Supreme Court found no taking occurred when county merged nonconforming, adjacent lots under common ownership
It has been a number of years since states and local governments have won a property rights case. But in Murr v. Wisconsin, the U.S. Supreme Court concluded 5–3 that no taking occurred when state law and local ordinance “merged” nonconforming, adjacent lots under common ownership, meaning the property owners could not sell one of the lots by itself.
The appellants, the Murrs, owned contiguous lots E and F, which together measure .98 acres. Lot F contained a cabin and lot E was undeveloped. State law and a St. Croix County, Wis. merger ordinance prohibit the individual development or sale of adjacent lots under common ownership that are less than one acre total. A grandfather clause allows for the sale and development of separately owned substandard lots purchased before the statute and ordinance went into effect.
The Murrs sought and were denied a variance to sell Lot E to finance moving the cabin on Lot F. They claimed the ordinance resulted in an unconstitutional uncompensated taking.
The Takings Clause of the Fifth Amendment prohibits the government from “taking” private property for public use without “just compensation.”
Associate Justice Anthony Kennedy, writing for the majority, said the question in this case was whether the lots should be viewed as a single parcel when concluding whether a taking took place. The court applied a three-factor test which led it to conclude that the lots should be viewed as one parcel.
First, state law and local ordinance treat the property as one for a “specific and legitimate purpose.” Citing the SLLC’s brief, the court noted: “The merger provision here is . . . a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago.” Again, citing the SLLC’s brief, the court further noted that focusing only on lot lines would “frustrate municipalities’ ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today.”
Second, the physical characteristics of the property in this case indicate the parcels should be combined for purposes of takings analysis. The lots were contiguous along their longest edge, are covered with rough terrain which limits use, and are located on a highly regulated river.
Third, the “special relationship of the lots is further shown by their combined valuation.” Lot E appraised at $40,000; lot F at $373,000; but the combined lots appraise at $689,300.
Looking at the parcels as a whole the court concluded no compensable taking occurred in this case. The Murrs could still build a bigger house on the combined lots, and they cannot claim they “reasonably expected to sell or develop their lots separately given the regulations which predated their acquisition of both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.”
Stuart Banner of the UCLA School of Law Supreme Court Clinic wrote the SLLC amicus brief, which was joined by the Council of State Governments, National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association and the International Municipal Lawyers Association.
NACo is a founder, funder and board member of the State and Local Legal Center headquartered in Washington, D.C. The center extends NACo’s advocacy on behalf of counties to the highest court in the land.