Land Use:
Governor Perdue's Eminent Domain Package

The Governor’s proposal to reform GA’s practice of eminent domain passed the House on March 9, DAY 29 of the current Session, and is now in the Senate’s Judiciary Committee, which has commenced hearings on the measures.  The House bill and resolution represent some significant improvements over current GA law, but the bills also contain some major problems in their use of eminent domain as practically the exclusive remedy for “urban blight,” which has been defined and redefined through the House consideration of the measures.  Another problem yet unresolved is that presented by the exercise of eminent domain by utilities, which receive treatment in the Governor’s bills that is even more favorable than the sweeping powers they currently exercise over the lands of other private property owners. 

One of the greatest improvements in the Governor’s bills is the requirement that people seeking to take private property for public use must state what that public use is, and they must prove that the use is a public use before a court.  Utilities, under the House version, are exempt from these requirements, and hold the power to make such determinations as the “sole judge.”  Utility company abuse of eminent domain, particularly for power line rights of way acquisition, has been a matter of great controversy in the state for years, and the scars of these lines slashing across the landscape of the state are unforgettable testament to this unrestrained exercise of power. 

The Governor’s bill does bring significant reform to the actual procedures for taking land, and provides additional time periods for people to defend what rights they may have in such proceedings, which have heretofore been entirely one-sided.  People will also be entitled to attorney’s fees under less stringent restrictions, and they will be entitled to reasonable expenses for vacating their taken lands. 

The matter of “blight” remains the most contentious issue within the Governor’s House bill.  While the House has restricted the use of condemnation as a remedy for “blight” to single properties, instead of whole neighborhoods, defining a property as “blighted” is still a subjective process, too subjective for some people to feel comfortable with it.  A glaring example of a weak standard for “blight” defines any property with a tax lien as “blighted.”  This is plainly unacceptable as a way to define “blight” if the purpose of this legislation is allay the fears of property owners for sudden and unexpected vulnerability to eminent domain. 

Similarly, the bill’s schedule of conditions of properties that might be found to be “blighted” are also too vague to provide real assurance that local governments are not going to manipulate those definitions to get lands for redevelopment which are simply “not nice enough” for some developer’s “vision.”  This was the situation in the case of Suzette Kelo in New London, CT, which prompted the US Supreme Court decision that has prompted so much attention to eminent domain all over the country. 

Developers are impatient with the common law property rights that underlie the legal system in this country.  The concepts of “nuisance” and “trespass” are inconvenient to people who are interested in turning over land and money rapidly to realize quick profits in the name of redevelopment.  In this year’s General Assembly, we have heard a lot of talk about “property rights,” but we have seen even more legislation aimed at reducing, or even eliminating key components in that very “bundle of rights.

The bill that goes to the Senate enshrines a power of eminent domain for public utility companies that is superior to the power of state and local governments.  Under HB 1313, state and local condemnations must be proven before a judge that they are for a “public use” and the burden of proof is on the condemnors.  Utilities are “the sole judge” of the need for the property.  This is wildly out of balance with the way power is supposed to be distributed in our society. 

So far, changes to HB 1313 have turned the bill into a monster. The meaning of HB 1313 by Committee Substitute:  if you get a fi fa notice, if you fail to act promptly to correct whatever deficiency is alleged, your property may be found to be “blighted” and subject to condemnation at any time by your local government.  This is worse than the current situation.  The current version of the Governor’s bill also has a couple of other problems that will require correction:  there is excellent language that requires that a judge alone can determine if the “public use” for a condemned property is indeed a “public use,” and the burden of proof for that proposition rests on the party condemning the land.  But public utilities are made the “sole judge” of such matters for property they wish to acquire.  Utility condemnation rights are made more powerful than those of state and local government!  We start to see elements of feudalism creeping into our laws, undermining property rights in the name of “economic development.”  

Finally, housing authorities, among the more vigorous agencies in the use of eminent domain for economic development activities, have been revived as condemnors under the Substitute bill.  All the housing authorities need to obtain is a single resolution for their creating local government, and they can proceed as if  nothing had changed, except of course those provisions defining “blighted property” even more loosely than those in force today.

How HB 1313 Started Out: Governor Sonny Perdue, along with numerous legislators, has taken a continuing interest in the matter of eminent domain abuse, ever since the US Supreme Court rendered the Kelo decision, which said that the states must each determine the definition of “public use” of property that is subject to condemnation.  Freshman Sen. Jeff Chapman, of Brunswick, is the legislative “father” of eminent domain reform, a status dating from his introduction of SB 86 early in the 2005 session, when the Kelo case was still undecided, and controversy had erupted over SB 5, a pro-development bill designed to let politically-connected developers use eminent domain to promote their development of other people’s property.  Chapman held hearings around the state in the interim period, taking testimony from anyone who cared to show up, trying to define when eminent domain was abusively misused.

Chapman became convinced, over the course of the hearings, that eminent domain should not be used for eliminating slums, or what is known as “urban blight.”  He points out that there is an array of powers granted to local governments that can correct neglect of property, and full use of those various remedies should be sufficient to prevent or eliminate blight.  He seems to think that local governments want to preserve the use of eminent domain for blighted property from two motives:  condemnation is easier than the lengthy process of inspection and citation and enforcement.  Having to wait until taxes become sufficiently delinquent takes a lot longer than going down to the courthouse and entering a property description and seizing title to land.  

The case that has consumed much of official and public attention in this area in current Georgia history argues that Chapman is not too far afield in his apprehensions about the use of blight as excuse, and the relative ease it offers local governments in comparison to more pedestrian abatement programs.  The Meeks family owns a florist business in Stockbridge, and the local government wants to redevelop the neighborhood in which it is located.  Under no reasonable standard could the Meeks’ shop be called blighted.  If it is blighted, the state is full of blighted property.  Yet blight was the excuse Stockbridge used to condemn the Meeks’ shop. 

The menu for defining blight in HB 1313 is vague, subjective, and looks as if developers had a hand in its drafting.  Without going into excessive detail on the matter, an example of what the bill would call blight is enlightening:  if a hurricane knocks down houses on St. Simons Island, and the people who own those houses then fail to pay their ad valorem taxes on their now-ruined houses, those two conditions could make those properties blighted, and thus subject to condemnation.  And you can bet there are developers who would be delighted to “redevelop” those beachfront properties.  Property which might be contaminated by pollutants meets one of the “blight tests.”  Property without “adequate open space” might be blighted.  Property that is affected by “transportation noise” might be blighted.  These are not standards, these are excuses.  Nothing in the proposed statute sets forth who gets to decide when these conditions exist for a property, although it must presumably be the local government which wishes to condemn the land.

The Governor’s bill is not all about finding ways for developers to take land.  There are several very welcome proposals for eminent domain reform, and it is well worthwhile to list those here.  Should the governor’s proposal pass, condemnations cannot be considered complete until the money has been paid for the property.  Now, the title is taken as the first step in the process.  Lawyer’s fees will be paid by the condemning party when the court decides that their first offer was insufficient.  Parties who want to take property must say why they want the land and what they are going to use it for.  Condemning parties will bear the burden of proof in contested proceedings as to the suitability of a property for taking.  Failure to use condemned land in five years for the stated purposes will cause it to be available for repurchase by the original owner at fair market value.  These are all meaningful and desirable reforms, and Governor deserves praise for offering them.

A group of representatives of citizens’ organizations came together at the request of Sen. Chapman on Feb. 9^th to signify their common concern with the abuse of eminent domain.  The GA Baptist Convention, the Christian Coalition, the Henry County NAACP, the Satilla Riverkeeper and the GA Chapter of the Sierra Club held a joint press conference to outline the problems we have all discerned with abusive misuse of the power of eminent domain, particularly the misuse of the power in the context of supposed “blight.”  The Meeks were present, as were other concerned Henry County citizens.  This kind of “strange bedfellows” unity on an issue should be a significant warning to such “powers that be” as the Governor, and his advisors and allies, that they must tread carefully when they walk on property that may very well belong to someone else.  Trespass remains a proscribed activity.