Supreme Court Finds Fifth Amendment Taking In State Regulation Granting Access To Private Property – Real Estate and Construction – United States -…
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...
- Actions of federal government are upending the due process of the Fifth Amendment [letter] - LancasterOnline - August 24th, 2025 [August 24th, 2025]
- WATCH: Second Biden official invokes the Fifth Amendment during House deposition - InsideNoVa.com - August 1st, 2025 [August 1st, 2025]
- Biden officials are hiding behind Fifth Amendment to avoid incrimination, congressman says - MSN - July 24th, 2025 [July 24th, 2025]
- Another Biden aide invokes Fifth Amendment in deposition before House panel - Rural Radio Network - July 24th, 2025 [July 24th, 2025]
- Third Biden aide invokes Fifth Amendment in House probe of former president's cognitive decline - alphanews.org - July 22nd, 2025 [July 22nd, 2025]
- Bernal invokes Fifth Amendment, refuses to testify in Biden's mental health in probe - KOKH - July 22nd, 2025 [July 22nd, 2025]
- Bernal invokes Fifth Amendment, refuses to testify in Biden's mental health in probe - WPEC - July 22nd, 2025 [July 22nd, 2025]
- Another Biden aide invokes Fifth Amendment in deposition before House panel - Good Morning America - July 22nd, 2025 [July 22nd, 2025]
- House Republicans face mounting resistance as third ex-Biden WH aide pleads Fifth Amendment - AOL.com - July 22nd, 2025 [July 22nd, 2025]
- House Republicans face mounting resistance as third ex-Biden WH aide pleads Fifth Amendment - Fox News - July 20th, 2025 [July 20th, 2025]
- Biden aides look to Fifth Amendment as autopen probe widens - The Washington Post - July 20th, 2025 [July 20th, 2025]
- WATCH: Second Biden official invokes the Fifth Amendment during House deposition - The Center Square - July 20th, 2025 [July 20th, 2025]
- Trumps FBI Director Grilled on What He Thinks Fifth Amendment Says - MSN - July 20th, 2025 [July 20th, 2025]
- Annie Tomasini Invoked Her Fifth Amendment Right in Response to Questions - themercury.com - July 20th, 2025 [July 20th, 2025]
- Annie Tomasini Invoked Her Fifth Amendment Right in Response to Questions - Purdue Exponent - July 20th, 2025 [July 20th, 2025]
- Bernal invokes Fifth Amendment, refuses to testify in Biden's mental health in probe - WPDE - July 20th, 2025 [July 20th, 2025]
- Biden doctor Kevin OConnor invokes Fifth Amendment when asked if he lied about ex-prezs health - MSN - July 20th, 2025 [July 20th, 2025]
- Third Biden witness invokes Fifth Amendment during House deposition - Iosco County News Herald - July 20th, 2025 [July 20th, 2025]
- FNF: Anthony Bernal Invoked His Fifth Amendment Right in Response to Questions - WV News - July 20th, 2025 [July 20th, 2025]
- Another Biden aide invokes Fifth Amendment in deposition before House panel - MSN - July 20th, 2025 [July 20th, 2025]
- FNF: Anthony Bernal Invoked His Fifth Amendment Right in Response to Questions - Purdue Exponent - July 18th, 2025 [July 18th, 2025]
- Bernal invokes Fifth Amendment, refuses to testify in Biden's mental health in probe - KFOX - July 18th, 2025 [July 18th, 2025]
- Bernal invokes Fifth Amendment, refuses to testify in Biden's mental health in probe - WOAI - July 18th, 2025 [July 18th, 2025]
- Fmr. Jill Biden aide pleads the fifth amendment - LiveNOW from FOX - July 18th, 2025 [July 18th, 2025]
- Second Biden official invokes the Fifth Amendment during House deposition - Read Lion - July 18th, 2025 [July 18th, 2025]
- FNF: Anthony Bernal Invoked His Fifth Amendment Right in Response to Questions - Citizen Tribune - July 18th, 2025 [July 18th, 2025]
- Trumps history with the Fifth Amendment still isnt doing his allies any favors - MSNBC News - July 16th, 2025 [July 16th, 2025]
- Requiring man to unlock phone with fingerprint violated Fifth Amendment, court says - Oswego County News Now - July 16th, 2025 [July 16th, 2025]
- Former White House Physician Pleads the Fifth Amendment at House Hearing - The Presidential Prayer Team - July 12th, 2025 [July 12th, 2025]
- Maddow Blog | Trumps history with the Fifth Amendment still isnt doing his allies any favors - Yahoo News - July 12th, 2025 [July 12th, 2025]
- Broadcaster and commentator Josh Bernstein criticises a former White House doctor who treated former US President Joe Biden, after the doctor invoked... - July 12th, 2025 [July 12th, 2025]
- Alert: Biden's former doctor refuses to answer questions in House testimony, citing patient privilege and the Fifth Amendment - Connecticut Post - July 10th, 2025 [July 10th, 2025]
- Biden's former doctor refuses to answer questions in House testimony, citing patient privilege and the Fifth Amendment - Yahoo - July 10th, 2025 [July 10th, 2025]
- Trumps FBI Director Grilled on What He Thinks Fifth Amendment Says - The New Republic - May 11th, 2025 [May 11th, 2025]
- 'Turtleboy' blogger invokes Fifth Amendment in connection with Karen Read case - WCVB - April 18th, 2025 [April 18th, 2025]
- Woman accused of performing illegal abortions invokes Fifth Amendment right, posts bond - KHOU.com - March 28th, 2025 [March 28th, 2025]
- Are Your BYOD Policies Fifth Amendment-Ready? The Growing Tension Between Biometrics & Individual Rights - Corporate Compliance Insights - March 13th, 2025 [March 13th, 2025]
- Patel Invoked the Fifth Amendment in a Case Tied to Trump - The New York Times - February 5th, 2025 [February 5th, 2025]
- Trump says he took the Fifth Amendment in NY investigation - Central Oregon Daily - February 5th, 2025 [February 5th, 2025]
- Travis Kelce avoids answering the most compromising question about Taylor Swift and pleads the fifth amendment - Marca English - February 5th, 2025 [February 5th, 2025]
- Do presidential pardons remove the Fifth Amendment rights of recipients? - National Constitution Center - January 26th, 2025 [January 26th, 2025]
- Biden preemptively pardons Fauci, creating Fifth Amendment trouble for him - MSN - January 22nd, 2025 [January 22nd, 2025]
- Biden preemptively pardons Fauci, creating Fifth Amendment trouble for him - Washington Examiner - January 22nd, 2025 [January 22nd, 2025]
- Ex-IU doctor Brad Bomba Sr. invoked Fifth Amendment 45 times in deposition over alleged abuse - Yahoo! Voices - December 18th, 2024 [December 18th, 2024]
- President Muizzu ratifies the fifth amendment to the Criminal Procedure Act - The Edition - December 18th, 2024 [December 18th, 2024]
- Doctor accused of abusing Indiana University athletes repeatedly invokes Fifth Amendment in deposition - NBC News - December 16th, 2024 [December 16th, 2024]
- Ex-IU doctor Brad Bomba Sr. invoked Fifth Amendment 45 times in deposition over alleged abuse - The Herald-Times - December 16th, 2024 [December 16th, 2024]
- The Constitution: The Twenty-Fifth Amendment - Houston Public Media - November 28th, 2024 [November 28th, 2024]
- Karen Read accused of weaponizing Fifth Amendment by seeking to delay civil trial - CBS Boston - October 31st, 2024 [October 31st, 2024]
- Mother and grandmother of Willacy County murder victim invoke Fifth Amendment during trial - KRGV - August 20th, 2024 [August 20th, 2024]
- This Is What the Twenty-fifth Amendment Was Designed For - The New Yorker - July 4th, 2024 [July 4th, 2024]
- Young Thug trial: State witness held in contempt, taken into custody - The Atlanta Journal Constitution - June 12th, 2024 [June 12th, 2024]
- That's Not How Pleading The Fifth Works - Above the Law - June 12th, 2024 [June 12th, 2024]
- Why was Lil Woody arrested? Rapper invokes Fifth Amendment against self-incrimination to avoid testifying in Young ... - Sportskeeda - June 12th, 2024 [June 12th, 2024]
- New Ad Taunts Trump: 'Take the Stand, Donald, or Admit You're a Coward' - The New York Times - May 18th, 2024 [May 18th, 2024]
- How Democrats In Arizona Are Damaging The Fifth Amendment - The Daily Wire - May 1st, 2024 [May 1st, 2024]
- Social Media Platforms Have Property Rights Too - Reason - April 16th, 2024 [April 16th, 2024]
- Utah high court rules suspects don't have to provide police with phone passcodes - The Record from Recorded Future News - December 21st, 2023 [December 21st, 2023]
- Utah Supreme Court says accused don't have to share cellphone passwords with police - Salt Lake Tribune - December 21st, 2023 [December 21st, 2023]
- High court must uphold constitutional taking clause to protect ... - The Midwest Center for Investigative Reporting - November 9th, 2023 [November 9th, 2023]
- Jump Crypto chief pled Fifth over alleged backroom Do Kwon deal - Protos - November 9th, 2023 [November 9th, 2023]
- Donald Trump civil trial in Manhattan: Maybe he's not trying to win ... - Slate - November 9th, 2023 [November 9th, 2023]
- Commission weighs whether to discipline Illinois judge who ... - St. Louis Post-Dispatch - November 9th, 2023 [November 9th, 2023]
- Smith Sentenced To Probation In Break-In At Sheriff's Residence - wkdzradio.com - November 9th, 2023 [November 9th, 2023]
- SCOTUS accepts 43 cases this term; 20 scheduled for argument so ... - Ballotpedia News - November 9th, 2023 [November 9th, 2023]
- Movie Review - Anatomy of a Fall | The-m-report | wboc.com - WBOC TV 16 - November 9th, 2023 [November 9th, 2023]
- Another Result Before It Happens: The Trump Civil Case In New York - Above the Law - November 9th, 2023 [November 9th, 2023]
- The inherent American rights involved during and after an arrest - FOX 29 - June 15th, 2023 [June 15th, 2023]
- She was killed walking home. Two men are now on trial for her ... - CBS 6 News Richmond WTVR - June 15th, 2023 [June 15th, 2023]
- Are Abortion Bans Takings? - Reason - June 15th, 2023 [June 15th, 2023]
- Ex-San Francisco Official Offers Alibi for One of Series of Bear-Spray ... - The San Francisco Standard - June 15th, 2023 [June 15th, 2023]
- Road project threatens preserved farmland | News | dailycourier.com - Front Page - June 15th, 2023 [June 15th, 2023]
- Teacher, accused of seven felonies, pleads his case to Grand Island ... - Grand Island Independent - June 15th, 2023 [June 15th, 2023]
- "That is a crime of cinema": After Saving Vin Diesel's Career With an ... - FandomWire - June 15th, 2023 [June 15th, 2023]
- There Is No 'Moving On' From Corruption, by Laura Hollis - Creators Syndicate - June 15th, 2023 [June 15th, 2023]
- Left-wing Democrats Running Roughshod Over Constitutional ... - The New York Sun - June 15th, 2023 [June 15th, 2023]
- Tether SEC Action? USDT Selling Floods Liquidity Pools in Wake of ... - CCN.com - June 15th, 2023 [June 15th, 2023]
- Essential Education: Professor, attorney discuss importance of ... - LA Downtown News Online - June 4th, 2023 [June 4th, 2023]
- Inside The Murder Of Kristin Smart And How Her Killer Was Caught - All That's Interesting - June 4th, 2023 [June 4th, 2023]
- Louisiana's Sabine River Authority Not Entitled To Sovereign Immunity - The Energy Law Blog - May 27th, 2023 [May 27th, 2023]