In 1922, Justice Holmes invented regulatory takings jurisprudence by announcing that “if regulation goes too far it will be recognized as a taking,” but he did not say how far is too far. Fifty-six years later, in Penn Central Transportation Co. v. New York City, the Supreme Court settled on a balancing test to determine when a regulation is a taking for which a property owner must be compensated under the Fifth Amendment. The Penn Central test remains the rule today, though it has been qualified by various per se rules, notably the total-taking rule of Lucas v. South Carolina Coastal Council.
But what is “total”? Because every regulation can be characterized as a total taking of some right, the Court has struggled to prevent the “denominator question” from expanding Lucas and undermining Penn Central. Last Term, in Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Court held that to trigger the Lucas rule a total deprivation of all economically viable use must be permanent; a temporary deprivation is only partial and must be considered under Penn Central. The Court has saved the Penn Central edifice, though it is unclear that this structure is worth preserving.
- regulatory takings,