Regulatory Takings Doctrine Research Articles

Takings As Compulsory Purchase of Commercial Units

This article examines recent Supreme Court decisions regarding private property and eminent domain vis-a-vis growing demands for government controls over land use, especially to ameliorate climate change and to reduce regional economic disparities. It notes that tension between the Court’s amorphous regulatory takings jurisprudence and assertive regulation will increase, a trend likely to be heightened after Knick v Township of Scott. Its contribution is the assertions that the current judicial regulatory takings apparatus be replaced with the doctrine that, if owners can demonstrate that the property arrogated by government consists of a “commercial unit,” then the matter should be deemed a compulsory purchase, and just compensation paid. Of course, borderline and unusual circumstances dictate some continued reliance on substantive due process, which already plays a crucial, if unacknowledged, role in contemporary regulatory takings doctrine.

The Badger State's Take on Regulatory Takings: Murr and Wisconsin

This comment examines the current state of the regulatory takings doctrine at both the federal and state level, analyzes the Supreme Court’s decision in Murr v. Wisconsin, and discusses the need to set up structural protections to preserve the rights of private property owners. Specifically, Part II discusses the fascinating origins and background of the Takings Clause and the regulatory takings doctrine. Part III examines the regulatory takings doctrine as it was structured when the Supreme Court decided Murr. Part IV provides background analysis of the regulatory framework and Wisconsin regulatory takings law that undergirds Murr. Part V describes the Murr’s factual background, discusses the parties’ arguments, and analyzes the Supreme Court’s opinion. Part VI analyzes the general reaction to this landmark decision, evaluates Wisconsin’s Homeowners’ Bill of Rights, and provides direction for Wisconsin courts in their handling of the post-Murr regulatory takings doctrine. Part VII concludes with a brief overview and presents two important takeaways from Murr.

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

A Fracking Mess: Just Compensation for Regulatory Takings of Oil and Gas Property Rights

Restatement (SCOTUS) of Property: What Happened to Use in Murr v. Wisconsin?

A casual observer of the U.S. Supreme Court’s efforts over the years to formulate a regulatory takings doctrine could be forgiven if they were to conclude that the Justices were simply making things up as they went along. That certainly is the way it feels to some of us who try to apply the Court’s takings rules in actual cases. In most circumstances, a lawyer who attempts to predict their client’s chances is embarking on a fool’s errand, because there is no consistent pattern, unless the lack of consistency is itself a pattern. There are few clear rules, other than it is exceedingly difficult for owners to successfully challenge even those regulations which have devastating impact on the value of their property. The Court’s latest foray into regulatory takings, Murr v. Wisconsin, would not disabuse the observer of that conclusion. I say that because Murr’s rule for what constitutes the “property” against which the owner’s claimed loss is measured in takings cases where the owner possesses more than a single parcel is a confusing stew of mostly undefined factors: the “treatment of the land” under state law, the “physical characteristics” of the properties (which includes the parcels’ topography and “the surrounding human and ecological environment”), and, most strangely, “the value of the property under the challenged regulation.” I will be making three points in this paper. First, the narrow margin of victory in Murr, coupled with the Court’s denial of certiorari only four days later in another case presenting the same question, suggest the Murr factors are hardly set in stone, and could be modified by a different Court majority into a more understandable, practical, and workable rule, one based squarely in state property law. Second, although I won’t spend much time deconstructing the Murr majority’s three-factor test, I suggest that it simply missed what should have been the center of gravity in the case, the “three unities” which state and federal courts regularly apply in eminent domain cases to determine whether the taking of one parcel results in damages to another. Application of this test to determine how much of the claimant’s property constitutes the denominator in regulatory takings cases — asking whether the plaintiff uses multiple parcels together, whether the parcels are titled jointly, and whether they are physically close — would place the emphasis in all takings cases — both straight and regulatory — where it should be: on objectively measurable evidence that the owner uses two or more parcels together as a single economic unit. Finally, I argue that the Supreme Court’s adoption in Murr of a vague, difficult-to-apply test for takings claims under the Fifth and Fourteenth Amendments does not constrain state court from applying the three unities test under their respective state takings provisions. Until there’s a more favorable environment at the Supreme Court, property owners should concentrate their efforts on state law and state courts.

The Enduring (Muted) Legacy of Lucas v. South Carolina Coastal Council: A Quarter Century Retrospective

Decided 25 years ago this spring, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), departed from previous regulatory takings cases in pronouncing a concrete rule of takings liability — applicable in cases where an imposed restriction goes so far as to deny an owner all economically beneficial uses, or to render his or her property entirely valueless. Previously the Supreme Court had said that regulatory takings claims should be assessed under the amorphous balancing test set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). And as late as the 1987 term, the Court had disavowed categorical rules. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495 (1987). Accordingly, many commentators were critical of Lucas, on the view that the decision was fundamentally at odds with Penn Central’s much more flexible approach. Still, the most controversial aspect of Lucas’ new per se rule was in that it wholly discounted legislative judgments. This not only elicited strenuous dissenting opinions, but prompted near-vitriolic criticism from some scholars who expressed concern that the Court had placed private interests above the public interest, in a manner that might impede the government’s ability to address pressing public concerns through regulation. The most biting critics argued that Lucas had revived the ghost of Lochner v. New York, 198 US 45, 75 (1905). But as explained in this retrospective, these concerns have proven largely unfounded. Lucas did not seriously hamstring environmental regulation, let alone municipal land use planning. And, in any event, the Lochner analogy was improper from the outset because Lucas left undisturbed the general presumption, set forth in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 391 (1926), that land use restrictions will be upheld so long as they reasonably relate to the advancement of a legitimate state interest. Moreover, as discussed in greater depth within this article, subsequent developments have since placed both Lucas and Village of Euclid in their proper context. As would only be appropriate in a retrospective analysis, I consider the full implications of Lucas for the development of our modern regulatory takings doctrine. First, I explain that Lucas was a logical outgrowth of the Court’s seminal regulatory takings case in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). Second, I evaluate subsequent developments that have minimized the practical impact of Lucas for landowners and land use planners. Yet, at the same time, I also suggest that Lucas was a significant step forward in the development a more sophisticated regulatory takings doctrine, especially in explaining that takings claims are assessed with reference to those rights enuring in the title to land — as defined by objective background principles ensconced in state law. Finally, I conclude that there remains a vital need for the Supreme Court to clarify lingering questions of essential importance in Lucas claims. Ultimately, I suggest that subsequent developments have underscored the need for more concrete guidance, and judicially manageable standards, for reviewing takings claims that do not fit squarely within the Lucas framework — i.e., “partial takings claims” wherein the authorities have imposed severe land use restrictions, while allowing the owner to retain some modicum of value in the land, or to maintain some modest development opportunity.

The Illusion of Fiscal Illusion in Regulatory Takings

In January 2016, the Supreme Court granted certiorari in Murr v. Wisconsin, the first regulatory takings case to be decided by the Roberts Court. Because regulatory takings doctrine has little direct support in constitutional text, history, or precedent, arguments to expand regulatory takings rest heavily on policy grounds. This Article argues that the central efficiency argument for expansion — often dubbed “fiscal illusion” — is based on a surprising mistake. Without compensation, the argument goes, governments operate under a fiscal illusion, because from their perspectives, their actions are costless. The problem is that this argument makes no sense as a description of the actual costs to governments.Taxation is the main way governments get revenue, and most taxes depend on the value of property and its permissible uses. If governments restrict land so as to reduce its value or the income produced by it, its residents, or its patrons, they generally already feel the loss in their budgets. If the restriction creates benefits, those too are reflected in tax revenues. While there are limitations to the accuracy and efficacy of the tax signal, efficient regulations should roughly have a net positive effect on governmental revenues, while inefficient ones should have a net negative effect. Fully compensating owners, in contrast, does not lead the government to accurately internalize societal costs — it rather adds a new and much larger cost. Because this cost usually far exceeds revenue gains, governments may rationally forgo even efficient regulations. Owner compensation, in other words, does not correct fiscal illusion. It creates it. Revealing the illusion of fiscal illusion leaves standing much older arguments that compensation is required as a matter of fairness. But by clearing away the main efficiency justification for direct compensation, this Article permits clearer-eyed assessment of whether and to what extent fairness may require compensation, and prevents measures in the name of efficiency that in fact undermine it.

Does the Compensation Clause Burden the Government or Benefit the Owner? The Compensation Clause as Process

One of many ideas indelibly drawn in the legal vernacular is that “if a regulation goes too far it will be recognized as a taking.” This workhorse of a phrase has shouldered the bulk of the regulatory takings doctrine since the first half of the last century. So much ink has been spilled in an attempt to parse the meaning of “too far,” and yet the academic and judicial communities have made little progress towards a better understanding. This article, therefore, seeks to divert some attention away from the meaning of “taking”, and put a little more focus on the function of “compensation” by looking to the language of the Constitution and the fundamental purpose of the Takings Clause.Trying to divine the fundamental purpose of any constitutional language is a difficult task -- where do we even start? One thing we can say with some certainty is that much of the practical debate about the Takings Clause surrounds compensation--when must the government pay a property owner for a loss or devaluation of property? Thus, at the center of any practical analysis of the Takings Clause should be the real purpose and meaning of “compensation.” Not only how much compensation is “just,” but also when (under what circumstances) is compensation due at all. This article proposes that simply because property has been “taken,” whatever that means, compensation is not necessarily due.The general thesis of this article is that the Compensation Clause of the Fifth Amendment is a procedural requirement, not a substantive one, that is intended to burden the government and not benefit the property owner. Hopefully, the continual focus on what regulations amount to takings may be relegated to an academic question and the question that both governments and landowners care about--whether compensation is due -- is given more importance.

Ten Arguments for the Abolition of the Regulatory Takings Doctrine

Ten Arguments for the Abolition of the Regulatory Takings Doctrine

No Competing Theory of Constitutional Interpretation Justifies Regulatory Takings Ideology

Compensation for excessive regulation of the use of property under the Just Compensation Clause of the Fifth Amendment has gained wide acceptance. Introduced in 1922 in Pennsylvania Coal Co. v. Mahon, and gathering considerable momentum in 1978 with Penn Central Transportation Co. v. City of New York, regulatory takings constrains government regulation protecting the environment, public health, consumer safety, affordable housing, and other community interests. Upon close examination, however, the regulatory takings doctrine does not appear to be justified by any of the competing theories of constitutional interpretation: textualism, originalism, or evolutionary document. Rather, the doctrine seems to arise from a misunderstanding of the Just Compensation Clause as guaranteeing a laissez-faire political economy. The initial parts of this article rely for the most part on existing scholarship analyzing regulatory takings under the textualist and originalists theories of interpretation. The bulk of the article is devoted to an examination of regulatory takings under the evolutionary document theory, which has received less attention in the literature of takings. The argument that the regulatory takings doctrine in its entirety is unwarranted under an evolutionary document approach is founded on the absence of precedent for granting the courts a significant role in the formulation of what is essentially economic policy, and profound conflicts between regulatory takings and core values of the Constitution, such as liberty, equality, and democracy. I also respond to claims that a broad reading of the Just Compensation Clause is necessary to balance the interests of property owners against society or that regulatory takings is a practical tool for property regulation. Finally, the article recommends an alternative system for government policy-making to control the use of property that relies almost exclusively on statutes and administrative regulations adopted by the political branches of government.

From Nectow to Koontz: The Supreme Court's Supervision of Land-Use Regulation

This is a preliminary chapter of my book in progress, tentatively titled The New Economics of Zoning Laws. This chapter selectively surveys court decisions on zoning over the past century. I offer new evidence on Nectow v. Cambridge (1927), the first case in which the US Supreme Court overturned a non-racial zoning ordinance. The Court got it wrong, at least by modern standards of review, because a master's report mischaracterized the history of the site and the purpose of zoning. The Court after Nectow has usually been deferential to state courts and local decisionmaking on land use, which I submit is appropriate given the Court’s lack of access to local knowledge. It has since 1987 insisted that the states not abandon the regulatory takings doctrine, but it has also put up substantial procedural barriers to moving cases into federal court. Its decisions create a modest price effect for local governments, which do not have to worry much about paying taxpayers’ money for a judgment unless their regulations leave no economically viable use or cause a physical occupation of the property. The Court’s departures from its deferential tradition have been in the exactions cases, most recently Koontz v. St. Johns River Water Management District (2013). These are economically questionable in that they appear to entrench existing regulations, thus lowering the opportunity cost of maintaining them. The decisions may, however, discourage governments from adopting regulations purely for the sake of obtaining general revenue. Zoning and related land-use regulations are highly popular institutions, though, so it seems unlikely that limiting the exactions process will discourage many of their excesses.

Deciphering and Extrapolating: Searching for Sense in Penn Central

The Supreme Court has labeled Penn Central Transportation Co. v. City of New York the polestar of its regulatory takings doctrine. Yet Penn Central’s three-part balancing test has been widely criticized as offering nothing more than an amorphous, ad hoc framework that provides little guidance for litigants or courts reviewing takings claims. In the absence of a well defined and predictable takings doctrine, the lower courts are left grasping to make sense of Penn Central, and to extrapolate an intelligible standard from its framework. In this article, we examine the origins and interpretations of Penn Central, and identify some of the difficulties raised in its application. We explore some of the latest issues the lower courts have been struggling with in fleshing out the doctrine, which may warrant a grant of certiorari if the Roberts Court is willing to bring clarity and cohesion to regulatory takings law.

Property Creation by Regulation: Rights to Clean Air and Rights to Pollute

This paper, prepared for a Lincoln Institute conference on Evolution of Property Rights Related to Land and Natural Resources, and the forthcoming book Property in Land and Other Resources (D.H. Cole and E.Ostrom, eds, forthcoming 2011, Lincoln Institute), argues that, contrary to both the suppositions of some legal scholars and the theoretical underpinnings of Regulatory Takings doctrine, government regulations do not only impose on existing private property rights but also vindicate, and sometimes even create, public, private, and/or common property rights. After examining conflicting common law and Roman law rules relating to property rights in the atmosphere, the paper focuses on how assertions of state sovereignty and regulations combine to create Hohfeldian rights and duties respecting the atmosphere, where none previously existed or were unclear. An explicit (but hardly novel) claim is advanced that acts of sovereignty themselves amount to assertions of public property. The claim is supported by evidence from both civil aviation regulation and air pollution control. The paper also addresses how regulations have created private property rights to pollute in emissions trading programs (regardless of congressional assertions to the contrary). In some cases, assertions of public property via acts of sovereignty are a prerequisite to the allocation of private property rights, and not just in the atmosphere but in other natural resources, such as marine fisheries. The paper concludes with a discussion of normative implications for property theory generally and Regulatory Takings doctrine in particular. A more dignified treatment of public regulations that are designed to protect public rights would raise a serious question about which set of property rights should prevail in the several Regulatory Takings cases where privately-owned lands meet publicly-owned waters. That question cannot, however, be answered reasonably until a theory (or multiple theories) of public property are better developed to complement existing theories of private and common property. So, the paper ends with a call for more research into the theory and empirics of res publica (beyond equally naive public interest and public choice models).

Rebuilding the Public-Private City: Regulatory Taking's Anti-Subordination Insights for Eminent Domain and Redevelopment

The eminent domain debate, steeped in the language of property rights, currently lacks language and conceptual space to address what is really at issue in today’s cities: complex, fundamental disagreements between market and community about development. The core doctrinal issue presented by development is how can we acknowledge the subordination of citizens who happen to live in areas that are attractive to wealthier citizens. In p articular, how should we ad dress the political process failure reflected in the privatized methods of decisionmaking that typify redevelopment? The conceptual language and analytical construct for appropriately addressing these issues come from critical race theory and its project of anti-subordination. The doctrinal m odel for resolving urban development disagreement comes from the anti-subordination principles reflected in regulatory takings doctrine. This Article argues that regulatory takings doctrine reflects one of the most developed, yet underappreciated, anti-subordination doctrines in the law. Both takings and critical race theory provide a template for properly focusing on ways to im prove the lack of public accountability in development and the unresponsiveness of eminent domain doctrine to commonly accepted notions of fairness as a component of the public good.

Mississippi River Stories: Lessons from a Century of Unnatural Disasters

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a manmade disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood control structures such as levees and dams; the perverse incentives created by the national flood insurance program; and the need to reform federal leadership over flood hazard control, particularly as delegated to the Army Corps of Engineers.Setting forth what we call the theory of double takes, this article argues that property owners in flood-prone areas take taxpayer dollars through two sometimes-overlapping mechanisms. First, a package of subsidies - including flood control structures, federal flood insurance, and after-the-fact disaster relief - enables and even encourages construction in high-risk areas. Second, landowners denied permits to develop floodplain and coastal property can take federal dollars in the form of compensation awarded under the Fifth Amendment. Such claims for compensation are fostered by the 1992 decision, Lucas v. South Carolina Coastal Council, in which the Supreme Court endorsed the view that coastal areas are valueless in their natural state - a dangerous misconception laid bare by the post-Katrina awareness that wetlands and barrier islands instead perform an invaluable flood-taming function. We conclude with suggestions for reform of federal flood hazard policy, the national flood insurance program, and the regulatory takings doctrine.

Re-Imagining Takings Law

Takings law, composed of the law of eminent domain and the regulatory takings doctrine, is correctly understood as one of property's most defining features. As such, it attracts the attention not only of lawyers and judges but also of property theorists and political philosophers. This thick literature tends to fall into rather predictable and, I argue, quite disappointing camps. Libertarian authors maintain that compensation should be required each time the taking's impact on the owner is disproportionate to the burden, if any, carried by other beneficiaries of the intended public use of the public action at hand. Their liberal opponents, who hold that property should serve not only liberty but also such values as social responsibility and distributive justice, seek to restrict the range of takings law as much as possible. They imply that the connection between takings and these competing values is simple: social responsibility and distributive justice are better served when the doctrines of eminent domain and regulatory takings become increasingly limited. This debate is now deadlocked. This essay seeks to re-imagine a truly liberal takings doctrine, which deviates dramatically from the positions of both camps. Unlike the former, it disputes the desirability and even the intelligibility of both the notion that ownership should only promote individual liberty and the strict takings doctrine said to follow this libertarian utopia. Unlike the latter, it insists that takings law should not fall back to a doctrine of no, or almost no, compensation that, I will argue, is counter-productive to the very commitment to social responsibility and distributive justice. Rather, in order to successfully integrate social responsibility and distributive justice into takings doctrine, and also other important property values such as autonomy, personhood and utility, we need to opt for a regime of partial and differential compensation, drawing careful (and rule-based) distinctions between types of injured properties and types of benefited groups.

Political Institutions, Judicial Review, and Private Property: A Comparative Institutional Analysis

Since Madison, jurists of all ideological stripes have more or less casually presumed that constitutional judicial review is absolutely necessary to protect private property rights against over-regulation by political bodies. During the twentieth century, this presumption led directly to the institution of regulatory takings doctrine. Recently, the economist William Fischel and the legal scholar Neil Komesar have raised important questions about, respectively, the utility and the sufficiency of constitutional judicial review for protecting private property. This article supports their arguments with theoretical and historical evidence that constitutional judicial review (1) is not strictly necessary for protecting private property rights, and (2) may have substantially less marginal social utility than most jurists presume. The theoretical evidence comes from positive politicaleconomic theories of property rights, according to which political institutions can be expected to substantially protect property ...

The Takings Clause, Version 2005: The Legal Process of Constitutional Property Rights

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court's efforts during the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state's eminent domain authority, now appears ripe for revision and tightening after a stirring four-justice dissent in Kelo v. City of New London and an enormous public protest decrying the majority decision. Notwithstanding this reversal, the 2005 decisions offer a coherent approach to Takings Clause enforcement - albeit one that is likely to frustrate commentators, theorists, and property rights advocates. More clearly than ever before, the Court in its 2005 decisions abandoned the difficult, if not impossible, task of providing a clear normative justification for the Takings Clause. Instead, its decisions reveal a marked preference for preserving and furthering its vision of an institutional system of governance - a jurisprudence that is focused on the question of who should decide rather than on the substantive issue of what should be decided, and that is committed to the passive virtue of deference. In short, the Rehnquist Court explicitly chose to adopt a legal process approach to takings. Because it privileges structure and process over explicit considerations of substantive legal and normative issues, this approach is unsatisfactory to property and constitutional theorists; because it defers to government decisions, it is maddening to property rights advocates; and because it is technocratic and abstract, it is unsatisfactory to the public. Given the prominence of the legal process approach to constitutional review of state regulatory action in the post-New Deal era, however, judicial passivity remains attractive, if unromantic, to judicial actors. Ultimately, recognizing the Court's shift away from defining constitutional property rights via the Takings Clause offers important descriptive and prescriptive insights into the future of takings law in the Roberts Court, especially if a majority of justices decide to tighten review of eminent domain actions or otherwise heighten judicial review under the Takings Clause.

Making Sense of <em>Penn Central</em>

[W]e have frequently observed that whether a restriction will be rendered invalid by government's failure to pay for any losses proximately caused by it depends largely upon circumstances [in that] case.--Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124 (1978). [A] 'totality of circumstances' analysis masks intellectual bankruptcy.--Thomas Merrill, Economics of Public Use, 72 Cornell L. Rev. 61, 92 (1986). INTRODUCTION In Penn Central Transportation Co. v. City of New York, (2) Supreme Court famously observed that it had been unable to develop any 'set formula' for determining when 'justice and fairness' require payment under Takings Clause, and that it was therefore compelled to rely on ad hoc, factual inquiries. (3) In an apparent effort to begin to give some content to regulatory takings analysis, Court three factors with particular significance in a takings case: (1) economic impact of government action, (2) extent to which action interferes with distinct investment-backed expectations, and (3) character of action. (4) Yet, over following twenty-five years, Court has provided little guidance on meaning and proper application of these three factors, (5) perpetuating essentially ad hoc approach to takings analysis (6) and contributing to widespread view that regulatory takings is an especially confused field of law. (7) The Court's failure to come to grips with meaning of Penn Central is especially striking in view of substantial progress Court has made recently in resolving other questions about regulatory takings doctrine. (8) The next thing--perhaps last big thing--in regulatory takings law will be resolving meaning of Penn Central factors. At one point, Court appeared poised to jettison Penn Central analysis altogether. During 1980's and 1990's, as an antidote to chronic vagueness of Penn Central framework, Court attempted to develop a set of alternative, bright line tests. (9) In Lucas v. South Carolina Coastal Council, (10) Court ruled that a regulation that denies owner economically viable use of private property represents a per se taking. And in Loretto v. Teleprompter Manhattan CATV Corp., (11) Court said that a regulation resulting in a permanent physical occupation of private property also represents a per se taking. (12) From perspective of property rights advocates, this approach appeared to lead reliably to findings of takings liability, albeit in narrowly defined circumstances. Even from perspective of defenders of government regulatory authority, this approach had potential benefit of identifying actions that would be safely immune from takings liability--assuming these per se tests came to define not only grounds, but also outer limits, of takings liability. (13) The effort to construct a more rule-based takings doctrine has plainly faltered, returning Penn Central to forefront. In recent years, Court has given Loretto per se rule a narrow interpretation, confining test to a relatively rare, easily identified set of actions. (14) The Court has given Lucas per se rule an even narrower reading, characterizing Lucas test as applying only to the complete elimination of a property's value. (15) Few if any regulations have such a drastic effect on property value, meaning that Lucas has been converted to a precedent of largely symbolic significance. At same time, Court's most recent regulatory takings decisions have explicitly reasserted centrality of Penn Central framework. For example, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, (16) Court said that [o]ur polestar ... remains principles set forth in Penn Central itself, which call for a careful examination and weighing of all relevant circumstances. …

Is thePenn CentralThree-Factor Test Ready for History's Dustbin?

Abstract The U.S. Supreme Court decision in Penn Central Transportation Co. v. New York City, 98 S. Ct. 2646 (1978), 30 ZD 434, is justly celebrated. The case arose from New York City's efforts to preserve a famous historic landmark by blocking the construction of an office tower on top of Grand Central Terminal. The Court's rejection of the company's “takings” claim represents one the most famous government victories in the annals of land-use law. And the decision articulated several principles that have turned out to have enduring significance in regulatory takings doctrine.

Statutory Approaches to Regulatory Takings: State Property Rights Legislation Issues and Implications for Public Administration

Should state administrators be required to perform assessments of potential violations of the Fifth Amendment before issuing a new regulation or applying an existing one? Should state regulations be confined to protection of public health and safety only and exclude other public goals for the general welfare? Should local governments be required to perform impact assessments of according to the state attorney general's mandated guidelines prior to taking a action? If as a result of the lawful application of a state regulation, a business person's property experiences a 25 percent decline in value, should the state agency that issued the regulation be required to pay for the amount of the decrease out of its budget? These and other questions are being answered in the affirmative by provisions in new laws governing state and local regulation being considered and passed by state legislatures across the country. The rise of the state, conflicts over land use and environmental regulation, political organizing by property rights groups, and federal judicial pronouncements have all sparked an explosion of state legislative initiatives concerning takings. Recent federal judicial decisions have set out an emerging, albeit somewhat muddled doctrine of that directly impacts a wide range of federal, state, and local activities. The doctrine states that under certain circumstances, many normal activities can be judged to have violated the Fifth Amendment's prescription that private property may not be taken for public use without just compensation. Compensation can be required by the courts, even though the regulation leaves legal ownership in the hands of the private individual. These pronouncements coupled with concerted lobbying activities by property rights advocates across the country have led to a spate of new state statutes that in some cases embrace, and in others, extend requirements placed on regulators. These measures could portend complicating, if not extremely costly consequences for the exercise of government regulation, depending on the approach a state takes. In this article we provide a preliminary overview and analysis of the state property rights legislation enacted to date. We describe the extent and nature of these new statutes, explain and critique the major types of measures being adopted, and conclude with a discussion of the key issues raised by these acts and their implications for public administration. Federal Jurisprudence on Regulatory Takings One of the intentions of most of the new state statutes concerning property rights is to codify elements of the newly developing doctrine. A brief review, then, of the key Supreme Court rulings on is in order before moving on to the legislative approaches themselves. Since 1922, the U.S. Supreme Court has recognized the possibility that a regulation, as opposed to outright confiscation, could be judged a taking without just compensation (Pennsylvania Coal v. Mahon, 260 U.S., 1992). However, federal courts seldom invoked the regulatory takings doctrine or sided with private property owners against state interests until the 1980s. In the last 15 years, the doctrine has been elaborated, and property owners have begun to win more suits against state and local regulators in federal and state courts. The Supreme Court's preferred approach to assessing claims is for trial judges to conduct an ad hoc balancing of the legitimate state interest at stake with the burden placed on the property owner affected by the governmental action. The Court has preferred (but not always insisted) that courts assess each regulation as it is actually applied to a particular piece of property to determine if a taking has occurred rather than to assess the regulation when issued. …