Murr-ky Waters: How Murr v. Wisconsin Creates Uncertainty in Attempting to Answer the “Denominator Question”

Charles M. Kassir

In Murr v. Wisconsin, the Supreme Court of the United States created a three-factor test for determining when two contiguous properties should be treated as one for the purpose of regulatory takings analyses: whether state and local law treat the land as merged; whether the physical characteristics of the land support merger; and whether merger unreasonably impacts the prospective value of the regulated land. After applying the new factors to the two contiguous properties at issue, the Supreme Court held that the land should be analyzed as one property. The Court had the opportunity to solve the denominator problem—how a court should determine the value remaining in a property compared to the value taken—but failed to clarify the few categorical rules already available under the takings doctrine. Further, the Court's new test gives too much deference to states by providing for consideration of state interests (at least) twice. Finally, the Court created confusion by introducing narrow factors that ultimately will be meaningless in most takings inquiries, yet may mislead litigants to embark on an unsuccessful litigation strategy. Ultimately, Chief Justice Roberts' dissent was more persuasive than the majority opinion because it provided a straightforward solution to the denominator problem—use of state lines to identify what property is subject to a takings analysis. While the outcome for the Murrs was likely correct under modern jurisprudence, the Court fell short of clarifying the denominator problem and missed an opportunity to demystify a portion of the muddled regulatory takings doctrine.