Reexamination of the Line between Governmental Exercise of the Police Power and Eminent Domain.

• Authored by:  R. D. Netherton

Netherton, R. D. NCHRP Legal Research Digest 44: Reexamination of the Line between Governmental Exercise of the Police Power and Eminent Domain. TRB, National Research Council, Washington, D.C., Oct. 2000.

State highway departments and transportation agencies have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. This report, prepared by Ross D. Netherton, is a new paper, which continues the National Cooperative Highway Research Program’s (NCHRP’s) policy of keeping departments up-to-date on laws that will affect their operations. This paper will be incorporated in ” Selected Studies in Highway Law” (SSHL), which is currently undergoing a major rewrite and update. This paper reexamines the issue of where to draw the line between the governmental exercise of police powers, for which the government does not have to compensate the affected property owners, and eminent domain. Eminent domain involves restricting, denying, destroying, invading, or appropriating the use and value of private property, for which the property owner is entitled to compensation.

The report should be useful to attorneys, legislators, land use specialists, planners, policy officials, transportation administrators, and right of way and zoning officials. The paper is organized as follows:

(I) Problem Statement;

(II) Scope of Report;

(III) Judicial Definition and Resolution of the Takings Issue;

(IV) Legislative Definition and Resolution of the Takings Issue;

(V) Resolution of Takings Issue Cases in Transportation Programs;

(VI) Conclusions;

Appendix A – State Regulatory Impact Assessment Legislation;

Appendix B – State Regulatory Assessment Guidelines; and

Appendix C – Selected Checklists and Guidelines for Regulatory Impact Assessment.