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.

Transportation Investment Act of 2010

The Transportation Investment Act of 2010 was passed into state law in June of 2010. It places the transportation future of Georgia into the hands of the voters by providing for the establishment of 12 regional roundtables. Dacula and Gwinnett County fall into the Atlanta Regional Roundtable along with the other 10 metro Georgia Counties and their cities.

The law provides for a roundtable made up of the county commission chairman and a mayor from each of the counties located in the region. For the Atlanta roundtable the mayor of Atlanta is also included. The Atlanta Roundtable consists of 21 members. From an unconstrained list of projects that meet certain criteria, a final list for each of the 12 roundtables will be chosen. When the referendum which will be held in the summer of 2012 is held, the voters of each regional roundtable will be voting to approve the 1% sales tax which will fund the projects of each region.

Soon, you will be seeing the unconstrained (read all the projects that meet the criteria) project list for Gwinnett and her cities. As you can imagine, not all projects on the unconstrained list will make the cut to the final list.

The 1% sales tax over a ten year period is expected to keep about $7 billion dollars in the Atlanta region. Fifteen percent of the money is devoted directly to cities and counties in the Atlanta region, with the remainder to be used for projects with regional impact.

The law provides for an aggressive time line. The final project list is due to each roundtable by October 15, 2011.

For additional information please see the Atlanta Regional Commission’s website for the Transportation Investment Act.

Congratulations to our new Commission Chairman

Congratulations to Charlotte Nash, our new Chairman, Gwinnett County Board of Commissioners!

VOTE!

VOTE!

March 15, 2011

for

Charlotte Nash

Three Days Left to Vote

If you have not voted in the Special Election for Chairman of the Gwinnett County Board of Commissioners race, I invite you to visit the Elections Office on Grayson Highway in Lawrenceville either today or Friday to vote for the best qualified candidate in the race—Charlotte Nash. Your last chance to vote will be at your regular polling place next Tuesday from 7AM to 7PM.

Your participation in this election is critical for Gwinnett County. I encourage you to ask your neighbors to join with you in voting today, Friday or next week on Tuesday.

I am supporting Charlotte Nash, and I invite you to support Charlotte also.

What's Happening in State Government?

Just to give you a headsup on an issue that on the surface looks like it only affects you and the General Assembly. I believe this also affects you at the local level, i.e. School Board, County Commission, and Municipal.

I've attached a commentary from the Political Vine web site, and it has commentary from a leading law firm. Please pay attention.

"Two days ago, the Georgia Government Transparency and Campaign Finance Commission (formerly known for 25 years prior to 2011 as simply "Georgia State Ethics Commission") issued an advisory opinion that greatly expanded the definitions of "lobbying" and being a "lobbyist" in this state.

And, despite the hue and cry from ethics lawyers, legislators and other parties about how the 2010 overhaul of the Ethics in Government Act was never intended to go this far, by a vote of 4 in favor to 1 against, the Commission voted to expand the lobbying law as follows...and PV excerpts the subject brief issued by Stefan Passantino of McKenna Long on these new interpretations:

"...anyone appearing before a public official to advocate a position on legislation - even if done on a single visit or if done in the context of invited legislative testimony - will be considered to be a “lobbyist” by the State of Georgia regulatory body. This will mean that any business owner or employee acting on behalf of a client will be required to register as a lobbyist before advocating a position on legislation to Georgia public officials such as members of the General Assembly.

"The ramifications of this interpretation of existing law are dramatic and must be heeded immediately. Under Georgia’s newly imposed registration scheme, registration fees for lobbyists have been increased to $300 annually plus $10 for every additional client added plus $20 for each lobbyist badge issued.

More importantly, the penalties imposed for failure to register and file mandated disclosures have increased significantly under the new law with potential penalties of up to $10,000 for each report the “lobbyist” fails to file. With lobby registrations now being due twice per month while the General Assembly is in session, failure to understand and comply with the Georgia Government Transparency and Campaign Finance Commission’s interpretation of existing law can result in crippling penalties and compliance costs.

Thus, commencing immediately, clients with employees who communicate with Georgia legislators need to examine their agents’ conduct and political law compliance protocols. The scope of the State’s interpretation expressly includes, but is not limited to:

* Any formal or casual meetings with members of the General Assembly at the Capitol or other locations in which legislation is discussed;
* Testimony before a House or Senate committee, even if invited, unless that testimony is 'unbiased' and is offered solely 'for the purpose of educating the members of any agency or governmental entity in the consideration of an issue;'
* Participation in 'Capitol Day' events, unless done as an uncompensated member of a trade association and not as an employee of a business; and
* Letters, emails or other correspondence to members of the General Assembly related to legislation."

What I think this means is if you come to see me about something the City is planning to do, and you do anything except try to educate me, i.e. if you say vote against that item or if you send me an email or telephone me advocating for an item--you are considered a lobbyist and must register as such, paying the fees and making the reports required. The fines assessed if you don't are high. As I read the advisory, it doesn't apply to elected officials.

Just a thought--did anyone read the U. S. and Georgia Constitutions. Apparently, some feathers have been rustled, and free speech is out the window.

Chairman Special Election

Your chance to make a difference in Gwinnett County comes on March 15, 2011. We will elect a new Chairman of the Gwinnett County Board of Commissioners.

Absentee voting is underway, and early voting at the Elections Office on Grayson Highway will start next week. Your regular polling place will be open from 7AM to 7PM on March 15, 2011.

While I don't usually endorse a particular candidate, I want to take this opportunity to recommend Charlotte Nash for Chairman. I do this for three major reasons: the job requires a person that can be up to speed on day one after the election, the job needs a person of integrity, and the job needs someone who knows Gwinnett County and Gwinnett County Government. Charlotte is the person for the job.

Join me in supporting and voting for Charlotte Nash on March 15!