Another Failed Regulatory Takings Claim Under Penn Central


We've talked in the past about just how hard it is to state a regulatory takings claim under the Supreme Court's decision in Penn Central Transportation Co. v. New York City, 438 U.S. 104.  I'd go through the test and how hard it is again, but it's complicated, a lot of work and, quite frankly, I'm a bit tired today.  So here's my lazy approach.  Read one of our earlier posts on the subject: 

The bottom line is that the courts have found myriad ways to find fault in property owners' Penn Central claims, both procedurally and substantively, with the end result being that few such claims are ever successful. 

A decision last week by the Ninth Circuit continued that trend.  In MHC Financing Ltd P'ship v. City of San Rafael, No. 07-15983 (Apr. 17, 2013), the Ninth Circuit reversed an earlier District Court ruling that a rent control ordinance involving a mobile home park qualified as a taking under Penn Central.

Now, I've already confessed that I'm feeling lazy today, so it may come as no real surprise that I'm not even going to tell you about the case.  For that, you'll again have to turn elsewhere:  The Ninth Circuit Botches Regulatory Takings Again, by Robert Thomas of the blog.  (In my defense, Robert's write up is detailed, entertaining, and informative -- far more than I would likely achieve even if I weren't lazy).  

I should offer one disclaimer.  Robert is decidedly slanted on the property owner's side, and does not profess to offer a balanced view of things.  The title of his post may give him away in that respect.  Still, when he writes

Read that again, to make sure you got it: a transfer of $97 million is not enough [to qualify as a taking under Penn Central]. Wow. Maybe this is just Marin County, and you know, a dollar doesn't go as far here as elsewhere.

it's hard not to nod your head.  And yes, so we're clear in case you didn't click over to read Robert's post, the Court held that an ordinance which transferred over 80% of the property's value away from the owner -- to the tune of $97 million -- wasn't enough to qualify under the "economic impact" prong of the three-part Penn Central test.  

There's a lot more to the case, and if you still haven't clicked over to read Robert's summary . . . well, clearly you aren't that interested in the case.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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