A Georgia railroad company wants to apply eminent domain to use land that Sparta residents Blaine and Diane Smith have had in their family for more than a century.
The railroad leadership intends to construct a 4.5-mile long rail spur. Across the Smiths’ land, a train will haul as much as 500,000 tons of granite from the nearby Hanson Quarry.
Years ago, Blaine Smith promised his father he would never allow anything like that to happen — ever. The Smiths are putting up a fight, through the legal system. The Georgia Public Service Commission (PSC) held a hearing on the matter late last year, but it wasn’t until this week that hearing officer Thomas K. Bond announced his ruling.
And for the Smiths, the news was bad.
The Sandersville Railroad Company may construct the rail spur across the Smiths’ land. Sandersville Railroad spokeswoman Vivian Lee-Boulton said last year that the spur and the proposed eminent domain would not force anyone out of their home.
But for the Smiths, that’s no comfort, and this week’s outcome is far from the end of the story.
“We’re not happy [with this week’s decision], and we will continue to fight as much as we can,” Blaine Smith said this week.
Smith’s attorneys, who work for the non-profit public interest law firm Institute for Justice (IJ), this week promised an appeal. Due to long-lingering questions about eminent domain, one attorney believes this case could go all the way to the U.S. Supreme Court.
GEORGIA AND EMINENT DOMAIN
Eminent domain gives the government the power to take your property, even if you don’t want to sell. The Fifth Amendment restricts eminent domain in two ways. First, the entity that takes the land must have a public use for it, such as construction of roads or bridges. Second, property owners must receive just compensation.
In 2005, the U.S. Supreme Court’s decision in the Kelo v. New London case expanded the definition of “public use” to include private economic development. The following year, Georgia state legislators passed a new law that countered the Supreme Court’s decision. In the Peach State, economic development is not considered a public use that justifies eminent domain.
Smith has thus far refused Sandersville’s offers of money to use his family land.
Per Georgia law, economic development or increasing the tax base is also not a justifiable reason to take someone’s private property.
IJ argues that a government may legally use eminent domain to build something that benefits the public, such as a highway, but not for something that benefits only a private company.
THE RULING
Per Georgia law, Bond had to determine whether Sandersville’s interest in Smith’s land “serves a public purpose.”
Smith and his attorneys argued that this Hanson Spur would not constitute a public use…but instead constitute a private taking.
On the opposing side, Sandersville Railroad attorneys said “the Hanson Spur will provide channels of trade and will be used for the functioning of Sandersville Railroad, as a public utility and that the principal public use of the Spur is not economic development.”
Sandersville Railroad attorneys prevailed.
Bond ruled that Sandersville’s proposed condemnation “serves a legitimate public purpose and is necessary for the proper accommodation of the business of the company.” He also ruled “that the land use would be for the functioning of a public utility.”
A PUBLIC UTILITY?
Should the rail spur ever operate, only one rock quarry and a few private businesses would benefit, argued IJ attorney Betsy Sanz.
“We said that is not enough to come up with a level of public use. If you want to say that you are a public utility then you have to think along the lines of providing electricity or providing water,” Benz said.
“It is not that railroads cannot be built in Georgia, but to take people’s stuff in order to do it you have to provide more than just service to a rock quarry. The hearing officer did not agree with that.”
Sandersville Railroad Chair Ben Tarbutton III had plenty to say about Bond’s ruling this week, but on the matter of whether the railroad is a public utility he would not comment.
A MATTER OF ACCESS
“Another reason the hearing officer thinks [the rail spur] is a public use is because it provides a new channel of trade,’ Sanz said.
“We argued that channels of trade currently exist, and it’s not like the rock quarry doesn’t have channels of trade. They already do. They just want to ship faster and for less money.”
That means Sandersville could transport those materials by other means such as a fleet of large trucks. The Hanson Quarry lies along Sparta’s Shoals Road.
“It’s not like [the area] is landlocked. It’s not like there is currently no way to get to these businesses or for these businesses to get their product out,” Sanz said.
“It’s not like they are surrounded by a moat or a large body of water. It’s not like they are blocked from access. It’s just that they want to do it for less [cost] to themselves.”
Tarbutton, though, said the rail spur is a better alternative to one or more people driving large trucks on state roads and contributing to the area’s carbon footprint.
“I think as far as a nuisance, would you like to be a resident on Shoals Road and have a large truck traveling in front of your porch 50 feet away or, in most cases, be behind an earthen berm covered with vegetation that’s a quarter of a mile away?” Tarbutton asked.
“There is a huge difference in the level of noise and activity, and, in most cases, folks will not even know that we are back there pulling loads from the quarry.”
One railcar load, Tarbutton said, is four times more efficient than hauling via truck.
“It’s not a debatable argument to say that trucks are better. There are truck limitations on weight,” Tarbutton said.
“I think 84,000 pounds is the limit on truck traffic, and if you get 286,000 pounds on a rail car then that is a huge difference.”
Sandersville officials say the train in question, if it travels across Smith’s property, will make one round trip daily. The train will travel at fewer than 20 mph, between the CSX line and the Hanson Aggregates Quarry during normal business hours.
Hanson will install berms 130 feet wide and 20 feet tall to minimize noise. Tarbutton said last summer that the spur is a quarter of a mile to half a mile away from most homes. But as the spur advances closer to the quarry, it will move closer to certain houses, he added.
Tarbutton said the spur would get within about 500 feet of three homes. At 200 feet the train would create roughly 70 decibels. According to the DecibelPro app, that’s as loud as a washing machine, a dishwasher or the inside of an automobile driving at 60 mph.
Once rail service is established, Hanson will expand that quarry and move its operations into the back of these berms, further away from homes. The affected property owners will have a gate crossing that allows them to access the back portions of their properties, Tarbutton said.
ECONOMIC DEVELOPMENT
Sandersville Railroad officials said the spur will supply badly needed jobs and money. To put it plainly, the city of Sparta’s economy needs all the help it can get.
Sparta is in Hancock County. The 2010 Census showed the county had 9,429 residents. A decade later, that number had dropped to 8,387. Hancock, according to the 2020 Census, has a near 30% poverty rate.
“The topic of economic development is where the [PSC] hearing officer neglected to engage with what that means,” Sanz said.
“For all intents and purposes, it is an economic development project for a few lucky businesses. The Georgia legislature said that economic development is not a public use. The hearing officer did not engage with that issue, and he should have. That will be a topic of appeal.”
THE APPEAL
The case next goes to the Superior Court of Georgia and then, potentially, up through the state’s appellate courts.
“There is a tension between the fact that the statute continues to provide that railroads can be included in a public utility and allows [for the] taking of private property for utilities, but it is also true that for the last 20 years economic development is not a legitimate public use,” Sanz said.
“There has to be some reconciliation of those two things, and that is what this decision does not do.”
The Georgia Supreme Court, Sanz went on to say, has not had an opportunity to speak much about the significance of Georgia’s 2006 amendments and how they affect this situation.
“Presumably they will at some point,” Sanz said.
“Because there are also federal Fifth Amendment questions involved here, the ultimate decider could be the U.S. Supreme Court, but we’ll see.”
NEGOTIATIONS?
On Wednesday, Tarbutton said this:
“It is unfortunate that outside organizations have gotten involved.”
Sandersville officials, after this week’s ruling, published a written statement that encouraged the property owners to return to the negotiation table.
Blaine Smith, however, does not seem encouraged.
“We will not be happy to talk to the railroad,” Smith said.
