Here’s the first post-Murr cert petition (as far as we can tell), in a case we’ve been following. As we wrote in “The First Post-Murr Case? Fourth Circuit: No Taking Because Anti-Development Merger Regulations Actually Make Property Developable,” the Fourth Circuit concluded:
[T]he County’s regulations were run-of-the-mill zoning/land use ordinances, and thus were not a taking, nor violations of the related substantive due process and equal protection claims. Because the County had no obligation to extend sewer services to the plaintiff’s parcels, he had no property interest that was taken by the development prohibition.
The court rejected the owner’s attempt to distinguish Murr. He pointed out that he purchased his property before the restrictive regulations were adopted, and not afterwards like the Murr children. See Murr, 137 S. Ct. at 1945 (“the “expectations . . . an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property”). My expectations were different, he argued, because the regulations landed on me, not the other way around. I had a property right, and the regulations took that right away from me. The court disagreed, concluding that the plaintiff was just like the Murr kids: “Quinn is in a similar position here. He cannot point to anything in the land records that would suggest he has a right to obtain sewer service; he bought the land knowing that development would depend on septic systems. Likewise, Maryland law does not create a property right in the access to a sewer system.” Slip op. at 8 .
The County’s failure to extend sewer lines to his property did not prohibit his use, “but merely refuses to enhance the value of real property.” Slip op. at 10.
Here’s the Question Presented by the cert petition:
Last term, in Murr v. Wisconsin, 137 S. Ct. 1933 (2017), eight members of this Court established a multifactor test in regulatory takings cases for determining whether legally distinct, but commonly owned contiguous parcels of property, must be combined for takings analysis purposes. Under Murr, to determine the proper unit of property against which to assess the effect of a challenged regulatory action, courts must consider three factors: (i) the treatment of the land under state and local law; (ii) the physical characteristics of the land; and (iii) the prospective value of the regulated land.
Here, the Fourth Circuit rejected Petitioners’ Takings Clause challenge to a local ordinance that forces the merger of separate parcels simply because they are commonly owned and contiguous to one another. Instead of defining the relevant parcel by applying the Murr multifactor test, the court considered only the parcels’ physical characteristics and ignored the treatment of the parcels under state and local law, the factor that “should [be] give[n] substantial weight.” As a result, the court incorrectly defined the parcels impacted by the ordinance as the parcels post-merger.
The question presented is:
Whether, under the multifactor test set forth in Murr, a merger ordinance’s impact should be assessed against separate parcels pre-merger when those parcels were purchased as individually platted, recorded, and taxed lots decades before the ordinance became effective.
According to the Court’s e-docket, the petition was docketed on January 3, 2018. Which means that those of you considering amicus participation better get on it.
Quinn v. Bd. of County Comm’rs, Queen Anne’s County, No. 17-945 (filed Dec. 29, 2017)