PLF lawyers filed a petition asking the U.S. Supreme Court to grant and hold the Washington state regulatory takings case, Kinderace v. City of Sammamish, pending its anticipated decision in Murr v. Wisconsin.
The Murr case, which was argued by PLF attorneys earlier this year, involves the so-called “relevant parcel” question. That threshold inquiry requires courts to identify the nature of the property at issue so that it can determine the scope of rights an individual had in a parcel of land before the government action diminished those rights—i.e., the “relevant parcel.” It sounds easy, and it should be, but it isn’t. In the decades since the Supreme Court, in Penn Central Transportation Co. v. New York City (1978), declared that a takings analysis focuses on the “parcel as a whole,” the lower courts have struggled with the concept, resulting in conflicting rules and inconsistent judgments.
A property owner’s rights in a given parcel of land should be obvious: they are established by title and by lawful zoning at the time of purchase. So, the owner of a parcel of residential-zoned property must be allowed to build a house on it. However, many jurisdictions have adopted rules allowing courts to consider a landowner’s other property interests beyond the metes and bounds of the subject lot. For example, in Murr, the Wisconsin combined a family’s interests in two adjacent and legally distinct lots, despite the fact that the Murrs had purchased at different times with the intent of building cabins on each parcel. By combining their interests in the two lots, the state was able to outright prohibit the construction of a cabin on a parcel zoned and purchased for such use without compensating the owner.
Washington courts used a similar logic to prohibit all lawful development without paying just compensation in Kinderace. In that case, Elliott Severson purchased a parcel of commercial-zoned property located among other commercial development along a busy street. At the time he bought the land, there was ample space to build a small restaurant or store while respecting all critical area restrictions. But, over the course of a few years, the city ratcheted up its critical areas regulations to the point that his property was rendered useless. And when it came time to pay for having taken the property, the city refused, reasoning that because Severson had been involved in developing neighboring properties in the past, he wasn’t deprived when the city refused to issue any approvals on his commercial-zoned (and taxed) property. The fact that he was left holding an undevelopable parcel of property didn’t matter.
That is not justice.
After the Washington Supreme Court denied review, PLF filed a petition for review with U.S. Supreme Court, asking it hold the case until it decides whether the “relevant parcel” inquiry, as set out in Penn Central, allows the court to combine an owner’s interests in two legally distinct, but previously commonly-owned, adjacent parcels when determining the extent of property that a court should consider when reviewing a regulatory takings claim. The petition argues that the U.S. Supreme Court has never endorsed such an aggregative approach to determining one’s property rights. To the contrary, the Court has consistently criticized such an approach, which only operates to dilute the real impact of regulation on any given parcel.