When you’re in a long-term fight for freedom, you must treat any setbacks as challenges to keep advancing. That is how property rights advocates must respond to this recent defeat at the U.S. Supreme Court. In late June 2017, by a 5-3 majority, the justices undermined the Constitution’s protections against “takings”—i.e., the Fifth Amendment’s mandate that government may not take private property without “just compensation.” In Murr v. Wisconsin, the Court allowed officials in St. Croix County to evade this mandate by using a regulatory maneuver to strip a family of the use of a parcel they own on the St. Croix River without paying them a penny.
For the Murr family, the struggle is about a legacy from their late parents, William Murr and his wife Dorothy. Decades ago they bought a vacant riverfront parcel and built a small recreational cabin. A few years later, they also bought the lot next door as an investment.
The old cabin needs repairs, so the Murr siblings decided to fund the repairs by selling their vacant investment parcel. Citing regulations that were enacted after both parcels were purchased, the government labeled the investment parcel “substandard” even though it has a half acre of developable land, meets all environmental regulations and setbacks, and is surrounded by development on the same size parcels. Nevertheless, the county said they couldn’t sell or develop the investment parcel.
To avoid paying for a “taking” of the vacant parcel, officials employed the fiction of treating both lots as if they were one—even though they are legally distinct and have always been taxed separately.
The Murrs hoped the Supreme Court would reject this abuse of the Takings Clause. Unfortunately, Justice Anthony Kennedy’s opinion created new impediments to understanding takings law. Now, to determine what land might have been taken, the hazy factors include the “surrounding human and ecological environment” and “the effect of the burdened land on other parcels.” Pacific Legal Foundation, which represented the Murrs before the Supreme Court, has launched a nationwide campaign to seek state rulings and legal changes to ensure that people can’t be denied property rights simply because they own more than one parcel.
What’s At Stake?
- The outcome in a regulatory takings case often depends on defining the relevant parcel of property that is the subject of the taking. This case addresses how a court determines "the property" for takings analysis purposes.
- In deciding whether property has been taken, courts should look first at the lot subject to the restrictions, and not at nearby, legally-distinct property owned by the same family.
