Dawn Geske Jul. 8, 2016, 7:05pm

ST CROIX COUNTY – California, along with eight other states, has filed an amicus brief in the property rights case of Murr v. Wisconsin, currently being heard by the Supreme Court.

The case focuses on whether property owners are entitled to compensation for their property under the Takings Clause of the Fifth Amendment. The property owners in this case, the Murr family, are fighting for the right to sell one parcel of land of the two lots it owns in a subdivision on the St. Croix River in Wisconsin.

While the family did build a cabin on one lot, the children are are now interested in selling the other lot. The Wisconsin government has denied them this right because environmental regulations state the lot requires a larger project area that could be developed and because of an ordinance that prevents them from selling the vacant lot without the other.

This has devalued the lot value, which the Murrs say violates the Fifth Amendment Takings Cause and deprives them of the value of the lot without providing them compensation. The Wisconsin government is arguing that the takings clause is not applicable, considering the two lots together, because it only affects half the land. The Murrs allege the government took the whole plot of land if it is looked at individually.

The Wisconsin Supreme Court declined to hear the appeal from the Wisconsin Court of Appeals, but will review the case following an appeal by the Murrs. Several states have issued amicus briefs for and against the Murrs position.

Under the Takings Clause of the Fifth Amendment, the government is required to provide compensation when it takes private property. What is being argued in this case is what constitutes as a whole parcel. In this case, the government is alleging that both lots are a whole parcel and the Murrs are arguing that they are separate parcels. If the parcels are to be regarded as one and only a small portion to the parcel is taken, which would have little impact on its overall value, it would be ruled a taking with no compensation required.

“If Wisconsin prevails in the case, state and local governments (and the federal government) could often avoid paying compensation to property owners when they impose severe regulatory burdens on a property so long as the owner happens to own another lot contiguous to it,” Ilya Somin, professor of law at George Mason University told the Northern California Record. “The Wisconsin position is at odds with the text and original meaning of the Constitution, which in no way allows states to avoid paying compensation for a taking merely because the owner of the lot in question happened to also own another lot next door.”

The California brief contends that under the Fifth Amendment clause, regulatory takings did not consider compensation when it was originated. Nevada and eight other states argue that the clause should look at boundaries, which would identify the parcels as two lots.

“Sometimes states will indeed pay compensation on their own, when it is right to do so,” said Somin. “But often, they will try to avoid it, if possible. Politicians will, in many cases, find it advantageous to seize property without paying compensation, especially if the owners have little or no political influence. This danger is one of the reasons why the Takings Clause was added to the Constitution in the first place.”

The outcome of the case will have a major impact on property rights for land owners going forward.

“If states and localities are not required to pay for the burdens their regulatory policies impose on property owners, would be incentivized to pursue inefficient regulations,” said Somin. “That often harms not just the owners directly affected, but the entire community.”

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George Mason University
4400 University Dr
Fairfax, VA 22030

Wisconsin Supreme Court
110 East Main Street
Madison, WI 53703

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