The Evolution of the Nuisance Exception to the Just Compensation Clause: From Myth to Reality

Authors

Scott R. Ferguson

Abstract

The "nuisance exception" to the Just Compensation Clause of the Fifth Amendment provides that a government does not have to pay for diminutions in land value resulting from its efforts to suppress a nuisance. Despite widespread acceptance by commentators, the exception has never been established, and nuisance has been merely one factor among many balanced by courts evaluating land use regulations.

In Lucas v. South Carolina Coastal Council, the Supreme Court held that the nuisance exception was categorical. This Note examines the origin and evolution of the "nuisance exception" before Lucas. It then considers the categorization resulting from Justice Scalia's opinion. The Note argues that Justice Scalia's approach exemplifies the current trend on the court toward rules of general application in constitutional law. The Note concludes by explaining why the Court should return to its prior balance-of-interest approach to takings cases.

Recommended Citation

Scott R. Ferguson, The Evolution of the Nuisance Exception to the Just Compensation Clause: From Myth to Reality, 45 Hastings L.J. 1539 (1994).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol45/iss6/4