PENN CENTRAL TRANSPORTATION CO. v. NEW YORK CITY 438 U.S. 104 (1978)

Some governmental regulations of the use of property are severe enough to be called takings of property, for which just compensation must be made under the explicit terms of the Fifth Amendment (governing federal government action) or interpretations of the fourteenth amendment ' sdue process clause (governing state action). This decision illustrates how difficult it is to persuade the Supreme Court that a regulation constitutes a "taking."

A New York City ordinance required city approval before a designated landmark's exterior could be altered. The owner of Grand Central Terminal sought to build a tall office building on top of the terminal, and was refused permission on aesthetic grounds. The Supreme Court held, 6–3, that this regulation did not constitute a "taking."

justice william j. brennan, for the majority, conceded that the takingregulation distinction had defied clear formulation, producing a series of "ad hoc factual inquiries." This regulation, however, was analogous to zoning under a comprehensive plan; over 400 landmarks had been designated. Further, the owner's loss was reduced by transferring its air-space development rights to other property in the city.

For the dissenters, Justice william h. rehnquist argued that the law's severely destructive impact on property values was not justified by either of the usual "exceptions": the banning of "noxious uses," or the imposition of widely shared burdens to secure "an average reciprocity of advantage" (as in the case of zoning). Penn Central had suffered a huge loss of value, not offset by benefits under the landmark law.

Kenneth L. Karst
(1986)