Update: Briefs Roll in Amid Murr v. State of Wisconsin SCOTUS Appeal

April 20, 2016

We’ve been watching Murr v. State of Wisconsin, a regulatory taking case involving a St. Croix River family cabin, closely since the Supreme Court of the United States accepted review. The briefs are now rolling in.

As explained in a previous blog post, the issue in Murr is whether two small, adjacent residential lots may be treated as one combined property for purposes of evaluating whether a regulatory taking occurred. Because the Murrs could use and develop their two lots in a number of combined ways, Wisconsin courts found no taking occurred.

Attorneys from the Pacific Legal Foundation (“PLF”) filed their merits brief on behalf of the landowner-petitioners with the Supreme Court of the United States on April 11, 2016. You can read it here.

Calling the Wisconsin approach “extreme,” the PLF argues that federal case law does not require that two “legally distinct” parcels be combined for takings analysis purposes. The PLF goes on to argue that fee title to the individual parcels is dispositive and that “fairness and justice” support a determination that the courts should separate the Murrs’ two lots for the takings analysis.

Interested amici (“friends of the court”) are also weighing in. In their amicus brief, the Cato Institute and Owners’ Counsel of America urge the Supreme Court to adopt “a bright-line rule against aggregating separate parcels under common ownership” and that “preexisting, state-drawn property lines” define the whole parcel. You’ll find their brief here.

Even the U.S. Chamber of Commerce has something to say. The Chamber argues that current federal case law has created inconsistent results in takings cases around the country. They suggest that a property should be defined “by an objective assessment of whether the tract of land has independent economic viability.” Read the Chamber’s amicus brief here.

The merits briefs of Respondents State of Wisconsin and St. Croix County are expected to be filed May 10, 2016.

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.