Here's an article ("Murr v. Wisconsin: The Supreme Court Rewrites Property Rules in Multiple-Parcel Regulatory Takings Cases"), which we authored along with a colleague, published in February 2018's Zoning and Planning Law Report, about the U.S. Supreme Court's decision in Murr v. Wisconsin, the case about the "larger parcel" in regulatory takings.
As you might predict, we concluded that the Murr majority's analysis was vague, unsatisfying, and generally not helpful. Strong letter to follow!
Here's a passage from the Introduction:
The U.S. Supreme Court’s 5-3 long-anticipated ruling in Murr v. Wisconsin, expected to resolve the “larger parcel” or “denominator” issue in regulatory takings cases, has instead created a test that neither property owners, lawyers, nor government officials can understand or rely on.The majority opinion, authored by Justice Anthony Kennedy, addressed a long-standing question in regulatory takings law: when a claimant who owns more than a single parcel alleges a regulation works a taking of one of them, how much of the claimant’s total holdings will the economic impact of the regulation measured against? The question in Murr arose as a choice between which regulatory takings rule would apply in the case, the categorical “deprivation of economically beneficial use” rule from Lucas, or the ad hoc Penn Central balancing test. This threshold question governed the outcome because the narrower the Murrs’ property interest was defined by the courts, the more likely it would be they would be able to prove the regulation was a taking. In other words, how would the “property” which was claimed to have been taken defined?
Thanks to ZPLR Editor Patricia Salkin and the editorial team at West Thompson Retuters, and to our coauthor Erica Levine Powers.
