- Meris Lutz The Atlanta Journal-Constitution
A case that could have implications for how the government takes private property is being weighed by the Georgia Supreme Court.
The outcome of the case between Marietta property owner Ray Summerour and the city will determine whether protections laid out in the state’s 2006 Landowner’s Bill of Rights statute are mandatory. The city argues they are not.
“It is an interesting issue, about whether these rules are simply aspirational guidelines that municipalities should follow versus actual rules,” said Timothy Holbrook of Emory Law. “What’s the point of having this Bill of Rights if municipalities are free to ignore it?”
“I think it is important,” he added.
The case is the first time the supreme court will interpret the Landowner’s Bill of Rights law enacted a decade ago in the face of complaints that the eminent domain process in Georgia was unfair.
The bill was designed to protect people when the government wants their property. People like Ray Summerour.
Summerour is the owner of Brenda’s Grocery, the last grocery store in the historic black neighborhood of Baptist Town. The city plans to build a park there, and condemned the property in 2014 after several years of failed negotiations. A spokesperson for Marietta said the city originally offered Summerour $85,000 for the property, which is less than an acre. The final amount was set by a court at $225,000.
The city has a duty to tax payers not to overpay, but is obligated to give “fair compensation” for anything it takes.
Summerour appealed the condemnation and won. The appeals court ruled that Marietta had violated the Landowner’s Bill of Rights, failing to act transparently by not providing Summerour with details of the city’s appraisal of his property.
Marietta is seeking to reverse that decision at the Supreme Court.
This isn’t the first time Summerour’s property has come under threat from a government entity.
Years ago, Summerour and attorney Steve Woodman, who represented him, say a civil forfeiture case was brought against the property by the U.S. Attorney’s Office. The main witness in that case was a Marietta police officer who alleged drugs were being sold outside the store.
Summerour was never charged with a crime, but civil forfeiture allows law enforcement to seize property without a conviction. The U.S. Attorney’s Office dropped the case.
Marietta PD say they have no record of it.
Summerour says between the two cases, he’s spent thousands of dollars on lawyers and his health has suffered due to the stress. A former Marietta firefighter and retired Lockheed employee, Summerour relies on the income from the store.
“Somebody needs to step in and make rules and regulations as far as what they can do,” he said of the city’s eminent domain procedures.
Last month, the Supreme Court heart oral arguments in the case.
The Landowner’s Bill of Rights says that the condemning authority should give the property owner an opportunity to accompany the appraiser during inspection, and provide the owner with “a written statement of, and summary of the basis for,” the offered amount.
The city says it did not violate the statute, but that even if it had, the law fails to identify a remedy, or a punishment for the violator.
“The city believes firmly that the clear language says that it is not mandatory,” attorney Douglas Haynie argued on behalf of Marietta. “Marietta and I believe every governing authority will comply with this, but it still will not convert it to being mandatory.”
Haynie said if the city were to give out full or summary appraisals—as opposed to flat amounts—property owners would be encouraged to compare offers and demand more.
Donald Evans, representing Summerour, said if the city gets its way, “a landowner faced with a sudden interest by a condemning authority in their land is going to have to start spending money.”
“They’re going to have to hire an appraiser, they probably should hire an attorney to understand their rights in the process and to understand the value of their land,” he said.
Robert Walker, an attorney with Jenkins & Bowen, has worked for governments and property owners. He appreciates both sides.
“The argument the city advanced is a legal one,” he said. “There is a line of cases, or a school of thought, in the law that if a statute is silent as to any sort of penalty for violating the statute, then it’s merely suggestive and not necessarily binding.”
However, he said, one could also make the argument that a victory for Marietta “would kind of gut” the Landowner’s Bill of Rights.
James C. Smith, a professor at the University of Georgia School of Law, said in his opinion, the appeals court got it right.
“I believe the legislature was doing more than (giving) local governments a list of ‘best practices’ that they could choose to follow, if they found the steps to be desirable,” he wrote.
The Landowner’s Bill of Rights was signed into law by Gov. Sonny Perdue in 2006 to address what some lawmakers considered a helter-skelter approach to eminent domain policy. It received bipartisan support.
“This legislation and constitutional amendment changes the whole presumption of eminent domain from the power of government to the power of the people,” Perdue said at the time. “It is wrong for your house, your land and your property to be held in jeopardy at the sway of a powerful government.”
Eminent domain is the government’s right to take property for a public good, such as a roadway or a park. Many people, however, view it skeptically as a tool for government overreach.
Back at Brenda’s, it’s Friday—payday for many customers—and there’s a steady stream of foot traffic: a carpet installer and his son; a man who says he’s homeless.
“They look to the store to supply them with a lot of stuff they need to keep from having to go to the nearest grocery store, which is several miles away,” Summerour said. “This is a low-income area. People just don’t have the money to buy cars so they rely on walking a lot.”
Summerour would prefer to keep his shop as it is. He asks why the children who visit the future park can’t buy ice cream from his shop. He is resigned to sell if he must, but he wants the city to follow the rules. At the very least, he wants enough money to set up shop somewhere else.
James Grober, 76, is a lifelong Baptist Town resident. His great-grandfather came from Cumming and settled in Baptist Town following the violent expulsion of black people from Forsythe County in 1912.
Grober said growing up, Baptist Town was a thriving community of black homeowners, churches and businesses. He accused the city of “unethical” condemnation practices.
“They’re taking a community needed business,” Grober said. “They just made moves and tore up the black history of Marietta.”
Holbrook, the Emory Law professor, said communities that are vulnerable politically can end up getting steamrolled in eminent domain cases, but making a racial and social justice argument in court can be very difficult.
“Ultimately, the government has the power of eminent domain,” he said. “As awful as it is, that often is the case.”