GA Code § 32-3-11 (2021)
2021 Georgia Code|Title 32 - Highways, Bridges, and Ferries|Chapter 3 - Acquisition of Property for Transportation Purposes|Article 1 - General Provisions|§ 32-3-11. Power of Judge to Set Aside, Vacate, and Annul Declaration of Taking; Issuance and Service on Condemnor of Rule Nisi; Hearing

  Upon proper pleadings and evidence, under the applicable rules of law, 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 and 9-11-60. The power of the court in this respect shall not be construed as extending to a determination of questions of necessity, but there shall be a prima-facie presumption that the property or interest condemned is taken for and is necessary to the public use provided for in this article.   The power of the court as described in subsection (a) of this Code section shall be restricted to the following questions:   Fraud or bad faith, as contemplated by Code Sections 23-2-60 and 9-11-60;   The improper use of the powers of this article, such as are not contemplated by this article;   The abuse or misuse of the powers of this article; and   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.     If the condemnee desires to raise such questions as are outlined in subsection (b) of this Code section, the same shall be done by proper pleadings, in the form of a petition addressed to the judge of the superior court having jurisdiction thereof, filed in the same proceedings not later than 30 days subsequent to the date of service upon the condemnee of the declaration of taking. The presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside in the same way and manner as is now provided for setting aside deeds acquired by fraud. Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking, and with the right of appeal by either party, as in other cases.    (Code 1933, § 95A-607, enacted by Ga. L. 1973, p. 947, § 1.)   Law reviews.   - For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).   JUDICIAL DECISIONS   Issue must be raised within 30 days.    - Condemnees waived any challenge to the legality of a condemnor's declaration of taking and any right to urge that the taking is ineffective in order to commence proceedings which are otherwise subject to the five-year dismissal rule under O.C.G.A. § 9-11-41(e) by failing to raise any issue of a defective declaration of taking within the 30-day period mandated under O.C.G.A. § 32-3-11. Parker v. Department of Transp., 184 Ga. App. 882, 363 S.E.2d 156 (1987), cert. denied, 184 Ga. App. 910, 363 S.E.2d 156 (1988).   Subsection (c) hearing requirement.    - Subsection (c) of O.C.G.A. § 32-3-11 requires that a hearing be held, not that a ruling be made, within the 60-day time period. DOT v. City of Atlanta, 259 Ga. 305, 380 S.E.2d 265 (1989).    Georgia legislature did not intend to deprive the trial court of jurisdiction to consider the motion to set aside if the hearing was not held within 60 days because, once the condemnee had fulfilled the obligation to file a timely motion to set aside, O.C.G.A. § 32-3-11(c) contemplates action by the court, not by the condemnee. As such, the trial court did not err when the court refused to dismiss the motion to set aside. Cobb County v. Robertson, 314 Ga. App. 455, 724 S.E.2d 478 (2012).   Transfer set aside.    - When, in a proceeding to condemn property for highway purposes, the evidence was that the Department of Transportation by this taking would create a grave and unusual risk to the safety of the public, the transfer of defendant's property to the department was set aside unless or until the department became bound to implement a plan of construction that would provide adequate protection against ice falling from defendant's broadcasting tower and guy wires under which the property condemned lies. Cox Communications, Inc. v. DOT, 256 Ga. 455, 349 S.E.2d 450 (1986).   Remedy for bad faith finding.    - Although the trial court properly found that Georgia Department of Transportation acted in bad faith in issuing the department's declaration of taking regarding the condemnees' land, the department erred in setting aside, on the condemnees' motion, only the limited access portion of the declarations of taking as the proper remedy was to set aside the declarations of taking in their entirety. DOT v. Bunn, 268 Ga. App. 712, 603 S.E.2d 2 (2004).    Association failed to prove that the proposed road was unsafe; thus, the taking was not an improper use of the Department of Transportation's condemnation powers. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).    Superior court erred by not setting aside a declaration of taking on the basis of a county's bad faith exercise of the county's power of eminent domain, since the condemnees' property was condemned to avoid inconveniencing a lumber company which was the owner of adjacent land. Brannen v. Bulloch County, 193 Ga. App. 151, 387 S.E.2d 395 (1989).   No abuse or misuse of powers found.    - Under the facts of this case, assertions that the condemnation of a permanent construction easement was an abuse and misuse of the Department of Transportation's (DOT's) powers of condemnation were without merit. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).   Compensation limited.    - Department of Transportation would not be required both to provide compensation for a diminution in the value of the amenities package and to construct a barrier so as to eliminate such diminution in value. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).   Recovery of attorney's fees and costs by condemnee.    - Condemnee's claim for attorney's fees and litigation expenses based on the fraud and bad faith that condemnor allegedly exhibited during the condemnor's acquisition of the property in question could only be raised in a proceeding pursuant to O.C.G.A. § 32-3-11 and not in an action seeking to establish just and reasonable compensation only. DOT v. Franco's Pizza & Delicatessen, Inc., 164 Ga. App. 497, 297 S.E.2d 72 (1982).    Action in which landowners sought to vacate a condemnation and requested attorney fees for litigation spawned from the misuse and improper use of the powers of the department of transportation was a "proper case" for the recovery of attorney fees. DOT v. B & G Realty, Inc., 197 Ga. App. 613, 398 S.E.2d 762 (1990).    Requirement that a request for fees under O.C.G.A. § 13-6-11 be made in the complaint is consistent with subsection (c) of O.C.G.A. § 32-3-11. DOT v. Georgia TV Co., 244 Ga. App. 750, 536 S.E.2d 773 (2000).   Error to apportion damages without evidence in support of claim.    - Award for condemned land utilized for a road right-of-way was just and adequate compensation, but the trial court erred in apportioning damages to one plaintiff without receiving evidence in support of the plaintiff's claim for damages. Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001).   Pending valuation issue in trial court results in no appellate court jurisdiction.    - Appellate court had to dismiss the company's appeal of the trial court's denial of the company's motion to set aside, vacate, and annul the county's declaration of taking in a condemnation action as the issue of the property's valuation was still pending before the trial court; accordingly, the appellate court did not have jurisdiction over the appeal because the record did not show that the company followed the procedures for bringing an interlocutory appeal and the trial court had not issued a final judgment from which the company could appeal. TJW Enters. v. Henry County, 261 Ga. App. 547, 583 S.E.2d 144 (2003).   Rule nisi.    - Trial court erred in dismissing the Georgia Department of Transportation's (DOT's) condemnation petition for the department's failure to submit a properly attested affidavit with the department's petition as the condemnees were estopped from challenging the taking of their property because the condemnees withdrew the money deposited by DOT in the court registry. Ga. DOT v. Bowles, 292 Ga. App. 829, 666 S.E.2d 92 (2008).   Application of 60-day requirement.    - Pursuant to the clear language of O.C.G.A. § 32-3-11(c), it is the duty of the court, not the condemnee, to issue a rule nisi and schedule the required hearing. The Supreme Court of Georgia disapproves of the portion of Lopez-Aponte v. City of Columbus, 267 Ga. App. 65 (2004), which places the burden of issuing a rule nisi and obtaining a timely hearing upon the condemnee. Adkins v. Cobb County, 291 Ga. 521, 731 S.E.2d 665 (2012).   Petition to set aside properly denied.    - Trial court properly denied a condemnee's petition to set aside a declaration of taking filed by a county under O.C.G.A. § 32-3-1 because the road at issue was open for use by the general public despite only a few private citizens most likely using the road, but so long as the general public was not excluded, the power of eminent domain could be exercised. Emery v. Chattooga County, 325 Ga. App. 587, 753 S.E.2d 149 (2014).   Petition to set aside improperly granted.    - Final order and judgment was improperly set aside based on a finding that the property owner was disabled and that, as a result of the owner's status, service of process was improper because the owner's notice of appeal was untimely as the notice was filed approximately four months after the petition for condemnation and declaration; in the notice of appeal, the owner failed to plead defective service; the owner's motion raising the issue of improper service was filed approximately five months after the notice of appeal; the owner's motion should have been made pursuant to a motion to set aside under the condemnation act; and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., could not be used to extend specific periods of time fixed in special statutory proceedings. DOT v. Szenczi, 354 Ga. App. 855, 841 S.E.2d 228 (2020), cert. denied, No. S20C1149, 2020 Ga. LEXIS 791 (Ga. 2020).    Cited in Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976); Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981); Texaco, Inc. v. DOT, 165 Ga. App. 338, 301 S.E.2d 59 (1983); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985); Cox Communications, Inc. v. DOT, 178 Ga. App. 499, 343 S.E.2d 765 (1986); DOT v. Hudson, 179 Ga. App. 842, 348 S.E.2d 106 (1986); Chamlee v. DOT, 189 Ga. App. 334, 375 S.E.2d 626 (1988); DOT v. Rasmussen, 244 Ga. App. 245, 534 S.E.2d 573 (2000); Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001); City of Atlanta v. Yusen Air & Sea Serv. Holdings Inc., 263 Ga. App. 82, 587 S.E.2d 230 (2003); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).   RESEARCH REFERENCES   ALR.    - Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.