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Contact: John M. Groen
Principal Attorney and General Counsel
Pacific Legal Foundation
jmg@pacificlegal.org
(916) 419-7111

James S. Burling
Director of Litigation
Pacific Legal Foundation
jsb@pacificlegal.org
(916) 419-7111

PLF files opening merits brief with Supreme Court in Murr

Precedent-setting case asks: May government block use of private property, without compensation, simply because the owners also own an adjacent, developed parcel?


WASHINGTON, D.C.;  April 11, 2016:  Attorneys with Pacific Legal Foundation (PLF) today filed the opening brief with the U.S. Supreme Court in the precedent-setting property rights case of Murr v. State of Wisconsin and St. Croix County.   Although it is focused on St. Croix County’s uncompensated “taking” of a family’s investment parcel that they own along the St. Croix River, the case challenges an abuse that has been known to happen nationwide:  where regulators forbid the use of private property, and also fail to provide “just compensation,” on the excuse that the owner also happens to own the neighboring parcel of property.


John M. Groen
Principal Attorney and Gen. Counsel

James S. Burling
Dir. of Litigation

Regulators have been able to get away with this tactic by arbitrarily treating separate, legally distinct  parcels owned by the same persons as if they were one single property.  The tactic has survived because there has not been a uniform nationwide judicial rule on what is the “relevant parcel” for courts to consider when defining whether a “taking” has occurred in such cases:  i.e., is it the lot for which regulators have denied all use, or is it both side-by-side parcels, analyzed as if they were a single parcel?  The Murr case offers the Supreme Court an opportunity to issue a nationwide ruling on this question that can strengthen property rights by prohibiting regulators from using inventive excuses to avoid liability when they commit uncompensated “takings” in violation of the Fifth Amendment.

Donor-supported PLF is the leading watchdog organization that litigates for property rights, in courts nationwide.  PLF attorneys represent Donna Murr and her siblings Joseph Murr, Michael Murr, and Peggy Heaver, who have been barred from selling a vacant lot that they own along the St. Croix River — simply because they also happen to own a neighboring lot with a recreational cabin on it.  PLF attorneys represent them without charge, as with all PLF clients.

The Murr siblings are victims of a “taking” — and an
inventive government excuse for not compensating them

The Murr family purchased a waterfront residential lot in 1960 and built a family recreational cabin.  They enjoyed their cabin on the St. Croix River and so, in 1963, they bought a second lot as an investment.  The investment parcel is immediately adjacent to the cabin parcel.  Unfortunately, local government restrictions now prevent the investment parcel from being independently used or sold, even though it is in a neighborhood of expensive waterfront homes.

The Murrs filed a claim seeking compensation for the taking of the investment parcel, contending that all economically viable use of that single parcel has been denied.  However, the Wisconsin courts ruled that because the Murrs own the adjacent cabin parcel, and they still have use of the cabin, they have not been denied all economic use of their property “as a whole.”

In other words, Wisconsin ruled that where contiguous parcels are held in common ownership, the parcel as a whole is both parcels combined.  By combining parcels, the extent of private loss is diluted, thereby diminishing the likelihood of finding a taking.

PLF’s brief: The purpose and protections of the Takings Clause are at stake

“In our brief to the Supreme Court, PLF argues for the Murrs that Takings Clause jurisprudence, and simple common sense and fairness, dictate that these two parcels should be considered as what they are — legally independent, discrete, and separate properties,” said PLF General Counsel John Groen.  “Therefore, the government cannot escape its liability for a taking when it denies all use of the investment parcel.  These parcels were purchased at separate times, for separate purposes, and they have never been used or developed together.  Under these circumstances, the regulatory impact should be analyzed based on the effect on the investment parcel alone.

“As we argue, Takings Clause jurisprudence supports a presumption that where a single parcel is alleged to have been taken, the parcel as a whole is that single parcel, nothing more, and nothing less,” Groen continued.  “The Wisconsin courts’ rule allowing ‘aggregation’ of commonly owned properties to avoid a taking subverts the purpose and protections of the Takings Clause, and should be overruled.”

Amicus briefs in support of PLF and the Murrs are due on April 18.  The government will file its brief on the merits by June 10, 2016, with PLF’s reply brief to follow in July.

Oral argument at the Supreme Court will be held in October, with the specific date still to be announced.

The case is Murr v. State of Wisconsin and St. Croix County.  More information, including PLF’s opening brief on the merits, a podcast, and an explanatory blog post, is available at:  www.pacificlegal.org.

About Pacific Legal Foundation
Donor-supported PLF is a watchdog organization that litigates for limited government, property rights, and free enterprise, nationwide.  PLF represents all clients without charge.


 

 
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