Archive for the ‘Eminent Domain’ Category

DOT Lets Acquired Rights of Way Languish

An audit of the Georgia Department of Transportation has not only revealed a deficit of $456 million, but that its right-of-way office, which acquires land for road development, has forced people to sell their land and then let it languish.  DOT doesn’t even know how much land it owns.

In one case, for a project on Ga. 316 and Ga. 81 in 1999, DOT told a man it needed land that he had bought less than six months before, intending to build a gas station.

It usually takes years for a project to arrive at the construction stage, and the man asked DOT if it would let him build his station and make what profit he could until the agency was ready to build its ramps.

DOT refused, saying the project was “imminent,” and condemned his land.

“Eight years later, GDOT continues to have no formal construction plans for the project and the project is not on GDOT’s Long Range Program,” according to the audit.

The audit also revealed that 52% of the people that fought the DOT appraisal of their property that was being taken ultimately received higher compensation calling in to question the qualifications of DOT appraisers.

DOT’s press release concerning the audit can be found here.

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Just Delay . . . Not Condemnation

On March 18, 2008, the Georgia Court of Appeals again threw out a constitutional challenge to a local ordinance where the ordinance was not properly pled or proved and held that simple delay of a development project did equal condemnation.

Local Ordinance Must Be Pled and Proved

      A local ordinance constitutes foreign law.  Neither a superior court, nor an appellate court can take judicial notice of a local ordinance. A local ordinance has the status of a private act that must be pled and proved.  There are three accepted methods to prove such an ordinance:  (1) production of the original; (2) production of a properly certified copy; or (3) admission by the defendant of an ordinance that is either set forth verbatim in pleadings or attached as an uncertified copy to a pleading.

Simple Delay of Project is Not Condemnation

      It is not a compensable taking for inverse condemnation if local approval of a development is merely delayed where the underlying facts show that builder is not prevented from marketing and developing other aspects of the project, can make other uses of property pending approval or reconfigure property to not require local approval, and property did not decrease in value as a result of the delay. 

Keep reading for GZB’s summary of Prime Home Properties, LLC v. Rockdale County Board of Health, Court of Appeals of Georgia, Case Nos. A07A2185, A07A2186.   

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