t-5 hours.. property law.. wth is the Penn Central test??? Forum

[dudnaito]

WHEN DO WE USE THIS BALANCING TEST?

[weee]

What my class learned is that Penn Central applies to regulatory takings that don't fit into any other box (like any non per se taking)

A Penn Central theory is basically always argued as an alternative to a hopefully more favorable theory, but usually not the easiest to win.

[cylusr]

The answer to this question is not "correct" per se. Sure the Penn tst applies to a regulatory taking, and not a taking per se (an actual invasion of one's property). However, a regulatory taking is much harder to prove and the analysis is much more complex. In order to prove a regulatory taking the "balancing test" is whether the public gain of the zoning outweighs the loss to the owner. In the Penn this means whether the public gain (the asthetic value, the history, the the other bs the court deems a public value) outweighs the burden on the owners of Penn central. The answer in Penn is that the public beneift does outweight the burden because Penn can still be used as it was intended to be used--as a railroad. The real test for whether a regluatory taking has occured is wheter or not the the building still has any economic value (See Lucas). Another factor to consider is whether the new or existing zoning laws contradict the reasonable investment/er backed expectations (RIBE). The analysis contionues on, however I think this should answer your question.

[zizou]

Here are the 3 Penn Central factors:

(1) economic impact on the claimant (2) extent of interference with reliance backed expectations (3) character of government action. Note that for the first prong the property is viewed as a whole, you can't say that, for example, the decision to not allow Grand Central to put an office building on top completely destroyed the economic value of the space above the existing structure.

Essentially for a the per se regulatory taking rule to be triggered there must be a total diminution of value.

[cylusr]

There is a difference between a per se taking and a regulatory taking. A per se taking is an actual physical invasion of lint (the government condems your property to build a road). A regulatory taking asks whether there is no economic value. There is no such thing as a per se regulatory taking.

[zizou]

There is a difference between a per se taking and a regulatory taking. A per se taking is an actual physical invasion of lint (the government condems your property to build a road). A regulatory taking asks whether there is no economic value. There is no such thing as a per se regulatory taking.

Um no? A per se rule just means that a certain condition triggers the result every time. For example under Loretto a per se physical invasion is a taking requiring just compensation, no matter how minimal the physical invasion is.

Likewise when there is a total wipeout, ie a 100% diminution of economic value of property, caused by a regulation, that triggers a per se regulatory taking rule (the Lucas rule -- taking unless nuisance exception satisfied).

I think you are just confused about the meaning of the term "per se". It does not mean physical.

[cylusr]

I'm saying that "per se" means actual physical invasion. I'm saying a per se taking is an actual physical invasion. The per se is indicating that no further analysis is reqired. Generally in an regulatory taking situation the plaintiff brings suit on an inverse condemnation arguing that some regulation (zoning most likely) constitutes a taking because the property no longer has any economic value. The court then looks to evidence to decide whether a tacking has occured.

It makes no sense to say per se regulatory taking. Per se espouses the idea that no other consideratoins are necessary (i.e., an actual physical invasion. However, a regulatory requires further analysis. For instance the court can look at reaonable investment backed expectations. The idea is that per se basically means that a taking is clear and obvious. Think about other situations when per se is used (negligence per se, per se nuisance).

I know this is more of a semantic argument, however, I just don't think you want to use the term per se when talking about regulatory takings.

[zizou]

I'm saying that "per se" means actual physical invasion. I'm saying a per se taking is an actual physical invasion. The per se is indicating that no further analysis is reqired. Generally in an regulatory taking situation the plaintiff brings suit on an inverse condemnation arguing that some regulation (zoning most likely) constitutes a taking because the property no longer has any economic value. The court then looks to evidence to decide whether a tacking has occured.

It makes no sense to say per se regulatory taking. Per se espouses the idea that no other consideratoins are necessary (i.e., an actual physical invasion. However, a regulatory requires further analysis. For instance the court can look at reaonable investment backed expectations. The idea is that per se basically means that a taking is clear and obvious. Think about other situations when per se is used (negligence per se, per se nuisance).

I know this is more of a semantic argument, however, I just don't think you want to use the term per se when talking about regulatory takings.

I don't mean to belabor the point but you really don't understand what per se means.

http://en.wikipedia.org/wiki/Regulatory ... al_Council

[JCougar]

Regarding the taking/not a taking there's three categorical rules:

Always a taking:
- Permanent physical occupation of land, no matter how small (Loretto)
- Total wipeout of economic value by regulation (Lucas)

Never a taking:
- Any regulatory move to abate a nuisance (Hadachek)

Any situation that does not fall into these three categories uses a balancing test that accounts for the private harm and the public gain from any particular regulation. Private harm is measured by 1) diminution in value of the property, and 2) any loss of investment-backed expectations relating to future value. When measuring public gain, courts also use average reciprocity of advantage to determine whether one property is being unfairly burdened without getting a share of the general public benefit from the regulation.

As someone said earlier, courts usually don't let you use conceptual severance to split the property up so that you can claim a total taking of only a small part of your property. Courts look at the property as a whole.

[Borhas]

1. see if per se taking, if not then...
2. see if Penn Central taking

[Tangerine Gleam]

I'm saying that "per se" means actual physical invasion. I'm saying a per se taking is an actual physical invasion.

This is wrong. A non-physical invasion can still be a "per se" taking if it wipes out all economic value under Lucas. A physical invasion is a type of per se taking (see Loretto), but a per se taking does not require an actual physical invasion.

JCougar summed it up the best. See if any of the per se takings rules apply (Hadacheck, Loretto, Lucas) and if not, proceed to a Penn Central analysis.