Chapter 19 - § 19.5 • PER SE TAKINGS

• Jurisdiction: Colorado

§ 19.5 • PER SE TAKINGS

Two situations will always result in the finding of a taking, whether brought under the Colorado Constitution or the U.S. Constitution: (1) physical invasions, and (2) a total loss of value. These are per se takings, which means that either the insignificance of the harm to the property owner, or the justification for the law, is irrelevant.

§ 19.5.1—Physical Invasions

In Loretto v. Teleprompter Manhattan CATV Corp.,²⁰⁴ the U.S. Supreme Court announced the rule that when a regulation authorizes "a permanent physical occupation" there "is a taking without regard to the public interests [the regulation] may serve."²⁰⁵ The Loretto case involved a New York regulation that mandated that landlords allow a cable television company to install cable in the rental properties.²⁰⁶ The court held that even though minor, this physical occupation resulted in a taking, and laid down its per se rule.²⁰⁷ Colorado law also treats a physical invasion as a per se taking.²⁰⁸

In addition, if there is a temporary physical occupation, the government owes the property owner compensation for the period in question.²⁰⁹ In Fowler Irrevocable Trust 1992-I v. City of Boulder,²¹⁰ the City of Boulder occupied 3.09 acres of land owned by Fowler for 26 months. The Colorado Supreme Court held that this was a per se taking, and that "[t]he basic measure of compensation in a temporary taking case is the fair rental value of the property during the period of the taking."²¹¹

An important exception to the per se rule is found when the landowner is using the property in a way that will damage other property or people. In Aztec Minerals Corp. v. Romer,²¹² the plaintiffs were operating a mine that was deemed to be a health hazard. Pursuant to powers under the Comprehensive Environmental Response, Compensation, and Liability Act, the State of Colorado and EPA moved in to stabilize the site conditions. The court denied the plaintiffs' claim of a per se taking due to physical occupation; the plaintiffs had no right to create a nuisance, and such actions were never part of the "bundle of rights that are commonly characterized as property."²¹³ The court further held that "under such circumstances, a government need not pay even for complete takeover or destruction of property if it is justified by the owner's insistence on using the property to injure other people or their property."²¹⁴

§ 19.5.2—Total Loss Of Value

The second type of case that will result in a per se taking...