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A New Tool to Fight Government Takings: Declaratory Judgments

​By Michael P. Bain

In Georgia, if a County, City, or governmental agency takes or affects your property or property rights without first filing a condemnation lawsuit and without paying you for the property taken and any damages caused, then you can file a lawsuit called an "inverse condemnation" action against that government. Such an inverse condemnation action has been, until recently, the only means by which to ensure the government does not completely violate your constitutional rights by its acts. As of January 1, 2021, however, attorneys representing landowners have a new tool in their toolkit: a declaratory judgment action.​

​An inverse condemnation action provides a mechanism by which landowners can recover the money they are owed for a taking. In general, a claim for an inverse condemnation arises when a government entity, such as a City or County, takes some affirmative action for "public purposes" that causes a nuisance or trespass which, in turn, results in the diminished use and functionality of a landowner's land. The diminished use and functionality interferes with a landowner's use and enjoyment of his or her land. Examples of such actions could include diverting water onto property, impairing access to property, causing mud and silt to flow onto property, or for damaging property by noise, odors, or pollution.

An inverse condemnation action gives the landowner a claim for compensation; however, it does not necessarily restore a landowner's rights to the land. In other words, such a claim does not force the government to stop interfering with a landowner's land. You may have thought in the past that you could bring a lawsuit to force the government to stop illegal or harmful actions; however, as recognized by the Georgia Supreme Court in the 2017 case of Lathrop v. Deal, such an action would have been barred by the doctrine of sovereign immunity.

Sovereign immunity protects governments from lawsuit. It is a doctrine stemming from British law to prevent people from suing the king, who could do no wrong. By application in Georgia, if the General Assembly did not expressly consent in a statute to allow a private lawsuit against the government, then no claim could be brought against the government. The Georgia Supreme Court held that the sovereign immunity doctrine covered claims for declaratory judgments, in which a plaintiff sought to have a Court declare a government act or rule to be in violation of the Constitution or another law. The Supreme Court held that sovereign immunity also prohibited claims for injunctive relief, in which a plaintiff could seek to have the government stop doing an act.

Following the Georgia Supreme Court's holding in Lathrop v. Deal, the Georgia General Assembly twice passed bills with bipartisan support proposing a new law effectuating a waiver of sovereign immunity for declaratory judgments and injunctions. Both times the bills were vetoed by the governor.

However, as Georgians took to the polls this past November, one of the most overlooked items up for decision was an amendment to the Georgia Constitution to allow for the waiver of the doctrine of sovereign immunity for certain cases against the government. It proved to be one of the least controversial issues on the ballot, with nearly 75% of voters voting to approve the amendment. With a Constitutional amendment passed, over which the governor had no veto power, Paragraph V of Article I, Section II of the Georgia Constitution was revised to include the new provisions.

Thus, in addition to seeking compensation for rights taken and property damaged, a landowner now has the right to seek from a court a declaration that a government's act is illegal or unconstitutional. If such a declaration is made, a landowner may also seek an injunction to stop the government's wrongful act instead of merely seeking compensation for damages caused by it. If the government has taken some action that has taken or damaged your property, the attorneys of Flint, Connolly & Walker, LLP can advise you on and help protect your property rights.

Michael Bain is an attorney at Flint, Connolly & Walker, LLP and assists individuals and businesses in a range of legal matters affecting business, insurance, and real estate. He graduated from the University of Georgia School of Law and has practiced in metro Atlanta for his entire career.

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