concurring:
I agree that where the state permanently takes away a landlord’s right to evict a tenant and his successors beyond the end of an agreed upon term a permanent physical occupation occurs and there is a per se taking under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982).1 This would accurately characterize this case *356were it not for the fact that Pinewood is free to evict any tenant if it decides to devote the land occupied by the tenant to a different use.2 As I read Loretto, this fact does not keep the state’s action from constituting a permanent physical occupation and therefore a per se taking. In response to an argument that the landlord in Loretto could avoid the physical occupation by devoting his property to a purpose other than rental apartments, the Supreme Court observed:
Insofar as Teleprompter means to suggest that this is not a permanent physical invasion we must differ. So long as the property remains residential and a CATV company wishes to retain the installation, the landlord must permit it.... It is true that the landlord could avoid the requirements of § 828 by ceasing to rent the building to tenants. But a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation. The defendant’s broad “use-dependency” argument proves too much. For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices. The rights of a property owner to exclude a stranger’s physical occupation of his land cannot be so easily manipulated.
458 U.S. at 439 & n. 17, 102 S.Ct. at 3178 & n. 17.
For these reasons, I join in the court’s disposition of this appeal.
. Though the Supreme Court has uniformly upheld regulations of the landlord-tenant relationship as non-confiscatory, see Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892 (1944); Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865 (1921); Fresh Pond Shopping Center, Inc. v. Callahan, 464 U.S. 875, 104 S.Ct. 218, 78 L.Ed.2d 215 (1983) (appeal dismissed for want of substantial federal question), none of these decisions suggest that prohibitions on the removal of tenants after the expiration of their lease terms should be analyzed as regulatory burdens instead of as physical invasions. Furthermore, all of the relevant Supreme Court opinions contain language which suggests that such schemes, if of sufficient duration, would constitute takings. See Loretto, 458 U.S. at 440, 102 S.Ct. at 3178 (citations omitted) (“This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. In none of these cases, however, did the government authorize the permanent occupation of the landlord’s property by a third party.”); Bowles, 321 U.S. at 517, 64 S.Ct. at 648 ("We are not dealing here with a situation that involves a ‘taking’ of property. By § 4(d) of the Act it is provided that ‘nothing in this Act shall be construed to require any person to sell any commodity or to offer any accommodations for rent.’ ’’); Block, 256 U.S. at 157, 41 S.Ct. at 460 (“The regulation is put and justified only as a temporary measure. A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change.”).
. New Jersey permits the eviction of apartment and mobile home tenants where "the owner seeks to retire permanently the residential building or the mobile home park from residential use or use as a mobile home park_” N.J.Stat.Ann. § 2A:18-61.1 (West 1987).