In Murr v. Wisconsin, the U.S. Supreme Court confronted the “denominator problem” that arises when defining the baseline unit of property for assessing a regulatory taking. That problem was particularly complex in light of Wisconsin’s merger provision, an increasingly common zoning tool that treats adjacent, commonly owned lots as a single, merged property barred from separate sale or development. Despite the Court’s already “muddled” regulatory takings jurisprudence, the Court adopted yet another multifactor test to determine the denominator in the context of the Murrs’ two, adjacent waterfront lots. The Court found that in light of the lots’ uneven topography, their location along a heavily regulated river, and the state merger provision, the Murrs should have reasonably expected their two lots to be considered merged for purposes of the takings analysis. This Note questions both the Court’s new multifactor test and its application to the Murrs’ complex circumstances. A deeper dive into the Murrs’ case illustrates how the Court’s purportedly objective focus on property owners’ reasonable expectations ignores the inherent ambiguities in deriving expectations from physical land characteristics and regulatory notice. It also highlights how the test’s unwieldy application further disadvantages property owners in an already convoluted area of the law.
Reasonable Expectations: An Unreasonable Approach to the Denominator Question in Takings Analysis
