Could Kelo happen here? Featured

11:22am EDT October 10, 2005

The U. S. Supreme Court’s recent decision in Kelo v. City of New London has stirred a great deal of public outrage.

In that case, the court upheld a Connecticut city’s right to condemn land owned by private citizens to transfer it to other private citizens in accordance with an integrated plan for economic development.

The question has been raised whether Georgia property is at risk of similar plans. Although reasonable lawyers could argue either side of the issue, the history of eminent domain in Georgia strongly suggests that its use for similar purposes would be unconstitutional.

Understanding Kelo
The Kelo decision did not give Georgia governmental bodies the right to condemn. It simply decided that the fifth amendment of the federal constitution, which states “ ... nor shall private property be taken for public use, without just compensation,” does not prevent the sort of plan involved in Kelo.

It would prevent a state from simply condemning one person’s property to give it to another person, and it would prevent a state from condemning property for an apparently public purpose if the state actually intended simply to benefit a particular person.

The majority upheld the plan in Kelo, however, because the concept of a public use in the federal constitution was broad enough to include economic development and because the task of determining what the public needs should be left to elected legislators.

The court specifically contemplated that state law could limit the power of eminent domain further than federal law. Therefore, whether Kelo could happen in Georgia depends on Georgia’s law.

Georgia’s law
Georgia’s constitutions began addressing the subject in the Civil War era. The 1861 constitution prohibited the taking of private property “except for public use,” and it specified only one exception — allowing a landlocked property owner the right to condemn a driveway across an adjoining neighbor’s property.

With slight changes, later constitutions through 1945 carried forth the same law.

Meanwhile, governments increasingly delegated their power to operate rail lines, generate and distribute electricity, etc., to regulated corporations, and with it the power to take property needed for such purposes. In these cases, however, the purpose was to do something that was in the government’s power, not to benefit private companies.

In 1946, the state enacted a redevelopment law intended to clear slum areas and sell them to private individuals, but in 1953, the Georgia Supreme Court struck down the law. Unlike the Kelo court, it rejected the argument that the law was valid because the public would benefit, reasoning that such an argument undercuts the right to own property.

Later that year, voters passed a constitutional amendment that authorized the use of eminent domain for slum clearance and redevelopment, and the Georgia Supreme Court later grudgingly upheld the constitutionality of eminent domain for such purposes.

Nothing in the constitutional amendment authorized eminent domain for economic development generally, and the various statutes passed pursuant to the 1953 amendment have all concerned the clearance of blighted areas.

It is possible to argue that a 1976 constitutional amendment, which called general economic development a public purpose, had the effect of allowing the use of eminent domain for such purposes. But the 1976 amendment only goes so far as to allow the creation of development authorities to promote economic development. Unlike the 1953 amendment, it does not give government the power of eminent domain to accomplish economic development.

Consistent with this understanding, the legislation creating development authorities does not give them the power of eminent domain. By contrast, legislation governing redevelopment authorities continues to give them the power of eminent domain for slum clearance and rehabilitation purposes.

Therefore, until the voters approve a constitutional amendment allowing eminent domain for purposes of economic development, Kelo will probably not come to Georgia.

Charles M. Cork III is a partner in the Macon office of Gambrell & Stolz LLP, where his practice covers general civil litigation and appellate practice. Reach Cork at ccork@gambrell.com.