The Four-Factor Penn Central Regulatory Takings Test

Abstract

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.

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