Eminent Domain

Protect Your Property Rights

In a recent Supreme Court Decision - Kelo v New London, the government gave itself the right to take an individual´s property through eminent domain if the government feels that it can make more money by selling the property to someone else. Recently I was listening to a local Atlanta talk show and heard how this was happening just south of Birmingham, Alabama. A family there had owned acreage for many years and the local Government was taking the property so that a large national retailer could have the land to build a mega-store that would generate a much larger tax base for the Government. This is just not right.

While eminent domain can be useful when needed for the procurement of land for the public good (schools, bridges etc.), The Georgia Association of Realtors has taken a very strong stand in favor of private property rights. We believe that eminent domain should be used as a last resort, not the first option considered.

 

The Georgia General Assembly is scheduled to convene on Monday, January 9, 2006. If you feel as I do and would like to voice your opinion to your elected officials, please visit www.protectGAprivateproperty.com. From this site you can email you local Georgia Congressman and Senator and encourage them to enact legislation to help protect private property rights in our state.

These are the four core issues addressed in the proposal that the Georgia Association of Realtors will submit to the state´s legislature:

There must be a more stringent definition of the term "blight," which is often used as a factor in determining if a property can be condemned. At this point, the concept of blight is highly subjective and leaves too much opportunity for abuse of power without more defined parameters.
A system of due process must be established that allows property owners to challenge the condemnation of their property if blight is cited as the reason for a taking. This would provide a safeguard to ensure that such power is not abused.
Just and adequate compensation must be provided to property owners who suffer a taking. In some cases, such compensation should rightly extend beyond a simple square footage valuation of a property as is so often used.
Finally, a property owner should never face any liability for the legal fees the government incurs while taking the property.
The Georgia Association of Realtors will be lobbying the General Assembly vigorously in an effort to protect private property rights. Please join in so that we may collectively make a difference.

The following is an update directly from Governor Sonny Perdue’s website regarding his proposed legislation on the eminent domain issue:

 

Thursday, February 09, 2006

Governor Protecting Property Rights
Proposes Private Property Protection Amendment to the Georgia Constitution

Governor Sonny Perdue today announced legislation that will protect the private property rights of Georgians against abuses of the use of eminent domain.

"The government’s awesome power of eminent domain should be used sparingly and never be abused for private benefit," said Governor Sonny Perdue. "I ask the legislature to submit a Property Protection Amendment to the voters and to return a strong bill to my desk that reflects the will of the people of Georgia. Government must always respect the property rights of its citizens."

Governor Perdue’s Private Property Protection Amendment to the Georgia Constitution will secure private property rights by removing the power of eminent domain from non-elected housing and development authorities. This will ensure that eminent domain decisions are made by elected officials who are accountable to the people for their actions. The amendment also prohibits the use of eminent domain for redevelopment purposes. A narrow exception is included to allow condemnation of blighted property that presents concrete harm to the community.

To accompany the protections of the Constitutional amendment, Governor Perdue also introduced the Private Property Protection Act. This bill represents a comprehensive reform of eminent domain in Georgia. It will prohibit using eminent domain for economic development or to increase tax revenue. It will also provide private property owners with stronger due process rights in eminent domain proceedings. These include:

· Increased notice requirements;

· Award of attorney’s fees to property owners who prevail on appeal;

· Additional damages for property owners for relocation expenses and lost business revenues; and

· The right of owners to repurchase condemned land if it is not used for the public purpose for which it was taken within five years.

In addition, the bill puts the burden of proof on the government to show that a proposed use of eminent domain is legal.

Last year the U.S. Supreme Court ruled that the U.S. Constitution allows government to use eminent domain to take property from one private owner and give it to another private owner for redevelopment, calling the increased tax value a "public use." The Court’s decision also invited state governments to enforce stronger protections of private property rights than the Court itself defined.

Private Property Protection Act

As proposed by Governor Sonny Perdue – February 8, 2006

I. Amendments to Title 22 Related to Eminent Domain

· Tightens the definition of "public use" to exclude any public benefit that might be derived from economic development such as increased tax revenue or increased general economic health

· Preserves as "public use" takings

1. for possession, occupation and enjoyment of the land by general public or public agencies – i.e. public parks, schools, government buildings, etc.

2. for creation or functioning of utilities

3. for opening of roads or channels of trade and travel

4. for the alleviation of blighted properties or removal of public nuisances

5. to quiet title where known parties with an interest in the property consent

· Provides former owner the right to repurchase condemned property that has not been put to the stated purpose for which the land was taken

1. 5 year period

2. Right to repurchase at Fair Market Value

· Places the burden of proof regarding the legal authority for the taking on the condemning entity

· Adds additional notice and opportunity to be heard protections for landowners before any condemnation proceeding may occur

· Strikes existing attorneys’ fees provision that has a chilling effect on landowner’s willingness to appeal assessor’s valuation determinations

· Adds right to attorneys’ fees for landowners where condemnor is held not to have the authority to take the real property or where proceeding is abandoned by condemnor

· Provides additional damages for condemnee displaced as a result of a condemnation for certain purposes:

1. Actual reasonable expenses in moving himself or herself, his or her family, business, farm operation or other personal property

2. Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation

3. Actual reasonable expenses in search for a replacement business or farm

· Gives landowners, where a condemnation petition is filed pursuant to a redevelopment plan to alleviate blighted property, the immediate right to contest the legal authority of the condemnor to exercise eminent domain including whether the property is "blighted" as defined by law

· Contains miscellaneous other due process protections for landowners, such as:

1. the right to have a hearing before Superior Court judge regarding the appointment of a special master prior to appointment

2. additional requirement that condemnation petitions set forth the necessity for the condemnation and description of the public use for which the condemnor seeks the property

II. Amendments to the Title 8 and Title 36 Related to the Redevelopment Statutes

· Removes eminent domain power from non-elected authorities

· Requires a vote of the local county or city in which the property is located in order to condemn blighted property pursuant to these statutes

· Strictly and consistently defines blighted property in both statutes

1. Each property must meet the redefined definition of "blighted property," – no ability to condemn non-blighted property within generally blighted areas

2. Property must be urbanized or developed property – no ability to condemn agricultural or forested land under the "blighted property" pretext

3. Overall condition of property must result in ill health, transmission of disease, infant mortality, juvenile delinquency or crime for the community as established by statistical data – no ability to condemn property which may be only aesthetically displeasing, substandard or deteriorating

· Adds additional notice protections for landowners whose properties are subject to the exercise of eminent domain under the redevelopment statutes

Eminent Domain Constitutional Amendment

As proposed by Governor Sonny Perdue – February 8, 2006

I. Amendment to Article IX, Section II, Paragraph V

· Limits exercise of eminent domain by county or municipality to "public purposes" as restricted by general statute

· Removes the power of eminent domain from all non-elected housing, authorities, development authorities or other entities, including those authorities previously given eminent domain by local constitutional amendment

II. Amendment to Article IX, Section II, Paragraph VII

· Removes previous, broad grant of authority to counties, municipalities and housing authorities to undertake and carry out community redevelopment, "which may include the sale or other disposition of property acquired by eminent domain to private enterprise for private use"

· Prohibits use of eminent domain for redevelopment purposes except in the specific cases where general law authorizes the taking in order to eliminate an existing affirmative harm to the community from blighted property as strictly redefined

· Requires vote of elected governing authority of city or county where property is located in order to condemn blighted property