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Opinion: Eminent domain should be a last resort. Does Gainesville have a compelling reason to use it here?
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The Gainesville City Council will consider eminent domain to acquire the former Peppers Market at 628 EE Butler Parkway. - photo by Scott Rogers

Travelers on E.E. Butler Parkway east of Jesse Jewell Parkway in Gainesville are unlikely to have any problem recognizing Pepper’s Market.

Having a pair of buildings painted bright pink is a pretty sure way to garner attention, especially when they are surrounded by much more traditional facades.

Rick Gailey, through SSB Properties LLC of Clermont, has owned the 0.3 acres and the two buildings on it for the past 20 years. Gailey says that his relationship with the Gainesville city government over that period of time has not always been a smooth one, and admits that the very non-traditional paint job came about after a dispute over the city’s efforts at code enforcement.

The small property’s two structures have housed a number of different businesses through the years. Though now vacant, Gailey says he has recently signed a lease with a new tenant and renovations are planned. 

Work on one of the buildings obviously was started, though the city says it was done without proper permitting. Whether those renovations will ever be completed remains to be seen. The city has decided it wants the land, and on May 19 will discuss whether to use the process of eminent domain to take it.

The Times editorial board

Staff members

  • Norman Baggs, general manager
  • Shannon Casas, editor in chief

Community members

  • Cheryl Brown
  • David George
  • Brent Hoffman
  • J.C. Smith
  • Tom Vivelo
  • Mandy Harris

Gailey said he has offered to sell the site near the city’s main downtown intersection for $1.2 million. The city, he said, offered him less than a fourth of that amount, some $270,000.

There is a much bigger issue here than the value of the property, or whether the pink paint job is aesthetically appealing. By invoking the eminent domain process, the city has decided to use one of the most powerful weapons in any government’s arsenal, the ability to take land away from private property owners.

There are times when the condemnation of private property for the public’s benefit makes sense and is unavoidable. For example, if a sewer plant needs to be in a certain spot and the property owner refuses to sell for a reasonable price, or there is a need to acquire property adjacent to a landfill for expansion and it can’t be done via purchase, then exercising the power of eminent domain is a viable last resort.

But it should always be a last resort.

There are few rights more precious in this country of many freedoms than that of property ownership. The right to acquire and own a piece of land, with which you can do what you please within the boundaries of government regulation, is a foundation block of our American economic system. No governmental entity should ever contemplate the taking of such property against the wish of the owner without long contemplation and serious debate.

According to a handbook prepared for the use of city mayors and councilmembers by the Georgia Municipal Association, eminent domain can be used by a city if a project satisfies three basic requirements: there must be a public purpose; the property owner must receive “just and adequate compensation”; and the city must comply with statutory notice and meeting requirements.

The first of those requirements is of concern in the Peppers Market condemnation. To this point, the city has been overly vague in describing the purpose for taking the property. For many years the Peppers Market site was adjacent to the Green Hunter Homes public housing complex, which in 2018 was replaced with Walton Summit, a more upscale, mixed-income housing development.

In discussing plans for the Peppers Market property, city officials have suggested that it might also be used for some sort of housing initiative, without providing any detail or assurances of what such an effort might include.

So is a government justified in taking property away from private ownership based on the vaguest of notions of how it might one day be used?

As to what constitutes “just and adequate compensation,” that, too, is a question more complex than it might seem at first. The city proposes paying Gailey the appraisal price for the property; but in other recent high profile real estate transactions the city has not made purchasing  decisions based on appraisal values. If the owner of the property believes it is worth more than the appraisal, should he be forced to sell at a lower price?

If the council votes to move forward on May 19, then the city would file a suit for condemnation under the right of eminent domain, and the process for doing so would continue in the courts. Gailey has already said he plans to fight the issue through the courts if it proceeds, and if that happens the proposed condemnation could drag on for months or years, with the property in a state of limbo for the duration.

Prior to any vote on the proposal, members of the Gainesville City Council should ask themselves if the potential “public good” in this case is well defined and important enough to outweigh the right of private property ownership. It should not be a decision made lightly.

We believe that the sanctity of private property ownership should only be usurped by the government on the rarest of occasions and only when the need to do so is incontrovertible. That does not seem to be the case here.