CONSTITUTION OF THE STATE OF GEORGIA

ARTICLE IX. COUNTIES AND MUNICIPAL CORPORATIONS

Paragraph V. Eminent domain.

The governing authority of each county and of each municipality may exercise the power of eminent domain for any public purpose subject to any limitations on the exercise of such power as may be provided by general law. Notwithstanding the provisions of any local amendment to the Constitution continued in effect pursuant to Article XI, Section I, Paragraph IV or any existing general law, each exercise of eminent domain by a nonelected housing or development authority shall be first approved by the elected governing authority of the county or municipality within which the property is located.

(Ga. Const. 1983, Art. 9, § 2, Para. 5; Ga. L. 2006, p. 1111, § 2/HR 1306.)

1976 Constitution.

- Art. IX, Sec. V, Para. IV.

Cross references.

- Due process requirements, Ga. Const. 1983, Art. I, Sec. I, Para. I.

Requirement of just compensation for deprivation of property, Ga. Const. 1983, Art. I, Sec. III, Para. I, and § 22-1-5.

Exercise of power of eminent domain for airports, § 6-3-22.

Exercise of power for school purposes, § 20-2-521.

Exercise of power for watershed projects, § 22-3-100.

Exercise of power for road systems, § 32-4-42.

Editor's notes.

- The constitutional amendment (Ga. L. 2006, p. 1111, § 2) which substituted the present provisions for the prior provisions which read: "The governing authority of each county and of each municipality may exercise the power of eminent domain for any public purpose." was approved by a majority of the qualified voters voting at the general election held on November 7, 2006.

Law reviews.

- For article, "Condemning Local Government Condemnation," see 39 Mercer L. Rev. 11 (1987).

JUDICIAL DECISIONS

Extraterritorial exercise of right of eminent domain.

- Where the condemning authority seeks to exercise the power of eminent domain within the territorial limits of another governing body, a restriction has been held to apply. The extraterritorial exercise of the right of eminent domain as an "implied" power is authorized only if it is "reasonably necessary" to a condemnor's successful completion of an undertaking initiated pursuant to its express grant of authority over a subject matter within its jurisdiction. Dougherty County v. Burt, 168 Ga. App. 166, 308 S.E.2d 395 (1983).

County may condemn private property for public purpose of creating recreational park. Williams Bros. Lumber Co. v. Gwinnett County, 258 Ga. 243, 368 S.E.2d 310 (1988).

City has power of eminent domain for drainage and flood control and does not have to institute condemnation proceedings or compensate property owners as a prerequisite to entering land to conduct a preliminary survey. Walker v. City of Warner Robins, 262 Ga. 551, 422 S.E.2d 555 (1992).

Pre-condemnation survey and appraisal.

- In a declaratory judgment action by a city seeking access to property in order to conduct a pre-condemnation survey and appraisal, the necessity for the contemplated taking was not a proper subject of inquiry and the trial court did not err in refusing to consider the issue. Aponte v. City of Columbus, 246 Ga. App. 646, 540 S.E.2d 617 (2000).

County was authorized to exercise its right of eminent domain in connection with the expansion of a detention center because the county had jurisdiction over the maintenance of jails in the county under O.C.G.A. § 36-9-5(a), the operation of a jail constituted a public purpose pursuant to Ga. Const. 1983, Art. IX, Sec. II, Para. V, and the property owner did not identify any general law limiting the right of the county to exercise its power of eminent domain; the condemnation of the owner's property was "reasonably necessary" to maintain the jail system within the county because concerns regarding security, costs, and duplication of effort were cited in support of expanding the facility, and strong evidence was presented that the expansion posed a viable and logical solution. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288, 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Cited in Inman Park Restoration, Inc. v. Urban Mass Transp. Admin., 414 F. Supp. 99 (N.D. Ga. 1975); Earth Mgt., Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981).

OPINIONS OF THE ATTORNEY GENERAL

County or municipal governing authority may establish special service districts under this paragraph; Ga. Const. 1976, Art. IX, Sec. V, Para. III (see Ga. Const. 1983, Art. IX, Sec. II, Para. VI) creates an independent districting mechanism and does not limit constitutional authority of cities and counties. 1980 Op. Att'y Gen. No. U80-45.(see Ga. Const. 1983, Art. IX, Sec. II, Para. V).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 1 et seq., 21 et seq.

ALR.

- Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Zoning regulations limiting use of property near airport as taking of property, 18 A.L.R.4th 542.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

Airport operations or flight of aircraft as constituting taking or damaging of property, 22 A.L.R.4th 863.

Fear of powerline, gas or oil pipeline, or related structure as element of damages in easement condemnation proceeding, 23 A.L.R.4th 631.

Damages resulting from temporary conditions incident to public improvements or repairs as compensable taking, 23 A.L.R.4th 674.

Eminent domain: industrial park or similar development as public use justifying condemnation of private property, 62 A.L.R.4th 1183.