Justice Breyer dissenting
SUPREME COURT OF THE UNITED STATES
No. 99—2047
ANTHONY PALAZZOLO, PETITIONER
v.
RHODE ISLAND et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND
[June 28, 2001]
Justice Breyer, dissenting.
I agree with Justice Ginsburg that
Palazzolo’s takings claim is not ripe for adjudication, and I join her
opinion in full. Ordinarily I would go no further. But because the Court
holds the takings claim to be ripe and goes on to address some important
issues of substantive takings law, I add that, given this Court’s
precedents, I would agree with Justice O’Connor that the simple fact
that a piece of property has changed hands (for example, by inheritance)
does not always and automatically bar a takings claim. Here, for
example, without in any way suggesting that Palazzolo has any valid
takings claim, I believe his postregulatory acquisition of the property
(through automatic operation of law) by itself should not prove
dispositive.
As Justice O’Connor explains, under Penn
Central Transp. Co. v. New York City, 438
U.S. 104 (1978), much depends upon whether, or how, the timing and
circumstances of a change of ownership affect whatever reasonable
investment-backed expectations might otherwise exist. Ordinarily, such
expectations will diminish in force and significance–rapidly and
dramatically–as property continues to change hands over time. I believe
that such factors can adequately be taken into account within the Penn
Central framework.
Several amici have warned that to allow
complete regulatory takings claims, see Lucas v. South Carolina
Coastal Council, 505
U.S. 1003 (1992), to survive changes in land ownership could allow
property owners to manufacture such claims by strategically transferring
property until only a nonusable portion remains. See, e.g., Brief
for Daniel W. Bromley et al. as Amici Curiae 7—8. But I do
not see how a constitutional provision concerned with “
‘fairness and justice,’
” Penn Central, supra, at 123—124 (quoting Armstrong
v. United States, 364
U.S. 40, 49 (1960)), could reward any such strategic behavior. |
