Cedar Point Nursery v. Hassid<\/em><\/a>,<\/strong> refining the terms according to which a state may prohibit private landowners from denying access to their land by third parties.\u00a0 Rhode Island landowners with property adjoining public lands should take note: a state generally cannot compel a private landowner to provide public access without just compensation.<\/p>\nCedar Point Nursery<\/em> may be summarized as follows:\u00a0 when the government gives with one hand, it may also take with the other, and the Constitution compels it to pay for what it takes.\u00a0 The Takings Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation. A physical taking\u2014\u201cthe clearest sort of taking\u201d\u2014occurs when the government physically appropriates private property for public use.<\/p>\nThe law before the Court in Cedar Point Nursery<\/em> was a California regulation that granted union organizers access to agricultural employers\u2019 property for three hours per day, 120 days per year to solicit support for unionization.\u00a0 \u00a0The agricultural employers argued that the regulation effected an unconstitutional per se<\/em> physical taking by appropriating without compensation a right to enter their property. \u00a0In other words, the regulation granted an easement over the agricultural employers\u2019 property.\u00a0 On the other hand, the Agricultural Labor Relations Board, the entity that promulgated the regulation at issue, argued that the regulation did not constitute a per se<\/em> physical taking because it authorized only limited and intermittent access for a narrow purpose.\u00a0 The Board further argued that the regulation should be evaluated as regulatory rather than per se<\/em> physical taking.<\/p>\nA regulatory taking occurs when the government imposes a regulation that restricts a private landowner\u2019s ability to use his or her own property, as opposed to appropriating property for itself or a third party.\u00a0 While property may be regulated to a certain extent, if a regulation \u201cgoes too far\u201d in restricting the use of property, it will be recognized as a regulatory taking.\u00a0 According to the Board, the appropriation of a three-hour per day, 120 days per year right to invade the agricultural employers\u2019 property did not constitute a taking of a property interest but rather a mere restriction on its use.<\/p>\n
In a 6 to 3 ruling, a majority of the Court held that the regulation constituted a clear, per se<\/em> taking because it resulted in a physical appropriation of private property. \u00a0Rather than restraining the agricultural employer\u2019s use of their property, the regulation appropriated for the enjoyment of third parties the agricultural employers\u2019 right to exclude.\u00a0 A common way of describing the rights of a property owner is that they constitute a bundle of sticks: each stick is a separate right related to the land, such as the right of possession or enjoyment.\u00a0 The Court emphasized that the \u201cright to exclude\u201d is \u201cuniversally held\u201d to be a fundamental element of property ownership\u2014a principal stick in the bundle, to extend the metaphor.\u00a0 \u201cThe right to exclude,\u201d the Court explained, \u201cis not an empty formality that can be modified at the government\u2019s pleasure.\u201d\u00a0 When the government creates a right to invade private property\u2014whether by statute, regulation, ordinance, or miscellaneous decree\u2014a per se<\/em> taking has occurred, regardless of the scope, duration, and frequency of the physical invasion.\u00a0 The terms of the permitted invasion bear the amount of compensation due, but not its fundamental effect.<\/p>\n","protected":false},"excerpt":{"rendered":"Rhode Island is a small state favored with many natural attractions, not the least of which are its 400 miles of shoreline and more than 8,200 acres of public parks and recreation areas.\u00a0 Such lands frequently about private property, and their borders…<\/p>\n","protected":false},"author":7,"featured_media":611,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[188,2,8],"tags":[190,10,189],"class_list":["post-609","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-agricultural-labor-relations-board","category-business-law","category-real-estate-law","tag-abutting-property","tag-real-estate","tag-takings-clause-of-fifth-amendment"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts\/609","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/comments?post=609"}],"version-history":[{"count":0,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/posts\/609\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/media\/611"}],"wp:attachment":[{"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/media?parent=609"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/categories?post=609"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.apslaw.com\/its-your-business\/wp-json\/wp\/v2\/tags?post=609"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}