SACRAMENTO, CA; August 17, 2015: Government should not be permitted to tell property owners, in essence, “the more land you own, the less you’ll be allowed to use.” So argue Pacific Legal Foundation attorneys in asking the U.S. Supreme Court to hear the constitutional takings case of Donna Murr and her siblings Joseph Murr, Michael Murr, and Peggy Heaver. They have been barred from developing a vacant lot they own along the St. Croix River, in St. Croix County, Wisconsin — and a state appellate court said they weren’t entitled to Fifth Amendment takings compensation because they also own a neighboring lot with a recreational cabin on it.
Donor-supported PLF is the leading watchdog organization that litigates for limited government and property rights, in courts nationwide. In filing the petition for certiorari in Murr v. State of Wisconsin and St. Croix County, PLF attorneys represent Donna Murr and her siblings without charge, as with all PLF clients.
The petition asks the High Court to hear, and reverse, 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 (by the Murr siblings’ parents) 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 PLF Principal Attorney John M. 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? We don’t believe government should be allowed to evade the Fifth Amendment’s Takings Clause this way. We are asking the Supreme Court to weigh in and affirm that government can’t cut off landowners’ constitutional rights based on how much land they own.”
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.
“The ruling below offends the letter and spirit of the Constitution’s ban on uncompensated takings, by allowing government to deprive people of the use of their land simply because they happen to own another lot next to it,” said Groen.
“One of the reasons the Supreme Court should take this case is that the Murrs aren’t 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 brothers and my sister and I see this case as taking a stand for constitutional property rights, not just for ourselves, but for everyone,” said Donna Murr. “We’re grateful that Pacific Legal Foundation is helping us defend rights that are important for all Americans.”
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