The government cannot take private property without compensating the owner. When the government takes title or physically invades private property, it is referred to as a “per se” taking and requires compensation, even if only part of a property is affected. At the same time, it is generally accepted that the government can regulate the use of private property without providing compensation. For regulation to constitute a taking, the regulation must deprive the owner of nearly all the value of the property.
The U.S. Supreme Court’s decision in Cedar Point Nursery v. Hassid (1) addressed the line between regulatory taking and per se taking and held that an employment law regulation requiring owners to allow union organizers to use their property, was a “per se” taking requiring compensation, and not merely a property use regulation.2 This article will examine the line the Court attempted to draw between regulating and taking and discuss the extent to which the dissent was correct in noting that this decision places numerous land use regulations in jeopardy.
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Originally appeared in the Winter 2021 issue of Real Estate Finance Journal.
For more information on that publication, please visit legal.thomsonreuters.com. Reprinted with permission.