The Center for Constitutional Jurisprudence and the Reason Foundation have joined the list of parties (us included) who submitted briefs supporting the cert petition in Guggenheim v. City of Goleta, No. 10-1125 (petition for cert. filed Mar. 11, 2011). Their brief is available here.
In that case, California mobile home park owners are asking the Court to review the decision of a sharply divided en banc Ninth Circuit which held that Goleta’s mobile home rent control ordinance did not work a regulatory taking under Penn Central. because the Guggenheims purchased their mobile home park after it was rent regulated. The brief argues:
Although Amici agree that the Ninth Circuit decision below completely misconstrued this Court’s decision in Palazzolo, the Ninth Circuit was able to do this end-run of Palazzolo because of the underlying incoherence in the test that was first set out in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), and has now been so broadly interpreted by some lower courts as to provide fodder for mischief of the kind manifested by the court below.
Critiques of the Penn Central test are legion. Just this past year and referencing this very case, among others, William Wade noted that “application of the Penn Central test . . . remains in disarray.” William W. Wade, Penn Central’s Ad Hocery Yields Inconsistent Takings Decisions, 42 Urb. Law. 549, 549 (2010). “The three-part test has come under considerable criticism,” with the dominant criticism holding “that the test is incomprehensible.” Eric R. Claeys, The Penn Central Test and Tensions in Liberal Property Theory, 30 Harv. Envtl. L. Rev. 339, 342 (2006). There is “widespread confusion” about it. D. Benjamin Barros, The Police Power and the Takings Clause, 58 U. Miami L. Rev. 471, 471 & n.1 (2002). It is a “muddle.” Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. Cal. L. Rev. 561, 561 (1984). There is a “widespread view that regulatory takings is an especially confused field of law.” John D. Echeverria, Making Sense of Penn Central, 39 Envtl. L. Rep. News & Analysis 10471 (2009).
Brief at 3-4.