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The Curious Intersection of Nuisance and Takings Law

Carlos A. Ball

Rutgers Law School

Boston University Law Review, Forthcoming

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.

Number of Pages in PDF File: 61

Keywords: Nuisance, Takings, Land Use, Environmental Justice

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Date posted: May 16, 2006  

Suggested Citation

Ball, Carlos A., The Curious Intersection of Nuisance and Takings Law. Boston University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=901236

Contact Information

Carlos A. Ball (Contact Author)
Rutgers Law School ( email )
United States
973-353-3008 (Phone)
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