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Breyer, J., dissenting

SUPREME COURT OF THE UNITED STATES

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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.