326
Opinion of the Court
In subsequent opinions we have repeatedly and consistently endorsed Holmes' observation that "if regulation goes too far it will be recognized as a taking." Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes "too far," but he did reject the view expressed in Justice Brandeis' dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.22 After Mahon, neither a physical appropriation nor a public use has ever been a necessary component of a "regulatory taking."
In the decades following that decision, we have "generally eschewed" any set formula for determining how far is too far, choosing instead to engage in " 'essentially ad hoc, factual inquiries.' " Lucas, 505 U. S., at 1015 (quoting Penn Central, 438 U. S., at 124). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine "a number of factors" rather than a simple "mathematically precise" formula.23 Justice Brennan's opinion for the Court in Penn
far it will be recognized as a taking.' Ibid." 505 U. S., at 1014 (citation omitted).
22 Justice Brandeis argued: "Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public." Mahon, 260 U. S., at 417 (dissenting opinion).
23 In her concurring opinion in Palazzolo, 533 U. S., at 633, Justice O'Connor reaffirmed this approach: "Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a
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