Trinity Hundredmark recently appeared as a legal analyst on Cavuto on the Fox Business Network. Trinity discussed an administrative order issued by Illinois Gov. Pat Quinn “banning the box” on applications for state government jobs. Pursuant to the order, state government job applicants with criminal histories will no longer have to check a box disclosing that they have been convicted of, or pled guilty to, a crime. Trinity explained that by removing the box, every individual gets a fair opportunity to make a first impression and stand on their job qualifications, at least initially.
Archive for the ‘government’ Tag
ATC litigation partner Matt Reeves represented Dunwoody City Council Member Dr. Adrian Bonser, a dentist, in getting ethics charges against her dropped. This was the first Board of Ethics matter in the new City of Dunwoody, and included approximately six months of proceedings and a four-hour ethics hearing in September. The dispute centered around complex Georgia Open Meetings Act and Executive Session issues.
Matt was counsel to the Georgia House Judiciary Committee Chairman during the 2008 Georgia General Assembly, when legislation was approved to create the City of Dunwoody. Matt has handled many governmental litigation matters, in addition to litigating eminent domain, business, real estate and probate cases.
Andersen, Tate & Carr is proud to announce that one of its partners, Render C. Freeman, was awarded the 2011 Meritorious Service Award from the Gwinnett County Bar Association in Recognition of Outstanding Service to Gwinnett County and the State of Georgia. In significant part, the award was based on Mr. Freeman’s role as Regional Coordinator for the Gwinnett County High School Mock Trial Competition since 2006. Before Mr. Freeman filled this role, ATC partner Don Swift served as Regional Coordinator for three years. To review Mr. Freeman’s full profile, please go to http://www.atclawfirm.com/attorneys/render-c-freeman/
Mr. Freeman’s commitment to his community is just one example of our firm’s service philosophy. In fact, each of our lawyer’s profile pages has a section dedicated to Civic Activities. At Andersen, Tate & Carr, serving our community is an integral part of what we do.
Gwinnett County and North Georgia have experienced tremendous success and growth, and along with a vibrant economy comes an increased demand for roads, schools, parks, government buildings, power lines, and other public infrastructure. Our local prosperity has caused real estate values to increase steadily over the years. Land is at a premium in our area. The city, county and state government’s need for more property, combined with a corresponding high monetary value of private property in our area, pits the government’s power of condemnation/eminent domain against the right of private property owners to obtain just and adequate compensation when the government takes their land against their will.
Condemnation is a longstanding power of the government to take land that the government deems necessary for the public good. The government’s power to confiscate private property falls shortly behind the ability to put people in jail and send people off to war, as the government’s strongest powers. While under almost all circumstances the property owner is defenseless against the government’s decision to take their land, property owners do have the right under the state and federal Constitutions to obtain just and adequate compensation when their land is taken from them. The condemnation process is a complex process which was largely crafted by the government for the government’s benefit. Condemnation proceedings, more than almost any other legal proceeding, are filled with numerous deadlines, which could cause you to waive or lose your rights to be compensated if a deadline is missed. It is important to retain legal counsel early in the condemnation process to ensure that your rights to compensation are adequately protected. Even if you are extremely experienced and sophisticated in the field of real estate, the condemnation process is a process in which you need a legal advocate.
While government lawyers fight hard in most condemnation cases to keep the amount of money which the government pays land owners to the lowest level possible, the recent downturn in the economy, with its detrimental impact on government budgets, has created a situation in which the government will fight harder than ever before to keep condemnation payouts low. Also, while one would think that the number of condemnations would decrease during the current economic downturn, a large percentage of the special purpose local options sales tax (SPLOST) is budgeted for road projects, and the federal government is also a consistent source of road building funds. Additionally, governments and power companies are relatively recession-proof, have deep pockets, and have long-range budgets which are not as impacted by economic downturns as purely private businesses.
There are two main types of condemnation proceedings. The first is the “declaration of taking” method, which is utilized in most road-related condemnations. In a road-related condemnation, the government is able to take your land immediately by filing a condemnation lawsuit and depositing an amount of money into the registry of court which the government contends is just and adequate compensation.
The other type of commendation proceeding, which is employed in most other types of condemnations, such as school, park, government building, or power line condemnations, is the “special master” method. In the special master method, the government files a condemnation lawsuit, and the judge assigned to the case appoints a special master who is a local attorney familiar with real estate law, to consider evidence presented by the government and the land owner early in the proceeding. The special master hears evidence from both sides, and determines an initial amount of compensation to the land owner, which the government is required to pay into the registry of court prior to obtaining title to the land which it seeks to condemn.
Very rarely does the declaration of taking or special master method produce a result that is acceptable to landowners. If you have an attorney who is familiar with the condemnation process, you can preserve the ability to seek more compensation following the initial declaration of taking or special master step in the condemnation process.
If you have a larger condemnation case, you can proceed to an “interlocutory hearing”, in which three assessors/appraisers will hear evidence presented by both the government and the landowner, and determine an amount of just and adequate compensation. The three assessor panel is generally comprised of one appraiser selected by the government, one appraiser selected by the landowner, and a third appraiser selected by the two previously selected appraisers. If the three assessor panel’s decision is acceptable to both the government and the landowner, the case will conclude at that time. Either party has the right to appeal the three assessor panel’s decision to a jury trial.
Even if you decide not to participate in a three assessor panel, you are entitled to a right to a jury trial in most condemnation cases, as long as you work with your attorney to preserve your right to a jury trial. Between when the condemnation case is filed, and the jury trial, there is a “discovery process”, which usually last six months or more, in which the government and the landowner exchange documents and conduct depositions of their witnesses.
The way that you, as the landowner, prove the amount of just and adequate compensation, is to present layperson and expert witness testimony that your land was valuable before the taking, and that the taking has left you with a piece of property that is diminished in value. You also cross-examine the government’s witnesses, who almost always allege that your land had a low value prior to the taking and/or that the land has not been damaged by the condemnation. In most cases, it is necessary to retain a real estate appraiser and engineer who are capable of testifying at trial in your favor, in order to establish a credible case for just and adequate compensation. Based on the circumstances of your case, it might be advisable to enlist other experts, such as business valuation experts, surveyors, or building/development expert witnesses.
With all of the procedural and proof hurdles outlined above, it is easy to envision a scenario in which you, as the land owner, end up with unjust and inadequate compensation in a condemnation case. As a result of the pro-government condemnation process traditionally in Georgia, and in response to the United States Supreme Court’s Kelo v. City of New London decision in 2005, the Georgia General Assembly enacted the Landowner’s Bill of Rights in 2006. This recent condemnation reform bill was sponsored by Chairman Wendall Willard of the House Judiciary Committee, for whom I served as legal counsel during the 2008 Georgia General Assembly, and I was able to learn more about this new bill through representing Chairman Willard recently.
The following are recent reforms enacted as part of the Landowners Bill of Rights:
- The government is prohibited from using the power of eminent domain for private development purposes;
- Landowners are now able to participate in the selection of the special master in special master proceedings. Previously, the condemnor’s attorney nominated the special master, who was often the lawyer for another governmental entity, who predictably would award a low amount to the landowner;
- The government is now required to offer prior the full amount its appraiser believes is just and adequate compensation, when a fee simple interest is being acquired, prior to when a condemnation lawsuit is filed. Previously, and still with easements or property interests short of a fee simple interest, the government would frequently only offer a portion of the land’s appraised value;
- When a condemnation displaces you from your home, business, or farm, the government is required to give you 90 days written notice before you are forced to be relocated, and only after the money is paid to you;
- Georgia law now places the burden of proof upon the government to show that a condemnation is necessary for a public use;
- Georgia law now explicitly provides for relocation expenses when you are displaced from your home, business, or farm due to a condemnation. Previously, relocation compensation was only required under limited circumstances, which were governed by federal law.
- Other procedural hurdles for the government to jump through have been enacted, such as increased notice to landowners prior to a condemnation.
While the Georgia General Assembly has attempted to level the playing field in condemnation cases, landowners still have to fight to pursue just and adequate compensation when their land is condemned. There are many traps for the unwary which you can avoid by enlisting an attorney as soon as you learn that a condemnation is on the horizon.
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Matt Reeves is a partner in the litigation group at Andersen, Tate & Carr, P.C., a Gwinnett County, Georgia law firm. He focuses his practice on real estate, business and probate litigation.
Copyright © 2010, R. Matthew Reeves & Andersen, Tate & Carr, P.C.
On December 2, 2008, Jane Doe (a 12 year-old minor) exited her school bus and was walking home when the Defendant pulled into the neighborhood in an SUV and negligently ran her over, fracturing her leg in two places. Miss Doe’s medical expenses were over $25,000 and her plastic surgeon estimated that an additional surgery would be necessary and will cost approximately $10,000. But this case was not about $25,000 in medical expenses; it was not even about $35,000 in medical expenses. The fractures were bad and painful and the experience was horrifying for Miss Doe, but she recovered well and did not appear to be facing any permanent orthopaedic problems. So, the case wasn’t even about permanent physical disability.
The most upsetting aspect of this case was that the Defendant’s tire badly mangled the skin and tissue of Miss Doe’s ankle. This was almost a de-gloving injury. Consequently, Miss Doe has permanent burn-like scarring on her leg. This might have been a different case if the Defendant had permanently scarred a little boy. At least a little boy could make the best of a bad situation by making up crazy stories about the scar. As that boy grew into manhood, the scar would likely be obscured by leg hair, but, even if it remained conspicuous, he could still deal with it more readily than a woman by joking and making up funny stories about it. His scar might even be perceived by some as cool.
Miss Doe, on the other hand, does not (and will never) have this option. Instead, she will always be somewhat self conscious about this scar. The scar is not easily concealed, and, in fact, affects a part of Miss Doe’s anatomy that is strongly associated with her femininity and attractiveness. Miss Doe has a strong family, and they will help her to come to peace with her scar, but, throughout her life, people will notice it, perhaps treat her a little differently because of it, and maybe even be so bold as to ask her what happened. Years from now, when the Defendant has long forgotten about this incident, Miss Doe will still be dealing with it on a daily basis.
The insurance adjuster assigned to handle Miss Doe’s claim had previously worked with attorney Render Freeman and knew of Mr. Freeman’s ability to succeed in front of a jury. Following Mr. Freeman’s investigation and aggressive pre-suit negotiations, the insurance carrier agreed to pay $295,000 to settle the claim. This money will enable Miss Doe to undergo any necessary scar-revision surgeries and will pay for her college education. Mr. Freeman was very proud to represent this nice young lady and gratified by the quick result.
Michael Sullivan, a partner in our Commercial Real Estate group, has been named to the Engage Gwinnett committee as the representative of the Council for Quality Growth.
The committee is tasked with performing a 6-month study of Gwinnett County’s services and finances.
For more information check the website for the committee: www.engagegwinnett.com
There have always been difficulties swirling around having leasing restrictions in homeowners associations. Now there are some new wrinkles for Georgia homeowners associations to watch.
Unfolding right now, Walker v. Charter Club on the River Home Owners Association, Inc., Superior Court of Gwinnett County Case No. 08-A-08345-10 (Order filed March 26, 2009) brings into question the enforceability of some existing leasing restrictions, but not all.
The case turns on a novel interpretation of O.C.G.A. Section 44-5-60(d)(4). O.C.G.A. Section 44-5-60 contains the infamous 20 year limitation on covenants, which often provides problems for owners, especially in neighborhoods where the folks involved in development did not realize their covenants would terminate, by law, after twenty years. There are a lot of strange quirks to the application of this law, not the least of which are the later changes to the statute that allow for some degree of renewal of the covenants does not have retroactive application . . . but the details of those quirks are a subject for another day.
In the subdivision where this case arose, the association adopted a leasing restriction that prohibited leasing except when grandfathered (applicable only to existing leases) or when the owner was granted a hardship permit. Owners of a lot (the Walkers) had been leasing their home for two years already at the time of the amendment. When they replaced the tenant that existed at the time of the leasing amendment, the association took action to enforce the near-absolute restriction on leasing.
The narrow concept on which the Walker case is not whether there was a hardship for which the Walkers should have been granted an exception, or how the grandfather clause should have worked, or even if the amendment was adopted properly. It was instead whether O.C.G.A. Section 44-5-60(d)(4) could be construed to prevent the creation of a “greater restriction” on the owner’s use of their property, despite following the amendment provisions contained in the declaration of covenants.
The judge ruled that indeed, the creation of this restriction was a greater restriction on the owner’s use of the property under the terms of the statute and, therefore, the leasing amendment could not be applied against an owner who did not consent to it.
What is interesting about this case is the questions it raises about the enforceability of leasing restrictions and other restriction changes adopted by amendment. The analysis and ruling are limited to this specific fact pattern and do not provide a magic bullet for overturning all leasing restrictions.
However, the ruling may open the door to arguments using O.C.G.A. Section 44-5-60(d)(4) to overturn other types of amendments that seek to change (and expand) the covenants currently in place in a subdivision. It will be interesting to watch this issue unfold over time, but in the short term it is an issue for associations to be aware of when deciding to adopt changes to create leasing restrictions or other covenants that are “greater” than what already exists.
Of course, given the detail and specificity of the arguments made, it is best to contact an attorney with questions and concerns about adopting amendments, especially leasing restrictions, or disputing their validity.
By: Amy H. Bray, a partner in our Commercial Real Estate department.
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Amy H. Bray is a Georgia attorney, focusing her practice in community association and real estate law matters.
Her firm, Andersen, Tate & Carr, P.C., works with all manner of clients in business and personal matters, providing “big firm” sophistication with suburban law firm attention and service.
Copyright © 2009 & 2010, Amy H. Bray & Andersen, Tate & Carr, P.C.