The amicus brief we filed on behalf of WCA, WTA and the League did not delve into the merits of the takings issue that the parties are disputing. Rather, it sought to complement the parties’ arguments and assist the Court in two ways:

  • First, based on our clients’ expertise as representatives of Wisconsin local governments, we sought to contextualize the zoning ordinance at issue by showing that its approach to contiguous, substandard lots under common ownership is widespread in Wisconsin. (Other amici sought to provide additional context by discussing the historical evolution of similar provisions and their prevalence in other states.)
  • Second, we argued that, because of the procedural history of the case in the Wisconsin state courts, the case should not be the occasion for a new constitutional decision about takings.
  • Finally, we identified three possible procedural avenues by which the Court could dispose of the case without reaching an unnecessary constitutional decision.

The brief advances the interests of the WCA, the WTA, and the League by sharing additional information about how local governments in Wisconsin approach zoning decisions and urging the Supreme Court not to reach an unnecessary constitutional decision that would intrude on the balance that Wisconsin has maintained since statehood between individual property rights and respect for decision-making about land use at the local level.

Providing additional information about Wisconsin land use law

As explained in an earlier part of our blog discussion about the Murr case, the petitioners’ suit challenges a provision in the St. Croix County zoning regulations applicable to the Lower St. Croix Riverway Overlay District. Under that provision, where two contiguous properties have the same owners and are substandard (that is, too small for development as zoned), the lots are treated as one property for zoning purposes. In this case, the provision meant both that the petitioners’ plans were analyzed in the context of the two lots being one property and that the petitioners could not raise funds for their renovation of the cabin on Lot F by selling Lot E to someone else as developable riverfront property.

Our brief emphasized that such an approach is not unique either to St. Croix County or to the Lower St. Croix Riverway. Indeed, as detailed in an appendix to our brief, fifty of Wisconsin’s seventy-two counties—nearly seventy percent—have enacted zoning ordinances that effectively combine commonly-owned, contiguous, substandard lots into a single lot. Specifically, thirty-three counties—more than forty-six percent—implicitly combine commonly owned, contiguous, substandard lots through zoning ordinances. An additional seventeen counties—nearly twenty-four percent—explicitly consider commonly owned, contiguous, substandard lots as a single lot. We provide examples of ordinances that accomplish this goal implicitly and explicitly, as well as a table citing the analogous ordinances in each of the fifty Wisconsin counties that have such ordinances. We also provide a list of the twenty-two counties that do not have a similar ordinance.

Arguing against constitutional adjudication at this juncture

As explained in the earlier discussion of the procedural history, St. Croix County and the State sought summary judgment in their favor in the circuit court. When they did so, they articulated four independent, alternative grounds on which the court could rule in their favor. The circuit court agreed with the first of these arguments, that the suit was not filed within the time limits set forth in Wis. Stat. §893.93(1)(a), the applicable statute of limitations. Then, despite having already determined that the petitioners’ suit could not go forward, the circuit court proceeded to address the merits of the petitioners’ constitutional claim, which it found lacking.

When the petitioners appealed, the Wisconsin Court of Appeals noted the procedural oddity of the circuit court deciding the merits after having ruled that the case could not proceed because it was untimely. Murr v. State, 2015 WI App. 13, ¶10. Yet the appellate court then proceeded to affirm on the basis of its own constitutional analysis, opting “not [to] reach the issue of whether [the petitioners’] claim was timely filed” but to “assume, without deciding, that it was.” Id., ¶12. The Wisconsin Supreme Court declined to hear the petitioners’ appeal, so the state courts’ analysis ended at that point.

At the petitioners’ request, the U.S. Supreme Court agreed to hear the case to consider the question of how the ‘parcel as whole’ concept described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), applies to a takings analysis involving two commonly-owned, contiguous parcels of property. As our discussion of the merits illustrates, this is a fascinating question that has the potential to significantly alter constitutional jurisprudence on the meaning and application of the takings clause. But our amicus brief argues that there is no reason to answer that question at this point and that the Supreme Court should decline to do so.

Constitutional adjudication is unnecessary—and even inappropriate—at this stage because the case can be resolved without looking to the text of the Constitution. Under the long-established and well-settled rule of constitutional avoidance, courts resolve constitutional questions, only “[i]f they become indispensably necessary to the case.” Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (Marshall, C.J., riding circuit). As a result, Chief Justice Roberts has explained in a unanimous opinion, courts “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Bond v. United States, 134 S. Ct. 2077, 2087(2014) (internal quotation marks omitted; citing Ashwander v. Tenn. Valley Auth., 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)). This rule applies as long as there is a non-constitutional basis for resolving a dispute, even where a lower court has already weighed in on the constitutional question. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 485 U.S. 660, 669-74 (1988)(remanding for resolution of a threshold state-law question that could obviate the constitutional question decided by the Oregon Supreme Court and appealed to the U.S. Supreme Court).

In Murr, the Wisconsin Court of Appeals expressly chose not to consider whether the petitioners’ case was timely filed. By doing so, the court waded into the waters of constitutional adjudication unnecessarily. The takings question never arises if the petitioners’ suit is barred by the statute of limitations, as the circuit court in fact held. And no court has considered the limitations issue and concluded that the circuit court got it wrong. Given that, there is no necessity for the U.S. Supreme Court to address the constitutional issue. This is a case that can be—and, indeed, has been—adjudicated solely on the grounds of state statutory law. In such a case, the rule of constitutional avoidance militates against constitutional adjudication.

Moreover, no court—not the circuit court, the Wisconsin Court of Appeals, nor the Wisconsin Supreme Court—even considered the argument that the petitioners’ suit is unripe because they failed to exhaust all of their options before the St. Croix County Board of Adjustment prior to filing suit. Yet, “a final and authoritative determination of the type and intensity of development legally permitted on the subject property” is “an essential prerequisite” to a regulatory takings action. MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348 (1986). This is necessarily true because “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Id. “[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The St. Croix County Board of Adjustment’s denial of a variance application submitted once in conjunction with one specific building plan for the petitioners’ property does not constitute “a final decision” for purposes of the ripeness analysis. See, e.g., Yolo Cty., 477 U.S. at 348-52.

The record in Murr that the petitioners’ claim is unripe is incontrovertible. The petitioners’ own conduct and words make this clear. During the eighteen months between the petitioners’ first approach to the County zoning staff about flood-proofing their cabin and the denial of their application for a variance to use Lots E and F separately, County officials repeatedly identified and suggested alternative development plans to the petitioners. The petitioners never pursued those alternatives. Moreover, even several years after the Board of Adjustment decision at issue and shortly before filing this lawsuit, the petitioners indicated to County officials that they would be submitting a new development plan for regulatory consideration. They never did. In deposition testimony, one of the petitioners explained that they “still want to pursue these [other development options outlined by the County] at some point in time. It’s just that we are in the process of the [sic] doing the taking.” But as long as those other develepment options remain on the table and have not been pursued, a takings claim remains unripe for adjudication.

Suggesting several alternate avenues to dispose of this case

Given the procedural peculiarities that militate against constitutional adjudication in Murr at this point, our amicus brief suggests three possible ways the Supreme Court could dispose of the case.

First, the Court could dismiss its writ of certiorari as improvidently granted. Doing so would end the case. It would leave the Wisconsin Court of Appeals decision below as the final word. But, because that decision was an unpublished decision signed not by any individual judge but issued per curiam (by the court as a whole), Wisconsin law prohibits its citation as a binding precedent or even as a persuasive authority. Wis. Stat. §809.23(3). Thus, dismissal would not perpetuate the Court of Appeals’ constitutional analysis. It would simply end the dispute between the parties to this case and leave the constitutional question identified by the petitioners for resolution in another case.

Second, the Court could vacate the Court of Appeals decision and remand the case to the Wisconsin courts for a decision on whether the petitioners’ case was timely filed and/or whether their claim is ripe for adjudication. When relying on the rule of constitutional avoidance, this Court often vacates and remands for further proceedings consistent—or at least “not inconsistent”—with its opinion. If the Wisconsin Court of Appeals (and, potentially, the Wisconsin Supreme Court after it) were to follow the circuit court’s decision in concluding that petitioners’ suit was time-barred, that would render constitutional adjudication unnecessary. Of course, if the Wisconsin courts ultimately decided that neither the statute of limitations nor the ripeness doctrine resolved the case and again issued a constitutional ruling, the case could come back to the U.S. Supreme Court. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) (deciding the constitutional question avoided in earlier round of litigation after the Oregon Supreme Court held that resolution of threshold state-law question did not obviate the Free Exercise issue).

Third, the Court could certify a question of law to the Wisconsin Supreme Court. Wis. Stat. §821.01. That certification could focus on when the limitations clock in this case began to run, on the ripeness of the petitioners’ claim under the administrative processes available to the petitioners, or on both. Were the Wisconsin Supreme Court to hold Petitioners’ suit time-barred or unripe, no constitutional adjudication would be needed. On the other hand, if resolution of the certified question(s) did not end the case, this Court could proceed to decide the constitutional issue.

Any of these approaches would have the virtue of respecting prudential doctrines that counsel against deciding constitutional questions unnecessarily. They would also acknowledge and advance the careful balance Wisconsin has struck between individual property rights, on the one hand, and state and local decision-making, on the other.

To read about the positions taken by the parties on the merits of the case, click here.

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