Amendment 5 — Per Se Takings And Exactions

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Fifth Amendment :

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Penn Central is not the only guide to when an inverse condemnation has occurred; other criteria have emerged from other cases before and after Penn Central. The Court has long recognized a per se takings rule for certain physical invasions: when government permanently[1](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn1amd5 " By contrast, the per se rule is inapplicable to temporary physical occupations of land. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 428, 434 (1982); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 84 (1980). ") occupies property (or authorizes someone else to do so), the action constitutes a taking regardless of the public interests served or the extent of damage to the parcel as a whole.[2](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn2amd5 " The rule emerged from cases involving flooding of lands and erection of poles for telegraph lines, e.g., Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1872); City of St. Louis v. W. Union Tel. Co., 148 U.S. 92 (1893); W. Union Tel. Co. v. Pa. R.R., 195 U.S. 540 (1904). ") One modern case dealt with a law that required landlords to permit a cable television company to install its cable facilities upon their buildings; although the equipment occupied only about one and a half cubic feet of space on the exterior of each building and had only a de minimis economic impact, a divided Court held that the regulation authorized a permanent physical occupation of the property and thus constituted a taking.[3](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn3amd5 " Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). The Court distinguished Loretto in FCC v. Florida Power Corp., 480 U.S. 245 (1987), holding that the regulation of the rates that utilities may charge cable companies for pole attachments does not constitute a taking without any requirement that utilities allow attachment and acquiesce in physical occupation of their property. See also Yee v. City of Escondido, 503 U.S. 519 (1992) (no physical occupation was occasioned by regulations in effect preventing mobile home park owners from setting rents or determining who their tenants would be; owners could still determine whether their land would be used for a trailer park and could evict tenants in order to change the use of their land); Cedar Point Nursery v. Hassid, No. 20-107 (U.S. June 23, 2021) (state law requiring agricultural employers to allow union organizers on their business properties for up to three hours per day, 120 days per year, constituted a per se taking requiring just compensation). ") The Court further sharpened the distinction between regulatory takings and permanent physical occupations by declaring it “inappropriate” to use case law from either realm as controlling precedent in the other.[4](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn4amd5 " Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 323 (2002). Tahoe-Sierra's sharp physical-regulatory dichotomy is hard to reconcile with dicta in Lingle v. Chevron United States Inc., 544 U.S. 528, 539 (2005), to the effect that the Penn Central regulatory takings test, like the physical occupations rule of Loretto, “aims to identify regulatory actions that are functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” ")

A second per se taking rule is of more recent vintage. In Agins v. City of Tiburon, the Court stated that land use controls constitute takings if they do not “substantially advance legitimate governmental interests,” or if they deny a property owner “economically viable use of his land.” [5](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn5amd5 " 447 U.S. 255, 260 (1980). ") The Court later erased the Agins “substantially advances” test, explaining that regulatory takings law concerns the magnitude, character, and distribution of burdens that a regulation imposes on property rights.[6](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn6amd5 " Lingle, 544 U.S. at 542 (noting that the first Agins test—whether land use controls “substantially advance legitimate governmental interests” —addresses the means-end efficacy of a regulation more in the nature of a due process inquiry). ") The second Agins criterion, however, has persisted as a categorical rule: when the landowner “has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” [7](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn7amd5 " Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019 (1992). The Agins/Lucas total deprivation rule does not create an all-or-nothing situation, since “the landowner whose deprivation is one step short of complete” may still be able to recover through application of the Penn Central economic impact and “distinct [or reasonable] investment-backed expectations” criteria. Id. at 1019 n.8. See also Palazzolo v. Rhode Island, 533 U.S. 606, 632 (2001). ") The only exceptions, the Court explained in Lucas v. South Carolina Coastal Council, are for those restrictions that come with the property as title encumbrances or other legally enforceable limitations in place prior to acquisition of the property. Regulations “so severe” as to prohibit all economically beneficial use of land, the Court stated, “cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts—by adjacent land owners (or other uniquely affected persons) under the State’s law of private nuisance, or by the State under its complementary power to abate [public] nuisances . . . , or otherwise.” [8](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn8amd5 " 505 U.S. at 1029. ")

The “or otherwise” reference, the Court explained in Lucas,[9](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn9amd5 " Id. at 1029 n.16. ") was principally directed to cases holding that in times of great public peril, such as war, spreading municipal fires, and the like, property may be taken and destroyed without necessitating compensation. Thus, in United States v. Caltex, Inc.,[10](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn10amd5 " 344 U.S. 149 (1952). In dissent, Justices Hugo Black and William Douglas advocated the applicability of a test formulated by Justice Louis Brandeis in Nashville, Chattanooga & St. Louis Railway. v. Walters,, 294 U.S. 405, 429 (1935), a regulation case, to the effect that “when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.” See also United States v. Pac. R.R., 120 U.S. 227 (1887) (government did not owe property power for damage to property during Civil War, but also could not charge landowners for wartime improvements to property). ") the Court held owners of property destroyed by retreating United States armies in Manila during World War II were not entitled to compensation, and in United States v. Central Eureka Mining Co.,[11](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn11amd5 " 357 U.S. 155 (1958). ") the Court held that a federal order suspending the operations of a nonessential gold mine for the duration of the war in order to redistribute the miners, unaccompanied by governmental possession and use or a forced sale of the facility, was not a taking entitling the owner to compensation for loss of profits. Similarly, in Juragua Iron Co. v. United States,[12](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn12amd5 " 212 U.S. 297 (1909). ") the Court found that the destruction of a U.S. company’s property within enemy territory, done to prevent the spread of yellow fever, did not constitute a taking. The Court noted that property held by domestic interests in enemy territory is considered enemy property and thus not entitled to the protections of the Constitution.[13](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn13amd5 " Id. at 308. ") Finally, the Court held that when federal troops occupied several buildings during a riot in order to dislodge rioters and looters who had already invaded the buildings, the action was taken as much for the owners’ benefit as for the general public benefit and the owners must bear the costs of damage inflicted on the buildings subsequent to the occupation.[14](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn14amd5 " Nat’l Bd. of YMCA v. United States, 395 U.S. 85 (1969); United States v. Sponenbarger, 308 U.S. 256, 265 (1939) ( “An undertaking by the government to reduce the menace from flood damages which were inevitable but for the Government’s work does not constitute the Government a taker of all lands not fully and wholly protected. When undertaking to safeguard a large area from existing flood hazards, the government does not owe compensation under the Fifth Amendment to every landowner which it fails to or cannot protect.” ). ")

With the investment-backed expectations factor of Penn Central, many lower courts employed a “notice rule” under which a taking claim was absolutely barred if it was based on a restriction imposed under a regulatory regime predating plaintiff’s acquisition of the property. In Palazzolo v. Rhode Island,[15](https://www.law.cornell.edu/constitution-conan/amendment-5/per-se-takings-and-exactions#fn15amd5 " 533 U.S. 606 (2001). ") the Court forcefully rejected the absolute version of the notice rule. Under such a rule, it said, “[a] State would be allowed, in effect, to put an expiration date on the Takings Clause.” [16](https://www.la