Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124-125 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-539 (2005). A regulation results in a categorical taking per se — and the balancing test does not apply — if the regulation results in a "physical taking" of the property (Loretto v. Teleprompter CATV Corp., 458 U.S. 419, 434-435 (1982)), or causes the property owner to lose "all economically beneficial uses" of the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992).
In suing for declaratory and injunctive relief under 42 U.S.C. section 1983, the plaintiffs alleged that the access regulation creates an easement that allows union organizers to enter their property “without consent or compensation” in violation of the Takings Clause of the Fifth Amendment. They based their takings argument entirely on the theory that the access regulation, as applied to them, constitutes a permanent physical invasion of their property, having no contemplated end-date, and is thus aper setaking underLoretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). The district court rejected the plaintiffs’ argument that the regulation constitutes aper sephysical taking but granted the plaintiffs leave to amend.
See Lorettov. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). This form of taking is often referred to as eminent domain.
The Court noted that any physical intrusion on property, however small, is a per se taking. This concept was well established by the United States Supreme Court in Loreto v. Teleprompter Manhattan CATV Corp. (1982) 458 U.S. 419, in which the Court found that a state statute that authorized a cable television carrier to attach a cable and two cable boxes on the roof of a residential apartment building was a per se taking. As the Supreme Court noted in that case, “[A]n owner is entitled to the absolute and undisturbed possession of every part of his premises.”
A physical invasion of property. See Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419 (1982) (law requiring landlords to allow cable companies access to install cable facilities in apartment buildings).2. Regulations that completely deprive an owner of “all economically beneficial use” of the property.
The U.S. Supreme Court has held that regulatory action is a per se taking requiring just compensation if government requires a property owner to suffer a permanent physical invasion of her property, however minor. See, e.g., Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538 (2005); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking). Don't orders issued under N.C.G.S. 65-75 arguably require a property owner to suffer permanent physical invasion of her property, however minor, by granting descendants (generation after generation) access to visit and maintain permanent burial grounds that happen to be on the property?
at 2085. Furthermore, to clarify the appropriate takings analysis under a variety of circumstances, the Court reaffirmed the following takings decisions: per se physical invasions of land should be analyzed in accordance with Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); regulatory takings when a government action completely deprives an owner of all economic benefit of his land should be analyzed in accordance with Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); other regulatory takings should be analyzed in accordance with Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978); and finally, land-use exactions should be analyzed in accordance with Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). The Lingle decision was long overdue.