Eminent domain case involving Georgia railroad could have widespread property law implications

Eminent domain case involving Georgia railroad could have widespread property law implications

A hearing has begun to help determine whether a Georgia railroad can legally condemn property to build a rail line

ByJEFF AMY Associated Press

November 27, 2023, 1:51 AM

Benjamin Tarbutton III, the president of the Sandersville Railroad, testifies on Monday, Nov. 27, 2023, during a Public Service Commission hearing in Atlanta. The railroad is seeking permission to condemn property to build a 4.5-mile railroad line near Sparta, Ga., over opposition from property owners (AP Photo/Jeff Amy)The Associated Press

ATLANTA — A hearing began Monday in an eminent domain battle that involves one of rural Georgia's poorest areas but could have implications for property law across the state and nation.

At stake is determining whether a railroad can legally condemn property to build a rail line 4.5 miles (7.3 kilometers) long that would serve a rock quarry and possibly other industries.

A hearing officer will take up to three days of testimony before making a recommendation to the Georgia Public Service Commission's five elected members, who will ultimately decide.

The line would be built by the Sandersville Railroad, which is owned by an influential Georgia family. It would connect to the CSX railroad at Sparta, allowing products to be shipped widely. Sparta is about 85 miles (135 kilometers) southeast of Atlanta.

People in the rural neighborhood don't want a train track passing through or near their property, in part because they think it would enable expansion at a quarry owned by Heidelberg Materials, a publicly traded German firm.

Some residents already dislike the quarry because it generates noise, dust and truck traffic. Supporters say if the railroad is built, the quarry will move its operation farther from houses, trains will reduce trucks on roads and the railroad will build berms to shield residents.

But owners say losing a 200-foot (60-meter) wide strip of property to the railroad would spoil land they treasure for its peace and quiet, hunting, fishing and family heritage.

“Sandersville Railroad does not care about the destruction of my family’s property or our way of life,” Donald Garret Sr., one of the owners, said in written testimony in August. “They just care about their own plans for my property, which won’t serve the public, but will just help them expand their business and the quarry’s business.”

Opponents have high-powered allies, including the Institute for Justice, which hopes to use the case to chip away at eminent domain, the government power to legally take private land while paying fair compensation.

The libertarian-leaning legal group was on the losing side of a landmark 2005 case allowing the city of New London, Connecticut, to take land from one private owner and transfer it to another private owner in the name of economic development. The decision set off a widespread reaction, including more than 20 states passing laws to restrict eminent domain.

Railroads have long had the power of eminent domain, but Georgia law says such land seizures must be for “public use.” Opponents targeted the project by saying it would only benefit the quarry.

“This is not a taking of necessity from private property owners to serve truly public interests and the public as a whole. Rather, this is a naked wealth transfer,” Daniel Kochan, a law professor at Virginia's George Mason University, testified for opponents.

The Sandersville Railroad says there are other users, including a company co-located with the quarry that blends gravel and asphalt for paving. Several companies have said they would truck products from the Sandersville area and load them onto the short line, noting they want access to CSX, but opponents question whether that business will materialize.

The case matters because private entities need to condemn private land not only to build railroads, but also to build other facilities such as pipelines and electric transmission lines. There’s a particular need to build additional electric transmission lines in Georgia and other states to transmit electricity from new solar and wind generation.

“Railroads in America are private companies operating in the public interest,” Sandersville Railroad President Ben Tarbutton III testified Monday.

He said in earlier testimony that the Institute for Justice is engaged in “transparent efforts to change federal and state constitutional law regarding condemnation.”

Tarbutton is a past chair of the Georgia Chamber of Commerce and University System of Georgia Board of Regents. His family has owned the railroad for more than a century.

Others who live nearby, organized as the No Railroad In Our Community Coalition, are represented by the Southern Poverty Law Center. Janet Paige Smith, a leader of the group, testified that the railroad would further burden a neighborhood with many Black retirees on fixed incomes.

“We already suffer from traffic, air pollution, noise, debris, trash, and more from the Heidelberg Quarry, but this project would make everything worse,” Smith testified.