Section 1.4A Police Power

• Library: Eminent Domain 3rd Edition 2013

Eminent domain is the power by which private property is taken for public use upon payment of compensation. The power under which property may be impacted or curtailed, but without payment of compensation, is the police power.

The police power is based on the necessity to safeguard the public interest. It empowers the government to do those acts which will promote public convenience, general prosperity, and the public safety, health, and morals. However, the police power does not include the power of eminent domain, and it cannot extend beyond the necessity of the case to destroy constitutional rights relating to the inviolate nature of private property.

State ex rel. Willey v. Griggs, 89 Ariz. 70, 358 P.2d 174 (1960) (police power cannot justify statutory limitation on the value to be attributed to improvements made to land subsequent to passage of a resolution to condemn)

City of Sierra Vista v. Cochise Enters., 144 Ariz. 375, 697 P.2d 1125 (App. 1984) (construction and maintenance of sewers is valid exercise of police power and those who benefit from a sewer line can be compelled to share in cost of construction)

Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (1975) (conditions for approval of rezoning application, including the dedication of a 60-foot half right-of-way along that part of the property already zoned for commercial use, constituted an unlawful exercise of police power and a taking without just compensation)

Under eminent domain, property is taken and applied to public use on the theory that it is a benefit to the public. Under...