(Slip Opinion) OCTOBER TERM, 2016 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MURR ET AL. v. WISCONSIN ET AL. 

CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN 

No. 15–214. Argued March 20, 2017—Decided June 23, 2017 

The St. Croix River, which forms part of the boundary between Wisconsin and Minnesota, is protected under federal, state, and local law.

Petitioners own two adjacent lots—Lot E and Lot F—along the lower 

portion of the river in the town of Troy, Wisconsin. For the area 

where petitioners’ property is located, state and local regulations 

prevent the use or sale of adjacent lots under common ownership as

separate building sites unless they have at least one acre of land

suitable for development. A grandfather clause relaxes this restriction for substandard lots which were in separate ownership from

adjacent lands on January 1, 1976, the regulation’s effective date. 

Petitioners’ parents purchased Lots E and F separately in the 

1960’s, and maintained them under separate ownership until transferring Lot F to petitioners in 1994 and Lot E to petitioners in 1995.

Both lots are over one acre in size, but because of their topography 

they each have less than one acre suitable for development. The unification of the lots under common ownership therefore implicated the

rules barring their separate sale or development. Petitioners became 

interested in selling Lot E as part of an improvement plan for the

lots, and sought variances from the St. Croix County Board of Adjustment. The Board denied the request, and the state courts affirmed in relevant part. In particular, the State Court of Appeals 

found that the local ordinance effectively merged the lots, so petitioners could only sell or build on the single combined lot. 

Petitioners filed suit, alleging that the regulations worked a regulatory taking that deprived them of all, or practically all, of the use of

Lot E. The County Circuit Court granted summary judgment to the 

State, explaining that petitioners had other options to enjoy and use 

their property, including eliminating the cabin and building a new

residence on either lot or across both. The court also found that peti-
 

 

 

 

 

 

 

2 MURR v. WISCONSIN 

Syllabus 

tioners had not been deprived of all economic value of their property, 

because the decrease in market value of the unified lots was less than 

10 percent. The State Court of Appeals affirmed, holding that the

takings analysis properly focused on Lots E and F together and that, 

using that framework, the merger regulations did not effect a taking. 

Held: The State Court of Appeals was correct to analyze petitioners’ 

property as a single unit in assessing the effect of the challenged governmental action. Pp. 6–20.

(a) The Court’s Takings Clause jurisprudence informs the analysis

of this issue. Pp. 6–11.

(1) Regulatory takings jurisprudence recognizes that if a “regulation goes too far it will be recognized as a taking.” Pennsylvania Coal 

Co. v. Mahon, 260 U. S. 393, 415. This area of the law is characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra 

Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 

U. S. 302, 322 (citation and internal quotation marks omitted). 

The Court has, however, identified two guidelines relevant for determining when a government regulation constitutes a taking. First, 

“with certain qualifications . . . a regulation which ‘denies all economically beneficial or productive use of land’ will require compensation

under the Takings Clause.” Palazzolo v. Rhode Island, 533 U. S. 606, 

617 (quoting Lucas v. South Carolina Coastal Council, 505 U. S. 

1003, 1015). Second, a taking may be found based on “a complex of

factors,” including (1) the economic impact of the regulation on the 

claimant; (2) the extent to which the regulation has interfered with

distinct investment-backed expectations; and (3) the character of the 

governmental action. Palazzolo, supra, at 617 (citing Penn Central 

Transp. Co. v. New York City, 438 U. S. 104, 124). Yet even the complete deprivation of use under Lucas will not require compensation if

the challenged limitations “inhere . . . in the restrictions that background principles of the State’s law of property and nuisance already

placed upon land ownership.” Lucas, 505 U. S., at 1029. 

A central dynamic of the Court’s regulatory takings jurisprudence 

thus is its flexibility. This is a means to reconcile two competing objectives central to regulatory takings doctrine: the individual’s right 

to retain the interests and exercise the freedoms at the core of private

property ownership, cf. id., at 1027, and the government’s power to 

“adjus[t] rights for the public good,” Andrus v. Allard, 444 U. S. 51, 

65. Pp. 6–9.

(2) This case presents a critical question in determining whether 

a regulatory taking has occurred: What is the proper unit of property 

against which to assess the effect of the challenged governmental action? The Court has not set forth specific guidance on how to identify 
 

 

Cite as: 582 U. S. ____ (2017) 3 

Syllabus 

the relevant parcel. However, it has declined to artificially limit the

parcel to the portion of property targeted by the challenged regulation, and has cautioned against viewing property rights under the 

Takings Clause as coextensive with those under state law. Pp. 9–11.

(b) Courts must consider a number of factors in determining the 

proper denominator of the takings inquiry. Pp. 11–17.

(1) The inquiry is objective and should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel 

or as separate tracts. First, courts should give substantial weight to 

the property’s treatment, in particular how it is bounded or divided,

under state and local law. Second, courts must look to the property’s 

physical characteristics, including the physical relationship of any 

distinguishable tracts, topography, and the surrounding human and 

ecological environment. Third, courts should assess the property’s 

value under the challenged regulation, with special attention to the 

effect of burdened land on the value of other holdings. Pp. 11–14.

(2) The formalistic rules for which the State of Wisconsin and

petitioners advocate do not capture the central legal and factual principles informing reasonable expectations about property interests.

Wisconsin would tie the definition of the parcel to state law, but it is

also necessary to weigh whether the state enactments at issue accord

with other indicia of reasonable expectations about property. Petitioners urge the Court to adopt a presumption that lot lines control, 

but lot lines are creatures of state law, which can be overridden by

the State in the reasonable exercise of its power to regulate land.

The merger provision here is such a legitimate exercise of state power, as reflected by its consistency with a long history of merger regulations and with the many merger provisions that exist nationwide

today. Pp. 14–17.

(c) Under the appropriate multifactor standard, it follows that petitioners’ property should be evaluated as a single parcel consisting of

Lots E and F together. First, as to the property’s treatment under 

state and local law, the valid merger of the lots under state law informs the reasonable expectation that the lots will be treated as a

single property. Second, turning to the property’s physical characteristics, the lots are contiguous. Their terrain and shape make it reasonable to expect their range of potential uses might be limited; and

petitioners could have anticipated regulation of the property due to

its location along the river, which was regulated by federal, state, 

and local law long before they acquired the land. Third, Lot E brings

prospective value to Lot F. The restriction on using the individual 

lots is mitigated by the benefits of using the property as an integrated whole, allowing increased privacy and recreational space, plus an 
 

 

 

 

 

4 MURR v. WISCONSIN 

Syllabus 

optimal location for any improvements. This relationship is evident 

in the lots’ combined valuation. The Court of Appeals was thus correct to treat the contiguous properties as one parcel. 

Considering petitioners’ property as a whole, the state court was 

correct to conclude that petitioners cannot establish a compensable 

taking. They have not suffered a taking under Lucas, as they have 

not been deprived of all economically beneficial use of their property. 

See 505 U. S., at 1019. Nor have they suffered a taking under the 

more general test of Penn Central, supra, at 124. Pp. 17–20. 

2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628, affirmed. 

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, 

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ROBERTS, C. J., filed a 

dissenting opinion, in which THOMAS and ALITO, JJ., joined. THOMAS, J., 

filed a dissenting opinion. GORSUCH, J., took no part in the consideration or decision of the case. 
 

 

_________________ 

_________________ 

Cite as: 582 U. S. ____ (2017) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 15–214 

JOSEPH P. MURR, ET AL., PETITIONERS v. 

WISCONSIN, ET AL. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

WISCONSIN, DISTRICT III
 

[June 23, 2017] 

JUSTICE KENNEDY delivered the opinion of the Court. 

The classic example of a property taking by the government is when the property has been occupied or otherwise

seized. In the case now before the Court, petitioners contend that governmental entities took their real 

property—an undeveloped residential lot—not by some 

physical occupation but instead by enacting burdensome

regulations that forbid its improvement or separate sale

because it is classified as substandard in size. The relevant governmental entities are the respondents. 

Against the background justifications for the challenged 

restrictions, respondents contend there is no regulatory

taking because petitioners own an adjacent lot. The regulations, in effecting a merger of the property, permit the 

continued residential use of the property including for a 

single improvement to extend over both lots. This retained right of the landowner, respondents urge, is of 

sufficient offsetting value that the regulation is not severe 

enough to be a regulatory taking. To resolve the issue 

whether the landowners can insist on confining the analysis just to the lot in question, without regard to their 
 

 

2 MURR v. WISCONSIN 

Opinion of the Court 

ownership of the adjacent lot, it is necessary to discuss the 

background principles that define regulatory takings. 

I 

A 

The St. Croix River originates in northwest Wisconsin

and flows approximately 170 miles until it joins the Mississippi River, forming the boundary between Minnesota

and Wisconsin for much of its length. The lower portion of

the river slows and widens to create a natural water area 

known as Lake St. Croix. Tourists and residents of the 

region have long extolled the picturesque grandeur of the

river and surrounding area. E.g., E. Ellett, Summer Rambles in the West 136–137 (1853). 

Under the Wild and Scenic Rivers Act, the river was 

designated, by 1972, for federal protection. §3(a)(6), 82

Stat. 908, 16 U. S. C. §1274(a)(6) (designating Upper St.

Croix River); Lower Saint Croix River Act of 1972, §2, 86

Stat. 1174, 16 U. S. C. §1274(a)(9) (adding Lower St. Croix

River). The law required the States of Wisconsin and

Minnesota to develop “a management and development 

program” for the river area. 41 Fed. Reg. 26237 (1976). In 

compliance, Wisconsin authorized the State Department of 

Natural Resources to promulgate rules limiting development in order to “guarantee the protection of the wild,

scenic and recreational qualities of the river for present 

and future generations.” Wis. Stat. §30.27(l) (1973). 

Petitioners are two sisters and two brothers in the Murr 

family. Petitioners’ parents arranged for them to receive 

ownership of two lots the family used for recreation along 

the Lower St. Croix River in the town of Troy, Wisconsin.

The lots are adjacent, but the parents purchased them

separately, put the title of one in the name of the family

business, and later arranged for transfer of the two lots, 

on different dates, to petitioners. The lots, which are 

referred to in this litigation as Lots E and F, are described 
Cite as: 582 U. S. ____ (2017) 3 

Opinion of the Court 

in more detail below. 

For the area where petitioners’ property is located, the

Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable

for development. Wis. Admin. Code §§ NR 118.04(4), 

118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grandfather clause relaxes this restriction for substandard 

lots which were “in separate ownership from abutting

lands” on January 1, 1976, the effective date of the regulation. § NR 118.08(4)(a)(1). The clause permits the use of

qualifying lots as separate building sites. The rules also 

include a merger provision, however, which provides that 

adjacent lots under common ownership may not be “sold or 

developed as separate lots” if they do not meet the size 

requirement. § NR 118.08(4)(a)(2). The Wisconsin rules 

require localities to adopt parallel provisions, see 

§ NR 118.02(3), so the St. Croix County zoning ordinance

contains identical restrictions, see St. Croix County, Wis.,

Ordinance §17.36I.4.a (2005). The Wisconsin rules also 

authorize the local zoning authority to grant variances

from the regulations where enforcement would create

“unnecessary hardship.” § NR 118.09(4)(b); St. Croix 

County Ordinance §17.09.232. 

B 

Petitioners’ parents purchased Lot F in 1960 and built a

small recreational cabin on it. In 1961, they transferred 

title to Lot F to the family plumbing company. In 1963, 

they purchased neighboring Lot E, which they held in

their own names. 

The lots have the same topography. A steep bluff cuts

through the middle of each, with level land suitable for

development above the bluff and next to the water below 

it. The line dividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing the blufftop 

along the way. Lot E has approximately 60 feet of river 
 

 

4 MURR v. WISCONSIN 

Opinion of the Court 

frontage, and Lot F has approximately 100 feet. Though

each lot is approximately 1.25 acres in size, because of the 

waterline and the steep bank they each have less than one 

acre of land suitable for development. Even when combined, the lots’ buildable land area is only 0.98 acres due 

to the steep terrain.

The lots remained under separate ownership, with Lot F

owned by the plumbing company and Lot E owned by

petitioners’ parents, until transfers to petitioners. Lot F 

was conveyed to them in 1994, and Lot E was conveyed to 

them in 1995. Murr v. St. Croix County Bd. of Adjustment, 2011 WI App 29, 332 Wis. 2d 172, 177–178, 184–

185, 796 N. W. 2d 837, 841, 844 (2011); 2015 WI App 13,

359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished opinion),

App. to Pet. for Cert. A–3, ¶¶4–5. (There are certain

ambiguities in the record concerning whether the lots had

merged earlier, but the parties and the courts below appear to have assumed the merger occurred upon transfer

to petitioners.)

A decade later, petitioners became interested in moving 

the cabin on Lot F to a different portion of the lot and 

selling Lot E to fund the project. The unification of the 

lots under common ownership, however, had implicated

the state and local rules barring their separate sale or

development. Petitioners then sought variances from the

St. Croix County Board of Adjustment to enable their 

building and improvement plan, including a variance to

allow the separate sale or use of the lots. The Board denied the requests, and the state courts affirmed in relevant part. In particular, the Wisconsin Court of Appeals 

agreed with the Board’s interpretation that the local 

ordinance “effectively merged” Lots E and F, so petitioners

“could only sell or build on the single larger lot.” Murr, 

supra, at 184, 796 N. W. 2d, at 844. 

Petitioners filed the present action in state court, alleging that the state and county regulations worked a regula­
Cite as: 582 U. S. ____ (2017) 5 

Opinion of the Court 

tory taking by depriving them of “all, or practically all, of 

the use of Lot E because the lot cannot be sold or developed as a separate lot.” App. 9. The parties each submitted appraisal numbers to the trial court. Respondents’

appraisal included values of $698,300 for the lots together 

as regulated; $771,000 for the lots as two distinct buildable properties; and $373,000 for Lot F as a single lot with 

improvements. Record 17–55, 17–56. Petitioners’ appraisal included an unrebutted, estimated value of 

$40,000 for Lot E as an undevelopable lot, based on the 

counterfactual assumption that it could be sold as a separate property. Id., at 22–188. 

The Circuit Court of St. Croix County granted summary

judgment to the State, explaining that petitioners retained 

“several available options for the use and enjoyment of 

their property.” Case No. 12–CV–258 (Oct. 31, 2013), App.

to Pet. for Cert. B–9. For example, they could preserve the 

existing cabin, relocate the cabin, or eliminate the cabin 

and build a new residence on Lot E, on Lot F, or across 

both lots. The court also found petitioners had not been

deprived of all economic value of their property. Considering the valuation of the property as a single lot versus two 

separate lots, the court found the market value of the 

property was not significantly affected by the regulations

because the decrease in value was less than 10 percent. 

Ibid. 

The Wisconsin Court of Appeals affirmed. The court 

explained that the regulatory takings inquiry required it 

to “‘first determine what, precisely, is the property at 

issue.’” Id., at A–9, ¶17. Relying on Wisconsin Supreme 

Court precedent in Zealy v. Waukesha, 201 Wis. 2d 365, 

548 N. W. 2d 528 (1996), the Court of Appeals rejected 

petitioners’ request to analyze the effect of the regulations

on Lot E only. Instead, the court held the takings analysis 

“properly focused” on the regulations’ effect “on the Murrs’ 

property as a whole”—that is, Lots E and F together. App. 
 

 

 

6 MURR v. WISCONSIN 

Opinion of the Court 

to Pet. for Cert. A–12, ¶22.

Using this framework, the Court of Appeals concluded

the merger regulations did not effect a taking. In particular, the court explained that petitioners could not reasonably have expected to use the lots separately because they 

were “‘charged with knowledge of the existing zoning 

laws’” when they acquired the property. Ibid. (quoting 

Murr, supra, at 184, 796 N. W. 2d, at 844). Thus, “even if 

[petitioners] did intend to develop or sell Lot E separately, 

that expectation of separate treatment became unreasonable when they chose to acquire Lot E in 1995, after their 

having acquired Lot F in 1994.” App. to Pet. for Cert. A– 

17, ¶30. The court also discounted the severity of the 

economic impact on petitioners’ property, recognizing the

Circuit Court’s conclusion that the regulations diminished 

the property’s combined value by less than 10 percent.

The Supreme Court of Wisconsin denied discretionary 

review. This Court granted certiorari, 577 U. S. ___ 

(2016). 

II
 

A 

The Takings Clause of the Fifth Amendment provides 

that private property shall not “be taken for public use,

without just compensation.” The Clause is made applicable to the States through the Fourteenth Amendment. 

Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). 

As this Court has recognized, the plain language of the

Takings Clause “requires the payment of compensation 

whenever the government acquires private property for a

public purpose,” see Tahoe-Sierra Preservation Council, 

Inc. v. Tahoe Regional Planning Agency, 535 U. S. 302, 

321 (2002), but it does not address in specific terms the 

imposition of regulatory burdens on private property. 

Indeed, “[p]rior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was 
 

 

Cite as: 582 U. S. ____ (2017) 7 

Opinion of the Court 

generally thought that the Takings Clause reached only a 

direct appropriation of property, or the functional equivalent of a practical ouster of the owner’s possession,” like 

the permanent flooding of property. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1014 (1992) (citation,

brackets, and internal quotation marks omitted); accord, 

Horne v. Department of Agriculture, 576 U. S. ___, ___ 

(2015) (slip op., at 7); see also Loretto v. Teleprompter 

Manhattan CATV Corp., 458 U. S. 419, 427 (1982). Mahon, however, initiated this Court’s regulatory takings

jurisprudence, declaring that “while property may be 

regulated to a certain extent, if regulation goes too far it

will be recognized as a taking.” 260 U. S., at 415. A regulation, then, can be so burdensome as to become a taking,

yet the Mahon Court did not formulate more detailed 

guidance for determining when this limit is reached. 

In the near century since Mahon, the Court for the most 

part has refrained from elaborating this principle through

definitive rules. This area of the law has been characterized by “ad hoc, factual inquiries, designed to allow careful

examination and weighing of all the relevant circumstances.” 

Tahoe-Sierra, supra, at 322 (citation and internal quotation marks omitted). The Court has, however, stated two 

guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking.

First, “with certain qualifications . . . a regulation which

‘denies all economically beneficial or productive use of

land’ will require compensation under the Takings

Clause.” Palazzolo v. Rhode Island, 533 U. S. 606, 617 

(2001) (quoting Lucas, supra, at 1015). Second, when a 

regulation impedes the use of property without depriving

the owner of all economically beneficial use, a taking still

may be found based on “a complex of factors,” including (1)

the economic impact of the regulation on the claimant; (2)

the extent to which the regulation has interfered with

distinct investment-backed expectations; and (3) the char­
 

 

8 MURR v. WISCONSIN 

Opinion of the Court 

acter of the governmental action. Palazzolo, supra, at 617 

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

U. S. 104, 124 (1978)).

By declaring that the denial of all economically beneficial use of land constitutes a regulatory taking, Lucas 

stated what it called a “categorical” rule. See 505 U. S., at 

1015. Even in Lucas, however, the Court included a caveat recognizing the relevance of state law and land-use 

customs: The complete deprivation of use will not require compensation if the challenged limitations “inhere 

. . . in the restrictions that background principles of the

State’s law of property and nuisance already placed upon 

land ownership.” Id., at 1029; see also id., at 1030–1031 

(listing factors for courts to consider in making this

determination).

A central dynamic of the Court’s regulatory takings

jurisprudence, then, is its flexibility. This has been and 

remains a means to reconcile two competing objectives 

central to regulatory takings doctrine. One is the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership. Cf. id., at 

1028 (“[T]he notion . . . that title is somehow held subject 

to the ‘implied limitation’ that the State may subsequently 

eliminate all economically valuable use is inconsistent 

with the historical compact recorded in the Takings 

Clause that has become part of our constitutional culture”). Property rights are necessary to preserve freedom,

for property ownership empowers persons to shape and to

plan their own destiny in a world where governments are

always eager to do so for them.

The other persisting interest is the government’s wellestablished power to “adjus[t] rights for the public good.” 

Andrus v. Allard, 444 U. S. 51, 65 (1979). As Justice 

Holmes declared, “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 
Cite as: 582 U. S. ____ (2017) 9 

Opinion of the Court 

general law.” Mahon, supra, at 413. In adjudicating 

regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics

of the case. In all instances, the analysis must be driven 

“by the purpose of the Takings Clause, which is to prevent 

the government from ‘forcing some people alone to bear 

public burdens which, in all fairness and justice, should be 

borne by the public as a whole.’” Palazzolo, supra, at 617– 

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

(1960)). 

B 

This case presents a question that is linked to the ultimate determination whether a regulatory taking has

occurred: What is the proper unit of property against 

which to assess the effect of the challenged governmental

action? Put another way, “[b]ecause our test for regulatory

taking requires us to compare the value that has been 

taken from the property with the value that remains in

the property, one of the critical questions is determining

how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’” Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 497 (1987) 

(quoting Michelman, Property, Utility, and Fairness, 80 

Harv. L. Rev. 1165, 1992 (1967)). 

As commentators have noted, the answer to this question may be outcome determinative. See Eagle, The FourFactor Penn Central Regulatory Takings Test, 118 Pa. St.

L. Rev. 601, 631 (2014); see also Wright, A New Time for 

Denominators, 34 Env. L. 175, 180 (2004). This Court, 

too, has explained that the question is important to the 

regulatory takings inquiry. “To the extent that any portion of property is taken, that portion is always taken in 

its entirety; the relevant question, however, is whether the 

property taken is all, or only a portion of, the parcel in

question.” Concrete Pipe & Products of Cal., Inc. v. Con-
 

10 MURR v. WISCONSIN 

Opinion of the Court 

struction Laborers Pension Trust for Southern Cal., 508 

U. S. 602, 644 (1993).

Defining the property at the outset, however, should not

necessarily preordain the outcome in every case. In some, 

though not all, cases the effect of the challenged regulation 

must be assessed and understood by the effect on the 

entire property held by the owner, rather than just some

part of the property that, considered just on its own, has 

been diminished in value. This demonstrates the contrast 

between regulatory takings, where the goal is usually to 

determine how the challenged regulation affects the property’s value to the owner, and physical takings, where the 

impact of physical appropriation or occupation of the 

property will be evident. 

While the Court has not set forth specific guidance on 

how to identify the relevant parcel for the regulatory

taking inquiry, there are two concepts which the Court 

has indicated can be unduly narrow.

First, the Court has declined to limit the parcel in an

artificial manner to the portion of property targeted by the 

challenged regulation. In Penn Central, for example, the

Court rejected a challenge to the denial of a permit to 

build an office tower above Grand Central Terminal. The 

Court refused to measure the effect of the denial only

against the “air rights” above the terminal, cautioning

that “‘[t]aking’ jurisprudence does not divide a single 

parcel into discrete segments and attempt to determine 

whether rights in a particular segment have been entirely 

abrogated.” 438 U. S., at 130. 

In a similar way, in Tahoe-Sierra, the Court refused to 

“effectively sever” the 32 months during which petitioners’ 

property was restricted by temporary moratoria on development “and then ask whether that segment ha[d] been

taken in its entirety.” 535 U. S., at 331. That was because 

“defining the property interest taken in terms of the very

regulation being challenged is circular.” Ibid. That ap­
 

Cite as: 582 U. S. ____ (2017) 11 

Opinion of the Court 

proach would overstate the effect of regulation on property,

turning “every delay” into a “total ban.” Ibid. 

The second concept about which the Court has expressed caution is the view that property rights under the 

Takings Clause should be coextensive with those under 

state law. Although property interests have their foundations in state law, the Palazzolo Court reversed a statecourt decision that rejected a takings challenge to regulations that predated the landowner’s acquisition of title.

533 U. S., at 626–627. The Court explained that States do 

not have the unfettered authority to “shape and define

property rights and reasonable investment-backed expectations,” leaving landowners without recourse against

unreasonable regulations. Id., at 626. 

By the same measure, defining the parcel by reference

to state law could defeat a challenge even to a state enactment that alters permitted uses of property in ways 

inconsistent with reasonable investment-backed expectations. For example, a State might enact a law that consolidates nonadjacent property owned by a single person or 

entity in different parts of the State and then imposes 

development limits on the aggregate set. If a court defined the parcel according to the state law requiring consolidation, this improperly would fortify the state law 

against a takings claim, because the court would look to

the retained value in the property as a whole rather than

considering whether individual holdings had lost all value. 

III
 

A 

As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining

the denominator. Instead, courts must consider a number 

of factors. These include the treatment of the land under 

state and local law; the physical characteristics of the 

land; and the prospective value of the regulated land. The 
 

12 MURR v. WISCONSIN 

Opinion of the Court 

endeavor should determine whether reasonable expectations about property ownership would lead a landowner to 

anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from

background customs and the whole of our legal tradition. 

Cf. Lucas, 505 U. S., at 1035 (KENNEDY, J., concurring) 

(“The expectations protected by the Constitution are based

on objective rules and customs that can be understood as 

reasonable by all parties involved”). 

First, courts should give substantial weight to the

treatment of the land, in particular how it is bounded or 

divided, under state and local law. The reasonable expectations of an acquirer of land must acknowledge legitimate 

restrictions affecting his or her subsequent use and dispensation of the property. See Ballard v. Hunter, 204 

U. S. 241, 262 (1907) (“Of what concerns or may concern 

their real estate men usually keep informed, and on that 

probability the law may frame its proceedings”). A valid 

takings claim will not evaporate just because a purchaser

took title after the law was enacted. See Palazzolo, 533 

U. S., at 627 (some “enactments are unreasonable and do

not become less so through passage of time or title”). A 

reasonable restriction that predates a landowner’s acquisition, however, can be one of the objective factors that most 

landowners would reasonably consider in forming fair 

expectations about their property. See ibid. (“[A] prospective enactment, such as a new zoning ordinance, can limit 

the value of land without effecting a taking because it can

be understood as reasonable by all concerned”). In 

a similar manner, a use restriction which is triggered 

only after, or because of, a change in ownership should

also guide a court’s assessment of reasonable private

expectations.

Second, courts must look to the physical characteristics

of the landowner’s property. These include the physical 
 

Cite as: 582 U. S. ____ (2017) 13 

Opinion of the Court 

relationship of any distinguishable tracts, the parcel’s

topography, and the surrounding human and ecological

environment. In particular, it may be relevant that the 

property is located in an area that is subject to, or likely to 

become subject to, environmental or other regulation. Cf. 

Lucas, supra, at 1035 (KENNEDY, J., concurring) (“Coastal 

property may present such unique concerns for a fragile 

land system that the State can go further in regulating its 

development and use than the common law of nuisance 

might otherwise permit”).

Third, courts should assess the value of the property 

under the challenged regulation, with special attention to 

the effect of burdened land on the value of other holdings.

Though a use restriction may decrease the market value of 

the property, the effect may be tempered if the regulated 

land adds value to the remaining property, such as by

increasing privacy, expanding recreational space, or preserving surrounding natural beauty. A law that limits use 

of a landowner’s small lot in one part of the city by reason

of the landowner’s nonadjacent holdings elsewhere may 

decrease the market value of the small lot in an unmitigated fashion. The absence of a special relationship between the holdings may counsel against consideration of 

all the holdings as a single parcel, making the restrictive

law susceptible to a takings challenge. On the other hand, 

if the landowner’s other property is adjacent to the small 

lot, the market value of the properties may well increase if 

their combination enables the expansion of a structure, or

if development restraints for one part of the parcel protect

the unobstructed skyline views of another part. That, in 

turn, may counsel in favor of treatment as a single parcel 

and may reveal the weakness of a regulatory takings

challenge to the law.

State and federal courts have considerable experience in 

adjudicating regulatory takings claims that depart from

these examples in various ways. The Court anticipates 
 

14 MURR v. WISCONSIN 

Opinion of the Court 

that in applying the test above they will continue to exercise care in this complex area. 

B 

The State of Wisconsin and petitioners each ask this 

Court to adopt a formalistic rule to guide the parcel inquiry. Neither proposal suffices to capture the central

legal and factual principles that inform reasonable expectations about property interests. 

Wisconsin would tie the definition of the parcel to state 

law, considering the two lots here as a single whole due to

their merger under the challenged regulations. That 

approach, as already noted, simply assumes the answer to

the question: May the State define the relevant parcel in a 

way that permits it to escape its responsibility to justify

regulation in light of legitimate property expectations? It 

is, of course, unquestionable that the law must recognize

those legitimate expectations in order to give proper

weight to the rights of owners and the right of the State to

pass reasonable laws and regulations. See Palazzolo, 

supra, at 627. 

Wisconsin bases its position on a footnote in Lucas, 

which suggests the answer to the denominator question 

“may lie in how the owner’s reasonable expectations have

been shaped by the State’s law of property—i.e., whether 

and to what degree the State’s law has accorded legal

recognition and protection to the particular interest in

land with respect to which the takings claimant alleges a

diminution in (or elimination of) value.” 505 U. S., at 

1017, n. 7. As an initial matter, Lucas referenced the 

parcel problem only in dicta, unnecessary to the announcement or application of the rule it established. See 

ibid. (“[W]e avoid th[e] difficulty” of determining the relevant parcel “in the present case”). In any event, the test

the Court adopts today is consistent with the respect for 

state law described in Lucas. The test considers state law 
 

 

 

Cite as: 582 U. S. ____ (2017) 15 

Opinion of the Court 

but in addition weighs whether the state enactments at 

issue accord with other indicia of reasonable expectations 

about property.

Petitioners propose a different test that is also flawed. 

They urge the Court to adopt a presumption that lot lines

define the relevant parcel in every instance, making Lot E 

the necessary denominator. Petitioners’ argument, however, ignores the fact that lot lines are themselves creatures of state law, which can be overridden by the State in

the reasonable exercise of its power. In effect, petitioners 

ask this Court to credit the aspect of state law that favors

their preferred result (lot lines) and ignore that which

does not (merger provision).

This approach contravenes the Court’s case law, which

recognizes that reasonable land-use regulations do not

work a taking. See Palazzolo, 533 U. S., at 627; Mahon, 

260 U. S., at 413. Among other cases, Agins v. City of 

Tiburon, 447 U. S. 255 (1980), demonstrates the validity of

this proposition because it upheld zoning regulations as a 

legitimate exercise of the government’s police power. Of 

course, the Court’s later opinion in Lingle v. Chevron 

U. S. A. Inc. recognized that the test articulated in 

Agins—that regulation effects a taking if it “‘does not 

substantially advance legitimate state interests’”—was 

improper because it invited courts to engage in heightened 

review of the effectiveness of government regulation. 544 

U. S. 528, 540 (2005) (quoting Agins, supra, at 260). 

Lingle made clear, however, that the holding of Agins 

survived, even if its test was “imprecis[e].” See 544 U. S., 

at 545–546, 548. 

The merger provision here is likewise a legitimate exercise of government power, as reflected by its consistency

with a long history of state and local merger regulations

that originated nearly a century ago. See Brief for National Association of Counties et al. as Amici Curiae 5–10. 

Merger provisions often form part of a regulatory scheme 
 

16 MURR v. WISCONSIN 

Opinion of the Court 

that establishes a minimum lot size in order to preserve 

open space while still allowing orderly development. See 

E. McQuillin, Law of Municipal Corporations §25:24 (3d 

ed. 2010); see also Agins, supra, at 262 (challenged “zoning 

ordinances benefit[ed] the appellants as well as the public 

by serving the city’s interest in assuring careful and orderly

development of residential property with provision for 

open-space areas”).

When States or localities first set a minimum lot size, 

there often are existing lots that do not meet the new 

requirements, and so local governments will strive to 

reduce substandard lots in a gradual manner. The regulations here represent a classic way of doing this: by implementing a merger provision, which combines contiguous 

substandard lots under common ownership, alongside a

grandfather clause, which preserves adjacent substandard

lots that are in separate ownership. Also, as here, the 

harshness of a merger provision may be ameliorated by

the availability of a variance from the local zoning authority for landowners in special circumstances. See 3 E. 

Ziegler, Rathkopf ’s Law of Zoning and Planning §49:13

(39th ed. 2017).

Petitioners’ insistence that lot lines define the relevant 

parcel ignores the well-settled reliance on the merger 

provision as a common means of balancing the legitimate

goals of regulation with the reasonable expectations of 

landowners. Petitioners’ rule would frustrate municipalities’ ability to implement minimum lot size regulations by 

casting doubt on the many merger provisions that exist 

nationwide today. See Brief for National Association of 

Counties et al. as Amici Curiae 12–31 (listing over 100 

examples of merger provisions).

Petitioners’ reliance on lot lines also is problematic for

another reason. Lot lines have varying degrees of formality 

across the States, so it is difficult to make them a standard measure of the reasonable expectations of property 
 

Cite as: 582 U. S. ____ (2017) 17 

Opinion of the Court 

owners. Indeed, in some jurisdictions, lot lines may be 

subject to informal adjustment by property owners, with

minimal government oversight. See Brief for California 

et al. as Amici Curiae 17; 1 J. Kushner, Subdivision Law 

and Growth Management §5:8 (2d ed. 2017) (lot line adjustments that create no new parcels are often exempt 

from subdivision review); see, e.g., Cal. Govt. Code Ann. 

§66412(d) (West 2016) (permitting adjustment of lot lines 

subject to limited conditions for government approval).

The ease of modifying lot lines also creates the risk of

gamesmanship by landowners, who might seek to alter the 

lines in anticipation of regulation that seems likely to

affect only part of their property. 

IV 

Under the appropriate multifactor standard, it follows

that for purposes of determining whether a regulatory

taking has occurred here, petitioners’ property should be

evaluated as a single parcel consisting of Lots E and F 

together.

First, the treatment of the property under state and

local law indicates petitioners’ property should be treated

as one when considering the effects of the restrictions. As 

the Wisconsin courts held, the state and local regulations 

merged Lots E and F. E.g., App. to Pet. for Cert. A–3, ¶6

(“The 1995 transfer of Lot E brought the lots under common ownership and resulted in a merger of the two lots 

under [the local ordinance]”). The decision to adopt the

merger provision at issue here was for a specific and legitimate purpose, consistent with the widespread understanding that lot lines are not dominant or controlling in 

every case. See supra, at ___. Petitioners’ land was subject to this regulatory burden, moreover, only because of

voluntary conduct in bringing the lots under common 

ownership after the regulations were enacted. As a result, 

the valid merger of the lots under state law informs the 
 

18 MURR v. WISCONSIN 

Opinion of the Court 

reasonable expectation they will be treated as a single 

property.

Second, the physical characteristics of the property

support its treatment as a unified parcel. The lots are 

contiguous along their longest edge. Their rough terrain

and narrow shape make it reasonable to expect their

range of potential uses might be limited. Cf. App. to Pet. 

for Cert. A–5, ¶8 (“[Petitioners] asserted Lot E could not

be put to alternative uses like agriculture or commerce

due to its size, location and steep terrain”). The land’s 

location along the river is also significant. Petitioners 

could have anticipated public regulation might affect their

enjoyment of their property, as the Lower St. Croix was a 

regulated area under federal, state, and local law long

before petitioners possessed the land.

Third, the prospective value that Lot E brings to Lot F

supports considering the two as one parcel for purposes of

determining if there is a regulatory taking. Petitioners 

are prohibited from selling Lots E and F separately or 

from building separate residential structures on each. Yet 

this restriction is mitigated by the benefits of using the 

property as an integrated whole, allowing increased privacy 

and recreational space, plus the optimal location of any 

improvements. See Case No. 12–CV–258, App. to Pet. for 

Cert. B–9 (“They have an elevated level of privacy because 

they do not have close neighbors and are able to swim and 

play volleyball at the property”).

The special relationship of the lots is further shown by 

their combined valuation. Were Lot E separately saleable 

but still subject to the development restriction, petitioners’

appraiser would value the property at only $40,000. We 

express no opinion on the validity of this figure. We also 

note the number is not particularly helpful for understanding petitioners’ retained value in the properties

because Lot E, under the regulations, cannot be sold without Lot F. The point that is useful for these purposes is 
Cite as: 582 U. S. ____ (2017) 19 

Opinion of the Court 

that the combined lots are valued at $698,300, which is far 

greater than the summed value of the separate regulated

lots (Lot F with its cabin at $373,000, according to respondents’ appraiser, and Lot E as an undevelopable plot 

at $40,000, according to petitioners’ appraiser). The value 

added by the lots’ combination shows their complementarity and supports their treatment as one parcel. 

The State Court of Appeals was correct in analyzing 

petitioners’ property as a single unit. Petitioners allege

that in doing so, the state court applied a categorical rule

that all contiguous, commonly owned holdings must be

combined for Takings Clause analysis. See Brief for Petitioners i (“[D]oes the ‘parcel as a whole’ concept . . . establish a rule that two legally distinct, but commonly owned 

contiguous parcels, must be combined for takings analysis 

purposes”). This does not appear to be the case, however,

for the precedent relied on by the Court of Appeals addressed multiple factors before treating contiguous properties as one parcel. See App. to Pet. for Cert. A–9–A–11, 

¶¶17–19 (citing Zealy v. Waukesha, 201 Wis. 2d 365, 548 

N. W. 2d 528); see id., at 378, 548 N. W. 2d, at 533 (considering the property as a whole because it was “part of a 

single purchase” and all 10.4 acres were undeveloped). 

The judgment below, furthermore, may be affirmed on any 

ground permitted by the law and record. See Thigpen v. 

Roberts, 468 U. S. 27, 30 (1984). To the extent the state 

court treated the two lots as one parcel based on a brightline rule, nothing in this opinion approves that methodology, 

as distinct from the result. 

Considering petitioners’ property as a whole, the state 

court was correct to conclude that petitioners cannot 

establish a compensable taking in these circumstances. 

Petitioners have not suffered a taking under Lucas, as 

they have not been deprived of all economically beneficial

use of their property. See 505 U. S., at 1019. They can

use the property for residential purposes, including an 
 

 

 

20 MURR v. WISCONSIN 

Opinion of the Court 

enhanced, larger residential improvement. See Palazzolo, 

533 U. S., at 631 (“A regulation permitting a landowner to

build a substantial residence . . . does not leave the property ‘economically idle’”). The property has not lost all

economic value, as its value has decreased by less than 10 

percent. See Lucas, supra, at 1019, n. 8 (suggesting that 

even a landowner with 95 percent loss may not recover). 

Petitioners furthermore have not suffered a taking

under the more general test of Penn Central. See 438 

U. S., at 124. The expert appraisal relied upon by the state 

courts refutes any claim that the economic impact of the 

regulation is severe. Petitioners cannot claim that they

reasonably expected to sell or develop their lots separately 

given the regulations which predated their acquisition of 

both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated 

federal, state, and local effort to preserve the river and

surrounding land. 

* * * 

Like the ultimate question whether a regulation has 

gone too far, the question of the proper parcel in regulatory 

takings cases cannot be solved by any simple test. See 

Arkansas Game and Fish Comm’n v. United States, 568 

U. S. 23, 31 (2012). Courts must instead define the parcel 

in a manner that reflects reasonable expectations about 

the property. Courts must strive for consistency with the

central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by 

the public as a whole.” Armstrong, 364 U. S., at 49. 

Treating the lot in question as a single parcel is legitimate 

for purposes of this takings inquiry, and this supports the 

conclusion that no regulatory taking occurred here. 

The judgment of the Wisconsin Court of Appeals is 

affirmed. 

It is so ordered. 
Cite as: 582 U. S. ____ (2017) 21 

Opinion of the Court 

JUSTICE GORSUCH took no part in the consideration or 

decision of this case. 
 

_________________ 

_________________ 

 

Cite as: 582 U. S. ____ (2017) 1 

ROBERTS, C. J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 15–214 

JOSEPH P. MURR, ET AL., PETITIONERS v. 

WISCONSIN, ET AL. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

WISCONSIN, DISTRICT III
 

[June 23, 2017] 

CHIEF JUSTICE ROBERTS, with whom JUSTICE THOMAS 

and JUSTICE ALITO join, dissenting. 

The Murr family owns two adjacent lots along the Lower

St. Croix River. Under a local regulation, those two properties may not be “sold or developed as separate lots”

because neither contains a sufficiently large area of buildable land. Wis. Admin. Code §NR 118.08(4)(a)(2) (2017).

The Court today holds that the regulation does not effect a

taking that requires just compensation. This bottom-line 

conclusion does not trouble me; the majority presents a 

fair case that the Murrs can still make good use of both

lots, and that the ordinance is a commonplace tool to

preserve scenic areas, such as the Lower St. Croix River, 

for the benefit of landowners and the public alike.

Where the majority goes astray, however, is in concluding that the definition of the “private property” at issue in

a case such as this turns on an elaborate test looking not

only to state and local law, but also to (1) “the physical 

characteristics of the land,” (2) “the prospective value of

the regulated land,” (3) the “reasonable expectations” of

the owner, and (4) “background customs and the whole of 

our legal tradition.” Ante, at 11–12. Our decisions have, 

time and again, declared that the Takings Clause protects

private property rights as state law creates and defines

them. By securing such established property rights, the 
 

 

 

2 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

Takings Clause protects individuals from being forced to 

bear the full weight of actions that should be borne by the 

public at large. The majority’s new, malleable definition of 

“private property”—adopted solely “for purposes of th[e] 

takings inquiry,” ante, at 20—undermines that protection. 

I would stick with our traditional approach: State law 

defines the boundaries of distinct parcels of land, and

those boundaries should determine the “private property”

at issue in regulatory takings cases. Whether a regulation

effects a taking of that property is a separate question, one 

in which common ownership of adjacent property may be

taken into account. Because the majority departs from

these settled principles, I respectfully dissent. 

I 

A 

The Takings Clause places a condition on the government’s power to interfere with property rights, instructing

that “private property [shall not] be taken for public use,

without just compensation.” Textually and logically, this

Clause raises three basic questions that individuals, governments, and judges must consider when anticipating or 

deciding whether the government will have to provide

reimbursement for its actions. The first is what “private property” the government’s planned course of conduct 

will affect. The second, whether that property has been 

“taken” for “public use.” And if “private property” has been

“taken,” the last item of business is to calculate the “just

compensation” the owner is due.

Step one—identifying the property interest at stake—

requires looking outside the Constitution. The word 

“property” in the Takings Clause means “the group of 

rights inhering in [a] citizen’s relation to [a] . . . thing, as

the right to possess, use and dispose of it.” United States 

v. General Motors Corp., 323 U. S. 373, 378 (1945). The 

Clause does not, however, provide the definition of those 
 

 

Cite as: 582 U. S. ____ (2017) 3 

ROBERTS, C. J., dissenting 

rights in any particular case. Instead, “property interests

. . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Ruckelshaus v. Monsanto 

Co., 467 U. S. 986, 1001 (1984) (alteration and internal 

quotation marks omitted). By protecting these established 

rights, the Takings Clause stands as a buffer between 

property owners and governments, which might naturally 

look to put private property to work for the public at large. 

When government action interferes with property

rights, the next question becomes whether that interference amounts to a “taking.” “The paradigmatic taking . . .

is a direct government appropriation or physical invasion

of private property.” Lingle v. Chevron U. S. A. Inc., 544 

U. S. 528, 537 (2005). These types of actions give rise to 

“per se taking[s]” because they are “perhaps the most 

serious form[s] of invasion of an owner’s property interests, depriving the owner of the rights to possess, use and 

dispose of the property.” Horne v. Department of Agriculture, 576 U. S. ___, ___ (2015) (slip op., at 7) (internal 

quotation marks omitted). 

But not all takings are so direct: Governments can

infringe private property interests for public use not only

through appropriations, but through regulations as well.

If compensation were required for one but not the other,

“the natural tendency of human nature” would be to extend regulations “until at last private property disappears.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 

415 (1922). Our regulatory takings decisions, then, have 

recognized that, “while property may be regulated to a

certain extent, if regulation goes too far it will be recognized as a taking.” Ibid. This rule strikes a balance between property owners’ rights and the government’s authority to advance the common good. Owners can rest 

assured that they will be compensated for particularly

onerous regulatory actions, while governments maintain 
 

 

 

4 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

the freedom to adjust the benefits and burdens of property 

ownership without incurring crippling costs from each

alteration. 

Depending, of course, on how far is “too far.” We have 

said often enough that the answer to this question generally resists per se rules and rigid formulas. There are, 

however, a few fixed principles: The inquiry “must be

conducted with respect to specific property.” Keystone 

Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 495 

(1987) (internal quotation marks omitted). And if a “regulation denies all economically beneficial or productive use 

of land,” the interference categorically amounts to a taking. Lucas v. South Carolina Coastal Council, 505 U. S. 

1003, 1015 (1992). For the vast array of regulations that 

lack such an extreme effect, a flexible approach is more

fitting. The factors to consider are wide ranging, and 

include the economic impact of the regulation, the owner’s 

investment-backed expectations, and the character of the 

government action. The ultimate question is whether the 

government’s imposition on a property has forced the 

owner “to bear public burdens which, in all fairness and 

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

Central Transp. Co. v. New York City, 438 U. S. 104, 123 

(1978) (internal quotation marks omitted).

Finally, if a taking has occurred, the remaining matter

is tabulating the “just compensation” to which the property

owner is entitled. “[J]ust compensation normally is to

be measured by the market value of the property at the 

time of the taking.” Horne, 576 U. S., at ___ (slip op., at 

15) (internal quotation marks omitted). 

B 

Because a regulation amounts to a taking if it completely

destroys a property’s productive use, there is an incentive for owners to define the relevant “private property”

narrowly. This incentive threatens the careful balance 
 

 

Cite as: 582 U. S. ____ (2017) 5 

ROBERTS, C. J., dissenting 

between property rights and government authority that

our regulatory takings doctrine strikes: Put in terms of the 

familiar “bundle” analogy, each “strand” in the bundle of 

rights that comes along with owning real property is a

distinct property interest. If owners could define the 

relevant “private property” at issue as the specific “strand”

that the challenged regulation affects, they could convert 

nearly all regulations into per se takings. 

And so we do not allow it. In Penn Central Transportation Co. v. New York City, we held that property owners 

may not “establish a ‘taking’ simply by showing that they

have been denied the ability to exploit a property interest.” 438 U. S., at 130. In that case, the owner of Grand 

Central Terminal in New York City argued that a restriction on the owner’s ability to add an office building

atop the station amounted to a taking of its air rights. We 

rejected that narrow definition of the “property” at issue,

concluding that the correct unit of analysis was the owner’s “rights in the parcel as a whole.” Id., at 130–131. 

“[W]here an owner possesses a full ‘bundle’ of property

rights, the destruction of one strand of the bundle is not a 

taking, because the aggregate must be viewed in its entirety.” Andrus v. Allard, 444 U. S. 51, 65–66 (1979); see 

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional 

Planning Agency, 535 U. S. 302, 327 (2002). 

The question presented in today’s case concerns the

“parcel as a whole” language from Penn Central. This 

enigmatic phrase has created confusion about how to 

identify the relevant property in a regulatory takings case 

when the claimant owns more than one plot of land.

Should the impact of the regulation be evaluated with

respect to each individual plot, or with respect to adjacent

plots grouped together as one unit? According to the 

majority, a court should answer this question by considering a number of facts about the land and the regulation at 

issue. The end result turns on whether those factors 
 

 

 

 

6 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

“would lead a landowner to anticipate that his holdings

would be treated as one parcel, or, instead, as separate 

tracts.” Ante, at 12. 

I think the answer is far more straightforward: State

laws define the boundaries of distinct units of land, and 

those boundaries should, in all but the most exceptional 

circumstances, determine the parcel at issue. Even in 

regulatory takings cases, the first step of the Takings 

Clause analysis is still to identify the relevant “private 

property.” States create property rights with respect to

particular “things.” And in the context of real property,

those “things” are horizontally bounded plots of land. 

Tahoe-Sierra, 535 U. S., at 331 (“An interest in real property is defined by the metes and bounds that describe its

geographic dimensions”). States may define those plots 

differently—some using metes and bounds, others using 

government surveys, recorded plats, or subdivision maps. 

See 11 D. Thomas, Thompson on Real Property §94.07(s) 

(2d ed. 2002); Powell on Real Property §81A.05(2)(a) (M.

Wolf ed. 2016). But the definition of property draws the

basic line between, as P. G. Wodehouse would put it, 

meum and tuum. The question of who owns what is pretty 

important: The rules must provide a readily ascertainable 

definition of the land to which a particular bundle of 

rights attaches that does not vary depending upon the 

purpose at issue. See, e.g., Wis. Stat. §236.28 (2016) 

(“[T]he lots in [a] plat shall be described by the name of 

the plat and the lot and block . . . for all purposes, including those of assessment, taxation, devise, descent and 

conveyance”). 

Following state property lines is also entirely consistent 

with Penn Central. Requiring consideration of the “parcel

as a whole” is a response to the risk that owners will

strategically pluck one strand from their bundle of property 

rights—such as the air rights at issue in Penn Central— 

and claim a complete taking based on that strand alone. 
 

 

Cite as: 582 U. S. ____ (2017) 7 

ROBERTS, C. J., dissenting 

That risk of strategic unbundling is not present when a

legally distinct parcel is the basis of the regulatory takings 

claim. State law defines all of the interests that come 

along with owning a particular parcel, and both property

owners and the government must take those rights as they

find them. 

The majority envisions that relying on state law will

create other opportunities for “gamesmanship” by landowners and States: The former, it contends, “might seek to

alter [lot] lines in anticipation of regulation,” while the

latter might pass a law that “consolidates . . . property” to

avoid a successful takings claim. Ante, at 11, 17. But 

such obvious attempts to alter the legal landscape in

anticipation of a lawsuit are unlikely and not particularly

difficult to detect and disarm. We rejected the strategic 

splitting of property rights in Penn Central, and courts 

could do the same if faced with an attempt to create a

takings-specific definition of “private property.” Cf. Phillips v. Washington Legal Foundation, 524 U. S. 156, 167 

(1998) (“[A] State may not sidestep the Takings Clause by

disavowing traditional property interests long recognized 

under state law”).

Once the relevant property is identified, the real work

begins. To decide whether the regulation at issue 

amounts to a “taking,” courts should focus on the effect of 

the regulation on the “private property” at issue. Adjacent

land under common ownership may be relevant to that 

inquiry. The owner’s possession of such a nearby lot could, 

for instance, shed light on how the owner reasonably 

expected to use the parcel at issue before the regulation. 

If the court concludes that the government’s action

amounts to a taking, principles of “just compensation” may

also allow the owner to recover damages “with regard to a 

separate parcel” that is contiguous and used in conjunction with the parcel at issue. 4A L. Smith & M. Hansen, 

Nichols’ Law of Eminent Domain, ch. 14B, §14B.02 (rev. 
 

 

 

 

8 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

3d ed. 2010).

In sum, the “parcel as a whole” requirement prevents a

property owner from identifying a single “strand” in his 

bundle of property rights and claiming that interest has

been taken. Allowing that strategic approach to defining 

“private property” would undermine the balance struck by

our regulatory takings cases. Instead, state law creates 

distinct parcels of land and defines the rights that come

along with owning those parcels. Those established bundles of rights should define the “private property” in regulatory takings cases. While ownership of contiguous properties may bear on whether a person’s plot has been

“taken,” Penn Central provides no basis for disregarding 

state property lines when identifying the “parcel as a 

whole.” 

II 

The lesson that the majority draws from Penn Central is 

that defining “the proper parcel in regulatory takings

cases cannot be solved by any simple test.” Ante, at 20. 

Following through on that stand against simplicity, the 

majority lists a complex set of factors theoretically designed to reveal whether a hypothetical landowner might 

expect that his property “would be treated as one parcel, 

or, instead, as separate tracts.” Ante, at 11. Those factors, 

says the majority, show that Lots E and F of the Murrs’ 

property constitute a single parcel and that the local 

ordinance requiring the Murrs to develop and sell those

lots as a pair does not constitute a taking.

In deciding that Lots E and F are a single parcel, the 

majority focuses on the importance of the ordinance at 

issue and the extent to which the Murrs may have been 

especially surprised, or unduly harmed, by the application

of that ordinance to their property. But these issues 

should be considered when deciding if a regulation constitutes a “taking.” Cramming them into the definition of 
 

 

 

Cite as: 582 U. S. ____ (2017) 9 

ROBERTS, C. J., dissenting 

“private property” undermines the effectiveness of the

Takings Clause as a check on the government’s power to

shift the cost of public life onto private individuals.

The problem begins when the majority loses track of the

basic structure of claims under the Takings Clause. While 

it is true that we have referred to regulatory takings

claims as involving “essentially ad hoc, factual inquiries,” 

we have conducted those wide-ranging investigations

when assessing “the question of what constitutes a ‘taking’” under Penn Central. Ruckelshaus, 467 U. S., at 1004 

(emphasis added); see Tahoe-Sierra, 535 U. S., at 326 

(“[W]e have generally eschewed any set formula for determining how far is too far” (emphasis added; internal

quotation marks omitted)). And even then, we reach that 

“ad hoc” Penn Central framework only after determining

that the regulation did not deny all productive use of the 

parcel. See Tahoe-Sierra, 535 U. S., at 331. Both of these 

inquiries presuppose that the relevant “private property” 

has already been identified. See Hodel v. Virginia Surface 

Mining & Reclamation Assn., Inc., 452 U. S. 264, 295 

(1981) (explaining that “[t]hese ‘ad hoc, factual inquiries’ 

must be conducted with respect to specific property”).

There is a simple reason why the majority does not cite a 

single instance in which we have made that identification 

by relying on anything other than state property principles—we have never done so.

In departing from state property principles, the majority

authorizes governments to do precisely what we rejected 

in Penn Central: create a litigation-specific definition of 

“property” designed for a claim under the Takings Clause.

Whenever possible, governments in regulatory takings

cases will ask courts to aggregate legally distinct properties into one “parcel,” solely for purposes of resisting a 

particular claim. And under the majority’s test, identifying the “parcel as a whole” in such cases will turn on the

reasonableness of the regulation as applied to the claim­
 

 

 

10 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

ant. The result is that the government’s regulatory interests will come into play not once, but twice—first when

identifying the relevant parcel, and again when determining whether the regulation has placed too great a public

burden on that property.

 Regulatory takings, however—by their very nature—pit

the common good against the interests of a few. There is 

an inherent imbalance in that clash of interests. The 

widespread benefits of a regulation will often appear far 

weightier than the isolated losses suffered by individuals.

And looking at the bigger picture, the overall societal good 

of an economic system grounded on private property will 

appear abstract when cast against a concrete regulatory 

problem. In the face of this imbalance, the Takings Clause 

“prevents the public from loading upon one individual

more than his just share of the burdens of government,” 

Monongahela Nav. Co. v. United States, 148 U. S. 312, 325 

(1893), by considering the effect of a regulation on specific

property rights as they are established at state law. But 

the majority’s approach undermines that protection, defining property only after engaging in an ad hoc, case-specific 

consideration of individual and community interests. The 

result is that the government’s goals shape the playing 

field before the contest over whether the challenged regulation goes “too far” even gets underway. 

Suppose, for example, that a person buys two distinct

plots of land—known as Lots A and B—from two different 

owners. Lot A is landlocked, but the neighboring Lot B 

shares a border with a local beach. It soon comes to light,

however, that the beach is a nesting habitat for a species

of turtle. To protect this species, the state government

passes a regulation preventing any development or recreation in areas abutting the beach—including Lot B. If that 

lot became the subject of a regulatory takings claim, the 

purchaser would have a strong case for a per se taking: 

Even accounting for the owner’s possession of the other 
 

 

Cite as: 582 U. S. ____ (2017) 11 

ROBERTS, C. J., dissenting 

property, Lot B had no remaining economic value or productive use. But under the majority’s approach, the government can argue that—based on all the circumstances

and the nature of the regulation—Lots A and B should be

considered one “parcel.” If that argument succeeds, the 

owner’s per se takings claim is gone, and he is left to roll 

the dice under the Penn Central balancing framework,

where the court will, for a second time, throw the reasonableness of the government’s regulatory action into the

balance. 

The majority assures that, under its test, “[d]efining the 

property . . . should not necessarily preordain the outcome

in every case.” Ante, at 10 (emphasis added). The underscored language cheapens the assurance. The framework 

laid out today provides little guidance for identifying

whether “expectations about property ownership would 

lead a landowner to anticipate that his holdings would be 

treated as one parcel, or, instead, as separate tracts.” 

Ante, at 12. Instead, the majority’s approach will lead to

definitions of the “parcel” that have far more to do with

the reasonableness of applying the challenged regulation

to a particular landowner. The result is clear double 

counting to tip the scales in favor of the government:

Reasonable government regulation should have been 

anticipated by the landowner, so the relevant parcel is 

defined consistent with that regulation. In deciding

whether there is a taking under the second step of the 

analysis, the regulation will seem eminently reasonable 

given its impact on the pre-packaged parcel. Not, as the 

Court assures us, “necessarily” in “every” case, but surely

in most. 

Moreover, given its focus on the particular challenged

regulation, the majority’s approach must mean that two 

lots might be a single “parcel” for one takings claim, but

separate “parcels” for another. See ante, at 13. This is 

just another opportunity to gerrymander the definition of 
 

 

 

 

12 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

“private property” to defeat a takings claim. The majority

also emphasizes that courts trying to identify the relevant

parcel “must strive” to ensure that “some people alone [do 

not] bear public burdens which, in all fairness and justice, 

should be borne by the public as a whole.” Ante, at 20 

(internal quotation marks omitted). But this refrain is the 

traditional touchstone for spotting a taking, not for defining private property. 

Put simply, today’s decision knocks the definition of 

“private property” loose from its foundation on stable state 

law rules and throws it into the maelstrom of multiple 

factors that come into play at the second step of the takings analysis. The result: The majority’s new framework 

compromises the Takings Clause as a barrier between 

individuals and the press of the public interest. 

III 

Staying with a state law approach to defining “private

property” would make our job in this case fairly easy. The 

Murr siblings acquired Lot F in 1994 and Lot E a year

later. Once the lots fell into common ownership, the challenged ordinance prevented them from being “sold or

developed as separate lots” because neither contained a

sufficiently large area of buildable land. Wis. Admin. 

Code §NR 118.08(4)(a)(2). The Murrs argued that the 

ordinance amounted to a taking of Lot E, but the State of

Wisconsin and St. Croix County proposed that both lots 

together should count as the relevant “parcel.” 

The trial court sided with the State and County, and the

Wisconsin Court of Appeals affirmed. Rather than considering whether Lots E and F are separate parcels under

Wisconsin law, however, the Court of Appeals adopted a

takings-specific approach to defining the relevant parcel.

See 2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628

(unpublished opinion), App. to Pet. for Cert. A–9, ¶17

(framing the issue as “whether contiguous property is 
 

 

Cite as: 582 U. S. ____ (2017) 13 

ROBERTS, C. J., dissenting 

analytically divisible for purposes of a regulatory takings

claim”). Relying on what it called a “well-established rule” 

for “regulatory takings cases,” the court explained “that

contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein.” Id., at A–11, ¶20. And because Lots E 

and F were side by side and owned by the Murrs, the case 

was straightforward: The two lots were one “parcel” for 

the regulatory takings analysis. The court therefore evaluated the effect of the ordinance on the two lots considered 

together.

As I see it, the Wisconsin Court of Appeals was wrong to

apply a takings-specific definition of the property at issue.

Instead, the court should have asked whether, under 

general state law principles, Lots E and F are legally 

distinct parcels of land. I would therefore vacate the 

judgment below and remand for the court to identify the 

relevant property using ordinary principles of Wisconsin

property law.

After making that state law determination, the next 

step would be to determine whether the challenged ordinance amounts to a “taking.” If Lot E is a legally distinct 

parcel under state law, the Court of Appeals would have to

perform the takings analysis anew, but could still consider

many of the issues the majority finds important. The 

majority, for instance, notes that under the ordinance the 

Murrs can use Lot E as “recreational space,” as the “location of any improvements,” and as a valuable addition to

Lot F. Ante, at 18. These facts could be relevant to 

whether the “regulation denies all economically beneficial

or productive use” of Lot E. Lucas, 505 U. S., at 1015. 

Similarly, the majority touts the benefits of the ordinance 

and observes that the Murrs had little use for Lot E independent of Lot F and could have predicted that Lot E

would be regulated. Ante, at 18. These facts speak to “the

economic impact of the regulation,” interference with 
 

 

14 MURR v. WISCONSIN 

ROBERTS, C. J., dissenting 

“investment-backed expectations,” and the “character of

the governmental action”—all things we traditionally

consider in the Penn Central analysis. 438 U. S., at 124. 

I would be careful, however, to confine these considerations to the question whether the regulation constitutes a 

taking. As Alexander Hamilton explained, “the security of 

Property” is one of the “great object[s] of government.” 1 

Records of the Federal Convention of 1787, p. 302 (M. 

Farrand ed. 1911). The Takings Clause was adopted to 

ensure such security by protecting property rights as they

exist under state law. Deciding whether a regulation has

gone so far as to constitute a “taking” of one of those property rights is, properly enough, a fact-intensive task that

relies “as much on the exercise of judgment as on the 

application of logic.” MacDonald, Sommer & Frates v. 

Yolo County, 477 U. S. 340, 349 (1986) (alterations and 

internal quotation marks omitted). But basing the definition of “property” on a judgment call, too, allows the government’s interests to warp the private rights that the 

Takings Clause is supposed to secure. 

I respectfully dissent. 
_________________ 

_________________ 

Cite as: 582 U. S. ____ (2017) 1 

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 15–214 

JOSEPH P. MURR, ET AL., PETITIONERS v. 

WISCONSIN, ET AL. 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

WISCONSIN, DISTRICT III
 

[June 23, 2017] 

JUSTICE THOMAS, dissenting. 

I join THE CHIEF JUSTICE’s dissent because it correctly 

applies this Court’s regulatory takings precedents, which

no party has asked us to reconsider. The Court, however, 

has never purported to ground those precedents in the 

Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922), the

Court announced a “general rule” that “if regulation goes

too far it will be recognized as a taking.” But we have 

since observed that, prior to Mahon, “it was generally

thought that the Takings Clause reached only a ‘direct 

appropriation’ of property, Legal Tender Cases, 12 Wall. 

457, 551 (1871), or the functional equivalent of a ‘practical 

ouster of [the owner’s] possession,’ Transportation Co. v. 

Chicago, 99 U. S. 635, 642 (1879).” Lucas v. South Carolina 

Coastal Council, 505 U. S. 1003, 1014 (1992). In my view,

it would be desirable for us to take a fresh look at our 

regulatory takings jurisprudence, to see whether it can be

grounded in the original public meaning of the Takings 

Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See 

generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against 

Regulatory Takings, but the Fourteenth Amendment May,

45 San Diego L. Rev. 729 (2008) (describing the debate

among scholars over those questions).