O.C.G.A.

O.C.G.A. § 22-2-102.1 (2019)

Petitioning superior court for judgment in rem

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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In addition to the requirements set forth in Code Section 22-1-10, whenever it shall be necessary for such condemning body to take or damage private property, or any interest or easement therein, in pursuance of any law so authorizing, for any public use, and where, by reason of the necessities of the public needs, of which the condemning body shall be the exclusive judge, and it shall be desirable for these reasons to have a quick and effective adjudication of the just and adequate compensation to be paid the owner or owners of such property before taking the same, and it shall be desirable to have a judicial ascertainment and judicial supervision of all questions and proceedings connected with the matter, such condemning body may, through any authorized representative, petition the superior court of the county having jurisdiction, for a judgment in rem against said property, or any easement or other interest in said property, condemning the same in fee simple to the use of the petitioner upon payment of just and adequate compensation therefor.

History

Ga. L. 1957, p. 387, § 3; Code 1981, § 22-2-102.1, enacted by Ga. L. 1983, p. 3, § 16.1; Ga. L. 2006, p. 39, § 9/HB 1313.

Annotations

Editor’s notes. - The provisions of this Code section were previously enacted in substantially similar form by Ga. L. 1957, p. 387, § 3. However, those provisions were not enacted as part of the original Code by the Code enactment Act (Ga. L. 1981, Ex. Sess., p. 8). Ga. L. 2006, p. 39, § 1/HB 1313, not codified by the General Assembly, provides that: ‘‘This Act shall be known and may be cited as ‘The Landowner’s Bill of Rights and Private Property Protection Act.’ ’’

Ga. L. 2006, p. 39, § 25/HB 1313, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006. Law reviews. - For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For note, ‘‘Standards of Judicial Review of Condemnation Proceedings Under Georgia’s Special Master’s Act,’’ see 20 Ga. St. B.J. 82 (1983).

JUDICIAL DECISIONS Authority of special master. - The provision in O.C.G.A. § 22-2-102.1 that

‘‘the condemning body shall be the exclusive judge’’ of the public need does not give

the condemning authority an absolute right of taking based upon its own determination of necessity. The special master has the authority to hear and determine any legal objection to the taking. Central of Ga. Elec. Membership Corp. v. Mills, 196 Ga. App. 882, 397 S.E.2d 137 (1990). Application of presumption limited. - The presumption that the right to condemn for a valid public purpose, absent a finding of its bad faith, applies only to a finding that a condemnation is necessary under O.C.G.A. § 22-2-102.1. City of Stockbridge v. Meeks, 283 Ga. App. 343, 641 S.E.2d 584 (2007). Condemnor is the exclusive judge of necessity in condemnation for public purposes. - Under Georgia law, the condemnor is the exclusive judge of necessity in the condemnation of private property for public purposes. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287, 609 S.E.2d 211 (2005). Sufficient compliance with O.C.G.A. § 22-1-6 shown. - Trial court did not err in denying the property owners’ motion to dismiss the condemnation petition, nor in overruling the owners’ exception to the special master’s award, because the evi-

dence at the special master hearing showed that the telecommunications condemnor made an effort to agree on a purchase price for the property, but that those negotiations ultimately failed, which was sufficient to show that the condemnor could not procure the property by contract within the meaning of O.C.G.A. § 22-1-6. White v. Ringgold Tel. Co., 334 Ga. App. 325, 779 S.E.2d 378 (2015), cert. denied, No. S16C0404, 2016 Ga. LEXIS 148 (Ga. 2016). Ordinance infringing on utility’s eminent domain power. - Forsyth County, Ga., Unified Development Code §§ 21-6.1 and 21-6.5, were defective because they required a utility to successfully comply with the ordinance’s procedures, and authorized the county to deny ‘‘any or all’’ portions of an application; as such, they were unconstitutional infringements on the utility’s legislativelydelegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664, 632 S.E.2d 101 (2006). Cited in Banks v. Georgia Power Co., 220 Ga. App. 84, 469 S.E.2d 218 (1996); Simmons v. Webster County, 225 Ga. App. 830, 485 S.E.2d 501 (1997).

Notes of Decisions

Cited in 9 cases, 1990–2015 · leading case: Rabun Cnty. v. Georgia Transmission Corp., 575 S.E.2d 474 (Ga. 2003).

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Rabun Cnty. v. Georgia Transmission Corp., 575 S.E.2d 474 (Ga. 2003). · cites it 4× “OCGA § 22-2-102.1 provides that the condemning body, not the governing authority, is to be the “exclusive judge” of the *87 “necessities of the public needs.”

Cent. of Georgia Elec. Membership Corp. v. Mills, 397 S.E.2d 137 (Ga. Ct. App. 1990). · cites it 4× “Held: The EMC contends that without the condemnation there was no way for it to obtain electric service to Robert Leverette’s residence, and that the trial court erred in substituting its judgment for that of the governing board of the EMC in contravention of OCGA § 22-2-102.1,…”

Simmons v. Webster Cnty., 485 S.E.2d 501 (Ga. Ct. App. 1997). · cites it 4× “” OCGA § 22-2-102.1. As discussed in Sims, supra, the law contemplates that the court will hear and determine non-value issues raised by way of timely exceptions.”

Mosteller Mill, Ltd. v. Georgia Power Co., 609 S.E.2d 211 (Ga. Ct. App. 2005). · cites it 2× “…(Fla. App. 1962). 6 See Millar Elevator Svc. Co. v. O’Shields, 222 Ga. App. 456, 457 (1) ( 475 SE2d 188 ) (1996). 7 OCGA §22-2-102.1.”

Forsyth Cnty. v. Georgia Transmission Corp., 632 S.E.2d 101 (Ga. 2006). · cites it 4× “OCGA § 22-2-102.1. Under the Forsyth County ordinance, however, GTC would be required to prove to the county the suitability of its chosen corridor.”

Banks v. Georgia Power Co., 469 S.E.2d 218 (Ga. Ct. App. 1996). · cites it 4× “In her third through ninth enumerations, Banks challenges the constitutionality of OCGA §§ 22-2-102.1 and 22-3-20 on due process, equal protection, and other grounds.”

City of Stockbridge v. Meeks, 641 S.E.2d 584 (Ga. Ct. App. 2007). · cites it 2× “2 (1) and (5), and that the Meeks properly raised the issue of such failure to the special master, the dismissal of the condemnation petition was not error for any failure to preserve the issue of specific use for review.”

Orr v. Georgia Transmission Corp., 633 S.E.2d 564 (Ga. Ct. App. 2006). · cites it 2× “OCGA §§ 22-2-102.1; 22-2-110 (b); 22-2-111.”

White Et Al. v. The Ringgold Tel. Co., 779 S.E.2d 378 (Ga. Ct. App. 2015). · cites it 4× “” OCGA § 22-2-102.1. White and Woodland Manor show no authority under Title 22, or otherwise, which would authorize the delay or abatement of the condemnation proceedings.”

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.