Georgia Legislature Weakens Eminent Domain Protections

Governments in Georgia will be allowed to seize property for "economic development" purposes, undoing reforms passed in 2006 after the Kelo ruling.


Subhash Sharma/Polaris/Newscom

Lawmakers in Georgia voted Thursday to weaken the state's protections against eminent domain, partially undoing reforms passed in the wake of the Kelo ruling and once again allowing governments in the state to seize private property for economic development purposes.

The bill cleared both the state House and state Senate on Thursday, the final day of the legislative session in Georgia. Gov. Nathan Deal has not indicated whether he will sign it.

The Atlanta Journal-Constitution reports that the bill had "powerful backers" who helped speed it through the state legislature, including local governments who want to use eminent domain to tackle supposedly "blighted" properties and the private developers who stand to gain from making it easier for those governments to do so.

"It's good for government, but it's bad for citizens in my judgment. End of story," Charles Ruffin, an Atlanta-based attorney with experience in property law, told the Journal-Constitution.

In the 2005 Kelo v. New London case, the Supreme Court said the seizure of private property counted as a legitimate "public purpose" under the Fifth Amendment if the seizure was part of a redevelopment scheme intended to benefit the community and increase the tax base. In the wake of that ruling, many states approved limitations on how eminent domain could be used. Georgia's reforms were some of the best in the country. Passed in 2006, the law tightened the definition of "blight"—importantly, it said property could not be deemed "blighted" for purely aesthetic reasons—and prevented the state from taking property for economic development reasons. Georgia voters later approved an amendment to the state constitution requiring a public vote by elected officials before eminent domain could be used.

The bill passed Thursday would reverse the prohibition on seizing property for economic development purposes and would shorten the amount of time a government must hold the property before selling it to private developers. If the bill gets a signature from Deal, governments in Georgia would have to hold seized property for only five years instead of 20 years, as is currently required.

That length of time serves as a deterrent to keep governments from trying to "flip" property to private developers using eminent domain, said Benita Dodd, vice president of the Georgia Public Policy Foundation, a free market think tank. It's meant to stop governments from seizing private land for a supposedly "public use" like a road or pipeline project, only to turn around a few years later and sell the land to private developers.

"We can only hope that he would side with property owners and not with the governments," Dodd told Reason.

Eminent domain remains a hot-button issue in Georgia, more than a decade after the post-Kelo reforms were enacted. A proposed pipeline through the eastern part of the state has been held up because eminent domain requests have been blocked by a state judge. Meanwhile, the Institute for Justice is involved in a case in Elberton, Georgia, where local officials are trying to use eminent domain to bulldoze an office building so a hotel can expand.