Save Our Environment

A MOST TREASURED RIGHT: THE RIGHT TO DENY ACCESS AND THE FIFTH AMENDMENT

By John R. Embick, Esquire John R. Embick, PLLC Chair of the CCBA Environmental Law Section

The Fifth Amendment to the U.S. Constitution provides, in part, as follows:

No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Pennsylvania Constitution has a similar provision, and it is set forth in Art. 1, Section 10, Further, Fourteenth Amendment of the U.S. Constitution extends the provisions of the Fifth Amendment to states and local governments. The field of law that has evolved over disputes involving this portion of the Fifth Amendment is known as “takings clause law,” and has seen many twists and turns down through the years.

Takings clause law is of interest to environmental law practitioners because takings issues arise frequently in connection with environmental regulatory programs and land use controls. See, e.g., Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922) (Pennsylvania law improperly restricted mining of coal under streets, houses and places of public assembly); Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (a general zoning ordinance was upheld); Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (New York City properly restricted construction above Grand Central Station, and the long-standing “Penn Central” test was developed); Agins v. City of Tiburon, 447 U.S. 255 (1980) (if land use regulations substantially advance legitimate government interest, and as long as the regulations do not prevent a property owner from making economically viable use of private property, then no compensation is required); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (governmental use regulations which deny a landowner of all economically beneficial use must be compensated); Nollan v. California Coastal Commission, 483 U.S. 825 (1987) (requirement that private land owner grant public easement as a condition of land development approval was a taking); Dolan v. City of Tigard, 512 U.S. 374 (1994) (requirement that private land owner dedicate land for public greenway as a condition of land development approval was unconstitutional); Palazzolo v. State of Rhode Island, 533 U.S. 606 (2001) (denial of permission to place fill on coastal wetlands not a taking); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002) (32 month development moratorium was not a taking, and the planning agency was represented by the future Chief Justice Roberts); Kelo v. City of New London, 125 S. Ct. 2655 (2005) (use of eminent domain power to take private property for economic development purposes is a valid public use); and Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) (the High Court overturned the Agins test, and addressed the question of whether a law establishing a rent cap was constitutional under the Fifth Amendment).

There are a number of different categories of a taking of private property, but two main “flavors” are: (1) physical takings, in which the government physically appropriates private property, and (2) de facto or regulatory takings, in which the government takes regulatory action which affects the use of private property. For decades, “use” restrictions of private property were evaluated using a flexible test presented in the Penn Central Transportation Co. case (using factors such as: (1) economic impact of the regulation; (2) degree of interference with reasonable investment-backed expectations; and (3) the character of the governmental action).

Two recent U.S. Supreme Court cases appear to have provided significant new protections to land-owners facing governmental restrictions affecting private property.

The first is Knick v. Township of Scott, Pennsylvania, 588 U.S. __, 139 S. Ct. 2162 (2019). This case was authored by Chief Justice Roberts (in a 5 to 4 decision), and the decision stands for the principle that landowners complaining about state or local action which takes or restricts their property may immediately invoke federal

court jurisdiction under the authority of 42 U.S.C. §1983. Scott Township, located in Lackawanna County, PA had passed an ordinance requiring that all burial grounds be kept open and accessible to the general public during daylight hours. The ordinance subsequently was withdrawn, but a property owner initiated action in federal court. This decision overrules the prior High Court decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473, U.S. 172 (1985). As a result of Knick, aggrieved landowners no longer need to exhaust state or local remedies before invoking federal court jurisdiction, and this case thus represents a significant procedural change in takings clause law. This change was forecasted as likely to cause a flood of federal court litigation over state or local takings disputes (which arguably could include variance denials, or the imposition of land development conditions, etc.), but this does not appear to have happened, at least so far.

The second case was decided in the October 2020 term of the U.S. Supreme Court. The case of Cedar Point Nursery, et al. v. Hassid, et al., 594 U.S. ___ (June 23, 2021), was also authored by Chief Justice Roberts (in a 7 to 3 decision). This case involved a 1975 California law which authorized third parties to enter private property (at specific, and limited times) for the purpose of discussing labor issues with farm workers. In Cedar Point Nursery, the court found that the California law in question effected a per se physical taking under the Fifth Amendment.

The regulation did not restrict the owners’ use of the private property, but rather deprived the owners of the right to exclude third parties from entering their private property. Chief Justice Roberts stated as follows:

The right to exclude is “one of the most treasured” rights of property ownership. … According to

Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” … In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Slip op at 7 (citations omitted).

So, Cedar Point Nursery case turns on the opinion of the justices as to what constitutes a physical taking. A majority of justices believe that by granting access to Continued on page 26

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third parties, even for a limited amount of time, the regulation confers a right to physically occupy private property and thus constitutes a physical taking.

Chief Justice Roberts went on to address (and dismiss) concerns that the holding in Cedar Point Nursery would jeopardize many state and federal government regulations or activities, including entry onto private property (safety and environmental compliance inspections come to mind), as follows:

First, our holding does nothing to efface the distinction between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. … This basic distinction is firmly grounded in our precedent.

Second, many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights. As we explained in Lucas v. South

Carolina Coastal Council, the government does not take a property interest when it merely asserts a “preexisting limitation upon the land owner’s title.” …

For example, the government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place. …

Third, the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking. In Nollan, we held that “a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking.” …

The inquiry, we later explained, is whether the permit

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condition bears an “essential nexus” and “rough proportionality” to the impact of the proposed use of the property. Dolan, … . Slip op. at 17-20 (citations partially omitted).

In a dissent authored by Justice Breyer, and joined by Justices Sotomayor and Kagan, Justice Breyer made the argument that the regulation did not physically appropriate the private property; rather, it temporarily restricts the owner’s right to exclude third parties, and therefore the regulation should be evaluated according to the precedent established in the Penn Central case.

With Cedar Point Nursery, the Supreme Court seems to be signaling that it is willing to put certain governmental regulations that do not have the effect of appropriating private property in the classic sense (by physically taking the property, or ousting the owner of possession) into the category of per se physical taking. Evidently, the majority in Cedar Point Nursery thought that the right-to-exclude “stick” is one of those really important “sticks” in the “bundle of sticks” that constitutes property rights, and that messing with that “stick” constitutes a per se physical taking. Prior to the Cedar Point Nursery holding, I would have expected the High Court to evaluate the effect of the California regulation using Penn Central standards. How narrow a ruling Cedar Point Nursery is remains to be seen.

The majority did not provide guidance concerning how a court might evaluate what compensation is appropriate for the type of invasion required by the California law at issue. I suppose this would involve a battle of appraisal experts who would present theories on what level of compensation is appropriate for a physical taking such as was presented. Is a “treasured right” worth $1.00 a day, or $1,000,000.00 a day? Is the right of access compensable on each and every day access is possible, or only on the days access is exercised? The California law at issue has been in force for almost half a century; is compensation due from the date of enactment? This should be interesting, if it gets that far.