UH Law Professor Carl Christensen has kindly invited me to discuss takings law with the students in his historic preservation seminar on Monday. I think a good starting point is the granddaddy of historic preservation/regulatory takings decisions, Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978), a case that highlights the competing concerns when the public’s desire to preserve a historic structure collides with a landowner’s desire to make reasonable use of it.
That case also gave us the “ad hoc” (aka Penn Central) three-part regulatory takings standard that has confounded the courts ever since.
In engaging in these essentially ad hoc, factual inquiries, the Court’s decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, supra at 594. So, too, is the character of the governmental action. A “taking” may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Causby, 328 U.S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good.
More to follow after what I am sure will be an engaging session.