WI App. Court Dismisses Takings Claim Viewing Commonly Owned Parcels as a Whole Rather than Individual Lots

Joseph Murr, Michael Murr, Donna Murr and Peggy Heaver (collectively, the Murrs) appealed a judgment dismissing their regulatory takings claim upon motions for summary judgment by the State of Wisconsin and St. Croix County. An Ordinance was passed which prohibited the individual development or sale of adjacent, substandard lots under common ownership, unless an individual lot has at least one acre of net project area. Since one of the two adjoining lots the Murrs’ owned was less than one acre, they asserted that it (Lot E) could not be put to alternative uses like agriculture or commerce due to its size, location and steep terrain. Further, they alleged the lot was usable only for a single-family residence, and without the ability to sell or develop it the lot was rendered useless and thus the Ordinance resulted in an uncompensated taking of their property.

Despite this contention, the court noted that property under common ownership is considered as a whole regardless of the number of parcels contained therein. Therefore the Ordinance allows the Murrs to build a year-round residence on top of the bluff, if they choose to raze their cabin located near the river; this use may include Lot E, as the new residence could be located entirely on Lot E, entirely on Lot F, or it could straddle both lots. Moreover, because the provisions were already effective prior to subsequent owners’ acquisition of their lots, there was no concern that the provisions would deprive those persons of their property: any effect on property values has already been realized. Accordingly, the Murrs “never possessed an unfettered ‘right’ “to treat the lots separately. The court therefore upheld the dismissal of the Murrs’ taking claim.

Murr v State of Wisconsin, 2014 WL 7271581 (WI App. 12/23/2014)

The opinion can be accessed at: http://law.justia.com/cases/wisconsin/court-of-appeals/2014/2013ap002828.html