1. p. 820: "The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks—in addition to those imposed by applicable zoning ordinances—without effecting a 'taking' requiring the payment of “just compensation.”
2. p. 821: Landmark laws are based upon "a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all." [If "all" benefit, shouldn't all chip in and help pay for the cost of this regulatory taking?]
3. The Landmark Preservation Commission rejected Penn Central's plan to build a 55-story office tower "to be cantilevered above the existing facade, calling it an "aesthetic joke." (p. 824-825). This cost Penn Central rental income of approximately $3million a year! This is a huge taking of control over Penn Central's airspace!
Compare this taking of airspace to that in the Causby case. If the taking in Causby required just compensation, should the much greater taking in Penn Central also require just compensation? If all benefit, should all pay to acquire this benefit?
4.What is the purpse of the Takings Clause?" --p.827: "While this Court has recognized that the 'Fifth Amendment’s guarantee ... [is] designed to bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public as a whole,'... this Court, quite simply, has been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons."
5. Is this a "physical taking" of control over the air space above Grand Central Station? Or a "regulatory taking" thereof? Who has the right to control how the air space above GCS is employed? Penn Central? Or the government? If Penn Central began to develop the air space above GCS, what would the government of NYC do? Stand by helplessly? Or physically intervene, with guns and police if necessary? Is there really a material difference between physical takings and regulatory takings? If your answer is yes, is this a substantive difference or a formal difference?
Why does it matter? What is the test for a physical taking? [Per se rule: a physical taking is a taking no matter how small]. What is the test for a regulatory taking? [ad hoc (case-by-case) test that asks whether the regulation has gone too far. What is too far? Remember Mahon case?
6. In Penn Central, the Court says that whether a regulation goes too far depends upon whether the regulation "has interfered with distinct investment backed expectations" (p. 827) and whether it allows the property owner capable "of earning a reasonable return" on its investment. (p. 829) Where is all this nutmeg in the text of the Takings Clause?
7. The Court holds that there is no taking in this case (and thus no need for Just Compensation) because the law "does not interfere in any way with the present use of the Terminal," and allows Penn Central "a reasonable return on its investment." (p. 833). What is a reasonable return on an investment? Who decides? The market? Or the government?
8. Last but not least: Is the holding in Penn Central faithful to the purpose of the Takings Clause "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Who benefited from preserving GCS as an NYC landmark? Who bore the economic burden of preserving it? How is the landmark different from what it would have been if NYC directly condemned the air space over GCS?
