Loretto v. Teleprompter Manhattan CATV Corp.
Supreme Court of the United States, 1982

Facts: The Appellant, Jean Loretto, bought an apartment building in New York City in 1971. The previous owner had granted Teleprompter Manhattan CATV permission to install a cable on the building for providing cable T.V. to the tenants. The cable installation occupied portions of Appellant’s roof and the side of her building. Loretto was unaware of the cables when she purchased the building. Two years after Appellant purchased the building, Teleprompter modified the existing cable installation to serve the buildings tenants by dropping a line down the front of the building. Before 1973, Teleprompter routinely obtained authorization from property owners for its cable installations and compensated the owners monetarily. To facilitate tenant access to CATV, the State of New York enacted § 828 of the Executive Law (effective January 1, 1973) which provided that a landlord may not “interfere with the installation of cable television facilities upon his property or premises,” and may not demand payment from any tenant for permitting CATV, or demand payment from any CATV company “in excess of any amount which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable” (that is, a one time payment of $1). In 1976, the Appellant brought a class action against Teleprompter on behalf of all owners of real property in the State on which Teleprompter’s installation was a trespass and, insofar as it relied on § 828, a taking without just compensation. She also requested damages and injunctive relief.

Procedure: The New York Court of Appeals ruled that Teleprompter’s appropriation did not constitute a taking. The court further stated that § 828 serves a legitimate public purpose and thus is within the State’s police power.

Issues: Does a minor but permanent physical occupation of an owner’s property authorized by government constitute a “taking” of property for which just compensation is due under the Fifth and Fourteenth Amendments? Does it matter if the occupation is permanent or temporary? Does the scale of the occupation matter?

Holding: Teleprompter’s cable installation on Appellant’s building involved a permanent physical occupation of property and, therefore, constituted a taking under the traditional rule. The Court further decided that the issue of the amount of compensation that was due is a matter for the state courts to consider on remand and expressed no opinion. The judgment of the New York Court of Appeals was reversed and the case was remanded for further proceedings not inconsistent with the Supreme Court’s decision.

Rationale: The Supreme Court has long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. When the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. A permanent physical occupation authorized by state law is a taking without regard to whether the State or a party authorized by the State is the occupant. The extent of the occupation does not impact the determination of whether or not a taking has occurred, but once it has been determined that a taking has occurred, a court should consider this as one relevant factor in determining the compensation due.
Crossover v. Non-crossover- no difference.

Justice Blackman dissented and was joined by Justices Brennan and White. Blackman feels that the Court’s approach reduced the constitutional issue to a “formalistic quibble” over when property has been permanently occupied or temporarily invaded. He thinks that the rule that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve is too rigid and may undercut a carefully considered legislative judgment concerning landlord-tenant relationships.

“Per se” rule- p.12- this rule applies in this case but not in Nollan because Nollan was asking for a permit (footnote 5 on p. 317).