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2010] Derailing Penn Central 885 III. An Exploration of Post-Lingle Takings Jurisprudence With the potential death of Penn Central’s character prong and the Supreme Court’s previous wavering between per se rules and balancing tests, one can only hypothesize how the Court will approach future claims of regulatory takings. This Part begins by assessing the Court’s most likely approach, which is the continued and unaltered application of the Penn Central balancing test as though Lingle never occurred. After concluding that this approach is deficient, this Note examines an alternative approach. The merits of this second approach, which is an abandonment of Penn Central and a resort to the per se rules of Lucas and Loretto, are also examined, and this Note ultimately concludes that this approach is also inadequate. A. Option Number One: Stubbornness If history is any indication of which approach the Court will take, it will likely continue to apply Penn Central’s ad hoc balancing test. The Court has been reluctant to abandon Penn Central, despite past indications that this approach would be superseded. As mentioned previously, the per se tests of Lucas and Loretto were once believed by some to represent an effort to replace Penn Central as the sole methods of analysis. 89 Nevertheless, the Court returned to its “polestar” in subsequent regulatory takings inquiries. 90 Therefore, it would come as little surprise if the Court continued to apply the Penn Central balancing test as though Lingle had not undermined it, just as it continued to apply Penn Central following Lucas and Loretto. 91 Advocates of this approach argue that Lingle left the character prong unscathed. 92 These advocates interpret Lingle narrowly and view the Court as holding only that a regulation’s failure under a substantive due process analysis does not require the government to give just compensation. 93 89 See supra notes 34–40 and accompanying text. 90 See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 336 (2002). 91 Another less likely option is that the Court will apply an altered version of the Penn Central balancing test. This would mean that the Court would acknowledge that Lingle foreclosed application of the character prong, but would nonetheless apply a simpler version of the Penn Central balancing test that focuses solely on economic impact and distinct investmentbacked expectations. See Whitman, supra note 70, at 590 (arguing that the elimination of the character element of the Penn Central test “simplifies and rationalizes Penn Central in a desirable way”). 92 See, e.g., Romero, supra note 82, at 365. 93 See id. at 360 (advocating for the position that “[t]he Court’s rejection of the substantial
886 The George Washington Law Review [Vol. 78:870 Although continued use of the Penn Central analysis offers property owners more protection than recourse to Lucas and Loretto alone, the balancing test remains deficient. The first deficiency in Penn Central is that the Court never actually settles on a clear threefactor test. 94 To the contrary, the opinion only identifies certain factors to consider and by no means devises a determinative test for regulatory takings. 95 Second, as the various contrasting definitions of the character factor demonstrate, the Penn Central balancing test “is so vague and indeterminate that it invites unprincipled, subjective decision making by the courts.” 96 A comparison of the facts and decisions in Penn Central and in Florida Rock Industries, Inc. v. United States, 97 a decision of the Court of Federal Claims, illustrates this point. In Penn Central, a regulation concerning historical landmarks prohibited the owners of Grand Central Terminal from constructing office buildings above the terminal. 98 The regulation’s economic impact on the owners was significant because the future office space would have been in high demand. 99 Additionally, the owners’ distinct investment-backed expectations were substantially frustrated because the regulation had not yet been promulgated when the owners purchased the property. 100 The property owners in Florida Rock suffered a similar hardship as a result of a denial of a wetland permit needed to mine limestone from their property. 101 The economic impact was comparatively large, and because the Clean Water Act had not yet been enacted at the time of the owners’ purchase, their distinct investment-backed expectations were similarly frustrated. 102 The outcomes, however, were vastly different; the Supreme Court rejected a regulatory takings advancement test should not be taken as rejection of such considerations of means and ends in takings law”). 94 See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978) (identifying “several factors that have particular significance” in the ad hoc inquiries conducted by the Court). 95 See id. 96 Echeverria, supra note 25, at 7. 97 Fla. Rock Indus., Inc. v. United States, 45 Fed. Cl. 21 (1999). 98 See Penn Cent., 438 U.S. at 115–17. 99 See id. at 116. 100 See id. at 109, 113 (noting that the New York preservation law was adopted in 1965 and Penn Central opened in 1913). 101 See Fla. Rock, 45 Fed. Cl. at 25. 102 See id. at 29, 36–39.
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