Here’s the amici brief we are filing today in support of the Petitioner in a case we’ve been following, Smyth v. Conservation Comm’n of Falmouth, No. 19-223 (cert. petition filed Aug. 20, 2019).
The Massachusetts Court of Appeals held that a judge, not a jury, determines Penn Central takings questions, and that the owner lost anyhow because, you know, Penn Central. Here are the Questions Presented:
- Whether the loss of all developmental use of property and a 91.5% decline in its value is a sufficient “economic impact” to support a regulatory takings claim under Penn Central.
- Whether a person who acquires land in a developed area, prior to regulation, has a legitimate “expectation” of building and, if so, whether that interest can be defeated by a lack of investment in construction?
- Whether the Court should excise the “character” factor from Penn Central regulatory taking analysis.
Rather than paraphrase our brief, here’s the Summary of Argument:
Hic sunt dracones—“Here be dragons.” Property owners and their lawyers view the Penn Central test much the same way that ancient mariners must have looked at the apocryphal designation on their maps—as a zone of mystery and inexplicable dangers.. Your case may run aground there, but you can’t really explain why in rational terms. Penn Central told us to consider at least three factors—(1) the severity of the economic impact of the challenged restriction on the property; (2) the extent of the property owner’s reasonable investment-backed expectations, and; (3) the character of the government’s conduct—but provided little guidance what these factors mean and how litigants and the lower courts should apply them.
This Court recently revisited another hastily-adopted regulatory takings shibboleth that shut property owners out of federal courts for decades. Like Knick v. Township of Scott, 139 S. Ct. 2162 (2019), the petition presents the opportunity to correct a longstanding—and unforced—error. See Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transp. Co. v. City of New York, 13 Wm. & Mary Bill of Rts. J. 679, 686 & n.34 (2005) (Why the Court addressed an issue “never litigated below,” and “departed from its usual practice and noted probable jurisdiction to consider an issue that was never dealt with in the lower courts is a mystery.”).
This petition could be even more important because unlike Knick (which focused on unfair and illusory procedures), this is about righting the substance of takings law. Knick’s critical recognition that the federal courts should be open to protect the federal constitutional rights of property owners will have little impact if all it means in that owners can now go to federal court and invariably lose, simply because the prevailing standard is so open to interpretation that it can support any reason to deny a claim. That’s a recipe for judicial fiat, not reasoned and uniform constitutional decisionmaking. See John D. Echeverria, Making Sense of Penn Central, 23 UCLA J. Envtl. L. & Pol’y 171, 174-75 (2005) (“If the Penn Central test is to serve as more than legal decoration for judicial rulings based on intuition, it is imperative to clarify the meaning of Penn Central.”); David L. Callies, Regulatory Takings and the Supreme Court: How Perspectives on Property Rights Have Changed from Penn Central to Dolan, and What State and Federal Courts Are Doing About It, 28 Stetson L. Rev. 523, 574 (1999) (concluding that “state (and some lower federal) courts are not hearing (or not wanting to hear) the U.S. Supreme Court,” which leads to inconsistent and unpredictable results); William W. Wade, Penn Central’s Ad Hocery Yields Inconsistent Takings Decisions, 42 Urb. Lawyer 549 (2010) (an economist familiar with taking law writes, “The Supreme Court has avoided articulating a coherent theoretical framework to replace the “ad hoc, factual inquiries”‘ of Penn Central”) (footnote omitted).
Regulatory takings law, as Justice Thomas recently suggested, needs a “fresh look.” Murr v. Wisconsin, 137 S. Ct. 1933, 1957 (2017) (Thomas, J., dissenting). This case presents the opportunity to provide coherent guidance and to steer away from the figurative dragons by bringing some clarity, predictability, and balance to regulatory takings law. See Vieth v. Jubelirer, 541 U.S. 267, 278 (2004) (“[L]aw pronounced by the courts must be principled, rational, and based upon reasoned distinctions.”).
Stay tuned.