Lawyer Monthly Magazine - January 2019 Edition

protections also exist, and they too can sometimes apply to an eminent domain taking. In short, how the sovereign makes an otherwise proper “public use” taking can sometimes be of crucial importance. Did the sovereign follow proper procedures? Were all its citizens treated equally in the processes underlying and leading up to the taking? Thus, while the sovereign’s power of eminent domain is quite broad, these additional constitutional rights are not eliminated. In fact, they may, in certain circumstances, provide additional protections to a private property owner. 9. THE “POLICE POWER” VS. “EMINENT DOMAIN” A very actively litigated area and subject of great controversy for many decades, and seemingly becoming increasingly more so, is “locating the dividing line” between these two inherent sovereign rights. The “police power” is broadly understood to mean the sovereign’s right to take all necessary steps to protect the public from harm. These rights include the right of the police to take actions that can, at times, be averse to an individual. The same is also true for fire departments, boards of health and other governmental departments. More commonly, in the eminent domain context, the “police power” includes the right of government to restrict the use of private property via zoning laws, planning board rules and regulations, environmental laws and the like. Because these restrictions necessarily limit how a property owner can use his/her or its property, there often can be economic consequences to these restrictions. Do those restrictions constitute a “taking by eminent domain”? It is an understatement to say that this is a hotly contested area of lawand it is a growing area of contention and therefore, litigation. The law is clear that a regulation can go “too far” and by doing so, morph into an actual taking by eminent domain. But, that is where much of the clarity in this area ends: determining where that point is led, and will continue to lead, to a lot of litigation. 10. EXPERTS Finally, eminent domain is one of those areas of lawwhere subject- matter experts are often crucial to proving a case, whether you are a property owner or its representative, or working on behalf of the taking entity. Not only might there be questions of whether a taking occurred at all – i.e., in the ‘regulatory taking’ scenario. But, there will very often be significant questions about “just compensation”, which will require the assistance of engineers, environmental scientists, title experts, and others. Essentially, anything which can affect the use of land and/or its value – and there are many such things – is in play when an eminent domain taking occurs. This is, of course, by no means an exhaustive or all-encompassing list. Eminent domain is simply too vast and complex. Instead, it’s meant as a basic primer of a series of touch stone questions, or a kind of introduction, to an all- important area of government power and citizen’s rights. LM ABOUT JOHN E. BOWEN John E. Bowen serves as Counsel in the Bos- ton-based law firm Rackemann, Sawyer & Brewster. He is an ex- perienced trial and ap- pellate lawyer in the firm’s litigation practice representing businesses, individuals and institu- tions with a focus on real estate-related civil litiga- tion. This includes emi- nent domain and other real estate and business valuation issues as well as land use, permitting, environmental and other regulatory matters. 41 Rackemann, Sawyer & Brewster JAN 2019 www. lawyer-monthly .com