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Anti-Nuisance Legislation: Can the Derogation of Common-Law Nuisance Be a Taking?

April 2000

Citation: ELR 10253

Author: Terence J. Centner

Common-law nuisance actions have long been a part of our jurisprudence.1 Landowners who are not reasonable in their use of property can be restrained under an action in nuisance. While courts have balanced the utilities and applied various tests of reasonableness, the end result is that an activity or land use that is too offensive to surrounding property owners may be enjoined. Moreover, even in cases where a balancing test shows a close question of whether there is a nuisance, courts have only two major choices.2 The offensive conduct is either a nuisance or not. If there is a nuisance, the plaintiff is entitled to relief; otherwise, the plaintiff receives nothing even though the one-sided result may be unfair.3

While the winners take all approach embedded in nuisance law has its deficiencies, another consideration has involved investments by landowners conducting objectionable activities that constitute a nuisance. Courts have devised resolutions to these problems as exemplified by the celebrated Boomer v. Atlantic Cement Co.4 case. Because of the investments the cement company made to its facility and the economic benefits it provided to the community, the court declined to simply enjoin the disturbing activities.5 Rather, the court found a nuisance, awarded the neighbors permanent damages, and allowed the cement plant to remain.6

Terence J. Centner is a professor at the University of Georgia College of Agricultural and Environmental Sciences.

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