Murr v. Wisconsin , 137 S. Ct. 1933 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MURR ET AL. v. WISCONSIN ET AL.
CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN
No. 15–214. Argued March 20, 2017—Decided June 23, 2017
The St. Croix River, which forms part of the boundary between Wiscon-
sin and Minnesota, is protected under federal, state, and local law.
Petitioners own two adjacent lots—Lot E and Lot F—along the lower
portion of the river in the town of Troy, Wisconsin. For the area
where petitioners’ property is located, state and local regulations
prevent the use or sale of adjacent lots under common ownership as
separate building sites unless they have at least one acre of land
suitable for development. A grandfather clause relaxes this re-
striction for substandard lots which were in separate ownership from
adjacent lands on January 1, 1976, the regulation’s effective date.
Petitioners’ parents purchased Lots E and F separately in the
1960’s, and maintained them under separate ownership until trans-
ferring Lot F to petitioners in 1994 and Lot E to petitioners in 1995.
Both lots are over one acre in size, but because of their topography
they each have less than one acre suitable for development. The uni-
fication of the lots under common ownership therefore implicated the
rules barring their separate sale or development. Petitioners became
interested in selling Lot E as part of an improvement plan for the
lots, and sought variances from the St. Croix County Board of Ad-
justment. The Board denied the request, and the state courts af-
firmed in relevant part. In particular, the State Court of Appeals
found that the local ordinance effectively merged the lots, so petition-
ers could only sell or build on the single combined lot.
Petitioners filed suit, alleging that the regulations worked a regu-
latory taking that deprived them of all, or practically all, of the use of
Lot E. The County Circuit Court granted summary judgment to the
State, explaining that petitioners had other options to enjoy and use
their property, including eliminating the cabin and building a new
residence on either lot or across both. The court also found that peti-
2 MURR v. WISCONSIN
Syllabus
tioners had not been deprived of all economic value of their property,
because the decrease in market value of the unified lots was less than
10 percent. The State Court of Appeals affirmed, holding that the
takings analysis properly focused on Lots E and F together and that,
using that framework, the merger regulations did not effect a taking.
Held: The State Court of Appeals was correct to analyze petitioners’
property as a single unit in assessing the effect of the challenged gov-
ernmental action. Pp. 6–20.
(a) The Court’s Takings Clause jurisprudence informs the analysis
of this issue. Pp. 6–11.
(1) Regulatory takings jurisprudence recognizes that if a “regula-
tion goes too far it will be recognized as a taking.” Pennsylvania Coal
Co. v. Mahon, 260 U.S. 393, 415. This area of the law is character-
ized by “ad hoc, factual inquiries, designed to allow careful examina-
tion and weighing of all the relevant circumstances.” Tahoe-Sierra
Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535
U.S. 302, 322 (citation and internal quotation marks omitted).
The Court has, however, identified two guidelines relevant for de-
termining when a government regulation constitutes a taking. First,
“with certain qualifications . . . a regulation which ‘denies all econom-
ically beneficial or productive use of land’ will require compensation
under the Takings Clause.” Palazzolo v. Rhode Island, 533 U.S. 606,
617 (quoting Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1015). Second, a taking may be found based on “a complex of
factors,” including (1) the economic impact of the regulation on the
claimant; (2) the extent to which the regulation has interfered with
distinct investment-backed expectations; and (3) the character of the
governmental action. Palazzolo, supra, at 617 (citing Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 124). Yet even the com-
plete deprivation of use under Lucas will not require compensation if
the challenged limitations “inhere . . . in the restrictions that back-
ground principles of the State’s law of property and nuisance already
placed upon land ownership.” Lucas, 505 U.S., at 1029.
A central dynamic of the Court’s regulatory takings jurisprudence
thus is its flexibility. This is a means to reconcile two competing ob-
jectives central to regulatory takings doctrine: the individual’s right
to retain the interests and exercise the freedoms at the core of private
property ownership, cf. id., at 1027, and the government’s power to
“adjus[t] rights for the public good,” Andrus v. Allard, 444 U.S. 51,
65. Pp. 6–9.
(2) This case presents a critical question in determining whether
a regulatory taking has occurred: What is the proper unit of property
against which to assess the effect of the challenged governmental ac-
tion? The Court has not set forth specific guidance on how to identify
Cite as: 582 U. S. ____ (2017) 3
Syllabus
the relevant parcel. However, it has declined to artificially limit the
parcel to the portion of property targeted by the challenged regula-
tion, and has cautioned against viewing property rights under the
Takings Clause as coextensive with those under state law. Pp. 9–11.
(b) Courts must consider a number of factors in determining the
proper denominator of the takings inquiry. Pp. 11–17.
(1) The inquiry is objective and should determine whether rea-
sonable expectations about property ownership would lead a land-
owner to anticipate that his holdings would be treated as one parcel
or as separate tracts. First, courts should give substantial weight to
the property’s treatment, in particular how it is bounded or divided,
under state and local law. Second, courts must look to the property’s
physical characteristics, including the physical relationship of any
distinguishable tracts, topography, and the surrounding human and
ecological environment. Third, courts should assess the property’s
value under the challenged regulation, with special attention to the
effect of burdened land on the value of other holdings. Pp. 11–14.
(2) The formalistic rules for which the State of Wisconsin and
petitioners advocate do not capture the central legal and factual prin-
ciples informing reasonable expectations about property interests.
Wisconsin would tie the definition of the parcel to state law, but it is
also necessary to weigh whether the state enactments at issue accord
with other indicia of reasonable expectations about property. Peti-
tioners urge the Court to adopt a presumption that lot lines control,
but lot lines are creatures of state law, which can be overridden by
the State in the reasonable exercise of its power to regulate land.
The merger provision here is such a legitimate exercise of state pow-
er, as reflected by its consistency with a long history of merger regu-
lations and with the many merger provisions that exist nationwide
today. Pp. 14–17.
(c) Under the appropriate multifactor standard, it follows that peti-
tioners’ property should be evaluated as a single parcel consisting of
Lots E and F together. First, as to the property’s treatment under
state and local law, the valid merger of the lots under state law in-
forms the reasonable expectation that the lots will be treated as a
single property. Second, turning to the property’s physical character-
istics, the lots are contiguous. Their terrain and shape make it rea-
sonable to expect their range of potential uses might be limited; and
petitioners could have anticipated regulation of the property due to
its location along the river, which was regulated by federal, state,
and local law long before they acquired the land. Third, Lot E brings
prospective value to Lot F. The restriction on using the individual
lots is mitigated by the benefits of using the property as an integrat-
ed whole, allowing increased privacy and recreational space, plus an
4 MURR v. WISCONSIN
Syllabus
optimal location for any improvements. This relationship is evident
in the lots’ combined valuation. The Court of Appeals was thus cor-
rect to treat the contiguous properties as one parcel.
Considering petitioners’ property as a whole, the state court was
correct to conclude that petitioners cannot establish a compensable
taking. They have not suffered a taking under Lucas, as they have
not been deprived of all economically beneficial use of their property.
See 505 U.S., at 1019. Nor have they suffered a taking under the
more general test of Penn Central, supra, at 124. Pp. 17–20.
2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628, affirmed.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a
dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J.,
filed a dissenting opinion. GORSUCH, J., took no part in the considera-
tion or decision of the case.
Cite as: 582 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–214
_________________
JOSEPH P. MURR, ET AL., PETITIONERS v.
WISCONSIN, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
WISCONSIN, DISTRICT III
[June 23, 2017]
JUSTICE KENNEDY delivered the opinion of the Court.
The classic example of a property taking by the govern­
ment is when the property has been occupied or otherwise
seized. In the case now before the Court, petition-
ers contend that governmental entities took their real
property—an undeveloped residential lot—not by some
physical occupation but instead by enacting burdensome
regulations that forbid its improvement or separate sale
because it is classified as substandard in size. The rele­
vant governmental entities are the respondents.
Against the background justifications for the challenged
restrictions, respondents contend there is no regulatory
taking because petitioners own an adjacent lot. The regu­
lations, in effecting a merger of the property, permit the
continued residential use of the property including for a
single improvement to extend over both lots. This re­
tained right of the landowner, respondents urge, is of
sufficient offsetting value that the regulation is not severe
enough to be a regulatory taking. To resolve the issue
whether the landowners can insist on confining the analy­
sis just to the lot in question, without regard to their
2 MURR v. WISCONSIN
Opinion of the Court
ownership of the adjacent lot, it is necessary to discuss the
background principles that define regulatory takings.
I
A
The St. Croix River originates in northwest Wisconsin
and flows approximately 170 miles until it joins the Mis­
sissippi River, forming the boundary between Minnesota
and Wisconsin for much of its length. The lower portion of
the river slows and widens to create a natural water area
known as Lake St. Croix. Tourists and residents of the
region have long extolled the picturesque grandeur of the
river and surrounding area. E.g., E. Ellett, Summer Ram­
bles in the West 136–137 (1853).
Under the Wild and Scenic Rivers Act, the river was
designated, by 1972, for federal protection. §3(a)(6), 82
Stat. 908, 16 U.S. C. §1274(a)(6) (designating Upper St.
Croix River); Lower Saint Croix River Act of 1972, §2, 86
Stat. 1174, 16 U.S. C. §1274(a)(9) (adding Lower St. Croix
River). The law required the States of Wisconsin and
Minnesota to develop “a management and development
program” for the river area. 41 Fed. Reg. 26237 (1976). In
compliance, Wisconsin authorized the State Department of
Natural Resources to promulgate rules limiting develop­
ment in order to “guarantee the protection of the wild,
scenic and recreational qualities of the river for present
and future generations.” Wis. Stat. §30.27(l) (1973).
Petitioners are two sisters and two brothers in the Murr
family. Petitioners’ parents arranged for them to receive
ownership of two lots the family used for recreation along
the Lower St. Croix River in the town of Troy, Wisconsin.
The lots are adjacent, but the parents purchased them
separately, put the title of one in the name of the family
business, and later arranged for transfer of the two lots,
on different dates, to petitioners. The lots, which are
referred to in this litigation as Lots E and F, are described
Cite as: 582 U. S. ____ (2017) 3
Opinion of the Court
in more detail below.
For the area where petitioners’ property is located, the
Wisconsin rules prevent the use of lots as separate build­
ing sites unless they have at least one acre of land suitable
for development. Wis. Admin. Code §§ NR 118.04(4),
118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grand­
father clause relaxes this restriction for substandard
lots which were “in separate ownership from abutting
lands” on January 1, 1976, the effective date of the regula­
tion. § NR 118.08(4)(a)(1). The clause permits the use of
qualifying lots as separate building sites. The rules also
include a merger provision, however, which provides that
adjacent lots under common ownership may not be “sold or
developed as separate lots” if they do not meet the size
requirement. § NR 118.08(4)(a)(2). The Wisconsin rules
require localities to adopt parallel provisions, see
§ NR 118.02(3), so the St. Croix County zoning ordinance
contains identical restrictions, see St. Croix County, Wis.,
Ordinance §17.36I.4.a (2005). The Wisconsin rules also
authorize the local zoning authority to grant variances
from the regulations where enforcement would create
“unnecessary hardship.” § NR 118.09(4)(b); St. Croix
County Ordinance §17.09.232.
B
Petitioners’ parents purchased Lot F in 1960 and built a
small recreational cabin on it. In 1961, they transferred
title to Lot F to the family plumbing company. In 1963,
they purchased neighboring Lot E, which they held in
their own names.
The lots have the same topography. A steep bluff cuts
through the middle of each, with level land suitable for
development above the bluff and next to the water below
it. The line dividing Lot E from Lot F runs from the river­
front to the far end of the property, crossing the blufftop
along the way. Lot E has approximately 60 feet of river
4 MURR v. WISCONSIN
Opinion of the Court
frontage, and Lot F has approximately 100 feet. Though
each lot is approximately 1.25 acres in size, because of the
waterline and the steep bank they each have less than one
acre of land suitable for development. Even when com­
bined, the lots’ buildable land area is only 0.98 acres due
to the steep terrain.
The lots remained under separate ownership, with Lot F
owned by the plumbing company and Lot E owned by
petitioners’ parents, until transfers to petitioners. Lot F
was conveyed to them in 1994, and Lot E was conveyed to
them in 1995. Murr v. St. Croix County Bd. of Adjust-
ment, 2011 WI App 29, 332 Wis. 2d 172, 177–178, 184–
185, 796 N.W.2d 837, 841, 844 (2011); 2015 WI App 13,
359 Wis. 2d 675, 859 N.W.2d 628 (unpublished opinion),
App. to Pet. for Cert. A–3, ¶¶4–5. (There are certain
ambiguities in the record concerning whether the lots had
merged earlier, but the parties and the courts below ap­
pear to have assumed the merger occurred upon transfer
to petitioners.)
A decade later, petitioners became interested in moving
the cabin on Lot F to a different portion of the lot and
selling Lot E to fund the project. The unification of the
lots under common ownership, however, had implicated
the state and local rules barring their separate sale or
development. Petitioners then sought variances from the
St. Croix County Board of Adjustment to enable their
building and improvement plan, including a variance to
allow the separate sale or use of the lots. The Board de­
nied the requests, and the state courts affirmed in rele­
vant part. In particular, the Wisconsin Court of Appeals
agreed with the Board’s interpretation that the local
ordinance “effectively merged” Lots E and F, so petitioners
“could only sell or build on the single larger lot.” Murr,
supra, at 184, 796 N. W. 2d, at 844.
Petitioners filed the present action in state court, alleg­
ing that the state and county regulations worked a regula­
Cite as: 582 U. S. ____ (2017) 5
Opinion of the Court
tory taking by depriving them of “all, or practically all, of
the use of Lot E because the lot cannot be sold or devel­
oped as a separate lot.” App. 9. The parties each submit­
ted appraisal numbers to the trial court. Respondents’
appraisal included values of $698,300 for the lots together
as regulated; $771,000 for the lots as two distinct build-
able properties; and $373,000 for Lot F as a single lot with
improvements. Record 17–55, 17–56. Petitioners’ ap­
praisal included an unrebutted, estimated value of
$40,000 for Lot E as an undevelopable lot, based on the
counterfactual assumption that it could be sold as a sepa­
rate property. Id., at 22–188.
The Circuit Court of St. Croix County granted summary
judgment to the State, explaining that petitioners retained
“several available options for the use and enjoyment of
their property.” Case No. 12–CV–258 (Oct. 31, 2013), App.
to Pet. for Cert. B–9. For example, they could preserve the
existing cabin, relocate the cabin, or eliminate the cabin
and build a new residence on Lot E, on Lot F, or across
both lots. The court also found petitioners had not been
deprived of all economic value of their property. Consider­
ing the valuation of the property as a single lot versus two
separate lots, the court found the market value of the
property was not significantly affected by the regulations
because the decrease in value was less than 10 percent.
Ibid.
The Wisconsin Court of Appeals affirmed. The court
explained that the regulatory takings inquiry required it
to “ ‘first determine what, precisely, is the property at
issue.’ ” Id., at A–9, ¶17. Relying on Wisconsin Supreme
Court precedent in Zealy v. Waukesha, 201 Wis. 2d 365,
548 N.W.2d 528 (1996), the Court of Appeals rejected
petitioners’ request to analyze the effect of the regulations
on Lot E only. Instead, the court held the takings analysis
“properly focused” on the regulations’ effect “on the Murrs’
property as a whole”—that is, Lots E and F together. App.
6 MURR v. WISCONSIN
Opinion of the Court
to Pet. for Cert. A–12, ¶22.
Using this framework, the Court of Appeals concluded
the merger regulations did not effect a taking. In particu­
lar, the court explained that petitioners could not reason­
ably have expected to use the lots separately because they
were “ ‘charged with knowledge of the existing zoning
laws’ ” when they acquired the property. Ibid. (quoting
Murr, supra, at 184, 796 N. W. 2d, at 844). Thus, “even if
[petitioners] did intend to develop or sell Lot E separately,
that expectation of separate treatment became unreason­
able when they chose to acquire Lot E in 1995, after their
having acquired Lot F in 1994.” App. to Pet. for Cert. A–
17, ¶30. The court also discounted the severity of the
economic impact on petitioners’ property, recognizing the
Circuit Court’s conclusion that the regulations diminished
the property’s combined value by less than 10 percent.
The Supreme Court of Wisconsin denied discretionary
review. This Court granted certiorari, 577 U. S. ___
(2016).
II
A
The Takings Clause of the Fifth Amendment provides
that private property shall not “be taken for public use,
without just compensation.” The Clause is made applica­
ble to the States through the Fourteenth Amendment.
Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897).
As this Court has recognized, the plain language of the
Takings Clause “requires the payment of compensation
whenever the government acquires private property for a
public purpose,” see Tahoe-Sierra Preservation Council,
Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302,
321 (2002), but it does not address in specific terms the
imposition of regulatory burdens on private property.
Indeed, “[p]rior to Justice Holmes’s exposition in Pennsyl-
vania Coal Co. v. Mahon, 260 U.S. 393 (1922), it was
Cite as: 582 U. S. ____ (2017) 7
Opinion of the Court
generally thought that the Takings Clause reached only a
direct appropriation of property, or the functional equiva­
lent of a practical ouster of the owner’s possession,” like
the permanent flooding of property. Lucas v. South Caro-
lina Coastal Council, 505 U.S. 1003, 1014 (1992) (citation,
brackets, and internal quotation marks omitted); accord,
Horne v. Department of Agriculture, 576 U. S. ___, ___
(2015) (slip op., at 7); see also Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 427 (1982). Ma-
hon, however, initiated this Court’s regulatory takings
jurisprudence, declaring that “while property may be
regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.” 260 U.S., at 415. A regu­
lation, then, can be so burdensome as to become a taking,
yet the Mahon Court did not formulate more detailed
guidance for determining when this limit is reached.
In the near century since Mahon, the Court for the most
part has refrained from elaborating this principle through
definitive rules. This area of the law has been character­
ized by “ad hoc, factual inquiries, designed to allow careful
examination and weighing of all the relevant circumstances.”
Tahoe-Sierra, supra, at 322 (citation and internal quota­
tion marks omitted). The Court has, however, stated two
guidelines relevant here for determining when govern­
ment regulation is so onerous that it constitutes a taking.
First, “with certain qualifications . . . a regulation which
‘denies all economically beneficial or productive use of
land’ will require compensation under the Takings
Clause.” Palazzolo v. Rhode Island, 533 U.S. 606, 617
(2001) (quoting Lucas, supra, at 1015). Second, when a
regulation impedes the use of property without depriving
the owner of all economically beneficial use, a taking still
may be found based on “a complex of factors,” including (1)
the economic impact of the regulation on the claimant; (2)
the extent to which the regulation has interfered with
distinct investment-backed expectations; and (3) the char­
8 MURR v. WISCONSIN
Opinion of the Court
acter of the governmental action. Palazzolo, supra, at 617
(citing Penn Central Transp. Co. v. New York City, 438
U.S. 104, 124 (1978)).
By declaring that the denial of all economically benefi­
cial use of land constitutes a regulatory taking, Lucas
stated what it called a “categorical” rule. See 505 U.S., at
1015. Even in Lucas, however, the Court included a ca­
veat recognizing the relevance of state law and land-use
customs: The complete deprivation of use will not re-
quire compensation if the challenged limitations “inhere
. . . in the restrictions that background principles of the
State’s law of property and nuisance already placed upon
land ownership.” Id., at 1029; see also id., at 1030–1031
(listing factors for courts to consider in making this
determination).
A central dynamic of the Court’s regulatory takings
jurisprudence, then, is its flexibility. This has been and
remains a means to reconcile two competing objectives
central to regulatory takings doctrine. One is the individ­
ual’s right to retain the interests and exercise the free­
doms at the core of private property ownership. Cf. id., at
1028 (“[T]he notion . . . that title is somehow held subject
to the ‘implied limitation’ that the State may subsequently
eliminate all economically valuable use is inconsistent
with the historical compact recorded in the Takings
Clause that has become part of our constitutional cul­
ture”). Property rights are necessary to preserve freedom,
for property ownership empowers persons to shape and to
plan their own destiny in a world where governments are
always eager to do so for them.
The other persisting interest is the government’s well-
established power to “adjus[t] rights for the public good.”
Andrus v. Allard, 444 U.S. 51, 65 (1979). As Justice
Holmes declared, “Government hardly could go on if to
some extent values incident to property could not be di­
minished without paying for every such change in the
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Opinion of the Court
general law.” Mahon, supra, at 413. In adjudicating
regulatory takings cases a proper balancing of these prin­
ciples requires a careful inquiry informed by the specifics
of the case. In all instances, the analysis must be driven
“by the purpose of the Takings Clause, which is to prevent
the government from ‘forcing some people alone to bear
public burdens which, in all fairness and justice, should be
borne by the public as a whole.’ ” Palazzolo, supra, at 617–
618 (quoting Armstrong v. United States, 364 U.S. 40, 49
(1960)).
B
This case presents a question that is linked to the ulti­
mate determination whether a regulatory taking has
occurred: What is the proper unit of property against
which to assess the effect of the challenged governmental
action? Put another way, “[b]ecause our test for regulatory
taking requires us to compare the value that has been
taken from the property with the value that remains in
the property, one of the critical questions is determining
how to define the unit of property ‘whose value is to fur­
nish the denominator of the fraction.’ ” Keystone Bitumi-
nous Coal Assn. v. DeBenedictis, 480 U.S. 470, 497 (1987)
(quoting Michelman, Property, Utility, and Fairness, 80
Harv. L. Rev. 1165, 1992 (1967)).
As commentators have noted, the answer to this ques­
tion may be outcome determinative. See Eagle, The Four-
Factor Penn Central Regulatory Takings Test, 118 Pa. St.
L. Rev. 601, 631 (2014); see also Wright, A New Time for
Denominators, 34 Env. L. 175, 180 (2004). This Court,
too, has explained that the question is important to the
regulatory takings inquiry. “To the extent that any por­
tion of property is taken, that portion is always taken in
its entirety; the relevant question, however, is whether the
property taken is all, or only a portion of, the parcel in
question.” Concrete Pipe & Products of Cal., Inc. v. Con-
10 MURR v. WISCONSIN
Opinion of the Court
struction Laborers Pension Trust for Southern Cal., 508
U.S. 602, 644 (1993).
Defining the property at the outset, however, should not
necessarily preordain the outcome in every case. In some,
though not all, cases the effect of the challenged regulation
must be assessed and understood by the effect on the
entire property held by the owner, rather than just some
part of the property that, considered just on its own, has
been diminished in value. This demonstrates the contrast
between regulatory takings, where the goal is usually to
determine how the challenged regulation affects the prop­
erty’s value to the owner, and physical takings, where the
impact of physical appropriation or occupation of the
property will be evident.
While the Court has not set forth specific guidance on
how to identify the relevant parcel for the regulatory
taking inquiry, there are two concepts which the Court
has indicated can be unduly narrow.
First, the Court has declined to limit the parcel in an
artificial manner to the portion of property targeted by the
challenged regulation. In Penn Central, for example, the
Court rejected a challenge to the denial of a permit to
build an office tower above Grand Central Terminal. The
Court refused to measure the effect of the denial only
against the “air rights” above the terminal, cautioning
that “ ‘[t]aking’ jurisprudence does not divide a single
parcel into discrete segments and attempt to determine
whether rights in a particular segment have been entirely
abrogated.” 438 U.S., at 130.
In a similar way, in Tahoe-Sierra, the Court refused to
“effectively sever” the 32 months during which petitioners’
property was restricted by temporary moratoria on devel­
opment “and then ask whether that segment ha[d] been
taken in its entirety.” 535 U.S., at 331. That was because
“defining the property interest taken in terms of the very
regulation being challenged is circular.” Ibid. That ap­
Cite as: 582 U. S. ____ (2017) 11
Opinion of the Court
proach would overstate the effect of regulation on property,
turning “every delay” into a “total ban.” Ibid.
The second concept about which the Court has ex­
pressed caution is the view that property rights under the
Takings Clause should be coextensive with those under
state law. Although property interests have their founda­
tions in state law, the Palazzolo Court reversed a state-
court decision that rejected a takings challenge to regula­
tions that predated the landowner’s acquisition of title.
533 U.S., at 626–627. The Court explained that States do
not have the unfettered authority to “shape and define
property rights and reasonable investment-backed expec­
tations,” leaving landowners without recourse against
unreasonable regulations. Id., at 626.
By the same measure, defining the parcel by reference
to state law could defeat a challenge even to a state en­
actment that alters permitted uses of property in ways
inconsistent with reasonable investment-backed expecta­
tions. For example, a State might enact a law that consol­
idates nonadjacent property owned by a single person or
entity in different parts of the State and then imposes
development limits on the aggregate set. If a court de­
fined the parcel according to the state law requiring con­
solidation, this improperly would fortify the state law
against a takings claim, because the court would look to
the retained value in the property as a whole rather than
considering whether individual holdings had lost all value.
III
A
As the foregoing discussion makes clear, no single con­
sideration can supply the exclusive test for determining
the denominator. Instead, courts must consider a number
of factors. These include the treatment of the land under
state and local law; the physical characteristics of the
land; and the prospective value of the regulated land. The
12 MURR v. WISCONSIN
Opinion of the Court
endeavor should determine whether reasonable expecta­
tions about property ownership would lead a landowner to
anticipate that his holdings would be treated as one par­
cel, or, instead, as separate tracts. The inquiry is objec­
tive, and the reasonable expectations at issue derive from
background customs and the whole of our legal tradition.
Cf. Lucas, 505 U.S., at 1035 (KENNEDY, J., concurring)
(“The expectations protected by the Constitution are based
on objective rules and customs that can be understood as
reasonable by all parties involved”).
First, courts should give substantial weight to the
treatment of the land, in particular how it is bounded or
divided, under state and local law. The reasonable expec­
tations of an acquirer of land must acknowledge legitimate
restrictions affecting his or her subsequent use and dis­
pensation of the property. See Ballard v. Hunter, 204
U.S. 241, 262 (1907) (“Of what concerns or may concern
their real estate men usually keep informed, and on that
probability the law may frame its proceedings”). A valid
takings claim will not evaporate just because a purchaser
took title after the law was enacted. See Palazzolo, 533
U.S., at 627 (some “enactments are unreasonable and do
not become less so through passage of time or title”). A
reasonable restriction that predates a landowner’s acquisi­
tion, however, can be one of the objective factors that most
landowners would reasonably consider in forming fair
expectations about their property. See ibid. (“[A] prospec­
tive enactment, such as a new zoning ordinance, can limit
the value of land without effecting a taking because it can
be understood as reasonable by all concerned”). In
a similar manner, a use restriction which is triggered
only after, or because of, a change in ownership should
also guide a court’s assessment of reasonable private
expectations.
Second, courts must look to the physical characteristics
of the landowner’s property. These include the physical
Cite as: 582 U. S. ____ (2017) 13
Opinion of the Court
relationship of any distinguishable tracts, the parcel’s
topography, and the surrounding human and ecological
environment. In particular, it may be relevant that the
property is located in an area that is subject to, or likely to
become subject to, environmental or other regulation. Cf.
Lucas, supra, at 1035 (KENNEDY, J., concurring) (“Coastal
property may present such unique concerns for a fragile
land system that the State can go further in regulating its
development and use than the common law of nuisance
might otherwise permit”).
Third, courts should assess the value of the property
under the challenged regulation, with special attention to
the effect of burdened land on the value of other holdings.
Though a use restriction may decrease the market value of
the property, the effect may be tempered if the regulated
land adds value to the remaining property, such as by
increasing privacy, expanding recreational space, or pre­
serving surrounding natural beauty. A law that limits use
of a landowner’s small lot in one part of the city by reason
of the landowner’s nonadjacent holdings elsewhere may
decrease the market value of the small lot in an unmiti­
gated fashion. The absence of a special relationship be­
tween the holdings may counsel against consideration of
all the holdings as a single parcel, making the restrictive
law susceptible to a takings challenge. On the other hand,
if the landowner’s other property is adjacent to the small
lot, the market value of the properties may well increase if
their combination enables the expansion of a structure, or
if development restraints for one part of the parcel protect
the unobstructed skyline views of another part. That, in
turn, may counsel in favor of treatment as a single parcel
and may reveal the weakness of a regulatory takings
challenge to the law.
State and federal courts have considerable experience in
adjudicating regulatory takings claims that depart from
these examples in various ways. The Court anticipates
14 MURR v. WISCONSIN
Opinion of the Court
that in applying the test above they will continue to exer­
cise care in this complex area.
B
The State of Wisconsin and petitioners each ask this
Court to adopt a formalistic rule to guide the parcel in­
quiry. Neither proposal suffices to capture the central
legal and factual principles that inform reasonable expec­
tations about property interests.
Wisconsin would tie the definition of the parcel to state
law, considering the two lots here as a single whole due to
their merger under the challenged regulations. That
approach, as already noted, simply assumes the answer to
the question: May the State define the relevant parcel in a
way that permits it to escape its responsibility to justify
regulation in light of legitimate property expectations? It
is, of course, unquestionable that the law must recognize
those legitimate expectations in order to give proper
weight to the rights of owners and the right of the State to
pass reasonable laws and regulations. See Palazzolo,
supra, at 627.
Wisconsin bases its position on a footnote in Lucas,
which suggests the answer to the denominator question
“may lie in how the owner’s reasonable expectations have
been shaped by the State’s law of property—i.e., whether
and to what degree the State’s law has accorded legal
recognition and protection to the particular interest in
land with respect to which the takings claimant alleges a
diminution in (or elimination of) value.” 505 U.S., at
1017, n. 7. As an initial matter, Lucas referenced the
parcel problem only in dicta, unnecessary to the an­
nouncement or application of the rule it established. See
ibid. (“[W]e avoid th[e] difficulty” of determining the rele­
vant parcel “in the present case”). In any event, the test
the Court adopts today is consistent with the respect for
state law described in Lucas. The test considers state law
Cite as: 582 U. S. ____ (2017) 15
Opinion of the Court
but in addition weighs whether the state enactments at
issue accord with other indicia of reasonable expectations
about property.
Petitioners propose a different test that is also flawed.
They urge the Court to adopt a presumption that lot lines
define the relevant parcel in every instance, making Lot E
the necessary denominator. Petitioners’ argument, how­
ever, ignores the fact that lot lines are themselves crea­
tures of state law, which can be overridden by the State in
the reasonable exercise of its power. In effect, petitioners
ask this Court to credit the aspect of state law that favors
their preferred result (lot lines) and ignore that which
does not (merger provision).
This approach contravenes the Court’s case law, which
recognizes that reasonable land-use regulations do not
work a taking. See Palazzolo, 533 U.S., at 627; Mahon,
260 U.S., at 413. Among other cases, Agins v. City of
Tiburon, 447 U.S. 255 (1980), demonstrates the validity of
this proposition because it upheld zoning regulations as a
legitimate exercise of the government’s police power. Of
course, the Court’s later opinion in Lingle v. Chevron
U. S. A. Inc. recognized that the test articulated in
Agins—that regulation effects a taking if it “ ‘does not
substantially advance legitimate state interests’ ”—was
improper because it invited courts to engage in heightened
review of the effectiveness of government regulation. 544
U.S. 528, 540 (2005) (quoting Agins, supra, at 260).
Lingle made clear, however, that the holding of Agins
survived, even if its test was “imprecis[e].” See 544 U.S.,
at 545–546, 548.
The merger provision here is likewise a legitimate exer­
cise of government power, as reflected by its consistency
with a long history of state and local merger regulations
that originated nearly a century ago. See Brief for Na­
tional Association of Counties et al. as Amici Curiae 5–10.
Merger provisions often form part of a regulatory scheme
16 MURR v. WISCONSIN
Opinion of the Court
that establishes a minimum lot size in order to preserve
open space while still allowing orderly development. See
E. McQuillin, Law of Municipal Corporations §25:24 (3d
ed. 2010); see also Agins, supra, at 262 (challenged “zoning
ordinances benefit[ed] the appellants as well as the public
by serving the city’s interest in assuring careful and orderly
development of residential property with provision for
open-space areas”).
When States or localities first set a minimum lot size,
there often are existing lots that do not meet the new
requirements, and so local governments will strive to
reduce substandard lots in a gradual manner. The regula­
tions here represent a classic way of doing this: by imple­
menting a merger provision, which combines contiguous
substandard lots under common ownership, alongside a
grandfather clause, which preserves adjacent substandard
lots that are in separate ownership. Also, as here, the
harshness of a merger provision may be ameliorated by
the availability of a variance from the local zoning author­
ity for landowners in special circumstances. See 3 E.
Ziegler, Rathkopf ’s Law of Zoning and Planning §49:13
(39th ed. 2017).
Petitioners’ insistence that lot lines define the relevant
parcel ignores the well-settled reliance on the merger
provision as a common means of balancing the legitimate
goals of regulation with the reasonable expectations of
landowners. Petitioners’ rule would frustrate municipali­
ties’ ability to implement minimum lot size regulations by
casting doubt on the many merger provisions that exist
nationwide today. See Brief for National Association of
Counties et al. as Amici Curiae 12–31 (listing over 100
examples of merger provisions).
Petitioners’ reliance on lot lines also is problematic for
another reason. Lot lines have varying degrees of formality
across the States, so it is difficult to make them a stand­
ard measure of the reasonable expectations of property
Cite as: 582 U. S. ____ (2017) 17
Opinion of the Court
owners. Indeed, in some jurisdictions, lot lines may be
subject to informal adjustment by property owners, with
minimal government oversight. See Brief for California
et al. as Amici Curiae 17; 1 J. Kushner, Subdivision Law
and Growth Management §5:8 (2d ed. 2017) (lot line ad­
justments that create no new parcels are often exempt
from subdivision review); see, e.g., Cal. Govt. Code Ann.
§66412(d) (West 2016) (permitting adjustment of lot lines
subject to limited conditions for government approval).
The ease of modifying lot lines also creates the risk of
gamesmanship by landowners, who might seek to alter the
lines in anticipation of regulation that seems likely to
affect only part of their property.
IV
Under the appropriate multifactor standard, it follows
that for purposes of determining whether a regulatory
taking has occurred here, petitioners’ property should be
evaluated as a single parcel consisting of Lots E and F
together.
First, the treatment of the property under state and
local law indicates petitioners’ property should be treated
as one when considering the effects of the restrictions. As
the Wisconsin courts held, the state and local regulations
merged Lots E and F. E.g., App. to Pet. for Cert. A–3, ¶6
(“The 1995 transfer of Lot E brought the lots under com­
mon ownership and resulted in a merger of the two lots
under [the local ordinance]”). The decision to adopt the
merger provision at issue here was for a specific and legit­
imate purpose, consistent with the widespread under­
standing that lot lines are not dominant or controlling in
every case. See supra, at ___. Petitioners’ land was sub­
ject to this regulatory burden, moreover, only because of
voluntary conduct in bringing the lots under common
ownership after the regulations were enacted. As a result,
the valid merger of the lots under state law informs the
18 MURR v. WISCONSIN
Opinion of the Court
reasonable expectation they will be treated as a single
property.
Second, the physical characteristics of the property
support its treatment as a unified parcel. The lots are
contiguous along their longest edge. Their rough terrain
and narrow shape make it reasonable to expect their
range of potential uses might be limited. Cf. App. to Pet.
for Cert. A–5, ¶8 (“[Petitioners] asserted Lot E could not
be put to alternative uses like agriculture or commerce
due to its size, location and steep terrain”). The land’s
location along the river is also significant. Petitioners
could have anticipated public regulation might affect their
enjoyment of their property, as the Lower St. Croix was a
regulated area under federal, state, and local law long
before petitioners possessed the land.
Third, the prospective value that Lot E brings to Lot F
supports considering the two as one parcel for purposes of
determining if there is a regulatory taking. Petitioners
are prohibited from selling Lots E and F separately or
from building separate residential structures on each. Yet
this restriction is mitigated by the benefits of using the
property as an integrated whole, allowing increased privacy
and recreational space, plus the optimal location of any
improvements. See Case No. 12–CV–258, App. to Pet. for
Cert. B–9 (“They have an elevated level of privacy because
they do not have close neighbors and are able to swim and
play volleyball at the property”).
The special relationship of the lots is further shown by
their combined valuation. Were Lot E separately saleable
but still subject to the development restriction, petitioners’
appraiser would value the property at only $40,000. We
express no opinion on the validity of this figure. We also
note the number is not particularly helpful for under­
standing petitioners’ retained value in the properties
because Lot E, under the regulations, cannot be sold with­
out Lot F. The point that is useful for these purposes is
Cite as: 582 U. S. ____ (2017) 19
Opinion of the Court
that the combined lots are valued at $698,300, which is far
greater than the summed value of the separate regulated
lots (Lot F with its cabin at $373,000, according to re­
spondents’ appraiser, and Lot E as an undevelopable plot
at $40,000, according to petitioners’ appraiser). The value
added by the lots’ combination shows their complementa­
rity and supports their treatment as one parcel.
The State Court of Appeals was correct in analyzing
petitioners’ property as a single unit. Petitioners allege
that in doing so, the state court applied a categorical rule
that all contiguous, commonly owned holdings must be
combined for Takings Clause analysis. See Brief for Peti­
tioners i (“[D]oes the ‘parcel as a whole’ concept . . . estab­
lish a rule that two legally distinct, but commonly owned
contiguous parcels, must be combined for takings analysis
purposes”). This does not appear to be the case, however,
for the precedent relied on by the Court of Appeals ad­
dressed multiple factors before treating contiguous proper­
ties as one parcel. See App. to Pet. for Cert. A–9–A–11,
¶¶17–19 (citing Zealy v. Waukesha, 201 Wis. 2d 365, 548
N.W.2d 528); see id., at 378, 548 N. W. 2d, at 533 (con­
sidering the property as a whole because it was “part of a
single purchase” and all 10.4 acres were undeveloped).
The judgment below, furthermore, may be affirmed on any
ground permitted by the law and record. See Thigpen v.
Roberts, 468 U.S. 27, 30 (1984). To the extent the state
court treated the two lots as one parcel based on a bright-
line rule, nothing in this opinion approves that methodology,
as distinct from the result.
Considering petitioners’ property as a whole, the state
court was correct to conclude that petitioners cannot
establish a compensable taking in these circumstances.
Petitioners have not suffered a taking under Lucas, as
they have not been deprived of all economically beneficial
use of their property. See 505 U.S., at 1019. They can
use the property for residential purposes, including an
20 MURR v. WISCONSIN
Opinion of the Court
enhanced, larger residential improvement. See Palazzolo,
533 U.S., at 631 (“A regulation permitting a landowner to
build a substantial residence . . . does not leave the prop­
erty ‘economically idle’ ”). The property has not lost all
economic value, as its value has decreased by less than 10
percent. See Lucas, supra, at 1019, n. 8 (suggesting that
even a landowner with 95 percent loss may not recover).
Petitioners furthermore have not suffered a taking
under the more general test of Penn Central. See 438
U.S., at 124. The expert appraisal relied upon by the state
courts refutes any claim that the economic impact of the
regulation is severe. Petitioners cannot claim that they
reasonably expected to sell or develop their lots separately
given the regulations which predated their acquisition of
both lots. Finally, the governmental action was a reason­
able land-use regulation, enacted as part of a coordinated
federal, state, and local effort to preserve the river and
surrounding land.
* * *
Like the ultimate question whether a regulation has
gone too far, the question of the proper parcel in regulatory
takings cases cannot be solved by any simple test. See
Arkansas Game and Fish Comm’n v. United States, 568
U.S. 23, 31 (2012). Courts must instead define the parcel
in a manner that reflects reasonable expectations about
the property. Courts must strive for consistency with the
central purpose of the Takings Clause: to “bar Govern­
ment from forcing some people alone to bear public bur­
dens which, in all fairness and justice, should be borne by
the public as a whole.” Armstrong, 364 U.S., at 49.
Treating the lot in question as a single parcel is legitimate
for purposes of this takings inquiry, and this supports the
conclusion that no regulatory taking occurred here.
The judgment of the Wisconsin Court of Appeals is
affirmed.
It is so ordered.
Cite as: 582 U. S. ____ (2017)
21
Opinion of the Court
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
Cite as: 582 U. S. ____ (2017) 1
ROBERTS, C. J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–214
_________________
JOSEPH P. MURR, ET AL., PETITIONERS v.
WISCONSIN, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
WISCONSIN, DISTRICT III
[June 23, 2017]
CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS
and JUSTICE ALITO join, dissenting.
The Murr family owns two adjacent lots along the Lower
St. Croix River. Under a local regulation, those two prop­
erties may not be “sold or developed as separate lots”
because neither contains a sufficiently large area of build-
able land. Wis. Admin. Code §NR 118.08(4)(a)(2) (2017).
The Court today holds that the regulation does not effect a
taking that requires just compensation. This bottom-line
conclusion does not trouble me; the majority presents a
fair case that the Murrs can still make good use of both
lots, and that the ordinance is a commonplace tool to
preserve scenic areas, such as the Lower St. Croix River,
for the benefit of landowners and the public alike.
Where the majority goes astray, however, is in conclud­
ing that the definition of the “private property” at issue in
a case such as this turns on an elaborate test looking not
only to state and local law, but also to (1) “the physical
characteristics of the land,” (2) “the prospective value of
the regulated land,” (3) the “reasonable expectations” of
the owner, and (4) “background customs and the whole of
our legal tradition.” Ante, at 11–12. Our decisions have,
time and again, declared that the Takings Clause protects
private property rights as state law creates and defines
them. By securing such established property rights, the
2 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
Takings Clause protects individuals from being forced to
bear the full weight of actions that should be borne by the
public at large. The majority’s new, malleable definition of
“private property”—adopted solely “for purposes of th[e]
takings inquiry,” ante, at 20—undermines that protection.
I would stick with our traditional approach: State law
defines the boundaries of distinct parcels of land, and
those boundaries should determine the “private property”
at issue in regulatory takings cases. Whether a regulation
effects a taking of that property is a separate question, one
in which common ownership of adjacent property may be
taken into account. Because the majority departs from
these settled principles, I respectfully dissent.
I
A
The Takings Clause places a condition on the govern­
ment’s power to interfere with property rights, instructing
that “private property [shall not] be taken for public use,
without just compensation.” Textually and logically, this
Clause raises three basic questions that individuals, gov­
ernments, and judges must consider when anticipating or
deciding whether the government will have to provide
reimbursement for its actions. The first is what “pri-
vate property” the government’s planned course of conduct
will affect. The second, whether that property has been
“taken” for “public use.” And if “private property” has been
“taken,” the last item of business is to calculate the “just
compensation” the owner is due.
Step one—identifying the property interest at stake—
requires looking outside the Constitution. The word
“property” in the Takings Clause means “the group of
rights inhering in [a] citizen’s relation to [a] . . . thing, as
the right to possess, use and dispose of it.” United States
v. General Motors Corp., 323 U.S. 373, 378 (1945). The
Clause does not, however, provide the definition of those
Cite as: 582 U. S. ____ (2017) 3
ROBERTS, C. J., dissenting
rights in any particular case. Instead, “property interests
. . . are created and their dimensions are defined by exist­
ing rules or understandings that stem from an independ­
ent source such as state law.” Ruckelshaus v. Monsanto
Co., 467 U.S. 986, 1001 (1984) (alteration and internal
quotation marks omitted). By protecting these established
rights, the Takings Clause stands as a buffer between
property owners and governments, which might naturally
look to put private property to work for the public at large.
When government action interferes with property
rights, the next question becomes whether that interfer­
ence amounts to a “taking.” “The paradigmatic taking . . .
is a direct government appropriation or physical invasion
of private property.” Lingle v. Chevron U. S. A. Inc., 544
U.S. 528, 537 (2005). These types of actions give rise to
“per se taking[s]” because they are “perhaps the most
serious form[s] of invasion of an owner’s property inter­
ests, depriving the owner of the rights to possess, use and
dispose of the property.” Horne v. Department of Agricul-
ture, 576 U. S. ___, ___ (2015) (slip op., at 7) (internal
quotation marks omitted).
But not all takings are so direct: Governments can
infringe private property interests for public use not only
through appropriations, but through regulations as well.
If compensation were required for one but not the other,
“the natural tendency of human nature” would be to ex­
tend regulations “until at last private property disap­
pears.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393,
415 (1922). Our regulatory takings decisions, then, have
recognized that, “while property may be regulated to a
certain extent, if regulation goes too far it will be recog­
nized as a taking.” Ibid. This rule strikes a balance be­
tween property owners’ rights and the government’s au­
thority to advance the common good. Owners can rest
assured that they will be compensated for particularly
onerous regulatory actions, while governments maintain
4 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
the freedom to adjust the benefits and burdens of property
ownership without incurring crippling costs from each
alteration.
Depending, of course, on how far is “too far.” We have
said often enough that the answer to this question gener­
ally resists per se rules and rigid formulas. There are,
however, a few fixed principles: The inquiry “must be
conducted with respect to specific property.” Keystone
Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 495
(1987) (internal quotation marks omitted). And if a “regu­
lation denies all economically beneficial or productive use
of land,” the interference categorically amounts to a tak­
ing. Lucas v. South Carolina Coastal Council, 505 U.S.
1003, 1015 (1992). For the vast array of regulations that
lack such an extreme effect, a flexible approach is more
fitting. The factors to consider are wide ranging, and
include the economic impact of the regulation, the owner’s
investment-backed expectations, and the character of the
government action. The ultimate question is whether the
government’s imposition on a property has forced the
owner “to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” Penn
Central Transp. Co. v. New York City, 438 U.S. 104, 123
(1978) (internal quotation marks omitted).
Finally, if a taking has occurred, the remaining matter
is tabulating the “just compensation” to which the property
owner is entitled. “[J]ust compensation normally is to
be measured by the market value of the property at the
time of the taking.” Horne, 576 U. S., at ___ (slip op., at
15) (internal quotation marks omitted).
B
Because a regulation amounts to a taking if it completely
destroys a property’s productive use, there is an incen­
tive for owners to define the relevant “private property”
narrowly. This incentive threatens the careful balance
Cite as: 582 U. S. ____ (2017) 5
ROBERTS, C. J., dissenting
between property rights and government authority that
our regulatory takings doctrine strikes: Put in terms of the
familiar “bundle” analogy, each “strand” in the bundle of
rights that comes along with owning real property is a
distinct property interest. If owners could define the
relevant “private property” at issue as the specific “strand”
that the challenged regulation affects, they could convert
nearly all regulations into per se takings.
And so we do not allow it. In Penn Central Transporta-
tion Co. v. New York City, we held that property owners
may not “establish a ‘taking’ simply by showing that they
have been denied the ability to exploit a property inter­
est.” 438 U.S., at 130. In that case, the owner of Grand
Central Terminal in New York City argued that a re­
striction on the owner’s ability to add an office building
atop the station amounted to a taking of its air rights. We
rejected that narrow definition of the “property” at issue,
concluding that the correct unit of analysis was the own­
er’s “rights in the parcel as a whole.” Id., at 130–131.
“[W]here an owner possesses a full ‘bundle’ of property
rights, the destruction of one strand of the bundle is not a
taking, because the aggregate must be viewed in its en­
tirety.” Andrus v. Allard, 444 U.S. 51, 65–66 (1979); see
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional
Planning Agency, 535 U.S. 302, 327 (2002).
The question presented in today’s case concerns the
“parcel as a whole” language from Penn Central. This
enigmatic phrase has created confusion about how to
identify the relevant property in a regulatory takings case
when the claimant owns more than one plot of land.
Should the impact of the regulation be evaluated with
respect to each individual plot, or with respect to adjacent
plots grouped together as one unit? According to the
majority, a court should answer this question by consider­
ing a number of facts about the land and the regulation at
issue. The end result turns on whether those factors
6 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
“would lead a landowner to anticipate that his holdings
would be treated as one parcel, or, instead, as separate
tracts.” Ante, at 12.
I think the answer is far more straightforward: State
laws define the boundaries of distinct units of land, and
those boundaries should, in all but the most exceptional
circumstances, determine the parcel at issue. Even in
regulatory takings cases, the first step of the Takings
Clause analysis is still to identify the relevant “private
property.” States create property rights with respect to
particular “things.” And in the context of real property,
those “things” are horizontally bounded plots of land.
Tahoe-Sierra, 535 U.S., at 331 (“An interest in real prop­
erty is defined by the metes and bounds that describe its
geographic dimensions”). States may define those plots
differently—some using metes and bounds, others using
government surveys, recorded plats, or subdivision maps.
See 11 D. Thomas, Thompson on Real Property §94.07(s)
(2d ed. 2002); Powell on Real Property §81A.05(2)(a) (M.
Wolf ed. 2016). But the definition of property draws the
basic line between, as P. G. Wodehouse would put it,
meum and tuum. The question of who owns what is pretty
important: The rules must provide a readily ascertainable
definition of the land to which a particular bundle of
rights attaches that does not vary depending upon the
purpose at issue. See, e.g., Wis. Stat. §236.28 (2016)
(“[T]he lots in [a] plat shall be described by the name of
the plat and the lot and block . . . for all purposes, includ­
ing those of assessment, taxation, devise, descent and
conveyance”).
Following state property lines is also entirely consistent
with Penn Central. Requiring consideration of the “parcel
as a whole” is a response to the risk that owners will
strategically pluck one strand from their bundle of property
rights—such as the air rights at issue in Penn Central—
and claim a complete taking based on that strand alone.
Cite as: 582 U. S. ____ (2017) 7
ROBERTS, C. J., dissenting
That risk of strategic unbundling is not present when a
legally distinct parcel is the basis of the regulatory takings
claim. State law defines all of the interests that come
along with owning a particular parcel, and both property
owners and the government must take those rights as they
find them.
The majority envisions that relying on state law will
create other opportunities for “gamesmanship” by land­
owners and States: The former, it contends, “might seek to
alter [lot] lines in anticipation of regulation,” while the
latter might pass a law that “consolidates . . . property” to
avoid a successful takings claim. Ante, at 11, 17. But
such obvious attempts to alter the legal landscape in
anticipation of a lawsuit are unlikely and not particularly
difficult to detect and disarm. We rejected the strategic
splitting of property rights in Penn Central, and courts
could do the same if faced with an attempt to create a
takings-specific definition of “private property.” Cf. Phil-
lips v. Washington Legal Foundation, 524 U.S. 156, 167
(1998) (“[A] State may not sidestep the Takings Clause by
disavowing traditional property interests long recognized
under state law”).
Once the relevant property is identified, the real work
begins. To decide whether the regulation at issue
amounts to a “taking,” courts should focus on the effect of
the regulation on the “private property” at issue. Adjacent
land under common ownership may be relevant to that
inquiry. The owner’s possession of such a nearby lot could,
for instance, shed light on how the owner reasonably
expected to use the parcel at issue before the regulation.
If the court concludes that the government’s action
amounts to a taking, principles of “just compensation” may
also allow the owner to recover damages “with regard to a
separate parcel” that is contiguous and used in conjunc­
tion with the parcel at issue. 4A L. Smith & M. Hansen,
Nichols’ Law of Eminent Domain, ch. 14B, §14B.02 (rev.
8 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
3d ed. 2010).
In sum, the “parcel as a whole” requirement prevents a
property owner from identifying a single “strand” in his
bundle of property rights and claiming that interest has
been taken. Allowing that strategic approach to defining
“private property” would undermine the balance struck by
our regulatory takings cases. Instead, state law creates
distinct parcels of land and defines the rights that come
along with owning those parcels. Those established bun­
dles of rights should define the “private property” in regu­
latory takings cases. While ownership of contiguous prop­
erties may bear on whether a person’s plot has been
“taken,” Penn Central provides no basis for disregarding
state property lines when identifying the “parcel as a
whole.”
II
The lesson that the majority draws from Penn Central is
that defining “the proper parcel in regulatory takings
cases cannot be solved by any simple test.” Ante, at 20.
Following through on that stand against simplicity, the
majority lists a complex set of factors theoretically de­
signed to reveal whether a hypothetical landowner might
expect that his property “would be treated as one parcel,
or, instead, as separate tracts.” Ante, at 11. Those factors,
says the majority, show that Lots E and F of the Murrs’
property constitute a single parcel and that the local
ordinance requiring the Murrs to develop and sell those
lots as a pair does not constitute a taking.
In deciding that Lots E and F are a single parcel, the
majority focuses on the importance of the ordinance at
issue and the extent to which the Murrs may have been
especially surprised, or unduly harmed, by the application
of that ordinance to their property. But these issues
should be considered when deciding if a regulation consti­
tutes a “taking.” Cramming them into the definition of
Cite as: 582 U. S. ____ (2017) 9
ROBERTS, C. J., dissenting
“private property” undermines the effectiveness of the
Takings Clause as a check on the government’s power to
shift the cost of public life onto private individuals.
The problem begins when the majority loses track of the
basic structure of claims under the Takings Clause. While
it is true that we have referred to regulatory takings
claims as involving “essentially ad hoc, factual inquiries,”
we have conducted those wide-ranging investigations
when assessing “the question of what constitutes a ‘tak-
ing’ ” under Penn Central. Ruckelshaus, 467 U.S., at 1004
(emphasis added); see Tahoe-Sierra, 535 U.S., at 326
(“[W]e have generally eschewed any set formula for de­
termining how far is too far” (emphasis added; internal
quotation marks omitted)). And even then, we reach that
“ad hoc” Penn Central framework only after determining
that the regulation did not deny all productive use of the
parcel. See Tahoe-Sierra, 535 U.S., at 331. Both of these
inquiries presuppose that the relevant “private property”
has already been identified. See Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264, 295
(1981) (explaining that “[t]hese ‘ad hoc, factual inquiries’
must be conducted with respect to specific property”).
There is a simple reason why the majority does not cite a
single instance in which we have made that identification
by relying on anything other than state property princi­
ples—we have never done so.
In departing from state property principles, the majority
authorizes governments to do precisely what we rejected
in Penn Central: create a litigation-specific definition of
“property” designed for a claim under the Takings Clause.
Whenever possible, governments in regulatory takings
cases will ask courts to aggregate legally distinct proper­
ties into one “parcel,” solely for purposes of resisting a
particular claim. And under the majority’s test, identify­
ing the “parcel as a whole” in such cases will turn on the
reasonableness of the regulation as applied to the claim­
10 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
ant. The result is that the government’s regulatory inter­
ests will come into play not once, but twice—first when
identifying the relevant parcel, and again when determin­
ing whether the regulation has placed too great a public
burden on that property.
Regulatory takings, however—by their very nature—pit
the common good against the interests of a few. There is
an inherent imbalance in that clash of interests. The
widespread benefits of a regulation will often appear far
weightier than the isolated losses suffered by individuals.
And looking at the bigger picture, the overall societal good
of an economic system grounded on private property will
appear abstract when cast against a concrete regulatory
problem. In the face of this imbalance, the Takings Clause
“prevents the public from loading upon one individual
more than his just share of the burdens of government,”
Monongahela Nav. Co. v. United States, 148 U.S. 312, 325
(1893), by considering the effect of a regulation on specific
property rights as they are established at state law. But
the majority’s approach undermines that protection, defin­
ing 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 regu­
lation goes “too far” even gets underway.
Suppose, for example, that a person buys two distinct
plots of land—known as Lots A and B—from two different
owners. Lot A is landlocked, but the neighboring Lot B
shares a border with a local beach. It soon comes to light,
however, that the beach is a nesting habitat for a species
of turtle. To protect this species, the state government
passes a regulation preventing any development or recrea­
tion in areas abutting the beach—including Lot B. If that
lot became the subject of a regulatory takings claim, the
purchaser would have a strong case for a per se taking:
Even accounting for the owner’s possession of the other
Cite as: 582 U. S. ____ (2017) 11
ROBERTS, C. J., dissenting
property, Lot B had no remaining economic value or pro­
ductive use. But under the majority’s approach, the gov­
ernment can argue that—based on all the circumstances
and the nature of the regulation—Lots A and B should be
considered one “parcel.” If that argument succeeds, the
owner’s per se takings claim is gone, and he is left to roll
the dice under the Penn Central balancing framework,
where the court will, for a second time, throw the reason-
ableness of the government’s regulatory action into the
balance.
The majority assures that, under its test, “[d]efining the
property . . . should not necessarily preordain the outcome
in every case.” Ante, at 10 (emphasis added). The under­
scored language cheapens the assurance. The framework
laid out today provides little guidance for identifying
whether “expectations about property ownership would
lead a landowner to anticipate that his holdings would be
treated as one parcel, or, instead, as separate tracts.”
Ante, at 12. Instead, the majority’s approach will lead to
definitions of the “parcel” that have far more to do with
the reasonableness of applying the challenged regulation
to a particular landowner. The result is clear double
counting to tip the scales in favor of the government:
Reasonable government regulation should have been
anticipated by the landowner, so the relevant parcel is
defined consistent with that regulation. In deciding
whether there is a taking under the second step of the
analysis, the regulation will seem eminently reasonable
given its impact on the pre-packaged parcel. Not, as the
Court assures us, “necessarily” in “every” case, but surely
in most.
Moreover, given its focus on the particular challenged
regulation, the majority’s approach must mean that two
lots might be a single “parcel” for one takings claim, but
separate “parcels” for another. See ante, at 13. This is
just another opportunity to gerrymander the definition of
12 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
“private property” to defeat a takings claim. The majority
also emphasizes that courts trying to identify the relevant
parcel “must strive” to ensure that “some people alone [do
not] bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.” Ante, at 20
(internal quotation marks omitted). But this refrain is the
traditional touchstone for spotting a taking, not for defin­
ing private property.
Put simply, today’s decision knocks the definition of
“private property” loose from its foundation on stable state
law rules and throws it into the maelstrom of multiple
factors that come into play at the second step of the tak­
ings analysis. The result: The majority’s new framework
compromises the Takings Clause as a barrier between
individuals and the press of the public interest.
III
Staying with a state law approach to defining “private
property” would make our job in this case fairly easy. The
Murr siblings acquired Lot F in 1994 and Lot E a year
later. Once the lots fell into common ownership, the chal­
lenged ordinance prevented them from being “sold or
developed as separate lots” because neither contained a
sufficiently large area of buildable land. Wis. Admin.
Code §NR 118.08(4)(a)(2). The Murrs argued that the
ordinance amounted to a taking of Lot E, but the State of
Wisconsin and St. Croix County proposed that both lots
together should count as the relevant “parcel.”
The trial court sided with the State and County, and the
Wisconsin Court of Appeals affirmed. Rather than consid­
ering whether Lots E and F are separate parcels under
Wisconsin law, however, the Court of Appeals adopted a
takings-specific approach to defining the relevant parcel.
See 2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628
(unpublished opinion), App. to Pet. for Cert. A–9, ¶17
(framing the issue as “whether contiguous property is
Cite as: 582 U. S. ____ (2017) 13
ROBERTS, C. J., dissenting
analytically divisible for purposes of a regulatory takings
claim”). Relying on what it called a “well-established rule”
for “regulatory takings cases,” the court explained “that
contiguous property under common ownership is consid­
ered as a whole regardless of the number of parcels con­
tained therein.” Id., at A–11, ¶20. And because Lots E
and F were side by side and owned by the Murrs, the case
was straightforward: The two lots were one “parcel” for
the regulatory takings analysis. The court therefore eval­
uated the effect of the ordinance on the two lots considered
together.
As I see it, the Wisconsin Court of Appeals was wrong to
apply a takings-specific definition of the property at issue.
Instead, the court should have asked whether, under
general state law principles, Lots E and F are legally
distinct parcels of land. I would therefore vacate the
judgment below and remand for the court to identify the
relevant property using ordinary principles of Wisconsin
property law.
After making that state law determination, the next
step would be to determine whether the challenged ordi­
nance amounts to a “taking.” If Lot E is a legally distinct
parcel under state law, the Court of Appeals would have to
perform the takings analysis anew, but could still consider
many of the issues the majority finds important. The
majority, for instance, notes that under the ordinance the
Murrs can use Lot E as “recreational space,” as the “loca­
tion of any improvements,” and as a valuable addition to
Lot F. Ante, at 18. These facts could be relevant to
whether the “regulation denies all economically beneficial
or productive use” of Lot E. Lucas, 505 U.S., at 1015.
Similarly, the majority touts the benefits of the ordinance
and observes that the Murrs had little use for Lot E inde­
pendent of Lot F and could have predicted that Lot E
would be regulated. Ante, at 18. These facts speak to “the
economic impact of the regulation,” interference with
14 MURR v. WISCONSIN
ROBERTS, C. J., dissenting
“investment-backed expectations,” and the “character of
the governmental action”—all things we traditionally
consider in the Penn Central analysis. 438 U.S., at 124.
I would be careful, however, to confine these considera­
tions to the question whether the regulation constitutes a
taking. As Alexander Hamilton explained, “the security of
Property” is one of the “great object[s] of government.” 1
Records of the Federal Convention of 1787, p. 302 (M.
Farrand ed. 1911). The Takings Clause was adopted to
ensure such security by protecting property rights as they
exist under state law. Deciding whether a regulation has
gone so far as to constitute a “taking” of one of those prop­
erty rights is, properly enough, a fact-intensive task that
relies “as much on the exercise of judgment as on the
application of logic.” MacDonald, Sommer & Frates v.
Yolo County, 477 U.S. 340, 349 (1986) (alterations and
internal quotation marks omitted). But basing the defini­
tion of “property” on a judgment call, too, allows the gov­
ernment’s interests to warp the private rights that the
Takings Clause is supposed to secure.
I respectfully dissent.
Cite as: 582 U. S. ____ (2017) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–214
_________________
JOSEPH P. MURR, ET AL., PETITIONERS v.
WISCONSIN, ET AL.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
WISCONSIN, DISTRICT III
[June 23, 2017]
JUSTICE THOMAS, dissenting.
I join THE CHIEF JUSTICE’s dissent because it correctly
applies this Court’s regulatory takings precedents, which
no party has asked us to reconsider. The Court, however,
has never purported to ground those precedents in the
Constitution as it was originally understood. In Pennsyl-
vania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), the
Court announced a “general rule” that “if regulation goes
too far it will be recognized as a taking.” But we have
since observed that, prior to Mahon, “it was generally
thought that the Takings Clause reached only a ‘direct
appropriation’ of property, Legal Tender Cases, 12 Wall.
457, 551 (1871), or the functional equivalent of a ‘practical
ouster of [the owner’s] possession,’ Transportation Co. v.
Chicago, 99 U.S. 635, 642 (1879).” Lucas v. South Carolina
Coastal Council, 505 U.S. 1003, 1014 (1992). In my view,
it would be desirable for us to take a fresh look at our
regulatory takings jurisprudence, to see whether it can be
grounded in the original public meaning of the Takings
Clause of the Fifth Amendment or the Privileges or Im-
munities Clause of the Fourteenth Amendment. See
generally Rappaport, Originalism and Regulatory Tak-
ings: Why the Fifth Amendment May Not Protect Against
Regulatory Takings, but the Fourteenth Amendment May,
45 San Diego L. Rev. 729 (2008) (describing the debate
among scholars over those questions).