Amicus Curiae Brief — Murr v. Wisconsin, 136 S. Ct. 890 (2016) (No. 15-214)

Suprema Court, US.

a No. 15-214 pepe

en awe Oo.

oe JUN 14 2016

i OFFICE OF THE CLERK

gn The

Supreme Court of the Anited States

°

JOSEPH P. MURR, et al.,

Petitioners,

Vv.

STATE OF WISCONSIN and ST. CROIX COUNTY,

Respondents.

On Writ Of Certiorari To The

Wisconsin Court Of Appeals

°

BRIEF OF PROPERTY LAW PROFESSORS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

Davip A. DANA

NORTHWESTERN PRITZKER SCHOOL OF LAW

375 East Chicago Ave.

Chicago, IL 60611

(312) 503-0240

d-dana@law.northwestern.edu

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............0..000...0...0 il

INTEREST OF AMICI CURIAE ...... sidtenedbeeedaiaels 1

SUMMARY OF ARGUMENT ...................0.......... 3

EE elites cinitdiidiiiindiinihtnaw cir eincbincpcustecesiebnes 5

A. Precedent Does Not Support Giving State

Boundary Lines Determinative or Pre-

sumptively Determinative Weight ............ 5

B. Giving State Boundary Lines Determina-

tive or Presumptively Determinative

Weight Would Not Promote the Fifth

Amendment’s Goal of Assuring Fairness

IN scan cenieeh cei ler anbaiienialschanabebiaeies 11

C. Giving State Boundary Lines Determinative

or Presumptively Determinative Weight

Would Encourage Socially Unproductive

Gaming On the Part of Investors................. 16

i ctcintitenesnnechentencniintennendcieinaeinstnienie 19

i

TABLE OF AUTHORITIES

Page

CASES

Eastern Enterprises v. Apfel, 524 U.S. 498 (1998)....... 12

Giovanella v. Conservation Commission of Ash-

land, 857 N.E.2d 451 (Mass. 2006)......................... 14

Keystone Bituminous v. DeBenedectis, 480 U.S.

a A a EE I I NO em passim

Lucas v. South Carolina Coastal Council, 505

SRE RE aE MEN oS passim

Palazzolo v. Rhode Island, 533 U.S. 606

IIIT is schadahaieel ited dcpieiscileiabndbabtabnibaanindaile 3, 8,9, 10, 11

Penn Central Transp. Co. v. New York City, 438

casi ileal nacilgnndecddd passim

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

SE ARNE canon oo Re UO CWE SST AV ie SECO UE 11

Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l

Planning Agency, 535 U.S. 302 (2002)....8, 10, 18, 19

CONSTITUTIONAL PROVISIONS

CN i seacsssniianenecasinns passim

STATUTES

Wis. Stat. Sections 236.10, .11, .40......................cc000e 17

iil

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

David A. Dana, Why Do We Have A Parcel-As-A-

Whole Rule?, 39 VT. L. REV. 617 (2015) ................. 10

Thomas Merrill, The Landscape of Constitu-

tional Property, 86 U. VA. L. REV. 950 (2000).......... 6

1

BRIEF OF PROPERTY LAW

PROFESSORS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

The undersigned property law professors respect-

fully submit this brief as amici curiae in support of Re-

spondents.'

INTEREST OF AMICI CURIAE

Amici have no personal stake in the outcome of

this case; their interest is in assisting the parties and

the Court in understanding property law and the law

of Takings, insofar as that law and those rights are rel-

evant to the questions presented in this case. Joining

in this brief as amici are the following twelve law pro-

fessors, whose research and teaching have focused on

property law:

Gregory Alexander, A. Robert Knoll Professor

of Law, Cornell Law School

Michael Barsa, Professor of Practice, North-

western Pritzker School of Law

* Pursuant to Rule 37.6, amici state that no counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the prepa-

ration or submission of this brief. No person other than amici

curtae or their counsel made a monetary contribution to the prep-

aration or submission of the brief. Pursuant to Rule 37.3(a), all

appropriate parties have filed letters granting blanket consent to

the filing of amici curiae briefs.

2

Michael Blumm, Jeffrey Bain Faculty Scholar

and Professor of Law, Lewis & Clark Law

School

Peter Byrne, John Hampton Baumgartner, Jr.,

Professor of Real Property Law, Georgetown

University Law Center

Holly Doremus, James H. House and Hiram

H. Hurd Professor of Environmental Regula-

tion, University of California-Berkeley School

of Law

Yxta Murray, Professor of Law, Loyola Law

School — Los Angeles

Christopher Serkin, Professor of Law, Vander-

bilt Law School

Nadav Shoked, Associate Professor, North-

western Pritzker School of Law

Amy Sinden, Professor of Law, Temple Uni-

versity Beasley School of Law

Daniel Tarlock, Distinguished Professor of

Law, Chicago-Kent College of Law

Laura Underkuffler, DuPratt White Professor

of Law, Cornell Law School

Danaya Wright, Clarence J. TeSelle Professor

of Law, University of Florida Levin College of

Law

3

SUMMARY OF ARGUMENT

The question of the role of state law in defining the

boundaries of property interests for purposes of federal

Takings analysis has been raised by the petitioners

and various amici in this case. Because federal Takings

liability is premised on the federal Constitution, and

serves a distinct federal constitutional objective of

achieving fairness and justice, state property law defi-

nitions and corresponding boundaries cannot deter-

mine or even presumptively determine the relevant

property interest for purposes of determining the de-

nominator used in both the Penn Central and Lucas

Takings analyses.

Past Supreme Court precedent is consistent with

this view: state boundary lines have never been

treated as determinative or presumptively determina-

tive by this Court. On the contrary, this Court has

treated state boundary lines as neither determinative

nor presumptively so in cases such as Penn Central,

Keystone, and Palazzolo. Contrary to the suggestion of

some amici, moreover, there is no principled reason for

giving more weight to horizontal state property bound-

aries between lots than there is to give weight to state

law vertical boundaries of the sort at issue in Keystone

and Penn Central.

The goals behind state lot lines and the purposes

that animate the Fifth Amendment Takings Clause

are not, in any way, inherently, connected. How much

an owner's reasonable investment expectations were

frustrated — the focus of Takings analysis — is relevant

4

to the level of burden on the owner and the justice of

compensating or not compensating. State property def-

initions and corresponding boundary lines — and in

particular, surface/horizontal lot lines — reflect histori-

cal practices serving technical, and administrative

purposes that are unrelated to the purposes of protect-

ing investment expectations or assuring justice and

fairness. Indeed, blindly using state boundary lines to

define the property for Takings purposes can lead to

palpably unfair and unjust results, wherein some own-

ers whose reasonable expectations were only mini-

mally frustrated by government regulation would be

much more likely to prevail in Takings litigation than

owners whose reasonable expectations were very sub-

stantially frustrated.

Moreover, treating state lot lines as determinative

or presumptively determinative would encourage ma-

nipulation on the part of owners that is not socially

productive and that could lead to much more litigation

and the payment of compensation in cases in which

fairness and justice does not support such payment.

Owners can easily change property lines by subdivid-

ing property and sometimes also by rebundling it.

Given that factual reality, a holding that state lot lines

are determinative or presumptively determinative

would encourage gaming of the system, whereby inves-

tors choose to divide investments into smaller and

more discrete parcels than they otherwise would. Own-

ers would be incentivized in particular to establish any

areas of possible future regulatory concern (such as

wetlands) as a distinct legal parcel, even when such a

5

parcel is clearly part of a larger development project.

Under a rule that gives determinative or even pre-

sumptively determinative weight to state boundary

lines, an investor could manufacture a very strong

Lucas 100% “total wipeout” claim for compensation

even when the regulatory restriction at issue only

modestly or minimally reduces the value of the invest-

ment project.

State property definitions and corresponding

boundary lines — including lot lines — should not be de-

terminative or presumptively determinative of the de-

nominator used to calculate the diminution in value

for purposes of the Penn Central and Lucas tests. To

give them determinative or presumptively determina-

tive weight would be contrary to precedent, incon-

sistent with the purposes of the Takings Clause, and

likely to encourage socially unproductive gaming be-

havior in land markets.

¢

ARGUMENT

A. Precedent Does Not Support Giving State

Boundary Lines Determinative or Presump-

tively Determinative Weight

State law establishes all sorts of boundaries be-

tween different interests that can be held by different

owners or by the same owner. Those boundaries can be

vertical, as, for example, the boundary between a sur-

face interest in land and sub-surface interest or

the boundary between a surface interest and the

6

above-surface airspace. These boundaries can also be

horizontal, as, for example, the boundary between two

contiguous surface interests.

This Court’s precedent treats these state bound-

ary lines as neither determinative of the “property”

that is at issue for Fifth Amendment Takings Clause

purposes, nor as presumptively determinative. On the

contrary, this Court has readily looked beyond state

boundary lines in analyzing what property was at is-

sue for Fifth Amendment purposes and how much that

property’s value has been diminished by regulation. As

Professor Merrill has explained, the problem with

“pure positivism” — an approach that would define as

federal constitutional property for Takings Clause pur-

poses whatever is defined as a property interest under

state law — “is that it leads to the positivist trap, in the

form of too much or too little property relative to social

expectations or other normative commitments of the

Justices about the kind of things that should be pro-

tected as property.” Thomas Merrill, The Landscape of

Constitutional Property, 86 U. VA. L. REV. 885, 950

(2000).

Two leading Takings cases — Penn Central and

Keystone — implicate state law that establishes vertical

boundaries and, in both cases, the boundaries play no

role in the Court’s understanding of the relevant prop-

erty for Fifth Amendment purposes. In Penn Central,

the Court refused to treat air rights as a separate prop-

erty for Fifth Amendment purposes from the surface

structure below even though New York law treated air

rights as a distinct, alienable interest. In Keystone, this

7

Court refused to treat a sub-surface estate recognized

under Pennsylvania law as a separate property for

Fifth Amendment purposes.

As the Court explained in Penn Central:

[T]he submission that appellants may estab-

lish a “taking” simply by showing that they

have been denied the ability to exploit a prop-

erty interest that they heretofore had believed

was available for development is quite simply

untenable. Were this the rule, this Court

would have erred not only in upholding laws

restricting the development of air rights, see

Welch v. Swasey, supra, but also in approving

those prohibiting both the subjacent, see

Goldblatt v. Hempstead, 369 U.S. 590, 82 S.Ct.

987, 8 L.Ed.2d 130 (1962), and the lateral, see

Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71

L.Ed. 1228 (1927), development of particular

parcels. ‘Taking’ jurisprudence does not divide

a single parcel into discrete segments and at-

tempt to determine whether rights in a par-

ticular segment have been entirely abrogated.

In deciding whether a particular governmen-

tal action has effected a taking, this Court fo-

cuses rather both on the character of the

action and on the nature and extent of the in-

terference with rights in the parcel as a whole

— here, the city tax block designated as the

‘landmark site.’”

Penn Central Transp. Co. v. New York City, 438 U.S.

104, 130-131 (1978).

8

Building on Penn Central, the Court in Keystone

explained that “[iJt is clear, however, that our takings

jurisprudence forecloses reliance” on “legalistic dis-

tinctions within a bundle of property rights.” Keystone

v. Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,

499 (1987). As the Court elaborated: “For example, in

Penn Central, the Court rejected the argument that the

‘air rights’ above the terminal constituted a separate

segment of property for Takings Clause purposes. .. .

in Andrus v. Allard, we viewed the right to sell prop-

erty as just one element of the owner’s property inter-

est... . In neither case did the result turn on whether

state law allowed the separate sale of the segment of

property.” Jd. This Court in Tahoe-Sierra similarly sug-

gested that the temporal boundaries created by state

law did not define the relevant property at issue for

Fifth Amendment purposes. Tahoe-Sierra Pres. Coun-

cil, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

331 (2002).

Palazzolo is also highly instructive. Petitioner An-

thony Palazzolo owned what this Court described as a

waterfront “parcel” or “property” of land in the town of

Westerly, Rhode Island. The Court repeatedly referred

to the entire contiguous area of land owned by the pe-

titioner as “the property,” as a singular property. That

“property” was first purchased as three separate lots

under state law, then subdivided into eighty lots, of

which seventy-four remained at the time the petitioner

sought to develop the wetland portions of the area con-

sisting of seventy-four lots. Palazzolo v. Rhode Island,

533 U.S. 606 (2001). This Court held that because the

9

petitioner without question derived economic value

from the upland portion of the property, which, again,

consisted of seventy-four lots under state boundary

rules, the court below had not erred in finding that pe-

titioner’s property has not been 100% diminished in

value and thus did not implicate the test annunciated

in Lucas v. South Carolina Coastal Council, 505 U.S.

1003 (1992). If this Court had treated each lot as a

“property” for Fifth Amendment purposes, it presuma-

bly would have found that there had been a 100% dim-

inution in value.”

The facts of Palazzolo itself underscore why, in

general, state boundary lines between lots should not

determine the contours of the property at issue for

Fifth Amendment purposes. The number of lots in a

given area is not, contrary to the suggestion of some

amici, an immutable fact. There were seventy-four lots

in the physically contiguous area owned by the peti-

tioner in Palazzolo because the landowner decided to

subdivide the property into eighty lots and then to sell

six of them. The owner presumably could have chesen

a different number of lots to carve out of the land area

? It is true that the Court in Palazzolo declined to address

petitioner’s argument that the wetlands portion of his property

should be treated as distinct from the uplands portion. The argu-

ment was made for the first time before this Court and therefore

was deemed waived. Palazzolo, 533 U.S. at 631. The petitioner in

Pallazolo did not attempt to argue that the denominator for the

purpose of Takings analysis should be defined based on lot lines

in the briefing in the Rhode Island courts. The history of briefing

in Palazzolo confirms lot lines in contiguous land holdings are

generally understood as technicalities rather than as demarcat-

ing meaningfully separate, distinct investments in land.

10

— say ten or twenty or forty lots instead of eighty. But

the “property” owned by the petitioner in any sense

that should be meaningful for the Fifth Amendment

would have been the same however many lots the

owner had decided to create as part of the subdivision

process. State boundary lines between lots are not the

product of natural law or even necessarily a considered

state or local legislative decision; instead as in

Palazzolo, and as discussed more below, they may be in

substance the product of the decision making of the

owner of the physical area of land in question.

There is simply no principled basis for treating

horizontal boundary lines created by state law as hav-

ing any greater weight in defining Fifth Amendment

property than vertical boundary lines created by state

law. If horizontal state lot lines were treated as deter-

minative or presumptively so, it logically would be im-

possible not to apply the same reasoning elsewhere

and thus to unravel the principle articulated in Penn

Central and Keystone. The result would be the unrav-

elling of the parcel-as-a-whole rule, a rule that pre-

vents plaintiffs from “defining the property interest

taken in terms of the very regulation being chal-

lenged,” Tahoe-Sierra, 535 U.S. at 331. See also David

A. Dana, Why Do We Have A Parcel-As-A-Whole Rule?,

39 VT. L. REV. 617 (2015) (arguing that the principal

alternative to the parcel-as a-whole rule in Takings

cases — an approach that treats the property as solely

the area affected by regulatory restriction — could open

a broad range of ordinary economic regulation to, in ef-

fect, heightened scrutiny). The principle enunciated in

11

Penn Central and Keystone — that the definition of

property for Fifth Amendment purposes cannot be

driven by “legalistic” state categories that were not cre-

ated and implemented with Fifth Amendment values

and purposes in mind — is as applicable to horizontal

boundary lines as much as it is to vertical ones.

B. Giving State Boundary Lines Determinative

or Presumptively Determinative Weight Would

Not Promote the Fifth Amendment’s Goal of

Assuring Fairness and Justice

“Government hardly could go on if to some extent

values incident to property could not be diminished

without paying for every such change in the general

law.” Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413

(1922). The Fifth Amendment Takings Clause is in-

tended to assure fairness and justice — and, in particu-

lar, to ensure that excessive burdens are not imposed

on property owners without compensation while at the

same time allowing many uncompensated burdens so

that government can “go on.” The purpose of the Fifth

Amendment’s guarantee that private property shall

not be taken for a public use without just compensa-

tion “is to prevent the government from ‘forcing some

people alone to bear burdens which, in all fairness and

justice, should be borne by the public as a whole.’”

Palazzolo v. Rhode Island, 533 U.S. 606, 618 (2001)

(quoting Armstrong v. United States, 364 U.S. 40, 49

(1960)).

12

Because the Takings Clause is concerned with the

fairness (or lack thereof) of the imposition of particu-

lar burdens without compensation, one highly relevant

factor is the magnitude of the burdens imposed on an

owner in any given case. This Court generally has not

looked to the dollar amount of the burden imposed by

regulatory change as relevant to the burden for Tak-

ings Clause purposes, presumably because that would

move Takings analysis away from the textual focus of

the Takings Clause on “property” (as opposed to simply

money) and toward an open-ended substantive due

process analysis that could encompass a wide range of

ordinary economic regulation. See Eastern Enterprises

v. Apfel, 524 U.S. 498, 541 (1998) (explaining that lim-

iting the Takings Clause to cases involving govern-

ment action “to destroy, or take, a specific property

interest” serves to prevent the expansion of “an al-

ready difficult and uncertain rule to a vast category of

cases not deemed, in our law, to implicate the Takings

Clause.”) (Kennedy, J., concurring). Instead, in Takings

cases, the focus has been on the diminution in value of

the property at issue due to regulatory change.

Diminution in value figures prominently in the Penn

Central test, and is decisive as to whether the Penn

Central or Lucas tests apply. Diminution in value is

surely part of these tests because it captures in some

fashion the burden imposed on the owner. See Penn

Central, 438 U.S. at 124 (“The economic impact of the

regulation on the claimant and, particularly, the extent

to which the regulation has interfered with distinct in-

vestment-backed expectations are, of course, relevant

considerations”).

13

But if the burden imposed on the owner is what

drives the use of diminution of value as part of Fifth

Amendment Takings tests, then the components used

as part of the diminution in value calculation should

also be ones that make sense in terms of the overriding

purpose of approximating the burden on the owner.

In particular, the denominator — the property — should

be assessed in a way that comports with the burden-

approximation purpose of diminution in value. An

investor bears a greater burden — all else being equal

— when a large percentage of what it reasonably con-

ceived of and treated as a distinct investment is re-

duced in value as compared to when there is a small

percentage reduction.

The formal boundary lines between lots under

state law, however, tell us nothing about the burden on

the pruperty owner and hence are unsuitable as deter-

minants or presumptive determinants of what consti-

tutes “the property” for Fifth Amendment purposes in

a given case. When calculating the denominator for

purposes of the diminution in value, it may be quite

reasonable for a court to consider a fifty-acre area that

a developer purchased to build townhomes for sale and

hence regarded as a distinct investment as “the prop-

erty” for purposes of calculating the diminution in

value. But the fifty-acre townhome development area

eould be purchased by the developer or later reconfig-

ured onto one or ten or fifty or a hundred lots. Lot lines

can be configured and reconfigured in many ways at

the behest of subdivision developers. The investment

in any meaningful sense would be the same regardless

14

of the number of lots, and so too, presumably, would the

burden imposed by any particular regulatory re-

striction. In and of themselves, state law boundaries

are uninstructive about the scope of a distinct invest-

ment as reasonably conceived by an investor and the

corresponding extent to which a burden has been im-

posed upon the investor. Accordingly, lower courts have

held that a contiguous land area under common own-

ership — an area an investor generally would regard as

a single investment because of physical unity — pre-

sumptively constitutes a single investment and hence

a single property for Fifth Amendment purposes. See,

e.g., Giovanella v. Conservation Commission of Ash-

land, 857 N.E.2d 451, 457-458 (Mass. 2006) (reviewing

the cases holding that contiguous properties constitute

a single property).

Indeed, treating state lot lines as determinative

or presumptively determinative of the “property” for

Fifth Amendment purposes could result in compensa-

tion for less burdened owners and no compensation for

more burdened owners. Consider two cases — (1) an in-

vestor who buys a ten-acre lot near a river and (2) an

investor who buys two contiguous five-acre lots near a

river. Imagine that new regulatory restrictions regard-

ing wetlands are enacted that prevent the owner of the

ten-acre lot from building on nine of the ten acres,

whereas new regulatory restrictions regarding wet-

lands prevent the owner of the contiguous five-acre

lots from building on one of the five-acre lots but allows

building on the entirety of the other five-acre lot.

In a regime where lot lines are determinative or

15

presumptively determinative of what constitutes a

Fifth Amendment property, the owner of the two five-

acre lots has a much stronger claim for a Lucas-style

Taking of the property qua a single five-acre lot than

does the owner of the ten-acre lot even though the

owner of the ten-acre lot was actually burdened with a

more extensive development restriction.

State boundary lines are surely drawn for a vari-

ety of reasons, but nowhere, we believe, are they drawn

by state or local legislative bodies, planning commis-

sions or subdivision developers themselves with the

ideas of fairness and justice in mind that are at the

heart of the Fifth Amendment Takings Clause. State

lot lines are not intended to capture the line between

assets and resources that are or can be privately

owned and those that are publicly owned and/or sub-

ject to special public claims. State boundary lines are

not drawn to approximate or limit the scope of distinct

investments by a particular investor in land. Nor do

such lines necessarily correlate in any fashion with the

burden of regu! »tory restrictions on land development.

They are “legalistic distinctions,” Keystone, 480 U.S. at

499, that should not determine when a Taking has or

has not occurred.

16

C. Giving State Boundary Lines Determinative

or Presumptively Determinative Weight Would

Encourage Socially Unproductive Gaming

On the Part of Investors

Takings law — as does all law — helps shape private

conduct. In particular, we might anticipate that, as

rational economic actors, land developers will try to

maximize their ability to demand and recover com-

pensation from the government should regulatory

restrictions be adopted that would limit their develop-

ment plans in particular investments. Even if not all

investors in land are driven by profit maximization

goals, surely many, and many of the largest, are.

If this Court were to suggest or hold that state

boundary lines are determinative or presumptively de-

terminative of property definitions for Fifth Amend-

ment Takings purposes, then land developers and even

ordinary owners would have a strong incentive to con-

figure and reconfigure their land holdings into smaller

lots so that they could demand compensation when-

ever a regulatory restriction blocked development on a

single lot. A subdivision developer of an area near wet-

lands, for example, might choose to carve out several

separate lots that contained only wetlands so that, if a

Clean Water Act Section 404 permit to fill the wetlands

were denied, the developer could argue that he had lost

100% of the value of several properties and was enti-

tled to compensation under the Lucas test. Because

possible regulation is often in the air — under scientific

and political debate — regarding environmentally sen-

sitive areas for years before it is actually promulgated

17

and implemented, investors could anticipate portions

of their land holdings that might be subject to future

regulation and configure them into very small lots un-

der state law so that regulators would be deterred from

ever acting to protect the environmentally sensitive ar-

eas and, if regulators did act, the investors would be

well-positioned to argue that they were entitled to

compensation under the Lucas test.

Wisconsin law itself suggests how easily a subdi-

vision developer may be able to determine the number

and configuration of lots. Wisconsin law clearly antici-

pates that the developer — the subdivider, in the par-

lance of the statute — will submit its version of the

platting for review and approval. Wis. Stat. Section

236.11. The approval need not be given by a local leg-

islative body but rather can be delegated to “a planning

committee or commission of the approving governing

body.” Wis. Stat. Section 236.10. Wis. Stat. Section

236.40 also allows an individual subdivision owner or

lot owner to seek replatting or alteration of plat lines.

Although public notice and court approval is required

for replatting, there are no statutory restrictions on

what a court in its discretion may approve except for

areas currently dedicated to the public.

In Lucas, Justice Stevens expressed concern about

gaming actions involving lot lines on the part of land-

owners, suggesting that “investors will manipulate the

relevant property interests, giving the Court’s [Lucas]

ruling [regarding 100% diminutions in value] sweep-

ing effect.” But that has not happened to any widely

noted extent, in large part one might suppose because

18

courts have not treated state boundary lines as deter-

minative or presumptively determinative of what con-

stitutes a property for Fifth Amendment purposes and

hence have not rewarded and encouraged manipula-

tion on the part of investors. A holding by this Court

that gave state boundary lines determinative or pre-

sumptively determinative effect would facilitate the

manipulation of the sort described by Justice Stevens.

In sum, treating state boundary lines as determi-

native or presumptively would encourage investors in

and owners of land to convert many situations that

would be analyzed under the Penn Central ad hoc bal-

ancing, less than 100% diminution in value framework

into situations analyzed under the Lucas, presumptive

Taking, 100% diminution in value framework. It would

expand the scope of the Lucas test beyond the quite

limited swath of cases which this Court has explained

was its intended scope. Lucas, 505 U.S. at 1018 (“And

the functional basis for permitting the government, by

regulation, to affect property values without compen-

sation — that ‘Government hardly could go on if to some

extent values incident to property could not be di-

minished without paying for every such change in the

general law,’ ... does not apply to the relatively rare

situations where the government has deprived a land-

owner of all economically beneficial uses”); Tuhoe-

Sierra, 535 U.S. at 1438 (explaining that “our holding

lin Lucas] was limited to ‘the extraordinary circum-

stance when no productive or economically beneficial

use of land is permitted.’”).

19

Elevating the role of state law boundaries in de-

fining Fifth Amendment property could vastly expand

the compensation guarantee under the Fifth Amend-

ment to the point that, with respect to some kinds of

socially valuable land regulation, government could

hardly go on. Effective land use regulation that fairly

balances public and private needs and objectives would

be undermined by according state boundary lines de-

terminative or presumptively determinative weight

with regard to what constitutes “property” for purposes

of the Fifth Amendment. See Tahoe-Sierra, 535 U.S. at

339-341 (explaining that a rule that held temporary

moratoria to be Takings would discourage regulators’

attempts to address environmental problems in a way

that treated landowners evenhandedly).

¢

CONCLUSION

In sum, state boundary lines between lots do not

and should not define or presumptively define the con-

tours of the “property” for purposes of the Fifth Amend-

ment Takings Clause. The decision of the Wisconsin

Court of Appeals should be affirmed.

Respectfully submitted,

Davip A. DANA

Counsel of Record

NORTHWESTERN PRITZKER SCHOOL OF LAW

357 East Chicago Ave.

Chicago, IL 60611

(312) 503-0240

d-dana@law.northwestern.edu