Issue must be raised within 30 days.

- Condemnees waived any challenge to the legality of a condemnor's declaration of taking and any right to urge that the taking is ineffective in order to commence proceedings which are otherwise subject to the five-year dismissal rule under O.C.G.A. § 9-11-41(e) by failing to raise any issue of a defective declaration of taking within the 30-day period mandated under O.C.G.A. § 32-3-11. Parker v. Department of Transp., 184 Ga. App. 882, 363 S.E.2d 156 (1987), cert. denied, 184 Ga. App. 910, 363 S.E.2d 156 (1988).

Subsection (c) hearing requirement.

- Subsection (c) of O.C.G.A. § 32-3-11 requires that a hearing be held, not that a ruling be made, within the 60-day time period. DOT v. City of Atlanta, 259 Ga. 305, 380 S.E.2d 265 (1989).

Georgia legislature did not intend to deprive the trial court of jurisdiction to consider the motion to set aside if the hearing was not held within 60 days because, once the condemnee had fulfilled the obligation to file a timely motion to set aside, O.C.G.A. § 32-3-11(c) contemplates action by the court, not by the condemnee. As such, the trial court did not err when the court refused to dismiss the motion to set aside. Cobb County v. Robertson, 314 Ga. App. 455, 724 S.E.2d 478 (2012).

Transfer set aside.

- When, in a proceeding to condemn property for highway purposes, the evidence was that the Department of Transportation by this taking would create a grave and unusual risk to the safety of the public, the transfer of defendant's property to the department was set aside unless or until the department became bound to implement a plan of construction that would provide adequate protection against ice falling from defendant's broadcasting tower and guy wires under which the property condemned lies. Cox Communications, Inc. v. DOT, 256 Ga. 455, 349 S.E.2d 450 (1986).

Remedy for bad faith finding.

- Although the trial court properly found that Georgia Department of Transportation acted in bad faith in issuing the department's declaration of taking regarding the condemnees' land, the department erred in setting aside, on the condemnees' motion, only the limited access portion of the declarations of taking as the proper remedy was to set aside the declarations of taking in their entirety. DOT v. Bunn, 268 Ga. App. 712, 603 S.E.2d 2 (2004).

Association failed to prove that the proposed road was unsafe; thus, the taking was not an improper use of the Department of Transportation's condemnation powers. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).

Superior court erred by not setting aside a declaration of taking on the basis of a county's bad faith exercise of the county's power of eminent domain, since the condemnees' property was condemned to avoid inconveniencing a lumber company which was the owner of adjacent land. Brannen v. Bulloch County, 193 Ga. App. 151, 387 S.E.2d 395 (1989).

No abuse or misuse of powers found.

- Under the facts of this case, assertions that the condemnation of a permanent construction easement was an abuse and misuse of the Department of Transportation's (DOT's) powers of condemnation were without merit. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).

Compensation limited.

- Department of Transportation would not be required both to provide compensation for a diminution in the value of the amenities package and to construct a barrier so as to eliminate such diminution in value. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).

Recovery of attorney's fees and costs by condemnee.

- Condemnee's claim for attorney's fees and litigation expenses based on the fraud and bad faith that condemnor allegedly exhibited during the condemnor's acquisition of the property in question could only be raised in a proceeding pursuant to O.C.G.A. § 32-3-11 and not in an action seeking to establish just and reasonable compensation only. DOT v. Franco's Pizza & Delicatessen, Inc., 164 Ga. App. 497, 297 S.E.2d 72 (1982).

Action in which landowners sought to vacate a condemnation and requested attorney fees for litigation spawned from the misuse and improper use of the powers of the department of transportation was a "proper case" for the recovery of attorney fees. DOT v. B & G Realty, Inc., 197 Ga. App. 613, 398 S.E.2d 762 (1990).

Requirement that a request for fees under O.C.G.A. § 13-6-11 be made in the complaint is consistent with subsection (c) of O.C.G.A. § 32-3-11. DOT v. Georgia TV Co., 244 Ga. App. 750, 536 S.E.2d 773 (2000).

Error to apportion damages without evidence in support of claim.

- Award for condemned land utilized for a road right-of-way was just and adequate compensation, but the trial court erred in apportioning damages to one plaintiff without receiving evidence in support of the plaintiff's claim for damages. Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001).

Pending valuation issue in trial court results in no appellate court jurisdiction.

- Appellate court had to dismiss the company's appeal of the trial court's denial of the company's motion to set aside, vacate, and annul the county's declaration of taking in a condemnation action as the issue of the property's valuation was still pending before the trial court; accordingly, the appellate court did not have jurisdiction over the appeal because the record did not show that the company followed the procedures for bringing an interlocutory appeal and the trial court had not issued a final judgment from which the company could appeal. TJW Enters. v. Henry County, 261 Ga. App. 547, 583 S.E.2d 144 (2003).

Rule nisi.

- Trial court erred in dismissing the Georgia Department of Transportation's (DOT's) condemnation petition for the department's failure to submit a properly attested affidavit with the department's petition as the condemnees were estopped from challenging the taking of their property because the condemnees withdrew the money deposited by DOT in the court registry. Ga. DOT v. Bowles, 292 Ga. App. 829, 666 S.E.2d 92 (2008).

Application of 60-day requirement.

- Pursuant to the clear language of O.C.G.A. § 32-3-11(c), it is the duty of the court, not the condemnee, to issue a rule nisi and schedule the required hearing. The Supreme Court of Georgia disapproves of the portion of Lopez-Aponte v. City of Columbus, 267 Ga. App. 65 (2004), which places the burden of issuing a rule nisi and obtaining a timely hearing upon the condemnee. Adkins v. Cobb County, 291 Ga. 521, 731 S.E.2d 665 (2012).

Petition to set aside properly denied.

- Trial court properly denied a condemnee's petition to set aside a declaration of taking filed by a county under O.C.G.A. § 32-3-1 because the road at issue was open for use by the general public despite only a few private citizens most likely using the road, but so long as the general public was not excluded, the power of eminent domain could be exercised. Emery v. Chattooga County, 325 Ga. App. 587, 753 S.E.2d 149 (2014).

Cited in Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976); Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981); Texaco, Inc. v. DOT, 165 Ga. App. 338, 301 S.E.2d 59 (1983); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985); Cox Communications, Inc. v. DOT, 178 Ga. App. 499, 343 S.E.2d 765 (1986); DOT v. Hudson, 179 Ga. App. 842, 348 S.E.2d 106 (1986); Chamlee v. DOT, 189 Ga. App. 334, 375 S.E.2d 626 (1988); DOT v. Rasmussen, 244 Ga. App. 245, 534 S.E.2d 573 (2000); Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001); City of Atlanta v. Yusen Air & Sea Serv. Holdings Inc., 263 Ga. App. 82, 587 S.E.2d 230 (2003).

ALR.

- Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.