U.S. Supreme Court Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) Village of Belle Terre v.
Boraas No. 73-191 Argued February 19-20,
1974 Decided April 1, 1974 416 U.S.
1 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE SECOND
CIRCUIT Syllabus A New York village ordinance restricted land use to one-family
dwellings, defining the word "family" to mean one or more persons
related by blood, adoption, or marriage, or not more than two
unrelated persons, living and cooking together as a single
housekeeping unit and expressly excluding from the term lodging,
boarding, fraternity, or multiple dwelling houses. After the owners
of a house in the village, who had leased it to six unrelated
college students, were cited for violating the ordinance, this
action was brought to have the ordinance declared unconstitutional
as violative of equal protection and the rights of association,
travel, and privacy. The District Court held the ordinance
constitutional, and the Court of Appeals reversed. Held: 1. Economic and social legislation with respect to which the
legislature has drawn lines in the exercise of its discretion will
be upheld if it is "reasonable, not arbitrary," and bears "a
rational relationship to a [permissible] state objective," Reed
v. Reed, 404 U. S. 71 , 404 U. S. 76 ,
and here the ordinance -- which is not aimed at transients and
involves no procedural disparity inflicted on some but not on
others or deprivation of any "fundamental" right -- meets that
constitutional standard, and must be upheld as valid land use
legislation addressed to family needs. Berman v. Parker, 348 U. S. 26 . Pp. 416 U. S. 7 -9. Page 416 U. S. 2 2. The fact that the named tenant appellees have vacated the
house does not moot this case, as the challenged ordinance
continues to affect the value of the property. Pp. 416 U. S.
9 -10.

															476 F.2d 806, reversed.

															DOUGLAS, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. BRENNAN, J., post, p. 416 U. S. 10 , and
MARSHALL, J., post, p. 416 U. S. 12 ,
filed dissenting opinions.

															MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															Belle Terre is a village on Long Island's north shore of about
220 homes inhabited by 700 people. Its total land area is less than
one square mile. It has restricted land use to one-family dwellings
excluding lodging houses, boarding houses, fraternity houses, or
multiple-dwelling houses. The word "family," as used in the
ordinance means,

															"[o]ne or more persons related by blood, adoption, or marriage,
living and cooking together as a single housekeeping unit,
exclusive of household servants. A number of persons but not
exceeding two (2) living and cooking together as a single
housekeeping unit, though not related by blood, adoption, or
marriage shall be deemed to constitute a family."

															Appellees, the Dickmans, are owners of a house in the village,
and leased it in December, 1971, for a term of 18 months to Michael
Truman. Later, Bruce Boraas became a co-lessee. Then Anne Parish
moved into the house, along with three others. These six are
students at nearby State University at Stony Brook, and none is Page 416 U. S. 3 related to the other by blood, adoption, or marriage. When the
village served the Dickmans with an "Order to Remedy Violations" of
the ordinance, [ Footnote 1 ] the
owners plus three tenants [ Footnote
2 ] thereupon brought this action under 42 U.S.C. § 1983 for an
injunction and a judgment declaring the ordinance unconstitutional.
The District Court held the ordinance constitutional, 367 F.
Supp. 136 , and the Court of Appeals reversed, one judge
dissenting, 476 F.2d 806. The case is here by appeal, 28 U.S.C. §
1254(2); and we noted probable jurisdiction, 414 U.S. 907.

															This case brings to this Court a different phase of local zoning
regulations from those we have previously reviewed. Euclid v.
Ambler Realty Co., 272 U. S. 365 ,
involved a zoning ordinance classifying land use in a given area
into six categories. The Dickmans' tracts fell under three
classifications: U-2, which included two-family dwellings; U-3,
which included apartments, hotels, churches, schools, private
clubs, hospitals, city hall and the like; and U-6, which included
sewage disposal plants, incinerators, scrap storage, cemeteries,
oil and gas storage and so on. Heights of buildings were prescribed
for each zone; also, the size of land areas required for each kind
of use was specified. The land in litigation was vacant and being
held for industrial development, and evidence was introduced
showing that, under the restricted-use Page 416 U. S. 4 ordinance, the land would be greatly reduced in value. The claim
was that the landowner was being deprived of liberty and property
without due process within the meaning of the Fourteenth
Amendment.

															The Court sustained the zoning ordinance under the police power
of the State, saying that the line,

															"which in this field separates the legitimate from the
illegitimate assumption of power, is not capable of precise
delimitation. It varies with circumstances and conditions." Id. at 272 U. S. 387 .
And the Court added:

															"A nuisance may be merely a right thing in the wrong place, --
like a pig in the parlor, instead of the barnyard. If the validity
of the legislative classification for zoning purposes be fairly
debatable, the legislative judgment must be allowed to
control." Id. at 272 U. S. 388 .
The Court listed as considerations bearing on the constitutionality
of zoning ordinances the danger of fire or collapse of buildings,
the evils of overcrowding people, and the possibility that
"offensive trades, industries, and structures" might "create
nuisance" to residential sections. Ibid. But even those
historic police power problems need not loom large or actually be
existent in a given case. For the exclusion of "all industrial
establishments" does not mean that "only offensive or dangerous
industries will be excluded." Ibid. That fact does not
invalidate the ordinance; the Court held:

															"The inclusion of a reasonable margin to insure effective
enforcement will not put upon a law, otherwise valid, the stamp of
invalidity. Such laws may also find their justification in the fact
that, in some fields, the bad fades into the good by such
insensible degrees that the two are not capable of being readily
distinguished and separated in terms of legislation." Id. at 272 U. S.
388 -389. Page 416 U. S. 5 The main thrust of the case in the mind of the Court was in the
exclusion of industries and apartments, and, as respects that, it
commented on the desire to keep residential areas free of
"disturbing noises"; "increased traffic"; the hazard of "moving and
parked automobiles"; the "depriving children of the privilege of
quiet and open spaces for play, enjoyed by those in more favored
localities." Id. at 272 U. S. 394 .
The ordinance was sanctioned because the validity of the
legislative classification was "fairly debatable," and therefore
could not be said to be wholly arbitrary. Id. at 272 U. S.
388 .

															Our decision in Berman v. Parker, 348 U. S.
26 , sustained a land use project in the District of
Columbia against a landowner's claim that the taking violated the
Due Process Clause and the Just Compensation Clause of the Fifth
Amendment. The essence of the argument against the law was, while
taking property for ridding an area of slums was permissible,
taking it "merely to develop a better balanced, more attractive
community" was not, id. at 348 U. S. 31 . We
refused to limit the concept of public welfare that may be enhanced
by zoning regulations. [ Footnote
3 ] We said:

															"Miserable and disreputable housing conditions may do more than
spread disease and crime and immorality. Page 416 U. S. 6 They may also suffocate the spirit by reducing the people who
live there to the status of cattle. They may indeed make living an
almost insufferable burden. They may also be an ugly sore, a blight
on the community which robs it of charm, which makes it a place
from which men turn. The misery of housing may despoil a community
as an open sewer may ruin a river."

															"We do not sit to determine whether a particular housing project
is or is not desirable. The concept of the public welfare is broad
and inclusive. . . . The values it represents are spiritual, as
well as physical, aesthetic as well as monetary. It is within the
power of the legislature to determine that the community should be
beautiful as well as healthy, spacious as well as clean, well
balanced as well as carefully patrolled." Id. at 348 U. S.
32 -33.

															If the ordinance segregated one area only for one race, it would
immediately be suspect under the reasoning of Buchanan v.
Warley, 245 U. S. 60 , where
the Court invalidated a city ordinance barring a black from
acquiring real property in a white residential area by reason of an
1866 Act of Congress, 14 Stat. 27, now 42 U.S.C. § 1982, and an
1870 Act, § 17, 16 Stat. 144, now 42 U.S.C. § 1981, both enforcing
the Fourteenth Amendment. 245 U.S. at 245 U. S. 78 -82. See Jones v. Mayer Co., 392 U. S. 409 .

															In Seattle Trust Co. v. Roberge, 278 U.
S. 116 , Seattle had a zoning ordinance that permitted a
" philanthropic home for children or for old people'" in a
particular district "'when the written consent shall have been obtained of the
owners of two-thirds of the property within four hundred (400) feet
of the proposed building.'" Id. at 278 U. S. 118 .
The Court held that provision of the ordinance unconstitutional,
saying that the existing owners could "withhold consent for selfish
reasons or arbitrarily, and Page 416 U. S. 7 may subject the trustee [owner] to their will or caprice." Id. at 278 U. S. 122 .
Unlike the billboard cases ( e.g., Cusack Co. v. City of
Chicago, 242 U. S. 526 ),
the Court concluded that the Seattle ordinance was invalid, since
the proposed home for the aged poor was not shown by its
maintenance and construction "to work any injury, inconvenience or
annoyance to the community, the district or any person." 278 U.S.
at 278 U. S.
122 .

															The present ordinance is challenged on several grounds: that it
interferes with a person's right to travel; that it interferes with
the right to migrate to and settle within a State; that it bars
people who are uncongenial to the present residents; that it
expresses the social preferences of the residents for groups that
will be congenial to them; that social homogeneity is not a
legitimate interest of government; that the restriction of those
whom the neighbors do not like trenches on the newcomers' rights of
privacy; that it is of no rightful concern to villagers whether the
residents are married or unmarried; that the ordinance is
antithetical to the Nation's experience, ideology, and
self-perception as an open, egalitarian, and integrated society.
[ Footnote 4 ]

															We find none of these reasons in the record before us. It is not
aimed at transients. Cf. Shapiro v. Thompson, 394 U.
S. 618 . It involves no procedural disparity inflicted on
some but not on others, such as was presented by Griffin v.
Illinois, 351 U. S. 12 . It
involves no "fundamental" right guaranteed by the Constitution,
such as voting, Harper v. Virginia Board, 383 U.
S. 663 ; the right of association, NAACP v.
Alabama, 357 U. S. 449 ; the
right of access to the courts, NAACP v. Button, 371 U. S. 415 ; or
any rights of privacy, cf. 381 U. S. Connecticut, Page 416 U. S. 8 381 U. S. 479 ; Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S.
453 -454. We deal with economic and social legislation,
where legislatures have historically drawn lines which we respect
against the charge of violation of the Equal Protection Clause if
the law be " reasonable, not arbitrary'" (quoting Royster
Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S.
415 ), and bears "a rational relationship to a
[permissible] state objective." Reed v. Reed, 404 U. S.
71 , 404 U. S.
76 . It is said, however, that, if two unmarried people can
constitute a "family," there is no reason why three or four may
not. But every line drawn by a legislature leaves some out that
might well have been included. [ Footnote 5 ] That exercise of discretion, however, is a
legislative, not a judicial, function.

															It is said that the Belle Terre ordinance reeks with an
animosity to unmarried couples who live together. [ Footnote 6 ] There is no evidence to support
it, and the provision of the ordinance bringing within the
definition of a "family" two unmarried people belies the
charge. Page 416 U. S. 9 The ordinance places no ban on other forms of association, for a
"family" may, so far as the ordinance is concerned, entertain
whomever it likes.

															The regimes of boarding houses, fraternity houses, and the like
present urban problems. More people occupy a given space; more cars
rather continuously pass by; more cars are parked; noise travels
with crowds.

															A quiet place where yards are wide, people few, and motor
vehicles restricted are legitimate guidelines in a land use project
addressed to family needs. This goal is a permissible one within Berman v. Parker, supra. The police power is not confined
to elimination of filth, stench, and unhealthy places. It is ample
to lay out zones where family values, youth values, and the
blessings of quiet seclusion and clean air make the area a
sanctuary for people.

															The suggestion that the case may be moot need not detain us. A
zoning ordinance usually has an impact on the value of the property
which it regulates. But in spite of the fact that the precise
impact of the ordinance sustained in Euclid on a given
piece of property was not known, 272 U.S. at 272 U. S. 397 ,
the Court, considering the matter a controversy in the realm of
city planning, sustained the ordinance. Here we are a step closer
to the impact of the ordinance on the value of the lessor's
property. He has not only lost six tenants and acquired only two in
their place; it is obvious that the scale of rental values rides on
what we decide today. When Berman reached us, it was not
certain whether an entire tract would be taken or only the
buildings on it and a scenic easement. 348 U.S. at 348 U. S. 36 .
But that did not make the case any the less a controversy in the
constitutional sense. When Mr. Justice Holmes said for the Court in Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 ,
"property rights may be cut down, and to that extent taken,
without Page 416 U. S. 10 pay," he stated the issue here. As is true in most zoning cases,
the precise impact on value may, at the threshold of litigation
over validity, not yet be known. Reversed. [ Footnote 1 ] Younger v. Harris, 401 U. S. 37 , is
not involved here, as, on August 2, 1972, when this federal suit
was initiated, no state case had been started. The effect of the
"Order to Remedy Violations" was to subject the occupants to
liability commencing August 3, 1972. During the litigation, the
lease expired and it was extended. Anne Parish moved out.
Thereafter, the other five students left, and the owners now hold
the home out for sale or rent, including to student groups.

															[ Footnote 2 ]

															Truman, Boraas, and Parish became appellees but not the other
three.

															[ Footnote 3 ]

															Vermont has enacted comprehensive state-wide land use controls
which direct local boards to develop plans ordering the uses of
local land, inter alia, to

															"create conditions favorable to transportation, health, safety,
civic activities and educational and cultural opportunities, [and]
reduce the wastes of financial and human resources which result
from either excessive congestion or excessive scattering of
population. . . ."

															Vt.Stat.Ann., Tit. 10, § 6042 (1973). Federal legislation has
been proposed designed to assist States and localities in
developing such broad objective land use guidelines. See Senate Committee on Interior and Insular Affairs, Land Use Policy
and Planning Assistance Act, S.Rep. No. 93-197 (1973).

															[ Footnote 4 ]

															Many references in the development of this thesis are made to F.
Turner, The Frontier in American History (1920), with emphasis on
his theory that "democracy [is] born of free land." Id. at
32.

															[ Footnote 5 ]

															Mr. Justice Holmes made the point a half century ago.

															"When a legal distinction is determined, as no one doubts that
it may be, between night and day, childhood and maturity, or any
other extremes, a point has to be fixed or a line has to be drawn,
or gradually picked out by successive decisions, to mark where the
change takes place. Looked at by itself, without regard to the
necessity behind it, the line or point seems arbitrary. It might as
well or nearly as well be a little more to one side or the other.
But when it is seen that a line or point there must be, and that
there is no mathematical or logical way of fixing it precisely, the
decision of the legislature must be accepted unless we can say that
it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U. S.
32 , 277 U. S. 41 (dissenting opinion).

															[ Footnote 6 ] Department of Agriculture v. Moreno, 413 U.
S. 528 , is therefore inapt, as, there, a household
containing anyone unrelated to the rest was denied food stamps.

															MR. JUSTICE BRENNAN, dissenting.

															The constitutional challenge to the village ordinance is
premised solely on alleged infringement of associational
and other constitutional rights of tenants. But the named tenant
appellees have quit the house, thus raising a serious question
whether there now exists a cognizable "case or controversy" that
satisfies that indispensable requisite of Art. III of the
Constitution. Existence of a case or controversy must, of course,
appear at every stage of review, see, e.g., Roe v. Wade, 410 U. S. 113 , 410 U. S. 125 (1973); Steffel v. Thompson, 415 U.
S. 452 , 415 U. S. 459 n. 10 (1974). In my view, it does not appear at this stage of this
case.

															Plainly, there is no case or controversy as to the named tenant
appellees, since, having moved out, they no longer have an
interest, associational, economic or otherwise, to be vindicated by
invalidation of the ordinance. Whether there is a cognizable case
or controversy must therefore turn on whether the lessor appellees
may attack the ordinance on the basis of the constitutional rights
of their tenants.

															The general "weighty" rule of practice is "that a litigant may
only assert his own constitutional rights or immunities," United States v. Raines, 362 U. S. 17 , 362 U. S. 22 (1960). A pertinent exception, however, ordinarily limits a
litigant to the assertion of the alleged denial of another's
constitutional rights to situations in which there is: (1) evidence
that as a direct consequence of the denial of constitutional rights
of the others, the litigant faces substantial economic injury, Pierce v. Society
of Page 416 U. S. 11 Sisters, 268 U. S. 510 , 268 U. S.
535 -536 (1925); Barrows v. Jackson, 346 U. S. 249 , 346 U. S.
255 -256 (1953), or criminal prosecution, Griswold v.
Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965); Eisenstadt v. Baird, 405 U.
S. 438 (1972), and (2) a showing that the litigant's and
the others' interests intertwine and, unless the litigant may
assert the constitutional rights of the others, those rights cannot
effectively be vindicated. Griswold v. Connecticut, supra;
Eisenstadt v. Baird, supra; see also NAACP v. Alabama, 357 U. S. 449 (1958).

															In my view, lessor appellees do not, on the present record,
satisfy either requirement of the exception. Their own brief
negates any claim that they face economic loss. The brief states
that

															"there is nothing in the record to support the contention that,
in a middle class, suburban residential community like Belle Terre,
traditional families are willing to pay more or less than students
with limited means like the Appellees."

															Brief for Appellees 54-55. And whether they face criminal
prosecution for violations of the ordinance is at least unclear.
The criminal summons served on them on July 19, 1972, was withdrawn
because not preceded, as required by the village's procedure, by an
order requiring discontinuance of violations within 48 hours. An
order to discontinue violation was served thereafter on July 31,
but was not followed by service of a criminal summons when the
violation was not discontinued within 48 hours. * The Court argues that, because a zoning ordinance "has an impact
on the value of the property which it regulates," there is a
cognizable case or controversy. But Page 416 U. S. 12 even if lessor appellees for that reason have a personal stake,
and we were to concede that landlord and tenant interests
intertwine in respect of the ordinance, I cannot see, on the
present record, how it can be concluded that "it would be
difficult, if not impossible," Barrows v. Jackson, supra, at 346 U. S. 257 ,
for present or prospective unrelated tenant groups of more than two
to assert their own rights before the courts, since the departed
tenant appellees had no difficulty in doing so. Thus, the second
requirement of the exception would not presently appear to be
satisfied. Accordingly, it is irrelevant that the house was let, as
we are now informed, to other unrelated tenants on a month-to-month
basis after the tenant appellees moved out. None of the new tenants
has sought to intervene in this suit. Indeed, for all that appears,
they too may have moved out and the house may be vacant.

															I dissent, and would vacate the judgment of the Court of Appeals
and remand to the District Court for further proceedings. If the
District Court determines that a cognizable case or controversy no
longer exists, the complaint should be dismissed. Golden v.
Zwickler, 394 U. S. 103 (1969).

															* In these circumstances, I agree with the Court that no
criminal action was "pending" when this suit was brought, and that,
therefore, the District Court correctly declined to apply the
principles of Younger v. Harris, 401 U. S.
37 (1971).

															MR. JUSTICE MARSHALL, dissenting.

															This case draws into question the constitutionality of a zoning
ordinance of the incorporated village of Belle Terre, New York,
which prohibits groups of more than two unrelated persons, as
distinguished from groups consisting of any number of persons
related by blood, adoption, or marriage, from occupying a residence
within the confines of the township. [ Footnote 2/1 ] Lessor-appellees, the two owners of a
Belle Terre residence, and three unrelated student tenants
challenged the ordinance on the ground that it establishes a
classification between households of Page 416 U. S. 13 related and unrelated individuals, which deprives them of equal
protection of the laws. In my view, the disputed classification
burdens the students' fundamental rights of association and privacy
guaranteed by the First and Fourteenth Amendments. Because the
application of strict equal protection scrutiny is therefore
required, I am at odds with my Brethren's conclusion that the
ordinance may be sustained on a showing that it bears a rational
relationship to the accomplishment of legitimate governmental
objectives.

															I am in full agreement with the majority that zoning is a
complex and important function of the State. It may indeed be the
most essential function performed by local government, for it is
one of the primary means by which we protect that sometimes
difficult to define concept of quality of life. I therefore
continue to adhere to the principle of Euclid v. Ambler Realty
Co., 272 U. S. 365 (1926), that deference should be given to governmental judgments
concerning proper land use allocation. That deference is a
principle which has served this Court well, and which is necessary
for the continued development of effective zoning and land use
control mechanisms. Had the owners alone brought this suit alleging
that the restrictive ordinance deprived them of their property or
was an irrational legislative classification, I would agree that
the ordinance would have to be sustained. Our role is not and
should not be to sit as a zoning board of appeals.

															I would also agree with the majority that local zoning
authorities may properly act in furtherance of the objectives
asserted to be served by the ordinance at issue here: restricting
uncontrolled growth, solving traffic problems, keeping rental costs
at a reasonable level, and making the community attractive to
families. The police power which provides the justification for
zoning is not narrowly Page 416 U. S. 14 confined. See Berman v. Parker, 348 U. S.
26 (1954). And it is appropriate that we afford zoning
authorities considerable latitude in choosing the means by which to
implement such purposes. But deference does not mean abdication.
This Court has an obligation to ensure that zoning ordinances, even
when adopted in furtherance of such legitimate aims, do not
infringe upon fundamental constitutional rights.

															When separate but equal was still accepted constitutional dogma,
this Court struck down a racially restrictive zoning ordinance. Buchanan v. Warley, 245 U. S. 60 (1917). I am sure the Court would not be hesitant to invalidate
that ordinance today. The lower federal courts have considered
procedural aspects of zoning, [ Footnote
2/2 ] and acted to insure that land use controls are not used as
means of confining minorities and the poor to the ghettos of our
central cities. [ Footnote 2/3 ]
These are limited but necessary intrusions on the discretion of
zoning authorities. By the same token, I think it clear that the
First Amendment provides some limitation on zoning laws. It is
inconceivable to me that we would allow the exercise of the zoning
power to burden First Amendment freedoms, as by ordinances that
restrict occupancy to individuals adhering to particular religious,
political, or scientific beliefs. Zoning officials properly
concern Page 416 U. S. 15 themselves with the uses of land -- with, for example, the
number and kind of dwellings to be constructed in a certain
neighborhood or the number of persons who can reside in those
dwellings. But zoning authorities cannot validly consider who those
persons are, what they believe, or how they choose to live, whether
they are Negro or white, Catholic or Jew, Republican or Democrat,
married or unmarried.

															My disagreement with the Court today is based upon my view that
the ordinance in this case unnecessarily burdens appellees' First
Amendment freedom of association and their constitutionally
guaranteed right to privacy. Our decisions establish that the First
and Fourteenth Amendments protect the freedom to choose one's
associates. NAACP v. Button, 371 U.
S. 415 , 371 U. S. 430 (1963). Constitutional protection is extended not only to modes of
association that are political in the usual sense, but also to
those that pertain to the social and economic benefit of the
members. Id. at 371 U. S.
430 -431; Brotherhood of Railroad Trainmen v.
Virginia Bar, 377 U. S. 1 (1964). See United Transportation Union v. State Bar of Michigan, 401 U. S. 576 (1971); Mine Workers v. Illinois State Bar Assn., 389 U. S. 217 (1967). The selection of one's living companions involves similar
choices as to the emotional, social, or economic benefits to be
derived from alternative living arrangements.

															The freedom of association is often inextricably entwined with
the constitutionally guaranteed right of privacy. The right to
"establish a home" is an essential part of the liberty guaranteed
by the Fourteenth Amendment. Meer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923); Griswold v. Connecticut, 381 U.
S. 479 , 381 U. S. 495 (1965) (Goldberg, J., concurring). And the Constitution secures to
an individual a freedom "to satisfy his intellectual and emotional
needs in the privacy of his own home." Stanley Page 416 U. S. 16 v. Georgia, 394 U. S. 557 , 394 U. S. 565 (1969); see Paris Adult Theatre I v. Slaton, 413 U. S.
49 , 413 U. S. 667 (1973). Constitutionally protected privacy is, in Mr. Justice
Brandeis' words, "as against the Government, the right to be let
alone . . . the right most valued by civilized man." Olmstead
v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (dissenting opinion). The choice of household companions --
of whether a person's "intellectual and emotional needs" are best
met by living with family, friends, professional associates, or
others -- involves deeply personal considerations as to the kind
and quality of intimate relationships within the home. That
decision surely falls within the ambit of the right to privacy
protected by the Constitution. See Roe v. Wade, 410 U. S. 113 , 410 U. S. 153 (1973); Eisenstadt v. Baird, 405 U.
S. 438 , 405 U. S. 453 (1972); Stanley v. Georgia, supra, at 394 U. S.
564 -565; Griswold v. Connecticut, supra, at 381 U. S. 483 , 381 U. S. 486 ; Olmstead v. United States, supra at 277 U. S. 478 (Brandeis, J., dissenting); Moreno v. Department of
Agriculture, 345 F.
Supp. 310 , 315 (DC 1972), aff'd, 413 U. S. 413 U.S.
528 (1973).

															The instant ordinance discriminates on the basis of just such a
personal lifestyle choice as to household companions. It permits
any number of persons related by blood or marriage, be it two or
twenty, to live in a single household, but it limits to two the
number of unrelated persons bound by profession, love, friendship,
religious or political affiliation, or mere economics who can
occupy a single home. Belle Terre imposes upon those who deviate
from the community norm in their choice of living companions
significantly greater restrictions than are applied to residential
groups who are related by blood or marriage, and compose the
established order within the community. [ Footnote 2/4 ] The village has, in Page 416 U. S. 17 effect, acted to fence out those individuals whose choice of
lifestyle differs from that of its current residents. [ Footnote 2/5 ]

															This is not a case where the Court is being asked to nullify a
township's sincere efforts to maintain its residential character by
preventing the operation of rooming houses, fraternity houses, or
other commercial or high-density residential uses. Unquestionably,
a town is free to restrict such uses. Moreover, as a general
proposition, I see no constitutional infirmity in a town's limiting
the density of use in residential areas by zoning regulations which
do not discriminate on the basis of constitutionally suspect
criteria. [ Footnote 2/6 ] This
ordinance, however, limits the density of occupancy of only those
homes occupied by unrelated persons. It thus reaches beyond control
of the use of land or the density of population and undertakes to
regulate the way people choose to associate with each other within
the privacy of their own homes.

															It is no answer to say, as does the majority, that associational
interests are not infringed because Belle Terre residents may
entertain whomever they choose. Only last Term, MR. JUSTICE DOUGLAS
indicated in concurrence that he saw the right of association
protected by the First Amendment as involving far more than the
right to entertain visitors. He found that right infringed by a
restriction on food stamp assistance, penalizing Page 416 U. S. 18 households of "unrelated persons." As MR. JUSTICE DOUGLAS there
said, freedom of association encompasses the "right to invite the
stranger into one's home" not only for "entertainment," but to join
the household as well. Department of Agriculture v.
Moreno, 413 U. S. 528 , 413 U. S.
538 -545 (1973) (concurring opinion). I am still
persuaded that the choice of those who will form one's household
implicates constitutionally protected rights.

															Because I believe that this zoning ordinance creates a
classification which impinges upon fundamental personal rights, it
can withstand constitutional scrutiny only upon a clear showing
that the burden imposed is necessary to protect a compelling and
substantial governmental interest, Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 634 (1969). And, once it be determined that a burden has been placed
upon a constitutional right, the onus of demonstrating that no less
intrusive means will adequately protect the compelling state
interest and that the challenged statute is sufficiently narrowly
drawn, is upon the party seeking to justify the burden. See
Memorial Hospital v. Maricopa County, 415 U.
S. 250 (1974); Speiser v. Randall, 357 U.
S. 513 , 357 U. S.
525 -526 (1958).

															A variety of justifications have been proffered in support of
the village's ordinance. It is claimed that the ordinance controls
population density, prevents noise, traffic and parking problems,
and preserves the rent structure of the community and its
attractiveness to families. As I noted earlier, these are all
legitimate and substantial interests of government. But I think it
clear that the means chosen to accomplish these purposes are both
overinclusive and underinclusive, and that the asserted goals could
be as effectively achieved by means of an ordinance that did not
discriminate on the basis of constitutionally protected choices of
lifestyle. The ordinance imposes no restriction whatsoever on the
number Page 416 U. S. 19 of persons who may live in a house, as long as they are related
by marital or sanguinary bonds -- presumably no matter how distant
their relationship. Nor does the ordinance restrict the number of
income earners who may contribute to rent in such a household, or
the number of automobiles that may be maintained by its occupants.
In that sense, the ordinance is underinclusive. On the other hand,
the statute restricts the number of unrelated persons who may live
in a home to no more than two. It would therefore prevent three
unrelated people from occupying a dwelling even if among them they
had but one income and no vehicles. While an extended family of a
dozen or more might live in a small bungalow, three elderly and
retired persons could not occupy the large manor house next door.
Thus, the statute is also grossly overinclusive to accomplish its
intended purposes.

															There are some 220 residences in Belle Terre, occupied by about
700 persons. The density is therefore just above three per
household. The village is justifiably concerned with density of
population and the related problems of noise, traffic, and the
like. It could deal with those problems by limiting each household
to a specified number of adults, two or three perhaps, without
limitation on the number of dependent children. [ Footnote 2/7 ] The burden of such an ordinance would
fall equally upon all segments of the community. It would surely be
better tailored to the goals asserted by the village than the
ordinance before us today, for it would more realistically Page 416 U. S. 20 restrict population density and growth and their attendant
environmental costs. Various other statutory mechanisms also
suggest themselves as solutions to Belle Terre's problems -- rent
control, limits on the number of vehicles per household, and so
forth, but, of course, such schemes are matters of legislative
judgment, and not for this Court. Appellants also refer to the
necessity of maintaining the family character of the village. There
is not a shred of evidence in the record indicating that, if Belle
Terre permitted a limited number of unrelated persons to live
together, the residential, familial character of the community
would be fundamentally affected.

															By limiting unrelated households to two persons while placing no
limitation on households of related individuals, the village has
embarked upon its commendable course in a constitutionally faulty
vessel. Cf. Marshall v. United States, 414 U.
S. 417 , 414 U. S. 430 (1974) (dissenting opinion). I would find the challenged ordinance
unconstitutional. But I would not ask the village to abandon its
goal of providing quiet streets, little traffic, and a pleasant and
reasonably priced environment in which families might raise their
children. Rather, I would commend the village to continue to pursue
those purposes, but by means of more carefully drawn and
even-handed legislation.

															I respectfully dissent.

															[ Footnote 2/1 ]

															The text of the ordinance is reprinted in part, ante at 416 U. S. 2 .

															[ Footnote 2/2 ] See Citizens Assn. of Georgetown v. Zoning Comm'n, 155
U.S.App.D.C. 233, 477 F.2d 402 (1973).

															[ Footnote 2/3 ] See Kennedy Park Homes Assn. v. Lackawanna, 436 F.2d
108 (CA2 1970); Dailey v. City of Lawton, 425 F.2d 1037
(CA10 1970); cf. Gautreau v. City of Chicago, 480 F.2d 210
(CA7 1973); Crow v. Brown, 457 F.2d 788 (CA5 1972); Southern Alameda Spanish Speaking Organization v. Union
City, 424 F.2d 291 (CA9 1970). See generally Sager,
Tight Little Islands: Exclusionary Zoning, Equal Protection, and
the Indigent, 21 Stan.L.Rev. 767 (1969); Note, Exclusionary Zoning
and Equal Protection, 84 Harv.L.Rev. 1645 (1971); Note, The
Responsibility of Local Zoning Authorities to Nonresident
Indigents, 23 Stan.L.Rev. 774 (1971).

															[ Footnote 2/4 ]

															"Perhaps in an ideal world, planning and zoning would be done on
a regional basis, so that a given community would have apartments,
while an adjoining community would not. But as long as we allow
zoning to be done community by community, it is intolerable to
allow one municipality (or many municipalities) to close its doors
at the expense of surrounding communities and the central
city." Appeal of Girsh, 437 Pa. 237, 245 n. 4, 263 A.2d 395,
399 n. 4 (1970).

															[ Footnote 2/5 ] See generally Note, On Privacy: Constitutional
Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 740-750
(1973).

															[ Footnote 2/6 ] See Palo Alto Tenants' Union v. Morgan, 487 F.2d 883
(CA9 1973).

															[ Footnote 2/7 ]

															By providing an exception for dependent children, the village
would avoid any doubts that might otherwise be posed by the
constitutional protection afforded the choice of whether to bear a
child. See Molino v. Mayor & Council of Glassboro, 116
N.J.Super.195, 281 A.2d 401 (1971); cf. Cleveland Board of Education v.
LaFleur, 414 U. S. 632 (1974).


U.S. Supreme Court United States v. 50 Acres of Land, 469 U.S.
24 (1984) United States v. 50 Acres of
Land No. 83-1170 Argued October 2,
1984 Decided December 4,
1984 469 U.S.
24 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH
CIRCUIT Syllabus In connection with a flood control project, the United States
filed proceedings in Federal District Court to condemn
approximately 50 acres of land owned by respondent city of
Duncanville, Tex., that had been used as a sanitary landfill. The
court awarded compensation in the amount of the condemned
property's fair market value as determined by the jury, rather than
the larger amount fixed by the jury as the reasonable cost to the
city of acquiring and developing a substitute facility, which was
larger and better than the condemned facility. The court found no
basis for departing from the normal market value standard for
determining the amount of compensation, but the Court of Appeals
reversed and remanded. Held: The Fifth Amendment does not require that the
United States pay a public condemnee compensation measured by the
cost of acquiring a substitute facility that the condemnee has a
duty to acquire, when the market value of the condemned property is
ascertainable and when there is no showing of manifest injustice.
Pp. 469 U. S.
29 -36.

															(a) "Just compensation" under the Fifth Amendment normally is to
be measured by the market value of the property at the time of the
taking, and this case is not one in which an exception is required
because fair market value is not ascertainable. The testimony at
trial established a fairly robust market for sanitary landfill
properties. Nor is an award of compensation measured by market
value here fundamentally inconsistent with the basic principles of
indemnity embodied in the Just Compensation Clause. Pp. 469 U. S.
29 -31.

															(b) The text of the Fifth Amendment does not mandate a more
favorable rule of compensation for public condemnees than for
private parties. The reference to "private property" in the Takings
Clause of the Fifth Amendment encompasses the property of state and
local governments when it is condemned by the United States, and
under this construction the same principles of just compensation
presumptively apply to both private and public condemnees. P. 469 U. S.
31 .

															(c) When the dictum in Brown v. United States, 263 U. S. 78 --
which is the source of the "substitute facilities doctrine" -- is
read in the context of the decision in that case, it lends no
support to the suggestion that a distinction should be drawn
between public and private condemnees. Page 469 U. S. 25 Nor does it shed any light on the proper measure of compensation
in this case. Brown merely indicates that it would have
been constitutionally permissible for the Federal Government to
provide the city with a substitute landfill site instead of
compensating it in cash. Pp. 469 U. S.
31 -33.

															(d) The city's legal obligation to maintain public services that
are interrupted by a federal condemnation does not justify a
distinction between public and private condemnees for the purpose
of measuring "just compensation." The risk that a private condemnee
might receive a "windfall" if its compensation were measured by the
cost of a substitute facility that was never acquired or was later
sold or converted to another use is not avoided by the city's
obligation to replace the facility. If the replacement facility is
more costly than the condemned facility, it presumably is more
valuable, and any increase in the quality of the facility may be as
readily characterized as a "windfall" as the award of cash proceeds
for a substitute facility that is never built. Moreover, the
substitute facilities doctrine, if applied in this case, would
diverge from the principle that just compensation must be measured
by an objective standard that disregards subjective values which
are only of significance to an individual owner. Pp. 469 U. S.
33 -36.

															706 F.2d 1356, reversed.

															STEVENS, J., delivered the opinion for a unanimous Court.
O'CONNOR, J., filed a concurring opinion, in which POWELL, J.,
joined, post,, p. 469 U. S. 37 .

															JUSTICE STEVENS delivered the opinion of the Court.

															The Fifth Amendment requires that the United States pay "just
compensation" -- normally measured by fair market value [ Footnote 1 ] -- whenever it takes
private property for public Page 469 U. S. 26 use. [ Footnote 2 ] This case
involves the condemnation of property owned by a municipality. The
question is whether a public condemnee is entitled to compensation
measured by the cost of acquiring a substitute facility if it has a
duty to replace the condemned facility. We hold that this measure
of compensation is not required when the market value of the
condemned property is ascertainable. I In 1978, as part of a flood control project, the United States
condemned approximately 50 acres of land owned by the city of
Duncanville, Texas. [ Footnote
3 ] The site had been used since 1969 as a sanitary landfill. In
order to replace the condemned landfill, the city acquired a
113.7-acre site and developed it into a larger and better facility.
[ Footnote 4 ] In the
condemnation proceedings, the city claimed that it was entitled to
recover all of the costs incurred in acquiring the substitute site
and developing it as a landfill, an amount in excess of $1,276,000.
The United States, however, contended that just compensation should
be determined by the fair market value of the Page 469 U. S. 27 condemned facility and deposited $199,950 in the registry of the
court as its estimation of the amount due.

															Before trial the Government filed a motion in limine to
exclude any evidence of the cost of the substitute facility,
arguing that it was not relevant to the calculation of fair market
value. Record, Doc. No. 62. The District Court denied the motion,
noting that this Court had left open the question of the proper
measure of compensation for the condemnation of public property. See United States v. 564.54 Acres of Land, 441 U.
S. 506 , 441 U. S. 509 ,
n. 3 (1979) (Lutheran Synod) . The court concluded that

															"a complete factual record should be developed from which an
independent determination of the appropriate measure of
compensation can be made."

															Record, Doc. No. 111.

															At trial, both parties submitted evidence on the fair market
value of the condemned property [ Footnote 5 ] and on the cost of the substitute landfill
facility. [ Footnote 6 ]
Responding to special interrogatories, the jury found that the fair
market value of the Page 469 U. S. 28 condemned property was $225,000, and that the reasonable cost of
a substitute facility was $723,624.01. Record, Doc. Nos.199, 200.
The District Court entered judgment for the lower amount plus
interest on the difference between that amount and the sum already
paid. [ Footnote 7 ] 529 F.
Supp. 220 (ND Tex.1981). The District Court explained that the
city had not met its "burden of establishing what would be a
reasonable cost of a substitute facility." [ Footnote 8 ] In addition, the court was of the view
that

															"substitute facilities compensation should not be awarded in
every case where a public condemnee can establish a duty to replace
the condemned property, at least where a fair market value can be
established." Id. at 222. The court found no basis for departing from
the market value standard in this case, and reasoned that the
application of the substitute facilities measure of compensation
would necessarily provide the city with a "windfall." [ Footnote 9 ]

															The Court of Appeals reversed and remanded for further
proceedings. 706 F.2d 1356 (CA5 1983). It reasoned that the city's
loss attributable to the condemnation was "the amount of money
reasonably spent . . . to create a functionally equivalent
facility." Id. at 1360. If the city was required, either
as a matter of law or as a matter of practical Page 469 U. S. 29 necessity, to replace the old landfill facility, the Court of
Appeals believed that it would receive no windfall. The court,
however, held that the amount of compensation should be adjusted to
account for any qualitative differences in the substitute site.
Finding that the trial judge's instructions had not adequately
informed the jury of its duty to discount the costs of the
substitute facility in order to account for its increased capacity
and superior quality, see n. 4 supra, the Court of Appeals remanded for a new
trial. [ Footnote 10 ] We
granted the Government's petition for certiorari, [ Footnote 11 ] 465 U.S. 1098 (1984), and we
now reverse with instructions to direct the District Court to enter
judgment based on the jury's finding of fair market value. II The Court has repeatedly held that just compensation normally is
to be measured by "the market value of the property at the time of
the taking contemporaneously paid in money." Olson v. United
States, 292 U. S. 246 , 292 U. S. 255 (1934). "Considerations that may not reasonably be held to affect
market value are excluded." Id. at 292 U. S. 256 .
Deviation from this measure of just compensation has been required
only "when market value has been too difficult to find, or when its
application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U.
S. 121 , 339 U. S. 123 (1950); Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 10 , n.
14 (1984). Page 469 U. S. 30 This case is not one in which an exception to the normal measure
of just compensation is required because fair market value is not
ascertainable. Such cases, for the most part, involve properties
that are seldom, if ever, sold in the open market. [ Footnote 12 ] Under those circumstances,

															"we cannot predict whether the prices previously paid, assuming
there have been prior sales, would be repeated in a sale of the
condemned property." Lutheran Synod, 441 U.S. at 441 U. S. 513 .
In this case, however, the testimony at trial established a fairly
robust market for sanitary landfill properties, see n. 5 supra, and the
jury's determination of the fair market value of the condemned
landfill facility is adequately supported by expert testimony
concerning the sale prices of comparable property. Cf. 441
U.S. at 441 U. S.
513 -514.

															The city contends that in this case an award of compensation
measured by market value is fundamentally inconsistent with the
basic principles of indemnity embodied in the Just Compensation
Clause. If the city were a private party rather than a public
entity, however, the possibility that the cost of a substitute
facility exceeds the market value of the condemned parcel would not
justify a departure from the market value measure. Lutheran
Synod, 441 U.S. at 441 U. S.
514 -517. The question -- which we expressly reserved in
the Lutheran Synod case [ Footnote 13 ] -- is whether a substitute facilities
measure of compensation is mandated by the Constitution [ Footnote 14 ] Page 469 U. S. 31 when the condemnee is a local governmental entity that has a
duty to replace the condemned facility. III The text of the Fifth Amendment certainly does not mandate a
more favorable rule of compensation for public condemnees than for
private parties. To the contrary, the language of the Amendment
only refers to compensation for "private property," and one might
argue that the Framers intended to provide greater protection for
the interests of private parties than for public condemnees. That
argument would be supported by the observation that many public
condemnees have the power of domain, and thus, unlike private
parties, need not rely on the availability of property on the
market in acquiring substitute facilities.

															When the United States condemns a local public facility, the
loss to the public entity, to the persons served by it, and to the
local taxpayers may be no less acute than the loss in a taking of
private property. Therefore, it is most reasonable to construe the
reference to "private property" in the Takings Clause of the Fifth
Amendment as encompassing the property of state and local
governments when it is condemned by the United States. [ Footnote 15 ] Under this
construction, the same principles of just compensation
presumptively apply to both private and public condemnees. IV The Court of Appeals correctly identified a dictum in Brown
v. United States, 263 U. S. 78 (1923), as the source Page 469 U. S. 32 of what has become known as the "substitute facilities
doctrine." [ Footnote 16 ]
When that passage is read in the context of the Court's decision in
that case, it lends no support to the suggestion that a distinction
should be drawn between public and private condemnees. Nor does it
shed any light on the proper measure of compensation in this
case.

															The facts of the Brown case were, in the Court's word,
"peculiar." [ Footnote 17 ]
The construction of a reservoir on the Snake River flooded
approximately three-quarters of the town of American Falls, Idaho,
an area of some 640 acres. To compensate both the public and
private owners of the flooded acreage, the Government undertook to
relocate most of the town to the other side of the river. The
owners of a large tract to be included within the limits of the
reconstructed town challenged the Government's power to condemn
their property, contending that the transfer of their property to
other private persons was not a "public use" as required by the
Fifth Amendment. Cf. Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S.
239 -244 (1984).

															In rejecting that contention, the Court held that the
Government's method of compensating the owners of the flooded
property was legitimate. Writing for the Court, Chief Justice Taft
observed:

															"The usual and ordinary method of condemnation of the lots in
the old town, and of the streets and alleys as town property, would
be ill adapted to the exigency. . . . A town is a business center.
It is a unit. If three Page 469 U. S. 33 quarters of it is to be destroyed by appropriating it to an
exclusive use like a reservoir, all property owners, both those
ousted and those in the remaining quarter, as well as the State,
whose subordinate agency of government is the municipality, are
injured. A method of compensation by substitution would seem to be
the best means of making the parties whole. The power of
condemnation is necessary to such a substitution. "

															263 U.S. at 263 U. S. 82 -83
(emphasis added). Taken in context, the apparent endorsement of
compensation by substitution is made in support of the Government's
power to condemn the property in Brown and does not state
the proper measure of compensation in another case. Lutheran
Synod, 441 U.S. at 441 U. S. 509 ,
n. 3. Brown merely indicates that it would have been
constitutionally permissible for the Federal Government to provide
the city with a substitute landfill site instead of compensating it
in cash. Nothing in Brown implies that the Federal
Government has a duty to provide the city with anything more than
the fair market value of the condemned property. V In this case, as in most, the market measure of compensation
achieves a fair "balance between the public's need and the
claimant's loss." United States v. Toronto, Hamilton &
Buffalo Navigation Co., 338 U. S. 396 , 338 U. S. 402 (1949). This view is consistent with our holding in Lutheran
Synod that fair market value constitutes "just compensation"
for those private citizens who must replace their condemned
property with more expensive substitutes and with our prior
holdings that the Fifth Amendment does not require any award for
consequential damages arising from a condemnation. [ Footnote 18 ] Page 469 U. S. 34 The city argues that its responsibility for municipal garbage
disposal justifies a departure from the market value measure in
this case. This responsibility compelled the city to arrange for a
suitable replacement facility or substitute garbage disposal
services. [ Footnote 19 ] This
obligation to replace a condemned facility, however, is no more
compelling than the obligations assumed by private citizens. Even
though most private condemnees are not legally obligated to replace
property taken by the Government, economic circumstances often
force them to do so. When a home is condemned, for example, its
owner must find another place to live. The city's legal obligation
to maintain public services that are interrupted by a federal
condemnation does not justify a distinction between public and
private condemnees for the purpose of measuring "just
compensation." [ Footnote
20 ]

															Of course, the decision in Lutheran Synod was based, in
part, on a fear that a private condemnee might receive a "windfall"
if its compensation were measured by the cost of a substitute
facility and "substitute facilities were never acquired, or if
acquired, were later sold or converted to another use." 441 U.S. at 441 U. S. 516 .
The Court of Appeals suggested that the city's obligation to
replace the facility avoids this risk, 706 F.2d at 1360, but we do
not agree. If the replacement facility is more costly than the
condemned facility, it presumably is more valuable, [ Footnote 21 ] and any increase in the
quality Page 469 U. S. 35 of the facility may be as readily characterized as a "windfall"
as the award of cash proceeds for a substitute facility that is
never built.

															The Court of Appeals, however, believed that the risk of any
windfall could be reduced by discounting the cost of the substitute
facility to account for its superior quality. Id. at
1362-1363. This approach would add uncertainty and complexity to
the valuation proceeding without any necessary improvement in the
process. In order to implement the Court of Appeals' approach, the
factfinder would have to make at least two determinations: (i) the
reasonable (rather than the actual) replacement cost, which would
require an inquiry into the fair market value of the second
facility; and (ii) the extent to which the new facility is superior
to the old, which would require an analysis of the qualitative
differences between the new and the old. It would also be necessary
to determine the fair market value of the old property in order to
provide a basis for comparison. There is a practical risk that the
entire added value will not be calculated correctly; moreover, if
it is correctly estimated, the entire process may amount to nothing
more than a roundabout method of arriving at the market value of
the condemned facility. [ Footnote 22 ]

															Finally, the substitute facilities doctrine, as applied in this
case, diverges from the principle that just compensation must be
measured by an objective standard that disregards subjective values
which are only of significance to an individual owner. As the Court
wrote in Kimball Laundry Co. v. United States, 338 U. S. 1 , 338 U. S. 5 (1949):

															"The value of property springs from subjective needs and
attitudes; its value to the owner may therefore differ widely from
its value to the taker. Most things, however, Page 469 U. S. 36 have a general demand which gives them a value transferable from
one owner to another. As opposed to such personal and variant
standards as value to the particular owner whose property has been
taken, this transferable value has an external validity which makes
it a fair measure of public obligation to compensate the loss
incurred by an owner as a result of the taking of his property for
public use. In view, however, of the liability of all property to
condemnation for the common good, loss to the owner of
nontransferable values deriving from his unique need for property
or idiosyncratic attachment to it, like loss due to an exercise of
the police power, is properly treated as part of the burden of
common citizenship."

															The subjective elements in the formula for determining the cost
of reasonable substitute facilities would enhance the risk of error
and prejudice. [ Footnote 23 ]
Since the condemnation contest is between the local community and a
National Government that may be thought to have unlimited
resources, the open-ended character of the substitute facilities
standard increases the likelihood that the city would actually
derive the windfall that concerned both the District Court and the
Court of Appeals. [ Footnote
24 ]

															"Particularly is this true where these issues are to be left for
jury determination, for juries should not be given sophistical and
abstruse formulas as the basis for their findings nor be left to
apply even sensible formulas to factors that are too elusive." Id. at 338 U. S. 20 .

															The judgment of the Court of Appeals is reversed. It is so ordered. Page 469 U. S. 37 [ Footnote 1 ] United States v. Miller, 317 U.
S. 369 , 317 U. S. 374 (1943) ("what a willing buyer would pay in cash to a willing
seller").

															[ Footnote 2 ]

															"[N]or shall private property be taken for public use, without
just compensation." U.S.Const., Amdt. 5.

															[ Footnote 3 ]

															The United States initiated the condemnation proceedings by
filing a declaration of taking under 40 U.S.C. § 258a. Under that
procedure the Government deposits the estimated value of the land
in the registry of the court.

															"Title and right to possession thereupon vest immediately in the
United States. In subsequent judicial proceedings, the exact value
of the land (on the date the declaration of taking was filed) is
determined, and the owner is awarded the difference (if any)
between the adjudicated value of the land and the amount already
received by the owner, plus interest on that difference." Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 5 (1984).

															[ Footnote 4 ]

															The new landfill site is larger in acreage than the old facility
and because of superior soil and water table conditions it can be
excavated to a greater depth. As a result, the capacity of the new
facility is 2,100,000 cubic yards while the remaining capacity of
the old facility was 650,000 cubic yards. The new facility is
expected to remain in service for 41.6 years, or 28.8 years longer
than the condemned facility would have remained in service. Tr.
395-397, 399, 402.

															[ Footnote 5 ]

															Experts for both the United States and the city agreed that a
market for landfill properties existed in the area. A Government
witness, for example, testified that there are

															"private owners of solid waste companies in the market for land
for their own solid waste disposal sites. You've got the major
corporations in the marketplace securing sites for landfill
operations and then you've got all of your City Governments,
they're seeking locations to deposit solid waste. And all of these
people at one time or another are in the marketplace looking for a
site for solid waste disposal." Id. at 297.

															Based on their evaluation of the recent sale prices of
comparable parcels, the experts for the city estimated the value of
the condemned facility as between $367,500 and $370,000; experts
for the United States estimated its value as between $160,410 and
$190,000. Id. at 173, 182, 276, 353.

															[ Footnote 6 ]

															The city's Director of Public Works admitted on
cross-examination that the city had condemnation powers, but did
not use them in acquiring the land for the new facility. Nor did
the city bargain over the seller's asking price or have the land
appraised prior to the acquisition: "This was the price that he had
asked for, what we ended up paying for it." Id. at 93-94.
The Government's expert witnesses testified that the city paid
considerably more than fair market value for the new land. Id. at 282, 321,357.

															[ Footnote 7 ]

															The District Court awarded interest at the statutory rate of six
percent, 40 U.S.C. § 258a, because the city had not offered any
evidence indicating that a higher rate of interest prevailed. 529 F.
Supp. 220 , 223-224 (ND Tex.1981).

															[ Footnote 8 ] Id. at 221.

															[ Footnote 9 ]

															Relying on JUSTICE WHITE's concurring opinion in United
States v. 564.54 Acres of Land, 441 U.
S. 506 , 441 U. S. 518 (1979) (Lutheran Synod) , the District Court wrote:

															"When the doctrine of cost of substitute facilities is applied,
a windfall necessarily accrues to the condemnee who is
awarded an amount sufficient to replace ancient or depleted
facilities with brand new facilities. [141 U.S. at 141 U. S.
517 ] (JUSTICE WHITE concurring). See also [United
States v.] 564.54 Acres, 576 F.2d 983, 996-1000 (3d Cir.1978)
(Judge Stern concurring). By definition, a market value represents
approximately what it would cost to purchase the same or similar
property in the marketplace."

															529 F. Supp. at 222 (emphasis in original).

															[ Footnote 10 ]

															"In light of [the remand for a new trial]," the Court of Appeals
instructed the District Court to allow the city a second
opportunity to present evidence on whether the rate of interest on
the condemnation award should exceed the statutory rate of six
percent. 706 F.2d at 1364. In view of our disposition of the case,
the Court of Appeals' rationale for a new hearing on that issue is
no longer valid.

															[ Footnote 11 ]

															We denied the petition for certiorari filed by the city
challenging the order of a new trial and seeking the entry of
judgment on the jury's finding of the cost of the substitute
facility. City of Duncanville v. United States, 65 U.S.
1022 (1984).

															[ Footnote 12 ]

															"This might be the case, for example, with respect to public
facilities such as roads or sewers." Lutheran Synod, 441
U.S. at 441 U. S.
513 .

															[ Footnote 13 ]

															"This Court has not passed on the propriety of substitute
facilities compensation for public condemnees. . . . In light of
our disposition of this case, we express no opinion on the
appropriate measure of compensation for publicly owned
property." Id. at 441 U. S. 509 ,
n. 3.

															[ Footnote 14 ]

															Congress, of course, has the power to authorize compensation
greater than the constitutional minimum. See United States v.
General Motors Corp., 323 U. S. 373 , 323 U. S. 382 (1945); see, e.g., Uniform Relocation Assistance and Real
Property Acquisition Policies Act of 1970, 84 Stat. 1894, 42 U.S.C.
§ 4601 et seq. (requiring the payment of relocation
assistance to specified persons and businesses displaced as a
result of federal and federally assisted programs).

															[ Footnote 15 ] See United States v. Carmack, 329 U.
S. 230 , 329 U. S. 242 (1946):

															"[W]hen the Federal Government . . . takes for a federal public
use the independently held and controlled property of a state or of
a local subdivision, the Federal Government recognizes its
obligation to pay just compensation for it and it is conceded in
this case that the Federal Government must pay just compensation
for the land condemned." See also Block v. North Dakota ex rel. Board of University
and School Lands, 461 U. S. 273 , 461 U. S. 291 (1983).

															[ Footnote 16 ] See, e.g., United States v. Certain Property in Borough of
Manhattan, 403 F.2d 800, 803 (CA2 1968); United States v.
Board of Education of Mineral County, 253 F.2d 760, 763 (CA4
1958).

															[ Footnote 17 ]

															"An important town stood in the way of a necessary improvement
by the United States. Three-quarters of its streets, alleys and
parks and of its buildings, public and private, would have to be
abandoned. . . . American Falls is a large settlement for that
sparsely settled country and it was many miles from a town of any
size in any direction. It was a natural and proper part of the
construction of the dam and reservoir to make provision for a
substitute town as near as possible to the old one."

															263 U.S. at 263 U. S.
81 .

															[ Footnote 18 ] See United States v. General Motors Corp., 323 U.S. at 323 U. S. 382 ; see generally J. Gelin & D. Miller, Federal Law of
Eminent Domain § 2.4(B) (192).

															[ Footnote 19 ]

															The Court of Appeals left open the question whether the city
was, in fact, under an obligation to replace its landfill facility,
706 F.2d at 1360, n. 6, but for purposes of our decision we assume
that it was obligated to do so.

															[ Footnote 20 ]

															In holding that the substitute facilities measure of
compensation was appropriate in this case, the Court of Appeals did
not rely solely on the city's legal obligations to arrange for
garbage disposal within the municipality, but also on "any
practical, economic or logistical advantages of the city's
operation and control of its own sanitary landfill." Ibid. [ Footnote 21 ]

															"Obviously, replacing the old with a new facility will cost more
than the value of the old, but the new facility itself will be more
valuable and last longer." Lutheran Synod, 441 U.S. at 441 U. S. 518 (WHITE, J., concurring).

															[ Footnote 22 ]

															Indeed, one might infer from the record that this would be the
result here. See nn. 1
and | 1 and S. 24fn6|>6, supra. The District Court, in fact, found that an award of
fair market value would place the city "in as good a position
pecuniarily as if its property had not been taken." 529 F. Supp. at
223.

															[ Footnote 23 ] Cf. R. Posner, Economic Analysis of Law 402 (2d
ed.1977) ("The vogue of cost-benefit analysis has created inflated
notions of the effectiveness of analytical techniques in resolving
questions of cost and demand").

															[ Footnote 24 ]

															Of course, we express no view on the admissibility of testimony
on reproduction cost when it is offered on the issue of fair market
value. Cf. United States v. Commodities Trading Corp., 339 U. S. 121 , 339 U. S. 126 (1950). The admissibility of such evidence must be evaluated under
the generally applicable rules of evidence. E.g., Fed.Rules Evid. 401-403, 701-705.

															JUSTICE O'CONNOR, with whom JUSTICE POWELL joins,
concurring.

															I concur in the Court's opinion and judgment that, on the facts
of this case, the city of Duncanville is justly compensated by the
payment of the market value for the sanitary landfill that was
condemned by the Government. I write separately to note that I do
not read the Court's opinion to preclude a municipality or other
local governmental entity from establishing that payment of market
value in a particular case is manifestly unjust and therefore
inconsistent with the Just Compensation Clause. See ante at 469 U. S. 29 .
When a local governmental entity can prove that the market value of
its property deviates significantly from the make-whole remedy
intended by the Just Compensation Clause and that a substitute
facility must be acquired to continue to provide an essential
service, limiting compensation to the fair market value in my view
would be manifestly unjust. Because the city of Duncanville did not
establish that the market value in this case deviated significantly
from the indemnity principle, I agree that the decision of the
Court of Appeals should be reversed.