Lawmakers in Wisconsin passed a property rights bill yesterday that effectively overturns a controversial decision made earlier this year by the U.S. Supreme Court. The so-called "Homeowners Bill of Rights" is now headed to Gov. Scott Walker.
A key element of the package would broaden the legal protections for landowners who have "substandard lots"—parcels of land that once fit within zoning regulations but no longer do. Five months ago, the Supreme Court ruled in Murr v. St. Croix County that local regulators could effectively treat two neighboring lots owned by the same family as if they were a single parcel of property. "The bill changes that by making it possible to "grandfather" lots that were purchased under discarded regulatory regimes."
The bill is meant to "make sure that when people buy property, and they have expectations related to that property, that those expectations do not change over time," says state Rep. Adam Jarchow (R–Balsam Lake), who sponsored the legislation. "And their rights are not taken away because of changing rules or regulations over time."
— MacIver Institute (@MacIverWisc) November 7, 2017
That's what happened to the Murrs, the Wisconsin family at the heart of the Supreme Court decision. They bought two parcels of land along the St. Croix River in the 1960s. In 2004 they tried to sell one of the parcels to pay for repairs to the cabin which sits on the other, but local regulators told them that the two parcels were in violation of zoning changes made in 1975. Selling one of the parcels, therefore, was illegal—the family had to sell either both or neither.
It took nearly a decade for the case to work its way to the Supreme Court. Though it was a dispute over less than three acres of land, it had significant legal ramifications for western states in particular, because they contain wide swaths of federal land and have to deal with ever-changing regulations about how that land can be used. (The Reason Foundation, which publishes this blog, submitted an amicus brief to the Supreme Court in support of the Murrs' claim.)
The Supreme Court ruled 5–3 against the Murrs. "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," Justice Anthony Kennedy wrote in the majority opinion.
In a scathing dissent, Chief Justice John Roberts called the ruling a blow to property rights, saying it would give bureaucrats greater power to pass rules that diminish a property's value without having to compensate the owners under the Firth Amendment's Takings Clause.
"Put simply, today's decision knocks the definition of 'private property' loose from its foundation on stable state law rules," Roberts wrote. The ruling "compromises the Takings Clause as a barrier between individuals and the press of the public interest."
Ilya Somin, a professor of law at George Mason University, warned that the ruling is "likely to create confusion and uncertainty."
At least that won't be the case in Wisconsin anymore. State lawmakers played their proper role by responding quickly to what they saw as a miscarriage of justice and changed the law to correct the problem. All that remains is a signature from the governor.
The bill passed Tuesday would also make it easier for landowners to use their property for activities that don't strictly fit within existing zoning codes. It also clarifies that local or state government entities must pay compensation for so-called "regulatory takings," when zoning or other laws make land less usable. That was an aspect of the Murr case too, since the family wanted to be compensated for losing the ability to sell just one of their two parcels of land.
John Groen, executive vice president of the Pacific Legal Foundation, a libertarian law firm that represented the Murrs before the Supreme Court, applauded the votes on Tuesday.
"Whether through the courts or the legislature, securing individual rights in property is fundamental to liberty," Groen said in a statement provided to Reason. "Today's action advances liberty."