Here's the property owners' Merits Brief, filed earlier this week in the case in which the U.S. Supreme Court is considering the "parcel as a whole" doctrine in regulatory takings (also known as the "denominator" issue).
The Wisconsin Court of Appeals held that the owners did not have their property taken because they also own the parcel next door. When measured against their use of the two parcels combined, the court concluded their loss of use of the single parcel -- otherwise a Lucas "wipeout" -- was not a taking.
The brief argues:
Under the facts of this case, there is no reason to deviate from Penn Central. Although the Murrs own two parcels that happen to be adjacent, those parcels were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed. Absent the effect of the challenged ordinance, the Murrs’ rights in Lot E are separate and distinct from Lot F. Their alleged taking should focus on the fee interest of the single parcel, just as this Court held in Penn Central.
Br. at 12.
This is somewhat the flip side of the "larger parcel" issue in just compensation, where the analysis focuses on whether the property owner uses the two parcels as a single unit, not on a formulaic one size fits all rule like Wisconsin has adopted. Analysis starts with fee title, and in the Murr case ends there because the Murrs themselves did not treat the two parcels as one. See Br. at 30 ("Similarly, the Murrs never treated their two parcels as a single economic unit. Rather, the parcels were acquired at different times for very different purposes.").
There is going to be a lot more on this case, one of the two big property rights cases which the Supreme Court is currently considering. Especially because the Court must revisit Penn Central.
More on the case here from Pacific Legal Foundation, which represents the owners.
When we have more, we'll post.
Petitioners' Brief on the Merits, Murr v. Wisconsin, No. 15-214 (Apr. 11, 2016)
