On June 23, 2017, the Supreme Court upheld Wisconsin and St. Croix County land use regulations written to protect a Wild and Scenic River. Professor Richard Lazarus argued the case on behalf of the regulators before the Supreme Court in March.
Justice Kennedy wrote the majority opinion, finding that the state and local regulations preventing separate development on small adjacent lots under common ownership along the St. Croix River did not constitute a regulatory taking of property. Four justices joined Kennedy. Professor Lazarus noted that the case is “a very nice win for responsible government environmental land use regulation.”
At issue was the definition of “the proper unit of property against which to assess the effect of the” regulation. The Court held that courts should define the property to be subjected to a takings analysis by considering the treatment of the property under state and local law; the physical characteristics of the property; and the value of the property under the challenged regulations in context with other holdings.
Here, the Murr siblings wanted the Court to consider the loss of value for Lot E, as a result of the regulation prohibiting its development, in isolation from adjacent Lot F where the family had a cabin. State and local law considered the parcels merged as soon as they fell into common ownership, in 1995. Moreover, the record indicated that together, Lots E and F (with E persisting as an undeveloped parcel) were worth more than their parts, because of the increased privacy and open space available to the cabin’s occupants if Lot E were not developed. The environmental regulation therefore increased the property’s value, offsetting most of any potential loss from barring development on Lot E.
Justice Gorsuch did not participate in the proceedings. Justice Thomas wrote a separate dissent suggesting that the text of the Fifth Amendment may not support the concept of a regulatory taking (although the Fourteenth Amendment might).