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Oct 30, 2017
• Meris Lutz, The Atlanta Journal-Constitution

Georgia Supreme Court: Marietta Violated Landowner’s Bill Of Rights

Local governments seeking to take property through eminent domain must follow a 2006 law known as the Landowner’s Bill of Rights, the Georgia Supreme Court ruled Monday.
The case, City of Marietta v. Summerour, marked the first time the high court has addressed the law since it was passed more than a decade ago.
The ruling constituted a victory for Marietta resident Ray Summerour, who spent years fighting the city’s efforts to condemn his property, Brenda’s Grocery, the last grocery story in the historic black neighborhood of Baptist Town.

Summerour’s legal team argued that the city violated his rights by failing to provide him with a detailed appraisal before moving to condemnation.

Lawyers for the city had argued that the protections laid out in the Landowner’s Bill of Rights were not mandatory. The justices disagreed, and threw out the condemnation order, explaining that the 2006 law was clearly intended to protect property owners at every stage of the condemnation process.

“If [the Landowner’s Bill of Rights] were entirely optional, as the City urges, the protective function of the Act as a whole would be impaired significantly,” the ruling reads.
Following the announcement, Summerour said he felt “great” about the court’s decision.

“It’s been kinda like a long, hard ordeal,” he said. “The main thing is from this point on nobody will have to go through what I went through.”

READ OUR PREVIOUS COVERAGE: Landowner’s Bill of Rights tested at Georgia Supreme Court

Summerour, a former Marietta firefighter and retired Lockheed employee, rents out the space to the shop’s proprieter and lives off the income. He would like to keep the shop with the same tenants, but if the city wants it, it will have to come back to the negotiating table, he said.

The city originally offered Summerour $85,000 for his property, which is less than an acre, to expand a proposed park. Summerour declined to sell — he saw the park as a potential boon to business. The city condemned the property in 2014. The purchase price was set by a court at $225,000.

The government has a duty to tax payers not to overpay, but must provide “just compensation” for any private property it takes, according to the Fifth Amendment of the United States Constitution. 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.

Summerour appealed the condemnation and won. But the appeals court did not rule on whether the Bill of Rights is a set of guidelines or mandatory protections.

Tim Holbrook, a law professor at Emory University, said the city should have paid heed to the motto “be careful what you ask for” when it appealed to the Supreme Court, which clearly affirmed the binding nature of the law.

The Supreme Court “came down harsher on the city than the Georgia Court of Appeals did,” Holbrook wrote in an email.

The city may yet get the property, he added, but it will have to start over and likely pay more money for it.

Attorney Don Evans, who represented Summerour, said he intends to seek legal costs from the city on behalf of his client. He praised the court for sending an unambiguous message to landowners and government alike.

“There are no short cuts if you’re going to take private property from a land owner who does not wish to sell it,” he said.

Marietta City Attorney Douglas Haynie said the city was “disappointed” with the ruling but “will respect it.”

“The city will review the ruling and map out the next steps soon,” he added.

Marietta has already begun construction on Elizabeth Porter Park. The park replaced the Elizabeth Porter Recreation Center, known to locals as The Canteen, and, before that, an African-American hospital for Cobb County residents.
Once completed, it will have a playground, splash pad and statue honoring Elizabeth Porter, a prominent local figure who ran the Canteen for many years.

The nod to Marietta’s black history failed to mollify some residents, who criticized the city for bulldozing The Canteen and trying to use eminent domain to drive out a black property owner — Summerour.

“They just made moves and tore up the black history of Marietta,” James Grober, a lifelong Baptist Town resident, previously told The Atlanta Journal-Constitution.