There’s an interesting discussion going on over at Professor Patty Salkin’s Law of the Land blog about a recent Ohio appeals court decision applying Lingle v. Chevron USA, 544 U.S. 528 (2005).
Lingle didn’t get rid of the “substantially advance” test, it merelyrelocated it to due process, and reminded us that in thosecircumstances where there is not a per se taking by wipeout of“beneficial” use (Lucas) or an occupation (Kaiser Aetna, Loretto),courts go back to Penn Central where no factor appears to bedispositive. So even if there is some value or use left in the land,Penn Central could allow for a finding of a taking, depending on thecircumstances of the case and how the other elements factor into thecalculus.
The opinion in Boice v. Village of Ottawa Hills (No. L-06-1208) (Aug. 31, 2007) is posted here.