A Critical Need or a Critical Want?

When is the government justified in taking land from private citizens?

In easy to understand terms, eminent domain is the power possessed by the state over all property within the state. Eminent domain is not the law per se. Eminent domain is based upon English common law which traces its roots back to the Magna Carter in 1215. The practice of condemnation begin in the colonies when unimproved land could be taken without compensation.

When our U.S. Constitution was drafted, James Madison wrote the  Fifth Amendment, which is essentially a Bill of Rights to protect against abuse of government authority in a legal procedure. In the case of eminent domain, it states that private property cannot be taken for public use without just compensation.  

If you are a citizen of Dacula, you are probably well familiar with the city council meeting held Thursday evening, March 3, in which the City of Dacula had a resolution on the agenda which, if adopted, would have begun . The meeting was not as contentious as perhaps I thought it would be. I came away pleased that the resolution failed to pass and that, for the time being, Mr. Hinton's property would not be taken through the power of eminent domain.

After 35 years with Southern Bell/BellSouth and 13 years in public utility construction, not including time served in the U.S. Army, I have learned a thing or two about easements, rights of way and eminent domain. This caused me, in this particular case, to reflect on what constitutes the need to acquire private property for public use.  

What is public use? Public use is most commonly defined as taking land for public safety, health, interest, or convenience. Unless I overlooked something in Mr. Hinton's case, I do not see how any of the aforementioned "for public use" terms would lay down with the acquisition of Mr. Hinton's property.

Could the property be classified as a "critical need?" Translated, would it cause a crisis if the property was not taken? Absolutely not. What is a critical need? A good example would be property needed to realign a road and straighten out a curve where there had been accidents with fatalities. Failure to do so would affect the well being of the public at large and in such a case, the use of eminent domain would be justified. Such a case would also fit the criteria of being in the best interests of the public welfare and meet the basic human needs of the majority of the public at large. How? By allowing for passage through a section of roadway that had previously been dangerous.  

What about public safety? Was the property needed to improve public safety? Absolutely not. Would acquisition of Mr. Hinton's property be in the best interests of the public at large? Was there an outpouring of support from the majority of the citizens of Dacula calling for the park to be built? Not that I could tell. It appears that the decision was based on a . Don't know that I understand this as you have two existing parks ( and ) within walking distance.

As for land use plans, I've got news for you. I am well familiar with land use plans which, unlike the Ten Commandments, are not written in stone. They are subject to revisions. During last Thursday's meeting, I heard the word amphitheater come up. Good idea. Why not build an amphitheater in which, if I understand correctly, is sparsely used. Why spend money on a park in what was once the downtown area of Dacula? The area is in a state of decline. Any improvements, redevelopment, etc. would best be served through our market driven system of free private enterprise.  

In eminent domain there are four types of "takings." One is a "Complete Taking" where all property is appropriated. Two is a "Partial Taking" where a small piece or strip of land, as in Mr. Hinton's case, is needed. Just compensation would be for the strip of land plus any effect the condemnation would have on the remaining property. Three would be a "Temporary Taking" of all of the property for a limited time. An example of this would be a "Construction Easement" beyond the construction limits of a road widening project or public utility placements. The fourth type of taking includes "Easements and Rights of Way" over private land usually for utilities such as high voltage power lines. The owner retains free use of the property for any use which does not interfere with the easement or right of way. 

As Thursday's meeting wound down, there was mentioned of a need to cross Mr. Hinton's land to tear down an old building on the adjacent property. If this be the case, why not a temporary easement from Mr. Hinton for a limited time only, absolution of any liability on Mr. Hinton's part, with the easement to be dissolved after the building was torn down? You certainly don't need to exercise the power of eminent domain for such an easement.

Better still, Mr. Hinton mentioned something about the building having historical value. This being the case, why not see if the building meets the requirements for the Historical Registry? If it does, why not do like the City of Auburn has done with their ramshackle railroad houses which are now occupied by the GPAC and Auburn History Museum?  

As I close, the words Mr. Hinton's attorney, Denise Griffin, spoke keep resonating with me when she said: "I believe it is a sin to take a person's land against their will unless there is a critical need." Counselor, I could not agree with you more. There was no critical need here. Whether there will be a continuation of this issue I do not know. Perhaps the end result will be played out at the ballot box during the next City of Dacula election cycle. That's the way I see it.    

Laura March 11, 2011 at 12:20 PM
Thank you, Jimmy, for a great article! Thank you for letting the people know that there are different degrees/definitions of eminant domain. Many elected officials would like us to believe there is only one kind--as in, if they want it, they get it regardless. Also, thank you for pointing out that history needs to be preserved. Sometimes what someone may perceive as an eyesore is a treasure to someone else....or can become one, rich with history. It is very probable that the citizens of Dacula have not heard the end of this issue as it pertains to Mr. Hinton's property. The mayor was quite clear after he made his decision that this issue could be revisited at any time. If he had cast the final vote against a private citizen's property rights in favor of a frivilous park that seems to not be supported by the citizens, it would have been political suicide. I don't think he wanted to that decision to rest soley on his shoulders. Once the city council has had time to *reload*, will the issue be revisited? I hope not. I would like to believe that Mayor Wilbanks truly did not see that forcing Mr. Hinton to give up his family's property was a "critical need." Fortunately, the citizens of Dacula will be kept informed of upcoming agendas in the Dacula government, thanks to DaculaPatch.com.
Patrick T. Malone March 11, 2011 at 01:19 PM
Very well said my friend.
Jimmy Orr March 11, 2011 at 01:52 PM
Patrick, I appreciate (as always) your kind words.
Jimmy Orr March 11, 2011 at 01:59 PM
Laura, good morning. I appreciate your thoughtful comment. Eminent domain is complicated and yet, it is not complicated. I have found in my walk through life thus far that you don't do things right, you do the right thing. When one does the right thing, doing things right simply falls into place. The City of Dacula did the right thing in not condemning Mr. Hinton's property and yes, you are absolutely correct about Dacula Patch keeping the citizens of Dacula informed. The power of a free press is a powerful tool in our democracy. BTW, I enjoy reading all of your comments you make on Dacula Patch and find myself, when I go online, scrolling through the Patch to see what Laura has commented on.
Diane March 11, 2011 at 03:09 PM
That's the way I see it too. Area is in decline and after Saturday, when Joe Ford auctions his hardware store, it will be worse.
Laura March 11, 2011 at 09:46 PM
Why, thank you, Jimmy....... I think. :-)


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