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How Much Control?
It is not uncommon to find municipalities regulating the use of property through zoning codes so that issues of similarity of use in a specific area and traffic flow can be handled to benefit the public at large. Very few would argue that, in some measure, municipal regulation to protect the health, safety, and welfare of the public at large, a.k.a., police power, is an appropriate use of the power of government, especially in light of monetary remedies, rather than a taking. However, perhaps as a backdoor to overcome public concerns over the perceived overuse of the powers of eminent domain and while the country waits for any action from Congress on takings, there appears to be an increasing trend in municipalities in the United States to regulate aesthetics and use through the development of 'chronic nuisance' statutes that permit property closure, and regulation of vacant properties.
In enacting these regulations, municipalities make the arguments of protecting the health, safety, and welfare of the public. However, these types of regulations continue to fuel the undercurrent of debate as to how far is too far in the regulation of property and whether such regulations are in fact merely the use of eminent domain power in what can be a carefully crafted disguise. Just how far can a municipality go in enacting legislation regarding real property?
To begin a discussion of the topic, it is necessary to pinpoint from where the authority to make property use regulations stems. The Constitution of the United States ('Constitution') is the source of the higher authority of law with the right delegated to Congress through the enumerated powers of Article I, '8 to make law that is not contrary to the Constitution and its enacted Amendments. The caveat of Amendment V, and the argument which is used reliably in cases of those pushing against eminent domain and the compensation therefore, provides that no individual shall be 'deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.' The question always becomes: When has a taking for public use occurred?
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