Discussing Murr v. Wisconsin, Nature of Regulatory Taking

The Federalist Society at the University of Florida Levin College of Law hosted a discussion moderated by Levin’s own Dean Rosenbury on the case Murr v. Wisconsin on Wednesday.

One of the featured guest speakers was Mark Miller of the Pacific Legal Foundation, a non-profit that focuses on “standing up for the people who otherwise wouldn’t be able to defend themselves legally.”

Miller is a double-Gator, having received his bachelor’s and juris doctor degrees from the University of Florida.

“I graduated in the previous century,” Miller jested referring to his tenure at the University of Florida.

Miller has had a long and successful legal career, highlighted by the fact that he’s had the opportunity to represent a client in front of the U.S. Supreme Court.

Professor Danaya Wright served as the other featured guest speaker. Wright serves as the Clarence J. Teselle Endowed Professor at the Levin College of Law. Wright received her law degree from Cornell University of Law and a doctorate in political science from John Hopkins University.

Wright has written extensively, authoring various legal texts and chapters within others. One of her more than 30 published legal articles was cited in the Murr v. Wisconsin case decision by Justice Kennedy.

“It really was one of the coolest experiences,” Wright said. “I would have never thought that he had read my article, and then my students couldn’t wait to tell me I was in the decision.”

In Murr v. Wisconsin, a family had purchased two adjacent parcels of land and had initially placed the title of one in the name of their business and the other under their family name. In the 1980s, the family took the one parcel out of the business’ name and put it in their name instead. When they passed away, and the properties shifted to the children, the inheritors attempted to build on the second lot when the first lot already had a cabin on it.

“When they applied, they found out that the state had merged the two lots despite paying two different property taxes and having to get separate assessments over the years,” Miller said.

Dean Rosenbury talking about the difficulty of standards versus rules in law making.

Merging the lots, the family claimed, constituted a “taking” by the government.

The regulatory law change made it so that if you had only owned one substandard lot (less than one acre), you could still build on it, but if you owned two substandard lots, they were then merged to form a standard lot where you could only build a single building because you were said to need at least an acre to develop.

The only exception was having a single substandard lot grandfathered in before the regulation took effect.

“This case was granted certiorari after making way through the courts of Wisconsin,” Wright said. “Here, the U.S. Supreme Court created a new balancing test that effectively eliminated the Lucas test and basically held that the state could merge the lots.”

The court used the test as a multi-factor standard in determining that the new regulation did not constitute a taking. Environmental factors limited the area of the contiguous land.

“The family should not have been punished for success, and that’s what this decision does,” Miller said. “They were not allowed to enjoy the benefit derived from investing in a second lot.”

This echoed what Pacific Legal Foundation argued at the Supreme Court on behalf of the Murr family. Their defense pointed to acknowledging the human factors in play in merger law.

Miller mentioning the importance of considering the human side in the law.

“At the end of the day, they voluntarily did this to themselves,” Wright said. “Hundreds of county and state authorities throughout the nation use these zoning regulations. They faced an sacrosanct character to lot lines from state law.”

The new test was not universally popular. The court could have ruled either way without its addition. This was viewed as lacking consistency.

“The ideal test here would give notice to the family when the lots merge [. . .] because people shouldn’t think they need to hire a lawyer at every single turn,” Miller concluded.

About Rodney Dobler 3 Articles
Rodney is currently a 1L at the University of Florida Levin College of Law. Prior to attending law school, Rodney graduated Cum Laude from the University of Florida with a degree in Finance. Having spent the last year writing for a comedy newspaper, he is excited to transition to writing for The Brief. When he isn't drowning in legalese, you can find him playing sports, lifting weights, trying to find a coffeeshop, or reading something other than a legal textbook.