The confluence of the St. Croix, top, and Mississippi Rivers, bottom, is seen from the air on May 31, 2012.
"Whenever possible, governments in regulatory takings cases will ask courts to aggregate legally distinct properties into one 'parcel, ' exclusively for purposes of resisting a particular claim", he wrote.
As its current term nears its end, eight Supreme Court Justices will try to define an important test first posed by Justice William Brennan almost 40 years ago about property rights. At the same time, cities and states have sought to manage urban sprawl, water pollution, flooding and other problems, by enacting regulations to limit what some property owners can do with their land.
The 5-3 ruling involved the family's effort to sell part of its land along the scenic St. Croix River.
The frustration to the Murrs was that someone who had owned a single lot dating to before the regulations would still be allowed to build on it. "Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account", he wrote.
The Murrs' parents transferred both lots to them in 1994 and 1995. Solicitor Misha Tseytlin said that legal link exists between the two Murr properties and that's what combines them into one in the government's eye. "Considering petitioners' property as a whole, the state court was correct to conclude that petitioners can not establish a compensable taking in these circumstances".
While the Supreme Court has ruled that racial gerrymandering is prohibited under the 1965 Voting Rights Act, the widespread and bipartisan practice of drawing electoral districts to weaken the power of unfriendly voters, known as partisan gerrymandering, has resisted legal challenges.
"We are disappointed the court did not recognize the fundamental unfairness to the Murrs of having their separate properties combined, simply to avoid the protection of the Takings Clause", Groen said. The reargument vote among the Justices is private and little is known about the procedure.
Holmes made that statement in the very opinion that first established the concept of a regulatory taking. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.
Rath said political watchers should be careful about jumping to conclusions on a potential Kennedy replacement or even regarding newly minted Justice Neil Gorsuch, because no one knows for sure how they'll decide. In the end, he said, the loss in the value of the Murrs' land was only about 10 percent.
"The court declined to develop a "bright line" test or even a presumption as to what constitutes the "property" for purposes of a regulatory taking decision", said Janet Johnson, a veteran property lawyer at Schiff Hardin in Chicago. Courts must instead define the parcel in a manner that reflects reasonable expectations about the property.
For property rights advocates, the decision was a genuine blow.
Donna Murr, in a statement provided by the Pacific Legal Foundation, the libertarian law firm that represented the family in the case, said her family was disappointed by the result.
The Murrs wanted the government to pay what the vacant property is worth it was assessed at $400,000 since the regulations prevented them from building on it.
TOTENBERG: Harvard Law School's Richard Lazarus calls the decision a huge victory for government regulators and environmentalists.
Project Redmap, a 2010 Republican redistricting scheme, helped them "lock in" a ruling majority with a minority of votes. It is a "soup to nuts" win for the government, and environmentalists.
Kennedy was joined in the majority by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
"It is our hope that property owners across the country will learn from our experience and not take their property rights for granted".
The nine justices are due to rule in six cases, not including their decision expected in the coming days on whether to take up President Donald Trump's bid to revive his ban on travelers from six predominantly Muslim countries in which an emergency appeal is pending.