Johnson Quoted on SCOTUS Eminent Domain Ruling

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Johnson Quoted on SCOTUS Eminent Domain Ruling

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Law360

Partner Janet Johnson was quoted on the U.S. Supreme Court decision in Murr v. Wisconsin affirming that a family’s two adjacent lots at the center of a regulatory takings dispute must be treated as one parcel for purposes of determining whether a regulatory taking of the family’s property had occurred.

The ruling centered on a 1975 law enacted after the two separately subdivided and legally buildable lots had been purchased (at different times), but before the children of the original owners took title.

“The type of ordinance adopted by St. Croix County, that required the two now 'substandard' lots to be treated as one parcel once they became owned by the same individuals is a 'gotcha' kind of regulation that only the most sophisticated property owners would ever think to check before acquiring two adjacent now substandard lots without a plan to redevelop them as a single parcel.”

She added that the court’s decision did not offer much clarity for the industry going forward because it declined to adopt a bright line test as to what constituted the property for purposes of a regulatory takings analysis. Instead, a majority of the court, in a 5-3 decision, opted to allow the courts to determine on a case-by-case basis what constitutes the property.

The court should have provided the guidance everyone involved in the case sought by establishing a presumption that the legally subdivided boundaries of the parcel of land in question constitute the 'property' but that this presumption can be overcome if it can be established that the property has been utilized with other parcels as a unified whole.

In his dissent, Chief Justice Roberts would have relied on the boundaries of the land for state law purposes, which “should, in all but the most exceptional circumstances, determine the parcel at issue.” In his view, “the majority’s approach undermines that protection [against “loading upon one individual more than his just share of the burdens of government”], defining the property only after engaging in an ad hoc, case-specific consideration of individual and community interests. The result is that the government’s goals shape the playing field before the contest over whether the challenged regulation goes ‘too far’ even gets underway.” According to Chief Justice Roberts, the majority’s approach “is just another opportunity to gerrymander the definition of ‘private property’ to defeat a takings claim.”

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