December 8, 2015

Stay tuned: Another PLF case on the Supreme Court “relist” watch

By John M. Groen Executive Vice President and General Counsel

In addition to Corps v. Hawkes and Kent Recycling v. Corps, Pacific legal Foundation has a third case that has been “relisted” and is being given serious consideration for a grant of certiorari.  Under the current procedure, the Supreme Court of the United States often relists a case for the next conference if it is a case that the Court is potentially going to grant certiorari and take the case on the merits.

Yesterday, the Court relisted Murr v. State of Wisconsin and St. Croix County, docket number 15-214, for the conference to be held this Friday, December 11, 2015.  So, stay tuned.  Hawkes and Kent Recycling are also relisted for the same conference.

The petition for writ of certiorari in Murr is here.  The question presented to the Supreme Court is whether the “parcel as a whole” concept as described in Penn Central Transportation Company v. City of New York establishes a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes?

The Murrs are siblings, and in 1960 their parents bought a residential parcel, Lot F, in the St. Croix Cove subdivision.  It is a waterfront parcel on the St. Croix River in an area where the river widens and is referred to as St. Croix Lake.  The Murrs’ parents built a cabin and the family enjoyed many summertime recreational activities at the lake.  Recognizing the potential of the area, the parents in 1963 purchased the adjoining parcel, Lot E, as an investment property.  They intended to develop it separately or sell it at some future time.  The St. Croix Cove subdivision has been completely developed with approximately 40 lots of primarily year round residents, but the Murrs’ investment property has remained vacant to this day.

Eventually, the Murrs parents gave both lots to their grown children.  The siblings then decided in 2004 that it was time to sell the investment parcel and use the proceeds to repair and improve the old cabin.  That is when their trouble began.  Under new regulations, the still vacant Lot E is now precluded from being used as a separate building site.  Despite being in a residential area, the Murrs are denied all economically viable use of the residential zoned parcel, and cannot even sell it unless they combine it with Lot F.

The Murrs brought a regulatory taking claim seeking compensation for the taking of the separate and discrete Lot E.  However, the Wisconsin court ruled that there was no taking because the “parcel as a whole” was determined to be both parcels combined.  The reason for aggregating the parcels was nothing more than that they are contiguous and under common ownership.  Of course, having defined the parcel as a whole in that way, it was easy to conclude there was no taking because the cabin provided a continuing economic use of Lot F.

Also referred to as the “relevant parcel” question, this issue for many years has been a high priority for PLF.  Moreover, the issue has been recognized by the Supreme Court as a “critical issue” that needs clarification, and that prior decisions have produced “inconsistent pronouncements” from the Court.  Perhaps the time has finally come for the Supreme Court to address the question.  Stay tuned, as we watch to see what order comes out of the conference on Friday.  If certiorari is granted, this will result in a major ruling concerning regulatory takings, and will substantially develop the law on the persistent issue of defining the relevant parcel for takings analysis purposes.

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Murr v. Wisconsin

The Murr family owned two separately deeded lots that were purchased independently by their parents in the 1960s. They built a small cabin on one lot and held the other one as an investment for the future. But when the time came to sell, subsequently enacted regulations forbade the Murrs from making any productive use of the vacant lot – and without any use, it had no value they could sell. PLF represents in the Murrs in a lawsuit arguing that the regulation was an uncompensated taking because it took away all the use and value of the lot. The courts ruled against the family because they owned the adjacent lot with the cabin, and therefore hadn’t lost everything.

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