New Article on Property Law: Supreme Court Adds to the Confusion in Takings Cases

The Zoning and Planning Law Report recently published Damon Key’s Robert Thomas‘s article on the U.S. Supreme Court’s regulatory takings decision. From the article’s Introduction:

The U.S. Supreme Court’s 5-3 long-anticipated ruling in Murr v. Wisconsin, expected to resolve the “larger parcel” or “denominator” issue in regulatory takings cases, has instead created a test that neither property owners, lawyers, nor government officials can understand or rely on.


The majority opinion, authored by Justice Anthony Kennedy, addressed a long-standing ques tion in regulatory takings law: when a claimant who owns more than a single parcel alleges a regulation works a taking of one of them, how much of the claimant’s total holdings will the economic impact of the regulation measured against? The question in Murr arose as a choice between which regulatory takings rule would apply in the case, the categorical “deprivation of economically beneficial use” rule from Lucas, or the ad hoc Penn Central balancing test. This threshold question governed the outcome because the narrower the Murrs’ property interest was defined by the courts, the more likely it would be they would be able to prove the regulation was a taking. In other words, how would the “property” which was claimed to have been taken defined?

To download the entire article go here.