FIFTH DIVISION

MERCIER, C. J.,

MCFADDEN, P. J., and RICKMAN, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 4, 2024

In the Court of Appeals of Georgia

A24A0183. DEPARTMENT OF TRANSPORTATION v. STAR

LAND HOLDINGS, LLC et al.

MCFADDEN, Presiding Judge.

This is an appeal by the Department of Transportation from an order of the

superior court granting Star Land Holdings, LLC’s motion to set aside, vacate, and

annul a declaration oftaking on the ground that the department had not compliedwith

two provisions of the Landowner’s Bill of Rights and Private Property Protection Act

of 2006. See Ga. L. 2006, p. 40. The department argues that violations of the Act are

not a basis for setting aside, vacating, and annulling a declaration of taking under

OCGA§ 32-3-11,the statute that grants superior courts limited authority to take such

action, but we hold thatsuch violations are encompassed within the superior courts’

authority under the statute.
The department also argues that the superior court erred in finding that it had

violated two provisions of the Act, OCGA § 22-1-9 (2), which requires the

condemning authority to give the property owner the opportunity to accompany the

appraiser during his inspection of the property, and OCGA § 22-1-9 (3), which

requires the condemning authority to provide the property owner with a written

summary of the basis for its estimation of just compensation. We hold that the

superior court did not err in finding that the department violated OCGA § 22-1-9 (2)

(requiring an opportunity to accompany the appraiser) and, on the basis of that

violation, entering an order under OCGA § 32-3-11 to set aside, vacate, and annul the

declaration oftaking. Sowe do not reach the issue ofwhether the superior court erred

in finding that the department also violated OCGA§ 22-1-9 (3). Forthese reasons, we

affirm.

1. Factual and procedural background

“Inreviewing a non-jury judgment, an appellate court will not reverse the lower

court’sfinding[s] of fact if there is any evidence to support [them].” Dept.of Transp.

v. B & G Realty, 197 Ga. App. 613, 615 (1) (398 SE2d 762) (1990) (citation and

punctuation omitted).

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So viewed, the record shows that the department filed a petition in the superior

court under OCGA§§ 32-3-4 through 32-3-19 to acquire by condemnation fee simple

title to a right of way as well as construction and maintenance easements for a state

highway project in Gwinnett County.It attached to the petition a declaration oftaking

and deposited into the court registry a sum of money estimated as just compensation.

This filing effected a transfer of title. See Dorsey v. Dept. of Transp., 248 Ga. 34, 36

(279 SE2d 707) (1981).

Star Land Holdings, the property owner, filed a “petition to set aside, vacate,

and/or annul condemnor’sdeclaration oftaking anddismiss condemnor’spetition for

condemnation under OCGA § 32-3-11.” It alleged that the department had not

complied with two provisions of the Landowner’s Bill of Rights and Private Property

Protection Act. Specifically, it alleged that the department failed to afford it an

opportunity to accompany the department’s appraiser during his inspection of the

property, as required by OCGA § 22-1-9 (2), and that the department’s precondemnation offer did not comply with OCGA § 22-1-9 (3) because it failed to

provide information sufficient for Star Land Holdings to meaningfully evaluate the

offer. Star Land Holdings asked the superior court to set aside and annul the

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declaration of taking and to dismissthe petition for condemnation that accompanied

the declaration of taking.

After a hearing, the superior court granted Star Land Holdings’ petition. We

granted the department’s application for interlocutory appeal, and this appeal

followed.

2. The Landowner’s Bill of Rights and Private Property Protection Act

The department argues that noncompliance with OCGA § 22-1-9 of the

Landowner’s Bill of Rights and Private Property Protection Act is not a basis for

setting aside a declaration of taking. We disagree.

We first observe that the department concedes that OCGA § 22-1-9 applies to

condemnations under Title 32,such as the condemnation here.We agree, because the

statute itself states that it applies to “all condemnations and potential

condemnations[.]” OCGA § 22-1-9. See also OCGA § 32-3-2 (“All acquisition of

property or interests for public road and other transportation purposes shall proceed

under the methods set out in this article and in Title 22.”); Fincher Road Investments

v. City of Canton, 334 Ga. App. 502 (779 SE2d 717) (2015) (physical precedent only)

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(applying OCGA § 22-1-12, a provision of the Act, to a declaration-of-taking

condemnation under OCGA § 32-3-6).

Instead, the department argues that a failure to comply with OCGA § 22-1-9 is

not one of the limited circumstances a superior court may consider for setting aside

a declaration of taking under OCGA § 32-3-11. We disagree.

In City of Marietta v. Summerour, 302 Ga. 645 (807 SE2d 324) (2017), our

Supreme Court considered the appropriate remedy for a condemnor’s failure to

comply with OCGA § 22-1-9 of the Act. It first held that the provisions of OCGA 22-

1-9 are not mere guidance for the condemning authority. 302 Ga. at 654-656 (2).

Rather, it held, “compliance with Section 22-1-9 is an essential prerequisite to the

filing of a petition to condemn,” id. at 646, that “compliance . . . is required to the

extent that compliance is ‘practicable[,]’” id. at 656 (2), and that the government

must strictly comply. Id. at 659 (4). The court concluded that a condemnor’s

“fail[ure] to fulfill that prerequisite” requires the dismissal of the petition to

condemn. Id. at 646.

The department argues that the discussion of remedy in Summerour, supra, is

inapplicable to this case because the condemnation in Summerour was pursued under

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Title 22, while this case involves a declaration-of-taking condemnation under Title 32.

See generally Dillard Land Investments v. FultonCounty, 295 Ga. 515 (1) n. 1 (761 SE2d

282)(2014) (There are “three primaryGeorgia statutory procedures for condemning

property. [The special master method, see OCGA § 22-2-100 to § 22-2-114,] the

much older assessors method,(codified as amended at OCGA §§ 22-2-1 to 22-2-86),

. . . and the declaration of taking method, (codified as amended at OCGA §§ 32-3-4

to 32-3-20).”) (citations and punctuation omitted). We hold that OCGA § 32-3-11

grants superior courts authority to set aside, vacate, and annul declarations of taking

for violations of OCGA § 22-1-9.

OCGA § 32-3-11 provides that 

the judge of the superior court shall have the authority to set aside,

vacate, and annul the declaration of taking, together with any title

acquired thereby, in the same way and manner and for the same reasons

as are provided by Code Sections 23-2-60[, which concerns equitable

annulments of conveyances because of fraud,] and 9-11-60[, which

concerns methods for seeking relief from judgments].

OCGA § 32-3-11 (a). The statute restricts the court’s power to the following

questions:

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(1) Fraud or bad faith, as contemplated by Code Sections 23-2-60 and

9-11-60; (2) The improper use of the powers of this article, such as are

not contemplated by this article; (3) The abuse or misuse of the powers

of this article; and (4) Such other questions as may properly be raised,

including the question of whether or not this article has been invoked in

some respect beyond the privileges conferred by this article or by an

unauthorized agency, county, or municipality.

OCGA § 32-3-11 (b).

Here,the superior court held that because the department failed to comply with

OCGA § 22-1-9 (2) and (3),“its use of condemnation was improper, misused and

abused.” So the court set aside, vacated, and annulled the declaration of taking under

OCGA § 32-3-11. The trial court did not err.

We reach this conclusion in reliance on Summerour, supra. There our Supreme

Court held that the purpose of the Act is to “protect property owners from abuse of

the power of eminent domain at allstages of the condemnation process.” 302 Ga. at 652

(2)(emphasissupplied). Part of that protection, the court reasoned, is OCGA § 22-1-

9,whichimposes, as detailed above, mandatory prerequisites to the extent compliance

is practicable. 302 Ga. at 654-656 (2).And the court held that because the condemnor

there “violat[ed] the law,” id. at 659 (4), by failing to comply with OCGA § 22-1-9,

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it “acted outside its authority by condemning [the condemnee’s] property. . .” Id. at

660 (4).

Itfollows that the failure to comply with the mandatory prerequisites of OCGA

§ 22-1-9 to the extent practicable amounts to a violation of law, is outside the

condemnor’s condemnation authority, and is an abuse of the condemnation process.

So setting aside, vacating, and annulling a declaration of taking for a violation of

OCGA § 22-1-9 is an appropriate remedy under OCGA § 32-3-11. Cf. Ga. 400 Indus.

Park v. Dept. of Transp., 274 Ga. App. 153, 158-159 (2) (616 SE2d 903) (2005)

(department’s alleged violations of the Uniform Relocation Assistance and Real

PropertyAcquisition Policies Act, 42 USC § 4601 et seq., and the Georgia Relocation

Assistance and Land Acquisition Policy Act, OCGA § 22-4-1 et seq., did not provide

a basis for setting aside a declaration of taking under OCGA § 32-3-11 because the

Acts merely address polices that should guide agencies when they acquire land).

The department further argues that the superior court erred by dismissing the

condemnation petition itself, since OCGA § 32-3-11 only provides for setting aside,

vacating, or annulling the declaration of taking and transfer of title. We hold that the

department has not shown harmful error.

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The condemnation petition along with the declaration of taking are the

documents the condemnor must file in superior court to initiate a proceeding in rem

to take private property for public road purposes.OCGA§§ 32-3-4 (a), 32-3-5, 32-3-6.

“The petition [filed with the declaration of taking] is not a mere pleading but an

instrument which passes title when filed and just and adequate compensation is paid

into court.” Dorsey, 248 Ga. at 34.

Sowhen the superior court here set aside, vacated, and annulled the declaration

of taking, it effectively invalidated the department’s in rem proceeding. The

department has not shown (or even argued) how it was harmed when the superior

court also dismissed the accompanying petition. “Harm as well as error must be

shown to authorize a reversal by this court.”Carder v.Racine Enterprises, 261 Ga. 142

(1) (401 SE2d 688) (1991) (citation and punctuation omitted).

We observe that the department argues that the Supreme Court erred in

Summerour by holding that OCGA § 22-1-9 createsmandatory, judicially enforceable

requirements. But as the department concedes, we lack authority to entertain this

argument.

4. OCGA § 22-1-9 (2)

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The department argues that the superior court erred in finding that it violated

OCGA § 22-1-9 (2) of the Act. That paragraph provides:

Where the condemning authority seeks to obtain a fee simple interest in

real property, real property shall be appraised before the initiation of

negotiations, and the owner or his or her designated representatives shall be

given an opportunity to accompany the appraiser during his or her inspection

of the property, except that the condemning authority may, by law, rule,

regulation, or ordinance, prescribe a procedure to waive the appraisal in

casesinvolving the acquisition by sale or donation of propertywith a low

fair market value[.]

(Emphasissupplied.) Star Land Holdings asserted, and the trial court found, that the

department did not give it an opportunity to accompany the appraiser during his

inspection of the property. Evidence supports the trial court’s finding.

On February 22, 2022, the appraisersent by certified mail a letter to Star Land

Holdings that stated:

As you are aware, the Georgia Department of Transportation

(“GDOT”) is planning construction of the above referenced highway

project and has requested an appraisal of the real estate at the above

location. This letter has been sent to you to 1 ) explain the appraisal

process and our relationship with the GDOT, 2) encourage you to

provide property information that will aid in our appraisal, and 3)

encourage you to contact and meet with us.

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. . .

You are encouraged to provide any pertinent information relating to your

property, the area, and/or the local real estate market, e.g., sale or lease

contracts,surveys, building plans, location of septic lines, tanks, well(s)

etc., which will help us in completing the appraisal assignment. If you

have any of this information available, please mail it to the address above

and we will copy and return all information to you as soon as possible.

The next day, February 23, 2022, the appraiser inspected the property 

and left his business card with an unidentified employee of the business

operating at the property.

The appraiser’s February 22 letter was not delivered to Star Land Holdings

until February 24, the day after the appraiser had conducted the inspection. This was

the only communication between the appraiser and Star Land Holdings before the

departmentinitiated the condemnation. Star Land Holdings’ principal never saw the

business card, never received any message about the appraiser’s February 23, 2022

inspection of the property or any other inspection, and only spoke with the appraiser

after the department had filed its petition. Nothing in the letter provided for an

inspection of the property at a future date or informed Star Land Holdings that it

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could seek an inspection ofthe property with the appraiser. The letter did not include

the word “inspection” at all.

The evidence supports the superior court’s findings of fact as well as the

conclusion that the department did not strictly comply to the extent practicable with

OCGA § 22-1-9 (2), which requires that “the owner or his or her designated

representatives. . . be given an opportunity to accompany the appraiser during his or

her inspection of the property.”

Because we hold that the superior court did not err in finding that the

department violated OCGA § 22-1-9 (2), which supports the court’s setting aside,

vacating, and annulling the declaration of taking, we do not reach the department’s

argument that the court erred in finding that it also violated OCGA § 22-1-9 (3).

Judgment affirmed. Mercier, C. J., and Rickman, J., concur.

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