What is a Per Se Taking of Private Property by the Government?

In general, the government may take private property for public use through use of the power of eminent domain. The power to take private land is constrained, however, by the government's constitutional obligation to pay "just compensation" for the land/property taken. Generally, "just compensation" is the same as "fair market compensation."

A per se taking of private property by the government occurs when there is a physical taking of private property. As the United States Supreme Court recently said in the case of Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (US Supreme Court June 23, 2021), "[t]hese sorts of physical appropriations constitute the 'clearest sort of taking,' and we assess them using a simple, per se rule: The government must pay for what it takes." North Carolina has the same rule and, in North Carolina, the government must pay for what it takes.

There are several ways that the government can be deemed to have "physically" taken or appropriated land or property. The most common method of the government using its power of eminent domain is to condemn land, take title to the land and then physically occupy the land. For example, if the government wants to build or widen a road, it can use its power of eminent domain to take title and physical possession of private land for the road. This kind of physical taking is a per se form of taking and requires the payment of just compensation.

The rule with respect to per se physical takings also applies to personal property (that is, property that is not land). This was the holding of the United States Supreme Court in Horne v. Department of Agriculture, 135 S.Ct. 2419 (US Supreme Court 2015) involving raisin crops. At issue in that case were various federal Department of Agriculture regulations that required raisin growers to physically turn over a certain proportion of their raisin crops each year. The court held that this was a per se taking that required payment by the government of just compensation.

A physical taking can also occur even if the government takes possession of property without acquiring title to it. An example here might be where the government takes over some portion of private property for equipment and material staging as part of a road widening. The physical taking is, likely, temporary but no title had been taken or seized. But, this is still a per se taking and the government is required to pay just compensation for the temporary physical taking of the property.

A physical taking also occurs when the government takes some action on one property that causes a physical invasion on another property. An example is the building of a dam that floods all of the property behind the newly-built dam. The floodwaters were caused by the government action and physically takes the nearby land. This is a per se taking and the government is required to pay just compensation to the owners of the flooded land.

Finally, a physical taking can occur when the government passes a law or regulation that takes property for use by someone else. Thus, in the Cedar Point Nursery case linked above, the Supreme Court held that the State of California had engaged in a per se taking of private land where the State had enacted a regulation that granted labor unions and organizations a “right to take access” to an agricultural employer's property in order to solicit support for unionization. Under the regulations, the farmers were required to allow union organizers onto their lands for up to three hours per day for up to 120 days per year. No compensation was paid by the State and the farmers sued. When the case reached the Supreme Court, it held that a taking had occurred because the regulation allowed a “physical invasion” or “appropriation” of a landowner's private property. The regulation was unlawful since no just compensation had been paid.

Note that the size of the physical taking or invasion is not relevant to whether there has been a per se physical taking. Thus, it was held to be a per se taking where New York regulations allowed television cable companies to place cable facilities in apartment buildings even though the facilities occupied, at most, about one-eighth of a cubic foot on the roof of the apartments.

For more information, and to schedule a confidential consultation with experienced and dedicated eminent domain and condemnation attorneys in Charlotte, contact Arnold & Smith, PLLC. Use our “Contact” page or give us a call at 704-370-2828. We handle land use, zoning and condemnation legal matters in federal court, in Mecklenburg County and elsewhere in North Carolina. We have offices in Charlotte, Lake Norman, and Union County.