Eminent Domain

A short while ago, the City contemplated taking a small piece of property in the historic downtown for public use as part of an urban downtown park.

In dealing with eminent domain matters, the City proceeds using the Landowners Notice of Rights as mandated in State Law. The Landowners Notice requires making reasonable efforts to negotiate the purchase of the property, thus avoiding the use of eminent domain. The City offered to accept a donation, to lease the property for 99 years or to have an easement for the property. The owner declined all offers. The Notice also lays out the legal methods and steps that need to be taken to protect the property owner’s rights, and when all else fails to take the property through the power of eminent domain.

No matter how carefully or diplomatically a government proceeds, no one likes to be told the government needs property, perhaps owned by the family for generations, for public use. It should be noted that there is no “critical need test” in the law before eminent domain can be used. The only test is that the taking is for a public use. Emotions and rhetoric often run high in such cases. Pejorative terms such as “stealing”, “taking without a real need”, “sinful” and “immoral” tend to pepper the discussions surrounding eminent domain. Those terms are used by opponents of the action, when they have no legal grounds to object, to tar the individuals and inflame the public against those who must make the decision. Using of the power of eminent domain will always be a distasteful action.

The actual words eminent domain came to us through English common law probably from the Dutch around the 1600’s. The idea has been around as long as governments have existed. It is from the term dominium emines which means supreme lordship in Latin. The term “condemnation” is used to describe the formal act of the exercise of the power of eminent domain to transfer title to property from its private owner to the government. The United States, the State of Georgia, Gwinnett County, Gwinnett Board of Education, and the City of Dacula are empowered to use eminent domain for certain purposes. Several quasi-governmental bodies may also use the power of eminent domain to acquire property title including railroads, utility companies, even individuals who need access to their land-locked property. Just compensation must be paid to the owner for the property so acquired.

American courts have held that the proper measure of “just compensation” is “fair market value”. The City of Dacula determines “fair market value” by having an independent, outside appraiser determine the value. In an eminent domain case, the property owner is given the opportunity of meeting with the appraiser to help determine “fair market value”. In our case, the owner declined to even discuss this issue.

Following the U.S. Supreme Court decision in Kelso v. City of New London, 545 U.S. 469(2005), Georgia refined the eminent domain law. The City of Dacula follows state law in eminent domain matters.(By the way, the U.S. Supreme Court found in favor of the City of New London in the matter and upheld the use of the power of eminent domain.)

Article VII, General Provisions of the City of Dacula Charter from the General Assembly empowers the City to use the power of eminent domain. In Section 7.10, the Council is empowered to acquire, construct, operate, and maintain public ways, parks, public grounds, … (and a lot of other items including correctional facilities and the like), and, for such purposes, property may be taken under the Georgia Code, as amended.

When no agreement on “fair market value” of private property can be reached between the City and a property owner, the Council must consider condemning the property in question. Following the official act of condemnation, the matter will be heard in court by a “Special Master”. The Special Master will determine what the fair market value is, that amount of money will be deposited with the court, and title to the property will pass to the City.

The power of eminent domain is ensconced in English common law, in the U. S. Constitution, the Georgia Constitution, state law, and the Dacula Charter.

In the recent matter before the Council, the resolution to use the power of eminent domain was defeated on a 3-2 decision with the Mayor casting the deciding vote. Because the Council was evenly divided on the exercise of the power, I thought it best to defeat it. In most cases, the City has been able to negotiate and most often reach a settlement for property that the city needs. And it should be noted that residents and even past and present Council member have themselves donated property for public purposes when needed.

Is there a place for the City’s use of the power of eminent domain? Is taking someone’s private property for public use immoral? It is perfectly legal. Without eminent domain, we might have higher priced electricity and telephone service or not be able to get from one place to another or transport goods on a railroad. Members of your family might have used eminent domain to clear a cloudy title to a piece of family property or to gain access to land-locked property you might own.

In debating eminent domain, one should consider that the Dacula property in question was probably obtained (though I don’t know for sure and I doubt that any records could be easily found) by the railroad’s power of eminent domain, as the City was originally laid out by the railroad. Much of Walton County (in what is now Gwinnett County) was obtained by treaty from the Indians shortly after the War of 1812 with part of the US Army on site to make sure the treaty was executed. And much of the territory in Georgia was obtained by the forced removal of the Indian tribes that occupied the land during the 1830s and 1840s. Remember, the property you live on and own might have been occupied by a people who had a different idea about property and its use.

While some may consider the use of eminent domain “sinful”, I consider it sometimes “needful.” When you flip you electric switch or turn up you heat, drive on our streets and roads or when you walk in a government owned park, ask yourself would I be able to do this if the power of eminent domain did not exist?

I leave you to determine what you think.