The Four-Factor Penn Central Regulatory Takings Test
Steven J. Eagle
George Mason University - Antonin Scalia Law School, Faculty
November 25, 2013
Penn State Law Review, Vol. 118, No. 3, 2014 Forthcoming
George Mason Law & Economics Research Paper No. 13-67
The Article examines the ad hoc, multifactor, regulatory takings doctrine derived from Penn Central Transportation Co. v. City of New York. It analyzes the conventional three-factor characterization of the Penn Central tests, and concludes that a four-factor approach better captures the dynamics of Penn Central analysis. “Parcel as a whole,” conceptually regarded as delimiting the relevant parcel for the Penn Central inquiry, in fact interacts with the “economic impact,” “investment-backed expectations,” and “character of the regulation” tests.
While the four-factor analysis advocated here is conceptually better and enhances understanding of how Penn Central operates, the doctrine remains under-theorized, subjective, with its factors mutually referential, and unable to provide a reliable guide to courts or litigants.
Number of Pages in PDF File: 52
Keywords: Polestar, Lucas, Grand Central Terminal, landmarks preservation, Henry George, multi-factor balancing, air rights, transferable development rights (TDR), mitigation, Armstrong, Tahoe-Sierra, Kavanau, subjective intent, Casitas, temporary investment, CCA Associates, Cienega X, unity of ownership
JEL Classification: K11, R52, H77
Date posted: November 27, 2013