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Recent Takings Legislation in Georgia
During the 2005-2006 General Assembly, the below bills were introduced that would have negatively impacted state and local land use regulations in Georgia through expanding the definition of inverse condemnation. Summaries and/or positions on these bills are from the Association County Commissioners of Georgia with other commentary and positions are highlighted.
HR 1054 Inverse Condemnation (Rep. Burke Day, R-163)
This resolution proposed an amendment to the state constitution that would have authorized the General Assembly to provide for the payment of just and adequate compensation with respect to inverse condemnation of private property. It would have authorized the legislature to define what constitutes a taking by inverse condemnation and specifically provided that inverse condemnation may result from any interference with or disturbance of property rights, or regulatory actions which impair the use of property or deny in whole or in part economically beneficial or productive uses.
Status: Left pending in House Judiciary Committee
SB 30 Inverse Condemnation: Special Master Proceedings (Sen. Chip Pearson, R-51)
This bill was likely the most dangerous legislation affecting local and state governments introduced in recent years. It would have amended existing law which authorizes special master proceedings for the determination of value when private land is condemned by a state or local government agency for public use. SB 30 expanded that process so that it would apply to actions for inverse condemnation when brought by a private landowner. Under current law, inverse condemnations can occur where government action has, in effect, deprived the landowner of the use of his property without actually taking ownership of the property. An example would be where a county sewer line backs up in a building and the owner’s business is effectively shut down. When that happens, the owner can sue the county for lost profits. While the special master process may be an appropriate means for resolving questions of value--for example lost profits--it is not appropriate for the determination of whether or not an inverse condemnation has occurred. Moreover, there is deep concern that SB 30 would have expanded the basis for inverse condemnation actions to cover lost value due to regulatory actions of a state or local government such as zoning decisions, enforcement of tree protection ordinances or stream buffer protection ordinances. In other words, counties that wanted to zone property for a use that would produce less profit for a landowner compared to what the landowner wanted to use it for could be subject to inverse condemnation lawsuits by landowners seeking compensation for the potential lost value.
Status: Favorably reported by Senate Judiciary Committee; left pending in Senate
Special Master – The main threshold that has to be crossed in an inverse condemnation case is whether or not and actual taking of property has occurred. Traditionally, this has been decided by the courts at both the state and federal level. A special master provides too much room for the abuse of the system.
SR 1040 Inverse Condemnation (Sen. Chip Pearson, R-51)
Senate Resolution 1040 called for a constitutional amendment that would have authorized the General Assembly to provide by general law for additional methods for the payment of just and adequate compensation with respect to the taking of private property which results from “unreasonably burdensome” governmental actions. This amendment would have likely have lead to enabling legislation in 2007 that would expand the concept of inverse condemnation to include “regulatory takings” and require state and local governments to compensate property owners when they are prevented from using their land to maximize profits in any way the see fit.
Status: Passed Senate Judiciary Committee; left pending in Senate Rules Committee
Association County Commissioners of Georgia (PDF)
Georgians for Preservation Action (PDF)
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