first-year law review

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Oct. 30 Property: Physical Takings


We’ve been discussing physical takings by the government. It’s something that was a hot-button issue for me, especially after the Kelo decision, but I’ve changed my mind somewhat after studying the issue a bit. In Loretto v. Telepromter Manhattan CATV Corp., the plaintiff was suing the defendant after she bought an apartment building that the defendant had installed cable equipment on. There was a statute that said owners couldn’t collect from cable companies for the use of space on their buildings. The plaintiff said this amounted to a physical taking without just compensation. The court held that permanent physical occupation is a taking because it takes away the important rights of possession, use, and disposition of a thing. Even though the space was minimal, there was still a taking and the plaintiff was entitled to just compensation.
Physical takings can also be when the government takes the property or when the government authorizes a thid party to permanently occupy the property. These things seem simple, but it gets difficult when it comes to a regluation. Can a regulation be a physical taking?
The answer is yes. If the regulation is permanent, it may be a physical taking. If the regulation isn’t permanent, you have to do a balancing test. You can look at things like whether there are exceptions or how long the regulation is in effect. You always need to consider if there’s just compensation if there is indeed a physical taking. To illustrate this, we can look at Yee v. Escondido. In Yee, the plaintiff owned a trailer park. A combination of statutes, a rent control act and an act addressing trailer parks, basically meant that the owner didn’t have control over what to charge people for rent, nor did the owner control who the tenants were. The owners contended that the combination of the statutes constituted a physical taking, but the court said there wasn’t a taking because the city left the option open that they could evict people, with notice of course, and change the use of the property.
Thus, whenever there’s a permanent physical occupation, there’s a physical taking and just compensation is required. Regulations can affect a physical taking, but you have to look carefully at the regulations effects.


November 1, 2006 - Posted by | Property

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