Section 3 Police Power Distinguished

• Library: Condemnation Practice 2009

It is important to distinguish between an exercise of police power and the use of the power of eminent domain. Eminent domain involves the taking of property for public use and requires just compensation to the landowner. The police power of the state regulates the use of private property without compensation in the interest of protecting the health, welfare, or safety of the community. City of Independence v. Richards, 666 S.W.2d 1 (Mo. App. W.D. 1983).

As a general rule, a regulation will be upheld as a valid exercise of police power if it bears a “substantial relation to the public health, mortality, safety or welfare.” Id. at 4. But a “regulatory” taking can occur when a regulation enacted by the government goes too far. Reagan v. County of St. Louis, 211 S.W.3d 104 (Mo. App. E.D. 2006).

There is no set formula for determining when a regulation goes too far. Generally, courts make that determination on a case-by-case basis. There are, however, two situations in which a landowner is entitled to compensation for a per se regulatory taking without a case-specific inquiry. These two situations are when:

“(1) the government causes a landowner to suffer an actual physical invasion of her property; and

(2) a regulation completely deprives a landowner of all economically beneficial or productive use of her land.”

Id. at 107.

When no per se taking has occurred—that is, when a regulation places...