Eminent Domain Protection’s No Done Deal


By Jason Pye 

This month marks the second anniversary of the infamous Kelo v. New London decision, a case where the U.S. Supreme Court ruled that the taking of private property (the practice known as eminent domain) from an individual or a group of individuals and giving it to a private entity on the basis of economic development is a legitimate function of government.  

The outrage against the high court’s Kelo decision was the impetus for legislative efforts across the country. Many of these bills lacked any real substance, however, and did very little to protect property rights. The most effective legislation was passed in Florida, where a new constitutional amendment forbids the taking of private property even to eliminate blight. The Castle Coalition, the property rights arm of the Institute for Justice, described Florida’s law the “model for state legislatures.” 

Georgia has not been without its own eminent domain controversy. The city of Stockbridge attempted to take the property of Mark and Regina Meeks, who own a florist shop located inside an overlay district. City government, through an Atlanta Regional Commission Livable Centers Initiative, decided that it knew better than the Meeks how to use their property and proceeded to condemn it.  

Elected officials, political parties and local activist groups lined up to take shots at the Stockbridge City Council, and rightfully so. One city council member loudly proclaimed, “This is not a Kelo!” Property rights prevailed when a Henry County Superior Court judge sided with the Meeks and the Georgia Court of Appeals upheld the lower court’s decision.  

Responding to the outcry in the state and nation over Kelo and the Meeks’ property, Georgia’s General Assembly also passed a solid piece of legislation concerning the use of eminent domain and reasonably defined blight by requiring that property meet at least two among a list of conditions before it may be condemned.  

Timothy Sandefur, an attorney who specializes in eminent domain issues at the Pacific Legal Foundation, has referred to the statutory law in Georgia as being one of the strongest in the country. 

The new constitutional amendment that accompanied the statutory law, however, is a bird of another feather. The amendment does not directly deal with the issue of blight, nor does it define the term “public use.” The amendment reads, “The power of eminent domain shall not be used for redevelopment purposes by any entity, except for public use, as defined by general law.”  

Essentially, the amendment defers to the state Legislature to define public use, blight and who can take private property. It offers smoke and mirrors instead of a constitutional protection. 

Institute for Justice senior attorney Dana Berliner, who testified before state legislators  on the issue, warned that the “point of constitutional protection is not to leave fundamental rights in the hands of legislators.” 

“Now, planners and developers will unleash their lobbyists for years to come to press the Legislature to change the legal definition of public use,” she predicted. “Georgians still need real constitutional reform so that they can have permanent protection against eminent domain abuse.”  

Georgia’s eminent domain law was hard-won and well-deserved, a team victory for property rights groups, individuals and elected officials. But it remains just one step on the road: Unless and until state legislators revisit the issue and close the constitutional loophole, the most basic right of Georgia’s citizens will not be secure.  

Our Founding Fathers, who were clearly believers in individual liberty and their founding principles of “life, liberty, and property,” are likely rolling in their collective graves (pun intended).  The idea that that right to own property is not considered to be a fundamental right would be beyond them – as it should be for any liberty-minded American.

Jason Pye, a former chairman of the Libertarian Party of Georgia who frequently writes about state and national politics on his blog, www.JasonPye.com, wrote this for the Georgia Public Policy Foundation. The Foundation is an independent think tank that proposes practical, market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the views of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (June 29, 2007). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.

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