Today the majority decides that the Fifth Amendment takings analysis of Nollan v California Coastal Commn. (483 US 825 [1987]) and Dolan v City of Tigard (512 US 374 [1994]) does not apply to a permit condition compelling dedication of a conservation easement. Because these decisions do not admit of this result, I respectfully dissent.
I.
The eminent domain provision of the United States Constitution, the Takings Clause of the Fifth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” The Fourteenth Amendment makes this constitutional guarantee applicable to the states (see Penn Cent. Transp. Co. v City of New York, 438 US 104, 122 [1978], citing Chicago, B. & Q.R. Co. v City of Chicago, 166 US 226, 239 [1897]).
In Pennsylvania Coal Co. v Mahon (260 US 393 [1922]), Justice Holmes acknowledged the difficulty of distinguishing a proper exercise of police power from a compensable taking: “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” (id. at 413); and “[t]he general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” (id. at 415). Thus was born the concept at the heart of this appeal—the regulatory takings doctrine—which recognizes that government’s exercise of the police power to regulate private property, when it goes “too far,” so impairs *16property interests that the Fifth Amendment mandates just compensation notwithstanding the absence of outright appropriation.
When revisiting regulatory takings some 50 years later in Penn Central, Justice Brennan remarked that deciding whether a regulation had gone “too far” eluded ready systemization:
“[T]his Court, quite simply, has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely ‘upon the particular circumstances [in that] case’ ” (Penn Cent., 438 US at 124 [citations omitted]).
He listed three factors bearing with “particular significance” on “these essentially ad hoc, factual inquiries”: the regulation’s economic impact on the claimant; the extent to which the regulation interferes with the claimant’s “distinct, investment-backed expectations”; and the character of the governmental action (id.). In short, the Court devised a balancing test.
Two years later when considering a facial challenge to a municipal zoning ordinance, however, the Court in Agins v City of Tiburon (447 US 255 [1980]) condensed and reformulated the Penn Central factors into something akin to a test: “[t]he application of a general zoning law to particular property effects a taking if the ordinance does not substantially advance legitimate state interests [i.e., the character of the governmental action], or denies an owner economically viable use of his land [i.e., the regulation’s economic impact on the claimant and the extent of interference with distinct, investment-backed expectations]” (id. at 260 [citation omitted]). After devising this general rule for determining when a taking has occurred, the Court marched down another path, handing down several landmark cases that carved out from the ambit of Penn Central/Agins specific rules for analyzing three different kinds of regulatory takings.
In Loretto v Teleprompter Manhattan CATV Corp. (458 US 419 [1982]), the landlord purchased an apartment building in which the prior owner had allowed a cable company to install a *17cable on the building and to furnish cable television services to the building’s tenants, as mandated by state law. The landlord filed a class action alleging that the installation—which, at most, occupied only IV2 cubic feet of the landlord’s property— was a trespass and a taking without just compensation. The Court held that even this minuscule physical invasion required compensation regardless of an adequate public purpose (see also Kaiser Aetna v United States, 444 US 164 [1979] [government’s imposition of navigational servitude upon a private marina is a physical invasion for which just compensation must be paid]). Thus, a regulation effecting an actual permanent physical occupation of or intrusion on an owner’s land or building constitutes a per se regulatory taking.
In Lucas v South Carolina Coastal Council (505 US 1003 [1992]), the Court considered the effect of a coastal protection statute that barred a landowner from building any permanent habitable structures on two beach parcels for which he had paid $1 million, intending to build one home for himself and one for sale. The Court determined that this was the “rare” case where a regulation denies a landowner all economically beneficial use of his property, and therefore was a per se total regulatory taking unless the state could prove that the regulation, as applied, would prevent a nuisance or was part of the state’s background principles of property law.
In addition to the per se rules for physical takings and total takings, the Court also devised a non-per se rule for analyzing whether a taking has occurred in those situations where the government seeks to require a concession or “exaction” as a condition for approval of a land-use permit. This is the so-called Nollan/Dolan rule, which, in my view, so plainly calls for reversal in this case.
The landowners in Nollan planned to demolish a dilapidated bungalow on their beachfront property and replace it with a three-bedroom house. They sought the required discretionary permit from the California Coastal Commission, which granted it subject to the Nollans’ dedication of an easement running across their property laterally to the shore. This easement would provide a beachfront passageway connecting the two public beaches flanking the Nollans’ property. The Commission justified the easement on the grounds that the Nollans’ larger house would obstruct the public’s visual access to the beach, increase private use of the beach and burden the public’s ability to traverse to and along the shorefront.
*18Justice Scalia observed at the outset that “[h]ad California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking” (483 US at 831). The Court held that while a permit condition that substantially advances a legitimate state interest is constitutionally permissible,1 this particular condition violated the Takings Clause because there was no “essential nexus” between the easement and the harm created by the proposed development (id. at 837).
This point is well-illustrated by Justice Scalia’s description of the kind of easement that would have been sufficiently closely linked to the loss of visual access caused by the house’s construction to pass muster under the “essential nexus” test:
“Moreover (and here we come closer to the facts of the present [.Nolían] case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on [the Nollans’] property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not” (id. at 836-837).
In Dolan, the Court addressed how much of an exaction the government could require without running afoul of the Takings *19Clause, an issue it did not reach in Nollan because there the “essential nexus” was lacking. The property owner in Dolan sought to raze and rebuild her plumbing and electrical supply store. When she applied for site development review, the city required her as a condition of approval to dedicate a portion of her property to the city for a greenway and expanded storm drain channel and for a pedestrian/bicycle pathway to be built at her expense.
The Court first determined that flood prevention along the creek and the reduction of traffic in the business district “qualify as the type of legitimate public purposes [the Court has] upheld” (512 US at 387 [citing Agins]). Then the Court determined that there was an “essential nexus” between the exactions and the harm created by the development; namely, the flood plain dedication was related to mitigating the extra stormwater runoff anticipated from the additional building and paving projects associated with the expansion, and the pathway was related to the increased traffic that might be expected from customers patronizing the larger store. These exactions were nonetheless constitutionally impermissible without just compensation because they lacked the “rough proportionality” required “both in nature and extent to the impact of the proposed development” (512 US at 391). Specifically, the city was unable to say “why a public greenway, as opposed to a private one, was required in the interest of flood control” (id. at 393). With respect to the pedestrian/bicycle pathway, the city failed to meet “its burden of demonstrating that the additional number of vehicle and bicycle trips generated by [the] development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement”; the city had simply made a conclusory finding that “the creation of the pathway ‘could offset some of the traffic demand . . . and lessen the increase in traffic congestion’ ” (id. at 395).
II.
The “development restriction” (majority op at 6) at issue in this case is a conservation easement within the meaning of the Environmental Conservation Law (see ECL 49-0301—49-0311). Both the Town of Mendon and amicus State of New York concede as much. A conservation easement is a nonpossessory “interest in real property” (ECL 49-0303 [1]), which imposes use restrictions on the landowner for purposes generally of “conserving, preserving and protecting” the State’s “environ*20mental assets and natural and man-made resources” for the benefit of the public (ECL 49-0301). The majority is therefore simply wrong when it asserts that the Town is not requiring a dedication of property to public use by mandating that the Smiths grant it a conservation easement, which is perpetual in duration, runs with the land and is recorded.
Nor is it relevant (or even certain) that this particular conservation easement may be worth little. The Town is compelling the Smiths to convey an interest in real property that the Town would otherwise have to pay for, or which the Smiths might choose to donate for whatever tax advantages they would enjoy as a result.2 And of course, the arguably trivial value of this particular conservation easement is of no comfort to the next landowner who seeks a development permit from the government only to be met with a demand for what might be a very valuable conservation easement as a condition of approval. As we must always be aware, we are establishing the rule that will govern not just this case, but future cases.
The majority takes the view that a permit condition is not an “exaction” unless it infringes on the property owner’s right to exclude others and/or mandates public access.3 Black’s Law Dictionary defines an “exaction” as “1. The act of demanding more *21money than is due; extortion. 2. A fee, reward, or other compensation arbitrarily or wrongfully demanded” (Black’s Law Dictionary 600 [8th ed 2004]). More colloquially, an exaction is “something exacted”; that which is “call[ed] for forcibly or urgently and obtain[ed]” (Merriam-Webster’s Collegiate Dictionary 403 [10th ed 1996]). Indeed, the majority seems to derive the notion that public access is the sine qua non for an exaction not from any commonly accepted definition, but from a gloss on dictum in the Supreme Court’s decision in City of Monterey v Del Monte Dunes at Monterey, Ltd. (526 US 687 [1999]).
Monterey concerned a developer seeking to build an oceanfront multi-unit residential complex in an area zoned for this use. The developer repeatedly scaled back and revised its plans over the course of several years at the instance of local authorities. When the city planning commission and the city council • ultimately rejected the site plan, the developer brought a 42 USC § 1983 action in federal District Court, alleging, among other things, that the permit denial was an unconstitutional taking. A jury delivered a general verdict for the developer on its takings claim and awarded damages of $1.45 million. The Ninth Circuit determined that the developer’s inverse condemnation claim was triable to a jury and upheld the verdict.
The city’s petition for certiorari presented multiple questions to the Supreme Court, including whether the Ninth Circuit erred in assuming that the rough-proportionality standard of Nollan/Dolan applied. On this question, all the Justices agreed that heightened scrutiny under Nollan/Dolan applies only to exactions and does not extend to decisions to deny applications for discretionary approvals. Specifically, Justice Kennedy commented that “we have not extended the rough-proportionality test of Dolan beyond the special context of exactions—land-use decisions conditioning approval of development on the dedication of property to public use” (526 US at 702). The majority here, in relying on this language, underscores the words “dedication of property to public use,” but the key word is “conditioning.” The Court distinguished Dolan and Nollan from *22Monterey because in the former cases, a development permit was conditioned on a land use restriction, while in the latter there was no conditioning—the permit was denied. In this case, site plan approval was conditioned upon the granting of a conservation easement. That is an exaction.
Nonetheless, the majority views the quoted language from Monterey as having limited the Nollan/Dolan rule to those land dedications that entail public access or otherwise restrict the landowner’s right to exclude.4 First, of course, the phrase “public use” does not unambiguously equate with public access. Indeed, in takings jurisprudénce “public use” has come to mean something more akin to a public purpose or public benefit.5 As already discussed, this conservation easement is, in fact, a dedication of property to public use. Its whole justification and *23purpose is to confer an environmental benefit on the public at large. Further, while the Smiths retain the right to exclude the general public from the easement area, the Town may enter this area upon 30 days’ notice to enforce the easement, and may enter without any notice at all in the event of a self-proclaimed emergency threatening the public health, safety and general welfare.
Second, the language in Monterey on which the majority so heavily relies is more properly read as merely an acknowledgment of the nature of the exactions at issue in Nollan and Dolan rather than a limitation of the Court’s Nollan/Dolan analysis to exactions that are land dedications. Certainly there was no discussion in either Nollan or Dolan to indicate that the Court viewed its exaction analysis as so limited. If the Court had only intended for Nollan/Dolan to create an exception from the per se Loretto rule for those physical takings that are permit conditions, it could have and surely would have said this directly.
Further, before today we have never read Nollan/Dolan so narrowly (see e.g. Manocherian v Lenox Hill Hosp., 84 NY2d 385 [1994] [pre-Monterey case applying Nollan/Dolan to assess the validity of a statute imposing occupancy restrictions on apartment building owners]), or viewed it as subsequently limited by Monterey to infringement of a property owner’s right to exclude. The majority explains our decision just last year in Twin Lakes Dev. Corp. v Town of Monroe (1 NY3d 98 [2003]) as consistent with its decision today on the ground that the per-lot recreation fees at issue there were paid in lieu of dedication of property to public use. In Twin Lakes, the parties agreed that Nollan/Dolan applied to the exaction, but there is no indication that any concession on this point or our acquiescence to it hinged on the fact that the fees were exacted in lieu of a land dedication. Impact fees such as the per-lot recreation fee in Twin Lakes—charges in consideration of a development’s anticipated impacts on a community’s infrastructure and amenities, with the fees used to mitigate these impacts—are often imposed as a condition for development approvals. Does the majority mean to suggest that such a fee is not an exaction for purposes of takings analysis unless it is paid specifically in lieu of a land dedication? I would guess that such a turn of events might greatly surprise localities and developers throughout the state, but it seems to be the clear implication of today’s decision.
*24III.
As I understand the Supreme Court’s takings jurisprudence— through which I took a Cook’s tour at the beginning of this dissent—we are called upon first to decide whether a claimed regulatory taking falls within either of the categorical or per se rules (the Loretto rule for physical takings and the Lucas rule for total takings) or is a permit condition (Nollan/Dolan). For those claimed takings outside the scope of these three rules, Penn Central/Agins provides a default approach.6 Here, the Smiths sought site plan approval to build a single-family house, and the Town conditioned its approval on the Smiths’ grant of a conservation easement to the Town covering those portions of their 9.7-acre parcel within the Town’s EPODs. As a result, this case falls squarely within Nollan/Dolan.
The reason proffered by the Town to justify the easement is the “desire[ 3 that certain portions of the [Smiths’] property remain in their natural state in order to preserve such environmentally significant areas.” In my view, this is a legitimate town interest that the conservation easement would promote. As was the case in Nollan, however, there is no “essential nexus” between this exaction and the harm created by the proposed development. The “proposed development” here was merely the construction of a single-family house on land not within an EPOD, and there is no suggestion in the record that it would create any significant environmental harm. On this appeal, the Town argues merely that there is a “clear essential nexus between requiring a conservation restriction and the legitimate town interest of protecting environmentally sensitive areas in Mendon.” But for purposes of Nollan/Dolan analysis, this is (as I already indicated) merely a necessary but not a sufficient predicate for the Town to establish that it may require the conservation easement without making just compensation. The Smiths’ house does not encroach on the EPODs; it simply happens to be located on the same parcel of property. There has been no showing of any relationship whatsoever between the construction or occupancy of the Smiths’ house and any environmental harm to the EPODs that the conservation easement would mitigate. As Justice Scalia has remarked, “[t]he object of the Court’s holding in Nollan and Dolan was to protect *25against the State’s cloaking within the permit process an out- and-out plan of extortion” (Lambert, 529 US at 1048, quoting Nollan, 483 US at 837 [internal quotation marks and citation omitted]). That the extortion may be somewhat gratuitous in this case—the Town’s EPOD regulations are currently at least as restrictive as the terms of the conservation easement— renders the extortion no less out of bounds.
Quoting the Attorney General, the majority correctly points out that conservation easements have proven to be a very popular and flexible tool for preserving land and protecting our state’s environment.71 have found nothing to suggest, however, that the State has heretofore ever been the beneficiary of a conservation easement which was neither purchased8 nor donated. As a result of today’s decision, the State and localities may compel conveyance of conservation easements as a condition for issuance of all sorts of routine permits, and, for purposes of determining whether just compensation is due, these conditions will not be subject to the heightened scrutiny of Nollan/Dolan. This will no doubt come as unexpected and unwelcome news to many New York property owners.
. The Court “assume[d] without deciding” that the purposes proffered by the Commission to justify the exaction—“protecting the public’s ability to see the beach, assisting the public in overcoming the ‘psychological barrier’ to using the beach created by a developed shorefront, and preventing congestion on the public beaches”—were legitimate state interests (483 US at 835).
. Section 170 (h) of the Internal Revenue Code (26 USC) provides for a charitable deduction for a qualifying conservation easement. The easement must be contributed to a public body or qualified nonprofit organization exclusively for conservation purposes to be protected in perpetuity (26 CFR 1.170A-14 [a], [b] [2]; [e]). Depending upon the nature of the easement’s conservation purposes, public access may be mandated, or it may be partially or wholly restricted (see e.g. 26 CFR 1.170A-14 [d] [2] [ii] [public access required for conservation easement for recreation and education]; [d] [3] [iii] [restrictions on public access to protected environmental systems]; [d] [4] [ii] [B] [visual rather than physical access sufficient to satisfy requirement of scenic enjoyment of open space by general public]). Section 2031 (c) of the Internal Revenue Code grants substantial estate tax benefits to a qualifying conservation easement. In addition, the restrictions placed on property by a conservation easement may reduce market value so as, in turn, to reduce assessed value and therefore real property taxes. As one commentator has noted, however, “local assessors are often reluctant to reduce assessments” on account of conservation easements and “[i]n many instances the cost of pursuing legal remedies may exceed the potential benefits of the possible tax reduction” (Ginsberg and Weinberg, Environmental Law and Regulation in New York § 12:6, at 1081, 1082 [9 West’s NY Prac Series 2001]).
. In essence, the majority has adopted the positions advocated by amicus State of New York and the Town. The State argues that an exaction is limited to a physical taking or a physical invasion. Likewise, the Town argues that an easement is not an exaction unless it provides for the general public’s or the Town’s physical use or occupation of the property. In a related vein, both *21the State and the Town emphasize that the conservation easement here is a negative easement that prohibits the landowner from doing something otherwise lawful on his estate. Of course, to the extent that the easement mirrors the Town’s environmental protection overlay district (EPOD) regulations, the easement only prohibits the Smiths from doing that which the law now already bans. The Town takes the position that a negative easement may never be an exaction while an affirmative easement, which grants the easement holder the right to use the servient estate, may be.
. The language’s author, Justice Kennedy, does not appear to agree with this interpretation of what he wrote. In Lambert v City & County of San Francisco (529 US 1045 [2000]), he and Justice Thomas joined Justice Scalia’s dissent from a denial of certiorari to consider whether Nollan/Dolan applies to the denial of a permit because an exaction is not met. In this ease, the exaction was a replacement fee for conversion of apartments. Justice Sealia summarized the holdings in Nollan/Dolan as follows, making no reference whatsoever to public access: These decisions “held that a burden imposed as a condition of permit approval must be related to the public harm that would justify denying the permit, and must be roughly proportional to what is needed to eliminate that harm” (529 US at 1046). Further, in Ehrlich v City of Culver City (512 US 1231 [1994]), handed down three days after Dolan, the Court by a 5-4 margin vacated the judgment and remanded for further consideration in light of Dolan. In Ehrlich, the owner of a sports complex required the City’s approval to construct a condominium on the site to replace the sports complex. The City conditioned approval upon the property owner/developer’s payment of a recreational fee and a fee in lieu of participating in the City’s “Art in Public Places Program.” Upon remand, the California Supreme Court specifically “rejected] the city’s contention that the heightened takings clause standard formulated by the court in Nollan and Dolan applies only to cases in which the local land use authority requires the developer to dedicate real property to public use as a condition of permit approval” (12 Cal 4th 854, 859, 911 P2d 429, 433 [1996], cert denied 519 US 929 [1996]).
. As the eminent constitutional scholar Cass Sunstein has succinctly explained: “For a long period, the public use requirement [of the Takings Clause] was understood to mean that if property was to be taken, it was necessary that it be used by the public. That the new use was in some sense beneficial to the public was insufficient. Eventually, however, it became clear that this test was unduly mechanical, for a wide range of uses by government served the public at large, even if the public did not actually have access to the property. The Mill Acts, which permitted riparian owners to erect and maintain mills on neighboring property, provided an example. After the courts upheld those acts, exceptions were built into the general rule until the general rule itself was abandoned” (Sunstein, Naked Preferences and the Constitution, 84 Colum L Rev 1689, 1724 [1984]).
. In this respect, I undertake the analysis in a reverse order than does Judge Graffeo except, of course, to the extent that the first question under Nollan/Dolan is whether the permit seeks to promote a legitimate state purpose, which derives from Agins.
. There are, however, those who view the merits of conservation easements more skeptically (see e.g. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 Va L Rev 739 [2002]).
. Moneys have been expended from the 1986 bond act, the New York State Open Space Plan and the environmental protection fund to purchase conservation easements (see Bathrick, Symposium: 25th Anniversary of the New York State Department of Environmental Conservation: Past and Future Challenges and Directions, Resource Management: Lands & Forests, 7 Alb LJ Sci & Tech 159, 167 [1996]).