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Police power is the concept that government has the authority to take the steps necessary to protect the heath, safety and general welfare of the public; and that if the exercise of police power interferes with private property rights, the government has no obligation to reimburse or compensate the individual whose pesonal or property rights have been interfered with.
Under this State's police power, the legislature may "impose such restrictions upon private rights as are practically necessary for the general welfare of all." State v. Cromwell, 72 N.D. 565, 9 N.W.2d 914, 919 (1943). "[A] large discretion is necessarily vested in the legislature, to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests." Id. Use of the public highways is not an absolute right, but a privilege subject to the control of the State in the valid exercise of its police power. State v. Ertelt, 548 N.W.2d 775 (N.D. 1996)
Instead, we believe our Constitution's protection of the right to keep and bear arms is not absolute; although it prevents the negation of the right to keep and bear arms, that right nevertheless remains subject to reasonable regulation under the State's police power. As the Michigan Supreme Court stated in construing that State's right to bear arms, "regardless of the basis of the right to bear arms, the State, nevertheless, has the police power to reasonably regulate it." People v. Brown, 253 Mich. 537, 235 N.W. 245, 246 (1931). State v. Ricehill, 415 N.W.2d 481 (N.D. 1987).
The expenses of a railroad to comply with a reasonable police-power regulation is not a compensable taking. Southeast Cass Water Resource Dist. V. Burlington Northern Railroad, 527 N.W.2d 884 (N.D. 1995).
A critical issue, however, is whether a particular government action is "an exercise of police power," or whether it is beyond the scope of the police power, in which case the individual impacted by the government action is entitled 1) to be compensated, or 2) to have the government stop its action and return the person and property back to its original situation.
A city generally need not compensate a landowner when a valid police-power regulation affecting the use of land decreases the value of the property. E.g., Eck v. City of Bismarck, 283 N.W.2d 193, 197 (N.D. 1979). If, however, the regulation forbids all reasonable use of the regulated property the property owner may be compensated through an inverse condemnation action. E.g., Rippley v. City of Lincoln, 330 N.W.2d 505 (N.D. 1983). As a further exception to the rule of no compensation, this court has recognized that "a landowner who has made substantial expenditures in reliance upon existing zoning or otherwise committed himself to his substantial disadvantage before the zoning change may be protected." City of Fargo v. Harwood Twp., 256 N.W.2d 694, 700 (N.D. 1977). Buegel v. City of Grand Forks, 475 N.W.2d 133 (ND 1991).
This material is intended for educational purposes
only. It is not a substitute for competent legal counsel. Seek appropriate
professional advice for answers to your specific questions.
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