PLF files opening brief at Supreme Court in Murr v. Wisconsin

April 11, 2016 | By JOHN GROEN

Pacific Legal Foundation today filed its Petitioners’ Brief on the Merits in this case pending before the Supreme Court of the United States. The Court granted review on January 15th, 2016, and oral argument will be held in early October. A specific oral argument date has not yet been set.  A copy of the Petition is here, and the Merits Brief is here.

Since 1978, regulatory takings of private property have been evaluated based on the magnitude of government interference with the “parcel as a whole.” But the perplexing problem has been how to define the scope of that parcel. Just what is the whole parcel?  In this case, the Wisconsin courts ruled that the whole parcel was actually two parcels.  The Supreme Court granted review and will provide much needed guidance on this critical property rights question.

The Murr family purchased a waterfront residential lot in 1960 and built a family recreational cabin.  They enjoyed their cabin on the St. Croix River in Wisconsin and so, in 1963, they bought a second lot as an investment.  The investment parcel is immediately adjacent to the cabin parcel.  Unfortunately, government restrictions now prevent the investment parcel from being used, even though it is in a neighborhood of expensive waterfront homes.  The Murrs filed a claim seeking compensation for the taking of the investment parcel, contending that all economically viable use of that single parcel has been denied.  The Wisconsin courts ruled that because the Murrs own the adjacent cabin parcel, and they still have use of the cabin, they have not been denied all economic use of their property “as a whole.”  In other words, Wisconsin ruled that where contiguous parcels are held in common ownership, the parcel as a whole is both parcels combined.  By combining parcels, the extent of private loss is diluted, thereby diminishing the likelihood of finding a taking.

PLF argues for the Murrs that these parcels were purchased at separate times, for separate purposes, have never been used or developed together, and that each lot is an independent and discrete separate parcel.  Under these circumstances, the regulatory impact should be assessed on the investment parcel alone.  PLF argues that Takings Clause jurisprudence supports a presumption that where a single parcel is alleged to have been taken, the parcel as a whole is that single parcel, nothing more and nothing less.  The Wisconsin rule allowing “aggregation” of commonly owned properties to avoid a taking should be overruled.

The opposition will file its brief on the merits by June 10, 2016, with PLF’s reply brief will follow in July.  Friend of the court briefs in support of the Murrs are due by April 18, 2016.