EVANS et al.
DEPARTMENT OF TRANSPORTATION
Cert. applied for.
Condemnation. Wilkinson Superior Court. Before Judge Wingfield.
Boone, Scott & Boone, Joseph A. Boone, for appellants.
Samuel S. Olens, Attorney General, Paul H. Dunbar III, Assistant Attorney General, Avant & Evans, Irwin B. Evans, for appellee.
BARNES, Presiding Judge. Boggs and Branch, JJ., concur.
Barnes, Presiding Judge.
This case involves a dispute over the value of undeveloped timberland containing a subterranean mineral deposit that was condemned by the Georgia Department of Transportation (" DOT" ). Following a jury trial, the jury awarded $50,000 to the condemnees, Dr. Frank O. Evans, Jr. and Robert Earl Evans, which was far below what they had sought as compensation for the condemned property. On appeal, the condemnees contend that the trial court erred by denying their motion in limine seeking to exclude any evidence or argument relating to the zoning of the condemned property; by allowing opinion testimony from the DOT's expert real estate appraisers regarding the reasonable probability of a change in zoning to permit mining on the property; and by giving allegedly inconsistent, erroneous charges to the jury relating to the issue of zoning and the valuation of land containing mineral deposits. For the reasons discussed below, we discern no error by the trial court and affirm.
The record reflects that on February 20, 2009, the DOT filed a petition for condemnation and acquired a 12.087-acre portion of a larger tract of undeveloped timberland as part of a road construction project. The condemned property contained a subterranean deposit of kaolin, a mineral used in paint and other products. A kaolin mine that originally opened in the 1950s was located to the north of the condemned property. To the south of the condemned property was a residential neighborhood.
The condemned property was located within the city limits of Gordon, Georgia. In 1994, the City of Gordon enacted a zoning ordinance, and the condemned property was zoned agricultural. Under the zoning ordinance, mining was not permitted in an area zoned agricultural absent a special exception approved by the Gordon [331 Ga.App. 314] City Council. No special exception was ever approved for mining kaolin on the condemned property.
The DOT and the condemnees failed to reach agreement on the value of the condemned property. The DOT asserted that the highest and best use of the property was its present agricultural use as timberland, and that the kaolin deposit did not enhance the value of the property in light of the City of Gordon's zoning restrictions on mining and the unlikelihood of a special exception being approved. In contrast, the condemnees asserted that the value of the condemned property was significantly enhanced by the kaolin deposit and was not affected by zoning considerations.
A jury trial ensued on the issue of valuation of the condemned property. Before the presentation of evidence, the condemnees moved in limine to exclude any evidence or argument related to zoning considerations, contending that zoning was irrelevant in condemnation cases involving mineral deposits because the minerals have intrinsic value as part of the land. The trial court denied the motion.
The DOT called two real estate appraisers as experts to testify on the issue of valuation, both of whom opined that the highest and best use of the condemned property was its current agricultural use as timberland. In reaching this conclusion, both appraisers discounted the presence of the kaolin deposit on the condemned property because it could not be mined under the City of Gordon's current zoning ordinance, which prohibited mining on property zoned agricultural. They further opined that based on their investigation into the matter, they did not believe that the Gordon City Council would grant a special exception to permit mining on the condemned ...