June 11, 2017
By Douglas H. Flint
This article was published in the Cherokee Tribune & Ledger News on June 10, 2017: Tribune Ledger News – FROM THE BENCH & BAR.
When the State selects property for a highway project – whether it is a widening project, a new roadway, or a change to an existing roadway – the owner of the property affected by these plans has some very important concerns. What can be done to stop this process? Does a property owner have to accept what the government offers for the property? The project that is being planned will seriously affect private property owners – what can be done about this?
First and foremost, all property owners need to understand that the “negotiator” the State sends out to talk to the property owner about a DOT project is working for the State and does not have the owner’s best interests in mind. The “negotiator’s” mission is to acquire property as cheaply and as quickly as possible. Property owners should understand that there is more money in the DOT’s budget for the acquisition of property and that a portion of the negotiator’s pay is based on how cheaply each parcel of property can be acquired. Do not fall for the tactics of the negotiator.
Second, depending on how early in the road planning process a property owner learns of the State’s plans for his/her property, there are often things that can be done to lessen the negative impact that the DOT’s project will have on the property. It is extremely important to make known to the proper individuals at the DOT as soon as possible in the planning and acquisition process the negative effects and mitigating factors that could be undertaken to improve the situation. Every affected property owner is encouraged to obtain the assistance of a professional to present to the necessary individuals at the DOT the potential impact and modifications that would lessen or eliminate the harm to one’s property.
Third, if it appears inevitable that the State will proceed with the acquisition of the property, know the law. Property is taken by the State for use by the DOT in a proceeding known as a “condemnation.” This process is allowed by the Constitution and Georgia’s laws under the principles of “eminent domain,” a legal doctrine that has existed since the days of kings and queens and royal land grants. In the case of a condemnation by the DOT, a Petition for Condemnation and a Declaration of Taking are filed with the local Superior Court by the State. Most citizens do not know that the Declaration of Taking actually serves as a conveyance or deed to the property that the State wants to take. This instrument may only be reversed by the Superior Court, and only in cases of bad faith, fraud, improper use/abuse/misuse of the State’s condemnation powers, or other similar grounds. The timing of such an attack on the State’s attempted condemnation is critical.
Fourth, if the State is permitted by the Court to proceed with its condemnation, property owners are entitled to several different forms of compensation. Most of the time, the DOT’s negotiator will only offer a single type of compensation: Money for the actual property taken. But property owners need to know that there are many other forms of compensation to which they are entitled. A condemnation almost always affects the rest of a landowner’s property that is not taken by the DOT – maybe this is loss of access, diminished access, irregularity of the remaining lot, inadequacy of the lot for future improvement or future development, damage to other features of the property such as septic systems, wells, water lines, outbuildings, fences, landscaping…the list of possible harm goes on and on. A property owner is entitled to compensation for issues such as these; this form of compensation is called “consequential damages.” Experts need to be brought in to evaluate and quantify these types of damages in order to present a claim to the court for this kind of compensation. Sometimes the amount of consequential damages is determined by how much it will cost to fix the problems created by the DOT and the State’s project. In other situations, the amount of consequential damages is determined by how much less property will be worth as a result of the damages. (Sometimes it is both.) A condemnation also frequently affects a landowner’s operating business. In such cases, the landowner is also entitled to an additional amount representing business loss damages. Finally, if a landowner’s residence is imperiled by virtue of the DOT’s project, that landowner may also be entitled to an additional amount for relocation expenses and replacement housing expenses.
The management of a condemnation case is complex and confusing. Most of the laws pertaining to eminent domain are set up to the benefit of the State and not the private property owner. This seems unfair because a property owner never “asks” for his/her property to be taken. It is a burden that the property owner bears, theoretically for the benefit of all. Unfortunately however, the government is almost never sympathetic to the plight of the private property owner in eminent domain situations. This is why it is extremely important to get legal help when faced with a case against the DOT.
Douglas Flint is a partner at Flint, Connolly & Walker, LLP and focuses on representation of private property owners to protect and defend their property rights. Mr. Flint has handled hundreds of condemnation cases and in excess of 100 cases against the Georgia DOT.