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Framing deliberate government action as a "business risk" is ridiculous. If a mobster shows up at your door expressing his sincere concern about the flammability of your property, you wouldn't call your protection money payment a "business risk," that would be absurd! If the government decides to deliberately reduce your ability to commercially exploit your property, destroying the value of your investment, calling this a "business risk" is insane. The 5th amendment requires the government to compensate you if public policy requires the use of your property. I don't see where the 5th amendment says "unless it's a business risk."
Let me give you an alternate example. Massachusetts mostly prohibits grocery stores from hard liquor. As a result, a substantial fraction of shopping plazas that have a grocery store also have a liquor store.
It is a deliberate government action to repeal those prohibitions and allow the grocery stores to sell liquor. It is also a business risk to those liquor stores as they would likely lose significant business to the larger grocery store that can offer better prices (due to amortizing fixed costs over a larger sales base).
It is, however, insane, to think that MA cannot repeal those laws without running afoul of the 5A.
So where does this land? I think a mobster or government specifically targeting individual properties for regulation is likely illegal (as under Penn) but that the uniform application of general laws is fine.
This is why so many small towns will have laws on the books along the lines of 'x establishment cannot be located less than y distance from z place', and you look at the history and the town's fleabag bar was across the street from a church in the 70's.
Yeah, but it's also why not every deliberate legislative action that materially impacts a business, even if it causes real harm, can be a taking. That would imply that once those laws are passed, they can never be repealed.
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First off, a mobster showing up at your doorstep is totally a business risk. So are commies taking over and nationalizing your enterprise, or an asteroid wiping out your business.
Taxing the heck out of your earnings, rent controls or prohibiting from running a brothel are all unlikely to fall under the 5th, as far as I am aware.
If you do not like that, I would recommend finding a nation with stronger property rights to buy real estate in.
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The court in Penn Central basically asked about investment backed expectations. The basic idea is if you bought property knowing the regulation is likely presumably the purchase price reflected that ambiguity so providing compensation is giving a windfall to the regulated entity.
Now whether this is reasonable is a different matter but that’s the theory.
By that reasoning people should have been able to sue the government on fifth amendment grounds before the regulation was passed on the grounds that even making the regulation likely reduced the value of their property. Otherwise this becomes a sleight of hand where it doesn't count before because the regulation doesn't exist yet and it doesn't count after because it happened before, leading to lack of remedy.
Government decisions affecting the value of your asset is literally a Tuesday. When the prohibition was enacted, I do not think that the breweries were compensated for lost earnings. When Trump's Iranian adventure changes the price of oil futures (which is once a day or so), the USG is under no obligation compensate the people who bet on a different outcome.
The government can make decisions which will affect the prices of real estate property has been true for as long as there have been governments. All of these risks are priced in. If the people of some city would vote for getting rid of cops, or cars, or public transportation, or laws against arson, that would very likely affect property prices. So would, to a lesser degree, a myriad other municipal decisions.
At the end of the day, citizens get to vote, properties don't. This is well known to any property owner. If you do not like that, invest in some other country.
By this reasoning, the government affecting the value of your asset can't ever be considered a taking even under the most extreme circumstances, because since it's always possible for the government to do that, it would always be priced in in advance.
For that matter, the same could be said of a conventional physical taking. If the government is known to take things, the chance that the government takes it would be priced in in its sale price, and the government doesn't have to compensate you for the physical taking either since you already (on the average) received the compensation through buying it at a lower price that takes into account the chance of government greed.
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Yeah there is an original mover problem to SCOTUS’ logic.
It's not an original mover problem to SCOTUS logic, it's a baseline definition problem in the 5A. Defining a "taking" requires comparing against some counterfactual to compare against.
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