Governor Perdue Announces Legislation to Protect Private Property Rights

Governor Perdue Announces Legislation to Protect Private Property Rights

Proposes Private Property Protection Amendment to the Georgia Constitution

ATLANTA – 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

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