Government’s “Regulatory Taking” of Private Land
The United States Supreme Court will be hearing a very interesting case this week. The case of Murrs vs Wisconsin, dealing with the government “taking” their land.
This case involves a Wisconsin family, the Murr’s, who are arguing that the government has unconstitutionally “taken” their land by refusing to allow them to sell part of it.
The “taking” they point to is not what most people would understand “taking” to be, and that is what makes this case interesting. The government has not actually seized any of the Murr’s land, but the family and their lawyers believe the government has “taken” their land via a “regulatory taking”, without just compensation. This “regulatory taking” they say is when a law or regulation has effectually stripped them of their property.
According to a report in the Milwaukee Wisconsin Journal Sentinel this case started approximately 11 years ago when the family wanted to sell half of their 2 ½ acre lot on the St. Croix river to finance improvements to a cabin on the other 1 ½ acre lot. The government denied them the ability to sell that 1 ½ acre lot.
Their county and state stated that the family was unable to sell the property due to a 1976 regulation that require any lot have an acre of developable area. As I stated above the Murrs' lots are 1.25 acres each, but the vacant lot's net buildable area is only ½ acre. This determination of a ½ acre of buildable are is due to deductions for slope preservation, floodplain, right of way and wetlands.
The Murrs and their lawyers point to an exception in the 1976 law which grandfathered prior owners allowing people to build on just 0.5 acre of usable land unless they owned abutting property, as the Murrs do. In those cases the lots would have to be merged into a larger parcel for sale or development purposes.
Their lawyer John Groen, from the Pacific Legal Foundation, a California nonprofit that advocates for property rights was quoted in the article saying:
This litigation asks whether government can get away with telling property owners, in essence, the more land you own, the less we'll allow you to use
In the article The Pacific Legal Foundation says:
the determination of which lot is affected — the individual lot or the combined plot — is critical to deciding takings claims under the Fifth Amendment, and that the "parcel as a whole" concept has been inadequately developed, leading to inconsistent U.S. Supreme Court rulings and state court interpretations
I believe this is an important case because part of what makes America a great country, and soon to be greater, is our property rights law. Without the courts backing up property rights and just compensation if “taken” or effectively “taken” by the government then we are opening ourselves up to the government slowly making regulations and laws that would effectively “take” via “regulatory taking” more and more private land. This “taking” would render many people’s property rights and land financially useless.
I also believe that the county has a hook to hang their hat on when they made this ruling. If the family would have deeded their property into two 1 ½ acre lots they might have had a stronger case.
This ruling could affect many people in Michigan because we have a tremendous amount of lakes and wetlands in the state which could be effectively taken via “regulatory takings”.
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