Penn Central for Tomorrow: Making Regulatory Takings Predictable

Date01 June 2009
5-2009 NEWS & ANALYSIS 39 ELR 10457
Penn Central for Tomorrow: Making
Regulatory Takings Predictable
by Kenneth Miller
Kenneth Miller is a J.D. candidate, 2009, William S. Richardson School of Law, University of Hawaii at Manoa. is
Article was the rst-prize winner in the Ninth Annual Program for Judicial Awareness Writing Competition, sponsored by
the Pacic Legal Foundation. For more information, visit Pacic Legal Foundation’s website at www.paci
In 1978, after more than 50 years of silence on regulatory
takings, the U.S. Supreme Court decided Penn Central
.1 Penn Central has
since been referred to as the “polestar” of regulatory tak ings
jurisprudence;2 however, no clear method of applying the
multi-part ad hoc factual an al ysis of Penn C entra l has
emerge d. The P enn Cen tral a naly sis ha s inst ead creat ed
con fusi on in the fi eld w ith cas e law b eing an ythi ng
but “u ni fi ed.”3
In the years following Penn Central, the Supreme Court
adopted a number of per se r ules and bright-line tests in an
attempt to clarify the eld of regulatory takings.4 Toward
the end of the era of Chief Justice William H. Rehnquist,
however, the Supreme Court began to stray from these rules,
abrogating and confusing some and entirely doing away with
others.5 Confusion became so marked that commentators
described regulatory takings as “muddled,”6 and “one of the
most doctrinally confused areas of constitutional law.7
In 2005, the Supreme Court decided Lingle v. Chevron
 .8 e decision claried which per se rules the
Court recognized, and reiterated that the Penn Central ad
hoc factual inquiry was the controlling test for regulatory
takings.9 Although Lingle shed lig ht on regulatory takings’
per se rules, the ca se did not clarify the basic Penn Central
1. 438 U.S. 104, 8 ELR 20528 (1978).
2. Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 326
n.23, 32 ELR 20627 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606,
633, 32 ELR 20516 (2001) (O’Connor, J., concurring)).
3. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539, 35 ELR 20106 (2005).
4. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 24 ELR 21083 (1994); Lucas
v. S.C. Coastal Council, 505 U.S. 1003, 22 ELR 21104 (1992); First English
Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 19
ELR 21329 (1987); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 17 ELR
20918 (1987); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419 (1982); Agins v. City of Tiburon, 447 U.S. 255, 10 ELR 20361 (1980).
5. See Lingle, 544 U.S. 528; Tahoe-Sierra, 535 U.S. 302; , 533 U.S. 606.
See also R.S. Radford, Instead of a Doctrine: Penn Central as the Supreme Court’s
Retreat From the Rule of Law, SM040 ALI-ABA 815, 819 (2007).
6. Carol M. Rose, , 
S. C. L. R.  (1984).
7. D. Benjamin Barros,  
Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 
A. L. R. ,  (2005-06).
8. 544 U.S. 528 (2005).
9. Id. at 538.
test. us, although Lingle claried which test applies, the
actual application remains clouded.
Under the traditional Penn Central a nalysis, the inquiry
focuses particularly on three prongs: (1) the economic impact
on the claimant; (2) the interference with distinct investment-
backed expectation; and (3) the character of the governmen-
tal action.10 is three-prong formula, although recently
rearmed as the governing standard for regulatory takings,
11 is unhelpful to practitioners; it does not aid in their ability
to anticipate how courts will decide regulatory takings cases.
Adherence to the three-prong approach is one of the primary
reasons regulatory takings have traditionally been confused.
is A rticle proposes that a modied approach—a two-
prong approach—is a better method for anticipating how
courts will decide regulatory takings cases. e two-prong
approach identies which factors courts are likely to nd
most relevant and i llustrates how those factors interact with
each other better than the traditional three-prong approach.
e two-prong approach, however, is not meant to be a new
standard for courts to apply, but is rather oered as a frame-
work to anticipate how courts will decide regulatory takings
cases. It is meant to aid in the preparation of cases by oering
a means of prediction.
e t wo-prong approach focuses on (1) the character of
the government action, and (2) the economic impact on t he
property owner. e character of the government action
prong contains two internal sub-factors: (a) the generality/
reciprocity factor, exemplied by the Armstrong principle12;
and (b) the type of right aected. e economic impact prong
is composed of (a) the diminution in value of the property,
and (b) the interference with reasonable investment-backed
expectations. In most situations, only one of the two eco-
nomic sub-factors will apply. For instance, where the prop-
10. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124, 8 ELR 20528
11. Lingle, 544 U.S. at 538.
12. e Armstrong Principle provides “[t]he Fifth Amendment’s guarantee that
private property shall not be taken for a public use without just compensation
was designed to bar Government from forcing some people alone to bear pub-
lic burdens which, in all fairness and justice, should be borne by the public as
a whole.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

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