The Curious Intersection of Nuisance and Takings Law

Abstract

Whenever the government operates a facility in a way that negatively affects the property interests of nearby owners, the question arises whether it has effected a taking. 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 applied in regulatory takings cases but that falls short of the categorical rule applied in physical invasion cases. In doing so, the Article focuses on both the magnitude of the harm, as well as the degree of its distribution among property owners, that 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.

Keywords: Nuisance, Takings, Land Use, Environmental Justice