Also known as: per se taking rule · per se takings · per se taking · categorical takings
Written by attorneys — see sources below.
A set of categorical rules under the Takings Clause that automatically classify certain government actions as takings requiring just compensation. These rules apply to permanent physical occupations of property, total deprivations of all economically beneficial use, and recurring physical invasions that appropriate the right to exclude. Compensation follows without the need for case-by-case balancing of economic impact or investment expectations.
Pablo Perez owns a coastal parcel zoned solely for residential construction. A new state coastal-protection statute bars all building and any other productive activity on the land. Pablo sues, claiming the statute leaves the parcel without any economically beneficial use. The court applies the per se rule and orders just compensation because the regulation wipes out all productive value.
Priya Prasad holds title to several undeveloped lots inside a regional planning district. The planning agency imposes a two-year moratorium on all building permits while it studies environmental impacts. Priya sues, alleging a per se taking. The court examines the moratorium's duration, planning purpose, and effect on value and concludes that fairness does not require compensation under the per se framework.
Pioneer Energy owns an apartment building. A city ordinance requires the owner to permit a cable company to install and maintain equipment on the roof. Pioneer sues, claiming the mandated installation effects a taking. The court holds that any government-authorized permanent physical occupation, however small, constitutes a per se taking requiring just compensation.
In 1970, Teleprompter Manhattan CATV Corp. obtained a permit from New York City to operate a cable television system in Manhattan. It entered into an agreement with the prior owner of a five-story apartment building at 303 West 105th Street to install cables on the roof in exchange for a flat fee of $50 per year. The installation included a cable slightly less than one-half inch in diameter and approximately 30 feet in length running along the roof about 18 inches above the surface. It also included directional taps measuring approximately 4 inches by 4 inches by 4 inches on the front and rear of the roof. Two large silver boxes were placed along the roof cables. Additional cable was extended another 4 to 6 feet. All components were attached by screws or nails penetrating the masonry at approximately two-foot intervals. In 1971, Jean Loretto purchased the building. At the time of purchase the cable installation was already in place as part of a larger network serving adjacent buildings, though Loretto did not discover its existence until after she took possession. Two years later Teleprompter connected a noncrossover line by dropping a cable down the front of the building to serve Loretto's own tenants. In 1973 the New York Legislature enacted section 828 of the Executive Law, effective January 1, 1973, which prohibited landlords from interfering with cable television installations on their property, barred landlords from demanding payment from tenants for permitting service, and limited any payment from a cable company to an amount the State Commission on Cable Television determined to be reasonable; the Commission later set the presumptive fee at a one-time $1 payment. In 1976 Loretto filed a class action against Teleprompter in New York Supreme Court on behalf of all owners of real property in the state on which Teleprompter had placed cable components, alleging trespass and a taking without just compensation and seeking damages and injunctive relief; the City of New York, which had granted Teleprompter an exclusive franchise for parts of Manhattan, intervened as a defendant. The Supreme Court, Special Term, granted summary judgment to Teleprompter and the city. The Appellate Division affirmed without opinion. The New York Court of Appeals upheld the statute. The Supreme Court of the United States noted probable jurisdiction.
View casePer se rules apply to permanent physical occupations, total deprivations of all economically beneficial use, and recurring physical invasions that appropriate the owner's right to exclude. These actions receive automatic treatment as takings without further balancing.
No. Courts must examine the duration of the restriction, the government's planning purposes, the owner's expectations, and effects on value to decide whether compensation is required. Temporary restrictions do not automatically trigger the per se rule.
Per se physical takings occur when the government appropriates a right of physical entry or occupation. Regulatory takings require case-by-case analysis of economic impact and expectations unless the regulation eliminates all economically beneficial use.
No. Any permanent physical occupation, however small, and any recurring right of access, however intermittent, triggers the per se rule. The key is the appropriation of the right to exclude, not the extent of the intrusion.
…installation of a cable on a rooftop is not the type of physical invasion that this Court has previously held to constitute a per se taking. The impact on the landlord's property rights is minimal. The statute provides for compensation. In my view, the New York statute is a valid exercise of the State's police power and does…