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Family delighted that property rights dispute gets U.S. Supreme Court hearing

posted Jan. 26, 2016 12:00 a.m. (CDT)
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by / Chuck Rupnow. bio | email

  • con_Murr_2_012716-1
    Contributed photo | Enlarge
    - This cabin and property along the banks of the Lower St. Croix River near Hudson will be the topic of discussion at the U.S. Supreme Court after justices recently agreed to hear a case regarding a St. Croix County ordinance restricting sale of a vacant lot.
  • con_Murr_012716
    Contributed photo | Enlarge
    - Members of the Murr family pose for this photo near their Lower St. Croix River property that is part of a case going before the U.S. Supreme Court.
  • Murr_Donna_012716
    Murr

Donna Murr of Eau Claire can’t wait to witness a U.S. Supreme Court hearing regarding her family’s lengthy property rights civil case in St. Croix County.

The land’s highest court recently announced it will hear the Murr v. State of Wisconsin and St. Croix County case.

“My dream is to fly out and listen to our attorneys argue before the U.S. Supreme Court, and I will pinch myself that it is really happening,” Murr said Monday. “Nobody granted review through our state courts, but now, by the luck of God, the U.S. Supreme Court is going to review it.

“Odds of our case being reviewed are so slim,” Murr said, noting that the court has thousands of cases a year to consider for review but hears only about 80. “It’s quite amazing and it’s quite a ride to say the least for what we have ahead of us.”

The Murr family claims St. Croix County took its Lower St. Croix River frontage property without compensation, a violation of the Fifth Amendment’s Takings Clause.

William and Margaret Murr bought a 1¼-acre riverfront lot in 1960 and built a three-bedroom cabin. Three years later they purchased an adjacent 1¼-acre lot with 100 feet of frontage for investment purposes. About 30 years later, the couple gifted the properties to their children. In 2004, the family contacted the county about selling the vacant lot to help finance remodeling of the cabin, which had deteriorated, in part by being flooded five times.

County ordinances call for properties to have at least an acre of buildable area, but the vacant lot and cabin lot together had only an acre because of slope, wetlands and other deductions, according to court documents.

The state Department of Natural Resources and county denied the family’s request for special exceptions and variances, citing, in part, the National Wild and Scenic Rivers Act, which protects that section of the river.

New land use regulations in 1976 limited development but did have a “grandfather clause” that allows development of substandard lots, but that clause only applies to abutting lots of separate ownership. The Murrs’ lots are considered common ownership and cannot be sold or developed as separate parcels.

Claim rejected

St. Croix County Judge Scott Needham in November 2013 and the state’s 3rd District Court of Appeals in December 2014 rejected the Murrs’ claim for regulatory taking of property. The state Supreme Court in April denied a petition to consider the case.

The appellate court said the combination of the ordinance and combined buildable area of the two lots does not restrict the Murrs from constructing a new residence or renovating the existing one, adding: “the Murrs’ property, viewed as a whole, retains beneficial and practical use as a residential lot. Accordingly, we conclude they have not alleged a compensable taking as a matter of law.”

“All along we were receiving a property tax statement for that land, land that the county assessed as buildable property,” Murr said about the vacant land. “It was assessed at $400,000 and we paid $4,000 to $6,000 a year on it and didn’t think twice about it, because that’s what we were told it was worth.”

It wasn’t until the Murrs contacted the county about selling the land that they were told of the ordinance change.

“An assessor told us then that the extra land was basically worth about $40,000, meaning we lost $360,000 in value because of the ordinance change,” Murr said. “If you do the math, since we owned the property, we paid $78,000 more in taxes than we should have. It just seems so unfair. If we hadn’t gone in, they’d still be assessing us. They told us it was our job to know about the ordinance.”

Near the time that the state Supreme Court was determining whether to review the case, the Murrs’ attorney, Mike Waterman of Hudson, was appointed St. Croix County judge.

“We wondered, what do we do now? We didn’t know if we had a claim on the federal level, so we decided to pursue the wonders of the Internet to see if we could find an expert on property rights,” Murr said, adding that the family found one in Oregon, who referred the family to Pacific Legal Foundation.

“Once we spoke with them they had immediate interest in our case,” Murr said, adding that PLF is handling the case at no charge. “They said they’d been looking for a case like this for years. We found each other in a time of need.”

“We’re challenging a practice that is all too common among land use regulators, where they tell a landowner she can’t use her property, based on the excuse that she also happens to own a neighboring parcel,” PLF attorney John Groen said in a news release. “In other words, bureaucrats will treat two legally distinct parcels as if they were one unified parcel so they can prohibit all development on one of the parcels without providing compensation as required by the Fifth Amendment.

“As we will argue to the Supreme Court, this kind of regulatory sleight of hand cannot be permitted if the Constitution’s Taking Clause is to be respected,” he said.

Milwaukee attorney Remzy Bitar, representing the county, said in court documents that a significant loss in value to the whole parcel (both lots) would need to be proven to show government taking. County records claim the loss would be less than 10 percent.

Case was relisted

The Murr case was relisted about five times, meaning the Supreme Court justices repeatedly put it on a list of cases to continue considering for review.

“It gave us a lot of hope when we kept getting relisted,” Murr said. “Then, to all of our amazement and shock, they took it. I couldn’t believe it for three days; then after that, I was just excited.”

Murr, the youngest of six children surviving their parents, said the 950-square-foot cabin below a 130-foot bluff “is very dear for all of us. We do our best to keep and maintain it. I know my dad would be fighting for it, so we are too. It feels like such a violation of our property rights. Now, we’ll see if the highest court in the land agrees with us or the state.”

Contact: 715-830-5831, chuck.rupnow@ecpc.com, @crupnow on Twitter