Murr v. Wisconsin: The Regulatory Taking Case
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Murr v. Wisconsin: The Regulatory Taking Case


The Murrs are four brothers and sisters and
they own two lots side by side on the St. Croix River in Wisconsin. The Murrs’ parents bought the properties
that are in dispute in the ‘60s. In 1960, the Murrs bought what I want to call
“Lot F,” and they transferred ownership of Lot F to a plumbing company that the dad owned
and ran. And they built a cabin that they use as a
summer cabin on that lot. In 1963, the parents then bought a second
lot, Lot E, and they kept that lot vacant. In 1994, the plumbing company passed on ownership
of Lot F to the Murr kids. A year later, the parents passed on ownership
of Lot E to the kids. In the late 1990s, the kids started to be
concerned, because the river was flooding and the cabin on Lot F was getting flooded. The kids then applied for a series of variances
with the County of St. Croix and the Department of Natural Resources. One of those variances asked if the kids could
take Lot E and treat it separate from Lot F and sell it or do other things on it, like
build on it. And the County and the Department of Natural
Resources said, “No, you couldn’t.” When the kids acquired ownership of Lot E
when they already had ownership of Lot F from a year before, the two lots were effectively
merged under the applicable regulations, only one structure could be built on the two lots. And the Murrs say, “We were entitled to
sell Lot E or do something different on Lot E from the cabin on Lot F, and we have suffered
a taking, because we can’t do anything by effect of this denial of an application for
a variance.” The question in this case is whether, for
the purposes of federal taking law, the two lots are two separate parcels or one holistic
parcel. The takings clause reads: “Nor shall private
property be taken for public use without just compensation.” This case focuses on whether the Murrs had
property in the development rights on Lot E, and that if they did have property in those
development rights, whether those development rights were taken. The Murrs have two basic arguments. Their doctrinal argument is that all of the
regulatory takings cases instruct courts to look at the parcel as a whole, and the Murrs
are going to say that the parcel as a whole here means Lot E, the lot that’s defined
in county records and the lot that gets tax assessments. The other argument they’re going to make
is an appeal to fairness. Most parties who are relatively sophisticated
are going to know about merger rules. The Murrs didn’t know about these rules,
and the case here looks like the little guy is getting picked on for not knowing the law. Regulatory takings law is construed in a way
that gives state and local governments benefit of the doubt. Wisconsin will say, “When we’re looking
holistically, the holistic point of view takes into account that Lot E and Lot F are next
to each other, and they’ve been owned effectively by the same people since 1963. At its core, this is an argument about private
property and the benefits of conservation. The Murrs in this case are landowners claiming
that they have a right to do what they want with their own land. And the government is administering a conservation
law and claiming that the People of the United States want the scenic and pretty river to
stay a scenic and pretty river, and everybody in the country can’t get that benefit unless
the landowners relinquish some of the rights to develop the land.

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