Part 1: The Factual and Procedural Background of Murr v. Wisconsin

Published by Jeffrey A. Mandell, Barbara Neider on

The case involves two adjacent riverfront lots along the St. Croix River in northwest Wisconsin. In 1968, the Upper St. Croix River was one of eight rivers granted federal protection under the Wild and Scenic Rivers Act. In 1972, another act of Congress extended protection to the Lower St. Croix River. Legislation and regulation on the state and local levels followed, so that by the mid-1970s, land use along the Lower St. Croix River (where the lots at issue in this case are situated) were subject to several overlapping sets of zoning requirements.

William and Margaret Murr, the parents of the petitioners in the current suit, bought two adjacent riverfront lots along the Lower St. Croix in the early 1960s. Both lots were bisected by a 130-foot-high bluff, with a lower portion along the river and a higher portion atop the bluff. On the eastern lot (called Lot F in the litigation), the Murrs built a cabin close to the water. They then transferred title to both the lot and the cabin to their family plumbing business. The western lot (Lot E), they kept vacant and in their own names.

In 1982, the Murrs transferred title to Lot F and the cabin from the family business back to themselves. This was the first time that the lots were under common ownership after the adoption of the zoning regulations at issue in the case. In 1994, the Murrs gifted Lot F (the one with the cabin) to their six children. In 1995, they did the same with Lot E. Two of the children subsequently relinquished their interests in the lots, so that the lots are now owned by four siblings (the petitioners in the current suit).

In 2004, the petitioners sought to flood-proof the cabin on Lot F. They filed a permit application with St. Croix County. The County responded with a detailed letter explaining that overlapping zoning regulations applied to the lots and restricted how the petitioners could use their land. While there were options for flood-proofing the cabin in its current location, they were somewhat limited and would require obtaining variances from some of the zoning regulations overseen by the County, the Town of Troy, and the Wisconsin Department of Natural Resources. There were also additional options, including building a larger home on top of the bluff, but the petitioners rejected that approach as impractical.

For more than a year, the petitioners engaged in discussions with County zoning staff, Town officials, and WDNR representatives. In March 2006, the petitioners filed a plan to move the cabin back from the water, closer to the bottom of the bluff, and to expand its footprint. They also filed applications to the County Board of Adjustment for the five variances and two special exception permits necessary to achieve their plan. The County zoning staff analyzed the applications in detail. They reviewed the materials the petitioners submitted, visited the property, held further discussions with the petitioners, studied the applicable zoning regulations, and invited feedback from the Town of Troy, the St. Croix County Land and Water Conservation Department, the WDNR, and the Federal Emergency Management Agency (which insures homes, including the petitioners’ cabin, within the floodplain of the Lower St. Croix River). At the end of that process, the County zoning staff made extensive findings and recommended that the Board of Adjustment deny the petitioners’ applications. After seeing the recommendation and before the Board had held a hearing, the petitioners withdrew their applications.

In June 2006, the petitioners tried again. This time they sought six variances and two special use permits. Of particular note was a new request for a variance that would allow them to develop or sell Lot E separate from Lot F. A variance from applicable zoning law was necessary for separate development or sale, because each lot individually was too small—after accounting for portions of the property within the floodplain or the slope preservation zone— for development under the regulations applicable to the Lower St. Croix Riverway Overlay District. Those regulations had not been in existence when the Murrs built the cabin on Lot F, but they began to apply in 1975. And they included a provision, fairly common in Wisconsin and elsewhere, that where two contiguous properties had the same owners and were substandard (that is, too small for development as zoned), the lots were treated as one property for zoning purposes. This 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.

Once again, the County zoning staff engaged in a thorough review of the petitioners’ applications. The Town of Troy recommended approving the petitioners’ requests for variances and special exceptions to renovate the cabin on Lot F, but sought further research on the request for a variance to develop or sell Lot E separately. The WDNR and the St. Croix County Land and Water Conservation District recommended denying all of the petitioners’ applications. FEMA took no position. The County zoning staff again made extensive findings and, on the basis of those findings, recommended that the Board of Adjustment deny the petitioners’ applications. The Board held a hearing on June 22, 2006. The petitioners participated in the hearing. The Board denied all of the petitioners’ applications on June 28, 2006.

One of the petitioners, Donna Murr, then filed a certiorari suit in the Circuit Court for St. Croix County. Her suit alleged that the Board of Adjustment had acted improperly in denying the petitioners’ applications for variances and special use permits. The Circuit Court affirmed the Board of Adjustment’s denial of the variance to treat Lots E and F separately, but held that the Board of Adjustment should have granted the variances and special exceptions to renovate the cabin on Lot F. Both sides appealed the Circuit Court’s ruling. The Wisconsin Court of Appeals concluded that the Circuit Court had exceeded the scope of proper certiorari review in deciding that the Board of Adjustment should have granted some of the variances and special exceptions. It restored the Board of Adjustment’s decision in full.

The judicial proceedings over the propriety of the Board of Adjustment decision lasted for several years, until the Wisconsin Supreme Court denied Donna Murr’s petition for review of the appellate ruling in May 2011. During those proceedings, the petitioners and the County zoning staff resumed discussions in search of a way that the petitioners could reach their goals of flood-proofing the cabin. Shortly after the certiorari suit ended, the petitioners promised the County zoning staff that they were going to submit a new plan for the cabin. They never followed through with that promise. Instead, the petitioners filed another law suit.

The petitioners’ second suit, which has now reached the U.S. Supreme Court, focused solely on the denial of the variance application to develop or sell Lot E separately from Lot F. The suit alleged that the County regulation on which the denial was based—the regulation treating contiguous, substandard lots under common ownership as one property—and a state regulation that informs the Lower St. Croix Riverway Overlay District deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” Therefore, they asserted, the regulations constitute an uncompensated taking of their private property, in violation of article I, section 13 of the Wisconsin Constitution and the Fifth Amendment to the U.S. Constitution.

In the Circuit Court for St. Croix County, the County and the State moved for summary judgment. They articulated four independent, alternative grounds on which the court could rule in their favor: (1) the petitioners’ claim was time-barred under the applicable Wisconsin statute of limitations; (2) the case was not ripe for adjudication because the petitioners had not exhausted their administrative remedies before starting litigation; (3) the petitioners had no cognizable property right in Lot E separate from Lot F because the ordinance considered them as one property; and (4) the petitioners could not demonstrate a regulatory taking because they had not been deprived of all or substantially all of the beneficial use and value of their property.

The Circuit Court granted summary judgment for the County and the State. The court found that the petitioners had not filed their suit within the six-year limit set by Wis. Stat. § 893.93(1)(a). It reasoned that there were several dates when the six-year clock could have begun ticking, and that the petitioners’ claim was untimely under all of them. According to the Circuit Court, the clock could have started when the ordinance at question was adopted in 1975, since that action put the Murrs (the petitioners’ parents) on notice that their lots would be considered one property for zoning purposes if the lots came under common ownership. Or the clock could have started when the lots came under the petitioners’ common ownership in 1995, since they should then have researched the zoning regulations that applied to their property. (Neither the Circuit Court nor the parties considered the fact that the two lots had come under the Murrs’ common ownership in 1982.) Or the clock could have started in late 2004 when the petitioners began consulting County zoning staff about their options for flood-proofing the cabin, because the County staff sent letters explaining the applicable regulations to the petitioners at that time. Or the clock could have started as late as April 2005, when the petitioners’ attorney sent Donna Murr an email specifically addressing the ordinance provision treating contiguous, substandard lots under common ownership as one property. In any of those scenarios, the Circuit Court explained, the petitioners’ suit, filed in March 2012, was untimely.

Then, despite having already determined that the petitioners’ suit could not go forward, the Circuit Court analyzed the merits of the petitioners’ constitutional claim. It did not acknowledge, much less address, the County and State’s arguments that the petitioners’ claim was unripe or that the petitioners did not have a separate legal property right in Lot E. It went straight to the constitutional issue and held that the petitioners had not suffered a regulatory taking because they retain “several options for the use and enjoyment of their property despite the denial of the variance” to develop or sell Lot E separately.

The petitioners appealed this decision to the Wisconsin Court of Appeals. That court recognized the procedural oddness of the Circuit Court having “reached the merits,” “[d]espite th[e] conclusion” that “the [petitioners’] claim was time barred.” Murr v. State, 2015 WI App 13, ¶10,  359 Wis.2d 675, 859 N.W.2d 628 (Table) (unpublished) (per curiam). Nevertheless, the appellate court proceeded with its own analysis of the merits of the constitutional claim and did “not reach the issue of whether [the petitioners’] claim was timely filed.” Id., ¶12. The appellate court, like the Circuit Court, held that there was no regulatory taking in this case. Id., ¶31. The Wisconsin Supreme Court denied the petition for review. Murr v. State, 2015 WI 47, 366 Wis.2d 59, 862 N.W.2d 899 (Table).

At that point, the petitioners, represented by new counsel, filed a petition for a writ of certiorari in the U.S. Supreme Court. The State of Wisconsin waived its right to oppose the petition. St. Croix County filed a brief opposing the petition. The Court granted certiorari in January 2016. Murr v. Wisconsin, 136 S. Ct. 890 (2016). In April, the petitioners filed their opening merits brief, followed by eleven amicus briefs supporting them. In June, the State of Wisconsin and St. Croix County each filed merits briefs, followed by several amicus briefs, including ours. The petitioners’ reply brief is due in July. 

To read about our amicus brief arguing that the Court should not decide on the merits of this case, click here

Filed Under: SCOTUS, takings, appeals, Wisconsin Court of Appeals, Constitutional Law

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