Wisconsin Legislature Flips Off Supreme Court’s Murr Decision

Remember Murr v. Wisconsin? Sure you do. Murr was the recent Supreme Court land use/taking decision in which the majority of the U.S. Supreme Court inflicted yet another procedural nightmare on the law of land-use/takings. The court (per Kennedy, J.) did so by creating yet another multi-factor test, this time to determine what is the “larger parcel” in regulatory taking cases.

The facts were simple. The Murrs bought two adjoining parcels of land in the early 1960s. They were bought at different times, and were taxed separately so they were carried on the tax rolls as two separate parcels. The Murrs lived in a cottage they built on one parcel, and kept the other one vacant for future use. Eventually, they decided to build on it but the local regulators had a little surprise for them. Under a local regulation, the Murrs’ two parcels were deemed one, and — relying on the absurd statement in Penn Central to the effect that “takings jurisprudence” does not divide a parcel into segments for the purpose of deciding that a part of it has been taken — denied permission to build on it. Under that rule, when it comes to regulatory takings, it’s either the entire “larger parcel” or nothing at all.* So the Wisconsin regulators, relying on that rule took the position that the Murrs could neither sell the second (vacant) parcel nor build on it. The Murrs deemed that a de facto taking of the second parcels, but to no avail. The US Supreme Court upheld the regulators’ position in Murr v. Wisconsin

But something wonderful happened at this point. The Wisconsin legislature got wind of the Murr decision, and responded with praiseworthy speed. It promptly enacted Senate Substantive Amendment 1, to Senate Bill 387, which among other things repealed the local rules under which the regulators had purported to act. It forbade local land regulators from imposing lot merger requirements on separate lots. For a quick summary of the new legislation see Scott Bauer, Scott Walker Signs Bill Inspired y Western Wisconsin Cabin-Owners’ Court Fight www.Twincities.com, November 27, 2017.

Scott Walker signs bill inspired by western Wisconsin cabin-owners’ court fight

It took the Wisconsin Legislature only five months to rectify the US Supreme Court’s wretched opinion. Nice going.

* The reason we think poorly of that statement in the Penn Central opinion is two-fold. First, when the US Supreme Court uttered that line, it cited no authority — no precedent, no treatise, no commentary, no reason, no nothin’ in its support. It was just a naked assertion. Second, what the then-existing law was, held to the contrary — see U.S. v. Grizzard (1911). Besides, as anyone who has tried an eminent domain case knows, in a partial taking case the condemnor must pay not only for the part taken, but also severance damages suffered by the property’s remainder left in the owner’s hands after the taking. So that Penn Central statement about what the “takings jurisprudence” says, stands on feet of clay, or more accurately, no feet at all.

But hey, man. The Supreme Court had the naked power to say so, and it did just that, thereby confusing the law and providing lawyers with much gainful employment.