(dissenting). Defendant City of Westland arbitrarily and capriciously required plaintiff Electro-Tech to cede a portion of its property to the city without compensation as a condition of obtaining a building permit. As a result, Electro-Tech was deprived of a property interest without due process.
In my opinion, the majority seriously misconstrues recent precedent from the United States Supreme Court. First, by concluding that ElectroTech’s claim is unripe for want of a "final decision” from the city regarding Electro-Tech’s right to build on its property, the majority has unjustifiably expanded the ripeness requirements set forth in Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172, 190-191; 105 S Ct 3108; 87 L Ed 2d 126 (1985). Second, by treating Electro-Tech’s right to improve its property as a government benefit and concluding that Electro-Tech has not identified a protected property interest because of its failure to demonstrate a "legitimate claim of entitlement,” the majority has disregarded the teaching of Nollan v California Coastal Comm, 483 US 825, 833-834, n 2; 107 S Ct 3141; 97 L Ed 2d 677 (1987).
I. INTRODUCTION
Regarding allegations of due process violations, Justice Stevens has aptly observed:
It is not enough to note that [the petitioners] rely on the Due Process Clause of the Fourteenth Amendment, for that Clause is the source of three different kinds of constitutional protection. First, it incorporates specific protections defined in the Bill *93of Rights. . . . Second, it contains a substantive component, sometimes referred to as "substantive due process,” which bars certain arbitrary government actions "regardless of the fairness of the procedures used to implement them.” . . . Third, it is a guarantee of fair procedure, sometimes referred to as "procedural due process”: the State may not execute, imprison, or fine a defendant without giving him a fair trial, nor may it take property without providing appropriate procedural safeguards. [Daniels v Williams, 474 US 327, 337; 106 S Ct 662; 88 L Ed 2d 662 (1986) (Stevens, J., concurring).]
A claim that a governmental land-use decision has worked a deprivation of property in violation of the Due Process Clause may fall into one or more of these categories. Into Justice Stevens’ first classification, for example, fall claims asserting that governmental action has resulted in a "taking” of property without just compensation in violation of the Fifth Amendment by a physical occupation of the landowner’s property. Loretto v Teleprompter Manhattan CATV Corp, 458 US 419, 434-435; 102 S Ct 3164; 73 L Ed 2d 868 (1982).
A landowner may also assert that a land-use regulation has denied the landowner all use of the property even though there is no physical invasion. Such a claim could fall into Justice Stevens’ first category if the landowner complains that the regulation has effected a "taking” of the property, First English Evangelical Lutheran Church of Glendale v Los Angeles Co, 482 US 304; 107 S Ct 2378; 96 L Ed 2d 250 (1987), or, possibly, into the second category if the complaint alleges not a "taking for which the Fifth Amendment requires just compensation” but that a regulation "goes so far that it has the same effect as a taking by eminent domain [and] is an invalid exercise of the *94police power, violative of the Due Process Clause of the Fourteenth Amendment.” Williamson, supra, p 197 (emphasis added).
Should the government wish to accomplish the goals of such regulation, it must proceed through the exercise of its eminent domain power, and, of course, pay just compensation for any property taken. The remedy for a regulation that goes too far, under the due process theory, is not "just compensation,” but invalidation of the regulation, and if authorized and appropriate, actual damages. [Id.]
Regardless of the manner in which a "regulatory taking” claim is framed, whether as a violation of the Just Compensation Clause of the Fifth Amendment or of the Due Process Clause of the Fourteenth Amendment, the claim does not ripen until the landowner has received a final decision regarding the application of the regulation or ordinance to the particular piece of property. Williamson, supra; MacDonald, Sommer & Frates v Yolo Co, 477 US 340; 106 S Ct 2561; 91 L Ed 2d 285 (1986). This is because regulatory taking claims depend upon an interference with the use of property that is so drastic as to represent the practical equivalent of a taking. Until such a final decision has been rendered, it is impossible to determine the extent of this interference.
Alternatively, a property owner challenging a particular land-use decision may advance a due process claim separate and distinct from the regulatory taking due process claim discussed in the preceding paragraph — that the property owner’s due process rights have been otherwise interfered with by irrational or arbitrary governmental action. In contrast to regulatory taking due process claims, this type of substantive due process claim, *95falling squarely into Justice Stevens’ second category, "does not require proof that all use of the property has been denied . . . Bateson v Geisse, 857 F2d 1300, 1303 (CA 9, 1988), quoting Herrington v Sonoma Co, 834 F2d 1488, 1498 (CA 9, 1988), modified 857 F2d 567 (CA 9, 1988), cert den — US —; 109 S Ct 1557; 103 L Ed 2d 860 (1989).1 Rather, "the deliberate and arbitrary abuse of government power violates an individual’s right to substantive due process.” Bello v Walker, 840 F2d 1124, 1129 (CA 3, 1988), cert den 488 US 868; 109 S Ct 176; 102 L Ed 2d 145 (1988) (relying on Daniels, supra).2
II. THE LEGAL FRAMEWORK OF THE SUBSTANTIVE DUE PROCESS CLAIM
It is well established that deliberate, irrational governmental action may violate due process guarantees. Both the majority in Daniels and Justice Stevens’ concurrence emphasize this aspect of the Due Process Clause. As the Daniels majority observed, the
guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. . . . [T]he Due Process Clause, like its forebear in the Magna Carta . . . was " 'intended to secure the individual from the arbitrary exercise of the powers of government.’ ”... And by barring certain government actions regardless of the fairness of the procedures used to implement them ... it serves to prevent governmental power from being "used *96for purposes of oppression,” . . . [Daniels, supra, p 331. Emphasis in the original.][3]
Applying this theory in the land use context, the Court of Appeals for the Third Circuit in Bello reversed the federal district court’s grant of summary judgment in favor of city council members where the plaintiffs
presented evidence from which a fact finder could reasonably conclude that certain council members, acting in their capacity as officers of the municipality improperly interfered with the process by which the municipality issued building permits, and that they did so for partisan political or personal reasons unrelated to the merits of the application for the permits. [Bello, supra, p 1129.]
Looking to Daniels, the court relied on the general rule that "the deliberate and arbitrary abuse of government power violates an individual’s right to substantive due process.” Bello, p 1129. The court distinguished an earlier decision from the same circuit in which a zoning regulation was held not to deprive the plaintiff of substantive due process. Pace Resources, Inc v Shrewsbury Twp, 808 F2d 1023 (CA 3, 1987), cert den 482 US 906 (1987). In Pace, the complaint alleged no facts suggesting that the zoning was arbitrary, and it did "not present a case involving actions aimed at this developer for reasons unrelated to land use planning.” Bello, p 1129.
Other federal courts have also found that a denial of a land use permit may give rise to a substantive due process claim. See, e.g., Scott v *97Greenville Co, 716 F2d 1409, 1418-1421 (CA 4, 1983) (allegations of abuse of discretion or caprice in zoning administrator’s refusal to issue permit stated substantive due process claim); Southern Cooperative Development Fund v Driggers, 696 F2d 1347, 1356 (CA 11, 1983), cert den 463 US 1208 (1983) (substantive due process is violated where unauthorized requirements are imposed on a permit applicant); Littlefield v City of Afton, 785 F2d 596, 607 (CA 8, 1986) (complaint alleging an arbitrary and capricious imposition of an unconstitutional condition on a permit application stated a substantive due process claim).
In addition, even those judges in the federal courts of appeals disfavoring substantive due process claims in the land use context have admitted the viability of such claims in appropriate cases. See Creative Environments, Inc v Estabrook, 680 F2d 822, 833 (CA 1, 1982) (the plaintiif was not denied due process by the denial of the development plan where the dispute with the town planning agency was "not tainted with fundamental procedural irregularity, racial animus, or the like”); Lemke v Cass Co, 846 F2d 469, 472 (CA 8, 1987) (en banc) (Arnold, J., concurring) (stating that the substantive due process claims should be limited to cases in which challenged land use decisions bearing "no relationship whatever to the merits of the pending matter”); Coniston Corp v Village of Hoffman Estates, 844 F2d 461, 467 (CA 7, 1988) (Posner, J.) ("Of course if a zoning decision is based on considerations that violate specific constitutional guarantees, it is invalid; but in all other cases the decision can be said to deny substantive due process only if it is irrational”); Chiplin Enterprises, Inc v City of Lebanon, 712 F2d 1524, 1528 (CA 1, 1983) (suggesting that substantive due process claims may be viable where "rec*98ognized fundamental constitutional rights are abridged,” quoting Estabrook, supra).
The majority finds it significant that the United States Supreme Court "has yet to employ such an approach in cases involving the wrongful denial of a land use permit.” Ante, p 76. However, in Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926), the Court considered a due process attack on a zoning ordinance. The Court rejected the challenge on the ground that the reasons advanced by the municipality on behalf of the zoning provisions were
sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. [Id., p 395.]
In more recent times, the Court has considered a claim that a municipal ordinance prohibiting excavations below a certain depth violated due process. The Court held that the plaintiff failed to sustain its burden of proving the ordinance to be an invalid exercise of the town’s police power. Goldblatt v Town of Hempstead, 369 US 590, 594-596; 82 S Ct 987; 8 L Ed 2d 130 (1962).4
Finally, I note that this Court has employed that theory before. In Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974), we unanimously *99accepted the proposition that the enactment of an irrational zoning ordinance may deny a landowner substantive due process. Id., pp 157-159, 167 (Levin, J., concurring). The majority quoted extensively from Euclid, supra, in its analysis of the plaintiffs’ substantive due process claim, which was considered separately from the plaintiffs’ taking claim.5
hi. electro-tech’s due process claim in the LOWER COURTS
Electro-Tech’s fourth amended complaint adequately alleged facts to support its substantive due process claim. At the close of proofs, Circuit Judge Giovan determined that if in fact the City of Westland imposed the dedication requirement as a condition for obtaining a building permit, then, as a matter of law, Electro-Tech had established a constitutional violation for purposes of § 1983.6 The Court of Appeals reversed, finding that “plaintiffs *100have shown no constitutional violation.” Electro-Tech v H F Campbell Co, 161 Mich App 622, 628; 411 NW2d 800 (1987).
On appeal in this Court, Electro-Tech argues that its property rights were deprived:
[D]ue to a "calculated, deliberate abuse of governmental power,” the City was guilty of violating plaintiff’s constitutionally protected right to substantive due process. [Citing Daniels v Williams, supra.]
IV. THE RIPENESS OF ELECTRO-TECH’S DUE PROCESS CLAIM
In my opinion, the Williamson ripeness requirements do not present an obstacle to our consideration of the merits of Electro-Tech’s substantive due process claim.
A
Initially, I note that because Electro-Tech’s substantive due process claim does not require proof of an uncompensated taking, the Williamson requirement that an aggrieved property owner seek compensation is inapplicable. Williamson, supra, pp 194-195.
Perhaps less obviously, the Williamson final decision requirement is also inapplicable. Williamson, supra, pp 190-191. I believe that a principled decision to apply, or not to apply, the finality requirement requires us to look beyond the label attached to a constitutional land use claim to the policy underlying the requirement and to the nature of the governmental conduct under attack.
In my opinion, the finality requirement must be applied only when a landowner’s claim alleges *101that a regulatory taking of the property has occurred. A regulatory taking claim requires a showing that the application of a regulation, usually a facially legitimate exercise of the police power, has caused an interference with the use of property that is so drastic as to represent the practical equivalent of a taking, even though there has been no physical invasion of the property. Although such a claim might be framed in two different ways, the Williamson finality requirement is applicable in both instances. In Williamson, the plaintiff challenged a local zoning ordinance under both the Taking Clause of the Fifth Amendment and under the Due Process Clause of the Fourteenth Amendment, contending in both claims that the application of the ordinance to its property had resulted in the practical equivalent of a taking. Because the plaintiff had failed to request variances from the regulations which formed the basis of the planning commission’s denial of the plaintiff’s land use application, the Court found that it could not determine the effect of the regulations on the use and value of the plaintiff’s property. Id., p 190, n 11. Such determinations, the Court reasoned, cannot be made "until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Id., p 191. See also Hoehne v San Benito Co, 870 F2d 529 (CA 9, 1989) (Williamson requirements applied to a regulatory taking due process claim when it was necessary to determine the government’s position as to an acceptable use of the plaintiff’s property); Shelter Creek Development Corp v City of Oxnard, 838 F2d 375 (CA 9, 1988) (same).
In a later case, the Supreme Court clarified the application of the Williamson finality require*102ments. In Yolo Co, supra, p 344, a property owner alleged that the municipality’s rejection of its subdivision plan deprived the property of its " 'entire economic use.’ ” The plaintiff’s failure to secure a final determination whether some other sort of development would be permitted led the Court to reject the plaintiff’s regulatory taking claim. The Court observed that in several earlier cases, including Williamson,
we declined to reach the question whether the Constitution requires a monetary remedy to redress some regulatory takings because the records in those cases left us uncertain whether the property at issue had in fact been taken. Likewise, in this case, the holdings of both courts below leave open the possibility that some development will be permitted, and thus again leave us in doubt regarding the antecedent question whether appellant’s property has been taken. [Yolo Co, supra, pp 352-353. Emphasis added.]
The finality requirement serves two related purposes in regulatory taking cases. It enables the judge and jury to determine how the applicable regulations will be applied to a particular piece of property and to decide whether the resulting interference with the property is so severe as to constitute the practical equivalent of a taking. Neither determination need be made in the instant case, because plaintiff’s substantive due process claim, unlike that advanced by the landowners in Williamson and Yolo Co, is not a regulatory taking due process-claim.
The defendant in this case did not merely apply to plaintiff’s property a facially valid ordinance or regulation requiring all builders situated similarly to Electro-Tech to dedicate property for the widening of city streets. If the defendant had done so, it *103might have made sense under Williamson to insist that Electro-Tech have at least attempted to obtain a further determination by showing that any increased traffic burden resulting from the expansion of its existing building would be insufficient to justify the dedication requirement. However, no such ordinance existed in the present case. Rather, the city council pulled the dedication requirement out of thin air and imposed it arbitrarily in a resolution applicable to Electro-Tech only. This resolution, like the variance decision required in Williamson, was a concrete determination applicable to a particular piece of property.
Moreover, Electro-Tech’s due process claim does not require proof that its property has been "taken.” In other words, Electro-Tech does not have to show that the city’s action resulted in either a physical occupation of its property or a restriction on the use of its property which was so drastic as to represent the practical equivalent of an actual physical "taking” of the property. Electro-Tech need only prove that it was deprived of its property rights as a result of its refusal to submit to the unconstitutional condition deliberately and arbitrarily imposed by the city council.
The plaintiffs in Williamson and Yolo Co, on the other hand, alleged that their real property had in effect been taken by government action. The Supreme Court required those plaintiffs to obtain final decisions regarding the application of the regulations to their particular pieces of property in order to enable the finders of fact to determine whether the alleged interference with each plaintiff’s real property was in fact so severe as to constitute a taking.
(Nor is any further decision by the city necessary even to determine whether the condition itself was, in fact, violative of the Fifth Amend*104ment. Had Electro-Tech actually complied with the dedication requirement in order to obtain the permit, there is no doubt that a permanent physical occupation of Electro-Tech’s land would have resulted. See Nollan, supra [a permit condition unrelated to the merits of the application which threatened a permanent physical occupation of the landowner’s property without compensation was unconstitutional]; Parks v Watson, 716 F2d 646, 650-654 [CA 9, 1983] [same].7)
Because the governmental action in Nollan was nearly identical to the actions of the city, it is significant that the Supreme Court in Nollan did not even mention the final-decision requirement, despite its contemporaneity with the decision rendered in First English, in which a landowner alleged a regulatory taking and in which the Court explicitly found the final-decision requirement to be applicable. In the instant case, the final-decision requirement is not implicated because ElectroTech’s due process claim — that it was deprived of its right to improve its property by arbitrary and irrational government action — does not in any way require Electro-Tech to prove that the admittedly illegitimate condition imposed by the city actually resulted in such a severe restriction on ElectroTech’s ability to use its property as to violate Electro-Tech’s independent right not to have its property taken without just compensation.8
For cases applying a similar analysis, see Long Island Lighting Co v Cuomo, 666 F Supp 370, 405 (ND NY, 1987) (the failure to satisfy the finality requirement barred the taking claim but not the *105substantive due process claim which was "not dependent on the actual economic effect” of the land use decision upon plaintiff’s property); Long Grove Country Club Estates v Village of Long Grove, 693 F Supp 640, 657-658 (ND Ill, 1988) (applying the finality requirement to the taking challenge but not the substantive due process claim in a suit arising from the denial of a land use permit).
Although a final decision test has been applied in at least one case from the Court of Appeals for the Ninth Circuit, I find that basis for the application to be flawed. In addition, the due process claim in that case is distinguishable from that raised by Electro-Tech.
In Herrington, the court relied on an earlier decision from the same circuit for the proposition that the finality requirement applies to substantive due process claims. Id., 857 F2d 569. In Kinzli v Santa Cruz, 818 F2d 1449 (CA 9, 1987), a different panel of the court found a landowner’s substantive due process claim premature for want of a final decision. Id., p 1456. Although the nature of the substantive due process claim is not discussed in detail, it appears from the district court’s published opinion, Kinzli v Santa Cruz, 620 F Supp 609 (ND Cal, 1985), to which the Court of Appeals referred for further details, Kinzli, 818 F2d 1451, that the plaintiff’s due process claim was in fact the sort of regulatory taking due process claim also raised in Williamson.
Plaintiffs do not challenge Measure 0 as facially invalid or as an arbitrary use of the City’s police power; rather they challenge the Measure on the grounds that as applied to their property it deprives them of an economically viable use. [Kinzli, 620 F Supp 616. Additional emphasis supplied.]
*106The Herrington court did not explain why the finality requirement applied in Kinzli to a regulatory taking due process claim should apply to a nontaking substantive due process claim. In the absence of a compelling policy analysis to support this extension of Kinzli, I am unable to concur with Herrington’s analysis on this point.9
B
The application of the final-decision requirement proposed by the majority is misdirected not only because it erroneously assumes that Electro-Tech must demonstrate a "taking,” ante, p 86, but also because it requires Electro-Tech to perform an exercise in futility and imposes upon Electro-Tech an unjustifiably high burden of proof on the issue of causation, which, in effect, would require Electro-Tech to establish an "entitlement” to a permit, a requirement which I believe should not be applied in this case. See section v(A).
1
The majority states:
The Supreme Court’s primary purpose in mandating a final decision from the appropriate administrative body was to establish the existence of a "taking” and the extent to which it has harmed the plaintiff. Thus, while a final decision by the building department in the instant case probably would not have resulted in approval of the site plan or the issuance of a building permit, it would *107have indeed resolved any issue regarding the four "valid” conditions and would have established a basis upon which a factfinder could conclude that "but for” the improper dedication requirement, Electro-Tech would have been able to "derive economic benefit” from its land. Williamson, supra at 191.
In light of the record in the instant case as well as the purpose underlying the Williamson finality requirement, we reject the plaintiff’s assertion that it would have been futile to submit an amended site plan to the building department. [Ante, pp 86-87.]
It is true, as the majority suggests, that the "ultimate decision regarding building requests lies with the building department. . . . [T]he building department is responsible for examining the final site and building plans . . . and, if everything is approved, for ultimately issuing the permit.” Ante, pp 84-85. But the building department has no discretion to override a condition imposed by the city council. Its sole function is to determine whether the final plans conform to the requirements of the building code and zoning ordinance with such modifications as may have been approved by the city council or board of zoning appeals.
The head of the building department, Robert Fritz, testified that "we do not make the final decision,” and that the ultimate decision is made by the "[zoning board of appeals], Planning Commission or City Council.”10 He said he would en*108force the city council’s decision requiring the dedication of the parcel whether it was, in his opinion, "right or wrong,” and on cross-examination by the city explained that it was not part of his responsibility11 to question such a condition. A planning *109examiner for the building department similarly testified that the building department would not issue a building permit unless the twenty-seven-foot parcel had been dedicated.12
It is immaterial that Electro-Tech "failed to submit a final site plan (either to the council or to the building department) reflecting at least”13 compliance with the four unobjectionable conditions. The testimony of the city employees clearly establishes that it would have been futile for ElectroTech to do so and that no building permit would have been issued unless Electro-Tech had complied with the remaining and illegal dedication requirement. Even assuming for the moment that ElectroTech in* fact failed to comply with the four unobjectionable conditions, there is no support for the conclusion "that the process for obtaining the city’s permission to build had not yet been completed.”14
From the fact that the city council "conditionally” approved the site plan subject to the unconstitutional dedication requirement, the majority *110concludes that "the entire matter had not yet been finally resolved and that Electro-Tech would have to submit an amended site plan before it could begin building.” Ante, p 85. But the city council’s decision on the unconstitutional condition, on which approval depended, was conclusive. The amendment and resubmission contemplated by the majority, absent compliance with the dedication requirement, would have been to no avail.
In sum, I cannot agree that the ultimate decision regarding Electro-Tech’s ability to improve its property was vested in the building department. The only "ultimate decision” of the building department — whether to issue a building permit— was nondiscretionary and nondecisional. The building department’s sole function was to decide whether the final plans conformed to the building code and zoning ordinance as they may have been modified in this particular case by the board of zoning appeals or the city council. The building department had no authority to revise the June 11 city council resolution nor to issue a building permit absent dedication of the property. Uncontroverted evidence at trial showed conclusively that a building permit would never have been issued even if all other contingencies required by the Westland City Council other than the dedication requirement had been fulfilled.
2
Moreover, if the Williamson finality requirement were construed so broadly as to require a decision from the Westland building department — a body with no discretionary authority regarding West-land’s demand for the illegal dedication of land— the Court would be abandoning the core of its proper legal inquiry as to whether a final relevant *111city policy was established in the context of this case and would instead be embarking, improperly, on an extended and purely factual inquiry which duplicates that already undertaken by the jury.
It is true that if we were to require of plaintiffs that they prove as a matter of law that the defendant’s wrongful conduct is the only possible cause of the resulting harm in a given case, then we could rest assured that every verdict unfavorable to a defendant would be justified. The majority appears willing to hold Electro-Tech to such an unprecedented standard of proof by insisting that Electro-Tech demonstrate to a certainty that its failure to receive a permit is attributable solely to the dedication requirement. The requirement of such a standard of proof from the plaintiff, notwithstanding the finality requirement of Williamson, is not uniquely justified by the special context of § 1983 actions. "[F]ederal tort statutes such as 42 USC 1983 are not self-contained. They are enacted against a background of common law tort principles governing causation and damages. . . . Those principles are therefore applicable to federal civil-rights tort cases unless unsuitable to them . . . .” Taliferro v Augle, 757 F2d 157, 161-162 (CA 7, 1985) (Posner, J.). See also Parrett v Connersville, Indiana, 737 F2d 690 (CA 7, 1984), cert dis 469 US 1145 (1985), in which the Court of Appeals for the Seventh Circuit stated that, in examining § 1983 decisions,
[n]othing in any of these cases suggests to us that if a plaintiff succeeds in proving a violation of his constitutional rights, the principles used to determine whether he has demonstrated that the violation caused the injury for which he is seeking damages should be other than those applied in ordinary tort cases. [Id., p 695 (Posner, J.).]
*112The jury in this case, on the issue of causation, was instructed that Electro-Tech had the burden of proving
that the Defendant, City of Westland, knowingly imposed as a condition of the Plaintiff obtaining a building permit that the Plaintiff give up twenty-seven feet of its property to the City. Or to state it another way, they must prove that the City refused to grant a building permit to the Plaintiff unless the Plaintiff dedicated twenty-seven feet of its property to the Defendant at no charge.
[And] that the act complained of on the part of the Defendant was a proximate cause of the damages suffered by the Plaintiff. An act is a proximate cause of damages if the damages are a natural and probable consequence of the act.
The City of Westland made no objection to the instruction. In particular, the city has never argued that the trial court’s definition of causation in terms of "natural and probable consequences” was unsuitable in this case or in any way incompatible with the requirement set forth in Monell v Dep’t of Social Services, 436 US 658, 694; 98 S Ct 2018; 56 L Ed 2d 611 (1978), that the municipal policy or custom15 be the "moving force” behind the constitutional violation.
The majority’s proposed application of the Williamson finality requirement would transform the question of causation from a question of fact for the jury into a question of law for the court. However, it is not the court’s function to conclude whether the dedication requirement caused the plaintiff harm. Nor do any common-law tort principles justify requiring Electro-Tech to prove "certainty” or any other standard of proof beyond that *113given by Judge Giovan in his instructions to the jury. Under some circumstances, it may be proper for the Court to reexamine proof of causation in a tort cause of action. But, "[i]f reasonable jurors could disagree, neither the trial court nor this Court has the authority to substitute its judgment for that of the jury.” Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986) (emphasis added). Even such a comparatively modest review, however, is inappropriate in this case, because the defendant failed at trial to challenge the adequacy of the evidence of causation in a motion for a new trial or for judgment notwithstanding the verdict.16 Napier v Jacobs, 429 Mich 222; 414 NW2d 862 (1987).
The proposition that Electro-Tech must prove *114that it would have received approval but for the unconstitutional condition essentially calls upon Electro-Tech to demonstrate an entitlement to the permit. As explained in the following section, I do not believe that the law requires Electro-Tech to make such a showing.
V. THE MERITS OF ELECTRO-TECH’S DUE PROCESS CLAIM
Having concluded that Electro-Tech’s claim is ripe, I turn now to the merits of the claim. First, while Electro-Tech’s substantive due process claim does not depend on an antecedent demonstration that a taking has occurred, it may nevertheless be necessary to identify a constitutionally protected property interest of which Electro-Tech was deprived without due process. Second, it is necessary to determine whether the governmental action which affected the property interest was arbitrary and irrational.
A
1
In Bello, the court did not look to see whether the plaintiffs had a protected property or liberty interest under state law, holding instead that "the deliberate and arbitrary abuse of government power violates an individual’s right to substantive due process.” Bello, supra, p 1129. The viability of the plaintiff’s constitutional claim in that case did not depend on an antecedent legal determination that the plaintiff had a "legitimate claim of entitlement” to the permit. Rather, the court held that the jury must determine whether the interference with the plaintiff’s right to build on his land was occasioned by a legitimate permit requirement or *115by an illegitimate use of governmental power by the issuing body.17
Some federal courts, however, have augmented the Bello analysis with the preliminary inquiry whether the plaintiff had established the existence of a state-created liberty or property right entitled to federal constitutional protection. See, e.g., Scott v Greenville Co, 716 F2d 1409, 1418 (CA 4, 1983) (the applicant’s interest in a building permit was protected); Rymer v Douglas Co, 764 F2d 796, 801 (CA 11, 1985) (real property); Yale Auto Parts v Johnson, 758 F2d 54, 58 (CA 2, 1985) (there was no property interest in a certificate of use to operate a junkyard); Sullivan v Town of Salem, 805 F2d 81, 84 (CA 2, 1986) (there was a protectible interest in a certificate of occupancy); Dean Tarry Corp v Friedlander, 826 F2d 210 (CA 2, 1987); RRI Realty Corp v Village of Southampton, 870 F2d 911 (CA 2, 1989) (wide discretion to deny a permit under local law defeated a claim of property interest). See also Wilkerson v Johnson, 699 F2d 325, 328 (CA 6, 1983) (the applicant’s interest in a barber’s license was protected); Packish v McMurtrie, 697 F2d 23, 25 (CA 1, 1983) (there was no protectible interest in indemnification for injuries).
If such a preliminary inquiry into the existence of a constitutionally protected interest were required in this case, it would be of paramount importance in describing Electro-Tech’s interest in building on its land to determine whether that *116interest should be treated as a property or liberty interest enjoyed by Electro-Tech as an incident of its ownership of the property, or as a government privilege or benefit which did not rise to the level of a constitutionally protected interest until such time as Electro-Tech’s "unilateral expectation” of receiving the permit became a "legitimate claim of entitlement” to it. Bd of Regents v Roth, 408 US 564, 577; 92 S Ct 2701; 33 L Ed 2d 548 (1972). Justice Brennan, dissenting in Nollan, argued that under Ruckelshaus v Monsanto Co, 467 US 986; 104 S Ct 2862; 81 L Ed 2d 815 (1984), the granting of government approval where the property in question is subject to regulation is a government benefit. Nollan, supra, p 860, n 10 (Brennan, J., dissenting). This view was explicitly rejected by the majority.
[T]he right to build on one’s own property — even though its exercise can be subjected to legitimate permitting requirements — cannot remotely be described as a "governmental benefit.” And thus the announcement that the application for (or granting of) the permit will entail the yielding of a property interest cannot be regarded as establishing the voluntary "exchange,” that we found to have occurred in Monsanto. [Id., p 834, n 2. Citation omitted.]
Thus, it was immaterial in Nollan whether the Nollans had presented a legitimate claim of entitlement to the building permit. Presumably, such a showing could not have been made, since the Court was willing to assume that the California Coastal Commission enjoyed broad enough discretion to have denied the Nollans’ request for a permit altogether. Id., p 835.
In my opinion, Nollan compels the conclusion that Electro-Tech’s right to improve its property *117subject to legitimate permitting requirements18 was violated by the city’s admittedly illegitimate imposition of the dedication condition.19 The dispute between the parties whether Electro-Tech actually complied with the four remaining contingencies need not be resolved in light of Nollan.
Because Nollan makes clear that the right to build on one’s property is not to be treated as a government benefit, it is puzzling that some courts have continued to apply the government benefit/ entitlement analysis in similar cases after the Supreme Court’s decision in Nollan and without mentioning that case. See Carolan v Kansas City, 813 F2d 178 (CA 8, 1987); Spence v Zimmerman, 873 F2d 256 (CA 11, 1989); RRI Realty, supra. In RRI Realty, the court, without reference to Nollan, considered itself bound by pre-Nollan Second Circuit precedent to apply a government benefit/entitlement test in a land use permit case; it nevertheless questioned the wisdom of this type of inquiry:
It is not readily apparent why land regulation cases that involve applications to local regulators have applied the Roth entitlement test to inquire whether an entitlement exists in what has been applied for — whether a zoning variance, a business license, or a building permit — instead of simply recognizing the owner’s indisputable property interest in the land he owns and asking whether local government has exceeded the limits of substantive due process in regulating the plaintiff’s use of his property by denying the application arbitrarily and capriciously. [RRI, supra, p 917.]
These cases, however, do not change the fact *118that Nollan has eroded the applicability of the entitlement analysis in this context. Moreover, many courts in addition to Bello, both before and after Nollan, have not applied such an analysis. See Herrington, supra; Scudder v Town of Greendale, 704 F2d 999 (CA 7, 1983) (building permit); Neiderhiser v Borough of Berwick, 840 F2d 213 (CA 3, 1988), cert den 488 US 822; 109 S Ct 67; 102 L Ed 2d 44 (1988) (zoning exemption application); Batch v Town of Chapel Hill, 376 SE2d 22 (NC App, 1989) (subdivision application); Bateson, supra; see also Epstein v Town of Whitehall, 693 F Supp 309 (ED Pa, 1988) (development application).
I conclude that a government benefit/entitlement analysis is not required in this case, and that Electro-Tech’s interest in improving its property subject to legitimate permitting requirements was a property interest protected by the Due Process Clause of the Fourteenth Amendment.
2
The majority concedes, as it must, that the Supreme Court in Nollan explicitly rejected the proposition that the right to improve one’s property should be treated as a government benefit. Ante, p 77, n 22.
The majority then immediately disregards this recent teaching and rejects Electro-Tech’s substantive due process claim on the very ground that Electro-Tech "did not have a legitimate claim of entitlement to the building permit . . . .” Ante, p 77, n 22 (emphasis in original).
In the majority’s view, I have read footnote 2 of Nollan "too broadly.” Id. Clearly, I am not expansively interpreting "the right to build on one’s property . . . subject[] to legitimate permitting requirements” to include some interest broader *119than or different from the right to build on one’s property subject to legitimate permitting requirements. Nollan, supra, p 834, n 2. The majority’s explanation for the alleged overbreadth of my reading of footnote 2, as well as for the inconsistency described above, is, simply, that "Nollan is a taking case.” Ante, p 77, n 22. This explanation includes a tacit acceptance of the incredible proposition that the right to build on one’s property subject to legitimate permitting requirements is only a government benefit when property happens to be discussed in the framework of a Fourteenth Amendment due process claim, but is a property interest when considered in the context of a Fifth Amendment claim. The basic similarity between this case and Nollan, however, is too close to be glossed over by an unspoken, and, in my opinion, unjustified assumption. Despite the majority’s statement that the plaintiffs in Nollan "were entitled to build on their land,” ante, p 77, n 22 (emphasis in original), there is no suggestion in Nollan that the plaintiffs needed to show an entitlement; indeed, there is explicit language to the contrary. Nollan, p 833, n 2.
It may be true that a legitimate entitlement inquiry, when properly undertaken in a true government benefit case, is a question of law. The disposition of such a legal question, however, requires the court to resolve preliminary factual issues. As noted above, Judge Giovan determined that if the dedication requirement had been imposed, then Electro-Tech was deprived of property without due process. See section hi. Had the city challenged Judge Giovan to explain the factual basis of his conclusion of law that Electro-Tech’s right to property had been deprived without due process, Judge Giovan could have justified his conclusion on the basis of the testimony adduced *120at trial. Fred Campbell, president of the construction company with whom Electro-Tech contracted for the erection of Electro-Tech’s building, testified that "as far as our plans and our specifications are concerned, the job met all of those conditions and we were poised to give [Mr. Beauchamp] the service that he expected.”20 The majority offers the unsupported conclusion, however, that the four remaining contingencies "were never satisfied.” Ante, p 77, n 22.21 Assuming, still, that a government benefit analysis were proper, Judge Giovan’s conclusion that Electro-Tech was deprived of property without due process would encompass the conclusion that Electro-Tech had demonstrated an entitlement to build on its land. Because there was support at trial for this conclusion, it cannot be said that Judge Giovan’s conclusion had no basis in fact. The majority is thus reaching out without explanation to resolve a factual matter which Electro-Tech was never called upon to address in detail.
Because the satisfaction of the four legitimate conditions was not a material issue at trial,22 it would be somewhat understandable if the majority explicitly chose to overlook the city’s failure to object to the factual básis of Judge Giovan’s conclusion. Assuming the applicability of a government benefit/entitlement test in this case, the very worst Electro-Tech should have to endure would be a remand to the trial court for further proceedings to determine whether in fact the four conditions *121had been satisfied. Even if I were persuaded that a government benefit analysis were justified, I would nevertheless not be inclined to remand this case. The satisfaction of the four remaining conditions would not have made a whit of difference in the outcome of Electro-Tech’s application. As explained above in the context of the majority’s misdirected finality analysis, which the majority’s equally misdirected government benefit analysis so closely resembles, the plaintiff ought not be put through exercises in futility.
The practical effect of the finality and entitlement analyses endorsed by the majority is to reward obdurate action on the part of a governmental agency aiming to obfuscate or delay permit applications of those, like Electro-Tech, to whom the agency had no intention of granting a building permit under lawful conditions. The majority thus imposes upon the plaintiff the burden of engaging in impractical maneuvers in distant anticipation of litigation which are entirely inconsistent with intelligent business operations and common sense.
B
In light of Nollan v California Coastal Comm, supra, there can be little doubt that the dedication condition imposed by the City of Westland, which deprived Electro-Tech of its right to improve its property, was arbitrary and irrational. The utter absence of any colorable justification for the dedication requirement coupled with the city’s admission on appeal that the city’s actions were "clearly wrong” compel this conclusion.
Like Electro-Tech, the Nollans sought to build on their property. The Nollans wished to demolish a dilapidated bungalow on their beachfront property and replace it with a three-bedroom house. *122The California Coastal Commission, like the City of Westland, approved the landowner’s application on the condition that the landowners consent to a "permanent physical occupation” of a portion of their property. Id., p 832.23 The Court observed that the commission could not simply have required the Nollans to convey the easement without compensation without violating the Fourteenth Amendment. Id., pp 833-834. The Court further acknowledged that a governmental body could impose a permit condition pursuant to its police power if the condition serves the same legitimate purpose as an outright refusal to issue the permit. Id., pp 836-837. With regard to the conveyance requirement imposed by the commission, however, the Court stated:
The evident constitutional propriety disappears ... if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State’s police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the *123building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of ’’legitimate state interests” in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but ”an out-and-out plan of extortion.” [Id., p 837. Citations omitted, emphasis supplied.]
Noting that a governmental entity may not rely on its police power to abridge property rights unless the effect of its action is to substantially advance a legitimate state interest, the Court warned:
We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to [sic] the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police power objective. [Id., p 841.]
While the commission in Nollan attempted to persuade the Court that there were legitimate reasons for imposing the conveyance requirement,24 the City of Westland does not contend that the dedication requirement was justified, for example, by a projected increase in traffic attributable to the expansion of Electro-Tech’s building.25 As in *124Nollan, the city’s "imposition of the permit condition cannot be treated as an exercise of its land use power . . . Id., p 839. As Justice Stevens has explained with regard to substantive due process claims,
the constitutional violation is complete as soon as the prohibited action is taken; the independent federal remedy is then authorized by the language and legislative history of § 1983. [Daniels, supra, p 338 (Stevens, J., concurring)][26]
By arbitrarily forcing Electro-Tech to choose between two constitutionally protected property rights, the city violated Electro-Tech’s right to substantive due process.27
VI
Further comparison of the instant case to Nollan persuades me that Electro-Tech should prevail on its substantive due process claim.
A
In both cases, the government compelled the *125landowners to yield either (1) the right to build on their property (subject to legitimate permitting requirements), or (2) the right not to have their land taken by a permanent physical occupation without just compensation. In Nollan, the imposition of the unconstitutional permit condition forced the Nollans to choose between "surrendering] either a restrictive covenant or a lateral easement over [their] land.”28 Here, the imposition of the dedication requirement by the city after it had approved Electro-Tech’s application offered Electro-Tech a similar Hobson’s choice. The difference between Nollan and this case is not the choice forced upon the landowners by the government, but rather the reaction of the landowners to the government’s extortionate demand. In Nollan, the landowners, faced with a choice of relinquishing one of two constitutionally protected rights, chose not to give up their right to build on their property. While their petition for a writ of mandamus to strike the conveyance requirement was on appeal in the California courts, the Nollans proceeded to raze the bungalow and erect a new house without notifying the commission and without complying with the easement condition.29 They then sought to prevent the government from enforcing the easement requirement, which would have violated their independent right not to have property taken without just compensation, i.e., they sought to be kept whole. The Supreme Court agreed with the Nollans and held that if the government wished to "take” the Nollans’ property, then it would have to give the Nollans just compensation. Thus, Nollan was framed as a "tak*126ing” case, because the condition imposed — which threatened a permanent physical occupation of a portion of the real property — violated the Taking Clause, not because an actual "taking” of the Nollans’ property had already occurred. By analogy, consider a situation in which a city council conditions approval of a parade permit on participants’ consent to unreasonable searches. A participant who refuses to allow such a search may have the condition removed not because the participant was actually subjected to an unconstitutional search, but because the condition violates the Fourth Amendment.
Electro-Tech, however, made the choice opposite to that of the Nollans. Declining to take the bull by the horns, Electro-Tech did not resort to self-help by proceeding with construction without the required building permit, as did the Nollans. By obeying the law and refraining from building without the required permit, Electro-Tech instead refused to relinquish its right not to have its property taken without compensation. Electro-Tech’s insistence on retaining this latter right cost Electro-Tech its independent right to improve its property subject to legitimate permitting requirements.
For these reasons, this case is a due process case while Nollan was not. Nollan was a taking case because the condition the Nollans sought to invalidate violated the Taking Clause of the Fifth Amendment (applied to the states through the Fourteenth Amendment); the instant case is a due process case because Electro-Tech’s refusal to allow a violation of the Taking Clause caused the deprivation of its independent property rights. The Nollans sought to prevent a Fifth Amendment violation; Electro-Tech sought to be made whole for the interference with its right to build on its property, which the jury found to have caused *127Electro-Tech substantial injury. In terms of the aforementioned hypothetical parade permit, unlike the claim of a person seeking to invalidate the search condition, Electro-Tech’s claim is analogous to that of a person seeking redress for harm to First Amendment rights resulting from a refusal to submit to the unconstitutional condition.
Finally, I believe that if the Nollans’ rights could be vindicated despite their defiance of the law (building without the required permit), certainly Electro-Tech should not be punished or subjected to more difficult procedural hurdles for obeying the law and then seeking a remedy (§ 1983) for the unconstitutional deprivation which resulted.
B
I do not believe that the principles recently applied by the Court in Graham v Connor, 490 US —; 109 S Ct 1865; 104 L Ed 2d 443 (1989), require us to employ a Fifth Amendment taking analysis to the exclusion of substantive due process theories in cases involving the regulation of land use.
In Graham, the Court rejected the proposition that claims alleging an excessive use of force by law enforcement officers under § 1983 are governed by a single "generic” standard. Id., 104 L Ed 2d 453. This standard, applied under the title of substantive due process, was not derived from any specific source of constitutional protection. As the Court observed, however, citizens are protected against government conduct amounting to excessive force by three different constitutional provisions. The "reasonableness” standard of the Fourth Amendment guards against the excessive use of force in the course of an arrest or other seizure of a free citizen, whereas the less protec*128tive Eighth Amendment standard applies following conviction. Id., 104 L Ed 2d 457. Pretrial detainees are protected by the Due Process Clause (although the Court left open the possibility that pretrial detainees may also enjoy Fourth Amendment protection). Id., 104 L Ed 2d 455, n 10. Thus, the indiscriminate application by lower courts of the generic excessive force standard without regard to the applicability of any specific constitutional provision (including the Due Process Clause) improperly converted § 1983 into a source of substantive federally protected rights, contrary to the Court’s repeated admonishments that § 1983 is merely a vehicle for "vindicating federal rights elsewhere conferred.” Id., 104 L Ed 2d 454 (citation omitted). The application of the generic excessive force standard by the lower court in Graham was neither derived from, nor compatible with, the Fourth Amendment, which already provided protection against government conduct amounting to excessive force in the course of an investigatory stop. The Court held that all claims of excessive force during the course of "seizures” are to be treated under the Fourth Amendment.
The due process analysis I have undertaken today bears little resemblance to the generic excessive force standard rejected by the Court in Graham. It should be emphasized that Graham does not call into question the viability of substantive due process analyses generally, or in the particular context of excessive force cases. Since pretrial detainees continue to enjoy the protection of the Due Process Clause against the excessive use of force amounting to punishment, id., 104 L Ed 2d 455, n 10, and since the legitimacy of such uses of force do not depend on the "fairness of the procedures used to implement them,” Daniels, supra, p *129331 (emphasis added), the conclusion is unavoidable that the substantive component of the Due Process Clause is a specific source of constitutional protection even in excessive force cases.
The due process theory outlined above is not a generalized or generic theory potentially applicable to any and all government decisions affecting property. Rather, it is called into play only where it is alleged that government conduct amounting to an arbitrary and deliberate abuse of power has caused a deprivation of life, liberty or property. It would be appropriate, for example, to apply the Taking Clause, but not the Due Process Clause, where rational, nonarbitrary governmental actions cause a physical invasion of a landowner’s property; or to apply the Equal Protection Clause, but not the Due Process Clause, where a facially constitutional land use law has the unforeseen effect of discriminating on the basis of race when applied in particular situations.
Not only is the due process theory employed in this case not a generic standard, it is not a free-floating standard unanchored to any specific constitutional provision. In language I have already quoted, the Court has clearly and forcefully stated that the
guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. . . . [T]he Due Process Clause, like its forebear in the Magna Carta . . . was " 'intended to secure the individual from the arbitrary exercise of the powers by government’ ” . . . . [B]y barring certain government actions regardless of the fairness of the procedures used to implement them ... it serves to prevent governmental power from being "used *130for purposes of oppression” .... [Daniels, supra, p 331. Emphasis in original.][30]
On the other hand, the Taking Clause (unlike the Due Process Clause and the Fourth and Eighth Amendments with respect to governmental conduct amounting to excessive force) does not provide "an explicit textual source of constitutional protection against [the] sort of . . . governmental conduct” undertaken by the City of Westland in the instant case. Graham, supra, 104 L Ed 2d 454 (emphasis added).
As its language indicates, and as the Court has frequently noted, [the Fifth Amendment] does not prohibit the taking of private property, but instead places a condition on the exercise of that power. This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. Thus, government action that works a taking of property rights necessarily implicates the "constitutional obligation to pay just compensation.” [First English, supra, pp 314-315. Citations omitted; emphasis in original.]
I reemphasize that the conditions imposed in this case and in Nollan did not effect a taking of property; rather, they threatened a taking. The Taking Clause, however, is not concerned with threats, but with actual uncompensated takings of property.
Any preference for using the Fifth Amendment as the specific constitutional theory of choice in land use regulation cases, to the exclusion of the Due Process Clause, is also questionable as a mat*131ter of constitutional interpretation. As Judge Posner observed in Coniston Corp v Village of Hoffman Estates, supra, p 464:
One might have thought that the takings clause would occupy the field of constitutional remedies for governmental actions that deprive people of their property, and hence that the plaintiffs’ waiver of their takings claim would drag their due process claims down with it. But this is not correct; pushed to its logical extreme, the argument would read "property” out of the due process clause of the Fifth and Fourteenth Amendments.
For these reasons I do not agree that the Taking Clause is the appropriate constitutional vehicle for analyzing Electro-Tech’s § 1983 claim, or that Electro-Tech has shown a "taking” in this case.
VII
I agree with the majority’s conclusion that Electro-Tech was not required to exhaust administrative remedies before bringing a suit under § 1983.
I would squarely reject the city’s contention that Parratt v Taylor, 451 US 527, 541; 101 S Ct 1908; 68 L Ed 2d 420 (1981), should bar Electro-Tech’s substantive due process claim. Parratt, a procedural due process case, addressed negligent, random, and unauthorized acts of low-level state employees and is not applicable in the instant context. See Scott v Greenville Co, supra, p 1421, n 17; Sullivan, supra, p 86; Rutherford v Berkeley, 780 F2d 1444, 1447 (CA 9, 1986); Gilmere v Atlanta, 774 F2d 1495, 1498 (CA 11, 1985).
VIII
I would reverse the decision of the Court of *132Appeals and remand this case to the Court of Appeals in order for it to consider the city’s arguments it did not reach previously, including the city’s argument regarding the adequacy of ElectroTech’s proof of damages, and for further proceedings consistent with this opinion.
Levin and Cavanagh, JJ., concurred with Brickley, J.Nor are such claims restricted to governmental decisions involving land use. See, e.g., Wilkerson v Johnson, 699 F2d 325 (CA 6, 1983) (the right to a barber’s license may not be arbitrarily denied).
For purposes of this opinion, I will generally refer to this type of claim as a "substantive due process claim” and to the type of due process claim described in the preceding paragraph as a "regulatory taking due process claim.”
See also Parratt v Taylor, 451 US 527, 545; 101 S Ct 1908; 68 L Ed 2d 420 (1981) ("there are certain governmental actions that, even if undertaken with a full panoply of procedural protection, are, in and of themselves, antithetical to fundamental notions of due process”). (Blackmun, J., concurring.)
The Court has also reached the merits of a due process claim involving property rights, albeit not in a classic land use case. In PruneYard Shopping Center v Robins, 447 US 74; 100 S Ct 2035; 64 L Ed 2d 741 (1980), the Court considered a claim that a state law permitting individuals to exercise First Amendment rights on the property of a privately owned shopping center effected a denial of property without due process. The Court, relying on Nebbia v New York, 291 US 502, 525; 54 S Ct 505; 78 L Ed 940 (1934), rejected the claim because the law was not unreasonable, arbitrary, or capricious. Robins, supra, pp 84-85.
See also Cryderman v City of Birmingham, 171 Mich App 15, 23-25; 429 NW2d 625 (1988) (following Kropf).
Judge Giovan further stated:
Plaintiffs here were complaining of a very specific act, and whether that act, if done by the City, did violate Section 1983 is a question of law. It can’t be a question of fact. . . . [I]t’s my determination that if they did impose that condition, that it is not a legitimate condition; it’s an illegal one, and did deprive them of the right of property without due process.
Judge Giovan made these observations in response to the city’s request that the jury be instructed that a violation of state law in and of itself is not sufficient to establish liability under § 1983. While I agree with Judge Giovan’s conclusions, see the discussion of Nollan in section v(b), I note here that the city did not challenge Judge Giovan on the record to specify either the precise source of the constitutional violation or the precise property right violated. The city’s only request directly addressing a particular constitutional provision was that the jury be instructed that due process imposes a shocking-to-the-conscience standard. Judge Giovan properly declined to so instruct the jury.
The unconstitutionality of the dedication condition is discussed in section v(b).
If, for example, the city council had instead imposed the equally unconstitutional condition that Electro-Tech contribute $1,000 to a local political party, Electro-Tech would not be required to show that it actually paid $1,000 to the party.
I observe, however, that the requirements applied in Herrington— a rejected development plan and an application for a variance — did not present an obstacle there because the plaintiff’s attempt to comply therewith would have been futile. Id., 857 F2d 569. Assuming arguendo the applicability of the Herrington requirements in the instant case, it is clear that further efforts by Electro-Tech to secure a permit without dedicating their land would have been futile.
Q. In what position are you employed there?
A. I’m the Building Director.
A. I’m responsible for all the building and construction, electrical, plumbing, hearing coordinates, zoning, everything that goes on within the City for building.
Q. Can you tell the jury, as far as building and requirements *108for building, who forms the policies of the City of Westland in making restrictions, contingencie [sic] and things of that nature?
A. It’d either be zba, Planning Commission or City Council.
Q. Is there any time since you’ve been the Building Director that various departments within the City have gotten together to form a policy on what you would require for buildings in your city?
A. We are — we are fully a recommending body. We are not a decision body. We recommend, but we do not make the final decision.
Q. We is [sic] . . .
A. ... is the Building, Engineering or Planning.
Q. The Building Department, the Engineering Department, the Planning Department, they’re all recommending bodies.
A. They’re recommending bodies.
Q. And the ultimate decision in the City is made by whom?
A. The zba, Planning Commission or the City Council.
Q. All three of those bodies have to make the decision?
A. No, not all of them.
Q. Any one of the three or how does that work?
A. Either all three of them, possibly two of them, possibly just one of them.
Q. Under the circumstances surrounding this particular case though, July 11th, 1979, the Council voted on a resolution to approve the site plan contingent upon certain things including dedicating a portion of the property. Approximately two weeks later you became the Building Director of the City of Westland. Is that not true?
A. That’s true.
Q. Based on [sic] that resolution, when the owner of ElectroTech wanted to proceed in order to obtain his building permit, he would still have to go through your — through the department that you were director of at that time?
A. Correct.
Q. Okay. At that time under those particular circumstances if a contingency was placed that you felt was wrong or improper because the City Council had made that resolution, would you enforce it as the Building Director for the City of Westland?
A. Yes.
*109Q. Whether that’s right or wrong in your opinion?
A. Yes. . . .
Q. Just in follow-up to the last question you were asked, when those contingencies are placed on a site plan is it your responsibility to question those?
A, No. To question the restrictions?
Q. The contingencies?
A. The contingencies, no. No.
Q. If the Planning Department in your city places a contingency, such as the dedication of 27 feet of property, in order to get a building permit and the City Council approves that and adopts that recommendation; will the Building Department issue a building permit if that 27 feet is not dedicated or that portion of the property is not dedicated?
A. No sir ... .
Ante, p 84.
Ante, p 85.
See n 16.
Westland did move for a directed verdict, but it did not do so on grounds of inadequate evidence of causation (let alone a lack of a "final” decision by the Westland building department). Rather, West-land, citing Monell, supra, argued that more than one instance of unconstitutional wrongdoing is necessary in order to find the official policy or custom required for municipal liability under § 1983. The trial judge responded by quoting directly from Monell:
"That consideration is absent altogether where the wrong done, if done at all, is done by the municipal decision makers themselves.”
And that’s exactly what we have here .... And no less a body than the City Council itself. Here’s a City Council acting in an official capacity imposing this condition for granting a building permit. There couldn’t be a clearer example of municipal decision making by the decision makers themselves, the highest legislative authority that the City had. There could not be a clearer expression of their own decision making policy. This is not an attempt to impose liability on the City [on the basis of acts] by some low level individual employee, who in some random act violates someone’s civil rights. This is virtually the City itself, if it was wrong at all, making a clearly of a clear [sic] legislative or executive decision, whichever you want to call it, affecting the Plaintiff’s rights.
The defendant also argued on its motion for directed verdict that Electro-Tech’s means of proving damages were inadequate. The latter issue was presented on appeal in the Court of Appeals, which found it unnecessary to issue a ruling on the issue.
I thus find Chiplin Enterprises, Inc v City of Lebanon, 712 F2d 1524 (CA 1, 1983), relied on by the city and the Court of Appeals, of no help to the city. In light of Bello and Nollan, discussed in subsection b, below, Chiplin’s assertion that an improperly motivated, bad-faith refusal to follow state law in denying a building permit raises no more than a matter of local concern is questionable. Chiplin, pp 1527-1528. So, too, is its conclusion that such action does not involve the abridgement of "fundamental constitutional rights . . . .” Id., p 1528, quoting Creative Environments, Inc v Estabrook, 680 F2d 822 (CA 1, 1982), cert den 459 US 989 (1982).
In my opinion, this right clearly rises to the level of a property interest under state law.
I decline to express an opinion regarding the applicability of Roth-based government benefit analyses to cases involving more than the right to build on one’s own property.
Mr. Campbell also stated that he had never encountered a situation where it was impossible to obtain a building permit in his fifty-five years of experience.
I note that the Court of Appeals found that "[t]he city council approved the site plan subject to five contingencies, all of which were met except for the dedication.” Electro-Tech, 161 Mich App 624-625 (emphasis added).
On appeal, the parties dispute this issue.
In Nollan, the commission required merely an easement across the Nollan’s property, whereas the City of Westland demanded that Electro-Tech give away the entirety of its interest in the twenty-seven-foot parcel.
See Nollan, supra, pp 845-847 (Brennan, J., dissenting).
I express no opinion concerning the burden a local governmental body must sustain in order to justify a dedication requirement along these lines. I observe that Nollan not only found the conveyance requirement in that case to be unconstitutional because it did not serve the same purpose as a flat prohibition on development, Nollan, *124supra, p 836, it also interpreted the constitution to require "that the regulation 'substantially advance’ the 'legitimate state interest’ sought to be achieved, . . . not that 'the State "could rationally have decided” the measure adopted might achieve the State’s objective.’ ” [Id., p 834, n 3. Citations omitted.]
See also Rutherford v Berkeley, 780 F2d 1444, 1447 (CA 9, 1986); Bateson v Geisse, supra, p 1303.
The majority offers the unsupported assertion that this case was "tried ... on a regulatory taking due process theory” because "[t]here was no instruction relating to substantive due process or to the 'arbitrary’ or 'unreasonable’ nature of the council’s dedication requirement.” Ante, p 77. Because the city offered no justification whatsoever for the dedication requirement, there were no questions of fact for the jury to resolve regarding the arbitrary and irrational nature of this condition. Judge Giovan recognized this when he concluded that Electro-Tech’s property rights had been violated as a matter of law given the imposition of the dedication condition. Thus, I do not agree with the majority’s reasoning or result on this issue.
Epstein, Takings: Descent and resurrection, 1987 Supreme Ct R 1, 41.
Nollan, pp 828-829.
See also n 3.