August 2021

An informative e-newsletter for the Real Property Law Section of the State Bar of Michigan.

SCOTUS Continues to Protect Property Rights from Regulatory Takings

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By Peter H. Webster, Dickinson Wright, PLLC and Jason C. Long, Steinhardt Pesick & Cohen, PC.

In Cedar Point Nursery v. Hassid, __US__; __ S Ct __ (2021), the Supreme Court held that a California regulation that required property owners to allow union organizers onto their property for three hours per day, 120 days per year, was a per se physical taking because it appropriated, without just compensation, an easement to enter private property.

The key issue was whether the regulation was a per se physical taking. If so, then, “[t]he government must pay for what it takes.”  If a restriction only limits an owner’s use of its property, however, the Court generally determines whether the restriction effects a taking using the approach in Penn Central Transportation Co v. New York City, 438 US 104 (1978) that considers factors including the regulation’s economic impact, its interference with reasonable investment-backed expectations, and the character of the government action.  But when the government physically appropriates property, Penn Central is not applicable.

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The views and opinions expressed in these articles are those of the authors, and they do not reflect in any way the positions of the State Bar of Michigan or the Real Property Law Section. These columns are meant for informational purposes only and should not be construed as legal advice. IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the Internal Revenue Service, we inform you that any U.S. federal tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, by any person for the purpose of (i) avoiding tax-related penalties or (ii) promoting, marketing, or recommending to another person any transaction or matter addressed in this communication.