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2010] Derailing Penn Central 889
entitled. The Court should not have to sacrifice the rights of property
owners in exchange for a regulatory takings analysis that is both easily
applied and certain.
IV.
Out with the Old, In with the New: Replacing Lucas
A. The Proposed Rule
A choice between applying the Penn Central balancing test and
paring the takings test down to the per se rules of Lucas and Loretto is
inherently unsatisfactory. If the Court embraces the Penn Central balancing
test, property owners will receive more protection than they
otherwise would under the sole application of Lucas and Loretto.
However, the test is vague and invites subjective decisionmaking. If
the Court applies only the per se rules of Lucas and Loretto, it will
finally have an analysis that provides certainty. The rights of property
owners, however, would be seriously diminished. Fortunately, the
Court need not choose between the two approaches.
The Court should adopt a regulatory takings doctrine consisting
solely of per se rules, but must replace Lucas with a new per se rule
holding that a regulatory taking occurs if, due to the regulation, the
property owner is unable to recoup his cost basis. Under this approach,
the Court would get the best of both worlds by abandoning
Penn Central in favor of per se rules that are also favorable to property
owners. This would eliminate the vagueness of a balancing test
while also providing property owners with ample opportunity to recover
if a regulation severely infringes upon their property rights. Although
the Court should continue applying Loretto, it is imperative
that Lucas be replaced with a broader per se rule. Requiring that a
regulation “den[y] all economically beneficial or productive use of the
land” 116 before a taking occurs allows the government to regulate at
will without having to worry about the effect regulations have on landowners
because such a strict test would likely be impossible to satisfy.
117 The Court should move to guard property rights more robustly
by replacing Lucas with the proposed per se rule, finding that a regulatory
taking occurs if a regulation prevents the property owner from
recovering his cost basis. The dispositive questions become whether
116 Lucas, 505 U.S. at 1015.
117 There are, to be sure, political repercussions for reprehensible conduct by elected representatives.
However, regulations may have a beneficial effect on much of the population. The
issue is not with the creation of such regulations, as they may very well be necessary, but instead
with the need for those property owners adversely affected to be rightfully compensated as the
Constitution requires.