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This Article addresses the largely unexplored issue of whether a sovereign may use its power of eminent domain not to pursue an affirmative public use, but rather to prevent an undesired private use (such as a landfill, rehabilitation facility, or other NIMBY-triggering use) from going forward. The author argues that although sovereigns tend to dissemble in these non-use cases based upon an underlying assumption by condemnors and courts alike that non-use takings are not constitutionally permitted, their analysis is in fact, incorrect. It is not the non-use condemnations themselves that are problematic, but the subterfuge that condemnors typically use in pursuing such takings. The resulting lack of transparency in governmental action subverts the political process and weakens private property rights protection.


File nameDate UploadedVisibilityFile size
6 Sep 2022
243 kB



  • Subject
    • Land Use Law

    • Property Law and Real Estate

  • Journal title
    • Boston College Environmental Affairs Law Review

  • Volume
    • 35

  • Issue
    • 1

  • Pagination
    • 45

  • Date submitted

    6 September 2022