In a confusing decision that’s so unworkable that it will surely fail the test of time, the Supreme Court ruled on Friday against the Murr family’s quest to receive some recompense for the acre of waterfront land that the County of St. Croix decided to regulate out of existence. Property rights jurisprudence was confused before, now it’s confused and unworkable. Not only did the family lose, but the Court’s logic is lost in a muddle of balancing tests that can mean only that when government regulates most of a parcel’s value out of existence, the lawyers will take the rest.
In Murr v. Wisconsin, the Murr family owned two separately deeded acre-plus lots that were purchased separately by their parents in the 1960s. They built a small cabin on one lot and held the other one as an investment for the future. But when the time came to sell, they couldn’t. The County had decided that an acre lot was too small to build upon. Now, if that’s all the family owned, the town had an exception: an owner of one “small” lot could build on it. But since the family owned the separately deeded and taxed lot next door, the exception didn’t apply. Their investment lot couldn’t be sold and couldn’t be developed.
The family sued, claiming that the regulation took away all the use and value of the lot, and they should either be allowed to use it, sell it, or get paid for it. In short, they said they were the victim of a regulatory taking. But the Wisconsin courts said, “no way.” Because the family still owned the other lot, the one with the cabin, they hadn’t lost everything. In other words, the more one owns, the more government can steal. The Murrs appealed to the Supreme Court, and the family argued that in deciding on whether property has been taken, courts should look only at the lot made worthless by the restrictions, and not at other nearby property in the hands of the same family. Put simply, property owners shouldn’t be penalized for having “too much” property.
In Friday’s opinion by Justice Kennedy, the Court told the family that they should have seen it coming. They bought property in a nice area and should have known that the property was “or likely to become subject to environmental or other regulations.” So what? Does one check property rights at the door whenever the government might want to interfere? And the more NIMBYs desire to keep open space open, the fewer rights for the owner? And it gets only worse. As Justice Kennedy is wont to do, he infused the opinion with a series of vague factors that must be considered when deciding what the government has taken. These include the “surrounding human and ecological environment,” “the effect of the burdened land on other parcels,” and whether there is a “reasonable restriction that predates a landowner’s acquisition.” In reality, none of this has anything to do with the simple question of what did the Murrs own and how much of it was taken away.
And what can “the surrounding human and ecological environment” mean, other than a means of providing cannon fodder for an army of lawyers who can now argue into the night whether the surrounding human and ecological environment somehow trumps the rights of families like the Murrs?
As Chief Justice Roberts pointed out in dissent, all these factors simply aren’t relevant to the question of what the property is. Indeed, the tests put forth by Justice Kennedy will prove to be totally unworkable. The cart has been put before the horse and the horse will be pushing the takings doctrine around in circles forever—or until the Court comes to its senses.
The Supreme Court has failed its duty to uphold the rights guaranteed to citizens by the Constitution. The Fifth Amendment’s guarantee that “private property shall not be taken for public use without just compensation” should not be a mere abstraction to be discussed in the faculty lounges along with the dinosaurs, dead languages, and other relics of our past. In the wake of its infamous Kelo decision which authorized the razing of a middle-class neighborhood to make life beautiful for a Pfizer pharmaceutical campus, state courts and legislatures rose up and instituted their own reforms to the corrupt system. It may be time to do that again—this time for protect families like the Murrs from avaricious local regulators.
James Burling and John Groen are Attorneys with Pacific Legal Foundation, which argued the case for the Murr family.