The Family Cabin Goes to the High Court

The U.S. Supreme Court Accepts Review of Murr v. State of Wisconsin

A longer version of this blog entry appeared in the March 2016 issue of Inside Track.

A family cabin on the shores of the St. Croix Scenic Riverway in Troy, Wisconsin, is making national news among eminent domain watchers.

The Murr family purchased two adjacent riverfront lots in the 1960s. They built a family cabin on one of the lots and kept the other lot for retirement. Now, the United States Supreme Court is using the case of Murr v. State of Wisconsin and St. Croix County to explore whether two lots are a single property for purposes of determining whether a taking occurred.

Located on the shores of Wisconsin’s only national park, the Murr property is about as heavily regulated as property can be. Riverway, floodplain, shoreland, and slope preservation zones overlap. But at the center of this dispute are a St. Croix County land use ordinance and a parallel State regulation governing development of “substandard lots.” Under those regulations, two contiguous substandard (i.e. small) lots in common ownership are effectively merged into one single lot. In 1995, the Murr parents deeded the lots to their adult children, effectively and legally creating one property.

In the early 2000s, the Murrs realized that the St. Croix County and State law regulations prohibited the separate subdivision and development of the second lot. They requested a variance, which the County denied.

The Murrs unsuccessfully challenged the County’s decision, and, in a separate lawsuit, sued the State and County seeking compensation for a taking under Wis. Stat. § 32.10 and the Wisconsin Constitution. With the second lawsuit, the Murrs started on the path to the United States Supreme Court.

Wisconsin’s lower courts sided with the government. Under Wisconsin’s regulatory takings law, no taking occurs unless an owner has been deprived of all or substantially all beneficial use of the whole property. The circuit court found that the Murrs did not meet this test, and the Wisconsin Court of Appeals affirmed.

For purposes of the takings analysis, the courts treated the Murr property as one single property. There was no dispute that the Murrs could continue to use the property as one residential property, either by using the existing cabin or building a new home on the second lot on top of the bluff. The Murrs can decide where to put their home – but they can’t have two.

The Court of Appeals opinion was unpublished per curium, and the Wisconsin Supreme Court declined to review the opinion. But on January 15, 2016, the United States Supreme Court announced it was accepting review of the case. The issue will be whether two lots can be treated as a single property for purposes of determining whether a taking occurred under the Fifth Amendment’s takings clause.

Briefing will be complete by summer, with oral argument sometime after October. With the passing of Justice Antonin Scalia, it’s anyone’s guess when the Court will issue a decision. Stay tuned.

More information, including the Pacific Legal Foundation’s petition on behalf of the Murrs, is available at: http://www.scotusblog.com/case-files/cases/murr-v-wisconsin/

Read the Wisconsin Court of Appeals’ opinion here: http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=132116

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Full disclosure: As a former Assistant Attorney General with the Wisconsin Department of Justice, Ms. Beachy was the trial attorney for the State in Murr v. State before returning to private practice in January 2016.