![]() ![]() ![]() ![]() Organizers from the United Farm Workers sought to take access to property owned by two California growers-Cedar Point Nursery and Fowler Packing Company. The regulation mandates that agricultural employers allow union organizers onto their property for up to three hours per day, 120 days per year. Government inspection regimes will generally not constitute takings.Ī California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. The Court distinguished restrictions on how a business generally open to the public may treat individuals on the premises isolated physical invasions, not undertaken pursuant to a granted right of access and requirements that property owners cede a right of access as a condition of receiving certain benefits. The California regulation is not transformed from a physical taking into a use restriction just because the access granted is restricted to union organizers, for a narrow purpose, and for a limited time. The right to exclude is “a fundamental element of the property right.” The duration of a physical appropriation bears only on the amount of compensation due. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties (union organizers) the owners’ right to exclude. California’s access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. When the government physically appropriates property, the flexible Penn Central analysis has no place. When the government, rather than appropriating private property for itself or a third party, imposes regulations restricting an owner’s ability to use his own property, courts generally determine whether a taking has occurred by applying the “Penn Central” factors. California’s access regulation constitutes a per se physical taking and the growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. ![]()
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |