Regulatory Takings

Question 1

Pennsylvania v. Mahon

Answer 1

• 1922
• “The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking” -> “resulting in diminution in value”

Question 2

Denominator Issue

Answer 2

• concept of wipeout depends on how you define the property

Question 3

Penn Central Transportation Co.

Answer 3

• 1978
• Three main factors to evaluate - impact, interference, + character of the government action (loose test)
• footnote says if you can show the property ceases to be “economically viable” you might get relief on the takings claim
• denominator issue - on the air rights, they looked at the parcel AS A WHOLE rather than just the air rights

Question 4

Lucas v. South Carolina Coastal Council

Answer 4

• SCOTUS, 1992
• deprivation of all economically viable use of real property = per se taking
• limitation: anything not part of title to begin with (evaluated based on background principles of property law)
• also limited by fact that likelihood of complete economic wipeout low

Question 5

Lucas - Kennedy Concurrence

Answer 5

• says common law background too narrow + not enough - need to recognize how the law has progressed beyond it

Question 6

Palazzolo v. Rhode Island - Facts and Q

Answer 6

• 2001
• landowner thought could build on 18 parcels but could only build on one -> raised q of whether takings claim brought by landowner who purchased land subsequent to land use restriction’s enactment fails (Penn Central would say fails due to lack of “reasonable investment backed expectations, + Lucas would say background principle of property law)

Question 7

Palazzolo v. Rhode Island - Decision

Answer 7

• regulatory takings claims not precluded by pre-existing env regs (SCOTUS argues that would mean state could put expiration date on Takings Clause)
• no Lucas taking though - went from billions to $200,000, but no taking b/c not a TOTAL wipeout
• denominator issue mentioned, but not addressed b/c litigants didn’t look it up

Question 8

Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency

Answer 8

• 2002
• Q: whether 32-month moratorium on development = per se regulatory taking on its face under Lucas
• no regulatory taking - says would turn every permit process into categorical takings
• does mention need to focus on “the parcel as a whole”

Question 9

Murr v. Wisconsin - Facts

Answer 9

• parents purchase two lots in the 60s, convey to children in the 90s
• count denies permission to build on both lots (deemed substandard under regs)
• Wisconsin court says no taking -> looked at parcel as a whole but “effective merger” of the two parcels
• complementary principle - state court said not complete wipeout cause could gain value by bringing the parcels together