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James W. Pfister| The Daily Telegram

The Fifth Amendment to the Constitution protects private property through due process and compensation: a person will not be …deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. State government is likewise limited by the 14th Amendment, textually for due process and by incorporation of the Fifth Amendment for taking, and by their own constitutions.

This taking is straight-forward when the government physically takes property for, say, a road. Butwhat if it physically takes property in other ways or substantially regulates it affecting its use and value?

In Penn Central Transportation v. New York City (1978), the citys historic preservation law designated the Grand Central Terminal to be a landmark. The owner wanted to build an office tower on the top of this historic structure. The city permit was denied since the project (in its view) would impair the aesthetic quality of the building. The Supreme Court held, 6-3, that the citys regulation did not constitute a taking. Liberal Justice William Brennan Jr., writing for the majority, listed factors to consider in a balancing process, …in balancing public gain against private harm. (Feldman and Sullivan, Constitutional Law, 2019). Brennan wrote: The restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but afford opportunities further to enhance not only the Terminal site proper but also other properties.

The conservative Justice William Rehnquist dissented: as opposed to normal zoning, (here)…a multimillion dollar loss has been imposed. (The city has)imposed a substantial cost on less than one-tenth of one percent of the buildings in New York for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the taking protection is directed.

A recent Supreme Court decision, Cedar Point Nursery v. Victoria Hassid, June 23, 2021, took up this important debate in Penn Central between liberals and conservatives. The majority opinion by Chief Justice John Roberts took the Rehnquist approach; Justice Stephen Breyer dissented, taking the Brennan approach, in a 6 (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to 3 (Breyer, Sonia Sotomayor, and Elena Kagan) decision the conservatives versus the liberals.

A California regulation had allowed a labor organization to take access to an agricultural employers property for up to four 30-day periods in one calendar year. They could enter one hour before work, one hour during the lunch break, and one hour after work, being free to meet and talk with employees for union organization. Notice would be given.

The employers here filed suit arguing, …an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. (Roberts, page 3). Roberts stressed one of the major rights of a property owner is to exclude others from property. (Roberts, pages 7, 13). Also, this constituted a physical taking, not a use restriction. (Roberts, page 12). Roberts held: …the access regulation here gives rise to a per se physical taking. (Roberts, page 20). It…grants labor organizers a right to invade the growers property. (Ibid.).

Breyer, in dissent, would have found no taking. He wrote: It is a regulation that falls within the scope of Penn Central. (Breyer, pages 16-17). He said it was a regulation of the power to exclude. (Breyer, page 5).

Our liberty and freedom are based in large part on our right to own private property, or real estate. It is our most important right, I believe. Since it is so important, government has an interest in regulating it, even physically taking it. James Madison wrote in 1792: That alone is a just government which impartially secures to every man, whatever is his own. (Cited by Justice Sandra Day OConnor in her dissent in Kelo v. New London, 2005). The question of when government regulation goes far enough to become a taking will be debated by conservatives and liberals as long as we shall have a constitutional democracy. As for Justice Breyer, hang in there until at least 2025!

JamesW.Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

The rest is here:
Private property rights and governmental 'taking' - Monroe Evening News