Murr v. State

• Decision Date: 23 December 2014
• Docket Number: No. 2013AP2828.,2013AP2828.
• Citation: 359 Wis.2d 675,859 N.W.2d 628 (Table)
• Parties: Joseph P. MURR, Michael W. Murr, Donna J. Murr and Peggy M. Heaver, Plaintiffs–Appellants, v. STATE of Wisconsin and St. Croix County, Defendants–Respondents.
• Court: Wisconsin Court of Appeals

359 Wis.2d 675

859 N.W.2d 628 (Table)

Joseph P. MURR, Michael W. Murr, Donna J. Murr and Peggy M. Heaver, Plaintiffs–Appellants

v.STATE of Wisconsin and St. Croix County, Defendants–Respondents.

No. 2013AP2828.

Court of Appeals of Wisconsin.

Dec. 23, 2014.

Opinion

¶ 1 PER CURIAM.

Joseph Murr, Michael Murr, Donna Murr and Peggy Heaver (collectively, the Murrs) appeal a judgment dismissing their regulatory takings claim upon motions for summary judgment by the State of Wisconsin and St. Croix County. We agree with the circuit court that the challenged regulatory action, an ordinance that effectively merged the Murrs' two adjacent, riparian lots for sale or development purposes, did not deprive the Murrs of all or substantially all practical use of their property. Accordingly, we affirm.

BACKGROUND

¶ 2 This appeal represents the second time the Murrs' dispute with the County over the use of their property has come before this court. In Murr v. St. Croix County Board of Adjustment, 2011 WI App 29, ¶¶ 1–2, 332 Wis.2d 172, 796 N.W.2d 837, we concluded the circuit court properly affirmed the County's denial of Donna Murr's request for a variance to separately sell or develop what are known as Lots E and F, two contiguous parcels on the St. Croix River .¹

¶ 3 Our earlier opinion sets forth the history of the property, which we briefly restate here. Furthermore, as this is an appeal from a decision granting summary judgment against the Murrs, we view all pertinent facts and reasonable inferences from those facts in the light most favorable to the Murrs. See Thomas ex rel. Gramling v. Mallett, 2005 WI 129, ¶ 4, 285 Wis.2d 236, 701 N.W.2d 523.

¶ 4 The Murrs' parents purchased Lot F in 1960. Murr, 332 Wis.2d 172, ¶ 4, 796 N.W.2d 837. They built a cabin near the river and transferred title to their plumbing company. Id. In 1963, the Murrs' parents purchased an adjacent lot, Lot E, which has remained vacant ever since. Id. The Murrs allege Lot E was purchased as an investment property, with the intention of developing it separate from Lot F or selling it to a third party.

¶ 5 The lots have a common topography. Each is bisected by a 130–foot bluff, but they are moderately level at the top and near the river. Id. Together, the lots contain approximately .98 acres of net project area.² Id. The Murrs' parents transferred Lot F to the Murrs in 1994, followed by Lot E in 1995.³ Id.

¶ 6 The 1995 transfer of Lot E brought the lots under common ownership and resulted in a merger of the two lots under St. Croix County, Wis., Code of Ordinances, Land Use & Dev., Subch. III.V, Lower St. Croix Riverway Overlay Dist. § 17.36I.4.a. (July 1, 2007) (the Ordinance), which has been in place since the mid–1970s. See State v. St. Croix Cnty., 2003 WI App 173, ¶ 4, 266 Wis.2d 498, 668 N.W.2d 743. The Ordinance prohibits the individual development or sale of adjacent, substandard lots under common ownership, unless an individual lot has at least one acre of net project area.⁴ However, if abutting, commonly owned lots do not each contain the minimum net project area, they together suffice as a single, buildable lot. Murr, 332 Wis.2d 172, ¶ 11 n. 9, 796 N.W.2d 837.

¶ 7 Years later, after repeated flooding, the Murrs decided to flood proof the cabin on Lot F and sell Lot E as a buildable lot. Among other things, the Murrs sought a variance to separately use or sell their two contiguous lots. Id., ¶ 5. The DNR and county zoning staff opposed the Murrs' application and, following a public hearing, the St. Croix County Board of Adjustment denied the application. Id., ¶ 6. The Murrs sought certiorari review and the circuit court affirmed the portion of the Board's decision relevant to this appeal. Id. On appeal, we agreed with the circuit court that the Board acted appropriately. Id., ¶ 2. The Wisconsin Supreme Court denied the Murrs' subsequent petition for review.

¶ 8 The Murrs then filed a complaint against the State and County pursuant to Wis. Stat. § 32.10,⁵ alleging that the Ordinance resulted in an uncompensated taking of their property under Wis. Const. art. I, § 13.⁶ The Murrs alleged that the Ordinance and the administrative code provision on which it was patterned, Wis. Admin. Code § NR 118.08(4) (Feb.2012), deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” They asserted Lot E could not be put to alternative uses like agriculture or commerce due to its size, location and steep terrain. Finally, they alleged the lot was usable only for a single-family residence, “and without the ability to sell or develop it the lot is rendered useless.”

¶ 9 The State and County separately sought summary judgment. Their motions essentially advanced the same arguments: the Murrs' claim was time barred; the Murrs failed to exhaust their administrative remedies; they had no protectable property right to sell a portion of their property; and they were not deprived of all or substantially all the beneficial use of their property.

¶ 10 The circuit court granted summary judgment to the County and State. The court first concluded the Murrs' claim was time barred, reasoning that the Ordinance “had immediate economic consequence[s]” when it was enacted. Despite this conclusion, the court also reached the merits of the Murrs' claim. It determined that the applicable law required it to analyze the effect of the Ordinance on the Murrs' property as a whole, not each lot individually. Accordingly, the court held there was no taking because the Murrs' property, taken as a whole, could be used for residential purposes, among other things. Specifically, the court noted the undisputed fact that, even under the Ordinance, “[a] year-round residence could be built on top of the bluff and the residence could be located entirely on Lot E, entirely on Lot F, or could straddle both lots.” Further, the court determined the Murrs' property—again, defined as Lots E and F combined—retained significant value, citing an appraisal opining that the merger decreased the property value by less than ten percent. The court denied a subsequent motion for reconsideration, and the Murrs now appeal.

DISCUSSION

¶ 11 We review a grant of summary judgment de novo, applying the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶ 6, 306 Wis.2d 513, 743 N.W.2d 843. Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”Wis. Stat. § 802.08(2). As the moving parties, the County and the State must show a defense that would defeat the Murrs' claim. See Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991).

¶ 12 The Murrs argue the circuit court erred for two reasons. First, they assert their claim is not time barred. They reason their claim was not ripe until their request for a variance was denied and they exhausted their appellate rights from that decision. Second, the Murrs argue the Ordinance deprived them of all, or substantially all, beneficial use of their property. We conclude the Murrs' takings claim fails on its merits as a matter of law. Accordingly, we do not reach the issue of whether their claim was timely filed and assume, without deciding, that it was. See Raasch v. City of Milwaukee, 2008 WI App 54, ¶ 2, 310 Wis.2d 230, 750 N.W.2d 492 (citing Gross v. Hoffman, 227 Wis. 296, 299–300, 277 N.W. 663 (1938) ) (where one issue is dispositive, we need not address other issues).

¶ 13 The federal and state constitutions do not prohibit the taking of private property for public use, but they do require that the government provide just compensation for any taking. 260 N. 12th St., LLC v. DOT, 2011 WI 103, ¶ 43, 338 Wis.2d 34, 808 N.W.2d 372.⁷ “A ‘taking’ need not arise from an actual physical occupation of land by the government.” Eberle v. Dane Cnty. Bd. of Adjustment, 227 Wis.2d 609, 621, 595 N.W.2d 730 (1999). A “taking” can also occur if the government enacts a regulation “that is ‘so onerous that its effect is tantamount to a direct appropriation.’ ” E–L Enters., Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶ 22, 326 Wis.2d 82, 785 N.W.2d 409 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005) ). The Murrs allege the latter type of taking—a regulatory or constructive taking—occurred here. Whether the Ordinance constituted a taking of the Murrs' property without compensation is a question of law. See Zealy v. City of Waukesha, 201 Wis.2d 365, 372, 548 N.W.2d 528 (1996).

¶ 14 A landowner who believes the government has taken his or her property without instituting formal condemnation proceedings may bring an inverse condemnation claim under Wis. Stat. § 32.10 to recover just compensation. See E–L Enters., 326 Wis.2d 82, ¶ 36, 785 N.W.2d 409. That statute, which is the legislative fulfillment of Wis. Const. art. I, § 13, is, by its terms, designed solely to deal with the traditional exercise of the government's eminent domain power vis-à-vis physical occupation. E–L Enters., 326 Wis.2d 82, ¶ 36, 785 N.W.2d 409. However, our supreme court has concluded regulatory takings are also cognizable under § 32.10. See E–L Enters., 326 Wis.2d 82, ¶ 37, 785 N.W.2d 409.

¶ 15 The landmark case in this respect was Howell Plaza, Inc. v. State Highway Comm. issio n, 66 Wis.2d 720, 226 N.W.2d 185 (1975). There, the court concluded “that there need not be an actual taking in the sense that there be a physical occupation or possession by the condemning authority....” Id. at 730, 226 N.W.2d 185. To state a claim under Wis. Stat. § 32.10 in the absence of physical occupation, the facts alleged must demonstrate that a government restriction “deprives the owner of all, or substantially all, of the beneficial use of his property.” Id. at 726, 226...