CopyCited 30 times | Published | Supreme Court of Georgia | Oct 30, 2017 | 807 S.E.2d 324
...City of Marietta,
338 Ga. App. 259 (788 SE2d921) (2016), the Court of Appeals set aside the condemnation order. The Court of Appeals reasoned that, when the City attempted to negotiate a voluntary sale of the land, it failed to fulfill its obligations under OCGA §
22-1-9, and the Court of Appeals directed that the case be remanded for the superior court to consider whether the failure to comply with Section
22-1-9 amounted to bad faith. We issued a writ of certiorari to review the decision of the Court *646of Appeals, and we now hold that compliance with Section
22-1-9 is an essential prerequisite to the filing of a petition to condemn, that the City failed in this case to fulfill that prerequisite, and that its petition to condemn, therefore, must be dismissed, irrespective of bad faith....
...For three days, the special master heard evidence from both parties regarding their respective valuations of the land. In addition, Summerour argued to the special master that the petition should be dismissed because the City had failed to comply with OCGA §
22-1-9 when it attempted to negotiate a voluntary sale of the land....
...After a hearing, the trial court adopted the special master’s return as its own judgment, and it ordered the condemnation of the land.
Summerour appealed, and the Court of Appeals set aside the condemnation order. In its opinion, the Court of Appeals pointed to OCGA §
22-1-9 (3), which, it said, required the City to provide Summerour with a written summary of the basis for its valuation of his land before, or at least around the time that, negotiations commenced....
...rour with any such summary in a timely manner, and indeed, the City only provided a summary in May 2014, “long after the initiation of negotiations.” Id. (punctuation omitted). Noting that the failure of the City to fulfill its obligations under Section
22-1-9(3) might be indicative of bad faith, the Court of Appeals directed the superior court on remand to reconsider the question of bad faith. See id. at 267 (2). The Court of Appeals declined to decide whether noncompliance with Section
22-1-9 (3) is remediable, irrespective of bad faith. See id. at 268 (3).
*649The City timely filed a petition for a writ of certiorari. We granted that petition, directing the parties to address three questions:
(1) To what extent are the provisions of OCGA §
22-1-9 mandatory requirements?
(2) Did the Court of Appeals err in determining that [the City] failed to comply with OCGA §
22-1-9 (3)?
(3) If the provisions of OCGA §
22-1-9 are mandatory and the Court of Appeals correctly determined that [the City] failed to comply, what is the proper remedy?
We turn now to these questions.
2. To begin, we consider the extent to which the provisions of OCGA §
22-1-9 are mandatory The City contends that Section
22-1-9 sets forth merely suggested guidelines for condemnations, which are not mandatory or, at the least, judicially enforceable. Summerour responds that the provisions of Section
22-1-9 are mandatory except to the extent that compliance with those provisions is impracticable, and he says that the statute imposes meaningful and judicially enforceable limits upon condemnations, even if it leaves some matters to the discretion of the condemning authority....
...ory, and common law alike — that forms the legal background of the statutory provision in question.” Zaldivar v. Prickett,
297 Ga. 589, 591 (1) (774 SE2d 688) (2015) (citation omitted).
Adopted in response to perceived abuses of eminent domain, Section
22-1-9 is a part of the Landowner’s Bill of Rights and Private Property Protection Act of 2006. See Ga. L. 2006, p. 40. See also *650Stephen D. Morrison, Jr., Protecting Private Property: An Analysis of Georgia’s Response to Kelo v. City of New London, 2 J. Marshall L. J. 51, 70 (2009).1 Section
22-1-9 sets forth a number of “policies and practices” by which “all condemnations and potential condemnations shall, to the greatest extent practicable, be guided.” When a government seeks to acquire real property, Section
22-1-9 calls for the government to, among other things, pursue negotiations before resorting to the power of eminent domain, obtain an independent appraisal of the real property to establish its fair market value, offer no less than the value established by the independent appraisal, disclose the basis for that valuation to the owner of the real property, and negotiate in good faith. In full, Section
22-1-9 provides:
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 publ...
...ty, donate such property, any part thereof, any legal interest therein, or any compensation paid to a condemning authority, as such person shall determine.
When a government is unable to acquire property by a voluntary sale negotiated as provided in Section
22-1-9, and it must resort to formal condemnation proceedings, other provisions of the Act set forth additional protections for property owners....
...ss for property owners and in effect give them a ‘bill of rights’ ”). Its protections are meant to, among other things, “assure consistent treatment for property owners [and] promote public confidence in land acquisition practices[.]” OCGA §
22-1-9.3
*653In this case, the heart of the dispute about the meaning of Section
22-1-9 owes to its introductory provision, specifically these words: “[A]ll condemnations and potential condemnations shall, to the greatest extent practicable, be guided by the following policies and practices [.] ” Because the statute provides that a condemning authority is to be “guided” only “to the greatest extent practicable” by the provisions of Section
22-1-9, the City says, those provisions are effectively nothing more than suggestions from which a condemning authority may depart whenever it concludes that another course would be better. This understanding of Section
22-1-9 is confirmed, the City contends, by a contrast with the language of Section
22-1-10, which provides in unequivocal terms that “a governmental condemnor shall...Finally, the City points to cases in which the federal courts have addressed a federal statute from which many provisions of Section
22-1-9 were borrowed, noting that the federal courts have concluded that the federal statute is not mandatory or judicially enforceable.
Summerour, on the other hand, notes that the provisions of Section
22-1-9 are introduced not in terms of a suggestion, but instead by words of command (“shall ......
...He points as well to OCGA §
22-1-8, a statute that predates the Act of 2006 but provides that “[a] 11 persons authorized to take or damage private property for public purposes shall proceed as set forth in this title,” a title that now includes, of course, the provisions of the Act. That Section
22-1-9 offers relief to condemning authorities in instances in which strict compliance is not practicable, Summerour says, makes its provisions no less mandatory in cases in which compliance is practicable. As for the federal case law cited by the City, Summerour argues that it not only fails to support the City’s interpretation of Section
22-1-9, but confirms the interpretation that he urges.
As Summerour argues, the City makes too much, we think, of the introductory provision of Section
22-1-9....
...gregate could not be overcome “simply because of disagreement with [it]”). That the statute leaves *654some flexibility to condemning authorities in cases in which strict compliance would be impracticable does not indicate that the provisions of Section
22-1-9 are not mandatory. Indeed, if the statute were entirely optional, there would be no need for a provision affording such flexibility.
As for the fact that the introductory provision of Section
22-1-9 uses the phrase “shall... be guided,” we concede that this phrasing is less certain than the simple “shall” that appears in the introduction of Section 22-1-10.4 Even so, Section
22-1-9 still uses a word of command to introduce the provisions that follow....
...ole reveals a remedial purpose of protecting property owners against abuse of the power of eminent domain at every stage of the condemnation process and thereby promoting public confidence in the exercise of that power. Within this statutory scheme, Section
22-1-9 serves the important function of addressing abusive practices in negotiations prior to the commencement of formal condemnation proceedings, a stage at which no contemporaneous judicial oversight is available and property owners may be most vulnerable. If Section
22-1-9 were entirely optional, as the City urges, the protective function of the Act as a whole would be impaired significantly....
...551, 553 (2) (690 SE2d 145) (2010) (citation and punctuation omitted).
*655More significantly, the federal cases to which the City points are instructive, but they lead to a conclusion at odds with the interpretation that the City urges. In large part, the provisions of Section
22-1-9 were borrowed from 42 USC § 4651, a part of the Federal Relocation Assistance and Real Property Acquisition Policies Act of 1970. Indeed, the preamble and introductory provision of Section
22-1-9 is virtually identical to that of the federal statute, and many of the provisions that follow essentially mirror those found in the federal statute....
...651] seemingly impose . . . mandatory obligations on the condemning authority, the legislature expressly rejected this approach.” (citing state version of 42 USC § 4602)).
When our General Assembly borrowed from 42 USC § 4651 in its adoption of Section
22-1-9, it did not borrow the disclaimer from 42 USC § 4602....
...593, 594 (2) (690 SE2d 401) (2010) (“The General Assembly is presumed to enact all statutes with full knowledge of the existing condition of the law and with reference to it.”). This important context, as much as anything else, suggests *656that Section
22-1-9 is understood most reasonably as mandatory, not optional. We hold that compliance with the provisions of Section
22-1-9 is required to the extent that compliance is “practicable.”
3. We now consider whether the City complied with Section
22-1-9 (3), which provides:
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....
...Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. The condemning authority shall consider alternative sites suggested by the owner of the property as of the compensation offered[.]
OCGA §
22-1-9 (3) (emphasis supplied)....
...t failed to disclose the appraisal summary to Summerour in a timely manner.5
The City’s main argument is that the clause “[bjefore the initiation of negotiations for fee simple interest for real property” applies only to the first sentence of Section
22-1-9 (3), concerning a “prompt offer,” and that the sentence requiring an appraisal summary — appearing in the middle of that subsection — does not contain an express timing requirement....
...See also Houston v. Lowes of Savannah, Inc.,
235 Ga. 201, 203 (219 SE2d 115) (1975) (“[A] statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.”). Viewed in context with the rest of Section
22-1-9, the provision at issue is best understood to ensure that the landowner receives enough accurate appraisal information to enable a fair negotiation of the property sale....
...nd whether it reflects the true market value of the property. As to timing, the stated statutory goal of promoting fair and expeditious negotiations is best served if the appraisal summary is provided as early in the negotiation process as possible. Section
22-1-9 (3) requires a condemning authority to obtain an appraisal “[b]efore the initiation of negotiations,” and so, it is reasonable to conclude that the government must also provide the appraisal summary at that time, or at least as soo...
...into $95,000 for the property and $46,700 for the store business. While each of these letters contained an offer and purported to be based on an appraisal, none of them constituted a “summary of the basis for” the offer amount as contem-platedby Section
22-1-9 (3)....
...f the City, not the feasibility of disclosing that information to Summerour. It was entirely feasible for the City to provide the *659appraisal summary to Summerour long before it actually did so. Thus, the City failed to comply with the dictates of Section
22-1-9 (3).7
4. We now turn to the issue of what remedy is available to Summerour as a result of the City’s violation of Section
22-1-9 (3). The City contends that, even if it violated subsection (3), no remedy is available to Summerour, except upon a showing of bad faith, because Section
22-1-9 itself does not contain a remedial provision, and “it is well settled that violating statutes and regulations does not automatically give rise to a civil cause of action by an individual claiming to have been injured from a violation thereof.” Govea v. City of Norcross,
271 Ga. App. 36, 41 (1) (608 SE2d 677) (2004). But a “cause of action” is just one type of remedy. It may well be true that a violation of Section
22-1-9 will not, by itself, allow the aggrieved individual to sue the condemning authority....
...bad faith or beyond the powers conferred upon them by law” (emphasis supplied)).
Georgia law has always required governments to comply strictly with condemnation procedures when exercising the power of eminent domain, and the procedures listed in Section
22-1-9 are no exception....
...750 (49 SE 780) (1905) (“Failure to secure the property by contract, by reason of the inability of the parties to agree upon the compensation to be paid therefor, is an essential prerequisite to the condemnation of private property for public uses.”).
Because the City failed to comply with Section
22-1-9 (3), and because there is no evidence in the record that Summerour acquiesced in or waived strict compliance with the statute, the City acted outside its authority by condemning Summerour’s property, and the City’s condemnation petition must be dismissed.8 See Thomas, *661206 Ga....
...Bank of Atlanta,
246 Ga. 424, 424 & n.l (271 SE2d 821) (1980); Scarlett v. Georgia Ports Auth.,
223 Ga. 417, 418 (1) (156 SE2d 77) (1967). Section
22-1-11 reinforces that longstanding rule.
This statement of legislative purpose appears in the codified preamble of Section
22-1-9....
...393, 400 (2) (b) (788 SE2d 872) (2016) (Peterson, J.) (citations omitted; emphasis in original).
We note, however, that a simple “shall” suffices in Section
22-1-10 (“a governmental condemnor shall”) because all of the provisions that follow are directed specifically to the condemning authority. The provisions of Section
22-1-9, on the other hand, are directed to “all condemnations and potential condemnations,” not always the condemning authority in particular. See, e.g., OCGA §
22-1-9 (9) (“A person whose real property is being acquired in accordance with this title may, after the person has been fully informed of his or her right to receive just compensation for such property, donate such property, any part thereof, a...
...l.”).
The City also argues that interpreting subsection (3) to require disclosure of an appraisal summary before condemnation proceedings are commenced would be inconsistent with the Open Records Act, OCGA §
50-18-72 (a) (9), which, at the time Section
22-1-9 was enacted, exempted real estate appraisals from public disclosure until condemnation proceedings have been concluded, i.e., “until such time as the property has been acquired or the proposed transaction has been terminated or abandoned.” Black v....
...Requiring a government buyer to disclose certain information to the seller does not conflict with the government’s option to prevent disclosure of this information pursuant to an Open Records Act request from a third party.
We do not decide today whether a minor, technical, and clearly harmless violation of Section
22-1-9 requires dismissal....
...mining trust and increasing the potential for litigation. Indeed, by the time the City provided the appraisal, mistrust and frustration on both sides were high enough that negotiations effectively ceased within a matter of days. This is exactly what Section
22-1-9 was designed to prevent.
We also note that a failure to comply with Section
22-1-9 — even when that failure requires the dismissal of a condemnation petition — does not permanently foreclose efforts to acquire a particular property. If a condemnor violates some provision of Section
22-1-9 — for example, by failing to provide an appraisal summary at or before the initiation of negotiations and failing to rectify that failure for a long period of time — it might effectively reset its opportunity to comply with the sta...
