Police power

Key Takeaways

• Police power is government's authority to make and enforce laws protecting public health, safety, and welfare, and it is the constitutional basis for zoning and building codes.
• A police power regulation limits what an owner may do and owes the owner nothing, while eminent domain takes property or an interest in it and owes just compensation.
• In Washington, article XI section 11 of the state constitution lets any county, city, town, or township make and enforce local police, sanitary, and other regulations that do not conflict with general laws.
• The four government powers over private land are police power, eminent domain, taxation, and escheat, and only eminent domain requires payment to the owner.

What It Means

The police power is government's authority to make and enforce rules that protect the public's health, safety, morals, and general welfare. It is not about police officers. It is the legal foundation under nearly every restriction a licensee runs into: Zoning, setbacks, height limits, building and fire codes, subdivision standards, environmental rules, and licensing of brokers themselves.

Two features of the police power drive exam questions. First, it costs the government nothing. When a city limits a lot to one home, or bans a use, the owner absorbs the lost value; no payment is owed because nothing was taken, only regulated. That is what separates the police power from Eminent Domain, where the government acquires property and must pay for it. Second, the power belongs to the state, which then delegates it to counties and cities. That is why land use rules differ from one jurisdiction to the next, and why a local rule that exceeds the delegation, or conflicts with state law, can be struck down. The outer limit is that a regulation must serve a legitimate public purpose and cannot be arbitrary.

How It Works in Washington

In Washington, the police power over land starts in the state constitution. Article XI, section 11 provides that any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws. The legislature then hands the tools down by statute. RCW 35A.63.100 lets a code city's zoning ordinance regulate the use of public and private land, the height, bulk, number of stories and size of buildings, the size of yards and open spaces, density of population, Setback distances, and off-street parking area.

The Growth Management Act is the same power at a larger scale. RCW 36.70A.060 requires counties and cities to adopt development regulations protecting critical areas, and RCW 36.70A.120 requires a planning county or city to perform its activities and make capital budget decisions in conformity with its comprehensive plan. None of that triggers a payment to owners. Compensation enters only when a regulation goes far enough to be a taking, and Washington's article I, section 16 reaches further than the federal rule because it requires just compensation when private property is taken or damaged.

Example

Devon buys a 60-foot by 120-foot infill lot in Tacoma for $185,000 and wants a 2,400 square foot single-story house plus a 600 square foot detached garage. The lot is 7,200 square feet (60 x 120). His plans go to permitting and come back rejected.

The zoning code caps lot coverage at 35 percent, which on this lot is 2,520 square feet (7,200 x 0.35). Devon's design covers 3,000 square feet (2,400 + 600), so he is 480 square feet over the cap. He has three choices: shrink the house, drop the garage, or go two-story and cut the footprint. What he does not have is a claim for money. The coverage cap is police power regulation rather than a taking, so no Just Compensation is owed even though the rule cost Devon the house he wanted.

Common Mistakes and Exam Traps

• Police power regulates and pays nothing. Eminent domain takes and must pay just compensation. Exam questions count on students swapping the two.
• Zoning is an exercise of the police power even when it lowers a property's value. Lost value by itself does not turn a regulation into a taking.
• Deed restrictions and CC&Rs are private controls enforced by owners or an association. They are not police power, because no government body enacted them.
• Building codes, subdivision rules, and environmental regulations all rest on the police power. Property taxes rest on the separate government power of taxation.