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CONDEMN from 1A
]public, regardless of whether
the owner wants to sell their
land.
However, according to a
report by the Institute for
Justice —a law firm that
helps citizens fight eminent
domain abuse Georgia
governments abuse that power
less than others.
Scott Bullock, senior attor
ney with the law firm, said the
most common abuse of emi
nent domain is when a gov
ernment condemns privately
owned property and then
gives or sells it to another pri
vate entity.
“In our report we found
that Georgia had very few
instances of eminent domain
abuse,” Bullock said.
“In the past few years
Georgia has been quite
restrained in private-to-private
transfer of■ property,” he said.
“I think it’s a good testament
to the fact that you can have
development and not have
eminent domain abuse.”
In other states, Bullock
said governments will con
demn land to bring in a large
business.
“They would say they do it
because they want more
taxes,” Bullock said. “That’s
not what eminent domain was
designed to be used for.”
And while Forsyth com
missioners have granted that
power to a private company,
Bullock said it’s a different
scenario because Waterscapes
is a utility company.
“That is very much a local
law issue about what consti
tutes sewer facilities, and
whether they are in some
ways considered to be public
utilities,” Bullock said.
“Things that are tied up in
more utility regulations are
very much tied up in what
sort of power local govern
ments have.”
In return for granting
Waterscapes the right to serv
ice the general area on the
east side of Ga. 400 around
the Hampton golf community
and a payment of $3.1 million
to expand a sewer facility in
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Photos/Audra Perry
Ward Duncan stands outside his residence, where a
sewer line easement sought by a private company
would go within 10 feet of his house.
the community, the Forsyth
County government received
capacity at the facility of
500.000 gallons per day that
will be used to service com
munities on the west side of
Ga. 400.
The facility is the first of
its kind in the nation, accord
ing to Charlie Evans, an oper
ator at the Hampton sewer
treatment plant.
“The technology in this
plant is brand new,” Evans
said. “It’s the first of it's kind
in the United States.”
He said the facility is three
or four times smaller than
most sewer treatment plants
and that the technology for it
came from Japan.
At a total of about 6,000
square feet of floor space,
Evans said the sewer treat
ment plant is capable of treat
ing up to 900,000 gallons per
day (gpd).
Owner Ken Curren said
the plant’s current flow is
50,000 gpd and that it has a
land discharge permit of
275,000 gpd.
The first community
Curren said he will serve out
side of the Hampton commu
nity is the Whispering Lake
subdivision, which will have
about 180 homes.
One of the pieces of prop
erty standing between the
Hampton plant and the new
subdivision is owned by
Duncan.
The sewer line is routed to
run about 10 feet from a cor
ner of Duncan’s home.
And though he received an
offer of $11,500 for about
0.368 of an acre on Friday, He
challenges the need for the
sewer line.
“It’s not going to benefit
the public,” Duncan said,
questioning how a subdivision
of 180 homes in a county with
an overloaded residential tax
base is a benefit.
He has hired attorney
Richard Hubert to help him
retain the rights to his proper
ty-
Hubert, who has handled
such cases for the past 44
years, said there are five basic
rights given to property own
ers: the right to hold it,
improve it, sell it, permit oth
ers from coming on it, and
exclude others from coming
on it.
While most of those rights
are retained even after proper
ty is condemned, Hubert said
an important one is lost.
“The idea is that, when
you’ve got an eminent domain
action, [it takes away] the
right to exclude someone
from your property,” he said.
“That’s what an easement is.”
“In this case, apparently
Forsyth County has given one
private citizen the right to
determine what property will
be taken and what property
will not be taken for the use
of the sewer system,” Hubert
said.
“We are unsure whether
Mr. Curren and his
Waterscape company is not
simply renting the state’s high
power of eminent domain for
private property and private
gains,” he said. “We are sure,
without any question, that
people’s property is being
condemned for the purpose of
running a sewer line to a sub
division which enhances the
value for a private developer
while subjecting the condem
nee to a lawsuit for which
there is no reimbursement.”
Hubert went on to say that
if a property owner decides to
challenge a case in court, even
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FORSYTH COUNTY NEWS Sunday, February 1,2004
if he receives the fair market
value for his property, he will
not recoup his court costs
and that those with the power
to condemn frequently use
that excuse as “extortion” to
get a property owner to settle
for less than the fair market
value.
Hubert questioned whether
the county is allowed to dele
gate the power of eminent
domain to one individual.
The agreement which was
signed gives Curren the abili
ty to condemn property by cit
ing Georgia law, which gives
private sewer and water enti
ties that ability, providing the
entity first obtains the consent
of the governing authority
before condemning any prop
erty.
County Water and Sewer
Director Tim Perkins said that
means Curren most likely will
have to appear before the
board before condemning
Duncan’s property and that
because of the agreement, the
board will have to approve it.
Curren said he’s trying to
keep the matter out of the
court system.
“I’m trying to offer them
more money than they could
possibly get through a con
demnation proceeding,”
Curren said.
He is planning to construct
another sewer plant for a sub
division near the Windermere
community.
Conway said if an agree
ment is reached, it will not
include the power of eminent
domain.
“That’s not something we
would do on the new [sewer
facility] he’s talking about
doing,” Conway said.
“I think eminent domain
ought to be used as a last
resort when you can’t come to
an agreement,” he said.
“Obviously the reason you
have eminent domain is
because the common good
has to supersede individual’s
desire.”
“I don’t like to see it be
used,” he said, “but some
times it has to be used.”
Fowler plant
to start running
later this month
The new sewer plant on
Hwy. 9 south on the old
Fowler property is scheduled
to begin treating sewage water
Feb. 23, according to John
Marshall, the water and waste
water plant manager with the
Forsyth County Water and
Sewer Department.
“Right now, we expect its
start-up capacity to be some
where around 150,000 [gal
lons per day],” Marshall said,
adding the facility is capable
of treating up to 2.5 million
gpd, but has a land application
permit to treat 1.25 million
gpd-
The facility will pump the
treated water to the old
Threatt property in south
Forsyth and discharge it there.
Notification key
element of new
power line law
The Georgia House of
Representatives passed new
legislation Thursday that will
require power utility compa
nies to notify property owners
whose land stands in and
around the path of new trans
mission lines.
In addition, the law
increases the time allowed for
property owners to gather
information for court pro
ceedings in eminent domain
cases for transmission lines
230,000 kilovolts or greater
from 10 days to 30-40 days.
Opponents have said more
needs to be done because
there are no provisions for
oversight to guarantee an
electrical project is needed,
substations are not included
in the ordinance, and projects
planned before July 1, 2004,
are grandfathered in and do
not have to meet the require
ments of the new law.
The bill will have to be
signed by Gov. Sonny Perdue
to take effect.
PAGE 3A