Press Release

High Court accepts PLF “relevant parcel” property rights case

WASHINGTON, D.C.;  January 15, 2016:  The Supreme Court announced today that it will hear the Pacific Legal Foundation (PLF) property rights case, Murr v. State of Wisconsin and St. Croix County, which deals with the important question of what constitutes the “relevant parcel” for determining whether a restriction on the use of property violates the Fifth Amendment’s Takings Clause.

Donor-supported PLF is the leading watchdog organization that litigates for limited government and property rights, in courts nationwide.  PLF attorneys represent Donna Murr and her siblings Joseph Murr, Michael Murr, and Peggy Heaver.  They have been barred from developing a vacant lot that they own along the St. Croix River, in St. Croix County, Wisconsin — simply because they also happen to own a neighboring lot with a recreational cabin on it.  PLF attorneys represent Donna Murr and her siblings without charge, as with all PLF clients.  Today’s announcement builds on a powerful PLF record of reaching and winning at the U.S. Supreme Court on behalf of our clients.  Founded in 1973, PLF has won its last seven direct-representation cases at the High Court.

The Murr case joins another PLF case for property owners’ rights — U.S. Army Corps of Engineers v. Hawkes — which the court has also accepted for hearing this term.

“Everyone who values property rights should welcome the court’s decision to hear this important case,” said PLF Principal Attorney John Groen, regarding the granting of the Murr case.  “This litigation asks whether government can get away with telling property owners, in essence, ‘The more land you own, the less we’ll allow you to use.’

“We’re challenging a practice that is all too common among land use regulators, where they tell a landowner she can’t use her property, based on the excuse that she also happens to own a neighboring parcel.  In other words, bureaucrats will treat two, legally distinct parcels, as if they were one unified parcel, so they can prohibit all development on one of the parcels without providing compensation as required by the Fifth Amendment.

“As we will argue to the Supreme Court, this kind of regulatory sleight of hand cannot be permitted if the Constitution’s Takings Clause is to be respected.”

Can government deny owners their constitutional rights based on how much land they own?

PLF filed the petition for certiorari with the Supreme Court following the Wisconsin judiciary’s rejection of the Murr family’s takings claim.  The Wisconsin Court of Appeals proclaimed a “rule that contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein.”  The court insisted on considering the Murrs’ two lots as a single entity — even though they were acquired separately, at different times, and for different purposes.

The Wisconsin Supreme Court declined to review the appellate court’s ruling.

“This case offers the Supreme Court an opportunity to address one of the major recurrent issues in property law, called the ‘relevant parcel’ question,” said Groen.  “The Fifth Amendment’s Takings Clause requires compensation when government prohibits all economic use of private property.  The Supreme Court has previously stated that courts must consider the ‘parcel as a whole.’  The ‘relevant parcel’ question asks:  What is the whole parcel?

“In the Murrs’ case, the government argues that the whole parcel is both of their lots,” Groen continued.  “Can government forbid the use of a separately created, legally distinct residential lot, and get away with paying no compensation, just because the adjoining lot is already developed and happens to be owned by the same family?  By accepting this case, the Supreme Court has an opportunity to make it clear that government can’t cut off landowners’ constitutional rights based on how much land they own.”

The Murr siblings are victims of a “taking” — and an inventive government excuse for not compensating them

The ownership timeline in this case starts 55 years ago.  In 1960, the Murr siblings’ parents purchased a 1.25-acre waterfront lot (Lot F) in a large subdivision on the St. Croix River and built a family recreation cabin.  They placed title to the parcel in their private plumbing company.

Three years later, the parents purchased the adjacent parcel (Lot E), bought as a discrete and legal lot that was also created by the St. Croix Cove subdivision.  That lot, also 1.25 acres, has remained vacant and was held for investment purposes.

In the mid-1970s, new land use regulations limited development to the “net project area” that was remaining after subtracting slope preservation zones, floodplains, road rights of way and wetlands.  Although the vacant lot has almost half an acre of buildable area, the lot is still treated as “substandard” because it has less than one acre of “net project area.”  However, the regulations also have a “grandfather clause” that allows development of substandard lots that existed as “lots of record” prior to adoption of the new regulations in 1976.

However, the grandfather clause allowing development applies only to lots that are in separate ownership from abutting lands. The Murrs’ lots, while legally discrete, are under common ownership because the Murrs’ parents transferred ownership to their children in the mid-1990s.

A few years ago, in order to fund repairs to their recreational cabin on Lot F, the Murrs sought to sell their vacant, investment parcel (Lot E). But citing the regulations that took effect in the 1970s, government officials have prohibited the family from selling or making any productive use of the investment parcel. Trying to avoid liability for a regulatory “taking” of the investment parcel, officials are arbitrarily treating both lots as if they were a single, unified parcel – despite the fact they were purchased at different times, are legally distinct, and, indeed, have been taxed as separate and discrete properties.

After being denied variances and special exceptions, the Murr siblings brought a claim for a regulatory taking of their investment parcel. Ruling against them, the Court of Appeals of Wisconsin held that the relevant parcel for applying the takings analysis was the “parcel as a whole,” which the Court ruled was both parcels combined together, rather than each discrete and separate parcel.

Abuse of the ‘relevant parcel’ concept is widespread

“This case has broad implications, because the Murrs are far from alone in confronting this issue,” Groen continued.  “The problem of bureaucrats and courts defining the parcel as a whole to include adjoining lots in common ownership presents itself throughout the country.  It arises in multiple contexts, from agricultural operations concerning multiple separate tracts, to the typical American family such as the Murrs.”

“My family and I are very encouraged by the court’s announcement, and grateful to PLF for getting us here,” said Donna Murr.  “This case isn’t just about our own rights, our own ability to use our land.  It’s about the Constitution’s protections for everybody against overbearing regulations.  We are hopeful that the justices will give all property owners a victory.”

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and free enterprise nationwide.  PLF represents all clients without charge.

Case Attorneys

John M. Groen

Executive Vice President and General Counsel

John Groen has extensive experience in public interest litigation before all levels of federal and state courts.  He began his law career with Pacific Legal Foundation in 1987 and launched … ›

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J. David Breemer

Senior Attorney

David (Dave) Breemer developed a passion for liberty while reading classics such as John Locke’s Two Treatises of Government and Thomas Paine’s The Rights of Man, as he pursued a … ›

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