(concurring) — I concur in the majority’s decision to not revisit the analysis of substantive due process set forth in our previous review of this case, Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 829 P.2d 765, cert. denied, 506 U.S. 1028 (1992) (Sintra I). I write separately to reject Justice Talmadge’s analysis of the impact of Dolan v. City of Tigard, 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) on our regulatory takings jurisprudence.
Justice Talmadge’s arguments that we should reconfigure our entire regulatory takings doctrine into a single analysis under Dolan and that we would have decided Sintra I differently in light of Dolan are based on an erroneous understanding of the scope and holding of that case. Dolan is merely a refinement of the rule announced in Nollan v. California Coastal Comm’n, 483 U.S. 825, 107 S. Ct. 3141, 97 L. Ed. 2d 677 (1987), which was not only decided before our decision in Sintra I, but before the adoption of our comprehensive regulatory takings framework in Presbytery of Seattle v. King County, 114 Wn.2d 320, 787 P.2d 907, cert. denied, 498 U.S. 911 (1990). Dolan's "rough proportionality” test has already taken its proper place in our takings jurisprudence. See Sparks v. Douglas County, 127 Wn.2d 901, 904 P.2d 738 (1995). Justice Talmadge’s proposed new analytical framework would eliminate meaningful protection against the excessive regulation of private property under the guise of clarifying our takings jurisprudence.
I. Development Permit Exactions:
The Nollan and Dolan Tests
In Nollan, a building permit for a beach house was *670conditioned upon the granting of a public easement across the owners’ beach property. In response to the argument that the permit condition amounted to a taking of private property, the California court held that the permit condition was sufficiently related to the project’s negative impact on the public’s access to the beach. Nollan, 483 U.S. at 830-31. The United States Supreme Court reversed.
The Court first noted that a taking clearly would have occurred if the State had simply demanded a public easement rather than conditioning the owners’ permit on the granting of such an easement. Nollan, 483 U.S. at 831. However, the Court also observed that the negative impacts of the owners’ project might have justified the outright denial of the building permit, and that such a restriction would not necessarily constitute a regulatory taking if the restriction substantially advanced " 'legitimate state interests.’ ” Nollan, 483 U.S. at 834 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980)). These considerations led the Court to announce the general rule now used to determine whether development permit exactions amount to a taking of property.
[A] permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking.
Nollan, 483 U.S. at 836 (emphasis added). Applying its new rule, the Court simply assumed that an outright denial of the building permit, based on the State’s interest in public access to the beach, would not constitute a regulatory taking. Nollan, 483 U.S. at 836. The Court then tested the State’s claim that the permit condition was "reasonably related” to the negative impact of the proposed project. Nollan, 483 U.S. at 838. The easement condition was held to be a taking because it did not serve the same governmental purpose as the asserted justification for that condition — there was no logical "nexus” be*671tween the negative impact of the project and the need for a public easement across the owners’ property. Nollan, 483 U.S. at 837.
The Supreme Court granted certiorari in Dolan "to resolve a question left open by [Nollan] of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development.” Dolan, 114 S. Ct. at 2312. In Dolan, the City of Tigard conditioned a building permit for a small shopping center on the dedication of two sections of the owner’s property: one section for open space within the flood plain of a nearby creek and another for a bicycle path. Dolan, 114 S. Ct. at 2314. The Court found the necessary "nexus” between the required dedications and the traffic and stormwater impacts of the proposed development. Dolan, 114 S. Ct. at 2318. Having considered a variety of tests, the Court determined that the Fifth Amendment further required "rough proportionality” between the exaction and the impact of a proposed development. Dolan, 114 S. Ct. at 2319-20.20 We adopted and applied this new test in Sparks, 127 Wn.2d at 914-16.
II. The Scope of Nollan and Dolan
Nollan and Dolan are development permit exaction cases. They represent a subspecies of takings cases which usually involve physical invasions of private property. Nollan and Dolan "are certainly important taking decisions, but, correctly analyzed, they are not regulatory taking cases.” William B. Stoebuck, Regulatory Takings, in Wash. Law School Found., Continuing Legal Educ., Land Use Certification Program, Dec. 18-21, 1995 at 4. Nollan and Dolan do not inform the doctrine of regulatory takings, which is concerned with overly burdensome restrictions on the use of private property.
*672Dolan’s "rough proportionality” requirement is only a refinement of the Nollan test for whether a permit condition on a proposed land use is sufficiently related to a legitimate state interest which would justify the denial of the proposed use. A Dolan analysis proceeds from the same threshold assumption as the Nollan nexus inquiry — that a total denial of the proposed land use, based on the same police power purposes, would not amount to a regulatory taking. It must be recalled that the Nollan Court assumed, without actually deciding, that the public’s interest in access to the beach was a "legitimate state interest” such that the denial of the proposed project on this basis alone would not amount to a regulatory taking.21 The Dolan Court similarly assumed that the negative impacts of the proposed project would fully justify the City’s refusal to allow the project, and that such a refusal would not amount to a regulatory taking.22
In Sparks, we noted in passing that a short subdivision plat could not be approved without appropriate provisions for the negative impacts of the proposed development. Sparks, 127 Wn.2d at 913. Nevertheless, our Sparks opinion made the threshold assumption of its analysis under Nol-lan and Dolan abundantly clear.
*673The theory underlying [development exactions] is that if denial of a development permit does not constitute a taking of property, then neither is it a taking if instead the government imposes a condition on the development which serves the same legitimate police power purpose as denial of a permit, even if that condition involves dedication of land.
Sparks, 127 Wn.2d at 907-08 (emphasis added) (citing Nol-lan, 483 U.S. at 836).
Nollan, Dolan, and Sparks never actually analyzed whether the hypothetical denial of the proposed land use would have effected a regulatory taking.23 Nevertheless, a development permit exaction could be challenged on grounds that an outright denial of the proposed land use would amount to a regulatory taking. If it were determined that the asserted state interests would not justify the outright denial of the proposed land use and that a denial of the proposed use would therefore constitute a regulatory taking, an analysis of whether the permit conditions also amounted to a taking under Nollan and Dolan would not be necessary.
A determination of whether a particular restriction on the use of private property amounts to a regulatory taking is outside the scope of a Dolan analysis. Beyond clarifying the Nollan test for determining whether a development permit exaction amounts to a taking of property, nothing in Dolan purports to modify or build upon the existing regulatory takings doctrine. It must be noted that Dolan makes only a single passing reference to the Supreme Court’s most recent statement on the law of regulatory takings, Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). See Dolan, 114 S. Ct. at 2316 n.6. Justice Tal-*674madge’s effort to construct a whole new regulatory takings framework based on Dolan fails to recognize the limited role of the Dolan analysis in the larger takings doctrine.
III. An Analysis of the Housing Preservation Ordinance under Dolan
We have already declined to analyze Sintra’s regulatory takings claim under Nollan. Sintra I, 119 Wn.2d at 16 n.7. Were we to analyze the Seattle Housing Preservation Ordinance (HPO) in light of Dolan, we would almost certainly hold that the HPO effected a regulatory taking of Sintra’s property. A Dolan analysis of the HPO restrictions on Sintra’s proposed land use would require a threshold determination that an outright denial of that proposed use, based on the same negative impacts which are submitted as justification for the HPO conditions, would not effect a regulatory taking of Sintra’s property. The critical consideration would be whether Sintra was singled out to bear a burden which should have been borne by the public as a whole. See Nollan, 483 U.S. at 835 n.4.
We have already held that the HPO went far beyond the prevention of the anticipated harm of Sintra’s proposed use of its property, and imposed a burden to provide an affirmative public benefit, a burden which should have been borne by the public as a whole.24 Based on this effect of the HPO, it has already been determined that the denial of Sintra’s proposed land use under the HPO amounted to a regulatory taking. Thus, under a cor*675rect analysis of the threshold issue, we would never reach Justice Talmadge’s proposed inquiry into whether the HPO demolition fee was " 'roughly proportional’ to the public benefit.” Concurrence/Dissent at 693.
IV. Justice Talmadge’s Proposed New Analysis of Dolan
Justice Talmadge not only stretches the Dolan analysis beyond its proper context in development permit exac-tions, the proposed framework omits the necessary threshold inquiry into whether a denial of proposed land use would be justified in the first instance. The resulting test provides very little protection from excessive regulation of private property. Under Justice Talmadge’s proposed analysis, a restriction on the use of property is not a regulatory taking as long as "(1) the challenged regulation advances a legitimate state interest; (2) there is an 'essential nexus’ between the interest advanced and the requirement exacted; (3) there is a roughly proportional relationship between the benefit to the public and the cost to the landowner.” Concurrence/Dissent at 693 (citations omitted).25 This test effectively eliminates most of our existing substantive protections against the excessive regulation of private property.
The first element of Justice Talmadge’s new framework does not accurately state the test for whether a given restriction on the use of property amounts to a regulatory taking. While a land use regulation that does not advance a legitimate state interest is a taking, the reverse is not necessarily true. Guimont v. Clarke, 121 Wn.2d 586, 595, 854 P.2d 1 (1993), cert. denied, 510 U.S. 1176 (1994) (citing Presbytery of Seattle v. King County, 114 Wn.2d 320, 330, 787 P.2d 907, cert. denied, 498 U.S. 911 (1990)). Even regulations that advance a legitimate state interest may constitute a regulatory taking if they require the property owner to provide an affirmative public benefit, destroy a fundamental attribute of ownership, or deny the owner all *676economically viable use of the property. Guimont, 121 Wn.2d at 595.
The second and third elements of Justice Talmadge’s proposed test would require a nexus and rough proportionality between the burden of the restriction on the use of property and the resulting "benefit to the public.” Concurrence/Dissent at 693. This formulation overstates the range of legitimate state interests which may justify a development permit exaction under Dolan. The "rough proportionality” test measures the relationship between the conditions placed on the use of property and the negative impacts of that use that would justify the denial of the proposed use in the first instance. Sparks, 127 Wn.2d at 914-16. Only those negative impacts may be weighed against the burden of exactions or other conditions on the proposed land use. Sparks, 127 Wn.2d at 914-16; see also Presbytery, 114 Wn.2d at 336 n.30. A restriction or condition on the use of property which goes beyond the prevention of harm to provide an affirmative "benefit to the public” may constitute a regulatory taking. Guimont, 121 Wn.2d at 595.
The combined effect of Justice Talmadge’s new test would be to eliminate meaningful "as applied” challenges under our existing regulatory takings framework. In an "as applied” challenge, our regulatory takings analysis considers: "(1) the regulation’s economic impact on the property; (2) the extent of the regulation’s interference with investment-backed expectations; and (3) the character of the government action.” Guimont, 121 Wn.2d at 596 (citing Presbytery, 114 Wn.2d at 335-36; Robinson v. City of Seattle, 119 Wn.2d 34, 51, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992)). Under Justice Talmadge’s proposed new test, these factors are never considered.
Conclusion
Contrary to Justice Talmadge’s analysis, Dolan does not require, or even support, a reconfiguration of the regulatory takings framework that we developed in Presbytery *677and refined in Sintra I, Robinson, and Guimont. The only recent Supreme Court authority to shed any light on our regulatory takings analysis is Lucas. We have already updated our regulatory takings doctrine to reflect the Court’s analysis in that decision. Guimont, 121 Wn.2d at 598-601.
Although Dolan did not offer any specific guidance on the future direction of Supreme Court regulatory takings jurisprudence, the Court has signaled that the protection for private property created by the takings clause of the Fifth Amendment should not be "relegated to the status of a poor relation” with respect to other constitutional rights.26 In the absence of Supreme Court precedent indicating that our regulatory takings jurisprudence has already gone too far, we should not dismantle those reasonable protections for private property that we have recognized in our prior decisions.
Applying its new test, the Dolan Court reversed the state courts and held that (1) the City’s interest in flood control did not justify a pedestrian easement across the owner’s property, and (2) the City had not met its burden to show that the additional traffic impact of the proposed project was reasonably related to the need for a new bicycle path. Dolan, 114 S. Ct. at 2320-22.
This assumption was limited by the additional assumption that such a restriction would not "interfere so drastically with the [owners’] use of their property as to constitute a taking.” Nollan, 438 U.S. at 836 (citing Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 127, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978)). Furthermore,
[i]f the [owners] were being singled out to bear the burden of California’s attempt to remedy [the cumulative impact of beach development], although they had not contributed to it more than other coastal landowners, the State’s action, even if otherwise valid, might violate either the incorporated Takings Clause or the Equal Protection Clause. One of the principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
Nollan, 438 U.S. at 836 n.4 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S. Ct. 1563, 4 L. Ed. 2d 1554 (1960)).
"Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld.” Dolan, 114 S. Ct. at 2317-18 (citing Agins v. City of Tiburon, 447 U.S. 255, 260-62, 100 S. Ct. 2138, 65 L. Ed. 2d 106 (1980)).
In Nollan, the assumption that the public interest in access to the beach would justify a denial of the building permit was never tested because the Court’s determination that the required "nexus” was lacking made such an inquiry unnecessary. Nollan, 483 U.S. at 838. In Dolan and Sparks, the threshold assumptions — that the impacts of the proposed development would support a denial of the proposed land use without eífecting a regulatory taking — were not seriously contested.
"The [HPO] required the improper additional step of providing new housing. Moreover, this burden was unfairly allocated to individual property owners, rather than equally distributed among all citizens. . . .
"Sintra’s property cannot be singled out as contributing to the problem of homelessness in any pronounced way; the lack of low income housing was brought about by a great number of economic and social causes which cannot be attributed to an individual parcel of property.”
Sintra I, 119 Wn.2d at 15-16, 22. See also Robinson v. City of Seattle, 119 Wn.2d 34, 52-53, 830 P.2d 318, cert. denied, 506 U.S. 1028 (1992); San Telmo Assocs. v. City of Seattle, 108 Wn.2d 20, 24-25, 735 P.2d 673 (1987).
A fourth element of Justice Talmadge’s new test asks whether damages were proximately caused by the regulation. Concurrence/Dissent at 693.
Dolan, 114 S. Ct. at 2320. See Daniel A. Crane, Comment, A Poor Relation? Regulatory Takings After Dolan v. City of Tigard, 63 U. Chi. L. Rev. 199 (1996).