A Wisconsin takings case will be heard by the Supreme Court of the United States. Last Friday, the country’s highest court granted review on Murr v. State, 2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628 (per curiam) cert. granted, 2016 WL 205943 (U.S. Jan. 15, 2016) (No. 15-214).
The dispute involves a St. Croix County family’s attempts to develop two parcels of waterfront land separately. These attempts ran up against a county ordinance, which tracked the state’s regulation, effectively merging the two waterfront lots for sale and development purposes.
In a prior case, the landowners sought a variance to sell the lots separately. See Murr v. St. Croix County Board of Adjustment, 2011 WI App 29, 332 Wis. 2d 172, 796 N.W.2d 837. The local Board of Adjustment denied the request and that decision was affirmed by the circuit court and at the Wisconsin Court of Appeals. The Wisconsin Supreme Court declined to review the case.
In the current case, the landowners have challenged the regulation on takings grounds. Specifically, the Murrs alleged that the county’s ordinance and the state regulation on which it was based, Wis. Admin. Code. § NR 118.08(4) (Feb. 2012), meant that they could no longer sell or develop one of the two lots as a separate lot. Thus, the landowners have argued, the ordinance and regulation deprived them of all or practically all of the use of one of the lots.
Nevertheless, the circuit court granted summary judgment in favor of the County and State. The circuit court reasoned that when determining whether the regulation deprived the landowners of use of their land, the court would consider both parcels together. And, when viewed as one combined parcel, the property retained some use. So, there was no compensable taking as a mater of law.
The Murrs appealed to the Wisconsin Court of Appeals. In the Court of Appeals, the Murrs argued that the two lots should have been considered separately. Put another way, the court should have determined if there were any beneficial uses remaining on Lot E—without taking into account what could be done on Lot F or on the combination of the two parcels. However, the Court of Appeals rejected this argument, reasoning that an earlier Wisconsin Supreme Court case, Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996), controlled the outcome here. In Zealy, the Supreme Court rejected the landowner’s attempt to split one piece of property into distinct segments for the purposes of determining whether one of those segments was rendered useless by a regulation. Applying that case, the Court of Appeals rejected the Murrs' arguments to consider the regulation’s effects on Lot E. With the two parcels (Lot E and Lot F) considered as one larger parcel, the Court of Appeals agreed with the circuit court that the overall property still had utility.
The landowners sought review from the Wisconsin Supreme Court. But, that request was denied.
Now, the landowners' case will be heard by the Supreme Court of the United States. With its grant of certiorari, the country’s highest court will now answer, “[w]hether, in a regulatory taking case, 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.”
Briefing and oral argument are up next.