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Wednesday, January 20, 2016

USSCT Will Hear Regulatory Takings Case

It is not often that the U.S. Supreme Court hears a case involving the Fifth Amendment Takings Clause. That clause provides that private property cannot be taken by government without the payment of just compensation.  There are a handful of seminal USSCT cases that interpret what that clause means, including Dolan, Nollan, Lucas, and more recently, Koontz.  Might the next seminal USSCT case be Murr?  We'll certainly find out after the U.S. Supreme Court recently agreed to hear an appeal in the case of Murr v. Wisconsin.  

In Murr, a family sued, claiming that it suffered an illegal government taking when it was denied the ability to develop one of the family's adjoining waterfront parcels. The county had an ordinance that prohibited the individual development or sale of adjacent, substandard lots under common ownership, unless an individual lot has at least one acre of net project area. The Murrs had applied for a variance to separately use or sell their two contiguous lots. The variation was denied, and the Murrs sued alleging they suffered a regulatory taking without compensation. 

The Wisconsin Court of Appeals ruled against the Murrs, holding that they were not entitled to compensation for a regulatory taking under the Fifth Amendment. The court based its ruling on the county ordinance that "merged" the two lots into one single, buildable lot. Because the Murrs could continue to use this merged property for residential purposes, they did “not suffer the loss of substantially all of the beneficial uses of his land." Therefore, there was no compensable taking of their land.

The U.S. Supreme Court is being asked to settle this issue in regulatory takings law - whether two adjoining lots held in common ownership should be combined (as the Murr court did) or treated as separate lots for a takings analysis.

A copy of the Wisconsin Court of Appeals decision can be found here.

We will keep you posted on this case.  


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