¶ 56. (dissenting). A commentator recently described the takings jurisprudence of the U.S. Supreme Court as "a top contender for the dubious title of 'most incoherent area of American law.' "1 Without any acknowledgment of the unsettled nature of takings *644law and without reasoned analysis or explanation, the majority opinion today extends the law of temporary takings into new, uncharted spheres.
¶ 57. The law is undisputed in Wisconsin that the state must compensate for temporary takings. Zinn v. State, 112 Wis. 2d 417, 334 N.W.2d 67 (1983). The question is whether this case fits within the cases relating to temporary takings.2
¶ 58. The majority opinion overturns Wisconsin precedent3 on the basis of First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987). But the majority is extending First English beyond its express holding. In First English, the U.S. Supreme Court allowed a temporary takings claim to proceed to trial with the allegation that an invalid ordinance imposing a moratorium on building in a flood protection area had denied the plaintiff all use of its property for many years. The U.S. Supreme Court, however, very carefully confined its holding to the facts *645of the case, namely that an ordinance later declared invalid had denied the plaintiff all use of property.4
¶ 59. The U.S. Supreme Court was careful to distinguish the facts in First English from the facts presented in the instant case. In First English, the U.S. Supreme Court cautioned that a normal delay in obtaining permits, variances and the like, was quite a different question. The U.S. Supreme Court limited its holding as follows: "We limit our holding to the facts presented, and of course do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which are not before us."
¶ 60. The holding in First English is distinguishable from the situation before us. I would follow the courts that limit First English to its facts. In each of these cases, as in the present case, an administrative body refused to allow the landowner’s requested use. Thereafter a court overturned the administrative decision and allowed the use requested. See, e.g., Landgate, Inc. v. California Coastal Commission, 953 P.2d 1188, 1204 (Cal.), cert. denied, 199 S. Ct. 179 (1998) (a delay resulting from a regulatory agency's error in denying an application for building that was corrected on appeal is not a temporary taking); Chioffi v. City of Winooski, 676 A.2d 786, 788 (Vt. 1996) (board's improper denial of permit not a temporary taking); Smith v. Town of Wolfeboro, 615 A.2d 1252, 1257 (N.H. 1992) (board improperly applying ordinance is not a taking); Stoner v. Township of Lower Merion, 587 A.2d *646879, 886 (Pa. Commw. Ct. 1991), appeal denied, 604 A.2d 252 (1992) (compensation for temporary taking available only for taking effected by legislation or rule of continuing effect, not for withholding approval under ordinance allowing reasonable use of land); Lujan Home Builders, Inc. v. Town of Orangetown, 568 N.Y.S.2d 850, 851 (Sup. Ct. 1991) (board's refusal to approve plat not a taking in substantive constitutional sense).5
¶ 61. In all of these cases, the courts refused to view the relatively short time between the application and ultimate government approval of the application *647as a temporary taking. Each of these cases hold that regulatory delay inherent in the statutory process of obtaining agency permits and approvals, including an appeal to a court, is part of the regulation of land use and does not normally give rise to a temporary takings claim.
¶ 62. The result reached by the majority opinion interferes with the balancing of policies underlying our system of permits and approvals by agencies. The permit process is imposed on the public as a whole to ensure the orderly development of real property, simultaneously benefiting and burdening property owners. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Short of that, the government retains the ability, in furtherance of the interests of all citizens, to regulate uses of land. It is only when government regulation goes too far that there is an unconstitutional taking.
¶ 63. I am not persuaded that delays in the development of property that are occasioned by administrative proceedings are compensable as takings, except perhaps in the most unusual circumstances. A simple mistake in governmental deci-sionmaking for which a review remedy is available should not ordinarily constitute a temporary taking. I am convinced that the public interest in having important land use decisions made in an orderly way justifies a temporary burden on a land owner. This burden is the inevitable by-product of democratic government.
¶ 64. In my opinion, the facts alleged in this case demonstrate nothing more than an ordinary delay associated with the usual process for obtaining such a permit, rather than a matter of constitutional magni*648tude. Here, the Dane County Board of Adjustment denied the special exception permit and the circuit court subsequently reversed that denial. The permit process, which includes appeal and review, worked in its intended fashion and the plaintiffs received the special exception permit they sought 14 months after applying for it.
¶ 65. I hope that the majority opinion does not induce government officials and boards to avoid making decisions for fear that the decisions might later be challenged and give rise to lawsuits for damages.
¶ 66. I also write to state my unease with certain facts indicating that the plaintiffs may have contributed to the circumstances giving rise to the damages they claim. On January 20, 1995, the plaintiffs petitioned the Board for a special exception permit. On February 17,1995, prior to obtaining the permit, plaintiffs sold Lot 1 under a sales agreement that required the plaintiffs to secure all necessary permits, including the special exception permit for constructing the driveway. On July 27,1995, after a series of public hearings at which the plaintiffs presented detailed plans for construction of the driveway, the Board voted 4 to 1 to deny the permit. Subsequently, the purchasers filed a suit seeking rescission of the sales contract, which the plaintiffs settled at an amount that constituted a $20,000 loss. On September 6, 1996, the circuit court, on certiorari review, reversed the Board's denial of the permit.
¶ 67. On these facts, it appears that the plaintiffs most likely would have avoided most, if not all, losses if they had obtained the special exception permit before beginning construction. Instead, the plaintiffs took a calculated business risk founded upon their expectation that they would obtain the permit.
*649¶ 68. In sum, I view the Dane County Board of Adjustment's denial of the special exception permit as falling within the realm of the ordinary processes of governmental decisionmaking and the losses claimed by plaintiffs as falling within the realm of the ordinary risks attendant to the business of real estate development. Accordingly, I agree with the circuit court and would hold that plaintiffs have failed to state a takings claim upon which relief can be based under Article I, section 13 of the Wisconsin Constitution.
¶ 69. For the stated reasons, I dissent.
Jeanne L. Schroeder, Never Jam To-day: On the Impossibility of Takings Jurisprudence, 84 Geo. L.J. 1531, 1531 (1996) ("A LEXIS search will produce hundreds of recent articles attempting to reconcile, critique, or condemn Supreme Court takings jurisprudence or to justify, reinterpret, or re-imagine the underlying theory of property.")
The Zinn case is distinguishable from this case. In Zinn the Department of Natural Resources issued a declaratory ruling under Wis. Stat. § 227.06 (1975) and later rescinded the ruling. As a result of the initial declaratory ruling, title to Zinn's property was transferred to the state. As a result of the later rescission, title to the land was transferred back to Zinn. This court concluded: "It is difficult to conceive of a greater restriction on the property, in the absence of actual physical occupancy, than the loss of title to private land. We find that the allegations of the complaint, which demonstrate that the plaintiff temporarily lost title to her land to the state, are sufficient without more to allege a constitutionally compensable taking." Zinn, 112 Wis. 2d 417, 427, 334 N.W.2d 67 (1983). Under those circumstances, this court held there was a temporary taking.
See Reel Enterprises v. City of La Crosse, 146 Wis. 2d 662, 677, 431 N.W.2d 743 (Ct. App. 1988), citing MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 348 (1983).
Ultimately it was held that there was no taking in First English. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 258 Cal. Rptr. 893 (Cal. App. 1989), cert. denied, 493 U.S. 1056 (1990).
In contrast, the majority opinion cites no case, either federal or state, that has held that a denial of a permit or other agency approval that is reversed on appeal constitutes a temporary taking. Instead, the majority opinion refers to two recent U.S. Supreme Court cases. In both cases, unlike in this case, the landowners were ultimately denied their request to develop the land. These two cases do not fall within the limiting language in First English. Neither is applicable to the case at hand.
First, Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997), a ripeness case, is not a temporary taking case; First English is not even cited by the Suitum Court.
Second, in City of Monterey v. Del Monte Dunes at Monterey, Ltd., No. 97-1235, 1999 WL 320798 (U.S. May 24, 1999), five years elapsed and the City rejected 19 different site plans. The governmental unit denied the landowner's final development plan, denied just compensation and did not provide an adequate forum for seeking just compensation for this alleged taking. During the case the City bought the property in question. This was a § 1983 case and most of the discussion in the U.S. Supreme Court opinion involves the right to jury trial. First English is cited in the Del Monte Dunes opinion merely for the proposition that when a government condemns property for public use, it must provide a forum for seeking just compensation and provide just compensation if there is a taking.