The Distinction Between the Government’s “Police Power” and the Power Of “Eminent Domain”
There is a common misconception that the government’s “police power” is synonymous with its power of “eminent domain.” This blog aims to dispel any confusion by explaining the distinction between the two terms.
Eminent domain is the inherent right or power of the government to “take” private property for public use. The New Jersey Supreme Court has noted that the right of eminent domain is of ancient origin, is inherent in all government, and requires no constitutional provision to give it force. Valentine v. Lamont, 13 N.J. 569 (1953). In New Jersey, the State is vested with the power of eminent domain as an attribute of sovereignty, but the legislature may also delegate the power to other agencies and arms of the government (i.e., counties, municipalities, N.J. Dept. of Trans., the Casino Reinvestment Development Authority, etc.). See N.J. Const., Art. 4, Sec. 6, par. 3. Notwithstanding this substantial power, the government may not take property for public use without paying the property owner “just compensation.” (Emphasis added).
Police Power is the inherent power and constitutional authority of the government to adopt and enforce regulations and laws to promote public health, safety, morals, and general welfare. Generally, no compensation is owed for the valid exercise of police power unless expressly provided by state law. Most police powers regulate use of property without taking actual possession of it. A regulation that constrains access to a property, but does not eliminate it, may leave a property owner without a claim for compensation because it is an exercise of the government’s police power. For example, private property access diverted or limited by highway improvements to accommodate greater traffic subordinates the owner’s access rights to the greater public use and enjoyment of the roadway. Moreover, the potential denial of future property uses due to current access regulations is a prospective limitation of use and is also typically not a taking of property. More examples of police power are the right to regulate land use through a general plan and zoning, the right to regulate pollution, environmental control, and rent control.
Courts often must decide whether the government is “taking” private property or whether the governmental action in question is a valid exercise of the police power. In New Jersey, access to a public highway is a property right and its deprivation requires just compensation. However, short of “landlocking” a property, highway access is routinely regulated and frequently modified in connection with highway projects. Under the common law and the State Highway Access Management Act, N.J.S.A. 27:7-90(f), the loss of all highway access is compensable (“[g]overnmental entities through regulation may not eliminate all access to the general system of streets and highways without providing just compensation”). It is generally held that reasonable directional traffic regulations, e.g., prohibitions on crossing a highway, restrictions on turning movements, and creation of one-way streets, do not constitute compensable takings but represent an exercise of the police power alone. Directional regulations which prevent all access and use would, of course, constitute a taking. In practice, our firm has experienced a significant rise in highway access cases over the past few years.
Additionally, New Jersey courts have recently confronted a surge of Covid-19 shutdown cases where it has been universally held that the Governor’s shutdown orders were valid exercises of police power. Back in the Spring of 2020, we became quite familiar with the sweeping mandates and executive orders during the initial months of the pandemic. During that time, members of our firm wrote about the topic and were interviewed on the Eminent Domain Podcast as well. The sad truth underlying these decisions is that so many of our citizens who have been affected by the government’s actions during the pandemic are essentially left with no remedy, outside of the funding that they may have received as part of the federal CARES act or other similar State or local funding and lending assistance programs.
In the end, the simple answer regarding the distinction is that when private property is impacted via the government’s police power, as with routine zoning, compensation is not typically required. However, when property is taken eminent domain, there must be the payment of constitutional “just compensation” to the property owner. If you are confronted with a governmental taking, please contact McKirdy, Riskin, Olson & DellaPelle, P.C. to speak with an experienced attorney.
