SCOTUS Amici Brief: In Regulatory Takings, No Aggregation Of Separate, Commonly-Owned Parcels
The amicus briefs supporting the property owners/petitioners in Murr v. Wisconsin, No. 15-214, the "parcel as a whole" case now being considered by the Supreme Court, are rolling in.
Here's the first one, the amici brief for the Cato Institute and the Owners' Counsel of America. [Disclosure: we represent OCA on this filing.]
Regulatory takings are about the impact of a regulation on an owner's use of property and how it has a similar economic impact on that property as an exercise of the government's eminent domain power. Thus, most regulatory takings claims will hinge in large part on "the extent of the interference with rights in the parcel as a whole." Penn Central Trans. Co. v. New York City, 438 U.S. 104, 130-31 (1978). This is also known as the denominator issue, because the size of the property often dictates the severity of the regulation's impact. The smaller the piece of property, the more severe an impact the regulation will likely have.
The question in Murr is whether the extent of the owners' loss of use can be measured by aggregating other land owned by them, even though both properties are distinct and separate legal parcels. As our brief put it: "[t]he issue presented in this case is whether courts can combine adjacent parcels to create a new 'parcel as a whole' simply because the two parcels have the same owner." Br. at 4.
The brief argues that the Court "should adopt a bright-line rule against aggregating separate parcels under common ownership."
The Court should adopt a bright-line rule that preexisting, state-drawn property lines define the “parcel as a whole.” And the Court should not permit efforts by governments to combine adjacent properties simply because they share an owner. A bright-line rule would add some clarity to the Penn Central analysis because it would be simple to apply in practice. For the most part, “state law defines property interests.” Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 707 (2010). The most basic of those interests is the metes and bounds of the property. See id. at 707-09 (explaining how state law defined the boundaries of privately owned land); see also Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (“Property interests … are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”). Courts can easily rely on those same boundaries when defining the relevant “parcel as a whole.”
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