Senator Rejects Claim Bill Puts Property Rights In Jeopardy: Savannah (GA) Business Report and Journal, 2/7/05

By Ted Carter

A [Georgia] Senate bill its author says is designed to give local governments a way to pay for infrastructure projects has brought charges the measure gives private companies a way to seize private property.

Republican state Sen. Dan Moody of Alpharetta insists his legislation, Senate Bill 5, makes no changes in current eminent domain law. It does, however, provide a "fresh approach" to expanding water, transportation and other public systems "without a massive government spending spree," he said.

Senate Bill 5's backers include Senate Leader Bill Stephens of Canton and Senate President Pro Tem Eric Johnson of Savannah. Moody and the bill's supporters say it simply lets companies pay the costs of infrastructure projects that local governments could not otherwise afford. It also provides an opportunity to streamline the projects and to approach them in a comprehensive fashion instead of piecemeal, they say.

The companies would recoup their investments and make a profit through charging fees and granting leases at rates agreed to by the sponsoring local governments, Moody said. Communities "can do this rather than borrowing or selling bonds to build the projects," he said, and noted the sponsoring local government would gain ownership of the project after a specified time.

"It's all accelerating new public infrastructure," he said. "My district is growing by leaps and bounds and needs more infrastructure."

Moody's bill does give the local government engaged in the public-private agreement the option of issuing bonds for the projects. It also gives a local government the option of making loans or grants to the company taking on the infrastructure project. But the local government maintains the right to keep a lien on the property and the improvements made to the property, according to the bill.

The lone reason the bill mentions eminent domain is to note that local governments have the authority to take land for public infrastructure projects, Moody said. Removing the eminent domain language would not alter either the intent or effectiveness of the bill, he added.

"It's just 100 percent wrong," to claim the legislation would subject property owners to having their land taken by private enterprise, Moody said.

He said the protests over Senate Bill 5 have overshadowed companion legislation, Senate Bill 86, that would specifically forbid local governments from using eminent domain powers for economic development projects.

The Associated Press recently reported that the public-private agreements would allow companies to build other projects on condemned land as long as the projects did not conflict with projects built under the agreement. That's not the intent, Moody said.

"You can't arbitrarily do something on the property that is designed for the public purpose," he said.

However, the legislation does state "nothing shall prohibit an operator of a qualifying project from providing additional services for or from the qualifying project to public or private entities other than the responsible public entity so long as the provision of additional service does not impair the operator's ability to meet its commitments to the responsible public entity pursuant to the public-private agreement as determined by the responsible public entity."

Moody noted he's willing to alter any language in the bill to reflect intended restrictions on private enterprise. "It's not my intent at all to allow the operator to do something on the land other than what the project specifies."

The Republican lawmaker declined to predict passage of the bill but speculated its chances will improve once it is understood the bill is not a mechanism for handing eminent domain powers to private enterprise. Newspaper editorial writers and radio talk show hosts such as Libertarian commentator Neal Boortz, who calls the measure "a blatant assault on private property rights", have fed some of that perception that property rights would be at risk.

Moody said he's been working on the legislation for two years and will keep pushing for its passage. "I'm a very patient individual I'm not going to let Neal Boortz sidetrack me," he said.

To read a copy of the bill online: www.legis.state.ga.us/legis/2005_06/fulltext/sb5.htm

The Business Report & Journal: www.savannahbusiness.com