Academic journal article The William and Mary Bill of Rights Journal

The Superior Solution to the "Denominator Problem"-Comparing the Majority and Dissent's Property Benchmark Tests in Murr V. Wisconsin with a Focus on Property Owners' Reasonable Expectations

Academic journal article The William and Mary Bill of Rights Journal

The Superior Solution to the "Denominator Problem"-Comparing the Majority and Dissent's Property Benchmark Tests in Murr V. Wisconsin with a Focus on Property Owners' Reasonable Expectations

Article excerpt

INTRODUCTION

On June 23, 2017, the United States Supreme Court, in a 5-3 decision-Murr v. Wisconsin-set out a multifactor balancing test intended to resolve the "denominator problem" in regulatory takings cases involving real property. The denominator problem asks how the pertinent parcel of land should be defined when deciding whether a regulatory taking has occurred. The dissenting opinion, written by Justice Roberts and joined by Justices Thomas and Alito, protested the unnecessary complexity of the majority's test. Fearing its potential ramifications on property rights, the dissent set out an alternative, straightforward solution. While both the majority and dissent's tests would have arrived at the same holding-ruling against the Murr family and in favor of St. Croix County-their solutions as to how the denominator question should be answered are markedly different. This difference is especially pronounced when comparing the tests' potential to achieve denominators in agreement with property owners' reasonable expectations.

The Murr majority opinion, written by Justice Kennedy, offered three specific considerations to weigh when defining the denominator: "[(1)] the treatment of the land under state and local law; [(2)] the physical characteristics ofthe land; and [(3)] the prospective value of the regulated land."1 The Justices further elucidated:

The endeavor [(with respect to the denominator inquiry)] should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of [the federal] legal tradition.2

The language of this additional explication closely resembles Justice Scalia's proposed solution to the denominator problem, as per his recommendation in footnote seven of Lucas v. South Carolina Coastal Council:

The answer to this difficult [denominator] question may lie in how the owner's reasonable expectations have been shaped by the State's law ofproperty-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.3

In the final paragraph of the Murr opinion, Kennedy again writes: "Courts must instead define the parcel [(the denominator)] in a manner that reflects reasonable expectations about the property."4 Despite such unambiguous statements, however, it is difficult to imagine how a court balancing the three enumerated factors would always yield a denominator in agreement with property owners' reasonable expectations. Instead, a simpler, bright-line solution-one consistent with state law property boundaries and immune from excessive discretion by courts-like that proposed by the Murr dissent-and serving as the first of three factors enumerated by the majority- would be better equipped to serve such a purpose.

Despite the majority's obvious attempt to achieve fair outcomes through the use of its multifactor balancing test, fairness may be better served through simplicity and predictability. Accordingly, the dissent's test-which defines the denominator by looking exclusively to state law-offers a superior solution with respect to attaining denominators in agreement with property owners' reasonable expectations. In consequence, the dissent's solution affords future regulatory takings plaintiffs a less malleable definition of their property, and with such increased predictability, property owners can better anticipate the likelihood of their takings claims' success.

The purpose of this Note is to compare the Murr majority's and Murr dissent's different solutions to the denominator problem with a particular emphasis on their capacities to achieve denominators in agreement with property owners' reasonable expectations. …

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