648
Ginsburg, J., dissenting
the [uplands'] permitted use." Ante, at 622. The Court's conclusion is, in my view, both inaccurate and inequitable. It is inaccurate because the record is ambiguous. And it is inequitable because, given the claim asserted by Palazzolo in the Rhode Island courts, the State had no cause to pursue further inquiry into potential upland development. But Palazzolo presses other claims here, and at his behest, the Court not only entertains them, but also turns the State's legitimate defense against the claim Palazzolo originally stated into a weapon against the State. I would reject Palazzolo's bait-and-switch ploy and affirm the judgment of the Rhode Island Supreme Court.
* * *
Where physical occupation of land is not at issue, the Court's cases identify two basic forms of regulatory taking. Ante, at 617. In Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), the Court held that, subject to "certain qualifications," ante, at 617, 629, denial of "all economically beneficial or productive use of land" constitutes a taking. 505 U. S., at 1015 (emphasis added). However, if a regulation does not leave the property "economically idle," id., at 1019, to establish the alleged taking the landowner may pursue the multifactor inquiry set out in Penn Central Transp. Co. v. New York City, 438 U. S. 104, 123-125 (1978).
Like the landowner in MacDonald, Palazzolo sought federal constitutional relief only under a straightforward application of Lucas. See ante, at 615-616; App. 45 (Complaint
¶ 17) ("As a direct and proximate result of the Defendants' refusal to allow any development of the property, there has been a taking" (emphasis added)); Plaintiff's Post Trial Memorandum in No. 88-0297 (Super. Ct., R. I.), p. 6 ("[T]his Court need not look beyond the Lucas case as its very lucid and precise standards will determine whether a taking has occurred."); id., at 9-10 ("[T]here is NO USE for the property whatsoever. . . . Not one scintilla of evidence was proffered
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