Cato and OCA File Amici Brief in Regulatory Takings Case Before the U.S. Supreme Court

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The Owners’ Counsel of America joined The Cato Institute in filing an amici curiae brief with the United States Supreme Court in an important regulatory takings case urging the Court to reverse the decision below and clarify the legal test for regulatory takings.

Owners' Counsel of America joined The Cato Institute in a brief supporting the property owners in a regulatory takings case before the U.S. Supreme Court.

Owners' Counsel of America joined The Cato Institute in a brief supporting the property owners in a regulatory takings case before the U.S. Supreme Court.

Regulatory takings are about the impact of government regulation on an owner's use of property and how the regulation has an economic impact on the property as an exercise of the government's eminent domain power.

The Owners’ Counsel of America has joined with The Cato Institute to file an amici curiae brief with the United States Supreme Court in Murr v. Wisconsin, No. 15-214, a regulatory takings case the Court agreed to review on January 15, 2016. Amici urge the Court to reverse the decision of the Wisconsin Court of Appeals and establish a bright line rule clarifying the legal test for regulatory takings.

This case arises from the property owners’ appeal of the Wisconsin Court of Appeals opinion in Murr v. State of Wisconsin, 359 Wis. 2d 675, 2014 WL 7271581 (Dec. 23, 2014) in which the Court upheld a trial court’s judgment dismissing the owners’ regulatory takings claim. (Murr v. State of Wisconsin, No. 2013AP2828, Slip op. at 1.) The Court of Appeals concluded that two separate but adjacent one acre parcels owned by the Murr family should be considered as a single contiguous property for purposes of their takings claim. The appellate court reasoned it is a "well-established rule that contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein." (Slip op. at 10.)

In an effort to sell one of the two parcels, a vacant lot, and make upgrades to the existing cabin located on the second parcel, the Murr family sought a variance and the necessary government permissions. The county denied their application because a county ordinance - St. Croix County, Wis. Code of Ordinances, Land Use & Dev. Subch. 111.V, Lower St. Croix Riverway Overlay Dist. § 17.36I.4.a - prohibits the individual development or sale of adjacent lots under common ownership, unless an individual lot has at least one acre of net project area. The Murrs appealed the denial and the courts affirmed the county’s decision. (Slip op. at 3-4.)

The Murr family then brought suit against the state and county alleging that the ordinance resulted in the uncompensated taking of their property under the Wisconsin Constitution. The Murrs alleged that the ordinance deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” (Slip op. at 5.) The trial court concluded that no regulatory taking occurred because the property, when considered as a whole, retained some economically beneficial uses. The Wisconsin Court of Appeals agreed holding that the relevant parcel for a taking was the “parcel as a whole” or both lots combined together, rather than each as a unique and separate property. (Slip op. at 10-11.)

The amici brief filed on behalf of The Cato Institute and OCA was authored in part by the George Mason Law School Supreme Court Clinic. In the brief, amici call upon the Supreme Court to adopt a bright-line rule against combining separate properties under common ownership to measure the “parcel as a whole.” The brief argues that a rule against combining would add much-needed clarity to the takings test established by the Court under its ruling in Penn Central Trans. Co. v. New York City, 438 U.S. 104 (1978). (Amici brief at 4.)

Speaking on behalf of amicus party Owners’ Counsel of America, OCA Hawaii Member Robert H. Thomas, Esq. explained, “regulatory takings are about the impact of government regulation on an owner's use of property and how the regulation has the same economic impact on the property as an exercise of the government's eminent domain power. In this area of law, the size of the property often dictates the severity of the impact – the smaller the property, the more severe the impact.”

“The question in Murr is whether the extent of the owners' loss of use can be measured by aggregating other land owned by them, even though both properties are distinct and separate legal parcels,” stated Thomas. “The brief filed by Cato and OCA argues that the Wisconsin appellate court decision creates larger parcels of land, making it easier for the government to effect uncompensated takings.”

About Owners’ Counsel of America

The Owners’ Counsel of America (OCA) is a nationwide network of experienced eminent domain lawyers dedicated to protecting the rights of private property owners large and small, locally and nationally, and to advancing the cause of property rights. The attorneys affiliated with OCA are in private practice in nearly every state and represent private owners against federal, state, and local governments, utilities, transportation and redevelopment authorities and other entities that may be armed with eminent domain power. For more information or to locate an eminent domain lawyer in your state, please visit http://www.ownerscounsel.com.

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Catherine Newman
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