WISCONSIN

Wisconsin cottage at center of property rights dispute goes to U.S. Supreme Court

Bruce Vielmetti
Milwaukee Journal Sentinel
The Murr family cottage on the shore of Lake St. Croix, in western Wisconsin.

Like many visitors to Washington, D.C., Donna Murr has seen the U.S. Supreme Court as a tourist.

On Monday, the Eau Claire resident and her family will be inside the court as parties, when the court hears oral arguments in their own case over whether a cottage and an extra lot they own on Lake St. Croix should be considered two separate parcels.

The court's decision could determine whether Murr and her siblings will be able to preserve, improve and keep the cottage their late parents built in 1960. The case is being watched closely by both property rights advocates and governments.

Murr, 53, is the youngest of the six siblings and has served as the face and voice of the case since the Pacific Legal Foundation persuaded the Supreme Court to hear it last year. Pacific, a non-profit that focuses on property rights, is representing the Murrs for free. She did a flurry of news interviews last week.

"We certainly didn’t expect the kind of media attention, but we welcome it, because we think it's important," she told Journal Sentinel, which first reported on the case more than a year ago.

"We’ve embraced it, and tried to make it fun," Murr said. "It’s something none of us are used to. We're just trying to make sure our message is clear."

The property is located on a wide area of the St. Croix River that is pretty developed on both the Wisconsin and Minnesota sides. "It's not the Boundary Waters," Murr said, referring to a pristine wilderness area on the Minnesota-Canada border.

John Groen, the Pacific Legal Foundation lawyer who convinced the high court to hear the case, even after Wisconsin's Supreme Court declined, says St. Croix County has essentially taken the Murrs' property through strict shoreline development and conservation rules and should pay just compensation for that loss under the Fifth Amendment.

"It's a critical legal issue — that’s why they took the case," Groen said. "Precedence hasn’t clearly defined how to define the relevant unit of property. The case law is all over the place."

About a dozen groups, from states to think tanks to home builders, Realtors and the Chamber of Commerce, have filed briefs supporting the Murrs. About as many — including former vice president Walter Mondale, two groups of professors, the National Trust for Historic Preservation, eight different states, the American Planning Association and others — support St. Croix County.

Wisconsin and St. Croix County argued that treating the Murrs' two parcels as one for sale or development purposes does not deprive them of substantially all the value of their lands. The state Court of Appeals agreed.

The legal issues

William Murr bought a 1 1/4 acre lot on the St. Croix River, south of Hudson, in 1960 and built the cabin. Three years later, he bought the same size adjacent lot as an investment. Murr, her siblings and their extended families have enjoyed the place every summer since.

In 2004, the children decided to sell the empty lot to finance improvements at their cottage. But 1970s regulations said any contiguous, substandard lots under common ownership would merge into one parcel for sale or development purposes.

Because William and Margaret Murr had given the properties to their children in the 1990s, their two lots were now considered a single 2 1/2 acre parcel, and the Murrs' requests for variances for their planned improvements on the original cottage lot were denied, because there is nearly an acre of buildable area within the larger parcel, plenty of room for new, larger home.

The Murrs said that without selling the second lot, they couldn't afford their improvement project. The Murrs think the separate lot is worth $400,000, but it adds only $40,000 to the combined appraisal of the larger single parcel. They find it unfair that if the lot had been owned by someone else since the 1960s, that person would have been grandfathered under old rules and allowed to build on the sub-standard lot.

Lawyers for the county, state and the federal government will share the oral argument against the Murrs' position.

Wisconsin Solicitor General Misha Tseytlin said the merger provision is part of state law and is a sensible approach to managing lots sizes and development to promote conservation while protecting property rights.

"Our test is more predictive and objective," and in line with an approach endorsed by the late Justice Antonin Scalia, he said.

"The Department of Justice is not going after property owners," Tseytlin said. "In this particular case, the Murrs should lose. They would still have a lot of value" in their waterfront property.

Though he regularly appears before the Wisconsin Supreme Court, the case will be Tseytlin's first oral argument at the nation's high court, where he clerked for Justice Anthony Kennedy. "I'm thrilled to be getting my first quill." The court puts out white quill pens at counsel tables and the lawyers who argue can keep one.

Even if the Supreme Court rules in the Murrs' favor, they would have to return to state court for a hearing on whether the regulations amount to a taking of their land and what the compensation should be. Murr said it's been so long since everyone agreed on the plan, she's not sure her oldest brothers, now retired, would still want to go forward with the project.

"We’ll just have to take a deep breath and reassess," she said. But they will celebrate a Supreme Court decision in their favor. "We’ll have a party, a big one."