Making Sense of Penn Central

摘要

This attempt to inject more determinative meaning into the Perm Central analysis has not yielded a neat and tidy doctrine. But it has hopefully succeeded in articulating a somewhat more manageable set of rules to guide regulatory takings claims. The analysis of economic impact should consider not only "with and without" values, but also the value of the regulated property today compared with its original cost basis. Under the expectations factor, courts should consider whether the owner has been able to carry out her original intentions in acquiring the property, whether the claimant purchased the property with notice of the regulatory constraint, the regulatory environment at the time the claimant purchased the property, and the foreseeability of public concerns associated with a particular property use. Under the character factor, apart from special cases involving interferences with the ability of owners to exclude or to devise, the primary questions are whether the regulation applies broadly across the community and creates a reciprocity of advantage, the magnitude of the benefits conferred by the regulatory program, and whether the program is designed to protect the community or individuals citizens from harm. For better or for worse, applying these various factors, individually and as a package, will continue to depend to a significant degree on sound judicial judgment.