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2010] Derailing Penn Central 907
opinion, and especially his reference to Eastern Enterprises, gives
hope to property owners that they may one day receive the increased
protection that a heightened means-ends standard of review provides.
But Justice Kennedy is correct in viewing the home for this meansends
review as being in due process, as opposed to regulatory takings,
jurisprudence.
Conclusion
For too long, property owners like John have received insufficient
protection from regulatory takings. They have been forced to resort
to overly complex and nontransparent tests for determining whether
they are entitled to just compensation, which has has allowed the
state, local, and federal governments to regulate in an overbroad
fashion.
The per se rule based on whether the owner is unable to recover
his original cost basis because of the government’s action, combined
with Loretto, provide property owners with a clear and objective doctrine,
while also assuring that they receive ample protection from
overreaching government regulation. The time is ideal for the Supreme
Court to shift its approach to regulatory takings analysis. Lingle’s
potential undermining of the character prong of the Penn Central
balancing test may impel the Court to determine whether it should
continue to apply this test. If property owners like John are to receive
the protection to which they are constitutionally entitled, the Court
should altogether abandon the Penn Central balancing test and embrace
a new doctrine of regulatory takings jurisprudence.
Enters., 524 U.S. at 550 (Kennedy, J., concurring in the judgment and dissenting in part). Kennedy’s
citation appears “to imply the applicability of a more searching and less deferential rational
basis review analogous to the more stringent economic substantive due process applied in
Eastern Enterprises had Chevron not voluntarily dismissed its due process claim.” See Jacobs,
supra note 61, at 479.