Agenda - Planning Commission - 03/05/2015

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February 10, 2015 1 Volume 9 ( Issue 3 Zoning Bulletin The circuit court held that there was no taking here because the Murrs' property, taken as a whole, could be used for residential purposes, among other things. DECISION: Judgment of circuit court affirmed. Agreeing with the circuit court, the Court of Appeals of Washington held that the Murrs' takings claim failed on its merits as a matter of law. The court explained that federal and state constitutions do not prohibit the taking of private property for public use, but they do require that the government provide just compensation for any taking. The court further explained that under Wis. Stat. § 32.10, in the absence of physical occupa- tion, in order to amount to a compensatory taking, the facts alleged must demonstrate that a government restriction "deprives the owner of all, or substantially all, of the beneficial use of his property." Here, the Murrs had alleged that the Ordinance (a government regula- tion) effectively was a taking of their property because it deprived them of all, or substantially all, of the beneficial use of their property. The Murry had argued that the circuit court erred when examining the beneficial uses of Lots E and F in combination. Rather, the Murrs insisted that they were entitled to compensation for the taking of Lot E, which now could not be sold separately and therefore "ha[d] no value." The appellate court rejected the Murrs' argument. It pointed to a "well- established rule that contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein." Focusing on the Murrs' property as a whole (Lot E and Lot F combined), the court found it clear that the Murrs' could not establish a compensable talcing. The property sufficed as a single, buildable lot under the Ordinance. The Murrs could continue to use their property for residen- tial purposes, including the ability to use Lot E for such purposes (such as by razing the cabin on Lot F and building a new residence on Lot E or a new residence straddling both lots). The court found that the "Murrs' abil- ity to use Lot E for residential purposes, standing alone, was a significant and valuable use of the property." Accordingly, the court concluded that the Murry had not been denied "all or substantially all practical uses[ ]" of their property and thus failed to establish a takings claim. See also: Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N. W 2d 528, 42 Env't. Rep. Cas. (BNA) 2179 (1996). See also: Howell Plaza, Inc. v. State Highway Commission, 66 Wis. 2d 720, 226N.W.2d 185 (1975). Case Note: Although the circuit court had ruled on the merits of the Murrs' claim, it had also concluded that the Murrs' claim was time barred. Having held as it did on the merits, the appellate court did not address that issue, but assumed without decid- ing, that the claim was time barred. 6 © 2015 Thomson Reuters