NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–214

															_________________

															JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al.

															on writ of certiorari to the court of appeals
of wisconsin, district iii

															[June 23, 2017]

															Justice Kennedy delivered the opinion of the
Court.

															The classic example of a property taking by the
government is when the property has been occupied or otherwise
seized. In the case now before the Court, petition-ers contend that
governmental entities took their real property—an undeveloped
residential lot—not by some physical occupation but instead by
enacting burdensome regulations that forbid its improvement or
separate sale because it is classified as substandard in size. The
relevant governmental entities are the respondents.

															Against the background justifications for the
challenged restrictions, respondents contend there is no regulatory
taking because petitioners own an adjacent lot. The regulations, in
effecting a merger of the property, permit the continued
residential use of the property including for a single improvement
to extend over both lots. This retained right of the landowner,
respondents urge, is of sufficient offsetting value that the
regulation is not severe enough to be a regulatory taking. To
resolve the issue whether the landowners can insist on confining
the analysis just to the lot in question, without regard to their
ownership of the adjacent lot, it is necessary to discuss the
background principles that define regulatory takings.

															I

															A

															The St. Croix River originates in northwest
Wisconsin and flows approximately 170 miles until it joins the
Mississippi River, forming the boundary between Minnesota and
Wisconsin for much of its length. The lower portion of the river
slows and widens to create a natural water area known as Lake St.
Croix. Tourists and residents of the region have long extolled the
picturesque grandeur of the river and surrounding area. E.g., E. Ellett, Summer Rambles in the West 136–137
(1853).

															Under the Wild and Scenic Rivers Act, the river
was designated, by 1972, for federal protection. §3(a)(6), 82Stat.
908, 16 U. S. C. §1274(a)(6) (designating Upper St. Croix
River); Lower Saint Croix River Act of 1972, §2, 86Stat. 1174, 16
U. S. C. §1274(a)(9) (adding Lower St. Croix River). The
law required the States of Wisconsin and Minnesota to develop “a
management and development program” for the river area. 41 Fed.
Reg. 26237 (1976). In compliance, Wisconsin authorized the State
Department of Natural Resources to promulgate rules limiting
development in order to “guarantee the protection of the wild,
scenic and recreational qualities of the river for present and
future generations.” Wis. Stat. §30.27(l) (1973).

															Petitioners are two sisters and two brothers in
the Murr family. Petitioners’ parents arranged for them to receive
ownership of two lots the family used for recreation along the
Lower St. Croix River in the town of Troy, Wisconsin. The lots are
adjacent, but the parents purchased them separately, put the title
of one in the name of the family business, and later arranged for
transfer of the two lots, on different dates, to petitioners. The
lots, which are referred to in this litigation as Lots E and F, are
described in more detail below.

															For the area where petitioners’ property is
located, the Wisconsin rules prevent the use of lots as separate
building sites unless they have at least one acre of land suitable
for development. Wis. Admin. Code §§ NR 118.04(4),
118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grand-father
clause relaxes this restriction for substandardlots which were “in
separate ownership from abutting lands” on January 1, 1976, the
effective date of the regulation. § NR 118.08(4)(a)(1).
The clause permits the use of qualifying lots as separate building
sites. The rules also include a merger provision, however, which
provides that adjacent lots under common ownership may not be “sold
or developed as separate lots” if they do not meet the size
requirement. § NR 118.08(4)(a)(2). The Wisconsin rules
require localities to adopt parallel provisions, see
§ NR 118.02(3), so the St. Croix County zoning ordinance
contains identical restrictions, see St. Croix County, Wis.,
Ordinance §17.36I.4.a (2005). The Wisconsin rules also authorize
the local zoning authority to grant variances from the regulations
where enforcement would create “unnecessary hardship.”
§ NR 118.09(4)(b); St. Croix County Ordinance
§17.09.232.

															B

															Petitioners’ parents purchased Lot F in 1960
and built a small recreational cabin on it. In 1961, they
transferred title to Lot F to the family plumbing company. In 1963,
they purchased neighboring Lot E, which they held in their own
names.

															The lots have the same topography. A steep bluff
cuts through the middle of each, with level land suitable for
development above the bluff and next to the water below it. The
line dividing Lot E from Lot F runs from the riverfront to the far
end of the property, crossing the blufftop along the way. Lot E has
approximately 60 feet of river frontage, and Lot F has
approximately 100 feet. Though each lot is approximately 1.25 acres
in size, because of the waterline and the steep bank they each have
less than one acre of land suitable for development. Even when
combined, the lots’ buildable land area is only 0.98 acres due to
the steep terrain.

															The lots remained under separate ownership, with
Lot F owned by the plumbing company and Lot E owned by petitioners’
parents, until transfers to petitioners. Lot F was conveyed to them
in 1994, and Lot E was conveyed to them in 1995. Murr v. St. Croix County Bd. of Adjustment , 2011 WI App 29, 332 Wis.
2d 172, 177–178, 184–185, 796 N. W. 2d 837, 841, 844 (2011);
2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished
opinion), App. to Pet. for Cert. A–3, ¶¶4–5. (There are certain
ambiguities in the record concerning whether the lots had merged
earlier, but the parties and the courts below appear to have
assumed the merger occurred upon transfer to petitioners.)

															A decade later, petitioners became interested in
moving the cabin on Lot F to a different portion of the lot and
selling Lot E to fund the project. The unification of the lots
under common ownership, however, had implicated the state and local
rules barring their separate sale or development. Petitioners then
sought variances from the St. Croix County Board of Adjustment to
enable their building and improvement plan, including a variance to
allow the separate sale or use of the lots. The Board denied the
requests, and the state courts affirmed in relevant part. In
particular, the Wisconsin Court of Appeals agreed with the Board’s
interpretation that the local ordinance “effectively merged” Lots E
and F, so petitioners “could only sell or build on the single
larger lot.” Murr , supra , at 184, 796 N. W. 2d,
at 844.

															Petitioners filed the present action in state
court, alleging that the state and county regulations worked a
regulatory taking by depriving them of “all, or practically all, of
the use of Lot E because the lot cannot be sold or developed as a
separate lot.” App. 9. The parties each submitted appraisal numbers
to the trial court. Respondents’ appraisal included values of
$698,300 for the lots together as regulated; $771,000 for the lots
as two distinct build-able properties; and $373,000 for Lot F as a
single lot with improvements. Record 17–55, 17–56. Petitioners’
appraisal included an unrebutted, estimated value of $40,000 for
Lot E as an undevelopable lot, based on the counterfactual
assumption that it could be sold as a separate property. Id., at 22–188.

															The Circuit Court of St. Croix County granted
summary judgment to the State, explaining that petitioners retained
“several available options for the use and enjoyment of their
property.” Case No. 12–CV–258 (Oct. 31, 2013), App. to Pet. for
Cert. B–9. For example, they could preserve the existing cabin,
relocate the cabin, or eliminate the cabin and build a new
residence on Lot E, on Lot F, or across both lots. The court also
found petitioners had not been deprived of all economic value of
their property. Considering the valuation of the property as a
single lot versus two separate lots, the court found the market
value of the property was not significantly affected by the
regulations because the decrease in value was less than 10 percent. Ibid .

															The Wisconsin Court of Appeals affirmed. The
court explained that the regulatory takings inquiry required it to
“ ‘first determine what, precisely, is the property at
issue.’ ” Id., at A–9, ¶17. Relying on Wisconsin
Supreme Court precedent in Zealy v. Waukesha , 201
Wis. 2d 365, 548 N. W. 2d 528 (1996), the Court of Appeals
rejected petitioners’ request to analyze the effect of the
regulations on Lot E only. Instead, the court held the takings
analysis “properly focused” on the regulations’ effect “on the
Murrs’ property as a whole”—that is, Lots E and F together. App. to
Pet. for Cert. A–12, ¶22.

															Using this framework, the Court of Appeals
concluded the merger regulations did not effect a taking. In
particular, the court explained that petitioners could not
reasonably have expected to use the lots separately because they
were “ ‘charged with knowledge of the existing zoning
laws’ ” when they acquired the property. Ibid. (quoting Murr , supra , at 184, 796 N. W. 2d, at 844).
Thus, “even if [petitioners] did intend to develop or sell Lot E
separately, that expectation of separate treatment became
unreasonable when they chose to acquire Lot E in 1995, after their
having acquired Lot F in 1994.” App. to Pet. for Cert. A–17,
¶30 . The court also discounted the severity of the economic
impact on petitioners’ property, recognizing the Circuit Court’s
conclusion that the regulations diminished the property’s combined
value by less than 10 percent. The Supreme Court of Wisconsin
denied discretionary review. This Court granted certiorari, 577
U. S. ___ (2016).

															II

															A

															The Takings Clause of the Fifth Amendment
provides that private property shall not “be taken for public use,
without just compensation.” The Clause is made applicable to the
States through the Fourteenth Amendment. Chicago, B. & Q. R.
Co. v. Chicago , 166 U. S. 226 (1897) . As this
Court has recognized, the plain language of the Takings Clause
“requires the payment of compensation whenever the government
acquires private property for a public purpose,” see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency , 535 U. S. 302, 321 (2002) , but it does
not address in specific terms the imposition of regulatory burdens
on private property . Indeed, “[p]rior to Justice Holmes’s
exposition in Pennsylvania Coal Co. v. Mahon , 260
U. S. 393 (1922) , it was generally thought that the Takings
Clause reached only a direct appropriation of property, or the
functional equivalent of a practical ouster of the owner’s
possession,” like the permanent flooding of property. Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1014
(1992) (citation, brackets, and internal quotation marks omitted);
accord, Horne v. Department of Agriculture , 576
U. S. ___, ___ (2015) (slip op., at 7); see also Loretto v. Teleprompter Manhattan CATV Corp. , 458
U. S. 419, 427 (1982) . Mahon , however, initiated this
Court’s regulatory takings jurisprudence, declaring that “while
property may be regulated to a certain extent, if regulation goes
too far it will be recognized as a taking.” 260 U. S., at 415.
A regulation, then, can be so burdensome as to become a taking, yet
the Mahon Court did not formulate more detailed guidance for
determining when this limit is reached.

															In the near century since Mahon , the
Court for the most part has refrained from elaborating this
principle through definitive rules. This area of the law has been
characterized by “ad hoc, factual inquiries, designed to allow
careful examination and weighing of all the relevant
circumstances.” Tahoe-Sierra , supra , at 322 (citation
and internal quotation marks omitted). The Court has, however,
stated two guidelines relevant here for determining when government
regulation is so onerous that it constitutes a taking. First, “with
certain qualifications . . . a regulation which ‘denies
all economically beneficial or productive use of land’ will require
compensation under the Takings Clause.” Palazzolo v. Rhode Island , 533 U. S. 606, 617 (2001) (quoting Lucas , supra , at 1015). Second, when a regulation
impedes the use of property without depriving the owner of all
economically beneficial use, a taking still may be found based on
“a complex of factors,” including (1) the economic impact of the
regulation on the claimant; (2) the extent to which the regulation
has interfered with distinct investment-backed expectations; and
(3) the character of the governmental action. Palazzolo,
supra, at 617 (citing Penn Central Transp. Co. v. New
York City , 438 U. S. 104, 124 (1978) ).

															By declaring that the denial of all economically
beneficial use of land constitutes a regulatory taking, Lucas stated what it called a “categorical” rule. See 505
U. S., at 1015. Even in Lucas , however, the Court
included a ca-veat recognizing the relevance of state law and
land-use customs: The complete deprivation of use will not re-quire
compensation if the challenged limitations “inhere . . .
in the restrictions that background principles of the State’s law
of property and nuisance already placed upon land ownership.” Id. , at 1029; see also id., at 1030–1031 (listing
factors for courts to consider in making thisdetermination).

															A central dynamic of the Court’s regulatory
takings jurisprudence, then, is its flexibility. This has been and
remains a means to reconcile two competing objectives central to
regulatory takings doctrine. One is the individual’s right to
retain the interests and exercise the freedoms at the core of
private property ownership. Cf. id. , at 1028 (“[T]he notion
. . . that title is somehow held subject to the ‘implied
limitation’ that the State may subsequently eliminate all
economically valuable use is inconsistent with the historical
compact recorded in the Takings Clause that has become part of our
constitutional culture”). Property rights are necessary to preserve
freedom, for property ownership empowers persons to shape and to
plan their own destiny in a world where governments are always
eager to do so for them.

															The other persisting interest is the
government’s well-established power to “adjus[t] rights for the
public good.” Andrus v. Allard , 444 U. S. 51, 65
(1979) . As Justice Holmes declared, “Government hardly could go on
if to some extent values incident to property could not be
diminished without paying for every such change in the general
law.” Mahon , supra , at 413. In adjudicating
regulatory takings cases a proper balancing of these principles
requires a careful inquiry informed by the specifics of the case.
In all instances, the analysis must be driven “by the purpose of
the Takings Clause, which is to prevent the government from
‘forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a
whole.’ ” Palazzolo , supra , at 617–618 (quoting Armstrong v. United States , 364 U. S. 40, 49
(1960) ).

															B

															This case presents a question that is linked
to the ultimate determination whether a regulatory taking has
occurred: What is the proper unit of property against which to
assess the effect of the challenged governmental action? Put
another way, “[b]ecause our test for regulatory taking requires us
to compare the value that has been taken from the property with the
value that remains in the property, one of the critical questions
is determining how to define the unit of property ‘whose value is
to furnish the denominator of the fraction.’ ” Keystone
Bituminous Coal Assn. v. DeBenedictis , 480 U. S.
470, 497 (1987) (quoting Michelman, Property, Utility, and
Fairness, 80 Harv. L. Rev. 1165, 1992 (1967)).

															As commentators have noted, the answer to this
question may be outcome determinative. See Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St.
L. Rev. 601, 631 (2014); see also Wright, A New Time for
Denominators, 34 Env. L. 175, 180 (2004). This Court, too, has
explained that the question is important to the regulatory takings
inquiry. “To the extent that any portion of property is taken, that
portion is always taken in its entirety; the relevant question,
however, is whether the property taken is all, or only a portion
of, the parcel in question.” Concrete Pipe & Products of
Cal., Inc. v. Construction Laborers Pension Trust for
Southern Cal. , 508 U. S. 602, 644 (1993) .

															Defining the property at the outset, however,
should not necessarily preordain the outcome in every case. In
some, though not all, cases the effect of the challenged regulation
must be assessed and understood by the effect on the entire
property held by the owner, rather than just some part of the
property that, considered just on its own, has been diminished in
value. This demonstrates the contrast between regulatory takings,
where the goal is usually to determine how the challenged
regulation affects the property’s value to the owner, and physical
takings, where the impact of physical appropriation or occupation
of the property will be evident.

															While the Court has not set forth specific
guidance on how to identify the relevant parcel for the regulatory
taking inquiry, there are two concepts which the Court has
indicated can be unduly narrow.

															First, the Court has declined to limit the
parcel in an artificial manner to the portion of property targeted
by the challenged regulation. In Penn Central , for example,
the Court rejected a challenge to the denial of a permit to build
an office tower above Grand Central Terminal. The Court refused to
measure the effect of the denial only against the “air rights”
above the terminal, cautioning that “ ‘[t]aking’ jurisprudence
does not divide a single parcel into discrete segments and attempt
to determine whether rights in a particular segment have been
entirely abrogated.” 438 U. S., at 130.

															In a similar way, in Tahoe-Sierra , the
Court refused to “effectively sever” the 32 months during which
petitioners’ property was restricted by temporary moratoria on
development “and then ask whether that segment ha[d] been taken in
its entirety.” 535 U. S., at 331. That was because “defining
the property interest taken in terms of the very regulation being
challenged is circular.” Ibid . That approach would overstate
the effect of regulation on property, turning “every delay” into a
“total ban.” Ibid .

															The second concept about which the Court has
expressed caution is the view that property rights under the
Takings Clause should be coextensive with those under state law.
Although property interests have their foundations in state law,
the Palazzolo Court reversed a state- court decision that
rejected a takings challenge to regulations that predated the
landowner’s acquisition of title. 533 U. S., at 626–627. The
Court explained that States do not have the unfettered authority to
“shape and define property rights and reasonable investment-backed
expectations,” leaving landowners without recourse against
unreasonable regulations. Id. , at 626.

															By the same measure, defining the parcel by
reference to state law could defeat a challenge even to a state
enactment that alters permitted uses of property in ways
inconsistent with reasonable investment-backed expectations. For
example, a State might enact a law that consolidates nonadjacent
property owned by a single person or entity in different parts of
the State and then imposes development limits on the aggregate set.
If a court defined the parcel according to the state law requiring
consolidation, this improperly would fortify the state law against
a takings claim, because the court would look to the retained value
in the property as a whole rather than considering whether
individual holdings had lost all value.

															III

															A

															As the foregoing discussion makes clear, no
single consideration can supply the exclusive test for determining
the denominator. Instead, courts must consider a number of factors.
These include the treatment of the land under state and local law;
the physical characteristics of the land; and the prospective value
of the regulated land. The endeavor should determine whether
reasonable expectations about property ownership would lead a
landowner to anticipate that his holdings would be treated as one
parcel, or, instead, as separate tracts. The inquiry is objective,
and the reasonable expectations at issue derive from background
customs and the whole of our legal tradition. Cf. Lucas , 505
U. S., at 1035 (Kennedy, J., concurring) (“The expectations
protected by the Constitution are based on objective rules and
customs that can be understood as reasonable by all parties
involved”).

															First, courts should give substantial weight to
the treatment of the land, in particular how it is bounded or
divided, under state and local law. The reasonable expectations of
an acquirer of land must acknowledge legitimate restrictions
affecting his or her subsequent use and dispensation of the
property. See Ballard v. Hunter , 204 U. S. 241,
262 (1907) (“Of what concerns or may concern their real estate men
usually keep informed, and on that probability the law may frame
its proceedings”). A valid takings claim will not evaporate just
because a purchaser took title after the law was enacted. See Palazzolo , 533 U. S., at 627 (some “enactments are
unreasonable and do not become less so through passage of time or
title”). A reasonable restriction that predates a landowner’s
acquisition, however, can be one of the objective factors that most
landowners would reasonably consider in forming fair expectations
about their property. See ibid. (“[A] prospective enactment,
such as a new zoning ordinance, can limit the value of land without
effecting a taking because it can be understood as reasonable by
all concerned”). Ina similar manner, a use restriction which is
triggeredonly after, or because of, a change in ownership should
also guide a court’s assessment of reasonable private
expectations.

															Second, courts must look to the physical
characteristics of the landowner’s property. These include the
physical relationship of any distinguishable tracts, the parcel’s
topography, and the surrounding human and ecological environment.
In particular, it may be relevant that the property is located in
an area that is subject to, or likely to become subject to,
environmental or other regulation. Cf. Lucas , supra ,
at 1035 (Kennedy, J., concurring) (“Coastal property may present
such unique concerns for a fragile land system that the State can
go further in regulating its development and use than the common
law of nuisance might otherwise permit”).

															Third, courts should assess the value of the
property under the challenged regulation, with special attention to
the effect of burdened land on the value of other holdings. Though
a use restriction may decrease the market value of the property,
the effect may be tempered if the regulated land adds value to the
remaining property, such as by increasing privacy, expanding
recreational space, or preserving surrounding natural beauty. A law
that limits use of a landowner’s small lot in one part of the city
by reason of the landowner’s nonadjacent holdings elsewhere may
decrease the market value of the small lot in an unmitigated
fashion. The absence of a special relationship between the holdings
may counsel against consideration of all the holdings as a single
parcel, making the restrictive law susceptible to a takings
challenge. On the other hand, if the landowner’s other property is
adjacent to the small lot, the market value of the properties may
well increase if their combination enables the expansion of a
structure, or if development restraints for one part of the parcel
protect the unobstructed skyline views of another part. That, in
turn, may counsel in favor of treatment as a single parcel and may
reveal the weakness of a regulatory takings challenge to the
law.

															State and federal courts have considerable
experience in adjudicating regulatory takings claims that depart
from these examples in various ways. The Court anticipates that in
applying the test above they will continue to exercise care in this
complex area.

															B

															The State of Wisconsin and petitioners each
ask this Court to adopt a formalistic rule to guide the parcel
inquiry. Neither proposal suffices to capture the central legal and
factual principles that inform reasonable expectations about
property interests.

															Wisconsin would tie the definition of the parcel
to state law, considering the two lots here as a single whole due
to their merger under the challenged regulations. That approach, as
already noted, simply assumes the answer to the question: May the
State define the relevant parcel in a way that permits it to escape
its responsibility to justify regulation in light of legitimate
property expectations? It is, of course, unquestionable that the
law must recognize those legitimate expectations in order to give
proper weight to the rights of owners and the right of the State to
pass reasonable laws and regulations. See Palazzolo , supra , at 627.

															Wisconsin bases its position on a footnote in Lucas , which suggests the answer to the denominator question
“may lie in how the owner’s reasonable expectations have been
shaped by the State’s law of property— i.e., whether and to
what degree the State’s law has accorded legal recognition and
protection to the particular interest in land with respect to which
the takings claimant alleges a diminution in (or elimination of)
value.” 505 U. S., at 1017, n. 7. As an initial matter, Lucas referenced the parcel problem only in dicta,
unnecessary to the announcement or application of the rule it
established. See ibid. (“[W]e avoid th[e] difficulty” of
determining the relevant parcel “in the present case”). In any
event, the test the Court adopts today is consistent with the
respect for state law described in Lucas . The test considers
state law but in addition weighs whether the state enactments at
issue accord with other indicia of reasonable expectations about
property.

															Petitioners propose a different test that is
also flawed. They urge the Court to adopt a presumption that lot
lines define the relevant parcel in every instance, making Lot E
the necessary denominator. Petitioners’ argument, however, ignores
the fact that lot lines are themselves creatures of state law,
which can be overridden by the State in the reasonable exercise of
its power. In effect, petitioners ask this Court to credit the
aspect of state law that favors their preferred result (lot lines)
and ignore that which does not (merger provision).

															This approach contravenes the Court’s case law,
which recognizes that reasonable land-use regulations do not work a
taking. See Palazzolo , 533 U. S., at 627; Mahon ,
260 U. S., at 413. Among other cases, Agins v. City
of Tiburon , 447 U. S. 255 (1980) , demonstrates the
validity of this proposition because it upheld zoning regulations
as a legitimate exercise of the government’s police power. Of
course, the Court’s later opinion in Lingle v. Chevron
U. S. A. Inc. recognized that the test articulated in Agins —that regulation effects a taking if it “ ‘does
not substantially advance legitimate state interests’ ”—was
improper because it invited courts to engage in heightened review
of the effectiveness of government regulation. 544 U. S. 528,
540 (2005) (quoting Agins , supra , at 260). Lingle made clear, however, that the holding of Agins survived, even if its test was “imprecis[e].” See 544 U. S.,
at 545–546, 548.

															The merger provision here is likewise a
legitimate exercise of government power, as reflected by its
consistency with a long history of state and local merger
regulations that originated nearly a century ago. See Brief for
National Association of Counties et al. as Amici Curiae 5–10. Merger provisions often form part of a regulatory scheme that
establishes a minimum lot size in order to preserve open space
while still allowing orderly development. See E. McQuillin, Law of
Municipal Corporations §25:24 (3d ed. 2010); see also Agins , supra , at 262 (challenged “zoning ordinances benefit[ed] the
appellants as well as the public by serving the city’s interest in
assuring careful and orderly development of residential property
with provision for open-space areas”).

															When States or localities first set a minimum
lot size, there often are existing lots that do not meet the new
requirements, and so local governments will strive to reduce
substandard lots in a gradual manner. The regulations here
represent a classic way of doing this: by implementing a merger
provision, which combines contiguous substandard lots under common
ownership, alongside a grandfather clause, which preserves adjacent
substandard lots that are in separate ownership. Also, as here, the
harshness of a merger provision may be ameliorated by the
availability of a variance from the local zoning authority for
landowners in special circumstances. See 3 E. Ziegler, Rathkopf’s
Law of Zoning and Planning §49:13 (39th ed. 2017).

															Petitioners’ insistence that lot lines define
the relevant parcel ignores the well-settled reliance on the merger
provision as a common means of balancing the legitimate goals of
regulation with the reasonable expectations of landowners.
Petitioners’ rule would frustrate municipalities’ ability to
implement minimum lot size regulations by casting doubt on the many
merger provisions that exist nationwide today. See Brief for
National Association of Counties et al. as Amici Curiae 12–31 (listing over 100 examples of merger provisions).

															Petitioners’ reliance on lot lines also is
problematic for another reason. Lot lines have varying degrees of
formality across the States, so it is difficult to make them a
standard measure of the reasonable expectations of property owners.
Indeed, in some jurisdictions, lot lines may be subject to informal
adjustment by property owners, with minimal government oversight.
See Brief for California et al. as Amici Curiae 17; 1
J. Kushner, Subdivision Law and Growth Management §5:8 (2d ed.
2017) (lot line adjustments that create no new parcels are often
exempt from subdivision review); see, e.g., Cal. Govt. Code
Ann. §66412(d) (West 2016) (permitting adjustment of lot lines
subject to limited conditions for government approval). The ease of
modifying lot lines also creates the risk of gamesmanship by
landowners, who might seek to alter the lines in anticipation of
regulation that seems likely to affect only part of their
property.

															IV

															Under the appropriate multifactor standard, it
follows that for purposes of determining whether a regulatory
taking has occurred here, petitioners’ property should be evaluated
as a single parcel consisting of Lots E and F together.

															First, the treatment of the property under state
and local law indicates petitioners’ property should be treated as
one when considering the effects of the restrictions. As the
Wisconsin courts held, the state and local regulations merged Lots
E and F. E.g., App. to Pet. for Cert. A–3, ¶6 (“The 1995
transfer of Lot E brought the lots under common ownership and
resulted in a merger of the two lots under [the local ordinance]”).
The decision to adopt the merger provision at issue here was for a
specific and legitimate purpose, consistent with the widespread
understanding that lot lines are not dominant or controlling in
every case. See supra, at ___. Petitioners’ land was subject
to this regulatory burden, moreover, only because of voluntary
conduct in bringing the lots under common ownership after the
regulations were enacted. As a result, the valid merger of the lots
under state law informs the reasonable expectation they will be
treated as a single property.

															Second, the physical characteristics of the
property support its treatment as a unified parcel. The lots are
contiguous along their longest edge. Their rough terrain and narrow
shape make it reasonable to expect their range of potential uses
might be limited. Cf. App. to Pet. for Cert. A–5, ¶8
(“[Petitioners] asserted Lot E could not be put to alternative uses
like agriculture or commerce due to its size, location and steep
terrain”). The land’s location along the river is also significant.
Petitioners could have anticipated public regulation might affect
their enjoyment of their property, as the Lower St. Croix was a
regulated area under federal, state, and local law long before
petitioners possessed the land.

															Third, the prospective value that Lot E brings
to Lot F supports considering the two as one parcel for purposes of
determining if there is a regulatory taking. Petitioners are
prohibited from selling Lots E and F separately or from building
separate residential structures on each. Yet this restriction is
mitigated by the benefits of using the property as an integrated
whole, allowing increased privacy and recreational space, plus the
optimal location of any improvements. See Case No. 12–CV–258, App.
to Pet. for Cert. B–9 (“They have an elevated level of privacy
because they do not have close neighbors and are able to swim and
play volleyball at the property”).

															The special relationship of the lots is further
shown by their combined valuation. Were Lot E separately saleable
but still subject to the development restriction, petitioners’
appraiser would value the property at only $40,000. We express no
opinion on the validity of this figure. We also note the number is
not particularly helpful for understanding petitioners’ retained
value in the properties because Lot E, under the regulations,
cannot be sold without Lot F. The point that is useful for these
purposes is that the combined lots are valued at $698,300, which is
far greater than the summed value of the separate regulated lots
(Lot F with its cabin at $373,000, according to respondents’
appraiser, and Lot E as an undevelopable plot at $40,000, according
to petitioners’ appraiser). The value added by the lots’
combination shows their complementarity and supports their
treatment as one parcel.

															The State Court of Appeals was correct in
analyzing petitioners’ property as a single unit. Petitioners
allege that in doing so, the state court applied a categorical rule
that all contiguous, commonly owned holdings must be combined for
Takings Clause analysis. See Brief for Petitioners i (“[D]oes the
‘parcel as a whole’ concept . . . establish a rule that
two legally distinct, but commonly owned contiguous parcels, must
be combined for takings analysis purposes”). This does not appear
to be the case, however, for the precedent relied on by the Court
of Appeals addressed multiple factors before treating contiguous
properties as one parcel. See App. to Pet. for Cert. A–9–A–11,
¶¶17–19 (citing Zealy v. Waukesha , 201 Wis. 2d 365,
548 N. W. 2d 528); see id., at 378, 548 N. W. 2d,
at 533 (considering the property as a whole because it was “part of
a single purchase” and all 10.4 acres were undeveloped). The
judgment below, furthermore, may be affirmed on any ground
permitted by the law and record. See Thigpen v. Roberts , 468 U. S. 27, 30 (1984) . To the extent the
state court treated the two lots as one parcel based on a
bright-line rule, nothing in this opinion approves that
methodology, as distinct from the result.

															Considering petitioners’ property as a whole,
the state court was correct to conclude that petitioners cannot
establish a compensable taking in these circumstances. Petitioners
have not suffered a taking under Lucas , as they have not
been deprived of all economically beneficial use of their property.
See 505 U. S., at 1019. They can use the property for
residential purposes, including an enhanced, larger residential
improvement. See Palazzolo , 533 U. S., at 631 (“A
regulation permitting a landowner to build a substantial residence
. . . does not leave the property ‘economically
idle’ ”). The property has not lost all economic value, as its
value has decreased by less than 10 percent. See Lucas , supra , at 1019, n. 8 (suggesting that even a landowner
with 95 percent loss may not recover).

															Petitioners furthermore have not suffered a
taking under the more general test of Penn Central . See 438
U. S., at 124. The expert appraisal relied upon by the state
courts refutes any claim that the economic impact of the regulation
is severe. Petitioners cannot claim that they reasonably expected
to sell or develop their lots separately given the regulations
which predated their acquisition of both lots. Finally, the
governmental action was a reasonable land-use regulation, enacted
as part of a coordinated federal, state, and local effort to
preserve the river and surrounding land.

															*  *  *

															Like the ultimate question whether a
regulation has gone too far, the question of the proper parcel in
regulatory takings cases cannot be solved by any simple test. See Arkansas Game and Fish Comm’n v. United States , 568
U. S. 23, 31 (2012) . Courts must instead define the parcel in
a manner that reflects reasonable expectations about the property.
Courts must strive for consistency with the central purpose of the
Takings Clause: to “bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should
be borne by the public as a whole.” Armstrong , 364
U. S., at 49. Treating the lot in question as a single parcel
is legitimate for purposes of this takings inquiry, and this
supports the conclusion that no regulatory taking occurred
here.

															The judgment of the Wisconsin Court of Appeals
is affirmed.

															It is so ordered.

															Justice Gorsuch took no part in the
consideration or decision of this case. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–214

															_________________

															JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al.

															on writ of certiorari to the court of appeals
of wisconsin, district iii

															[June 23, 2017]

															Chief Justice Roberts, with whom Justice
Thomas and Justice Alito join, dissenting.

															The Murr family owns two adjacent lots along the
Lower St. Croix River. Under a local regulation, those two
properties may not be “sold or developed as separate lots” because
neither contains a sufficiently large area of buildable land. Wis.
Admin. Code §NR 118.08(4)(a)(2) (2017). The Court today holds
that the regulation does not effect a taking that requires just
compensation. This bottom-line conclusion does not trouble me; the
majority presents a fair case that the Murrs can still make good
use of both lots, and that the ordinance is a commonplace tool to
preserve scenic areas, such as the Lower St. Croix River, for the
benefit of landowners and the public alike.

															Where the majority goes astray, however, is in
concluding that the definition of the “private property” at issue
in a case such as this turns on an elaborate test looking not only
to state and local law, but also to (1) “the physical
characteristics of the land,” (2) “the prospective value of the
regulated land,” (3) the “reasonable expectations” of the owner,
and (4) “background customs and the whole of our legal
tradition.” Ante, at 11–12. Our decisions have, time and
again, declared that the Takings Clause protects private property
rights as state law creates and defines them. By securing such established property rights, the Takings Clause protects
individuals from being forced to bear the full weight of actions
that should be borne by the public at large. The majority’s new,
malleable definition of “private property”—adopted solely “for
purposes of th[e] takings inquiry,” ante, at 20—undermines
that protection.

															I would stick with our traditional approach:
State law defines the boundaries of distinct parcels of land, and
those boundaries should determine the “private property” at issue
in regulatory takings cases. Whether a regulation effects a taking
of that property is a separate question, one in which common
ownership of adjacent property may be taken into account. Because
the majority departs from these settled principles, I respectfully
dissent.

															I

															A

															The Takings Clause places a condition on the
government’s power to interfere with property rights, instructing
that “private property [shall not] be taken for public use, without
just compensation.” Textually and logically, this Clause raises
three basic questions that individuals, governments, and judges
must consider when anticipating or deciding whether the government
will have to provide reimbursement for its actions. The first is
what “pri-vate property” the government’s planned course of conduct
will affect. The second, whether that property has been “taken” for
“public use.” And if “private property” has been “taken,” the last
item of business is to calculate the “just compensation” the owner
is due.

															Step one—identifying the property interest at
stake—requires looking outside the Constitution. The word
“property” in the Takings Clause means “the group of rights
inhering in [a] citizen’s relation to [a] . . . thing, as
the right to possess, use and dispose of it.” United States v. General Motors Corp. , 323 U. S. 373, 378 (1945) .
The Clause does not, however, provide the definition of those
rights in any particular case. Instead, “property interests
. . . are created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law.” Ruckelshaus v. Monsanto
Co. , 467 U. S. 986, 1001 (1984) (alteration and internal
quotation marks omitted). By protecting these established rights,
the Takings Clause stands as a buffer between property owners and
governments, which might naturally look to put private property to
work for the public at large.

															When government action interferes with property
rights, the next question becomes whether that interference amounts
to a “taking.” “The paradigmatic taking . . . is a direct
government appropriation or physical invasion of private property.” Lingle v. Chevron U. S. A. Inc. , 544
U. S. 528, 537 (2005) . These types of actions give rise to
“ per se taking[s]” because they are “perhaps the most
serious form[s] of invasion of an owner’s property interests,
depriving the owner of the rights to possess, use and dispose of
the property.” Horne v. Department of Agriculture ,
576 U. S. ___, ___ (2015) (slip op., at 7) (internal quotation
marks omitted).

															But not all takings are so direct: Governments
can infringe private property interests for public use not only
through appropriations, but through regulations as well. If
compensation were required for one but not the other, “the natural
tendency of human nature” would be to extend regulations “until at
last private property disappears.” Pennsylvania Coal Co. v. Mahon , 260 U. S. 393, 415 (1922) . Our regulatory
takings decisions, then, have recognized that, “while property may
be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.” Ibid. This rule strikes a
balance between property owners’ rights and the government’s
authority to advance the common good. Owners can rest assured that
they will be compensated for particularly onerous regulatory
actions, while governments maintain the freedom to adjust the
benefits and burdens of property ownership without incurring
crippling costs from each alteration.

															Depending, of course, on how far is “too far.”
We have said often enough that the answer to this question
generally resists per se rules and rigid formulas. There
are, however, a few fixed principles: The inquiry “must be
conducted with respect to specific property.” Keystone
Bituminous Coal Assn. v. DeBenedictis , 480 U. S.
470, 495 (1987) (internal quotation marks omitted). And if a
“regulation denies all economically beneficial or productive use of
land,” the interference categorically amounts to a taking. Lucas v. South Carolina Coastal Council , 505
U. S. 1003, 1015 (1992) . For the vast array of regulations
that lack such an extreme effect, a flexible approach is more
fitting. The factors to consider are wide ranging, and include the
economic impact of the regulation, the owner’s investment-backed
expectations, and the character of the government action. The
ultimate question is whether the government’s imposition on a
property has forced the owner “to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.” Penn Central Transp. Co. v. New York City , 438
U. S. 104, 123 (1978) (internal quotation marks omitted).

															Finally, if a taking has occurred, the remaining
matter is tabulating the “just compensation” to which the property
owner is entitled. “[J]ust compensation normally is tobe measured
by the market value of the property at the time of the taking.” Horne , 576 U. S., at ___ (slip op., at 15) (internal
quotation marks omitted).

															B

															Because a regulation amounts to a taking if it
completely destroys a property’s productive use, there is an
incen-tive for owners to define the relevant “private property”
narrowly. This incentive threatens the careful balance between
property rights and government authority that our regulatory
takings doctrine strikes: Put in terms of the familiar “bundle”
analogy, each “strand” in the bundle of rights that comes along
with owning real property is a distinct property interest. If
owners could define the relevant “private property” at issue as the
specific “strand” that the challenged regulation affects, they
could convert nearly all regulations into per se takings.

															And so we do not allow it. In Penn Central
Transportation Co. v. New York City , we held that
property owners may not “establish a ‘taking’ simply by showing
that they have been denied the ability to exploit a property
interest.” 438 U. S., at 130. In that case, the owner of Grand
Central Terminal in New York City argued that a restriction on the
owner’s ability to add an office building atop the station amounted
to a taking of its air rights. We rejected that narrow definition
of the “property” at issue, concluding that the correct unit of
analysis was the owner’s “rights in the parcel as a whole.” Id., at 130–131. “[W]here 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.” Andrus v. Allard , 444 U. S. 51 –66
(1979); see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302, 327
(2002) .

															The question presented in today’s case concerns
the “parcel as a whole” language from Penn Central . This
enigmatic phrase has created confusion about how to identify the
relevant property in a regulatory takings case when the claimant
owns more than one plot of land. Should the impact of the
regulation be evaluated with respect to each individual plot, or
with respect to adjacent plots grouped together as one unit?
According to the majority, a court should answer this question by
considering a number of facts about the land and the regulation at
issue. The end result turns on whether those factors “would lead a
landowner to anticipate that his holdings would be treated as one
parcel, or, instead, as separate tracts.” Ante, at 12.

															I think the answer is far more straightforward:
State laws define the boundaries of distinct units of land, and
those boundaries should, in all but the most exceptional
circumstances, determine the parcel at issue. Even in regulatory
takings cases, the first step of the Takings Clause analysis is
still to identify the relevant “private property.” States create
property rights with respect to particular “things.” And in the
context of real property, those “things” are horizontally bounded
plots of land. Tahoe-Sierra , 535 U. S., at 331 (“An
interest in real property is defined by the metes and bounds that
describe its geographic dimensions”). States may define those plots
differently—some using metes and bounds, others using government
surveys, recorded plats, or subdivision maps. See 11 D. Thomas,
Thompson on Real Property §94.07(s) (2d ed. 2002); Powell on Real
Property §81A.05(2)(a) (M. Wolf ed. 2016). But the definition of
property draws the basic line between, as P. G. Wodehouse
would put it, meum and tuum . The question of who owns
what is pretty important: The rules must provide a readily
ascertainable definition of the land to which a particular bundle
of rights attaches that does not vary depending upon the purpose at
issue. See, e.g., Wis. Stat. §236.28 (2016) (“[T]he lots in
[a] plat shall be described by the name of the plat and the lot and
block . . . for all purposes, including those of
assessment, taxation, devise, descent and conveyance”).

															Following state property lines is also entirely
consistent with Penn Central . Requiring consideration of the
“parcel as a whole” is a response to the risk that owners will
strategically pluck one strand from their bundle of property
rights—such as the air rights at issue in Penn Central —and
claim a complete taking based on that strand alone. That risk of
strategic unbundling is not present when a legally distinct parcel
is the basis of the regulatory takings claim. State law defines all
of the interests that come along with owning a particular parcel,
and both property owners and the government must take those rights
as they find them.

															The majority envisions that relying on state law
will create other opportunities for “gamesmanship” by landowners
and States: The former, it contends, “might seek to alter [lot]
lines in anticipation of regulation,” while the latter might pass a
law that “consolidates . . . property” to avoid a
successful takings claim. Ante, at 11, 17. But such obvious
attempts to alter the legal landscape in anticipation of a lawsuit
are unlikely and not particularly difficult to detect and disarm.
We rejected the strategic splitting of property rights in Penn
Central , and courts could do the same if faced with an attempt
to create a takings-specific definition of “private property.” Cf. Phillips v. Washington Legal Foundation , 524
U. S. 156, 167 (1998) (“[A] State may not sidestep the Takings
Clause by disavowing traditional property interests long recognized
under state law”).

															Once the relevant property is identified, the
real work begins. To decide whether the regulation at issue amounts
to a “taking,” courts should focus on the effect of the regulation
on the “private property” at issue. Adjacent land under common
ownership may be relevant to that inquiry. The owner’s possession
of such a nearby lot could, for instance, shed light on how the
owner reasonably expected to use the parcel at issue before the
regulation. If the court concludes that the government’s action
amounts to a taking, principles of “just compensation” may also
allow the owner to recover damages “with regard to a separate
parcel” that is contiguous and used in conjunction with the parcel
at issue. 4A L. Smith & M. Hansen, Nichols’ Law of Eminent
Domain, ch. 14B, §14B.02 (rev. 3d ed. 2010).

															In sum, the “parcel as a whole” requirement
prevents a property owner from identifying a single “strand” in his
bundle of property rights and claiming that interest has been
taken. Allowing that strategic approach to defining “private
property” would undermine the balance struck by our regulatory
takings cases. Instead, state law creates distinct parcels of land
and defines the rights that come along with owning those parcels.
Those established bundles of rights should define the “private
property” in regulatory takings cases. While ownership of
contiguous properties may bear on whether a person’s plot has been
“taken,” Penn Central provides no basis for disregarding
state property lines when identifying the “parcel as a whole.”

															II

															The lesson that the majority draws from Penn Central is that defining “the proper parcel in
regulatory takings cases cannot be solved by any simple test.” Ante, at 20. Following through on that stand against
simplicity, the majority lists a complex set of factors
theoretically designed to reveal whether a hypothetical landowner
might expect that his property “would be treated as one parcel, or,
instead, as separate tracts.” Ante, at 11. Those factors,
says the majority, show that Lots E and F of the Murrs’ property
constitute a single parcel and that the local ordinance requiring
the Murrs to develop and sell those lots as a pair does not
constitute a taking.

															In deciding that Lots E and F are a single
parcel, the majority focuses on the importance of the ordinance at
issue and the extent to which the Murrs may have been especially
surprised, or unduly harmed, by the application of that ordinance
to their property. But these issues should be considered when
deciding if a regulation constitutes a “taking.” Cramming them into
the definition of “private property” undermines the effectiveness
of the Takings Clause as a check on the government’s power to shift
the cost of public life onto private individuals.

															The problem begins when the majority loses track
of the basic structure of claims under the Takings Clause. While it
is true that we have referred to regulatory takings claims as
involving “essentially ad hoc, factual inquiries,” we have
conducted those wide-ranging investigations when assessing “the
question of what constitutes a ‘ taking ’ ” under Penn
Central . Ruckelshaus , 467 U. S., at 1004 (emphasis
added); see Tahoe-Sierra , 535 U. S., at 326 (“[W]e have
generally eschewed any set formula for determining how far is
too far ” (emphasis added; internal quotation marks omitted)).
And even then, we reach that “ad hoc” Penn Central framework
only after determining that the regulation did not deny all
productive use of the parcel. See Tahoe-Sierra , 535
U. S., at 331. Both of these inquiries presuppose that the
relevant “private property” has already been identified. See Hodel v. Virginia Surface Mining & Reclamation Assn.,
Inc. , 452 U. S. 264, 295 (1981) (explaining that “[t]hese
‘ad hoc, factual inquiries’ must be conducted with respect to
specific property”). There is a simple reason why the majority does
not cite a single instance in which we have made that
identification by relying on anything other than state property
principles—we have never done so.

															In departing from state property principles, the
majority authorizes governments to do precisely what we rejected in Penn Central : create a litigation-specific definition of
“property” designed for a claim under the Takings Clause. Whenever
possible, governments in regulatory takings cases will ask courts
to aggregate legally distinct properties into one “parcel,” solely
for purposes of resisting a particular claim. And under the
majority’s test, identifying the “parcel as a whole” in such cases
will turn on the reasonableness of the regulation as applied to the
claimant. The result is that the government’s regulatory interests
will come into play not once, but twice—first when identifying the
relevant parcel, and again when determining whether the regulation
has placed too great a public burden on that property.

															Regulatory takings, however—by their very
nature—pit the common good against the interests of a few. There is
an inherent imbalance in that clash of interests. The widespread
benefits of a regulation will often appear far weightier than the
isolated losses suffered by individuals. And looking at the bigger
picture, the overall societal good of an economic system grounded
on private property will appear abstract when cast against a
concrete regulatory problem. In the face of this imbalance, the
Takings Clause “prevents the public from loading upon one
individual more than his just share of the burdens of government,” Monongahela Nav. Co. v. United States , 148 U. S.
312, 325 (1893) , by considering the effect of a regulation on
specific property rights as they are established at state law. But
the majority’s approach undermines that protection, defining
property only after engaging in an ad hoc, case-specific
consideration of individual and community interests. The result is
that the government’s goals shape the playing field before the
contest over whether the challenged regulation goes “too far” even
gets underway.

															Suppose, for example, that a person buys two
distinct plots of land—known as Lots A and B—from two different
owners. Lot A is landlocked, but the neighboring Lot B shares a
border with a local beach. It soon comes to light, however, that
the beach is a nesting habitat for a species of turtle. To protect
this species, the state government passes a regulation preventing
any development or recreation in areas abutting the beach—including
Lot B. If that lot became the subject of a regulatory takings
claim, the purchaser would have a strong case for a per se taking: Even accounting for the owner’s possession of the other
property, Lot B had no remaining economic value or productive use.
But under the majority’s approach, the government can argue
that—based on all the circumstances and the nature of the
regulation—Lots A and B should be considered one “parcel.” If that
argument succeeds, the owner’s per se takings claim is gone,
and he is left to roll the dice under the Penn Central balancing framework, where the court will, for a second time, throw
the reason-ableness of the government’s regulatory action into the
balance.

															The majority assures that, under its test,
“[d]efining the property . . . should not necessarily preordain the outcome in every case.” Ante, at 10 (emphasis added). The underscored language
cheapens the assurance. The framework laid out today provides
little guidance for identifying whether “expectations about
property ownership would lead a landowner to anticipate that his
holdings would be treated as one parcel, or, instead, as separate
tracts.” Ante, at 12. Instead, the majority’s approach will
lead to definitions of the “parcel” that have far more to do with
the reasonableness of applying the challenged regulation to a
particular landowner. The result is clear double counting to tip
the scales in favor of the government: Reasonable government
regulation should have been anticipated by the landowner, so the
relevant parcel is defined consistent with that regulation. In
deciding whether there is a taking under the second step of the
analysis, the regulation will seem eminently reasonable given its
impact on the pre-packaged parcel. Not, as the Court assures us,
“necessarily” in “every” case, but surely in most.

															Moreover, given its focus on the particular
challenged regulation, the majority’s approach must mean that two
lots might be a single “parcel” for one takings claim, but separate
“parcels” for another. See ante, at 13. This is just another
opportunity to gerrymander the definition of “private property” to
defeat a takings claim. The majority also emphasizes that courts
trying to identify the relevant parcel “must strive” to ensure that
“some people alone [do not] bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.” Ante, at 20 (internal quotation marks omitted). But this
refrain is the traditional touchstone for spotting a taking, not
for defining private property.

															Put simply, today’s decision knocks the
definition of “private property” loose from its foundation on
stable state law rules and throws it into the maelstrom of multiple
factors that come into play at the second step of the takings
analysis. The result: The majority’s new framework compromises the
Takings Clause as a barrier between individuals and the press of
the public interest.

															III

															Staying with a state law approach to defining
“private property” would make our job in this case fairly easy. The
Murr siblings acquired Lot F in 1994 and Lot E a year later. Once
the lots fell into common ownership, the challenged ordinance
prevented them from being “sold or developed as separate lots”
because neither contained a sufficiently large area of buildable
land. Wis. Admin. Code §NR 118.08(4)(a)(2). The Murrs argued
that the ordinance amounted to a taking of Lot E, but the State of
Wisconsin and St. Croix County proposed that both lots together
should count as the relevant “parcel.”

															The trial court sided with the State and County,
and the Wisconsin Court of Appeals affirmed. Rather than
considering whether Lots E and F are separate parcels under
Wisconsin law, however, the Court of Appeals adopted a
takings-specific approach to defining the relevant parcel. See 2015
WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished
opinion), App. to Pet. for Cert. A–9, ¶17 (framing the issue as
“whether contiguous property is analytically divisible for purposes
of a regulatory takings claim”). Relying on what it called a
“well-established rule” for “regulatory takings cases,” the court
explained “that contiguous property under common ownership is
considered as a whole regardless of the number of parcels contained
therein.” Id., at A–11, ¶20. And because Lots E and F were
side by side and owned by the Murrs, the case was straightforward:
The two lots were one “parcel” for the regulatory takings analysis.
The court therefore evaluated the effect of the ordinance on the
two lots considered together.

															As I see it, the Wisconsin Court of Appeals was
wrong to apply a takings-specific definition of the property at
issue. Instead, the court should have asked whether, under general
state law principles, Lots E and F are legally distinct parcels of
land. I would therefore vacate the judgment below and remand for
the court to identify the relevant property using ordinary
principles of Wisconsin property law.

															After making that state law determination, the
next step would be to determine whether the challenged ordinance
amounts to a “taking.” If Lot E is a legally distinct parcel under
state law, the Court of Appeals would have to perform the takings
analysis anew, but could still consider many of the issues the
majority finds important. The majority, for instance, notes that
under the ordinance the Murrs can use Lot E as “recreational
space,” as the “location of any improvements,” and as a valuable
addition to Lot F. Ante, at 18. These facts could be
relevant to whether the “regulation denies all economically
beneficial or productive use” of Lot E. Lucas , 505
U. S., at 1015. Similarly, the majority touts the benefits of
the ordinance and observes that the Murrs had little use for Lot E
independent of Lot F and could have predicted that Lot E would be
regulated. Ante, at 18. These facts speak to “the economic
impact of the regulation,” interference with “investment-backed
expectations,” and the “character of the governmental action”—all
things we traditionally consider in the Penn Central analysis. 438 U. S., at 124.

															I would be careful, however, to confine these
considerations to the question whether the regulation constitutes a
taking. As Alexander Hamilton explained, “the security of Property”
is one of the “great object[s] of government.” 1 Records of the
Federal Convention of 1787, p. 302 (M. Farrand ed. 1911). The
Takings Clause was adopted to ensure such security by protecting
property rights as they exist under state law. Deciding whether a
regulation has gone so far as to constitute a “taking” of one of
those property rights is, properly enough, a fact-intensive task
that relies “as much on the exercise of judgment as on the
application of logic.” MacDonald, Sommer & Frates v. Yolo County , 477 U. S. 340, 349 (1986) (alterations and
internal quotation marks omitted). But basing the definition of
“property” on a judgment call, too, allows the government’s
interests to warp the private rights that the Takings Clause is
supposed to secure.

															I respectfully dissent. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 15–214

															_________________

															JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al.

															on writ of certiorari to the court of appeals
of wisconsin, district iii

															[June 23, 2017]

															Justice Thomas, dissenting.

															I join The Chief Justice’s dissent because it
correctly applies this Court’s regulatory takings precedents, which
no party has asked us to reconsider. The Court, however, has never
purported to ground those precedents in the Constitution as it was
originally understood. In Pennsylvania Coal Co. v. Mahon , 260 U. S. 393, 415 (1922) , the Court announced
a “general rule” that “if regulation goes too far it will be
recognized as a taking.” But we have since observed that, prior to Mahon , “it was generally thought that the Takings Clause
reached only a ‘direct appropriation’ of property, Legal Tender
Cases , 12 Wall. 457, 551 (1871), or the functional equivalent
of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago , 99 U. S. 635, 642
(1879) .” Lucas v. South Carolina Coastal Council ,
505 U. S. 1003, 1014 (1992) . In my view, it would be
desirable for us to take a fresh look at our regulatory takings
jurisprudence, to see whether it can be grounded in the original
public meaning of the Takings Clause of the Fifth Amendment or the
Privileges or Immunities Clause of the Fourteenth Amendment. See
generally Rappaport, Originalism and Regulatory Takings: Why the
Fifth Amendment May Not Protect Against Regulatory Takings, but the
Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008)
(describing the debate among scholars over those questions).


Sheetz v. County of El Dorado, California

NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal
errors.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–1074

															_________________

															GEORGE SHEETZ, PETITIONER v. COUNTY OF
EL DORADO, CALIFORNIA

															on writ of certiorari to the court of appeal
of california, third appellate district

															[April 12, 2024]

															Justice Barrett delivered the opinion of the
Court.

															George Sheetz wanted to build a small,
prefabricated home on his residential parcel of land. To obtain a
permit, though, he had to pay a substantial fee to mitigate local
traffic congestion. Relying on this Court’s decisions in Nollan v. California Coastal Comm’n , 483 U.S.
825 (1987), and Dolan v. City of Tigard , 512 U.S.
374 (1994), Sheetz challenged the fee as an unlawful “exaction”
of money under the Takings Clause. The California Court of Appeal
rejected that argument because the traffic impact fee was imposed
by legislation, and, according to the court, Nollan and Dolan apply only to permit conditions imposed on an
ad hoc basis by administrators. That is incorrect. The Takings
Clause does not distinguish between legislative and administrative
permit conditions.

															I

															A

															El Dorado County, California is a rural
jurisdiction that lies east of Sacramento and extends to the Nevada
border. Much of the County’s 1,700 square miles is backcountry. It
is home to the Sierra Nevada mountain range and the Eldorado
National Forest. Those areas, composed mainly of public lands, are
sparsely populated. Visitors from around the world use the natural
areas for fishing, backpacking, and other recreational
activities.

															Most of the County’s residents are concentrated
in the west and east regions. In the west, the towns of El Dorado
Hills, Cameron Park, and Shingle Springs form the outer reaches of
Sacramento’s suburbs. Placerville, the county seat, lies just
beyond them. In the east, residents live along the south shores of
Lake Tahoe. Highway 50 connects these population centers and
divides the County into north and south portions.

															In recent decades, the County has experienced
significant population growth, and with it an increase in new
development. To account for the new demand on public services, the
County’s Board of Supervisors adopted a planning document, which it
calls the General Plan, to address issues ranging from wastewater
collection to land-use restrictions.[ 1 ] The Board of Supervisors is a legislative body under
state law, and the adoption of its General Plan is a legislative
act. See Cal. Govt. Code Ann. §65300 et seq. (West
2024).

															To address traffic congestion, the General Plan
requires developers to pay a traffic impact fee as a condition of
receiving a building permit. The County uses proceeds from these
fees to fund improvements to its road system. The fee amount is
determined by a rate schedule, which takes into account the type of
development (commercial, residential, and so on) and its location
within the County. The amount is not based on “the cost
specifically attributable to the particular project on which the
fee is imposed.” 84 Cal. App. 5th 394, 402, 300 Cal. Rptr. 3d 308,
312 (2022).

															B

															George Sheetz owns property in the center of
the County near Highway 50, which the General Plan classifies as
“Low Density Residential.” [ 2 ] Sheetz and his wife applied for a permit to build a
modest prefabricated house on the parcel, with plans to raise their
grandson there. As a condition of receiving the permit, the County
required Sheetz to pay a traffic impact fee of $23,420, as dictated
by the General Plan’s rate schedule. Sheetz paid the fee under
protest and obtained the permit. The County did not respond to his
request for a refund.

															Sheetz sought relief in state court. He claimed,
among other things, that conditioning the building permit on the
payment of a traffic impact fee constituted an unlawful “exaction”
of money in violation of the Takings Clause. In Sheetz’s view, our
decisions in Nollan v. California Coastal Comm’n , 483 U.S.
825 , and Dolan v. City of Tigard , 512 U.S.
374 , required the County to make an individualized
determination that the fee amount was necessary to offset traffic
congestion attributable to his specific development. The County’s
predetermined fee schedule, Sheetz argued, failed to meet that
requirement.

															The trial court rejected Sheetz’s claim and the
California Court of Appeal affirmed. Relying on precedent from the
California Supreme Court, the Court of Appeal asserted that the Nollan / Dolan test applies only to permit conditions
imposed “ ‘on an individual and discretionary basis.’ ”
84 Cal. App. 5th, at 406, 300 Cal. Rptr. 3d, at 316 (quoting San
Remo Hotel L. P. v. City and Cty. of San Francisco , 27 Cal. 4th 643 , 666–670, 41 P.3d 87 , 102–105 (2002)). Fees imposed on “a broad class of
property owners through legislative action,” it said, need not
satisfy that test. 84 Cal. App. 5th, at 407, 300 Cal. Rptr. 3d, at
316. The California Supreme Court denied review.

															State courts have reached different conclusions
on the question whether the Takings Clause recognizes a distinction
between legislative and administrative conditions on land-use
permits.[ 3 ] We granted
certiorari to resolve the split. 600 U. S. ___ (2023).

															II

															A

															When the government wants to take private
property to build roads, courthouses, or other public projects, it
must compensate the owner at fair market value. The just
compensation requirement comes from the Fifth Amendment’s Takings
Clause, which provides: “nor shall private property be taken for
public use, without just compensation.” By requiring the government
to pay for what it takes, the Takings Clause saves individual
property owners from bearing “public burdens which, in all fairness
and justice, should be borne by the public as a whole.” Armstrong v. United States , 364 U.S.
40 , 49 (1960).

															The Takings Clause’s right to just compensation
coexists with the States’ police power to engage in land-use
planning. (Though at times the two seem more like in-laws than
soulmates.) While States have substantial authority to regulate
land use, see Village of Euclid v. Amber Realty Co. , 272 U.S.
365 (1926), the right to compensation is triggered if they
“physically appropriat[e]” property or otherwise interfere with the
owner’s right to exclude others from it, Cedar Point Nursery v. Hassid , 594 U.S. 139, 149–152 (2021). That sort of
intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S.
419 , 426 (1982). Different rules apply to State laws that
merely restrict how land is used. A use restriction that is
“reasonably necessary to the effectuation of a substantial
government purpose” is not a taking unless it saps too much of the
property’s value or frustrates the owner’s investment-backed
expectations. Penn Central Transp. Co. v. New York
City , 438 U.S.
104 , 123, 127 (1978); see also Lucas v. South
Carolina Coastal Council , 505 U.S.
1003 , 1016 (1992) (“[T]he Fifth Amendment is violated when
land-use regulation does not substantially advance legitimate state
interests or denies an owner economically viable use of his
land ” (internal quotation marks omitted)).

															Permit conditions are more complicated. If the
government can deny a building permit to further a “legitimate
police-power purpose,” then it can also place conditions on the
permit that serve the same end. Nollan , 483 U. S., at
836. Such conditions do not entitle the landowner to compensation
even if they require her to convey a portion of her property to the
government. Ibid. Thus, if a proposed development will
“substantially increase traffic congestion,” the government may
condition the building permit on the owner’s willingness “to deed
over the land needed to widen a public road.” Koontz v. St. Johns River Water Management Dist. , 570 U.S.
595 , 605 (2013). We have described permit conditions of this
nature as “a hallmark of responsible land-use policy.” Ibid. The government is entitled to put the landowner to the choice of
accepting the bargain or abandoning the proposed development. See
R. Epstein, Bargaining With the State 188 (1993).

															The bargain takes on a different character when
the government withholds or conditions a building permit for
reasons unrelated to its land-use interests. Imagine that a local
planning commission denies the owner of a vacant lot a building
permit unless she allows the commission to host its annual holiday
party in her backyard (in propertyspeak, granting it a
limited-access easement). The landowner is “likely to accede to the
government’s demand, no matter how unreasonable,” so long as she
values the building permit more. Koontz , 570 U. S., at
605. So too if the commission gives the landowner the option of
bankrolling the party at a local pub instead of hosting it on her
land. See id ., at 612–615. Because such conditions lack a
sufficient connection to a legitimate land-use interest, they
amount to “an out-and-out plan of extortion.” Nollan , 483
U. S., at 837 (internal quotation marks omitted).

															Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we
set out a two-part test modeled on the unconstitutional conditions
doctrine. See Perry v. Sindermann , 408 U.S.
593 , 597 (1972) (government “may not deny a benefit to a person
on a basis that infringes his constitutionally protected
interests”). First, permit conditions must have an “essential
nexus” to the government’s land-use interest. Nollan , 483
U. S., at 837. The nexus requirement ensures that the
government is acting to further its stated purpose, not leveraging
its permitting monopoly to exact private property without paying
for it. See id ., at 841. Second, permit conditions must have
“ ‘rough proportionality’ ” to the development’s impact
on the land-use interest. Dolan , 512 U. S., at 391. A
permit condition that requires a landowner to give up more than is
necessary to mitigate harms resulting from new development has the
same potential for abuse as a condition that is unrelated to that
purpose. See id ., at 393. This test applies regardless of
whether the condition requires the landowner to relinquish property
or requires her to pay a “monetary exactio[n]” instead of
relinquishing the property. Koontz, 570 U. S., at
612–615.

															B

															The California Court of Appeal declined to
assess the County’s traffic impact fee for an essential nexus and
rough proportionality based on its view that the Nollan / Dolan test does not apply to “legislatively
prescribed monetary fees.” 84 Cal. App. 5th, at 407, 300 Cal. Rptr.
3d, at 316 (internal quotation marks omitted). That was error.
Nothing in constitutional text, history, or precedent supports
exempting legislatures from ordinary takings rules.

															The Constitution’s text does not limit the
Takings Clause to a particular branch of government. The Clause
itself, which speaks in the passive voice, “focuses on (and
prohibits) a certain ‘act’: the taking of private property without
just compensation.” Knight v. Metropolitan Govt. of
Nashville & Davidson Cty. , 67 F. 4th 816, 829 (CA6 2023).
It does not single out legislative acts for special treatment. Nor
does the Fourteenth Amendment, which incorporates the Takings
Clause against the States. On the contrary, the Amendment
constrains the power of each “State” as an undivided whole. §1.
Thus, there is “no textual justification for saying that the
existence or the scope of a State’s power to expropriate private
property without just compensation varies according to the branch
of government effecting the expropriation.” Stop the Beach
Renourishment, Inc. v. Florida Dept. of Environmental
Protection , 560 U.S.
702 , 714 (2010) (plurality opinion). Just as the Takings Clause
“protects ‘private property’ without any distinction between
different types,” Horne v. Department of Agriculture , 576 U.S.
351 , 358 (2015), it constrains the government without any
distinction between legislation and other official acts. So far as
the Constitution’s text is concerned, permit conditions imposed by
the legislature and other branches stand on equal footing.

															The same goes for history. In fact, special
deference for legislative takings would have made little sense
historically, because legislation was the conventional way that
governments exercised their eminent domain power. Before the
founding, colonial governments passed statutes to secure land for
courthouses, prisons, and other public buildings. See, e . g ., 4 Statutes at Large of South Carolina 319 (T.
Cooper ed. 1838) (Act of 1770) (Cooper); 6 Statutes at Large, Laws
of Virginia 283 (W. Hening ed. 1819) (Act of 1752) (Hening). These
statutes “invariably required the award of compensation to the
owners when land was taken.” J. Ely, “That Due Satisfaction May Be
Made:” the Fifth Amendment and the Origins of the Compensation
Principle, 36 Am. J. Legal Hist. 1, 5 (1992). Colonial practice
thus echoed English law, which vested Parliament alone with the
eminent domain power and required that property owners receive
“full indemnification . . . for a reasonable price.” 1 W.
Blackstone, Commentaries on the Laws of England 139 (1768).

															During and after the Revolution, governments
continued to exercise their eminent domain power through
legislation. States passed statutes to obtain private land for
their new capitals and provided compensation to the landowners.
See, e . g ., 4 Cooper 751–752 (Act of 1786); 10 Hening
85–87 (1822 ed.) (Act of 1779). At the national level, Congress
passed legislation to settle the Northwest Territory, which
likewise required the payment of compensation to dispossessed
property owners. Northwest Ordinance of 1789, 1Stat. 52. Two years
later, the Fifth Amendment enshrined this longstanding practice.
Against this background, it is little surprise that early
constitutional theorists understood the Takings Clause to bind the
legislature specifically. See, e.g. , 3 J. Story,
Commentaries on the Constitution of the United States §1784, p. 661
(1833); 2 J. Kent, Commentaries on American Law 275–276 (1827). Far
from supporting a deferential view, history shows that legislation
was a prime target for scrutiny under the Takings Clause.

															Precedent points the same way as text and
history. A legislative exception to the Nollan / Dolan test “conflicts with the rest of our takings jurisprudence,” which
does not otherwise distinguish between legislation and other
official acts. Knick v. Township of Scott, 588 U.S.
180, 185 (2019). That is true of physical takings, regulatory
takings, and the unconstitutional conditions doctrine in which the Nollan / Dolan test is rooted.

															Start with our physical takings cases. We have
applied the per se rule requiring just compensation to
both legislation and administrative action. In Loretto , we
held that a state statute effected a taking because it authorized
cable companies to install equipment on private property without
the owner’s consent. 458 U. S., at 438. In Horne , we
held that an administrative order effected a taking because it
required farmers to give the Federal Government a portion of their
crop to stabilize market prices. 576 U. S., at 361. The branch
of government that authorized the appropriation did not matter to
the analysis in either case. Nor should it have. As we have
explained: “The essential question is not . . . whether
the government action at issue comes garbed as a regulation (or
statute, or ordinance, or miscellaneous decree). It is whether the
government has physically taken property for itself or someone
else.” Cedar Point , 594 U. S., at 149.

															This principle is evident in our regulatory
takings cases too. We have examined land-use restrictions imposed
by both legislatures and administrative agencies to determine
whether the restriction amounted to a taking. In Pennsylvania
Coal Co. v. Mahon , we held a state statute effected a
taking because it prohibited the owner of mineral rights from
mining coal beneath the surface estate, thus depriving the mineral
rights of practically all economic value. 260
U.S. 393 , 414 (1922). And in Palazzolo v. Rhode
Island , we remanded for the lower courts to determine whether
an agency decision effected a taking when it denied the owner
permission to build a beach club on the wetland portion of his
property but allowed him to build a home on the upland portion. 533 U.S.
606 , 631 (2001). Here again, our decisions did not suggest that
the outcome turned on which branch of government imposed the
restrictions.

															Excusing legislation from the Nollan / Dolan test would also conflict with precedent
applying the unconstitutional conditions doctrine in other
contexts. We have applied that doctrine to scrutinize legislation
that placed conditions on the right to free speech, Agency for
Int’l Development v. Alliance for Open Society Int’l,
Inc. , 570 U.S.
205 (2013), free exercise of religion, Sherbert v. Verner , 374 U.S.
398 (1963), and access to federal courts, Terral v. Burke Constr. Co. , 257 U.S.
529 (1922), among others, e . g ., Memorial
Hospital v. Maricopa County , 415
U.S. 250 (1974) (right to travel). Failing to give like
treatment to legislative conditions on building permits would thus
“relegat[e the just compensation requirement] to the status of a
poor relation” to other constitutional rights. Dolan , 512
U. S., at 392.

															In sum, there is no basis for affording property
rights less protection in the hands of legislators than
administrators. The Takings Clause applies equally to both—which
means that it prohibits legislatures and agencies alike from
imposing unconstitutional conditions on land-use permits.

															III

															The County no longer contends otherwise. In
fact, at oral argument, the parties expressed “radical agreement”
that conditions on building permits are not exempt from scrutiny
under Nollan and Dolan just because a legislature
imposed them. Tr. of Oral Arg. 4, 73–74. The County was wise to
distance itself from the rule applied by the California Court of
Appeal, because, as we have explained, a legislative exception to
the ordinary takings rules finds no support in constitutional text,
history, or precedent.

															We do not address the parties’ other disputes
over the validity of the traffic impact fee, including whether a
permit condition imposed on a class of properties must be tailored
with the same degree of specificity as a permit condition that
targets a particular development. The California Court of Appeal
did not consider this point—or any of the parties’ other nuanced
arguments—because it proceeded from the erroneous premise that
legislative permit conditions are categorically exempt from the
requirements of Nollan and Dolan . Whether the
parties’ other arguments are preserved and how they bear on
Sheetz’s legal challenge are for the state courts to consider in
the first instance.

															*  *  *

															The judgment of the California Court of Appeal
is vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.

															It is so ordered. Notes 1 See County of El Dorado
Adopted General Plan,
https://edcgov.us/Government/planning/Pages/adopted_general_plan.aspx. 2 See Figure LU–1: Land Use
Diagram, https://edcgov.us/government/
planning/adoptedgeneralplan/figures/documents/LU-1.pdf. 3 Compare, e . g ., Home Builders Assn. of Dayton and Miami
Valley v. Beavercreek , 89 Ohio St. 3d 121, 128, 729
N.E.2d 349, 356 (2000); Northern Ill. Home Builders Assn. v. County of Du Page , 165 Ill. 2d 25 , 32–33, 649 N.E.2d 384 , 389 (1995) (applying the Nollan / Dolan test to legislative permit conditions),
with, e . g ., St. Clair Cty. Home Builders Assn. v. Pell City , 61 So. 3d 992, 1007 (Ala. 2010); Home
Builders Assn. of Central Ariz. v. Scottsdale , 187 Ariz.
479, 486, 930 P.2d 993 , 1000 (1997) (following California’s
approach). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–1074

															_________________

															GEORGE SHEETZ, PETITIONER v. COUNTY OF
EL DORADO, CALIFORNIA

															on writ of certiorari to the court of appeal
of california, third appellate district

															[April 12, 2024]

															Justice Sotomayor, with whom Justice Jackson
joins, concurring.

															I join the Court’s resolution of the limited
question presented in this case, that conditions on building
permits are “not exempt from scrutiny under Nollan and Dolan just because a legislature imposed them.” Ante ,
at 10; see Nollan v. California Coastal Comm’n , 483 U.S.
825 (1987); Dolan v. City of Tigard , 512 U.S.
374 (1994). There is, however, an important threshold question
to any application of Nollan / Dolan scrutiny: whether
the permit condition would be a compensable taking if imposed
outside the permitting context.

															“A predicate for any unconstitutional conditions
claim is that the government could not have constitutionally
ordered the person asserting the claim to do what it attempted to
pressure that person into doing.” Koontz v. St. Johns
River Water Management Dist. , 570 U.S.
595 , 612 (2013). In the takings context, Nollan / Dolan scrutiny therefore applies only when the
condition at issue would have been a compensable taking if imposed
outside the permitting process. See Koontz , 570 U. S.,
at 612 (“[W]e began our analysis in both Nollan and Dolan by observing that if the government had directly
seized the easements it sought to obtain through the permitting
process, it would have committed a per se taking”).

															The question presented in this case did not
include that antecedent question: whether the traffic impact fee
would be a compensable taking if imposed outside the permitting
context and therefore could trigger Nollan / Dolan scrutiny. The California Court of Appeal did not consider that
question and the Court does not resolve it. See ante, at
10–11. With this understanding, I join the Court’s opinion. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–1074

															_________________

															GEORGE SHEETZ, PETITIONER v. COUNTY OF
EL DORADO, CALIFORNIA

															on writ of certiorari to the court of appeal
of california, third appellate district

															[April 12, 2024]

															Justice Gorsuch, concurring.

															George Sheetz sued El Dorado County, alleging
that the county’s actions violated the Takings Clause under the
test this Court set forth in Nollan v. California Coastal
Comm’n , 483 U.S.
825 (1987), and Dolan v. City of Tigard , 512 U.S.
374 (1994). State courts dismissed Mr. Sheetz’s suit, holding
that the Nollan/Dolan test applies only in challenges to
administrative, not legislative, actions. Today, the county
essentially confesses error, and the Court corrects the state
courts’ mistake. It does so because our Constitution deals in
substance, not form. However the government chooses to act, whether
by way of regulation “ ‘or statute, or ordinance, or
miscellaneous decree,’ ” it must follow the same
constitutional rules. Ante, at 9 (quoting Cedar Point
Nursery v. Hassid , 594 U.S. 139, 149 (2021)).

															The Court notes but does not address a separate
question: whether the Nollan/Dolan test operates differently
when an alleged taking affects a “class of properties” rather than
“a particular development.” Ante, at 11. But how could it?
To assess whether a government has engaged in a taking by imposing
a condition on the development of land, the Nollan/Dolan test asks whether the condition in question bears an
“ ‘essential nexus’ ” to the government’s land-use
interest and has “ ‘rough proportionality’ ” to a
property’s impact on that interest. Ante, at 6. Nothing
about that test depends on whether the government imposes the
challenged condition on a large class of properties or a single
tract or something in between. Once more, how the government acts
may vary but the Constitution’s standard for assessing those
actions does not.

															Our precedents confirm as much. In Nollan , the California Coastal Commission told the
plaintiffs that they could build a home on their land only if they
accepted an easement allowing public access across their property
along the beach. The plaintiffs argued that the commission’s demand
amounted to a taking without just compensation, and the Court
agreed. In doing so, the Court acknowledged that the commission
hadn’t singled out the plaintiffs’ particular property for special
treatment but “had similarly conditioned” dozens of other building
projects. 483 U. S., at 829. It acknowledged, too, that the
commission’s demand of the plaintiffs came about only because of a
“ ‘comprehensive program’ ” demanding similar public
access easements up and down the California coast. Id., at
841. But none of that made any difference in the Court’s analysis,
the test it applied, or the conclusion it reached. All that
mattered was whether the government’s action amounted to an
uncompensated taking of the property of the plaintiffs whose case
was actually before the Court. Id., at 838.

															In Dolan , the Court faced a similar
situation and reached a similar conclusion. There, an Oregon
municipality conditioned a building permit on the plaintiff ’s
agreement to dedicate part of her land to “flood control and
traffic improvements.” 512 U. S., at 377. No one suggested
that the city had targeted the plaintiff ’s development for
special treatment; everyone agreed that the city’s challenged
action was the result of a “comprehensive land use pla[n],” one
developed to meet “statewide planning goals.” Ibid. Even so,
the Court held an “individualized determination” necessary to
determine whether an unconstitutional taking had occurred under the
same test the Court applied in Nollan . 512 U. S., at
393.

															The logic of today’s decision is entirely
consistent with these conclusions. The Takings Clause, the Court
stresses, is no “ ‘poor relation’ to other constitutional
rights.” Ante, at 10 (quoting Dolan , 512 U. S.,
at 392). And the government rarely mitigates a constitutional
problem by multiplying it. A governmentally imposed condition on
the freedom of speech, the right to assemble, or the right to
confront one’s accuser, for example, is no more permissible when
enforced against a large “class” of persons than it is when
enforced against a “particular” group. If takings claims must
receive “like treatment,” ante, at 10, whether the
government owes just compensation for taking your property cannot
depend on whether it has taken your neighbors’ property too.

															In short, nothing in Nollan , Dolan , or today’s decision supports distinguishing between
government actions against the many and the few any more than it
supports distinguishing between legislative and administrative
actions. In all these settings, the same constitutional rules
apply. With that understanding, I am pleased to join the Court’s
opinion. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 22–1074

															_________________

															GEORGE SHEETZ, PETITIONER v. COUNTY OF
EL DORADO, CALIFORNIA

															on writ of certiorari to the court of appeal
of california, third appellate district

															[April 12, 2024]

															Justice Kavanaugh, with whom Justice Kagan and
Justice Jackson join, concurring.

															I join the Court’s opinion. I write separately
to underscore that the Court has not previously decided—and today
explicitly declines to decide—whether “a permit condition imposed
on a class of properties must be tailored with the same degree of
specificity as a permit condition that targets a particular
development.” Ante , at 10–11. Importantly, therefore,
today’s decision does not address or prohibit the common government
practice of imposing permit conditions, such as impact fees, on new
developments through reasonable formulas or schedules that assess
the impact of classes of development rather than the impact of
specific parcels of property. Moreover, as is apparent from the
fact that today’s decision expressly leaves the question open, no
prior decision of this Court has addressed or prohibited that
longstanding government practice. Both Nollan and Dolan considered permit conditions tailored to specific
parcels of property. See Dolan v. City of Tigard , 512 U.S.
374 , 379–381, 393 (1994); Nollan v. California
Coastal Comm’n , 483 U.S.
825 , 828–829 (1987). Those decisions had no occasion to address
permit conditions, such as impact fees, that are imposed on permit
applicants based on reasonable formulas or schedules that assess
the impact of classes of development.