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Publication Title

Washington University Journal of Urban and Contemporary Law

Abstract

Parts II and III of this Article discuss the more salient attributes of the Court's most recent contributions to the regulatory takings dialogue, with particular emphasis on Rehnquist's curious excursion into state law to establish the Dolan standard of review, and Scalia's skillful weaving of nuisance law into the fabric of the Lucas holding. Thus is the stage set for the backward glances that follow. Part IV reconsiders Village of Euclid v. Ambler Realty Co. as the case that forged the integral links between private nuisance law and its "civil" legacy: local land--use controls, chiefly the height, area, and use regulation we now call "Euclidean zoning." Part V revisits Southern Burlington County NAACP v. Township of Mount Laurel and Fasano v. Board of Commissioners of Washington County, two highly influential land-use cases that illustrate the limits to the deference and tolerance exhibited by the Court in Euclid. Part VI centers on the Supreme Court's decision in Keystone Bituminous Coal Ass 'n v. DeBenedictis, a holding that might appear to be tenuous in the wake of more recent Court decisions, particularly given the Dolan Court's narrow focus on the deprivation of the right to exclude. Part VII concludes this Article with a warning. The Justices' efforts to ratchet-up the level of scrutiny appropriate to takings challenges and to reintroduce nuisance elements into the regulatory taking formula are problematic, not only because of their potential chilling impact on well-crafted regulations affecting private property,39 but also because they could accelerate the pattern and practice of merging together traditional land-use and modem environmental controls in judicial and legal analysis.

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