The current policies used in determining the standard for proving a regulatory taking of land are particularly strict. More often than not, the property owner is responsible for proving that exceptional circumstances exist which substantially deprives them of the use of their property. Additionally, the property owner is responsible for proving that the loss they suffered was a direct result of the taking through eminent domain.
As explained by the Pennsylvania Supreme Court in Machipongo Land & Coal Co. v. Department of Environmental Protection, 569 Pa. 3, 27, 799 A.2d 751, 765 (2002) , there are two types of regulatory takings: the Lucas taking and the Penn Central taking.
In a Lucas taking the landowner is deprived of all economically beneficial or productive use of their property. The only exception is when the proposed use of the land constitutes a public nuisance, and the landowner should have expected that the government would prohibit the use. While this form of regulatory taking is very rare, the consequences are significant and in some cases devastating to the property owner. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
The Penn Central type of taking forces individuals to bear public burdens, which should be shared by the public as a whole. A Penn Central taking occurs when a regulation places limitations on land that does not eliminate all economically beneficial use of the land, but nonetheless, a taking may have occurred. This scenario depends upon several complex factors including the regulation’s economic impact on the landowner, the extent to which the regulation interferes with reasonable financial expectations, and the intention of the government entity. Penn Central takings are more common than Lucas and though the provisions fall just short of those in a Lucas taking, they as well go too far. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978).
