Wisconsin Lawmakers Pass Bill to Protect Property Rights, Reverse Supreme Court Decision

The U.S. Supreme Court said local regulators could treat two lots owned by the same family as if they were a single parcel. A new law aims to stop that.


Henryk Sadura Tetra Images/Newscom

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."

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."

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  1. Ilya Somin, a professor of law at George Mason University, warned that the ruling is “likely to create confusion and uncertainty.”

    Unlike any other ruling or law.

  2. This is an excellent defense against regulatory taking, I hope more states implement this. Property rights are so diminished in this country by state and local regulations and artificially supported prices that it’s killed the American dream.

    1. The government defending property rights?
      In my America?

      It’s more likely than you think.

      Good job, Wisconsin, and may the Packers fail consistently.

  3. You should be able to sell any square foot of your property to anyone you want.

      1. Especially Russians!

        1. Well, the hot ones.

            1. Hmm. Not what I had in mind.

  4. This is a good reminder that even the worst Supreme Court decisions usually say the state can do something not that they must do something. People have become too reliant on our robed overlords for protecting their liberty. The best solution to most problems is to elect a government that protects liberty in the first place. Hoping the courts stop a bad government is the last resort and a very unreliable means of protecting your liberty.

  5. Just when you though federalism was dead.

  6. So…a reverse nut-punch?

  7. Awesome news. Go fuck yourself, Anthony Kennedy!

    1. I so hope that old goat finally retires this spring. Replacing that old bastard with someone better would not be hard and represent a tremendous improvement in the Court. And if the Notorious RBG would finally keel over, you could double the chances of improving the court.

  8. Firth Amendment’s Takings Clause.

    Is that like the first, fourth, and fifth all rolled into one? Or did Colin create it?

  9. I think the sad thing is that something as basic and ubiquitous as land ownership is something that the state needs to protect against the encroachment of the FedGov, but hey that’s just me.

  10. That Supreme Court ruling was one of those that makes me wonder what the point is of even trying to write simple legal language. It’s too damned easy to twist language to whatever end you want. Like the Second Amendment — what does “shall not be infringed” mean when so many ordinary guns can be banned, or bearing arms can be banned in so many places?

    I have no good solution. If the Fifth Amendment said that government must compensate for all the value it takes out of property, even if that were scrupulously upheld, some wise ass would demand compensation from property owners when government actions increase property values.

    About all I can think of is that questions of defective laws must be judged by juries, not judges; who cares what professional quibblers and co-statists think? Let ordinary people make that decision.

    1. The living constitution givest and the living constitution taketh away. If you want your gay marriage read into the 14th Amendment, then you better understand that someone else is going to want their pony read into some other Amendment. And their pony may not be your pony.

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