Supreme Court Finds Fifth Amendment Taking In State Regulation Granting Access To Private Property

• Published date: 12 October 2021
• Subject Matter: Government, Public Sector, Real Estate and Construction, Constitutional & Administrative Law, Real Estate
• Law Firm: Beveridge & Diamond
• Author: Mr Gus B. Bauman, James B. Slaughter, Felicia L. Isaac and Eric L. Klein

In a major victory for property owners facing state and local land use regulation, the U.S. Supreme Court on Wednesday ruled 6-3 that a California regulation granting union organizers the right to access private property is a per se physical taking requiring the payment of just compensation under the Takings Clause of the U.S. Constitution. Cedar Point Nursery v. Hassid, 2021 WL 2557070 (U.S. June 23, 2021). Cedar Point represents another expansion by the Roberts Court of property owner rights under the Takings Clause and opens the door further to legal challenges to government mandates allowing access to private property.

Cedar Point began with a federal lawsuit under the Fifth and Fourteenth Amendments by two California growers challenging a decades-old state regulation granting labor organizations access to an agricultural employer's property for up to three hours per day, 120 days per year, for labor organizing purposes. The lead plaintiff, a grower, challenged the regulation after union organizers entered the company's property without notice, causing some workers to join in a protest and others to leave the job site. Plaintiffs alleged that the regulation created an easement on their properties that amounted to a per se physical taking, requiring just compensation under the Constitution.

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

Writing for the Court, Chief Justice Roberts held that the Ninth Circuit erred when it applied Penn Central because the appellate court's decision was incorrectly focused on the fact that the government action was a regulation. Rather, the essential question is "whether the government has physically taken property for itself or someone else - by whatever means - or has instead restricted a property...