July 15, 2020
By Michael P. Bain
You are probably aware that, whether you want to sell or not, the government or a public utility can take your property for a public use in Georgia. Sometimes, a condemning authority seeks large tracts of land to build parks, schools, highways, or public buildings. When your property is taken for a road project, however, the County, City, or State DOT often does not seize all of your property, but only some of it. Usually, the condemning authority seeks only a strip of your property along a road for its project. Partial acquisitions are often the source of tremendous heartache and headache for the landowner who is approached by a negotiator for a government that is looking to build a road over his or her property. While you may know how much your house or building is worth as a whole, you are less likely to know the value of a small piece of your land, or more importantly, the damages that the rest of your property will sustain when only a portion of your property is taken for a public project.
Condemning authorities send out negotiators to speak with you when they plan to take your property. Those negotiators usually come armed with one plan showing the quantity and location of the land they plan to take, along with the value the condemning authority has placed upon your property. The value of what is being taken is important; however, a condemning authority also has the obligation to pay you for damages that a project will cause to your remaining property it does not take. Nevertheless, often a government’s appraiser will not voluntarily acknowledge the damages to the rest of your property caused by a project (even when they seem apparent) unless you force the issue. So how can you determine whether the rest of your land is damaged? Believe it or not, the condemning authority’s negotiator often cannot or will not produce the documents to enable you to answer that question.
The right-of-way plan that a negotiator usually gives a landowner is only a two-dimensional depiction of your land that is needed for a project. Sometimes, you cannot determine whether your property will be damaged until you see the project in 3D. Sometimes the right-of-way plan does not even show what will be built on your property. While the negotiator may not come with all of the plans in hand when they meet with you, there are other plans that you can request from the negotiator that are often more informative than just a right-of-way plan. For instance, your property may be level with the road before a project is begun, but much higher with a steeply sloping driveway and road frontage after a project. This can certainly reduce the value of your property; yet, you may not appreciate the impact unless you obtain a copy of the cross sections and driveway profiles for the project. In another instance, you may have free access to the road from all parts of your land before a project, but if the project calls for placing a guardrail across most of your property you will lose that access. Access may affect the value of your remaining property although you may not discover the guardrail without obtaining construction plans showing what is to be built on the property.
In general, I always recommend to clients that they request from the negotiator copies of right-of-way plans, construction plans, striping and marking plans, utility plans, cross sections, driveway profiles, and wall profiles. While it may be difficult for a property owner who is not accustomed to dealing with condemnation cases to understand these documents, it is important to obtain them so that you and your advisor can review them and understand the scope of the project and its impact on your property. Additional information may ultimately be needed; however, the plans listed above should provide a good indication of how your property may be impacted by a project. If you have trouble obtaining or understanding those plans, the attorneys at Flint, Connolly & Walker, LLP are always ready and willing to assist you.
Michael Bain is an attorney at Flint, Connolly & Walker, LLP and assists individuals and businesses in a range of legal matters affecting business, insurance, and real estate. He graduated from the University of Georgia School of Law and has practiced in metro Atlanta for his entire career.