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Morgan County v. Gay

Court of Appeals of Georgia, Third Division

September 23, 2019

MORGAN COUNTY, GEORGIA
v.
GAY. GAY
v.
MORGAN COUNTY, GEORGIA. MORGAN COUNTY, GEORGIA
v.
GAY. GAY
v.
MORGAN COUNTY, GEORGIA.

          DILLARD, P. J., GOBEIL and HODGES, JJ.

          Hodges, Judge.

         These consolidated appeals arise from Morgan County, Georgia's attempt to obtain a piece of property from Jimmy Gay to serve as a buffer between a County-owned closed landfill and the remainder of Gay's property due to the migration of methane from the landfill. The County petitioned to condemn the buffer property, and Gay moved to dismiss the petition. In this condemnation action, the County sought to exclude evidence of damages to the remainder of Gay's property caused by the stigma of the methane contamination on the buffer property, but the special master permitted admission of such evidence. The special master denied Gay's motion to dismiss and awarded him compensation for the buffer property as well as consequential damages. Both parties filed exceptions to the special master's legal conclusions and appealed the special master's award, seeking a jury trial as to Gay's fair and just compensation. The superior court affirmed the special master's denial of Gay's motion to dismiss the condemnation petition and found that the County's complaints about the methane contamination evidence admitted before the special master were moot in light of the upcoming de novo jury trial.

         In the meantime, Gay filed a separate complaint for inverse condemnation concerning the damage the methane contamination was causing to the portion of his property the County was not attempting to obtain. Through this action, Gay sought injunctive relief to compel the County to abate the nuisance from the landfill and to enjoin the condemnation of the buffer property pending the outcome of the inverse condemnation proceeding. Conversely, the County sought to dismiss or stay the inverse condemnation proceeding pending the outcome of the condemnation proceeding. The superior court denied Gay's motions for injunctive relief, denied the County's motion to dismiss the inverse condemnation action, and found the County's motion to stay the proceedings moot.

         Both parties obtained certificates of immediate review in both the condemnation and inverse condemnation cases, and this Court granted all four interlocutory applications. In Case No. A19A1506, Gay appeals the superior court's affirmance of the special master's denial of his motion to dismiss the condemnation petition. In Case No. A19A1190, the County appeals (1) the special master's admission of evidence concerning the damage to the value of the remaining property due to methane migration onto the buffer property; (2) the denial of its motion for partial directed verdict; and (3) the superior court's determination that these issues are moot in light of the request for a jury trial. In Case No. A19A1626, the County appeals the superior court's denial of its motion to dismiss or stay the inverse condemnation proceeding. Lastly, in Case No. A19A1627, Gay appeals the superior court's denial of its motion for preliminary injunction seeking to compel the County to abate the nuisance and to enjoin the condemnation proceeding.

         For the reasons that follow, we affirm the superior court's denial of Gay's motion to dismiss the condemnation proceeding in Case No. A19A1506. In Case No. A19A1190, we affirm the superior court's finding that the County's exception to the denial of its motion in limine is moot and find that, given that no proper motion for partial directed verdict was filed, the remaining enumeration provides nothing for review. Next, we affirm the superior court's order denying the County's motion to dismiss or stay Gay's inverse condemnation action in Case No. A19A1626. Finally, in Case No. A19A1627, we affirm the superior court's denial of Gay's motion to enjoin the condemnation proceedings, reverse the superior court's finding that Gay's motion to enjoin the County from continuing to contaminate his property is moot, and remand that motion for further proceedings consistent with this opinion.

         In condemnation proceedings, we will affirm the superior court's factual findings if there is any evidence to support them. City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 S.E.2d 343) (1979). As to questions of law, however, we owe no deference to the superior court and apply the plain legal error standard of review. Georgia Transmission Corp. v. Worley, 312 Ga.App. 855, 856 (720 S.E.2d 305) (2011).

         So viewed, the evidence shows that in the early 1990's the County closed a landfill it owned. It was required to monitor pollution emanating from the landfill and, in 1994, after determining methane was contaminating neighboring property, it obtained a buffer of land next to the landfill. In 2004, Gay acquired property abutting both the first buffer property and the landfill for $1.3 million with the intention of developing it in to a residential subdivision called Wellington Estates. Gay spent over $1.5 million developing Phase 1 of Wellington Estates and had conversations with a builder to purchase lots, but the economic recession intervened. Phase 2 of Wellington Estates has not yet been developed.

         In 2010, the County detected methane in a monitoring well on the boundary of the landfill's property, and the Georgia Environmental Protection Division ("EPD") required the County to implement corrective measures to mitigate off-site methane migration. As part of that process, the County received permission from Gay to install temporary methane monitoring wells on the edge of his property. Although the County submitted a corrective action plan in 2011 to the EPD which recommended obtaining additional buffer land from Gay, no timely action was taken. In 2015, methane was detected at the border of Gay's property.

         On January 21, 2016, the EPD issued a notice of deficiency to the County and indicated that the County's 2011 remediation plan should be implemented within 60 days. In response, in March of 2016, the County contacted Gay about purchasing additional buffer land from him. In April 2016, the County retained a hydro-geologist, who opined that acquiring the additional buffer zone from Gay would eliminate any reasonable probability of methane migrating onto land owned by Gay.

         By May 2016, the County offered to purchase the buffer property from Gay at a price based on the tax-assessed value of the land. In September 2016, Gay and the County exchanged offers for the purchase of the buffer property, but no agreement was reached. Discussions continued into November 2016, at which time Gay began inquiring about the impact the purchase would have on the lots in Wellington Estates. In November 2016, discussions concerning the voluntary purchase of the buffer property ceased between the County and Gay.

         In May 2017, the County hired an appraiser to appraise the buffer property for the first time. The County's appraiser met with Gay at the property on June 12, 2017, but part of the property needed to be bush-hogged to be accessible, so the appraiser informed Gay he would be back that weekend. Gay left the gate unlocked for the County's appraiser, who returned to the property on June 18, 2017 without Gay. The County received a copy of the appraisal on June 20, 2017 and forwarded it to Gay on June 29, 2017. The County's appraiser was unaware of any methane contamination on the buffer property, and his appraisal did not take in to account any diminution in value caused by methane contamination. The County's appraiser valued the buffer property at $30, 000.

         Gay then retained his own expert and appraiser. Gay's environmental scientist opined that acquisition of the buffer property is an inadequate solution because there is a high probability that methane will continue to migrate past the buffer property on to Gay's remaining property. This expert further opined that, although methane migration could be abated with the installation of a "trench system, " nothing the County could do would cure the methane issues on Gay's property.[1] Unlike the County's appraiser, Gay's appraiser did not look solely at the buffer property. Specifically, Gay's appraiser valued the buffer property at $49, 056, valued the remainder of Gay's property at $120, 000, and stated that Gay suffered $1, 786, 929 in "consequential damages" based on his assumption that methane could migrate on to the remainder of Gay's property.

         Case Nos. A19A1506 and A19A1190

         When the parties were unable to voluntarily come to an agreement for the County to purchase the buffer property from Gay, the County petitioned to condemn the property. A special master panel was convened, with each party selecting an assessor for the panel pursuant to OCGA § 22-2-108.1. Gay moved to dismiss the petition, and the County filed various motions with the goal of excluding from consideration in the condemnation proceeding the effect the stigma of methane migration on the buffer would have on the remainder of Gay's property. The special master denied the requests of both parties, and both parties filed exceptions objecting to these rulings.[2] Following a trial before the special master panel, Gay was awarded $49, 000 for the value of the buffer property and $211, 000 in "consequential damages." Both parties appealed the award to the superior court pursuant to OCGA § 22-2-112.[3]

         After considering the exceptions filed by the parties, the superior court affirmed the special master's denial of Gay's motion to dismiss the petition and found the County's complaints about the evidence presented to the special master to be moot in light of the upcoming de novo jury trial. This Court granted the interlocutory applications of both parties, and both parties timely appealed the superior court's rulings in the condemnation proceeding.

         1. In Appeal No. A19A1506, Gay contends the superior court erred in failing to dismiss the County's condemnation petition because the condemnation does not fulfil a public necessity, the County acted in bad faith, and the County failed to comply with OCGA § 22-1-9. He also contends the superior court's error in refusing to dismiss the County's petition resulted in its improper failure to award attorney fees pursuant to OCGA § 22-1-12. We disagree.

         Any county or municipality of the State of Georgia may exercise the power of eminent domain to condemn private property for a public purpose. OCGA § 22-2-100 (2). However, private property may not be taken for a public purpose unless just and adequate compensation is paid to the property owner. Ga. Const. of 1983, Art. I, Sec. 3, Par. I (a). "The burden to show that a condemnation is for an authorized public purpose lies with the condemnor." (Citation omitted.) Brunswick Landing, LLC v. Glynn County, 301 Ga.App. 288, 289 (1) (a) (687 S.E.2d 271) (2009).

         (a) Public Necessity and Absence of Good Faith[4]

         The County may only condemn Gay's land for a public use, which has been defined in part as "[t]he possession, occupation, or use of the land by the general public or by state or local governmental entities[.]" OCGA § 22-1-1 (9) (a) (i). "A court should not interfere with an exercise of the discretion of a condemning authority determining the necessity of taking land for public purposes and selecting the location and amount of land reasonably necessary unless the condemning authority abused its discretion or exceeded its authority." (Citation omitted.) Brannen v. Bulloch County, 193 Ga.App. 151, 153 (387 S.E.2d 395) (1989); see also Concept Capital Corp. v. Dekalb County, 255 Ga. 452, 453 (2) (339 S.E.2d 583) (1986) ("The question of whether there is a necessity for taking the fee is a matter of legislative discretion, which will not be interfered with or controlled unless the authority acts in bad faith or beyond the powers conferred upon it by law. In the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.") (citation and punctuation omitted).

[I]n the context of abuse by a public officer of his official discretion, the term "bad faith" has been sharply distinguished from negligence or bad judgment and has been equated with conscious wrongdoing motivated by improper interest or by ill will[.] . . . The term "bad faith" has been used side by side with the word "fraud" in describing those exercises of official discretion to condemn lands with which the courts will interfere.

(Citations and punctuation omitted.) Concept Capital Corp., supra, 255 Ga. at 453 (3); see also Brannen, supra, 193 Ga.App. at 154 ("This principle has often been stated in terms of 'bad faith, ' which has been sharply distinguished from negligence or bad judgment, in that it contemplates a state of mind affirmatively operating with a furtive design or some motive of interest or ill will, and has been equated with conscious wrongdoing motivated by improper interest or by ill will.") (citations and punctuation omitted).

         Gay contends that, because acquisition of the buffer will not serve a public necessity, the County is exceeding the powers granted to it under the law by attempting to condemn his property. He also contends that the County has acted in bad faith. We will review these each in turn.

         (i) Public Necessity

         It is undisputed that the County's stated purpose for obtaining the buffer zone is to acquire all land where methane may reasonably migrate from the closed landfill. Gay contends that, because the buffer zone will not achieve this goal, the condemnation will serve no public purpose and the County has exceeded its legal authority. In making this assertion, Gay relies on the testimony of his expert, but ignores the testimony of the County's expert that acquiring the buffer zone will eliminate any reasonable probability that methane will migrate onto property owned by Gay. We find the record sufficient to sustain the County's decision to condemn the buffer zone as its method of isolating methane-contaminated land to County-owned property. We acknowledge that Gay has proposed an alternate solution which he contends may be more effective, but "[w]hile a court may disagree with the methods the condemning authority may choose to accomplish its objectives, it is not authorized to substitute its judgment for that of the authority." (Citation omitted.) Concept Capital Corp., supra, 255 Ga. at 453 (2).[5]

         (ii) Bad Faith

         Gay contends the County acted in bad faith during its negotiations with him because it did not inform him that it sought to obtain his property due to issues with methane migration. We first note that, as early as 2010, Gay was aware that the County was monitoring for methane on his property, so it cannot be said that he was wholly unaware of the County's concern for methane migration. Once negotiations to purchase the property began, in an email to Gay, the County referred to the land it was attempting to acquire as a "buffer expansion." Accordingly, while Gay may have been unaware of the extent of the methane migration, the issue was hardly a secret.

         Moreover, as indicated above, the burden for establishing bad faith which will cause courts to interfere with the discretion of a condemning authority is a high one – "conscious wrongdoing motivated by improper interest or by ill will" or "fraud[.]" Concept Capital Corp., supra, 255 Ga. at 453 (3). Here, we do not find the County's failure to disclose that methane had migrated to the border with Gay's property to be tantamount to fraud. At no time did the County discount the price it was offering Gay for the buffer property due to his ignorance of the status of methane migration. Indeed, even if Gay had voluntarily accepted the County's offer to purchase the buffer without knowledge of methane contamination in the buffer, that would not have precluded him from pursuing an inverse condemnation action for any damages caused to his remaining property. See Shealy v. Unified Government of Athens-Clarke County, 244 Ga.App. 853, 856 (537 S.E.2d 105) (2000) (recognizing that a claim for inverse condemnation is separate from a county's condemnation as it provides damages which are a substitute for the damages recoverable in a condemnation). In other words, failing to disclose the extent of methane migration provided no financial benefit for the County.

         For all of these reasons, we find the record supports that the condemnation of the buffer property will serve a public purpose and we do not find that the County acted in bad faith.[6] Thus, these contentions will not cause us to interfere with the County's discretion to condemn the buffer property.

         (b) Landowner Bill of Rights

         Gay also contends that the superior court erred in failing to dismiss the County's condemnation proceeding because the County failed to comply with OCGA § 22-1-9. "Adopted in response to perceived abuses of eminent domain, [OCGA § ] 22-1-9 is a part of the Landowner's Bill of Rights and Private Property Protection Act of 2006." City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807 S.E.2d 324) (2017). This statute provides, in relevant part,

In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for property owners, and to promote public confidence in land acquisition practices, all condemnations and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices:
(1) The condemning authority shall make every reasonable effort to acquire expeditiously real property by negotiation;
(2)Where the condemning authority seeks to obtain a fee simple interest in real property, real property shall be appraised before the initiation of negotiations, and the owner or his or her designated representatives shall be given an opportunity to accompany the appraiser during his or her inspection of the property, except that the condemning authority may, by law, rule, regulation, or ordinance, prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value;
(3) Before the initiation of negotiations for fee simple interest for real property, the condemning authority shall establish an amount which it believes to be just compensation and shall make a prompt offer to acquire the property for the full amount so established. In no event shall such amount be less than the condemning authority's independent appraisal of the fair market value of such property. The condemning authority shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount it established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real ...

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