Property Rights Foundation of America®

Carol W. LaGrasse, from Positions on Property, Vol. 3, No. 2, May 1996

A Short Zoning Glossary
Key Rulings

The glossary is meant for the ordinary citizen to learn the basic outlines from the case law of the promising directions and victories for property rights and the problems of zoning to a private property owner's idea that he can use his property as he freely chooses. The cases cited are meant to be read in full by the citizen in a law library.

Citations are generally not given in the established format in order to encourage the reader to gain a deeper understanding rather than copy cites blind, but enough information is given to easily find each citation.

Ambiguity - Matter of Allen v. Adami, 39 NY 2d 275, New York State Court of Appeals:

"Any ambiguity in the language must be resolved in favor of the property owner."

Amortization Period - Village of Valatie v. Lynette Smith (N.Y. State Court of Appeals, Justice Simons, 1994):

" 'Amortization period' simply designates a period of time granted to owners of nonconforming uses during which they may phase out their operations as they see fit and make other arrangements."
"The test remains whether the period unreasonably inflicts a substantial loss on the owner or fails to comport to the reasonableness required by due process."

"Amortization periods have never been mandatory as a matter of constitutional law."

Assessment Abatement - (Estate of Jerome Sisselman v. East Rutherford, N.J. Judge David E. Crabtree, in state tax court, Trenton 1992)

Judge Crabtree ruled that because Federal and state regulations restrict the development of wetlands, the swampy tract must be taxed as undevelopable land valued at $1 million, rather than at its potential commercial value of $20 million.

Civil Rights - Cordeco Development Corp. v. Vazquez 354 F. Suppl. 1355 (1972):

"There exists no dichotomy between personal liberty and property rights. It has long been recognized that rights in property are basic civil rights."

This citation stems from a reference to U.S. Supreme Court decision in Lynch v. Household Finance Corp. (1972). The Cordeco decision allowed an action under 42 United States Code, Section 1985.

The Cordeco action sought damages and other relief on the basis of denial of due process and equal protection in the refusal to grant a permit for extraction of sand from the plaintiff's land or to pass upon the plaintiff's permission for a permit.

Chicago, B. & Q. R. Co. v. Chicago (1897 U.S. Supreme Court):
The Chicago ruling held that the Takings Clause of the Fifth Amendment was made applicable to the States through the Fourteenth Amendment.

Dolan v. Tigard (U.S. Supreme Court 1994):
"We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation on comparable circumstances." (referring to earlier Supreme Court rulings on warrantless searches and commercial free speech)

USCA Title 42, Section 1983 The Civil Rights Act:
Damages that occur because "State Action under color of law" deprives individuals of their civil rights can be compensated through a "1983" civil action.

Hafer v. Melo (U.S. Supreme Court 1991):
Government officials are personally liable for civil rights damages if they acted in their government capacity but outside the law. The Supreme Court quoted 42 U.S. Code 1983 as follows:
"every person who, under color of statute, ordinance, regulation, custom, or usage, of any State... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured..."

Conflict of Interest

To allow due process, members of zoning boards and appeals boards who have an interest in a project (for example: financially, as a neighbor whose property value would be affected, or an immediate family member) must not take part in the discussion, nor vote. In New York State, they must absent ("recuse") themselves from deliberations. Examples in New York are a contractor who is a planning board member may not be paid for services rendered in relation to a matter which is pending or must be brought before a planning board (State Comptroller Opinion 93-23) and an attorney for a planning board may not represent clients for compensation before that board (State Attorney General Opinion 93-36).

State Comptroller Opinion 90-28 held that a planning board member is prohibited from receiving or agreeing to receive compensation for engineering services in connection with any matter before a planning board. If the member is performing uncompensated work on a matter before the board, he should not participate in the discussion or vote on the matter.


Voluntary restrictive covenants contained in deeds granted by developers to property owners were historically the means by which residential characteristics of neighbors were perpetuated. See Land Use Without Zoning by Bernard H. Siegan (Reprinted 1993, Bartholdi and Lazarus, P.O. Box 25043, Houston, TX 77265)

Delays in issuing or denying permit - See Civil Rights

Due Process - See Public Health, Safety and Welfare


A restrictive covenant over land which one party purchases from another. Regulatory takings are unconstitutional easements compelled by government for the public at large from the private owner.
"It is quite sufficient for the protection of all public interests to allow the state to do what no private owner could do: compel the surrender of the covenant against the will of the person who owns the land. It is wholly unnecessary, and ultimately mischievous, to give any state the additional power to compel the surrender of the covenant without payment of any compensation for the loss in value, great or small, that is brought about by the restriction in question."
- Richard A. Epstein, with Institute for Justice et. al. Amica Curiae Brief to the U.S. Supreme Court, Lucas v. South Carolina Coastal Council 1991.


"Exactions" have gained credibility in zoning. For example, an applicant must donate park land, a buffer zone or money toward such in order to secure a permit. See Dolan v. Tigard and Nollan v. California Coastal Commission under Extortion, Nexus, Proportionality. Or — in the extreme — he must pay the salary of a government official instead of it being paid through the normal government channels.

Black's Law Dictionary, 4th Ed. defines exaction as:
"The wrongful act of an officer or other person in compelling payment of a fee or reward for his services, under color of his official authority, where no payment is due."
"Between 'extortion' and 'exaction' there is this difference: that in the former case the officer extorts more than is his due; in the latter, he exacts what is not his due, when there is nothing due to him."*
*Henry Campbell Black, Black's Law Dictionary, Rev. Fourth Ed., West Publ. 1968, p664
See Nexus, Proportionality

Extortion - Dolan v. Tigard (U.S. Supreme Court 1994) states the following (citing Nollan v. California Coastal Commission in turn citing J.E.D. Associates, Inc. v. Atkinson, 1981)

"How enhancing the public's ability to 'traverse to and along shorefront' served the same governmental purpose of 'visual access to the ocean' from the roadway was beyond our ability to countenance. The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into 'an out-and-out plan of extortion.' "


In zoning, grandfathering is the continuance by right established in law to continue with a non-conforming use after the passage of a zoning plan. (The earlier meaning of grandfather clause was to restrict the right to vote to those who could read and write, owned property of an assessed value over $100, or had gainful employment for one year prior unless prevented by disability or were in the military, and who were of good character, to understand the duties of citizenship).
Contrary to popular impressions about zoning, the courts have rejected the establishment of grandfathering of non-conforming uses as a constitutional right.
Village of Valatie v. Lynette Smith N.Y. State Court of Appeals, Justice Simons, March 30, 1994:
"The policy of allowing nonconforming uses to continue originated in concerns that the application of land use regulations to uses existing prior to the regulation's enactment might be construed as confiscatory and unconstitutional... While it was initially assumed that nonconforming uses would disappear with time, just the opposite proved to be true in many instances, with the nonconforming uses thriving in the absence of any new lawful competition... In the light of the problems presented by continuing nonconforming uses, this court has characterized the law's allowance of such uses as 'grudging tolerance,' and we have recognized the right of municipalities to take reasonable measures to eliminate them..." (citations omitted)
See "Amortization Period"

Inverse Condemnation

The word "inverse" in the phrase "inverse condemnation" is used because the owner sues to ask for the court to declare that a taking (as by zoning or regulation) requiring condemnation (eminent domain) has been effectuated and that compensation is due from the government.
The 1992 Lucas Supreme Court ruling remanded the proceeding back to the State Court for "proceedings not inconsistent with this opinion." In a subsequent settlement, $1.6 million was awarded to David Lucas.
The prominent earlier (1981) case of San Diego Gas & Electric v. City of San Diego (101 S. Ct. 1287) contains debate on the validity and application of inverse condemnation as a remedy for the property owner or whether invalidation is the only remedy.

Land Patent

Some property owners are developing a radical defense against zoning impositions and the payment of real estate taxes. Controversial applications of case law include citing:
Summa Corp. v. California ex. rel. Lands Commission (U.S. Supreme Court 1984, Justice Rehnquist)
"California cannot at this late date assert its public trust easement over petitioner's property, when petitioner's predecessors-in-interest had their interest confirmed without any mention of such an easement in proceedings taken pursuant to the Act of 1851" (providing repose to land titles that originated with Mexican grants). (California's asserted public trust easement in tideland would leave the landowner "little more than the naked fee," and had to have been asserted in 1851 to be effective.)


"Mitigations" are theoretically offsets to the impact of a project required of a developer by government. These are commonly imposed in connection with wetlands infringements and often require the creation of new wetlands equal to a multiple of the acreage that is to be disturbed. Another way that government agencies impose mitigations is to require the purchase of land from a land trust followed by its donation by the developer to government. Monetary or land donations to non-profits may be required as enforcement or project "mitigations." Or unrelated wildlife habitat set-asides may be required as mitigations for wetlands infringements.
Infinite variations of these themes are possible. These conditions are related to the variance (see). "Mitigations" and exactions (see) are closely related and often indistinguishable.
See Nexus, Proportionality

NEPA (National Environmental Policy Act) and various state environmental quality laws

These laws allow citizens (and local officials) to have broader standing in court to challenge government laws and regulations on the basis that facets of the required environmental impact analysis are being omitted or are grossly inadequate. Environmentalists use NEPA and state environmental review law to promote more government rules but the mandated environmental review, which by law requires community social and economic impact analysis, can be used to challenge zoning rules on social and economic terms.
Catron County Board of Commissioners, New Mexico, v. U.S. Fish and Wildlife Service, et al (Tenth Circuit Court of Appeals, Denver Colorado 1996)
In the Catron County case, the Court of Appeals held that local governments have standing to bring NEPA challenges before the court and that the U.S. Fish and Wildlife Service must comply with NEPA and do an environmental impact study before implementing habitat designations (federal zoning) .

Nexus (essential nexus, or the doctrine of "unconstitutional conditions")

Nollan v. California Coastal Commission (U.S. Supreme Court 1987)
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." (as quoted in Dolan v. Tigard)

Non-Conforming Use - See Grandfathering


Nuisance has historically meant, as noted in Blackstone's Commentaries, "anything that unlawfully worketh hurt, inconvenience or damage." A public nuisance means, according to Blackstone, such an inconvenience or troublesome offense as annoys the whole community in general, and not merely some particular person. A law dictionary published before the last half-century of increasing litigiousness, observed, "The exact amount of annoyance or inconvenience necessary to constitute a private nuisance has never been settled. In general terms, the injury should cause an inconvenience 'materially interfering with the ordinary comfort, physically, of human existence; not merely according to elegant or dainty modes and habits of living, but according to plain, sober, and simple notions.' "(1)
It is a great distance from the genuine nuisance of keeping inflammable or explosive substances to today's prosecutable "nuisance" of an unlicensed vehicle parked in a driveway, which affects the physical comfort of no one, often enforced through zoning laws.
Jack Down, president of Citizens Against Repressive Zoning (C.A.R.Z.) wrote in an unusual section on junk (and historic) vehicle laws in Planning and Zoning News that any unlicensed car, whether a true classic or antique or the old heap of a poor person, is private property. He gave examples of how nuisance laws are used against the poor. "I feel as an example, that a junk car (and Price v. Junction City, Texas, found that 'even a junk car is protected by the Constitution...'), if 'taken' under a nuisance code, is a full-fledged... Taking. Currently few courts will agree, although there is Bibbe v. Flint (Michigan) in which the judge did support everything I believe in this area."(2)
Compare discussion of nuisance in Lucas under Regulatory Taking
(1) James C. Cahill, The Cyclopedic Law Dictionary, Chicago 1922, p708, citing 4 Eng. Law & Eq. 15 English Law & Equity Reports, American Reprint
(2) Jack Down, "Freedom, Property Rights and Zoning," Planning and Zoning News, July 1996, p9

Partial Taking - Florida Rock Industries, Inc. v. United States (U.S. Court of Appeals for the Federal Circuit 1994)

The federal court of appeals saw no logical distinction between (1) a taking of private property by physical occupation for the public use as a park and (2) a regulatory imposition to preserve the property as a wetland for public uses. The case was remanded to the Court of Claims to determine how much of the value of the 98 acres had been taken by government regulation. In 1995, Oregonians In Action stated, "The decision of the U.S. Supreme Court not to review Florida Rock is a major breakthrough; the high court implies it favors paying landowner compensation for 'partial takings' by regulatory use restrictions as well as total takings."(1)
(1)"Looking Forward," Oregonians In Action. March 1995

Proportionality - Dolan v. The City of Tigard (U.S. Supreme Court 1994, Chief Justice Rehnquist):

"We think a term such as 'rough proportionality' best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development."

Public Health, Safety and Welfare

This catchall phrase and the police power to restrict nuisance have enabled zoning agencies to assume great power over private property. Fighting this power on a basis of freedom of the individual has been less effective than on the basis of due process.
The due process clause has come to be "the home of much takings law,"(1) according to Richard A. Epstein, of the University of Chicago.
Substantive due process must be observed: The content of the regulation must be designed to accomplish a valid public purpose, be reasonable (not arbitrary or capricious), be fair, and be within the authority of the government agency.
Procedural due process requires that procedure by which the regulation is adopted and administered must be fair to the interests that are affected, "giving them notice and a reasonable chance to be heard before an accessible and impartial tribunal."(2)
Zoning must be "accomplished in a proper, careful and reasonable manner." (Udall v. Hass 21 N.Y. 2d. 463 (1968)(3)
Perhaps the assumption of adequacy of public health, safety and welfare goals will be less all-sufficient, considering,

Lucas v. South Carolina Coastal Commission (U.S. Supreme Court 1992), which held:
"To win its case, respondent cannot simply proffer the legislature's declaration that the uses Lucas describes are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laeduas (use your property in such a manner as not to injure that of another), but must identify principles of nuisance and property law that prohibit the uses Lucas now intends in the property's present circumstances."

Penn Central Transportation v. City of New York (U.S. Supreme Court 1978):
The Supreme Court upheld regulations of property rights because "the restrictions imposed are substantially related to the promotion of general welfare..." But see Lucas decision.

Keystone Bituminous Coal Assn. v. De Benedictus (Justice Stevens U.S. Supreme Court 1986), a low-point of property rights rulings in the U.S. Supreme Court, validated regulatory taking within certain wide parameters to protect a statute that was passed "in order to protect the health, safety and general welfare of the public."
This case undid much of the results of Pennsylvania Coal (see Regulatory Taking). Keystone focused on "the economic impact of the regulation, its interference with investment-backed expectations, and the character of the government action."
Commenting on the decision Richard A. Epstein wrote, "The effect this reformulation of the problem is, of course, to distance the analysis of the takings question from the original constitutional text that it is to explicate..."(4)
"The general principle of eminent domain law has always been, and logically must be, this: What has the state taken, and not what the owner retained," Epstein commented.(5)
(1) Richard A. Epstein Takings: Private Property and the Power of Eminent Domain, Harvard University Press 1985 p140
(2) The Pace Law School and Albany Law School have conducted an aggressive series of conferences and published journals to promote uniform, state-level or highly state-managed local zoning (growth management) in New York. This quotation is from Pace Law School Reforming New York's Land Use Law, April 8, 1993, footnote 99, p76
(3) Ibid p25 (cited in)
(4) Richard A. Epstein, Takings: Descent and Resurrection, University of Chicago 1988 p15
(5) Ibid p17

Regulatory Taking - Lucas v. South Carolina Coastal Commission (U.S. Supreme Court 1992, Justice Scalia):

Regulations that deny the property owner all economically viable use of his land for the common good are one of the categories requiring compensation.
"The many statutes on the books, both state and federal, that provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation."
The police power cannot be used to justify diminution of value (without compensation) on the basis of preventing "noxious use" any more than for regulation that "confers benefits."
The question of a government taking hinges on the "bundle of rights" citizens acquire when they take title to the property, the background of nuisance and property law in effect at that time.
"Where 'permanent physical occupation' of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted 'public interests' involved... We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."

Pennsylvania Coal Co. v. Mahon (U.S. Supreme Court 1922 Justice Holmes):
"while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking."
"Pennsylvania Coal has long been regarded as the single most important case in the takings literature," said Richard A. Epstein in 1988.(1)

Penn Central Transportation v. City of New York (U.S. Supreme Court 1978)
The case has been widely cited because it allows the government to accomplish a regulatory taking without compensation as long as the property owner could achieve a "reasonable return" from his investment. But compare 1992 Lucas decision.
See Easement.
(1) Richard A. Epstein "Takings: Descent and Resurrection," University of Chicago 1988 p12

Removal of Government Officials by Court Order

In New York State, for example, citizens of a town may bring an action in the Supreme Court, Appellate Division, for removal of a local official for corruption. The citizen himself, or the attorney representing the citizen, then becomes the prosecutor before a judge assigned to hear the case.

RICO - (1970 Racketeer Influenced and Corrupt Organizations Act).

This federal law was designed to combat organized crime but citizens affected by graft and other aspects of zoning and building codes have been allowed to challenge government officials (Joe DeFalco, lawsuit against Delaware Town and Sullivan County officials decided in 1996 in Federal Court, White Plains, N.Y.) and, on other matters, non-profits National Organization for Women, Inc. et al v. Scheidler et al (U.S. Supreme Court 1993, Justice Rehnquist ):
"We hold that RICO contains no economic motive requirement." The court held that not only people involved in money making but people involved in an idealistic cause could be sued for conspiracy to deny someone's constitutional rights.

Ripeness, Exhaustion of Administrative Remedies

Generally speaking, a person cannot appeal to the court to overturn a zoning agency until the permit has been denied and he has exhausted the normal appeal procedure. Zoning agencies have been known to take to 10 years to process an application. Two notable cases are:

Williamson County Region Planning Commission v. Hamilton Bank (U.S. Supreme Court, 1985):
Factors applied in deciding a takings claim "simply cannot be evaluated until the administrative agency has arrived at a final, definite position regarding how it will apply the regulations at issue to the particular land in question."

MacDonald, Summer & Frates v. Yalo County (U.S. Supreme Court 1986):
The court ruled that the case was not ripe for consideration of takings compensation because the owner had not applied for every possible use. The owner alleged that further applications could be futile. But the Supreme Court held that until the owner ascertains what the zoning agency will permit, the court cannot tell whether the permitted uses are so restrictive as to amount to a taking:
"A court cannot determine whether a regulation has gone too far unless it knows how far the regulation goes."
Transferable Development Rights (TDR's) place another "ripeness" hurdle before the property owner, the requirement that they attempt to sell TDR's. In his Amicus Curiae Brief for Suitum v. Tahoe Regional Planning Agency (U.S. Supreme Court 96-243), Richard A. Epstein states:
"This case raises the fundamental question of whether planning authorities can engage in a series of maneuvers that will render it impossible for landowners who have suffered regulatory takings to ever recover full and perfect compensation for their loss guaranteed under the Fifth Amendment to the United States Constitution."

"Taking" - According to the Fifth Amendment of the U.S. Constitution, "... nor shall private property be taken for public use without just compensation." See Regulatory Taking.

Armstrong v. United States (U.S. Supreme Court 1960):
One of the principle purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."

Temporary Taking - First English Evangelical Lutheran Church of Glendale v. Los Angeles County, California, (U.S. Supreme Court 1987, Chief Justice Rehnquist):

The Supreme Court ruled that where regulation destroys the right of a landowner to use his property, the burden to a "property owner in extinguishing such an interest for a period of years may be great indeed."
"Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period."

Transferable Development Rights

In lieu of purchasing a conservation easement by eminent domain or otherwise, a governing body prohibits construction and awards property owners "transferable development rights" (TDR's) which allow increased development elsewhere above the zoning restrictions. TDR's are supposed to be saleable on the open market to some other person in the planning district. The governing body does not offer to buy the TDR's at the fair market value of conservation easements.
In an example under litigation presently, after decreeing that certain lands were allowed no construction, the Lake Tahoe Regional Planning Agency broke up the remnants of the fee simple ownership of property into the unbuildable land and TDR's that had components of residential development rights, land coverage rights and residential allocations.
In the Amicus Curiae Brief of Richard Epstein with the Institute for Justice for Bernadine Suitum v. Tahoe Regional Planning Agency pending before the U.S. Supreme Court, the discussion of Transferable Development rights states,
"These propositions confuse an owner's right to use her own property with the owner's obligation to sell it in order to minimize the State's constitutional duty to provide just compensation for the state-imposed restrictions."
(See Suitum v. Tahoe Regional Development Agency 80 F. 3d 359, 9th Cir. 1996.)
See Ripeness
TDR's use one theft as a palliative for another, What government takes away from one person by zoning, it gives to a second person (or to the same person, as in the Penn Central case) for taking away his property.


New York State town law explains the basic principles of granting variances (which are amplified greatly in case law) in those towns that have zoning laws:
"Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of such ordinances, the board of appeals shall have the power in passing upon appeals, to vary or modify the application of any of the regulations or provisions of such ordinances relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done."

Wetland - See Regulatory Taking, Partial Taking, Exaction, Mitigation

Among the many compilations of information on land-use regulation through wetlands law, Mark A. Chertok of Sive, Paget & Riesel, P.C., New York City, prepared "The Multi-Tiered Regulation of Wetlands" for the New York State Association of Towns Feb. 18, 1991 Annual Meeting, which is a most concise (22pp) history of legislation and the activistically evolved case-law governing Federal and State Jurisdiction over wetlands, including takings analysis to that date.


New York City adopted the first comprehensive zoning in the Country on July 25, 1916, with the New York City Zoning Resolution.

Mugler v. Kansas, (123 U.S. 623 Justice Harlan, 1887):
The U.S. Supreme Court ruled that when a regulation respecting the use of property is designed 'to prevent serious harm,' no compensation is owing under the takings clause. See Takings: Private Property and the Power of Eminent Domain by Richard A. Epstein(1) for a discussion of the Mugler and the Euclid v. Ambler decisions. Note particularly the contrast between the Supreme Court's historic attitude about the police power in property (including nuisance) and free speech cases.

Lucas v. South Carolina Coastal Commission (U.S. Supreme Court 1992):
"... in Penn Central Transportation Co. ... in the course of sustaining New York City's landmarks preservation program against takings challenge, we rejected the petitioner's suggestion that Mugler and the cases following it were premised on, and thus limited by, some objective conception of 'noxiousness.' "
" 'Harmful or noxious use' analysis was, in other words, simply the progenitor of our more contemporary statements that 'land-use regulation does not effect a taking if it substantially advances legitimate state interests...' Nollan 484 U.S. at 834 (Quoting Agins v. Tiburon, 447 U.S. at 260); see also Penn Central Transportation Co., 438 U.S. at 127; Euclid v. Ambler Realty Co., 272 U.S. 365, 387388 (1926)." Judge Scalia goes on to describe this transition and the weakness in distinguishing between "harm-preventing" and "benefit conferring."

Euclid v. Ambler (272 U.S. 365 Justice George Sutherland 1926):
This is the oft-cited case where the constitutionality of zoning was ruled on by the Supreme Court.
The court upheld the general principle of zoning, which previously was the subject of varying state rulings about its constitutionality. The takings issue was undecided, because the ordinance was broadly challenged on Fourteenth Amendment and due process grounds, not on the effect of any of its specific rules on a particular party.
"If these reasons... do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least, the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, or general welfare."
The court noted that because a particular injury was not complained of it would not scrutinize and dissect provisions or matters of administration, "which, if attacked separately, might not withstand the test of constitutionality."

Pennsylvania Coal Co. v. Mahon (260 U.S. 393, Justice Oliver Wendell Holmes 1922):
The Supreme Court ruled that despite the social desirability to prevent buildings from subsiding into mine shafts, the legislation had to provide compensation for the coal company's interest before forbidding them from mining. Yet this ruling is often cited to defend zoning, because the Court stated, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the law."

Agins v. Tiburon (447 U.S. 255):
In this oft-quoted ruling the U.S. Supreme Court held that a land-use regulation does not effect a taking if it "substantially advance(s) legitimate state interests" and does not "deny an owner economically viable use of his land." In Dolan v. Tigard, the Supreme Court pointed out that the Pennsylvania Coal and Agins rulings did not apply to an exaction such as that under consideration.
(1) Harvard University Press, 1985, pp130ff

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