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The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol N. Brown
The Categorical Lucas Rule And The Nuisance And Background Principles Exception, Carol N. Brown
Law Faculty Publications
This article examines the seminal 1992 United States Supreme Court decision, Lucas v. South Carolina Coastal Council, 1 specifically focusing on the Lucas nuisance exception. I surveyed approximately 1,600 reported regulatory takings cases decided since the Lucas decision involving Lucas takings challenges. I identified the statutory nuisance cases in which state and local governments unsuccessfully asserted the Lucas nuisance exception as a defense to the courts' findings of a Lucas taking. This article examines the prospective potential of these cases for assisting private property owners in enhancing private property rights protections within the area of regulatory takings.
Taking The Takings Claim: A Policy And Economic Analysis Of The Survival Of Takings Claims After Property Transfers, Carol N. Brown
Taking The Takings Claim: A Policy And Economic Analysis Of The Survival Of Takings Claims After Property Transfers, Carol N. Brown
Law Faculty Publications
What ought to be the nature of an owner's right to pursue a regulatory takings claim when the regulation the owner seeks to challenge was in place when the owner acquired the regulated property? Some argue that an owner should not be entitled to challenge such a restriction as a Fifth Amendment taking if the property was already impaired by the regulation at the time the owner acquired it. Proponents of this view contend that allowing subsequent owners to challenge the enforcement of regulations, pre-dating their acquisition of title, and of which they had notice, would confer undeserved windfalls and …