ request for qualified immunity on summary judgment” and found the only error in that analysis to be the District Court’s failure to examine each supervisor’s request on an individual basis. At the very least, it was inherent in this Court’s holding that it was proper for the District Court to apply the “improper motive” standard to its substantive due process analysis in a municipal land use case. Because the previous panel already *403decided this issue, we are bound by this Court’s prior affirmance of the District Court’s application of the “improper motive” standard under law of the case doctrine, not to mention Internal Operating Procedure of the United States Court of Appeals for the Third Circuit 9.1. There-, fore, I respectfully dissent with the majority’s holding that law of the case doctrine does not control this appeal.

Under the law of the case doctrine, a panel of an appellate court generally will not reconsider a question that another panel has decided on a prior appeal in the same case. The doctrine is designed to protect traditional ideals such as finality, judicial economy and jurisprudential integrity. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); Arizona v. California, 460 U.S. 605, 618-19, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). The law of the case doctrine acts to preclude review of only those legal issues that the court in a prior appeal decided, either expressly or by implication; it does not apply to dicta. Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 988 F.2d 414, 429 (3d Cir.1993).

The law of the case doctrine does not restrict a court’s power, but rather governs its exercise of discretion. Public Interest Research Group of New Jersey, Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir.1997). Accordingly, we have recognized that the doctrine does not preclude our reconsideration of previously decided issues in extraordinary circumstances such as where: (1) new evidence is available; (2) a supervening new law has been announced; or (3) the earlier decision was clearly erroneous and would create manifest injustice. Id. at 116-17.

The previous panel expressly approved the District Court’s use of the “improper motive” standard in its holding:

Under existing case law, we believe the District Court properly analyzed the supervisors’ request for qualified immunity on summary judgment, having found that United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right. Nonetheless, we believe the District Court should have considered each supervisor’s request for qualified immunity individually rather than as a group. On remand, we direct the District Court to address each supervisor’s request for immunity on an individual basis or explain why the supervisors should be considered collectively.

November 29, 2000 Order, at 4-5 (emphasis added) (citations omitted).

The law of the case doctrine unquestionably governs this appeal. The previous panel’s statement that “United Artists at this stage sufficiently alleged a violation of a clearly established constitutional right” constitutes a holding. In the prior appeal, this Court expressly affirmed the District Court’s qualified immunity analysis of the supervisors as a whole, and found the only error to be the District Court’s failure to apply that same analysis to the supervisors individually. The panel did not direct the District Court to alter or reconsider its qualified immunity analysis, but only to address each of the supervisors individually under that same analysis.1

Moreover, there are no exceptional circumstances here that make it appropriate to reconsider the prior panel’s decision. See Public Interest Research Group of New Jersey, Inc., 123 F.3d at 116. Under *404both the law of the case doctrine and our own internal operating procedures, the majority is wrong to revisit an issue that has already been decided. See 3d Cir. I.O.P.9.1.2

The majority takes issue with the previous panel’s statement made in a footnote:

At oral argument this Court, sua sponte, raised two issues: ... (2) whether the “shocks the conscience” standard announced by the Supreme Court in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), is applicable to substantive due process claims like the one at issue here. At this time, we express no opinion whether these matters are appropriate in determining the merits of the substantive due process claim.

November 29, 2000 Order, at 4 n. 2. The majority argues that this footnote raises “substantial doubt as to whether a prior panel actually decided ... the applicable standard governing United Artists’ substantive due process claim.” Majority at 8. Given the holding of the prior panel contained in the body of the opinion, this footnote is mere dicta. The holding of the case and instructions to the District Court were to apply the same “improper motive” standard to the supervisors individually. Even if one were not to accept the express holding of the prior panel in light of this footnote, it is quite clear that the “improper motive” issue was decided by “necessary implication” and therefore also subject to the law of the case doctrine.

In AL Tech Specialty Steel Corp. v. Allegheny Int’l Credit Corp., we held that the' law of the case doctrine applies to decisions rendered even by a judgment order because the doctrine also applies to issues that are decided by necessary implication. 104 F.3d 601, 605 (3d Cir.1997). In that case, Allegheny International argued that 11 U.S.C. § 502(e)(1)(B)3 of the Bankruptcy Code barred AL Tech’s claim. The Bankruptcy Court agreed. On appeal to the District Court, the District Court held that § 502(e)(1)(B) barred only contingent claims under these conditions. It allowed AL Tech’s claim to the extent that it was a direct claim against Allegheny International under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. Al Tech Specialty Steel Corp., 104 F.3d at 605. This Court affirmed the District Court by judgment order. When appealed a second time to this Court, Allegheny International urged the second panel to examine the question whether AL Tech’s claim was barred under § 502(e)(1)(B). In an opinion written by Judge Alito, we held that “In this case, the panel that heard the prior appeal necessarily decided that AL Tech’s claim was not barred by § 502(e)(1)(B). The law of the case doctrine applies to this decision even though it was rendered by judgment order because that doctrine ‘applies both to issues expressly decided by a court in prior rulings and to issues decided by necessary impli *405 cation.’ ” Id. (citing Bolden v. SEPTA, 21 F.3d 29, 31 (3d Cir.1994) (emphasis added)).

This appeal presently before us presents an even stronger reason for the application of the doctrine of law of the case and I.O.P. 9.1, given the prior panel issued a written opinion holding that the “improper motive” was the correct rule of law to apply. The prior panel was required to determine whether the actions of the supervisors, as alleged by plaintiff, violated a clearly established constitutional right that was sufficiently clear to a reasonable government official. Inherent in this inquiry is the determination of whether the supervisors’ actions rose to a level of a substantive due process violation; if the alleged actions were insufficient to amount to a violation, the supervisors’ actions could not violate a clearly established constitutional right. Resolution of the question of the correct standard to apply in the context of a municipal land use case based upon the summary judgment record was integral to the Court’s analysis in affirming the District Court’s denial of summary judgment on the question of qualified immunity. Despite footnote 2 of the prior panel’s opinion, we are bound under law of the case doctrine and I.O.P. 9.1 by this Court’s prior approval of the District Court’s application of the “improper motive” standard.

II.

In addition to my belief that law of the case doctrine controls in this matter, I further disagree with the proposition that only “shocks the conscience” language may be used to analyze municipal land-use context substantive Due Process cases.

First, the Majority’s reliance on Lewis is misguided. Lewis was a high speed police chase case where the resulting injury was death. That scenario is extremely far afield from the factual setting we have here. The Lewis Court was not presented with a choice between “improper motive” or “shocks the conscience” in the unique arena of Fourteenth Amendment-protected property rights as they relate to local land use decisions. Rather, the Supreme Court reviewed the case for a carefully delineated reason and described the issue for review narrowly. More specifically, the Court “granted certiorari ... to resolve a conflict among the Circuits over the standard of culpability on the part of a law enforcement officer for violating substantive due process in a pursuit case.” Lewis, 523 U.S. at 839, 118 S.Ct. 1708; see also id. at 836, 118 S.Ct. 1708 (“The issue in this case is whether a police officer violates the Fourteenth Amendment’s guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender.”). Although finding that the “shocks the conscience” standard is “not inappropriate to an excessive force claim in the context of a prison disturbance,” we acknowledged in Fuentes v. Wagner, 206 F.3d 335 (3d Cir.2000), cert. denied, 531 U.S. 821, 121 S.Ct. 63, 148 L.Ed.2d 29 (2000), that “our recent decisions suggest that the [‘shocks the conscience’] standard may only apply to police pursuit cases,” id. at 348 (citations omitted).

Second, the Majority opinion gives far too little weight to the fact that this Circuit has a well-established jurisprudence employing the improper motive test in the substantive Due Process land-use context. The cases are legion. See Bello v. Walker, 840 F.2d 1124 (3d Cir.1988) (seminal case); DeBlasio v. Zoning Board of Adjustment, 53 F.3d 592 (3d Cir.1995); Blanche Road Corp. v. Bensalem Township, 57 F.3d 253 (3d Cir.1995); Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir.1998); Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118 (3d Cir.2000); Herr v. Pequea Township, 274 F.3d 109 (3d *406Cir.2001); see also Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685 (3d Cir.1993). Moreover, and perhaps most importantly, this Court has continued to apply and cite to the “improper motive” test even after the decision in Lewis was handed down. See Doby v. DeCrescenzo, 171 F.3d 858 (3d Cir.1999); Woodwind, 205 F.3d 118; Nicholas v. Pennsylvania State University, 227 F.3d 133 (3d Cir.2000); Khodara Envtl., Inc. v. Beckman, 237 F.3d 186 (3d Cir.2001); Omnipoint Communications Enters., L.P. v. Zoning Hearing Bd., 248 F.3d 101 (3d Cir.2001); Herr, 274 F.3d 109.

Unlike the Majority, I am fully comfortable assuming that this Court in Woodwind and Nicholas (as in any other case it decides) was completely aware of the content of all published Supreme Court case law that may bear on the case at hand, especially in such a fundamental area as Due Process. Had the Woodwind or Nicholas Courts felt that Lewis precluded the use of the improper motive standard of constitutionally tortious conduct, they surely would have expressed that point. They did not do so. The Majority relies on the fact that the Woodwind Court never mentioned Lewis. True enough. But the Majority overlooks the fact that other Third Circuit cases do mention Lewis. In fact, when Judge Alito’s opinion in Nicholas is read, it answers the question addressed by him today, with the opposite result. The Nicholas Court, citing approvingly to Bello and Woodwind, affirmatively states that “improper motive” is an appropriate substantive Due Process test. It references Lewis in saying that “shocks the conscience” is also an appropriate test. As United Artists points out, the standard is clearly stated in the disjunctive:

[W]e have held that a property interest that falls within the ambit of substantive due process may not be taken away by the state for reasons that are “arbitrary, irrational, or tainted by improper motive,” Woodwind Estates, Ltd. v. Gretkowski 205 F.3d 118, 123 (3d Cir.2000) (quoting Bello v. Walker, 840 F.2d 1124, 1129 (3d Cir.1988)), or by means of government conduct so egregious that it “shocks the conscience,” Boyanowski [v. Capital Area Intermediate Unit, 215 F.3d 396 (3d Cir.2000)] (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).

Nicholas, 227 F.3d at 139 (emphasis added).

Judge Alito’s explanation of post-Lewis Third Circuit jurisprudence in Nicholas was not an isolated summary of the extant law. One year later, in Khodara, he cited authoritatively to his opinion in Nicholas for the proposition that a substantive Due Process claim is made out with “improper motive.” The Khodara Court was certainly aware of the existence of Lewis because, like the Nicholas Court, it actually cites Lewis in the same paragraph where it recognizes “improper motive” as a valid Due Process, standard. See Khodara, 237 F.3d at 197.

Whether or not our post-Lewis statements are dicta need not detain us. These are affirmations by our Court stating or alluding to the law being that it is a violation of substantive due process for public officials to act intentionally with an improper motive.

Third, tossing every substantive Due Process egg into the nebulous and highly subjective “shocks the conscious” basket is unwise.4 It leaves the door ajar for inten*407tional and flagrant abuses of authority by those who hold the sacred trust of local public office to go unchecked. “Shocks the conscience” is a useful standard in high speed police misconduct eases which tend to stir our emotions and yield immediate reaction. But it is less appropriate, and does not translate well, to the more mundane world of local land use decisions, where lifeless property interests (as opposed to bodily invasions) are involved.5 In this regard, it appears rather difficult to analogize the intentional and illegal denial of a building permit to the forced pumping of the human stomach, the infamous fact pattern that begat “shocks the conscience” as a term of constitutional significance. See Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 96 L.Ed. 183 (1952). It is the jurisprudential equivalent of a square peg in a round hole. Yet, under the Majority opinion, it is with this awkward analogy that our district courts will now struggle. The confusion and potential for disparate results across the districts will haunt us for years to come. It is our manifest responsibility as an appellate tribunal to prevent that quagmire by providing a clear standard for the bench and bar. Our “improper motive” line of land use cases serves that purpose and, even after Lewis, this Court has. not impugned its vitality. I see no legitimate reason to abandon it now.

I agree with the Majority that land use decisions are generally issues of “local concern.” But those very same decisions necessarily assume constitutional dimension when the calculated, intentional and deliberate abuse of government power is at hand. See Lewis, 523 U.S. at 846, 118 S.Ct. 1708 (“the Due Process Clause was intended to prevent government officials from abusing [their] power ....”) (citations omitted); Id. at 848-49, 118 S.Ct. 1708 (intentional conduct by government official falls at the polar end of Tort law’s “culpability spectrum” in substantive Due Process cases); Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (“Historically, [the] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty or property”) (emphasis in original) (citations omitted); Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government”) (citations omitted). The concern that the federal Judiciary will become a local zoning board takes a permanent back seat to the federal Judiciary’s obligation to protect the core constitutional freedoms of the American public from deliberate and intentional governmental deprivation.

In sum, I would hold fast to the scheme that is already firmly entrenched in this Circuit: In land use constitutional tort cases, the government’s conduct may be judged under an “improper motive” framework. The evisceration of this standard by the Majority today is a most unfortunate step backwards in the evolution of S 1983 as the legislative guardian of bedrock constitutional rights. I am deeply concerned that there will be consequences.

III.

Even if “shocks the conscience” is the language we must employ to the exclusion *408of any other (which it is not), the alleged behavior in this ease resolutely shocks the conscience. Public officials, sworn to uphold the law, deliberately extracted money, knowing that it was improper for them to do so. In contemporary America, under compelling norms of basic human decency, it would be shocking that such officials improperly and illegally obtained money in matters that come before them. There is little if any distinction between the taking of money for the purposes alleged in this ease, and money taken to line the officials’ individual pockets. For all of the foregoing reasons, I must dissent.

*8ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2005-06).1 The circuit court concluded that Town of Rhine, Wis., Municipal Code § 4.08(2)(a),2 "B-2 Commercial Manufacturing or Processing," is unconstitutional and that the defendants' nuisance ordinance violations should be dismissed. The court of appeals certified two issues to this court.

¶ 2. The first issue is whether Town of Rhine, Wis., Municipal Code § 4.08(2)(a) is unconstitutional on its face. We conclude that § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare.

¶ 3. The second issue is whether the circuit court properly dismissed the defendants' nuisance ordinance violations. We conclude that the circuit court applied a common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. As a result, we remand to the circuit court to apply the code's definition of "public nuisance."

*9¶ 4. Therefore, we affirm in part, reverse in part, and remand to the circuit court for a new hearing on the public nuisance claim.

I. FACTS

¶ 5. On October 1, 2003, the Manitowoc Area Off Highway Vehicle Club, Inc., (hereinafter "the Club") purchased 77.2 acres of land in section twelve of the Town of Rhine, Sheboygan County. The zoning classification of this land has been "B-2 Commercial Manufacturing or Processing" for 20 years. Within this classification, "[t]here are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-l, A-2 and A-3 may be authorized in conjunction with any conditional uses .... All uses are conditional and shall comply with the provisions of Section 4.09 [Conditional Uses] of this ordinance." Town of Rhine, Wis., Municipal Code § 4.08(2)(a). Conditional uses in the "B-2 Commercial Manufacturing or Processing" district include: (1) fabrication of consumer or industrial commodities; (2) garbage, rubbish, offal, industrial waste and dead animal reduction or disposal; (3) quarrying; (4) mining and ore processing; (5) salvage yards for wood, metals, papers and clothing; and (6) stockyards.3 Id.

*10¶ 6. After purchasing the property in 2003, cluh members used the property for riding all-terrain vehicles (ATVs) and hunting. On January 6, 2004, pursuant to a request by the Town of Rhine, the Club's president appeared at a Town of Rhine board meeting.4 At the meeting, the Club president was asked what activities were occurring on the property. The Club president responded that members "are a group of families that live in the city limits and don't own enough property to enjoy outdoor recreation such as hunting, horseback riding, bicycling, ATV riding etc."

¶ 7. Chairman Sager asked if the Club members were aware that the land was zoned B-2 when they purchased the land. The Club president responded that the Club's attorney informed them that "because it was zoned business and not residential[,] the manner in which they are using the land should not be an issue." Chairman Sager then related that B-2 zones require a conditional use permit "for any use of the land." He further stated that "an application should be directed to the Plan Commission for either a CUP [conditional use permit] or rezoning." The Club president then asked whether he needed to apply for specific uses or different zoning. Chairman Sager answered that it would depend on how they intended to use the land.

¶ 8. On May 19, 2004, the Club applied for a conditional use permit. In the conditional use application, the Club stated that it wanted to use the property for recreational activities, such as hunting and riding ATVs. The application stated, "[t]his IS NOT a request for a commercial or industrial operation." The condi*11tional use permit was denied on September 7, 2004.5 Although the record is unclear as to when, the Club also applied for the B-2 zone to be rezoned to a B-l, "Neighborhood Business" district. That rezoning request was also denied, but it is unclear from the record when it was denied.

¶ 9. On October 10, 2004, the Elkhart Lake Police Department issued citations to six club members for violating the Town of Rhine's Public Nuisance Ordinance. Town of Rhine, Wis., Municipal Code § 2.01. On December 14, 2004, a consolidated trial was held for all six defendants. The Elkhart Lake Municipal Court dismissed the ordinance violation due to insufficient evidence. Pursuant to Wis. Stat. § 800.14, the Town of Rhine appealed the municipal court's decision to the Sheboygan County Circuit Court.

- ¶ 10. On December 19, 2004, in Sheboygan County Circuit Court, the Town of Rhine filed a complaint that alleged two causes of action. In the first cause of action, regarding the public nuisance violations of the ordinance, the Town of Rhine asked for a de novo review of the dismissed citations. In the second cause of action, regarding the zoning violation, the Town of Rhine asked for a determination of whether the Club was violating the Town of Rhine's zoning code, and the Town of Rhine sought an order enjoining the Club from operating ATVs on the, property.

¶ 11. On August 29, 2005, a trial to the court was held. On January 13, 2006, the circuit court issued a written decision. In that decision, the circuit court characterized the two issues as follows: (1) whether the Town of Rhine B-2 zone use restriction was constitu*12tional; and (2) whether the Club's use of the property constituted a public nuisance.

¶ 12. The circuit court concluded "that a zoning ordinance which bars all uses within a district is unreasonable." It further stated that "a zoning ordinance which permits no uses within a district is confiscatory in nature and oppressive." Accordingly, the circuit court concluded that the zoning ordinance was unconstitutional. With respect to the nuisance claim, the circuit court determined that although the ordinance related to a public nuisance, the Town of Rhine's claim was an attempt to abate a private nuisance. The circuit court, citing to Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, stated that a nuisance is a public nuisance if "the condition or activity interferes with the public right or use of public space." The circuit court determined that the nuisance could not be a public nuisance because the property at issue was not a public place, and the Club's activities did not affect the entire community. As a result, it concluded that the Town of Rhine lacked standing to advance the claim. The Town of Rhine appealed the circuit court's decision. Pursuant to Wis. Stat. § 809.61, the court of appeals certified this case to us for review and determination. We accepted the certification.

II. STANDARD OF REVIEW

¶ 13. "The interpretation and application of an ordinance to an undisputed set of facts is a question of law, which this court decides de novo." Bruno v. Milwaukee County, 2003 WI 28, ¶ 6, 260 Wis. 2d 633, 660 N.W.2d 656. The constitutionality of an ordinance is also a question of law, which this court reviews de novo. Wilke v. City of Appleton, 197 Wis. 2d 717, 726, 541 N.W.2d 198 (Ct. App. 1995).

*13III. ANALYSIS

¶ 14. The Club argues that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it violates due process in that any use of the property is prohibited unless the landowner obtains a conditional use permit. It further argues that there are no clear and objective standards for the landowner to obtain a conditional use permit. The Town of Rhine, on the other hand, argues that Municipal Code § 4.08(2)(a) is constitutional. It argues that the B-2 District does allow for certain uses of the property under a conditional use permit, and therefore, it is inaccurate to assert that B-2 zoning does not allow any use. The Town of Rhine also argues that Municipal Code § 4.01 sets forth adequate standards for obtaining a conditional use permit, and it asserts tha,t a number of other municipalities have conditional use provisions similar to the Town of Rhine. We conclude that § 4.08(2)(a) is unconstitutional on its face.

A. Zoning principles

¶ 15. Zoning ordinances and land use regulations have a useful, valid purpose, and the government has broad authority to enact such classifications for the purpose of promoting health, safety, morals or the general welfare of the community. State ex rel. American Oil Co. v. Bessent, 27 Wis. 2d 537, 544-46, 135 N.W.2d 317 (1965).

,¶ 16. The Town of Rhine has adopted village powers pursuant to Wis. Stat. § 61.35, which states that the powers and duties conferred and imposed by Wis. Stat. § 62.23, "City Planning," applies to village officials. *14Zoning of municipalities is, therefore, accomplished pursuant to § 62.23(7) and its subsections.

¶ 17. "Zoning ordinances comprehensively assign compatible land uses to zoning districts throughout the community." Daniel R. Mandelker, Land Use Law § 1.04, at 1-4 (5th ed. 2003). The municipality is generally divided into different districts, such as residential, commercial, and industrial.6 Id. The use of comprehensive zoning arose in the early twentieth century, and the United States Department of Commerce encouraged the use of comprehensive zoning by publishing the model "state enabling act."7 1 Kenneth H. Young, Anderson's American Law of Zoning § 1.14, at 21 (4th ed. 1996). Comprehensive zoning earned the *15approval of this court as early as 1923. State ex rel. Carter v. Harper, 182 Wis. 148, 196 N.W. 451 (1923); see also Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) (upholding a comprehensive zoning ordinance). Wisconsin's enabling act is found in Chapter 62 of the Wisconsin Statutes. See Wis. Stat. § 62.23.

¶ 18. In American Oil Co., this court stated that a comprehensive zoning ordinance was a justified "exercise of the police power not only in the interest of public health, morals, and safety, but particularly for the promotion of public welfare, convenience and general prosperity." 27 Wis. 2d at 544. A comprehensive zoning ordinance, enacted pursuant to Wis. Stat. § 62.23, is presumed valid and must be liberally construed in favor of the municipality. American Oil Co., 27 Wis. 2d at 546.

¶ 19. In general, zoning ordinances provide landowners with permitted uses, which allow a landowner to use his or her land, in said manner, as of right. Mandelker, supra, § 6.39, at 6-44. "Most ordinances impose a broad division of land uses, and, in addition, provide that specified uses may be established or maintained in named districts, only pursuant to a special permit...." 3 Young, supra, § 21.01, at 693-94. "Uses are permitted in designated districts because they are thought to be compatible with other uses permitted in such district." 2 Young, supra, § 9.20, at 169.

¶ 20. In addition to permitted uses, ordinances may also provide for conditional uses by virtue of a special use or conditional use permit.8 A conditional *16use, however, is different than a permitted use. See S. Mark White, Classifying and Defining Uses and Building Forms: Land-Use Coding for Zoning Regulations, American Planning Association Zoning Practice, Sept. 2005, at 8. While a permitted use is as of right, a conditional use does not provide that certainty with respect to land use. See id. Conditional uses are for those particular uses that a community recognizes as desirable or necessary but which the community will sanction only in a controlled manner. State ex rel. Skelly Oil Co. v. Common Council, City of Delafield, 58 Wis. 2d 695, 701, 207 N.W.2d 585 (1973); 3 Young, supra, § 21.06 (discussing uses commonly subject to special permit requirements).

¶ 21. A conditional use permit allows a property owner "to put his property to a use which the ordinance expressly permits when certain conditions [or standards] have been met." Skelly Oil Co., 58 Wis. 2d at 701. The degree of specificity of these standards may vary from ordinance to ordinance.9 3 E.C. Yokley, Zoning *17 Law and Practice § 21-1, at 21-4 (4th ed. 2002) (2002 revision by Douglas Scott MacGregor).

¶ 22. A zone that provides for use of property only when a landowner obtains a conditional use permit may face scrutiny. See Julian Conrad Juergensmeyer & Thomas E. Roberts, Land Use Planning and Development Regulation Law 283-84 (2d ed. 2007).10 Condi*18tional use permits, however, remain a widely accepted tool of municipal planning.11 Skelly Oil Co., 58 Wis. 2d at 700-01.

¶ 23. Allowing for conditional uses, in addition to permitted uses as of right, makes sense when one considers the purpose of the conditional use permit. First, conditioned uses are flexibility devices, "which are designed to cope with situations where a particular use, although not inherently inconsistent with the use classification of a particular zone, may well create special problems and hazards if allowed to develop and locate as a matter of right in [a] particular zone." Id. at 701; see also Gail Easley, Conditional Uses: Using Discretion, Hoping for Certainty, American Planning Associa*19tion Zoning Practice, May 2006, at 2 (identifying conditional uses as flexibility devices).

¶ 24. Second, conditional use permits are appropriate for "certain uses, considered by the local legislative body to be essential or desirable for the welfare of the community .. ., but not at every or any location . . . or without conditions being imposed ...." Mandelker, supra, § 6.54, at 6-61 (citation omitted). Thus, those uses subject to a conditional use permit are necessary to the community, but because they often represent uses that may be problematic, their development is best governed more closely rather than as of right.

¶ 25. "Conditional use permits" — also referred to as "conditional uses" — however, should not be confused with "conditional-use district zoning"12 or "conditional zoning." In "conditional-use district zoning," "a landowner requests that some property be placed in a new zoning district that has no permitted uses, only special or conditional uses." David W Owens, Legislative Zoning Decisions 93 (2d ed. 1999). In such zoning:

[T]he ordinance text is amended to create a set of conditional-use districts. These conditional-use districts have no permitted uses as of right: no new use of land may be undertaken unless a special- or conditional-use permit is first secured. Often there is one conditional-use district to correspond with each regular or general zoning district. These conditional-use districts are "floating zones"; that is, they are not *20applied to any property until a petition to apply them is made by the landowner....

Id. (footnote omitted). "Conditional zoning," on the other hand, is rezoning that is made "subject to the owner's acceptance of additional requirements that otherwise are not applied in the new zoning district." Id. at 97; see also Mandelker, supra, § 6.62 (discussing "conditional zoning").

B. Constitutional principles

¶ 26. The role of courts in zoning matters is limited because zoning is a legislative function. Buhler v. Racine County, 33 Wis. 2d 137, 146-47, 146 N.W.2d 403 (1966). An ordinance is presumed valid and must be liberally construed in favor of the municipality. American Oil Co., 27 Wis. 2d at 546. The party challenging the constitutionality of an ordinance bears a heavy burden. See generally 1 Young, supra, §§3.01, 3.14. In Wisconsin, "an ordinance will be held constitutional unless the contrary is shown beyond a reasonable doubt[,] and the ordinance is entitled to every presumption in favor of its validity." Highway 100 Auto Wreckers, Inc. v. City of West Allis, 6 Wis. 2d 637, 646, 96 N.W.2d 85 (1959); see also 1 Young, supra, § 3.22 (discussing the beyond a reasonable doubt standard in Wisconsin).13 "Consequently, although a court may dif*21fer with the wisdom, or lack thereof, or the desirability of the zoning, the court, because of the fundamental nature of its power, cannot substitute its judgment for that of the zoning authority in the absence of statutory authorization." Buhler, 33 Wis. 2d at 146-47.

¶ 27. Nonetheless, a properly enacted ordinance must satisfy constitutional requirements. Pearson v. City of Grand Blanc, 961 F.2d 1211, 1223 (6th Cir. 1992) (stating that "the zoning power is not infinite and unchallengeable; it 'must be exercised within constitutional limits'"). Land use litigation generally arises out of the manner "in which zoning text and ordinance classify land into zoning districts." Mandelker, supra, § 1.04, at 1-5. Constitutional challenges may arise, for example, under the takings, due process, or equal protection clauses of the state and federal constitutions. Pearson, 961 F.2d at 1215-16; see generally Mandelker, supra, ch. 2, "The Constitutional Framework." Substantive due process claims with regard to land use regulation,. as we see in this case, do not have high success rates. Id., § 2.39, at 2-46; but see 1 Yokley, supra, § 3A-l(c) (stating that "[sjubstantive due process claims in land use litigation are occurring with more frequency"). Under the due process clause, courts generally require that "land use controls must advance legitimate governmental interests that serve the public health, safety, morals, and general welfare." Mandelker, supra, § 2.39, at 2-46 through 2-47.

¶ 28. "The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving 'any person of life, liberty, or property without due process of *22law.' "14 Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (citation omitted); see also Laughter v. Board of County Comm'rs for Sweetwater County, 110 P.3d 875, 887-88 (Wyo. 2005). "The substantive component of the Due Process Clause protects individuals from 'certain arbitrary, wrongful actions 'regardless of the fairness of the procedures used to implement them.''" Penterman, 211 Wis. 2d at 480 (citations omitted). "Substantive due process forbids a government from exercising 'power without any reasonable justification in the service of a legitimate governmental objective.'" Thorp v. Town of Lebanon, 2000 WI 60, ¶ 45, 235 Wis. 2d 610, 612 N.W.2d 59 (citation omitted).

¶ 29. The United States Supreme Court has recognized a landowner's right to substantive due process in zoning cases. See Pearson, 961 F.2d at 1217, 1220 (citing to Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 263 (1977); Nectow v. City of Cambridge, 277 U.S. 183, 187 (1928); [Village of] Euclid[, Ohio] v. Ambler Realty Co., 272 U.S. 365, 373 (1926)). The Supreme Court has stated, "a zoning ordinance is unconstitutional when its 'provisions are clearly arbitrary and unreasonable having no substantial relation to the public health, safety, morals or general welfare.'" Thorp, 235 Wis. 2d 610, ¶ 45 (quoting Euclid, 272 U.S. at 395).

¶ 30. However, when evaluating a claim that a landowner's substantive due process rights have been violated, a plaintiff must show that he or she has been *23deprived of a property interest that is constitutionally protected. Thorp, 235 Wis. 2d 610, ¶ 46 (citing Penterman, 211 Wis. 2d at 480).15 "A property interest is constitutionally protected if 'state law recognizes and protects that interest.'" Thorp, 235 Wis. 2d 610, ¶ 46. "[I]t is well settled that the rights of ownership and use of property have long been recognized by this state." Penterman, 211 Wis. 2d at 480. Additionally, Wis. Stat. § 62.23(7)(b) provides that "[a]ll such regulations shall be uniform. . . for the use of land throughout each district, but the regulations in one district may differ from those in other districts."

C. Town of Rhine's B-2 District and conditional use ordinance

¶ 31. The Town of Rhine's Municipal Code § 4.08(2) (a) governs the permitted uses of the property at issue and provides:

(2) B-2 COMMERCIAL MANUFACTURING OR PROCESSING.

(a) Permitted Uses. There are no permitted uses in the B-2 District, except that those uses permitted in the Agricultural Land Districts A-l, A-2 and A-3 may be authorized in conjunction with any conditional uses by express reference in the issued conditional use permit and upon such terms as the Plan Commission may *24recommend and the Town Board shall determine. All uses are conditional and shall comply with the provisions of Section 4.09 of this ordinance.

(b) Conditional Uses. The following conditional uses may be authorized in the B-2 District pursuant to the provisions of Section 4.09 of this ordinance:

1. Fabrication of consumer or industrial commodities.

2. Garbage, rubbish, offal, industrial waste and dead animal reduction or disposal.

3. Quarrying: Gravel, sand, rock, and soil removal and processing. (Rev. 11/04/03)

4. Mining and ore processing.

5. Salvage yards for wood, metals, papers and clothing.

6. Stockyards.

¶ 32. Section 4.09 of the Town of Rhine's Municipal Code governs conditional uses, and it outlines the process to obtain a conditional use permit. "Determination of Plan Commission," § 4.09(4) provides:

The Plan Commission shall make such written findings and determinations as it deems appropriate based upon the information submitted to it and presented at the public hearing, and shall make a written recommendation to the Town Board with regard to such conditional use application.... In making its determinations and recommendations, the Commission shall be guided by the purposes, goals and intent set forth in or necessarily implied from Section 4.01 [Interpretation and Purpose] and any other applicable sections of this ordinance.

(Emphasis added.)

*25¶ 33. Section 4.01(1), "Purpose," in relevant part outlines that "[t]he purpose of this ordinance is to promote the health, safety, morals and general welfare of the Town of Rhine by regulating and restricting" the use of land. Section 4.01(2), "Intent," states:

It is the general intent of this ordinance to:

(a) Stabilize and protect property values and the tax base.

(b) Recognize the needs of agriculture, forestry, industry and business in future growth.

(c) Further the appropriate use of land and conservation of natural resources.

(d) Encourage the wise use, conservation, development and protection of the Town's water, soil, wetland, woodland and wildlife resources.

(e) Preserve natural growth and cover and promote the natural beauty of the township.

(f) Prevent overcrowding and avoid undue population concentration and urban sprawls.

(g) Facilitate the adequate provision of public facilities and utilities.

(h) Lessen congestion and promote the safety and efficiency of streets, highways and other transportation systems.

(i) Provide adequate light, air, sanitation, drainage and open space.

(j) Regulate the use of structures, lands and waters outside of shoreland areas.

(k) Regulate lot coverage, population density and distribution and the location and size of structures.

*26(L) Prohibit uses or structures incompatible with the natural characteristics, existing development or intended development within or adjacent to a zoning district.

(m) Implement those municipal, county, watershed or regional plans or their components adopted by the township.

D. Constitutionality of the Town of Rhine, Wis., Municipal Code § 4.08(2)(a), "B-2 Commercial Manufacturing or Processing"

¶ 34. We conclude that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare.

¶ 35. A facial substantive due process challenge, as the landowners have made in this case, is only one of many ways in which a landowner can challenge a limitation on the use of his or her land. See Pearson, 961 F.2d at 1215-16. However, facial substantive due process challenges are rarely successful. Mandelker, supra, § 2.39, at 2-46. The seminal zoning case, which involved a facial substantive due process challenge, is Euclid.16 See Mandelker, supra, § 2.06 (discussing Euclid). In Euclid, the court upheld the constitutionality of a comprehensive zoning ordinance against a facial substantive due process challenge. Id. at 2-9 and 2-10. The Village of Euclid adopted a comprehensive zoning ordinance that zoned the area in question so as to allow *27only residential use. See Euclid, 272 U.S. at 379-84. In so doing, it excluded all non-residential uses. Id. The Supreme Court noted that the exclusion of industrial use included even those industrial uses that are "neither offensive nor dangerous." Id. at 388. The Court concluded that "[i]t cannot be said that the ordinance in this respect 'passes the bounds of reason and assumes the character of a merely arbitrary fiat.'" Id. at 389 (citation omitted). The Court stated:

If it be a proper exercise of the police power to relegate industrial establishments to localities separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public, if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way.

Id. at 389-90.

¶ 36. In the wake of Euclid, other cases have helped to clarify the discussion regarding substantive due process challenges to zoning. See, e.g., Moore v. City of East Cleveland, Ohio, 431 U.S. 494, 498 n.6 (1977); Pearson, 961 F.2d 1211. Even so, the line between a valid or invalid exercise of police power remains less than clear. As the Court noted in Euclid, "[t]he line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities." Euclid, 272 U.S. at 387.

*28¶ 37. While the line between permissible and impermissible zoning may not always be readily ascertainable, the requisite standard that must be applied for a substantive due process challenge is clear: we must determine whether the ordinance is clearly arbitrary and unreasonable in the restricted sense that it has no substantial relation to the public health, safety, morals or general welfare.17 Euclid, 272 U.S. at 395; Pearson, 961 F.2d at 1223.

¶ 38. Certainly, municipalities may regulate where and under what circumstances certain less desirable uses, such as salvage yards and stockyards, may be developed. However, here no justification exists for precluding all uses in the B-2 District and only provid*29ing the landowner with the possibility of obtaining a conditional use permit. Ordinances can be drafted so the acceptable uses as of right do not conflict with the conditional uses. Municipalities have the power to zone property and restrict where particular undesirable uses may be developed within the municipality. However, zoning that restricts the land such that the landowner has no permitted use as of right must bear a substantial relation to the health, safety, morals or general welfare of the public in order to withstand constitutional scrutiny. In this case, the restricted use of the B-2 District land does not bear a substantial relation to the public health, safety, morals or general welfare.

¶ 39. We note that rather than precluding all uses as of right in a particular zone, the more common, acceptable practice is to provide for permitted uses as of right, and then in addition to permitted uses, the ordinance may provide for conditional uses. Case law, treatises, zoning journals, and the Town of Rhine's ordinance support this conclusion. Moreover, at least one treatise comments that a zone that only provides for use by virtue of a conditional use permit may face scrutiny. See Juergensmeyer & Roberts, supra, § 5.24, at 283-84 (stating that "[a] court will likely invalidate an ordinance that handles all uses by special permit" or conditional use permit).

1. Case law

¶ 40. Cases from Wisconsin and other jurisdictions support the conclusion that the common, accepted practice is to first outline permitted uses and then, in addition to permitted uses, the ordinance may provide for conditional uses. A number of cases illustrate this point, but they do not address the merits of a "no *30permitted uses zone."18 However, in Sheerr v. Township of Evesham, the Superior Court of New Jersey evaluated and applied the substantive due process standard to a parcel that provided no permitted uses and allowed use only when the landowner obtained a conditional use permit. 445 A.2d 46, 60-65 (N.J. Super. Ct. Law Div. 1982). The Sheerr court concluded that the ordinance was unconstitutional as-applied to the plaintiffs property. Id.

¶ 41. In Sheerr, the plaintiffs property was the only property zoned EP-1, and any use in the EP-1 zone was subject to a conditional use permit. Id. at 62. The EP-1 designation was based on environmental protection. Id. at 60. According to the ordinance, the property within the zone was of "unique character by virtue of the presence of a beech and maple hardwood forest with many holly trees thereon, the function of the area as a natural replenishing of ground water and the function of the area as a natural habitat for birds and other wildlife." Id. However, the justifications for "the severe restrictions affecting the plaintiffs premises were de*31molished by plaintiffs expert witnesses and the admissions of the township officials." Id.

¶ 42. The Sheerr court stated that an examination of the "conditional uses" led it to conclude that it represented arbitrary legislation. Id. at 63. For example, possible conditional uses there included private recreational areas such gs camps, golf courses, and athletic fields, but "[a]ll of these uses require the removal of a substantial number of trees, frustrating a central purpose of the EP-1 designation." Id. at 64. The ordinance also conditionally permitted a number of commercial uses but only on a five acre lot. Id. The court concluded that a commercial use represented the "only realistic possibility for the use of the plaintiffs property." Id. at 65. In so finding, the court considered the twelve significant requirements that a landowner would have to meet in order to get a conditional use permit, and as a result, the court characterized the likelihood of being able to use the property for any purpose as "very remote." Id. at 64-65. Accordingly, the court concluded that the legislation was arbitrary and the as-applied substantive due process challenge was successful.19 Id. at 63-65.

¶ 43. Here, we conclude that the B-2 District can be appropriately described as a "no permitted uses" *32zone, and we conclude that the no permitted uses B-2 District is arbitrary and unreasonable because it bears no substantial relation to public health, safety, morals or general welfare. However, we do recognize that there may be limited circumstances in which a "no permitted uses" zone is a valid exercise of power because the restriction bears substantial relation to the public health, safety, morals or general welfare. For example, in Dur-Bar Realty Co. v. City of Utica, 394 N.Y.S.2d 913, 918 (N.Y.A.D. 1977), the New York Supreme Court, Appellate Division, concluded that a "no permitted uses" zone was constitutional as the parcel at issue was in a "Land Conservation District and represented a zone located in the flood plain." Id. at 915-16, 918. The "Land Conservation District" "aimed to regulate the use" of land in a "flood prone area." Id. at 918. The ordinance at issue today does not include a similar purpose as in Dur-Bar Realty.

¶ 44. The court in Dur-Bar Realty identified several policy objectives for restricting use in a flood plain:

(1) the protection of individuals who might choose, despite the flood dangers, to develop or occupy land on a flood plain; (2) the protection of other landowners from damages resulting from the development of a flood plain and the consequent obstruction of the flood flow; (3) the protection of the entire community from individual choices of land use which require subsequent public expenditures for public works and disaster relief.

Id. The court concluded, "[i]t is beyond question that these objectives, which correspond closely to the stated purposes of the present ordinance, may be the subject of a legitimate exercise of the police power." Id. The court further stated that, " 'Land Conservation District' provisions do bear a substantial relation to legitimate governmental purpose and a reasonable relation to the *33goal of flood safety." Id. Thus, since the limitations related to flood safety, the restriction satisfied the relationship to the public health, safety, morals or general welfare.

¶ 45. In its analysis, the Dur-Bar Realty court contrasted the "flood plain" ordinance in that case with the ordinance at issue in Marshall v. Village of Wappingers Falls, 279 N.Y.S.2d 654 (N.Y.A.D. 1967). In Wappingers Falls, there were no permitted uses as of right in the "Planned Residential District" but twelve uses were available through a special permit. Id. at 655-56. The court in Wappingers Falls concluded that the "Planned Residential District was ultra vires because it was not zoning in accordance with a comprehensive plan." Id. The court in Dur-Bar Realty stated that the Planned Residential District in Wappingers Falls did not appear "in any way unusual in topography or location so as to justify the subjection of all use proposals to case by case decision." Dur-Bar Realty, 394 N.Y.S.2d at 916. In contrast, the court in Dur-Bar Realty concluded that the flood plain ordinance was "a product of assessment of the character of the land in light of the public health and safety interests in being protected against flooding and other hazards that would result from building in an area unsuitable for intensive development." Id.

¶ 46. State ex rel. Nagawicka Island Corp. v. City of Delafield, supports our conclusion that precluding any use is unreasonable. 117 Wis. 2d 23, 343 N.W.2d 816 (Ct. App. 1983). In Nagawicka Island, the landowner was prohibited from building because the island was only two acres and zoned A-l, which prevented building on lots of less than three acres. Id. at 24-25. The court of appeals concluded that "when zoning classifications restrict the enjoyment of property to such an extent *34that it cannot be used for any reasonable purpose, a taking without due process occurs." Id. at 27. While we do not rely on our takings clause jurisprudence today, as the court of appeals did in Nagawicka Island, the rationale employed supports our conclusion that providing no use is an unreasonable restriction.

¶ 47. In the case at hand, we conclude that the ordinance governing the B-2 District is arbitrary and unreasonable, in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare. Unlike in Dur-Bar Realty where restricting uses in a flood plain was directly tied to the health, safety, morals or general welfare of the public, no justification exists for precluding all uses as of right in the B-2 District.

2. Zoning treatises and journals

¶ 48. Leading zoning treatises support the notion that standard zoning practices contemplate permitted uses as of right that can be expanded upon by the administrative zoning function. Professor Mandelker writes:

The drafters of the Standard Zoning Act clearly contemplated a zoning process in which the uses designated by the zoning ordinance were permitted "as of right," but they also provided for an administrative zoning function. The Standard Act delegated this function to the board of adjustment. It authorized the board to grant variances from the zoning ordinance in cases of hardship, as defined in the Act, and to grant special exceptions authorized by provisions in the zoning ordinance. Many zoning ordinances use the term "special" or "conditional" use rather than "special exception. ..."

Mandelker, supra, § 6.39, at 6-44 (emphasis added).

*35¶ 49. In Anderson's American Law of Zoning, the observation is also made that "[m]ost ordinances impose a broad division of land uses," and, in addition, those ordinances then provide that "specified uses maybe established or maintained" pursuant to a special permit. 3 Young, supra, § 21.01, at 693-94.20 The Law of Municipal Corporations provides, "[zjoning ordinances that rely on the conditional use mechanism retain the usual residential, commercial and industrial zones specifying the uses permitted in each zone, and, in addition, establish conditional uses for each zone." 8 Eugene McQuillin, The Law of Municipal Corporations § 25.159 (3d ed. 2000).

¶ 50. Current zoning journals also support the conclusion that the common, accepted zoning practice is to provide permitted uses as of right and then, in addition to permitted uses, the ordinance may provide for conditional uses. For example, in an article of Zoning Practice, the author discusses the relationship between permitted and conditional uses. See Gail Eas-ley, Conditional Uses: Using Discretion, Hoping for Certainty, American Planning Association Zoning Practice, May 2006. The author writes, "[t]he fundamental purpose of the zoning ordinance is to establish districts (zones) which have a common set of permissible uses and a common set of site design standards within each." *36 Id. at 2. Permissible uses are " 'by-right' uses," i.e., "the uses are named in the zoning ordinance and a property owner has the right to establish the use so long as it conforms to the standards and criteria of the zoning ordinance." Id. at 2-3.

¶ 51. The author then contrasts permitted uses with conditional uses and notes that

there are often uses that would be welcome within the zoning district if additional standards could prevent them from undermining the purpose and intent of the district. ... Business and industrial districts also benefit from uses other than those permitted by right. For example, day care centers and restaurants are welcome near employment centers.

Id. at 3.

¶ 52. An article of Zoning News21 cautions about heavy or exclusive reliance on conditional use permits. The author wrote:

Some ordinances rely too much on special and/or conditional uses. Most land uses should be as-of-right, subject to compliance with clear and objective standards and criteria for that particular use category or zoning district. Discretionary approvals should be reserved for unique uses that defy regulations by objective standards. The routine employment of special uses, especially without (or with few) standards or criteria, opens up both individual zoning decisions and the zoning ordinance provision itself to constitutional challenges as being arbitrary and capricious. Even where such a challenge would not necessarily succeed, the *37uncertainty to landowners and citizens alike created by discretionary and/or standardless zoning review should be avoided.

John B. Bredin, Common Problems with Zoning Ordinances, American Planning Association Zoning News, Nov. 2002, at 2.

3. The Town of Rhine's Ordinance

¶ 53. While the ordinance section at issue in this case does not provide for any use as of right, other sections of the Town of Rhine's zoning ordinance follows the more traditional practice of first outlining permitted uses and then, in addition to permitted uses, providing for conditional uses.22 For example, consider the permitted and conditional uses in the Town of Rhine Municipal Code for the following districts:

(1) The Agricultural Land Districts. See Town of Rhine, Wis., Municipal Code § 4.05(2)(a) and (b) (providing such things as grazing, horticulture, and nature trails as permitted uses and providing such things as commercial stud housing and operation as a conditional use).

(2) The Residential Districts. See Town of Rhine, Wis., Municipal Code §§ 4.06(l)(a) and (b), 4.06(2)(a) and (b) (providing such things as one or two-family dwellings as a permitted use and providing such things as home occupations, involving the conduct of business on the premises, as a conditional use).

(3) Conservancy Districts. See Town of Rhine, Wis., Municipal Code §§ 4.07(l)(c) and (d), 4.07(2)(c) and (d) *38(providing such things as forestry and fur skin production as permitted use and providing all buildings or structures and any use of a residence for a home occupation as a conditional use).

(4) Commercial Districts. See Town of Rhine, Wis., Municipal Code § 4.08(l)(b) and (c) (providing such things as food stores, clinics, and business offices as permitted uses and providing such things as alcoholic beverages stores, automotive service, and bars as conditional uses).

E. The Town of Rhine's remaining arguments

¶ 54. The Town of Rhine asserts that there are permitted uses in the B-2 District in that the landowners can use the property without a conditional use permit, e.g., "recreational uses have always been allowed as incidental to the rural nature of certain types of property, especially in relatively undeveloped areas as exist in the Town of Rhine." However, nowhere is that outlined in the ordinance at issue. It is only in the newly amended ordinance that these allowances are made.23 *39The version of the ordinance governing this case, however, states, "[t]here are no permitted uses in the B-2 District."24 Furthermore, at the January 6, 2004 meeting, Chairman Sager stated that B-2 zones require a conditional use permit "for any use of the land." Therefore, it is clear that a landowner must acquire a conditional use permit, solely at the discretion of the Town of Rhine, in order to use the property in any way.

¶ 55. The Town of Rhine argues, under the code before us today, that conditional uses are permitted uses because once the standards have been satisfied a landowner is "entitled" to the conditional use. We disagree. First, we find authority contrary to the Town of Rhine's position. See, e.g., S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 402 N.E.2d 100, 103 (Mass. App. 1980) (stating that "[n]o one, of course, has an absolute right to a special permit"); S. Mark White, Classifying and Defining Uses and Building *40 Forms: Land-Use Coding for Zoning Regulations, American Planning Association Zoning Practice, Sept. 2005, at 8 (distinguishing between permitted uses as of right and conditional uses). Second, no authority cited by the Town of Rhine suggests that conditional uses are the same as permitted uses. To support its argument, the Town of Rhine relies on Delta Biological Resources, Inc. v. Board of Zoning Appeals of City of Milwaukee, 160 Wis. 2d 905, 910-11, 467 N.W.2d 164 (Ct. App. 1991). However, Delta simply does not support the Town of Rhine's contention that conditional uses are permitted uses. In Delta, the court of appeals, relying on Skelly Oil Co., stated: "A special or conditional use permit is one which the zoning code allows. A special use permit allows a property owner to put his or her property to a use expressly permitted by the zoning ordinance, but only if certain conditions are met." Delta, 160 Wis. 2d at 910 (footnote omitted) (citing Skelly Oil Co., 58 Wis. 2d at 700-01).

¶ 56. The Town of Rhine's argument is without merit. Permitted uses and conditional uses are different. Even though conditional uses may be authorized pursuant to the ordinance, that does not render them uses as of right. See Gail Easley, Conditional Uses: Using Discretion, Hoping for Certainty, American Planning Association Zoning Practice, May 2006, at 8 (distinguishing between permitted uses as of right and conditional uses). Conditional uses may be expressly permitted by the ordinance so long as the conditions are met, id., but this does not render them "permitted uses."

¶ 57. The Town of Rhine, citing to Primeco Communications v. City of Mequon, argues that an entitlement to a conditional use exists once the landowner *41submits the required information in reasonable compliance with the requirements of a particular conditional use ordinance. 242 F. Supp. 2d 567 (E.D. 2003). Primeco, however, does not support this argument. In Primeco, the district court stated:

Under Wisconsin law, a conditional use is one that is not inherently incompatible with a particular area, but which might create problems if permitted to locate there as a matter of right.

Zoning ordinances that rely on the conditional use mechanism retain the usual residential, commercial and industrial zones specifying the uses permitted in each zone, and, in addition, establish conditional uses for each zone, which are permitted within the zone only if approved by the local governmental body. In other words, a conditional use permit allows property to be put to a purpose that the zoning ordinance conditionally allows.

Id. at 576 (citations omitted) (emphasis added).

¶ 58. Even if an entitlement could be created under a conditional use permit, the Town of Rhine's argument presumes that the standards here are clear and specific enough that once complied with, the conditional use permit shall be issued. However, while we do not decide the constitutionality of the conditional use permit section, i.e., Municipal Code § 4.09(4), that section does not provide certainty. For example, the following standards for obtaining a conditional use permit are subject to significant interpretation: (1) stabilize and protect property values and the tax base; (2) recognize the needs of agriculture, forestry, industry, and business in future growth; (3) preserve natural growth and cover and promote the natural beauty of the township. See Town of Rhine, Wis.; Municipal Code § 4.01(2). How does a landowner, who applies for a conditional use permit, establish *42that a garbage dump or salvage yard will comply with these requirements, or others in § 4.01(2), so to "entitle" the landowner to a conditional use permit? These standards are simply not specific enough that one can reasonably say that any use as of right exists under the B-2 District, which has no permitted uses.

¶ 59. In addition, the language of this ordinance does not support the Town of Rhine's argument that the landowner is entitled to a conditional use permit as of right. No language exists in Municipal Codes § 4.08(2), B-2 District, or § 4.09, Conditional uses, that would create an entitlement to a conditional use permit. The ordinance does not state for example: If all requirements are met, the conditional use permit shall be granted. Furthermore, while discussing rules that generally govern conditional uses, Anderson's American Law of Zoning states, "[t]he designation of a use in a zoning district as a conditional use does not constitute an authorization or assurance that such use will be approved." 5 Alan C. Weinstein, Anderson's American Law of Zoning § 34.23, at 573 (4th ed. 1997). While perhaps not dispositive, this assertion casts doubt on the Town of Rhine's entitlement argument.

¶ 60. The Town of Rhine also argues that planned unit development zoning is the functional equivalent to Municipal Code § 4.08(2)(a), "B-2 Commercial Manufacturing or Processing." However, planned unit development districts are different because unlike the case before this court, planned unit development districts may only be established with the consent of the landowner. See Wis. Stat. § 62.23(7)(b) (discussing planned unit developments). The Town of Rhine argues that future landowners in planned unit development dis*43tricts are bound by the restricted uses entered into by the previous landowner. This, however, is an economic and quantifiable decision by the purchaser. It is not that such land has no use, it is that such land has designated rights and obligations. The landowners in the B-2 District did not make a choice to eliminate all permitted uses. Rather, the landowners are precluded from any use unless the Town of Rhine grants a conditional use permit. While the landowner who chooses to purchase land in the B-2 District has notice of the excessive restriction in the B-2 District, this does not, as we see here, preclude a constitutional challenge to the ordinance.

¶ 61. The Town of Rhine asserts that this matter is not properly before the court because the Club did not follow through with seeking a conditional use permit. Therefore, the Town of Rhine argues that we cannot determine if the Club was denied a conditional use permit for unreasonable or arbitrary reasons. The Town of Rhine argues that if the Club was denied a conditional use permit for arbitrary or unreasonable reasons, the Club may have a regulatory taking, or as-applied challenge. We do not disagree that one of these claims may be available if the Club was improperly denied a conditional use permit, but the case at hand is a facial substantive due process challenge to the B-2 zoning ordinance; this is not a challenge to the conditional use permit section of the ordinance, and it is neither a takings challenge nor an as-applied challenge.25

*44¶ 62. To be clear, after today, municipalities still have ample authority to regulate land use — and they should. Such regulation is an appropriate legislative function; it can serve to protect the health, safety and welfare of the public, and it encourages well reasoned growth. The issuance of conditional use permits also is an appropriate function for municipalities. Municipalities certainly have broad authority to restrict land use, but the district at issue today provides for no permitted *45use as of right, and the only use is garnered through the possibility of obtaining a conditional use permit. No reasonable justification exists for such excessive government control and restriction — especially when that government control is set against land use rights, and the control bears no substantial relation to the public health, safety, morals or general welfare.

¶ 63. The Town of Rhine argues that being able to restrict where less desirable uses develop is "the fundamental methodology of Euclidian zoning." We do not disagree, and moreover, we do not seek to limit the power of a town to regulate where and under what conditions land may be used. However, the Town of Rhine, in this case, fails to acknowledge that it can both regulate where undesirable uses develop, and it can provide for permitted uses as of right.

¶ 64. Precluding any permitted use and then only providing.generalized standards for obtaining a conditional use permit opens the door to favoritism and discrimination. Under this scenario, a town, pursuant to the ordinance, may arbitrarily preclude any activity on the land in question because (1) there are no permitted uses as a matter of right; and (2) if obtaining a conditional use permit is completely within the discretion of a town, judicial review of a denial is significantly limited because of the non-specific nature of the conditional use standards. As a result, if such an ordinance was deemed acceptable, towns could preclude all uses at will and in a manner that virtually precludes any meaningful judicial review. Such a determination could open the door to abuse. If permitted uses exist as of right, the impact of denying conditional uses is significantly decreased because the landowner has permitted uses as of right.

*46¶ 65. The facial, constitutional challenge here is sustained. This ordinance is not in balance with the rights of landowners. Because the landowners have demonstrated beyond a reasonable doubt that the ordinance at issue does not provide for any uses as of right, and this restriction in the B-2 District is arbitrary and unreasonable in the sense that it does not bear a substantial relation to public health, safety, morals or general welfare, we conclude that Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face. Accordingly, the Club has met its burden.

IV NUISANCE

¶ 66. The circuit court concluded that the Town of Rhine's allegation that its public nuisance ordinance was violated was actually the Town of Rhine's attempt to abate a private nuisance. The circuit court did not reach its decision by applying the ordinance's language. Instead, the circuit court concluded that the violations were for a "public nuisance." The circuit court, cited to Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, and stated that a nuisance is a public nuisance if "the condition or activity interferes with the public right or use of public space." The circuit court then concluded that because the property at issue was not a public place, and the Club's activities did not affect the entire community, the nuisance could not be a public nuisance.

¶ 67. Here, the circuit court erred because it did not apply the definition of "public nuisance" as stated in the Town of Rhine's ordinance. Instead of applying the ordinance language, the circuit court applied a *47common-law definition of "nuisance." The Town of Rhine, Wis., Municipal Code § 2.02, "Public Nuisance," differs from the common-law definition and provides as follows:

2.02 DEFINITIONS. (1) PUBLIC NUISANCE. A public nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to (a) Substantially annoy, injure or endanger the comfort, health, repose or safety of the public; (b) In any way render the public insecure in life or in the use of property; (c) Greatly offend the public morals or decency; (d) Unlawfully and substantially interfere with, obstruct or tend to obstruct or render dangerous for passage any street, alley, highway, navigable body of water or other public way or the use of public property.

¶ 68. Accordingly, we reverse and remand to the circuit court for a new hearing on the nuisance action wherein the court will decide the issues based upon the Town of Rhine, Wis., Municipal Code.

V CONCLUSION

¶ 69. We conclude that the Town of Rhine, Wis., Municipal Code § 4.08(2)(a), the B-2 District, is unconstitutional on its face because it is arbitrary and unreasonable in that it precludes any use as of right in the B-2 District and such limitation bears no substantial relation to the public health, safety, morals or general welfare. We further conclude that the circuit court applied a common-law definition of "nuisance" rather than the definition of "public nuisance" articulated in Town of Rhine, Wis., Municipal Code § 2.02. As a result, we remand to the circuit court for a new hearing on the public nuisance claim.

*48 By the Court. — The order of the circuit court is affirmed in part, reversed in part, and cause remanded to the circuit court.

SHIRLEY S. ABRAHAMSON, C.J.

¶ 70. {concurring). The majority opinion declares that the instant case is moot. Majority op., ¶ 54 n.23. Nevertheless the majority writes on, characterizing the issue of the constitutionality of a "permit use only zone" as one "of great public importance." Simultaneously the majority opinion acknowledges that it cannot, and does not, determine the constitutionality of any other ordinance creating a "permit use only zone" similar to that of the Town of Rhine. See majority op., ¶ 54 n.23. Each "permit use only zone" ordinance, according to the majority opinion, must be gauged individually to determine to whether the ordinance has a substantial relation to the public health, safety, morals or general welfare.

¶ 71. I write for three reasons:

¶ 72. First, I want to stress that the wisdom of a zoning ordinance is a decision for the municipality, not for this court.1

¶ 73. Second, nothing in this opinion should be read to imply that the ordinance at issue is struck down because the majority opinion characterizes the Town of Rhine's zoning ordinance as uncommon.2 The majority opinion is mistaken that the Town of Rhine ordinance is very unusual.3 In any event, I do not read the majority opinion as stating or implying that only ordinances adopted by a majority of municipalities can pass constitutional muster in this court.

*49¶ 74. Third, I want to emphasize the precepts to be gleaned from this lengthy opinion, many of which are basic, well-known principles of law that are applied in the present case. The teachings of the majority opinion may be summarized as follows:

1. A zoning ordinance, including a "permit use only zone," is "presumed valid and must be liberally construed in favor of the municipality." Majority op., ¶ 26. An ordinance "will be held constitutional [as a matter of substantive due process] unless the contrary is shown beyond a reasonable doubt." Majority op., ¶ 26.

2. The challenge to the ordinance at issue is a facial substantive due process challenge, not an as applied challenge, and not an eminent domain taking challenge.4 The majority opinion applies-, in keeping with precedent, a rational basis test to determine the validity of a law challenged on substantive due process grounds.5

*503. An ordinance, including a "permit use only zone," will be invalidated as a matter of substantive due process under the rational basis test only if it is clearly arbitrary and unreasonable, having "no substantial relation to the public health, safety, moral or general welfare." Majority op., ¶ 2.6 In applying the rational basis test, the court looks for support for the law that is challenged.7 The support for the law need not be expressed on the face of the law.

4. A "permit use only zone" is constitutional, as a matter of substantive due process, if it bears a substantial relation to the public health, safety, moral or general welfare.8 A "permit use only zone" is unconstitutional as a matter of substantive due process when it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, moral or general welfare.9

5. The "permit use only zone" at issue in the instance case is unconstitutional because nothing in the record or in the Town's arguments describes a relation between the "permit use only zone" and the public health, safety, morals or general welfare.10 The court has not independently found support for the ordinance.

6. The majority opinion does not determine the constitutionality of ordinances of other communities similar to the Town of Rhine's ordinance at issue in the instant case. Each such ordinance has to be examined individually to determine whether it bears a substan*51tial relation to the public health, safety, morals or general welfare. In other words, the validity of an ordinance similar to that of the Town of Rhine's shall be determined on case-by-case basis, with the ordinance liberally construed in favor of the municipality and entitled to a presumption in favor of its validity.11

¶ 75. I concur in the court's mandate but write separately for the reasons set forth.

JUSTICE ELLIS delivered the judgment of the court, with opinion.

*569¶ 1 Forty miles northwest of Chicago sits the Village of Barrington Hills, which prides itself on its "equestrian heritage," consisting in large part of sizeable lots amenable to the breeding, training, and raising of horses, and with miles of interwoven trails suitable for horseback riding. To that end, by ordinance, the Village permits its residents to engage in horse-boarding activities on their residential property.

¶ 2 In 2006, the Village amended its zoning code to permit residential horse boarding as a "home occupation," which essentially meant residents could board horses but subject to strict limitations and only during specified hours. Two years later, the Village cited intervenor-defendant Benjamin LeCompte III for violating the ordinance, claiming that he was conducting a large-scale commercial horse boarding operation that exceeded any "home occupation" as defined by ordinance. LeCompte fought the citation administratively and in court. While he held off the Village, other Village residents filed a lawsuit of their own, attempting to restrain his operation.

¶ 3 After he lost his appeal in this court against the Village and while he fended off a legal challenge from his neighbors, LeCompte turned to the Village's board of trustees (Board) for a legislative remedy.

¶ 4 His effort succeeded. In February 2015, the Board adopted an ordinance (Ordinance 14-19) over the president's veto that permitted large-scale horse boarding operations on residential property throughout the Village as a matter of right. It also made this rezoning retroactive to 2006, thus effectively validating LeCompte's operations from their inception *570*34and thereby eliminating the fines LeCompte had accumulated from the Village. The ordinance, in essence, gave LeCompte a legislative pardon.

¶ 5 Not everyone was pleased. Days after Ordinance 14-19's adoption, plaintiffs, residents of the Village who fear that large-scale horse boarding will destroy the residential character of the neighborhoods and lower their property values, filed suit in this case-lawsuit number three in this saga, the one before us now-alleging, among other things, that Ordinance 14-19 violated substantive due process because it was passed for the benefit of LeCompte only and was wholly unrelated to the public health, safety, and welfare.

¶ 6 Two months later, in April 2015, the composition of the Board changed following the consolidated election. The newly constituted Board now agrees with plaintiffs here that Ordinance 14-19 was unconstitutional. It also repealed Ordinance 14-19 in 2016, less than a year after it took effect.

¶ 7 What's more, the Village entered into an agreed settlement order with plaintiffs, agreeing that Ordinance 14-19 was void ab initio , and asked the trial court to enter judgment on that agreed order.

¶ 8 LeCompte and others intervened in this lawsuit below, moving to dismiss the constitutional challenge and objecting to the Village's and plaintiffs' attempt to "agree" that Ordinance 14-19 was void ab initio .

¶ 9 The circuit court refused to enter the agreed settlement order and then granted the intervenors' motion to dismiss the complaint, reasoning that this lawsuit was simply asking it to take sides in a policy debate, which it declined to do. Both of those rulings are challenged on appeal.

¶ 10 We affirm the trial court's rejection of the Village's and plaintiffs' agreed settlement order. But we cannot agree with the circuit court's assessment of Drury's due-process claim. Drury's complaint does not allege that the 2015 amendment was unconstitutional because the Board chose the wrong policy. Rather, he claims that Ordinance 14-19 violated substantive due process because it was not rationally related to the public health, safety, or welfare of the Village-that instead, it was passed solely for the benefit of one person, LeCompte. He has pleaded sufficient facts to state that claim. We reverse the dismissal of that challenge only and remand for further proceedings.

¶ 11 BACKGROUND

¶ 12 The following facts are taken from Drury's first amended verified complaint (the complaint), as well as two related cases decided by this court to which Drury's complaint repeatedly refers. See LeCompte v. Zoning Board of Appeals , 2011 IL App (1st) 100423, 354 Ill.Dec. 869, 958 N.E.2d 1065 ( LeCompte I ); Drury v. LeCompte , 2014 IL App (1st) 121894-U, 2014 WL 1301534 ( LeCompte II ). Additional background regarding the intervenors has been taken from their complaints in intervention.

¶ 13 Plaintiff James Drury III is a resident of Barrington Hills whose property sits adjacent to LeCompte's property, upon which LeCompte is operating an "unlawful large scale commercial horse boarding operation." Plaintiffs Jack Reich and James T. O'Donnell are both residents of Barrington Hills. Defendant Village of Barrington Hills is an Illinois municipal corporation with home rule authority. (For ease, we refer to plaintiffs in the singular as "Drury.")

¶ 14 The intervenors are all residents of Barrington Hills. John J. Pappas Sr. resides on a 14-acre tract of land known as "Shamrock Farms" that has two barns *571*35with 18 horse stalls, an indoor riding arena, two outdoor arenas, and 10 fenced paddocks. When Pappas intervened, he had 12 horses stabled on his property, including horses owned by "others." LeCompte and his wife, Cathleen, reside at a property known as "Oakwood Farms," which has a polo field and a "large barn" with 60 horse stalls. Barrington Hills Polo Club, Inc., is an Illinois not-for-profit corporation with 45 members, "many of whom live in the Village of Barrington Hills as well as board and stable their horses in the Village of Barrington Hills." The club's main playing field is located at Oakwood Farms. Barbara McMorris maintains a barn on her property, which she uses to stable "up to 6 horses."

¶ 15 In June 2006, the Village amended its zoning code to permit residential horse boarding as a home occupation. The regulation was strict: except between 8 a.m. and 8 p.m., only immediate family residing on the premises could participate in boarding activities or bring vehicles or machinery related to horse boarding onto the property. See Barrington Hills Municipal Code § 5-3-4(D)(3)(g) (eff. June 26, 2006) (the 2006 Ordinance).

¶ 16 In January 2008, the Village issued a cease-and-desist letter to LeCompte. The letter stated that LeCompte was running a large-scale commercial horse boarding operation at Oakwood Farms, in violation of the 2006 Ordinance.

¶ 17 LeCompte did not take the citation lying down. Instead, he appealed the citation-first to the Village's zoning board of appeals (ZBA), which upheld the order, and then to the circuit court, which also upheld the citation. LeCompte then appealed the circuit court's order to this court, precipitating our decision in LeCompte I .

¶ 18 During these proceedings, the Village did not enforce the citation against LeCompte. In December 2010, Drury sent a letter to the Village asking that it enforce the cease-and-desist order. In January 2011, the Village attorney wrote back and informed Drury that the Village had decided to take no further action against LeCompte.

¶ 19 That prompted Drury to take matters into his own hands. In January 2011, he filed a lawsuit against LeCompte under section 11-13-15 of the Illinois Municipal Code ( 65 ILCS 5/11-13-15 (West 2010) seeking a court order enjoining LeCompte from violating the 2006 Ordinance. The circuit court dismissed Drury's complaint, and he appealed to this court, precipitating our decision in LeCompte II .

¶ 20 After Drury filed his lawsuit, three things of note happened, according to the complaint. First, in February 2011, LeCompte made campaign contributions to the reelection campaigns of village trustees Joe Messer, Patty Meroni, and Karen Selman. The checks were endorsed by each candidate into the bank account for a group called "Save 5 Acres," but they did not indicate that LeCompte was the source of the funds. As a result, a complaint was filed against Messer, Meroni, Selman, and LeCompte with the Illinois State Board of Elections, and in June 2011, the State Board of Elections found each party guilty of violating the Election Code ( 10 ILCS 5/1-1 et seq. (West 2010) ). That is noteworthy because, according to the complaint, Messer and Meroni were on the Board when it refused to (1) enforce the 2008 cease-and-desist letter against LeCompte and (2) levy fines against LeCompte to recoup any of the substantial sums of money that the Village spent defending the 2006 ordinance in the proceedings that generated LeCompte I .

¶ 21 Second, on March 15, 2011-a mere month after LeCompte made the campaign *572*36contributions to Messer, Meroni, and Selman-LeCompte allegedly obtained a letter from Don Schuman, the Village's building and code enforcement officer, stating, in apparent reliance on a change in Oakwood Farms' operating hours, that "it appear[ed] that the use of Oakwood Farms is a Home Occupation." But the Schuman letter was of dubious authenticity. According to Drury, there was "substantial evidence" that the Schuman letter "was not authored by Mr. Schuman but instead by an officer of the Village, the then President of the Village Board, Robert Abboud."

¶ 22 That's a bold claim, but apparently there was some truth to it. When the Village answered Drury's complaint, it expressly "denie[d] that the letter was either authored by or signed by Donald Schuman." But the Schuman letter's dubious quality notwithstanding, Messer, Meroni, and Selman refused to "disown" or "reject" it, even though the Village attorney opined that Abboud was "not authorized under either the Illinois Municipal Code or the Village Ordinance to interpret Village Ordinances."

¶ 23 And third, after Drury filed his lawsuit against LeCompte, the Village began holding meetings to discuss a text amendment to the zoning code that would permit large-scale horse boarding operations on residential property.

¶ 24 In June 2011, we filed our decision in LeCompte I . We affirmed the ZBA's decision upholding the cease-and-desist order, which found LeCompte to be in violation of the 2006 Ordinance. We specifically found that (1) LeCompte's commercial horse boarding operation violated the 2006 Ordinance, (2) the use of land for commercial horse boarding operations did not qualify as "agriculture" under section 5-2-1 of the Village code, and (3) because commercial horse boarding did not qualify as agriculture, it was not a permitted use in an R-1 zone. See LeCompte I , 2011 IL App (1st) 100423, ¶¶ 39, 53, 354 Ill.Dec. 869, 958 N.E.2d 1065.

¶ 25 In July 2011, Judith Freeman, chairman of the ZBA, sent a letter to the Board. The letter indicated that the ZBA recommended that the Village address problems with the horse boarding provisions of its zoning code by adopting a special-use approach:

"As you are aware, this issue has been under consideration for several years and numerous meetings and discussions have taken place with regard to it. We have had various 'white papers' submitted to us by the Equestrian Commission and a number of proposals that have been made by the Legal Committee, and Equestrian Commission and others. We are aware of the situation with Oakwood Farms and the recent holding by the Illinois Appellate Court denying the claim by Oakwood Farms that horse boarding is agriculture and therefore a permitted use.

In 2005, the ZBA recommended and the Board of Trustees approved changes to the Home Occupation Ordinance, which allowed horse boarding as a home occupation. While we considered simply allowing all boarding operations to operate as home occupations, we felt that was not the best approach . Larger boarding operations can have negative impacts on the surrounding properties. In these circumstances, we are recommending that larger boarding operations should be required to obtain a Special Use Permit. The special use permit requirement would allow the community to have some involvement in whether such operations are appropriate at that particular location and, if so, under what conditions they should operate." (Emphasis added.)

*573*37¶ 26 But then nothing happened. According to Drury's complaint, Freeman's proposal to adopt a special-use approach "languished," and "[n]o further actions or initiative on a text amendment concerning large scale commercial horse boarding operation was undertaken by the Village" for nearly three years-until Drury's lawsuit against LeCompte was reinstated by this court in LeCompte II .

¶ 27 In LeCompte II , we reversed the circuit court's order dismissing Drury's complaint against LeCompte under section 11-13-15 of the Illinois Municipal Code. As Drury notes in his complaint, in the course of rendering our decision, we emphasized that LeCompte only solicited the Schuman letter after Drury sued LeCompte, and we observed that the clear purpose of the letter was to "derail" Drury's suit against LeCompte. LeCompte II , 2014 IL App (1st) 121894-U, ¶¶ 45, 54.

¶ 28 According to Drury, after our decision in LeCompte II , LeCompte began fresh efforts to utilize the text amendment process that mysteriously stalled after Freeman published her July 2011 letter reporting the ZBA's recommendation to pursue a special-use approach. Specifically, on June 17, 2014, LeCompte petitioned the ZBA to adopt a text amendment to the Village's zoning code that would (1) permit large-scale commercial horse boarding operations on residential property as a matter of right and (2) apply retroactively. On July 21, 2014, the ZBA held a public hearing on the LeCompte text amendment.

¶ 29 Around the same time, Drury and James Hammon, another resident, filed petitions for text amendments incorporating the special-use approach first devised by Freeman in 2011. The Village Board conducted a public hearing on Drury's and Hammon's text amendments on September 9, 2014.

¶ 30 On September 11, 2014, the ZBA voted 5 to 2 to recommend approving the LeCompte text amendment. On September 22, the Board met to consider the LeCompte text amendment. During the meeting, several objections were made, including: (1) the ZBA's recommendation "was not accompanied by any findings of fact or evidence to support its recommendation," (2) the ZBA failed to "gather essential baseline information in order to make a reasoned decision," and (3) on the night the LeCompte text amendment was submitted to the ZBA, ZBA member Kurt Anderson made a "substantial amendment" to the text amendment's language, which "was not subject of preview, review, and public comment."

¶ 31 In response, the Board postponed consideration of the LeCompte text amendment and "directed the Village Administrator and the [ZBA]" to engage in extensive fact-finding "before considering any further amendments" to the horse boarding ordinance. On October 17, the Board requested answers to the following questions within 90 days:

"1. HUSBANDRY: What is the allowed number of horses per area? Comment . Information on density of horses has been examined by other jurisdictions but the underlying value has not reference the source [sic ]. To that end, qualifying academic individuals in the area of equestrian husbandry may be consulted for their opinion on the subject.

2. PROPERTY TAX ASSESSMENT: If horse boarding is an allowed agricultural use, what is the potential property tax impact? Comment . The assessment value of property is that which is set by township assessor * * * according to adopted guidelines by the Illinois Department of Revenue. A local *574*38assessor may be consulted for an opinion.

3. PLANNING:

[3.1] If horse boarding is an allowed commercial activity, does this create the potential for additional commercial activities in the Village?

[3.2] What is the effect of a permitted use of this type versus making it a special use?

Comment . Both questions go to the basic elements of planning meaning the identification of the trend of development and techniques of zoning regulations. The land use consultant who assisted the Village in the uses and revision of the Comprehensive Plan may be consulted for an opinion.

4. ENGINEERING: What is the potential cause/effect on the Village roads by allowance of commercial boarding (trailers/disposal/hay)? Comment . Traffic loads and volumes are subjects presently address [sic ] through the duties of the Village Engineer, and may be consulted for an opinion.

5. ENVIRONMENT: What is the effect on the aquifer of large scale commercial boarding? Comment . Ground water is a subject reviewed and opined by BACOG including availability of its consultant to specific geographically and land use concerns. An opinion on this subject may be requested.

6. ENFORCEMENT: What would be the role of the building department if the text amendment is adopted? Comment . The Building Department is the general enforcement entity of either the Zoning or Building Code.

7. CLARIFICATION: What are the allowed hours of operation? Comment . Hours of activity are set by the Village dependent on the use."

¶ 32 Three days later, on October 20, 2014, Kurt Anderson-the same Kurt Anderson who made the last-minute changes to the LeCompte text amendment immediately before the ZBA was to vote on it-initiated his own text amendment. According to Drury's complaint, the Anderson text amendment was "remarkably similar to the LeCompte Text Amendment" and, "[w]hile nominally introduced by Anderson, [was] the rebirth of the LeCompte Text Amendment." Among their similarities, both text amendments (1) permitted large-scale boarding operations in residential property as a matter of right and (2) contained provisions making them retroactive to June 26, 2006.

¶ 33 On December 2, 2014, the ZBA held a public hearing on the Anderson text amendment. At the hearing, none of the witnesses presented by the Village testified that the Anderson text amendment promoted the public welfare. Konstantine Savoy, an "expert land planning witness," testified that (1) he "had no opinion on whether the Anderson Text Amendment satisfied the standards in the Village Code," (2) he was not asked to render such an opinion, and (3) it would take "much further study involving * * * an interdisciplinary team to render such an opinion." In addition, Savoy testified that "[i]n his 30+ years as a professional land planner involved in assisting in the drafting of zoning regulations, he could not recall a single instance of an ordinance ever having been adopted that contained a retroactivity provision like the Anderson Text Amendment." Testifying further, Savoy stated that he "could not identify any community that permits large scale commercial horse boarding as a matter of right," and that based on a survey of five communities-Mettawa, Wayne, Bull Valley, Homer Glenn, and Wadsworth-each community that "provided for commercial horse *575*39boarding adopted the special use approach."

¶ 34 Schuman testified in support of a permit approach rather than a permitted-as-a-matter-of-right approach, and he stated that "[i]n all of his years with the Village," he had "never seen the Village adopt an ordinance with a retroactivity provision."

¶ 35 Village Administrator Robert Kosin testified that he "could not identify any other property but Oakwood Farm[s] which was in violation of the Village's Home Occupation restrictions," and he explained that, "[i]n his tenure at the Village which dates back to 1982, nearly 32 years," he could not "recall an ordinance adopted by the Village with a retroactivity provision included in it."

¶ 36 On December 3, 2014-more than a month before the fact-finding that the Board ordered on October 17 was due-the ZBA voted 4 to 3 to recommend approving the Anderson text amendment. According to Drury's complaint, the ZBA's recommendation "was not accompanied by Findings of Fact which meaningfully addressed the standards and criteria that the [ZBA] is obliged to consider in passing on such a recommendation."

¶ 37 Thereafter, Selman and another Board member called a special meeting for December 15, 2014-a date that Village President Martin McLaughlin, a vocal opponent of the Anderson text amendment-could not attend. At the meeting, the Board approved the Anderson text amendment 5 to 1. Messer, Meroni, and Selman all voted in favor of the amendment.

¶ 38 On January 8, 2015, President McLaughlin vetoed the Anderson text amendment. He explained the basis for his decision in a letter to the Board:

"My opposition to this Text Amendment is well known, and I believe supported by a majority of the residents of the Village of Barrington Hills as evidenced by testimony and written submission to the clerk. I join my fellow residents in being suspect about the reasons for the speed at which the majority of the [ZBA] and the Board of Trustees determined to adopt the Text Amendment at issue-particularly when this issue had been the subject of lengthy debate in 2011, but never formally addressed. I believe the only change in circumstance which forced the series of special meetings to adopt the Text Amendment was a change in legal circumstances for one property owner in the Village. This is not a good reason to change the Village Code and its effect on all residents of the Village. The fact that the Text Amendment is to serve only one resident is brutally apparent given the retroactive nature of the Text Amendment."

¶ 39 On February 23, 2015, the Village Board voted 5-2 to override the President's veto and enacted the Anderson text amendment as "Ordinance 14-19, AN ORDINANCE AMENDING TITLE 5, ZONING REGULATIONS SET FORTH IN CHAPTERS 2, 3, AND 5 REGARDING HORSE BOARDING." See Barrington Hills Ordinance No. 14-19 (approved Feb. 23, 2015), https://barringtonhills-il.gov/records/ordinances/2014Ordinances/Ord_14_19.pdf [https://perma.cc/9XHB-2Y4Z]. Three of the five votes to override President McLaughlin's veto were supplied by Messer, Meroni, and Selman.

¶ 40 Among other things, as enacted, Ordinance 14-19 (1) abrogated our decision in LeCompte I by amending the definition of agriculture in the Village code to include breeding, boarding, and training horses as a permitted home occupation as a matter of right and (2) made the amended definition *40*576of agriculture retroactive to June 26, 2006.

¶ 41 On February 27, 2015, Drury filed this lawsuit against the Village. The gist of his claim was that Ordinance 14-19 violated substantive due process and was thus facially unconstitutional, because the ordinance was enacted to benefit LeCompte, not to promote the general welfare. Drury alleged that he had standing to sue because, due to LeCompte's horse boarding operation which was now permitted by Ordinance 14-19, both his quiet enjoyment and the value of his property had been diminished.

¶ 42 On April 7, the 2015 consolidated election took place. Selman and Meroni lost their bids for reelection; Messer was not on the ballot. See Consolidated Election-April 7, 2015 , Lake County Clerk, http://results.enr.clarityelections.com/IL/Lake/55187./151604/Web01/en/summary.html (last visited November 28, 2018) [https://perma.cc/U4D2-CNPM].1

¶ 43 In July 2015, the newly constituted Board held a special meeting, during which it scheduled a hearing to vote on settling Drury's suit against the Village.

¶ 44 In August 2015, Pappas, the LeComptes, Barrington Hills Polo Club, Inc., Barbara McMorris, Victoria Kelly, and Mariana & Pasquale Bernardi filed an amended petition to intervene.

¶ 45 In September 2015, the Village held a public hearing to discuss the ongoing litigation and a potential settlement. On October 26, 2015, the Board voted 4 to 2 to pass a resolution approving a settlement agreement with Drury. Among the terms approved by the Board, the settlement contained a finding that Ordinance 14-19 bore no rational relationship to the public health, safety, welfare, or morals and was void ab initio . On October 30, 2015, Drury and the Village presented the settlement to the circuit court.

¶ 46 On November 10, 2015, Barrington Hills Farm filed an objection to the proposed settlement. Thereafter, on December 10, 2015, the circuit court granted each petitioner leave to intervene. In January 2016, the intervenors filed motions to dismiss Drury's original complaint, and in February, the intervenors filed objections to the proposed settlement.

¶ 47 In a memorandum opinion and order dated May 3, 2016, the circuit court (1) dismissed Drury's complaint without prejudice and (2) denied Drury and the Village's joint motion to approve the settlement. As to the latter, the court reasoned:

"Settlement of disputed claims is encouraged by law. Martin v. [City of ] Greenville , 54 Ill. App. 3d 42, 44 [12 Ill.Dec. 46, 369 N.E.2d 543] (1977). However, in order to accomplish the disposal of a case by settlement 'all of the parties and intervenors must agree to the settlement.' [ Business & Professional People for Public Interest v. Commerce Commission ], 136 Ill. 2d 192, 209 [144 Ill.Dec. 334, 555 N.E.2d 693] (1989).

* * *

Absent additional evidence, the court cannot definitively determine whether Defendant Village adequately represented the interests of the Intervenors, parties to the current litigation. However, the substantial and ongoing objections to the Agreement made by Intervenors indicate that Intervenors' interests do not align with the resolution proposed in the Agreement. Intervenors were not privy to settlement negotiation sessions and *577*41currently object to the result, so it is reasonable to conclude the Agreement currently does not represent their interests. Despite the court's preference for settlement, it is impractical to adopt a settlement agreement to which all parties involved in the dispute do not consent. For all of the foregoing reasons, the current Agreement cannot be adopted."

¶ 48 Thereafter, Drury filed an amended complaint, which the intervenors moved to dismiss pursuant to section 2-615 of the Code of Civil Procedure ( 735 ILCS 5/2-615 (West 2016) ).

¶ 49 While those motions were pending, the Village filed a verified answer to Drury's complaint. In response to Drury's allegation that "the Text Amendment is an invalid exercise of the Village's police power authority" because the text amendment "does not promote the general welfare but instead was adopted to benefit one property owner," the Village answered: "The Village admits that the Text Amendment does not promote the general public welfare and admits that the Text Amendment benefits a property owner who is engaged in a commercial horse boarding operation within the Village." In addition, at several points in its answer, the Village responded to an allegation by stating:

"[T]he Village Board, after careful analysis and upon closer scrutiny determined that the Commercial Horse Boarding Text Amendment approved by the Village Board, over the veto of the President, bears no rational relationship to the public health, safety, comfort, morals or general welfare and is otherwise unlawful, in that it alters the residential character of the Village, does not take into consideration the impact of large scale commercial horse boarding on the character of the Village, it does not consider the effect of such on the residential roadways within the Village, relative to traffic in residential areas and the detrimental effect of large trucks on Village roadways, does not take into consideration the potential noise implications of large scale commercial horse boarding on the residential character of the Village, does not impose a limitation on the number of commercial horse boarding facilities within the Village and has a potentially negative impact upon property values within the Village."

¶ 50 On April 27, 2017, the circuit court dismissed Drury's amended complaint with prejudice. The court found that "a substantial portion" of Drury's complaint was "simply inapposite." The court noted, for instance, that the plaintiffs "argue at length that their properties have been harmed by the Text Amendment and that it was enacted solely for the purpose of benefitting one of the intervenors (Benjamin LeCompte) at their expense," but it found that those arguments "sound as as applied challenges to a statute, not as facial challenges, which as discussed above require pleading that the statute is void on its face in any context, regardless of how it was applied or what impacts it had." And the court found "unpersuasive" Drury's allegations that Ordinance 14-19 was not rationally related to a "valid public goal," explaining, "[r]egulation of this sort of local business is squarely within the rational interests of local governments such as the Village, and the court can see no persuasive reason to declare one policy on the subject over others to be facially invalid."

¶ 51 On May 26, 2017, Drury filed a motion to reconsider, arguing, among other things, that the court erred by failing to consider the Village's answer. On November 9, 2017, the court denied Drury's motion. The court rejected Drury's argument that it should have considered the Village's *578*42answer, explaining that, when ruling on a section 2-615 motion, it could "only consider the 'four corners' of the complaint, and that in any event, all allegations are deemed admitted for purposes of a 2-615 motion." This appeal followed.

¶ 52 ANALYSIS

¶ 53 On appeal, Drury challenges the circuit court's orders (1) rejecting the settlement, (2) granting the intervenors' motions to dismiss, and (3) denying his motion to reconsider.

¶ 54 I. Jurisdiction

¶ 55 Before we can proceed to the merits, we must assure ourselves of our jurisdiction. The jurisdictional question before us concerns whether this appeal is moot. Illinois courts' subject-matter jurisdiction extends only to cases that present an actual controversy ( McCormick v. Robertson , 2015 IL 118230, ¶ 21, 390 Ill.Dec. 142, 28 N.E.3d 795 ), and moot cases do not present actual controversies( Ferguson v. Patton , 2013 IL 112488, ¶ 23, 369 Ill.Dec. 14, 985 N.E.2d 1000 ). "A case on appeal becomes moot where the issues presented in the trial court no longer exist because events subsequent to the filing of the appeal render it impossible for the reviewing court to grant the complaining party effectual relief." Bettis v. Marsaglia , 2014 IL 117050, ¶ 8, 387 Ill.Dec. 659, 23 N.E.3d 351.

¶ 56 Barrington Hills Farm says that this appeal is moot because Ordinance 14-19 was repealed in November 2016. To be sure, " '[a] case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' " Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting United States v. Concentrated Phosphate Export Ass'n , 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) ). And generally, "the repeal of a challenged statute is one of those events that makes it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (Internal quotation marks omitted.) Coral Springs Street Systems, Inc. v. City of Sunrise , 371 F.3d 1320, 1331, n.9 (11th Cir. 2004) ; see Federation of Advertising Industry Representatives, Inc. v. City of Chicago , 326 F.3d 924, 930 (7th Cir. 2003) ("[W]e have repeatedly held that the complete repeal of a challenged law renders a case moot, unless there is evidence creating a reasonable expectation that the City will reenact the ordinance or one substantially similar.")

¶ 57 Still, we reject Barrington Hills Farm's mootness argument. Drury is mounting a facial challenge to the ordinance, seeking a declaration that the ordinance is void ab initio -meaning it was void from the inception and thus was of no effect. See In re N.G. , 2018 IL 121939, ¶ 50, 425 Ill.Dec. 547, 115 N.E.3d 102 ("When a statute is found to be facially unconstitutional in Illinois, it is said to be void ab initio ; that is, it is as if the law had never been passed [citations] and never existed."). The repeal of the ordinance prevents its future application, but it does not invalidate it from the outset.

¶ 58 That distinction matters to Drury, because LeCompte has not stopped running his large-scale horse boarding operation, even after the repeal of the ordinance; he claims that his rights vested in Ordinance 14-19 when it was adopted and, thus, that vested right survived the ordinance's repeal. He has taken that position here, and he is taking that position in other litigation with Drury, as we noted above. But if Drury is correct that the ordinance is void ab initio -it was invalid *579*43the moment it passed-then LeCompte cannot even plausibly claim a vested right based on the ordinance. Drury is thus capable of obtaining "effectual relief" from us. See Bettis , 2014 IL 117050, ¶ 8, 387 Ill.Dec. 659, 23 N.E.3d 351. This appeal is not moot.

¶ 59 II. Settlement Agreement

¶ 60 Assured of our jurisdiction, we turn to the merits, beginning with Drury's appeal of the circuit court's order refusing to enter judgment on his settlement agreement with the Village. Drury maintains that the circuit court erred by rejecting the settlement because (1) the Village had no duty to represent the intervenors' interests and (2) the intervenors' consent was not necessary for the court to approve the settlement.

¶ 61 The parties disagree over our standard of review. The intervenors suggest that the abuse-of-discretion standard applies. Drury, on the other hand, says that we should review the circuit court's order refusing to enter the settlement agreement de novo because the intervenors did not request an evidentiary hearing. We need not resolve this issue, however, because we would affirm the circuit court's ruling under any standard of review.

¶ 62 Drury and the Village asked the court to enter an agreed final judgment in which the Village agreed, among other things, that the ordinance at issue, "at the time of its adoption, [bore] no rational relationship to the public health, safety, comfort, morals or general welfare and [was] otherwise unlawful," and that the ordinance "was at the time of its adoption unreasonable, unlawful, null and void ab initio ."

¶ 63 There are two distinct reasons why we agree with the circuit court's rejection of the settlement agreement. The first is that the Village's purported agreement with Drury crossed the line when it declared that the ordinance, though duly and lawfully adopted, was "at the time of its adoption * * * null and void ab initio ." The Village was agreeing with Drury, in other words, that the ordinance was facially unconstitutional. See In re N.G. , 2018 IL 121939, ¶ 50, 425 Ill.Dec. 547, 115 N.E.3d 102.

¶ 64 The Village has no authority to declare an ordinance facially unconstitutional or, for that matter, unconstitutional in any sense. The power to declare an ordinance unconstitutional is an inherently judicial power, one reserved exclusively to the courts. Perlstein v. Wolk , 218 Ill. 2d 448, 459, 300 Ill.Dec. 480, 844 N.E.2d 923 (2006) ; People v. Gersch , 135 Ill. 2d 384, 398-99, 142 Ill.Dec. 767, 553 N.E.2d 281 (1990) ; People v. Jackson , 69 Ill. 2d 252, 256, 13 Ill.Dec. 667, 371 N.E.2d 602 (1977). It necessarily follows that "[i]f the power is judicial in character, the legislature is expressly prohibited from exercising it." Jackson , 69 Ill. 2d at 256, 13 Ill.Dec. 667, 371 N.E.2d 602 ; accord People v. Bruner , 343 Ill. 146, 157-58, 175 N.E. 400 (1931).

¶ 65 The Village could repeal its own ordinance, of course. It could take the legal position in court, as it did here, that the ordinance is unconstitutional. It could, in certain circumstances, enter into a settlement or consent decree spawned by the claim of unconstitutionality, with the court's approval. See, e.g. , People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n , 106 Ill. 2d 1, 4-5, 86 Ill.Dec. 908, 476 N.E.2d 409 (1985). But the Village has no authority to declare, on its own, that an ordinance it adopted violated the Constitution and thus was void from its inception-that it never existed.

¶ 66 Of course, if the trial court agreed with the Village and Drury that the ordinance was unconstitutional, it could enter an order to that effect, by its own order *580*44(the typical case) or by agreed order. But we emphatically reject the notion that the trial court was required to enter that order, or that it even could have conceivably abused its discretion in refusing to do so, before it had made its own independent determination as to the constitutionality of that ordinance.

¶ 67 And second, even if the Village somehow possessed that authority, it had no authority to settle that claim over the objection of a codefendant defending the same claim. Once the intervenors were granted to leave to appear as party-defendants, they had the same rights as the Village. See In re Marriage of Johnson , 97 Ill. App. 3d 634, 635, 53 Ill.Dec. 72, 423 N.E.2d 264 (1981) ("[A]n intervenor has all of the rights of an original party."). And they were defending precisely the same claim-that the ordinance was unconstitutional.

¶ 68 It would be a different story if multiple defendants faced separate claims and the settlement of one of the claims with one of the defendants had no impact on the other defendants and the other claims. Take a simple example: A plaintiff sues two different newspapers for defamation, each for a separate act of publishing the defamatory statement. A plaintiff could settle with one defendant without the other's consent, because the settlement with one defendant did not affect the interests of the codefendant in any way.

¶ 69 But here, the intervenors and the Village were defending precisely the same claim of unconstitutionality. The Village could not settle the case over the objection of the intervenors, any more than the intervenors could have done so without the Village's consent. See, e.g. , Wheeling Trust and Savings Bank v. Village of Mount Prospect , 29 Ill. App. 3d 539, 541-42, 331 N.E.2d 172 (1975) (reversing entry of agreed zoning order between plaintiff and village and permitting neighboring landowners to intervene to contest settlement); Freesen, Inc. v. County of McLean , 277 Ill. App. 3d 68, 74, 213 Ill.Dec. 495, 659 N.E.2d 411 (1995) (reversing denial of petition to intervene, ordering that intervenors be "allowed to present evidence attacking the purported settlement order" between county and plaintiff regarding zoning of plaintiff's property).

¶ 70 We uphold the circuit court's order sustaining the intervenors' objections to the settlement.

¶ 71 III. Dismissal of Complaint

¶ 72 We next consider Drury's argument that the circuit court erred by dismissing his complaint pursuant to section 2-615 of the Code of Civil Procedure. A section 2-615 motion tests the legal sufficiency of a complaint. Schweihs v. Chase Home Finance, LLC , 2016 IL 120041, ¶ 27, 412 Ill.Dec. 882, 77 N.E.3d 50. "In ruling on such a motion, only those facts apparent from the face of the pleadings, matters of which the court can take judicial notice, and judicial admissions in the record may be considered." Pooh-Bah Enterprises, Inc. v. County of Cook , 232 Ill. 2d 463, 473, 328 Ill.Dec. 892, 905 N.E.2d 781 (2009). The court must take as true all well-pleaded facts in the complaint ( Schweihs , 2016 IL 120041, ¶ 27, 412 Ill.Dec. 882, 77 N.E.3d 50 ) and dismiss only if "it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to relief." Pooh-Bah , 232 Ill. 2d at 473, 328 Ill.Dec. 892, 905 N.E.2d 781. Our review is de novo . Id.

¶ 73 Drury claims that Ordinance 14-19 was an invalid exercise of the Village's police power in violation of the due process clause of the Illinois Constitution and its federal counterpart, made applicable to the states via the fourteenth amendment to the U.S. Constitution. See Ill. Const. 1970, art. I, § 2 ; U.S. Const., amend. XIV.

*581*45¶ 74 The police power is an "attribute of sovereignty in every government by which it may protect lives, health, morals and general welfare." Sherman-Reynolds, Inc. v. Mahin , 47 Ill. 2d 323, 326, 265 N.E.2d 640 (1970) ; People v. John Doe of Rosehill Cemetery Co. , 334 Ill. 555, 560, 166 N.E. 112 (1929) ("The police power is the power of the sovereign to legislate in behalf of the public health, morals, or safety by general regulations reasonably adapted to the object in view without creating arbitrary discriminations between different classes of men or things."). As a home-rule unit, the Village's police power emanates from the Illinois Constitution. Specifically, section 6 of article VII provides: "[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare." Ill. Const. 1970, art. VII, § 6 (a).

¶ 75 The police power is broad. Kalodimos v. Village of Morton Grove , 113 Ill. App. 3d 488, 492-93, 69 Ill.Dec. 414, 447 N.E.2d 849 (1983) ("A municipality has broad discretion to determine not only what the interests of the public welfare require but what measures are necessary to secure those interests."), aff'd , 103 Ill. 2d 483, 83 Ill.Dec. 308, 470 N.E.2d 266 (1984). Indeed, "[t]he concept of the public welfare is broad and inclusive." Berman v. Parker , 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ; see Moore v. City of East Cleveland , 431 U.S. 494, 498 n.6, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ("the general welfare is not to be narrowly understood; it embraces a broad range of governmental purposes"). Zoning regulations are, first and foremost, the province of the legislature, falling squarely within that police power. Quilici v. Village of Mount Prospect , 399 Ill. 418, 423, 78 N.E.2d 240 (1948) ("Municipalities may adopt zoning ordinances as an exercise of their police power."); Berman , 348 U.S. at 32, 75 S.Ct. 98 ("the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation").

¶ 76 When evaluating a substantive due process challenge to a zoning ordinance, the judiciary's role is "an extremely narrow one." Berman , 348 U.S. at 32, 75 S.Ct. 98. "It is not for us to reappraise" the balancing of various policy considerations ( id. at 33, 75 S.Ct. 98 ) or to inquire into the wisdom or soundness of a legislative determination ( Village of Euclid v. Ambler Realty Co. , 272 U.S. 365, 395, 47 S.Ct. 114, 71 L.Ed. 303 (1926) ). Rather, " '[i]f the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.' " Napleton v. Village of Hinsdale , 229 Ill. 2d 296, 311, 322 Ill.Dec. 548, 891 N.E.2d 839 (2008) (quoting Euclid , 272 U.S. at 388, 47 S.Ct. 114 ); see also Hannifin Corp. v. City of Berwyn , 1 Ill. 2d 28, 35, 115 N.E.2d 315 (1953) ("This court has no right to question legislative policy," and thus zoning decisions "will not be held unreasonable where there is room for a fair difference of opinion on the question").

¶ 77 Absent some classification based on factors like race or gender that invoke a higher level of scrutiny (not applicable here), courts employ the rational-basis test in reviewing zoning restrictions. Napleton , 229 Ill. 2d at 319, 322 Ill.Dec. 548, 891 N.E.2d 839. The zoning restriction "will be upheld if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable." Id. (citing Village of Lake Villa v. Stokovich , 211 Ill. 2d 106, 122, 284 Ill.Dec. 360, 810 N.E.2d 13 (2004) ).

¶ 78 At times, the courts have phrased the test differently in the context *582*46of zoning restrictions, stating that zoning ordinances bearing "no substantial relation to the public health, safety, morals, or general welfare" are constitutionally invalid. Euclid , 272 U.S. at 395, 47 S.Ct. 114 ; see also Trust Co. of Chicago v. City of Chicago , 408 Ill. 91, 98, 96 N.E.2d 499 (1951) ; Kennedy v. City of Evanston , 348 Ill. 426, 433, 181 N.E. 312 (1932). Our supreme court has clarified that this "substantial relation" language is "simply an alternate statement of the rational basis test." (Internal quotation marks omitted.) Napleton , 229 Ill. 2d at 315, 322 Ill.Dec. 548, 891 N.E.2d 839. That is, "the intent of the 'substantial relation' inquiry is to ensure that the challenged zoning ordinance is rational and is not arbitrary or capricious." Id.

¶ 79 To be sure, the rational-basis test is, by a comfortable margin, the most forgiving mode of analysis known to American constitutional law. People v. Johnson , 225 Ill. 2d 573, 585, 312 Ill.Dec. 350, 870 N.E.2d 415 (2007). But it's not a rubber stamp. People v. Boeckmann , 238 Ill. 2d 1, 7, 342 Ill.Dec. 537, 932 N.E.2d 998 (2010) ("Rational basis review is highly deferential, but it is not 'toothless.' " (quoting People v. Jones , 223 Ill. 2d 569, 596, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006), quoting Mathews v. De Castro , 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976) ) ). That has proven especially true in the context of substantive due process challenges to zoning restrictions.

¶ 80 For example, in Cosmopolitan National Bank of Chicago v. City of Chicago , 27 Ill. 2d 578, 580, 586, 190 N.E.2d 352 (1963), our supreme court invalidated a 1958 ordinance that rezoned certain property to a classification that did not permit funeral uses. Only a year earlier, the city had passed a comprehensive zoning ordinance that continued to allow funeral uses. Id. at 580, 190 N.E.2d 352. Plaintiff, the owner of a funeral home, challenged the 1958 ordinance, claiming that it was passed at the behest of a small group of citizens, that the city failed to follow its notice-and-hearing procedures when adopting it, and that the city failed to follow its own regulations that deemed an ordinance denied if not acted upon within six months (the 1958 ordinance languished for eight months before adoption). Id. Our supreme court held that the ordinance was not sufficiently related to the public welfare. Among other things, the court noted the city's violation of its own procedures regarding the six-month limit and the notice-and-hearing procedures. Id. at 583, 190 N.E.2d 352. The court continued:

"The evidence shows there was no change in either the general character or the existing uses in the neighborhood in the interim between the passage of the comprehensive amendatory ordinance of 1957 and the 1958 amendment rezoning plaintiffs' land, which in any manner relates the change of zoning to the public need or demand. Instead, the only affirmative showing is that the proposal to change the zoning of the property from its B4-1 classification emanated from the desires of certain individuals that such a change be effected. We have consistently held, however, that the power to zone or rezone cannot be exercised to satisfy the individual desires of a few. [Citations.] Considering all the facts and circumstances, they do not show such a demand for the public need or good which would serve to justify the change of the B4-1 classification of plaintiffs' property." Id. at 584-85, 190 N.E.2d 352.

¶ 81 In Trust Co. of Chicago , 408 Ill. at 94-95, 96 N.E.2d 499, the plaintiff bought property in Chicago that, since 1923, had been zoned as an "apartment district" and on which he intended to build an apartment building. In 1942, the city amended *583*47its zoning code to change the zoning classification for half a block of territory, which included the plaintiff's property, from apartment use to single-family residential. Id. at 95, 96 N.E.2d 499. The circuit court found the amendatory ordinance unconstitutional as applied to the plaintiff's property.

¶ 82 Our supreme court affirmed. The court found "no actual or reasonable connection between the rezoning of plaintiffs' property from apartment to single-family residence and the public health, safety, comfort, morals or welfare." Id. at 101, 96 N.E.2d 499. The court noted that "undisputed testimony contained in the record" showed that

"the erection of a multistoried apartment building on plaintiff's property would in no way injure or detract from the general welfare of the city or the general welfare of the community wherein the property is situated or from the general welfare of any community or neighborhood adjacent to said property, when the city or any such community is considered as a whole; and it is as a whole that a municipality or a community must be considered when zoning laws and ordinances are involved." Id. at 101-02, 96 N.E.2d 499.

The court then delivered its punch line:

"The conclusion in this case is inescapable * * * that the city, in rezoning the properties here affected and also in defending such rezoning in this court, was not seeking to promote or preserve the general welfare but was seeking to bestow upon the individual residents of the rezoned properties special benefits in that they might continue in their 'oasis of gracious family living,' free from what they might regard as the nuisance of apartment buildings in the block. This action of the city under the rezoning ordinance of 1942 finds no justification in any aspect of the police power asserted for the public good. The public good means more than the special benefits from a zoning ordinance which are conferred only upon a few. It is not the purpose of the zoning law to permit special privileges to a few property owners." Id. at 103-04, 96 N.E.2d 499.

¶ 83 In Phipps v. City of Chicago , 339 Ill. 315, 319, 171 N.E. 289 (1930), the stipulated facts showed that the plaintiff purchased property zoned for industrial and manufacturing purposes. Nine months later, entities wanting to build apartment buildings sought a zoning amendment that would reclassify that property as residential. Id. A public hearing was held on the proposed ordinance, but it took place before an inferior city commission that lacked the authority to hold such a hearing, and proper notice of the hearing was not given. Id. at 319-20, 171 N.E. 289. The city ultimately adopted the zoning amendment. Id. at 320, 171 N.E. 289.

¶ 84 The lower court found "evidence tending to show that the amendment was made because certain parties wanted it made so they could build more buildings for residence purposes" and reasoned that the city's power to amend its zoning laws was "not arbitrary and could not be exercised merely because someone wanted it done or thought it ought to be done. It could only be exercised when the public good demanded or required that the amendment be made." Id. at 327, 171 N.E. 289. The lower court thus invalidated the zoning ordinance, and the supreme court adopted the reasoning and holding in full. Id.

¶ 85 In Kennedy , 348 Ill. at 430-31, 181 N.E. 312, the supreme court invalidated a 1929 amendment to a zoning law that permitted the building of apartment buildings (a B-classification) in an area of Evanston, Illinois, previously zoned exclusively for *584*48single-family residential housing (an A-classification). The evidence showed that little to no change had occurred between the last time the city was rezoned and the 1929 ordinance, that "[n]o reason [was] shown" to justify changing the territory from A-use to B-use ( id. at 432, 181 N.E. 312 ), and that "[n]o showing ha[d] been made why the vacant and poorly-improved land in the 'B' use district cannot be used for apartment houses before it is necessary to encroach on the 'A' territory" ( Id. at 433, 181 N.E. 312 ).

¶ 86 Evanston argued that "a majority of the property owners in and adjoining the district" wanted the zoning amendment, but our supreme court held that the zoning power was not "arbitrary," that it "cannot be exercised merely because certain individuals want it done or think it ought to be done. The change must be necessary for the public good." Id.

¶ 87 Intervenors, on the other hand, argue that dismissal here was appropriate under Napleton , 229 Ill. 2d at 300-01, 322 Ill.Dec. 548, 891 N.E.2d 839, where the plaintiff facially challenged a Hinsdale ordinance that rezoned certain property to exclude beauty salons and financial institutions from the ground floors of properties. The ordinance came after a temporary moratorium imposing the same restriction, followed by a study commissioned by Hinsdale "to assess the impact of beauty salons and financial institutions on taxable retail sales" in these zoning districts. Id. at 301, 322 Ill.Dec. 548, 891 N.E.2d 839. According to the complaint, the study recommended that no additional credit institutions be allowed to locate on the ground floor in certain zoning districts but did not make that recommendation for "B-1" or "B-3" zoning districts, where the plaintiff owned property. Id. at 302, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 88 The plaintiff alleged not only that she would lose hundreds of thousands of dollars in lost rent but that several existing buildings in these zoned areas would now be nonconforming. Id. at 302-03, 322 Ill.Dec. 548, 891 N.E.2d 839. She also alleged that the amendments were passed to satisfy a few individuals, that there was " 'no community need' " for the rezoning, that it would not benefit the public in any way, and thus that it was unconstitutionally arbitrary and not substantially related to the public welfare, violating her substantive due process rights under the Illinois Constitution. Id. at 303, 322 Ill.Dec. 548, 891 N.E.2d 839. The supreme court affirmed the dismissal of the facial challenge, employing traditional rational-basis scrutiny, by which it would uphold the ordinance as long as it bore a "rational relationship to a legitimate legislative purpose" and was "neither arbitrary nor unreasonable." Id. at 319, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 89 The allegations that the zoning amendments were " 'arbitrary, capricious and irrational,' " and that they were adopted at the behest of a few individuals and not for the public welfare, were not supported by facts and thus amounted to conclusory allegations. Id. at 319-20, 322 Ill.Dec. 548, 891 N.E.2d 839. Likewise, the allegations that there was " 'no community need' " for the ordinance, and that Hinsdale took little to no care in planning the amendments, lacked any factual basis. Id. at 320, 322 Ill.Dec. 548, 891 N.E.2d 839. Finally, the court noted from the exhibits to the complaint that Hinsdale had gathered information for months, commissioned a study, and received input from its planning commission before acting. Id. at 321, 322 Ill.Dec. 548, 891 N.E.2d 839. The court determined that it was reasonable for Hinsdale to balance the inclusion of retail businesses that provide sales-tax revenue with those that do not, and the *585*49zoning ordinance was "rationally related" to that purpose. Id.

¶ 90 We agree with Drury that the facts of this case have less in common with Napleton and bear a far more striking similarity with Trust Co. of Chicago , Phipps , and Cosmopolitan National Bank . Each of those cases dealt with a municipality's attempt to thwart a private landowner from using his property in a permissible way by rezoning to make that use impermissible. See Cosmopolitan National Bank , 27 Ill. 2d at 580, 584-85, 190 N.E.2d 352 (preexisting funeral home located in area long zoned to permit that use before city rezoned it to exclude funeral uses, without conducting proper hearings or providing any valid justification); Trust Co. of Chicago , 408 Ill. at 94-95, 103-04, 96 N.E.2d 499 (city rezoned half of city block to stop plaintiff from building apartment building for "inescapable" reason that neighboring homeowners did not want apartments built); Phipps , 339 Ill. at 327, 171 N.E. 289 (stipulated that city rezoned from industrial to residential certain property that plaintiff had purchased for industrial purposes because certain entities wanted to build apartment buildings on it).

¶ 91 Those cases are, in one sense, the inverse of the facts alleged here. Drury does not allege that the Village rezoned to injure a particular property owner but rather to advantage one, LeCompte. But we don't see that as a meaningful distinction. If a rezoning decision is made for a purpose other than furthering the public welfare, it makes no difference whether that reason was to hurt a property owner or to help one; what matters is that the zoning restriction is not reasonably related to the public welfare, whatever the "true" reason may be. The singular focus is on whether the public welfare justifies the zoning restriction. Even if, as in Kennedy , 348 Ill. at 433, 181 N.E. 312, a majority of the affected citizens want the zoning change, it still "must be necessary for the public good."

¶ 92 Those cases are far older than Napleton , and it might be fair to speculate that zoning considerations were different in the early to middle half of the twentieth century than in the mid-2000s in Napleton or, as here, 2015. But we do not have the luxury of disregarding decisions of our supreme court because they might feel dated. And however different zoning considerations may have been in the 1920s or 1950s, we see no reason why the principles animating those decisions would not still be relevant. Indeed, if the complaint's allegations here are true, as we assume them to be at the pleading stage, the same kinds of things that happened a hundred years ago may still be happening today.

¶ 93 More importantly, nothing in Napleton suggests that cases like Cosmopolitan National Bank , Phipps , Trust Co. of Chicago , and Kennedy are bygones of a different era. As in those cases, the plaintiff in Napleton , 229 Ill. 2d at 319-20, 322 Ill.Dec. 548, 891 N.E.2d 839, alleged that Hinsdale's rezoning was adopted to satisfy the desires of a few individuals, that there was no community need for it, and that Hinsdale conducted no meaningful care in planning it. The supreme court did not hold or even hint that those allegations were meaningless or irrelevant. The problem was that they were conclusory-unsupported by facts as required under Illinois law. Id. Indeed, the circuit court gave the plaintiff an opportunity to replead with more specificity, but she declined. Id. at 320, 322 Ill.Dec. 548, 891 N.E.2d 839. If the qualitative nature of the plaintiff's allegations was legally insufficient to state a claim, the vast majority of the court's analysis in Napleton would have been unnecessary. What's more, the accompanying exhibits demonstrated that Hinsdale had a *586*50legitimate public-policy interest (the need for sales-tax revenue) and that it followed a careful, studied route to a zoning decision that was rationally related to that interest. Id. at 321, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 94 What is alleged here, suffice it to say, is different by a considerable degree from the allegations in Napleton . We emphasize again that we take the allegations as true at this stage, but taking them as true, they allege a number of critical points with factual specificity.

¶ 95 The first well-pleaded fact is that the ordinance was passed for the exclusive benefit of LeCompte. The complaint does not just baldly assert this fact. For one thing, it quotes the Village president's veto message that said as much. But most significant in that regard is the 8½-year retroactivity provision of the ordinance, which the complaint (quoting Village officials and testifying experts at the public hearing) alleges benefitted LeCompte and only LeCompte, what the circuit court aptly described as a "legislative pardon" by wiping out LeCompte's fines for violating the 2006 Ordinance since 2008. Likewise quoting Village officials on the record, the complaint alleges that such a retroactivity provision was unparalleled in Village history. The complaint, in other words, adequately alleges that the ordinance contained unprecedented language designed for the exclusive benefit of LeCompte.

¶ 96 The timing of the ordinance can also be relevant in determining whether the ordinance was passed to promote the public welfare or whether it was passed to single out a particular individual for favor or disfavor. See Kennedy , 348 Ill. at 433-34, 181 N.E. 312 ("The action of the zoning commission in recommending the amendment in the fall of 1928 after having denied a similar petition earlier in the same year might be attributed to the fact that certain property owners agreed to the widening and paving of the streets provided the reclassification was made. These agreements not only fail to show that the amendments to the ordinance were passed for the public good, but they tend to show that they were passed in deference to the wishes of certain individuals."); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 540, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (fact that city failed to take any action to address its asserted problem with animal sacrifice until after Santeria church announced plans to open was evidence that city's law prohibiting ritual animal sacrifice was enacted to suppress Santeria religious practice).

¶ 97 Here, the complaint alleges, it was only after his legal prospects in court were dimming that, in August 2014, LeCompte sought a legislative solution via the LeCompte text amendment. That amendment, the complaint alleges, was the predecessor of Ordinance 14-19 that was ultimately adopted by the Board. The fact that the Village acted only at that particular time, considering the years-long court battles over its horse boarding ordinance, is at least a relevant consideration that the ordinance was adopted with LeCompte's particular interests, not the public's at large, in mind.

¶ 98 We should be clear here: There's nothing wrong, in and of itself, with supporting an ordinance, or even supporting an ordinance that favors you (what better ordinance to support?). Likewise, the fact that only one person or entity petitioned for the ordinance (if in fact that's true) does not necessarily mean that the ordinance was not adopted for the public welfare. There is no hard-line rule here. A zoning restriction could be good for the public at large even if only one person asked for it, just as a zoning restriction may not be in the public welfare even if a *587*51majority of the affected citizens support it. See Kennedy , 348 Ill. at 433, 181 N.E. 312.

¶ 99 We have said it already but it's worth repeating: The only question, at bottom, is whether the ordinance is rationally related to the public welfare, regardless of who or how many people wanted it. But having said that, one consideration-not a dispositive fact but a consideration-in making that determination is whether the municipality was acting at the behest of an isolated individual or group of individuals. And when the record shows, as alleged here, that the only justification for the ordinance is that a chosen few individuals wanted it, our supreme court has typically invalidated that ordinance. See, e.g. , Trust Co. of Chicago , 408 Ill. at 103-04, 96 N.E.2d 499 ; Phipps , 339 Ill. at 327, 171 N.E. 289 ; Cosmopolitan National Bank , 27 Ill. 2d at 584-85, 190 N.E.2d 352 ; Kennedy , 348 Ill. at 433-34, 181 N.E. 312.

¶ 100 Another relevant consideration is whether the Village deviated from its standard procedures in adopting Ordinance 14-19. See, e.g. , Cosmopolitan National Bank , 27 Ill. 2d at 583, 190 N.E.2d 352 (considering fact that city failed to follow its own notice-and-hearing procedures and its own rule deeming ordinance defeated if not acted upon within six months); Napleton , 229 Ill. 2d at 321, 322 Ill.Dec. 548, 891 N.E.2d 839 (upholding Hinsdale ordinance in part because village "enacted the challenged amendments to its zoning code after months of gathering information, commissioning a study * * *, holding meetings and public hearings, and receiving input and approval from its Plan Commission"); Cine SK8, Inc. v. Town of Henrietta , 507 F.3d 778, 790 (2d Cir. 2007) (reversing grant of summary judgment to municipality in case alleging substantive due process violation arising from municipality's decision to amend special-use permit because, among other things, "the process the Town Board used to [amend the permit] seemingly failed to comply with the procedural requirements of the [Town] Code"); MLC Automotive, LLC v. Town of Southern Pines , 532 F.3d 269, 281 (4th Cir. 2008) (in ruling on substantive due process challenge to zoning enactment, court may consider whether government's decision is "tainted with fundamental procedural irregularity").

¶ 101 The complaint alleges procedural irregularities in the Village's adoption of Ordinance 14-19-namely that the Village adopted the ordinance without obtaining sufficient facts from the ZBA that were required by law and that the Village, itself, had specifically requested from the ZBA.

¶ 102 Recall that when the LeCompte text amendment first came before the Board in September 2014, the Board postponed consideration of the amendment in response to a number of objections raised at the public hearing-namely that the ZBA failed to gather enough information and properly review the amendment before approving it. On October 17, 2014, the Village Board ordered the ZBA, within 90 days, to answer a detailed series of questions about allowing commercial horse boarding as a matter of right village-wide, including:

- the number of horses that should be allowed, with a recommendation to consult experts on equestrian husbandry;

- the property tax impact, with a recommendation to consult a local assessor;

- whether allowing commercial horse boarding would create the potential for additional commercial activities in the Village, with a recommendation to consult the Village's land-use consultant;

- the effect of a village-wide permit versus an individualized special-use *588*52permit as previously advocated by the chairman of the ZBA in 2011, another question to be asked of the land-use consultant;

- the effect of traffic loads and volume on the Village's roads, with a suggestion to consult the Village engineer;

- the effect on the aquifer of large-scale commercial boarding, with a recommendation to consult the Barrington Area Council of Governments;

- the role of the Village's building department in implementing the ordinance; and

- the hours of operation that would be allowed and whether they should be uniform.

¶ 103 These appear to be reasonable and important issues that a responsible municipality would want to consider before making a significant change to its zoning laws. Yet only three days later, on October 20, 2014, ZBA member Kurt Anderson introduced his own text amendment that was all but identical to the LeCompte text amendment-the same village-wide permit for commercial boarding, the same 8½-year retroactivity provision.

¶ 104 Then, on December 2, 2014, the ZBA held a hearing on the Anderson text amendment, at which (according to the complaint) no witness testified that the amendment promoted the public welfare. The expert land planner testified that he had no opinion, that it would be premature to offer such an opinion absent "much further study involving * * * an interdisciplinary team." He also testified that he was unaware of any community that permitted large-scale commercial horse boarding as a matter of right and that five similar municipalities with which he was familiar-Mettawa, Wayne, Bull Valley, Homer Glenn, and Wadsworth-all used the more individualized special-use approach. Nevertheless, the ZBA voted to recommend the Anderson text amendment the next day.

¶ 105 Less than a week later, on December 8, the ZBA issued this document along with its recommendation:

"The ZBA, after having examined the Application for Text Amendment, with revisions proposed by Member Anderson, and taking into consideration the testimony heard in the public hearing for horse boarding, adopted the following findings as to the Text Amendment:

That the text amendment, as proposed, addresses the concerns of the health, safety, and Welfare of the community arising out of the breeding, boarding, and training of horses and riders within the village. It's designed to eliminate or address the issues of nuisance as well as traffic and safety for residences of the village."

¶ 106 That document was apparently an attempt to comply with section 5-10-6 of the Village code, which provides:

"Findings of Fact and Recommendations of the Zoning Board of Appeals: Within a reasonable time after the close of the hearing on a proposed amendment, the Zoning Board of Appeals shall make written findings of fact and shall submit same together with its recommendation to the Board of Trustees of the Village." (Emphasis added.)

¶ 107 The "findings of fact" issued by the ZBA in regard to the Anderson text amendment are, to say the least, quite short on the required "facts." It would be more accurate to say that this document was nothing but a curt conclusion designed to satisfy the constitutional requirement that zoning ordinances bear a rational relationship to the public welfare. It was a *589*53conclusion without any facts. It did not comply with the Village code's requirement for "findings of fact."

¶ 108 Regardless, two members of the Board then called for a special meeting to vote on the Anderson text amendment on December 15, 2014. Though a month still remained on the Board's request for the ZBA to answer its series of questions regarding commercial horse boarding, with none of them yet answered, and despite the fact that the ZBA had not provided anything close to what could be described as "findings of fact" to support its recommendation, the Board adopted the Anderson text amendment that night.

¶ 109 The complaint thus alleges that the Village ignored its own procedural requirements and ignored even its own independent request for more detailed study of the question and rushed through the amendment's passage. Like the other factors we have discussed above, the legislative machinations described above are by no means dispositive, in and of themselves. The Board members could have changed their mind and decided they no longer needed answers to the questions they had submitted to the ZBA, that they had enough information even without the ZBA providing any findings of fact. Still, the fact that the Board, according to the complaint, rushed through an amendment, after identifying several reasonable and important concerns but then failing to resolve them, is at least a relevant factor in determining whether Ordinance 14-19 was adopted for the public welfare or for unrelated reasons.

¶ 110 Another factor to consider, of course, is that the Board repealed the ordinance a year later. The repeal of an ordinance does not necessarily mean that the previous ordinance was unrelated to the public welfare. It does not automatically follow that if the Board, in 2016, determined that it "serves the interests of the Village" to remove the language permitting large-scale horse boarding as of right, that this means it was not in the public interest to allow those operations in 2015. These are matters of judgment and opinion by the elected officials currently holding office; legislative bodies change membership from time to time, as here, and the same legislators can change their minds. That's why judges will defer to those legislative decisions as long as the question of the public welfare is at least a debatable one. See Euclid , 272 U.S. at 395, 47 S.Ct. 114 ; Napleton , 229 Ill. 2d at 311, 322 Ill.Dec. 548, 891 N.E.2d 839 ; Hannifin , 1 Ill. 2d at 35, 115 N.E.2d 315.

¶ 111 But the complaint alleges that the public welfare had nothing to do with Ordinance 14-19. It alleges that the ordinance was passed for one man, and as we have already explained, it contains sufficient allegations to support that claim. It would make no sense, in determining whether Ordinance 14-19 was adopted for the public welfare, to completely ignore the fact that the Board, just less than a year after its adoption, determined that it was in the public interest to repeal that legislative act and restore the status quo ante .2

*590*54¶ 112 Finally, it is no small matter to consider the stated justification for the ordinance-or rather the lack thereof. After all, a court cannot determine whether an ordinance is "rational[ly] relat[ed] to a legitimate legislative purpose" ( Napleton , 229 Ill. 2d at 319, 322 Ill.Dec. 548, 891 N.E.2d 839 ) until it has identified that legislative purpose. Usually, that purpose is identified by the governmental unit defending the challenged law. Here, of course, the Village has (now) taken the position that no legitimate public interest was served by the ordinance, that it was done only for LeCompte's benefit. The intervenors, defending an ordinance that the Village will not, argue that the purpose of Ordinance 14-19 was to clarify an unclear 2006 Ordinance.

¶ 113 The intervenors may ultimately be correct. But we cannot say as much at the pleading stage, as a matter of law, given the numerous allegations in the complaint that adequately allege that this ordinance was passed for the benefit of only one person and given that the Village itself disclaims any rational basis (much less the intervenors' asserted basis) for having adopted that ordinance.

¶ 114 Of course, we express no view on the truth of these allegations. Nor have we reviewed the entire legislative record pertaining to this ordinance; we have only been given isolated quotes and references in the complaint. And we recognize the possibility, as we have tried to emphasize above, that some of the allegations will be proven true, yet the trial court might still find, overall, that Ordinance 14-19's adoption was within the public interest. But there is enough here to state a claim. The substantive due process challenge should not have been dismissed at the pleading stage. The parties should have the opportunity to put forward their respective positions on the justifications for the ordinances, or lack thereof, in the trial court, bearing in mind that the burden of proof lies with the party challenging the ordinance. See id. at 306, 322 Ill.Dec. 548, 891 N.E.2d 839.

¶ 115 One final note: the intervenors, as did the circuit court, focus on the fact that the claim raised here was a facial challenge, not an as-applied challenge. There are differences between the two claims, to be sure. And a facial challenge is the most difficult challenge to successfully mount, because "an enactment is facially invalid only if no set of circumstances exists under which it could be valid." Id. at 305-06, 322 Ill.Dec. 548, 891 N.E.2d 839. But the allegations here are appropriately suited to a *591*55facial challenge. If Drury can establish that Ordinance 14-19 was not rationally related to the public welfare, then the ordinance was void from the outset; it could not be constitutionally applied in any context, regardless of the ordinance's impact on any particular resident of the Village.

¶ 116 To say that something is a "facial" challenge is not to say that judicial review is limited to the "face" of the ordinance; that classification merely speaks to the ambitious remedy it seeks, an invalidation of the statute in all respects. See id. ; Citizens United v. Federal Election Commission , 558 U.S. 310, 331, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ; Paul v. County of Ogle , 2018 IL App (2d) 170696, ¶ 28, 422 Ill.Dec. 453, 103 N.E.3d 585. So any notion that Drury is unable to present evidence that Ordinance 14-19 bore no substantial relation to the public welfare, based on the allegations we have discussed above-LeCompte being the sole beneficiary of at least part of the ordinance, the background leading up to the ordinance's passage, the legislative and procedural machinations, etc.-simply because his challenge is a "facial" one, is incorrect.

¶ 117 CONCLUSION

¶ 118 The trial court's order sustaining the intervenors' objection to the agreed settlement order is affirmed. The dismissal of the substantive due process challenge is reversed. This cause is remanded for further proceedings consistent with this opinion.3

¶ 119 Affirmed in part, reversed in part, and remanded.

Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.

Opinion

GEORGE, C. J.

This case involves a constitutional challenge to a zoning ordinance enacted by the City of Hanford in 2003. In order to protect the economic viability of Hanford’s downtown commercial district—a prominent feature of which is a large number of regionally well-regarded retail furniture stores—the challenged ordinance generally prohibits the sale of furniture in another commercial district in Hanford (currently designated the Planned Commercial or PC district) that contains a large shopping mall in which several department stores as well as other retail stores are located. At the same time, the ordinance creates a limited exception to the general prohibition on the sale of furniture in the PC district, permitting large department stores (those with 50,000 or more square feet of floor space) located within *283that district to sell furniture within a specifically prescribed area (occupying no more than 2,500 square feet of floor space) within the department store.

The owners of a “stand-alone” home furnishings and mattress store located within the PC district, who wished to sell bedroom furniture along with mattresses and home accessories (such as lamps and carpets) in their store, brought this action contesting the validity of the foregoing provisions of the zoning ordinance. The trial court rejected the constitutional challenge, but the Court of Appeal disagreed with the trial court’s determination. The Court of Appeal concluded that although the ordinance’s general prohibition of the sale of furniture in the PC district was reasonably related to a legitimate governmental interest—the preservation of the economic viability of the downtown commercial district—the ordinance’s exception permitting limited furniture sales only by large department stores in the PC district violated equal protection principles by drawing an unwarranted distinction between large department stores and other retail stores located within the PC district. The appellate court reasoned that “when all retailers limit the furniture display space in compliance with the ordinance to the permitted 2,500 square feet, the difference in total floor space between the retailers is largely irrelevant. Thus, the disparate treatment of these similarly situated retailers based on square footage is not rationally related to the purpose behind the ordinance and is unconstitutional as a violation of equal protection.” We granted the city’s petition for review to consider the validity of the Court of Appeal’s determination that the ordinance is unconstitutional.

For the reasons discussed below, we conclude that the Court of Appeal erred in finding the ordinance unconstitutional. As we shall explain, the appellate court’s analysis fails adequately to take into account the two legitimate pmposes underlying the ordinance in question: (a) the objective of protecting and preserving the economic viability of the city’s downtown commercial district by generally prohibiting within the PC district a particular retail activity—the sale of furniture—that is a prominent feature of the downtown commercial district, and (b) the objective of attracting to, and retaining within, the city’s PC district the type of large department stores (which typically carry furniture) that the city views as essential to the economic viability of the PC district. Restricting the ordinance’s limited exception for the sale of furniture within the PC district to sales by large department stores—and only such stores—is rationally related to the second of these legislative purposes served by the ordinance.

Accordingly, we conclude that the decision rendered by the Court of Appeal, invalidating the zoning ordinance here at issue, must be reversed.

*284I

In 1989, the City of Hanford amended its general plan to provide for a new commercial district in the vicinity of 12th Avenue and Lacey Boulevard. This new district originally was designated the “Regional Commercial” district but later was renamed the Planned Commercial or PC district. The district encompassed several hundred acres of land and was intended to accommodate the location of malls, large “big box” stores, and other retail uses.

At trial, Jim Beath, the city’s community development director, testified regarding the background of the city’s adoption of the new district in 1989. (Beath had been the city’s community development director in 1989 and continued to occupy that position at the time of trial in 2005.) Beath explained that when the city was considering the creation of the new district in 1989, it was concerned that the extent of anticipated commercial development in the proposed district might well have a negative effect on the city’s downtown commercial district. In light of that concern, the city council appointed the Retail Strategy Development Committee (the Committee) “made up of people from the mall area as well as the downtown district and other citizens.” The Committee was asked to propose land use rules for the new district that would “provide for the large box and other kinds of retail use that the City . . . had grown to need and yet still make sure that [the new district] didn’t have a negative impact on the downtown district.”

The Committee ultimately recommended that certain designated uses generally not be permitted in the new district, and Beath testified that those uses “were ones that were already established in the downtown district that they didn’t want to see removed from the downtown district and relocate[d] out at the planned commercial district, and those were car dealerships, banks, professional offices, and furniture stores.” In establishing the new district, the city council limited the uses that were to be permitted in that district in line with the Committee’s recommendations.

Accordingly, as relevant here, the 1989 ordinance included department stores and the sale of home furnishings within the list of permitted uses within the new district, but did not include furniture stores or the sale of furniture as a permitted use. The 1989 ordinance, however, did not specifically define “department store” or “home furnishings,” and did not explicitly state whether department stores located within the new district would or would not be permitted to sell furniture. (As we shall see, from the outset the department stores that were built and operated within the new district did sell some types of furniture, but the validity of this practice of the department stores under the terms of the 1989 ordinance apparently never was challenged or judicially resolved prior to the controversy that led to the enactment of the 2003 amendment here at issue.)

*285In the fall of 2002, more than a decade after establishment of the PC district, plaintiffs Adrian and Tracy Hernandez leased space in a building located in the PC district with the intent to establish a new business at that location to be called Country Hutch Home Furnishings and Mattress Gallery (hereafter Country Hutch Home Furnishings). For more than 10 years preceding the time they proposed to start this new business, plaintiffs had owned and operated a retail furniture store, the Country Hutch, that was located in the city’s downtown commercial district.1 In planning for the new store, plaintiffs intended to sell mattresses, home accessories, and some bedroom furniture at their new location in the PC district.

Prior to the opening of the new business, Tracy Hernandez met with Beath, the city’s community development director, who informed her that under the governing zoning ordinance the new store would not be permitted to sell furniture. Although the then existing provisions governing the PC district did not contain any specific definition of the term “home furnishings”—the sale of which was a permitted use in the PC district—Beath testified that the city, as an administrative matter, uniformly had interpreted “home furnishings” as used in the ordinance to mean “accessories to furniture, . . . not furniture,” that is, objects such as “lamps, wall hangings, mirrors, blinds, drapes, things of that sort.” Beath testified that he informed Tracy Hernandez of that limitation well before the opening of the store. In her testimony, Tracy Hernandez acknowledged that Beath had informed her that the proposed store in the PC district could not sell furniture.

In November 2002, the city adopted a number of amendments to its general plan and zoning ordinance, including a revision in the list of permitted uses in the PC zone changing the term “home furnishings” to “home furnishing accessories (not furniture).” Beath testified at trial that this amendment did not represent a substantive change in the meaning of the term “home furnishings” or the manner in which that term had been applied by city officials, but simply was intended “to clarify it by adding the words ‘not furniture.’ ”

From November 2002 to January 2003, plaintiffs continued with their plans to open and operate the Country Hutch Home Furnishings store in the PC district, and in February 2003 the city issued a certificate of occupancy to *286plaintiffs, stating that the building in question could be used to sell “home furnishing accessories,” but also specifying that this term excluded “all types of furniture.”2

After receiving the certificate of occupancy, plaintiffs opened the Country Hutch Home Furnishings store. Soon thereafter a city inspector, citing plaintiffs for violating the zoning ordinance by offering furniture for sale in their new store, instructed them to remove all of the furniture from the store. Plaintiffs thereafter sent a letter to the members of the Hanford City Council, complaining that the zoning code was being applied in a discriminatory fashion because numerous department stores in the PC district were selling furniture and had not been cited by the city, while plaintiffs were cited for engaging in the same conduct.

On March 4, 2003, one week after receiving plaintiffs’ letter, the city council held a “study session” to consider the issues raised by plaintiffs’ letter. Plaintiffs, as well as representatives of the downtown furniture stores and representatives of the PC district department stores, attended and participated in the study session. Prior to the March 4 session the city’s community development department, conducting a survey of the merchandise offered for sale in the existing large department stores located in the PC district, found that each of those stores currently was selling “some type of furniture”— generally, either furniture that was “purchased in a box and requires some assembly” or patio furniture.3 At the session, Death informed the city council that he believed it was advisable to consider revising the applicable zoning ordinance to clarify whether, and to what extent, furniture could be sold in the PC district, either by department stores or other retail stores. Representatives of the downtown furniture stores maintained that the zoning ordinance’s general prohibition on sales of furniture in the PC district was vital to the *287economic health of the city’s downtown district and should be retained and uniformly enforced. A representative of the mall maintained that the type of furniture currently sold in the existing department stores in the PC district differed from the furniture sold in the downtown furniture stores and should remain locally available through the department stores. At the conclusion of the session, the council instructed the city staff to draft a proposed revision of the ordinance to clarify its application, and in addition to inform the department stores in the PC district that, pending the city’s consideration of possible changes to the zoning ordinance, those stores would have to remove all furniture from their display areas and refrain from selling any furniture (other than outdoor or patio furniture).4

Pursuant to the city council’s direction, after the March 4 study session city employees informed the department stores in the PC district that they were required to remove all furniture (other than outdoor or patio furniture) from display and to refrain from selling such furniture pending the city’s consideration of changes to the applicable zoning ordinance. During the next four months, the staff of the community development department, after soliciting input from the owners and managers of all of the affected stores in the PC and downtown commercial districts, submitted a series of proposed amendments relating to this issue, in response to changing directives of the city council at monthly study sessions that were held from April to July 2003. The various alternatives were debated vigorously by the directly affected businesses, with representatives of the downtown business district emphasizing the critical importance for the city’s overall general welfare of preserving the economic viability of that district, and representatives of the large department stores located in the PC district observing that their stores had offered some furniture for sale for the past decade without having a negative impact on Hanford’s downtown furniture stores,5 that virtually all of their sister stores in other locations contained furniture departments, and that the elimination of furniture departments in the department stores in Hanford could result in a substantial reduction of revenue for the city (by virtue of lost sales tax receipts) as well as for the individual stores.

At one point during this process, a representative of the downtown furniture stores stated that those stores would not object to an amendment to the PC zoning provisions permitting department stores to continue selling ready-to-assemble furniture in the PC district as the department stores had done in the past, so long as a specific, mutually agreeable definition of *288ready-to-assemble furniture was included within any such amendment. In response, the council directed the department staff to attempt to draft an amendment that would include a workable definition of ready-to-assemble furniture and that would permit such furniture to be sold at stores within the PC district, but limiting such sales activity to 5 percent of a store’s floor space. After both the city staff and the affected businesses had devoted considerable time and effort to fashioning such a measure, however, it was determined that a definition of ready-to-assemble furniture that could be sold in the PC district could not be agreed upon by the affected parties, and that even if a mutually agreeable definition could be fashioned, it would be extremely difficult as a practical matter for city employees to enforce such a provision.6

Ultimately, on July 15, 2003, the city council adopted the amendment to the city zoning provisions relating to the sale of furniture in the PC district that is challenged in this case, Hanford Ordinance 03-03 (Ordinance No. 03-03).

Section 1 of Ordinance No. 03-03 adds definitions of “department store,” “furniture,” and “home furnishing accessories” to the general zoning provisions of the Hanford Municipal Code. “Department store” is defined as a retail store of at least 50,000 square feet “within which a variety of merchandise is displayed ... for sale in departments,” and the section further provides that a department store within the PC district may display and sell furniture in only one location (and on only one level within that location) having a total floor space of no more than 2,500 square feet. “Furniture” is defined as “the things placed in a room which equips it for living,” but “[h]ome appliances, outdoor/patio furniture, wall cabinets, garage storage units and home furnishing accessories as defined in this [s]ection” are excluded from the definition of furniture for purposes of the zoning law. “Home furnishing accessories,” in turn, are defined as “complementary or decorative items placed in a room to accentuate the furniture,” such as “curtains, draperies, blinds, . . . mirrors, pictures, . . . rugs, vases, . . . floor lamps, [and] table lamps,” but as not including furniture.

*289Section 2 of Ordinance No. 03-03 adds as permissible uses within the PC district: “Department Stores” as defined in the ordinance, “Home Furnishing Accessories” as defined in the ordinance, and “Stores, which sell mattresses and metal bed frames with basic headboards and footboards that do not include shelves, drawers or sitting areas.” Finally, section 3 of the ordinance adds a paragraph to the PC zoning provisions that specifically states: “The sale of furniture is prohibited in the PC zone district except by Department Stores in accordance with the definition of Department Stores” as set forth in the ordinance.7

Accordingly, the ordinance in question generally prohibits the sale of furniture in the PC district, but at the same time creates a limited exception *290permitting a large department store within the PC district to display and sell furniture within a single location in the store measuring no more than 2,500 square feet.

Shortly after the ordinance was enacted, plaintiffs filed the present action against the city, challenging the validity of the ordinance on a number of grounds. Plaintiffs’ complaint contended that the ordinance was invalid (1) because it was enacted for the primary purpose of regulating economic competition, and (2) because it violated the equal protection clauses of the federal and state Constitutions. After a bench trial, the trial court rejected plaintiffs’ contentions and upheld the validity of the ordinance. With regard to plaintiffs’ initial claim, the court concluded that the primary purpose of the ordinance was not the impermissible purpose of restricting or eliminating competition, but instead the valid objective of preserving the vitality of Hanford’s downtown district while not discouraging large department stores from locating or remaining in the PC district. With regard to plaintiffs’ equal protection claim, the court found that there was a rational basis for the ordinance’s disparate treatment of large department stores and smaller retail stores like those owned by plaintiffs, because the city’s expressed interest in encouraging large department stores to locate and remain within the PC district did not extend to smaller stores.

On appeal, the Court of Appeal reversed the trial court’s decision. Although the appellate court agreed with the trial court that the ordinance’s general prohibition of the sale of furniture in the PC district was reasonably related to the legitimate governmental purpose of preserving the character and vitality of the city’s downtown commercial district, the Court of Appeal further held that “with the blanket 2,500-square-foot restrictions on furniture in the PC zone, the small retailer poses the same potential threat, if any, to the downtown merchants as the larger store. Thus, limiting the furniture sales exception to stores with more than 50,000 square feet is arbitrary. A rational relationship between the size classification and the goal of protecting downtown simply does not exist.” In rejecting the city’s contention that the ordinance’s disparate treatment between large department stores and other stores was justified because “the department store exception benefits the community by making the PC zone attractive to large retailers,” the Court of Appeal stated simply that “it is not a detriment to have smaller retailers, such as Country Hutch [Home Furnishings], in the PC zone. Thus, the goal of promoting the PC zone does not validate the ordinance.”

We granted the city’s petition for review.

*291II

Before reaching the equal protection issue upon which the Court of Appeal based, its decision, we turn first to the more general (and more sweeping) contention that plaintiffs raised below and upon which they continue to rely in this court—that the zoning ordinance at issue is invalid because the “primary purpose” of the ordinance’s general prohibition of the sale of furniture in the PC district assertedly was to “regulat[e] economic competition.” Although neither the trial court nor the Court of Appeal found the ordinance invalid on this basis, as we shall see, plaintiffs’ claim that the city exceeded its authority under the police power by enacting a zoning ordinance that regulates or restricts economic competition apparently is based upon some ambiguous and at least potentially misleading language that appears in a number of zoning decisions of the Courts of Appeal. As we shall explain, despite some arguably ambiguous language the decisions in these cases plainly do not support plaintiffs’ challenge to the validity of the zoning ordinance here at issue, and we shall attempt to clarify the language in question to avoid possible confusion in the future.

Van Sicklen v. Browne (1971) 15 Cal.App.3d 122 [92 Cal.Rptr. 786] (Van Sicklen) is the earliest in the series of relevant Court of Appeal decisions. In Van Sicklen, the petitioner landowners applied for a conditional use permit to constmct an automobile service station, but the city denied the application on the ground, among others, that a proliferation of service stations already existed in the area and thus that there was no demonstrated need for an additional service station at that location at that time. On appeal, the landowners claimed the city had denied the use permit “for economic rather than planning considerations resulting in an invalid attempt to regulate competition through zoning laws.” (15 Cal.App.3d at p. 127.) In analyzing this contention, the court in Van Sicklen stated: “Although cities may not use zoning powers to regulate economic competition [citing three out-of-state decisions], it is also recognized that land use and planning decisions cannot be made in any community without some impact on the economy of the community. As stated in Metromedia, Inc. v. City of Pasadena[ (1963)] 216 Cal.App.2d 270, 273 [30 Cal.Rptr. 731], ‘Today, economic and aesthetic considerations together constitute the nearly inseparable warp and woof of the fabric upon which the modem city must design its future.’ Taking cognizance of this concept we perceive that planning and zoning ordinances traditionally seek to maintain property values, protect tax revenues, provide neighborhood social and economic stability, attract business and industry and encourage conditions which make a community a pleasant place to live and work. Whether these be classified as ‘planning considerations’ or ‘economic considerations,’ we hold that so long as the primary purpose of the zoning ordinance is not to regulate economic competition, but to subserve a valid objective pursuant to a city’s police powers, such ordinance is not invalid even though *292it might have an indirect impact on economic competition.” (Van Sicklen, supra, 15 Cal.App.3d at pp. 127-128.) The court in Van Sicklen then went on to uphold the city’s denial of the use permit, concluding that “[intensity of land use is a well-recognized and valid city concern and relates to both health and safety factors and to proper zoning practice” and “encompasses within its purview the degree of saturation in a particular area of land devoted to automobile service stations.” (Id. at p. 128.)

The passage from Van Sicklen quoted above correctly recognized many of the numerous factors and interests, including economic considerations, that a municipality properly may take into account in fashioning zoning ordinances and making zoning decisions, and we agree with the court’s determination upholding the particular zoning action challenged in that case. We believe, however, that some of the language in the above quoted passage from Van Sicklen is at least potentially misleading. First, the initial general statement that “cities may not use zoning powers to regulate economic competition” (Van Sicklen, supra, 15 Cal.App.3d at p. 127) is quite clearly overbroad. As one leading zoning treatise accurately observes: “[A]ll zoning has some impact on competition, [f] The simple division of the community into districts has an inherent and profound effect on the real estate market, because some land is withdrawn from the commercial market and placed in the residential market. . . . Some competitive impact results from nearly every provision of the original zoning ordinance, and from each amendment. Accordingly, competitive impact alone cannot invalidate a zoning ordinance. A zoning ordinance which serves some established purpose of zoning is not necessarily invalid simply because it has the additional effect of limiting competition.” (1 Anderson’s American Law of Zoning (4th ed. 1996) § 7.28, p. 807; see, e.g., Boone v. Redevelopment Agency of City of San Jose (9th Cir. 1988) 841 F.2d 886, 890 [“The power to zone and rezone ... by its very nature encompasses the power to exclude competition”].)

Second, we believe that the additional statement in the quoted passage—that “so long as the primary purpose of the zoning ordinance is not to regulate economic competition, but to subserve a valid objective pursuant to [the] city’s police powers, such ordinance is not invalid even though it might have an indirect impact on economic competition” (Van Sicklen, supra, 15 Cal.App.3d 122, 128)—also is ambiguous and at least potentially misleading. That language could be interpreted to suggest that a zoning ordinance is valid only when the ordinance has merely an “indirect impact” on economic competition, and never when the regulation of economic competition is a direct and intended effect of the ordinance, even in instances in which a zoning ordinance uses the regulation of competition simply as a means or tool to achieve an authorized and valid public purpose—such as the preservation of an existing downtown commercial district—rather than to serve an impermissible private anticompetitive purpose or interest—such as securing a *293financial advantage or monopoly position for the benefit of a favored business or individual or imposing a disadvantage on an unpopular business or individual. As so interpreted, the language would be inaccurate. As we shall see, although this language from Van Sicklen has been repeated in subsequent Court of Appeal decisions, those decisions have not invalidated zoning actions simply because such actions reasonably could be viewed as having more than a mere indirect impact on economic competition. Instead, the more recent decisions have upheld zoning actions even when regulation of economic competition reasonably could be viewed as a direct and intended effect of a challenged zoning action, so long as the primary purpose of the zoning action—that is, its principal and ultimate objective—is to achieve a valid public purpose such as furthering a municipality’s general plan for controlled growth or for localized commercial development, rather than simply to serve an impermissible anticompetitive private purpose such as investing a favored private business with monopoly power or excluding an unpopular company from the community.

The case of Ensign Bickford Realty Corp. v. City Council (1977) 68 Cal.App.3d 467 [137 Cal.Rptr. 304] (Ensign Bickford) provides a good illustration of this point. In Ensign Bickford, the plaintiff owned property in the City of Livermore that originally had been zoned “CN,” a classification permitting neighborhood commercial facilities, but that thereafter had been rezoned “RS-4,” permitting residential use only. Having planned to construct a neighborhood shopping center on its property and already having obtained a commitment from a grocery store chain to be a major tenant, the plaintiff requested the city to rezone its property CN. Upon the recommendation of the city planning commission, the city council denied the request, explaining that the city recently had zoned property in another nearby area—the Springtown neighborhood, in which the city was attempting to encourage development—to permit the construction of a neighborhood shopping center and that the city did not believe that the residential population in the relevant area was sufficient to support two shopping centers. (68 Cal.App.3d at pp. 471—472.)

In response to the city’s action, the plaintiff filed the lawsuit in Ensign Bickford. The trial court ruled in the plaintiff’s favor, finding that the city’s purpose in denying the plaintiff’s application “was to encourage development of the Springtown CN zoned property by efiminating a competitive economic threat to such property, and that the council’s decision was not predicated upon considerations of public health, welfare, safety or morals.” (Ensign Bickford, supra, 68 Cal.App.3d at p. 472.)

On appeal, the Court of Appeal reversed. After quoting at length the passage from Van Sicklen, supra, 15 Cal.App.3d 122, 127-128, set forth above, the court in Ensign Bickford continued: “Here, the city council *294determined that the area needed and would support one shopping center, and that to further the long-range development plan for the city, the shopping center should not be located on Bickford’s property, but in Springtown. This would have the effect of encouraging residential and commercial development in that area. It would also undoubtedly have the effect of decreasing the market or lease value of [Bickford’s] property. By its very nature, a zoning ordinance may be expected to depress the value of some land while it operates, in its total effect, to achieve an end which will benefit the whole community. . . . [f] . . . Here, the city is attempting to regulate where, within the city, business will be developed. In furtherance of this legitimate end, it is necessary to permit business development in one area before allowing commercial development in another. The economic impact upon the property involved is only incidental. The primary purpose is clearly the reasonable regulation of land use. [Citation.] There is no evidence, nor can it be inferred, that the city council was attempting to permit commercial development on one parcel and deny it as to another for the purpose of creating a business monopoly or to unreasonably regulate the commercial development of the city. To the contrary, the council was regulating the commercial growth of the city as it related to the needs of the residential areas for that commercial development.” (Ensign Bickford, supra, 68 Cal.App.3d at pp. 477-478.)

Accordingly, although the city’s denial of the plaintiff’s rezoning request in Ensign Bickford reasonably could be viewed as having the direct and intended effect of regulating or limiting competition (that is, precluding the potential competition that would have resulted from the construction of a competing shopping center on the plaintiff’s property), the court in Ensign Bickford nonetheless upheld the validity of the city’s action, recognizing that the primary purpose of the city’s regulation of competition in this context was not to further or disadvantage a private business but instead was to serve the city’s legitimate public interest in carefully planning and controlling the pace and location of growth within the city.8

*295The more recent case of Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273 [41 Cal.Rptr.3d 420] (Wal-Mart) provides another apt example. In Wal-Mart, the City of Turlock enacted a zoning ordinance that, while permitting the operation of traditional “big box” discount stores in a designated district, prohibited the development, anywhere in the city, of so-called discount superstores—defined generally as large discount stores that include a full-service grocery department.9 In explaining the rationale underlying the restriction on discount superstores, the ordinance set forth a series of facts or findings, stating in part that (1) “ ‘the Turlock General Plan . . . establishes locational requirements for the [regional and neighborhood] retail centers: encouraging a number of neighborhood centers equally dispersed throughout the city while encouraging a concentration of regional shopping centers along the Highway 99/Countryside Drive corridor’ ” (id. at p. 283); (2) the city’s “ ‘General Plan policies promote and encourage vital neighborhood commercial districts that are evenly distributed throughout the city so that residents are able to meet their basic daily shopping needs at neighborhood shopping centers’ ” (ibid.); (3) “ ‘discount superstores compete directly with existing grocery stores that anchor neighborhood-serving commercial centers’ ” (ibid.); (4) “ ‘the establishment of discount superstores in Turlock is likely to negatively impact the vitality and economic viability of the city’s neighborhood commercial centers by drawing sales away from traditional supermarkets located in these centers’ ” (ibid.); and (5) “ ‘smaller stores within a neighborhood center rely upon the foot traffic generated by the grocery store for their existence and in neighborhood centers where the grocery store closes, vacancy rates typically increase and deterioration takes place in the remaining center.’ ” (Ibid.)

Wal-Mart filed an action challenging the validity of the ordinance on a variety of grounds, including the contention that the ordinance exceeded the city’s police powers because it was “designed to suppress economic competition, and is not reasonably related to the public welfare.” (Wal-Mart, supra, 138 Cal.App.4th 273, 299.) In rejecting this argument, the Court of Appeal in Wal-Mart stated: “With respect to Wal-Mart’s claim of anticompetitive purpose, we agree with the trial court that, while the Ordinance likely will *296have an anticompetitive effect on the grocery business in [the City of Turlock], that incidental effect does not render arbitrary an Ordinance that was enacted for a valid purpose. [Citing Van Sicklen, supra, 15 Cal.App.3d 122.] While zoning ordinances may not legitimately be used to control economic competition, they may be used to address the urban/suburban decay that can be its effect. [Citing, among other cases, Ensign Bickford, supra, 68 Cal.App.3d 467, 477-478.]” (Wal-Mart, supra, 138 Cal.App.4th at p. 302.) The appellate court in Wal-Mart concluded: “In summary, the police power empowers cities to control and organize development within their boundaries as a means of serving the general welfare. [The City of Turlock] legitimately chose to organize the development within its boundaries using neighborhood shopping centers dispersed throughout the city. The Ordinance is reasonably related to protecting that development choice.” (Wal-Mart, supra, 138 Cal.App.4th at p. 303.)

Accordingly, although the zoning ordinance in Wal-Mart, supra, 138 Cal.App.4th 273, like the zoning action in Ensign Bickford, supra, 68 Cal.App.3d 467, reasonably could be viewed as having a direct and intended effect of regulating competition, the court in Wal-Mart nonetheless upheld the validity of the ordinance because the principal and ultimate objective of the ordinance’s regulation of competition was to further the city’s legitimate public interest in avoiding the “urban/suburban decay” that may result from the location of some types of large-scale commercial development in an outlying area of a municipality.

Our court has not previously had occasion to address the question whether a municipality, in order to protect or preserve the economic viability of its downtown business district or neighborhood shopping areas, may enact a zoning ordinance that regulates or controls competition by placing limits on potentially competing commercial activities or development in other areas of the municipality. More than a half-century ago, however, this court explained that “[i]t is well settled that a municipality may divide land into districts and prescribe regulations governing the uses permitted therein, and that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power.” (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460 [202 P.2d 38]; see also Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 604-605 [135 Cal.Rptr. 41, 557 P.2d 473]; see generally Cal. Const., art. XI, § 7; Gov. Code, § 65800 et seq.) As the circumstances underlying the decisions in Ensign Bickford, supra, 68 Cal.App.3d 467, and Wal-Mart, supra, 138 Cal.App.4th 273, demonstrate, even when the regulation of economic competition reasonably can be viewed as a direct and intended effect of a zoning ordinance or action, so long as the primary purpose of the ordinance or action—that is, its

*297principal and ultimate objective—is not the impermissible private anticompetitive goal of protecting or disadvantaging a particular favored or disfavored business or individual, but instead is the advancement of a legitimate public purpose—such as the preservation of a municipality’s downtown business district for the benefit of the municipality as a whole—the ordinance reasonably relates to the general welfare of the municipality and constitutes a legitimate exercise of the municipality’s police power. (Accord, Lockard v. City of Los Angeles, supra, 33 Cal.2d 453, 466 [“in determining what uses should be permitted in the 12-block strip, the legislative body was, of course, entitled to consider the effect of such uses on the surrounding areas, and to weigh the possibility of injury to those areas by reason of permitting various types of activity as against the desirability of allowing such uses”]; see generally 1 Rathkopf, The Law of Zoning and Planning (rev. ed. 1998) § 2:20, pp. 2-59 to 2-61; Strom, Land Use Controls: Effects on Business Competition II (1980) 6 Zoning & Planning L.Rep. 41, 46.)10 To the extent that any language in Van Sicklen v. Browne, supra, 15 Cal.App.3d 122, Ensign Bickford Realty Corp. v. City Council, supra, 68 Cal.App.3d 467, or Wal-Mart Stores, Inc. v. City of Turlock, supra, 138 Cal.App.4th 273, may be interpreted as inconsistent with this conclusion, such an interpretation is disapproved.* 11

*298In the present case, it is clear that the zoning ordinance’s general prohibition on the sale of furniture in the PC district—although concededly intended, at least in part, to regulate competition—was adopted to promote the legitimate public purpose of preserving the economic viability of the Hanford downtown business district, rather than to serve any impermissible private anticompetitive purpose. Furthermore, as in Ensign Bickford, supra, 68 Cal.App.3d 467, here the zoning ordinance’s restrictions are aimed at regulating “where, within the city” (id. at p. 477), a particular type of business generally may be located, a very traditional zoning objective. Under these circumstances, we agree with the lower court’s conclusion that the zoning ordinance cannot be found invalid as an improper limitation on competition.

in

As noted above, although the Court of Appeal agreed that the challenged zoning ordinance’s general prohibition on the sale of furniture in the PC district is permissible, that court concluded the ordinance in question violates the equal protection clause by limiting the exception created by the ordinance to only the sale of furniture by large department stores, and not making the exception available to other retail stores wishing to sell furniture within the same amount of square footage permitted for furniture sales by large department stores. The Court of Appeal found that, in this context, the ordinance’s disparate treatment of large department stores and other retail stores is not constitutionally permissible.

In evaluating the Court of Appeal’s resolution of this issue, we begin with the question of the appropriate equal protection standard applicable in this case. As explained in Warden v. State Bar (1999) 21 Cal.4th 628 [88 Cal.Rptr.2d 283, 982 P.2d 154], there are “two principal standards or tests that generally have been applied by the courts of this state and the United States Supreme Court in reviewing classifications that are challenged under the equal protection clause of the Fourteenth Amendment of the United States Constitution or article I, section 7, of the California Constitution. . . . ‘The first is the basic and conventional standard for reviewing economic and social welfare legislation in which there is a “discrimination” or differentiation of treatment between classes or individuals. It manifests restraint by the judiciary in relation to the discretionary act of a co-equal branch of government; *299in so doing it invests legislation involving such differentiated treatment with a presumption of constitutionality and “requir[es] merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose.” [Citation.] . . . Moreover, the burden of demonstrating the invalidity of a classification under this standard rests squarely upon the party who assails it.’ ” (Warden, supra, 21 Cal.4th at pp. 640-641.) This first basic equal protection standard generally is referred to as the “rational relationship” or “rational basis” standard.

As further explained in Warden v. State Bar, supra, 21 Cal.4th at p. 641, the second equal protection standard is “ ‘[a] more stringent test [that] is applied ... in cases involving “suspect classifications” or touching on “fundamental interests.” Here the courts adopt “an attitude of active and critical analysis, subjecting the classifications to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.” [Citation.]’ ” (Warden, supra, 21 Cal.4th at p. 641.) This second standard generally is referred to as die “strict scrutiny” standard.12

The zoning ordinance at issue in the present case does not involve suspect classifications or touch upon fundamental interests and thus, as the Court of Appeal recognized and as all parties agree, the applicable standard under which plaintiffs’ equal protection challenge properly must be evaluated is the rational relationship or rational basis standard.

As noted above, in finding the exception set forth in the ordinance invalid under the rational relationship test, the Court of Appeal reasoned that “with the blanket 2,500-square-foot restrictions on furniture in the PC zone, the small retailer poses the same potential threat, if any, to the downtown merchants as the larger store. Thus, limiting the furniture sales exception to stores with more than 50,000 square feet is arbitrary. A rational relationship between the size classification and the goal of protecting downtown simply does not exist.”

We disagree with the Court of Appeal’s determination that the ordinance violates the equal protection clause. The Court of Appeal’s conclusion *300effectively rests on the premise that there was only a single purpose underlying the challenged ordinance—the protection of furniture stores located in the downtown business district from potential competition by retail establishments conducting business within the PC district. Because the Court of Appeal was of the view that the disparate treatment in the ordinance’s exception of large department stores and other stores was not rationally related to that purpose, the appellate court concluded the exception was invalid.

Both the terms and legislative history of the measure at issue disclose, however, that the ordinance was intended to serve multiple purposes: to protect the economic health and viability of the city’s downtown furniture stores, but to do so in a manner that did not threaten or detract from the city’s ability to attract and retain large department stores in the PC district. Past cases establish that the equal protection clause does not preclude a governmental entity from adopting a legislative measure that is aimed at achieving multiple objectives, even when such objectives in some respects may be in tension or conflict.

The United States Supreme Court’s relatively recent decision in Fitzgerald v. Racing Assn. of Central Iowa (2003) 539 U.S. 103 [156 L.Ed.2d 97, 123 S.Ct. 2156] (Fitzgerald) demonstrates this point. In Fitzgerald, the court addressed the constitutionality of a 1994 Iowa statute that imposed a maximum tax rate of 20 percent on revenues generated by slot machines located on excursion riverboats, but imposed a maximum tax rate of 36 percent on revenues generated by slot machines located at racetracks. In describing the background of the statute, the high court in Fitzgerald explained that prior to 1989 Iowa had permitted only one form of gambling— parimutuel betting at racetracks—but that in 1989 the state authorized other forms of gambling, including the use of slot machines on riverboats, and at the same time imposed a maximum tax rate of 20 percent on revenues generated by the riverboat slot machines. Thereafter, in 1994, the state enacted the statute at issue in Fitzgerald—a provision that for the first time authorized racetracks to operate slot machines, imposed a maximum tax rate of 36 percent on revenues generated by the racetrack slot machines, and (while making other changes with regard to riverboat slot machines) left the maximum tax rate on riverboat slot machine revenue at 20 percent.

After the 1994 statute was enacted, a group of racetracks brought a state court action challenging the constitutionality, under the equal protection *301clause, of the 20 percent/36 percent differential in maximum tax rates imposed on riverboat and racetrack slot machine revenues. The state trial court upheld the statute, but on appeal the Iowa Supreme Court, by a four-to-three vote, reversed the lower court decision. In reaching its conclusion, the majority opinion of the Iowa Supreme Court reasoned that the “ ‘differential tax completely defeats the alleged purpose’ of the statute, namely, ‘to help the racetracks recover from economic distress,’ that there could ‘be no rational reason for this differential tax,’ and that the Equal Protection Clause consequently forbids its imposition.” (Fitzgerald, supra, 539 U.S. at p. 106.) Thereafter, the United States Supreme Court granted certiorari and unanimously reversed the Iowa Supreme Court decision.

In holding that the challenged statute did not violate equal protection principles, the United States Supreme Court explained in Fitzgerald that the Iowa Supreme Court could not deny “that the Iowa law, like most laws, might predominantly serve one general objective, say, helping the racetracks, while containing subsidiary provisions that seek to achieve other desirable (perhaps even contrary) ends as well, thereby producing a law that balances objectives but still serves the general objective when seen as a whole.” (Fitzgerald, supra, 539 U.S. at p. 108.) The high court continued in Fitzgerald: “Once one realizes that not every provision in a law must share a single objective, one has no difficulty finding the necessary rational support for the 20 percent/36 percent differential here at issue. That difference, harmful to the racetracks, is helpful to the riverboats, which, as respondents concede, were also facing financial peril.... And aside from simply aiding the financial position of the riverboats, the legislators may have wanted to encourage the economic development of river communities or to promote riverboat history, say, by providing incentives for riverboats to remain in the State, rather than relocate to other States. . . . Alternatively, they may have wanted to protect the reliance interests of riverboat operators, whose adjusted slot machine revenue had previously been taxed at the 20 percent rate. All these objectives are rational ones, which lower riverboat tax rates could further and which suffice to uphold the different tax rates.” (Fitzgerald, supra, 539 U.S. at p. 109; accord, e.g., Kadrmas v. Dickinson Public Schools (1988) 487 U.S. 450, 462-463 [101 L.Ed.2d 399, 108 S.Ct. 2481] [“ ‘[W]e will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational’ ” (italics added)]; U. S. Railroad Retirement Bd. v. Fritz (1980) 449 U.S. 166, 181 [66 L.Ed.2d 368, 101 S.Ct. 453] (cone. opn. of Stevens, J.) [legislation often is the “product of multiple and somewhat inconsistent purposes that led to certain compromises”].)

Like the Iowa statute at issue in Fitzgerald, supra, 539 U.S. 103, the Hanford ordinance challenged here clearly was intended to serve multiple *302purposes. The city desired to protect the economic viability of its downtown business district, but at the same time it did not wish to diminish the financial benefits of the PC district for the large department stores that it wanted to attract and maintain in that district. Because the city viewed large department stores as particularly significant elements of the PC district, and because the management of those stores had made clear the importance to them of retaining their ability to offer furniture sales that typically were offered by their sister stores in other locations, it was rational for the city to decide to provide an exception from the general prohibition on furniture sales in the PC district for such large department stores and only such stores. The circumstance that the city also decided to limit the exemption afforded to department stores by placing a square-foot limit on the area within each store in which furniture could be displayed does not in any manner detract from the rationality of limiting the exception to large department stores.

Accordingly, contrary to the Court of Appeal’s determination, we conclude that the ordinance’s differential treatment of large department stores and other retail stores is rationally related to one of the legitimate legislative purposes of the ordinance—the purpose of attracting and retaining large department stores within the PC district. The Court of Appeal’s resolution of this issue, which would have required the city to extend the ordinance’s 2,500-square-foot exception for furniture sales to all retail stores within the PC district, would have undermined the ordinance’s overall objective of permitting the sale of furniture in the PC district only to the extent such activity is necessary to serve the city’s interest in attracting and retaining large department stores in that district.13

*303IV

In sum, the Court of Appeal erred in invalidating the ordinance at issue. The judgment of the Court of Appeal is reversed.

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This appeal concerns the legality of actions taken by the City of Frankenmuth (the City) to keep a Wal-Mart supereenter from being built on land owned by the Loesel family in Frankenmuth Township (the Township). As the result of a post purchase-agreement ordinance that restricted the size of any new buildings on the property to 65,000 square feet or less, Wal-Mart Real Estate Business Trust (Wal-Mart) terminated its conditional agreement to purchase the Loesels’ land for $4 million.

The Loesels sued the City for damages, claiming that the selective zoning ordinance violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. A jury agreed, awarding the Loesels $3.6 *455million in damages. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual background

Frankenmuth, “Michigan’s Little Bavaria,” is one of the top tourist destinations in Michigan. Despite its popularity with tourists, Frankenmuth maintains a small town atmosphere with a population of 4,838 in the City and 2,049 in the Township, according to the 2000 U.S. Census (the last Census taken before the events relevant to this case occurred). The City is famous for its Bavarian-themed stores, restaurants such as the Bavarian Inn and Zehnder’s serving family-style chicken dinners, and its gift shops. Bronner’s Christmas Wonderland, the world’s largest year-round Christmas store, draws over two million visitors annually.

The plaintiffs, Ronald Loesel, Arthur Loesel, Gayle Loesel, Elaine Loesel, Valerian Nowak, and The Valerian Nowak and Alice B. Nowak Trust (collectively, the Loesels), are the co-owners of a 37-acre tract of land that borders Main Street just outside the Frankenmuth city limits. They inherited the property from their mother when she died in 2003. A 2003 property-tax appraisal valued the land at $95,000.

The Loesels’ property has been used as farmland for nearly 100 years. Although not within the City’s boundaries, the property is within the urban growth area that was established jointly by the City and the Township in 1985 to confine and guide urban growth in order to retain the character of the Frankenmuth community. The City’s and the Township’s growth is guided by their Joint Growth Management Plan (the Plan) that sets forth the goals for Frankenmuth’s expansion. In 1985, the first version of the Plan was drafted and, in June 2005, the second version of the Plan was formally adopted.

The two governments agreed as part of the Plan that they should “[pjromote compact residential and commercial development inside the urban limit line,” which included the Loesels’ property. To promote growth, the western portion of the Loesels’ property along Main Street, approximately 15 acres in size, was zoned as Commercial Local Planned Unit Development (CL-PUD), with the remaining 22 acres to the east designated as Residential Planned Unit Development (R-PUD). Permitted uses for CL-PUD-zoned properties include developments that “provide principally for sale of goods and services to meet the general needs of the residents of the Frankenmuth community, including but not limited to grocery, department, drug and hardware stores, financial institutions, professional and personal service offices and transportation sale and service businesses.” City of Frankenmuth, Mich., Zoning & Planning Code § 5.241.3(1) (2009).

At the time the Loesels inherited the property, the land was being leased to a tenant farmer. In 2004, however, the Loesels were approached by a real-estate broker who told them he had a client interested in purchasing their property. The Loesels met with the broker and discovered that he represented Wal-Mart. Because the western portion of the Loesels’ property abuts Main Street and is commercially zoned, Wal-Mart was interested in buying the property to build a store.

In early 2005, City officials became aware that Wal-Mart was interested in purchasing and developing the Loesels’ property. The district court summarized *456the reaction of the City Manager as follows:

On March 29, 2005, upon learning that Plaintiffs were talking to Wal-Mart, ... City Manager Charles Graham emailed a planner acquaintance at the Michigan Department of Transportation (“MDOT”) stating that “[City Clerk] Phil Kerns has now confirmed there will be a meeting here on April 7th pertaining to the Loesel property on North Main.” The next day, Graham emailed the planner at MDOT and said, “We have heard rumors that the proposed project is a Walmart which I am totally opposed to, and I think most people in Frankenmuth will be opposed to.” However, Graham acknowledged that [the Loesels’] property was properly commercially zoned and that as a consequence, absent action by [the City], [the Loesels] had a right to sell the property to Wal-Mart for a store to be built in the northern end of town.

(Brackets around “[City Clerk]” in original; all other brackets added.)

On May 26, 2005, the Loesels entered into a conditional agreement to sell 23.55 acres of their land to Wal-Mart for $2,943,750, which works out to precisely $125,000 per acre. Wal-Mart had 180 days under the agreement to determine the feasibility of its planned development of the property. “At any time prior to the end of the Feasibility Period, Wal-Mart [was permitted to], for any reason in its sole and absolute discretion, cancel [the] Agreement and receive a refund of the [$50,000] Deposit.”

City Manager Graham, however, did not give up his fight against Wal-Mart, as the following excerpt from the district court’s opinion explains:

At a point after [the Loesels] had signed the agreement with Wal-Mart, Graham began to solicit information concerning other communities’ efforts to exclude Wal-Mart from their towns. On June 22, 2005, in response to an email he sent requesting assistance on how to oppose the Wal-Mart, Graham was told that [the City] couId[ ] “[a]dd a provision to the zoning ordinance that limits the size of any commercial building. That will stop them from enlarging and may stop them from beginning if they know they cannot enlarge.” In the same email, Graham was advised: “Be sure to do a good internet search first because WalMart has challenged some of those provisions and won when they were poorly drafted, but lost when they weren’t, if I recall correctly.” Graham was further advised: “It is definitely better for citizens to fight it instead of the city and township.”

On July 14, 2005, Graham attended a meeting of the Frankenmuth Economic Development Corporation (“EDC”). At the meeting Graham acknowledged that he had reviewed the proposed site plan submitted by Wal-Mart’s engineers, and admitted that, as shown, it appeared that the zoning allowed the proposed project. The EDC estimated that the Wal-Mart store would generate between $40,000 and $50,000 in annual [property] tax revenue for [the City], which would have added an additional two-percent to [the City’s] annual property tax revenue, with total tax revenue for [all local taxing entities] amounting to between $200,000 and $250,000.

.... On July 15, 2005, Sheila Stamiris, Executive Director of the DDA [ (Frankenmuth Downtown Development Authority) ], sent a memorandum to the Frankenmuth Mayor and City Council. She advised [the] Mayor and the City Council that [the Loesels] had been offered a large sum of money by WalMart for their land. She said:

*457Tuesday we awkwardly discussed the proposed Walmart project. As I already suggested, we have not brought the discussion to the public agenda. If there is anything good to say about the project, we can say that we have been given a heads up by the owner and perhaps we have been given a gift of time to adequately plan for this controversial project. I feel strongly that the City should remain neutral while fact finding is completed.

Stamiris expressly advised [City officials] that the proposed store was a 104,-000 square-foot super-center including sundry and drygoods, a grocery, a pharmacy, and a tire center. Stamiris identified the precise location of the proposed store. Shortly after writing the memorandum, Stamiris advised Graham and other [City] officials that other Michigan towns had not experienced problems with Wal-Mart stores. She forwarded an email from the Downtown Development Authority of DeWitt, Michigan, a town roughly the same size as [the City], that said in response to her inquiry:

We have three Wal-Marts within a twenty mile radius. To this point we have not noticed that specifically, Wal-Mart has negatively impacted our downtown. We recently lost a dollar store, but [I] am not sure it could be contributed [sic] to the opening of a Wal-Mart. It seems that folks in this area are of the opinion that shoppers will go where they can get the best deal and Wal-Mart has good deals. We feel that the Big Box stores offering one stop shopping appeal to younger shoppers with convenience as their goal.

Stamiris also forwarded to [City officials] an Economic Impact Report that estimated the new Wal-Mart store would generate between three- and five-hundred jobs and contribute $70,000 in taxes in the first year of operation. After receiving the report, Graham again solicited an MDOT planner for help in opposing the proposed store. In an email that acknowledged that Wal-Mart itself advised that it would create three-hundred jobs paying nearly ten dollars per hour, he asked MDOT, “Do you know of any localities that have ordinances that prohibit 24 hour operation?”

On July 20, 2005, [City officials were] adviséd by Tom Johnston, a prominent local businessman [and co-owner of the Bavarian Mall], that an anti-Wal-Mart group called Citizens for Frankenmuth First had been set up, and that Johnston was involved in the group as a Vice-President. Johnston had operated an IGA store for several years until it was purchased by the Kroger Company, which operates over three-thousand stores in the United States, in 2003. The Kroger is located on North Main Street, several blocks north of Genesee Street within the Bavarian Mall, which is zoned B-3, highway commercial. Previously, Greg Rummel, a member of [the City’s] Planning Commission[,] helped to set up the citizens group in its initial stages, as citizens contacted him with concerns. He discontinued official participation with the group when he perceived a potential conflict of interest with his role on the Planning Commission.

(Brackets for “[a]dd” in original; all other brackets added.)

In August 2005, at the suggestion of the City’s Planning Commission, the City passed Resolution No.2005-92, a 120-day moratorium on the construction of any facility with an area of 70,000 square feet or more. This temporary respite gave City officials time to consider legislation that *458would stop Wal-Mart from proceeding to develop the Loesels’ property, as the district court detailed:

An individual who was known for his anti-Wal-Mart views[] transmitted to Graham and Kerns the text of a Maryland ordinance that limited retail establishments to 65,000 square feet. Later, Graham and Kerns obtained an article from the American Planning Association entitled “Practice Big Box Regulation,” which explained some methods by which towns could zone away stores like WalMart. On September 14, Graham sent an email to Kerns that suggested how such an ordinance could be formulated.

In the days that followed, but before any public hearing on the issue, Graham continued to pursue “size-cap” ordinances as the means of blocking WalMart. On September 14, 2005, he contacted the Institute for Local Self-Reliance, an anti-Wal-Mart website that sells books entitled, “Big Box Swindle,” among others. He inquired about antiWal-Mart ordinances as follows:

I read your article on store size caps. My question is: Have any of these communities been sued for establishing these store size caps and if so what were the results? If we adopt this type of ordinance, does it have a chance of withstanding potential litigation? Our recently updated community master plan does provide a good foundation for adoption of this type of ordinance. Our City Council is interested in pursuing this type of ordinance, but there is some hesitancy about it because of the fear of law suits.

----On September 27, 2005, Graham first internally introduced the idea of an ordinance capping the size of a retail establishment. Two days later, Graham introduced [Robert] LaBelle [ (an attorney retained by Citizens for Frankenmuth First) ] to the Frankenmuth Ordinance Review Committee (“ORC”) and invited LaBelle to attend the meeting with the ORC, scheduled for October 5, 2005.

At the time this occurred, [the City’s] only economic development report concerning a Wal-Mart in Frankenmuth was the positive assessment [the City] obtained during the summer of 2005. On October 5, 2005, Graham sought an opinion from the City’s insurer about liability coverage in the event of a lawsuit. On October 11, 2005, Graham forwarded to members of the ORC committee a proposed ordinance that would limit store size. The proposed ordinance was drafted by LaBelle, and his services were paid for by Citizens for Frankenmuth First. It is not known how the citizens group was funded. The zoning ordinance would establish a Neighborhood Commercial Overlay Zone, set standards and regulations within the zone, and limit the size of retail establishments to 65,000 square feet. On October 18, 2005, Wal-Mart made a presentation to [the City] indicating that it was willing to design its store to fit in architecturally with the Bavarian appearance maintained in the historic part of town.

After the first draft of the ordinance was circulated, Graham continued to communicate with LaBelle about the potential Wal-Mart store. In an email dated October 21, 2005, Graham expressed concern to LaBelle that having the ordinance apply only to the northern end of town was discriminatory and Graham expressed further concern that were the ordinance to be applied citywide, the established, local businesses on the southern end would object to having a limitation that stopped them from *459building in the future. In his email to LaBelle, Graham said:

The Planning Commission will also have to decide which of the two versions of the 65,000 square foot store ordinance they want to adopt. As our Ordinance Review Committee was reviewing the findings section at the beginning of the ordinance, we could not see how those findings justified only allowing a building of less than 65,000 square feet north of Genesee Street. We also felt that in a court of law a judge would view this approach as more even handed because it will be applicable to the entire City. Having the ordinance only apply north of Genesee is discriminatory to that area of town. That’s why the one version of the ordinance would have to apply • to the entire City.

Genesee Street runs east and west and roughly bisects the City. The businesses south of Genesee Street include Bronner’s Christmas Wonderland, and City officials were concerned about what effect a 65,-000-square-foot limitation would have on Bronner’s. As the district court noted:

In the same email to LaBelle, Graham said:

However, the Committee also recognizes that the local businesses who are in the tourist business may object to having this limitation apply to their area of town, i.e., the area south of Genesee. The example we keep hearing is, What if Cabella’s wants to locate a store here? That’s the reason for drafting the ordinance version that applies to the area north of Genesee. I think this version of the ordinance would be fine if we could all feel comfortable with the justification of why it would only apply to the area north of Genesee. Up to this point, I don’t think we have adequate justification for restricting it to that area.

Graham then created two new drafts of the ordinance, with one draft limiting the store cap size only to an area north of Genesee Street, and one draft establishing a Commercial Overlay Zone encompassing all properties within [Frankenmuth’s urban growth area],

.... Shortly before [the ordinance] was set for a vote by the Planning Commission, Graham explicitly noted that the proposed zoning ordinance should not be written to affect Bronner’s:

We ... may have a proposed project in another commercial zone such as B-3. The property where Bronner’s is located is zoned B-3 and I don’t want to have to tell them they can’t qualify for a 70,000 square foot addition.

In addition, Graham was informed of Johnston’s concern that the ordinance might hamper the ability of the Kroger located in Johnston’s Bavarian Mall to expand. Because the Bavarian Mall is north of Gene-see Street, the mall would be subject to the draft of the ordinance that excluded only the properties south of Genesee.

As a result of these and other concerns, Graham, with the assistance and input of others, decided to shrink the size of the area affected by the proposed ordinance even further, to include only CL-PUD-zoned properties. This meant that the only properties affected by the ordinance were the Loesels’ property and a handful of much smaller parcels in its immediate vicinity. The proposed ordinance excluded the part of the town immediately south of the Loesels’ property, including the Bavarian Mall and Bronner’s.

This version of the ordinance was ultimately adopted on December 7, 2005 as Ordinance No.2005-10. It established the *460“Commercial Local Planned Unit Development Overlay Zone (CL-PUDOZ) encompassing all CL-PUD (Commercial Local Planned Unit Development) zoning districts in the City of Frankenmuth” and required that the floor area of any retail building in the CL-PUDOZ “shall not exceed sixty-five thousand (65,000) square feet.”

Wal-Mart and the Loesels, apparently unaware of the ordinance’s passage, amended their purchase agreement on the same date to state that Wal-Mart would buy all 37 acres of the Loesels’ property for $4 million. The amendment also provided that Wal-Mart had to put a $5,000 nonrefundable deposit into escrow.

Wal-Mart continued for the time being to move forward with the project and attended a pre-application meeting with the City and the Township on January 13, 2006. Following the meeting, the City sent a list of additional items that would be needed for Wal-Mart to proceed with the application process, such as traffic-impact and economic-impact studies and a landscaping plan that complied with storm-water drainage regulations. Wal-Mart was directed to submit these items before a second pre-application meeting was scheduled. In light of the new size-cap ordinance, however, Wal-Mart declined to continue with the approval process and never again communicated with the City about the proposal.

In a letter dated March 16, 2006, WalMart informed the Loesels that it intended to terminate the purchase agreement pursuant to the “feasibility” clause. The Loesels received the $5,000 from the escrow account and Wal-Mart recovered its $50,000 deposit. A representative from Wal-Mart testified (in a deposition that was read into the record at trial) that the agreement was terminated because WalMart would not have been able to build its proposed supercenter on the Loesels’ property given the 65,000-square-foot restriction.

B. Procedural background

In March 2008, the Loesels filed a complaint against the City. They brought suit under 42 U.S.C. § 1983, alleging that the City’s 65,000-square-foot zoning restriction violated their rights under the Equal Protection, Due Process, Privileges or Immunities, and Commerce Clauses of the U.S. Constitution. As a remedy, they sought $4 million in compensatory damages, attorney fees under 42 U.S.C. § 1988, costs, and an order declaring that the ordinance is unconstitutional.

The district court granted summary judgment for the City on all but the Loesels’ equal protection claim. And even that claim, according to the court, was not viable as an “as-applied” challenge, but could be submitted to a jury as a “facial” challenge. The court ruled that to succeed on an “as-applied” challenge, the Loesels’ would have had to show that the City actually applied the size-limitation ordinance to their property. Wal-Mart, however, failed to complete the application process for approval of its store, so the City never denied Wal-Mart’s application for development. Because the size-limitation was never directly enforced against the Loesels, their as-applied challenge had no merit. But the district court concluded that the Loesels had raised a genuine dispute as to whether the size-limitation ordinance was invalid on its face (a “facial” challenge) because they had presented evidence demonstrating that the mere existence and threatened enforcement of the ordinance adversely affected the value of their property.

A trial was held on the Loesels’ facial equal protection claim in February and March 2010. The City moved for judg*461ment as a matter of law following the close of the Loesels’ case-in-chief and again at the close of its own proof. Both times the district court declined to rule, taking the matter “under advisement pending the determination of the jury.” The jury then returned a verdict for the Loesels and awarded them $3.6 million in damages.

Shortly thereafter, the City filed a renewed motion for judgment as a matter of law or, in the alternative, for a new trial or remittitur, which the district court denied in September 2010. The court then granted in part and denied in part the Loesels’ motion for entry of judgment and assessment of attorney fees, interest, and costs. In its order, the court determined that the Loesels were entitled to the declaratory relief requested — that the challenged zoning ordinance be declared unconstitutional — and to prejudgment interest, but denied their request for prefiling interests and costs. Loesel v. City of Frankenmuth, 743 F.Supp.2d 619, 641 (E.D.Mich.2010) (“The Court is persuaded by Plaintiffs’ arguments that declaratory relief is proper under the circumstances of this case.”). The court also determined that an evidentiary hearing was necessary before it could rule on the Loesels’ request for attorney fees. Before that hearing occurred, and before judgment was entered, the City filed a timely notice of appeal from the court’s September 27, 2010 Order.

II. ANALYSIS

A. Judgment as a matter of law

The City claims that the district court erred in denying its renewed motion for judgment as a matter of law under Rule 50(b) of the Federal Rules of Civil Procedure. We review a district court’s denial of a Rule 50(b) motion de novo. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007). “The motion may be granted only if in viewing the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact for the jury, and reasonable minds could come to but one conclusion, in favor of the moving party.” Id. (internal quotation marks omitted).

Here, the City argues that there was insufficient evidence for the jury to reasonably conclude that the 65,000-square-foot size restriction violated the Equal Protection Clause. “The Equal Protection Clause prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681-82 (6th Cir.2011) (holding that the state officials’ motion to dismiss should have been granted on the basis of qualified immunity where the plaintiffs alleged that the officials violated their right to equal protection by treating female farm owners differently than similarly situated male farm owners).

In this case, the Loesels pursued their equal protection claim under the “class-of-one” theory recognized by the Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam) (holding that the Olechs sufficiently stated an equal protection claim where they alleged that, as a condition of being connected to the municipal water supply, the village demanded a 33-foot easement from the Olechs but required an easement of only 15 feet from similarly situated neighbors). Class-of-one claims are generally viewed skeptically because such claims have the potential to turn into an exercise in which juries are second-guessing the legislative process:

In the wake of Olech, the lower courts have struggled to define the contours of *462class-of-one cases. All have recognized that, unless carefully circumscribed, the concept of a class-of-one equal protection claim could effectively provide a federal cause of action for review of almost every executive and administrative decision made by state actors. It is always possible for persons aggrieved by government action to allege, and almost always possible to produce evidence, that they were treated differently from others, with regal'd to everything from zoning to licensing to speeding to tax evaluation. It would become the task of federal courts and juries, then, to inquire into the grounds for differential treatment and to decide whether those grounds were sufficiently reasonable to satisfy equal protection review. This would constitute the federal courts as general-purpose second-guessers of the reasonableness of broad areas of state and local decisionmaking: a role that is both ill-suited to the federal courts and offensive to state and local autonomy in our federal system.

Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th Cir.2004) (footnote omitted).

That is why a plaintiff must overcome a “heavy burden” to prevail based on the class-of-one theory. See TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 791 (6th Cir.2005) (affirming the district court’s conclusion that the plaintiff-hospitals “had not carried [their] heavy burden” of proving an equal protection violation under the class-of-one theory where the plaintiffs alleged that awarding county tax funds exclusively to the local university hospital and not the plaintiff-hospitals was discriminatory). The Loesels must show that they were treated differently than those similarly situated in all material respects. See Rondigo, 641 F.3d at 682. In addition, they

must show that the adverse treatment they experienced was so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational. This showing is made either by negativing every conceivable reason for the government’s actions or by demonstrating that the actions were motivated by animus or ill-will.

Id. (citations and internal quotation marks omitted).

The City argues that it is entitled to judgment as a matter of law because the Loesels failed to show that (1) their property was similarly situated to other properties that were treated differently under the zoning ordinance, (2) the ordinance lacked a rational basis, or (3) the ordinance was passed because of any animosity against the Loesels. Each of these arguments is addressed in turn below.

1. Similarly situated

The Loesels have the burden of demonstrating that they were treated differently than other property owners who were similarly situated in all material respects. See TriHealth, 430 F.3d at 790 (“Materiality is an integral element of the rational basis inquiry.... [Disparate treatment of persons is reasonably justified if they are dissimilar in some material respect.”); see also Schellenberg v. Twp. of Bingham, 436 Fed.Appx. 587, 591 (6th Cir.2011) (holding that “plaintiffs must allege that they and other individuals who were treated differently were similarly situated in all material respects” (brackets and internal quotation marks omitted)).

“In determining whether individuals are ‘similarly situated,’ a court should ‘not demand exact correlation, but should instead seek relevant similarity.’ ” Bench Billboard v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir.2012) (quoting Perry v. *463 McGinnis, 209 F.3d 597, 601 (6th Cir.2000) (citation omitted)). “Materiality cannot be evaluated in a vacuum.” TriHealth, 430 F.3d at 790. “Inevitably, the degree to which others are viewed as similarly situated depends substantially on the facts and context of the case.” Jennings, 383 F.3d at 1214. Furthermore, “determining whether individuals are similarly situated is generally a factual issue for the jury.” Eggleston v. Bieluch, 203 Fed.Appx. 257, 264 (11th Cir.2006).

The Loesels asserted at trial that the two local properties containing the area’s largest retail establishments — the Bavarian Mall and Bronner’s — were similarly situated to their property. But the City contends that, as a matter of law, there are material differences between the Loesels’ property and the other two properties. The district court disagreed with the City and ruled that sufficient evidence existed for a jury to reasonably conclude that the Bavarian Mall and Bronner’s were similarly situated to the store that WalMart proposed to build on the Loesels’ property:

[ The City] contends that the Court erred in determining that Plaintiffs can maintain a “class of one” equal protection claim because Bronner’s and Kroger [ (i.e., the Bavarian Mall) ] are not similarly situated to Plaintiffs in relevant, material aspects. [The City] contend[s] that Plaintiffs are not similarly situated to Bronner’s and Kroger because the stores sell different products than Wal-Mart and because the properties are zoned differently. [The City] has not explained how any differences between the products to be sold by WalMart and those sold by either Bronner’s or Kroger is relevant and material to the enactment of a size-cap and the equal protection analysis. Additionally, as the Court explained in its order, the fact that the properties are zoned differently and that the requirements and goals of the different classifications are not identical does not mean that the properties cannot be similarly situated. [The City] has not explained how any differences in requirements and goals are material to the analysis.

Loesel v. City of Frankenmuth, No. 08-11131-BC, 2009 WL 1449049, at *2 (E.D.Mich. May 22, 2009) (unpublished opinion).

The district court’s analysis implies that the proper comparison is between the stores on the properties (or, in the case of the Loesels, the store proposed for their property), rather than between the property owners or the properties themselves. And at times the court conflated the Loesels with Wal-Mart. The relevant question, however, should be framed in terms of the properties and their owners, not in terms of the stores located on those properties. In other words, the proper comparison is not between the supercenter that Wal-Mart wanted to develop, on the one hand, and the Bavarian Mall and Bronner’s on the other, but between the Loesels’ property and the properties on which the Bavarian Mall and Bronner’s sit. See Taylor Acquisitions, L.L.C., v. City of Taylor, 313 Fed.Appx. 826, 838 (6th Cir.2009) (holding that the plaintiff had to show in its class-of-one equal protection claim that the government officials had personal animus against the plaintiff, not against the development that the plaintiff was proposing). Despite this weakness in the district court’s analysis, much of its reasoning can be translated into a proper comparison between the various properties.

The first property that the Loesels assert is similarly situated to theirs is the parcel on which the Bavarian Mall is located. This strip mall is the second-largest *464commercial development in Frankenmuth, located on the east side of Main Street just south of the Loesels’ property. The properties are in fact so close that only two small parcels of land separate them. Originally constructed in 1973, the Bavarian Mall has retail space measuring 104,000 square feet. Its tenants include a Kroger grocery store and a gas station.

Two brothers, Dave and Tom Johnston, own a controlling interest in the Bavarian Mall. Dave was a member of the Downtown Development Authority (DDA) in 2005, and Tom had previously been on the City Council. Tom was the person who filed the articles of incorporation for Citizens for Frankenmuth First in August 2005.

The 45-acre parcel on which Bronner’s Christmas Wonderland sits is the other property that the Loesels assert is similarly situated to theirs. Located at the southern end of Main Street, two miles south of the Loesels’ property, the parcel contains a 400,000 square-foot retail store. The owner of Bronner’s is the Bronner family. Wayne Bronner, president and chief executive officer of Bronner’s, was chairman of the DDA board of directors in 2005.

According to the City, the district court should have ruled as a matter of law that the Loesels’ property is not similarly situated to the Bavarian Mall and Bronner’s properties because of three alleged distinctions between them. The first alleged difference concerns the zoning classification: both the Bavarian Mall and Bronner’s are located on B-3-zoned properties, whereas the portion of the Loesels’ parcel affected by the ordinance is zoned CL-PUD.

The Loesels’ respond by pointing out that this distinction is not a material one. Indeed, even City Manager Graham conceded that there was “no difference in terms of how the zoning treated the CL-PUD and the B-3” and that “essentially the same regulations” apply to both zones. He also acknowledged that, had the Loesels’ property been inside the City limits in 1985 when the zones were first applied, “It would probably have been designated as B-3.” The jury could therefore have reasonably concluded that the difference in “labels” for these commercially zoned properties is not material.

This leads to the City’s second alleged distinction: that the Loesels’ property differs from the Bavarian Mall and Bronner’s properties because the Loesels’ property is vacant land, whereas the properties containing the Bavarian Mall and Bronner’s were already developed. The City’s argument would have more force had it not previously designated the Loesels’ property as CL-PUD. As part of the City’s Plan, however, the promotion of commercial development is encouraged on the CL-PUD properties. Accordingly, the jury could have reasonably concluded that the developed/undeveloped distinction is not material.

The City’s last alleged difference between the Loesels’ property and the other two properties that it contends is material relates to their traffic capacities. Main Street is five lanes wide at the entrances to both the Bavarian Mall and Bronner’s, but narrows to three lanes at the Loesels’ property. The City contends that a three-lane road does not provide adequate traffic capacity for a store with over 65,000 square feet of sales space. Traffic-capacity considerations, however, are typically deferred until the development-application process. To prevent a development from being built where traffic capacity is inadequate, the City did not have to enact a size-restriction ordinance; it could have simply rejected the application on the basis of inadequate traffic capacity. Moreover, Main Street in front of the Loesels’ *465property would have the same traffic capacity as at the other two locations simply by extending the extra two lanes the length of the property. These facts lessen the importance of the difference in traffic capacity to the point where the jury could have reasonably concluded that it is not material.

In sum, there is a genuine dispute of material fact as to whether the three properties are similarly situated. This means that the district court did not err in denying the City’s renewed motion for judgment as a matter of law on this issue.

2. Rational basis

The City next contends that it is entitled to judgment as a matter of law on the issue of whether the zoning ordinance had a rational basis. Under rational basis review, the defendant “has no obligation to produce evidence to sustain the rationality of its actions; its choice is presumptively valid and may be based on rational speculation unsupported by evidence or empirical data.” TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 790 (6th Cir.2005). The burden instead falls on the Loesels to “demonstrate that a government action lacks a rational basis ... either by negativing every conceivable basis which might support the government action or by demonstrating that the challenged government action was motivated by animus or ill-will.” Warren v. City of Athens, Ohio, 411 F.3d 697, 711 (6th Cir.2005) (brackets and internal quotation marks omitted).

a. No-conceivable-basis theory

The City contends that the Loesels did not present evidence sufficient to refute every possible nondiscriminatory reason for enacting the 65,000 square-foot size restriction. It argues that the testimony of its municipal-land-use expert Donald Wortman demonstrated that a rational basis existed for applying the size limit to only CL-PUD-zoned properties. Wort-man testified that several characteristics of the Loesels’ property made it unsuitable for a large big-box retail store, including the parcel’s inadequate depth (the CL-PUD portion of the Loesels’ property is only 660 feet deep as opposed to the typical 1,000 feet or more of depth typical of large retail developments), its close vicinity to residential property, its inadequate traffic capacity and space for parking, and its potential storm-water retention issues.

Wortman then identified about one dozen parcels of land within Frankenmuth’s urban growth area that he believed were better suited for the development of a big-box store than was the Loesels’ property. He also explained that Wal-Mart’s planned supercenter would attract more than Frankenmuth residents because the stores generally require a population of at least 30,000, whereas the City and Township total less than 7,000 residents. This would, according to Wortman, make a Walmart supercenter more appropriate for CT-PUD-zoned properties in the southern end of the urban growth area, which were designated to serve visitors, than the local-resident-oriented CL-PUD district in the northern end. He further reasoned that the ordinance bolstered the City’s desire to maintain “a compact commercial core” in the downtown city center that is “pedestrian friendly [and] a benefit to the residents.”

In Wortman’s professional opinion, the City reasonably decided to apply the size limit to only CL-PUD-zoned properties because there were already properties in the B-3 zone — specifically the Bavarian Mall and Bronner’s — that were over the 65,000-squarefoot size limit. He explained that there would be negative consequences to applying a size limit to a building that *466already exceeded the limit. One such consequence would be that an existing building exceeding the new size limit would be considered “non-conforming” and, although the structure could remain as is, the property owner would be unable to enlarge the existing structure without receiving a variance from the zoning board. In addition, “financial institutions are reluctant to extend loans or mortgages to structures that are non-conforming,” in part because if more than 50% of the structure were destroyed, the new zoning ordinance would not permit the structure to be rebuilt.

The Loesels respond by arguing that the jury correctly rejected Wortman’s opinions because his testimony was undercut on cross-examination and by the testimony of City Manager Graham. Wortman conceded, for example, that he had no idea whether the parcels that he identified in the southern end of the City were available for sale, what the current uses of those properties were, or whether any of the parcels contained undeveloped wetlands or had appropriate road access.

Moreover, City Manager Graham contradicted Wortman’s opinion that the Plan called for growth in the southern end of Frankenmuth rather than in the northern end. Graham testified that the Plan made no distinction between the two areas of the City. Language directly from the Plan supports Graham’s view:

As demand for additional local commercial businesses becomes evident, additional local commercial establishments should be located in the northern end of the city, north of the Bavarian Mall area along Main Street in Section 23.

In sum, a genuine dispute exists as to whether the ordinance lacked a rational basis. The jury could therefore have rejected Wortman’s testimony in finding for the Loesels on this issue.

b. Animus or ill will

Finally, the City contends that the district court should have granted the City judgment as a matter of law on the issue of whether animus or ill will against the Loesels motivated the enactment of the 65,000-square-foot size restriction. The district court determined that a reasonable jury could conclude that the City harbored animus against the Loesels because no invitations or notices were sent to the Loesels concerning the city council meeting at which the proposed size-limitation ordinance was discussed. But the fact that the City was not cognizant of or proactively seeking the Loesels’ opinions is a far cry from harboring animus or ill will. Animus is defined as “ill will, antagonism, or hostility usually controlled but deep-seated and sometimes virulent.” Webster’s Third New International Dictionary, Unabridged (2002). Similarly, ill will is defined as an “unfriendly feeling: animosity, hostility.” Id. These definitions indicate that a showing of animus or ill will (hereinafter collectively referred to as “animus”) requires more than simply failing to invite the Loesels to a meeting.

The Loesels attempt to bolster the district court’s determination on this issue by claiming that Sheila Stamiris, Executive Director of the DDA, harbored feelings of envy because, when Stamiris first heard rumors of the potential sale of Loesels’ property to Wal-Mart, she informed City officials in a memorandum that the Loesels were selling their land for a “great deal of money.” But Stamiris never indicated in the memorandum that the amount of money bothered her, nor did she say anything negative about the Loesels in the document. She even mentioned in the memorandum that she was grateful that the City had “been given the ‘heads up’ by the [Loesels]” about the proposed sale. Furthermore, her statement about the money involved in the deal was true: by that *467date, the Loesels had been offered nearly $3 million by Wal-Mart. Stamiris’s isolated remark is therefore insufficient to prove that Stamiris — much less the City officials who actually enacted the ordinance — was motivated by any animus against the Loesels.

Although the Loesels presented abundant evidence showing that certain City officials, such as City Manager Graham, strongly opposed having a Wal-Mart supercenter in Frankenmuth, the animus had to be directed against the Loesels to be relevant to their claim. See Taylor Acquisitions, L.L.C., v. City of Taylor, 313 Fed.Appx. 826, 838 (6th Cir.2009) (holding that the plaintiff had to show in its class-of-one equal protection claim that government officials expressed animus against the plaintiff, not against the development it was proposing); see also Ziss Bros. Constr. Co. v. City of Independence, Ohio, 439 Fed.Appx. 467, 479 (6th Cir.2011) (concluding that the plaintiff failed to allege an equal protection violation based on animus where the plaintiff alleged that the animus of the defendant-city was directed at the plaintiff’s proposed development plan and not at the plaintiff itself); McDonald v. Vill. of Winnetka, 371 F.3d 992, 1001 (7th Cir.2004) (holding that a class-of-one claim may be established by showing that there “is a totally illegitimate animus toward the plaintiff by the defendant” (emphasis added) (internal quotation marks omitted)). The district court, therefore, should have granted the City’s motion for judgment as a matter of law on the animus theory of liability.

This leaves us with the question of whether the district court’s error requires that we remand the case for a new trial. Before deliberations, the jury was instructed that it could find the City liable under either the no-conceivable-basis or the animus theory of liability. The jury returned a general verdict form answering “Yes” to the following question of liability: “Did the plaintiffis] prove their equal protection claim by a preponderance of the evidence?” But as determined above, only the no-conceivable-basis theory was properly submitted to the jury. Because nothing on the verdict form indicated which theory formed the basis for the jury’s decision, the question is whether we may presume that the jury found for the Loesels’ under the factually sufficient no-coneeivable-basis theory or whether we must vacate the verdict and remand for a new trial.

If this were a criminal case, we would follow the Supreme Court’s decision in Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), which held that “ ‘in the absence of anything in the record to show the contrary, the presumption of law is that’ ... [the] jurors convicted [the defendant] on the factually sufficient theory.” United States v. Henning, 286 F.3d 914, 921-22 (6th Cir.2002) (emphasis omitted) (quoting Griffin, 502 U.S. at 50, 112 S.Ct. 466). The Henning court reasoned that “[w]hen faced with alternative theories of liability, jurors can rely on their own intelligence and experience to save them from relying upon a factually inadequate theory.” Id. at 921.

Many circuits have extended the holding in Griffin to civil cases. See, e.g., i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 849-50 (Fed.Cir.2010) (applying the Griffin rule in the civil context); Walther v. Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir.1992) (same); Sandberg v. Va. Bankshares, Inc., 891 F.2d 1112, 1122 (4th Cir.1989) (same), rev’d on other grounds, 501 U.S. 1083, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991); McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989) (same). But our circuit has declined to apply Griffin in civil cases tried before a jury. See Virtual Maint, Inc. v. Prime Computer, Inc., 11 F.3d 660, 667 (6th Cir.1993).

*468In Virtual Maintenance, the plaintiff (VM) presented to the jury three alternative theories of liability to support its claim that “product bundling” by the defendant Prime Computer violated the Sherman Act. The jury returned a verdict in favor of VM. On appeal, however, this court determined that VM had failed to produce evidence sufficient to find Prime Computer liable on two of the three theories and, therefore, Prime Computer should have been granted judgment as a matter of law on those theories. But the court also concluded that evidence presented on the third theory was sufficient to support the jury’s verdict. Nonetheless, the court determined that it could not let the jury’s verdict stand. It ruled that, despite the existence of a viable theory of liability, “[b]ecause the general jury verdict in the first trial provides no indication of the jury’s reliance on [the factually sufficient] theory in support of the original verdict, we are obligated to reverse the verdict and remand for a new trial.” Id.

VM then petitioned for rehearing, specifically requesting that this court follow the presumption outlined in Griffin (which had been decided by the Supreme Court in the same year that Virtual Maintenance was heard) and allow the verdict to stand. But the court denied VM’s request, holding that “Griffin, a criminal case, does not alter the longstanding civil general verdict rule, a principle to which this circuit has consistently adhered.” Virtual Maintenance, 11 F.3d at 667 (citation omitted); but see Ellis v. Gallatin Steel Co., 390 F.3d 461, 472 (6th Cir.2004) (applying the Griffin rule in a civil case where the factfinder was the district court rather than a jury).

Because Virtual Maintenance has not been overturned by an en banc opinion of this court or by a Supreme Court decision, we are bound by it. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (noting that “[a] panel of this Court cannot overrule the decision of another panel ... unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision”). We therefore must vacate the judgment for the Loesels and remand this case for a new trial. Consequently, we need not reach the City’s alternative arguments that it is entitled to a new trial because of improper jury instructions and erroneous evidentiary rulings.

B. Damages

Although we also need not reach the issue of whether the district court erred in denying the City’s motion for a remittitur, we believe that the potential for reversible error on the issue of damages will be reduced by offering some guidance to the district court. The damages awarded by the jury, $3.6 million, strikes us as excessive, in large part because the verdict itself renders the zoning ordinance unconstitutional and unenforceable. Had the jury verdict been upheld, the Loesels would have retained their property unencumbered by the zoning ordinance and been awarded $3.6 million, which is 90% of the full purchase price from Wal-Mart. This outcome would have let the Loesels recover twice, an impermissible result. See Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 333, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980) (“It also goes without saying that the courts can and should preclude double recovery by an individual.”).

In the event that the case is tried again, the jury should be instructed that the proper damages award in this case is the amount that the Loesels would have received from Wal-Mart had the ordinance never been enacted minus the property’s value unencumbered by the zoning ordinance. Although the jury was instructed by the district court to “award [the Loesels] such a sum as you find by the preponderance of the evidence will fairly and *469justly compensate them for actual losses you find they have suffered as a direct result of the defendant’s conduct,” we believe that this instruction was overly vague. While deliberating, the jury sent a note to the district court asking: “Is there any possibility of transferring the land to the City/township if a monetary award of 4 million dollars is awarded to the Loesels?” This suggests that the jury struggled with how to award damages without giving the Loesels a windfall. That is why, if tried again by a jury, we recommend that the jury instructions on damages include a specific formula to aid the jury in calculating damages.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case for further proceedings consistent with this opinion.

Me. Justice Powell

delivered the opinion of the Court.

In 1971 respondent Metropolitan Housing Development Corporation (MHDC) applied to petitioner, the Village - of Arlington Heights, Ill., for the rezoning of a 15-acre parcel from single-family to multiple-family classification. Using federal financial assistance, MHDC planned to build 190 clustered townhouse units for low- and moderate-income tenants. The Village denied the rezoning request. MHDC, joined by other plaintiffs who are also respondents here, brought suit in the United States District Court for the Northern District of Illinois.1 They alleged that the denial was racially discriminatory and that it violated, inter alia, the Fourteenth Amendment and the Fair Housing Act of 1968, 82 Stat. 81, 42 U. S. C. § 3601 et seq. Following a bench trial, the District Court entered judgment for the Village, 373 F. Supp. 208 (1974), and respondents appealed. The Court of Appeals for the Seventh Circuit reversed, finding that the “ultimate effect” of the denial was racially discriminatory, and that the refusal to rezone therefore violated the Fourteenth Amendment. 517 F. 2d 409 (1975). We granted *255the Village’s petition for certiorari, 423 U. S. 1030 (1975), and now reverse.

Arlington Heights is a suburb of Chicago, located about 26 miles northwest of the downtown Loop area. Most of the land' in Arlington Heights is zoned for detached single-family homes, and this is in fact the prevailing land use. The Village experienced substantial growth during the 1960’s, but, like other communities in northwest Cook County, its population of racial minority groups remained quite low. According to the 1970 census, only 27 of the Village’s 64,000 residents were black.

The Clerics of St. Viator, a religious order (Order), own an 80-acre parcel just east of the center of Arlington Heights. Part of the site is occupied by the Viatorian high school, and part by the Order’s three-story novitiate building, which houses dormitories and a Montessori school. Much of the site, however, remains vacant. Since 1959, when the Village first adopted a zoning ordinance, all the land surrounding the Viatorian property has been zoned R-3, a single-family specification with relatively small minimum lot-size requirements. On three sides of the Viatorian land there are single-family homes just across a street; to the east the Viatorian property directly adjoins the backyards of other single-family homes.

The Order decided in 1970 to devote some of its land to low- and moderate-income housing. Investigation revealed that the most expeditious way to build such housing was to work through a nonprofit developer experienced in the use of federal housing subsidies under § 236 of the National Housing Act, 48 Stat. 1246, as added and amended, 12 U. S. C. § 1715z-l.2

*256MHDC is such a developer. It was organized in 1968 by several prominent Chicago citizens for the purpose of building low- and moderate-income housing, throughout the Chicago area. In 1970 MHDC was in the process of building one § 236 development near Arlington Heights and already had provided some federally assisted housing on a smaller scale in other parts of the Chicago area.

After some negotiation, MHDC and the Order entered into a 99-year lease and an accompanying agreement of sale covering a 15-acre site in the southeast corner of the Viatorian property. MHDC became the lessee immediately, but the sale agreement was contingent upon MHDC's securing zoning clearances from the Village and § 236 housing assistance from the Federal Government. If MHDC proved unsuccessful in securing either, both the lease and the contract of sale would lapse. The agreement established a bargain purchase price of $300,000, low enough to comply with federal limitations governing land-acquisition costs for § 236 housing.

MHDC engaged an architect and proceeded with the proj*257ect, to be known as Lincoln Green. The plans called for 20 two-story buildings with a total of 190 units, each unit having its own private entrance from the outside. One hundred of the units would have a single bedroom, thought likely to attract elderly citizens. The remainder would have two, three, or four bedrooms. A large portion of the site would remain open, with shrubs and trees to screen the homes abutting the property to the east.

The planned development did not conform to the Village's zoning ordinance and could not be built unless Arlington Heights rezoned the parcel to R-5, its multiple-family housing classification. Accordingly, MHDC filed with the Village Plan Commission a petition for rezoning, accompanied by supporting materials describing the development and specifying that it would be subsidized under § 236. The materials made clear that one requirement under § 236 is an affirmative marketing plan designed to assure that a subsidized development is racially integrated. MHDC also submitted studies demonstrating the need for housing of this type and analyzing the probable impact of the development. To prepare for the hearings before the Plan Commission and to assure compliance with the Village building code, fire regulations, and related requirements, MHDC consulted with the Village staff for preliminary review of the development. The parties have stipulated that every change recommended during such consultations was incorporated into the plans.

During the spring of 1971, the Plan Commission considered the proposal at a series of three public meetings, which drew large crowds. Although many of those attending were quite vocal and demonstrative in opposition to Lincoln Green, a number of individuals and representatives of community groups spoke in support of rezoning. Some of the comments, both from opponents and supporters, addressed what was referred to as the “social issue” — the desirability or undesirability of introducing at this location in Arlington Heights *258low- and moderate-income housing, housing that would probably be racially integrated.

Many of the opponents, however, focused on the zoning aspects of the petition, stressing two arguments. First, the area always had been zoned single-family, and the neighboring citizens had built or purchased there in reliance on that classification. Rezoning threatened to cause a measurable drop in property value for neighboring sites. Second, the Village’s apartment policy, adopted by the Village Board in 1962 and amended in 1970, called for R-5 zoning primarily to serve as a buffer between single-family development and land uses thought incompatible, such as commercial or manufacturing districts. Lincoln Green did not meet this requirement, as it adjoined no commercial or manufacturing district.

At the close of the third meeting, the Plan Commission adopted a motion to recommend to the Village’s Board of Trustees that it deny the request. The motion stated: “While the need for low and moderate income housing may exist in Arlington Heights or its environs, the Plan Commission would be derelict in recommending it at the proposed location.” Two members voted against the motion and submitted a minority report, stressing that in their view the change to accommodate Lincoln Green represented “good zoning.” The Village Board met on September 28, 1971, to consider MHDC’s request and the recommendation of the Plan Commission., After a public hearing, the Board denied the rezoning by a 6-1 vote.

The following June MHDC and three Negro individuals filed this lawsuit against the Village, seeking declaratory and injunctive relief.3 A second nonprofit corporation and an individual of Mexican-American descent intervened as plain*259tiffs. The trial resulted in a judgment for petitioners. Assuming that MHDC had standing to bring the suit,4 the District Court held that the petitioners were not motivated by racial discrimination or intent to discriminate against low-income groups when they denied rezoning, but rather by a desire “to protect property values and the integrity of the Village’s zoning plan.” 373 F. Supp., at 211. The District Court concluded also that the denial would not have a racially discriminatory effect.

A divided Court of Appeals reversed. It first approved the District Court’s finding that the defendants were motivated by a concern for the integrity of the zoning plan, rather than by racial discrimination. Deciding whether their refusal to rezone would have discriminatory effects was more complex. The court observed that the refusal would have a disproportionate impact on blacks. Based upon family income, blacks constituted 40% of those Chicago area residents who were eligible to become tenants of Lincoln Green, although they composed a far lower percentage of total area population. The court reasoned, however, that under our decision in James v. Valtierra, 402 U. S. 137 (1971), such a disparity in racial impact alone does not call for strict scrutiny of a municipality’s decision that prevents the construction of the low-cost housing.5

There was another level to the court’s analysis of allegedly discriminatory results. Invoking language from Kennedy Park Homes Assn. v. City of Lackawanna, 436 F. 2d 108, *260112 (CA2 1970), cert. denied, 401 U. S. 1010 (1971), the Court of Appeals ruled that the denial of rezoning must be examined in light of its “historical context and ultimate effect.” 6 517 F. 2d, at 413. Northwest Cook County was enjoying rapid growth in employment opportunities and population, but it continued to exhibit a high degree of residential segregation. The court held that Arlington Heights could not simply ignore this problem. Indeed, it found that the Village had been “exploiting” the situation by allowing itself to become a nearly all-white community. Id., at 414. The Village had no other current plans for building low- and moderate-income housing, and no other R-5 parcels in the Village were available to MHDC at an economically feasible price.

Against this background, the Court of Appeals ruled that the denial of the Lincoln Green proposal had racially discriminatory effects and could be tolerated only if it served compelling interests. Neither the buffer policy nor the desire to protect property values met this exacting standard. The court therefore concluded that the denial violated the Equal Protection Clause of the Fourteenth Amendment.

II

At the outset, petitioners challenge the respondents’ standing to bring the suit. It is not clear that this challenge was pressed in the Court of Appeals, but since our jurisdiction to decide the case is implicated, Jenkins v. McKeithen, 395 U. S. 411, 421 (1969) (plurality opinion), we shall consider it.

In Warth v. Seldin, 422 U. S. 490 (1975), a case similar in some respects to this one, we reviewed the constitutional limitations and prudential considerations that guide a court in determining a party’s standing, and we need not repeat that discussion here. The essence of the standing question, *261in its constitutional dimension, is “whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Id., at 498-499, quoting Baker v. Carr, 369 U. S. 186, 204 (1962). The plaintiff must show that he himself is injured by the challenged action of the defendant. The injury may be indirect, see United States v. SCRAP, 412 U. S. 669, 688 (1973), but the complaint must indicate that the injury is indeed fairly traceable to the defendant’s acts or omissions. Simon v. Eastern Ky. Welfare Rights Org., 426 U. S. 26, 41-42 (1976); O’Shea v. Littleton, 414 U. S. 488, 498 (1974); Linda R. S. v. Richard D., 410 U. S. 614, 617 (1973).

A

Here there can be little doubt that MHDC meets the constitutional standing requirements. The challenged action of the petitioners stands as an absolute barrier to constructing the housing MHDC had contracted to place on the Viatorian site. If MHDC secures the injunctive relief it seeks, that barrier will be removed. An injunction would not, of course, guarantee that Lincoln Green will be built. MHDC would still have to secure financing, qualify for federal subsidies,7 and carry through with construction. But all housing developments are subject to some extent to similar uncertainties. When a project is as detailed and specific as Lincoln Green, a court is not required to engage in undue speculation *262as a predicate for finding that the plaintiff has the requisite personal stake in the controversy. MHDC has shown an injury to itself that is “likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Org., supra, at 38.

Petitioners nonethless appear to argue that MHDC lacks standing because it has suffered no economic injury. MHDC, they point out, is not the owner of the property in question. Its contract of purchase is contingent upon securing rezoning.8 MHDC owes the owners nothing if rezoning is denied.

We cannot accept petitioners’ argument. In the first place, it is inaccurate to say that MHDC suffers no economic injury from a refusal to rezone, despite the contingency provisions in its contract. MHDC has expended thousands of dollars on the plans for Lincoln Green and on the studies submitted to the Village in support of the petition for rezoning. Unless rezoning is granted, many of these plans and studies will be worthless even if MHDC finds another site at an equally attractive price.

Petitioners’ argument also misconceives our standing requirements. It has long been clear that economic injury is not the only kind of injury that can support a plain*263tiff’s standing. United States v. SCRAP, supra, at 686-687; Sierra Club v. Morton, 405 U. S. 727, 734 (1972); Data Processing Service v. Camp, 397 U. S. 150, 154 (1970). MHDC is a nonprofit corporation. Its interest in building Lincoln Green stems not from a desire for economic gain, but rather from an interest in making suitable low-cost housing available in areas where such housing is scarce. This is not mere abstract concern about a problem of general interest. See Sierra Club v. Morton, supra, at 739. The specific project MHDC intends to build, whether or not it will generate profits, provides that “essential dimension of specificity” that informs judicial decisionmaking. Schlesinger v. Reservists to Stop the War, 418 U. S. 208, 221 (1974).

B

Clearly MHDC has met the constitutional requirements, and it therefore has standing to assert its own rights. Foremost among them is MHDC’s right to be free of arbitrary or irrational zoning actions. See Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Nectow v. City of Cambridge, 277 U. S. 183 (1928); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974). But the heart of this litigation has never been the claim that the Village’s decision fails the generous Euclid test, recently reaffirmed in Belle Terre. Instead it has been the claim that the Village’s refusal to rezone discriminates against racial minorities in violation of the Fourteenth Amendment. As a corporation, MHDC has no racial identity and cannot be the direct target of the petitioners’ alleged discrimination. In the ordinary case, a party is denied standing to assert the rights of third persons. Warth v. Seldin, 422 U. S., at 499. But we need not decide whether the circumstances of this case would justify departure from that prudential limitation and permit MHDC to assert the constitutional rights of its prospective minority tenants. See Barrows v. Jackson, 346 U. S. 249 (1953); cf. Sullivan v. *264 Little Hunting Park, 396 U. S. 229, 237 (1969); Buchanan v. Warley, 245 U. S. 60, 72-73 (1917). For we have at least one individual plaintiff who has demonstrated standing to assert these rights as his own.9

Respondent Ransom, a Negro, works at the Honeywell factory in Arlington Heights and lives approximately 20 miles away in Evanston in a 5-room house with his mother and his son. The complaint alleged that he seeks and would qualify for the housing MHDC wants to build in Arlington Heights. Ransom testified at trial that if Lincoln Green were built he would probably move there, since it is closer to his job.

The injury Ransom asserts is that his quest for housing nearer his employment has been thwarted by official action that is racially discriminatory. If a court grants the relief he seeks, there is at least a “substantial probability,” Warth v. Seldin, supra, at 504, that the Lincoln Green project will materialize, affording Ransom the housing opportunity he desires in Arlington Heights. His is not a generalized grievance. Instead, as we suggested in Warth, supra, at 507, 508 n. 18, it focuses on a particular project and is not dependent on speculation about the possible actions of third parties not before the court. See id., at 505; Simon v. Eastern Ky. Welfare Rights Org., 426 U. S., at 41-42. Unlike the individual plaintiffs in Warth, Ransom has adequately averred an “actionable causal relationship” between Arlington Heights’ zoning practices and his asserted injury. Warth v. Seldin, supra, at 507. We therefore proceed to the merits.

Ill

Our decision last Term in Washington v. Davis, 426 U. S. 229 (1976), made it clear that official action will not be held *265unconstitutional solely because it results in a racially disproportionate impact. “Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.” Id., at 242. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. Although some contrary indications may be drawn from some of our cases,10 the holding in Davis reaffirmed a principle well established in a variety of contexts. E. g., Keyes v. School Dist. No. 1, Denver, Colo., 413 U. S. 189, 208 (1973) (schools); Wright v. Rockefeller, 376 U. S. 52, 56-57 (1964) (election districting); Akins v. Texas, 325 U. S. 398, 403-404 (1945) (jury selection).

Davis does not require a plaintiff to prove that the challenged action rested solely on racially discriminatory purposes. Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one.11 In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory pur*266pose has been a motivating factor in the decision, this judicial deference is no longer justified.12

Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action- — whether it “bears more heavily on one race than another,” Washington v. Davis, supra, at 242 — may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick Wo v. Hopkins, 118 U. S. 356 (1886); Guinn v. United States, 238 U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268 (1939); Gomillion v. Lightfoot, 364 U. S. 339 (1960). The evidentiary inquiry is then relatively easy.13 But such cases are- rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative,14 and the Court must look to other evidence.15

*267The historical background of the decision is one evidentiarysource, particularly if it reveals a series of official actions taken for invidious purposes. See Lane v. Wilson, supra; Griffin v. School Board, 377 U. S. 218 (1964); Davis v. Schnell, 81 F. Supp. 872 (SD Ala.), aff’d per curiam, 336 U. S. 933 (1949); cf. Keyes v. School Dist. No. 1, Denver Colo., supra, at 207. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes. Reitman v. Mulkey, 387 U. S. 369, 373-376 (1967); Grosjean v. American Press Co., 297 U. S. 233, 250 (1936). For example, if the property involved here always had been zoned R-5 but suddenly was changed to R-3 when the town learned of MHDC’s plans to erect integrated housing,16 we would have a far different case. Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decision-maker strongly favor a decision contrary to the one reached.17

*268The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports. In some extraordinary instances the members might be called to the stand at trial to testify concerning the purpose of the official action, although even then such testimony frequently will be barred by privilege. See Tenney v. Brandhove, 341 U. S. 367 (1951); United States v. Nixon, 418 U. S. 683, 705 (1974); 8 J. Wigmore, Evidence § 2371 (McNaughton rev. ed. 1961).18

The foregoing summary identifies, without purporting to be exhaustive, subjects of proper inquiry in determining whether racially discriminatory intent existed.. With these in mind, we now address the case before us.

IV

This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Washington v. Davis, supra. The respondents proceeded on the erroneous theory that the Village’s refusal to rezone carried a racially discriminatory effect and was, without more, unconstitutional. But both courts below understood that at least part of their function was to examine the purpose underlying the decision. *269In making its findings on this issue, the District Court noted that some of the opponents of Lincoln Green who spoke at the various hearings might have been motivated by opposition to minority groups. The court held, however, that the evidence “does not warrant the conclusion that this motivated the defendants.” 373 F. Supp., at 211.

On appeal the Court of Appeals focused primarily on respondents’ claim that the Village’s buffer policy had not been consistently applied and was being invoked with a strictness here that could only demonstrate some other underlying motive. The court concluded that the buffer policy, though not always applied with perfect consistency, had on several occasions formed the basis for the Board’s decision to deny other rezoning proposals. “The evidence does not necessitate a finding that Arlington Heights administered this policy in a discriminatory manner.” 517. F. 2d, at 412. The Court of Appeals therefore approved the District Court’s findings concerning the Village’s purposes in denying rezoning to MHDC.

We also have reviewed the evidence. The impact of the Village’s decision does arguably bear more heavily on racial minorities. Minorities constitute 18% of the Chicago area population, and 40% of the income groups said to be eligible for Lincoln Green. But there is little about the sequence of events leading up to the decision that would spark suspicion. The area around the Viatorian property has been zoned R-3 since 1959, the year when Arlington Heights first adopted a zoning map. Single-family homes surround the 80-acre site, and the Village is undeniably committed to single-family homes as its dominant residential land use. The rezoning request progressed according to the usual procedures.19 The Plan Commission even scheduled two ad*270ditional hearings, at least in part to accommodate MHDC and permit it to supplement its presentation with answers to questions generated at the first hearing.

The statements by the Plan Commission and Village Board members, as reflected in the official minutes, focused almost exclusively on the zoning aspects of the MHDC petition, and the zoning factors on which they relied are not novel criteria in the Village’s rezoning decisions. There is no reason to doubt that there has been reliance by some neighboring property owners on the maintenance of single-family zoning in the vicinity. The Village originally adopted its buffer policy long before MHDC entered the picture and has applied the policy too consistently for us to infer discriminatory purpose from its application in this case. Finally, MHDC called one member of the Village Board to the stand at trial. Nothing in her testimony supports an inference of invidious purpose.20

In sum, the evidence does not warrant overturning the concurrent findings of both courts below. Respondents simply failed to carry their burden of proving that discriminatory purpose was a motivating factor in the Village’s decision.21 *271This conclusion ends the constitutional inquiry. The Court of Appeals’ further finding that the Village’s decision carried a discriminatory “ultimate effect” is without independent constitutional significance.

V

Respondents’ complaint also alleged that the refusal to rezone violated the Fair Housing Act of 1968, 42 U. S. C. § 3601 et seq. They continue to urge here that a zoning decision made by a public body may, and that petitioners’ action did, violate § 3604 or § 3617. The Court of Appeals, however, proceeding in a somewhat unorthodox fashion, did not decide the statutory question. We remand the case for further consideration of respondents’ statutory claims.

Reversed and remanded.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

concurring in part and dissenting in part.

I concur in Parts I-III of the Court’s opinion. However, I believe the proper result would be to remand this entire case to the Court of Appeals for further proceedings consistent with Washington v. Davis, 426 U. S. 229 (1976), and today’s opinion. The Court of Appeals is better situated *272than this Court both to reassess the significance of the evidence developed below in light of the standards we have set forth and to determine whether the interests of justice require further District Court proceedings directed toward those standards.

Me. Justice White,

dissenting.

■ The Court reverses the judgment of the Court of Appeals because it finds, after re-examination of the evidence supporting the concurrent findings below, that “ [respondents ... failed to carry their burden of proving that discriminatory purpose -was a motivating factor in the Village’s decision.’’ Ante, at 270. The Court reaches this result by interpreting our decision in Washington v. Davis, 426 U. S. 229 (1976), and applying it to this case, notwithstanding that the Court of Appeals rendered its decision in this case before Washington v. Davis was handed down, and thus did not have the benefit of our decision when it found a Fourteenth Amendment violation.

The Court gives no reason for its failure to follow our usual practice in this situation of vacating the judgment below and remanding in order to permit the lower court to reconsider its ruling in light of our intervening decision. The Court’s articulation of a legal standard nowhere mentioned in Davis indicates that it feels that the application of Davis to these facts calls for substantial analysis. If this is true, we would do better to allow the Court of Appeals to attempt that analysis in the first instance. Given that the Court deems it necessary to re-examine the evidence in the case in light of the legal standard it adopts, a remand is especially appropriate. As the cases relied upon by the Court indicate, the primary function of this Court is not to review the evidence supporting findings of the lower courts. See, e. g., Wright v. Rockefeller, 376 U. S. 52, 56-57 (1964); Akins v. Texas, 325 U. S. 398, 402 (1945). *273A further justification for remanding on the constitutional issue is that a remand is required in any event on respondents’ Fair Housing Act claim, 42 U. S. C. § 3601 et seq., not yet addressed by the Court of Appeals. While conceding that a remand is necessary because of the Court of Appeals’ “unorthodox” approach of deciding the constitutional issue without reaching the statutory claim, ante, at 271, the Court refuses to allow the Court of Appeals to reconsider its constitutional holding in light of Davis should it become necessary to reach that issue.

Even if I were convinced that it was proper for the Court to reverse the judgment below on the basis of an intervening decision of this Court and after a re-examination of concurrent findings of fact below, I believe it is wholly unnecessary for the Court to embark on a lengthy discussion of the standard for proving the racially discriminatory purpose required by Davis for a Fourteenth Amendment violation. The District Court found that the Village was motivated “by a legitimate desire to protect property values and the integrity of the Village’s zoning plan.” The Court of Appeals accepted this finding as not clearly erroneous, and the Court quite properly refuses to overturn it on review here. There is thus no need for this Court to list various “evidentiary sources” or “subjects of proper inquiry” in determining whether a racially discriminatory purpose existed.

I would vacate the judgment of the Court of Appeals and remand the case for consideration of the statutory issue and, if necessary, for consideration of the constitutional issue in light of Washington v. Davis.

Justice KENNEDYdelivered the opinion of the Court.

The underlying dispute in this case concerns where housing for low-income persons should be constructed in Dallas, Texas-that is, whether the housing should be built in the inner city or in the suburbs. This dispute comes to the Court on a disparate-impact theory of liability. In contrast to a disparate-treatment case, where a "plaintiff must establish that the defendant had a discriminatory intent or motive," a plaintiff bringing a disparate-impact claim challenges practices that have a "disproportionately adverse effect on minorities" and are otherwise unjustified by a legitimate rationale. Ricci v. DeStefano,557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)(internal quotation marks omitted). The question presented for the Court's determination is whether disparate-impact claims are cognizable under the Fair Housing Act (or FHA), 82 Stat. 81, as amended, 42 U.S.C. § 3601 et seq.

I

A

Before turning to the question presented, it is necessary to discuss a different federal statute that gives rise to this dispute. The Federal Government provides low-income housing tax credits that are distributed to developers through designated state agencies. 26 U.S.C. § 42. Congress has directed States to develop plans identifying selection criteria for distributing the credits. § 42(m)(1). Those plans must include certain criteria, such as public housing waiting lists, § 42(m)(1)(C), as well as certain preferences, including that low-income housing units "contribut[e] to a concerted community revitalization plan" and be built in census tracts populated predominantly by low-income residents. §§ 42(m)(1)(B)(ii)(III), 42(d)(5)(ii)(I). Federal law thus favors the distribution of these tax credits for the development of housing units in low-income areas.

In the State of Texas these federal credits are distributed by the Texas Department of Housing and Community Affairs (Department). Under Texas law, a developer's application for the tax credits is scored under a point system that gives priority to statutory criteria, such as the financial feasibility of the development project and the income level of tenants.

*2514Tex. Govt.Code Ann. §§ 2306.6710(a)-(b)(West 2008). The Texas Attorney General has interpreted state law to permit the consideration of additional criteria, such as whether the housing units will be built in a neighborhood with good schools. Those criteria cannot be awarded more points than statutorily mandated criteria. Tex. Op. Atty. Gen. No. GA-0208, pp. 2-6 (2004), 2004 WL 1434796, *4-*6.

The Inclusive Communities Project, Inc. (ICP), is a Texas-based nonprofit corporation that assists low-income families in obtaining affordable housing. In 2008, the ICP brought this suit against the Department and its officers in the United States District Court for the Northern District of Texas. As relevant here, it brought a disparate-impact claim under §§ 804(a) and 805(a) of the FHA. The ICP alleged the Department has caused continued segregated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods. The ICP contended that the Department must modify its selection criteria in order to encourage the construction of low-income housing in suburban communities.

The District Court concluded that the ICP had established a prima facie case of disparate impact. It relied on two pieces of statistical evidence. First, it found "from 1999-2008, [the Department] approved tax credits for 49.7% of proposed non-elderly units in 0% to 9.9% Caucasian areas, but only approved 37.4% of proposed non-elderly units in 90% to 100% Caucasian areas." 749 F.Supp.2d 486, 499 (N.D.Tex.2010)(footnote omitted). Second, it found "92.29% of [low-income housing tax credit] units in the city of Dallas were located in census tracts with less than 50% Caucasian residents." Ibid.

The District Court then placed the burden on the Department to rebut the ICP's prima facie showing of disparate impact. 860 F.Supp.2d 312, 322-323 (2012). After assuming the Department's proffered interests were legitimate, id.,at 326, the District Court held that a defendant-here the Department-must prove "that there are no other less discriminatory alternatives to advancing their proffered interests," ibid.Because, in its view, the Department "failed to meet [its] burden of proving that there are no less discriminatory alternatives," the District Court ruled for the ICP. Id.,at 331.

The District Court's remedial order required the addition of new selection criteria for the tax credits. For instance, it awarded points for units built in neighborhoods with good schools and disqualified sites that are located adjacent to or near hazardous conditions, such as high crime areas or landfills. See 2012 WL 3201401 (Aug. 7, 2012). The remedial order contained no explicit racial targets or quotas.

While the Department's appeal was pending, the Secretary of Housing and Urban Development (HUD) issued a regulation interpreting the FHA to encompass disparate-impact liability. See Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed.Reg. 11460 (2013). The regulation also established a burden-shifting framework for adjudicating disparate-impact claims. Under the regulation, a plaintiff first must make a prima facie showing of disparate impact. That is, the plaintiff "has the burden of proving that a challenged practice caused or predictably will cause a discriminatory effect." 24 CFR § 100.500(c)(1) (2014). If a statistical discrepancy is caused by factors other than the defendant's policy, a plaintiff cannot establish a prima facie case, and there is no liability. After a plaintiff does establish a prima facie showing *2515of disparate impact, the burden shifts to the defendant to "prov[e] that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests." § 100.500(c)(2). HUD has clarified that this step of the analysis "is analogous to the Title VII requirement that an employer's interest in an employment practice with a disparate impact be job related." 78 Fed.Reg. 11470. Once a defendant has satisfied its burden at step two, a plaintiff may "prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the challenged practice could be served by another practice that has a less discriminatory effect." § 100.500(c)(3).

The Court of Appeals for the Fifth Circuit held, consistent with its precedent, that disparate-impact claims are cognizable under the FHA. 747 F.3d 275, 280 (2014). On the merits, however, the Court of Appeals reversed and remanded. Relying on HUD's regulation, the Court of Appeals held that it was improper for the District Court to have placed the burden on the Department to prove there were no less discriminatory alternatives for allocating low-income housing tax credits. Id., at 282-283. In a concurring opinion, Judge Jones stated that on remand the District Court should reexamine whether the ICP had made out a prima facie case of disparate impact. She suggested the District Court incorrectly relied on bare statistical evidence without engaging in any analysis about causation. She further observed that, if the federal law providing for the distribution of low-income housing tax credits ties the Department's hands to such an extent that it lacks a meaningful choice, then there is no disparate-impact liability. See id.,at 283-284(specially concurring opinion).

The Department filed a petition for a writ of certiorari on the question whether disparate-impact claims are cognizable under the FHA. The question was one of first impression, see Huntington v. Huntington Branch, NAACP,488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988)(per curiam), and certiorari followed, 573 U.S. ----, 135 S.Ct. 46, 189 L.Ed.2d 896 (2014). It is now appropriate to provide a brief history of the FHA's enactment and its later amendment.

B

De jureresidential segregation by race was declared unconstitutional almost a century ago, Buchanan v. Warley,245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149 (1917), but its vestiges remain today, intertwined with the country's economic and social life. Some segregated housing patterns can be traced to conditions that arose in the mid-20th century. Rapid urbanization, concomitant with the rise of suburban developments accessible by car, led many white families to leave the inner cities. This often left minority families concentrated in the center of the Nation's cities. During this time, various practices were followed, sometimes with governmental support, to encourage and maintain the separation of the races: Racially restrictive covenants prevented the conveyance of property to minorities, see Shelley v. Kraemer,334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); steering by real-estate agents led potential buyers to consider homes in racially homogenous areas; and discriminatory lending practices, often referred to as redlining, precluded minority families from purchasing homes in affluent areas. See, e.g., M. Klarman, Unfinished Business: Racial Equality in American History 140-141 (2007); Brief for Housing Scholars as Amici Curiae22-23. By the 1960's, these policies, practices, and prejudices had created many predominantly black inner cities surrounded by mostly white suburbs.

*2516See K. Clark, Dark Ghetto: Dilemmas of Social Power 11, 21-26 (1965).

The mid-1960's was a period of considerable social unrest; and, in response, President Lyndon Johnson established the National Advisory Commission on Civil Disorders, commonly known as the Kerner Commission. Exec. Order No. 11365, 3 CFR 674 (1966-1970 Comp.). After extensive factfinding the Commission identified residential segregation and unequal housing and economic conditions in the inner cities as significant, underlying causes of the social unrest. See Report of the National Advisory Commission on Civil Disorders 91 (1968) (Kerner Commission Report). The Commission found that "[n]early two-thirds of all nonwhite families living in the central cities today live in neighborhoods marked by substandard housing and general urban blight." Id.,at 13. The Commission further found that both open and covert racial discrimination prevented black families from obtaining better housing and moving to integrated communities. Ibid.The Commission concluded that "[o]ur Nation is moving toward two societies, one black, one white-separate and unequal." Id.,at 1. To reverse "[t]his deepening racial division," ibid.,it recommended enactment of "a comprehensive and enforceable open-occupancy law making it an offense to discriminate in the sale or rental of any housing ... on the basis of race, creed, color, or national origin." Id.,at 263.

In April 1968, Dr. Martin Luther King, Jr., was assassinated in Memphis, Tennessee, and the Nation faced a new urgency to resolve the social unrest in the inner cities. Congress responded by adopting the Kerner Commission's recommendation and passing the Fair Housing Act. The statute addressed the denial of housing opportunities on the basis of "race, color, religion, or national origin." Civil Rights Act of 1968, § 804, 82 Stat. 83. Then, in 1988, Congress amended the FHA. Among other provisions, it created certain exemptions from liability and added "familial status" as a protected characteristic. See Fair Housing Amendments Act of 1988, 102 Stat. 1619.

II

The issue here is whether, under a proper interpretation of the FHA, housing decisions with a disparate impact are prohibited. Before turning to the FHA, however, it is necessary to consider two other antidiscrimination statutes that preceded it.

The first relevant statute is § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255. The Court addressed the concept of disparate impact under this statute in Griggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). There, the employer had a policy requiring its manual laborers to possess a high school diploma and to obtain satisfactory scores on two intelligence tests. The Court of Appeals held the employer had not adopted these job requirements for a racially discriminatory purpose, and the plaintiffs did not challenge that holding in this Court. Instead, the plaintiffs argued § 703(a)(2) covers the discriminatory effect of a practice as well as the motivation behind the practice. Section 703(a), as amended, provides as follows:

"It shall be an unlawful employer practice for an employer-

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees or applicants for employment *2517in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).

The Court did not quote or cite the full statute, but rather relied solely on § 703(a)(2). Griggs,401 U.S., at 426, n. 1, 91 S.Ct. 849.

In interpreting § 703(a)(2), the Court reasoned that disparate-impact liability furthered the purpose and design of the statute. The Court explained that, in § 703(a)(2), Congress "proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Id.,at 431, 91 S.Ct. 849. For that reason, as the Court noted, "Congress directed the thrust of [§ 703(a)(2) ] to the consequences of employment practices, not simply the motivation." Id.,at 432, 91 S.Ct. 849. In light of the statute's goal of achieving "equality of employment opportunities and remov[ing] barriers that have operated in the past" to favor some races over others, the Court held § 703(a)(2) of Title VII must be interpreted to allow disparate-impact claims. Id.,at 429-430, 91 S.Ct. 849.

The Court put important limits on its holding: namely, not all employment practices causing a disparate impact impose liability under § 703(a)(2). In this respect, the Court held that "business necessity" constitutes a defense to disparate-impact claims. Id.,at 431, 91 S.Ct. 849. This rule provides, for example, that in a disparate-impact case, § 703(a)(2) does not prohibit hiring criteria with a "manifest relationship" to job performance. Id.,at 432, 91 S.Ct. 849; see also Ricci,557 U.S., at 587-589, 129 S.Ct. 2658(emphasizing the importance of the business necessity defense to disparate-impact liability). On the facts before it, the Court in Griggsfound a violation of Title VII because the employer could not establish that high school diplomas and general intelligence tests were related to the job performance of its manual laborers. See 401 U.S., at 431-432, 91 S.Ct. 849.

The second relevant statute that bears on the proper interpretation of the FHA is the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602 et seq.,as amended. Section 4(a) of the ADEA provides:

"It shall be unlawful for an employer-

"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or

"(3) to reduce the wage rate of any employee in order to comply with this chapter." 29 U.S.C. § 623(a).

The Court first addressed whether this provision allows disparate-impact claims in Smith v. City of Jackson,544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). There, a group of older employees challenged their employer's decision to give proportionately greater raises to employees with less than five years of experience.

Explaining that Griggs"represented the better reading of [Title VII's] statutory text," 544 U.S., at 235, 125 S.Ct. 1536a plurality of the Court concluded that the same reasoning pertained to § 4(a)(2) of the ADEA. The Smithplurality emphasized that both § 703(a)(2) of Title VII and § 4(a)(2) of the ADEA contain language *2518"prohibit[ing] such actions that 'deprive any individual of employment opportunities or otherwise adversely affecthis status as an employee, because of such individual's' race or age." 544 U.S., at 235, 125 S.Ct. 1536. As the plurality observed, the text of these provisions "focuses on the effectsof the action on the employee rather than the motivation for the action of the employer" and therefore compels recognition of disparate-impact liability. Id.,at 236, 125 S.Ct. 1536. In a separate opinion, Justice SCALIA found the ADEA's text ambiguous and thus deferred under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to an Equal Employment Opportunity Commission regulation interpreting the ADEA to impose disparate-impact liability, see 544 U.S., at 243-247, 125 S.Ct. 1536(opinion concurring in part and concurring in judgment).

Together, Griggsholds and the plurality in Smithinstructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification-or, in the case of a governmental entity, an analogous public interest-a court must determine that a plaintiff has shown that there is "an available alternative ... practice that has less disparate impact and serves the [entity's] legitimate needs." Ricci, supra,at 578, 129 S.Ct. 2658. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.

Turning to the FHA, the ICP relies on two provisions. Section 804(a) provides that it shall be unlawful:

"To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a).

Here, the phrase "otherwise make unavailable" is of central importance to the analysis that follows.

Section 805(a), in turn, provides:

"It shall be unlawful for any person or other entity whose business includes engaging in real estate-related transactions to discriminate against any person in making available such a transaction, or in the terms or conditions of such a transaction, because of race, color, religion, sex, handicap, familial status, or national origin." § 3605(a).

Applied here, the logic of Griggsand Smithprovides strong support for the conclusion that the FHA encompasses disparate-impact claims. Congress' use of the phrase "otherwise make unavailable" refers to the consequences of an action rather than the actor's intent. See United States v. Giles,300 U.S. 41, 48, 57 S.Ct. 340, 81 L.Ed. 493 (1937)(explaining that the "word 'make' has many meanings, among them '[t]o cause to exist, appear or occur' " (quoting Webster's New International Dictionary 1485 (2d ed. 1934))). This results-oriented language counsels in favor of recognizing disparate-impact liability. See Smith, supra,at 236, 125 S.Ct. 1536. The Court has construed statutory language similar to § 805(a) to include disparate-impact liability. See, e.g.,Board of Ed. of City School Dist. of New York v.

*2519Harris,444 U.S. 130, 140-141, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979)(holding the term "discriminat[e]" encompassed disparate-impact liability in the context of a statute's text, history, purpose, and structure).

A comparison to the antidiscrimination statutes examined in Griggsand Smithis useful. Title VII's and the ADEA's "otherwise adversely affect" language is equivalent in function and purpose to the FHA's "otherwise make unavailable" language. In these three statutes the operative text looks to results. The relevant statutory phrases, moreover, play an identical role in the structure common to all three statutes: Located at the end of lengthy sentences that begin with prohibitions on disparate treatment, they serve as catchall phrases looking to consequences, not intent. And all three statutes use the word "otherwise" to introduce the results-oriented phrase. "Otherwise" means "in a different way or manner," thus signaling a shift in emphasis from an actor's intent to the consequences of his actions. Webster's Third New International Dictionary 1598 (1971). This similarity in text and structure is all the more compelling given that Congress passed the FHA in 1968-only four years after passing Title VII and only four months after enacting the ADEA.

It is true that Congress did not reiterate Title VII's exact language in the FHA, but that is because to do so would have made the relevant sentence awkward and unclear. A provision making it unlawful to "refuse to sell [,] ... or otherwise [adversely affect], a dwelling to any person" because of a protected trait would be grammatically obtuse, difficult to interpret, and far more expansive in scope than Congress likely intended. Congress thus chose words that serve the same purpose and bear the same basic meaning but are consistent with the structure and objectives of the FHA.

Emphasizing that the FHA uses the phrase "because of race," the Department argues this language forecloses disparate-impact liability since "[a]n action is not taken 'because of race' unless race is a reasonfor the action." Brief for Petitioners 26. Griggsand Smith,however, dispose of this argument. Both Title VII and the ADEA contain identical "because of" language, see 42 U.S.C. § 2000e-2(a)(2); 29 U.S.C. § 623(a)(2), and the Court nonetheless held those statutes impose disparate-impact liability.

In addition, it is of crucial importance that the existence of disparate-impact liability is supported by amendments to the FHA that Congress enacted in 1988. By that time, all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims. See Huntington Branch, NAACP v. Huntington,844 F.2d 926, 935-936 (C.A.2 1988); Resident Advisory Bd. v. Rizzo,564 F.2d 126, 146 (C.A.3 1977); Smith v. Clarkton,682 F.2d 1055, 1065 (C.A.4 1982); Hanson v. Veterans Administration,800 F.2d 1381, 1386 (C.A.5 1986); Arthur v. Toledo,782 F.2d 565, 574-575 (C.A.6 1986); Metropolitan Housing Development Corp. v. Arlington Heights,558 F.2d 1283, 1290 (C.A.7 1977); United States v. Black Jack,508 F.2d 1179, 1184-1185 (C.A.8 1974); Halet v. Wend Investment Co.,672 F.2d 1305, 1311 (C.A.9 1982); United States v. Marengo Cty. Comm'n,731 F.2d 1546, 1559, n. 20 (C.A.11 1984).

When it amended the FHA, Congress was aware of this unanimous precedent. And with that understanding, it made a considered judgment to retain the relevant statutory text. See H.R.Rep. No. 100-711, p. 21, n. 52(1988), 1988 U.S.C.C.A.N. 2173 (H.R. Rep.) (discussing suits premised on *2520disparate-impact claims and related judicial precedent); 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy) (noting unanimity of Federal Courts of Appeals concerning disparate impact); Fair Housing Amendments Act of 1987: Hearings on S. 558 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 100th Cong., 1st Sess., 529 (1987) (testimony of Professor Robert Schwemm) (describing consensus judicial view that the FHA imposed disparate-impact liability). Indeed, Congress rejected a proposed amendment that would have eliminated disparate-impact liability for certain zoning decisions. See H.R. Rep., at 89-93.

Against this background understanding in the legal and regulatory system, Congress' decision in 1988 to amend the FHA while still adhering to the operative language in §§ 804(a) and 805(a) is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals finding disparate-impact liability. "If a word or phrase has been ... given a uniform interpretation by inferior courts ..., a later version of that act perpetuating the wording is presumed to carry forward that interpretation." A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012); see also Forest Grove School Dist. v. T.A.,557 U.S. 230, 244, n. 11, 129 S.Ct. 2484, 174 L.Ed.2d 168 (2009)("When Congress amended [the Act] without altering the text of [the relevant provision], it implicitly adopted [this Court's] construction of the statute"); Manhattan Properties, Inc. v. Irving Trust Co.,291 U.S. 320, 336, 54 S.Ct. 385, 78 L.Ed. 824 (1934)(explaining, where the Courts of Appeals had reached a consensus interpretation of the Bankruptcy Act and Congress had amended the Act without changing the relevant provision, "[t]his is persuasive that the construction adopted by the [lower federal] courts has been acceptable to the legislative arm of the government").

Further and convincing confirmation of Congress' understanding that disparate-impact liability exists under the FHA is revealed by the substance of the 1988 amendments. The amendments included three exemptions from liability that assume the existence of disparate-impact claims. The most logical conclusion is that the three amendments were deemed necessary because Congress presupposed disparate impact under the FHA as it had been enacted in 1968.

The relevant 1988 amendments were as follows. First, Congress added a clarifying provision: "Nothing in [the FHA] prohibits a person engaged in the business of furnishing appraisals of real property to take into consideration factors other than race, color, religion, national origin, sex, handicap, or familial status." 42 U.S.C. § 3605(c). Second, Congress provided: "Nothing in [the FHA] prohibits conduct against a person because such person has been convicted by any court of competent jurisdiction of the illegal manufacture or distribution of a controlled substance." § 3607(b)(4). And finally, Congress specified: "Nothing in [the FHA] limits the applicability of any reasonable ... restrictions regarding the maximum number of occupants permitted to occupy a dwelling." § 3607(b)(1).

The exemptions embodied in these amendments would be superfluous if Congress had assumed that disparate-impact liability did not exist under the FHA. See Gustafson v. Alloyd Co.,513 U.S. 561, 574, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)("[T]he Court will avoid a reading which renders some words altogether redundant"). Indeed, none of these amendments would make sense if the FHA encompassed only disparate-treatment *2521claims. If that were the sole ground for liability, the amendments merely restate black-letter law. If an actor makes a decision based on reasons other than a protected category, there is no disparate-treatment liability. See, e.g., Texas Dept. of Community Affairs v. Burdine,450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). But the amendments do constrain disparate-impact liability. For instance, certain criminal convictions are correlated with sex and race. See, e.g., Kimbrough v. United States,552 U.S. 85, 98, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)(discussing the racial disparity in convictions for crack cocaine offenses). By adding an exemption from liability for exclusionary practices aimed at individuals with drug convictions, Congress ensured disparate-impact liability would not lie if a landlord excluded tenants with such convictions. The same is true of the provision allowing for reasonable restrictions on occupancy. And the exemption from liability for real-estate appraisers is in the same section as § 805(a)'s prohibition of discriminatory practices in real-estate transactions, thus indicating Congress' recognition that disparate-impact liability arose under § 805(a). In short, the 1988 amendments signal that Congress ratified disparate-impact liability.

A comparison to Smith's discussion of the ADEA further demonstrates why the Department's interpretation would render the 1988 amendments superfluous. Under the ADEA's reasonable-factor-other-than-age (RFOA) provision, an employer is permitted to take an otherwise prohibited action where "the differentiation is based on reasonable factors other than age." 29 U.S.C. § 623(f)(1). In other words, if an employer makes a decision based on a reasonable factor other than age, it cannot be said to have made a decision on the basis of an employee's age. According to the Smithplurality, the RFOA provision "plays its principal role" "in cases involving disparate-impact claims" "by precluding liability if the adverse impact was attributable to a nonage factor that was 'reasonable.' " 544 U.S., at 239, 125 S.Ct. 1536. The plurality thus reasoned that the RFOA provision would be "simply unnecessary to avoid liability under the ADEA" if liability were limited to disparate-treatment claims. Id.,at 238, 125 S.Ct. 1536.

A similar logic applies here. If a real-estate appraiser took into account a neighborhood's schools, one could not say the appraiser acted because of race. And by embedding 42 U.S.C. § 3605(c)'s exemption in the statutory text, Congress ensured that disparate-impact liability would not be allowed either. Indeed, the inference of disparate-impact liability is even stronger here than it was in Smith. As originally enacted, the ADEA included the RFOA provision, see § 4(f)(1), 81 Stat. 603, whereas here Congress added the relevant exemptions in the 1988 amendments against the backdrop of the uniform view of the Courts of Appeals that the FHA imposed disparate-impact liability.

Recognition of disparate-impact claims is consistent with the FHA's central purpose. See Smith, supra,at 235, 125 S.Ct. 1536(plurality opinion); Griggs,401 U.S., at 432, 91 S.Ct. 849. The FHA, like Title VII and the ADEA, was enacted to eradicate discriminatory practices within a sector of our Nation's economy. See 42 U.S.C. § 3601("It is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States"); H.R. Rep., at 15 (explaining the FHA "provides a clear national policy against discrimination in housing").

These unlawful practices include zoning laws and other housing restrictions *2522that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification. Suits targeting such practices reside at the heartland of disparate-impact liability. See, e.g., Huntington,488 U.S., at 16-18, 109 S.Ct. 276(invalidating zoning law preventing construction of multifamily rental units); Black Jack,508 F.2d, at 1182-1188(invalidating ordinance prohibiting construction of new multifamily dwellings); Greater New Orleans Fair Housing Action Center v. St. Bernard Parish,641 F.Supp.2d 563, 569, 577-578 (E.D.La.2009)(invalidating post-Hurricane Katrina ordinance restricting the rental of housing units to only " 'blood relative[s]' " in an area of the city that was 88.3% white and 7.6% black); see also Tr. of Oral Arg. 52-53 (discussing these cases). The availability of disparate-impact liability, furthermore, has allowed private developers to vindicate the FHA's objectives and to protect their property rights by stopping municipalities from enforcing arbitrary and, in practice, discriminatory ordinances barring the construction of certain types of housing units. See, e.g.,Huntington, supra,at 18, 109 S.Ct. 276. Recognition of disparate-impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

But disparate-impact liability has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the "removal of artificial, arbitrary, and unnecessary barriers," not the displacement of valid governmental policies. Griggs, supra,at 431, 91 S.Ct. 849. The FHA is not an instrument to force housing authorities to reorder their priorities. Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory effects or perpetuating segregation.

Unlike the heartland of disparate-impact suits targeting artificial barriers to housing, the underlying dispute in this case involves a novel theory of liability. See Seicshnaydre, Is Disparate Impact Having Any Impact? An Appellate Analysis of Forty Years of Disparate Impact Claims Under the Fair Housing Act, 63 Am. U. L. Rev. 357, 360-363 (2013)(noting the rarity of this type of claim). This case, on remand, may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low-income housing.

An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies. This step of the analysis is analogous to the business necessity standard under Title VII and provides a defense against disparate-impact liability. See 78 Fed.Reg. 11470(explaining that HUD did not use the phrase "business necessity" because that "phrase may not be easily understood to cover the full scope of practices covered by the Fair Housing Act, which applies to individuals, businesses, nonprofit organizations, and public entities"). As the Court explained in Ricci,an entity "could be liable for disparate-impact discrimination only if the [challenged practices] were not job related and consistent with business necessity."

*2523557 U.S., at 587, 129 S.Ct. 2658. Just as an employer may maintain a workplace requirement that causes a disparate impact if that requirement is a "reasonable measure[ment] of job performance," Griggs, supra,at 436, 91 S.Ct. 849so too must housing authorities and private developers be allowed to maintain a policy if they can prove it is necessary to achieve a valid interest. To be sure, the Title VII framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes.

It would be paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing in our Nation's cities merely because some other priority might seem preferable. Entrepreneurs must be given latitude to consider market factors. Zoning officials, moreover, must often make decisions based on a mix of factors, both objective (such as cost and traffic patterns) and, at least to some extent, subjective (such as preserving historic architecture). These factors contribute to a community's quality of life and are legitimate concerns for housing authorities. The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities. As HUD itself recognized in its recent rulemaking, disparate-impact liability "does not mandate that affordable housing be located in neighborhoods with any particular characteristic."78 Fed.Reg. 11476.

In a similar vein, a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant's policy or policies causing that disparity. A robust causality requirement ensures that "[r]acial imbalance ... does not, without more, establish a prima facie case of disparate impact" and thus protects defendants from being held liable for racial disparities they did not create. Wards Cove Packing Co. v. Atonio,490 U.S. 642, 653, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(k). Without adequate safeguards at the prima facie stage, disparate-impact liability might cause race to be used and considered in a pervasive way and "would almost inexorably lead" governmental or private entities to use "numerical quotas," and serious constitutional questions then could arise. 490 U.S., at 653, 109 S.Ct. 2115.

The litigation at issue here provides an example. From the standpoint of determining advantage or disadvantage to racial minorities, it seems difficult to say as a general matter that a decision to build low-income housing in a blighted inner-city neighborhood instead of a suburb is discriminatory, or vice versa. If those sorts of judgments are subject to challenge without adequate safeguards, then there is a danger that potential defendants may adopt racial quotas-a circumstance that itself raises serious constitutional concerns.

Courts must therefore examine with care whether a plaintiff has made out a prima facie case of disparate impact and prompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact. For instance, a plaintiff challenging the decision of a private developer to construct a new building in one location rather than another will not easily be able to show this is a policy causing a disparate impact because such a one-time decision may not be a policy at all. It may also be difficult to establish causation because *2524of the multiple factors that go into investment decisions about where to construct or renovate housing units. And as Judge Jones observed below, if the ICP cannot show a causal connection between the Department's policy and a disparate impact-for instance, because federal law substantially limits the Department's discretion-that should result in dismissal of this case. 747 F.3d, at 283-284(specially concurring opinion).

The FHA imposes a command with respect to disparate-impact liability. Here, that command goes to a state entity. In other cases, the command will go to a private person or entity. Governmental or private policies are not contrary to the disparate-impact requirement unless they are "artificial, arbitrary, and unnecessary barriers." Griggs,401 U.S., at 431, 91 S.Ct. 849. Difficult questions might arise if disparate-impact liability under the FHA caused race to be used and considered in a pervasive and explicit manner to justify governmental or private actions that, in fact, tend to perpetuate race-based considerations rather than move beyond them. Courts should avoid interpreting disparate-impact liability to be so expansive as to inject racial considerations into every housing decision.

The limitations on disparate-impact liability discussed here are also necessary to protect potential defendants against abusive disparate-impact claims. If the specter of disparate-impact litigation causes private developers to no longer construct or renovate housing units for low-income individuals, then the FHA would have undermined its own purpose as well as the free-market system. And as to governmental entities, they must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes. The Department's amici,in addition to the well-stated principal dissenting opinion in this case, see post,at 2532 - 2533, 2548 - 2549 (opinion of ALITO, J.), call attention to the decision by the Court of Appeals for the Eighth Circuit in Gallagher v. Magner,619 F.3d 823 (2010). Although the Court is reluctant to approve or disapprove a case that is not pending, it should be noted that Magnerwas decided without the cautionary standards announced in this opinion and, in all events, the case was settled by the parties before an ultimate determination of disparate-impact liability.

Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely "remov[ing] ... artificial, arbitrary, and unnecessary barriers." Griggs,401 U.S., at 431, 91 S.Ct. 849. And that, in turn, would set our Nation back in its quest to reduce the salience of race in our social and economic system.

It must be noted further that, even when courts do find liability under a disparate-impact theory, their remedial orders must be consistent with the Constitution. Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that "arbitrar [ily] ... operate[s] invidiously to discriminate on the basis of rac[e]." Ibid.If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means. See Richmond v. J.A. Croson Co.,488 U.S. 469, 510, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989)(plurality opinion) ("[T]he city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races"). Remedial orders that impose racial targets or quotas might raise more difficult constitutional questions.

*2525While the automatic or pervasive injection of race into public and private transactions covered by the FHA has special dangers, it is also true that race may be considered in certain circumstances and in a proper fashion. Cf. Parents Involved in Community Schools v. Seattle School Dist. No. 1,551 U.S. 701, 789, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007)(KENNEDY, J., concurring in part and concurring in judgment) ("School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; [and] drawing attendance zones with general recognition of the demographics of neighborhoods"). Just as this Court has not "question[ed] an employer's affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the [promotion] process," Ricci,557 U.S., at 585, 129 S.Ct. 2658it likewise does not impugn housing authorities' race-neutral efforts to encourage revitalization of communities that have long suffered the harsh consequences of segregated housing patterns. When setting their larger goals, local housing authorities may choose to foster diversity and combat racial isolation with race-neutral tools, and mere awareness of race in attempting to solve the problems facing inner cities does not doom that endeavor at the outset.

The Court holds that disparate-impact claims are cognizable under the Fair Housing Act upon considering its results-oriented language, the Court's interpretation of similar language in Title VII and the ADEA, Congress' ratification of disparate-impact claims in 1988 against the backdrop of the unanimous view of nine Courts of Appeals, and the statutory purpose.

III

In light of the longstanding judicial interpretation of the FHA to encompass disparate-impact claims and congressional reaffirmation of that result, residents and policymakers have come to rely on the availability of disparate-impact claims. See Brief for Massachusetts et al. as Amici Curiae2 ("Without disparate impact claims, States and others will be left with fewer crucial tools to combat the kinds of systemic discrimination that the FHA was intended to address"). Indeed, many of our Nation's largest cities-entities that are potential defendants in disparate-impact suits-have submitted an amicusbrief in this case supporting disparate-impact liability under the FHA. See Brief for City of San Francisco et al. as Amici Curiae3-6. The existence of disparate-impact liability in the substantial majority of the Courts of Appeals for the last several decades "has not given rise to ... dire consequences." Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,565 U.S. ----, ----, 132 S.Ct. 694, 710, 181 L.Ed.2d 650 (2012).

Much progress remains to be made in our Nation's continuing struggle against racial isolation. In striving to achieve our "historic commitment to creating an integrated society," Parents Involved, supra,at 797, 127 S.Ct. 2738(KENNEDY, J., concurring in part and concurring in judgment), we must remain wary of policies that reduce homeowners to nothing more than their race. But since the passage of the Fair Housing Act in 1968 and against the backdrop of disparate-impact liability in nearly every jurisdiction, many cities have become more diverse. The FHA must play an important part in avoiding the Kerner Commission's grim prophecy that "[o]ur Nation is moving toward two societies, one black, one white-separate and unequal." Kerner Commission Report 1. The Court acknowledges the Fair *2526Housing Act's continuing role in moving the Nation toward a more integrated society.

The judgment of the Court of Appeals for the Fifth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice THOMAS, dissenting.

I join Justice ALITO's dissent in full. I write separately to point out that the foundation on which the Court builds its latest disparate-impact regime-Griggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)-is made of sand. That decision, which concluded that Title VII of the Civil Rights Act of 1964 authorizes plaintiffs to bring disparate-impact claims, id.,at 429-431, 91 S.Ct. 849represents the triumph of an agency's preferences over Congress' enactment and of assumption over fact. Whatever respect Griggsmerits as a matter of stare decisis,I would not amplify its error by importing its disparate-impact scheme into yet another statute.

I

A

We should drop the pretense that Griggs' interpretation of Title VII was legitimate. "The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact." Ricci v. DeStefano,557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009). It did not include an implicit one either. Instead, Title VII's operative provision, 42 U.S.C. § 2000e-2(a) (1964 ed.), addressed only employer decisions motivated by a protected characteristic. That provision made it "an unlawful employment practice for an employer-

"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because ofsuch individual's race, color, religion, sex, or national origin; or

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." § 703, 78 Stat. 255 (emphasis added).1

Each paragraph in § 2000e-2(a)is limited to actions taken "because of" a protected trait, and "the ordinary meaning of 'because of' is 'by reason of' or 'on account of,' " University of Tex. Southwestern Medical Center v. Nassar,570 U.S. ----, ----, 133 S.Ct. 2517, 2527, 186 L.Ed.2d 503 (2013)(some internal quotation marks omitted). Section 2000e-2(a)thus applies only when a protected characteristic "was the 'reason' that the employer decided to act." Id.,at ----, 133 S.Ct., at 2527(some internal quotation marks omitted).2In *2527other words, "to take action against an individual because of" a protected trait "plainly requires discriminatory intent." See Smith v. City of Jackson,544 U.S. 228, 249, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005)(O'Connor, J., joined by KENNEDY and THOMAS, JJ., concurring in judgment) (internal quotation marks omitted); accord, e.g., Gross v. FBL Financial Services, Inc.,557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

No one disputes that understanding of § 2000e-2(a)(1). We have repeatedly explained that a plaintiff bringing an action under this provision "must establish 'that the defendant had a discriminatory intent or motive' for taking a job-related action." Ricci, supra,at 577, 129 S.Ct. 2658(quoting Watson v. Fort Worth Bank & Trust,487 U.S. 977, 986, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988)). The only dispute is whether the same language-"because of"-means something different in § 2000e-2(a)(2)than it does in § 2000e-2(a)(1).

The answer to that question should be obvious. We ordinarily presume that "identical words used in different parts of the same act are intended to have the same meaning," Desert Palace, Inc. v. Costa,539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)(internal quotation marks omitted), and § 2000e-2(a)(2)contains nothing to warrant a departure from that presumption. That paragraph "uses the phrase 'because of ... [a protected characteristic]' in precisely the same manner as does the preceding paragraph-to make plain that an employer is liable only if its adverse action against an individual is motivated by the individual's [protected characteristic]." Smith, supra,at 249, 125 S.Ct. 1536(opinion of O'Connor, J.) (interpreting nearly identical provision of the Age Discrimination in Employment Act of 1967 (ADEA)).

The only difference between § 2000e-2(a)(1)and § 2000e-2(a)(2)is the type of employment decisions they address. See Smith, supra,at 249, 125 S.Ct. 1536(opinion of O'Connor, J.).Section 2000e-2(a)(1)addresses hiring, firing, and setting the terms of employment, whereas § 2000e-2(a)(2)generally addresses limiting, segregating, or classifying employees. But no decision is an unlawful employment practice under these paragraphs unless it occurs "because ofsuch individual's race, color, religion, sex, or national origin." §§ 2000e-2(a)(1), (2)(emphasis added).

Contrary to the majority's assumption, see ante,at 2517 - 2520, the fact that § 2000e-2(a)(2)uses the phrase "otherwise adversely affect" in defining the employment decisions targeted by that paragraph does not eliminate its mandate that the prohibited decision be made "because of" a protected characteristic. Section 2000e-2(a)(2)does not make unlawful all employment decisions that "limit, segregate, or classify ... employees ... in any way which would ... otherwise adversely affect [an individual's] status as an employee," but those that "otherwise adversely affect [an individual's] status as an employee, because of such individual's race, color, religion, sex, or national origin." (Emphasis added); accord, 78 Stat. 255. Reading § 2000e-2(a)(2)to sanction employers solely on the basis of the effects of their decisions would delete an entire clause of this provision, a result we generally try to avoid. Under any fair reading of the text, there can be no doubt that the *2528Title VII enacted by Congress did not permit disparate-impact claims.3

B

The author of disparate-impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission (EEOC). EEOC's "own official history of these early years records with unusual candor the commission's fundamental disagreement with its founding charter, especially Title VII's literal requirement that the discrimination be intentional." H. Graham, The Civil Rights Era: Origins and Development of National Policy 1960-1972, p. 248 (1990). The Commissioners and their legal staff thought that "discrimination" had become "less often an individual act of disparate treatment flowing from an evil state of mind" and "more institutionalized." Jackson, EEOC vs. Discrimination, Inc., 75 The Crisis 16 (1968). They consequently decided they should target employment practices "which prove to have a demonstrable racial effect without a clear and convincing business motive." Id.,at 16-17 (emphasis deleted). EEOC's "legal staff was aware from the beginning that a normal, traditional, and literal interpretation of Title VII could blunt their efforts" to penalize employers for practices that had a disparate impact, yet chose "to defy Title VII's restrictions and attempt to build a body of case law that would justify [their] focus on effects and [their] disregard of intent." Graham, supra,at 248, 250.

The lack of legal authority for their agenda apparently did not trouble them much. For example, Alfred Blumrosen, one of the principal creators of disparate-impact liability at EEOC, rejected what he described as a "defeatist view of Title VII" that saw the statute as a "compromise" with a limited scope. A. Blumrosen, Black Employment and the Law 57-58 (1971). Blumrosen "felt that most of the problems confronting the EEOC could be solved by creative interpretation of Title VII which would be upheld by the courts, partly out of deference to the administrators." Id.,at 59.

EEOC's guidelines from those years are a case study in Blumrosen's "creative interpretation." Although EEOC lacked substantive rulemaking authority, see Faragher v. Boca Raton,524 U.S. 775, 811, n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)(THOMAS, J., dissenting), it repeatedly issued guidelines on the subject of disparate impact. In 1966, for example, EEOC issued guidelines suggesting that the use of employment tests in hiring decisions could violate Title VII based on disparate impact, notwithstanding the statute's express statement that "it shall not be an unlawful employment practice ... to give and to act upon the results of any professionally developed ability test provided that such test ... is not designed, intended, or usedto discriminate because of race, color, religion, sex, or national origin," § 2000e-2(h)(emphasis added). See EEOC, Guidelines on Employment Testing Procedures 2-4 (Aug. 24, 1966). EEOC followed this up with a 1970 guideline that was even more explicit, declaring that, unless certain criteria were met, "[t]he use of any test which adversely affects hiring, promotion, transfer or any other employment *2529or membership opportunity of classes protected by title VII constitutes discrimination." 35 Fed.Reg. 12334 (1970).

EEOC was initially hesitant to take its approach to this Court, but the Griggsplaintiffs forced its hand. After they lost on their disparate-impact argument in the Court of Appeals, EEOC's deputy general counsel urged the plaintiffs not to seek review because he believed " 'that the record in the case present[ed] a most unappealing situation for finding tests unlawful,' " even though he found the lower court's adherence to an intent requirement to be " 'tragic.' " Graham, supra,at 385. The plaintiffs ignored his advice. Perhaps realizing that a ruling on its disparate-impact theory was inevitable, EEOC filed an amicusbrief in this Court seeking deference for its position.4

EEOC's strategy paid off. The Court embraced EEOC's theory of disparate impact, concluding that the agency's position was "entitled to great deference." See Griggs,401 U.S., at 433-434, 91 S.Ct. 849. With only a brief nod to the text of § 2000e-2(a)(2)in a footnote, id.,at 426, n. 1, 91 S.Ct. 849the Court tied this novel theory of discrimination to "the statute's perceived purpose" and EEOC's view of the best way of effectuating it, Smith,544 U.S., at 262, 125 S.Ct. 1536(opinion of O'Connor, J.); see id.,at 235, 125 S.Ct. 1536(plurality opinion). But statutory provisions-not purposes-go through the process of bicameralism and presentment mandated by our Constitution. We should not replace the former with the latter, see Wyeth v. Levine,555 U.S. 555, 586, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009)(THOMAS, J., concurring in judgment), nor should we transfer our responsibility for interpreting those provisions to administrative agencies, let alone ones lacking substantive rulemaking authority, see Perez v. Mortgage Bankers Assn.,575 U.S. ----, ---- - ----, 135 S.Ct. 1199, 1216-1220, 191 L.Ed.2d 186 (2015)(THOMAS, J., concurring in judgment).

II

Griggs' disparate-impact doctrine defies not only the statutory text, but reality itself. In their quest to eradicate what they view as institutionalized discrimination, disparate-impact proponents doggedly assume that a given racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside of it. See T. Sowell, Intellectuals and Race 132 (2013) (Sowell). That might be true, or it might not. Standing alone, the fact that a practice has a disparate impact is not conclusive evidence, as the GriggsCourt appeared to *2530believe, that a practice is "discriminatory," 401 U.S., at 431, 91 S.Ct. 849. "Although presently observed racial imbalance mightresult from past [discrimination], racial imbalance can also result from any number of innocent private decisions." Parents Involved in Community Schools v. Seattle School Dist. No. 1,551 U.S. 701, 750, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007)(THOMAS, J., concurring) (emphasis added).5We should not automatically presume that any institution with a neutral practice that happens to produce a racial disparity is guilty of discrimination until proved innocent.

As best I can tell, the reason for this wholesale inversion of our law's usual approach is the unstated-and unsubstantiated-assumption that, in the absence of discrimination, an institution's racial makeup would mirror that of society. But the absence of racial disparities in multi-ethnic societies has been the exception, not the rule. When it comes to "proportiona[l] represent [ation]" of ethnic groups, "few, if any, societies have ever approximated this description." D. Horowitz, Ethnic Groups in Conflict 677 (1985). "All multi-ethnic societies exhibit a tendency for ethnic groups to engage in different occupations, have different levels (and, often, types) of education, receive different incomes, and occupy a different place in the social hierarchy." Weiner, The Pursuit of Ethnic Equality Through Preferential Policies: A Comparative Public Policy Perspective, in From Independence to Statehood 64 (R. Goldmann & A. Wilson eds. 1984).

Racial imbalances do not always disfavor minorities. At various times in history, "racial or ethnic minorities ... have owned or directed more than half of whole industries in particular nations." Sowell 8. These minorities "have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile-among many others." Ibid. (footnotes omitted). "In the seventeenth century Ottoman Empire," this phenomenon was seen in the palace itself, where the "medical staff consisted of 41 Jews and 21 Muslims." Ibid. And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black. R. Lapchick, D. Donovan, E. Loomer, & L. Martinez, Institute for Diversity and Ethics in Sport, U. of Central Fla., The 2014 Racial and Gender Report Card: National Basketball Association 21 (June 24, 2014). To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence.

Yet, if disparate-impact liability is not based on this assumption and is instead simply a way to correct for imbalances that do not result from any unlawful conduct, it is even less justifiable. This Court has repeatedly reaffirmed that " 'racial balancing' " by state actors is " 'patently unconstitutional,' " even when it supposedly springs from good intentions.

*2531Fisher v. University of Tex. at Austin,570 U.S. ----, ----, 133 S.Ct. 2411, 2419, 186 L.Ed.2d 474 (2013). And if that "racial balancing" is achieved through disparate-impact claims limited to only some groups-if, for instance, white basketball players cannot bring disparate-impact suits-then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color. A problem with doing so should be obvious: "Government action that classifies individuals on the basis of race is inherently suspect." Schuette v. BAMN,572 U.S. ----, ----, 134 S.Ct. 1623, 1634-1635, 188 L.Ed.2d 613 (2014)(plurality opinion); accord, id.,at ----, 134 S.Ct., at 1643-1644(SCALIA, J., concurring in judgment). That is no less true when judges are the ones doing the classifying. See id.,at ----, 134 S.Ct., at 1634-1635(plurality opinion); id.,at ----, 134 S.Ct., at 1643-1644(SCALIA, J., concurring in judgment). Disparate-impact liability is thus a rule without a reason, or at least without a legitimate one.

III

The decision in Griggswas bad enough, but this Court's subsequent decisions have allowed it to move to other areas of the law. In Smith,for example, a plurality of this Court relied on Griggsto include disparate-impact liability in the ADEA. See 544 U.S., at 236, 125 S.Ct. 1536. As both I and the author of today's majority opinion recognized at the time, that decision was as incorrect as it was regrettable. See id.,at 248-249, 125 S.Ct. 1536(O'Connor, J., joined by KENNEDY and THOMAS, JJ., concurring in judgment). Because we knew that Congress did not create disparate-impact liability under Title VII, we explained that "there [wa]s no reason to suppose that Congress in 1967"-four years before Griggs-"could have foreseen the interpretation of Title VII that was to come." Smith, supra,at 260, 125 S.Ct. 1536(opinion of O'Connor, J.). It made little sense to repeat Griggs' error in a new context.

My position remains the same. Whatever deference is due Griggsas a matter of stare decisis,we should at the very least confine it to Title VII. We should not incorporate it into statutes such as the Fair Housing Act and the ADEA, which were passed years before Congress had any reason to suppose that this Court would take the position it did in Griggs. See Smith, supra,at 260, 125 S.Ct. 1536(opinion of O'Connor, J.).And we should certainly not allow it to spread to statutes like the Fair Housing Act, whose operative text, unlike that of the ADEA's, does not even mirror Title VII's.

Today, however, the majority inexplicably declares that "the logic of Griggsand Smith" leads to the conclusion that "the FHA encompasses disparate-impact claims." Ante,at 2518. Justice ALITO ably dismantles this argument. Post, at 2543 - 2547 (dissenting opinion). But, even if the majority were correct, I would not join it in following that "logic" here. "[E]rroneous precedents need not be extended to their logical end, even when dealing with related provisions that normally would be interpreted in lockstep. Otherwise, stare decisis,designed to be a principle of stability and repose, would become a vehicle of change ... distorting the law." CBOCS West, Inc. v. Humphries,553 U.S. 442, 469-470, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008)(THOMAS, J., dissenting) (footnote omitted). Making the same mistake in different areas of the law furthers neither certainty nor judicial economy. It furthers error.

That error will take its toll. The recent experience of the Houston Housing Authority (HHA) illustrates some of the many costs of disparate-impact liability.

*2532HHA, which provides affordable housing developments to low-income residents of Houston, has over 43,000 families on its waiting lists. The overwhelming majority of those families are black. Because Houston is a majority-minority city with minority concentrations in all but the more affluent areas, any HHA developments built outside of those areas will increase the concentration of racial minorities. Unsurprisingly, the threat of disparate-impact suits based on those concentrations has hindered HHA's efforts to provide affordable housing. State and federal housing agencies have refused to approve all but two of HHA's eight proposed development projects over the past two years out of fears of disparate-impact liability. Brief for Houston Housing Authority as Amicus Curiae8-12. That the majority believes that these are not " 'dire consequences,' " see ante,at 2525, is cold comfort for those who actually need a home.

* * *

I agree with the majority that Griggs"provide[s] essential background" in this case, ante,at 2517: It shows that our disparate-impact jurisprudence was erroneous from its inception. Divorced from text and reality, driven by an agency with its own policy preferences, Griggsbears little relationship to the statutory interpretation we should expect from a court of law. Today, the majority repeats that error.

I respectfully dissent.

Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting.

No one wants to live in a rat's nest. Yet in Gallagher v. Magner,619 F.3d 823 (2010), a case that we agreed to review several Terms ago, the Eighth Circuit held that the Fair Housing Act (or FHA), 42 U.S.C. § 3601 et seq.,could be used to attack St. Paul, Minnesota's efforts to combat "rodent infestation" and other violations of the city's housing code. 619 F.3d, at 830. The court agreed that there was no basis to "infer discriminatory intent" on the part of St. Paul. Id.,at 833. Even so, it concluded that the city's "aggressive enforcement of the Housing Code" was actionable because making landlords respond to "rodent infestation, missing dead-bolt locks, inadequate sanitation facilities, inadequate heat, inoperable smoke detectors, broken or missing doors," and the like increased the price of rent. Id.,at 830, 835. Since minorities were statistically more likely to fall into "the bottom bracket for household adjusted median family income," they were disproportionately affected by those rent increases, i.e.,there was a "disparate impact." Id.,at 834. The upshot was that even St. Paul's good-faith attempt to ensure minimally acceptable housing for its poorest residents could not ward off a disparate-impact lawsuit.

Today, the Court embraces the same theory that drove the decision in Magner.1This is a serious mistake. The Fair Housing Act does not create disparate-impact liability, nor do this Court's precedents. And today's decision will have unfortunate consequences for local government, private enterprise, and those living in poverty. Something has gone badly awry when a city can't even make slumlords kill rats without fear of a lawsuit. Because Congress did not authorize any of this, I respectfully dissent.

*2533I

Everyone agrees that the FHA punishes intentional discrimination. Treating someone "less favorably than others because of a protected trait" is " 'the most easily understood type of discrimination.' " Ricci v. DeStefano,557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009)(quoting Teamsters v. United States,431 U.S. 324, 335, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); some internal quotation marks omitted). Indeed, this classic form of discrimination-called disparate treatment-is the only one prohibited by the Constitution itself. See, e.g., Arlington Heights v. Metropolitan Housing Development Corp.,429 U.S. 252, 264-265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). It is obvious that Congress intended the FHA to cover disparate treatment.

The question presented here, however, is whether the FHA also punishes "practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities." Ricci, supra,at 577, 129 S.Ct. 2658. The answer is equally clear. The FHA does not authorize disparate-impact claims. No such liability was created when the law was enacted in 1968. And nothing has happened since then to change the law's meaning.

A

I begin with the text. Section 804(a) of the FHA makes it unlawful "[t]o refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because ofrace, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a)(emphasis added). Similarly, § 805(a) prohibits any party "whose business includes engaging in residential real estate-related transactions" from "discriminat[ing] against any person in making available such a transaction, or in the terms or conditions of such a transaction, because ofrace, color, religion, sex, handicap, familial status, or national origin." § 3605(a)(emphasis added).

In both sections, the key phrase is "because of." These provisions list covered actions ("refus[ing] to sell or rent ... a dwelling," "refus[ing] to negotiate for the sale or rental of ... a dwelling," "discriminat[ing]" in a residential real estate transaction, etc.) and protected characteristics ("race," "religion," etc.). The link between the actions and the protected characteristics is "because of."

What "because of" means is no mystery. Two Terms ago, we held that "the ordinary meaning of 'because of' is 'by reason of' or 'on account of.' " University of Tex. Southwestern Medical Center v. Nassar,570 U.S. ----, ----, 133 S.Ct. 2517, 2527, 186 L.Ed.2d 503 (2013)(quoting Gross v. FBL Financial Services, Inc.,557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); some internal quotation marks omitted). A person acts "because of" something else, we explained, if that something else " 'was the "reason" that the [person] decided to act.' " 570 U.S., at ----, 133 S.Ct., at 2527.

Indeed, just weeks ago, the Court made this same point in interpreting a provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(m), that makes it unlawful for an employer to take a variety of adverse employment actions (such as failing or refusing to hire a job applicant or discharging an employee) "because of" religion. See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ----, ----, 135 S.Ct. 2028, 2032-2033, ---L.Ed.2d ---- (2015). The Court wrote: " 'Because of' in § 2000e-2(a)(1)links the forbidden consideration to each of the verbs preceding it." Ibid.

*2534Nor is this understanding of "because of" an arcane feature of legal usage. When English speakers say that someone did something "because of" a factor, what they mean is that the factor was a reason for what was done. For example, on the day this case was argued, January 21, 2015, Westlaw and Lexis searches reveal that the phrase "because of" appeared in 14 Washington Post print articles. In every single one, the phrase linked an action and a reason for the action.2

Without torturing the English language, the meaning of these provisions of the FHA cannot be denied. They make it unlawful to engage in any of the covered actions "because of"-meaning "by reason of" or "on account of," Nassar, supra,at 2530, 133 S.Ct., at 2527-race, religion, etc. Put another way, "the terms [after] the 'because of' clauses in the FHA supply the prohibited motivations for the intentional acts ... that the Act makes unlawful." American Ins. Assn. v. Department of Housing and Urban Development,---F.Supp.3d ----, ---- n. 20, 2014 WL 5802283, at *8, n. 20 (D.D.C.2014). Congress accordingly outlawed the covered actions only when they are motivated by race or one of the other protected characteristics.

It follows that the FHA does not authorize disparate-impact suits. Under a statute like the FHA that prohibits actions taken "because of" protected characteristics, intent makes all the difference. Disparate impact, however, does not turn on " 'subjective intent.' " Raytheon Co. v. Hernandez,540 U.S. 44, 53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). Instead, " 'treat[ing] [a] particular person less favorably than others because of' a protected trait" is " 'disparate treatment,' " not disparate impact. Ricci,557 U.S., at 577, 129 S.Ct. 2658(emphasis added). See *2535also, e.g.,Personnel Administrator of Mass. v. Feeney,442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)(explaining the difference between "because of" and "in spite of"); Hernandez v. New York,500 U.S. 352, 359-360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)(plurality opinion) (same); Alexander v. Sandoval,532 U.S. 275, 278, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)(holding that it is "beyond dispute" that banning discrimination " 'on the ground of race' " "prohibits only intentional discrimination").

This is precisely how Congress used the phrase "because of" elsewhere in the FHA. The FHA makes it a crime to willfully "interfere with ... any person because of his race" (or other protected characteristic) who is engaging in a variety of real-estate-related activities, such as "selling, purchasing, [or] renting" a dwelling. 42 U.S.C. § 3631(a). No one thinks a defendant could be convicted of this crime without proof that he acted "because of," i.e.,on account of or by reason of, one of the protected characteristics. But the critical language in this section-"because of"-is identical to the critical language in the sections at issue in this case. "One ordinarily assumes" Congress means the same words in the same statute to mean the same thing. Utility Air Regulatory Group v. EPA,573 U.S. ----, ----, 134 S.Ct. 2427, 2441-2442, 189 L.Ed.2d 372 (2014). There is no reason to doubt that ordinary assumption here.

Like the FHA, many other federal statutes use the phrase "because of" to signify what that phrase means in ordinary speech. For instance, the federal hate crime statute, 18 U.S.C. § 249, authorizes enhanced sentences for defendants convicted of committing certain crimes "because of" race, color, religion, or other listed characteristics. Hate crimes require bad intent-indeed, that is the whole point of these laws. See, e.g.,Wisconsin v. Mitchell,508 U.S. 476, 484-485, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993)("[T]he same criminal conduct may be more heavily punished if the victim is selected because of his race or other protected status"). All of this confirms that "because of" in the FHA should be read to mean what it says.

B

In an effort to find at least a sliver of support for disparate-impact liability in the text of the FHA, the principal respondent, the Solicitor General, and the Court pounce on the phrase "make unavailable." Under § 804(a), it is unlawful "[t]o ... make unavailable ... a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). See also § 3605(a)(barring "discriminat[ion] against any person in making available such a [housing] transaction ... because of race, color, religion, sex, handicap, familial status, or national origin"). The Solicitor General argues that "[t]he plain meaning of the phrase 'make unavailable' includes actions that have the resultof making housing or transactions unavailable, regardless of whether the actions were intended to have that result." Brief for United States as Amicus Curiae18 (emphasis added). This argument is not consistent with ordinary English usage.

It is doubtful that the Solicitor General's argument accurately captures the "plain meaning" of the phrase "make unavailable" even when that phrase is not linked to the phrase "because of." "[M]ake unavailable" must be viewed together with the rest of the actions covered by § 804(a), which applies when a party "refuse[s]to sell or rent" a dwelling, "refuse[s]to negotiate for the sale or rental" of a dwelling, "den[ies]a dwelling to any person," "or otherwise make[s] unavailable" a dwelling.

*2536§ 3604(a)(emphasis added). When a statute contains a list like this, we "avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words, thus giving 'unintended breadth to the Acts of Congress.' " Gustafson v. Alloyd Co.,513 U.S. 561, 575, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)(quoting Jarecki v. G.D. Searle & Co.,367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)). See also, e.g.,Yates v. United States,574 U.S. ----, ----, 135 S.Ct. 1074, 1085-1086, 191 L.Ed.2d 64 (2015)(plurality opinion); id., at ----, 135 S.Ct., at 1089(ALITO, J., concurring in judgment). Here, the phrases that precede "make unavailable" unmistakably describe intentionaldeprivations of equal treatment, not merely actions that happen to have a disparate effect. See American Ins. Assn.,--- F.Supp.3d, at ----, 2014 WL 5802283, at *8(citing Webster's Third New International Dictionary 603, 848, 1363, 1910 (1966)). Section 804(a), moreover, prefaces "make unavailable" with "or otherwise," thus creating a catchall. Catchalls must be read "restrictively" to be "like" the listed terms. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler,537 U.S. 371, 384-385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003). The result of these ordinary rules of interpretation is that even without "because of," the phrase "make unavailable" likely would require intentionality.

The FHA's inclusion of "because of," however, removes any doubt. Sections 804(a) and 805(a) apply only when a party makes a dwelling or transaction unavailable "because of" race or another protected characteristic. In ordinary English usage, when a person makes something unavailable "because of" some factor, that factor must be a reason for the act.

Here is an example. Suppose that Congress increases the minimum wage. Some economists believe that such legislation reduces the number of jobs available for "unskilled workers," Fuller & Geide-Stevenson, Consensus Among Economists: Revisited, 34 J. Econ. Educ. 369, 378 (2003), and minorities tend to be disproportionately represented in this group, see, e.g., Dept. of Commerce, Bureau of Census, Detailed Years of School Completed by People 25 Years and Over by Sex, Age Groups, Race and Hispanic Origin: 2014, online at http://www.census.gov/hhes/socdemo/education/data/cps/2014/tables.html (all Internet materials as visited June 23, 2015, and available in Clerk of Court's case file). Assuming for the sake of argument that these economists are correct, would it be fair to say that Congress made jobs unavailable to African-Americans or Latinos "because of" their race or ethnicity?

A second example. Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities. See Draft 2015, http://www.nfl.com/draft/2015. See also Miller, Powerful Sports Agents Representing Color, Los Angeles Sentinel, Feb. 6, 2014, p. B3 (noting "there are 96 players (76 of whom are African-American) chosen in the first rounds of the 2009, 2010, and 2011 NFL drafts"). Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players "because of" their race?

A third example. During the present Court Term, of the 21 attorneys from the Solicitor General's Office who argued cases in this Court, it appears that all but 5(76%) were under the age of 45. Would the Solicitor General say he made argument opportunities unavailable to older attorneys "because of" their age?

*2537The text of the FHA simply cannot be twisted to authorize disparate-impact claims. It is hard to imagine how Congress could have more clearly stated that the FHA prohibits only intentional discrimination than by forbidding acts done "because of race, color, religion, sex, familial status, or national origin."

II

The circumstances in which the FHA was enacted only confirm what the text says. In 1968, "the predominant focus of antidiscrimination law was on intentional discrimination." Smith v. City of Jackson,544 U.S. 228, 258, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005)(O'Connor, J., concurring in judgment). The very "concept of disparate impact liability, by contrast, was quite novel." Ibid.(collecting citations). See also Tr. of Oral Arg. 15 ("JUSTICE GINSBURG: ... If we're going to be realistic about this, ... in 1968, when the Fair Housing Act passed, nobody knew anything about disparate impact"). It is anachronistic to think that Congress authorized disparate-impact claims in 1968 but packaged that striking innovation so imperceptibly in the FHA's text.

Eradicating intentional discrimination was and is the FHA's strategy for providing fair housing opportunities for all. The Court recalls the country's shameful history of segregation and de jurehousing discrimination and then jumps to the conclusion that the FHA authorized disparate-impact claims as a method of combatting that evil. Ante,at 2534 - 2536. But the fact that the 1968 Congress sought to end housing discrimination says nothing about the means it devised to achieve that end. The FHA's text plainly identifies the weapon Congress chose-outlawing disparate treatment "because of race" or another protected characteristic. 42 U.S.C. §§ 3604(a), 3605(a). Accordingly, in any FHA claim, "[p]roof of discriminatory motive is critical." Teamsters,431 U.S., at 335, n. 15, 97 S.Ct. 1843.

III

Congress has done nothing since 1968 to change the meaning of the FHA prohibitions at issue in this case. In 1968, those prohibitions forbade certain housing practices if they were done "because of" protected characteristics. Today, they still forbid certain housing practices if done "because of" protected characteristics. The meaning of the unaltered language adopted in 1968 has not evolved.

Rather than confronting the plain text of §§ 804(a) and 805(a), the Solicitor General and the Court place heavy reliance on certain amendments enacted in 1988, but those amendments did not modify the meaning of the provisions now before us. In the Fair Housing Amendments Act of 1988, 102 Stat. 1619, Congress expanded the list of protected characteristics. See 42 U.S.C. §§ 3604(a), (f)(1). Congress also gave the Department of Housing and Urban Development (HUD) rulemaking authority and the power to adjudicate certain housing claims. See §§ 3612, 3614a. And, what is most relevant for present purposes, Congress added three safe-harbor provisions, specifying that "[n]othing in [the FHA]" prohibits (a) certain actions taken by real property appraisers, (b) certain occupancy requirements, and (c) the treatment of persons convicted of manufacturing or distributing illegal drugs.3

*2538According to the Solicitor General and the Court, these amendments show that the FHA authorizes disparate-impact claims. Indeed, the Court says that they are "of crucial importance." Ante,at 2519. This "crucial" argument, however, cannot stand.

A

The Solicitor General and the Court contend that the 1988 Congress implicitly authorized disparate-impact liability by adopting the amendments just noted while leaving the operative provisions of the FHA untouched. Congress knew at that time, they maintain, that the Courts of Appeals had held that the FHA sanctions disparate-impact claims, but Congress failed to enact bills that would have rejected that theory of liability. Based on this, they submit that Congress silently ratified those decisions. See ante,at 2519 - 2520; Brief for United States as Amicus Curiae23-24. This argument is deeply flawed.

Not the greatest of its defects is its assessment of what Congress must have known about the judiciary's interpretation of the FHA. The Court writes that by 1988, "all nine Courts of Appealsto have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims." Ante,at 2519 (emphasis added). See also Brief for United States as Amicus Curiae12. But this Court had not addressed that question. While we always give respectful consideration to interpretations of statutes that garner wide acceptance in other courts, this Court has "no warrant to ignore clear statutory language on the ground that other courts have done so," even if they have " 'consistently' " done so for " '30 years.' " Milner v. Department of Navy,562 U.S. 562, 575-576, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). See also, e.g.,CSX Transp., Inc. v. McBride,564 U.S. ----, ----, 131 S.Ct. 2630, 2650, 180 L.Ed.2d 637 (2011)(ROBERTS, C.J., dissenting) (explaining that this Court does not interpret statutes by asking for "a show of hands" (citing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources,532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); McNally v. United States,483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987))).

In any event, there is no need to ponder whether it would have been reasonable for the 1988 Congress, without considering the clear meaning of §§ 804(a) and 805(a), to assume that the decisions of the lower courts effectively settled the matter. While the Court highlights the decisions of the Courts of Appeals, it fails to mention something that is of at least equal importance: The official view of the United States in 1988.

Shortly beforethe 1988 amendments were adopted, the United States formally argued in this Court that the FHA prohibits only intentional discrimination. See Brief for United States as Amicus Curiaein Huntington v. Huntington Branch, NAACP,O.T. 1988, No. 87-1961, p. 15 ("An action taken because of some factor other than race, i.e.,financial means, even if it causes a discriminatory effect, is not *2539an example of the intentional discrimination outlawed by the statute"); id.,at 14 ("The words 'because of' plainly connote a causal connection between the housing-related action and the person's race or color").4This was the same position that the United States had taken in lower courts for years. See, e.g., United States v. Birmingham,538 F.Supp. 819, 827, n. 9 (E.D.Mich.1982)(noting positional change), aff'd, 727 F.2d 560, 565-566 (C.A.6 1984)(adopting United States' "concession" that there must be a " 'discriminatory motive' "). It is implausible that the 1988 Congress was aware of certain lower court decisions but oblivious to the United States' considered and public view that those decisions were wrong.

This fact is fatal to any notion that Congress implicitly ratified disparate impact in 1988. The canon of interpretation on which the Court and the Solicitor General purport to rely-the so-called "prior-construction canon"-does not apply where lawyers cannot "justifiably regard the point as settled" or when "other sound rules of interpretation" are implicated. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 324, 325 (2012). That was the case here. Especially after the United States began repudiating disparate impact, no one could have reasonably thought that the question was settled.

Nor can such a faulty argument be salvaged by pointing to Congress' failure in 1988 to enact language that would have made it clear that the FHA does not authorize disparate-impact suits based on zoning decisions. See ante,at 2519 - 2520.5To change the meaning of language in an already enacted law, Congress must pass a new law amending that language. See, e.g., West Virginia Univ. Hospitals, Inc. v. Casey,499 U.S. 83, 100, 101, and n. 7, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991). Intent that finds no expression in a statute is irrelevant. See, e.g., New York Telephone Co. v. New York State Dept. of Labor,440 U.S. 519, 544-545, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979); Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 538-540 (1983). Hence, "we walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle." Helvering v. Hallock,309 U.S. 106, 121, 60 S.Ct. 444, 84 L.Ed. 604 (1940).

Unsurprisingly, we have rejected identicalarguments about implicit ratification in other cases. For example, in *2540Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A.,511 U.S. 164, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994), a party argued that § 10(b) of the Securities Exchange Act of 1934 imposes liability on aiders and abettors because "Congress ha[d] amended the securities laws on various occasions since 1966, when courts first began to interpret § 10(b) to cover aiding and abetting, but ha[d] done so without providing that aiding and abetting liability is not available under § 10(b)." Id., at 186, 114 S.Ct. 1439. "From that," a party asked the Court to "infer that these Congresses, by silence, ha[d] acquiesced in the judicial interpretation of § 10(b)." Ibid.The Court dismissed this argument in words that apply almost verbatim here:

" 'It does not follow that Congress' failure to overturn a statutory precedent is reason for this Court to adhere to it. It is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative congressional approval of the courts' statutory interpretation. Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. See U.S. Const., Art. I, § 7, cl. 2. Congressional inaction cannot amend a duly enacted statute.' Patterson v. McLean Credit Union,491 U.S. 164, 175, n. 1 [109 S.Ct. 2363, 105 L.Ed.2d 132] (1989)(quoting Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 672 [107 S.Ct. 1442, 94 L.Ed.2d 615] (1987)(SCALIA, J., dissenting))." Ibid.(alterations omitted).

We made the same point again in Sandoval,532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517. There it was argued that amendments to Title VI of the Civil Rights Act of 1964 implicitly ratified lower court decisions upholding a private right of action. We rejected that argument out of hand. See id.,at 292-293, 121 S.Ct. 1511.

Without explanation, the Court ignores these cases.

B

The Court contends that the 1988 amendments provide "convincing confirmation of Congress' understanding that disparate-impact liability exists under the FHA" because the three safe-harbor provisions included in those amendments "would be superfluous if Congress had assumed that disparate-impact liability did not exist under the FHA." Ante,at 2520, 2521. As just explained, however, what matters is what Congress did,not what it might have "assumed." And although the Court characterizes these provisions as "exemptions," that characterization is inaccurate. They make no reference to § 804(a) or § 805(a) or any other provision of the FHA; nor do they state that they apply to conduct that would otherwise be prohibited. Instead, they simply make clear that certain conduct is not forbidden by the Act. E.g., 42 U.S.C. § 3607(b)(4)("Nothing in this subchapter prohibits ..."). The Court should read these amendments to mean what they say.

In 1988, policymakers were not of one mind about disparate-impact housing suits. Some favored the theory and presumably would have been happy to have it enshrined in the FHA. See ante,at 2519 - 2520; 134 Cong. Rec. 23711 (1988) (statement of Sen. Kennedy). Others worried about disparate-impact liability and recognized that this Court had not decided whether disparate-impact claims were authorized under the 1968 Act. See H.R.Rep. No. 100-711, pp. 89-93 (1988). Still others disapproved of disparate-impact liability and believed that the 1968 Act did not authorize it. That was the view of President Reagan when he signed the amendments. See Remarks on Signing the Fair Housing Amendments Act of *25411988, 24 Weekly Comp. of Pres. Doc. 1140, 1141 (1988) (explaining that the amendments did "not represent any congressional or executive branch endorsement of the notion, expressed in some judicial opinions, that [FHA] violations may be established by a showing of disparate impact" because the FHA "speaks only to intentional discrimination").6

The 1988 safe-harbor provisions have all the hallmarks of a compromise among these factions. These provisions neither authorize nor bar disparate-impact claims, but they do provide additional protection for persons and entities engaging in certain practices that Congress especially wished to shield. We "must respect and give effect to these sorts of compromises." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 93-94, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002).

It is not hard to see why such a compromise was attractive. For Members of Congress who supported disparate impact, the safe harbors left the favorable lower court decisions in place. And for those who hoped that this Court would ultimately agree with the position being urged by the United States, those provisions were not surplusage. In the Circuits in which disparate-impact FHA liability had been accepted, the safe-harbor provisions furnished a measure of interim protection until the question was resolved by this Court. They also provided partial protection in the event that this Court ultimately rejected the United States' argument. Neither the Court, the principal respondent, nor the Solicitor General has cited any case in which the canon against surplusage has been applied in circumstances like these.7

*2542On the contrary, we have previously refused to interpret enactments like the 1988 safe-harbor provisions in such a way. Our decision in O'Gilvie v. United States,519 U.S. 79, 117 S.Ct. 452, 136 L.Ed.2d 454 (1996)-also ignored by the Court today-is instructive. In that case, the question was whether a provision of the Internal Revenue Code excluding a recovery for personal injury from gross income applied to punitive damages. Well after the critical provision was enacted, Congress adopted an amendment providing that punitive damages for nonphysical injuries were not excluded. Pointing to this amendment, a taxpayer argued: "Why ... would Congress have enacted this amendment removing punitive damages (in nonphysical injury cases) unless Congress believed that, in the amendment's absence, punitive damages did fall within the provision's coverage?" Id.,at 89, 117 S.Ct. 452. This argument, of course, is precisely the same as the argument made in this case. To paraphrase O'Gilvie,the Court today asks: Why would Congress have enacted the 1988 amendments, providing safe harbors from three types of disparate-impact claims, unless Congress believed that, in the amendments' absence, disparate-impact claims did fall within the FHA's coverage?

The Court rejected the argument in O'Gilvie. "The short answer," the Court wrote, is that Congress might have simply wanted to "clarify the matter in respect to nonphysical injuries" while otherwise "leav[ing] the law where it found it." Ibid.Although other aspects of O'Gilvietriggered a dissent, see id.,at 94-101, 117 S.Ct. 452(opinion of SCALIA, J.), no one quarreled with this self-evident piece of the Court's analysis. Nor was the O'GilvieCourt troubled that Congress' amendment regarding nonphysical injuries turned out to have been unnecessary because punitive damages for any injuries were not excluded all along.

The Court saw the flaw in the argument in O'Gilvie,and the same argument is no better here. It is true that O'Gilvieinvolved a dry question of tax law while this case involves a controversial civil rights issue. But how we read statutes should not turn on such distinctions.

In sum, as the principal respondent's attorney candidly admitted, the 1988 amendments did not create disparate-impact liability. See Tr. of Oral Arg. 36 ("[D]id the things that [Congress] actually did in 1988 expand the coverage of the Act? MR. DANIEL: No, Justice").

C

The principal respondent and the Solicitor General-but not the Court-have one final argument regarding the text of the FHA. They maintain that even if the FHA does not unequivocally authorize disparate-impact suits, it is at least ambiguous enough to permit HUD to adopt that interpretation. Even if the FHA were ambiguous, however, we do not defer "when there is reason to suspect that the agency's interpretation 'does not reflect the agency's fair and considered judgment on the matter in question.' " Christopher v. SmithKline Beecham Corp.,567 U.S. ----, ----, 132 S.Ct. 2156, 2166, 183 L.Ed.2d 153 (2012).

Here, 43 years after the FHA was enacted and nine days after the Court granted certiorari in Magner(the "rodent infestation" case), HUD proposed "to prohibit *2543housing practices with a discriminatory effect, even where there has been no intent to discriminate."Implementation of the Fair Housing Act's Discriminatory Effects Standard, 76 Fed.Reg. 70921 (2011). After Magnersettled, the Court called for the views of the Solicitor General in Township of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc.,568 U.S. ----, 133 S.Ct. 569, 184 L.Ed.2d 336 (2012), another case raising the same question. Before the Solicitor General filed his brief, however, HUD adopted disparate-impact regulations. See Implementation of the Fair Housing Act's Discriminatory Effects Standard, 78 Fed.Reg. 11460 (2013). The Solicitor General then urged HUD's rule as a reason to deny certiorari. We granted certiorari anyway, 570 U.S. ----, 133 S.Ct. 2824, 186 L.Ed.2d 883 (2013), and shortly thereafter Mount Hollyalso unexpectedly settled. Given this unusual pattern, there is an argument that deference may be unwarranted. Cf. Young v. United Parcel Service, Inc.,575 U.S. ----, ----, 135 S.Ct. 1338, 1352, 191 L.Ed.2d 279 (2015)(refusing to defer where "[t]he EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari" (discussing Skidmore v. Swift & Co.,323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944))).8

There is no need to dwell on these circumstances, however, because deference is inapt for a more familiar reason: The FHA is not ambiguous. The FHA prohibits only disparate treatment, not disparate impact. It is a bedrock rule that an agency can never "rewrite clear statutory terms to suit its own sense of how the statute should operate." Utility Air Regulatory Group,573 U.S., at ----, 134 S.Ct., at 2446. This rule makes even more sense where the agency's view would open up a deeply disruptive avenue of liability that Congress never contemplated.

IV

Not only does disparate-impact liability run headlong into the text of the FHA, it also is irreconcilable with our precedents. The Court's decision today reads far too much into Griggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and far too little into Smith v. City of Jackson,544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). In Smith,the Court explained that the statutory justification for the decision in Griggsdepends on language that has no parallel in the FHA. And when the SmithCourt addressed a provision that does have such a parallel in the FHA, the Court concluded-unanimously-that it does not authorize disparate-impact liability. The same result should apply here.

A

Rather than focusing on the text of the FHA, much of the Court's reasoning today turns on Griggs. In Griggs,the Court held that black employees who sued their employer under § 703(a)(2) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(2), could recover without proving that the employer's conduct-requiring a high school diploma or a qualifying grade on a standardized test as a condition for certain jobs-was motivated by a discriminatory intent. Instead, the Court held that, unless it was proved that the requirements were "job related," the plaintiffs could recover by showing that *2544the requirements "operated to render ineligible a markedly disproportionate number of Negroes." 401 U.S., at 429, 91 S.Ct. 849.

Griggswas a case in which an intent to discriminate might well have been inferred. The company had "openly discriminated on the basis of race" prior to the date on which the 1964 Civil Rights Act took effect. Id., at 427, 91 S.Ct. 849. Once that date arrived, the company imposed new educational requirements for those wishing to transfer into jobs that were then being performed by white workers who did not meet those requirements.Id., at 427-428, 91 S.Ct. 849. These new hurdles disproportionately burdened African-Americans, who had "long received inferior education in segregated schools." Id., at 430, 91 S.Ct. 849. Despite all this, the lower courts found that the company lacked discriminatory intent. See id., at 428, 91 S.Ct. 849. By convention, we do not overturn a finding of fact accepted by two lower courts, see, e.g.,Rogers v. Lodge,458 U.S. 613, 623, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982); Blau v. Lehman,368 U.S. 403, 408-409, 82 S.Ct. 451, 7 L.Ed.2d 403 (1962); Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 93 L.Ed. 672 (1949), so the Court was confronted with the question whether Title VII always demands intentional discrimination.

Although Griggsinvolved a question of statutory interpretation, the body of the Court's opinion-quite remarkably-does not even cite the provision of Title VII on which the plaintiffs' claims were based. The only reference to § 703(a)(2) of the 1964 Civil Rights Act appears in a single footnote that reproduces the statutory text but makes no effort to explain how it encompasses a disparate-impact claim. See 401 U.S., at 426, n. 1, 91 S.Ct. 849. Instead, the Court based its decision on the "objective" of Title VII, which the Court described as "achiev[ing] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of white employees over other employees." Id., at 429-430, 91 S.Ct. 849.

That text-free reasoning caused confusion, see, e.g., Smith, supra,at 261-262, 125 S.Ct. 1536(O'Connor, J., concurring in judgment), and undoubtedly led to the pattern of Court of Appeals decisions in FHA cases upon which the majority now relies. Those lower courts, like the GriggsCourt, often made little effort to ground their decisions in the statutory text. For example, in one of the earliest cases in this line, United States v. Black Jack,508 F.2d 1179 (C.A.8 1974), the heart of the court's analysis was this: "Just as Congress requires 'the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification,' such barriers must also give way in the field of housing." Id.,at 1184(quoting Griggs, supra,at 430-431, 91 S.Ct. 849; citation omitted).

Unlike these lower courts, however, this Court has never interpreted Griggsas imposing a rule that applies to all antidiscrimination statutes. See, e.g., Guardians Assn. v. Civil Serv. Comm'n of New York City,463 U.S. 582, 607, n. 27, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)(holding that Title VI, 42 U.S.C. § 2000d et seq.,does "not allow compensatory relief in the absence of proof of discriminatory intent"); Sandoval,532 U.S., at 280, 121 S.Ct. 1511(similar). Indeed, we have never held that Griggseven establishes a rule for all employmentdiscrimination statutes. In Teamsters,the Court rejected "the Griggsrationale" in evaluating a company's seniority rules. 431 U.S., at 349-350, 97 S.Ct. 1843. And because Griggswas focused *2545on a particular problem, the Court had held that its rule does not apply where, as here, the context is different. In Los Angeles Dept. of Water and Power v. Manhart,435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), for instance, the Court refused to apply Griggsto pensions under the Equal Pay Act of 1963, 29 U.S.C. § 206(d)or Title VII, even if a plan has a "disproportionately heavy impact on male employees." 435 U.S. at 711, n. 20, 98 S.Ct. 1370. We explained that "[e]ven a completely neutral practice will inevitably have somedisproportionate impact on one group or another. Griggsdoes not imply, and this Court has never held, that discrimination must always be inferred from such consequences." Ibid.

B

Although the opinion in Griggsdid not grapple with the text of the provision at issue, the Court was finally required to face that task in Smith,544 U.S. 228, 125 S.Ct. 1536, 161 L.Ed.2d 410, which addressed whether the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.,authorizes disparate-impact suits. The Court considered two provisions of the ADEA, §§ 4(a)(1) and 4(a)(2), 29 U.S.C. §§ 623(a)(1)and (a)(2).

The Court unanimously agreed that the first of these provisions, § 4(a)(1), does not authorize disparate-impact claims. See 544 U.S., at 236, n. 6, 125 S.Ct. 1536(plurality opinion); id., at 243, 125 S.Ct. 1536(SCALIA, J., concurring in part and concurring in judgment) (agreeing with the plurality's reasoning); id., at 249, 125 S.Ct. 1536(O'Connor, J., concurring in judgment) (reasoning that this provision "obvious[ly]" does not allow disparate-impact claims).

By contrast, a majority of the Justices found that the terms of § 4(a)(2) either clearly authorize disparate-impact claims (the position of the plurality) or at least are ambiguous enough to provide a basis for deferring to such an interpretation by the Equal Employment Opportunity Commission (the position of Justice SCALIA). See 544 U.S., at 233-240, 125 S.Ct. 1536(plurality opinion); id., at 243-247, 125 S.Ct. 1536(opinion of SCALIA, J.).

In reaching this conclusion, these Justices reasoned that § 4(a)(2) of the ADEA was modeled on and is virtually identical to the provision in Griggs,42 U.S.C. § 2000e-2(a)(2). Section 4(a)(2) provides as follows:

"It shall be unlawful for an employer-

. . . . .

"(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age." 29 U.S.C. § 623(a)(emphasis added).

The provision of Title VII at issue in Griggssays this:

"It shall be an unlawful employment practice for an employer-

. . . . .

"(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2)(emphasis added).

For purposes here, the only relevant difference between these provisions is that the ADEA provision refers to "age" and the Title VII provision refers to "race, color, religion, or national origin." Because identical language in two statutes *2546having similar purposes should generally be presumed to have the same meaning, the plurality in Smith,echoed by Justice SCALIA, saw Griggsas "compelling" support for the conclusion that § 4(a)(2) of the ADEA authorizes disparate-impact claims. 544 U.S., at 233-234, 125 S.Ct. 1536(plurality opinion) (citing Northcross v. Board of Ed. of Memphis City Schools,412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973)(per curiam)).

When it came to the other ADEA provision addressed in Smith,namely, § 4(a)(1), the Court unanimously reached the opposite conclusion. Section 4(a)(1) states:

"It shall be unlawful for an employer-

"(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1)(emphasis added).

The plurality opinion's reasoning, with which Justice SCALIA agreed, can be summarized as follows. Under § 4(a)(1), the employermust act because of age, and thus must have discriminatory intent. See 544 U.S., at 236, n. 6, 125 S.Ct. 1536.9Under § 4(a)(2), on the other hand, it is enough if the employer's actions"adversely affect" an individual "because of ... age." 29 U.S.C. § 623(a).

This analysis of §§ 4(a)(1) and (a)(2) of the ADEA confirms that the FHA does not allow disparate-impact claims. Sections 804(a) and 805(a) of the FHA resemble § 4(a)(1) of the ADEA, which the SmithCourt unanimously agreed does not encompass disparate-impact liability. Under these provisions of the FHA, like § 4(a)(1) of the ADEA, a defendant must act "because of" race or one of the other prohibited grounds. That is, it is unlawful for a person or entity to "[t]o refuse to sell or rent," "refuse to negotiate," "otherwise make unavailable," etc. for a forbidden reason. These provisions of the FHA, unlike the Title VII provision in Griggsor § 4(a)(2) of the ADEA, do not make it unlawful to take an action that happens to adversely affect a person because of race, religion, etc.

The Smithplurality's analysis, moreover, also depended on other language, unique to the ADEA, declaring that "it shall not be unlawful for an employer 'to take any action otherwise prohibited... where the differentiation is based on reasonable factors other than age.' " 544 U.S., at 238, 125 S.Ct. 1536(quoting 81 Stat. 603; emphasis added). This "otherwise prohibited" language was key to the plurality opinion's reading of the statute because it arguably suggested disparate-impact liability. See 544 U.S., at 238, 125 S.Ct. 1536. This language, moreover, was essentialto Justice SCALIA's controlling *2547opinion. Without it, Justice SCALIA would have agreed with Justices O'Connor, KENNEDY, and THOMAS that nothingin the ADEA authorizes disparate-impact suits. See id.,at 245-246, 125 S.Ct. 1536. In fact, even with this "otherwise prohibited" language, Justice SCALIA merely concluded that § 4(a)(2) was ambiguous-notthat disparate-impacts suits are required. Id.,at 243, 125 S.Ct. 1536.

The FHA does not contain any phrase like "otherwise prohibited." Such language certainly is nowhere to be found in §§ 804(a) and 805(a). And for all the reasons already explained, the 1988 amendments do not presuppose disparate-impact liability. To the contrary, legislative enactments declaring only that certain actions are notgrounds for liability do not implicitly create a new theory of liability that all other facets of the statute foreclose.

C

This discussion of our cases refutes any notion that "[t]ogether, Griggsholds10and the plurality in Smithinstructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose." Ante,at 2517. The Court stumbles in concluding that § 804(a) of the FHA is more like § 4(a)(2) of the ADEA than § 4(a)(1). The operative language in § 4(a)(1) of the ADEA-which, per Smith,does not authorize disparate-impact claims-is materially indistinguishable from the operative language in § 804(a) of the FHA.

Even more baffling, neither alone nor in combination do Griggsand Smithsupport the Court's conclusion that § 805(a) of the FHA allows disparate-impact suits. The action forbidden by that provision is "discriminat[ion]... because of" race, religion, etc. 42 U.S.C. § 3605(a)(emphasis added). This is precisely the formulation used in § 4(a)(1) of the ADEA, which prohibits "discriminat[ion]... because of such individual's age," 29 U.S.C. § 623(a)(1)(emphasis added), and which Smithholds does notauthorize disparate-impact claims.

In an effort to explain why § 805(a)'s reference to "discrimination" allows disparate-impact suits, the Court argues that in Board of Ed. of City School Dist. of New York v. Harris,444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979), "statutory language similar to § 805(a) [was construed] to include disparate-impact liability." Ante,at 2518. In fact, the statutory language in Harriswas quite different. The law there was § 706(d)(1)(B) of the 1972 Emergency School Aid Act, which barred assisting education agencies that " 'had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal of instructional or other personnel from minority groups in conjunction with desegregation ... orotherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees.' " 444 U.S., at 132-133, 142, 100 S.Ct. 363(emphasis added).

After stating that the first clause in that unusual statute referred to a "disparate-*2548impact test," the HarrisCourt concluded that "a similar standard" should apply to the textually "closely connected" second clause. Id.,at 143, 100 S.Ct. 363. This was so, the Court thought, even though the second clause, standing alone, may very well have required discriminatory "intent." Id.,at 139, 100 S.Ct. 363. The Court explained that the Act's "less than careful draftsmanship" regarding the relationship between the clauses made the "wording of the statute ... ambiguous" about teacher assignments, thus forcing the Court to "look closely at the structure and context of the statute and to review its legislative history." Id.,at 138-140, 100 S.Ct. 363. It was the combined force of all those markers that persuaded the Court that disparate impact applied to the second clause too.

Harris,in other words, has nothing to do with § 805(a) of the FHA. The "wording" is different; the "structure" is different; the "context" is different; and the "legislative history" is different. Id.,at 140, 100 S.Ct. 363. Rather than digging up a 36-year-old case that Justices of this Court have cited all of twice, and never once for the proposition offered today, the Court would do well to recall our many cases explaining what the phase "because of" means.

V

Not only is the decision of the Court inconsistent with what the FHA says and our precedents, it will have unfortunate consequences. Disparate-impact liability has very different implications in housing and employment cases.

Disparate impact puts housing authorities in a very difficult position because programs that are designed and implemented to help the poor can provide the grounds for a disparate-impact claim. As Magnershows, when disparate impact is on the table, even a city's good-faith attempt to remedy deplorable housing conditions can be branded "discriminatory." 619 F.3d, at 834. Disparate-impact claims thus threaten "a whole range of tax, welfare, public service, regulatory, and licensing statutes." Washington v. Davis,426 U.S. 229, 248, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

This case illustrates the point. The Texas Department of Housing and Community Affairs (the Department) has only so many tax credits to distribute. If it gives credits for housing in lower income areas, many families-including many minority families-will obtain better housing. That is a good thing. But if the Department gives credits for housing in higher income areas, some of those families will be able to afford to move into more desirable neighborhoods. That is also a good thing. Either path, however, might trigger a disparate-impact suit.11

This is not mere speculation. Here, one respondent has sued the Department for not allocating enough credits to higher income areas. See Brief for Respondent Inclusive Communities Project, Inc., 23. But anotherrespondent argues that giving credits to wealthy neighborhoods violates "the moral imperative to improve the substandard and inadequate affordable housing in many of our inner cities." Reply Brief for Respondent Frazier Revitalization Inc. 1. This latter argument has special force because a city can build more housing where property is least expensive, thus benefiting more people. In fact, federal *2549law often favors projects that revitalize low-income communities. Seeante,at 2513.

No matter what the Department decides, one of these respondents will be able to bring a disparate-impact case. And if the Department opts to compromise by dividing the credits, both respondents might be able to sue. Congress surely did not mean to put local governments in such a position.

The Solicitor General's answer to such problems is that HUD will come to the rescue. In particular, HUD regulations provide a defense against disparate-impact liability if a defendant can show that its actions serve "substantial, legitimate, nondiscriminatory interests" that "necessar[ily]" cannot be met by "another practice that has a less discriminatory effect." 24 CFR § 100.500(b) (2014). (There is, of course, no hint of anything like this defense in the text of the FHA. But then, there is no hint of disparate-impact liability in the text of the FHA either.)

The effect of these regulations, not surprisingly, is to confer enormous discretion on HUD-without actually solving the problem. What is a "substantial" interest? Is there a difference between a "legitimate" interest and a "nondiscriminatory" interest? To what degree must an interest be met for a practice to be "necessary"? How are parties and courts to measure "discriminatory effect"?

These questions are not answered by the Court's assurance that the FHA's disparate-impact "analysis 'is analogous to the Title VII requirement that an employer's interest in an employment practice with a disparate impact be job related.' " Ante,at 2514 (quoting 78 Fed.Reg. 11470). See also ante,at 2522 (likening the defense to "the business necessity standard"). The business-necessity defense is complicated enough in employment cases; what it means when plopped into the housing context is anybody's guess. What is the FHA analogue of "job related"? Is it "housing related"? But a vast array of municipal decisions affect property values and thus relate (at least indirectly) to housing. And what is the FHA analogue of "business necessity"? "Housing-policy necessity"? What does that mean?

Compounding the problem, the Court proclaims that "governmental entities ... must not be prevented from achieving legitimate objectives, such as ensuring compliance with health and safety codes." Ante,at 2524. But what does the Court mean by a "legitimate" objective? And does the Court mean to say that there can be no disparate-impact lawsuit if the objective is "legitimate"? That is certainly not the view of the Government, which takes the position that a disparate-impact claim may be brought to challenge actions taken with such worthy objectives as improving housing in poor neighborhoods and making financially sound lending decisions. See Brief for United States as Amicus Curiae30, n. 7.

Because HUD's regulations and the Court's pronouncements are so "hazy," Central Bank,511 U.S., at 188-189, 114 S.Ct. 1439courts-lacking expertise in the field of housing policy-may inadvertently harm the very people that the FHA is meant to help. Local governments make countless decisions that may have some disparate impact related to housing. See ante,at 2522 - 2523. Certainly Congress did not intend to "engage the federal courts in an endless exercise of second-guessing" local programs. Canton v. Harris,489 U.S. 378, 392, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Even if a city or private entity named in a disparate-impact suit believes that it is likely to prevail if a disparate-impact suit *2550is fully litigated, the costs of litigation, including the expense of discovery and experts, may "push cost-conscious defendants to settle even anemic cases." Bell Atlantic Corp. v. Twombly,550 U.S. 544, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Defendants may feel compelled to "abandon substantial defenses and ... pay settlements in order to avoid the expense and risk of going to trial." Central Bank, supra, at 189, 114 S.Ct. 1439. And parties fearful of disparate-impact claims may let race drive their decisionmaking in hopes of avoiding litigation altogether. Cf. Ricci,557 U.S., at 563, 129 S.Ct. 2658. All the while, similar dynamics may drive litigation against private actors. Ante,at 2522.

This is not the Fair Housing Act that Congress enacted.

VI

Against all of this, the Court offers several additional counterarguments. None is persuasive.

A

The Court is understandably worried about pretext. No one thinks that those who harm others because of protected characteristics should escape liability by conjuring up neutral excuses. Disparate-treatment liability, however, is attuned to this difficulty. Disparate impact can be evidenceof disparate treatment. E.g.,Church of Lukumi Babalu Aye, Inc. v. Hialeah,508 U.S. 520, 541-542, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)(opinion of KENNEDY, J.); Hunter v. Underwood,471 U.S. 222, 233, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985). As noted, the facially neutral requirements in Griggscreated a strong inference of discriminatory intent. Nearly a half century later, federal judges have decades of experience sniffing out pretext.

B

The Court also stresses that "many of our Nation's largest cities-entities that are potential defendants in disparate-impact suits-have submitted an amicusbrief in this case supporting disparate-impact liability under the FHA." Ante,at 2525 - 2526.

This nod to federalism is puzzling. Only a minority of the States and only a small fraction of the Nation's municipalities have urged us to hold that the FHA allows disparate-impact suits. And even if a majority supported the Court's position, that would not be a relevant consideration for a court. In any event, nothing prevents States and local government from enacting their own fair housing laws, including laws creating disparate-impact liability. See 42 U.S.C. § 3615(recognizing local authority).

The Court also claims that "[t]he existence of disparate-impact liability in the substantial majority of the Courts of Appeals for the last several decades" has not created " 'dire consequences.' " Ante,at 2526. But the Court concedes that disparate impact can be dangerous. See ante,at 2522 - 2525. Compare Magner,619 F.3d, at 833-838(holding that efforts to prevent violations of the housing code may violate the FHA), with 114 Cong. Rec. 2528 (1968) (remarks of Sen. Tydings) (urging enactment of the FHA to help combat violations of the housing code, including "rat problem[s]"). In the Court's words, it is "paradoxical to construe the FHA to impose onerous costs on actors who encourage revitalizing dilapidated housing." Ante, at 2522. Our say-so, however, will not stop such costly cases from being filed-or from getting past a motion to dismiss (and so into settlement).

C

At last I come to the "purpose" driving the Court's analysis: The desire to eliminate *2551the "vestiges" of "residential segregation by race." Ante,at 2515, 2525. We agree that all Americans should be able "to buy decent houses without discrimination ... because ofthe color of their skin." 114 Cong. Rec. 2533 (remarks of Sen. Tydings) (emphasis added). See 42 U.S.C. §§ 3604(a), 3605(a)("because of race"). But this Court has no license to expand the scope of the FHA to beyond what Congress enacted.

When interpreting statutes, " '[w]hat the legislative intention was, can be derived only from the words ... used; and we cannot speculate beyond the reasonable import of these words.' " Nassar,570 U.S., at ----, 133 S.Ct., at 2528-2529(quoting Gardner v. Collins,2 Pet. 58, 93, 7 L.Ed. 347 (1829)). "[I]t frustrates rather than effectuates legislative intent simplistically to assume that whateverfurthers the statute's primary objective must be the law." Rodriguez v. United States,480 U.S. 522, 526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987)(per curiam). See also, e.g.,Board of Governors, FRS v. Dimension Financial Corp.,474 U.S. 361, 373-374, 106 S.Ct. 681, 88 L.Ed.2d 691 (1986)(explaining that " 'broad purposes' " arguments "ignor[e] the complexity of the problems Congress is called upon to address").

Here, privileging purpose over text also creates constitutional uncertainty. The Court acknowledges the risk that disparate impact may be used to "perpetuate race-based considerations rather than move beyond them." Ante,at 2524. And it agrees that "racial quotas ... rais[e] serious constitutional concerns." Ante,at 2523. Yet it still reads the FHA to authorize disparate-impact claims. We should avoid, rather than invite, such "difficult constitutional questions." Ante,at 2524. By any measure, the Court today makes a serious mistake.

* * *

I would interpret the Fair Housing Act as written and so would reverse the judgment of the Court of Appeals.

*919GORSUCH, Circuit Judge.

For years Cinnamon Hills has run a residential treatment facility in St. George, Utah for young people with mental and emotional disorders. Now, it wants to expand its operations with a new “step-down” program. Participants would live in a separate facility with more responsibility and autonomy than other students, all to help prepare them for reentry into society. Cinnamon Hills hopes to house its new operation on the top floor of the Ambassador Inn, a local motel it happens to own. At the same time, it wants to continue operating the ground floor as a motel open to the traveling public. Aware its unusual plan violates various city zoning ordinances, Cinnamon Hills sought a variance. When the city demurred, Cinnamon Hills brought this lawsuit alleging unlawful discrimination against the disabled. Unable to discern material facts suggestive of discrimination, the district court granted summary judgment to the city, a conclusion we ultimately find persuasive.

Cinnamon Hills’s suit invokes three separate federal statutes: the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act (RA). Whatever the statutory rubric, though, everyone agrees that to avoid summary judgment Cinnamon Hills must present facts suggesting that the city either (1) intentionally discriminated against the disabled, (2) engaged in conduct that had an unlawful disparate impact on the disabled, or (3) failed to provide a reasonable accommodation for the disabled.1 Accordingly, we organize our discussion around those theories and discuss each in its turn.

Intentional Discrimination. There are two ways to prove intentional discrimination (or “disparate treatment”), and Cinnamon Hills attempts both. First, it says it has direct proof of the city’s discriminatory intent. See Keys Youth Servs., Inc. v. City of Olathe, 248 F.3d 1267, 1274 n. 6 (10th Cir.2001); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Second, it points to circumstantial evidence and invokes the familiar McDonnell Douglas burden shifting scheme originally spawned in the Title YII arena but long since equally entrenched in the FHA, ADA, and RA contexts. See Asbury v. Brougham, 866 F.2d 1276, 1279 (10th Cir.1989) (FHA); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir.1997) (ADA); Cummings v. Norton, 393 F.3d 1186, 1189 n. 1 (10th Cir.2005) (RA).

For direct evidence of discrimination, Cinnamon Hills points to various restrictions in § 10-5-3 of the city code, restrictions requiring residential treatment centers to locate in rural areas (among other things). Cinnamon Hills says the restrictions embodied in § 10-5-3 discriminate on their face against the disabled. But whatever else § 10-5-3 may be, it isn’t direct evidence of discrimination against the disabled in this case.

Direct evidence of discrimination is evidence which, if believed, proves that the decision in the case at hand was discriminatory — and does so without depending on any further inference or presumption. Shorter v. ICG Holdings, Inc., 188 F.3d *9201204, 1207 (10th Cir.1999) (overruled on other grounds as recognized by Fye v. Okla. Corp. Com’n, 516 F.3d 1217 (10th Cir.2008)); Ramsey v. City & Cnty. of Denver, 907 F.2d 1004, 1008 (10th Cir.1990). So if a city zoning official explicitly relies on a discriminatory policy in making the challenged policy decision, or if he makes discriminatory comments about the disabled while explaining his basis for the contested decision, that is direct evidence of discrimination. See EEOC v. Wiltel, Inc., 81 F.3d 1508, 1514 (10th Cir.1996).

But in this case, the city did no such thing. It never invoked § 10-5-3 or its restrictions when rejecting Cinnamon Hill’s request. Neither has the city ever sought to rely on § 10-5-3 after the fact, during the course of this litigation. Instead, the city has always and exclusively said its decision to deny the requested variance rested (and so was to stand or fall) on two distinct code provisions: a rule limiting stays in motels to 29 days, codified at § 3-2P-3, and a rule against residential uses in a designated commercial (or “C-3”) zone, codified at § 10-10-2. And even Cinnamon Hills does not purport to identify anything discriminatory about those rules, which make no mention of disabled persons, let alone discriminate against disabled persons on their face.

Because St. George did not rely upon § 10-5-3 in denying Cinnamon Hills’s request, that provision can be at most “direct evidence of ... bias” and not “direct evidence of discrimination.” Ramsey, 907 F.2d at 1008. To use § 10-5-3 as evidence, Cinnamon Hills must rely on the inference that whatever animus towards the disabled is evident on the face of § 10-5-3 also infected the city’s decision to deny the variance request at issue. And that logical leap places the evidence squarely in the indirect proof camp. See Wiltel, 81 F.3d at 1514 (“Statements which are merely expressions of personal opinion or bias do not constitute direct evidence of discrimination.”); Ramsey, 907 F.2d at 1008. To be sure, none of this is to say indirect evidence is unpersuasive or irrelevant. It is merely to say plaintiffs seeking to craft their cases from indirect evidence must satisfy the elements of the McDonnell Douglas burden shifting regime, which the Supreme Court devised specifically to address cases involving evidence of that sort. Id. at 1007-08.

Turning to that question, we agree with the district court that the circumstantial evidence Cinnamon Hills does present is insufficient as a matter of law to satisfy the first step of McDonnell Douglas. At that first step, Cinnamon Hills bears the obligation of coming forward with a prima facie case of discrimination, a case that must include evidence suggesting the city denied the variance because of the disability of Cinnamon Hills’s residents. Butler v. City of Prairie Village, 172 F.3d 736, 748 (10th Cir.1999). To meet this burden, Cinnamon Hills must produce evidence suggesting that the city denied to it zoning relief granted to similarly situated applicants without disabilities. Or, if there are no similarly situated non-disabled applicants, Cinnamon Hills must show the circumstances surrounding the denial of the variance support a reasonable inference that the city would have granted to an applicant without disabilities the relief it denied Cinnamon Hills. Id.; see also Almond v. Unified School Dist. No. 501, 665 F.3d 1174, 1181 (10th Cir.2011) (explaining requirements for a prima facie case under Title VII); Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

We agree with the district court that Cinnamon Hills has failed to show a similarly situated group has been granted zoning relief remotely like the requested vari*921anee. In fact, the only relief the city has granted from the 29 day motel stay rule according to Cinnamon Hills itself is for law enforcement, emergency personnel, and 24-hour business caretakers. No one else, with or without a disability, is exempt. And we agree with the district court that “[n]o reasonable jury could conclude that law enforcement and emergency personnel [or motel caretakers] are similarly situated to disabled youth.” D. Ct. Op. at 10. Cf. Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995) (to show intentional discrimination against handicapped residents of group homes, plaintiff was required to show “that group homes for the non-handicapped are permitted” in the city and are not subject to the same onerous requirements). To be sure, Cinnamon Hills points out that some people are allowed to live in C-3 zones: hospitals and nursing homes can locate there, and some buildings may be converted wholesale into condominiums. But there’s no evidence the city has ever allowed hospitals, nursing homes, or condominiums to open up for business on the top floor of an operating motel in violation of the 29 day rule. Without that, Cinnamon Hills lacks evidence that others have been granted the relief it was denied.

Neither has Cinnamon Hills presented evidence suggesting a reasonable likelihood that the city would grant a group of non-disabled applicants the relief it denied in this case. Cinnamon Hills argues that several other residential treatment facilities faced obstacles to establishing operations within St. George. But it fails to mention the city ultimately approved most of those facilities. See ROA at 549, 552. Alternatively, Cinnamon Hills cites a limited number of statements by city officials expressing concern that too many residential youth facilities exist in the city. Some of these officials, however, had no known role in the variance decision in this case. Some of the statements are fifteen or more years old. Such general statements suggesting bias, unattached to the variance at issue and made long ago, bear at best limited probative inferential value under our precedents. See Turner v. Pub. Serv. Co. of Colo. 563 F.3d 1136, 1144-45 (10th Cir.2009).

The same sort of problem recurs when Cinnamon Hills redirects our attention to § 10-5-3 and its relegation (absent variance) of new treatment facilities to rural areas. Even under McDonnell Douglas and at its first step Cinnamon Hills must show some causal “nexus” between evidence of general bias like that ostensibly reflected in § 10-5-3 and the challenged decision at issue in this case. See Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir.2000); Butler, 172 F.3d at 748. And this it has not done. As we have already seen, the record shows the city never relied on § 10-5-3 when denying the requested variance but chose to rest its decision and have it upheld or overturned on entirely other grounds. The evidence shows as well that the grounds the city did rely on (the 29 day rule and C-3 zoning restrictions) have been applied equally to those with and without disabilities. In fact, the record reveals that the most similarly situated non-disabled comparators Cinnamon Hills has identified are also categorically excluded from C-3 commercial zones: boarding schools and housing for colleges and trade schools open to the non-disabled, no less than residential treatment programs for the disabled, cannot locate there. St. George City Code § 10-5-2.2 *922In light of all this, we agree with the district court that the record does not support a reasonable inference that the city would have granted to non-disabled persons the particular and surely unusual relief of allowing a residential youth program on the top floor of an operating motel in a C-3 zone. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216-17 (11th Cir.2008) (“[E]vidence that neighbors and city officials are biased against recovering substance abusers” fails to make out a prima facie case “absent some indication that the recoverers were [or would have been] treated differently than non-recoverers”).3

Disparate Impact. Unlike a claim for disparate treatment, a claim for disparate impact doesn’t require proof of intentional discrimination. Mountain Side Mobile Estates P’ship v. Sec’y of Hous. & Urban Dev., 56 F.3d 1243, 1252 (10th Cir.1995). Even so, it has challenges of its own. To prove a case of disparate impact discrimination, the plaintiff must show that “a specific policy caused a significant disparate effect on a protected group.” Reinhart v. Lincoln Cnty., 482 F.3d 1225, 1229 (10th Cir.2007) (quotation omitted). This “is generally shown by statistical evidence ... involving] the appropriate compara-

bles” necessary to create a reasonable inference that any disparate effect identified was caused by the challenged policy and not other causal factors. Mountain Side Mobile Estates, 56 F.3d at 1253.

The district court held that Cinnamon Hills has produced no evidence of disparate impact, and again we agree. Cinnamon Hills offers no formal statistics or other evidence that might serve that need. It points again to the 29 day rule’s exception for law enforcement, and the limited exceptions we’ve already identified to the ban on residences in C-3 zones. But even putting aside whether the individuals covered by these exceptions are meaningful comparators, Cinnamon Hills faces a more fundamental problem. It has not identified any evidence that disabled individuals are less able to avail themselves of these exceptions than the non-disabled. And of course without evidence of a disparity, Cinnamon Hills cannot make out a disparate impact claim. See Reinhart, 482 F.3d at 1230.

Failure to Accommodate. A claim for reasonable accommodation is yet a different sort of animal. It does not require the plaintiff to prove that the challenged policy intended to discriminate or that in effect it *923works systematically to exclude the disabled. Instead, in the words of the FHA, a reasonable accommodation is required whenever it “may be necessary to afford [a disabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B) (emphasis added).

What does it mean to be “necessary”? The word implies more than something merely helpful or conducive. It suggests instead something “indispensable,” “essential,” something that “cannot be done without.” Oxford English Dictionary, vol. X at 276 (2d ed. 1989). What’s more, the FHA’s necessity requirement doesn’t appear in a statutory vacuum, but is expressly linked to the goal of “afford[ing] ... equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). And this makes clear that the object of the statute’s necessity requirement is a level playing field in housing for the disabled. Put simply, the statute requires accommodations that are necessary (or indispensable or essential) to achieving the objective of equal housing opportunities between those with disabilities and those without. See Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 605 (4th Cir.1997); Schwarz, 544 F.3d at 1227.

Of course, in some sense all reasonable accommodations treat the disabled not just equally but preferentially. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002). Think of the blind woman who obtains an exemption from a “no pets” policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs. But without an accommodation, those individuals cannot take advantage of the opportunity (available to those without disabilities) to live in those housing facilities. And they cannot because of conditions created by their disabilities. These examples show that under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining “the same ... opportunities that those without disabilities automatically enjoy.” Id. (second emphasis added).

But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense. So, for example, a city need not allow the construction of a group home for the disabled in a commercial area where nobody, disabled or otherwise, is allowed to live. See Bryant Woods Inn, 124 F.3d at 604; Wisconsin Cmty. Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir.2006) (en banc); Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 152 (2d Cir.1999).

And recognizing this necessarily marks the end of the road for Cinnamon Hills’s reasonable accommodation request. As we have already seen, no one, disabled or otherwise, is generally allowed to stay in a motel for more than 29 days or to reside in a C-3 commercial zone. To be sure, and as we have also seen, the city provides some limited exceptions to these rules (for law enforcement personnel and *924the like). But there is no evidence that the disabled, because of their disabilities, are any less able to take advantage of these exceptions than the non-disabled. Instead, the evidence shows that in seeking to occupy the top floor of a motel in a commercial zone,, Cinnamon Hills is seeking an opportunity that isn’t available to others rather than one that is. And that’s a result the statute does not compel.

Cinnamon Hills does not so much dispute this analysis on its own terms as to ask us to adopt an entirely different and more lenient legal standard. In its view, an accommodation should be held “necessary” anytime it would “provide!] direct amelioration of a disability’s effect.” Aplt. Br. at 54 (quoting Bryant Woods Inn, 124 F.3d at 604). And in this sense, Cinnamon Hills argues, the step-down facility is “necessary” because it would ease the transition of emotionally and mentally troubled youth from residential treatment back into society.

This interpretation, however, overlooks the statute’s language linking a defendant’s accommodation obligations to the goal of providing “equal opportunity to enjoy a dwelling.” On Cinnamon Hills’s view, defendants would be required to ameliorate any effect of a disability — even if doing so only affects the disabled person’s chances of getting a job or playing a sport and has nothing to do with enjoying a home. Under Cinnamon Hills’s reading, the Fair Housing Act would require landlords not just to accommodate disabilities affecting housing opportunities but to operate as a sort of clinic seeking to cure all ills. And that is not what the text or purpose of this statute requires.

What’s more, the cases from which Cinnamon Hills purports to extract its “amelioration” test actually hurt, not help, its cause. The primary case Cinnamon Hills relies on expressly holds that it is not just amelioration of any effect of the disability that demands accommodation, but only amelioration of those effects which preclude the disabled individual from availing himself of an otherwise available housing opportunity. See Bryant Woods Inn, 124 F.3d at 604. The other two cases Cinnamon . Hills hangs its hat on are Seventh Circuit cases that were about the “reasonableness” rather than the “necessity” requirement found in the FHA. And to whatever extent they might support Cinnamon Hills’s argument they have been supplanted by the en banc court’s decision in Wisconsin Community Services, which is entirely consistent with our disposition. See Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995); Dadian v. Village of Wilmette, 269 F.3d 831, 838 (7th Cir.2001).4

So it is that, in the end and after independent examination of the record and the law and each of the plaintiffs three theories of relief, we find ourselves in agreement with the district court’s disposition and conclude as a matter of law Cinnamon Hills has failed to adduce evidence sufficient to withstand summary judgment. The judgment of, the district court is affirmed.

*43Justice Rehnquist

delivered the opinion of the Court.

This case involves a constitutional challenge to a zoning ordinance, enacted by appellant city of Renton, Washington, that prohibits adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Appellees, Playtime Theatres, Inc., and Sea-First Properties, Inc., filed an action in the United States District Court for the Western District of Washington seeking a declaratory judgment that the Renton ordinance violated the First and Fourteenth Amendments and a permanent injunction against its enforcement. The District Court ruled in favor of Renton and denied the permanent injunction, but the Court of Appeals for the Ninth Circuit reversed and remanded for reconsideration. 748 F. 2d 527 (1984). We noted probable jurisdiction, 471 U. S. 1013 (1985), and now reverse the judgment of the Ninth Circuit.1

*44In May 1980, the Mayor of Renton, a city of approximately 32,000 people located just south of Seattle, suggested to the Renton City Council that it consider the advisability of enacting zoning legislation dealing with adult entertainment uses. No such uses existed in the city at that time. Upon the Mayor’s suggestion, the City Council referred the matter to the city’s Planning and Development Committee. The Committee held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney’s Office advising as to developments in other cities. The City Council, meanwhile, adopted Resolution No. 2368, which imposed a moratorium on the licensing of “any business . . . which . . . has as its primary purpose the selling, renting or showing of sexually explicit materials.” App. 43. The resolution contained a clause explaining that such businesses “would have a severe impact upon surrounding businesses and residences.” Id., at 42.

In April 1981, acting on the basis of the Planning and Development Committee’s recommendation, the City Council enacted Ordinance No. 3526. The ordinance prohibited any “adult motion picture theater” from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school. App. to Juris. Statement 79a. The term “adult motion picture theater” was defined as “[a]n enclosed building used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized] by an emphasis on matter depicting, describing or relating to ‘specified sexual activities’ or ‘specified anatomical areas’. . . for observation by patrons therein.” Id., at 78a.

*45In early 1982, respondents acquired two existing theaters in downtown Renton, with the intention of using them to exhibit feature-length adult films. The theaters were located within the area proscribed by Ordinance No. 3526. At about the same time, respondents filed the previously mentioned lawsuit challenging the ordinance on First and Fourteenth Amendment grounds, and seeking declaratory and injunctive relief. While the federal action was pending, the City Council amended the ordinance in several respects, adding a statement of reasons for its enactment and reducing the minimum distance from any school to 1,000 feet.

In November 1982, the Federal Magistrate to whom respondents’ action had been referred recommended the entry of a preliminary injunction against enforcement of the Renton ordinance and the denial of Renton’s motions to dismiss and for summary judgment. The District Court adopted the Magistrate’s recommendations and entered the preliminary injunction, and respondents began showing adult films at their two theaters in Renton. Shortly thereafter, the parties agreed to submit the case for a final decision on whether a permanent injunction should issue on the basis of the record as already developed.

The District Court then vacated the preliminary injunction, denied respondents’ requested permanent injunction, and entered summary judgment in favor of Renton. The court found that the Renton ordinance did not substantially restrict First Amendment interests, that Renton was not required to show specific adverse impact on Renton from the operation of adult theaters but could rely on the experiences of other cities, that the purposes of the ordinance were unrelated to the suppression of speech, and that the restrictions on speech imposed by the ordinance were no greater than necessary to further the governmental interests involved. Relying on Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and United States v. O’Brien, 391 U. S. 367 (1968), the court held that the Renton ordinance did not violate the First Amendment.

*46The Court of Appeals for the Ninth Circuit reversed. The Court of Appeals first concluded, contrary to the finding of the District Court, that the Renton ordinance constituted a substantial restriction on First Amendment interests. Then, using the standards set forth in United States v. O’Brien, supra, the Court of Appeals held that Renton had improperly relied on the experiences of other cities in lieu of evidence about the effects of adult theaters on Renton, that Renton had thus failed to establish adequately the existence of a substantial governmental interest in support of its ordinance, and that in any event Renton’s asserted interests had not been shown to be unrelated to the suppression of expression. The Court of Appeals remanded the case to the District Court for reconsideration of Renton’s asserted interests.

In our view, the resolution of this case is largely dictated by our decision in Young v. American Mini Theatres, Inc., supra. There, although five Members of the Court did not agree on a single rationale for the decision, we held that the city of Detroit’s zoning ordinance, which prohibited locating an adult theater within 1,000 feet of any two other “regulated uses” or within 500 feet of any residential zone, did not violate the First and Fourteenth Amendments. Id., at 72-73 (plurality opinion of Stevens, J., joined by Burger, C. J., and White and Rehnquist, JJ.); id., at 84 (Powell, J., concurring). The Renton ordinance, like the one in American Mini Theatres, does not ban adult theaters altogether, but merely provides that such theaters may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. The ordinance is therefore properly analyzed as a form of time, place, and manner regulation. Id., at 63, and n. 18; id., at 78-79 (Powell, J., concurring).

Describing the ordinance as a time, place, and manner regulation is, of course, only the first step in our inquiry. This Court has long held that regulations enacted for the *47purpose of restraining speech on the basis of its content presumptively violate the First Amendment. See Carey v. Brown, 447 U. S. 455, 462-463, and n. 7 (1980); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95, 98-99 (1972). On the other hand, so-called “content-neutral” time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication. See Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 807 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 647-648 (1981).

At first glance, the Renton ordinance, like the ordinance in American Mini Theatres, does not appear to fit neatly into either the “content-based” or the “content-neutral” category. To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community. The District Court found that the City Council’s “predominate concerns” were with the secondary effects of adult theaters, and not with the content of adult films themselves. App. to Juris. Statement 31a (emphasis added). But the Court of Appeals, relying on its decision in Tovar v. Billmeyer, 721 F. 2d 1260, 1266 (CA9 1983), held that this was not enough to sustain the ordinance. According to the Court of Appeals, if “a motivating factor” in enacting the ordinance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s decision. 748 F. 2d, at 537 (emphasis in original). This view of the law was rejected in United States v. O’Brien, 391 U. S., at 382-386, the very case that the Court of Appeals said it was applying:

*48“It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit, legislative motive. . . .

. . What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.” Id., at 383-384.

The District Court’s finding as to “predominate” intent, left undisturbed by the Court of Appeals, is more than adequate to establish that the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression. The ordinance by its terms is designed to prevent crime, protect the city’s retail trade, maintain property values, and generally “protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views. See App. to Juris. Statement 90a. As Justice Powell observed in American Mini Theatres, “[i]f [the city] had been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location.” 427 U. S., at 82, n. 4.

In short, the Renton ordinance is completely consistent with our definition of “content-neutral” speech regulations as those that “are justified without reference to the content of the regulated speech.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976) (emphasis added); Community for Creative Non-Violence, supra, at 293; International Society for Krishna Consciousness, supra, at 648. The ordinance does not contravene the fundamental principle that underlies our concern about “content-based” speech regulations: that “government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express *49less favored or more controversial views.” Mosley, supra, at 95-96.

It was with this understanding in mind that, in American Mini Theatres, a majority of this Court decided that, at least with respect to businesses that purvey sexually explicit materials,2 zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to “content-neutral” time, place, and manner regulations. Justice Stevens, writing for the plurality, concluded that the city of Detroit was entitled to draw a distinction between adult theaters and other kinds of theaters “without violating the government’s paramount obligation of neutrality in its regulation of protected communication,” 427 U. S., at 70, noting that “[i]t is th[e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive’ speech,” id., at 71, n. 34. Justice Powell, in concurrence, elaborated:

“[The] dissent misconceives the issue in this case by insisting that it involves an impermissible time, place, and manner restriction based on the content of expression. It involves nothing of the kind. We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings. . . . Moreover, even if this were a case involving a special governmental response to the content of one type of movie, it is possible that the result would be supported by a line of cases recognizing that the government can tailor its reaction to different types of speech according to the degree to which its special and overriding interests are implicated. *50See, e. g., Tinker v. Des Moines School Dist., 393 U. S. 503, 509-511 (1969); Procunier v. Martinez, 416 U. S. 396, 413-414 (1974); Greer v. Spock, 424 U. S. 828, 842-844 (1976) (Powell, J., concurring); cf. CSC v. Letter Carriers, 413 U. S. 548 (1973).” Id., at 82, n. 6.

The appropriate inquiry in this case, then, is whether the Renton ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. See Community for Creative Non-Violence, 468 U. S., at 293; International Society for Krishna Consciousness, 452 U. S., at 649, 654. It is clear that the ordinance meets such a standard. As a majority of this Court recognized in American Mini Theatres, a city’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect.” 427 U. S., at 71 (plurality opinion); see id., at 80 (Powell, J., concurring) (“Nor is there doubt that the interests furthered by this ordinance are both important and substantial”). Exactly the same vital governmental interests are at stake here.

The Court of Appeals ruled, however, that because the Renton ordinance was enacted without the benefit of studies specifically relating to “the particular problems or needs of Renton,” the city’s justifications for the ordinance were “con-clusory and speculative.” 748 F. 2d, at 537. We think the Court of Appeals imposed on the city an unnecessarily rigid burden of proof. The record in this case reveals that Renton relied heavily on the experience of, and studies produced by, the city of Seattle. In Seattle, as in Renton, the adult theater zoning ordinance was aimed at preventing the secondary effects caused by the presence of even one such theater in a given neighborhood. See Northend Cinema, Inc. v. Seattle, 90 Wash. 2d 709, 585 P. 2d 1153 (1978). The opinion of the Supreme Court of Washington in Northend Cinema, which *51was before the Renton City Council when it enacted the ordinance in question here, described Seattle’s experience as follows:

“The amendments to the City’s zoning code which are at issue here are the culmination of a long period of study and discussion of the problems of adult movie theaters in residential areas of the City. . . . [T]he City’s Department of Community Development made a study of the need for zoning controls of adult theaters .... The study analyzed the City’s zoning scheme, comprehensive plan, and land uses around existing adult motion picture theaters. . . .” Id., at 711, 585 P. 2d, at 1155.

“[T]he [trial] court heard extensive testimony regarding the history and purpose of these ordinances. It heard expert testimony on the adverse effects of the presence of adult motion picture theaters on neighborhood children and community improvement efforts. The court’s detailed findings, which include a finding that the location of adult theaters has a harmful effect on the area and contribute to neighborhood blight, are supported by substantial evidence in the record.” Id., at 713, 585 P. 2d, at 1156.

“The record is replete with testimony regarding the effects of adult movie theater locations on residential neighborhoods.” Id., at 719, 585 P. 2d, at 1159.

We hold that Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the “detailed findings” summarized in the Washington Supreme Court’s Northend Cinema opinion, in enacting its adult theater zoning ordinance. The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the *52problem that the city addresses. That was the case here. Nor is our holding affected by the fact that Seattle ultimately chose a different method of adult theater zoning than that chosen by Renton, since Seattle’s choice of a different remedy to combat the secondary effects of adult theaters does not call into question either Seattle’s identification of those secondary effects or the relevance of Seattle’s experience to Renton.

We also find no constitutional defect in the method chosen by Renton to further its substantial interests. Cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton. “It is not our function to appraise the wisdom of [the city’s] decision to require adult theaters to be separated rather than concentrated in the same areas. . . . [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.” American Mini Theatres, 427 U. S., at 71 (plurality opinion). Moreover, the Renton ordinance is “narrowly tailored” to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad v. Mount Ephraim, 452 U. S. 61 (1981), and Erznoznik, v. City of Jacksonville, 422 U. S. 205 (1975).

Respondents contend that the Renton ordinance is “under-inclusive,” in that it fails to regulate other kinds of adult businesses that are likely to produce secondary effects similar to those produced by adult theaters. On this record the contention must fail. There is no evidence that, at the time the Renton ordinance was enacted, any other adult business was located in, or was contemplating moving into, Renton. In fact, Resolution No. 2368, enacted in October 1980, states that “the City of Renton does not, at the present time, have any business whose primary purpose is the sale, rental, or showing of sexually explicit materials.” App. 42. That Renton chose first to address the potential problems created *53by one particular kind of adult business in no way suggests that the city has “singled out” adult theaters for discriminatory treatment. We simply have no basis on this record for assuming that Renton will not, in the future, amend its ordinance to include other kinds of adult businesses that have been shown to produce the same kinds of secondary effects as adult theaters. See Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955).

Finally, turning to the question whether the Renton ordinance allows for reasonable alternative avenues of communication, we note that the ordinance leaves some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites. The District Court found, and the Court of Appeals did not dispute the finding, that the 520 acres of land consists of “[a]mple, accessible real estate,” including “acreage in all stages of development from raw land to developed, industrial, warehouse, office, and shopping space that is criss-crossed by freeways, highways, and roads.” App. to Juris. Statement 28a.

Respondents argue, however, that some of the land in question is already occupied by existing businesses, that “practically none” of the undeveloped land is currently for sale or lease, and that in general there are no “commercially viable” adult theater sites within the 520 acres left open by the Renton ordinance. Brief for Appellees 34-37. The Court of Appeals accepted these arguments,3 concluded that *54the 520 acres was not truly “available” land, and therefore held that the Renton ordinance “would result in a substantial restriction” on speech. 748 F. 2d, at 534.

We disagree with both the reasoning and the conclusion of the Court of Appeals. That respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation. And although we have cautioned against the enactment of zoning regulations that have “the effect of suppressing, or greatly restricting access to, lawful speech,” American Mini Theatres, 427 U. S., at 71, n. 35 (plurality opinion), we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices. See id., at 78 (Powell, J., concurring) (“The inquiry for First Amendment purposes is not concerned with economic impact”). In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement.

In sum, we find that the Renton ordinance represents a valid governmental response to the “admittedly serious problems” created by adult theaters. See id., at 71 (plurality opinion). Renton has not used “the power to zone as a pretext for suppressing expression,” id., at 84 (Powell, J., concurring), but rather has sought to make some areas available for adult theaters and their patrons, while at the same time preserving the quality of life in the community at large by preventing those theaters from locating in other areas. This, after all, is the essence of zoning. Here, as in American Mini Theatres, the city has enacted a zoning ordinance that meets these goals while also satisfying the dictates of the *55First Amendment.4 The judgment of the Court of Appeals is therefore

Reversed.

Justice Blackmun concurs in the result.

Justice Brennan,

with whom Justice Marshall joins, dissenting.

Renton’s zoning ordinance selectively imposes limitations on the location of á movie theater based exclusively on the content of the films shown there. The constitutionality of the ordinance is therefore not correctly analyzed under standards applied to content-neutral time, place, and manner restrictions. But even assuming that the ordinance may fairly be characterized as content neutral, it is plainly unconstitutional under the standards established by the decisions of this Court. Although the Court’s analysis is limited to *56cases involving “businesses that purvey sexually explicit materials,” ante, at 49, and n. 2, and thus does not affect our holdings in cases involving state regulation of other kinds of speech, I dissent.

I

“[A] constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 536 (1980). The Court asserts that the ordinance is “aimed not at the content of the films shown at ‘adult motion picture theatres,’ but rather at the secondary effects of such theaters on the surrounding community,” ante, at 47 (emphasis in original), and thus is simply a time, place, and manner regulation.1 This analysis is misguided.

The fact that adult movie theaters may cause harmful “secondary” land-use effects may arguably give Renton a compelling reason to regulate such establishments; it does not mean, however, that such regulations are content neutral. *57Because the ordinance imposes special restrictions on certain kinds of speech on the basis of content, I cannot simply accept, as the Court does, Renton’s claim that the ordinance was not designed to suppress the content of adult movies. “[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited ‘merely because public officials disapprove the speaker’s views.’” Consolidated Edison Co., supra, at 536 (quoting Niemotko v. Maryland, 340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result)). “[B]efore deferring to [Renton’s] judgment, [we] must be convinced that the city is seriously and comprehensively addressing” secondary land-use effects associated with adult movie theaters. Metromedia, Inc. v. San Diego, 453 U. S. 490, 531 (1981) (Brennan, J., concurring in judgment). In this case, both the language of the ordinance and its dubious legislative history belie the Court’s conclusion that “the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression.” Ante, at 48.

A

The ordinance discriminates on its face against certain forms of speech based on content. Movie theaters specializing in “adult motion pictures” may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school. Other motion picture theaters, and other forms of “adult entertainment,” such as bars, massage parlors, and adult bookstores, are not subject to the same restrictions. This selective treatment strongly suggests that Renton was interested not in controlling the “secondary effects” associated with adult businesses, but in discriminating against adult theaters based on the content of the films they exhibit. The Court ignores this discriminatory treatment, declaring that Renton is free “to address the potential problems created by one particular kind of adult business,” ante, at 52-53, and to amend the ordinance in the *58future to include other adult enterprises. Ante, at 53 (citing Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955)).2 However, because of the First Amendment interests at stake here, this one-step-at-a-time analysis is wholly inappropriate.

“This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. ‘[Ajbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ Police Dept. of Chicago v. Mosley, 408 U. S., at 95.” Erznoznik v. City of Jacksonville, 422 U. S. 205, 215 (1975).

In this case, the city has not justified treating adult movie theaters differently from other adult entertainment businesses. The ordinance’s under inclusiveness is cogent evidence that it was aimed at the content of the films shown in adult movie theaters.

B

Shortly after this lawsuit commenced, the Renton City Council amended the ordinance, adding a provision explaining that its intention in adopting the ordinance had been “to promote the City of Renton’s great interest in protecting and preserving the quality of its neighborhoods, commercial districts, and the quality of urban life through effective land *59use planning.” App. to Juris. Statement 81a. The amended ordinance also lists certain conclusory “findings” concerning adult entertainment land uses that the Council purportedly relied upon in adopting the ordinance. Id., at 81a-86a. The city points to these provisions as evidence that the ordinance was designed to control the secondary effects associated with adult movie theaters, rather than to suppress the content of the films they exhibit. However, the “legislative history” of the ordinance strongly suggests otherwise.

Prior to the amendment, there was no indication that the ordinance was designed to address any “secondary effects” a single adult theater might create. In addition to the suspiciously coincidental timing of the amendment, many of the City Council’s “findings” do not relate to legitimate land-use concerns. As the Court of Appeals observed, “[b]oth the magistrate and the district court recognized that many of the stated reasons for the ordinance were no more than expressions of dislike for the subject matter.” 748 F. 2d 527, 537 (CA9 1984).3 That some residents may be offended by the content of the films shown at adult movie theaters cannot form the basis for state regulation of speech. See Terminiello v. Chicago, 337 U. S. 1 (1949).

Some of the “findings” added by the City Council do relate to supposed “secondary effects” associated with adult movie *60theaters.4 However, the Court cannot, as it does, merely accept these post hoc statements at face value. “[T]he presumption of validity that traditionally attends a local government’s exercise of its zoning powers carries little, if any, weight where the zoning regulation trenches on rights of expression protected under the First Amendment.” Schad v. Mount Ephraim, 452 U. S. 61, 77 (1981) (Blackmun, J., concurring). As the Court of Appeals concluded, “[t]he record presented by Renton to support its asserted interest in enacting the zoning ordinance is very thin.” 748 F. 2d, at 536.

The amended ordinance states that its “findings” summarize testimony received by the City Council at certain public hearings. While none of this testimony was ever recorded or preserved, a city official reported that residents had objected to having adult movie theaters located in their community. However, the official was unable to recount any testimony as to how adult movie theaters would specifically affect the schools, churches, parks, or residences “protected” by the ordinance. See App. 190-192. The City Council conducted no studies, and heard no expert testimony, on how the protected uses would be affected by the presence of an adult movie theater, and never considered whether residents’ concerns could be met by “restrictions that are less intrusive on protected forms of expression.” Schad, supra, at 74. As a result, any “findings” regarding “secondary effects” caused by adult movie theaters, or the need to adopt specific locational requirements to combat such effects, were not “findings!’ at all, but purely speculative conclusions. Such “findings” were not such as are required to justify the bur*61dens the ordinance imposed upon constitutionally protected expression.

The Court holds that Renton was entitled to rely on the experiences of cities like Detroit and Seattle, which had enacted special zoning regulations for adult entertainment businesses after studying the adverse effects caused by such establishments. However, even assuming that Renton was concerned with the same problems as Seattle and Detroit, it never actually reviewed any of the studies conducted by those cities. Renton had no basis for determining if any of the “findings” made by these cities were relevant to Renton’s problems or needs.5 Moreover, since Renton ultimately adopted zoning regulations different from either Detroit or Seattle, these “studies” provide no basis for assessing the effectiveness of the particular restrictions adopted under the ordinance.6 Renton cannot merely rely on the general ex*62periences of Seattle or Detroit, for it must “justify its ordinance in the context of Renton’s problems — not Seattle’s or Detroit’s problems.” 748 F. 2d, at 536 (emphasis in original).

In sum, the circumstances here strongly suggest that the ordinance was designed to suppress expression, even that constitutionally protected, and thus was not to be analyzed as a content-neutral time, place, and manner restriction. The Court allows Renton to conceal its illicit motives, however, by reliance on the fact that other communities adopted similar restrictions. The Court’s approach largely immunizes such measures from judicial scrutiny, since a municipality can readily find other municipal ordinances to rely upon, thus always retrospectively justifying special zoning regulations for adult theaters.7 Rather than speculate about Renton’s motives for adopting such measures, our cases require the conclusion that the ordinance, like any other content-based restriction on speech, is constitutional “only if the [city] can show that [it] is a precisely drawn means of serving a compelling [governmental] interest.” Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S., at 540; see also Carey v. Brown, 447 U. S. 455, 461-462 (1980); Police Department of Chicago v. Mosley, 408 U. S. 92, 99 (1972). Only this strict approach can insure that cities will not use their zoning powers as a pretext for suppressing constitutionally protected expression.

*63Applying this standard to the facts of this case, the ordinance is patently unconstitutional. Renton has not shown that locating adult movie theaters in proximity to its churches, schools, parks, and residences will necessarily result in undesirable “secondary effects,” or that these problems could not be effectively addressed by less intrusive restrictions.

I — I HH

Even assuming that the ordinance should be treated like a content-neutral time, place, and manner restriction, I would still find it unconstitutional. “[Restrictions of this kind are valid provided . . . that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 648 (1981). In applying this standard, the Court “fails to subject the alleged interests of the [city] to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of unnecessary limitations.” Community for Creative Non-Violence, 468 U. S., at 301 (Marshall, J., dissenting). The Court “evidently [and wrongly] assumes that the balance struck by [Renton] officials is deserving of deference so long as it does not appear to be tainted by content discrimination.” Id., at 315. Under a proper application of the relevant standards, the ordinance is clearly unconstitutional.

A

The Court finds that the ordinance was designed to further Renton’s substantial interest in “preserving] the quality of urban life.” Ante, at 50. As explained above, the record here is simply insufficient to support this assertion. The city made no showing as to how uses “protected” by the ordinance would be affected by the presence of an adult movie theater. Thus, the Renton ordinance is clearly distinguishable from *64the Detroit zoning ordinance upheld in Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). The Detroit ordinance, which was designed to disperse adult theaters throughout the city, was supported by the testimony of urban planners and real estate experts regarding the adverse effects of locating several such businesses in the same neighborhood. Id., at 55; see also Northend Cinema, Inc. v. Seattle, 90 Wash. 2d 709, 711, 585 P. 2d 1153, 1154-1155 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U. S. 946 (1979) (Seattle zoning ordinance was the “culmination of a long period of study and discussion”). Here, the Renton Council was aware only that some residents had complained about adult movie theaters, and that other localities had adopted special zoning restrictions for such establishments. These are not “facts” sufficient to justify the burdens the ordinance imposed upon constitutionally protected expression.

B

Finally, the ordinance is invalid because it does not provide for reasonable alternative avenues of communication. The District Court found that the ordinance left 520 acres in Ren-ton available for adult theater sites, an area comprising about five percent of the city. However, the Court of Appeals found that because much of this land was already occupied, “[limiting adult theater uses to these areas is a substantial restriction on speech.” 748 F. 2d, at 534. Many “available” sites are also largely unsuited for use by movie theaters. See App. 231, 241. Again, these facts serve to distinguish this case from American Mini Theatres, where there was no indication that the Detroit zoning ordinance seriously limited the locations available for adult businesses. See American Mini Theatres, supra, at 71, n. 35 (plurality opinion) (“The situation would be quite different if the ordinance had the effect of. . . greatly restricting access to . . . lawful speech”); see also Basiardanes v. City of Galveston, 682 F. 2d 1203, 1214 (CA5 1982) (ordinance effectively banned adult theaters *65by restricting them to “ ‘the most unattractive, inaccessible, and inconvenient areas of a city’”); Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207, 1217 (ND Ga. 1981) (proposed sites for adult entertainment uses were either “unavailable, unusable, or so inaccessible to the public that . . . they amount to no locations”).

Despite the evidence in the record, the Court reasons that the fact “[t]hat respondents must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.” Ante, at 54. However, respondents are not on equal footing with other prospective purchasers and lessees, but must conduct business under severe restrictions not imposed upon other establishments. The Court also argues that the First Amendment does not compel “the government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.” Ibid. However, respondents do not ask Renton to guarantee low-price sites for their businesses, but seek only a reasonable opportunity to operate adult theaters in the city. By denying them this opportunity, Renton can effectively ban a form of protected speech from its borders. The ordinance “greatly restrict[s] access to . . . lawful speech,” American Mini Theatres, supra, at 71, n. 35 (plurality opinion), and is plainly unconstitutional.

*429Justice O’Connor

announced the judgment of the Court and delivered an opinion,

in which The Chief Justice, Justice Scalia, and Justice Thomas join.

Los Angeles Municipal Code § 12.70(C) (1983), as amended, prohibits “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.” Respondents, two adult establishments that each operated an adult bookstore and an adult video arcade in the same building, filed a suit under Rev. Stat. § 1979,42 U. S. C. § 1983 (1994 ed., Supp. V), alleging that § 12.70(C) violates the First Amendment and seeking declaratory and injunctive relief. The District Court granted summary judgment to respondents, finding that the city of Los Angeles’ prohibition was a content-based regulation of speech that failed strict scrutiny. The Court of Appeals for the Ninth Circuit affirmed, but on different grounds. It held that, even if § 12.70(C) were a content-neutral regulation, the city failed to demonstrate that the *430prohibition was designed to serve a substantial government interest. Specifically, the Court of Appeals found that the city failed to present evidence upon which it could reasonably rely to demonstrate a link between multiple-use adult establishments and negative secondary effects. Therefore, the Court of Appeals held the Los Angeles prohibition on such establishments invalid under Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), and its precedents interpreting that case. 222 F. 3d 719, 723-728 (2000). We reverse and remand. The city of Los Angeles may reasonably rely on a study it conducted some years before enacting the present version of § 12.70(C) to demonstrate that its ban on multiple-use adult establishments serves its interest in reducing crime.

I

In 1977, the city of Los Angeles conducted a comprehensive study of adult establishments and concluded that concentrations of adult businesses are associated with higher rates of prostitution, robbery, assaults, and thefts in surrounding communities. See App. 35-162 (Los Angeles Dept. of City Planning, Study of the Effects of the Concentration of Adult Entertainment Establishments in the City of Los Angeles (City Plan Case No. 26475, City Council File No. 74-4521-S.3, June 1977)). Accordingly, the city enacted an ordinance prohibiting the establishment, substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters within 1,000 feet of another such enterprise or within 500 feet of any religious institution, school, or public park. See Los Angeles Municipal Code § 12.70(C) (1978).

There is evidence that the intent of the city council when enacting this prohibition was not only to disperse distinct adult establishments housed in separate buildings, but also to disperse distinct adult businesses operated under common ownership and housed in a single structure. See App. 29 *431(Los Angeles Dept, of City Planning, Amendment — Proposed Ordinance to Prohibit the Establishment of More than One Adult Entertainment Business at a Single Location (City Plan Case No. 26475, City Council File No. 82-0155, Jan. 18, 1983)). The ordinance the city enacted, however, directed that “[t]he distance between any two adult entertainment businesses shall be measured in a straight line . . . from the closest exterior structural wall of each business.” Los Angeles Municipal Code § 12.70(D) (1978). Subsequent to enactment, the city realized that this method of calculating distances created a loophole permitting the concentration of multiple adult enterprises in a single structure.

Concerned that allowing an adult-oriented department store to replace a strip of adult establishments could defeat the goal of the original ordinance, the city council amended § 12.70(C) by adding a prohibition on “the establishment or maintenance of more than one adult entertainment business in the same building, structure or portion thereof.” Los Angeles Municipal Code § 12.70(C) (1983). The amended ordinance defines an “Adult Entertainment Business” as an adult arcade, bookstore, cabaret, motel, theater, or massage parlor or a place for sexual encounters, and notes that each of these enterprises “shall constitute a separate adult entertainment business even if operated in conjunction with another adult entertainment business at the same establishment.” § 12.70(B)(17). The ordinance uses the term “business” to refer to certain types of goods or services sold in adult establishments, rather than the establishment itself. Relevant for purposes of this case are also the ordinance’s definitions of adult bookstores and arcades. An “Adult Bookstore” is an operation that “has as a substantial portion of its stock-in-trade and offers for sale” printed matter and videocassettes that emphasize the depiction of specified sexual activities. § 12.70(B)(2)(a). An adult arcade is an operation where, “for any form of consideration,” five or fewer patrons together may view films or videocassettes *432that emphasize the depiction of specified sexual activities. § 12.70(B)(1).

Respondents, Alameda Books, Inc., and Highland Books, Inc., are two adult establishments operating in Los Angeles. Neither is located within 1,000 feet of another adult establishment or 500 feet of any religious institution, public park, or school. Each establishment occupies less than 3,000 square feet. Both respondents rent and sell sexually oriented products, including videocassettes. Additionally, both provide booths where patrons can view videoeassettes for a fee. Although respondents are located in different buildings, each operates its retail sales and rental operations in the same commercial space in which its video booths are located. There are no physical distinctions between the different operations within each establishment and each establishment has only one entrance. 222 F. 3d, at 721. Respondents concede they are openly operating in violation of § 12.70(C) of the city’s code, as amended. Brief for Respondents 7; Brief for Petitioner 9.

After a city building inspector found in 1995 that Alameda Books, Inc., was operating both as an adult bookstore and an adult arcade in violation of the city’s adult zoning regulations, respondents joined as plaintiffs and sued under 42 U. S. C. § 1983 for declaratory and injunctive relief to prevent enforcement of the ordinance. 222 F. 3d, at 721. At issue in this case is count I of the complaint, which alleges a facial violation of the First Amendment. Both the city and respondents filed cross-motions for summary judgment.

The District Court for the Central District of California initially denied both motions on the First Amendment issues in count I, concluding that there was “a genuine issue of fact whether the operation of a combination video rental and video viewing business leads to the harmful secondary effects associated with a concentration of separate businesses in a single urban area.” App. 255. After respondents filed a motion for reconsideration, however, the District *433Court found that Los Angeles’ prohibition on multiple-use adult establishments was not a content-neutral regulation of speech. App. to Pet. for Cert. 51. It reasoned that neither the city’s 1977 study nor a report cited in Hart Book Stores v. Edmisten, 612 F. 2d 821 (CA4 1979) (upholding a North Carolina statute that also banned multiple-use adult establishments), supported a reasonable belief that multiple-use adult establishments produced the secondary effects the city asserted as content-neutral justifications for its prohibition. App. to Pet. for Cert. 34-47. Therefore, the District Court proceeded to subject the Los Angeles ordinance to strict scrutiny. Because it felt that the city did not offer evidence to demonstrate that its prohibition is necessary to serve a compelling government interest, the District Court granted summary judgment for respondents and issued a permanent injunction enjoining the enforcement of the ordinance against respondents. Id., at 51.

The Court of Appeals for the Ninth Circuit affirmed, although on different grounds. The Court of Appeals determined that it did not have to reach the District Court’s decision that the Los Angeles ordinance was content based because, even if the ordinance were content neutral, the city failed to present evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments is “designed to serve” the city’s substantial interest in reducing crime. The challenged ordinance was therefore invalid under Renton, 475 U. S. 41. 222 F. 3d, at 723-724. We granted certiorari, 532 U. S. 902 (2001), to clarify the standard for determining whether an ordinance serves a substantial government interest under Renton, supra.

II

In Renton v. Playtime Theatres, Inc., supra, this Court considered the validity of a municipal ordinance that prohibited any adult movie theater from locating within 1,000 feet of any residential zone, family dwelling, church, park, *434or school. Our analysis of the ordinance proceeded in three steps. First, we found that the ordinance did not ban adult theaters altogether, but merely required that they be distanced from certain sensitive locations. The ordinance was properly analyzed, therefore, as a time, place, and manner regulation. Id., at 46. We next considered whether the ordinance was content neutral or content based. If the regulation were content based, it would be considered presumptively invalid and subject to strict scrutiny. Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115, 1x 18 (1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230-231 (1987). We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely, at crime rates, property values, and the quality of the city’s neighborhoods. Therefore, the ordinance was deemed content neutral. Renton, supra, at 47-49. Finally, given this finding, we stated that the ordinance would be upheld so long as the city of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. 475 U. S., at 50. We concluded that Renton had met this burden, and we upheld its ordinance. Id., at 51-54.

The Court of Appeals applied the same analysis to evaluate the Los Angeles ordinance challenged in this case. First, the Court of Appeals found that the Los Angeles ordinance was not a complete ban on adult entertainment establishments, but rather a sort of adult zoning regulation, which Renton considered a time, place, and manner regulation. 222 F. 3d, at 723. The Court of Appeals turned to the second step of the Renton analysis, but did not draw any conclusions about whether the Los Angeles ordinance was content based. It explained that, even if the Los Angeles ordinance were content neutral, the city had failed to demon*435strate, as required by the third step of the Renton analysis, that its prohibition on multiple-use adult establishments was designed to serve its substantial interest in reducing crime. The Court of Appeals noted that the primary evidence relied upon by Los Angeles to demonstrate a link between combination adult businesses and harmful secondary effects was the 1977 study conducted by the city’s planning department. The Court of Appeals found, however, that the city could not rely on that study because it did not “ ‘supporft] a reasonable belief that [the] combination [of] businesses . . . produced harmful secondary effects of the type asserted.’ ” 222 F. 3d, at 724. For similar reasons, the Court of Appeals also rejected the city’s attempt to rely on a report on health conditions inside adult video arcades described in Hart Book Stores, supra, a case that upheld a North Carolina statute similar to the Los Angeles ordinance challenged in this case.

The central component of the 1977 study is a report on city crime patterns provided by the Los Angeles Police Department. That report indicated that, during the period from 1965 to 1975, certain crime rates grew much faster in Hollywood, which had the largest concentration of adult establishments in the city, than in the city of Los Angeles as a whole. For example, robberies increased 3 times faster and prostitution 15 times faster in Hollywood than citywide. App. 124-125.

The 1977 study also contains reports conducted directly by the staff of the Los Angeles Planning Department that examine the relationship between adult establishments and property values. These staff reports, however, are inconclusive. Not surprisingly, the parties focus their dispute before this Court on the report by the Los Angeles Police Department. Because we find that reducing crime is a substantial government interest and that the police department report’s conclusions regarding crime patterns may reasonably be relied upon to overcome summary judgment against *436the city, we also focus on the portion of the 1977 study drawn from the police department report.

The Court of Appeals found that the 1977 study did not reasonably support the inference that a concentration of adult operations within a single adult establishment produced greater levels of criminal activity because the study focused on the effect that a concentration of establishments — not a concentration of operations within a single establishment — had on crime rates. The Court of Appeals pointed out that the study treated combination adult bookstore/arcades as single establishments and did not study the effect of any separate-standing adult bookstore or arcade. 222 F. 3d, at 724.

The Court of Appeals misunderstood the implications of the 1977 study. While the study reveals that areas with high concentrations of adult establishments are associated with high crime rates, areas with high concentrations of adult establishments are also areas with high concentrations of adult operations, albeit each in separate establishments. It was therefore consistent with the findings of the 1977 study, and thus reasonable, for Los Angeles to suppose that a concentration of adult establishments is correlated with high crime rates because a concentration of operations in one locale draws, for example, a greater concentration of adult consumers to the neighborhood, and a high density of such consumers either attracts or generates criminal activity. The assumption behind this theory is that having a number of adult operations in one single adult establishment draws the same dense foot traffic as having a number of distinct adult establishments in close proximity, much as minimalls and department stores similarly attract the crowds of consumers. Brief for Petitioner 28. Under this view, it is rational for the city to infer that reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.

*437Neither the Court of Appeals, nor respondents, nor the dissent provides any reason to question the city’s theory. In particular, they do not offer a competing theory, let alone data, that explains why the elevated crime rates in neighborhoods with a concentration of adult establishments can be attributed entirely to the presence of permanent walls between, and separate entrances to, each individual adult operation. While the city certainly bears the burden of providing evidence that supports a link between concentrations of adult operations and asserted secondary effects, it does not bear the burden of providing evidence that rules out every theory for the link between concentrations of adult establishments that is inconsistent with its own.

The error that the Court of Appeals made is that it required the city to prove that its theory about a concentration of adult operations attracting crowds of customers, much like a minimall or department store does, is a necessary consequence of the 1977 study. For example, the Court of Appeals refused to allow the city to draw the inference that “the expansion of an adult bookstore to include an adult arcade would increase” business activity and “produce the harmful secondary effects identified in the Study.” 222 F. 3d, at 726. It reasoned that such an inference would justify limits on the inventory of an adult bookstore, not a ban on the combination of an adult bookstore and an adult arcade. The Court of Appeals simply replaced the city’s theory — that having many different operations in close proximity attracts crowds — with its own — that the size of an operation attracts crowds. If the Court of Appeals’ theory is correct, then inventory limits make more sense. If the city’s theory is correct, then a prohibition on the combination of businesses makes more sense. Both theories are consistent with the data in the 1977 study. The Court of Appeals’ analysis, however, implicitly requires the city to prove that its theory is the only one that can plausibly explain the data *438because only in this manner can the city refute the Court of Appeals’ logic.

Respondents make the same logical error as the Court of Appeals when they suggest that the city’s prohibition on multiuse establishments will raise crime rates in certain neighborhoods because it will force certain adult businesses to relocate to areas without any other adult businesses. Respondents’ claim assumes that the 1977 study proves that all adult businesses, whether or not they are located near other adult businesses, generate crime. This is a plausible reading of the results from the 1977 study, but respondents do not demonstrate that it is a compelled reading. Nor do they provide evidence that refutes the city’s interpretation of the study, under which the city’s prohibition should on balance reduce crime. If this Court were nevertheless to accept respondents’ speculation, it would effectively require that the city provide evidence that not only supports the claim that its ordinance serves an important government interest, but also does not provide support for any other approach to serve that interest.

In Renton, we specifically refused to set such a high bar for municipalities that want to address merely the secondary effects of protected speech. We held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. 475 U. S., at 51-52; see also, e. g., Barnes v. Glen Theatre, Inc., 501 U. S. 560, 584 (1991) (Souter, J., concurring in judgment) (permitting municipality to use evidence that adult theaters are correlated with harmful secondary effects to support its claim that nude dancing is likely to produce the same effects). This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the munici*439pality’s evidence does not support its rationale or by furnishing evidence that disputes the municipality’s factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. See, e. g., Erie v. Pap’s A. M., 529 U. S. 277, 298 (2000) (plurality opinion). This case is at a very early stage in this process. It arrives on a summary judgment motion by respondents defended only by complaints that the 1977 study fails to prove that the city’s justification for its ordinance is necessarily correct. Therefore, we conclude that the city, at this stage of the litigation, has complied with the evidentiary requirement in Renton.

Justice Souter faults the city for relying on the 1977 study not because the study fails to support the city’s theory that adult department stores, like adult minimalls, attract customers and thus crime, but because the city does not demonstrate that freestanding single-use adult establishments reduce crime. See post, at 460-462 (dissenting opinion). In effect, Justice ¿outer asks the city to demonstrate, not merely by appeal to common sense, but also with empirical data, that its ordinance will successfully lower crime. Our cases have never required-that municipalities make such a showing, certainly not without actual and convincing evidence from plaintiffs to the contrary. See, e. g., Barnes, supra, at 583-584 (Souter, J., concurring in judgment). Such a requirement would go too far in undermining our settled position that municipalities must be given a “ ‘reasonable opportunity to experiment with solutions’ ” to address the secondary effects of protected speech. Renton, supra, at 52 (quoting Young v. American Mini Theatres, Inc., 427 U. S. 50, 71 (1976) (plurality opinion)). A municipality considering an innovative solution may not have data that could demonstrate the efficacy of its proposal because *440the solution would, by definition, not have been implemented previously. The city’s ordinance banning multiple-use adult establishments is such a solution. Respondents contend that there are no adult video arcades in Los Angeles County that operate independently of adult bookstores. See Brief for Respondents 41. But without such arcades, the city does not have a treatment group to compare with the control group of multiple-use adult establishments, and without such a comparison Justice Souter would strike down the city’s ordinance. This leaves the city with no means to address the secondary effects with which it is concerned.

Our deference to the evidence presented by the city of Los Angeles is the product of a careful balance between competing interests. On the one hand, we have an “obligation to exercise independent judgment when First Amendment rights are implicated.” Turner Broadcasting System,, Inc. v. FCC, 512 U. S. 622, 666 (1994) (plurality opinion); see also Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843-844 (1978). On the other hand, we must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems. See Turner, supra, at 665-666; Erie, supra, at 297-298 (plurality opinion). We are also guided by the fact that Renton requires that municipal ordinances receive only intermediate scrutiny if they are content neutral. 475 U. S., at 48-50. There is less reason to be concerned that municipalities will use these ordinances to discriminate against unpopular speech. See Erie, supra, at 298-299.

Justice Souter would have us rethink this balance, and indeed the entire Renton framework. In Renton, the Court distinguished the inquiry into whether a municipal ordinance is content neutral from the inquiry into whether it is “designed to serve a substantial government interest and do not unreasonably limit alternative avenues of communication.” 475 U. S., at 47-54. The former requires courts to verify that the “predominate concerns” motivating the *441ordinance “were with the secondary effects of adult [speech], and not with the content of adult [speech].” Id., at 47 (emphasis deleted). The latter inquiry goes one step further and asks whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance. Only at this stage did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects. Id., at 50-52. Justice Souter would either merge these two inquiries or move the eviden-tiary analysis into the inquiry on content neutrality, and raise the evidentiary bar that a municipality must pass. His logic is that verifying that the ordinance actually reduces the secondary effects asserted would ensure that zoning regulations are not merely content-based regulations in disguise. See post, at 457-458.

We think this proposal unwise. First, none of the parties request the Court to depart from the Renton framework. Nor is the proposal fairly encompassed in the question presented, which focuses on the sorts of evidence upon which the city may rely to demonstrate that its ordinance is designed to serve a substantial governmental interest. Pet. for Cert. i. Second, there is no evidence suggesting that courts have difficulty determining whether municipal ordinances are motivated primarily by the content of adult speech or by its secondary effects without looking to evidence connecting such speech to the asserted secondary effects. In this case, the Court of Appeals has not yet had an opportunity to address the issue, having assumed for the sake of argument that the city’s ordinance is content neutral. 222 F. 3d, at 723. It would be inappropriate for this Court to reach the question of content neutrality before permitting the lower court to pass upon it. Finally, Justice Souter does not clarify the sort of evidence upon which municipalities may rely to meet the evidentiary burden he would require. It is easy to say that courts must demand evidence *442when “common experience” or “common assumptions” are incorrect, see post, at 459, but it is difficult for courts to know ahead of time whether that condition is met. Municipalities will, in general, have greater experience with and understanding of the secondary effects that follow certain protected speech than will the courts. See Erie, 529 U. S., at 297-298 (plurality opinion). For this reason our cases require only that municipalities rely upon evidence that is “‘reasonably believed to be relevant’” to the secondary effects that they seek to address. Id., at 296.

Ill

The city of Los Angeles argues that its prohibition on multiuse establishments draws further support from a study of the poor health conditions in adult video arcades described in Hart Book Stores, a case that upheld a North Carolina ordinance similar to that challenged here. See 612 F. 2d, at 828-829, n. 9. Respondents argue that the city cannot rely on evidence from Hart Book Stores because the city cannot prove it examined that evidence before it enacted the current version of § 12.70(C). Brief for Respondents 21. Respondents note, moreover, that unsanitary conditions in adult video arcades would persist regardless of whether arcades were operated in the same buildings as, say, adult bookstores. Ibid.

We do not, however, need to resolve the parties’ dispute over evidence cited in Hart Book Stores. Unlike the city of Renton, the city of Los Angeles conducted its own study of adult businesses. We have concluded that the Los Angeles study provides evidence to support the city’s theory that a concentration of adult operations in one locale attracts crime, and can be reasonably relied upon to demonstrate that Los Angeles Municipal Code § 12.70(C) (1988) is designed to promote the city’s interest in reducing crime. Therefore, the city need not present foreign studies to overcome the summary judgment against it.

*443Before concluding, it should be noted that respondents argue, as an alternative basis to sustain the Court of Appeals’ judgment, that the Los Angeles ordinance is not a typical zoning regulation. Rather, respondents explain, the prohibition on multiuse adult establishments is effectively a ban on adult video arcades because no such business exists independently of an adult bookstore. Brief for Respondents 12-13. Respondents request that the Court hold that the Los Angeles ordinance is not a time, place, and manner regulation, and that the Court subject the ordinance to strict scrutiny. This also appears to be the theme of Justice Kennedy’s concurrence. He contends that “[a] city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Post, at 449 (opinion concurring in judgment). We consider that unobjectionable proposition as simply a reformulation of the requirement that an ordinance warrants intermediate scrutiny only if it is a time, place, and manner regulation and not a ban. The Court of Appeals held, however, that the city’s prohibition on the combination of adult bookstores and arcades is not a ban and respondents did not petition for review of that determination.

Accordingly, we reverse the Court of Appeals’ judgment granting summary judgment to respondents and remand the case for further proceedings.

It is so ordered.

Justice Scalia,

concurring.

I join the plurality opinion because I think it represents a correct application of our jurisprudence concerning regulation of the “secondary effects” of pornographic speech. As I have said elsewhere, however, in a case such as this our First Amendment traditions make “secondary effects” analysis quite unnecessary. The Constitution does not prevent those communities that wish to do so from regulating, or indeed entirely suppressing, the business of pander*444ing sex. See, e. g., Erie v. Pap's A. M., 529 U. S. 277, 310 (2000) (Scalia, J., concurring in judgment); FW/PBS, Inc. v. Dallas, 493 U. S. 215, 256-261 (1990) (Scalia, J., concurring in part and dissenting in part).

Justice Kennedy,

concurring in the judgment.

Speech can produce tangible consequences. It can change minds. It can prompt actions. These primary effects signify the power and the necessity of free speech. Speech can also cause secondary effects, however, unrelated to the impact of the'speech on its audience. A newspaper factory may cause pollution, and a billboard may obstruct a view. These secondary consequences are not always immune from regulation by zoning laws even though they are produced by speech.

Municipal governments know that high concentrations of adult businesses can damage the value and the integrity of a neighborhood. The damage is measurable; it is all too real. The law does not require a city to ignore these consequences if it uses its zoning power in a reasonable way to ameliorate them without suppressing speech. A city’s “interest in attempting to preserve the quality of urban life is one that must be accorded high respect.” Young v. American Mini Theatres, Inc., 427 U. S. 50, 71 (1976) (plurality opinion).

The question in this case is whether Los Angeles can seek to reduce these tangible, adverse consequences by separating adult speech businesses from one another — even two businesses that have always been under the same roof. In my view our precedents may allow the city to impose its regulation in the exercise of the zoning authority. The city is not, at least, to be foreclosed by summary judgment, so I concur in the judgment.

This separate statement seems to me necessary, however, for two reasons. First, Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), described a similar ordinance as “content neutral,” and I agree with the dissent that the designation *445is imprecise. Second, in my view, the plurality’s application of Renton might constitute a subtle expansion, with which I do not concur.

I

In Renton, the Court determined that while the material inside adult bookstores and movie theaters is speech, the consequent sordidness outside is not. The challenge is to correct the latter while leaving the former, as far as possible, untouched. If a city can decrease the crime and blight associated with certain speech by the traditional exercise of its zoning power, and at the same time leave the quantity and accessibility of . the speech substantially undiminished, there is no First Amendment objection. This is so even if the measure identifies the problem outside by reference to the speech inside — that is, even if the measure is in that sense content based.

On the other hand, a city may not regulate the secondary effects of speech by suppressing the speech itself. A city may not, for example, impose a content-based fee or tax. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 230 (1987) (“[Ojfficial scrutiny of the content of publications as the basis for imposing a tax is entirely incompatible with the First Amendment’s guarantee of freedom of the press”). This is true even if the government purports to justify the fee by reference to secondary effects. See Forsyth County v. Nationalist Movement, 505 U. S. 123, 134-135 (1992). Though the inference may be inexorable that a city could reduce secondary effects by reducing speech, this is not a permissible strategy. The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech.

A zoning measure can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech. It is well documented that multiple adult businesses in close proximity may change the character of a neighborhood *446for the worse. Those same businesses spread across the city may not have the same deleterious effects. At least in theory, a dispersal ordinance causes these businesses to separate rather than to close, so negative externalities are diminished but speech is not.

The calculus is a familiar one to city planners, for many enterprises other than adult businesses also cause undesirable externalities. Factories, for example, may cause pollution, so a city may seek to reduce the cost of that exter-nality by restricting factories to areas far from residential neighborhoods. With careful urban planning a city in this way may reduce the costs of pollution for communities, while at the same time allowing the productive work of the factories to continue. The challenge is to protect the activity inside while controlling side effects outside.

Such an ordinance might, like a speech restriction, be “content based.” It might, for example, single out slaughterhouses for specific zoning treatment, restricting them to a particularly remote part of town. Without knowing more, however, one would hardly presume that because the ordinance is specific to that business, the city seeks to discriminate against it or help a favored group. One would presume, rather, that the ordinance targets not the business but its particular noxious side effects. But cf. SlaughterHouse Cases, 16 Wall. 36 (1873). The business might well be the city’s most valued enterprise; nevertheless, because of the pollution it causes, it may warrant special zoning treatment. This sort of singling out is not impermissible content discrimination; it is sensible urban planning. Cf. Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388 (1926) (“A nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control”).

*447True, the First Amendment protects speech and not slaughterhouses. But in both contexts, the inference of impermissible discrimination is not strong. An equally strong inference is that the ordinance is targeted not at the activity, but at its side effects. If a zoning ordinance is directed to the secondary effects of adult speech, the ordinance does not necessarily constitute impermissible content discrimination. A zoning law need not be blind to the secondary effects of adult speech, so long as the purpose of the law is not to suppress it.

The ordinance at issue in this case is not limited to expressive activities. It also extends, for example, to massage parlors, which the city has found to cause similar secondary effects: See Los Angeles Municipal Code §§ 12.70(B)(8) (1978), 12.70(B)(17) (1983), 12.70(C) (1986), as amended. This ordinance, moreover, is just one part of an elaborate web of land-use regulations in Los Angeles, all of which are intended to promote the social value of the land as a whole without suppressing some activities or favoring others. See § 12.02 (“The purpose of this article is to consolidate and coordinate all existing zoning regulations and provisions into one comprehensive zoning plan ... in order to encourage the most appropriate use of land . .. and to promote the health, safety, and the general welfare . . .”). - All this further suggests that the ordinance is more in the nature of a typical land-use restriction and less in the nature of a law suppressing speech.

For these reasons, the ordinance is not so suspect that we must employ the usual rigorous analysis that content-based laws demand in other instances. The ordinance may be a covert attack on speech, but we should not presume it to be so. In the language of our First Amendment doctrine it calls for intermediate and not strict scrutiny, as we held in Renton.

*448II

In Renton, the Court began by noting that a zoning ordinance is a time, place, or manner restriction. The Court then proceeded to consider the question whether the ordinance was “content based.” The ordinance “by its terms [was] designed to prevent crime, protect the city’s retail trade, maintain property values, and generally protec[t] and preservfe] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life, not to suppress the expression of unpopular views.” 475 U. S., at 48 (internal quotation marks omitted). On this premise, the Court designated the restriction “content neutral.” Ibid.

The Court appeared to recognize, however, that the designation was something of a fiction, which, perhaps, is why it kept the phrase in quotes. After all, whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based. And the ordinance in Renton “treat[ed] theaters that specialize in adult films differently from other kinds of theaters.” Id., at 47. The fiction that this sort of ordinance is content neutral — or “content neutral” — is perhaps more confusing than helpful, as Justice Souter demonstrates, see post, at 457 (dissenting opinion). It is also not a fiction that has commanded our consistent adherence. See Thomas v. Chicago Park Dist., 534 U. S. 316, 322, and n. 2 (2002) (suggesting that a licensing scheme targeting only those businesses purveying sexually explicit speech is not content neutral). These ordinances are content based, and we should call them so.

Nevertheless, for the reasons discussed above, the central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny. Generally, the government has no power to restrict speech based on content, but there are exceptions to the rule. See Simon & Schuster, Inc. v. Members of N. Y. State Crime *449 Victims Bd., 502 U. S. 105, 126-127 (1991) (Kennedy, J., concurring in judgment). And zoning regulations do not automatically raise the specter of impermissible content discrimination, even if they are content based, because they have a prima facie legitimate purpose: to limit the negative externalities of land use. As a matter of common experience, these sorts of ordinances are more like a zoning restriction on slaughterhouses and less like a tax on unpopular newspapers. The zoning context provides a built-in legitimate rationale, which rebuts the usual presumption that content-based restrictions are unconstitutional. For this reason, we apply intermediate rather than strict scrutiny.

Ill

The narrow question presented in this case is whether the ordinance at issue is invalid “because the city did not study the negative effects of such combinations of adult businesses, but rather relied on judicially approved statutory precedent from other jurisdictions.” Pet. for Cert. i. This question is actually two questions. First, what proposition does a city need to advance in order to sustain a secondary-effects ordinance? Second, how much evidence is required to support the proposition? The plurality skips to the second question and gives the correct answer; but in my view more attention must be given to the first.

At the outset, we must identify the claim a city must make in order to justify a content-based zoning ordinance. As discussed above, a city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. The ordinance may identify the speech based on content, but only as a shorthand for identifying the secondary effects outside. A city may not assert that it will reduce secondary effects by reducing speech in the same proportion. On this point, I agree with Justice Souter. See post, at 457. The rationale of *450the ordinance must be that it will suppress secondary effects — and not by suppressing speech.

The plurality’s statement of the proposition to be supported is somewhat different. It suggests that Los Angeles could reason as follows: (1) “a concentration of operations in one locale draws ... a greater concentration of adult consumers to the neighborhood, and a high density of such consumers either attracts or generates criminal activity”; (2) “having a number of adult operations in one single adult establishment draws the same dense foot traffic as having a number of distinct adult establishments in close proximity”; (3) “reducing the concentration of adult operations in a neighborhood, whether within separate establishments or in one large establishment, will reduce crime rates.” Ante, at 436.

These propositions all seem reasonable, and the inferences required to get from one to the next are sensible. Nevertheless, this syllogism fails to capture an important part of the inquiry. The plurality’s analysis does not address how speech will fare under the city’s ordinance. As discussed, the necessary rationale for applying intermediate scrutiny is the promise that zoning ordinances like this one may reduce the costs of secondary effects without substantially reducing speech. For this reason, it does not suffice to say that inconvenience will reduce demand and fewer patrons will lead to fewer secondary effects. This reasoning would as easily justify a content-based tax: Increased prices will reduce demand, and fewer customers will mean fewer secondary effects. But a content-based tax may not be justified in this manner. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221 (1987); Forsyth County v. Nationalist Movement, 505 U. S. 123 (1992). It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech.

The analysis requires a few more steps. If two adult businesses are under the same roof, an ordinance requiring them *451to separate will have one of two results: One business will either move elsewhere or close. The city’s premise cannot be the latter. It is true that cutting adult speech in half would probably reduce secondary effects proportionately. But again, a promised proportional reduction does not suffice. Content-based taxes could achieve that, yet these are impermissible.

The premise, therefore, must be that businesses — even those that have always been under one roof — will for the most part disperse rather than shut down. True, this premise has its own conundrum. As Justice Souter writes, “[t]he city ... claims no interest iii the proliferation of adult establishments.” Post, at 461. The claim, therefore, must be that this ordinance will cause two businesses to split rather than one to close, that the quantity of speech will be substantially undiminished, and that total secondary effects will be significantly reduced. This must be the rationale of a dispersal statute.

Only after identifying the proposition to be proved can we ask the second part of the question presented: is there sufficient evidence to support the proposition? As to this, we have consistently held that a city must have latitude to experiment, at least at the outset, and that very little evidence is required. See, e. g., Renton, 475 U. S., at 51-52 (“The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses”); Young, 427 U. S., at 71 (“[T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems”); Erie v. Pap’s A. M., 529 U. S. 277, 300-301 (2000) (plurality opinion). As a general matter, courts should not be in the business of second-guessing fact-bound empirical assessments of city planners. See Renton, supra, at 51-52. The Los Angeles City Coun-*452oil knows the streets of Los Angeles better than we do. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 665-666 (1994); Erie, supra, at 297-298 (plurality opinion). It is entitled to rely on that knowledge; and if its inferences appear reasonable, we should not say there is no basis for its conclusion.

In this case the proposition to be shown is supported by a single study and common experience. The city’s study shows a correlation between the concentration of adult establishments and crime. Two or more adult businesses in close proximity seem to attract a critical mass of unsavory characters, and the crime rate may increase as a result. The city, therefore, sought to disperse these businesses. Los Angeles Municipal Code § 12.70(C) (1983), as amended. This original ordinance is not challenged here, and we may assume that it is constitutional.

If we assume that the study supports the original ordinance, then most of the necessary analysis follows. We may posit that two adult stores next door to each other attract 100 patrons per day. The two businesses split apart might attract 49 patrons each. (Two patrons, perhaps, will be discouraged by the inconvenience of the separation — a relatively small cost to speech.) On the other hand, the reduction in secondary effects might be dramatic, because secondary effects may require a critical mass. Depending on the economics of vice, 100 potential customers/victims might attract a coterie of thieves, prostitutes, and other ne’er-do-wells; yet 49 might attract none at all. If so, a dispersal ordinance would cause a great reduction in secondary effects at very small cost to speech. Indeed, the very absence of secondary effects might increase the audience for the speech; perhaps for every two people who are discouraged by the inconvenience of two-stop shopping, another two are encouraged by hospitable surroundings. In that case, secondary effects might be eliminated at no cost to *453speech whatsoever, and both the city and the speaker will have their interests well served.

Only one small step remains to justify the ordinance at issue in this case. The city may next infer — from its study and from its own experience — that two adult businesses under the same roof are no better than two next door. The ■city could reach the reasonable conclusion that knocking down the wall between two adult businesses does not ameliorate any undesirable secondary effects of their proximity to one another. If the city’s first ordinance was justified, therefore, then the second is too. Dispersing two adult businesses under one roof is reasonably likely to cause a substantial reduction in secondary effects while reducing speech very little.

IV

These propositions are well established in common experience and in zoning policies that we have already examined, and for these reasons this ordinance is not invalid on its face. If these assumptions can be proved unsound at trial, then the ordinance might not withstand intermediate scrutiny. The ordinance does, however, survive the summary judgment motion that the Court of Appeals ordered granted in this case.

Justice Souter,

with whom Justice Stevens and Justice Ginsburg join, and with, whom Justice Breyer joins as to Part II,

dissenting.

In 1977, the city of Los Angeles studied sections of the city with high and low concentrations of adult business establishments catering to the market for the erotic. The city found no certain correlation between the location of those establishments and depressed property values, but it did find some correlation between areas of higher concentrations of such business and higher crime rates. On that basis, Los Angeles followed the examples of other cities in adopting a zoning ordinance requiring dispersion of adult *454establishments. I assume that the ordinance was constitutional when adopted, see, e. g., Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and assume for purposes of this case that the original ordinance remains valid today.1

The city subsequently amended its ordinance to forbid clusters of such businesses at one address, as in a mall. The city has, in turn, taken a third step to apply this amendment to prohibit even a single proprietor from doing business in a traditional way that combines an adult bookstore, selling books, magazines, and videos, with an adult arcade, consisting of open viewing booths, where potential purchasers of videos can view them for a fee.

From a policy of dispersing adult establishments, the city has thus moved to a policy of dividing them in two. The justification claimed for this application of the new policy remains, however, the 1977 survey, as supplemented by the authority of one decided case on regulating adult arcades in another State. The ease authority is not on point, see infra, at 461-462, n. 4, and the 1977 survey provides no support for the breakup policy. Its evidentiary insufficiency bears emphasis and is the principal reason that I respectfully dissent from the Court’s judgment today.

I

This ordinance stands or falls on the results of what our cases speak of as intermediate scrutiny, generally contrasted with the demanding standard applied under the First Amendment to a content-based regulation of expression. The variants of middle-tier tests cover a grab bag of restrictive statutes, with a corresponding variety of justifications. *455While spoken of as content neutral, these regulations are not uniformly distinct from the content-based regulations calling for scrutiny that is strict, and zoning of businesses based on their sales of expressive adult material receives mid-level scrutiny, even though it raises a risk of content-based restriction. It is worth being clear, then, on how close to a content basis adult business zoning can get, and why the application of a middle-tier standard to zoning regulation of adult bookstores calls for particular care.

Because content-based regulation applies to expression by very reason of what is said, it carries a high risk that expressive limits are imposed for the sake of suppressing a message that is disagreeable to listeners or readers, or the government. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm’n of N. Y, 447 U. S. 530, 536 (1980) (“[W]hen regulation is based on the content of speech, governmental action must be scrutinized more carefully to ensure that communication has not been prohibited merely because public officials disapprove the speaker’s views” (internal quotation marks omitted)). A restriction based on content survives only on a showing of necessity to serve a legitimate and compelling governmental interest, combined with least restrictive narrow tailoring to serve it, see United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 813 (2000); since merely protecting listeners from offense at the message is not a legitimate interest of the government, see Cohen v. California, 403 U. S. 15, 24-25 (1971), strict scrutiny leaves few survivors.

The comparatively softer intermediate scrutiny is reserved for regulations justified by something other than content of the message, such as a straightforward restriction going only to the time, place, or manner of speech or other expression. It is easy to see why review of such a regulation may be relatively relaxed. No one has to disagree with any message to find something wrong with a loudspeaker at three in the morning, see Kovacs v. Cooper, 336 U. S. 77 *456(1949); the sentiment may not provoke, but being blasted out of a sound sleep does. In such a case, we ask simply whether the regulation is “narrowly tailored to serve a significant governmental interest, and . . . leave[s] open ample alternative channels for communication of the information.” Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984). A middle-tier standard is also applied to limits on expression through action that is otherwise subject to regulation for nonexpressive purposes, the best known example being the prohibition on destroying draft cards as an act of protest, United States v. O'Brien, 391 U. S. 367 (1968); here a regulation passes muster “if it furthers an important or substantial governmental interest . . . unrelated to the suppression of free expression” by a restriction “no greater than is essential to the furtherance of that interest,” id., at 377. As mentioned already, yet another middle-tier variety is zoning restriction as a means of responding to the “secondary effects” of adult businesses, principally crime and declining property values in the neighborhood. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 49 (1986).2

Although this type of land-use restriction has even been called a variety of time, place, or manner regulation, id., at 46, equating a secondary-effects zoning regulation with a mere regulation of time, place, or manner jumps over an important difference between them. A restriction on loudspeakers has no obvious relationship to the substance of *457what is broadcast, while a zoning regulation of businesses in adult expression just as obviously does. And while it may be true that an adult business is burdened only because of its secondary effects, it is clearly burdened only if its expressive products have adult content. Thus, the Court has recognized that this kind of regulation, though called content neutral, occupies a kind of limbo between full-blown, content-based restrictions and regulations that apply without any reference to the substance of what is said. Id., at 47.

It would in fact make sense to give this kind of zoning regulation a First Amendment label of its own, and if we called it content correlated, we would not only describe it for what it is, but keep alert to a risk of content-based regulation that it poses. The risk lies in the fact that' when a law applies selectively only to speech of particular content, the more precisely the content is identified, the greater is the opportunity for government censorship. Adult speech refers not merely to sexually explicit content, but to speech reflecting a favorable view of being explicit about sex and a favorable view of the practices it depicts; a restriction on adult content is thus also a restriction turning on a particular viewpoint, of which the government may disapprove.

This risk of viewpoint discrimination is subject to a relatively simple safeguard, however. If combating secondary effects of property devaluation and crime is truly the reason for the regulation, it is possible to show by empirical evidence that the effects exist, that they are caused by the expressive activity subject to the zoning, and that the zoning can be expected either to ameliorate them or to enhance the capacity of the government to combat them (say, by concentrating them in one area), without suppressing the expressive activity itself. This capacity of zoning regulation to address the practical problems without eliminating the speech is, after all, the only possible excuse for speaking of secondary-effects zoning as akin to time, place, or manner regulations.

*458In examining claims that there are causal relationships between adult businesses and an increase in secondary effects (distinct from disagreement), and between zoning and the mitigation of the effects, stress needs to be placed on the empirical character of the demonstration available. See Metromedia, Inc. v. San Diego, 458 U. S. 490, 510 (1981) (“[Judgments . . . defying objective evaluation . . . must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose”); Young, 427 U. S., at 84 (Powell, J., concurring) (“[Cjourts must be alert... to the possibility of using the power to zone as a pretext for suppressing expression”). The weaker the demonstration of facts distinct from disapproval of the “adult” viewpoint, the greater the likelihood that nothing more than condemnation of the viewpoint drives the regulation.3

Equal stress should be placed on the point that requiring empirical justification of claims about property value or crime is not demanding anything Herculean. Increased crime, like prostitution and muggings, and declining property values in areas surrounding adult businesses, are all readily observable, often to the untrained eye and certainly to the police officer and urban planner. These harms can be shown by police reports, crime statistics, and studies of mar*459ket value, all of which are within a municipality’s capacity or available from the distilled experiences of comparable communities. See, e. g., Renton, supra, at 51; Young, supra, at 55.

And precisely because this sort of evidence is readily available, reviewing courts need to be wary when the government appeals, not to evidence, but to an uncritical common sense in an effort to justify such a zoning restriction. It is not that common sense is always illegitimate in First Amendment demonstration. The need for independent proof varies with the point that has to be established, and zoning can be supported by common experience when there is no reason to question it. We have appealed to common sense in analogous cases, even if we have disagreed about how far it took us. See Erie v. Pap’s A. M., 529 U. S. 277, 300-301 (2000) (plurality opinion); id., at 313, and n. 2 (Souter, J., concurring in part and dissenting in part). But we must be careful about substituting common assumptions for evidence, when the evidence is as readily available as public statistics and municipal property valuations, lest we find out when the evidence is gathered that the assumptions are highly debatable. The record in this very case makes the point. It has become a commonplace, based on our own cases, that concentrating adult establishments drives down the value of neighboring property used for other purposes. See Renton, 475 U. S., at 51; Young, supra, at 55. In fact, however, the city found that general assumption unjustified by its 1977 study. App. 39, 45.

The lesson is that the lesser scrutiny applied to content-correlated zoning restrictions is no excuse for a government’s failure to provide a factual demonstration for claims it makes about secondary effects; on the contrary, this is what demands the demonstration. See, e.g., Schad v. Mount Ephraim, 452 U. S. 61, 72-74 (1981). In this case, however, the government has not shown that bookstores containing viewing booths, isolated from other adult establishments, in*460crease crime or produce other negative secondary effects in surrounding neighborhoods, and we are thus left without substantial justification for viewing the city’s First Amendment restriction as content correlated but not simply content based. By the same token, the city has failed to show any causal relationship between the breakup policy and elimination or regulation of secondary effects.

II

Our cases on the subject have referred to studies, undertaken with varying degrees of formality, showing the geographical correlations between the presence or concentration of adult business establishments and enhanced crime rates or depressed property values. See, e. g., Renton, supra, at 50-51; Young, 427 U. S., at 55. Although we have held that intermediate scrutiny of secondary-effects legislation does not demand a fresh evidentiary study of its factual basis if the published results of investigations elsewhere are “reasonably” thought to be applicable in a different municipal setting, Renton, supra, at 51-52, the city here took responsibility to make its own enquiry, App. 35-162. As already mentioned, the study was inconclusive as to any correlation between adult business and lower property values, id., at 45, and it reported no association between higher crime rates and any isolated adult establishments. But it did find a geographical correlation of higher concentrations of adult establishments with higher crime rates, id., at 43, and with this study in hand, Los Angeles enacted its 1978 ordinance requiring dispersion of adult stores and theaters. This original position of the ordinance is not challenged today, and I will assume its justification on the theory accepted in Young, that eliminating concentrations of adult establishments will spread out the documented secondary effects and render them more manageable that way.

The application of the 1983 amendment now before us is, however, a different matter. My concern is not with the *461assumption behind the amendment itself, that a conglomeration of adult businesses under one roof, as in a minimall or adult department store, will produce undesirable secondary effects comparable to what a cluster of separate adult establishments brings about, ante, at 436. That may or may not be so. The assumption that is clearly unsupported, however, goes to the city’s supposed interest in applying the amendment to the book and video stores in question, and in applying it to break them up. The city, of course, claims no interest in the proliferation of adult establishments, the ostensible consequence of splitting the sales and viewing activities so as to produce two stores where once there was one. Nor does the city assert any interest in limiting the sale of adult expressive material as such, or reducing the number of adult video booths in the city, for that would be clear content-based regulation, and the city was careful in its 1977 report to disclaim any such intent. App. 54.4

*462Rather, the city apparently assumes that a bookstore selling videos and providing viewing booths produces secondary effects of crime, and more crime than would result from having a single store without booths in one part of town and a video arcade in another.5 But the city neither says this in so many words nor proffers any evidence to support even the simple proposition that an otherwise lawfully located adult bookstore combined with video booths will produce any criminal effects. The Los Angeles study treats such combined stores as one, see id., at 81-82, and draws no general conclusion that individual stores spread apart from other adult establishments (as under the basic Los Angeles ordinance) are associated with any degree of criminal activity above the general norm; nor has the city called the Court’s attention to any other empirical study, or even anecdotal police evidence, that supports the city’s assumption. In fact, if the Los Angeles study sheds any light whatever on the city’s position, it is the light of skepticism, for we may fairly suspect that the study said nothing about the secondary effects of freestanding stores because no effects were observed. The reasonable supposition, then, is that splitting some of them up will have no consequence for secondary effects whatever.6

*463The inescapable point is that the city does not even claim that the 1977 study provides any support for its assumption. We have previously accepted studies, like the city’s own study here, as showing a causal connection between concentrations of adult business and identified secondary effects.7 Since that is an acceptable basis for requiring adult businesses to disperse when they are housed in separate premises, there is certainly a relevant argument to be made that restricting their concentration at one spacious address should have some effect on sales and traffic, and effects in the neighborhood. But even if that argument may justify a ban on adult “minimalls,” ante, at 436, it provides no support for what the city proposes to do here. The bookstores involved here are not concentrations of traditionally separate adult businesses that have been studied and shown to have an association with secondary effects, and they exemplify no new form of concentration like a mall under one roof. They are combinations of selling and viewing activities that have commonly been combined, and the plurality itself recognizes, ante, at 438, that no study conducted by the city has reported that this type of traditional business, any more than any other adult business, has a correlation with secondary effects *464in the absence of concentration with other adult establishments in the neighborhood. And even if splitting viewing booths from the bookstores that continue to sell videos were to turn some customers away (or send them in search of video arcades in other neighborhoods), it is nothing but speculation to think that marginally lower traffic to one store would have any measurable effect on the neighborhood, let alone an effect on associated crime that has never been shown to exist in the first place.8

Nor is the plurality’s position bolstered, as it seems to think, ante, at 439, by relying on the statement in Renton that courts should allow cities a “ ‘reasonable opportunity to experiment with solutions to admittedly serious problems,’ ” 475 U. S., at 52. The plurality overlooks a key distinction between the zoning regulations at issue in Renton and *465 Young (and in Los Angeles as of 1978), and this new Los Angeles breakup requirement. In those two cases, the municipalities’ substantial interest for purposes of intermediate scrutiny was an interest in choosing between two strategies to deal with crime or property value, each strategy tied to the businesses’ location, which had been shown to have a causal connection with the secondary effects: the municipality could either concentrate businesses for a concentrated regulatory strategy, or disperse them, in order to spread out its regulatory efforts. The limitations on location required no further support than the factual basis tying location to secondary effects; the zoning approved in those two cases had no effect on the way the owners of the stores carried on their adult businesses beyond controlling location, and no heavier burden than the location limit was approved by this Court.

The Los Angeles ordinance, however, does impose a heavier burden, and one lacking any demonstrable connection to the interest in crime control. The city no longer accepts businesses as their owners choose to conduct them within their own four walls, but bars a video arcade in a bookstore, a combination shown by the record to be commercially natural, if not universal. App. 47-51, 229-230, 242. Whereas Young and Renton gave cities the choice between two strategies when each was causally related to the city’s interest, the plurality today gives Los Angeles a right to “experiment” with a First Amendment restriction in response to a problem of increased crime that the city has never even shown to be associated with combined bookstore-arcades standing alone. But the government’s freedom of experimentation cannot displace its burden under the intermediate scrutiny standard to show that the restriction on speech is no greater than essential to realizing an important objective, in this case policing crime. Since we cannot make even a best guess that the city’s breakup policy will have any effect on crime *466or law enforcement, we are a very far cry from any assurance against covert content-based regulation.9

And concern with content-based regulation targeting a viewpoint is right to the point here, as witness a fact that involves no guesswork. If we take the city’s breakup policy at its face, enforcing it will mean that in every case two establishments will operate instead of the traditional one. Since the city presumably does not wish merely to multiply adult establishments, it makes sense to ask what offsetting gain the city may obtain from its new breakup policy. The answer may lie in the fact that two establishments in place of one will entail two business overheads in place of one: two monthly rents, two electricity bills, two payrolls. Every month business will be more expensive than it used to be, perhaps even twice as much. That sounds like a good strategy for driving out expressive adult businesses. It sounds, in other words, like a policy of content-based regulation.

I respectfully dissent.

COFFIN, Senior Circuit Judge.

Plaintiff-appellant D.H.L. Associates, Inc., has sought annually since 1994 to persuade defendants-appellees, the town of Tyngsborough, Massachusetts, and its board of selectmen to license it to provide nude dancing at its restaurant, “Matthew’s.” D.H.L. has never been successful in this endeavor because Matthew’s is not located within the area of Tyngsborough zoned to allow adult entertainment. In this case, D.H.L. challenges the constitutionality of Tyngsborough’s zoning ordinance, alleging that even as revised since 1994, it does not meet the standards set-forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and thus violates D.H.L.’s constitutionally protected freedom of speech. The district court held the ordinance to be constitutional, and from that judgment D.H.L. appeals. Finding no constitutional infirmity in Tyngsbor-ough’s zoning ordinance, we affirm.

I. Factual Background

Tyngsborough, a rural town of approximately 9500 inhabitants, is located about 40 miles from Boston near the Massachusetts/New Hampshire border. The Tyngs-borough board of selectmen acts as the town’s executive branch and is authorized to act as the licensing authority for alcoholic beverage and entertainment licenses. Town residents voting at meetings constitute the legislative branch of the town’s government and as such are responsible for enacting the zoning ordinances at issue here.

The Town has altered its zoning ordinance multiple times in the past decade. In 1987, the Town, by a vote of the majority of residents at a town meeting, established the “B^f zone,” in which adult entertainment, as well as other commercial uses, was authorized. The B-4 zone, although existing in theory, did not actually contain any parcels of land and was, in fact, a “phantom zone.” In 1992, D.H.L. applied for and was issued both an all-alcoholic beverage license and a live entertainment license for its restaurant called *53“Bogie’s,” later called “Matthew’s,” located in a general commercial use zone.

In January 1994, D.H.L. advertised that it would present nude dancing beginning in February. The following month, an open town meeting was held in Tyngsborough to discuss adult entertainment and on February 24, the Town notified D.H.L. that adult entertainment was not encompassed within its entertainment license. On March 7, D.H.L. applied to amend its entertainment license to include adult entertainment, under protest based on its belief that its entertainment license inherently authorized adult entertainment. On March 28, the board of selectmen held a hearing to consider D.H.L.’s request, but delayed a decision. The next evening, as a result of a petition signed by more than 650 registered voters, a special town meeting was held to consider adopting an ordinance that would prohibit establishments holding liquor licenses from offering any form of nude entertainment.

Although the Town did not adopt such an ordinance, town residents at the meeting unanimously adopted an amended version of the zoning ordinance to establish a B-4 zone of two lots of land. The selectmen subsequently denied D.H.L.’s application to amend its entertainment license to include live nude dancing on the basis that the restaurant was not located within the B^4 zone. Each year since then, the Town has reissued D.H.L.’s entertainment license but refused to extend it to include nude dancing. Aside from a two-day license suspension in March 1994, the Town has never attempted to enforce the limitations of D.H.L.’s license or otherwise sanction it for its violation of zoning and licensing regulations, despite the fact that D.H.L. has continued to offer nude dancing on a daily basis. The Town has, however, represented to D.H.L. and to this court that it is delaying enforcement only until this litigation concludes.

In 1994, D.H.L. filed a claim against the Town and its board of selectmen in state court, alleging, inter alia, that its state and federal constitutional rights had been violated and seeking declaratory and in-junctive relief as well as damages. Defendants successfully sought removal of the ease to federal court.

Prior to trial, at a town meeting in May 1996, the Town established an entirely different B-4 zone comprised of 10.4 acres and consisting of 5 of the 24 lots in Apple-wood Commercial Park subdivision. It was the constitutionality of this zone that the district court upheld following a bench trial in April 1998. The district court ruled in favor of Tyngsborough on D.H.L.’s federal constitutional claims, on the grounds that the constitutionality of the 1987 and 1994 zones were moot issues and the 1996 zone was constitutional, and remanded D.H.L.’s remaining state claims to state court for adjudication. D.H.L. appeals, arguing that the issue of whether its rights were violated under the prior ordinances was not moot and that even if the 1996 ordinance were the appropriate benchmark for consideration, it was not constitutional.

II. Preliminary Issues

A. Ripeness

Initially, we were concerned that D.H.L.’s claims were not ripe for review because D.H.L. has continued to provide adult entertainment despite its lack of a license without sanction. We have resolved this concern, however, because the Town has represented to the court, consistent with a selectman’s testimony at trial, that it is delaying enforcement of the ordinance against D.H.L. only until this litigation concludes. Our jurisdiction as a federal court extends only to “cases” and “controversies,” as authorized by Article III, Section 2, of the United States Constitution. This means that issues before us must reflect a live dispute between adverse parties.

The Supreme Court has explained that the determination of ripeness depends on “the fitness of the issues for judicial deci*54sion” and “the hardship to the parties of withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

In situations similar to the present one, prospective enforcement of an ordinance has been found sufficient to generate a live case. See, e.g., Sable Communications of California, Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184, 187 (9th Cir.1989) (“A threat that emanates from a regulation, compulsory in nature, to which the plaintiff is currently subject, is real and immediate if the possibility of enforcement is more than hypothetical.”). When a constitutional claim is at issue, a plaintiff need not “await the consummation of the threatened injury to obtain preventive relief.” Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 67 L.Ed. 1117 (1923).

In this case, it is clear that D.H.L. is subject to a real and immediate threat of enforcement of Tyngsborough’s zoning ordinance and therefore its claims are ripe for our consideration. See Pustell v. Lynn Pub. Schs., 18 F.3d 50, 52 (1st Cir.1994); Neiderhiser v. Borough of Berwick, 840 F.2d 213, 218 (3d Cir.1988).

B. Mootness

Next, we address D.H.L.’s argument that the district court erred by holding that the constitutionality of the 1987 and 1994 zones were moot issues. D.H.L. contends that these issues are, in fact, dispositive of the case. We review the court’s determination of mootness de novo. See Verhoeven v. Brunswick Sch. Comm., 1999 WL 721698, *4 (1st Cir. Sept. 21, 1999).

“Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). The Supreme Court has described mootness as “ ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue through its existence (mootness).’ ” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting Henry P. Monaghan, “Constitutional Adjudication: The Who and When,” 82 Yale L.J. 1353,1384 (1973)).

We conclude that the validity of the 1987 and 1994 ordinances are moot issues because even if we were to find the provisions unconstitutional, D.H.L. would not be entitled to any relief. First, D.H.L. cannot allege damages from the application of the 1987 or the 1994 ordinance because neither was ever enforced against D.H.L. Although D.H.L. was denied a permit under the authority of the 1994 ordinance, it continued to engage in the prohibited conduct on a daily basis without repercussion. Although a claim for damages from a no longer effective ordinance might in other circumstances save the issue of the ordinance’s lawfulness from a determination of mootness, D.H.L. can make no such claim here. See City of Richmond v. J.A Croson Co., 488 U.S. 469, 478 n. 1, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plaintiffs claims not moot even though challenged ordinance repealed because town refused to grant contracts to plaintiff while ordinance was in effect).1

Second, we are without power to grant injunctive and declaratory relief because the 1987 and 1994 ordinances no longer exist. In Diffenderfer v. Central Baptist Church, Inc., 404 U.S. 412, 92 S.Ct. 574, 30 L.Ed.2d 567 (1972), the Supreme Court emphasized that it had to “review the judgment of the district court in light of [state] law as it now stands, not as it stood when the judgment below was entered.” *55 See id. at 414-15, 92 S.Ct. 574 (holding that when the only relief sought was a declaratory judgment that a statute was unconstitutional, but the statute was repealed pending appeal, the case was moot). The Court has also stated that when a challenged federal statute is amended after review by courts of appeals, the issues presented to the Supreme Court on appeal are rendered moot. See United States Dep’t of Justice v. Provenzano, 469 U.S. 14, 15, 105 S.Ct. 413, 83 L.Ed.2d 242 (1984); see also Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987) (finding that case was moot when bill at issue expired after the court of appeals entered judgment and stating that “it is not enough that there may have been a five case or controversy when the case was decided by the court whose judgment we are reviewing”); United States Dep’t of the Treasury v. Galioto, 477 U.S. 556, 559-60, 106 S.Ct. 2683, 91 L.Ed.2d 459 (1986) (concluding that when statute was altered such that issues decided by court below were moot, the Court must set aside the lower court’s decision).

D.H.L. attempts to bypass this precedent through reliance on an exception to the mootness doctrine for situations in which the defendant voluntarily ceases the challenged practice. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982) (holding that when an ordinance’s revision became effective while the case was pending in the court of appeals, the Court retained jurisdiction over the question of the constitutionality of the prior ordinance). This exception applies, however, only when there is a reasonable expectation that the challenged conduct will be repeated following dismissal of the case. See id. at 289 & n. 11, 102 S.Ct. 1070 (city had announced an intention to return to its original conduct after the litigation was concluded); Northeastern Florida Chapter of the Associated General Contractors v. Jacksonville, 508 U.S. 656, 662 & n. 3, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) (challenged statute had not been sufficiently altered to allow a conclusion that the conduct would not be repeated). In this case, the ordinance has been recast apparently for the purpose of making it more likely to overcome constitutional challenge and it has remained unchanged since 1996. With no indication of a contrary intent, it would be unreasonable to presume that the Town would return to its prior zoning plans after the conclusion of this litigation. Thus, the voluntary-cessation exception to the mootness doctrine is inapplicable here.

D.H.L. makes an additional argument that the issue is not moot, relying on a stipulation between the parties that if D.H.L. had been issued an adult entertainment license in 1994, the license would have been renewed automatically in subsequent years regardless of alterations to the zoning code. The critical flaw in D.H.L.’s analysis is that even if we were to hold that the 1994 zone had been unconstitutional, such a ruling does not necessarily lead to the conclusion that D.H.L. would have been granted a license in 1994. As D.H.L. appeared to acknowledge to the trial court, the Town would have retained the ability, after a finding of unconstitutionality, to review D.H.L.’s request and deny it for another, legitimate reason. An alternative scenario is that the Town might have created a constitutional adult entertainment zone before reviewing D.H.L.’s application for a license and could.then lawfully have refused it the license.2

It is not for this court to speculate as to what might have happened had the Town’s statute been struck down before It was superseded by the 1996 zoning ordinance now in effect. Thus, the stipulation be*56tween D.H.L. and the Town, that if D.H.L. had received a license in 1994 it would have received a license every year thereafter, does not entitle D.H.L. to a license in the first instance.

III. Constitutionality of the 1996 Zoning Ordinance

We thus turn to the constitutionality of Tyngsborough’s 1996 zoning ordinance, currently in effect. In reviewing an appeal from an adverse ruling after a bench trial, we review the district court’s legal determinations de novo, “according a significant amount of deference to the court’s factual determinations and to most of its resolutions of mixed fact/law issues.” Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 100 F.3d 175, 181 (1st Cir.1996). Tyngsborough’s 1996 zoning ordinance defines “adult entertainment establishments” as including those providing live entertainment “which consists of entertainers engaging in ‘Sexual Conduct’ or ‘Nudity.’ ” See Tyngsborough Zoning ByLaws § 2.11.46. The ordinance restricts the location of such businesses to the B-^f zone. See id. §§ 2.10.00, 2.11.00. It also authorizes the board of selectmen or the planning board to grant special use permits for adult entertainment establishments. See id. § 1.16.00.3

Generally, “[t]he power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities.” Schad v. Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Nevertheless, a town’s zoning power “must be exercised within constitutional limits.” Moore v. East Cleveland, 431 U.S. 494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (Stevens, J., concurring). As we have articulated: “Freedom of speech is among the most precious of our constitutional rights. Thus, courts have long recognized that, when governmental action places speech in special jeopardy, special protections must apply.” National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995).

A. Appropriate Level of Scrutiny

We begin our analysis by noting that the activity which is being restricted, nude dancing, is presumably constitutionally protected speech. The Supreme Court has described nude dancing as “expressive conduct within the outer parameters of the First Amendment, though .... only marginally so.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion).

We next determine what level of scrutiny we should apply to the restric*57tion on this constitutionally protected activity, which correlates directly to whether the ordinance is content-based or content-neutral. An ordinance is not content-neutral if the government has adopted it “ ‘because of disagreement with the message it conveys.’ ” National Amusements, 43 F.3d at 737 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). Further, a “regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Ward, 491 U.S. at 791, 109 S.Ct. 2746; see also Tollis Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir.1987) (“[The content-neutral] requirement is met if the involved ordinance is ‘aimed to control secondary effects resulting from the protected expression’ rather than at inhibiting the protected expression itself.” (quoting International Food & Beverage Sys. v. City of Fort Lauderdale, 794 F.2d 1520, 1525 (11th Cir.1986))).

In National Amusements, an ordinance that prohibited the showing of motion pictures between 1:00 a.m. and 6:00 a.m. was deemed to be content-neutral because it did not reference the substance of the speech it regulated and did not appear to have arisen as a means of suppressing a particular message. See National Amusements, 43 F.3d at 737-39. The Court in Renton grappled with an ordinance that prohibited adult motion picture theaters from being located within 1000 feet of any residential zone, family dwelling, church, park, or school, and concluded that the ordinance, although it treated theaters that specialized in adult films differently from other theaters, was content-neutral because it was aimed not at the content of the films but rather at the secondary effects of such theaters on the surrounding community. See Renton, 475 U.S. at 47-49, 106 S.Ct. 925 (concluding that “at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standard applicable to ‘content-neutral’ time, place, and manner restrictions” (footnotes omitted)).

Thus, it is clear that an ordinance such as Tyngsborough’s, if aimed at com-batting the secondary effects of nude dancing rather than the content of the message expressed by nude dancing, is content-neutral. In determining whether the Tyngsborough ordinance is aimed at secondary effects, we note that a town is “entitled to rely on the experiences” of surrounding cities and towns: “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Id. at 51-52, 106 S.Ct. 925 (holding that ordinance was validly designed to serve the substantial government interest of preserving the quality of urban life). Moreover, the Supreme Court has noted that a municipality’s interest in protecting and preserving quality of life “must be accorded high respect.” See Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion); see also Barnes, 501 U.S. at 583, 111 S.Ct. 2456 (Souter, J., concurring) (stating that the interest of government in “preventing prostitution, sexual assault, and other criminal activity” is “plainly a substantial one”).

D.H.L. challenges Tyngsborough’s assurance that the ordinance was enacted to combat secondary effects and alleges that it did not rely on any “studies” of secondary effects. The district court, however, found that the record showed a “reasoned basis for evaluation of potential secondary effects as sufficiently likely to occur and to involve significant consequences for community welfare to justify the challenged zoning ordinance,” even though such evidence did not appear explicitly in town meeting minutes. Specifically, the court *58credited the testimony of John O’Gorman, chairman of the board of selectmen, regarding his instruction to the town administrator and the special town counsel, prior to the enactment of the 1994 zoning ordinance, to gather information about how other localities addressed adult entertainment and secondary effects issues. O’Gor-man testified:

I as the chairman of the Board of Selectmen instructed the town administrator along with special counsel to research all that they could with regard to adult entertainment, how it could be controlled, how it could be zoned, what other communities were doing, what other jurisdictions were doing with regard to adult entertainment.... [We did this to] learn as much as we could about adult entertainment and how it could be controlled, how it could be zoned within our community.

O’Gorman also testified that at the time of the 1994 zoning changes, the Town was aware that the two clubs in town that allegedly offered adult entertainment generated more police calls than other clubs. He stated that the public reaction to a proliferation of unlicensed adult entertainment was “tremendous” and many residents expressed great concern.

The district court also noted that a document, prepared for the 1994 special town meeting, evidenced public discussion prior to the ordinance’s enactment4 and that testimony substantiated the Town’s claim that it relied on its impression, supported to at least some extent, that adult entertainment establishments placed greater demands on police because more calls were generated from those establishments. See National Amusements, 43 F.3d at 742 (noting that legislatures may rely on evidence of past problems with a particular activity and need not conduct an investigation to. corroborate each incident). At the special town meeting, an open forum was held to educate the public on methods of zoning adult entertainment businesses and to allow citizens to express their concerns about the secondary effects of these businesses. We therefore conclude that the district court did not err in finding that ordinance was designed to combat secondary effects and is content-neutral. We also note that although secondary effects were more pointedly considered by the Town when enacting its 1994 zoning ordinance, the discussions that took place at that time can certainly be considered to pertain to the justifications of the 1996 modification of the zone.

B. The Application of the Renton Test

Because the ordinance does not create an outright ban on adult entertainment and was enacted to address the secondary effects of adult entertainment rather than its content, it is a time, place, and manner restriction. See, e.g., Tollis, 827 F.2d at 1332 (“Like the ordinance involved in Renton, the ordinance before us is obviously a time, place, and manner regulation, *59as it does not ban adult theaters altogether.”). As the Supreme Court explained in Renton, the intermediate scrutiny test for determining the constitutionality of a content-neutral time, place, and manner zoning restriction on adult entertainment is whether the ordinance is narrowly tailored “to serve a substantial government interest and allows for reasonable alternative avenues of communication.” See Renton, 475 U.S. at 50, 106 S.Ct. 925 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)).

1. Narrowly Tailored to Serve a Substantial Government Interest

We have already determined that Tyngsborough considered secondary effects when it created the B-4 zone. We have also explained that a municipality’s concern about secondary effects is a substantial government interest. Finally, to determine whether the ordinance fully satisfies the first prong of the Renton test, we must determine whether Tyngsborough’s ordinance is sufficiently narrowly tailored to meet its interest.

A content-neutral time, place, and manner restriction is narrowly tailored if it “ ‘promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ” Ward, 491 U.S. at 799, 109 S.Ct. 2746 (quoting United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985)). In Renton, the Court held that the ordinance was narrowly tailored because it “affect[ed] only that category of theaters shown to produce the unwanted secondary effects.” Renton, 475 U.S. at 52, 106 S.Ct. 925. In the instant case, Tyngsborough’s ordinance, which applies directly to adult entertainment providers, does not reach other forms of entertainment. Further, Tyngsborough’s use of a zoning mechanism to restrict such an activity confines the impact of the restriction to governance of the location of such activity and does not impact other aspects of the activity. Thus, the ordinance is sufficiently narrowly tailored to address the Town’s substantial interest in combatting the secondary effects of adult entertainment.

2. Reasonable Alternative Avenues of Communication

Moving to the second prong of the Renton test, we evaluate whether Tyngsborough’s ordinance allows reasonable alternative methods of communication. The essence of this question is not “whether a degree of curtailment” of speech exists, but rather “whether the remaining communicative avenues are adequate.” National Amusements, 43 F.3d at 745 (holding that the limitations created by an ordinance were not unconstitutional because the challenger’s evidence “does not call into legitimate question the adequacy of the alternate route of communication”). D.H.L. alleges that the Tyngsborough ordinance does not provide it with a reasonable opportunity to open and operate, relying heavily on the fact that only .09867% of the land within the town’s borders has been designated as the B-4 zone. D.H.L. contends that even if the owner of the B-4 lots were willing to sell the land to an adult entertainment establishment, which D.H.L. contends the owner is not willing to do, such a small percentage of land does not constitute a reasonable opportunity.

D.H.L. misses the mark, however, in emphasizing this single factor. As the district court recognized, determining whether Tyngsborough’s ordinance provides a reasonable opportunity for adult business to open and operate requires an evaluation of multiple factors. See, e.g., 3570 East Foothill Blvd., Inc. v. City of Pasadena, 912 F.Supp. 1257, 1265 (C.D.Cal.1995) (“[C]ourts have looked to a variety of relevant factors, including the percentage of land theoretically available to adult businesses, the number of sites potentially available in relation to the population of the city, the number of sites compared with the existing number of adult busi*60nesses, or the number of businesses desiring to offer adult entertainment.”)- Thus, the fact that Tyngsborough allocated only 10.4 acres of its 10,540 acres to the B-4 zone is relevant but not dispositive. As the Court of Appeals for the Fifth Circuit has held, “[t]here is no requirement in Renton ... or elsewhere that a specific proportion of a municipality be open for adult businesses or that a certain number of sites be available.” Lakeland Lounge v. City of Jackson, Mississippi, 973 F.2d 1255, 1260 (5th Cir.1992); see also North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Cir.1996) (stating that “acreage, standing alone, is largely irrelevant”).

Because there is no single dispositive evaluative consideration, an analysis should encompass a variety of factors, including the percentage of acreage within the zone compared to the acreage available to commercial enterprises in general. As the district court noted, “Tyngsborough is a rural town in which the total acreage in the only commercial district that could properly be identified as the principal business district occupies very little of Tyngs-borough’s total acreage.”

The number of sites available to adult entertainment businesses is also relevant. See International Eateries of America, Inc. v. Broward County, Florida, 941 F.2d 1157, 1165 (11th Cir.1991). Reasonable alternative avenues for communication have been found to exist when six adult businesses were operating in a town and more than six sites existed in the zoned area. See Lakeland Lounge, 973 F.2d at 1260 (“As a matter of arithmetic, ... there are more ‘reasonable’ sites available than businesses with demands for them.... ”).

In this case, the district court held that all of the five lots in the B-4 zone were potentially available, crediting the testimony of Walter Eriksen, owner of the land within the B-4 zone, that although he had delayed placing the lots on the market in hopes that they would increase in value, they were now available to any purchaser for the right price.5 Despite D.H.L.’s protestations that the cost of development would be too high, Renton instructs that D.H.L.’s protection extends only so far as to put adult entertainment providers on an equal footing with other purchasers and does not require that they be able to obtain sites “at bargain prices.” See Renton, 475 U.S. at 54, 106 S.Ct. 925 (“That respondents must fend for themselves in a real estate market, on an equal footing with other prospective purchasers and lessees, does not give rise to a First Amendment violation.”).6

Because we agree that all of the lots in the B^4 zone are potentially available and other relevant factors do not negate the significance of this availability, we hold that Tyngsborough ordinance provides the constitutionally mandated “reasonable opportunity to open and operate.” We note that one other establishment, the “Blue Moon,” has lawfully offered adult entertainment in Tyngsborough since before the enactment of the 1987 zoning ordinance and thus has a right to continue operating despite the fact that it is not located in the B-4 zone. Although the Blue Moon operates on a grandfather permit, even if it were to be required to move into the B^4 *61zone, which it is not, that would leave five sites for two businesses.

Moreover, each of the five lots, as stipulated by the parties, is suitable for development and has gas, water, and electrical lines available. The sites are accessible to the public as they are located in a commercial park with newly developed roadways. Although the parties have not supplied us with data about the number of businesses that would like to offer adult entertainment, we have not been shown that any business except D.H.L. has been denied an adult entertainment permit since the enactment of the 1996 zone. For these reasons, we hold that Tyngsbor-ough’s ordinance provides D.H.L., and other businesses wishing to offer adult entertainment, with a reasonable alternative avenue for communicating their constitutionally protected speech.

IV. Certification

On a final note, we address very briefly D.H.L.’s argument that the district court' erred by declining to certify state law questions to state court prior to determining the federal constitutional issues. Because we are not convinced that state law provides an independent and sufficient basis for deciding the case, we conclude that the district court did not err by remanding the case to state court for determination of D.H.L.’s remaining state law claims after its adjudication of the federal issues.

In conclusion, because we hold that the constitutionality of the 1987 and 1994 Tyngsborough zoning ordinances is moot and the existing ordinance is constitutional, the judgment of the district court is affirmed.

TORRUELLA, Circuit Judge.

This case directs our attention to the extent by which a town may abridge expressive activity, protected under the First Amendment and the Massachusetts Constitution, as a valid exercise of its zoning power. The Town of Mendon, Massachusetts (“Mendon”) has set forth a veritable maze of zoning restrictions that are singularly applicable to adult-entertainment businesses. Owning one of the few-parcels of land within Mendon city limits still available for the conduct of such business, Showtime Entertainment, LLC (“Showtime”), attempted to navigate these many restrictions. The- result: Showtime received an adult-entertainment license but found its preferred building plans circumscribed in both size and height, its proposed operating hours curtailed, and its ability to receive a license to sell alcohol foreclosed.

Before the district court, Mendon cast these restrictions as appropriate measures by which it sought to control only the secondary effects uniquely related to the expressive activity-altered town aesthetics, heavy traffic flow, and increased crime. Showtime retorted that the restrictions infringed on its ability to present live nude dancing to a degree that violated the Federal Constitution and the Massachusetts Declaration of Rights.

Viewing Showtime’s suit as a facial challenge to the bylaws, the district court entered summary judgment in favor of Men-*66don, concluding that the restrictions in question were sufficiently tailored towards controlling the secondary effects of speech. After careful consideration, we disagree that the bylaws regulating the size, height, and hours of operation support a substantial, content-neutral governmental interest. We find that these bylaws — which have no effect on other businesses of like size, height, or operating hours — unconstitutionally infringe on Showtime’s right to engage in a protected expressive activity. We also find that the application of Article 16 of the Massachusetts constitution to the Mendon bylaw banning the sale and consumption of alcohol is a close issue of constitutional law and difficult for us to predict. Therefore, we certify questions related to this claim to the Massachusetts Supreme Judicial Court.

I. Background

Because this appeal stems from a grant of summary judgment, we begin by setting forth the facts in the light most favorable to Showtime, the losing party below. Prescott v. Higgins, 538 F.3d 32, 38 (1st Cir.2008).

A. Mendon creates the Adult-Entertainment Overlay District

In May of 2008, at its annual town meeting, Mendon amended its zoning bylaws. Of relevance to this litigation was the addition of section 5.01, which created an Adult-Entertainment Overlay District, limiting the location of any adult-entertainment business — a category that includes adult bookstores, video stores, paraphernalia shops, and businesses showing live nude dancing — to four specific parcels of land within city limits. These contiguous parcels are located at 41, 43, 47, and 49 Milford Street, and they all border a state highway, Route 16. The text of section 5.01 included a preamble setting forth its purpose:

The purpose of this Adult Entertainment Overlay District section of the Town of Mendon Zoning Bylaws is to address and mitigate the secondary effects of adult entertainment establishments .... These effects include increased crime, and adverse impacts on public health, the business climate, the property values of residential and commercial property and the quality of life.

The provisions of this section have neither the purpose nor intent of imposing a limitation on the content of any communicative matter or materials, including sexually oriented matter or materials. Similarly, it is not the purpose or intent of this Section (Overlay District) to restrict or deny access to adult entertainment establishments or to sexually oriented matter or materials that is protected by the Constitutions of the United States and the Commonwealth of Massachusetts....

Town of Mendon Zoning By-Laws, § 5.01(b).1

Adult-entertainment businesses seeking to operate in Mendon must also abide by licensing requirements defined in state law. See Mass. Gen. Laws ch. 140, § 183A (requiring a license to operate an adult-entertainment business in the Commonwealth of Massachusetts); id. § 1 (stating that a town’s Board of Selectmen will serve as its licensing authority). On June 2, 2008, acting pursuant to their authority as the town’s licensing board, The Mendon Board of Selectmen adopted a set of regu*67lations regarding the eligibility standards for adult-entertainment licenses. These regulations, spanning eighteen pages, require that all adult-entertainment businesses ensure adequate lighting, signage, and noise reduction; hire security personnel; and prohibit touching or mingling between patrons and employees clothed in “less than opaque attire.” See Mendon Board of Selectmen, Town of Mendon Regulations Governing Adult-Entertainment Establishments Pursuant to M.G.L. Ch. 140 Sec. 183A (2008) (the “Adult-Entertainment Regulations”). None of those regulations are at issue in this case, and it is uncontested that Showtime is responsible for ensuring full compliance with these mandates in its operation of an adult-entertainment business.

B. Showtime applies for a license; Mendon responds

On June 10, 2008, soon after the passage of these regulations, Showtime applied for a license to operate an adult-entertainment business (presenting live nude dancing) on a parcel of land within the Overlay District. Showtime’s proposed building plan included an 8,935-square-foot “Adirondack style” structure with space to accommodate 244 patrons and 25 employees, to be accompanied by an 82-space parking lot.

At a September 15, 2008 town meeting, several residents spoke out against Showtime’s pending proposal, citing their fear that the facility would exacerbate traffic concerns along Route 16. Also in early September 2008, Mendon citizens petitioned the Board of Selectmen to enact additional bylaws (1) restricting the maximum size and height allowances for buildings operating adult-entertainment businesses; (2) limiting the operating hours of such businesses; and (3) banning the sale or consumption of alcohol on their premises. The stated purposes for these additional bylaws, respectively, were to (1) protect Mendon’s “historically rural atmosphere”; (2) support traffic safety; and (3) reduce crime associated with the combination of intoxication and adult entertainment.

The next month, Mendon issued decisions regarding both Showtime’s license application and the citizen-proposed bylaws. First, on October 1, 2008, the Board of Selectmen denied Showtime’s license request, citing concerns about the potential negative health and safety effects of increased traffic, noise pollution, and criminal activity. Then, on October 7, 2008, Mendon held a special meeting concerning the petition for additional bylaws restricting the operation of adult-entertainment businesses. At this meeting, the citizens’ group Speak Out Mendon voiced their support of these proposed amendments as a means of curbing the perceived adverse effects of adult-entertainment businesses.

Mendon residents voted to approve the bylaws, enacting additional zoning restrictions requiring that all adult-entertainment businesses (1) have a facility no bigger than 2,000 square feet; (2) have a facility no taller than fourteen feet; and (3) open no earlier than 4:30 p.m. on days when school is in session. See Town of Mendon Zoning By-Laws, § 5.01 (i)(i-ii),(iv). The written justifications for these restrictions were to maintain Mendon’s “historically rural atmosphere,” to ensure traffic safety, and “to provide an opportunity for all elementary school buses to finish student bus routes.” Id. § 5.01(i)(i),(iv). No other business in Mendon, including any operating within the Adult-Entertainment Overlay District, is subject to the same zoning restrictions.

At the same time, Mendon’s general bylaws were also amended, so as to forbid the granting of an alcohol sales license to any adulLentertainment business and to *68ban the consumption of alcohol by patrons within any adult-entertainment business. See Town of Mendon General By-Laws, ch. XXV. No other business in Mendon is subject to such a restriction on the licensing and consumption of alcohol, which applies only to “[adult-entertainment] establishments ... located within the layout lines of the Adult Entertainment Overlay District.”2 The stated justification for this amendment was that “the presence of alcohol is documented to exacerbate secondary crime effects at sexually oriented businesses.” Id.

The Massachusetts Attorney General reviewed the proposed amendments and, on January 20, 2009, issued an opinion letter approving the zoning bylaws restricting size, height, and operating hours of adult-entertainment businesses in Mendon. The Attorney General also approved the prohibition of the sale and consumption of alcohol within adult-entertainment establishments based on the conclusion “that the validity of these sections is fairly debatable, and [ ] they are not clearly in conflict with any statute or constitutional provision.” See Letter from Attorney General Martha Coakley to Margaret Bonderenko, Town Clerk, January 20, 2009, at 2. This letter cautioned, however, that the Attorney General’s approval process “does not and cannot include the kind of factual inquiry a court might make in resolving an ‘as applied’ constitutional challenge.”3 Id.

C. Showtime reapplies for an adult-entertainment license

Following the adoption of these new bylaws, Showtime renewed its application for an adult-entertainment license, presenting revised building plans to the Board of Selectmen. This time, Showtime proposed a single-story, fourteen-foot-high, 2,000-square-foot building that would accommodate 74 patrons, be staffed by 20 employees, and feature 103 parking spots. At the public hearings regarding this proposal, Showtime stated that it would not seek a liquor license and would not open for operation prior to 4:30 p.m. Showtime also presented a traffic study performed by Greenman-Pedersen, Inc. (the “Greenman Study”), which concluded that “[p]eak-hour traffic volume increases as a result of the development [would] have negligible impacts on [traffic near the Overlay District].” Mendon residents argued against this study, suggesting that it failed to account for traffic already caused by nearby developments and finding error in the fact that it based its estimates on a hypothetical 6,800-square-foot structure, rather than the smaller, 2,000-foot structure actually proposed.

On May 3, 2010, the Mendon Board of Selectmen approved Showtime’s second application in a ten-page decision letter, listing a subset of the applicable bylaws and regulations which would govern Showtime’s license.4

*69D. The district court finds for Mendon

Displeased with the limitations on its adult-entertainment license, Showtime filed suit, claiming that the zoning bylaws restricting its operating hours and the size and height of its building were unconstitutional restrictions of expressive activity protected by the First Amendment. See U.S. Const. amend. I. It also challenged the ban on the sale and consumption of alcohol on the premises, alleging that this restriction was in violation of Article 16 of the Massachusetts Declaration of Rights. Mass. Const. art. XVI.5 The parties filed cross-motions for summary judgment and, on August 9, 2012, the district court entered judgment in favor of Mendon on all claims related to the constitutionality of the bylaws now on appeal.6 The district court reasoned that the restrictions served an important government interest, were sufficiently narrowly tailored, and left open alternative means of communication. Showtime now appeals, largely reasserting the arguments it made before the district court.

II. Discussion

Where a district court has granted a motion for summary judgment, our review proceeds de novo. Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 61 (1st Cir.2000). In undertaking this review, we adopt the view of the record that is most favorable to the non-moving party. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993) (citations omitted). We give no heed to speculative, unsupported, or unreasonable conclusions, but favor Showtime’s factual presentation insofar as it finds support in the record. Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir.2013). We let a grant of summary judgment lie only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine where there exists “evidence [] such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

That the parties here filed cross-motions for summary judgment does nothing to alter or amend this standard of review, but demands only that we “determine whether either of the parties deserves judgment as a matter of law on [the] facts that are not disputed.” Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996). In so doing, “the court must consider each motion separately, drawing inferences against each movant in turn.” *70 Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir.1997).

A. The constitutionality of the zoning bylaws

1. Preliminary wrangling: facial versus as-applied

The parties first spar over the nature of Showtime’s constitutional claim, disputing whether it is a facial or an as-applied challenge. Mendon argues — and the district court agreed — that Showtime is limited to a facial challenge, given that it has never been sanctioned for violating any town bylaw. Showtime disagrees, arguing that it is clearly subject to the bylaws, allowing us to assess the application of these bylaws as-applied. Showtime points out that its initial license application was rejected based on size and height concerns, and that its renewed license application was only accepted based on its agreement to strictly adhere to the bylaws as amended. In the alternative, it notes that, given the facts of this case, there is little practical distinction between a facial and an as-applied challenge. Circumscribed as the universe of applicability for these bylaws is — they reach only the four plots of land within the Adult-Entertainment Overlay District — Showtime suggests that a facial challenge, in this context, must proceed in a near-identical fashion to an as-applied challenge.

In fact, this case highlights the sometimes nebulous nature of the distinction between facial and as-applied challenges, for Showtime’s challenge does not fit neatly within our traditional concept of either type of claim. Still, we are not left without guidance in navigating this issue, as the Supreme Court has faced a similar duality in the First Amendment context. See John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010). In Reed, the Court noted that the challenge on appeal “ha[d] characteristics of both” facial and as-applied challenges. Id. It concluded, however, that “[t]he label is not what matters. The important point is that [the] claim and the relief that would follow ... reach beyond the particular circumstances of these plaintiffs. [It] must therefore satisfy our standards for a facial challenge to the extent of that reach.” Id. (citing United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010)).

We understand the relief sought here to be the invalidation of the zoning bylaws, not merely a change in their application to Showtime. Drawing guidance from Reed, it is clear that this is a request that “reach[es] beyond” the precise circumstances of Showtime’s license application. See id. As such, Showtime must prove that the bylaws do not have “a plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008); see also McCullen v. Coakley, 571 F.3d 167, 174 (1st Cir.2009) (describing the requirement that a statute “has a plainly legitimate sweep” as a “refinement of [the Supreme Court’s] earlier statement that a party mounting a facial challenge ‘must establish that no set of circumstances exists under which the Act would be valid.’ ” (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987))).7

*71As Showtime notes, however, the bylaws in question apply only to adult-entertainment businesses within Mendon’s city limits, and consequently, only within the four-parcel Adult-Entertainment Overlay District. The four plots lay adjacent to one another, share a common access route, and are practically equidistant from Mendon’s residential and other commercial areas, indicating that the effect on traffic, property values, or Mendon’s cityscape created by an adult-entertainment business located on any one of these plots would be the same as that created by any of the other three. As such, the manner in which the bylaws apply to Showtime is effectively identical to any of the bylaws’ other potential applications. Even limited to a facial challenge, therefore, Showtime’s claim is not one in which our court must indulge in vivid imaginings, creating a large set of hypothetical applications so as to test their possible validity. See Reed, 561 U.S. at 194, 130 S.Ct. 2811 (explaining that a facial challenge must consider all possible applications of the law to “the extent of [its] reach ” (emphasis added)). Here, that reach is exceedingly small. Therefore, although we treat this claim as a facial challenge, the practical effect of that distinction, as relevant to Showtime’s claim, is strikingly minimal.

2. The level of scrutiny: strict or intermediate

We turn next to the task of identifying the appropriate level of scrutiny to be applied to Mendon’s regulations. In undertaking this analysis, we travel a well-worn path. It is axiomatic that “the government cannot inhibit, suppress, or impose differential content-based burdens on speech.” McGuire v. Reilly, 260 F.3d 36, 42 (1st Cir.2001) (citing Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994)). This broad protection further extends, without question, to “expressive conduct,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citing Texas v. Johnson, 491 U.S. 397, 406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)), including those expressive activities associated with adult entertainment. To sustain such a content-based restriction, the government must prove both a compelling state interest and that the means used to achieve that interest are the least restrictive available. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). In practice, this test is exceedingly difficult, and the vast majority of such regulations are held to unconstitutionally inhibit speech. See McGuire, 260 F.3d at 43.

In contrast, content-neutral restrictions on speech are awarded more deference, for they are understood to “burden speech only incidentally.” Id. Because courts have recognized that such restrictions “portend less jeopardy for freedom of speech,” they are assessed under a still-stringent, but less-exacting form of review. Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 737 (1st Cir.1995). This intermediate level of scrutiny allows regulations justified by neutral purposes, rather than by the content of speech, to survive so long as they support a significant government interest, do not burden substantially more speech than necessary, and leave available alternative channels of communication. Clark v. Cmty. for Creative *72 Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court crystallized its approach to zoning regulations affecting adult-entertainment businesses. There, the Court made clear that “with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses” are rightly considered content neutral. Id. at 49, 106 S.Ct. 925 (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70-71 & n. 34, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)). The Court explained: “[w]e have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings.... ” Id. (quoting Young, 427 U.S. at 82 n. 6, 96 S.Ct. 2440 (Powell, J., concurring)).

Where regulatory distinctions are drawn between sexually-oriented businesses and their less prurient counterparts, therefore, the regulation is content-neutral only if the differential treatment does not stem from a disapproval of the former business-type’s expression. Instead, regulations focused on secondary effects of adult entertainment, where such effects are uniquely precipitated by that type of entertainment, are considered content neutral despite their uneven application. See Nat’l Amusements, 43 F.3d at 738.

We recognize that such analytically neat eompartmentalization often becomes muddled in practice. See, e.g., City of Renton, 475 U.S. at 47, 106 S.Ct. 925 (“At first glance, the [ ] ordinance ... does not appear to fit neatly into either the 'content-based’ or the 'content-neutral’ category.”); Nat’l Amusements, 43 F.3d at 737 (“The concept of what constitutes a content-based as opposed to a content-neutral regulation has proven protean in practice.”). In this case, however, the distinction is ultimately immaterial, as the bylaws cannot survive even the less onerous test of intermediate scrutiny. See Clark, 468 U.S. at 293, 104 S.Ct. 3065 (explaining that intermediate scrutiny requires the showing of a substantial governmental interest, achieved through means that do not burden more speech than necessary and that leave open adequate alternative channels of communication). Therefore, recognizing that the zoning bylaws’ express terms set forth content-neutral purposes, we proceed in the application of intermediate scrutiny while withholding judgment as to the bylaws’ true content neutrality.

3. The underinclusiveness of Men-don’s stated interests

Mere reference to a neutral intent does not suffice to satisfy Mendon’s burden to prove that its bylaws in fact further a substantial governmental interest unrelated to the content of the speech. See, e.g., United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (requiring a regulation to “further[ ] an important or substantial governmental interest ... unrelated to the suppression of free expression); Nat’l Amusements, 43 F.3d at 738 (“[E]ven when a municipality passes an ordinance aimed solely at the secondary effects of protected speech ... the ordinance may nevertheless be deemed content-based if the municipality differentiates between speakers for reasons unrelated to the legitimate interests that prompted the regulation.” (emphasis omitted) (citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, at 429-31, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993))).

*73Indeed, where such secondary effects flow in equal measure from other businesses, which nonetheless are left untouched by the regulation in question, it stands to reason that such underinclusiveness raises questions as to whether the proffered interest is truly forwarded by the regulation, or is in fact substantial enough to warrant such regulation. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (“This court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression.”); see also Nat’l Amusements, 43 F.3d at 738. In other words, we will not blindly accept regulations that purport to address secondary effects where there is “no justification ... for distinguishing” between the effects caused by adult-entertainment businesses and the effects caused by any other business. Erznoznik, 422 U.S. at 215, 95 S.Ct. 2268 (failing to find any support for treating traffic concerns caused by adult movie theaters differently than traffic concerns caused by any other drive-in theater).

We pause to make clear, as the district court recognized, that “the First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech.” R.A.V., 505 U.S. at 387, 112 S.Ct. 2538. Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose. Florida Star v. B.J.F., 491 U.S. 524, 540, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (“[F]acial underinclusiveness ... raises serious doubts about whether Florida is serving the interests specified.....”); FCC v. League of Women Voters of Cal., 468 U.S. 364, 396, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (“[P]atent ... underinclusiveness ... ‘undermines the likelihood of a genuine [governmental] interest.’ ”) (quoting First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 793, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)); Carey v. Brown, 447 U.S. 455, 465, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980) (“The apparent ... underinclusiveness of the statute’s restriction would seem largely to undermine appellant’s claim that the prohibition ... can be justified by reference to the State’s interest....”); Erznoznik, 422 U.S. at 215, 95 S.Ct. 2268; Auburn Police Union v. Carpenter, 8 F.3d 886, 897 n. 15 (1st Cir.1993) (“A statute’s underinclusiveness ... indicates that the government is not, in fact, serving the proffered compelling interest.”).

The amendments to the zoning bylaws expressly set forth two purposes: (1) maintaining the rural aesthetics of Mendon as a small town; and (2) avoiding traffic congestion, particularly on days when school is in session. After careful consideration, we find both stated purposes to be patently underinclusive, and thus, insufficient to support Mendon’s claim that it has regulated adult-entertainment businesses only out of a substantial interest in curbing the secondary effects of such businesses.

i. Mendon’s rural aesthetics

The October 7, 2008, amendments to Mendon’s bylaws stated that size and height restrictions were intended to protect Mendon’s rural, small-town aesthetic. Showtime suggests that this claim is clearly pretextual, given that the bylaws apply only within the Adult-Entertainment Overlay District, a heavily commercialized zone. In fact, it is uncontested that the character of the Adult-Entertainment Ov*74erlay District is far from rural in nature. 'It currently houses multiple large or multistory commercial structures, including a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles, and a 10,152-square-foot nightclub. At the time Showtime applied for an adult-entertainment license, the lot it owned was occupied by a 2,595-square-foot, “1.9 story” landscaping supply store. Even after the bylaws’ passage, none of these businesses are subject to size or height restrictions.

It is thus unclear, and Mendon does not clarify, what particular negative effect the size and height of an adult-entertainment business would have on rural aesthetics that is not shared by all other large, commercial structures (including those already operating in the AdulU-Entertainment Overlay District). This shortcoming was made particularly clear during the following exchange at oral argument:

THE COURT: There’s a warehouse in that same block, isn’t there?

MENDON: On the Showtime lot there’s a landscaping supply business. There is a self-storage facility in the zone as well.

THE COURT: Yes, and how big is that?

MENDON: It is larger than 2,000 square feet. I think it’s six or seven [thousand square feet.]

THE COURT: Does the warehouse impact what the town is trying to achieve?

MENDON: The warehouse does not.

THE COURT: It’s not the size of the building, it’s what may be perceived inside the building?

MENDON: It’s, it’s a combination of factors, I think it is the size of the building, but it’s also what’s in the building....

This exchange concisely illustrates the flaw in Mendon’s reliance on aesthetics: a large adult-entertainment business has no secondary effect distinct from a large building of another sort, at least not without reference to what goes on “in the building.” Cf. Discovery Network, 507 U.S. at 425, 113 S.Ct. 1505 (“The city has asserted an interest in esthetics, but respondent publisher’s newsracks are no greater an eyesore than the newsracks permitted to remain on [city] sidewalks.”). If size does matter, but matters only in the context of what type of business a building houses, this belies any notion that Mendon’s size and height requirements are “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065). Mendon thus appears to have differentiated between speakers for reasons “unrelated to the legitimate interests that prompted the regulation,” a fact that flies in the face of Mendon’s claim that the bylaws in fact further a substantial, contentneutral, interest in rural aesthetics. Nat’l Amusements, 43 F.3d at 738 (emphasis omitted).

Given the unchallenged regulations on building appearance and advertisement, we see no cognizable difference in aesthetic impact between a large building hosting adult-entertainment activities and a large building hosting a bridge club or a bible study within the Adult-Entertainment Overlay District.8 Cf. Ward, 491 U.S. at 793, *75109 S.Ct. 2746 (“Any governmental attempt to serve purely esthetic goals by imposing subjective standards ... would raise serious First Amendment concerns.”)- The effect that the size and height of any one of these buildings would have on Mendon’s cityscape, “small town feel,” and rural aesthetics is identical to the effect of any other. Moreover, this is a fact which Mendon seems to acknowledge, for it offers no argument — beyond its problematic concession at oral argument — that adult-entertainment businesses have a distinct effect on purely aesthetic concerns. We therefore find that the un-derinclusive nature of this size and height restriction defeats Mendon’s assertion that the bylaws truly serve a substantial interest in maintaining rural aesthetics. See, e.g., Auburn Police Union, 8 F.3d at 897 & n. 15.

Before moving on, we note that Mendon attempts on appeal to subtly change the contours of its stated interest, arguing that “[b]light, decreased property values, and deteriorated neighborhoods” (interests that are more closely related to monetary value and quality of life than to a “rural aesthetic”) may spread beyond the four-plot Adult-Entertainment Overlay District. Therefore, it suggests that our review must also extend beyond the Adult-Entertainment Overlay District — a clearly commercialized area bordering a state highway, which boasts of little by way of rural aesthetic — and take into consideration Mendon’s rural nature as a whole. We refuse to do so, for the simple reason that this suggestion runs contrary to the multitude of studies Mendon itself entered into the record. These studies exhibit a common theme regarding the effect of adult-entertainment businesses ■on property values and quality of life in residential neighborhoods: these effects have a limited radius. The studies caution that any negative effects caused by adult-entertainment businesses on the surrounding area extend, on average, a few city blocks in distance.9 Therefore, even if Mendon could recraft its stated interest in aesthetics to encompass these issues, it has presented to our court a wealth of evidence suggesting that its size and height requirements would not in fact further the avoidance of such negative effects throughout the city. See Nat’l Amusements, 43 F.3d at 741 (“[A] governmental interest woven exclusively out of the gossamer threads of speculation and surmise cannot be termed substantial.”).

ii. Mendon’s traffic concerns

Avoiding traffic congestion along Route 16 is another stated justification for the size, height, and operating hours restrictions of the amended bylaws. Mendon asserts that it has a substantial interest in combating the neutral, secondary effect of increased traffic caused by patrons traveling to and from the Adulh-Entertainment Overlay District. Specifically, restricting the opening hours for adult-entertainment businesses to 4:30 p.m. is justified as a means of allowing all local school buses to complete their routes absent increased traffic. Multiple studies, Mendon argues, suggest that traffic congestion is created by adult-entertainment businesses, such that a town may choose to regulate the operating hours and size of those businesses to curb the effect. Showtime counters this argument, pointing to the fact *76that to receive an entertainment license under Massachusetts law, a business must already prove that its operations would not cause “an unreasonable increase” in traffic levels. Mass. Gen. Laws ch. 140, § 183A. It also presents the Greenman Study as proof that any traffic effect would be, at most, negligible.

Careful scrutiny reveals that the bylaws are equally underinclusive as related to traffic concerns as they are to Mendon’s rural aesthetic. We are thus convinced that Mendon, on this record, has not set forth evidence that the bylaws actually further its substantial interest in curbing traffic congestion in a manner sufficient to survive intermediate scrutiny. For one, Mendon fails to clarify how the traffic effects of adult-entertainment businesses along Route 16 are in any way distinct from the traffic effects that would be caused by any other large, commercial business that might choose to locate along the same stretch of highway. For example, Mendon makes no suggestion that these bylaws would apply to a large restaurant, clothing retailer, or car dealership (all businesses at which we would expect daytime traffic) operating within the Adult-Entertainment Overlay District pri- or to 4:30 p.m. The record also gives no indication as to how the daytime traffic effects of an adult-entertainment business operating on Showtime’s lot would be in any way distinct from, or less severe than, the effects caused by the business it would replace: a 2,600-square-foot, 1.9-story tall landscaping business.

Mendon’s reliance on the studies of other municipalities does nothing to render us less dubious of its proffered interest. Having conducted an independent review of these studies, we find that the vast majority make no mention of traffic effects at all. Even those that do discuss traffic do so in a tellingly dissimilar manner relative to Mendon’s suggested concern. The sum of these references are provided below:

• A 1979 study conducted by the Planning Department of Phoenix, Arizona states, as a hypothesis, that adult-entertainment business might cause “possible traffic congestion, unusual hours of operation, litter, noise, and criminal activity.” The study then goes on to investigate the link between criminal activity and sexually oriented businesses. It never again references traffic concerns.

• A 1980 study by the Minnesota Crime Prevention Center concludes that bars without separate parking facilities, that instead rely on street parking to serve their patrons, are more often “nuisance bars” than those with separate parking facilities.

• A 1991 study commissioned by the City of Garden Grove, California included a survey completed by real-estate agents and city residents. Both groups indicated their belief that adult-entertainment businesses located “within 200 feet of a residential area” would increase traffic. A majority of respondents also felt traffic would be increased in a commercial zone.

• A 1993 report by the St. Croix County, Wisconsin Planning Department found ■ that “[djuring night time operation hours” there could be problems related to “traffic congestion.”

• A 1996 report by the ERG/Environmental Research Group stated, generally, that in small towns with limited downtown commercial retail space, “the likelihood of a cruising circuit for cars in the vicinity of the sex oriented business increases.” The report cited concerns that “a sex oriented business will have the impact of drawing a regional ... adult, male population ... *77that has interests and activities that are at odds with those of families and the elderly.”

• A 1997 law review article cited a “concern ... with drivers who rush out of the parking lots of the business while • children are nearby.” It continued on to say that “at the core of this concern is the fear of the kind of people a nude dance club attracts.”

These references are largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis. In several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses. Also of note is that the studies wholly fail to suggest that patronage at an . adult-entertainment business would have any distinct effect when located in already commercialized zones, such as the Adult-Entertainment Overlay District.

Even observing these studies in the light most favorable to Mendon, as we must when considering Showtime’s cross-motion for summary judgment, we fail to see how they sufficiently establish that an adult-entertainment business located along a highway, in a commercially zoned area, and with off-street parking accommodations, would have a secondary effect on traffic patterns different from, or worse than, other commercial business of like size and capacity that might open in the same location. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 73, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) (“The Borough has presented no evidence, and it is not immediately apparent as a matter of experience, that live entertainment poses problems ... more significant than those associated with various permitted uses; nor does it appear that the Borough’s zoning authority has arrived at a defensible conclusion that unusual problems are presented by live entertainment.”).

Similarly, although members of Speak Out Mendon referenced heavy preexisting traffic on Route 16, “even a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinction[ ].” Erznoznik, 422 U.S. at 215, 95 S.Ct. 2268. This anecdotal reporting does perhaps even less than the studies entered into evidence to substantiate Mendon’s claim that increased traffic from an adult-entertainment business is more problematic — or more likely — than increased traffic from any other new commercial enterprise choosing to operating within the Adult-Entertainment Overlay District. Nonetheless, it is uncontested that if Showtime chose instead to operate a ballet studio, movie theater, or grocery store, those businesses would not be subject to the bylaws. Schad, 452 U.S. at 73-74, 101 S.Ct. 2176 (“We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant.”).

We note before closing that Mendon does make a limited attempt to argue that adult-entertainment businesses attract a higher percentage of out-of-town patrons, less concerned with Mendon’s quality of life, than other types of commercial activity, resulting in traffic effects unique from that of other businesses.10 Even if the *78residency of a driver had some cognizable effect on traffic flow, we find it beyond improbable that Mendon could substantiate any such distinction here, in light of the fact that Route 16 is a state highway running Easb-West through much of Massachusetts.11 By way of hypothetical, we can only presume that a large, roadside restaurant offering an early-bird dinner special to patrons as they travel through Mendon along Route 16 headed East towards Boston would likely create the exact same amount of out-of-town traffic at 4:00 p.m., half an hour before any adult-entertainment business is allowed to operate, as Showtime’s preferred building, yet would not find its size or operating hours curtailed in any way.

We therefore find Mendon’s reliance on traffic concerns to be tellingly underinelu-sive, see, e.g., Carey, 447 U.S. at 455-56, 100 S.Ct. 2286; Florida Star, 491 U.S. at 540, 109 S.Ct. 2603, revealing that Men-don’s allegedly substantial interest is not actually furthered by its bylaws, a fact fatal to its claim under intermediate scrutiny. See, e.g., O’Brien, 391 U.S. at 377, 88 S.Ct. 1673.

4. The zoning bylaws support no substantial interest

We find the zoning bylaws to be tellingly underinclusive, highlighting that Mendon has failed to prove that it has a substantial interest in regulating the secondary effects of adult-entertainment businesses that is actually farthered by its bylaws. The narrow application of these bylaws — passed in the aftermath of Showtime’s initial application for an adult-entertainment license — to only the four-plot Adult-Entertainment Overlay District belies Mendon’s proffered interest in traffic safety and rural aesthetics. We believe that the record makes clear that these interests, although theoretically substantial in their own right, are not what prompted Mendon’s amendments to the bylaws. See, e.g., Auburn Police Union, 8 F.3d at 897 & n. 15 (collecting cases finding that patent underinclusiveness may prove the lack of a substantial governmental interest). Accordingly, we find that it is Showtime, not Mendon, that ought to have been awarded summary judgment on these claims.

B. The restriction on sale and consumption of alcohol

Showtime also challenges an amendment to Mendon’s general bylaws that forbids the sale or consumption of alcoholic beverages at any adult-entertainment business within the Adult-Entertainment Overlay District. Showtime does not bring this challenge under the First Amendment, but rather asserts that Article 16 of the Massachusetts Declaration of Rights provides more expansive protection for adult entertainment than does its federal counterpart.12 Citing cases in which the Massa*79chusetts Supreme Judicial Court (“SJC”) has held bans on non-obscene nude dancing in bars unconstitutional, Showtime asks us to find that Mendon’s “total ban” on such activity is clearly impermissible under Article 16. In the alternative, it requests that we certify this question of law to the SJC. Mendon argues to the contrary, asserting that any distinction between the scope of Article 16 and the First Amendment need not concern us; under either the state or federal constitution the ban on adult entertainment occurring in conjunction with alcohol service is clearly constitutional.

As a federal court sitting in diversity over an issue of state law, we are generally tasked with making an “informed prophecy” of how the highest state court would rule on this question. See Ambrose v. New Engl. Ass’n of Sch. & Colls., Inc., 252 F.3d 488, 497-98 (1st Cir. 2001); see also In re Bos. Reg’l Med. Ctr., Inc., 410 F.3d 100, 108 (1st Cir.2005). However, where our court determines that the path of state law is sufficiently undeveloped, or the correct answer to the question before us sufficiently unclear, so as to make such prophetic action unwise, we may instead choose to certify such questions to the highest court of the state. In re Hundley, 603 F.3d 95, 98 (1st Cir.2010); Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 7 (1st Cir.1988); see also Hehman Bros. v. Schein, 416 U.S. 386, 391, 94 S.Ct. 1741, 40 L.Ed.2d 215 (1974) (holding that the decision to certify a case a question is within the “sound discretion” of federal courts). For issues of Massachusetts law, we may appropriately certify to the SJC “questions of law ... which may be determinative of the cause then pending ... and as to which it appears ... there is no controlling precedent in the decision of [the SJC].” Mass. S.J.C. R. 1.03; see also In re Engage, Inc., 544 F.3d 50, 52 (1st Cir.2008). This case meets both requirements for certification.

We need not spill much ink on the first requirement: Showtime challenges the restriction on providing adult-entertainment in conjunction with the service of alcohol solely under Article 16 of the Massachusetts Declaration of Rights. Accordingly, there is no question that proper interpretation of state constitutional law is “determinative” of this action.

The second requirement for certification is that there be “no controlling precedent” from the SJC. See Mass. S.J.C. R. 1.03. Our case law has interpreted “no controlling precedent” to mean that certification is inappropriate where “the course the state court would take is reasonably clear.” In re Engage, 544 F.3d at 53 (alterations and citation omitted). Where a “case presents close and difficult legal issues,” however, we may often be unable to “say that the course that the SJC would take is reasonably clear.” Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46, 51 (1st Cir.2013); see also In re Engage, 544 F.3d at 53. As explained below, this is one such case, and we therefore believe that certification to the SJC is appropriate.

1. Article 16’s protection of adult entertainment

As Showtime recognizes, Article 16 protects a wider swath of expressive conduct in the form of adult entertainment than does the First Amendment. See, e.g., *80 Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 201, 827 N.E.2d 180, 191 (2005) (“[T]he Federal rule does not adequately protect the rights of the citizens of Massachusetts under art. 16.”). Although nude dancing, as a form of expressive activity, falls only just within the ambit of First Amendment protections, Article 16 draws no distinction between such adult entertainment and its less prurient expressive counterparts. Cabaret Enters., Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 17, 468 N.E.2d 612, 614 (1984) (refusing to “distinguish between barroom-type nude dancing and performances of greater artistic or socially redeeming significance”); see also Mendoza, 827 N.E.2d at 196 (“Although the Supreme Court has said that nude dancing is expressive conduct within the outer perimeters of the First Amendment ... this court has rejected such qualification under art. 16.” (internal quotation marks and citation omitted)).

Similarly, the SJC has made clear that Article 16 offers robust protection to expressive activity occurring in conjunction with the sale or purchase of alcohol. While the Twenty-First Amendment’s grant of regulatory power over alcohol sales to the states has historically been read to limit the First Amendment’s protection of expressive conduct in establishments licensed to serve alcohol,13 “no provision of [the Massachusetts Declaration of Rights] gives a preferred position to regulation of alcoholic beverages.” Commonwealth v. Sees, 374 Mass. 532, 536-37, 373 N.E.2d 1151, 1155 (1978). Therefore, unlike its federal counterpart, Article 16 “makes no distinction between ‘free speech in a bar and free speech on a stage.’ ” Mendoza, 827 N.E.2d at 190 n. 15 (citing Sees, 373 N.E.2d at 1155); see also Aristocratic Rest, of Mass., Inc. v. Alcoholic Beverages Control Comm’n (No. 1), 374 Mass. 547, 554, 374 N.E.2d 1181, 1186 (1978) (“Because our State Constitution has no special provision like the Twenty-first Amendment concerning the regulation of alcoholic beverages, the right of free speech guaranteed by art. 16 has no parallel limited status in premises where alcoholic beverages are served.”).

In accordance with these strong protections, the SJC has consistently held that adult entertainment occurring in bars is considered constitutionally protected expressive conduct that may not be abridged “in the absence of a demonstrated countervailing State interest.” Cabaret Enters., 468 N.E.2d at 614; see id. (holding unconstitutional a ban on nude dancing in bars given the absence of “evidence that [the adult-entertainment facilities have] been the source of crime such as drug distribution or disorderly conduct or assaults or sexual improprieties”); Sees, 373 N.E.2d at 1156 (concluding that a restriction on nude dancing in bars was unconstitutional where the dancer “did not mingle with other employees or with patrons, and there is no contention that the performance was obscene”). But see Mendoza, 827 N.E.2d at 188-89 (applying intermediate scrutiny to an ordinance banning all public nudity where the city “at least advanced and attempted to document a gov*81ernmental interest” in crime deterrence, although withholding judgment as to the ordinance’s true content neutrality).

2. Article 16’s application to the general bylaws

Naturally, the parties draw from this precedent sharply contrasting inferences about the constitutionality of Mendon’s amended bylaws. Showtime styles the amendment as a “total ban” on the presentation of adult entertainment in conjunction with the sale or consumption of alcohol, which it claims is a clear violation of the protection offered by Article 16. Men-don, in contrast, argues that the restriction is wholly permissible; unlike the towns in Sees and Cabaret Enters., it has set forth a governmental interest and has crafted the amendment to narrowly target only those businesses most likely to cause the identified secondary effects.

Neither argument wholly convinces. For its part, Showtime fails to acknowledge that Cabaret Enters, and Sees were decided in the absence of any governmental justification for their proposed restrictions on expressive activity. See Mendoza, 827 N.E.2d at 188 (“The records in both [Cabaret Enters, and Sees] ‘fail[ed] to demonstrate [any] justification for the imposition of a restraint on the exercise of a right guaranteed by art. 16.” (alterations in original) (quoting Cabaret Enters., 468 N.E.2d at 614)). Here, in contrast, Men-don has at least set forth an interest in deterring an increase in criminal activity which it believes will arise if adult entertainment is presented in conjunction with the service of alcohol.

Under intermediate scrutiny,14 however, Mendon must also show that its interest in crime deterrence is substantial, and that its restriction on expressive activity is “ ‘narrowly tailored’ to advance ... [that] interest ‘without at the same time banning or significantly restricting a substantial quantity of speech that does not create the ... evils [the city seeks to eliminate].’ ” Id. (alterations in original) (quoting City of Bos. v. Back Bay Cultural Ass’n, 418 Mass. 175, 183, 635 N.E.2d at 1179, 1180 (1994)); see also Commonwealth v. Ora, 451 Mass. 125, 129, 883 N.E.2d 1217, 1221 (2008) (stating that under intermediate scrutiny a restriction on speech must be “no greater than is essential- to the furtherance of the government interest”). In Mendoza the answer to the second of these inquiries was simple: the ordinance banned any public nudity within city limits, making it “tantamount to censorship.” 827 N.E.2d at 189. Given that the ordinance in Mendoza so clearly failed the test for narrow tailoring, the SJC did not engage in significant analysis of what evidence is required of a city to prove the validity and substantiality of its stated interest. Neither does Mendoza provide significant guidance on how the SJC would apply the test for narrow tailoring in a case, like that now before us, presenting a much closer question than the citywide ban on public nudity considered in Mendoza. Cf. id. (“No matter what the formulation of the [narrow tailoring] test, ... a complete ban is not ‘narrowly tailored’.... ”).

In consequence, the SJC’s precedents may reasonably be conceived of as staking *82out two poles of scrutiny, with most cases falling somewhere in between. On one end, absent any justification, protected adult entertainment in the presence of alcohol service may not be constitutionally abridged. On the other end, no matter what justification is provided, a total ban on protected activity will not survive narrow tailoring. Between these poles, however, there are significant open questions regarding Article 16’s proper application. This case, which falls somewhere near the middle of the rules set forth in guiding precedent, thus presents a close issue of constitutional law, the proper resolution of which is difficult to predict, and suitable for certification to the SJC.

3. Certification to the SJC

Although “the legal standards to [be applied in this case] are relatively apparent,” “the application of those standards is difficult, and the outcome far from certain.” See Easthampton Sav. Bank, 736 F.3d at 51. Moreover, the claim rests solely on issues of state constitutional law, implicates a fundamental right of Massachusetts citizens, and may have far-reaching impact on municipalities throughout Massachusetts in their construction of local ordinances. See In re Engage, 544 F.3d at 57 (explaining that the mere difficulty of a legal issue is generally insufficient to warrant certification, but deeming certification appropriate where additional factors weigh in favor of having the state court decide such complex questions of state law) (citing Bos. Gas Co. v. Century Indem. Co., 529 F.3d 8, 15 (2008)). For these reasons, we believe certification is warranted.15

III. Conclusion

We reverse the grant of summary judgment in favor of Mendon as it relates to the bylaws regarding the size, height, and operating hours of adult-entertainment businesses. We remand this claim to the district court for entry of summary judgment in favor of Showtime.

We certify to the SJC the following questions related to Mendon’s restriction on adult entertainment occurring within establishments licensed to serve alcohol:

1. Do the pre-enactment studies and other evidence considered by Men-don demonstrate a “countervailing State interest,” Cabaret Enters., 468 N.E.2d at 614, sufficient to justify Mendon’s ban on alcohol service at adult-entertainment businesses?

*832.If the ban is so justified, is it adequately tailored?

We would further welcome the advice of the SJC on any other relevant aspect of Massachusetts law that it believes would aid in resolution of this dispute.

The Clerk of this Court is directed to forward to the Massachusetts SJC, under the official seal of this court, a copy of the certified questions and this opinion, along with a copy of the briefs and appendices filed by the parties. We retain jurisdiction over this issue pending the SJC’s response.

So ordered.

*578O’Connor, J.

We granted the defendants’ application for direct appellate review of an order entered in the Superior Court preliminarily enjoining the defendants from “asserting, enforcing or relying on any provisions of the so-called ‘Adult Entertainment Ordinances,’ Sections 17.08.065 through 17.08.069 and Section 17.16.045 of the Revere Revised Zoning Ordinance, to prevent, restrict or restrain [T & D Video, Inc.,] from opening and operating its store or from selling non-obscene adult videos and related goods at the store.” T & D Video, Inc. (T & D), argues that enforcement of those ordinances would prevent T & D from opening and operating an adult video store and thus would violate its right to free speech guaranteed by the First Amendment to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution, as amended by art. 77 of the Amendments.

We summarize the facts as set forth in the memorandum of decision of the judge who issued the preliminary injunction. In September, 1993, T & D entered into a lease of premises at 55 American Legion Highway in Revere, and began interior construction to prepare the space for use as a retail adult video store. On September 14, Thaddeus Drabkowski, president of T & D, sought a business certificate from Revere. He was told that he could not obtain the certificate unless he signed an affidavit stating that no adult videos or related material would be sold at the store. Although Drabkowski refused to sign such an affidavit, the requested business certificate was issued. However, also on September 14, Revere’s building inspector caused a stop work order to be issued. Several weeks later, the inspector allowed construction to resume. Work on the proposed video store was completed by the third week of October, 1993.

On September 16, 1993, the mayor of Revere submitted to the city council a draft proposal for ordinances that would impose adult entertainment zoning restrictions. The city council adopted the proposed ordinances on November 8. Section 17.16.045 of the adult entertainment ordinances provides that “[a]duit entertainment establishments, adult bookstore[s], adult videostore[s], adult motion picture theatre[s] and advertising signs or devices” may be allowed by special permit in the “I” district in conformance with the following minimum criteria:

*579“A. Adult Entertainment establishments, adult bookstore, adult videostore, adult motion picture theatre and advertising signs or devices may not be located less than one thousand feet from the nearest lot line of: each other; public or private nurseiy schools; public or private day care centers; public or private kindergartens; public or private elementary schools; public or private secondary schools; playgrounds; parks; conservation areas; churches; residential uses; and residential districts.

“B. A thirty foot wide landscaped strip shall be provided along the property line fronting a public or private way.

“C. Adult entertainment establishments, adult bookstores, adult videostores, adult motion picture theatres and advertising signs or devices are to be limited to lots greater than twenty-five thousand square feet but not more than forty thousand square feet.

“D. Adult entertainment establishments, adult bookstores, adult videostores, adult motion picture theatres and advertising signs or devices may not be allowed within a multiuse building or building containing other retail or consumer uses.

“E. All advertising signs and adult entertainment uses, adult bookstores, adult videostores and adult motion picture theatres shall not be located within one hundred feet of a public or private way and must be set back a minimum of one hundred feet from all property lines.

“F. No adult use advertising sign shall contain any moving, flashing or animated lights, or visible moving or movable parts.”

Sections 17.08.065 through 17.08.069, define terms used in § 17.16.045.

On August 15, 1994, the city issued T & D a certificate of acceptance and occupancy for retail use bearing the words “no adult entertainment.” On September 1, the building inspector denied T & D’s application for a sign permit because the store did not comply with the adult entertainment ordinance’s 1,000 foot property line setback provision and multi-use building restriction. The denial also notified T & D that its intended use was not allowed at 55 American Legion Highway. T & D appealed from the building inspector’s denial of its permit application to the zoning board of appeals of Revere, which unanimously affirmed the denial of the permit after a hearing.

*580After the issuance of the preliminary injunction, the defendants filed a petition for relief pursuant to G. L. c. 231, § 118, first par. (1994 ed.). A single justice of the Appeals Court summarily denied the petition. The defendants then appealed from the order in the Superior Court to a panel of the Appeals Court pursuant to the second paragraph of c. 231, § 118. We then granted the defendants’ application for direct appellate review.

“The issuance of a preliminary injunction generally rests within the sound discretion of the judge, Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 472-473 (1975), after a combined evaluation of the moving party’s likelihood of success on the merits, its claim of injury, and finally, a balancing of the competing harms to each party. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980). Our review, then, must focus on whether the lower court applied the proper legal standard and whether the record reasonably supports the lower court’s factual determinations. Id. As we noted in Cheney, supra at 615-616, ‘in assessing whether a judge erred in granting or denying a request for prehminary injunctive relief, we must look to the same factors properly considered by the judge in the first instance.’ ” General Accident Ins. Co. v. Bank of New England-West, N.A., 403 Mass. 473, 475 (1988).

Entertainment in the form of motion pictures is within the protection of the First Amendment, Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981). Moreover, nude dancing at commercial establishments (and, a fortiori, as depicted in movies) “is expressive conduct within the outer parameters of the First Amendment, though . . . only marginally so.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). California v. LaRue, 409 U.S. 109, 118 (1972). Cabaret Enterprises, Inc. v. Alcoholic Beverages Control Comm’n, 393 Mass. 13, 15-17 (1984). Commonwealth v. Sees, 374 Mass. 532, 536-537 (1978). The sale of nonobscene “adult” videotapes, then, is entitled to protection. The issue here is whether Revere’s “adult entertainment ordinances” impermissibly infringe on the protection to which that form of expression is entitled, Barnes v. Glen Theatre, Inc., supra at 566.

The threshold inquiry regarding a First Amendment challenge to a zoning ordinance is whether the ordinance in question is content based or content neutral. The Supreme Court *581“has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. ... On the other hand, so-called “content-neutral” time, place, and manner regulations are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47 (1986). The Superior Court judge acknowledged that T & D’s contention that the “Adult Entertainment Ordinances” is content based is not without merit. She also recognized, however, that the defendants’ contention that the ordinances are content neutral “has some force.” The judge did not resolve that controversy but, favorably to the defendants, assumed without deciding that the ordinances are content neutral, and proceeded to the next step in her analysis.

Evidence concerning the governmental interest underlying a time, place and manner (content-neutral) ordinance is relevant only when it consists of information that the city council considered in making its determination to enact the ordinance. Krueger v. Pensacola, 759 F.2d 851, 855 (11th Cir. 1985) (“The government must also show that the articulated concern had more than merely speculative factual grounds, and that it was actually a motivating factor in the passage of the legislation”). Basiardanes v. Galveston, 682 F.2d 1203, 1215 (5th Cir. 1982). Mere conclusions asserted after an ordinance’s enactment regarding the secondary effects of adult entertainment facilities or merchandise are insufficient to show that the ordinance was designed to serve a substantial governmental interest. See Mitchell v. Commissioner of the Comm’n on Adult Entertainment Establishments of Del., 802 F. Supp. 1112, 1121 (D. Del. 1992).

In the instant case, the judge observed that “Revere made no attempt to justify its Adult Entertainment Ordinances by reference to the secondary effects of sexually oriented businesses while the ordinances were under consideration by the City Council. The legislative record is barren. Neither did Revere seek to explain the intent and purpose of the ordinances within the context of the Ordinances themselves. Revere’s only effort at defining the purpose and intent of the Ordinances came during this litigation, well after enactment and enforcement of the laws.” Our review of the record *582confirms the soundness of the judge’s conclusions. The judge did not abuse her discretion in determining that the defendants failed to show that the adult entertainment ordinances were “designed to serve a substantial governmental interest.” Renton v. Playtime Theatres, Inc., supra at 47.

Moreover, the judge was not satisfied that the ordinances meet the requirement that alternative avenues of communication not be unreasonably limited. Renton, supra at 46-47. She noted that the ordinances contain “minimum criteria” to be met within a small area of Revere’s “I” district (industrial zone) which “taken together, all but foreclose the possibility of opening and operating any of the enumerated adult uses in the city of Revere.” The judge’s conclusions in this regard are supportable on the record. Thus, her evaluation of the ordinances as denying T & D reasonable alternative avenues of communication stands.

Having evaluated T & D’s likelihood of success on the merits, we turn briefly to a consideration of the competing harms to each party. Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616 (1980). We conclude that the judge did not abuse her discretion in evaluating Revere’s likely infringement of T & D’s First Amendment right as irreparable harm. Elrod v. Burns, 427 U.S. 347, 373-374 (1976) (plurality opinion) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”). Romero Feliciano v. Torres Gaztambide, 836 F.2d 1 (1st Cir. 1987) (given the finding that civil servant was likely to succeed on the merits of his First Amendment claim that he was demoted in violation of his associational rights, finding of irreparable harm was not abuse of discretion); 754 Orange Ave., Inc. v. West Haven, 761 F.2d 105, 112-113 (2d Cir. 1985) (zoning ordinance’s likely infringement of plaintiff’s First Amendment rights constituted irreparable harm where city’s threat to enforce ordinance operated as a prior restraint on adult bookstores).

The judge concluded, “On balance, any harm that Revere will suffer as a result of the granting of this preliminary injunction does not exceed that which T & D will suffer by being denied its constitutionally protected rights. T & D’s submissions indicate, without contradiction, that there are at least three video stores in Revere which offer adult videos for sale or rent, and that are located closer than 1000 feet to res*583idential areas. ... In light of these stores, Revere is not likely to suffer irreparable harm by the location of an additional store offering adult videos. Moreover, if Revere succeeds in demonstrating the constitutionality of the Adult Entertainment Ordinances at trial, the Ordinances will then be enforced, and T & D will be forced to close down its operations without any claim to ‘grandfathered’ rights.” We agree.

The judge did not abuse her discretion. We affirm the issuance of the preliminary injunction enjoining the defendants from “asserting, enforcing or relying on any provisions of the so-called ‘Adult Entertainment Ordinances,’ Sections 17.08.065 through 17.08.069 and Section 17.16.045 of the Revere Revised Zoning Ordinance, to prevent, restrict or restrain the plaintiff from opening and operating its store or from selling non-obscene adult videos and related goods at the store.”

So ordered.

1. The facts noted by the judge who ordered the entry of the preliminary injunction may be summarized as follows. In September, 1983, the city of Medford (city) amended c. 29 of its revised ordinances to impose zoning restrictions confining adult bookstores and motion picture theaters (adult businesses) to the city’s C-2 district. The amendment further required adult businesses to obtain a special permit before opening and created locational restrictions within the C-2 district with which the businesses are required to comply.

Additional limitations on the location of adult businesses were included in amendments to c. 29 enacted in September, 1994. Those amendments added “adult video stores” to the restrictions imposed on other adult businesses, and revised the location restrictions to prohibit the location of any adult business within 750 feet of the nearest lot line of (1) each other, (2) public or private nursery schools, (3) public or private day care centers, (4) public or private kindergartens, (5) public or private elementary schools, (6) public or private secondary schools, (7) playgrounds, (8) churches, or (9) residential properties or residentially zoned property.

The plaintiff applied to the city for a special permit to operate a retail establishment for the sale of clothing, adult books, and adult videotapes at 423 Mystic Avenue in the city’s C-2 district. At a hearing, the plaintiff presented evidence of its compliance with the special permit requirements except that its proposed business was to be located within 750 feet of a residential district. The plaintiff requested the city nonetheless issue the permit. The city council denied the application for a special permit.

2. The standard for deciding whether the judge properly granted the preliminary injunction is that set forth in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-617 (1980). We apply the same factors which the judge considered in deciding whether the standard has been satisfied, id. at 615-616, and we keep in mind as well that “[t]he issuance of a preliminary injunction generally rests within the sound discretion of the judge, Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 472-473 (1975).” Id. at 615.

*1021The plaintiff argues that the restrictions and requirements imposed by the city constitute constitutionally improper content-based limitations on its speech which are not tailored to address a substantial governmental interest. The defendants argue that the restrictions and regulations are constitutionally permissible because they are content neutral and are designed to combat the adverse secondary effects of the plaintiff’s speech. We need not decide between the parties’ contending positions on these issues because, even if we assume that the restrictions and regulations are constitutionally proper in the respects argued by the defendants as noted above, the preliminary injunction was properly entered because the city failed to show that the plaintiff had been left with reasonable alternative means of communication.

It was uncontroverted (as noted by the judge) that “the City’s zoning scheme confines adult businesses to 0.11% of the City’s total developable land, one small city block now completely occupied by a bank, an outdoor storage area and a car wash.” The judge determined that “confining ‘adult businesses’ to that tiny area of the City effectively forecloses operation of any such businesses within the City limits.”3 As the judge correctly recognized, the city was obligated, as a practical matter, to ensure that its regulatory scheme did not unreasonably foreclose avenues for communication of the material the plaintiff intended to sell. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 54 (1986) (“the First Amendment requires [the city to] refrain from effectively denying [the plaintiffs] a reasonable opportunity to open and operate [an adult business] within the city”). See generally CLR Corp. v. Hen-line, supra at 639 (where court found locational restrictions of zoning ordinance unconstitutional because “the impact of the . . . ordinance is to permit two to four restricted uses in a half-mile strip of the city”); Walnut Props., Inc. v. Whittier, 861 F.2d 1102, 1108-1109 (9th Cir. 1988), cert. denied, 490 U.S. 1006 (1989) (restriction of adult entertainment businesses to three areas of city insufficient); Alexander v. Minneapolis, 698 F.2d 936, 938-939 (8th Cir. 1983) (ordinance unconstitutional where only twelve sites potentially available for adult entertainment uses). The city did not present any information explaining why it was reasonable to restrict adult businesses to such a minuscule portion of the developable land in the city. Because the judge’s conclusions are supportable on the record on this point, we shall not disturb his determination that the restrictions deny the plaintiff reasonable alternative avenues of communication.4 We also do not need to express an opinion on the other grounds mentioned by the judge for questioning the validity of the ordinance.

*1022 Anthony M. Santoro {Robert Blumsack with him) for the defendants.

Roger W. Wilcox, Jr., of New York {David R. Kerrigan with him) for the plaintiff.

3. The grant of the preliminary injunction is affirmed.

So ordered.

CARDAMONE, Circuit Judge:

The appeal before us is from a judgment entered March 3, 2006 in the United States *344District Court for the Southern District of New York (Conner, J.) that ordered the defendant Village of Mamaroneck to issue a permit to plaintiff Westchester Day-School to proceed with the expansion of its facilities. For nearly 60 years Westches-ter Day School (plaintiff, WDS, day school, or school) has been operating an Orthodox Jewish co-educational day school with classes from pre-school to eighth grade. Believing it needed to expand, the school submitted construction plans to the Village of Mamaroneck and an application for the required special permit. When the village zoning board turned the application down, the present litigation ensued.

In the district court the school argued that the zoning board in denying its application for a permit violated the Religious Land Use and Institutionalized Persons Act (RLUIPA or Act), 42 U.S.C. § 2000cc et seq., by substantially burdening its religious exercise without a compelling government interest to justify its action. Following a bench trial, the district court ordered the zoning board to approve the school’s application, agreeing that RLUI-PA had been violated.

BACKGROUND

A. Westchester Day School’s Property

Westchester Day School is located in the Orienta Point neighborhood of the Village of Mamaroneck, Westchester County, New York. Its facilities are situated on 25.75 acres of largely undeveloped land (property) owned by Westchester Religious Institute. Westchester Religious Institute allows the school and other entities to use the property.

The school’s buildings are far from typical. The original structures were built in the late nineteenth century, one as a summer home and another as a stable. The day school, which opened in 1948, renovated the summer home and the stable to create classrooms. The school constructed Wolfson Hall in the 1960s and in 1979 Westchester Hebrew High School, a separate entity from WDS, built a two-story high school building on the property. Thus, currently there are four principal buildings on the property: the summer home (Estate House or Castle), the stable (Carriage House), Wolfson Hall, and the high school building.

The Mamaroneck Village Code permits private schools to operate in “R-20 Districts” if the Zoning Board of Appeals of the Village of Mamaroneck (ZBA or zoning board) grants them a special permit. The property is in an R-20 district and WDS operates subject to obtaining such a permit which must be renewed every three years. Most recently the day school’s permit was unanimously renewed on November 2, 2000, before the dispute giving rise to this litigation began. Several other schools are located in the vicinity of Orien-ta Point, including the Liberty Montessori School and Mamaroneck High School. Numerous large properties border the school property, including the Orienta Beach Club, the Beach Point Club, the Hampshire Country Club, and several boat yards.

B. Westchester Day School’s Aims

As a Jewish private school, Westchester Day School provides its students with a dual curriculum in Judaic and general studies. Even general studies classes are taught so that religious and Judaic concepts are reinforced. In the nursery and kindergarten classes no distinction exists between Judaic and general studies; the dual curriculum is wholly integrated. In grades first through eighth, students spend roughly half their day on general subjects such as mathematics and social studies and half on Judaic studies that *345include the Bible, the Talmud, and Jewish history.

In an effort to provide the kind of synthesis between the Judaic and general studies for which the school aims, the curriculum of virtually all secular studies classes is permeated with religious aspects, and the general studies faculty actively collaborates with the Judaic studies faculty in arranging such a Jewish-themed curriculum. For example, the General Studies Curriculum Guide describes how social studies is taught in grades 6, 7, and 8, explaining that WDS tries “to develop an understanding of humanistic, philosophical thought, the nature of cause and effect in history, and the application of ethical Judaic principles to history and daily life ” (emphasis added). The Guide further notes that “[studying the history of Eretz Yisrael [the land of Israel] has become an increasingly prominent feature of assemblies and social studies lessons.” And, the Guide’s Science Curriculum Map notes that in science class first graders are taught about “the world around them [and] the seasonal changes and connections to the Jewish holidays ” (emphasis added).

The school’s physical education teachers confer daily with the administration to ensure that during physical education classes Jewish values are being inculcated in the students. This kind of integration of Jewish and general culture is made possible when a school actively and consciously designs integrated curricular and extracurricular activities on behalf of its student body. See Jack Bieler, Integration of Judaic and General Studies in the Modem Orthodox Day School, 54:4 Jewish Education 15 (1986), available at http://www. lookstein.org/integration/bieler.htm. Thus, the school strives to have every classroom used at times for religious purposes, whether or not the class is officially labeled Judaic. A Jewish day school like WDS exists, at least in part, because Orthodox Jews believe it is the parents’ duty to teach the Torah to their children. Since most Orthodox parents lack the time to fulfill this obligation fully, they seek out a school like WDS.

C. The Expansion Project

By 1998 WDS believed its current facilities inadequate to satisfy the school’s needs. The district court’s extensive findings reveal the day school’s existing facilities are deficient and that its effectiveness in providing the education Orthodox Judaism mandates has been significantly hindered as a consequence. The school’s enrollment has declined since 2001, a trend the district court attributed in part to the zoning board’s actions. As a result of the deficiencies in its current facilities the school engaged professional architects, land planners, engineers, and an environmental consulting firm to determine what new facilities were required. Based on these professionals’ recommendations, WDS decided to renovate Wolfson Hall and the Castle and to construct a new building, Gordon Hall, specifically designed to serve the existing student population. The renovations would add 12 new classrooms; a learning center; small-group instructional rooms; a multi-pur-pose room; therapy, counseling, art and music rooms; and computer and science labs. All of them were to be used from time to time for religious education and practice.

In October 2001 the day school submitted to the zoning board an application for modification of its special permit to enable it to proceed with this $12 million expansion project. On February 7, 2002 the ZBA voted unanimously to issue a “negative declaration,” which constituted a finding that the project would have no significant adverse environmental impact and *346thus that consideration of the project could proceed. After the issuance of the negative declaration, a small but vocal group in the Mamaroneck community opposed the project. As a result of this public opposition, on August 1, 2002 the ZBA voted 3-2 to rescind the negative declaration. The effect of the rescission was to require WDS to prepare and submit a full Environmental Impact Statement.

D. Prior Legal Proceedings

Instead, the school commenced the instant litigation on August 7, 2002 contending the rescission of the negative declaration violated RLUIPA and was void under state law. The suit named as defendants the Village of Mamaroneck, its ZBA, and the members of the zoning board in their official capacities (collectively, the Village or defendant).

On December 4, 2002 the district court granted WDS’s motion for partial summary judgment and held that the negative declaration had not been properly rescinded, and therefore remained in full force and effect. See Westchester Day Sch. v. Vill. of Mamaroneck, 236 F.Supp.2d 349 (S.D.N.Y.2002). The Village did not appeal this ruling. Instead, the ZBA proceeded to conduct additional public hearings to consider the merits of the application. The ZBA had the opportunity to approve the application subject to conditions intended to mitigate adverse effects on public health, safety, and welfare that might arise from the project. Rather, on May 13, 2003 the ZBA voted 3-2 to deny WDS’s application in its entirety.

The stated reasons for the rejection included the effect the project would have on traffic and concerns with respect to parking and the intensity of use. Many of these grounds were conceived after the ZBA closed its hearing process, giving the school no opportunity to respond. The district court found the stated reasons for denying the application were not supported by evidence in the public record before the ZBA, and were based on several factual errors. It surmised that the application was in fact denied because the ZBA gave undue deference to the public opposition of the small but influential group of neighbors who were against the school’s expansion plans. It also noted that the denial of the application would result in long delay of WDS’s efforts to remedy the gross inadequacies of its facilities, and substantially increase construction costs.

On May 29, 2003 the school filed an amended complaint challenging the denial of its application. It asserted claims under RLUIPA, 42 U.S.C. § 1983, and the All Writs Act. Neither party demanded a jury trial. WDS moved for partial summary judgment, and on September 5, 2003 the district court granted that motion, holding that the Village had violated RLUIPA. See Westchester Day Sch. v. Vill. of Mamaroneck, 280 F.Supp.2d 230 (S.D.N.Y.2003). When the Village appealed, we vacated the district court’s order and remanded the case for further proceedings. See Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183 (2d Cir.2004). After remand, the Village, for the first time, demanded a jury trial, which the district court denied. See Westchester Day Sch. v. Vill. of Mamaroneck, 363 F.Supp.2d 667 (S.D.N.Y.2005). The Village moved for summary judgment, which the trial court denied as to WDS’s RLUIPA and All Writs Act claims, but granted as to the school’s claim under 42 U.S.C. § 1983. See Westchester Day Sch. v. Vill. of Mamaroneck, 379 F.Supp.2d 550 (S.D.N.Y. 2005).

A seven-day bench trial began on November 14, 2005 and resulted in the March *3472006 judgment. The district court ordered the Village to issue WDS’s special permit immediately, but reserved decision on damages and attorneys’ fees pending appellate review. See Westchester Day Sch. v. Vill. of Mamaroneck, 417 F.Supp.2d 477 (S.D.N.Y.2006). From this ruling the Village appeals.1

DISCUSSION

I Standard of Review

We review the district court's findings of fact for clear error and its conclusions of law de novo. See Guiles ex rel. Guiles v. Marineau, 461 F.3d 320, 323-24 (2d Cir.2006).

II Application of RLUIPA

RLUIPA prohibits the government from imposing or implementing a land use regulation in a manner that

imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(l). This provision applies only when the substantial burden imposed (1) is in a program that receives Federal financial assistance; (2) affects commerce with foreign nations, among the several states, or with Indian tribes; or (3) “is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.” 42 U.S.C. § 2000cc(a)(2).

A. Religious Exercise

Religious exercise under RLUIPA is defined as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A). Further, using, building, or converting real property for religious exercise purposes is considered to be religious exercise under the statute. § 2000cc-5(7)(B). To remove any remaining doubt regarding how broadly Congress aimed to define religious exercise, RLUIPA goes on to state that the Act’s aim of protecting religious exercise is to be construed broadly and “to the maximum extent permitted by the terms of this chapter and the Constitution.” § 2000cc-3(g).

Commenting at an earlier stage in this litigation on how to apply this standard, we expressed doubt as to whether RLUIPA immunized all conceivable improvements proposed by religious schools. That is to say, to get immunity from land use regulation, religious schools need to demonstrate more than that the proposed improvement would enhance the overall experience of its students. Westchester Day Sch., 386 F.3d at 189. For example, if a religious school wishes to build a gymnasium to be used exclusively for sporting activities, that kind of expansion would not constitute religious exercise. Or, had the ZBA denied the Westchester Religious Institute’s 1986 request for a special permit to construct a headmaster’s residence on a portion of the property, such a denial would not have implicated religious exercise. Nor would the school’s religious exercise have been burdened by the denial of *348a permit to build more office space. Accordingly, we suggested the district court consider whether the proposed facilities were for a religious purpose rather than simply whether the school was religiously-affiliated. Id.

On remand, the district court conducted the proper inquiry. It made careful factual findings that each room the school planned to build would be used at least in part for religious education and practice, finding that Gordon Hall and the other facilities renovated as part of the project, in whole and in all of their constituent parts, would be used for “religious education and practice.” In light of these findings, amply supported in the record, the expansion project is a “building [and] conversion of real property for the purpose of religious exercise” and thus is religious exercise under § 2000cc-5(7)(B).

Hence, we need not now demarcate the exact line at which a school expansion project comes to implicate RLUIPA. That line exists somewhere between this case, where every classroom being constructed will be used at some time for religious education, and a case like the building of a headmaster’s residence, where religious education will not occur in the proposed expansion.

B. Substantial Burden

Since substantial burden is a term of art in the Supreme Court’s free exercise jurisprudence, we assume that Congress, by using it, planned to incorporate the cluster of ideas associated with the Court’s use of it. See, e.g., Midrash Sephardi Inc. v. Town of Surfside, 366 F.3d 1214, 1226 (11th Cir.2004), cert. denied, 543 U.S. 1146, 125 S.Ct. 1295, 161 L.Ed.2d 106 (2005) (“The Supreme Court’s definition of ‘substantial burden’ within its free exercise cases is instructive in determining what Congress understood ‘substantial burden’ to mean in RLUIPA.”). But see San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) (applying dictionary meanings to define substantial burden as “something that is oppressive” and “considerable in quantity”). Further, RLUIPA’s legislative history indicates that Congress intended the term substantial burden to be interpreted “by reference to Supreme Court jurisprudence.” 146 Cong. Rec. S7774, S7776 (2000).

Supreme Court precedents teach that a substantial burden on religious exercise exists when an individual is required to “choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion ... on the other hand.” Sherbert v. Verner, 374 U.S. 398, 404, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A number of courts use this standard as the starting point for determining what is a substantial burden under RLUIPA. See, e.g., Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir.2006) (For RLUIPA purposes, a substantial burden is something that “puts substantial pressure on an adherent to modify his behavior.”). In the context in which this standard is typically applied— for example, a state’s denial of unemployment compensation to a Jehovah’s Witness who quit his job because his religious beliefs prevented him from participating in the production of war materials, see Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 709, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) — it is not a difficult standard to apply. By denying benefits to Jehovah’s Witnesses who follow their beliefs, the state puts undue pressure on the adherents to alter their behavior and to violate their beliefs in order to obtain government benefits, thereby imposing a substantial burden on religious exercise.

But in the context of land use, a religious institution is not ordinarily faced *349with the same dilemma of choosing between religious precepts and government benefits. When a municipality denies a religious institution the right to expand its facilities, it is more difficult to speak of substantial pressure to change religious behavior, because in light of the denial the renovation simply cannot proceed. Accordingly, when there has been a denial of a religious institution’s building application, courts appropriately speak of government action that directly coerces the religious institution to change its behavior, rather than government action that forces the religious entity to choose between religious precepts and government benefits. See, e.g., Midrash Sephardi, 366 F.3d at 1227 (“[A] substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly.”). Here, WDS contends that the denial of its application in effect coerced the day school to continue teaching in inadequate facilities, thereby impeding its religious exercise.

Yet, when the denial of a religious institution’s application to build is not absolute, such would not necessarily place substantial pressure on the institution to alter its behavior, since it could just as easily file a second application that remedies the problems in the first. As a consequence, as we said when this case was earlier before us, “rejection of a submitted plan, while leaving open the possibility of approval of a resubmission with modifications designed to address the cited problems, is less likely to constitute a ‘substantial burden’ than definitive rejection of the same plan, ruling out the possibility of approval of a modified proposal.” Westchester Day Sch., 386 F.3d at 188. Of course, a conditional denial may represent a substantial burden if the condition itself is a burden on free exercise, the required modifications are economically unfeasible, or where a zoning board’s stated willingness to consider a modified plan is disingenuous. Id. at 188 n. 3. However, in most cases, whether the denial of the application was absolute is important; if there is a reasonable opportunity for the institution to submit a modified application, the denial does not place substantial pressure on it to change its behavior and thus does not constitute a substantial burden on the free exercise of religion.

We recognize further that where the denial of an institution’s application to build will have minimal impact on the institution’s religious exercise, it does not constitute a substantial burden, even when the denial is definitive. There must exist a close nexus between the coerced or impeded conduct and the institution’s religious exercise for such conduct to be a substantial burden on that religious exercise. Imagine, for example, a situation where a school could easily rearrange existing classrooms to meet its religious needs in the face of a rejected application to renovate. In such case, the denial would not substantially threaten the institution’s religious exercise, and there would be no substantial burden, even though the school was refused the opportunity to expand its facilities.

Note, however, that a burden need not be found insuperable to be held substantial. See Saints Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir.2005). When the school has no ready alternatives, or where the alternatives require substantial “delay, uncertainty, and expense,” a complete denial of the school’s application might be indicative of a substantial burden. See id.

We are, of course, mindful that the Supreme Court’s free exercise jurisprudence signals caution in using effect alone to determine substantial burden. See gener *350 ally Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (observing that the “line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by government of its own affairs ... cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development” (emphasis added)). This is because an effect focused analysis may run up against the reality that “[t]he freedom asserted by [some may] bring them into collision with [the] rights asserted by” others and that “[i]t is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin.” Braunfeld v. Brown, 366 U.S. 599, 604, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). Accordingly, the Supreme Court has held that generally applicable burdens, neutrally imposed, are not “substantial.” See Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 389-91, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990).

This reasoning helps to explain why courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied even when the resulting effect is to completely prohibit a religious congregation from building a church on its own land. See Christian Gospel Church, Inc. v. City and County of S.F., 896 F.2d 1221, 1224 (9th Cir.1990); Messiah Baptist Church v. County of Jefferson, 859 F.2d 820, 824-25 (10th Cir.1988); Grosz v. City of Miami Beach, 721 F.2d 729, 739-40 (11th Cir.1983); Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 304 (6th Cir.1983); cf. Islamic Ctr. of Miss., Inc. v. City of Starkville, 840 F.2d 293, 302-03 (5th Cir.1988) (finding substantial burden where city intentionally discriminated against Muslims and ordinance “leaves no practical alternatives for establishing a mosque in the city limits”).

A number of our sister circuits have applied this same reasoning in construing RLUIPA’s substantial burden requirement. For example, the Seventh Circuit has held that land use conditions do not constitute a substantial burden under RLUIPA where they are “neutral and traceable to municipal land planning goals” and where there is no evidence that government actions were taken “because [plaintiff] is a religious institution.” Vision Church v. Vill. of Long Grove, 468 F.3d 975, 998-99 (7th Cir.2006). Similarly, the Ninth Circuit has held that no substantial burden was imposed, even where an ordinance “rendered [plaintiff] unable to provide education and/or worship” on its property, because the plaintiff was not “precluded from using other sites within the city” and because “there [is no] evidence that the City would not impose the same requirements on any other entity.” San Jose Christian Coll., 360 F.3d at 1035. The Eleventh Circuit has also ruled that “reasonable ‘run of the mill’ zoning considerations do not constitute substantial burdens.” Midrash Sephardi, 366 F.3d at 1227-28 & n. 11.

The same reasoning that precludes a religious organization from demonstrating substantial burden in the neutral application of legitimate land use restrictions may, in fact, support a substantial burden claim where land use restrictions are imposed on the religious institution arbitrarily, capriciously, or unlawfully. The arbitrary application of laws to religious organizations may reflect bias or discrimination against religion. Thus, in Saints Constantine and Helen, the Seventh Circuit concluded that a substantial burden was demonstrated in circumstances where the “decision maker cannot justify” the challenged ruling and where “repeated le*351gal errors by the City’s officials casts doubt on their good faith.” 396 F.3d at 899-901. Similarly, in Guru Nanak Sikh Soc’y v. County of Sutter, 456 F.3d 978, 989-91 (9th Cir.2006), the Ninth Circuit held that a substantial burden was shown where government officials “inconsistently applied” specific policies and disregarded relevant findings “without explanation.” Where the arbitrary, capricious, or unlawful nature of a defendant’s challenged action suggests that a religious institution received less than even-handed treatment, the application of RLUIPA’s substantial burden provision usefully “backstops the explicit prohibition of religious discrimination in the later section of the Act.” Saints Constantine and Helen, 396 F.3d at 900.

Accordingly, we deem it relevant to the evaluation of WDS’s particular substantial burden claim that the district court expressly found that the zoning board’s denial of the school’s application was “arbitrary and capricious under New York law because the purported justifications set forth in the Resolution do not bear the necessary substantial relation to public health, safety or welfare,” and the zoning board’s findings are not supported by substantial evidence. Westchester Day Sch., 417 F.Supp.2d at 564. Although the Village disputes this finding, we conclude that it is amply supported by both the law and the record evidence.

As the New York Court of Appeals has made plain, a zoning board decision based on grounds “unrelated to the public’s health, safety or welfare” is “beyond the scope of the municipality’s police power, and, thus, impermissible.” Cornell Univ. v. Bagnardi, 68 N.Y.2d 583, 597, 510 N.Y.S.2d 861, 503 N.E.2d 509 (1986). Even when a board considers permissible factors, the law demands that its analysis be supported by substantial evidence. Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002, 665 N.Y.S.2d 627, 688 N.E.2d 501 (1997) (mem.). Moreover, under New York law, a municipality may not demand that a religious institution show that “no ill effects will result from the proposed use in order to receive a special permit,” because such a requirement “fails to recognize that educational and religious uses ordinarily have inherent beneficial effects that must be weighed against their potential for harming the community.” Bagnardi, 68 N.Y.2d at 597, 510 N.Y.S.2d 861, 503 N.E.2d 509.

The district court reasonably concluded that the ZBA failed to comply with these legal mandates in several respects. For example, the zoning board denied WDS’s application based, in part, on an accusation that the school made “a willful attempt” to mislead the zoning board. In fact, the accusation was unsupported by the evidence and based on the zoning board’s own error with respect to certain relevant facts. Westchester Day Sch., 417 F.Supp.2d at 531, 571. The ZBA’s allegations of deficiencies in the school’s traffic study were also unsupported by the evidence before it. See id. at 564-66. The concern about lack of adequate parking was based on the zoning board’s own miscalculation. See id. at 567. Indeed, the ZBA impermissibly based its decision on speculation about future expansion, without a basis in fact. See id. at 568. In each of these instances, the ZBA’s assumptions were not only wrong; they were unsupported by its own experts. See id. at 532, 566, 567, 569. Indeed, the resolution drafted by the ZBA’s consultants, which would have approved WDS’s application subject to conditions addressing various ZBA concerns, was never circulated to the whole zoning board before it issued the challenged denial. See id. at 569. In sum, the record convincingly demonstrates that the zoning *352decision in this case was characterized not simply by the occasional errors that can attend the task of government but by an arbitrary blindness to the facts. As the district court correctly concluded, such a zoning ruling fails to comply with New York law.

While the arbitrary and unlawful nature of the ZBA denial of WDS’s application supports WDS’s claim that it has sustained a substantial burden, two other factors drawn from our earlier discussion must be considered in reaching such a burden determination: (1) whether there are quick, reliable, and financially feasible alternatives WDS may utilize to meet its religious needs absent its obtaining the construction permit; and (2) whether the denial was conditional. These two considerations matter for the same reason: when an institution has a ready alternative — be it an entirely different plan to meet the same needs or the opportunity to try again in line with a zoning board’s recommendations — its religious exercise has not been substantially burdened. The plaintiff has the burden of persuasion with respect to both factors. See § 2000ec-2 (putting burden on plaintiff to prove that government’s action substantially burdened plaintiffs exercise of religion).

Here, the school could not have met its needs simply by reallocating space within its existing buildings. The architectural firm it hired determined that certain essential facilities would have to be incorporated into a new building, because not enough space remained in the existing buildings to accommodate the school’s expanding needs. Further, experts hired by WDS determined that the planned location for Gordon Hall was the only site that would accommodate the new building. The answer to the first factor is there were not only no quick, reliable, or economically feasible alternatives, there were no alternatives at all.

In examining the second factor — whether the Village’s denial of the school’s application was conditional or absolute — we look at several matters: (a) whether the ZBA classified the denial as complete, (b) whether any required modification would itself constitute a burden on religious exercise; (c) whether cure of the problems noted by the ZBA would impose so great an economic burden as to make amendment unworkable; and (d) whether the ZBA’s stated willingness to consider a modified proposal was disingenuous. See Westchester Day Sch., 386 F.3d at 188 n. 3.

For any of the following reasons, we believe the denial of WDS’s application was absolute. First, we observe that the ZBA could have approved the application subject to conditions intended to mitigate adverse effects on public health, safety, and welfare. Yet the ZBA chose instead to deny the application in its entirety. It is evident that in the eyes of the ZBA’s members, the denial was final since all of them discarded their notes after voting on the application. Second, were WDS to prepare a modified proposal, it would have to begin the application process anew. This would have imposed so great an economic burden as to make the option unworkable. Third, the district court determined that ZBA members were not credible when they testified they would give reasonable consideration to another application by WDS. When the board’s expressed willingness to consider a modified proposal is insincere, we do not require an institution to file a modified proposal before determining that its religious exercise has been substantially burdened.

Consequently, we are persuaded that WDS has satisfied its burden in proving that there was no viable alternative to achieve its objectives, and we conclude *353that WDS’s religious exercise was substantially burdened by the ZBA’s arbitrary and unlawful denial of its application.

C. Least Restrictive Means to Further a Compelling State Interest

Under RLUIPA, once a religious institution has demonstrated that its religious exercise has been substantially burdened, the burden of proof shifts to the municipality to prove it acted in furtherance of a compelling governmental interest and that its action is the least restrictive means of furthering that interest. § 2000cc-2(b). Compelling state interests are “interests of the highest order.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). The Village claims that it has a compelling interest in enforcing zoning regulations and ensuring residents’ safety through traffic regulations. However, it must show a compelling interest in imposing the burden on religious exercise in the particular case at hand, not a compelling interest in general. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 432, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (“Under the more focused inquiry required by RFRA and the compelling interest test, the Government’s mere invocation of the general characteristics of Schedule I substances ... cannot carry the day.... [T]here is no indication that Congress ... considered the harms posed by the particular use at issue here .... ” (emphases added)).

The district court’s findings reveal the ZBA’s stated reasons for denying the application were not substantiated by evidence in the record before it. The court stated the application was denied not because of a compelling governmental interest that would adversely impact public health, safety, or welfare, but was denied because of undue deference to the opposition of a small group of neighbors.

Further, even were we to determine that there was a compelling state interest involved, the Village did not use the least restrictive means available to achieve that interest. The ZBA had the opportunity to approve the application subject to conditions, but refused to consider doing so.

Ill Constitutionality of RLUIPA

Given our conclusion that the ZBA violated RLUIPA by denying WDS’s application, the question remains whether RLUIPA was constitutionally applied. The Village challenges RLUIPA on the grounds that it exceeds Congress’ Fourteenth Amendment (§ 5) and Commerce Clause powers and that the Act is unconstitutional under the Tenth Amendment and the Establishment Clause.

RLUIPA states that it only applies when (1) “the substantial burden is imposed in a program or activity that receives Federal financial assistance ...(2) “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes ...,” or (3) “the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.” § 2000ec(a)(2).

By limiting RLUIPA’s scope to cases that present one of these jurisdictional nexuses, Congress alternatively grounded RLUIPA, depending on the facts of a particular case, in the Spending Clause, the Commerce Clause, and § 5 of the Fourteenth Amendment. There is no claim here that the ZBA receives federal finan*354cial assistance, but WDS does assert both that the substantial burden on its religious exercise affects interstate commerce and that it is imposed through formal procedures that permit the government to make individualized assessments of the proposed uses for the property involved. Thus, we must examine whether RLUIPA is constitutionally applied under Congress’ Commerce Clause power or whether it is constitutionally applied under Congress’ power to create causes of action vindicating Fourteenth Amendment rights.

A. Congress’ Power Under the Commerce Clause

The Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const, art. I, § 8, cl. 3. As noted above, Congress made explicit reference to this grant by limiting the application of RLUIPA to cases in which, inter alia, “the substantial burden affects, or removal of that substantial burden would affect, commerce ... among the several States.” § 2000cc (a)(2)(B).

As the Supreme Court has made plain, the satisfaction of such a jurisdictional element — common in both civil and criminal cases — is sufficient, to validate the exercise of congressional power because an interstate commerce nexus must be demonstrated in each case for the statute in question to operate. See United States v. Morrison, 529 U.S. 598, 611-12, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (“Such a jurisdictional element may establish that the enactment is in pursuance of Congress’ regulation of interstate commerce.”); United States v. Lopez, 514 U.S. 549, 561, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (noting that statute in question “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the [activity] in question affects interstate commerce”). Following suit, this Court has consistently upheld statutes under the Commerce Clause on the basis of jurisdictional elements. See, e.g., United States v. Griffith, 284 F.3d 338, 346-48 (2d Cir.2002); United States v. Santiago, 238 F.3d 213, 216 (2d Cir.2001) (per curiam). Consistent with this precedent, we now hold that, where the relevant jurisdictional element is satisfied, RLUIPA constitutes a valid exercise of congressional power under the Commerce Clause. See, e.g., United States v. Maui County, 298 F.Supp.2d 1010, 1015 (D.Haw.2003) (reaching same conclusion); Freedom Baptist Church v. Twp. of Middletown, 204 F.Supp.2d 857, 866-68 (E.D.Pa.2002) (same).

In this case, the district court found the jurisdictional element satisfied by evidence that the construction of Gordon Hall, a 44,000 square-foot building with an estimated cost of $9 million, will affect interstate commerce. We identify no error in this conclusion. As we have recognized, the evidence need only demonstrate a minimal effect on commerce to satisfy the jurisdictional element. See Griffith, 284 F.3d at 347. Further, we have expressly noted that commercial building construction is activity affecting interstate commerce. See Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 181 (2d Cir.1996) (“[Construction efforts ... have a direct effect on interstate commerce.”).

In light of our determination that RLUIPA’s application in the present case is constitutional under the Commerce Clause, there is no need to consider or decide whether its application could be grounded alternatively in § 5 of the Fourteenth Amendment.

B. Tenth Amendment

The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor pro*355hibited by it to the States, are reserved to the States respectively, or the people.” As the Supreme Court has explained, “[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States.” New York v. United States, 505 U.S. 144, 156, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). The power to regulate interstate commerce was delegated to Congress in the Constitution. Nonetheless, in New York, the Court said that even in situations where Congress has the power to pass laws requiring or prohibiting certain acts, it has no power “directly to compel the States to require or prohibit those acts.” Id. at 166, 112 S.Ct. 2408. We do not believe RLUIPA directly compels states to require or prohibit any particular acts. Instead, RLUIPA leaves it to each state to enact and enforce land use regulations as it deems appropriate so long as the state does not substantially burden religious exercise in the absence of a compelling interest achieved by the least restrictive means.

C. Establishment Clause

In determining whether a particular law violates the Establishment Clause, which provides in the First Amendment that “Congress shall make no law respecting an establishment of religion,” U.S. Const, amend. I, we examine the government conduct at issue under the three-prong analysis articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under Lemon, government action that interacts with religion must: (1) have a secular purpose, (2) have a principal effect that neither advances nor inhibits religion, and (3) not bring about an excessive government entanglement with religion. Id. at 612-13, 91 S.Ct. 2105. RLUI-PA’s land use provisions plainly have a secular purpose, that is, the same secular purpose that RLUIPA’s institutionalized persons provisions have: to lift government-created burdens on private religious exercise. See Cutter v. Wilkinson, 544 U.S. 709, 720, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). As the Supreme Court explained in Cutter, such purpose is “compatible with the Establishment Clause.” Id.

Similarly, the principal or primary effect of RLUIPA’s land use provisions neither advances nor inhibits religion. As the Supreme Court has explained, a law produces forbidden effects under Lemon if “the government itself has advanced religion through its own activities and influence.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 337, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). Under RLUIPA, the government itself does not advance religion; all RLUIPA does is permit religious practitioners the free exercise of their religious beliefs without being burdened unnecessarily by the government.

Finally, RLUIPA’s land use provisions do not foster an excessive government entanglement with religion. Although the Village contends that RLUIPA fails every part of the Lemon test, it makes no argument that the land use provisions foster intolerable levels of interaction between church and state or the continuing involvement of one in the affairs of the other. Agostini v. Felton, 521 U.S. 203, 232-33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997); Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 674-75, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). Further, entanglement becomes excessive only when it advances or inhibits religion. Agostini, 521 U.S. at 233, 117 S.Ct. 1997 (treating entanglement prong as aspect of effects prong under Lemon test); Skoros v. City of N.Y., 437 F.3d 1, 36 (2d Cir.2006). RLUIPA *356cannot be said to advance religion simply by requiring that states not discriminate against or among religious institutions. See Midrash Sephardi 366 F.3d at 1241.

Accordingly, we find that RLUIPA’s land use provisions do not violate the Establishment Clause.

IV Jury Waiver

We turn finally to the question of whether defendant waived its right to trial by jury. Under Federal Rule of Civil Procedure 38(b), “[a]ny party may demand a trial by jury of any issue triable of right by a jury.” Failure to serve a demand constitutes a waiver of that right. Fed. R.Civ.P. 38(d). Here, the Village initially failed to demand a jury trial. A litigant who has waived a jury may nonetheless demand one with respect to new issues raised by later pleadings, unless the new issues are simply “artful rephrasings” of existing issues. See Rosen v. Dick, 639 F.2d 82, 94 (2d Cir.1980). When the same parties are the litigants before and after an amended pleading, we are unlikely to find a new issue has been raised. Id. at 96. An amended complaint asserting new theories of recovery, based on the same facts as the original complaint, will not renew a defendant’s right to a jury trial when that right was waived with respect to the original complaint. 8 James Wm. Moore, Moore’s Federal Practice § 38.50[8][d] (3d ed.2006).

The Village declares its amended answer — filed a year and a half after commencement of the suit — raised new issues, and that it therefore had a right to demand a new trial on those issues. But its amended answer was identical to its initial answer except that it added a number of affirmative defenses not asserted earlier. The new affirmative defenses alleged that defendant’s denial of WDS’s application was not a complete denial, that it did not substantially burden WDS’s free exercise of religion, that the denial was based on compelling state interests, and that RLUI-PA if applied to WDS’s activities is unconstitutional. By denying plaintiffs contrary allegations, the defendant had already raised the first three issues in its initial answer.

We are left with the Village’s affirmative defense that RLUIPA if applied to WDS’s activities would be unconstitutional. But the defendant was on notice that the court would be deciding all issues relating to the general dispute. The Village should reasonably have known at the time it initially waived its jury trial right that the constitutionality of RLUIPA could constitute a part of the dispute. Like an amended complaint that simply asserts new theories of recovery, an amended answer that asserts new defense theories based on the same facts does not reestablish the defendant’s right to demand a jury trial. Hence, the district court correctly ruled the Village had not revived its right to such under Rule 38(b).

The Village also insists that the district court abused its discretion by not ordering a jury trial under Rule 39(b). Rule 39(b) provides that “notwithstanding the failure of a party to demand a jury ..., the court in its discretion upon motion may order a trial by a jury of any or all issues.” We have ruled that “inadvertence in failing to make a timely jury demand does not warrant a favorable exercise of discretion under Rule 39(b).” Noonan v. Cunard S.S. Co., 375 F.2d 69, 70 (2d Cir.1967) (Friendly, J.); see also Higgins v. Boeing Co., 526 F.2d 1004, 1006 n. 2 (2d Cir.1975) (per curiam) (“[Djespite the discretionary language of Rule 39(b) some cause beyond mere inadvertence must be shown to permit granting an untimely demand.”). Here, the Village admits that it neglected to demand a jury in June 2003. *357Accordingly, it was not an abuse of discretion for the district court to deny the Village’s 2004 request for a favorable exercise of its discretion under Rule 39(b).

V All Writs Act and Supplemental State Law Claims

After determining the Village violated RLUIPA, the district court ordered the ZBA immediately and unconditionally to issue WDS’s special permit modification. Such relief is proper under RLUIPA. See § 2000cc-2(a) (parties asserting RLUIPA claims may obtain “appropriate relief’ against a government). As a consequence, there is no need for us to examine the alternative bases the district court provided to justify this relief.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the district court is affirmed.

WIENER, Circuit Judge:

Petitioner-Appellant The Elijah Group, Inc. (“the Church”) sued the City of Leon Valley, Texas (“the City”), alleging that the City’s prohibition of the Church from performing religious services on certain properties violates the Texas Civil Practice and Remedies Code, the Texas Religious Freedom Restoration Act (TRFRA), the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), and both the Texas and U.S. constitutions. After both parties filed motions for summary judgment, the district court denied the *421Church’s motion and granted the City’s, holding that the City did not violate any of the statutes or either constitution relied on by the Church. We disagree with the district court as to one of the Church’s RLUIPA claims and hold that the City’s imposition of its land use regulation violates the Equal Terms Clause of that statute.

I. FACTS & PROCEEDINGS

A. Facts

The City is a relatively small municipality that is landlocked by the City of San Antonio. Until March 2007, the City had maintained a zoning code that allowed churches to obtain Special Use Permits (SUPs) to operate in business zones designated “B-2.” At that time, however, the City amended its zoning code for the announced purpose of stimulating the local economy by creating a retail corridor on Bandera Road. That roadway through the City is lined primarily with B-2 properties. The ordinance’s 2007 amendments both reclassified a number of B-2 uses and eliminated the right of churches to obtain SUPs in B-2 zones. The City thereby effectively excluded churches entirely from B-2 zones and relegated them to B-3 zones, which are designated for commercial uses with larger space requirements. By contrast, the City preserved the right of some similarly nonretail but nonreligious institutions to obtain SUPs in B-2 zones.

In January 2008, almost a year after the zoning ordinance was amended, the Church entered into a contract to buy a property on Bandera Road that was zoned B-2. The contract was contingent on the property owner successfully petitioning the City to rezone the property from a B-2 to B-3 so that the Church could occupy the property without restriction in accordance with the amended ordinance. When the City denied that rezoning request, the Church nevertheless agreed to lease the property from the owner until the zoning issue could be resolved.

Despite generally zoning “churches” as B-3s, the City permitted the Church to use the B-2 property for specified nonreligious activities. For example, the Church obtained a Certificate of Occupancy from the City to allow day care services on the B-2 property, but the certificate provides that “[t]he authorized use does not include any church use or any use which is inconsistent with the B-2 zoning classification.” Therefore, when the Church later began to hold religious services on that B-2 property, the City obtained a temporary restraining order (TRO) against such activity as violative of the zoning ordinance. Although the TRO has since expired, the City has declined to cite the Church until this lawsuit is resolved.

B. Proceedings

The Church filed suit against the City in state court challenging the amended ordinance’s validity and constitutionality under various state and federal laws, including the RLUIPA. The City removed the case to federal court, and the parties filed cross-motions for summary judgment. At the request of the district court, a magistrate judge issued a report, which recommended that the court grant the City’s motion for summary judgment and dismiss the Church’s motion. The district court adopted the magistrate judge’s report in full and entered the recommended judgment in favor of the City, dismissing all of the Church’s claims. The Church timely filed a notice of appeal, challenging only the district court’s dismissal of its claims under the Equal Terms and Substantial Burden Clauses of the RLUIPA and under the TRFRA.

*422II. ANALYSIS

A. Standard of Review

We review a district court’s summary judgment disposition de novo, applying the same legal standards as the district court.1 The district court appropriately grants a motion for summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”2 In our review, we may only consider the summary judgment record that was before the district court, and we must view that evidence in the light most favorable to the non-moving party.3

B. The Equal Terms Clause

The Equal Terms Clause of the RLUIPA (“the Clause”) states:

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.4

When we focus on the text of the Clause, we read it as prohibiting the government from “imposing,” i.e., enacting, a facially discriminatory ordinance or “implementing,” i.e., enforcing a facially neutral ordinance in a discriminatory manner. Here, issue is not taken with the City’s implementation of the zoning ordinance as to the Church; rather, the Church makes a facial challenge to the ordinance’s treating “churches” less favorably than other non-retail, nonreligious institutions.

In prohibiting the government from treating a religious institution “on less than equal terms with a nonreligious assembly or institution,” the Clause by its nature requires that the religious institution in question be compared to a nonreligious counterpart, or “comparator.” Since the enactment of the RLUIPA, four circuits have constructed different tests for applying the Clause, each with varying determinations of which nonreligious assemblies and institutions are proper comparators to the religious assembly or institution that brings the claim.

The Eleventh Circuit determines comparators based on whether the challenged ordinance is facially neutral or facially discriminatory.5 If the ordinance is facially discriminatory, any nonreligious assembly or institution — broadly defined as a “company of persons collected together in one place” or an “establishment” — can be a comparator.6 Under that reading, virtually every facially discriminatory ordinance violates the Equal Terms Clause. The Eleventh Circuit further recognizes, however, that a violation of the clause is “not necessarily fatal to the land use regulation.”7 It does this by extra-statutorily engrafting strict scrutiny review onto its test.8 As for ordinances that are facially neutral, however, the Eleventh Circuit classifies claims under the Clause as either (1) those that challenge ordinances of “general applicability” but that “nevertheless target! ] religion through a ‘religious *423gerrymander’ ”9 or (2) those that challenge “discriminatory application.” 10 When alleging “religious gerrymander,” a religious plaintiff must show that “the challenged zoning regulation separates permissible from impermissible assemblies or institutions in a way that burdens almost only religious uses”11 — thus assessing the treatment of the religious plaintiff relative to all other nonreligious occupants. When alleging discriminatory application, however, a religious plaintiff must show that “a similarly situated nonreligious comparator received differential treatment under the challenged regulation.”12

The Third and Seventh Circuits, in contrast, do not distinguish claims based on the nature of the zoning ordinance but apply the same test when addressing all claims under the Clause. The Third Circuit stated that “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.” 13 The Seventh Circuit alternatively has announced a more “objective” test, viz., that a zoning ordinance violates the Clause if it treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution that is similarly situated as to “accepted zoning criteria.” 14

Most recently, the Second Circuit addressed a claim under the Clause raised by a church that was prohibited from operating catering services when a hotel in the same zone was not.15 Although the court attempted to avoid choosing among the other three circuits’ tests, it concluded that the hotel was a valid comparator to the church because “the Church’s and the hotels’ catering activities [are] similarly situated with regard to their legality under [the City’s] law.”16 In other words, the Second Circuit first determined whether the two parties’ activities should both be “legal” under the zoning ordinance at issue and then looked to whether the city treated the similarly “legal” religious and nonreligious institutions on equal terms. The court ultimately concluded that the city’s imposition of the ordinance violated the Clause because “the formal differences the City asserts cannot protect its course of conduct and [ ] the institutions are similarly situated for all functional intents and purposes relevant here.”17 Even if unintentionally, the Second Circuit thus has created a fourth test — somewhat combining the Third and Seventh Circuits’ tests— which identifies a comparator that is similarly situated for all “functional intents and purposes” of the regulation.

In the instant case, the Church urged the district court to apply the Third Circuit’s test. The magistrate judge did so — considering the zoning ordinance’s regulatory purpose of “creat[ing] a retail corridor along Bandera Road” — and recommended dismissing the Church’s claim *424under the Clause because “[t]he Church ha[d] not identified a non-religious assembly which is treated more favorably than a religious assembly in creating a retail corridor.” On appeal, the Church asserts that the district court should have applied the Eleventh Circuit’s test to what the Church claims is a facially discriminatory zoning ordinance. The Church insists that the district court erred in refusing to invalidate the City’s ordinance for differentiating between religious and nonreligious assemblies and for the ordinance’s failure to pass strict scrutiny review.

We turn first to the City’s zoning ordinance. In articulating the reasoning behind and criteria to be used for creating the retail corridor on Bandera Road, the text of the ordinance does not mention religion. The City’s real problem lies in the ordinance’s “Permitted Use Table,”18 which lists many types of buildings by use and then specifies the zone or zones in which each is or is not permitted. Specifically, the use table notes that “Churches” are not allowed in B-2 zones at all, but that many nonreligious, nonretail buildings, e.g., “Club or Lodge (private),” are allowed to request SUPs and, if granted, to occupy a B-2 zone. Try as we may, we cannot reconcile the ordinance’s facial treatment of a church differently than a private club in light of the way that B-2 zones are defined.

In assessing the City’s ordinance under the Clause, we conclude that the Clause does require the Church to show more than simply that its religious use is forbidden and some other nonreligious use is permitted. The “less than equal terms” must be measured by the ordinance itself and the criteria by which it treats institutions differently. When we analyze the City’s ordinance within this framework, we are convinced that it is invalid because it prohibits the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP despite the obvious conclusion that the Church and a private club must be treated the same, i.e., on “equal terms” by the ordinance, given the similar non-B-2 nature of each.19

At bottom, the ordinance treats the Church on terms that are less than equal to the terms on which it treats similarly situated nonreligious institutions. We conclude therefore that the imposition of the City’s ordinance violates the RLUIPA’s Equal Terms Clause.20

III. CONCLUSION

For the foregoing reasons, the district court’s order granting the City’s motion for summary judgment and denying the Church’s motion for summary judgment is reversed, and the case is remanded for further proceedings consistent with this ruling.

REVERSED and REMANDED.

Marshall, C.J.

May the Church of Jesus Christ of Latter-Day Saints (church) build a steeple atop its new temple on the highest hill of Belmont where the proposed steeple would rise higher than the dimensional requirements of the applicable Belmont zoning bylaw? The board of appeals of Belmont (board) said yes, but its decision was annulled by a judge in the Superior Court. The church appealed, and we granted its application for direct appellate review.2

The church’s planned temple in Belmont complied with all zoning bylaws but for the height of its proposed steeple: the steeple would rise eighty-three feet above the roof of the temple, while under the applicable Belmont bylaw the church had a permitted right to build a steeple (projection) of eleven feet, two inches. On the church’s application for zoning relief, the board concluded that the bylaw’s projection height restriction, if applied to the steeple, would be an unreasonable regulation of a religious structure prohibited by the Dover Amendment, G. L. c. 40A, § 3, second par.3 We agree. We vacate the judgment of the Superior Court because it is inconsistent with that statute.

*143i

Since 1979, the church has owned a nine-acre wooded lot in Belmont. Bounded on the north by a major highway, Route 2, the lot is surrounded on the east, south, and west by single-family residences. In 1995, the president of the church, Gordon B. HincMey, announced plans to construct a temple on the lot. The construction of a temple, which is used to perform three sacred ceremonies, is a matter of deep religious significance to the church and its members, who believe that the location and design of temples are revealed by God to the presidency of the church.

The Belmont temple site is located in the single residence-A (SR-A) zoning district. Section 3.3 of the Belmont zoning bylaw allows religious uses by right in an SR-A zone.4 Because of the large size of its lot, the church had the right to construct a temple of up to “60 feet or 4 stories in height”5; its temple plan met that and all other zoning requirements. The permissible height of the steeple is governed, in turn, by § 4.2.2 n.l of the Belmont bylaw concerning uninhabited “projections.”6 Because the church’s eighty-three foot proposed steeple, which *144included at the top a ten-foot statue of the Angel Moroni,* *7 did not comply with that bylaw, the church applied for a special permit to exceed the height limit and, alternatively, a determination that application of the bylaw’s height restriction to the steeple would violate the Dover Amendment, G. L. c. 40A, § 3, second par.

Beginning in May, 1996, and continuing over many months, the board held numerous public hearings on the church’s application. On April 28, 1997, the board granted the requested relief. The board noted that the Dover Amendment requires a degree of accommodation between protected uses and matters of critical municipal concern. It found that there is “no grave municipal concern in controlling steeple height on churches,” and that it was “hardly accommodating to a protected use to limit the Church to a 12 foot projection.”8 The board concluded that the steeple height requested by the church was reasonable “as a Dover type regulation of height.” The board also concluded that the “benefits” provided by the church outweigh the burdens that could result from the steeple height, and that the height of the steeple requested by the church was reasonable “as a special permit matter.”9

The plaintiffs brought an action in the Superior Court challenging the board’s decision pursuant to the Zoning Act, G. L. c. 40A, § 17.10 In response the board and the church challenged the standing of each of the plaintiffs to seek relief from the board’s ruling. A judge in the Superior Court rejected that argu*145ment and concluded that at least one of the plaintiffs had standing. The judge then ruled that the Dover Amendment did not apply to the church’s application for zoning relief because “neither the presence nor the height” of the steeple represents a “necessary element of the Mormon11 religion.” She also concluded that the board had abused its discretion by issuing a special permit allowing the steeple.

n

The plaintiffs Arleen Martin, Jenny Altschuler, and Margaret Boyajian are owners of residential properties that abut the temple site. The plaintiff Joyce Jones is the owner of residential property that “abuts a way which abuts an abutter to the church property,” and resides within 300 feet of the temple. The church first challenges the judge’s decision affirming the standing of all four plaintiffs to bring this action. We agree with the judge that Martin has standing, albeit on grounds somewhat different from those on which the judge relied. We therefore need not address the standing of the remaining three plaintiffs. See Save the Bay, Inc. v. Department of Pub. Utils., 366 Mass. 667, 674-675 (1975); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 476 n.7 (1986).12

As an abutter to the temple site, Martin enjoys a rebuttable presumption that she is a “person aggrieved” under G. L. *146c. 40A, § 11. See Bell v. Zoning Bd. of Appeals of Gloucester, 429 Mass. 551, 553-554 (1999), quoting Marashlian v. Zoning Bd. Of Appeals of Newburyport, 421 Mass. 719, 721 (1996). Martin claimed that she would be adversely affected by the shadow of the steeple, as well as the steeple’s visual impact. The judge found that Martin “would have a view of most, if not all, of the steeple from her back door and part of her patio, as well as a clear view from areas in her yard where she regularly gardens and landscapes”; she “also would see the spire from the front of her house.” The judge pointed to the fact that the proposed steeple was 139 feet,13 and would be built at the top of a hill in Martin’s backyard. She concluded that Martin had standing because of the “extreme and unique” visual impact caused by the “presence of such an enormous structure looming over” Martin’s property.

Generally, concerns about the visual impact of a structure do not suffice to confer standing, and we are not persuaded by the judge’s reasoning on this point. See Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989). But Belmont’s zoning bylaw itself provides that the board should take into consideration the “[vjisual [cjonsequences” of any proposed structure. Subsection (1) of § 7.4.2 (c) of the bylaw provides that “[vjiews from public ways and developed properties should be considerately treated in the site arrangement and building design.”14 A defined protected interest may impart standing to a person whose *147impaired interest falls within that definition. See Monks v. Zoning Bd. of Appeals of Plymouth, 37 Mass. App. Ct. 685, 688-689 (1994), citing Circle Lounge & Grille, Inc. v. Board of Appeal of Boston, 324 Mass. 427, 431 (1949). In Monks v. Zoning Bd. of Appeals of Plymouth, supra, homeowners appealed from the grant of a special permit to build a communications tower. The Appeals Court held that a bylaw similar to the one at issue here15 did not confer automatic standing on abutters, but the abutters could establish that they were within the legal scope of the protection created by it. Id. at 688. In that case the abutters did so by dfemonstrating that the tower “would be ‘clearly visible from almost every window’ of their home.” Id. at 687. Here the judge found that the towering steeple would be visible to Martin from most, if not all, of her property, both during the day and when lit at night.16 We conclude that Martin has demonstrated that she came within the scope of Belmont’s bylaw protection sufficiently to confer standing on her.17

m

The Dover Amendment precludes the adoption of zoning ordinances or bylaws restricting the use of land for religious (and other exempt) purposes, G. L. c. 40A, § 3, second par., but authorizes “reasonable regulation[]” of bulk, height, yard size, *148lot area, setbacks, open space, and parking requirements. See note 3, supra. The amendment “seeks to strike a balance between preventing local discrimination against [a religious] use . . . and honoring legitimate municipal concerns that typically find expression in local zoning laws” (citation omitted). Trustees of Tufts College v. Medford, 415 Mass. 753, 757 (1993). Local zoning requirements are meant to be applied uniformly. Consequently, “local officials may not grant blanket exemptions from the requirements to protected uses.” Campbell v. City Council of Lynn, 415 Mass. 772, 778 (1993). But they may decide that zoning requirements concerning height and dimension should not be applied to a proposed religious use where it would unreasonably impede the protected use without appreciably advancing critical municipal goals. See Trustees of Tufts College v. Medford, supra at 757-761.

The board made a careful examination of the case law interpreting the Dover Amendment. It concluded that the first issue to be considered was “whether the . . . structure is being used for a religious purpose.” The board found that it “is clearly part of Mormon theology to reflect, in their buildings, the belief of an ascension towards heaven.” The board found that members of the church believe that steeples, by pointing toward heaven, “serve the purpose of lifting Mormons’ eyes and thoughts towards heaven.” It concluded that the steeple served a religious purpose, and that application of the Belmont bylaw regulating the height of uninhabited projections would be an unreasonable regulation of a religious use.

Rejecting that analysis, the judge found that, “[wjhile a steeple may have inspirational value and may embody the Mormon value of ascendency towards heaven, that is not a matter of religious doctrine and is not in any way related to the religious use of the [tjemple.” She then determined that, because “neither the presence nor the height of the steeple atop the [tjemple represents a necessary element of the Mormon religion,” it does not “aid in the Mormons’ system of faith” so as to be entitled to be analyzed pursuant to the Dover Amendment. In the alternative, the judge concluded that, even if the Dover Amendment were applicable, the church “failed to carry its burden of proof” that limiting the height of the *149proposed steeple to eleven feet, two inches, is “unreasonable.” She reached this conclusion because the church had not shown that “limiting the spire [height] would prevent or significantly impede the religious use” of the temple. The judge erred on both grounds.

A

First, in deciding that the Dover Amendment was not applicable, the judge erroneously framed the question as “whether the construction of the spire atop the already existing [t]emple[18] constitutes the ‘use of land or structures for religious purposes’ so as to trigger a Dover Amendment analysis.” The statute directs the inquiry to the use of “land” or a “structure,” not the use of an element or part of a structure. See G. L. c. 40A, § 3, second par. (“No zoning ordinance or by-law shall. . . prohibit, regulate or restrict the use of land or structures for religious purposes”). See Worcester County Christian Communications, Inc. v. Board of Appeals of Spencer, 22 Mass. App. Ct. 83, 87 (1986) (“focus must be placed on the use of the structure”). To view each element, each section of a “structure,” as requiring an independent “religious” use leads to impossible results: Is a church kitchen or a church parking lot a “religious” use? We have not formulated the test so narrowly. In Trustees of Tufts College v. Medford, 415 Mass. 753, 754-755 (1993), for example, we considered the applicability of the Dover Amendment to several construction projects proposed by an educational institution, including a multi-level parking garage. Id. We recognized that the proposed parking garage was for an educational purpose, because it “will be located in the core . . . area of Tufts’ campus.” Id. at 755. While the judge’s inquiry may have focused on the steeple because the temple complied in all other respects with Belmont’s zoning bylaws, the question under the statute is whether the structure as a *150whole is to be used for religious purposes.19 It clearly is, and just as clearly the Dover Amendment applies.

The judge also used an erroneous legal test to determine whether a “structure” serves a religious purpose, thereby entering an area of inquiry that the First Amendment to the United States Constitution prohibits. She correctly noted that “ ‘[r]eligious purpose’ means something in aid of a system of faith and worship,” citing Needham Pastoral Counseling Ctr., Inc. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 33 (1990). She then impermissibly concluded that a steeple is not “a necessary element of the Mormon religion.”

It is not for judges to determine whether the inclusion of a particular architectural feature is “necessary” for a particular religion. A rose window at Notre Dame Cathedral, a balcony at St. Peter’s Basilica — are judges to decide whether these architectural elements are “necessary” to the faith served by those buildings? The judge found, as she was compelled to do in the face of overwhelming and uncontradicted testimony, that temples “are the places where Mormons conduct their sacred ceremonies.” No further inquiry as to the applicability of the Dover Amendment was warranted. See Parish of the Advent v. Protestant Episcopal Diocese of Mass., 426 Mass. 268, 284-285 (1997) (civil tribunals must avoid resolving matters of purely ecclesiastical nature). See also Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 887 (1990), and cases cited (“[rjepeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim”).

*151B

As an alternative ground for denying relief, the judge determined that, even if the Dover Amendment applied, the church failed to prove that application of the Belmont bylaw to its temple was unreasonable. We described in Trustees of Tufts College v. Medford, 415 Mass. 753 (1993), and Campbell v. City Council of Lynn, 415 Mass. 772 (1993), the standards by which to analyze application of the Dover Amendment to exempt institutions. While the reasonableness of a local zoning requirement will depend on the particular facts of each case, we said that a judge should consider whether the requirement sought to be applied takes into account “the special characteristics of [the exempt] use,” adding that a zoning requirement that results “in something less than nullification of a proposed [exempt] use may be unreasonable within the meaning of the Dover Amendment.” Trustees of Tufts College v. Medford, supra at 758-759 & n.6. See Campbell v. City Council of Lynn, supra at 778.

The judge found that the church had not met its burden of proving that the height restriction was unreasonable because it had not shown “that hmiting the spire to 12 [feet] would prevent or significantly impede the religious use of the [t]emple or substantially diminish or detract from its usefulness.” By considering only whether the height restriction prevented or diminished the temple’s religious “usefulness,” the judge’s focus was again too narrow. There are several ways in which an applicant may demonstrate “unreasonableness.” See, e.g., Trustees of Tufts College v. Medford, supra at 759-760 (zoning requirement unreasonable if it detracts from usefulness of structure, imposes excessive costs on applicant, or impairs character of proposed structure). See also Rogers v. Norfolk, 432 Mass. 374, 385 (2000) (“proof of cost of compliance is only one way” to show unreasonableness, and court must consider other aspects such as use or character of property); Campbell v. City Council of Lynn, supra at 778 (same). The judge should have considered whether compliance with Belmont’s height restrictions would have impaired the character of the temple, while taking into account the special characteristics of its exempt use.

*152The judge dismissed the church’s desire to build a steeple as a “purely” aesthetic issue. But matters of aesthetic and architectural beauty are among the factors to be considered in deciding whether a zoning requirement “impairs the character” of a proposed exempt use. Trustees of Tufts College v. Medford, supra at 757, 759 & n.6. The “character” of the temple with its steeple surely encompasses both its architectural beauty, as well as its religious symbolism. See Petrucci v. Board of Appeals of Westwood, 45 Mass. App. Ct. 818, 826-827 (1998) (Dover Amendment precluded application of zoning ordinance that would “disturb the sense of the building’s continuity” and ruin its “architectural integrity”). The record is replete with evidence that the steeple is integral to the specific character of the contemplated use. The church’s architect based his design on an approved church prototype. There was uncontradicted testimony that the church values an ascendency of space for the religious ceremonies performed in temples. The architect designed the temple to have a steeple topped by a religious symbol, a statue of the Angel Moroni, because he considered the design of a well-proportioned steeple to be part of his assignment.20 There was evidence that all but three of the church’s numerous temples located in countries around the world have steeples.21 The Mormon religion is hardly unique in this regard: churches have long built steeples to “express elevation toward the infinite, [their] spires soaring into the heavens.” J. Sallis, Stone 63 (Ind. Univ. Press 1994), and a steeple is the precise architectural feature that most often makes the public identify the building as a religious structure. The judge found that, “[w]hile a spire may have inspirational value and may embody the Mormon value of ascendancy towards heaven, that is not a matter of religious doctrine . . . .” It is not permissible for a judge to determine what is or is not a matter of religious doctrine. See Fortin v. *153 Roman Catholic Bishop of Worcester, 416 Mass. 781, 785 (1994). See also Fowler v. Rhode Island, 345 U.S. 67, 70 (1953) (“no business of courts to say . . . what is a religious practice or activity”). In any event, religious “doctrine” is not the defining test whether imposition of a zoning requirement will impair the character of a religious building.

The board found, and there was no evidence to the contrary, that no municipal concern was served by controlling the steeple height of churches. It concluded that the height exemption requested by the church was reasonable in light of the function of a steeple, and the importance of proportionality of steeple height to building height. Once it determined that the Dover Amendment was implicated, it was permissible for the board to consider whether something less than the original design of the steeple height was reasonable. It did so, and the church voluntar-, ily amended its design to reduce the height of the steeple.22 We agree with the board that a rigid application of Belmont’s height restrictions for uninhabited “projections” would impair the character of the temple without advancing any municipal concern.

C

Because we conclude that the height restriction imposed on uninhabited “projections” under § 4.2.2 of the Belmont bylaws may not reasonably be imposed on the church because of the Dover Amendment, we need not address whether the judge impermissibly exceeded her authority in annulling the decision of the board to issue a special permit.23 We also need not consider whether the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc (2000), prohibits the application of the Belmont height limitation to the church’s *154proposed steeple. The judgment of the Superior Court is vacated. The case is remanded to the Superior Court. A new judgment is to be entered affirming the decision of the board of appeals of Belmont.

So ordered.

Lens, J.

The Dover Amendment, G. L. c. 40A, § 3, second par., exempts from certain local zoning laws land or structures that are to be used by nonprofit educational institutions for “educational purposes.” The plaintiff, a private college, brought suit against a town and a local zoning authority (defendants), seeking, among other things, a declaration that its proposed development of residential and educational facilities for older adults known as “Regis East” qualifies for protection under the Dover Amendment. A Land Court judge granted summary judgment in favor of the defendants. The plaintiff appealed and we granted its application for direct appellate review. Because we cannot conclude that the plaintiff “has no reasonable expectation” of demonstrating that Regis East will primarily operate in furtherance of educational purposes, Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991), we vacate the judgment and remand the case to the Land Court.2

1. Background, a. Facts. The parties stipulate that the plaintiff is a “non-profit educational corporation” within the meaning of the Dover Amendment.3 The plaintiff offers both graduate and undergraduate degrees, operates a continuing education program designed for senior citizens residing in the town of Weston (Weston) and surrounding communities, and maintains established nursing and social work programs.

*282The plaintiff is affiliated with the Congregation of the Sisters of St. Joseph (Sisters of St. Joseph), a Catholic religious order whose members continue to form a majority of the plaintiff’s board of governors. Since 1927, either the plaintiff or the Sisters of St. Joseph have held title to approximately 130 acres of land in Weston. The plaintiff’s campus presently occupies approximately seventy of these acres, and is located on the western side of Wellesley Street, a street that bisects the larger parcel of campus land. The proposed development, Regis East, will be across the street on a site of approximately sixty acres that is at present largely wooded and undeveloped.

As planned, Regis East will comprise eight buildings, with a total built area of 766,600 square feet.4 The motion judge inferred based on facts in the record that the residential units themselves would occupy approximately 470,000 square feet, accounting for approximately sixty per cent of the built area. The remaining (nonresidential) area is expected to be used for a variety of purposes, including dining, meetings and events, fitness activities, healthcare, and recreation. The project’s nonresidential area will also house classrooms, a “Children’s Center,” and an “Adult Day Care Center.” The nonresidential area will contain a central connecting “promenade,” with two levels of parking underneath it.

Residents at Regis East will live in apartment units of about 1,300 square feet. They are expected to average seventy-five years of age at the time of their arrival. They will be admitted based on an application and interview process, the details of which remain unspecified. Residents will be required to pay an entrance fee of between $700,000 and $1 million that, in large part, will be returnable to them, or their estates, should they leave. They will also pay a monthly fee of approximately $4,000.5

The plaintiff indicates by affidavit that residents will be assigned “academic advisors” and will be required to enroll in a minimum of two courses per semester,6 which they will choose *283in consultation with their advisors. Residents will be able to satisfy the minimum course requirement through courses offered to students enrolled in degree-granting programs, the current continuing education program, or self-directed study approved by the resident’s academic advisor and by a person holding the title of “the Dean of the East Campus.”

Residents will also be able to enroll in more than the minimum required level of classes, and potentially to pursue degrees and certificates awarded to the plaintiff’s current student body. Further, residents will be assigned a “wellness coordinator,” and will be required to take health and fitness classes offered “through” the plaintiff. The plaintiff avers that these requirements will be individualized and coordinated through a “Wellness and Education Curriculum Plan” that will account for each resident’s individual intellectual and physical abilities and interests, and that will be approved by the dean.

The plaintiff also anticipates a level of integration between Regis East and its existing campus. Residents will have full access to facilities and events on the west campus. West campus students also are expected to be able to take advantage of nursing and social work opportunities that may arise at Regis East. The plaintiff emphasizes, in particular, that students enrolled in its degree-granting nursing programs could potentially obtain clinical placements at Regis East.7 However, the plaintiff has provided few specifics on how such internships and clinical placements will be implemented.

b. Procedural history. In 2005, the plaintiff petitioned the zoning board of appeals of Weston (zoning board) for relief from certain of Weston’s municipal zoning regulations that would otherwise preclude construction of the Regis East development. The zoning board denied this petition, based in part on its determination that it did not have jurisdiction to find that Weston’s zoning regulations were preempted by the Dover *284Amendment. The plaintiff then brought an action in the Land Court against Weston and its zoning board.

A Land Court judge determined that the zoning board did have jurisdiction to determine whether the project was protected under the Dover Amendment, and remanded the matter for such a determination. On remand, the zoning board again denied the plaintiff’s petition. The parties then returned to the Land Court. The judge subsequently granted summary judgment for the defendants, concluding that the plaintiff’s proposed use of Regis East did not fall within the protection of the Dover Amendment.

The judge rested his decision on a determination that Regis East’s educational purpose “seems subordinate to [the plaintiff’s] desire to provide elderly housing and/or a source of revenue.” He noted further that the record was “unclear” whether the plaintiff would in practice insist on the residents participating in educational programs, and specifically whether the plaintiff would in fact evict residents who failed to complete the minimum course requirement. Finally, he echoed the defendants’ concern that “elements” of the project’s educational components were “vague.”

2. Discussion. We first address the scope of the Dover Amendment’s protection of “the use of land or structures for . . . educational purposes.” Concluding that the statute protects only those uses serving primarily educational purposes, we then address whether the plaintiff has shown that the record before the motion judge contains evidence sufficient to create a material dispute of fact whether Regis East has as its dominant purpose a goal that “reasonably could be described as educationally significant.” Whitinsville Retirement Soc’y, Inc. v. Northbridge, 394 Mass. 757, 761 n.3 (1985) (Whitinsville).

a. Standard of review. We review a grant of summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). Summary judgment is appropriate when, “viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), and cases cited.

b. Scope of protected educational purposes. The Dover Amendment provides, in relevant part:

*285 "[N]or shall any [zoning] ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic or by a religious sect or denomination, or by a nonprofit educational corporation-, provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements” (emphasis added).

We have construed this text on a number of occasions. See, e.g., Whitinsville, supra at 759-761; Fitchburg Hous. Auth. v. Board of Zoning Appeals of Fitchburg, 380 Mass. 869, 872-874 (1980) (Fitchburg); Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 113 (1960). In so doing, we have emphasized that the word “education,” as employed in Massachusetts statutes and cases, “is a broad and comprehensive term.” Mount Her-mon Boys’ Sch. v. Gill, 145 Mass. 139, 146 (1887). We have refused to limit Dover Amendment protection to traditional or conventional educational regimes.

We have also, however, recognized two commonsense and interrelated limits on the statute’s application. The first is that the Dover Amendment protects only those uses of land and those structures that have as their bona fide goal something that can reasonably be described as “educationally significant.” Whitinsville, supra at 761 n.3. The second is that the educationally significant goal must be the “primary or dominant” purpose for which the land or structures will be used. Id. at 760, citing Cummington Sch. of the Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 603 (1977). See Fitchburg, supra at 874.

i. Nontraditional educational goals. A proposed use of land or structures may have an educational purpose notwithstanding that it serves nontraditional communities of learners in a manner tailored to their individual needs and capabilities. Fitchburg, supra at 874-875. Accordingly, we have concluded that the Dover Amendment applied to certain facilities for the disabled or the infirm, notwithstanding that the education afforded by such institutions differed markedly from that offered by *286“traditional” academic institutions. See id. at 869-870 (residential facility in which “adults, with histories of mental difficulties, will live while being trained in skills for independent living, such as self-care, cooking, job seeking, budgeting, and making use of community resources”); Gardner-Athol Area Mental Health Ass’n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 13-14 (1987) (residential facility where adults with mental disabilities “would be taught daily living, as well as vocational skills”).

These cases comport not only with the long-standing view in Massachusetts that “[ejducation is a broad and comprehensive term,”8 Mount Hermon Boys’ Sch. v. Gill, supra at 146, but also with the legislative history of the Dover Amendment. As part of a general revision of the zoning statutes in 1975, the Department of Community Affairs proposed that Dover Amendment protection be limited to “school[sj” or analogous “place[s] or facilities].” See 1972 House Doc. No. 5009 at 84. In rejecting this language, the Legislature chose not to adopt a statutory test that would limit Dover Amendment protection only to projects similar to “schools,” a term fairly read as denoting traditional educational institutions. Such a rejection “provides an indication that the Legislature did not want” the protection of the Dover Amendment to be limited only to those facilities closely analogous to traditional schools and colleges.9 Commonwealth v. Houston, 430 Mass. 616, 625 (2000). See Green v. Wyman- *287 Gordon Co., 422 Mass. 551, 556 (1996), citing 2A Singer, Sutherland Statutory Construction § 48.04 (5th ed. 1992).

In light of the historically broad meaning accorded the word “education,” and the flexibility preserved by the Legislature in its 1975 rewording of the Dover Amendment, we are unwilling to conclude that a party seeking the protection of the Dover Amendment is required to show that its proposed use of land will be analogous to a traditional educational institution. Thus, there is no reason why, in principle, the promotion of “the cognitive and physical well being of elderly persons” through academic and physical instmction could not be an educational purpose under the Dover Amendment. See Lasell Village, Inc. v. Assessors of Newton, 67 Mass. App. Ct. 414, 423 (2006).

ii. Primary educational purpose. That conclusion does not, however, dispose of the case before us. In our prior Dover Amendment cases, unlike the present action, the parties did not dispute the primary purposes to be accomplished by the challenged projects, but rather questioned whether those purposes were properly characterized as “educational.” See, e.g., Whitins-ville, supra at 759 (no dispute that facility would “teach[] [elderly residents] crafts and provid[e] entertainment and stimulus for them”); Fitchburg, supra at 870, 874 (no dispute that facility would house “adults, with histories of mental difficulties, . . . while . . . training them] in [specified] skills for independent living”). Here, the concern expressed both by the judge and by the defendants is that the project may not in fact operate as the plaintiff claims it will. In the zoning board’s view, the educational aspects of the Regis East development are so “amorphous, flexible and vague” as to suggest that they are mere “window dressing” for what is essentially a “luxury residential” complex.

It is well settled that purely residential and purely recreational projects are not referred to in normal usage as “educational,” notwithstanding that the residences may be quiet and conducive to study, Phi Beta Epsilon Corp. v. Boston, 182 Mass. 457, 459 (1903), or that the recreation provided “be entertainment of the highest and most beneficial type.” Boston Symphony Orch. v. Assessors of Boston, 294 Mass. 248, 256 (1936). Further, we have required not only that a proposed use of land have *288educational purposes, but also that these purposes be “primary or dominant.” Gardner-Athol Area Mental Health Ass’n v. Zoning Bd. of Appeals of Gardner, 401 Mass. 12, 18 (1987) (Lynch, 1, dissenting). Thus, the plaintiff must show not only that Regis East will serve educational purposes, but that such purposes predominate over Regis East’s residential and recreational components.

The plaintiff challenges this dominant purpose requirement. Noting that the words “primary” and “dominant” do not appear in the statutory text, the plaintiff contends that Regis East should qualify as a “use of land for . . . educational purposes” so long as the project incorporates more than “incidental” educational components. Although the dominant purpose requirement represents a judicial gloss on the statute, it is consistent with the statutory language and furthers the purposes of the act.10

In employing the phrase “educational purposes,” the Legislature used “everyday words” that must be interpreted in view of common usage. See Kurz v. Board of Appeals of N. Reading, 341 Mass. 110, 112 (1960). See also Schulman v. Attorney Gen., 447 Mass. 189, 191 (2006), quoting Mazzone v. Attorney Gen., 432 Mass. 515, 526 (2000) (Legislature presumed to employ statutory terms in manner consistent with their “com*289mon and approved usage”). “[I]n a broad sense, anything taught might be considered, to a greater or less degree, educational.” Kurz v. Board of Appeals of N. Reading, supra at 113. That being said, however, the Dover Amendment is a statute regulating “land use, not philosophy,” Needham Pastoral Counseling Ctr. v. Board of Appeals of Needham, 29 Mass. App. Ct. 31, 34 (1990), and a facility would only be described as “educational” in common usage if it served primarily educational purposes.11 Whitinsville, supra at 760. See Black’s Law Dictionary 592 (9th ed. 2009) (defining “educational institution” as “all buildings and grounds necessary to accomplish the full scope of educational instruction” [emphasis supplied]).

Moreover, the Dover Amendment represents a specific exception to the general power of municipalities to adopt and enforce zoning regulations and by-laws. See Crall v. Leominster, 362 Mass. 95, 101-102 (1972). “The whole of the Dover Amendment . . . seeks to strike a balance between preventing local discrimination against an educational use . . . and honoring legitimate municipal concerns that typically find expression in local zoning laws” (citation omitted). Trustees of Tufts College v. Medford, 415 Mass. 753, 757 (1993). As a practical matter, the protection afforded by the Dover Amendment can be financially advantageous to the land owner. Because the statutory purpose of preventing local discrimination against educational uses is only furthered if the intended use of the land is in fact educational, the term “educational purposes” should be construed so as to minimize the risk that Dover Amendment protection will improperly be extended to situations where form has been elevated over substance.12 See Rice, Re-Evaluating the *290Balance Between Zoning Regulations and Religious and Educational Uses, 8 Pace L. Rev. 1, 42 (1988).

The primary purpose requirement accordingly reflects the concern that the Dover Amendment protect only those projects in fact having as their primary and genuine purpose a “goal that reasonably could be described as educationally significant.” Whitinsville, supra at 761 n.3. Otherwise put, the requirement helps ensure that a party invoking Dover Amendment protection does so without engrafting an educational component onto a project in order to obtain favorable treatment under the statute.

The dominant purpose requirement is consistent with the zoning act as a whole. In categorizing uses of land under the zoning act, courts have traditionally sought to determine the principal use of an establishment “viewed in its totality.” See, e.g., Foxborough v. Bay State Harness Horse Racing & Breeding Ass’n, 5 Mass. App. Ct. 613, 617, 619 (1977). Once identified, that principal use rather than any subsidiary use generally controls determinations of the property’s consistency with zoning ordinances. See, e.g., Henry v. Board of Appeals of Dunstable, 418 Mass. 841, 844 (1994); Petros v. Superintendent & Inspector of Bldgs. of Lynn, 306 Mass. 368-371-372 (1940). Thus, the requirement that it is a project’s primary purpose rather than any subsidiary purpose that controls whether it is protected by the Dover Amendment is consistent with an interpretation of the statute as part of a “harmonious[] . . . [and] consistent body” *291of land use law. Cf. Boston Hous. Auth. v. Labor Relations Comm’n, 398 Mass. 715, 718 (1986).

Our courts have repeatedly observed that zoning ordinances are only equitable, and only likely to succeed, if they are applied uniformly. See Amberwood Dev. Corp. v. Board of Appeals of Boxford, 65 Mass. App. Ct. 205, 212 (2005), and cases cited. Indeed, the Legislature requires by statute that, with specified exceptions, zoning ordinances or bylaws “shall be uniform within the district for each class or kind of stmctures or uses permitted.” G. L. c. 40A, § 4. While the Dover Amendment creates an exception to this general rule of uniformity, it does not effect a wholesale suspension of that principle. See Campbell v. City Council of Lynn, 415 Mass. 772, 778 (1993); Trustees of Tufts College v. Medford, supra at 760-761. It is fitting, therefore, that the statute preempt the uniform application of zoning laws only where those laws impede the use of land for educational activities, and not where their primary effect is on noneducational uses.

Hence, we reaffirm that in order to claim the protection of the Dover Amendment’s “educational purposes” clause, a landowner must demonstrate that its use of land will have as its primary purpose a goal that can reasonably be described as educationally significant.

c. Summary judgment. As discussed, supra, in order for Regis East to qualify for Dover Amendment protection, the plaintiff must establish that the residential and recreational aspects of Regis East do not constitute its primary purpose but instead support the project’s dominant educational purpose of providing academic and health-related instruction to older adults. In order for the defendants, as moving parties, to prevail on summary judgment, however, they must establish that the plaintiff “has no reasonable expectation” of making such a showing at trial. See Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). On this record, we cannot say that the defendants have met their burden in this regard.

A party moving for summary judgment who does not bear the ultimate burden of proof at trial may discharge the party’s initial burden of production by demonstrating “to the court that *292the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Kourouvacilis v. General Motors Corp., supra at 715, quoting Celotex Corp. v. Catrett, 477 U.S. 317,328 (1986) (White, J., concurring). It is then incumbent on the nonmovant, here the plaintiff, to demonstrate the existence of a dispute as to the material facts challenged by the moving party with admissible evidence. Kourouvacilis v. General Motors Corp., supra at 711. Such a demonstration must be made on the basis of “specific facts.” Mass R. Civ. P. 56 (e), 365 Mass 824 (1974). See Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 648 (2002) (contractor could not obtain summary judgment against homeowners where contractor could not articulate specific services performed); Haverty v. Commissioner of Correction, 437 Mass. 737, 754 (2002) (prisoner plaintiffs could not avoid summary judgment through “generalized statements about changes in conditions within the entire prisoner population”).

The defendants based their motion for summary judgment on the contention that Regis East does not serve a bona fide educational purpose and that, even if some such purpose could be shown, there would be no basis on which a fact finder could conclude that it was primary or dominant.

The plaintiff has presented multiple affidavits listing “facets of the Regis East academic program.”13 The plaintiff avers, among other things, that residents of Regis East will be subject to a “mandatory academic requirement of a minimum of two academic courses each semester”; that residents will be provided with an individually-tailored “Wellness and Education Curriculum Plan”; and that residents will be paired with academic advisors and wellness coordinators. The plaintiff’s affiants also contemplate a “full and complete integration” between residents of Regis East and its more traditional students, including cross-offerings of classes and extracurricular activities.

Further, the plaintiff’s affidavits explain that the Regis East project was conceived “as an extension of Regis’s mission to educate people,” and that each aspect of Regis East is tailored to this mission. The plaintiff substantiates this claim by refer*293ence to its current continuing education programs for senior citizens, as well as its traditional focus on gerontology and what it describes as the “caring professions.” We cannot say that it would be irrational for a finder of fact to conclude from this evidence that Regis East will primarily serve educational purposes. Cf. Lasell College v. Newton, 36 Mass. App. Ct. 1122 (1994) (affirming, in unpublished memorandum and order, on similar record, finding of trial judge that retirement community had dominant educational purpose).

In determining that the affidavits and accompanying materials submitted by the plaintiffs were not sufficient to avoid summary judgment, the motion judge emphasized that these materials were often “vague and amorphous.”14 While hardly a model of specificity, the materials are nonetheless not so vague as to be impermissibly conclusory. See, e.g., Polaroid Corp. v. Rollins Envtl. Servs. (NJ), Inc., 416 Mass. 684, 696 (1993) (affidavit conclusory where it consisted of unsupported conclusions of law or fact); Graham v. Quincy Food Serv. Employees Ass’n & Hosp., Library, & Pub. Employees Union, 407 Mass. 601, 610 n.4 (1990) (affidavit conclusory where it consisted largely of denials of movant’s account and statements of “belief” rather that knowledge). Rather, viewed in the light most favorable to the plaintiff as the nonmoving party, the affidavits outline multiple aspects of the Regis East project that reasonably could be considered educational. Moreover, the record suggests an explanation for the lack of specificity in the plaintiff’s affidavits: that the novelty of the Regis East project requires that many of its details will necessarily be worked out by experienced educators through day-to-day operation.

We note further that prior Dover Amendment cases addressing whether a proposed use has a dominant educational purpose have turned on specific findings of fact, including those bearing on how a project would likely be operated. See, e.g., Whitinsville, supra at 759-760; Fitchburg, supra at 874-875. Indeed, a *294central point of contention here is whether Regis East will in fact be operated in line with its declared purposes. Cf. Lasell Village v. Assessors of Newton, 67 Mass. App. Ct. 414, 422, 425 & n.13 (2006) (determining on appeal from tax assessment that project, which had been granted Dover Amendment protection, was not in fact operated primarily for educational purposes). Because the motion judge decided this case at the summary judgment stage, he could make no factual determinations in this regard.15

The resolution of that and other pertinent disputed matters will implicate credibility determinations, such as whether the plaintiff in fact intends to enforce its mandatory course requirements and evict residents who do not comply, and whether residents’ individualized curricular plans will be developed in tandem with professional educators, or will instead consist of recreational activities. The motion judge’s memorandum of decision reveals a level of skepticism on these points that suggests a weighing of evidence more appropriate at trial, where the credibility of witnesses and the weight to be accorded evidence may be addressed by a trier of fact. On the record before us, the defendants have not shown that they are entitled to judgment as a matter of law. See Bayer Corp. v. Commissioner of Revenue, 436 Mass. 302, 307-308 (2002).

3. Conclusion. The judgment is vacated and the case is remanded to the Land Court for further proceedings consistent with this opinion.

So ordered.