After Murr, the pending cert petition in Lost Tree was D.O.A., and today, the Court made it official. Cert denied. We thought that the Federal Circuit’s denominator analysis was the better one (although pretty much anything would have been better than what Justice Kennedy and his Immortals came up with in Murr). But since Lone Tree was a property owner win in the Federal Circuit, cert denial isn’t a bad thing.
The denial also let stand the Federal Circuit’s (correct) rule that it isn’t an economically beneficial use when the only use left after a regulation is that the property may recover its value some time in the future (aka “investment value”). This blows significant holes in the government’s common argument that the regulation isn’t a wipeout or a significant loss under Penn Central, because property usually rises in value so one day, the economic impact of the challenged regulation will be lessened.
This issue is presently being considered by the Hawaii Supreme Court in a case from Maui.