Takings, TDRs, and Environmental Preservation: “Fairness” and the Hollywood North Beach Case

Abstract

In considering whether a governmental police power regulatory action results in a taking,¹ the U.S. Supreme Court has indicated that it will primarily focus on two broad questions: (1) What is the character of the governmental action? and (2) What is the economic impact of the regulation on the affected property owner? Penn Central Transportation Co. u. City of New York, 438 U.S. 104, 124 (1978), 30 ZD 434. The Court has reiterated, however, that there is no set formula by which the answers to the above questions can be analyzed. Agins u. City of Tiburon, 447 U.S. 255, 260–61 (1980), 32 ZD 256; Penn Central, supra, 438 U.S. at 124. The touchstone for determining whether a taking has occurred is the “standard” of “justice and fairness.” Agins, supra, 447 U.S. at 263; Penn Central, supra, 438 U.S. at 124.