Plaintiff-appellant applied to the City of Westland for permission to construct a manufacturing plant on its property. In exchange for site-plan approval and a subsequent building permit, the city council demanded the dedication of a strip of land adjacent to Newburgh Road for an unrelated road-widening project. Although the plaintiff repeatedly requested that the council remove the restriction, it did not appeal the council’s decision to a higher city authority. Nor did the plaintiff attempt to have the restriction lifted by way of a circuit court injunction or declaration.

At a council meeting on June 11, 1979, the council approved the plaintiff’s site plan subject to five stated conditions, one being the dedication of land. The plaintiff refused to give away its property and submitted no revised site plan. Thus, the *61proposed building was never erected. However, the City of Westland, through formal condemnation proceedings, eventually acquired the strip of land abutting Newburgh Road.

Later, the plaintiff brought an action against the city under 42 USC 1983, alleging that the city "took” its property without just compensation and without due process of law in violation of the Fifth and Fourteenth Amendments. We are asked, in this case, to determine whether this property owner is entitled to recover damages under 42 USC 1983 for the alleged taking caused by the "wrongful” denial of a building permit. Accordingly, we must first determine the procedural prerequisites for such an action and whether this plaintiff has met them.

We hold that before proceeding under 42 USC 1983, a property owner must first obtain a final decision from the particular governmental entity that is alleged to have unconstitutionally taken his property and also attempt to obtain just compensation through inverse condemnation. In the instant case, because the conditional approval of the plaintiff’s site plan was not the city’s final disposition of the matter, we hold that the plaintiff’s § 1983 claim was not ripe for adjudication. We need not reach, therefore, the question whether the council’s actions actually constituted a "taking” within the meaning of the Fifth and Fourteenth Amendments. We affirm the decision of the Court of Appeals that the trial court erred in permitting the plaintiff to proceed to trial on its § 1983 claim.

I. FACTS AND PROCEEDINGS

Plaintiff-appellant, Electro-Tech, Inc., manufactures electrical and electronic products. Much of *62Electro-Tech’s business involves contracts with the United States military. The company’s manufacturing facility is located on Newburgh Road in the City of Westland.

Mr. Jack Beauchamp is the president and sole shareholder of Electro-Tech. In anticipation of securing additional contracts with the government and in order to more efficiently complete existing contracts, Mr. Beauchamp decided to build another manufacturing plant directly behind the existing facility. On October 26, 1978, Electro-Tech contracted with defendant, H. F. Campbell Company, to construct the new building. Pursuant to the agreement, Campbell was obligated to obtain a building permit and to complete construction by February 13,1979.

On or about March 3, 1979, Mr. Beauchamp approved Campbell’s site plan. However, before obtaining a building permit and actually beginning construction, Campbell was required to submit its plan for review by various city departments. The recommendations of these departments are then submitted to the planning commission for initial site-plan approval. The planning commission thereafter makes its recommendation to the city council for approval. After a site plan passes the council, the matter is finally submitted to the building department. The building department then examines the final site and building plans and, if approved, issues a building permit.1

On February 21, 1979, representatives of the various departments met to discuss Campbell’s proposed site plan. At that meeting, the representatives compiled a list of thirteen items which were required to be included in the site plan before submission to the planning commission and *63city council. This list was forwarded by letter to Mr. Richard Wagner, the project director for Campbell. Although not included in the list, a recommendation was apparently made at this meeting to require, in exchange for site-plan approval and a subsequent building permit, the dedication of a twenty-seven-foot strip along the front of Electro-Tech’s property for the widening of Newburgh Road.2 The instant lawsuit concerns this dedication requirement.

On March 22, 1979, Mr. Wagner received a letter stating that the planning commission would recommend that the city council approve the site plan contingent upon, among other things, ElectroTech’s dedication of the strip adjacent to New-burgh Road. At trial, Mr. Beauchamp testified that, during the spring of 1979, he attended four or five council meetings protesting the city’s demand.

Nonetheless, at a meeting on June 11, 1979, with Mr. Beauchamp in attendance, the city council approved the site plan, subject to five stated contingencies:

1) Loading area should be clearly designated as such by striping and signage.

2) A second access door in the new addition is required along the north side of the building for fire protection.

3) Fire and Engineering requirements must be met on final engineering and building plans.

4) Dedication of 27 feet wide, approximately 210 feet in front of K2da for future Newburgh Road right-of-way.

5) The front greenbelt area is to be graded and sodded. [Emphasis added.]_

*64Neither Campbell nor Electro-Tech attempted to appeal3 the decision of the city council or to take the matter directly to the building department. It is also established that Electro-Tech did not attempt to have the dedication condition removed by way of a circuit court injunction or declaration.

Soon after the meeting of June 11, however, Campbell began making revisions to the site plan to comply with the requests of the city council. Plaintiff claims that all of the contingencies except for the dedication were met. However, evidence adduced at trial suggests that Campbell never submitted a final site plan to the council or to the building department (which is ultimately responsible for issuing the building permit) and was, in fact, still revising through September of 1979.

Because of its failure to procure site-plan approval and a subsequent building permit, Campbell could not proceed with the construction of Electro-Tech’s new plant. Without the additional work space, Electro-Tech alleged it could not bid on several upcoming contracts and was forced to subcontract work on existing contracts in order to meet government deadlines.

On October 15, 1979, the City of Westland sent Electro-Tech a letter offering to purchase the strip of land abutting Newburgh Road. Mr. Beauchamp rejected the initial offer, maintaining that the proposed purchase price was too low. In January of 1980, the city filed a condemnation action in Wayne Circuit Court.4

On May 21, 1982, Electro-Tech brought this *65action against the City of Westland,5 alleging that the city’s "extortionary” demand and "wrongful” denial of the building permit violated both state and federal law. At the pretrial motions for summary disposition, the trial court dismissed ElectroTech’s state claims as being barred by governmental immunity.

On June 11, 1985, Electro-Tech proceeded to trial on its claim under 42 USC 1983. The jury returned a verdict in favor of Electro-Tech in the amount of $433,052. On July 9, 1985, the city moved for judgment notwithstanding the verdict, which was denied by order entered July 23, 1985.

The city appealed, raising four issues. Reaching only the first, the Court of Appeals reversed, holding that the trial court erred in permitting Electro-Tech to proceed to trial under 42 USC 1983.6 Specifically, the Court of Appeals stated "that no violation of constitutional or federal law exists where plaintiff has merely been erroneously denied initial site approval and a building permit by a city council. Plaintiff must look for a review of that decision within the state.” 161 Mich App 622, 629; 411 NW2d 800 (1987).

On March 22, 1988, we granted leave to appeal limited to the issue whether the plaintiff’s judgment under 42 USC 1983 should be reinstated.7

II. DISCUSSION

Section 19838 provides a civil remedy to persons *66deprived of constitutional rights by individuals acting under color of state law. In Parratt v Taylor, 451 US 527; 101 S Ct 1908; 68 L Ed 2d 420 (1981), a state prison inmate lost a mail-order hobby kit, valued at $23.50, when a prison official negligently handled the prison mail. The inmate brought a § 1983 action, claiming a deprivation of his property without due process of law in violation of the Fourteenth Amendment.9 In deciding the fate of the respondent’s claim, the United States Supreme Court stated:

[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this *67conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. [451 US at 535. See also Collier v City of Springdale, 733 F2d 1311, 1313 (CA 8, 1984), cert den 469 US 857 (1984).]

As in Parratt, the Westland City Council here was undoubtedly acting in its official capacity and, therefore, "under color of state law.” Our analysis, therefore, focuses, as it did in Parratt, on whether the plaintiff has been denied a right, privilege, or immunity secured by the United States Constitution.10

In its fourth amended complaint, upon which this case was tried, Electro-Tech alleged that the city council’s refusal to approve its site plan and building permit violated its rights to just compensation11 and due process12 under the Fifth and Fourteenth Amendments. The Court of Appeals ruled that Electro-Tech could not maintain an action under § 1983, concluding that no constitutional violation exists "where plaintiff has merely been erroneously denied initial site approval and a *68building permit by a city council. Plaintiff must look for a review of that decision within the state. It is a review of the city’s decision and not tort remedies which we point out to plaintiff.” 161 Mich App 629.

While we are in agreement with the result reached by the Court of Appeals, we believe that its analysis is flawed by the blurring of what we believe should be three distinct inquiries: the existence of a constitutional violation, exhaustion of state administrative remedies, and ripeness. The issue whether Electro-Tech was actually deprived of its property in violation of the Fifth and Fourteenth Amendments is distinct from the issues whether Electro-Tech was required to exhaust state administrative remedies before proceeding under § 1983 and whether the city’s decision regarding Electro-Tech’s property was final and, thus, judicially reviewable. We will, therefore, treat these inquiries separately.

A. CONSTITUTIONAL VIOLATION

1. REGULATORY TAKING

According to the Supreme Court of the United States, a taking may occur where a governmental entity exercises its power of eminent domain through formal condemnation proceedings, see, e.g., Berman v Parker, 348 US 26; 75 S Ct 98; 99 L Ed 27 (1954) (Fifth Amendment taking), or where a governmental entity exercises its police power through regulation which restricts the use of property, see Pennsylvania Coal Co v Mahon, 260 US 393, 415; 43 S Ct 158; 67 L Ed 322 (1922) (this claim may be framed as a Fifth Amendment taking or as a Fourteenth Amendment "due process” type taking). It is well established that land use regulation does not effect a taking if it "substan*69tially advance[s] legitimate state interests” and does not "den[y] an owner economically viable use of his land.”13 Agins v Tiburon, 447 US 255, 260; 100 S Ct 2138; 65 L Ed 2d 106 (1980). See also Keystone Bituminous Coal Ass’n v DeBenedictis, 480 US 470; 107 S Ct 1232; 94 L Ed 2d 472 (1987); Penn Central Transportation Co v New York City, 438 US 104; 98 S Ct 2646; 57 L Ed 2d 631 (1978). Regulation that "goes too far . . . will be recognized as a taking.” Pennsylvania Coal, supra, p 415.

The plaintiff in the instant case relies on two recent decisions of the United States Supreme Court to support its contention that the actions of the Westland City Council constituted a "taking” of property in violation of the Fifth and Fourteenth Amendments. In First English Evangelical Lutheran Church of Glendale v Los Angeles Co, 482 US 304; 107 S Ct 2378; 96 L Ed 2d 250 (1987), the Court held that where a land-use regulation effects a "taking” of all use of property, the Just Compensation Clause of the Fifth Amendment requires payment to the property owner even where the intrusion was only temporary.

The plaintiff, in First English, owned and operated a campground for handicapped children. In 1978, when a flood destroyed the facility and much of the surrounding area, Los Angeles County passed an interim ordinance prohibiting any reconstruction in the flood area. The church then brought an inverse condemnation suit in state court, claiming that the ordinance denied the plaintiff of all use of its property. _

*70The county moved successfully to strike the claim on the ground that the only relief available was a declaration that the ordinance was invalid or a writ of mandamus specifically permitting the proposed use of the land. Agins v Tiburon, 24 Cal 3d 266; 157 Cal Rptr 372; 598 P2d 25 (1979), aff'd on other grounds 447 US 255; 100 S Ct 2138; 65 L Ed 2d 106 (1980). The Supreme Court, however, recognizing the inherent unfairness of applying the Agins rule to the church’s cause of action, held that "where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.” First English, supra, p 321.14

Electro-Tech contends that First English is analogous to the instant case because the city council’s imposition of the improper dedication requirement resulted in its temporary failure to obtain a building permit. Thus, like Los Angeles County’s flood ordinance, Electro-Tech argues that the council’s condition here "worked a taking of all use of [the plaintiff’s] property” and that no "subsequent action” by the City of Westland, not even the eventual condemnation of the twenty-seven-foot parcel, "can relieve it of the duty to provide compensation *71for the period during which the taking was effective.” Id.

Recognizing the similarities between First English and the instant case, it should be noted that the First English Court expressly declined to address "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 . . . .” Id., p 321.

Two weeks after First English was decided, the Court decided Nollan v California Coastal Comm, 483 US 825; 107 S Ct 3141; 97 L Ed 2d 677 (1987), a case factually similar to the one before us today. In Nollan, the coastal commission issued the plaintiffs a permit to rebuild their beach house upon the condition that they allow the public an easement across their beach. The plaintiffs sued the commission in state court bn the ground that the condition constituted a taking.15 The Supreme Court agreed, reasoning that the commission’s imposition of the easement condition was not a valid land-use regulation since it did not serve public purposes related to the permit requirement. For example, although the state is authorized to pursue its comprehensive public-access program by exercising its eminent domain power and paying for such easements, it cannot compel coastal residents to give away their property in furtherance of that goal. In other words, "if [California] wants an easement across the [plaintiffs’] property, it must pay for it.” Id., p 842.

In Electro-Tech’s view, Nollan is also dispositive of the constitutional issue before this Court today. According to the plaintiff, the dedication condition *72here, like the easement condition in Nollan, does not serve any public purpose related to the building permit requirement. Electro-Tech’s plans to expand its manufacturing facility are in no way related to the city’s plans to widen Newburgh Road. Thus, although Westland is authorized to pursue the goals set forth in its master plan, i.e., the expansion of Newburgh Road, it cannot, within the confines of the Fifth Amendment, compel nearby landowners to give away their property in realization of that goal.

On the basis of First English and Nollan, Electro-Tech argues that the City of Westland "took” its property in violation of the Fifth and Fourteenth Amendments. Accordingly, Electro-Tech contends that it has properly asserted a claim for damages against the city under § 1983.16 The city, on the other hand, argues that there was no "taking” because it did in fact condemn and pay Electro-Tech for the twenty-seven-foot strip of land adjacent to Newburgh Road._

*73Having reviewed the record in this case, we find that the "taking” involved in the § 1983 action is different than the "taking” involved in the city’s condemnation action. The subject of the § 1983 suit is the property upon which Electro-Tech intended to build, while the subject of the condemnation suit was the twenty-seven-foot parcel abutting Newburgh Road.

We agree, on the basis of Nollan, that had the city actually enforced the dedication requirement, a "permanent physical occupation” of ElectroTech’s land (i.e., the twenty-seven-foot parcel) would have resulted.17 We note, however, that the city eventually paid Electro-Tech for this parcel'of land. Similarly, in Nollan, a permanent physical invasion of the plaintiff’s property (i.e., the land upon which the public easement was to be placed) did not occur because the commission’s threatened action never came about. The Nollan Court simply held that the easement condition did not advance any legitimate state interest. Id., p 841.18_

*74We acknowledge the obvious similarities between Nollan and the instant case.19 Nollan, however, is procedurally distinguishable from the instant case because ripeness (finality) was never an issue there. Unlike the city council in the instant case, the commission in Nollan apparently placed only one condition, albeit improper,20 on the issu*75anee of the building permit. Thus, the plaintiffs there had no further steps to go through before coming to court to contest the improper condition. In the instant case, the council had imposed, in addition to the improper dedication requirement, four "valid” conditions on the issuance of the permit. Because Electro-Tech failed to remedy these valid requirements or to submit a revised site plan evidencing compliance therewith, it was unclear whether or how much the improper condition interfered with the owner’s investment-backed expectations. Electro-Tech’s claim, therefore, was not ripe for review. See discussion of Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, 473 US 172; 105 S Ct 3108; 87 L Ed 2d 126 (1985), in section n(c).

Because we conclude in section n(c), that the City of Westland had not made a final determination regarding the disposition of Electro-Tech’s property, we need not decide at this time whether Electro-Tech has established an unconstitutional taking.

2. SUBSTANTIVE DUE PROCESS

Justice Brickley asserts that a property owner like Electro-Tech may "advance a [substantive] due process claim separate and distinct from the regulatory taking due process claim” discussed in this opinion. Post, p 94. Justice Brickley contends that Electro-Tech has, in the instant case, established "arbitrary] and capricious[ ]” action on the part of the city council in imposing the dedication condition in violation of the Due Process Clause of the Fourteenth Amendment. Id., p 92.

In support of these assertions, Justice Brickley relies on Nollan, supra, and Daniels v Williams, 474 US 327, 337; 106 S Ct 662; 88 L Ed 2d 662 *76(1986). In our view, Justice Brickley mistakenly relies upon Daniels to support the alleged constitutional violation in the instant case. In Daniels, the plaintiff, a state prison inmate, claimed that he was deprived of due process when he slipped and fell on a pillow left on the jail stairs by a prison guard. The Court held that the Due Process Clause is not implicated by a state official’s negligent act causing unintended loss of or injury to life, liberty, or property. Id., p 328.

Unlike Daniels, the instant case involves a land use restriction. We recognize that at least two federal circuits have employed substantive due process in analyzing similar land use restrictions. See, e.g., Bateson v Geisse, 857 F2d 1300 (CA 9, 1988); Bello v Walker, 840 F2d 1124 (CA 3, 1988), cert den 488 US 868; 109 S Ct 176; 102 L Ed 2d 145 (1988). But see Chiplin Enterprises, Inc v City of Lebanon, 712 F2d 1524 (CA 1, 1983). We find it significant, however, that the Supreme Court has yet to employ such an approach in cases involving the wrongful denial of a land use permit. In Nollan, for example, the Supreme Court not only applied a traditional regulatory taking analysis, but it repeatedly referred to the case as one involving a taking.21

We are not suggesting, however, that ElectroTech was foreclosed from asserting a substantive due process claim in the instant case. In fact, we *77agree with Justice Brickley that both the United States Supreme Court and this Court have acknowledged the possibility of substantive due process claims in response to governmental regulation of property. See, e.g., Village of Euclid v Ambler Realty Co, 272 US 365; 47 S Ct 114; 71 L Ed 303 (1926); Goldblatt v Town of Hempstead, 369 US 590; 82 S Ct 987; 8 L Ed 2d 130 (1962); Kropf v Sterling Heights, 391 Mich 139; 215 NW2d 179 (1974); Cryderman v City of Birmingham, 171 Mich App 15; 429 NW2d 625 (1988). Our review of the record here, however, indicates that this case was tried as a regulatory taking due process claim.

In part i of his opinion, Justice Brickley himself acknowledges that a property owner may properly assert that a land use restriction " 'goes so far that it has the same effect as a taking by eminent domain [and] is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment.’ ” Post, pp 93-94 citing Williamson. It is apparent in the instant case that Electro-Tech has asserted such a taking claim from the start. See plaintiff’s fourth amended complaint and brief on appeal in this Court.

Furthermore, the plaintiff here clearly tried its case on a regulatory taking due process theory. The record reveals that the trial court instructed the jury on the "deprivation of property without due process of law.” There was no instruction relating to substantive due process or to the "arbitrary” or "unreasonable” nature of the council’s dedication requirement.22_

*79As explained by Justice Brickley, "[r]egardless 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).” (Post, p 94.) Because the City of Westland did not have the opportunity to make a final decision regarding Electro-Tech’s property, see section ii(c), we hold that its claim was not ripe for judicial review.

B

EXHAUSTION OF STATE ADMINISTRATIVE REMEDIES

In Patsy v Florida Bd of Regents, 457 US 496, 550; 102 S Ct 2557; 73 L Ed 2d 172 (1982), the Supreme Court unequivocally stated that exhaustion of state administrative remedies is not a prerequisite to bringing an action under 42 USC 1983.23 The plaintiff in Patsy filed a § 1983 action *80in federal district court, alleging that her employer intentionally denied her employment opportunities solely on the basis of her race and sex. The employer successfully moved to dismiss because the plaintiff had not exhausted available administrative remedies. However, the Supreme Court, examining the legislative history of 42 USC 1983 and noting "the paramount role Congress has assigned to the federal courts to protect constitutional rights,” decided not to overrule its prior decisions that exhaustion of state administrative remedies is not a prerequisite to a § 1983 action.24

Although Patsy unequivocally establishes that Electro-Tech was not required to exhaust available administrative remedies before bringing its § 1983 claim, other Supreme Court and lower federal court cases dealing specifically with regulatory taking have focused on the importance of obtaining a final decision from the governmental entity that is alleged to have acted unconstitutionally.

c

FINALITY

In Williamson Co Regional Planning Comm v Hamilton Bank of Johnson City, supra, 192-193, the Supreme Court stated:

The question whether administrative remedies must be exhausted is conceptually *81distinct . . . from the question whether an administrative action must be final before it is judicially reviewable. While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a deñnitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. [Citations omitted; emphasis added.]

In Williamson, the plaintiff bank brought a § 1983 action against the county. The plaintiff claimed, as Electro-Tech does in this case, that the local government’s temporary refusal to allow development of its property constituted a compensable taking within the meaning of the Fifth Amendment. The Supreme Court, however, did not reach the merits of the plaintiff’s constitutional claim because it found the action unripe.

The Williamson Court set forth two finality requirements which must be satisfied before a plaintiff may bring an action under § 1983 for damages resulting from an unconstitutional regulatory taking. First, the Court required that the plaintiff obtain a ñnal decision regarding the application of the zoning ordinance and subdivision regulations to its property. Id., p 186, citing Hodel v Virginia Surface Mining & Reclamation Ass’n, Inc, 452 US 264; 101 S Ct 2352; 69 L Ed 2d 1 (1981).

According to Williamson, requiring a final decision from the appropriate administrative body prior to initiating a § 1983 action "is compelled by the very nature of the inquiry required by the Just Compensation Clause.” Williamson, supra, p 190.

*82Although "[t]he question of what constitutes a 'taking’ for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty,” Penn Central Transp Co v New York City, 438 US 104, 123 [98 S Ct 2646; 57 L Ed 2d 631 (1978)], this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. Those factors simply cannot be evaluated 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., pp 190-191. Citations omitted.][25]

In light of Patsy, the Williamson Court reasoned that although the plaintiff would not be required to appeal the planning commission’s decision to the zoning board of appeals,26 it would be required to seek variances which "would result in a conclusive determination by the Commission whether it would allow [the plaintiff] to develop the subdivision in the manner [originally] proposed.” Id., p 193 (emphasis added).

Applying these principles to the instant case,27 *83we would hold that although Electro-Tech was not required to appeal the council’s initial site-plan decision to the zoning board of appeals, the plaintiff was required to obtain a final decision from the city before bringing an action under 42 USC 1983.28 In light of the circumstances surrounding *84the "conditional approval” of Electro-Tech’s site plan, we are persuaded that the plaintiff had not yet completed the available procedures which might have enabled it to build according to the plans it had originally submitted for approval.

At the June 11, 1979, city council meeting, the council had imposed, in addition to the dedication requirement, four conditions for obtaining final site-plan approval and a subsequent building permit.29 Electro-Tech admits that none of the four additional conditions were objectionable, and, although it proceeded to remedy the deficiencies, it failed to submit a final site plan (either to the council or to the building department) reflecting at least those changes.30

The record further indicates that although all of the city departments participate in the decision-making process, the ultimate decision regarding building requests lies with the building department. As stated previously, the building department is responsible for examining the final site and building plans (as well as the final report from the engineering department) and, if everything is *85approved, for ultimately issuing the building permit.31

These facts, in our view, support the conclusion that the process for obtaining the city’s permission to build had not yet been completed. The fact that the council’s approval was "conditional” indicates 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. As indicated in Williamson, until all five of the council’s objections, including the four "valid” conditions, are addressed and finally resolved (either by compliance or by refusal to comply), it is impossible to accurately determine the extent to which the plaintiff’s land retained any reasonable beneficial use or the extent to which the plaintiff’s expectation interest had been destroyed32_

*86We agree with Justice Brickley that the building department has no authority "to override a condition imposed by the city council.” Post, p 107. However, this fact does not obviate the need for obtaining a final decision from the city in this case. The fact that the building department cannot overrule the city council does not, as Justice Brickley suggests, reduce the Williamson finality requirement to a mere exercise in futility.33

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 *87building 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 have 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 191.34

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.

The second finality requirement set forth by the Williamson Court is that a taking claim is not ripe until a plaintiff has sought compensation through state procedures. The Court reasoned:

The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a " 'reasonable, certain and adequate provision for obtaining compensation’ ” exist at the time of the taking. . . . Similarly, if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. [Id., pp 194-195. Citations omitted; emphasis added.]_

*88The Supreme Court reaffirmed its finality requirements in MacDonald, Sommer & Frates v Yolo Co, supra. Similarly, the lower federal courts have followed suit in requiring that a plaintiff first obtain a final decision from the governmental entity that is alleged to have taken property without just compensation and utilize the state procedures for obtaining just compensation before the plaintiff’s § 1983 claim will be considered ripe for adjudication. Bateson, supra; A A Profiles Inc v City of Ft Lauderdale, 850 F2d 1483 (CA 11, 1988); Austin v City & Co of Honolulu, 840 F2d 678 (CA 9, 1988), cert den 488 US 852; 109 S Ct 136; 102 L Ed 2d 109 (1988); Kinzli v City of Santa Cruz, 818 F2d 1449, 1453-1455 (CA 9, 1987), cert den 484 US 1043; 108 S Ct 775; 98 L Ed 2d 861 (1988); Ochoa Realty Corp v Faria, 815 F2d 812, 816-817 (CA 1, 1987); Norco Construction Inc v King Co, 801 F2d 1143, 1145-1146 (CA 9, 1986); Anthony v Franklin Co, 799 F2d 681, 683-684 (CA 11, 1986); Union Pacific R Co v Idaho, 654 F Supp 1236, 1243-1244 (D Idaho, 1987); Kaiser Development Co v City & Co of Honolulu, 649 F Supp 926, 938-943 (D Hawaii, 1986); Ross v City of Berkeley, 655 F Supp 820, 840-842 (ND Cal, 1987); JBK, Inc v Kansas City, 641 F Supp 893, 908-909 (WD Mo, 1986).

Like the State of Tennessee in Williamson, the State of Michigan recognizes a cause of action for a de facto taking. Const 1963, art 10, § 2; Hart v Detroit, 416 Mich 488; 331 NW2d 438 (1982); In re Urban Renewal, Elmwood Park Project, 376 Mich 311; 136 NW2d 896 (1965); Foster v Detroit, 405 F2d 138 (CA 6, 1968); In re Acquisition of Virginia Park, 121 Mich App 153; 328 NW2d 602 (1982); Detroit Bd of Ed v Clarke, 89 Mich App 504; 280 NW2d 574 (1979).35 An inverse or reverse condem*89nation suit is one instituted by a landowner whose property has been taken for public use "without the commencement of condemnation proceedings.” Hart, supra, p 494. Under Michigan law, a "taking” for purposes of inverse condemnation means that governmental action has permanently deprived the property owner of any possession or use of the property. Id., pp 501-502. When such a taking has occurred, the Michigan Constitution entitles the property owner to just compensation for the value of the property taken. Id., p 494.

Further, Michigan law also recognizes a cause of action for inverse condemnation in cases, like this one, without a physical taking of property, where it is alleged that the effect of a governmental regulation is "to prevent the use of much of plaintiff’s property ... for any profitable purpose.” Grand Trunk W R Co v Detroit, 326 Mich 387, 392-393; 40 NW2d 195 (1949). For example, in Spanich v Livonia, 355 Mich 252, 259-265; 94 NW2d 62 (1959), this Court acknowledged that the application of a zoning ordinance to a particular property can constitute an unconstitutional taking.

Generally, the remedy in such cases is a declaration that the regulation is unconstitutional and void. Schwartz v City of Flint, 426 Mich 295, 308; 395 NW2d 678 (1986); Delta Charter Twp v Dinolfo, 419 Mich 253, 268-269; 351 NW2d 831 (1984). Assuming, however, that the plaintiff shows by a preponderance of the evidence that a proposed specific use of the property is reasonable, the trial court may additionally declare the use to be reasonable and enjoin the municipality from interfering with that use. Schwartz, supra, pp 325-329. *90Although we found the notion "appealing,” Schwartz, supra, p 324, this Court has yet to decide whether plaintiffs may also be compensated for temporary regulatory takings. Recently, however, in Poirier v Grand Blanc Twp, 167 Mich App 770, 774; 423 NW2d 351 (1988), the Court of Appeals adhered to the holding of the United States Supreme Court in First English, supra, stating:

[It is well established] that regulation that goes too far will be recognized as a taking. Where government action works a taking, that necessarily implies the constitutional obligation to pay just compensation. That the regulation was an interim one or could be invalidated did not preclude an award for damages. The Court held that " 'temporary’ takings . . . are not different in kind from permanent takings, for which the Constitution clearly requires compensation.” Where government activities effect a taking, the mere invalidation of the offending ordinance does not relieve the government of its duty to provide compensation for the period during which the taking was effective. The Court did not distinguish between takings accomplished by the use of police power or by eminent domain. The key consideration was whether there had been a taking. [Citations omitted and emphasis added.][36]

Having examined the entire record in this case, we are persuaded that Electro-Tech attempted to pursue an inverse condemnation action in state court37 and that the trial court improperly disposed *91of this claim on governmental immunity grounds.38

In light of both finality requirements set forth in Williamson, however, we find that the plaintiff here has, at the most, satisfied only the second requirement. The fact that Electro-Tech was not permitted to pursue its inverse condemnation action does not obviate the fact that the plaintiff had not yet obtained a final decision from the City of Westland regarding its request to build. Accordingly, we hold that Electro-Tech has brought its § 1983 "taking” claim prematurely.

hi

In light of Williamson and its progeny*, we are persuaded that Congress did not intend 42 USC 1983 to be an immediate tort recovery act for every person adversely affected by a local agency’s initial zoning or building decision. In the instant case, because the conditional approval of the plaintiff’s site plan was not the city’s final disposition of the matter, we hold that the plaintiff’s action under 42 USC 1983 was not ripe for adjudication. Accordingly, we affirm the decision of the Court of Appeals._

(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.