Properties Magazine April 2017 : Page 25

agreed to take up the question. Murr v. Wisconsin stems from a Wisconsin appel-late court decision regarding regulatory takings of contiguous parcels under the same ownership. The Murrs were a group of siblings who received two contiguous parcels from their parents that abutted the St. Croix River in Wisconsin. The parents bought one parcel and built a cabin near the river to be used as an income property. That parcel was held by the family’s business. Later, the parents bought the adjacent lot, which remained vacant. The parents transferred one parcel to the Murrs in 1994, and the other parcel in 1995. Because the transfer in 1995 brought the two contiguous parcels under common ownership (but were still sepa-rate legal parcels), the property became subject to a St. Croix County Zoning Code Section that required all lots be a minimum of one acre in order to be sold or developed. If abutting, commonly owned lots do not each contain the mini-mum one acre; they together suffice as a single, buildable lot. The combined acre-age of the Murrs’ contiguous parcels was 0.98 acres, thus the common ownership in 1995 resulted in a merger of the lots under the local regulation – despite being separate legal parcels. The Murrs initially filed for a vari-ance to allow them to separately sell or develop the vacant parcel. Their vari-ance request was denied administratively and affirmed by the trial court, as well as the court of appeals. The Supreme Court of Wisconsin denied a petition for review. The Murrs then filed a com-plaint for the regulatory taking of the vacant lot arguing the economic viabil-ity of the vacant lot was destroyed by the regulation. The government argued that both lots together had economic viabil-ity (there was a cabin on the contiguous lot). Both the trial court and appellate court ruled in favor of the government. The appellate court found that the Murrs’ claim for a regulatory taking failed because they were not deprived of all, or substantially all, of the beneficial use of their property. The court was not persuaded by the Murrs’ conten-tions that, after the merger caused by the local regulation, the vacant parcel “serve[d] no purpose or use” and had no value because “it cannot be sold.” It also determined that it should focus “both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole.” The court reasoned that this analysis allows municipalities to place reasonable limits on property uses without having to compensate owners that the Murrs had not been denied all, or substantially all of the practical uses of the property. Time to test the equation Now, the Supreme Court will determine if the Murrs are entitled to redress. Zoning and eminent domain attorneys and courts are waiting with anticipation to see the ruling from the United States Supreme Court. Many believe that the court will employ a ruling that requires individual analysis, or a “facts and circumstances test,” for each instance instead of a bright line rule. Regardless, the deci-sion in this case will undoubtedly further define the limits of “just com-pensation” and impact how property owners are able to challenge zoning and eminent domain actions. Check out for an update once a ruling is announced! P How to define real estate when determining the constitutional requirement of just compensation is a recurring issue that has plagued state and federal courts deciding zoning and eminent domain cases. for every “incidental infringement” of property rights. Because the Wisconsin appellate court viewed both parcels of the property as a whole, and the whole could be used for residential use (albeit only on one of the parcels), it found The material appearing in this article is meant to provide general information only and not as a substitute for legal advice. This article may not be reprinted without the express permission of Buckingham, Doolittle & Burroughs, LLC © 2017. Real Estate & Construction attorney Tara J. Rose can be reached at 216.615.7318 or Real Estate & Construction and Oil & Gas attorney Anthony R. Vacanti can be reached at 216.453.4286 or 25

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