The Georgia Constitution provides that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid." While the courts have recognized that a business is property within the meaning of the constitution, case law would rewrite this provision more or less as follows:
Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid, except that the business of a property owner may be partially taken or damaged without compensation, and except that the business of a property owner or tenant may be temporarily taken or damaged without compensation.
Contradictory rules have also evolved for the means of valuing both the business damage that occurs and the loss in value of the underlying real property interests. Outcomes have turned on distinctions between "landowner" and "tenant," "permanent" and "temporary," "total" and "partial," "business" and "real property," and "unique" and "nonunique," most of which have no apparent connection with the constitutional text. This Article surveys the background of business damage claims in Georgia eminent domain and inverse condemnation law. It then critically reviews certain problem areas to show how contradictory and counter-intuitive rulings developed and calls for the resolution of those issues by overruling certain cases. The Article concludes with a proposal for a comprehensive approach to valuation questions in Georgia, including business valuation questions.
Cork, Charles M. III
"A Critical Review of the Law of Business Loss Claims in Georgia Eminent Domain Jurisprudence,"
Mercer Law Review: Vol. 51:
1, Article 5.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol51/iss1/5