Regulatory takings.

• Author: Rix, Gregory S.
• Position: Letters - Letter to the editor

The article, "Success in Litigating Local Permit Denials: Alternative Theories of Obtaining Justice" (Dec. 2012), provides an insightful overview or potential remedies for a landowner who has been denied a zoning of permit request. However, in the limited space afforded in such a broad overview, the short discussion on "A Regulatory 'Takings' Claim," did not have the opportunity to review alternatives to the rare instance of a regulation "render[ing] the applicant's property worthless."

Contrary to what the article suggests, in addition to this narrow category of "total" or "catergorical" takings, (1) in which a landowner must prove a loss of all value, "partial" regulatory takings challenges are governed by the standards set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). (2) In a Penn Central analysis, recognized by Florida courts, (3) the takings issue "turns on situation-specific factual inquiries." (4) Within this ad hoc inquiry, the focus is in large part, although not exclusively, on the magnitude of the economic impact on the landowner. (5) Also keenly relevant to the inquiry is the interference with objectively reasonable and investment-backed expectations; as well as the character of the government action. (6) While Penn Central provides a "fundamental guide" to the takings question, the deciding court must consider all the circumstances in a traditional judicial balancing...