Deciphering and Extrapolating: Searching for Sense in Penn Central
C ONCLUSION
Whether Penn Central will survive as a guide to regulatory takings liability depends on whether its key provisions can be imbued with a modicum of intelligibility, certainty, and predictability. Cases like Guggenheim, CCA Associates , and DeCook will continue to wend their way through the judicial system until the Roberts Court either selects a vehicle for a meaningful application of Penn Central or jettisons that decision for a new paradigm of liability under the Takings Clause.
109 . Id. at *18–19. Although Judge Johnson’s dissent faults the majority for not applying Penn Central as a “three-part balancing test,” he seems to argue against a finding of takings liability solely on
the basis of the economic impact prong. Id. at *17. Neither the majority nor the dissent consider the effect of the restrictions on DeCook’s investment-backed expectations.
110 . DeCook v. Rochester Int’l Airport Joint Zoning Bd., 796 N.W.2d 299 (Minn. 2011).
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