Concurring and Dissenting.— I concur in the judgment insofar as it upholds the “art in public places” fee. I agree with the majority that this fee, imposed under an ordinance of general applicability, is not subject to the “essential nexus” and “rough proportionality” requirements that the United States Supreme Court established in Nollan v. California Coastal Comm’n (1987) 483 U.S. 825 [97 L.Ed.2d 677, 107 S.Ct. 3141] (Nollan) and Dolan v. City of Tigard (1994) 512 U.S. 374 [129 L.Ed.2d 304, 114 S.Ct. 2309] (Dolan) to determine whether certain development conditions violate the takings clause of the Fifth Amendment to the United States Constitution. I further agree with the majority that the art in public places fee is valid under traditional standards for judging the constitutional validity of development requirements of general applicability.
I dissent from the judgment insofar as it concludes that a city may impose a mitigation fee for the “loss” of private recreation facilities when property on which such facilities were located is redeveloped for a different use. On this issue, I agree with the majority that Nollan-Dolan’s “essential nexus” and “rough proportionality” requirements apply to monetary exactions that, like the mitigation fee involved here, are imposed on a specific parcel of property as a condition of obtaining a development permit. I also agree with the majority that a city may not impose a recreational mitigation fee in an amount sufficient to replace the “lost” private facilities with new public facilities. But I do not agree with the majority that a city may require a landowner to compensate the city for the projected expenses of (1) imposing development restrictions on other land, or (2) otherwise encouraging the construction of other private recreation facilities to replace those “lost” through redevelopment.
I further disagree with the plurality’s decision, as expressed in Justice Arabian’s opinion, to “gloss” certain state laws regulating mitigation fees (Gov. Code, § 66000 et seq.; hereafter Mitigation Fee Act) to make their provisions coincide exactly with the restrictions imposed by the takings clause of the Fifth Amendment to the United States Constitution. This case was litigated under the takings clause, not our state’s Mitigation Fee Act; thus, there is no need to construe the Mitigation Fee Act to decide this case.
I
Between 1973 and 1975, Richard Ehrlich (Ehrlich) acquired a 2.4-acre lot in Culver City (City) and applied for approval to develop a private tennis club and recreational facility on the site. City amended its zoning and general plan ordinances and adopted a specific plan to allow for the construction of the facility. When developed by Ehrlich, the site had five tennis *904courts, a heated swimming pool, a Jacuzzi, paddle tennis courts, an aerobics area, and a separate building for lockers and other facilities.
In 1981, after a number of different managers had failed to make the private club operate at a profit, Ehrlich applied for approval to replace the private recreational club with an office building. When City’s planning commission opposed the application on the ground that Ehrlich’s private club filled a community need for recreational facilities, Ehrlich abandoned the application.
In August 1988, Ehrlich closed the facility because of continuing financial losses. He then applied for a specific plan amendment and tentative tract map approval to develop the site into a 30-unit townhouse project.
City initially expressed interest in acquiring the property for use as a city-owned recreational facility. Its staff advised City that Ehrlich’s property offered an opportunity “to preserve an existing sports/recreational facility for public use and relieve pressure on existing facilities.” An independent feasibility study commissioned by City concluded that, according to national standards, City needed two to four tennis courts and more public swimming pools and gymnasiums. Although the study criticized Ehrlich’s operation of the private club formerly on the property, it also found that extensive capital improvements would be necessary to make the site financially viable for recreational use.
In March 1989, Ehrlich obtained a demolition permit and demolished the recreational facilities at the site, donating to City the equipment that was still useful after demolition. In April 1989, City decided, based on its independent feasibility study, that it did not have sufficient funds to acquire the site and use it as a public sports complex. It also decided not to assume the substantial financial risks involved in acquiring the property for operation on a membership, fee-for-service basis. Based on its concern about the loss of recreational land use, City denied Ehrlich’s application to develop the site with townhouses.
In subsequent discussions with City, Ehrlich was told that his development application would be granted only if he agreed to build new recreational facilities for City. In response, Ehrlich filed, but did not serve, the petition for writ of mandate and complaint for damages in this case. City then rescinded its earlier denial of Ehrlich’s application and granted it subject to certain conditions, including payment of a $280,000 recreational mitigation fee and a $33,200 “art in public places” fee. The recreational mitigation fee was to be used “for additional recreational facilities” to *905replace the facilities “lost” when Ehrlich ceased using his property for commercial recreational purposes. The amount of this fee was based on City’s estimate of the cost of building public recreational facilities. The “art in public places” fee was imposed under a municipal ordinance that requires commercial projects with a value in excess of $500,000 to either provide art work for the project in an amount equal to 1 percent of the total value of the building or to pay an equal amount to the City art fund.1
Ehrlich formally protested both the recreational mitigation fee and the “art in public places” fee. When City denied his protests, Ehrlich amended his pleadings in this action to allege that the fees were an unconstitutional taking. Ehrlich and City then agreed that Ehrlich would pay the fees under protest, retaining the right to proceed with this lawsuit, in return for City’s issuance of the necessary development permits.
In Ehrlich’s action, the trial court invalidated the $280,000 recreational mitigation fee because it was “simply an effort to shift the cost of providing a public benefit to one no more responsible for the need than any other taxpayer.” The trial court upheld the constitutionality of the $33,200 “art in public places” fee.
The Court of Appeal initially affirmed the trial court’s judgment, but then granted a rehearing and, in a published opinion (Ehrlich v. City of Culver City (1993) 15 Cal.App.4th 1737 [19 Cal.Rptr.2d 468]), reversed the trial court’s ruling that the $280,000 fee was an unconstitutional taking. The Court of Appeal reasoned that there was a substantial nexus between the proposed project and the fee because the fee compensated City for the burden to the community caused by the “loss” of Ehrlich’s private recreational facilities. (Id. at p. 1750.) The United States Supreme Court then granted certiorari and remanded the case to the Court of Appeal “for further consideration in light of Dolan v. City of Tigard, 512 U.S. 374 [129 L.Ed.2d 304, 114 S.Ct. 2309]. . . .” (Ehrlich v. City of Culver City (1994) 512 U.S. _ [129 L.Ed.2d 854, 114 S.Ct. 2731-2732].) On remand, a divided Court of Appeal, this time in an unpublished opinion, again upheld the $280,000 recreational mitigation fee. We granted review.
II
The Fifth Amendment to the United States Constitution, made applicable to state and local governments by the Fourteenth Amendment, prohibits the *906government from taking private property for public use without just compensation. “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, supra, 483 U.S. 825, 835-836, fn. 4 [97 L.Ed.2d at p. 688], quoting Armstrong v. United States (1960) 364 U.S. 40, 49 [4 L.Ed.2d 1554, 1561, 80 S.Ct. 1563].)
In two landmark decisions—Nollan, supra, 483 U.S. 825, and Dolan, supra, 512 U.S. 374—the United States Supreme Court has defined the scope of the protection that the Fifth Amendment’s takings clause affords in the context of conditions imposed on the granting of land use permits. In so doing, the court has drawn a distinction between conditions legislatively imposed by laws or rules of general applicability, on the one hand, and conditions adjudicatively imposed on specific parcels, on the other hand.
If a condition is imposed pursuant to an ordinance or rule of general applicability—that is, as a result of a legislative determination—the condition is constitutionally permissible unless the landowner meets his or her burden of proving that the condition either does not substantially advance a legitimate governmental purpose or deprives the landowner of any economically viable use of the land. (Dolan, supra, 512 U.S. 374,_, fn. 8 [129 L.Ed.2d 304, 315-317, 320, 114 S.Ct. 2309, 2316-2317, 2320]; Agins v. Tiburon (1980) 447 U.S. 255, 260 [65 L.Ed.2d 106, 111-112, 100 S.Ct. 2138].)
If a condition is adjudicatively imposed, however, the government bears the burden of establishing (1) that the condition has an “essential nexus” with a legitimate government interest that would have justified denial of the permit, and (2) that there is a “rough proportionality” between the burden imposed by the condition and the projected impact of the proposed development. (Dolan, supra, 512 U.S, 374, _ [129 L.Ed.2d 304, 317-318, 114 S.Ct. 2309, 2317-2319]; Nollan, supra, 483 U.S. 825, 834-837 [97 L.Ed.2d 677, 687-689].)
With these standards in mind, I proceed to the issues presented here.
A. The Mitigation Fee Act
As a preliminary matter, the plurality, as explained in Justice Arabian’s opinion, decides to “gloss” the provisions of California’s Mitigation Fee Act (Gov. Code, § 66000 et seq.) to make its provisions correspond to the standards that the United States Supreme Court enunciated in Nollan, supra, 483 U.S. 825, and Dolan, supra, 512 U.S. 374. (Plur. opn., ante, at pp. 859-860, 866.) I see no need for this. Ehrlich has not challenged the validity *907of the Mitigation Fee Act, nor was this issue addressed by the trial court. In the event of some conflict between the standards set forth in the Mitigation Fee Act and the standards required by the federal Constitution, the constitutional standards must necessarily control. Accordingly, the issue in this case is constitutional, not statutory.
B. The “Art in Public Places” Fee
The “art in public places” fee was imposed under a municipal ordinance of general applicability. Accordingly, the $33,200 fee is constitutionally valid unless Ehrlich proves that the fee either does not serve a legitimate government purpose or deprives him of any economically viable use of the land. (Dolan, supra, 512 U.S. 374, _, fn. 8 [129 L.Ed.2d 304, 315-317, 320, 114 S.Ct. 2309, 2316-2317, 2320].) Enhancing the aesthetic environment of the community is a legitimate government purpose, and Ehrlich has not demonstrated that the amount of the fee, which equals only 1 percent of the project value, makes the project economically unfeasible or otherwise deprives him of any economically viable use of the land. Accordingly, I concur with the majority that this fee is constitutionally permissible.
C. The Recreational Mitigation Fee
1. Is Nollan-Dolan applicable to a monetary fee?
In both Nollan, supra, 483 U.S. 825, and Dolan, supra, 512 U.S. 374, the condition at issue required the landowner to grant a possessory interest in part of the property to the public or to the government. Seizing on this factual circumstance, City here contends that Nollan-Dolan"s “essential nexus” and “rough proportionality” requirements apply only to such conditions and not to conditions requiring payment of a sum of money, however large. The majority rejects this contention, holding that the “essential nexus” and “rough proportionality” requirements imposed by the United States Supreme Court’s construction of the takings clause apply not only to conditions requiring surrender of a possessory interest in land, but also to conditions requiring monetary payments, provided that the conditions are adjudicatively imposed in a discretionary permit process. (Plur. opn., ante, at pp. 860, 866-868; conc. & dis. opn. of Werdegar, J., post, at p. 912.) For the reasons given by the majority, I concur in this holding.
Because the $280,000 recreational mitigation fee was imposed on Ehrlich’s development application individually, and not pursuant to an ordinance or rule of general applicability, the constitutionality of this fee is evaluated using the Nollan-Dolan “essential nexus” and “rough proportionality” analysis.
*9082. Essential Nexus
The first component in the Nollan-Dolan analysis is determining whether the challenged condition has an “essential nexus” with a legitimate government interest that would have justified denial of the permit. This component, in turn, may be broken down into three steps: (1) determining whether the government could have denied the permit application entirely; (2) identifying one or more legitimate government interests that would have justified denial of the permit application; (3) determining whether the condition has an “essential nexus” with the impact of the proposed development on one or more of the identified interests.
The denial of a land-use permit application effects a taking of the property, for which the government must pay compensation, if the denial does not substantially advance a legitimate state interest or if it deprives the owner of “ ‘economically viable use of his land.’ ” (Dolan, supra, 512 U.S. 374, _ [129 L.Ed.2d 304, 316, 114 S.Ct. 2309, 2316], quoting Agins v. Tiburon, supra, 447 U.S. 255, 260 [65 L.Ed.2d 106, 112]; see also Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1016, 1017 [120 L.Ed.2d 798, 813, 112 S.Ct. 2886, 2894-2895].) Thus, it is necessary to determine whether denial of Ehrlich’s permit application would have deprived him of economically viable use of his land. The majority entirely omits this part of the analysis.
Here, Ehrlich’s permit application had two purposes: (1) to remove the specific plan restriction that Ehrlich’s property be used only for a private recreational club; and (2) to authorize development of the property with a thirty-unit townhouse complex. The evidence presented in the record raises a substantial question as to whether a private recreational club was an economically viable use of the property. Ehrlich had attempted to use the property for this purpose for a period of years but was unable to make it profitable despite several changes of management. Moreover, City itself declined to assume ownership of the property for the purpose of itself operating the private recreational club, concluding that the financial risk would be too great.
A conclusion that a private health club was not an economically viable use of the property would not mean, of course, that City was required to grant the specific alternative use that Ehrlich requested: a 30-unit townhouse complex. But it would mean that City would be required to authorize some economically viable alternative use, rather than simply denying all applications for redevelopment to other uses.
Although the record raises serious doubts on the issue, I need not and do not decide whether City could have completely denied Ehrlich’s permit *909application on the basis of the government interest in maintaining adequate private recreational facilities because, as explained below, I conclude that the recreational mitigation fee fails another part of the Nollan-Dolan test.
Assuming, for purposes of argument, that a denial of Ehrlich’s permit application would not have deprived him of an economically viable use of his property, would the condition that he pay a recreational mitigation fee have an “essential nexus” to a legitimate government interest?
I do not doubt that a city has a legitimate government interest in providing adequate recreational facilities, both public and private, for its residents. But a city’s exaction of a “recreational mitigation fee” from a landowner as a condition of permit approval must satisfy the Nollan-Dolan requirement of an “essential nexus” between the fee and the city’s interest in denying the proposed development application. (Nollan, supra, 483 U.S. 825, 837 [97 L.Ed.2d 677, 689].)2 I need not decide in this case whether the recreational mitigation fee satisfies this essential nexus requirement, however, because as I explain below, the fee fails under the “rough proportionality” test.
3. Rough Proportionality
The second component in the Nollan-Dolan analysis is determining whether there is a “rough proportionality” between the burden imposed by the permit approval condition and the projected impact of the proposed development. (Dolan, supra, 512 U.S. 374,_[129 L.Ed.2d 304, 317-321, 114 S.Ct. 2309, 2317-2320].)
Because Ehrlich’s proposed construction of 30 townhouses on his land would have increased the community’s housing stock and thus the number of its residents, City could reasonably impose a fee to offset the increased demand on public recreational facilities attributable to the increase in population resulting from the development. City did exactly this by imposing a $30,000 “parkland” fee. (See fn. 1, ante.) Ehrlich has not disputed the validity of this fee.
The $280,000 recreational mitigation fee that City imposed on Ehrlich was designed not to offset the increased demand on public recreational *910facilities caused by the addition of 30 residential units, but instead to compensate for the “loss” of the private recreational club that had previously existed on the property. The distinction is crucial.
The majority partly rejects and partly accepts City’s “lost use” or “lost opportunity” rationale for the recreational mitigation fee.
The majority rejects the rationale insofar as it is based on the assumption that a landowner may be required, as a condition to redeveloping property for a different use, to replace private facilities on the property with comparable public facilities. Thus, as the majority recognizes, City may not require Ehrlich to build public recreational facilities to replace the private facilities that existed on his property, nor may it impose a fee in an amount calculated to achieve this end. As the majority aptly states, City “may not constitutionally measure the magnitude of its loss, or of the recreational exaction, by the value of facilities it had no right to appropriate without paying for.” (Plur. opn., ante, at p. 883.)
But the majority accepts City’s “lost use” or “lost opportunity” rationale insofar as it is based on the assumption that a landowner may be required, as a condition to redeveloping property for a different use, to underwrite any government expense likely to be incurred in the process of replacing private facilities on the property with comparable private facilities on other privately owned land. Thus, the majority concludes that City may charge Ehrlich a recreational mitigation fee measured either by “the additional administrative expenses incurred in redesignating other property within Culver City for recreational use” (plur. opn., ante, at p. 883; see also conc. & dis. opn. of Werdegar, J., post, at p. 912) or by the “monetary incentives” needed “to induce private health club development” on other land (plur. opn., ante, at p. 884; see also cone. & dis. opn. of Werdegar, J., post, at p. 912). I disagree. A fee calculated in either manner would require Ehrlich to bear a grossly disproportionate share of what is essentially a public expense.
The fundamental flaw in the majority’s reasoning is the assumption that City, without violating the takings clause, could restrict Ehrlich’s property to private recreational uses. As discussed above, such a restriction might well deprive Ehrlich of economically viable use of his land and be invalid on that basis. But even if constitutionally valid on that basis, the restriction would be invalid because it impermissibly singled out Ehrlich’s property for special restriction. This is akin to prohibited spot zoning.
“Spot zoning occurs where a small parcel is restricted and given lesser rights than the surrounding property, as where a lot in the center of a business or commercial district is limited to uses for residential purposes thereby creating an ‘island’ in the middle of a larger area devoted to other *911uses.” (Viso v. State of California (1979) 92 Cal.App.3d 15, 22 [154 Cal.Rptr. 580]; see also Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 960-961 [2 Cal.Rptr.2d 638].) Because “spot zoning” discriminates against the parcel singled out for special restriction, it is invalid unless the government establishes some reasonable ground for the disparate treatment. (See Penn Central Transp. Co. v. New York City (1978) 438 U.S. 104, 132 [57 L.Ed.2d 631, 634-635, 98 S.Ct. 2646]; Nectow v. Cambridge (1928) 277 U.S. 183, 188-189 [72 L.Ed. 842, 844-845, 48 S.Ct. 447]; Wilkins v. City of San Bernardino (1946) 29 Cal.2d 332, 340-341 [175 P.2d 542]; Reynolds v. Barrett (1938) 12 Cal.2d 244, 251 [83 P.2d 29].)
Although City has a legitimate government interest in the promotion of private recreational facilities adequate to meet the recreational needs of its residents, in advancing this public interest City may not single out individual landowners or small groups of landowners to bear a disproportionate share of the burden. This is precisely what City does when it permits only recreational uses on an individual parcel that is otherwise indistinguishable from surrounding parcels on which a much broader range of uses is permitted.
Here, Ehrlich initially voluntarily accepted the recreational use restriction in 1975 as a condition of approval of the specific plan for the property. So long as Ehrlich continued to accept the benefits of the specific plan, he might well have been estopped to challenge the validity of the restriction. But Ehrlich has now waived all benefits he received under the previous specific plan in order to redevelop the property for a different use. Having surrendered the benefits, he should no longer be required to bear the burden of the recreational use restriction. City should now permit Ehrlich to use his property in a manner consistent with the uses of surrounding parcels, without unfairly penalizing him for his unsuccessful attempt to operate a private recreational club.
Had Ehrlich applied in 1975 for approval to build townhouses rather than a private recreational club, City would have had no reason to impose a fee for the “loss” of a recreational land-use designation. Absent some evidence that Ehrlich gained some enduring advantage or City suffered some lasting detriment as a result of Ehrlich’s unsuccessful efforts to operate a private recreational club on his land, the removal of the recreational use restriction imposed in 1975 will not support the imposition of any additional fee. (See Kmiec, At Last, the Supreme Court Solves the Takings Puzzle (1995) 19 Harv. J. L. & Pub. Pol’y. 147, 156, fn. 43 [characterizing as an “extraordinary notion” the assertion “that once a private landowner has undertaken a permitted common law use, like [construction of] a private swimming pool or tennis court, he either must continue that use or must pay to stop”].)
*912For example, had Ehrlich received some subsidy as an inducement to accept the recreational use restriction, he might well be required to reimburse City for all or part of the subsidy upon abandonment of the use for which the subsidy had been given. But returning the subsidy he had received would be the extent of his obligation. There is neither justice nor logic in the majority’s suggestion that Ehrlich may now be required to fund a subsidy to induce another landowner to accept a “spot zoning” of his or her property that would restrict that property to private recreational uses. Likewise, although Ehrlich may be required to pay an application fee to compensate for City’s costs in processing his own permit applications, City may not require him also to underwrite City’s administrative costs for land use proceedings relating to other parcels.
Conclusion
All of us must bear our fair share of the public costs of maintaining and improving the communities in which we live and work. But the United States Constitution, through the takings clause of the Fifth Amendment, protects us all from being arbitrarily singled out and subjected to bearing a disproportionate share of these costs. This constitutional protection does not evaporate when we discontinue a use of our property that we gratuitously undertook and that the government could not constitutionally have required us to continue, no matter how greatly the community may have benefited from that use.
Because I conclude that the trial court correctly decided the issues in this case, I would reverse the judgment of the Court of Appeal with directions to affirm the trial court’s judgment.
Baxter, J., concurred.
City also required Ehrlich to pay a $30,000 parkland fee to provide for anticipated increased demand on public park and recreational facilities by the residents of the proposed townhouse development. Ehrlich has not contested the validity of this fee and it is not at issue on this appeal.
Whether an essential nexus exists turns on the connection between the condition imposed on the development and “the projected impact of the proposed development” (Dolan, supra, 512 U.S. 374, _ [129 L.Ed.2d 304, 317, 114 S.Ct. 2309, 2317]). The United States Supreme Court has not yet clarified whether “the projected impact” includes only positive effects such as the additional burdens that the new development will impose on the community (in this case, the increased demand for city services resulting from the addition of 30 townhouses) or also negative effects such as the reduction in the total area of land zoned for a particular use (in this case, the reduction in land designated for recreational uses) or the loss of public benefits from the preexisting use of the land (in this case, the benefits City residents derived from use of the athletic facilities).