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Comparison definition. A state may regulate the use of land pursuant to the police power or to 'take' or physically acquire property pursuant to the power of eminent domain. (French Investing Co. v City of New York, 39 NY2d 587, 593, app dsmd 429 U.S. 990; see, generally, Sax, Takings and the Police Power, 74 Yale LJ 36.) The mode of control chosen to effectuate the desired governmental end has all too often been termed critical to a determination of the necessity of providing compensation to property owners adversely affected. Unfortunately, characterization of the State's exercise of control over private property as either a noncompensable regulation or a compensable taking is often fraught with difficulty. As Professor Costonis has aptly commented: 'Like the bedeviled horseman, government stands shakily astride the police and eminent domain powers as it seeks to give direction in land use affairs.' (Costonis, 'Fair' Compensation and the Accommodation Power: Antidotes For the Taking Impasse in Land Controversies, 75 Col L Rev 1021.)
Perhaps the difficulty in precisely delineating the boundary between the police and eminent domain powers stems from the realization that, as a practical matter, any restriction upon the use of property ...
