# Amicus Curiae Brief — Murr v. Wisconsin, 136 S. Ct. 890 (2016) (No. 15-214) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0607%3A26 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2016 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0607%3A26. Public record. Not legal advice.