Georgia Code, Volume 19, 2012 Supplement

2012·12.2 MB·English

by  State of Georgia

OFFICIAL CODE OF GEORGIA
ANNOTATED
2012 Supplement
IncludingActs ofthe 2012 Regular Session ofthe General Assembly
Prepared by
The Code Revision Commission
The Office ofLegislative Counsel
and
The Editorial StaffofLexisNexis®
Published Under Authority ofthe State of Georgia
Volume 19
Title 22. Eminent Domain
Title 23. Equity
IncludingAnnotations to the Georgia Reports
and the GeorgiaAppeals Reports
Place in Pocket of Corresponding Volume of
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The State of Georgia
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ISBN 978-0-327-11074-3 (set)
ISBN 978-0-327-11577-9
5013929
(Pub.41805)
THIS SUPPLEMENT CONTAINS
Statutes:
All laws specifically codified by the General Assembly ofthe State of
Georgia through the 2012 Regular Session ofthe General Assembly.
Annotations of Judicial Decisions:
Case annotations reflecting decisions posted to LexisNexis® through
March 30, 2012. These annotations will appear in the following tradi-
tional reporter sources: Georgia Reports; Georgia Appeals Reports;
Southeastern Reporter; Supreme Court Reporter; Federal Reporter;
Federal Supplement; Federal Rules Decisions; Lawyers' Edition;
United States Reports; and Bankruptcy Reporter.
Annotations ofAttorney General Opinions:
Constructions ofthe Official Code ofGeorgia Annotated, prior Codes
ofGeorgia, Georgia Laws, the Constitution ofGeorgia, and the Consti-
tution of the United States by the Attorney General of the State of
Georgia posted to LexisNexis® through March 30, 2012.
OtherAnnotations:
References to:
Emory Bankruptcy Developments Journal.
Emory International Law Review.
Emory Law Journal.
Georgia Journal of International and Comparative Law.
Georgia Law Review.
Georgia State University Law Review.
Mercer Law Review.
Georgia State Bar Journal.
Georgia Journal of Intellectual Property Law.
American Jurisprudence, Second Edition.
American Jurisprudence, Pleading and Practice.
American Jurisprudence, ProofofFacts.
American Jurisprudence, Trials.
Corpus Juris Secundum.
Uniform Laws Annotated.
American Law Reports, First through Sixth Series.
American Law Reports, Federal.
Tables:
In Volume 41, a Table Eleven-A comparing provisions of the 1976
Constitution ofGeorgia to the 1983 Constitution ofGeorgia and a Table
Eleven-B comparing provisions ofthe 1983 Constitution of Georgia to
the 1976 Constitution of Georgia.
An updated version of Table Fifteen which reflects legislation
through the 2012 Regular Session ofthe General Assembly.
iii
Indices:
A
cumulative replacement index to laws codified in the 2012 supple-
ment pamphlets and in the bound volumes ofthe Code.
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IV
TITLE 22
EMINENT DOMAIN
Chap.
1. General Provisions, 22-1-1 through 22-1-14.
2. Condemnation Procedure Generally, 22-2-1 through
22-2-142.
3. Exercise of Power of Eminent Domain for Special
Purposes, 22-3-1 through 22-3-162.
4. Relocation of Persons, Businesses, etc., Displaced by
Federal-Aid Projects, 22-4-1 through 22-4-15.
—
Lawreviews. Forarticle,"ACritical prudence," see 51 Mercer L. Rev. 11
Review of the Law of Business Loss (1999).
ClaimsinGeorgiaEminentDomainJuris-
RESEARCH REFERENCES
—
Am. Jur. Trials. Condemnation of Condemnation of Leasehold Interests,
Rural Property for Highway Purposes, 8 96Am. Jur. Trials 211.
—
Am. Jur. Trials 57. ALR. Construction and application
Condemnation of Urban Property, 11 of rule requiring public use for which
Am. Jur. Trials 189. property is condemned to be "more neces-
Condemnation of Easements, 22 Am. sary" or "higher use" than public use —to
Jur. Trials 743. which propertyis alreadyappropriated
Landowner's Evidence ofMarket Value state takings, 49ALR5th 769.
in Eminent Domain Proceeding, 60 Am.
Jur. Trials 447.
CHAPTER
1
GENERAL PROVISIONS
Sec. Sec.
22-1-1. Definitions. rights of condemnee; excep-
22-1-2. Nature ofright ofeminent do- tions.
main; property to be put to 22-1-10.1. Time for bringing condemna-
public use. tion action; exceptions.
22-1-9. Policies and practices guiding 22-1-11. Determination of authority to
exercise ofeminent domain. exercise public domain.
22-1-10. Duties of condemnor prior to 22-1-12. Reimbursement to property
exercise of eminent domain: owner of reasonable costs and
2012 Supp.
T.22, C.l EMINENT DOMAIN 22-1-1
Sec. Sec.
expenses associated with con- 2013. See note.) Valuation of
demnation proceedings. condemned property.
22-1-13. Compensation to condemnee 22-1-14. (EffectiveJanuary 1, 2013. See
for relocation damages and ex- note.) Valuation of condemned
penses. property.
22-1-14. (Effective until January 1,
JUDICIAL DECISIONS
Cited in Fountain v. Metropolitan At-
lanta Rapid Transit Auth., 179 Ga. App.
318, 346 S.E.2d 363 (1986).
RESEARCH REFERENCES
— —
Am. Jur. Proof of Facts. Eminent ALR. Zoning regulations limiting
Domain: Lessee's Recovery ofCompensa- use ofproperty near airport as taking of
tion for Taking of Leasehold Interest, 56 property, 18ALR4th 542.
POF3d 419. Inverse condemnation state court class
Eminent Domain: ProofofLack ofRea- actions, 49ALR4th 618.
sonable Necessity for Taking ofProperty,
71 POF3d 97.
22-1-1. Definitions.
As used in this title, the term:
(1) "Blighted property,""blighted,"or"blight"means anyurbanized
or developed property which:
(A) Presents two or more ofthe following conditions:
(i) Uninhabitable, unsafe, or abandoned structures;
(ii) Inadequate provisions for ventilation, light, air, or sanita-
tion;
(hi) An imminent harm to life or other property caused by fire,
flood, hurricane, tornado, earthquake, storm, or other natural
catastrophe respecting which the Governor has declared a state
of emergency under state law or has certified the need for
disaster assistance under federal law; provided, however, this
division shall not apply to property unless the relevant public
agency has given notice in writing to the property owner regard-
ingspecificharm causedbythe property and the ownerhas failed
to take reasonable measures to remedy the harm;
A
(iv) site identified by the federal Environmental Protection
Agency as a Superfund site pursuant to 42 U.S.C. Section 9601,
2012 Supp.
22-1-1 GENERAL PROVISIONS 22-1-1
et seq., or environmental contamination to an extent that re-
quires remedial investigation or a feasability study;
(v) Repeated illegal activity on the individual property of
which the property owner knew or should have known; or
(vi) The maintenance ofthe property is below state, county, or
municipal codes for at least one year after notice of the code
violation; and
(B) Is conducive to ill health, transmission of disease, infant
mortality, or crime in the immediate proximity ofthe property.
Property shall not be deemed blighted because ofesthetic conditions.
(2) "Common carrier" means any carrier required by law to convey
passengers or freightwithout refusal ifthe approved fare or charge is
paid.
(3) "Condemnor" or "condemning authority" means:
(A) The State of Georgia or any branch or any department,
board, commission, agency, or authority ofthe executive branch of
the government ofthe State of Georgia;
(B) Any county or municipality ofthe State of Georgia;
(C) Any housing authority with approval of the governing au-
thority ofthe city or county as provided in Code Section 8-3-31.1;
(D) Any other political subdivision ofthe State ofGeorgia which
possesses the power ofeminent domain; and
(E) All public utilities that possess the right or power ofeminent
domain.
(4) "Economic development" means any economic activity to in-
crease tax revenue, tax base, or employment or improve general
economic health, when the activity does not result in:
(A) Transfer ofland to public ownership;
(B) Transfer of property to a private entity that is a public
utility;
(C) Lease ofproperty to private entities that occupy an inciden-
tal area within a public project; or
(D) The remedy ofblight.
(5) "Each person with a legal claim" means the owner of the
property or of any remainder, reversion, mortgage, lease, security
deed, or other claim in the property.
2012 Supp. 3
22-1-1 EMINENT DOMAIN 22-1-1
(6) "Interest" means any title or nontitle interest other than fee
simple title.
(7) "Persons" means individuals, partnerships, associations, and
corporations, domestic or foreign.
(8) "Property" means fee simple title.
(9)(A) "Public use" means:
(i) The possession, occupation, or use of the land by the
general public or by state or local governmental entities;
(ii) The use of land for the creation or functioning of public
utilities;
(hi) The opening ofroads, the construction ofdefenses, or the
providing ofchannels oftrade or travel;
(iv) The acquisition of property where title is clouded due to
the inability to identify or locate all owners ofthe property;
(v) The acquisition of property where unanimous consent is
received from each person with a legal claim that has been
identified and found; or
(vi) The remedy ofblight.
(B) The public benefit ofeconomic development shall not consti-
tute a public use.
(10) "Public utility" means any publicly, privately, or cooperatively
owned line, facility, or system for producing, transmitting, or distrib-
uting communications, power, electricity, light, heat, gas, oil prod-
ucts, water, steam, clay, waste, storm water not connected with
highway drainage, and other similar services and commodities,
including publicly owned fire and police and traffic signals and street
lighting systems, which directly or indirectly serve the public. This
term also means a person, municipal corporation, county, state
agency, or public authority which owns or manages a utility as
defined in this paragraph. This term shall also include common
carriers and railroads. (Ga. L. 1929, p. 219, § 3; Code 1933, § 36-201;
Ga. L. 2006, p. 39, § 3/HB 1313.)
The 2006 amendment, effective April andmaybecited as'TheLandowner'sBill
4, 2006, redesignated former paragraphs ofRights and Private Property Protection
(1) through (3) as present paragraphs (6) Act.'"
through (8), respectively, and added para- Ga. L. 2006, p. 39, § 25, not codified by
graphs (1) through (5), (9), and (10). For the General Assembly, provides that the
applicability, see edi—tor's note. amendment to this Code section shall ap-
Editor's notes. Ga. L. 2006, p. 39, ply to those condemnation proceedings
§ 1, notcodifiedbythe GeneralAssembly, filed on or after February 9, 2006, where
provides that: "This Act shall be known title has not vested in the condemning
4 2012 Supp.
22-1-1 GENERAL PROVISIONS 22-1-2
authority unless constitutionally prohib- Ga. St. U. L. Rev. 157 (2006). For survey
ited. — article on zoning and land use law, see 60
Law reviews. For article on 2006 Mercer L. Rev. 457 (2008).
amendment of this Code section, see 23
JUDICIAL DECISIONS
An easementwas acompensableprop- application ofthe bad faith standard was
erty interest in a condemnation action, appropriate; the trial court found that
Lee v. City ofAtlanta, 219 Ga. App. 264, even ifthe special masterhad applied the
464 S.E.2d 879 (1995). abuseormisuseofdiscretion standard, no
Bad—faith standard properly ap- evidence ofrecord supported such a find-
plied. Trial courtdidnoterrinuphold- ing on the part ofthe county. Brunswick
ing a special master's decision granting a Landing, LLC v. Glynn County, 301 Ga.
county's petition to condemn a property App. 288, 687 S.E.2d 271 (2009), cert,
owner's land because the trial court prop- denied, No. S10C0558, 2010 Ga. LEXIS
erly concluded that the special master's 246 (Ga. 2010).
22-1-2. Nature ofright ofeminent domain; property to be put to
public use.
(a) The right ofeminent domain is the right ofthe state, through its
regular organization, to reassert, either temporarily or permanently, its
dominion over any portion of the soil of the state on account of public
exigency and for the public good. Thus, in time ofwar or insurrection
the proper authorities may possess and hold any part ofthe territory of
the state for the common safety Notwithstanding any other provisions
of law, neither this state nor any political subdivision thereof nor any
other condemning authority shall use eminent domain unless it is for
public use. Public use is a matter oflaw to be determined by the court
and the condemnor bears the burden ofproof.
(b) All condemnations shall not be converted to any use other than a
public use for 20 years from the initial condemnation.
(c)(1) If property acquired through the power of eminent domain
from an owner fails to be put to a public use within five years, the
formerpropertyownermay applyto the condemnor orits successoror
assign for reconveyance or quitclaim of the property to the former
property owner or for additional compensation for such property. For
purposes ofthis subsection, property shall be considered to have been
put to a public use at the point in time when substantial good faith
effort has been expended on a project to put the property to public
use, notwithstanding the fact that the project may not have been
completed. The application shall be in writing, and the condemnor or
its successor or assign shall act on the application within 60 days by:
(A) Executing a reconveyance or quitclaim ofthe property upon
receipt of compensation not to exceed the amount of the compen-
sation paid by the condemnor at the time of acquisition; or
2012 Supp. 5
22-1-2 EMINENT DOMAIN 22-1-2
(B) Paying additional compensation to the former owner of the
property, such compensation to be calculated by subtracting the
price paid by the condemnor for the property at the time of
acquisition from the fair market value ofthe property at the time
the application is filed.
(2) Ifthe condemnor fails to take either action within 60 days, the
former property owner may, within the next 90 days following,
initiate an action in the superior court in the county in which the
property is located to reacquire the property or receive additional
compensation.
(3) The condemnor shall provide notice to each former owner ofthe
property prior to acquisition if the condemnor fails to put such
property to a public use within five years. The condemnee shall have
oneyearfrom the date notice is received tobringan applicationunder
this subsection.
(d) In the case that property is acquired from more than one owner
forthe same public use and reconveyance or additional compensation to
a single owner is impracticable, any party to the original condemnation
or each person with a legal claim in such condemnation may file an
action in the superior court in the county in which the property is
located for an equitable resolution.
(e) This Code section shall not apply to condemnations subject to
Code Section 22-3-162 or Title 32. (Orig. Code 1863, § 2201; Code 1868,
§ 2196; Code 1873, § 2222; Code 1882, § 2222; Civil Code 1895,
§ 3052; Civil Code 1910, § 3624; Code 1933, § 36-101; Ga. L. 2006, p.
39, § 4/HB 1313.)
The 2006 amendment, effective April andmaybecited as'TheLandowner'sBill
4, 2006, designated the previously exist- ofRights and Private Property Protection
ing provisions ofthis Code section as sub- Act.'"
section(a);insubsection(a),deleted";and Ga. L. 2006, p. 39, § 25, not codified by
in time of peace the General Assembly the General Assembly, provides that the
may authorize the appropriation of the amendmenttothisCodesectionshallonly
sametopublicpurposes, suchastheopen- appiy to petitions for condemnation filed
ing of roads, construction of defenses, or on or afterApril 4,—2006.
providing channels for trade or travel" Law reviews. For article on 2006
from the end ofthe second sentence and amendment of this Code section see 23
added the last two sentences; and added G^a^St ^ L Rey 15? (2006) F^or, g
subsections(b)through(d).Forapphcabil- Qn zQning and }and uge gee 6Q
ity see editors note—. Mercer L. Rev 457 (2008). For annual
§o E-1.,dintootrc'osd,i.nf£oitede,,sb.yt,,heGG«ae.neL.ra2li0A0as6s,epm.bli3-yi9,, tsurtv>eyoonnirea(lo,nporqofpert.y,law, seeC611 MAierrcer
provides that: "This Act shall be known
2012 Supp.