Eminent Domain FAQ

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Eminent Domain FAQs about Eminent Domain Condemnation Law.

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I - THE “TYPE 1" TAKING – A “PER SE” TAKING

The first type is where a municipality requires a property owner to give up physical possession of property (or one of the essential aspects of the “investment backed expectations” or bundle of rights) without payment of just compensation, this is a per se taking. There can be no excuse or justification for this type of action. A “per se” taking, without payment of just compensation, is unconstitutional. See, e.g., Nollan v. California Coastal Commission, 483 U.S. 825, 107 S. Ct. 3141 (1987).

This type of taking has all the characteristics of a plain and simple trespass. Thus, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164 (1982), New York State had enacted a regulation that landlords were required to permit cable television companies an easement to install its cable wires across the property. The cable easement was nominal; simply a requirement that the building owner allow the cable company to affix its wire to the building. The physical occupation was de minimis and would not interfere in the slightest with the operation of the property. The Loretto Court, in reversing the decision of the New York Court of Appeals, held:

“This case presents the question whether a minor but permanent physical occupation of an owner's property authorized by government constitutes a “taking” of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution. New York law provides that a landlord must permit a cable television company to install its cable facilities upon his property. N.Y.Exec.Law § 828(1) (McKinney Supp. 1981-1982). In this case, the cable installation occupied portions of appellant's roof and the side of her building. The New York Court of Appeals ruled that this appropriation does not amount to a taking. 53 N.Y.2d 124, 440 N.Y.S.2d 843, 423 N.E.2d 320 (1981). Because we conclude that such a physical occupation of property is a taking, we reverse.”

That the government regulation conceivably serves a public purpose is not sufficient. A physical occupation is a trespass; pure and simple. It requires just compensation:

“The Court of Appeals determined that § 828 serves the legitimate public purpose of “rapid development of and maximum penetration by a means of communication which has important educational and community aspects,” 53 N.Y.2d, at 143-144, 440 N.Y.S.2d, at 852, 423 N.E.2d, at 329, and thus is within the State's police power. We have no reason to question that determination. It is a separate question, however, whether an otherwise valid regulation so frustrates property rights that compensation must be paid. See Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127-128, 98 S.Ct. 2646, 2660-2661, 57 L.Ed.2d 631 (1978); Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182, 193, 48 S.Ct. 276, 278, 72 L.Ed. 523 (1928). We conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. Our constitutional history confirms the rule, recent cases do not question it, and the purposes of the Takings Clause compel its retention.”

Where, as with an easement there is physical occupation, it is a taking. Just compensation must be paid. The Loretto Court, citing the Supreme Court of the United States in Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383 (1979), emphasized that:

“... In Kaiser Aetna v. United States, 444 U.S. 164, 100 S.Ct. 383, 62 L.Ed.2d 332 (1979), the Court held that the Government's imposition of a navigational servitude requiring public access to a pond was a taking where the landowner had reasonably relied on Government consent in connecting the pond to navigable water. The Court emphasized that the servitude took the landowner's right to exclude, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Id., at 176, 100 S.Ct., at 391.”

In the case of an easement, it comes even more egregious where it permits unlimited or broad access by complete “strangers” to the property:

“Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property ... property law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of “Just Compensation” Law, 80 Harv.L.Rev. 1165, 1228, and n. 110 (1967). Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion.”

The Loretto Court’s reasoning was following the Supreme Court’s decision in Nollan v. California Coastal Com’n, supra, a case also involving the imposition of an easement. In Nollan, the California Coastal Commission (CCC) refused to grant a permit to the property owner to develop and/or renovate its property unless the owner agreed to a condition that the owner grant an easement to the public to run across the owner’s property to allow public access to the beach on which the owner’s property fronted.

Even if, arguendo, there was a legitimate or laudable objective, it would not warrant occupation of the property without payment of just compensation. The Nollan Court, following Loretto, held:

“Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking ... one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them ..."

An easement is an especially invasive right. It can virtually destroy the utility or value of the property. The Court in Nollan observed:

We have repeatedly held that, as to property reserved by its owner for private use, “the right to exclude [others is] ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 102 S.Ct. 3164, 3175, 73 L.Ed.2d 868 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 100 S.Ct. 383, 391, 62 L.Ed.2d 332 (1979). In Loretto we observed that where governmental action results in “[a] permanent physical occupation” of the property, by the government itself or by others, see 458 U.S., at 432-433, n. 9, 102 S.Ct., at 3174-3175, n. 9, “our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner,” id., at 434-435, 102 S.Ct., at 3175-3176. We think a “permanent physical occupation” has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.