The curious intersection of nuisance and takings law

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Abstract

Whenever the government operates a facility in a way that negatively affects the property interests of nearby owners, the question of whether it has effected a taking arises. This is especially the case in instances in which the government's land use constitutes a nuisance. This Article explores the issue of when a nuisance ripens into a taking. The Article argues that when it is alleged that the government has effected a taking through its own land use, courts should employ a form of review that is more exacting than that applicable in regulatory takings cases but that falls short of the categorical rule applicable in physical invasion cases. In doing so, the Article focuses on both the magnitude of the harm, and the degree of its distribution among property owners, which accompanies intensive governmental land uses. The Article seeks to show how takings law can promote a greater degree of fairness when the government chooses sites for facilities that create significant negative externalities. The analysis will help property owners who have borne a disproportionate share of those externalities, including owners in poor and minority communities whose unequal treatment in this regard has given rise to the environmental justice movement.

Original languageEnglish (US)
Pages (from-to)819-879
Number of pages61
JournalBoston University Law Review
Volume86
Issue number4
StatePublished - Oct 2006
Externally publishedYes

All Science Journal Classification (ASJC) codes

  • Law

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