Also known as: physical taking
Written by attorneys — see sources below.
A category of government action under the Takings Clause that occurs when the government authorizes a physical invasion or occupation of private property. Such actions appropriate the owner's right to exclude others even when the invasion is temporary or intermittent. The appropriation requires just compensation regardless of the duration of each entry or the absence of permanent structures.
Philip Powell owns a commercial greenhouse operation. A state labor rule grants union representatives the right to enter the nonpublic growing areas three days each week during harvest season for up to two hours per visit. Powell cannot bar the representatives during those scheduled times. The recurring entries appropriate his right to exclude and trigger the requirement of just compensation.
Patrick Phan owns a church camp along a creek. After a flood, the county enacts an ordinance that prevents any rebuilding or use of the land for more than two years while officials study flood-control options. The county's action does not authorize physical entry or occupation by third parties. The moratorium therefore does not constitute a physical taking.
In 1957, the First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of Mill Creek in the Angeles National Forest. The Church operated a campground known as Lutherglen on the property, which included a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across the creek. In July 1977, a forest fire denuded approximately 3,860 acres of the watershed area upstream from Lutherglen. On February 9 and 10, 1978, a storm dropped eleven inches of rain in the watershed, causing Mill Creek to overflow its banks, flood Lutherglen, and destroy its buildings. In January 1979, the County of Los Angeles adopted Interim Ordinance No. 11,855, which provided that a person shall not construct, reconstruct, place or enlarge any building or structure within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon. The ordinance was adopted because the County determined it was required for the immediate preservation of the public health and safety, and it was extended several times. A little more than a month after the ordinance was adopted, the Church filed a complaint in Los Angeles County Superior Court alleging that Ordinance No. 11,855 denied the Church all use of Lutherglen and seeking damages for loss of use under each count. The defendants moved to strike the portions of the complaint alleging that the ordinance denied all use of Lutherglen. The Superior Court granted the motion to strike. The California Court of Appeal affirmed, and the California Supreme Court denied review. The Church appealed to the United States Supreme Court, which noted probable jurisdiction.
View casePatricia Patel holds undeveloped parcels around a lake. A regional planning agency imposes successive moratoria that bar all construction for thirty-two months while new environmental rules are drafted. The restrictions do not authorize any physical entry or occupation by third parties. The moratoria therefore do not constitute physical takings.
In the early 1980s, the Tahoe Regional Planning Agency imposed two moratoria on development in the Lake Tahoe Basin. The first, Ordinance 81-5, took effect on August 24, 1981, and lasted until August 26, 1983. The second, Resolution 83-21, ran from August 27, 1983, to April 25, 1984. Together these measures prohibited virtually all development on sensitive lands for a total of 32 months while TRPA developed a comprehensive land-use plan. Lake Tahoe's exceptional water clarity had begun to deteriorate due to increased land development starting in the late 1950s and early 1960s. Runoff from impervious surfaces on steeper slopes and stream environment zones carried nutrients that promoted algae growth. In response, California and Nevada, along with the federal government, amended the Tahoe Regional Planning Compact in 1980 to require TRPA to establish environmental threshold carrying capacities and adopt a regional plan. The 1980 Compact amendment directed TRPA to adopt thresholds within 18 months and a plan within a year thereafter. It also included a finding that temporary halts on development were necessary to preserve the region's capacity for future development consistent with the ultimate plan. TRPA enacted Ordinance 81-5 in June 1981 after concluding it could not meet the original deadlines, and later adopted Resolution 83-21 when no plan was in place by August 1983. Petitioners, including the Tahoe-Sierra Preservation Council representing about 2,000 owners and a class of approximately 400 individual owners of vacant lots purchased before 1980 primarily for building single-family homes, filed parallel actions in federal courts in Nevada and California shortly after the 1984 plan was adopted. The suits were consolidated in the District of Nevada. The District Court found that the moratoria constituted categorical takings under Lucas because they temporarily deprived owners of all economically viable use. The Ninth Circuit reversed that determination. The Ninth Circuit held that the temporary nature of the regulations meant no categorical taking had occurred and that Penn Central analysis applied, though petitioners had not challenged the District Court's Penn Central findings. The Supreme Court granted certiorari to address whether the moratoria effected per se takings.
View casePierre Poulin purchases beachfront lots for residential construction. A new state coastal council rule prohibits any building on the lots because of erosion concerns. The regulation leaves the land economically idle and prevents any productive use. The total deprivation of economic use constitutes a regulatory taking, not a physical taking.
In 1986, petitioner David H. Lucas purchased two residential lots on the Isle of Palms in Charleston County, South Carolina, for $975,000. He intended to construct single-family homes on the parcels, which at the time were zoned for such use and required no building permit for development. No portion of the lots qualified as a critical area under then-existing coastal zone legislation. Subsequently, in 1988, the South Carolina Legislature enacted the Beachfront Management Act. The legislation established a baseline and prohibited construction of occupable improvements seaward of a line drawn 20 feet landward of that baseline, directly affecting Lucas's parcels by barring any permanent habitable structures. Lucas filed an action in the Court of Common Pleas alleging that the Act's restrictions effected a taking of his property without just compensation. Following a bench trial, the court determined that the prohibition rendered the lots valueless and ordered the state to pay just compensation in the amount of $1,232,387.50. The Supreme Court of South Carolina reversed the trial court's judgment. It accepted the legislature's findings that new construction threatened public resources and concluded that a regulation designed to prevent serious public harm could not constitute a taking. The United States Supreme Court granted certiorari to review the South Carolina Supreme Court's decision.
View casePriscilla Parks owns an apartment building subject to a rent-control statute that caps rents far below market levels. The statute does not authorize any physical entry by tenants or the government. The economic impact alone does not convert the regulation into a physical taking.
In 1997, the State of Hawaii had a highly concentrated wholesale oil market due to its small size and isolation over 1,600 miles from the mainland, with only two refineries and six gasoline wholesalers operating in the state. Chevron U.S.A. Inc. was the largest refiner and marketer, controlling 60 percent of the in-state gasoline market and 30 percent of the wholesale market on Oahu. Gasoline was sold at retail through approximately 300 service stations, about half leased by oil companies to independent lessee-dealers. Chevron operated 64 such lessee-dealer stations under arrangements where it leased land, constructed stations, and leased them to dealers while setting wholesale prices and requiring supply contracts. In June 1997, the Hawaii Legislature enacted Act 257, which capped the rent oil companies could charge lessee-dealers at 15 percent of gross profits from gasoline sales plus 15 percent of other product sales, and imposed other restrictions on station ownership. Thirty days after enactment, Chevron filed suit in the United States District Court for the District of Hawaii against the Governor and Attorney General, challenging the rent cap. The parties stipulated that the cap would reduce aggregate rent on 11 of Chevron's stations by about $207,000 per year but allow increases on the remaining 53, potentially raising overall rental income by nearly $1.1 million annually, and that Chevron had not recovered station maintenance costs through rent alone over the past 20 years. The District Court granted summary judgment to Chevron. On appeal, the Ninth Circuit vacated the judgment and remanded the case. After a one-day bench trial featuring competing expert economists, the District Court entered judgment for Chevron. The Ninth Circuit affirmed, and the Supreme Court granted certiorari in 2004.
View casePhuong Pham owns coal estates subject to a statute that requires support pillars to remain in place to prevent surface subsidence. The regulation limits how much coal can be extracted but does not authorize any physical invasion of the surface or subsurface by third parties. The restriction therefore does not amount to a physical taking.
In 1966 the Pennsylvania Legislature enacted the Bituminous Mine Subsidence and Land Conservation Act to address land subsidence caused by underground coal mining. The Act authorizes the Department of Environmental Resources to implement and enforce a comprehensive program preventing or minimizing subsidence and consequent damage to surface structures. Section 4 prohibits mining that causes subsidence damage to public buildings, dwellings used for human habitation, and cemeteries, and generally requires that 50 percent of the coal beneath such structures remain in place to provide surface support. Petitioners are an association of coal producers and several of its member corporations engaged in underground bituminous coal mining in western Pennsylvania. They own, lease, or control substantial coal reserves and associated support estates beneath surface properties affected by the Subsidence Act. Many of these interests were severed from the surface estate between 1890 and 1920, and petitioners or their predecessors typically acquired waivers of liability for subsidence damage along with rights to deposit wastes, provide drainage and ventilation, and erect surface facilities. In 1982 petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania against the Secretary of the Department of Environmental Resources and other officials. They sought to enjoin enforcement of the Subsidence Act and its implementing regulations, alleging that Section 4 and Section 6 effected a taking of their property without compensation and that Section 6 impaired their contractual obligations. The parties entered a stipulation of facts concerning the facial challenge and filed cross-motions for summary judgment. The District Court granted summary judgment in favor of the Department officials. The Court of Appeals for the Third Circuit affirmed. The Supreme Court granted certiorari to consider the constitutional challenges to the Subsidence Act. Petitioners have never claimed that the Subsidence Act makes it commercially impracticable for them to continue mining their bituminous coal interests in western Pennsylvania, nor have they identified any specific mine rendered unprofitable by the statute. The evidence in the record shows that enforcement of the 50 percent rule has required petitioners to leave less than 27 million tons of coal in place. This applies across 13 mines containing over 1.46 billion tons. It amounts to less than 2 percent of the total coal in those operations.
View caseA physical taking occurs when the government authorizes a physical invasion or occupation of private property that appropriates the owner's right to exclude. A regulatory taking occurs when a restriction on use diminishes value without any physical entry. The character of the government action determines which category applies.
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No. Even temporary but recurring invasions that appropriate a right to enter private property require just compensation. The duration of each individual entry does not remove the action from per se physical taking treatment when the access is scheduled and ongoing.
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No. When the government appropriates the right to exclude through recurring physical access, the taking is per se and does not require proof of substantial economic impact or loss of market value. The appropriation of the exclusion right itself supplies the constitutional violation.
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