Making A Nuisance of Takings Law
Nearly a decade ago, the Supreme Court in Lucas v. South Carolina Coastal Council held that a regulation that denies to a landowner all economically beneficial use of the regulated land is a per se taking that requires the payment of just compensation under the Fifth or Fourteenth Amendments. The Court added, however, that the regulator can avoid takings liability if the use interests proscribed by the regulation were not part of the title to begin with because they were reflected in "background principles" of the state's law of property and nuisance. This article addresses whether those background principles must inhere in the common law or may have statutory or regulatory derivation. It argues that regulatory legislation is just as relevant to the determination of an owner's pre-regulation property interest as is the common law. The article then surveys both federal and state court decisions handed down since "Lucas" and concludes that most have agreed that restrictions not based in the common law are relevant to takings analysis as limiting background principles. Finally, the article analyzes a recent Iowa Supreme Court decision declaring a right-to-farm statute to be a taking of neighboring property owners' land. The article argues that the result in the Iowa case is justifiable as a means of protecting the legitimate expectations of the neighbors that they would be able to seek redress for activities causing unreasonable interference with the use and enjoyment of their properties.
Robert L. Glicksman, Making A Nuisance of Takings Law, 3 Wash. U. J.L. & Pol'y 149 (2000).