August 2021

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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