Last month the Georgia Court of Appeals ruled in favor of FCW’s client, a Canton family who faced the condemnation of their property by the City and County governments to force the creation of a conservation area. The Court of Appeals reversed the trial court and found that FCW’s client was entitled to damages PLUS attorney fees.
On April 12, 2012 the government filed a motion to dismiss the petition for condemnation after deciding that the condemnation of the property “was no longer necessary for public use”, and asked the trial court to reimburse the funds it had previously deposited to pay FCW’s client for the taking of its property. Our client filed a motion in opposition to the government’s motion, arguing that they were entitled to additional compensation for the temporary taking of their property. FCW also sought attorney fees and costs of litigation.
As stated in the Takings Clause of the Fifth Amendment to the U.S. Constitution, private property “shall not be taken for public use, without just compensation.” The Supreme Court has determined many times that temporary takings such as what happened to FCW’s client are also deserving of compensation, so although the government tried to dismiss its condemnation of the property of our client, our client is still entitled to compensation for the time that the property was taken by the government. As noted in the opinion, “private property rights are among ‘the most basic of human rights,’ and… [t]hus, governmental action that works a taking of property ‘necessarily implicates the constitutional obligation to pay just compensation,’” even when the taking is temporary.
The City and County had argued that our client did not require any compensation beyond attorney fees and costs of litigation based on the 2006 Landowner’s Bill of Rights and Private Property Act and Georgia Code § 22-1-12. The Court of Appeals, however, sided with FCW’s argument, finding that OCGA § 22-1-12 “was enacted as part of the 2006 ‘Landowner’s Bill of Rights and Private Property Protection Act,’ which expanded property owners’ protections against condemnation rather than limiting those safeguards.” Therefore, the Court ruled that OCGA § 22-1-12 functions to “allocate the costs imposed on the condemnor to the condemnees if the condemnor abandons a condemnation action at any point,” and “unlike most plaintiffs, ‘condemnors that abandon their actions must . . . pay the property owner’s reasonable costs and expenses actually incurred because of the condemnation proceedings, including attorney, appraisal, and engineering fees.’”
The decision is Court of Appeals Case No. A15A1280; decided: November 13, 2015.
The Court of Appeals decision was a complete victory for FCW and our client – the Court ruled that our client was entitled to both attorney fees/costs of litigation and compensation for the temporary taking of their property.
Douglas H. Flint is senior partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents and assists both businesses and individuals with their legal matters.