2017] MAKING OR BREAKING THE TAKINGS CLAIM 1849
standard, courts have traditionally used an “economic value fraction.”4 The
numerator is the diminution in value of the private property attributable to
the impact of the government regulation.5 The denominator is the entirety of
the owner’s rights in the “parcel as a whole.”6 For a Lucas categorical taking,
the denominator must be at least virtually equal to the numerator such that
there is a deprivation of “all economically beneficial or productive use of
land.”7 As a result, property owners seek to characterize their property rights
narrowly for as small a denominator as possible.8 The smaller the
denominator, the more likely it is to be equal to the numerator. On the other
hand, government regulators seek to characterize the property owner’s
property rights broadly for as large a denominator as possible.9 This creates a
denominator that is much larger than the numerator signaling that the land
still has economic benefit to the property owner.
Today, Lucas remains the controlling law on categorical regulatory
takings.10 But in application, how much does Lucas matter? Our review of
more than 1,700 cases in state and federal courts reveals only 27 cases in 25
years in which courts found a categorical taking under Lucas.11 By percentage,
4. Walcek v. United States, 49 Fed. Cl. 248, 261–62 (2001), aff’d, 303 F.3d 1349 (Fed. Cir.
5. Lost Tree Vill. Corp. v. United States (Lost Tree CFC II), 115 Fed. Cl. 219, 258, 262
(2014), aff’d, 787 F.3d 1111 (Fed. Cir. 2015); see also Lucas, 505 U.S. at 1016 n.7 (“Regrettably,
the rhetorical force of our ‘deprivation of all economical ly feasible use’ rule is greater than its
precision, since the rule does not make clear the ‘property interest’ against which the loss of value
is to be measured.”).
6. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130–31 (1978); see also Luc as,
505 U.S. at 1016 n.7 (describing “the ‘property interest’ against which the loss of value is to be
measured”). For a discussion on the Penn Central test, see infra Part IV.
7. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992); see also Palazzolo v. Rhode
Island, 533 U.S. 606, 631 (2001) (stating in the context of the Lucas total-takings analysis that
“[a]ssuming a taking is otherwise established, a State may not evade the duty to compensate on
the premise that the landowner is left with a token interest”); Lost Tree Vill. Corp., 787 F.3d at 1113
(finding that a taking resulted from 99.4% diminishment in value in clai mant’s land and
“affirm[ing] that a Lucas taking occurred because the government’s permit denial eliminated all
value stemming from Plat 57’s possible economic uses”).
8. DOUGLAS T. KENDALL ET AL., TAKINGS LITIGATION HANDBOOK: DEFENDING TAKINGS
CHALLENGES TO LAND USE REGULATIONS 170 (2000).
9. See Danaya C. Wright, A New Time for Denominators: Toward a Dynamic Theory of Property in
the Regulatory Takings Relevant Parcel Analysis, 34 ENVTL. L. 175, 188 (2004) (“[W]hen the
numerator is a small toothpick and the denominator is the entire bundle, the likelihood of the
Court requiring compensation is small. Where the numerator is a large portion of the bundle, or
cuts across every stick in the bundle, the likelihood of compensation increases until it become s
mandatory if certain core sticks or the entire bundle is taken.”).
10. Wendie L. Kellington, New Takes on Old Takes: A Takings Law Update, LAND USE L.,
http://landuselaw.wustl.edu/takings_update.htm (last visited Apr. 29, 2017).
11. These 1,700 cases represent all cases availa ble in the two major online databases (Lexis
Advance and WestlawNext) that cited Lucas v. South Carolina Coastal Council, 505 U.S. 1003
(1992), through March 23, 2017. A total of 1,808 cases were drawn from a Lexis Shepard’s report
and 1,713 cases were drawn from a Westlaw Keycite report. Compare Citing References for Lucas v.