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Dolan v. City of Tigard (93-518), 512 U.S. 687 (1994).
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[ Rehnquist ]
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Dissent
[ Stevens ]
Dissent
[ Souter ]
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SUPREME COURT OF THE UNITED STATES


No. 93-518


FLORENCE DOLAN, PETITIONER v. CITY OF TIGARD

on writ of certiorari to the supreme court of oregon

[June 24, 1994]

Justice Stevens, with whom Justice Blackmun and Justice Ginsburg join, dissenting.

The record does not tell us the dollar value of petitioner Florence Dolan's interest in excluding the public from the greenway adjacent to her hardware business. The mountain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case.

Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan's chain of hardware stores will have an adverse impact on the city's legitimate and substantial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard's business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nevertheless agreed to grant Dolan's application if she will comply with two conditions, each of which admittedly will mitigate the adverse effects of her proposed development. The disputed question is whether the city has violated the Fourteenth Amendment to the Federal Constitution by refusing to allow Dolan's planned construction to proceed unless those conditions are met.

The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a variance even when it can rightfully deny the application outright. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court's description of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of "rough proportionality," and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground.

Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guidance in 12 "representative" state court decisions. To do so is certainly appropriate. [n.1] The state cases the Court consults, however, either fail to support or decidedly undermine the Court's conclusions in key respects.

First, although discussion of the state cases permeates the Court's analysis of the appropriate test to apply in this case, the test on which the Court settles is not naturally derived from those courts' decisions. The Court recognizes as an initial matter that the city's conditions satisfy the "essential nexus" requirement announced in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987), because they serve the legitimate interests in minimizing floods and traffic congestions. Ante, at 11-12. [n.2] The Court goes on, however, to erecta new constitutional hurdle in the path of these conditions. In addition to showing a rational nexus to a public purpose that would justify an outright denial of the permit, the city must also demonstrate "rough proportionality" between the harm caused by the new land use and the benefit obtained by the condition. Ante, at 16. The Court also decides for the first time that the city has the burden of establishing the constitutionality of its conditions by making an "individualized determination" that the condition in question satisfies the proportionality requirement. See ante, at 15-16.

Not one of the state cases cited by the Court announces anything akin to a "rough proportionality" requirement. For the most part, moreover, those cases that invalidated municipal ordinances did so on state law or unspecified grounds roughly equivalent to Nollan's "essential nexus" requirement. See, e.g., Simpson v. North Platte, 206 Neb. 240, 245-248, 292 N. W. 2d 297, 301-302 (1980) (ordinance lacking "reasonable relationship" or "rational nexus" to property's use violated Nebraska constitution); J. E. D. Associates, Inc. v. Town of Atkinson, 121 N. H. 581, 583-585, 432 A. 2d 12, 14-15 (1981) (state constitutional grounds). One case purporting to apply the strict "specifically and uniquelyattributable" test established by Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), nevertheless found that test was satisfied because the legislature had decided that the subdivision at issue created the need for a park or parks. Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P. 2d 182, 187-188 (1964). In only one of the seven cases upholding a land use regulation did the losing property owner petition this Court for certiorari. See Jordan v. Village of Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965), appeal dism'd, 385 U.S. 4 (1966) (want of substantial federal question). Although 4 of the 12 opinions mention the Federal Constitution--two of those only in passing--it is quite obvious that neither the courts nor the litigants imagined they might be participating in the development of a new rule of federal law. Thus, although these state cases do lend support to the Court's reaffirmance of Nollan's reasonable nexus requirement, the role the Court accords them in the announcement of its newly minted second phase of the constitutional inquiry is remarkably inventive.

In addition, the Court ignores the state courts' willingness to consider what the property owner gains from the exchange in question. The Supreme Court of Wisconsin, for example, found it significant that the village's approval of a proposed subdivision plat "enables the subdivider to profit financially by selling the subdivision lots as home building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands." Jordan v. Village of Menomonee Falls, 28 Wis. 2d 608, 619-620; 137 N. W. 2d 442, 448 (1965). The required dedication as a condition of that approval was permissible "[i]n return for this benefit." Ibid. See also Collis v. Bloomington, 310 Minn. 5, 11-13, 246 N. W. 2d 19, 23-24 (1976) (citing Jordan); College Station v. Turtle Rock Corp., 680S. W. 2d 802, 806 (Tex. 1984) (dedication requirement only triggered when developer chooses to develop land). In this case, moreover, Dolan's acceptance of the permit, with its attached conditions, would provide her with benefits that may well go beyond any advantage she gets from expanding her business. As the United States pointed out at oral argument, the improvement that the city's drainage plan contemplates would widen the channel and reinforce the slopes to increase the carrying capacity during serious floods, "confer[ring] considerable benefits on the property owners immediately adjacent to the creek." Tr. of Oral Arg. 41-42.

The state court decisions also are enlightening in the extent to which they required that the entire parcel be given controlling importance. All but one of the cases involve challenges to provisions in municipal ordinances requiring developers to dedicate either a percentage of the entire parcel (usually 7 or 10 percent of the platted subdivision) or an equivalent value in cash (usually a certain dollar amount per lot) to help finance the construction of roads, utilities, schools, parks and playgrounds. In assessing the legality of the conditions, the courts gave no indication that the transfer of an interest in realty was any more objectionable than a cash payment. See, e.g., Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966); Jordan, supra; Collis, supra. None of the decisions identified the surrender of the fee owner's "power to exclude" as having any special significance. Instead, the courts uniformly examined the character of the entire economic transaction.

It is not merely state cases, but our own cases as well, that require the analysis to focus on the impact of the city's action on the entire parcel of private property. In Penn Central Transportation Co. v. New York City,438 U.S. 104 (1978), we stated that takings jurisprudence "does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Id., at 130-131. Instead, this Court focuses "both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." Ibid. Andrus v. Allard, 444 U.S. 51 (1979), reaffirmed the nondivisibility principle outlined in Penn Central, stating that "[a]t least where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." Id., at 65-66. [n.3] As recently as last Term, we approved the principle again. See Concrete Pipe & Products, Inc. v. Construction Laborers Pension Trust, 508 U. S. ___, ___ (1993) (slip op., at 42) (explaining that "a claimant's parcel of property [cannot] first be divided into what was taken and what was left" to demonstrate a compensable taking). Although limitation of the right to exclude others undoubtedly constitutes a significant infringement upon property ownership, Kaiser Aetna v. United States, 444 U.S. 164, 179-180 (1979), restrictions on that right do not alone constitute a taking, and do not do so in any event unless they "unreasonably impair the value or use" of the property. Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 82-84 (1980).

The Court's narrow focus on one strand in the property owner's bundle of rights is particularly misguided ina case involving the development of commercial property. As Professor Johnston has noted:

"The subdivider is a manufacturer, processer, and marketer of a product; land is but one of his raw materials. In subdivision control disputes, the developer is not defending hearth and home against the king's intrusion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdivision control exactions are actually business regulations." Johnston, Constitutionality of Subdivision Control Exactions: The Quest for A Rationale, 52 Cornell L. Q. 871, 923 (1967). [n.4]

The exactions associated with the development of a retail business are likewise a species of business regulation that heretofore warranted a strong presumption of constitutional validity.

In Johnston's view, "if the municipality can demonstrate that its assessment of financial burdens against subdividers is rational, impartial, and conducive to fulfillment of authorized planning objectives, its action need be invalidated only in those extreme and presumably rare cases where the burden of compliance is sufficiently great to deter the owner from proceeding with his planned development." Id., at 917. The city of Tigard has demonstrated that its plan is rational andimpartial and that the conditions at issue are "conducive to fulfillment of authorized planning objectives." Dolan, on the other hand, has offered no evidence that her burden of compliance has any impact at all on the value or profitability of her planned development. Following the teaching of the cases on which it purports to rely, the Court should not isolate the burden associated with the loss of the power to exclude from an evaluation of the benefit to be derived from the permit to enlarge the store and the parking lot.

The Court's assurances that its "rough proportionality" test leaves ample room for cities to pursue the "commendable task of land use planning," ante, at 20--even twice avowing that "[n]o precise mathematical calculation is required," ante, at 16, 19--are wanting given the result that test compels here. Under the Court's approach, a city must not only "quantify its findings," ante, at 19, and make "individualized determination[s]" with respect to the nature and the extent of the relationship between the conditions and the impact, ante, at 16, 17, but also demonstrate "proportionality." The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond considerations of a condition's nature or germaneness only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city. [n.5] The heightened requirement the Court imposes on cities is even more unjustified when all the tools needed toresolve the questions presented by this case can be garnered from our existing case law.

Applying its new standard, the Court finds two defects in the city's case. First, while the record would adequately support a requirement that Dolan maintain the portion of the floodplain on her property as undeveloped open space, it does not support the additional requirement that the floodplain be dedicated to the city. Ante, at 16-18. Second, while the city adequately established the traffic increase that the proposed development would generate, it failed to quantify the offsetting decrease in automobile traffic that the bike path will produce. Ante, at 18-19. Even under the Court's new rule, both defects are, at most, nothing more than harmless error.

In her objections to the floodplain condition, Dolan made no effort to demonstrate that the dedication of that portion of her property would be any more onerous than a simple prohibition against any development on that portion of her property. Given the commercial character of both the existing and the proposed use of the property as a retail store, it seems likely that potential customers "trampling along petitioner's floodplain," ante, at 17, are more valuable than a useless parcel of vacant land. Moreover, the duty to pay taxes and the responsibility for potential tort liability may well make ownership of the fee interest in useless land a liability rather than an asset. That may explain why Dolan never conceded that she could be prevented from building on the floodplain. The City Attorney also pointed out that absent a dedication, property owners would be required to "build on their own land" and "with their own money" a storage facility for the water runoff. Tr. of Oral Arg. 30-31. Dolan apparently "did have that option," but chose not to seek it. Id., at 31. If Dolan might have been entitled to a variance confining the city's condition in a manner this Court would accept, her failure to seek that narrower form of relief at any stage of the state administrative and judicial proceedings clearly should preclude that relief in this Court now.

The Court's rejection of the bike path condition amounts to nothing more than a play on words. Everyone agrees that the bike path "could" offset some of the increased traffic flow that the larger store will generate, but the findings do not unequivocally state that it will do so, or tell us just how many cyclists will replace motorists. Predictions on such matters are inherently nothing more than estimates. Certainly the assumption that there will be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent, or only 5 percent of the increase in automobile traffic that would otherwise occur. If the Court proposes to have the federal judiciary micromanage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants. Although there is no reason to believe that state courts have failed to rise to the task, property owners have surely found a new friend today.

The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequential than its incorrect disposition of this case, however, is the Court's resurrection of a species of substantive due process analysis that it firmly rejected decades ago. [n.6]

The Court begins its constitutional analysis by citing Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 239(1897), for the proposition that the Takings Clause of the Fifth Amendment is "applicable to the States through the Fourteenth Amendment." Ante, at 8. That opinion, however, contains no mention of either the Takings Clause or the Fifth Amendment; [n.7] it held that the protection afforded by the Due Process Clause of the Fourteenth Amendment extends to matters of substance as well as procedure, [n.8] and that the substance of "the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State." Chicago, B. & Q. R. Co., 166 U. S., at 235, 236-241. It applied the same kind of substantive due process analysis more frequently identified with a better known case that accorded similar substantive protection to a baker's liberty interest in working 60 hours a week and 10 hours a day. See Lochner v. New York, 198 U.S. 45 (1905). [n.9]

Later cases have interpreted the Fourteenth Amendment's substantive protection against uncompensated deprivations of private property by the States as though it incorporated the text of the Fifth Amendment's Takings Clause. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 481, n. 10 (1987). There was nothing problematic about that interpretation in cases enforcing the Fourteenth Amendment against state action that involved the actual physical invasion of private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 427-433 (1982); Kaiser Aetna v. United States, 444 U.S. 164, 178-180 (1979). Justice Holmes charted a significant new course, however, when he opined that a state law making it "commercially impracticable to mine certain coal" had "very nearly the same effect for constitutional purposes as appropriating or destroying it." Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414 (1922). The so called "regulatory takings" doctrine that the Holmes dictum [n.10] kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair.

This case inaugurates an even more recent judicial innovation than the regulatory takings doctrine: the application of the "unconstitutional conditions" label to a mutually beneficial transaction between a property owner and a city. The Court tells us that the city's refusal to grant Dolan a discretionary benefit infringes her right to receive just compensation for the property interests that she has refused to dedicate to the city-where the property sought has little or no relationship to the benefit." [n.11] Although it is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests--%especially [one's] interest in freedom of speech," Perry v. Sindermann, 408 U.S. 593, 597 (1972)--the "unconstitutional conditions" doctrine provides an inadequate framework in which to analyze this case. [n.12]

Dolan has no right to be compensated for a taking unless the city acquires the property interests that she has refused to surrender. Since no taking has yet occurred, there has not been any infringement of her constitutional right to compensation. See Preseault v. ICC, 494 U.S. 1, 11-17 (1990) (finding takings claim premature because property owner had not yet sought compensation under Tucker Act); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264, 294-295 (1981) (no taking where no one "identified any property . . . that has allegedly been taken").

Even if Dolan should accept the city's conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied "just compensation" since it would be appropriate to consider the receipt of that benefit in any calculation of "just compensation." See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (noting that an "average reciprocity of advantage" was deemed to justify many laws); Hodel v. Irving, 481 U.S. 704, 715 (1987) (such " `reciprocity of advantage' " weighed in favor of a statute's constitutionality). Particularly in the absence of any evidence on the point, we should not presume that the discretionary benefit the city has offered is less valuable than the property interests that Dolan can retain or surrender at her option. But even if that discretionary benefit were so trifling that it could not be considered just compensation when it has "little or no relationship" to the property, the Court fails to explain why the same value would suffice when the required nexus is present. In this respect, the Court's reliance on the "unconstitutional conditions" doctrine is assuredly novel, and arguably incoherent. The city's conditions are by no meansimmune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan's First Amendment rights in exchange for a building permit. One can only hope that the Court's reliance today on First Amendment cases, see ante, at 10 (citing Perry v. Sindermann, supra, and Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 568 (1968)), and its candid disavowal of the term "rational basis" to describe its new standard of review, see ante, at 15-16, do not signify a reassertion of the kind of superlegislative power the Court exercised during the Lochner era.

The Court has decided to apply its heightened scrutiny to a single strand--the power to exclude--in the bundle of rights that enables a commercial enterprise to flourish in an urban environment. That intangible interest is undoubtedly worthy of constitutional protection-- much like the grandmother's interest in deciding which of her relatives may share her home in Moore v. East Cleveland, 431 U.S. 494 (1977). Both interests are protected from arbitrary state action by the Due Process Clause of the Fourteenth Amendment. It is, however, a curious irony that Members of the majority in this case would impose an almost insurmountable burden of proof on the property owner in the Moore case while saddling the city with a heightened burden in this case. [n.13]

In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordinance "would have been rejected as arbitrary and oppressive" at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds and Butler) upheld the ordinance. Today's majority should heed the words of Justice Sutherland:

"Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise." Euclid v. Ambler Co., 272 U.S. 365, 387 (1926).

In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic congestion, or environmental harms. When thereis doubt concerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of the commercial entrepreneur. If the government can demonstrate that the conditions it has imposed in a land use permit are rational, impartial and conducive to fulfilling the aims of a valid land use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state action's constitutionality. That allocation of burdens has served us well in the past. The Court has stumbled badly today by reversing it.

I respectfully dissent.


Notes

1 Cf. Moore v. East Cleveland, 431 U.S. 494, 513-521 (1977) (Stevens, J., concurring in judgment).

2 In Nollan the Court recognized that a State agency may condition the grant of a land use permit on the dedication of a property interest if the dedication serves a legitimate police power purpose that would justify arefusal to issue the permit. For the first time, however, it held that such a condition is unconstitutional if the condition "utterly fails" to further a goal that would justify the refusal. 483 U. S., at 837. In the Nollan Court's view, a condition would be constitutional even if it required the Nollans to provide a viewing spot for passersby whose view of the ocean was obstructed by their new house. Id., at 836. "Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end." Ibid.

3 Similarly, i n Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 498-499 (1987), we concluded that "[t]he 27 million tons of coal do not constitute a separate segment of property for takings law purposes" and that "[t]here is no basis for treating the less than 2% of petitioners' coal as a separate parcel of property."

4 Johnston's article also sets forth a fair summary of the state cases from which the Court purports to derive its "rough proportionality" test. See 52 Cornell L. Q., at 917. Like the Court, Johnston observed that cases requiring a "rational nexus" between exactions and public needs created by the new subdivision--especially Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965)--%stee[r] a moderate course" between the "judicial obstructionism" of Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), and the "excessive deference" of Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964). 52 Cornell L. Q., at 917.

5 Dolan's attorney overstated the danger when he suggested at oral argument that without some requirement for proportionality, "the City could have found that Mrs. Dolan's new store would have increased traffic by one additional vehicle trip per day [and] could have required her to dedicate 75, 95 percent of her land for a widening of Main Street." Tr. of Oral Arg. 52-53.

6 See, e.g., Ferguson v. Skrupa, 372 U.S. 726 (1963).

7 An earlier case deemed it "well settled" that the Takings Clause "is a limitation on the power of the Federal government, and not on the States." Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1872).

8 The Court held that a State "may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law regard must be had to substance, not to form." Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 234-235 (1897).

9 The Lochner Court refused to presume that there was a reasonable connection between the regulation and the state interest in protecting the public health. 198 U. S., at 60-61. A similar refusal to identify a sufficient nexus between an enlarged building with a newly paved parking lot and the state interests in minimizing the risks of flooding and traffic congestion proves fatal to the city's permit conditions in this case under the Court's novel approach.

10 See Keystone Bituminous Coal Assn v. DeBenedictis, 480 U.S. 470, 484 (1987) (explaining why this portion of the opinion was merely "advisory").

11 Ante, at 10. The Court's entire explanation reads: "Under the well settled doctrine of `unconstitutional conditions,' the government may not require a person to give up a constitutional right--here the right to receive just compensation when property is taken for a public use--in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit." Ibid.

12 Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall. 445, 451 (1874), the "unconstitutional conditions" doctrine has for just as long suffered from notoriously inconsistent application; it has never been an overarching principle of constitutional law that operates with equal force regardless of the nature of the rights and powers in question. See, e.g., Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism, 70 B. U. L. Rev. 593, 620 (1990) (doctrine is "too crude and too general to provide help in contested cases"); Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is "riven with inconsistencies"); Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321, 322 (1935) ("The Supreme Court has sustained many such exertions of power even after announcing the broad doctrine that would invalidate them"). As the majority's case citations suggest, ante, at 10, modern decisions invoking the doctrine have most frequently involved First Amendment liberties, see also, e.g., Connick v. Myers, 461 U.S. 138, 143-144 (1983); Elrod v. Burns, 427 U.S. 347, 361-363 (1976) (plurality opinion); Sherbert v. Verner, 374 U.S. 398, 404 (1963); Speiser v. Randall, 357 U.S. 513, 518-519 (1958). But see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 345-346 (1986) ("the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling"). The necessary and traditional breadth of municipalities' power to regulate property development, together with the absence here of fragile and easily "chilled" constitutional rights such as that of free speech,make it quite clear that the Court is really writing on a clean slate rather than merely applying "well settled" doctrine. See ante, at 9.

13 The author of today's opinion joined Justice Stewart's dissent in Moore v. East Cleveland, 431 U.S. 494 (1977). There the dissenters found it sufficient, in response to my argument that the zoning ordinance was an arbitrary regulation of property rights, that "if the ordinance is a rational attempt to promote `the city's interest in preserving the character of its neighborhoods,' Young v. American Mini Theatres, 427 U.S. 50, 71 (opinion of Stevens, J.), it is . . . a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U.S. 365, and Nectow v. Cambridge, 277 U.S. 183." Id., at 540, n. 10. The dissent went on to state that my calling the city to task forfailing to explain the need for enacting the ordinance %place[d] the burden on the wrong party." Ibid. (emphasis added). Recently, two other Members of today's majority severely criticized the holding in Moore. See United States v. Carlton, 512 U. S. ___, ___ (1994) (Scalia, J., concurring in judgment) (slip op., at 3-4); see also id., at ___ (Scalia, J., concurring in judgment) (slip op., at 1) (calling the doctrine of substantive due process "an oxymoron").