When I argued the regulatory taking case of Agins v. City of Tiburon, back in 1980, it was the considered opinion of knowledgeable observers that the members of the court (with the possible exception of Justice Potter Stewart) simply didn’t understand what the case was all about. Though they ultimately ducked the tendered issue of remedies on ripeness grounds, they evidently thought that the controversy before them had to do with deprivations of property without due process of law — not regulatory takings. And adding insult to injury, their eventual ripeness decision contradicted a earlier holding in Euclid v. Ambler without mentioning it, even though it was explicitly brought to their attention. In short, it was a mess which the court eventually had to overrule (in Lingle v. Chevron where they also explained how they were confused by arguments of the US Solicitor General).
Now, over 30 years later, after checking out the intellectual disaster that unfolded before the Supreme Court this week in the form of the oral argument in Murr v. Wisconsin (the latest regulatory taking case to come before the court on the merits), one is left to wonder if things have improved in terms of the Justices’ understanding of this field of law.
The issue in Murr v. Wisconsin seemed simple, but you must not underestimate their Lordships’ capacity for confusing things in takings cases. The question this week was: where the Murr family owned two adjacent, separately taxed lots, bought at different times; one built out with their family home, and the other one vacant, was it permissible for the local land-use regulators to treat both lots as one, and then take the position that therefore being forbidden to build anything on the vacant lot was not its regulatory taking. The lower court used the absurd Penn Central assertion that “takings jurisprudence” does not divide a parcel into segments,* so a regulatory taking of some of it is no taking, and carried it to a reductio ad absurdum conclusion that even if the taken part is a legal, separately taxed lot complying with local zoning, and it is deprived of all utility by local regulations — which would be a total taking under the Lucas case if that lot were standing alone — is no taking at all. In other words, the Wisconsin courts thought that when the taken ground is adjacent to the owners’ other land, what would otherwise be a taking, isn’t. Got it? If you don’t, please don’t feel bad about it, for as Justice Stevens put it: “even the wisest of lawyers would have to acknowledge great uncertainty about the scope of this Court’s takings jurisprudence.”
So in Murr, the Justices got all tangled up in an issue of direct, not inverse, condemnation law, having to do with what constitutes a “larger parcel” in a partial direct taking of a part of the condemnees’ property, where liability for a taking is conceded and the only question is whether severance damages are payable — whether the two parcels in question are so intertwined by use and title, that the taking of one damages the other, requiring payment of severance damages. For an example of that sort of case see City of San Diego v. Neumann, 6 Cal.4th 1 (1993). What that could possibly have to do with the question of whether a high degree of regulatory interference with the use of a vacant parcel amounts to its taking — is an entirely different subject.
If you want an explanatory insight into the intellectual chaos the oral argument in this case represented, please go to www.inversecondemnation.com , the premier blog on takings law, run by our colleague Robert H. Thomas who is an experienced appellate lawyer in this field, and is both knowledgeable about the law and candid in assessing judicial handiwork. Check out his blog post of 3/21/2017 entitled Affirmed By an Equally Confused Court? Some Thoughts on the Oral Argument in the “Larger Parcel Case.” http://www.inversecondemnation.com/inversecondemnation/2017/03/affirmed-by-an-equally-confused-court-some-thoughts-on-the-oral-arguments-in-the-larger-parcel-case.html
We refrain from duplicating his effort here because we doubt that we could improve on his work in this case, meticulously dissecting the absurdities uttered by the Justices — you just have to read ’em for yourself. By the way, Justice Thomas, as is his wont, prudently kept quiet so we cannot say what was on his mind.
Bottom line: While takings law has improved a bit in the past decade (albeit in easy cases where the taking was obvious), the Murr disaster suggests that we a are not yet out of the judicially-created intellectual woods. As the late, great Arvo Van Alstyne, California’s leading expert on government liability put it way back in 1970:
“Judicial efforts to chart a usable test for determining when police power measures impose constitutionally compensable losses, have on the whole, been notably unsuccessful. With some exceptions, the decisional law is largely characterized by confusing and incompatible results, often explained in conclusionary terminology, circular reasoning , and empty rhetoric.”**
Looks like things haven’t changed all that much.
*Penn Central made that statement by naked assertion out of the blue, without citation of any supporting legal doctrine, authority or explanation. Actually, most federal takings have been of easements which are quitessentially partial takings, qualitatively and quantitatively. If you want to explore Penn Central’s many absurdities, we immodestly recommend our article, Gideon Kanner, Making Laws and Sausages: A Quarter-Century Retrospective on Penn Central Transportation Co. v. City of New York, 13 Wm. & Mary Bill of Rights Jour. 679 (2005).
For the real state of the law on this point see United States v. Grizzard 219 U.S. 180 (1911).
** Arvo Van Alstyne, Taking or Damaging by Police Power, 44 So. Cal. L. Rev. 1, 2 (1970).