Dolan v. City of Tigard, 512 U.S. 374, 35 (1994)

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408

DOLAN v. CITY OF TIGARD

Stevens, J., dissenting

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

Even if Dolan should accept the city's conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied "just compensation" since it would be appropriate to consider the receipt of that benefit in any calculation of "just compensation." See Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415 (noting that an "average reciprocity of advantage" was deemed to justify many laws); Hodel v. Irving, 481 U. S. 704, 715 (1987) (such " 'reciprocity of advantage' " weighed in favor of a statute's consti-Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is "riven with inconsistencies"); Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321, 322 (1935) ("The Supreme Court has sustained many such exertions of power even after announcing the broad doctrine that would invalidate them"). As the majority's case citations suggest, ante, at 385, modern decisions invoking the doctrine have most frequently involved First Amendment liberties, see also, e. g., Connick v. Myers, 461 U. S. 138, 143-144 (1983); Elrod v. Burns, 427 U. S. 347, 361-363 (1976) (plurality opinion); Sherbert v. Verner, 374 U. S. 398, 404 (1963); Speiser v. Randall, 357 U. S. 513, 518-519 (1958). But see Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 345-346 (1986) ("[T]he greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling"). The necessary and traditional breadth of municipalities' power to regulate property development, together with the absence here of fragile and easily "chilled" constitutional rights such as that of free speech, make it quite clear that the Court is really writing on a clean slate rather than merely applying "well-settled" doctrine. Ante, at 385.

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