will hear arguments now first this morning case fifteen to fourteen murray versus wisconsin mr wrong mr chief justice and may please the court the fundamental i'm fairness in this case is illustrated by one fa case suppose that three years from now lots such as these two lives in the same ownership become immensely more valuable when the two lots singly each lot singly would be worth one hundred thousand but these lots where you can build a bigger home are worth five hundred thousand the county wants a fire to a fire station and it takes lot and what do they pay for it under your theory they should pay for compensation for the taking of lot he any touches one hundred thousand dollars on under your hypothetical property owners would stand to lose three hundred thousand dollars and under my hypothetical and your answer no i don't think so and under the hypothetical hypothetical list together they're worth five hundred thousand singley they're worth one hundred thousand each what is the amount that the county has to pay to take a lot eat for the fire station the analysis m your theory landowners in the hypothetical what i put up would lose money in this state would be would be getting a windfall if that hypothetical does not include an e integrated economic use between two parcels that is correct the compensation is determined by the lot that is take that the integrated the integrated use is determined by the market your theory pimply noise market factors and that is exactly what the government would argue is that the compensation must be limited to the parcel that is taken and in eminent domain law which is the hypothetical that you're providing an eminent domain law the presumption is exactly that compensation is limited to the parcel taken unless that presumption can be overcome by the land order proving that the two parcels are actually there's a unity of the use between the two or the value then why isn't that true here then why doesn't that defeat your theory here it supports the theory it's the exact same principle only in reverse rather than the government limiting compensation to just the parcel taken here the government is saying we want to combine the values of the two in order to find there is no taking but in both scenarios who have to begin with the presumption of determining what is the relevant parcel that is subject to that analysis  the same family and the buyers of the but if i am right your argument would extend in the exact same way to a situation where you have two sellers who are completely independent of each other mr jones and ms smith have nothing to do with each other another buyer comes in also has no relationship with mr jones or ms smith and that buyer would be able to make the exact same argument that the more family is making in this case person who has bought these two stand substandard lots once to build on them and your argument would be the exact same that that's right they're each independent discrete and separate parcels and the a hypothetical to two different one owner owns two parcels or two different people and two parcels and they sell it to your one of them there and the one who knows the regulation says if you have to continuously and he says you can only develop one if they're both below an acre or whatever the rule is your rule would just do away with your expectations as a buyer well no the in that situation the fact that someone might know that there are regulations on properties does not change the time of the taking the taking occurs in one thousand nine hundred seventy five when the regulations redefined the property rights and that redefinition of the property rights does not insist on larynx it may have been a taking for the parents but they never charged the children when they took were subject to the regulation and they knew it and they could have said no i don't want to con let's assume that let's assume that beyond should have they actually knew powers all over stands for the proposition that the that the subsequent error or a buyer does not just because the property is transferred that the buyer could have the exact same take claim but the murder trial dran are not asking for this for this they do not have the same taken sql am as them or parents did isn't that right though i think that's not right they have the exact same takings claim because we're talking about parcel leave and the rights that harris want to develop on parsley the children can't the  parents if they had put it in their own common ownership which they did for a period of time subsequent to nine hundred seventy five there is a takings claim there it's the rights inherent in the property and in each of these in all of these scenarios you have to go back to  parents let me try this again for the parents the two properties were two properties it's only when the property becomes one property that this taking this claim arises the take his claim arises because of the restrictions imposed by the government not by change in ownership or anything like that the change in ownership does not change the nature of the property interest that's the key part of powers although that if you take away the  takings claim or redefine property interest you're actually changing or altering the nature of property and that's where we come back not to a takings analysis but to defining the relevant unit of property to apply ability to sell to a buyer who wanted to combine these two lots that was the only thing that was affected isn't that right or the parents didn't seek to combine these two laws sort of sell to someone who wanted to combine the two lots the parents owned both parcels they had one in the plumbing company name they eventually put that in their own names as well in one nine hundred eighty two after the nine hundred thirty five restrictions were in place that didn't merge the parcels there's there hasn't been a merger here merger is simply a term that describes what happened and that is that the use restrictions preclude the independent sale or development of a lot that is the grab them in of the takings complained the apply there are lots of of land use regulations of all types including merger provisions we do not have a background provision here a background principle because you can't have a background principle that applies to one person but not to another if there's nothing about building a home on this property that rises to the level of a nuisance or something that takes the right to use the property out of the title that that is that your answer to justice ginsburg is that all of those other state regulations are also invalid you know those regulations are fine whatever they may be and they come in off all types of forms the question here is what unit of property do we utilize for determining the takings analysis i want to determine that then you do an ok under that merger law or whatever land use ordinance does it reach a level of magnitude of interference that there is a taking and those would have to be be  analyzed on the merits of their own i thought your argument was that under state law the properties were not formally merged that the merger was only i think is the core put it in fact of merger that's exactly right there there has been no formal merger these remain separate legal lot today that this term merger has been used very loosely and all it really means is that the mers right to independently use and develop has been destroyed doing ok actually so give it away i'm sorry do we know exactly how wisconsin and the county define common ownership for example of one lot is owned by an individual in that person's own  and then the adjacent lot is owned by a wholly owned corporation or l l c is that considered to be common ownership or if one lot is owned by let's say four siblings and the other one is owned by only three of the siblings w happy common ownership under the way wisconsin has applied common ownership as long as they are not informally the same name so here william and dorothy mer they fully owned their plumbing company and so they were technically in different ownership and that was enough to be in separate to be enough if it's been known one wife on the other that's different that separate the way wisconsin has been applying it it would it would encourage that kind of manipulation and broadway's the incentives i mean i've not got beyond homes home says that a regulatory taking pilots the constitution unless it's compensated when it goes too far correct right now would you want us to do is to put some pretty clear lines in that word too far no my problem is i can't think of just what those line should be that perhaps there are many different circumstances and many different factors for example in your case i imagine that what the state was concerned about is they want to preserve a lake at the same time people own some property around that lake and they used to be able to build houses so here's what they say you can build one one and it doesn't matter if you have six let parcels not together or one one is what you can build because after all this constitution is concerned about to paraphrase justice ward protecting people not rocks and so we look at the people and say how does this affect them and in this case you have a case but there are some factors against you and the federal circuit and other opinions of ours have avoided drawing clear lines well you see where i'm going and i just want your general response yes this case does not address the merits of whether there is a taking this case first has to deal with the threshold question of what is the relevant unit of property and that's what i so that's why you're not getting my question because my question is why look for that is it relevant yes is it determinative no if we start making determinative rules developers will take five hundred acres they'll break them down into five hundred different properties state perhaps aiding in this five hundred different ones three of them will be just what plans and they'll say see you took my three when actually he started out with five hundred and it wasn't a big deal do you see the kind of problem they're written about in the briefs i well general reaction well the general reaction is you must begin with the approved legal lots of record that are of actually been approved and that lot lines and everything has to depend on a lot minds because they've been legally approved but there have been other things in this case that have been legally approved too and one of them is this merger provision and you seem to be saying well we look state law for the lot lines but then we ignore state law for the question of when not surmise heard and why should we do that if we're looking to state law let's look to state law the whole ball of wax and other words saying well when i buy those two lots they're really not to allow any more according to state law they're one not in defining property interests roth and to this court in lucas notes seven both recognize that you look to the state law not to the whole body of state law you look to the state law that governs the creation that's the legal recognition of law it's in the protection of the property well it's late and so i think that you're right mr grant it's like the legal recognition of property but the legal recognition of property has something to do with lot lines and it also has something to do with when lots are merged when two lots are merged into one and why would we ignore that question of marja there's two reasons one they have not been all we have to do is to say that the lot lines don't have legal effect for some purposes and it's only for the limited purposes of precluding sale or development but more than that your question comes right back in circles right back to zollo where you really have to define property interests by the rights that are already in place that secure benefits that's what rauf stands for that's what lucas footnote seven stands for and powers all of points out the principle that you cannot then go forward and say oh well the state has rebuilt fine again i think depends on the buyers having the exact same taken claim as the sellers which it seems to me does not exist in this case but let me ask you a different a different way around the question which is whether you think reasonable expectations matter at all in your framework the reasonable expectations that were addressed in lucas footnote seven are the expectations that grow out of the traditional understandings of property law people understand when they buy a lot in a subdivision that they are buying a lot that has a right of use that that has a deed that has geographic buying property in this area i also know that there are these rules about when you can develop on substandard lots and how it is that contiguous slots are understood for purposes of that development potential so why aren't i buying subject to those pre existing regulations in other words this is not a regulation that just happened to me when i was an owner i'm buying subject to i'm property is a bundle of sticks we know that right first year of law school and i'm buying you know certain meats and balance but i'm also buying into a certain set of things about what i can and can't do on the property so why isn't that perfectly consistent with my reasonable expectations i'm supposed to know the zoning regulations and when i buy a house when i buy a piece of land buying subject to the preexisting zoning  regulations i understand the use of reasonable expectations under the pen central for determining whether there is a taking but here we're we have to first determine what unit of property is a lot he or is a lot enough combined and in that situation you have to look at the creation of the property property is property and it says this change but what about course property is property but we are still dealing with the brute vision of the constitution of the in the regulatory area is designed to prevent taking that hurt somebody on reasonably it goes too far so why isn't what you want to look at one thing to look at but we might look at others too we might look for example at whether the individual who bought that property at the time he bought it knew about this restriction we might look at how overall he is hurt in any related way we might look for example at the kind of need that was there and we might see two big questions i mean one big question is you know it's awfully general is is he being treated unfairly either because we're forcing on him the whole cost or a lot of the cost of something that benefits many many others or because we are interfering with investment back expectations i mean as you read the cases it seems to me there are a set of factors like up and my problem with your argument is it wants to take one and then apply a kind of mechanical task now it keeps coming back to you the task first to find a unit of property the murders the murder parents have two separate distinct lots each is was a is a lawful legal building site and if own by anyone else it remains a lawful legal building is how much weight should we be giving to the state boundary lines the state property lines you say as a dominator on the takings chris claim there it's fixed government and in great injustice briars question things the denominator should be a more nuanced calculation although saying croix wisconsin and the solicitor just seem to have a different weight to their so let's start with is yours a fix presumption does anything ever overcome it yet or is it under every circumstance the denominator  you must begin with the presumption of identifying the single parcel and nobody as you point out what don't know no parties and i don't that has action is overcome if you have facts that are sufficient to show in fairness and justice that the individual should bear the burden and an example we can draw straight out of eminent domain law if you have a hotel owned by a person and they own the parking lot next door there are two separate parcels and government is going to condemn the parking lot the parking lot is used with the hotel as an integrated economic unit the presumption in eminent domain laws the same principle here government is taking only the parking lot and they will argue we only pay for the parking lot the burden then shifts to the property owner to prove that the parking lot is an integrated part of the operational so telstra difference between there and the factors that the other parties are using that is look at how the property has been used over time here the family has a house on one parcel a volleyball court and a barbeque storage area on another they use the other parcel house on one side the other parcel as access to the beach the house does has not had an economic value to the children it was there they're using it so what's merced will sometimes walk across it or maybe play volleyball on it but it is not an integrated economic unit as in the hotel parking lot in the hotel in that situation you can overcome the presumption and that landowner in hypothetical if the hotel was on lot f and the parking lot was a lot easier what would be the fair value if the state took latif for a firehouse then you figure out the fair value don't you figure out the value of that on the market through a buyer not the loss to the seller because if the next work that has to be the rule begins with paying for the parking lot and the burden is on the landowner to show that there that person should get additional compensation for the impact to the hotel that's where that just can't be if they're separate lots that's not the law in any state that i know that's the unity of  that is in condemnation all the time and that that's when there are single partial no that's when there are two separate parcels is the hotel and parking lot example then under your view the landowner wins either way parking lot in the hotel there were just different parcels and they the parking lot was serving some other property in the government took that parking lot there's no damages to the to the parcel with the hotel there and the landowner would not be entitled to anything it's took it's not a physical taking but it may have the same practical effect that because the value of lawdy is diminished from four hundred ten thousand to forty thousand dollars there's a ninety percent decrease in value and there is some going to be a much bigger price but it just f or so but the question is the look the murders began with two building sites on separate properties that was taken away the value that you're talking about is the value that comes from being able to build well the merced already have a house on lot f so when you say what is there at the value afterwards the better methodology is how much would the me let's go back to homes case there's one hundred acres there are fifty columns of coal to hold up with to hold up the ceiling that he says is ok no compensation but wait suppose instead of one people one person owning all fifty acres suppose fifty people each own one acre and in some cases the column runs through the acre and some it doesn't does that make any difference assess has to begin by defining the parcel of property that are purely in your opinion if in the homes case instead of one person owning the whole fifty acres as one lot there would have been fifty people who each own d n a now it looks the same you know the columns are in the same places and you're saying that it does make a difference if someone yes or no it does make a difference and the key is to look at the parcel of property that is owned by an individual and is that property being taken away so the usual to eschew is he usually way mr ground or at least a frequent way in which this comes up is a developer bias one hundred acres of land and that land is split up into one hundred one acre parcel us and let's say fifteen one five percent of them are on wetlands and can't be built on it makes an enormous difference whether we're going to say that those fifteen percent are independent lots because if they are then the developer comes in and says you have to pay me for all of that but if they're not the developer is out of luck because it's only fifteen percent of the whole isn't that right the beginning part of your dallas says says the developer subdivided the developer cannot subdivide without government approval and when there's a subdivision that is created under the laws of that state then rights attached yes what does that division has occurred with government approval and the merger provision has occurred with government approval saying that this shouldn't be understood in the case of substandard lots as independent the merger provision is like the wetlands provision both restrict use and then the question then once you've identified the relevant parcel in your hypothetical then the question is is there a taking of that fifteen percent the burden would be on the government to show that that fifteen percent of the loss is actually part of an integrated economic unit as a whole and then you proceed under a takings analysis but in both situations you must first to find the relevant parcel unless or further questions i like to reserve the remainder of my time for rebuttal thank you counsel mr chief justice it may please the court i would like to begin mr chief justice by answering your question or the point that you made the lots here have emerged for all relevant purposes under state law it is true that the lot line between and lot of f still exists but that has absolutely no continuing legal relevance under state law your point is raises my exact concern you said for all relevant purposes the question is what purposes are relevant and it seems to me that what purposes are relevant is analysis under the takings clause and we all know the issues i think that just as prior brought up let's say you have three year three acres of wetlands and you've on one hundred acres you say well my property is these three acres and you've taken it all the laws you don't get the mr grown doesn't get to define property interests that way because it's gaming the system by saying this is what it is now is another one of my colleagues pointed out there are two halves of the state law here half of it is the lot line half of it is the merger and you want to say well for takings purposes all we look at is is the merger and it seems to me that that's just the flip side of what the the landowner can't do you can't sort of preempt by saying we're only going to look at this aspect under which of course we win just like the property owner says we're only going to look at these three three acres under which of course we would not want to be even more specific than what i meant by all of and purposes i mean for all purposes under state law if tomorrow someone went to the county register and deeds and deleted the lot line between light and f there is not a single right that the mers have under state law that they would lose and they're not in the that nobody did that and i'm looking at page three of the pending to the county's brief and that's the basis on which the analysis was done and it says they did not decide what had lots of been formally merged and it's the language that is used throughout these were effectively merged well i mean then on the other side i think they can argue well we effectively drew lines around these three acres and it seems to me that there's a confusion between the definition of property in the question of whether or not there's a takings it and if you start analyzing with the takings factors into whether there's property that muddles the whole analysis where you are let me explain the state's methodology and i think in doing that i think i'll be able to answer your question more clearly the test to identify the relevant parcel in the state submission should be one straightforward question is the land lot of issue completely separate from any other land under state law and there you look at all of state law and where the state law lot line has no meaning for anyone it has it does not give any rights which is the case here so if lots are contiguous that's the end of the question for you not at all your honor our test is if two lots have a vulnerable to criticism as the petitioners you say whatever state law basically or to whatever state law those that defines the property but you have to look at the reasonable investment back the expectations of the owner right right ron and i want to clarify that what we're talking about here is just a threshold question and after the threshold question is determined the reasonable expectations will in the vast majority of cases be analyzed as part of the penn central now says the approach urged by the federal government the county you basically have penned central squared well let me give you this example apply it's not that far from this case a plumber and his wife buy a small lot but it's a lot on which you can build houses at that time and they build a modest house and they say you know we're going to there's a lot next door let's buy that we can use it as a yard for our children when they're growing up and then after they're grown we can sell it and we'll have some money for retirement and that's a build a whole lot at that time and then this new regulation is adopted and now the sidewalk can't be sold at all and they say well look you've taken away this valuable asset we were going to use for our retirement and the answer is well no because you could you could sell your whole property and somebody who wants to build a big house could build on that property and they say well that's fine but we like our little house we'd like to stay in our little house and what is fair about that situation here i wan clarify i believe that in your hypothetical when you had two lot or preexisting and owned by the same person and then they were in voluntarily merged by government action in fell six would in fact be on each slot separately it is completely different when you mean by they were in voluntarily d fall under your regulation isn't that this no your honor the fundamental difference in this case is that the merger happened by a voluntary action of the plaintiffs and what the plaintiffs did when they acquired two contiguous stops standard lo but is by voluntary action as defined by state law that will take that voluntary action and if the state law that makes the consequence and that's the consequence we're talking about well your honor i think the question is the justice kagan was asking clarify this point that is to say if you want to in this case talk about what this regulation did in one thousand nine hundred six is it put a conditional still restriction on the parents who own lobby we know that's a very fine argument except for the fact that it's completely because what happened in one thousand nine hundred six the parents owned lot only the or the end their interest a lot it was protected by the grandfather clause the only the additional restriction upon the parents that was placed in one hundred seventy six by the state was a conditional solution that is you can do anything with the lot you want you can sell to everyone the only thing you can do practically is sell it to someone who only wants to buy it if the also own a lot next door and wholly owned corporation or an l l c and the other is owned by the owner in the owner's own name are they considered to be under common ownership under wisconsin or no you are no unless you can pierce the corporate veil which is obviously a very high standard that makes it seem we talk about an injustice and fairness that seems to make it seem a little quirky that that these owners are not entitled to treat them separately while if the they just happen to record them in separate names that they would be an entirely different situation well let me explain what the state is trying to achieve in this law it wants to ultimately phase out substandard lots in the long term it does not want to interfere with any current investment back expectations so what it is we're going to have a slow phase out and it's going to be only triggered by the situation where people end up taking the lots in common ownership and that will happen in the long term most people in this area bring that loss in the car or ship on purpose and why do they do that because they will they won't fine well does it really there's the whole takings issue really turn on that just right now let me tell you what we do think it'll be effective because most people bring these lost under common ownership purposefully and the reason they do that is they want to build a single house up on the bluff a bigger house so the reason and we think that that will happen over time it's already happened with it property owners in this area so while it is a slow phase out of lots it is a perfectly sensible regime  balances on one hand the desire to protect investment settle back i would suppose that in my hypothetical the husband owner on one side in the wife own or on the other side they can build a common house on the two lots can think the the merger of the two lost a ring and car ownership makes it easier to apply comply with other regulatory restrictions on the area about minimum lot size and things of that sort if you don't bring them into common ownership then you are left with the non conforming question right now it's point nine eight now project area if logic is more than point two per project area they can build one house and then the new lot gets them the new in that project area so basically in order to have to build up a lot you have to add up to more than two acres of the project area it makes no difference under your approach that the two lots were taxed separately does it no your honor i've just made it makes no difference under your approach that there were a lot line separating the two  that fact milt noted strongly in favor of the the rule that we urge because an all rule look at only state law and you look at where the lots are actually separate under state law under the all things considered approach a under state law there is no no legal situation in which the lot line between lot you know a lot of makes any difference right now so i'm not quite an answer are they legally separate under state law they're still shown on the pla as separate lots that's correct rather so to what extent is it wrong for me to understand that the only cons the only sense in which the merger doctrine that you're talking about applies is with respect to a three kings claim it's got to every possible use or sale of these lots any development and he still anything else the person in the real world want to do there would be no difference there is not a single action that someone could take that they couldn't take if the law i was deleted it  makes no difference to the lot line between law easy and lot of as a currently stands wasn't so there is no reason to under state law there is a procedure to eliminate the long lines and you're saying that that procedure is irrelevant  case it would be completely irrelevant no one would go through that process because it would not add or subtract any single right to the murders if they don't read it out loud let me ask a question the difference between you and the other folks on that side of the room is that they want to look at reasonable expectations and state law in part defines those reasonable expectations but they're allowing for the idea that other things might come in as well and you're saying it's all and only state law now i'm pretty sympathetic to the idea that preexisting state law really does influence quite a bit your expectations about what property you own and what you can do with it but still what's the harm of doing what the government and the county want rather than what you want in terms of saying and alice's should be a little bit more fluent fluid sure state matters but maybe other things matter too in a particular situation because you get with an their approach is as concentric squared that is to say you have a complex multi factor analysis basically in all things considered elsa's at step one just to figure out the parcel and then in the vast majority of cases you then  complex multi factor analysis we do which is going to look at a lot of the same factors i think one area of agreement among the parties in the images briefs in this case is this is area of law is incredibly complicated it's difficult to make your way through the weeds what does matter to you if it were not possible to build a house that bridged the two lots suppose one was at the bottom one lot is at the bottom of a cliff and the other is a top with that matter to you in defining what the relevant parcel is it would not it would matter quite a bit in doing the hard work of doing the pen central narcisse and that's one of the key points i'd like to reemphasize we believe finish my sentence we believe that most of the work under law should be done at that second step usually pencil we believe the first step the partial questions we determine in a straightforward way so the courts can move on to doing the hard work attend central think your honour's thank you commonly known substandard trace it wants during all those decades no court at any time in any jurisdiction in the united states has held that exclusion amounts we're taking and for good reason it's fair and it's just and the same reason well that's it gets to the questions i was asking really fairness and justice that and it's actually the little the point that was last made by by your friend there are two different questions what is property and whether there's been a taking and i thought the question of fairness and justice is justice is applied to the second question i didn't think it was applied to defining what the property was because then you really do get as he said penn central squared if you're looking at fairness and justice how should we define this property  fairness and justice for what purpose well for the takings clause and then once you define it then you say well it's fairness and justice for whether there's been a taking it seems to me that you're just kind of teeing up the definition of property to give you the right answer under the takings clause your honor in this case and ali there is some circularity here but let me tell you why there's some circularity here and that is because they're making a taking challenge to a very very odd topic and that is the absence of an exclusion and the reason why there is no exclusion for these kinds of substandard common adjacent lot is precisely because government has determined over decades that in this situation the economic impact isn't so great there isn't so hard so the premise of the of these ordinances is the absence of hardship and since the purpose of the penn central analysis or the lucas accounts for economic impact is to identify when the hardship really is so great to justify the payment of just compensation it's not surprising that the very teachings of these ordinances is directly relevant to how you divide up can you say that the impact is not is categorically not great something somebody buys a lot next to that person's house with the expectation of selling it at some point in the future to meet real needs that come up then and then that regulation is adopted that says well sorry or you can sell it that there's no hardship there is a hardship the question though is how you define the extent of the hardship and what you want what you need to look at under that pencil to analysis is what the  that there is no genuine issue material fact where the lower courts on this question the value of the two parcels together for one house is six hundred ninety thousand dollars the value the two houses separate with a house on each is seven hundred seventy one thousand dollars well that's fine except that subjective preferences then someone else is subject to preferences the fact is i think what you're saying is we have to look at what's fair and just and how you say well we disregard the situation of the particular people who are involved well you know what you're looking at is several things you're looking at first with the economic impact is to find the parts in a way which actually evaluates the real impact not a fictional impact but the real impact the real impact here is very little you're also taking account the state law you're looking at the law at the time to figure out what the re expectations are of people you're taking that kind of well the other thing you take into account your honor is the point you mentioned before contiguous is by itself wouldn't be enough we are arguing that one thing you look at is the state law for expectations you also look at the physical  geographic characteristics the property in other words to find out whether there was any real potential here for unity of use integrative use for instance in this case if lothian af were different and you had one above and one down below that might well be a harder case to suggest that there was that kind of unity used integrated and you look at those two the thing is because what you try to look for to evaluate the parcel is you're trying to see what the real burden is that people are suffering in the case and you know it remarkable finding that there's such a little difference in value between one house on two and two houses each on one and and the reason for that there's actually a formal term in economics for it's called the complementarity principle we don't need to know that term it's just common sense there's some kinds of property land is one of them that can create that joint that doesn't exist when separate the most extreme example issues no one would pay very much for just the right you are left but they pay a fair amount for the two shoes together land is not extreme example like shoes but the same phenomena if you're trying to figure out then what the land interest is and usually there's a regular way to do that which is you go down to the county office and you look at what the the lines are between your property and somebody else's or your lot in a different light you don't look to whether one's below and one's above that it seems to me that gets into a very complicated situation when for federal takings purposes you're redefining what state law says property us what you're doing what you're doing your honor if you're trying to determine the economic impact there's no question state law defines what you own but the question of whether it's a taking it's a question of federal constitutional law and the economic impact inquiry has to see to what extent there really is this incredibly disproportionate burden they're facing or not in the pen sent in the pen sorry the pen central case and the keystone by tunis case every one of those cases state law defined a separate property interest things will be bought in s their rights to be bought and sold to support a stake we bought and sold mineral stake we bought sole under state law they were distinct property rights under state law and the court nonetheless as a matter of federal constitutional law joined them together because the court wanted to find out whether in fact there was that kind of columns of a thousand feet of co but every expert said or everyone who knew about it said you don't need more than fifty feel it certainly is true that often alice if you pay attention the reason was you pay attention to whether the government  don't just accept the government think doesn't automatically got that idea in your three absolutely your if it's under pen central and in this case in this case this is really the easy case it's almost a sewage generous case because the the state law issue is one which which is premised on the notion that under this circumstance you actually don't face such a great hardship that's exactly why they don't get the exemption so this is if they're not challenging the restriction they're actually challenging not get exemption with someone else is getting and the reason that getting that exemption is they don't have same hardship that other people have the owner of the isolated lot substandard lot absent some kind of exemption they face the prospect of a complete economic wipeout but the owner of two substandard adjacent lot they don't that person like the birds they are developing options and addition they have the opportunity as i said before to create value value doesn't it except for it and in this case the value of joint property together the reason why this property which is beautiful property st beautiful sink or a river at the bend the river the reason why it's so valuable is two things river frontage and privacy that's what that's the touchstone of value here and a lot af is only fifty eight feet wide the bottom of the distance between the two columns in this room and right next to a public area lot eat as one hundred feet twice that of river frontage and off to the west more privacy when you add those two are together the value of this  so great and actually almost overcomes the loss in value of not having the second home i'm sorry i had a problem with the appraisal figures and it may be a step on this ng why would anybody pay four hundred only a ten percent difference but as i understood the appraisal figures and i'm now using estimates that each lot was worth about three fifty and four hundred thousand separately for a value of seven fifty together they were valued at sixty so they were if you didn't double the price no but what you did if you didn't lose very much by not be able to build the second home the value doesn't sort of half the question is not that what the value of lidy as a unit that you can't develop or build on the question is what the value of lidy is to the birds who also own lot f because that's how you define what the burden is to them and the burden them if they do something only old windy then the hardship exemption would apply and they could build that's exactly distinction that the ordinance draws between the two it is this right and just say yes or no and if it's wrong i'll figure it out later are you saying look of course you look at the lines that the state draws but that isn't determinative because you want to know the total impact on the person which made it you look at nearby property or other things you want to know how reasonable this regulation and effects it is you want to know whether he knew when he bought it and perhaps there are others is that basically what you're saying you're not denying that you look at the state's lines it's just that they're not determinative mr chief justice may answer the question if you wanted one word yes i'd like to begin with your question mr chief justice about why it wouldn't be sensible to just look at lot lines here is the starting point for defining the parcel as a whole and as justice breyer just noted we think the lot lines are certainly relevant especially insofar as they might shape reasonable expectations about how property owners expect to use their property and what they expect to remain separate and distinct but we urge this court not to adopt a presumption or a bright line rule that focuses on lot lines in isolation and we really see two princip problems with that one of which is practical and the other is legal well i'm sorry go ahead just turning to the practical point first especially when you're looking at contiguous commonly owned property which is the situation the courts confronting here we think that will frequently not be an accurate indicator of how that claimant is being burdened by that particular regulation and that's because when you have those contiguous commonly owned lots there's a physical unity that frequently opens up the potential for willing to use lin development a direct reciprocity of advantage and shared value and so when thinking about how to address the parcel as a whole issue where the whole purpose the whole point is to get a feel for how the regulation is actually impacting this claimant focusing on lot lines would exclude relevant considerations about the on the ground economic realities see that's i just don't know how that works with with property not asking where there's a takings but asking whether there's property you say it depends on spatial functional and what's the third from temporal temporal considerations well you usually don't say that when you're asking about property you say i owned lock or i own a lot f and here it is on the map that's what i own you don't sit down and say well but with special considerations i own this much of it and when temporal considerations at this and functional that it seems to me that those concerns are pertinent considering whether those are two of the property but when it comes to what the property is that's a whole different question and you don't get in the special you get into what the plant looks like in the county office i think it's absolutely the case that for terms in terms of defining what's a protected property interest at the outset you look to state law  lot lines and no one is contesting here that there's a protected property interest but we think that this relevant parcel determination does come into the second part of the inquiry in terms of whether there's been a taking it's about how do you get a feel for the relevant unit of property that's at issue to determine how this regulation is actually affecting this claimant and so we would put those considerations on the taking side of the line this court has only shown a preference in deciding as justice prior said and justice holmes is famous formulation whether a regulation goes too far the courts only shown a preference for being able to engage in that kind of contextual analysis that focuses on all of the relevant facts and circumstances the problem i have with your purse which as this three components is i don't into your your three factors we think that it frequently goes to the functional considerations because it shapes expectations about how land can properly be used whether it's an entirely separate and distinct issues so we do think that there's a role for state law to play in here we think actually that's one of the if we think there should be more of a rule where would you put st croix puts it on the second term where would you when they're putting it in why do you disagree with how they use i think it's very important not to adopt any kind of presumption or bright line rule for the relevant parcel and so i also would put it on the second prong of conducting the pencil analysis but the reason for that is because the relevant parcel that the threshold definitional question is going to provide the touchstone that contextualizes the whole rest of the takings inquiry and if the court were to artificially narrow it and look only at lot lines or give presumptively to those last lines then that's going to be the focal point for measuring economic impact for looking at investment back to expect and spurs you have lots that are not contiguous but they're very close to each other and i wonder your flexible will approach with all these different dimensions are they ruled out all this is a single p think it would be very difficult to say that those kinds of noncontiguous properties function as an integrated economic unit so i think it would be the rare case where it would be appropriate to abrogate those property interests but i think that it is important to keep in mind that there are so many different ways that property interests arise that it is important to have a flexible nuanced approach here and justice alito i would just point to the example we've raised about the large developer who acquires a large tract maybe a thousand acres of property and done prior to part of the time when one of whom would be would be applied but you know it's fine to say that there are all these dimensions and i should be nuanced and who can be opposed to something that's new once but what are we looking for well what are we looking for we're looking at all these dimensions to determine what could you just say as precisely as you can what we should be looking for in just defining what is the property that is using all of the  different dimensions of it in your view i think the clearest articulation i have is to say that you should be looking for what in the interests of fairness and justice is an accurate way to measure economic impact and that's the point of the relevant person determination it's focused specifically on the economic impact prong of the equation and this is the economic impact on these particular owners or on some category of hypothetical owners it's always been an individual ised inquiry focused on these particular owners and i think that the facts of this case well illustrate the point that when you're conducting that kind of valuation it's often the case as as mr lazarus said that you're going to have a shared value a reciprocal value that what wonderful lot was was preserved what if it was bought for the purpose of selling it at some point in the future and or it was preserved for that purpose so that nothing was built on it so that it could readily be sold i think that those kinds of reasonable investment back expectations have a role to play but i don't think that they can be dispositive because again the point of the relevant parcel determination is to accurately gauge economic impact but i do think that it's simple why wouldn't they be determinative i thought you said it was we looked at it with gentlemen expectations their expectations are completely frustrated it's certainly the case that any time anyone is alleging a regulatory taking the premise of the claim is that they're being prevented from doing something with their property that they wanted to do with it we think that that's not sufficient to a loan to find the relevant parcel because that might be the case as it is here that there's actually not much of an economic impact at all and if that's the case then this isn't the kind of regulation that is requiring someone to shoulder a are side well to the extent that the court were to conclude that that is an undue interference with their investment back expectations or that the character of that government action is actually unjust and anomalous then i think that this court's precedent already buil insufficient protection for those kinds of interests without trying to rely solely on expectations to identify the relevant parcel reasonable investment expectation were objective you're now making them subjective oh no to be kennedy we do think that it has to be an objective inquiry and i understood justice alito to be focusing on a fact pattern where the property was acquired before the relevant regulatory restriction was inactive and thereby frustrated the expectations here we think it's actually a critical fact that petitioners voluntarily brought this land under common ownership and so triggered the application of the merger provision decades after the relevant regulatory restriction was in place and that does weekend the idea that there were any objective lee reasonable expectation i actually think ownership from the atlantic coming company that's correct whether you're a little in either the parents or the children if they had been paying attention to the regulatory scheme how to reasonable expectation that's exactly correct we think that the timing here of the relevant transfers of property reinforces the idea that it's proper to view these two parcels together as an integrated whole and the other facts that i would add to that are the spatial ones the fact that these are contiguous commonly known trac counsel mr brown you have four minutes remaining thank you beginning with the multi factor nuanced approach the reason why that kind of approach to defining the property interest remember the first issue we have to define the property interest that is the subject of the taking  the reason is because the whole real estate industry from mortgage lenders to property owners to title insurance companies all rely upon the geographic boundaries and it's exactly as was suggested the regulations that it was very i'm sorry with the regulations that affect those countries whether it's a title company or any one ounce the really look at what the paper talks about as a property line and what regulation with respect to that and when the regulations are read the fine and impose a new definition the reliance that previously existed is undermined and that is the of the taking scrying it is not a redefinition i see that these properties report separately one by the parents the other by their company and the post regulations knowing exactly what they were doing and you say they didn't but that has to do with their choice because you buy everything subject to regulation you may not choose to look at it but you should ignorance of the law is not a defense anywhere i don't know why it should be in the regulatory context but putting that aside they took the title to the property in their own names post regulation yes they did this is a normal regulatory requirements that i write a piece of property ten years ago or twenty years ago and i didn't know how to put a sprinkler system in today if you want to do any kind of renovation you've got to put one in subdivisions and deeds that is a system that all of this country relies upon and if we're going to undermine that that is a serious step in taking away rights and property that people traditionally understand and use in their daily lives that's for the protection that's talked about in roff the board of regents the second thing is this valuation question and couple of points on that all the discussion about well the properties of valuable because as waterfront all of that discussion goes to the merits takings claim in other words how much economic impact is there the first step is to to find the relevant unit of property for analysis and that step is looking at the deeds and the the geographic boundaries of that is the presumption when you turn to the valuation question the notion that lot the combined lot f has value because it's waterfront that is ignoring the fundamental aspect that the valuation in a residential lot is because you can build on it and that has what has been taken from the mergers they previously had to building sites and now they have one if the valuation that the county discusses the value is not attributed to lot because lot f has the buildings so really the county is getting a windfall by suggesting that all well you can have this bigger better lot and that will enable you to recover from the compensation that goes to the question on remount of how do you how do you determine  the amount of damages thank you for one to council cases submitted