Subject: Eminent Domain (Latham).
Date: Wed, 22 Dec 1999 082923 -0600 (CST)
From: "Roy L. Beavers"
To: emfguru
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........Many thanks to Linda for the following valuable item.....
It deserves WIDE circulation!!!......
Let me mention what I have learned about eminent domain:
-- In most states, the laws governing the use of eminent domain are
more than fifty years old!!! Moreover, they were written back in the
days when the "power companies" and other concerned utilities --
because of an unchallenged 'industry' lobbying presence in the state
capitals -- were extremely influential in the state legislatures. (The
same old story: the "people" were not represented -- should have been,
by the legislators, themselves, of course, but you know how that goes....)
-- The concept of "eminent domain" comes to us from *old* English law --
when the King was allowed to "seize" the lands of his Barons upon most
any excuse. The Barons were powerless to do anything about it, so a
very ONE-SIDED 'code' of "common law" became a part of English law ... and
eventually was passed on to the Americas.... We live with the essentials
of that original 'code' to this day!!
-- The essence of the code (derived from its roots in the English law
of Barony) is that the King (or the state) has the right to seize property
(not only land) when it is "needed" by the state for a "legitimate"
purpose.... Obviously, the questions of "need" and legitimacy of purpose
deserve to be examined much more than they are in MOST cases.... In far
too many case, they are not examined at all!!
-- One strange "twist" in the development of the code of eminent domain
occurs when you look at *HOW* the power of eminent domain gets transferred
from the state to the utility companies!!! That is the key part that
varies a great deal from state to state -- because of the different ways
in which "common law" or state statutes have dealt with that aspect....
In most cases -- if you look into it in your state (probably should be
done by a lawyer) -- I predict that you will find that the state simply
OPTED OUT of the whole process ... and gave 'carte blanch' control over
that process to the utilities.....!!!
That was the result of the 19920s-1930s "utility dominance" period of
history when most of this law was created..... The utility lobbies were
powerful and, generally, unchallenged. (That was also before the creation
of public utility commissions that are supposed to "oversee" the
activities of corporate monopolies. Doesn't matter much -- these
so-called "public" or "corporation" utility commissions have turned out to
be very "friendly" to the companies they are supposed to be regulating!!
In some cases, the state law that created the commissions also established
the rules for the use of eminent domain -- again, under that heavily
industry-favored lobbying environment.)
However you cut it, the bottom line is that ... the public got screwed
again!!!
Clearly, one of the worst aspects of 'eminent domain' as it is being
practiced in the U.S. today ... is that it has become another one of
those "legal" 'tools' for the powerful (private industry) to use to
exploit the less powerful -- you!!! In its original concept it was not
intended to serve "private interests" -- it was intended to serve PUBLIC
interest....
Of course, the utility ALWAYS claims that it is acting in the public
interest. But that claim -- if it is questioned at all -- never gets
very serious scrutiny.... The STATE has opted out ... and YOU, the
property owner, are holding the bag!!!!
Cheerio....
Roy Beavers (EMFguru)
roy@emfguru.com
.....It is better to light a single candle than to curse the darkness.....
NEW!!! Website
...................People are more important than profits.................
DO YOU KNOW OF OTHERS WHO SHOULD BE ON THIS LIST???
---------- Forwarded message ----------
Date: Wed, 22 Dec 1999 08:36:44 -0500
From: Linda Statham
To: Roy Beavers
Subject: Fw: Eminent Domain
----- Original Message -----
From: Linda Statham
Sent: Wednesday, December 22, 1999 8:33 AM
Subject: Eminent Domain
To the Supporters of the Little River Valley Association:
If you have concerns about the law of Eminent Domain, you will be interested in reading the letter below.
21 December 1999
Dear CCAPP Members,
On the evening of Dec. 21 1999, Georgia State Representative
Garland Pinholster was good enough to spend his evening listening to and
discussing our concerns regarding the power transmission line and the
McGrau-Ford substation. Although he could obviously not make any
commitments to us, he did say that he thought our situation merited review
in the Georgia State Houses. He said he would discuss review of Georgia's
law of Eminent Domain with members of the Judiciary Committee to determine
if there was any level of support for change. We have enclosed a copy of
the thoughts we prepared for Representative Pinholster and Senator Stephens
for your information.
The Georgia legislative session begins in the second week of
January and lasts for forty working days. If we are to be successful in
advancing any of these ideas, our Georgia congressional delegation needs to
hear from us. Please take time to write or call your Representative or
Senator and let them know if this is important to you. Please share this
information with your friends and neighbors.
Sincerely,
Larry Shaffett
President, CCAPP, Inc.
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Cherokee Citizens Against Power Poles
CCAPP, Inc. - 10 Twin Ridges
Ball Ground, GA 30107
21 December 1999
The Honorable Representative Garland Pinholster
The Honorable Senator Bill Stephens,
Dear Representative Pinholster and Senator Stephens,
The law of Eminent Domain in Georgia is longstanding. It was
extended to the electrical utility industry during the Roosevelt presidency
for the purpose of bringing much needed electrical power to rural Georgia.
It is now being misused by the electrical industry for commercial gain.
Regulatory changes are in order for the good of the citizens of Georgia.
There is no argument that Eminent Domain is still a just and needed
legal tool; as good for the whole must outweigh the good for the
individual. There is no argument that public utilities should have this
right. What is at issue is the degree to which the public utility should
be able to exercise this right and for what purpose.
This year, Georgia Power is constructing a high voltage power line
through the Clayton Community and building a new one-hundred sixty acre
power substation in Ball Ground, on what is today a wildlife preserve.
Georgia Power is building this through rural country homes that are habitat
for the citizenry, federally protected endangered species, and culturally
significant lands. Georgia Power is doing this not to bring electricity to
rural Georgia, but rather to build part of a nationwide power grid so it
can buy inexpensive power in the Midwest and sell it to power starved
Florida. It is not right that the public utility companies should be able
to use an outdated law to take private property purely for their own gain.
This is why the Georgia State Legislature needs to take action in its
calendar year 2000 session to amend the state law of Eminent Domain as it
relates to public utilities.
There is a constitutional question to be answered. The power line
Georgia Power is forcing through the Clayton Community is a vehicle of
interstate commerce. Regulation of interstate commerce is a right which
the Federal Government has reserved to itself. By using Georgia's state
law to force its will, Georgia Power may well be violating federally
protected constitutional rights.
Georgia Power not only exceeds its right but abuses it. We can
document many instances of Georgia Power's representatives misleading and
intimidating property owners. We would request public hearing on the
tactics Georgia Power uses to obtain the property is seeks from our
neighbors.
As stated earlier, we are not so unrealistic as to request the
Georgia State Legislature to eliminate Eminent Domain. We know that will
not happen. We do however, believe that a regulation of powers is in order
and would suggest some combination of the following ideas to properly
balance power between public utilities and property owners:
1 - Property should not be taken by Eminent Domain for the purpose
of interstate commerce. If property is needed "for profit," it should be
taken by free market negotiations. Other states have included this in
their law of Eminent Domain, i.e., Mississippi.
2 - If Georgia allows Eminent Domain by utility companies for interstate
commerce, it should require royalty payments instead of a one time price.
In our case, Georgia Power is taking property today that it does not even
plan to use until 2005. It will condemn our property at 1999 rates, use it
in 2005 and forever thereafter, by paying the 1999 fair market value as
Georgia Power appraises it.
If they must take our property for purely profit reasons, the
landholder should benefit from the taking as long as Georgia Power does.
3 - The law regarding consequential damages is badly flawed. As it is
currently written, landholders who have property taken are entitled to
"fair market value" of land taken and damages to the parcel remaining.
Landowners immediately adjacent to new power lines have no claim. It is
inconceivable that land up to the easement or property line can be damaged
by the aesthetics, pollution and health risks of a power line, however,
land immediately adjoining a new power line can have no claim. This allows
the power companies to run along property lines and degrade parcels on both
sides but only have the obligation to deal with one property owner.
4 - Our Georgia laws regarding the environment and public disclosure also
need to be re-evaluated as they relate to the public utilities. Today, if
Cherokee County wants to build a road, they are required to do
environmental impact studies and make public their plans. The utility
companies have far less required of them. There are no open access laws
that require Georgia Power to disclose plans to the public or an equal
requirement to protect the environment, even though it has been given the
same right to take property.
5 - The Public Service Commission could be empowered to provide neutral
third party intervention. An impartial third party investigator could be
empowered to decide such issues as; 1) are environmental studies necessary,
2) are the power lines needed for local power consumption, or 3) are there
existing rights-of-ways or alternative paths that could be used.
6 - Also to be considered is an issue we locally describe as "malignancy."
It appears that when a utility company takes a right-of-way, adjacent
property becomes expendable and can be taken for less than its real value
because the property value has already been degraded by the original line.
This should be prevented by some automatic escalation of adjoining property
if it is latter taken.
7 - Alternative power sources for industrial facilities/complexes should be
encouraged. If a new industrial park is proposed, a small gas fired
electrical power generating facility should be included. This would reduce
the need for power transmission lines and allow that facility to resell
power to the public utilities in less than peek need periods.
8 - Citizen's personal residences should be awarded some degree of
sanctity. Where it is necessary to put a high voltage power line within
three-hundred yards of an principal residence, the homeowner's should have
the option of selling the entire property at fair market value to the
utility company. By so doing; citizens would not be forced to be exposed
to the negative effects of living under a power line unless they chose to
do so.
There needs to be a leveling of the field. Today, Georgia Power
has virtually unlimited financing as it operates a monopoly with government
sanction. It can do whatever it wills on a cost plus basis while property
owners are on their own. If Georgia Power elects to take my property,
their expense for my property, their attorneys, their lobbyist, their
public relations campaigns, their underhanded property acquisition
flunkies, everything they do is passed onto the consumer by consent of the
Public Utilities Commission. The property owner, on the other hand, cannot
even get recovery of the legal expense required to defend their land.
We know this will be a difficult battle. Georgia Power will have a
dozen full time lobbyist for every hour the affected citizens can expend.
We believe, however, that the weight of right has some strength. We would
ask your consideration to hold senate and house hearings this year to
reduce the electrical industry's hold on Georgia property owners.
Sincerely,
Lawrence E. Shaffett
President, CCAPP, Inc.
Diane Shaffett
David Anderson
Vice-President, CCAPP, Inc.
Leslie Anderson
cc: Members of the Georgia Public Service Commission
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Reprinted with permission of Roy Beavers, http://www.emfguru.com