Lawmakers take aim at eminent domain: Atlanta (GA) Journal-Constitution, 12/11/05

Opponents say law requires restrictions

By Christopher Quinn

Mark and Regina Meeks don't relish their roles as poster children for the rights of landowners whose property is being taken by government for private development.

They'd really rather just be left alone.

Store co-owner Mark Meeks helps Gina Gibson at Stockbridge Florist and Gifts, which the city of Stockbridge is trying to force Meeks and his wife, Regina, to sell under the power of eminent domain.

But the city of Stockbridge is invoking the power of eminent domain to force the Meekses to sell their little Stockbridge Florist and Gifts shop to the city, saying the government has a pressing need for their property. Stockbridge wants the Meekses' land and 21 other acres to build a new downtown, including public buildings and privately developed townhomes, offices and shops. And the way Georgia law stands, backed by a U.S. Supreme Court decision, the city may be able to take the land whether the Meekses like it or not.

"If that's the way the law is written in Georgia, then the law absolutely needs to be changed. If what [the city] is doing is legal, then nobody's property is safe," Meeks said.

The Stockbridge case is held up by some legislators as an example of why they should change Georgia law quickly when the General Assembly session starts in January.

Government has traditionally taken land for public projects, like roads and schools. But vaguely written 50-year-old laws meant to hasten urban redevelopment and aid in slum-clearing give government the right to claim citizens' land for economic development — sometimes at the hands of private developers.

Those laws were upheld in June by a U.S. Supreme Court ruling that said governments could take land for economic development, but invited state and local governments to change that by writing more restrictive laws.

That's exactly what Georgia legislators such as state Sen. Jeff Chapman (R-Brunswick) want to do. Chapman believes landowners' rights are being trampled. He heads up the Senate Eminent Domain and Economic Development Study Committee, which is considering changes to the law.

A government should never take a person's property to turn it over to another private interest so that interest can build something bigger, more expensive or to generate jobs, he said.

The laws need to be changed and property protection should be reinforced by constitutional amendment, said Chapman.

"This thing is so important, that you want to double check it, so to speak," he said.

On the other hand, supporters of using eminent domain for redevelopment, such as the Association County Commissioners of Georgia, say the law should be strengthened to protect landowners and give them more ways to appeal, but eminent domain is a necessary part of a government's ability to improve communities.

Savannah redevelopment
Neighborhoods like Cuyler-Brownsville in Savannah are often cited as an example. The city used eminent domain to buy and clear more than 80 run-down homes and lots. Only a few of the condemnations were contested. The city created a public square and sold lots to small developers to build affordable homes. The formerly scary slum has come back to life as a vibrant community.

Martin Fretty, director of Savannah's Housing Department, said protecting individual homeowners' rights must be thought of in terms broader than the person whose property gets condemned.

"When properties are in that condition, [like those had been in Cuyler-Brownsville] whose rights are you protecting?" he asked.

The rights of nearby home-owners are put at risk if they must live in a slum created by absentee or uncaring landlords or landowners who could not improve properties because they inherited them without clear title, he said. Condemning a property clears the title.

Doing away with uses of eminent domain for community improvement or economic development "will end neighborhood revitalization as we know it," Fretty said.

Chapman is unconvinced. He wants to do away with all uses of eminent domain except for traditional public uses like roads.

"This is a night and day issue," he said. "If you leave a crack in this, I can assure you, abuses will occur."

Concern sparked
The Supreme Court decision that drew attention to the issue of using eminent domain to encourage private development arose out of a case involving 15 homes in New London, Conn.

The city condemned the homes scattered along city waterfront property as part of a larger plan to build luxury hotels, offices and upscale condos. Several homeowners challenged the taking.

The justices narrowly upheld the state court decision in Kelo v. New London that said economic development also serves a public purpose, like a new road does, and is constitutional.

The idea that homeowners can be forced out and their land sold or given to someone who will increase the tax base, build nicer buildings or lure new jobs created a whiplash of public resentment.

The Institute for Justice, the libertarian law foundation whose attorneys argued the Kelo case for the homeowners, said that 39 states are considering tightening eminent domain laws.

Larry Morandi, a director with the nonpartisan National Conference of State Legislatures, said there have been challenges to government condemnations for urban redevelopment going back for decades.

"So it's not a new issue. But Kelo got it from the back burner to the front burner of the stove," he said.

Dana Berliner, the Institute for Justice attorney who argued Kelo also testified before the Georgia Eminent Domain Committee in Savannah in September. She said having the laws on the books in Georgia presented a potential danger.

"Before Kelo, we knew that government could take property in deeply troubled, almost uninhabitable areas and transfer it to private developers. Now we know that government can take any property and transfer it to private developers," she said.

Some believe Berliner is overstating the case. The homes in Kelo were in an area surrounded by decaying streets, sewers and contaminated lots, and zoned commercial and industrial, said Tim Dowling, with the Community Rights Council. The council advocates for city and county governments and filed a brief in the Kelo case.

The landowners had property in an area ripe for redevelopment, which is far different from the average suburb.

"The suggestion that every church, house and synagogue is in danger of being condemned for a new Wal-Mart is just not true," he said.

Still, he and other supporters of eminent domain for economic development agree that steps need to be taken to protect landowners.

Safeguards to law
The Association County Commissioners of Georgia has recommended that terms like "blight" and "slum" that appear in the laws be clearly defined, said Jim Grubiak, the association's counsel.

It also is recommending that a property itself be blighted, not just in a blighted area, before it is condemned. The association also wants to delegate only to elected local officials — not appointed boards such as housing authorities — the power to condemn property.

"And we want to beef up the notice and due process procedures in law," Grubiak said, so that property owners have the time and the ability to contest the taking or choose to participate in a redevelopment plan by redeveloping their lot themselves.

"We are hopeful that enough legislators will see that what we are suggesting is reasonable and will fix the problem," he said.

Meanwhile, the Meekses are awaiting the ruling of a Henry County Superior Court judge on their challenge to Stockbridge's effort to take their property.

"I hope [the judge] rules in our favor," Meeks said, "but if not, we hope the Legislature will give us some help."

Meeks said he realizes the publicity brought by their case might save other Georgians from having to go through what they are going though. But his goal has always been more immediate.

"We are not doing some heroic thing. We are fighting for our lives here," he said.

Atlanta Journal-Constitution: www.ajc.com