RECENT GEORGIA CONDEMNATION CASES
By R. Matthew Reeves
Gwinnett County’s renewal of the one-cent Special Purpose Local Option Sales Tax in November of 2013 provides three more years of millions of dollars of local funding for transportation projects, which will no doubt produce more condemnation cases in Gwinnett County. Eminent domain law remains a highly specialized area of Georgia law, as evidenced by several reported condemnation cases over the past year.
Condemnation cases often require application of other areas of Georgia law, and in Postell v. Bd. of Commissioners of Houston County, 317 Ga. App. 898 (2012), probate law was applied. As part of a road project, Houston County condemned part of a 101 acre tract that Mr. Postell’s great-grandfather owned until he died intestate in 1949. Several weeks after the property was condemned, Mr. Postell was conveyed the property by way of a quit claim deed from his mother. The Court of Appeals affirmed the denial of Mr. Postell’s motion to set aside the condemnation, holding that Mr. Postell had no standing to challenge the taking because the quit claim deed was not recorded until after title had passed to the condemning authority. The Postell court noted that a petition for condemnation is not merely a pleading, but is an instrument which passes title.
Fulton County v. Dillard Land Investments, LLC, 322 Ga. App. 344 (2013), also analyzed when a condemnation becomes final. Dillard concerned a condemnation to expand a library, which must proceed under a special master form of condemnation, rather than a declaration of taking as in road-related condemnations. The Special Master opined that the property owner was entitled to $5,187,500.00. Apparently shell-shocked by the award, Fulton County attempted to voluntarily dismiss the case and abandon the proposed condemnation before the massive sum was paid. The Court of Appeals reversed the trial court, and held that Fulton County was authorized to dismiss the case. The Court’s reasoning hinged upon the fact that title does not pass in a special master condemnation until money is paid into the registry of court pursuant to the special master’s award.
Georgia Dept. of Transportation v. Jackson, 322 Ga. App. 212 (2013), was an inverse condemnation case in which a property owner claimed that the DOT condemned a property interest he owned, when the DOT closed a driveway that led to his property. Between the DOT’s road and the owner’s property were a tract with no owner of record, and a railroad track. Based on aerial photographs and evidence of use of the driveway for decades, including testimony from a local historian and attorney, Judge Bill Ray wrote an opinion affirming a jury verdict based on the inverse condemnation of the property owner’s prescriptive easement.
Power companies have the power of eminent domain to acquire land for transmission likes and other infrastructure. In Boston Creek Holdings, LLLP v. Amicalola Electrical Membership Corp., 320 Ga. App. 375 (2013), the Court held that there is a one-year statute of limitations for claims against power companies for occupying the lands of others. In this case, potential class action claims filed in 2011 based on power lines installed between 1979 and 2008 were dismissed on statute of limitations grounds.
In Amica Mutual Insurance Co. v. Gwinnett County Police Department, 738 S.E.2d 622 (Ga. Ct. App. Feb. 19, 2013), distinguished jurist Judge Michael Clark was once again affirmed, when the Court of Appeals held that Gwinnett County was entitled to sovereign immunity against an inverse condemnation claim based on damage caused during a police stand- off. Judge Clark and the Court of Appeals sided with effective but messy cops in this subrogation suit following a homeowner’s insurance claim based upon damage to a home during the execution of an aggravated assault arrest warrant. Former Gwinnett County Bar Association President Tuwanda Williams and County Attorney Van Stephens won this appeal.
If probate law, seven-figure Fulton County awards unrecorded driveway easements, “S.O.L.” issues, and knock-down drag-out fights with cops were not colorful enough, the barring of alcohol in private booths at a nude dancing club near Hartsfield-Jackson Airport rounds out this review of recent eminent domain cases. In Walleye, LLC v. City of Forest Park, 322 Ga. App. 562 (2013), the Court of Appeals affirmed summary judgment on an inverse condemnation claim, holding that based on the facts of the case, after passage of an alcohol-nudity ordinance, the subject property did not experience a regulatory taking.
Matthew “Matt” Reeves is a former President of the GCBA, a partner at Duluth law firm Andersen, Tate & Carr, P.C., and practices real estate, business and probate litigation, including representing property owners and business owners in eminent domain matters.
This article was previously published in the Gwinnett County Bar Association newsletter.