What is Eminent Domain?  

In Georgia, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a “public use,” which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners “just compensation” for their property. 

The Supreme Court Decision, Kelo v. New London, Made It Much Easier to Abuse Eminent Domain 

Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of “public use” to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.  

As Justice Sandra Day O’Connor warned in her dissent: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”  

Georgia Responds to KElo

Georgia has gone a tremendous way to protect the freedoms of Georgia’s citizens against eminent domain, earning a B+ in a report by the Institute for Justice. House Bill 1313 (2006) counters the Kelo decision by providing that economic development is not a public use that justifies the use of eminent domain. Just as importantly, the law significantly tightens the definition of blight in Georgia eminent domain laws.

Now property can only be designated blighted if it meets two of six objective factors and “is conducive to ill health, transmission of disease, infant mortality, or crime in the immediate proximity of the property.” The law also requires government officials to evaluate blight on a parcel-by-parcel basis in order for the properties to be subject to condemnation for private development. No longer can entire areas be threatened with the wrecking ball based on the dilapidation of a few properties; now home and business owners can protect themselves by keeping their buildings well-maintained. The new law emphasizes, “Property shall not be deemed blighted because of esthetic conditions,” and the government is given the burden of showing that a piece of property meets the criteria for blight.

House Resolution 1306 (2006) became a constitutional amendment that was approved by nearly 85 percent of the voters. Unfortunately, the constitutional amendment was only a minor procedural requirement that before eminent domain can be used for redevelopment, it must be voted on by elected officials. (In most cases of eminent domain abuse, elected officials vote; the point of constitutional protections is to prevent citizens’ rights from being voted away.) While any constitutional amendments strengthening property rights are good, Georgians would be better off if the strong reforms found in HB 1313 made it into the state constitution.

Is the Government Trying to Take Your Home or Business with Eminent Domain?  

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Is your local, state, or federal government currently attempting to seize your property through eminent domain?

Even if the Institute for Justice cannot take your case, IJ has created the Eminent Domain Abuse Survival Guide to help people fight back. These methods for grassroots activism can be enormously successful. Through community organizing and activism alone, the Institute for Justice has teamed up with local communities to help save nearly 20,000 homes and small businesses from condemnation or being labeled as “blighted” or “in need of redevelopment,” the precursor to eminent domain in many states.

Eminent Domain Facts  

Myths about eminent domain abound. Here are the facts: 

Eminent Domain is Not a “Last Resort” 

Eminent domain is not just abused when people lose their homes in court. It is also abused when a home or business owner sells under the threat of condemnation. The government’s ability to condemn property is so ominous that the mere threat of eminent domain influences all “negotiations.”  

Truly voluntary negotiation is impossible when one party has the power to get what it wants no matter what; if the government can take any property it wants, owners have no real power in negotiation. So when officials say they will use eminent domain only as a last resort, it simply means they will use force to take people’s property against their will if they do not agree on a price. 

Economic Development Does Not Need Eminent Domain 

Projects that use eminent domain often fail to live up to their hype and can end with vacant lots and empty promises. By imposing tremendous costs (both social and economic) in the form of lost communities, uprooted families and destroyed small businesses, eminent domain often thwarts, rather than helps, economic growth. Instead of seizing private property, cities can streamline regulatory barriers, like permitting and zoning laws, and usher in development without eminent domain.  

Eminent Domain Harms Vulnerable Communities  

Communities targeted by eminent domain for private development are much more likely to be communities of color, while residents are much more likely to live at or below the poverty line and have lower levels of income and education than surrounding neighborhoods, according to research by the Institute for Justice. Cities often target these communities for condemnations, as government officials know the residents there rarely have the political clout or the financial means to fight back.