New York Law Section 828 requires that a landlord must permit a cable television company to install its cable facilities upon his property.
The landlord may not demand payment in excess of any amount which the state commission shall determine to be reasonable.
Loretto bought an apartment building where Teleprompter had cable installed on the roof. She brought suit alleging the law constituted a taking.
Procedural History
Trial court found for cable company.
Appellate court affirmed.
SCOTUS reversed, takings found.
Issues
Does a minor but permanent physical occupation of an owner's property authorized by the government constitute a taking of property?
Holding/Rule
A minor but permanent physical occupation of an owner's property authorized by the government constitutes a taking of property.
Reasoning
Our cases establish that when a physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred.
This Court has long considered a physical intrusion by the gov't to be a property restriction of an unusually serious character for purposes of takings.
In Pumpelly v. Green Bay, Court held that where real estate is actually invaded so as to effectively destroy or impair its usefulness, it is a taking.
Accord is found in Northern Transportation v. Chicago.
The Court has always distinguished between permanent physical occupations, physical invasions short of occupation, and regulations that merely restrict the use of property.
A physical invasion and restrictions on use are subject to the balancing test.
However, when the character of the gov't action is a permanent physical occupation of property, it is a taking without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.
Permanent physical occupations are perhaps the most serious form of invasion of an owner's property interests.
It deprives owners of the right to…
Possess
Owner has no right to occupy it himself since he has no right to exclude.
Use
Has no power to exclude and can make no non-possessory use of the land.
Dispose
Can dispose of it, but the permanent occupation will ordinarily empty the right of any value.
Using this traditional rule avoids difficult line-drawing problems.
This decision does not alter analysis of gov't power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, etc.
Dissent
The Court creates a permanent physical occupation formula; the occupation here was not permanent. The cables only remain as long as the cable company wants them to be there.
The Court's test also opens the door to endless metaphysical struggles over whether or not an individual's property has been physically touched.
History teaches that takings claims are properly evaluated under a multifactor balancing test.
Any intelligible takings inquiry must also ask whether the extent of the state's interference is so severe as to constitute a compensable taking in light of the owner's alternative uses for the property.
