In 1922, the United States Supreme Court first recognized that a governmental regulation could be the equivalent of an uncompensated taking of private property in violation of the Fifth Amendment.[1] Writing for the majority in Pennsylvania Coal Co. v. Mahon, Justice Holmes said, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”[2] In the years since that imprecise beginning, the Supreme Court[3] developed a series of sometimes overlapping tests to determine whether a regulation went “too far.” One such test came from Agins v. City of Tiburon, in which the Court held that a regulatory taking would be recognized if the regulation did not substantially advance legitimate state interests.[4] In 2005, the Supreme Court thoroughly reviewed its regulatory takings jurisprudence in Lingle v. Chevron U.S.A. Inc.[5] and discarded the Agins test for regulatory takings. Immediately after Lingle, the Massachusetts Supreme Judicial Court reexamined regulatory takings in Gove v. Zoning Board of Appeals of Chatham[6] and also rejected the “substantially advances” test.  

In addition to eliminating the Agins test, both Lingle and Gove emphasized that subsequent regulatory taking claims should be analyzed under one of the three following approaches:[7]

 

1.   A regulatory taking occurs where a regulation causes a “permanent physical invasion” of private property.[8]

 

2.   A regulatory taking occurs where a regulation deprives an owner of “all economically beneficial use” of private property, except to the extent that “background principles of nuisance and property law” independently limit the owner’s use of the property.[9]

 

3.   Where the first two approaches are inapplicable, regulatory taking claims are governed by the flexible economic impact factors set forth in Penn Central Transportation Co. v. New York City.[10]

 

This article will discuss the “substantially advance legitimate state interests” test abandoned by Gove and Lingle and examine the three remaining categories of regulatory taking claims with particular emphasis on how Massachusetts courts have applied them. Additionally, the article will review the threshold question of ripeness, applicable to all regulatory taking claims.

 

1.   Failure to “Substantially Advance Legitimate State Interests” has been removed from takings jurisprudence.

 

Lingle v. Chevron U.S.A, Inc. arose from a challenge to a Hawaii statute that restricted the rents charged by oil companies to their lessee service stations, in order to prevent high retail gasoline prices.[11] Relying on Agins v. City of Tiburon,[12] the trial court determined that the statute caused a regulatory taking because it did not substantially advance legitimate state interests.[13] The Supreme Court reversed and unequivocally rejected  the failure to “substantially advance legitimate state interests” as an appropriate test for determining whether a regulation has caused an uncompensated taking of private property.[14] In her majority opinion, Justice O’Connor characterized the test as a “regrettably imprecise” commingling of due process and taking inquiries, pointing out that a regulation which fails to serve any legitimate governmental objective may be so arbitrary or irrational as to deprive persons of property rights in violation of the Due Process Clause.[15] Such a regulation would be unconstitutional regardless of the degree of financial impact it might have on an individual landowner. By contrast, the Takings Clause of the Fifth Amendment “does not prohibit the taking of private property, but instead places a condition on the exercise of that power.”[16]

 

The policy underlying the Takings Clause is to prevent government from placing a financial burden on certain people that should rightly be borne by the public as a whole.[17] In typical eminent domain cases, the public compensates a property owner for dedicating its private property to a public purpose. In Lingle, Justice O’Connor stated that regulatory taking cases must be analyzed in the context of the fundamental nature of all governmental takings.

 

[R]egulatory [taking] actions [ ]are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain. Accordingly, each of . . . [the recognized tests for regulatory takings] focuses directly upon the severity of the burden that government imposes upon private property rights.[18]

 

Holding that the “substantially advances” test is unrelated to the underlying policies of the Taking Clause, the Court concluded, that it “…prescribes an inquiry in the nature of due process, not a takings test, and that it has no proper place in our takings jurisprudence.” [19]

 

Immediately following Lingle, the Massachusetts Supreme Judicial Court decided Gove v. Zoning Board of Appeals of Chatham, where the claimant argued that a coastal conservancy by-law that prohibited development on her lot did not substantially further legitimate state interests.[20] Massachusetts had previously recognized the Agins test in Lopes v. City of Peabody.[21] Referring to Lingle, the Supreme Judicial Court stated simply that the “substantially advances” test would no longer be recognized in takings cases.[22]

 

The Court in Gove went on to hold that the prohibition against residential development on the claimant’s lot had a sufficient relationship to legitimate state interests to withstand a due process challenge.[23] Both Lingle and Gove hold that the failure to substantially advance legitimate state interests is no longer an applicable standard for reviewing due process claims. The Lingle decision made repeated references to the “deferential reasonableness” standard that has been repeatedly applied to “determine whether a challenged regulation was a valid exercise of the police power under the Due Process Clause.”[24] In his concurring opinion, Justice Kennedy stated that the Lingle decision “does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process,” yet he did not suggest that the heightened scrutiny of the “substantially advances” test would be applicable to such claims.[25] A regulation which does not substantially advance state interests may nonetheless sufficiently serve a rational purpose to overcome a claim that it is arbitrary or irrational. In Gove, the Supreme Judicial Court emphasized that due process challenges to zoning regulations will not succeed unless the regulation bears no “reasonable relation to the State’s legitimate purpose.”[26] Thus, it appears settled in Massachusetts that the “substantial advances legitimate state interests” stated in Agins v. City of Tiburon[27] is no longer applicable to constitutional challenges of governmental regulations on either taking or due process grounds.

 

 

 

2.   The Physical Invasion Factor.

 

When discussing the concept of regulatory takings, courts have consistently recognized that “where government requires an owner to suffer a permanent physical invasion of her property — however minor — it must provide just compensation.”[28] The Supreme Court has classified any such physical invasion of private property as a “categorical” regulatory taking.[29] The precedent frequently cited to support this factor is Loretto v. Teleprompter Manhattan CATV Corp., which held that a state law compelling apartment building owners to permit installation of cable television facilities in their buildings constituted a taking.[30] Earlier, in United States v. Cress, the Supreme Court recognized that repeated floodings of land caused by a water project constituted a taking.[31] Similarly, in what might be characterized as more than a mere figurative invasion of private property, the Court in Portsmouth Harbor Land & Hotel Co. v. United States held that the military firing guns over a claimant’s land was a taking.[32] More recently, in Nollan v. California Coastal Commission, the Supreme Court held that the exaction of a public beach easement as condition for a permit to construct a house was a physical invasion which constituted a taking.[33]

 

While the physical invasion test for regulatory takings has often been mentioned by Massachusetts courts,[34] no reported Massachusetts decision has determined that a governmental regulation caused so great a physical invasion as to entitle a property owner to compensation. Moreover, in at least two cases where the government took physical possession of the claimants’ property, their regulatory taking claims did not succeed. In Davidson v. Commonwealth, the Massachusetts Department of Public Health took over operation of a nursing home after the governor declared a public health emergency for the protection of the nursing home patients.[35] The Court drew a distinction between an exercise of eminent domain power which is compensable and an exercise of police power which is not.

 

[I]n the exercise of eminent domain a property interest is taken from the owner and applied to the public use because such use is beneficial to the public, while in the exercise of the police power an owner’s property interest is restricted or infringed upon to prevent its use in a manner detrimental to the public interest.[36]

 

Similarly, in Nassr v. Commonwealth, the Supreme Judicial Court found no compensable taking where the state took possession of a contaminated property to remediate hazardous waste.[37] The Court characterized the governmental action as “classic exercises of the State’s police power to maintain the public health.”[38] Both the Davidson and Nassr cases applied a due process analysis that was subsequently rejected for regulatory takings claims in the Lingle decision. Furthermore, the distinction between preventing harm to the public and promoting a public benefit was discredited in Lucas v. South Carolina Coastal Council.[39] Yet it seems unlikely that these Massachusetts cases would be decided differently today. First, neither case constituted a permanent physical invasion of the claimant’s property and the takings test has always been described in terms of permanent invasion. Second, both the presence of hazardous waste in Nassr and the unsafe nursing home in Davidson constituted public nuisances for which the Supreme Court carved out an exception to so called “categorical” takings in Lucas v. South Carolina Coastal Council discussed below.

 

3.   The Lucas Test

 

The Supreme Court announced a second categorical test for regulatory takings in Lucas, holding that a regulatory taking occurs whenever a regulation eliminates all economically valuable use of land, except where the regulation prohibits a violation of common law nuisance or property principles.[40] The Lucas holding has often been recognized in Massachusetts decisions.[41] Yet, despite its notoriety, the Lucas test offers little practical guidance because as the Appeals Court noted in 2004, “[n]o Massachusetts appellate court has addressed the circumstances in which compensation is warranted for a per se or categorical taking under Lucas principles.”[42] The unanswered question in both federal and state cases is: how far does a regulation have to go to make land valueless? Apparently in Massachusetts, the regulation must go extremely far because state courts have always found some residual value to land made less valuable by a regulation.[43] The residual value of land affected by state regulations is discussed below in the section about the economic impact of regulations.

 

Lucas arose from a case in which petitioner purchased two beach front lots in 1986 which were then legal building sites. In 1988, South Carolina enacted the Beachfront Management Act to prevent beach erosion, pursuant to which the construction of houses on the two lots became prohibited.[44] The trial court found that the legislation “deprived Lucas of any reasonable economic use of the lots . . . and rendered them valueless.”[45] Justice Blackman’s dissent characterized the trial court’s finding to be “unreviewed and implausible” and pointed to obvious residual uses for the property.[46] “Petitioner still can enjoy other attributes of ownership . . . [he] can picnic, swim, camp in a tent, or live on the property in a movable trailer.”[47]

 

Although the majority of the Lucas court acknowledged that a regulation which caused a complete deprivation of all beneficial economic use would be an “extraordinary circumstance,”[48] it used the facts found by the trial court to diminish the breadth of the state’s police power in the area of regulatory takings. Prior to Lucas, state action adversely affecting a private property right would not have been characterized as a taking if it proscribed a harmful or noxious use of property.[49] The right to compensation would arise only where a regulation adversely attached private property rights for the sake of promoting the public good. The Lucas decision discarded the previously recognized distinction between regulations which prevent harm, and regulations which confer a public benefit. The Court stated that as a general rule, where a regulation deprives the owner of all economically valuable use of the land, regardless of how the public purpose is categorized, the owner is entitled to compensation under the Takings Clause.[50] However, the Lucas court carved out an exception to its categorical rule by stating that a regulation depriving an owner of all economically beneficial use of land will not be deemed a regulatory taking based upon common law principles of nuisance and property law.[51] The Court reasoned that the bundle of rights that attach to land ownership does not include the right to create a nuisance or to violate property rights recognized under common law.[52] If a regulation were to abate such nuisance or violation of property rights, then it would not affect rights that the land owner had ever actually possessed. Thus, a governmental authority may deprive an owner of his entire interest in real estate to prevent harm but only if that particular harm was previously recognized in the common law.

 

4.   The Penn Central Factors

 

In light of the infrequency of circumstances that fall under the categorical tests discussed above, it appears likely that future Massachusetts regulatory takings claims will be determined through an application of the flexible economic impact factors set out in Penn Central Transportation Co. v. City of New York.[53] This case arose when the New York City Landmarks Preservation Commission prohibited the erection of an office tower of more than fifty stories on top of Grand Central Station.[54] The landmark station was constructed in 1913 and was regarded as a “magnificent example of French beaux-arts style.”[55] Penn Central argued that the Commission’s decision constituted a regulatory taking.

 

Writing for the majority, Justice Brennan recognized that regulatory taking claims cannot be decided according to a “set formula”, recognizing that each claim “depends largely upon the particular circumstances in that case” including “the economic impact of the regulation . . . and particularly, the extent to which the regulation has interfered with distinct investment-backed expectations . . . [and] the character of the governmental action.”[56]

 

The Supreme Judicial Court in Leonard v. Brimfield reduced the Penn Central holding to three distinct factors for determining when a regulatory taken has occurred:

a.   “The economic impact of the regulation” on the property in question;

 

b.   “The extent to which the regulation has interfered with distinct investment-backed expectations;” and

 

c.   “The character of the governmental action.”[57]

 

 

Each of the three factors has been considered in several federal and state cases since the Penn Central decision.

 

Economic Impact

 

A claimant seeking compensation for a regulatory taking must show that severe economic loss.[58] In Penn Central, after assessing the economic impact of the Landmark Preservation regulations on Grand Central Station, the Court held that the economic impact was not sufficiently severe to rise to the level of a taking. The Court emphasized that Penn Central “may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions.”[59]

 

In evaluating the severity of economic losses, Massachusetts courts look to the whole of the claimant’s property, rather than the losses suffered with respect to any particular discrete segment of the land.[60] In FIC Homes of Blackstone , Inc. v. Conservation Commission of Blackstone, a regulation that caused an owner to lose one lot out of a total of thirty-eight lots on a parcel was not a sufficiently severe economic loss to constitute a regulatory taking.[61] In Leonard v. Brimfield, the loss of the right to build houses on ten out of a total of sixteen acres on plaintiff’s land was not severe enough to sustain a regulatory taking claim.[62] The court in Leonard also noted that the land left unavailable for residential purposes remained suitable for agriculture, horticulture and recreational purposes.[63] In Zanghi v. Board of Appeals of Bedford, the Appeals Court determined that the loss of a single potential lot in a subdivision as a result of a zoning amendment did not constitute severe economic loss, particularly where the owner had already made a profit on the other lots in the subdivision and the lot unavailable for building could still be used for forestry, agriculture and conservation uses.[64]

 

In Daddario v. Cape Cod Commission where the Cape Cod Commission declined to permit use of land for a sand and gravel mining operation to the full extent proposed by the landowner, the Supreme Judicial Court found sufficient residual value in the possibility of a less extensive mining operation and alternative uses including community service, agriculture and residential uses and held that a taking had not occurred.[65]

 

In Massachusetts regulatory taking decisions, courts have held that the purported negative economic impact must be a direct consequence of the governmental regulation. The claimant in W.R. Grace & Co.-Conn v. Cambridge City Council sought regulatory taking damages for a temporary building moratorium that affected its twenty-nine acre site in Cambridge.[66] In rejecting its economic impact argument, the Appeals Court observed that the landowner chose not to develop the entire parcel in large part because of market factors unrelated to the City’s zoning regulations.[67] The economic impact for which plaintiff sought compensation was not actionable in a regulatory taking claim because it was not entirely the product of the regulation.

 

Interference with Investment-Backed Expectations

 

Penn Central took a long view of investment backed expectations and looked to the original purposes for which Grand Central Station was constructed. Because it could still be utilized as a railroad station, the regulation did not “interfere with what must be regarded as Penn Central’s primary expectation concerning use of the parcel.”[68] The Court observed that according to the record in the case, Penn Central was able to obtain a “reasonable return” on its investment from the existing use of the building.[69]

 

Massachusetts decisions on claims based on interference with investment backed expectations have focused on the landowner’s legitimate and reasonable expectations. In Gove, the court observed that prior to adoption of coastal conservatory regulations expressly prohibiting construction on the claimant’s land, it was a “highly marginal parcel” exposed to flooding and had long been considered unsuitable for development.[70] After adoption of the regulation, appreciation of property values in the area had increased to the point that the land might have had some potential for development. In these circumstances, the Court held that, “[t]he takings clause was never intended to compensate property owners for property rights that they never had.”[71] The land owner’s legitimate investment backed expectations had to take into account existing rules and understandings with respect to land use. Furthermore, property owners must also expect that new zoning regulations may be enacted from time to time that may frustrate development plans for a particular parcel. The Appeals Court bluntly cautioned land owners in W.R. Grace & Co.-Conn v. Cambridge City Council:

 

[A] developer with designs on improving its property consistent with an existing zoning framework had best get its shovel into the ground. That the zoning change prevents the owner from exploiting the investment potential of the property to the fullest does not make it a taking. [72]

 

Massachusetts Courts have also considered the date on which a regulation was adopted in relation to the date upon which the claimant had acquired the land affected by the regulation. If the land was acquired when the regulation was already in effect, the claim of interference with investment backed expectations would be considerably weaker. The claimant in Leonard v. Town of Brimfield alleged a taking because a special permit regulation diminished the value of her sixteen acre subdivision.[73] Her argument based on investment backed expectations failed because the regulation was in effect when she purchased the land. The court held that “[b]ecause she purchased the property subject to the restrictions on building in a flood plain, she may not complain about the loss of a right she never acquired.”[74] However, although the timing of the acquisition of the land in relation to the adoption of a regulation is relevant to an inquiry about interference with investment backed expectations, it is not, by itself, determinative. In Palazzolo v. Rhode Island, the Supreme Court expressly held that acquisition of land after the enactment of a land use restriction does not automatically bar a subsequent owner from making a regulatory taking claim.[75] Similarly, the Supreme Judicial Court in Lopes v. City of Peabody allowed the landowner to challenge a regulation notwithstanding that the regulation was in effect when the land was purchased.[76]

 

On the other hand, the Supreme Judicial Court held in Flynn v. City of Cambridge that condominium owners who purchased their units after adoption of a rent control regulation prohibiting removal of controlled units from the rental housing stock were “fairly warned that they are purchasing property which may be used for rental housing only.”[77] The court in Flynn undertook an additional level of analysis about regulations which interfered with owners’ expectations.[78] The rent control regulation in that case also applied to a second class of owners who had purchased units and rented them to tenants before the regulation was adopted. This second class of owners were also prevented from evicting the tenants and removing their units from rental housing stock. Citing Penn Central, the court held that no taking had occurred because the governmental action (i) “did not interfere with the owners’ primary expectation concerning use of the property,” and (ii) “the owner was still able to obtain a reasonable return on its investment.”[79] These owners were using the units for rental purposes when the ordinance went into effect, the court concluded that their primary and original expectation had not been frustrated.[80] Furthermore, under applicable rent control regulations, owners were entitled to receive a fair net operating income from the unit.[81] That owners could make a more profitable use of their units but for the regulations was not sufficient interference with investment backed expectations to support a regulatory taking claim.

 

Whether a regulation interferes with legitimate investment backed expectations is a central element of the Penn Central approach, but courts have declined to articulate any hard and fast rules about this factor. As different fact patterns arise, courts will analyze the legitimacy of the claimant’s purported expectations and the extent to which a regulation interferes with them.

 

The Character of Governmental Action

 

The third guidepost from the Penn Central analysis of regulatory takings claims is “the character of governmental action.”[82] While discussing the “character of governmental action” factor, the Supreme Court in Penn Central examined cases in which a regulation was upheld if it “served a substantial public purpose,”[83] citing Miller v. Schoene, where the state ordered claimants to cut down a large number of ornamental red cedar trees because they produced a disease fatal to nearby apple trees.[84] Despite a clear physical invasion of the private property, the state’s order was upheld because it served a substantial public interest.[85] In view of the recent holding in Lingle, inquiries about whether a regulation serves a substantial public purpose might now be characterized as due process issues rather than indications of whether a regulatory taking had occurred. After Lingle, courts may not be able to deny takings claims by simply finding that the state action was an exercise of legitimate state police power. The court in Miller approved “destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public.”[86] The legitimate exercise of police power may continue to withstand a due process challenge, but economic impacts imposed upon a property owner may have to be analyzed to determine whether compensation is required under the Takings Clause.

 

Despite the holding in Lingle, the Supreme Judicial Court in Gove examined the purposes of the regulation in its takings analysis of the “character of governmental action”. The Court characterized Chatham’s coastal regulations as the type of limited protection against harmful private use of land that routinely withstands regulatory taking claims.[87] The Court noted that potential flooding of the subject property would adversely affect surrounding areas.[88] It went on to state that “[r]easonable government action mitigating such harm, at the very least when it does not involve a ‘total’ regulatory taking or a physical invasion, typically does not require compensation.”[89] Thus, it seems that in Massachusetts so long as a regulation does not cause a so-called categorical taking, courts may examine the purposes of a regulation in a regulatory taking claim as part of its Penn Central analysis of the character of the governmental action in question.

 

Several other Massachusetts decisions that have discussed the “character of governmental action” suggest that in the absence of a physical invasion of a property, governmental action does not amount to a taking.[90] It thus appears that an overlap exists between the physical invasion categorical test typified by Loretto v. Teleprompter Manhattan CATV, as discussed above, and the character of governmental action prong of the Penn Central test. This overlap is apparent in the Penn Central, itself, which expressly described the “character of governmental action” by referring to a “physical invasion by the government.”[91]

 

 

5.   The Ripeness Doctrine in Regulatory Taking Claims

In addition to satisfying the substantive requirements discussed above, a plaintiff bringing a regulatory taking claim must also show that its claim is ripe. The Supreme Court set out the ripeness doctrine in Williamson County Regional Planning Comm’n v. Hamilton Bank:

a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.[92]

 

In Williamson County, amendments to zoning regulations reduced the number of lots into which a tract of land could be subdivided.[93] The owner brought a federal claim under 42 U.S.C. §1983 alleging that its property had been taken without just compensation.[94] The Supreme Court held that the claim was unripe because the claimant had not applied for variances that were available under applicable law.[95] The court observed that it could not make a meaningful decision about how the regulation may have interfered with investment backed expectations until the responsible administrative agency “has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question.”[96] Williamson County also held that where state law provides a forum for seeking compensation for a regulatory taking, a claim to federal court would not be ripe until just compensation has been denied by the state court.[97]

 

The Supreme Judicial Court applied the ripeness doctrine in Daddario v. Cape Cod Commission where a permit had been denied for extensive sand and gravel removal.[98] From the record, on appeal the Court concluded that the Commission might approve a less extensive sand and gravel operation.[99] It considered the applicant’s taking claim to be unripe because the Commission had not made a “final determination on the nature and extent of development” that it would permit on the claimant’s land.[100]

 

The Supreme Court recognized an exception to the ripeness doctrine in Palazzola v. Rhode Island. In that case, the landowner had twice applied for permits to fill a salt marsh. The responsible state agency had denied both applications even though the second application called for less filling.[101] The State of Rhode Island argued that the landowner’s regulatory taking claim was unripe because it had not yet applied for permits that involve less filling than the previous applications.[102] The Supreme Court refused to characterize the claims as unripe, concluding from the record that the state would not allow the filling of any part of the salt marsh and that the permissible uses of the property were known to “a reasonable degree of certainty.”[103] The Court refused to require the applicant to submit futile applications where there was no doubt of the outcome of such applications.

 

The exception to the ripeness doctrine stated in Palazzola is narrow. It only excuses a landowner from making additional pointless administrative applications after the impact of a regulation is manifestly clear. The exception was not applicable in Commonwealth v. Blair, where the Appeals Court held that a regulatory taking claim under the Massachusetts Watershed Protection Act was unripe because the claimant had failed to apply for a variance from the Act’s requirements.[104]

 

6.   Conclusion

Lingle v. Cheveron U.S.A., Inc. holds that regulatory taking claims should be decided by measuring the magnitude and character of the burden that a regulation places upon private property.[105] This decision suggests that an inquiry about whether a regulation serves a legitimate state interest does not fall within the constraints of the Takings Clause. Under Lingle, challenges to the purposes and effectiveness of a regulation are to be controlled by the Due Process Clause.[106] However, in Gove, the Supreme Judicial Court ostensibly accepted all of Lingle, yet pointed out in its takings analysis that the challenged by-law was typical of regulations which serve the public interest.[107]

 

The Court in Lingle acknowledged with approval the categorical taking test in Lucas v. South Carolina Coastal Council.[108] However, for courts to apply the Lucas exceptions for common law nuisance and property law violations, the purposes of the regulation must be examined. Whether a regulation abates a common law nuisance is part of an inquiry about the legitimate exercise of police powers. Despite the Court’s efforts in Lingle to separate due process from takings issues, both concepts are likely to remain relevant whenever someone challenges the effect that a land use regulation has upon private property. The unhappy landowner typically believes that the state has no legitimate business interfering with his private property, and the state will invariably point to promoting the public good as justification for its regulation. Moreover, it appears that the “character of governmental action” factor in the Penn Central analysis compels both sides to make such arguments about the purposes of the regulation. Unquestionably, however, governments no longer have to contend with the difficult burden under Agins v. City of Tiburon of showing that a regulation substantially advances legitimate state interests. Regardless of how the purpose of the underlying regulation is challenged, governments now need only show that the regulation bears some reasonable relation to the state’s legitimate interests.

 

On a practical level, Lingle strongly recommends that claimants’ pleadings be carefully constructed to separately allege due process challenges and taking claims.[109] Courts, in turn, should discern the difference between the two constitutional principles when addressing challenges to regulations that may diminish the value of private property.

 

The flexible three factor test of Penn Central remains the most useful tool for analyzing regulatory takings claims. Although not a simple litmus test approach, it does identify the rational factors to be considered when deciding whether a regulation has caused an uncompensated taking of private property. To date, almost no Massachusetts cases have addressed a regulation that imposes a disproportionate burden on a land owner to the point that it creates an uncompensated taking. However, despite the reluctance to actually find regulatory takings, courts on both the state and federal levels have repeatedly maintained that a regulatory taking will occur if, as Justice Holmes observed more than eighty years ago, the “regulation goes too far.”[110]