Mediaboss Marketing

12 October 2021

Beveridge & Diamond

To print this article, all you need is to be registered or login on Mondaq.com.

In a major victory for property owners facing state and localland use regulation, the U.S. Supreme Court on Wednesday ruled 6-3that a California regulation granting union organizers the right toaccess private property is a per se physical takingrequiring the payment of just compensation under the Takings Clauseof the U.S. Constitution. Cedar Point Nursery v. Hassid, 2021 WL2557070 (U.S. June 23, 2021). Cedar Point representsanother expansion by the Roberts Court of property owner rightsunder the Takings Clause and opens the door further to legalchallenges to government mandates allowing access to privateproperty.

Cedar Point began with a federal lawsuit under theFifth and Fourteenth Amendments by two California growerschallenging a decades-old state regulation granting labororganizations access to an agricultural employer's property forup to three hours per day, 120 days per year, for labor organizingpurposes. The lead plaintiff, a grower, challenged the regulationafter union organizers entered the company's property withoutnotice, causing some workers to join in a protest and others toleave the job site. Plaintiffs alleged that the regulation createdan easement on their properties that amounted to a per sephysical taking, requiring just compensation under theConstitution.

The trial court rejected the growers' argument that theregulation was a per se physical taking because it did not"allow the public to access their property in a permanent andcontinuous manner for whatever reason." The Ninth Circuitaffirmed, explaining that the Penn Central analysis forregulatory, not physical, takings was appropriate, and holding thatbecause "the growers did not contend that the regulationdeprived them of all economically beneficial use of their property,per se treatment was inappropriate" and the takingsclaim was invalid. 923 F.3d 524 (2019).

Writing for the Court, Chief Justice Roberts held that the NinthCircuit erred when it applied Penn Central because theappellate court's decision was incorrectly focused on the factthat the government action was a regulation. Rather, the essentialquestion is "whether the government has physically takenproperty for itself or someone else by whatever means or has instead restricted a property owner's ability touse his own property." The Court reasoned that because aphysical appropriation of property had occurred regardlessof whether it was a result of a state regulation "Penn Central has no place."

The Court also rejected the Ninth Circuit's holding that theregulation did not constitute a per se taking because itonly granted temporary access to the union organizers. The Courtheld that this position "is insupportable as a matter ofprecedent and common sense," citing several Supreme Courtprecedents that established temporary takings as physical takingsrequiring compensation.

The three dissenting justices argued that the Californiaregulation "falls within the scope of PennCentral" and voiced concerns about the potential for theCourt's decision to require compensation for government accessfor health and safety inspections and similar activities. Themajority opinion dismissed those concerns, noting that such accessis typically required as a condition of a permit, license, orregistration.

The Cedar Point Nursery decision broadens the reach ofthe law of per se physical takings, a typically morestraightforward and plaintiff-friendly form of takings claim thanregulatory takings. Coupled with the Supreme Court's 2019decision in Knick v. Scott Township, 139 S.Ct. 2162, thatexpanded access to the federal courts for takings claims, propertyowners and businesses now have more tools to negotiate, limit, andwhere necessary, litigate in federal court state and local mandatesthat involve intrusion on land. Per se takings thatrequire compensation may well extend beyond easements created byregulation, such as the requirement at issue in CedarPoint.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

POPULAR ARTICLES ON: Real Estate and Construction from United States

Warshaw Burstein

The Code requires that a seller seeking like-kind exchange treatment acquire the exchange property within the period beginning on the day on which he transferred title to the relinquished property...

Original post:
Supreme Court Finds Fifth Amendment Taking In State Regulation Granting Access To Private Property - Real Estate and Construction - United States -...