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2018 Georgia Code 32-3-11 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 32-3-11 Case Law from Google Scholar Amendments to OCGA 32-3-11

TITLE 32 HIGHWAYS, BRIDGES, AND FERRIES

Section 3. Acquisition of Property for Transportation Purposes, 32-3-1 through 32-3-39.

ARTICLE 1 GENERAL PROVISIONS

32-3-11. Power of judge to set aside, vacate, and annul declaration of taking; issuance and service on condemnor of rule nisi; hearing.

  1. Upon proper pleadings and evidence, under the applicable rules of law, the judge of the superior court shall have the authority to set aside, vacate, and annul the declaration of taking, together with any title acquired thereby, in the same way and manner and for the same reasons as are provided by Code Sections 23-2-60 and 9-11-60. The power of the court in this respect shall not be construed as extending to a determination of questions of necessity, but there shall be a prima-facie presumption that the property or interest condemned is taken for and is necessary to the public use provided for in this article.
  2. The power of the court as described in subsection (a) of this Code section shall be restricted to the following questions:
    1. Fraud or bad faith, as contemplated by Code Sections 23-2-60 and 9-11-60;
    2. The improper use of the powers of this article, such as are not contemplated by this article;
    3. The abuse or misuse of the powers of this article; and
    4. Such other questions as may properly be raised, including the question of whether or not this article has been invoked in some respect beyond the privileges conferred by this article or by an unauthorized agency, county, or municipality.
  3. If the condemnee desires to raise such questions as are outlined in subsection (b) of this Code section, the same shall be done by proper pleadings, in the form of a petition addressed to the judge of the superior court having jurisdiction thereof, filed in the same proceedings not later than 30 days subsequent to the date of service upon the condemnee of the declaration of taking. The presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside in the same way and manner as is now provided for setting aside deeds acquired by fraud. Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking, and with the right of appeal by either party, as in other cases.

(Code 1933, § 95A-607, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

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).

RESEARCH REFERENCES

ALR.

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

Cases Citing O.C.G.A. § 32-3-11

Total Results: 5  |  Sort by: Relevance  |  Newest First

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Windsor v. City of Atlanta, 695 S.E.2d 576 (Ga. 2010).

Cited 14 times | Published | Supreme Court of Georgia | May 17, 2010 | 287 Ga. 334, 2010 Fulton County D. Rep. 1605

...rdered Windsor to surrender possession of the easement within 60 days. The complaint, declaration, and order were served on Windsor on July 26, 2003. Windsor filed a "notice of appeal" to the trial court under OCGA § 32-3-14 and a motion under OCGA § 32-3-11 to "set aside, vacate, and annul the declaration of taking, together with any title acquired thereby." The parties extensively briefed a variety of issues in connection with the annulment motion, including Windsor's due process challenge to the constitutionality of the declaration of taking method of condemnation....
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Cox Commc'ns, Inc. v. Dep't of Transp., 349 S.E.2d 450 (Ga. 1986).

Cited 9 times | Published | Supreme Court of Georgia | Oct 29, 1986 | 256 Ga. 455

...Yet, should the Department's acquisition of Cox's property be affirmed, there is the probability that the state's power of eminent domain will result in physical injury or death by virtue of the creation of a roadway which is of an unusually dangerous nature. This we cannot condone. 3. OCGA § 32-3-11 (b) (2) authorizes the superior court to set aside a declaration of taking upon a determination that such a taking would constitute "the improper use of the powers of this article, such as are not contemplated by this article." The evidenc...
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Dep't of Transp. v. City of Atlanta, 380 S.E.2d 265 (Ga. 1989).

Cited 8 times | Published | Supreme Court of Georgia | Jun 23, 1989 | 259 Ga. 305

...1187, § 4, the Department of Transportation (DOT) filed an action to condemn the subject parcels of property for use in construction of the Presidential Parkway. Appellees, private landowners, were permitted to intervene in the case, and filed this action to set aside the declaration of taking. OCGA § 32-3-11....
...OCGA § 9-5-8. 2. The DOT argues that the trial court has forfeited jurisdiction over the motion to set aside the declaration of taking because it failed to conduct a hearing on the merits of this motion within 60 days as is, the DOT maintains, required by OCGA § 32-3-11 (d)....
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Brooks v. Dep't of Transp., 327 S.E.2d 175 (Ga. 1985).

Cited 7 times | Published | Supreme Court of Georgia | Mar 4, 1985 | 254 Ga. 60

...his claim. The provisions of the Civil Practice Act may be applied to a condemnation action where they do not conflict with the special statutory procedure involved. Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981); OCGA § 9-11-81. OCGA § 32-3-11 provides, in subsections (a) and (b), that the trial court may set aside, vacate, or annul *62 a declaration of taking upon a showing of fraud or bad faith, the improper use of powers granted in the condemnation act, the abuse or misuse of those powers, or a failure to invoke the act....
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Adkins v. Cobb Cnty., 291 Ga. 521 (Ga. 2012).

Cited 1 times | Published | Supreme Court of Georgia | Sep 10, 2012 | 731 S.E.2d 665, 2012 Fulton County D. Rep. 2744

Thompson, Presiding Justice. We granted an application for interlocutory appeal in this condemnation case to determine whether application of OCGA § 32-3-11 (c)1 to bar appellants’ motion to set aside or vacate a declaration of taking violates their due process rights and to consider whether that statute imposed upon appellants a responsibility to obtain a timely hearing on their motion. We conclude the statute as properly applied does not violate a condemnee’s due process rights but reverse and remand to the trial court with direction that it hold a hearing pursuant to the mandate of OCGA § 32-3-11 (c) because it is the duty of the trial court, not the condemnee, to schedule the required hearing. On January 11, 2010, appellee Cobb County filed a declaration of taking seeking to condemn property owned by appellants Russell Adkins and James Whitfield as part of a road construction project....
...A rule nisi issued and after several attempts at settlement failed, the court set a hearing for April 20, 2011. Following the hearing, the trial court dismissed appellants’ motion to vacate on the ground that the motion was procedurally barred under OCGA § 32-3-11 (c) because appellants failed to obtain a hearing on the motion within 60 days of the date of filing of the declaration of taking....
...d service but leaving insufficient time to give Cobb County the required 15-day notice of a hearing and to hold the hearing within 60 days of the filing of the declaration of taking. The court rejected appellants’ contention that *522applying OCGA § 32-3-11 (c)’s procedural bar under these circumstances violated their state and federal due process rights because any inability to comply with the Code section was due to their own inaction by waiting to acknowledge service. The trial court issued a certificate of immediate review, and we granted appellants’ application for interlocutory appeal to review the trial court’s dismissal order. See OCGA § 5-6-34 (b). 1. OCGA § 32-3-11 provides the procedural framework and remedy for a condemnee who wishes to challenge a declaration of taking by a condemnor....
...to show cause at a hearing designated by the judge why the declaration should not be vacated and set aside. The hearing must be held at least 15 days after service of the rule nisi but not later than 60 days after the filing of the declaration. OCGA § 32-3-11 (c). Here, appellants acknowledged service on March 1, 2010 and on March 31, 2010 timely filed their petition to vacate the declaration of taking. The trial court dismissed appellants’ motion, finding OCGA § 32-3-11 (c) required that a hearing be held no later than 60 days from the date of filing of the declaration of taking, that it had no discretion to consider the motion to vacate outside the mandatory time frame, and that it was appellants’ responsibility, not the trial court’s, to obtain a rule nisi for a timely hearing. We disagree for several reasons. First, OCGA § 32-3-11 (c) states in relevant part that a hearing “shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking.” In cases invo...
...38, 39 (656 SE2d 188) (2007). See Lewis v. State, 283 Ga. 191, 194-195 (657 SE2d 854) (2008); Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 709 (654 SE2d 127) (2007). Like the statutes at issue in these cases, there is no language following OCGA § 32-3-11 (c)’s 60-day directive which would restrain the trial court from holding a hearing after the 60-day period, nor any language indicating that either party shall be penalized for failure to comply with the 60-day provision. The absence of such restraining language leads us to conclude that the 60-day requirement found in OCGA § 32-3-11 (c) is directive, rather than mandatory. We are further persuaded by the decisions of our Court of Appeals which twice has applied this rule of construction to OCGA § 32-3-11 (c) under virtually identical circumstances. See Fincher Rd. Investments v. City of Canton, 314 Ga. App. 852 (726 SE2d 120) (2012); Cobb County v. Robertson, 314 Ga. App. 455 (724 SE2d 478) (2012). In both cases the Court of Appeals determined OCGA § 32-3-11 (c)’s command to hold the hearing on the condemnee’s motion to vacate within 60 days of the date of the filing of the declaration of taking is directory. We agree with these well-reasoned opinions and conclude that OCGA § 32-3-11 (c)’s 60-day requirement is directory, thus authorizing trial courts of this state to consider motions to vacate declarations of taking even in the absence of strict compliance....
...pretation does not cause injury or prejudice to either the condemnee or condemnor. Although Cobb County argues this interpretation infuses uncertainty into the process because condemnors will face untimely challenges to set aside their takings, OCGA § 32-3-11 (c) “does not require that arulingbe made within the 60-day period, and so the hearing contemplated by the statute cannot serve as the guarantor of such certainty.” Robertson, supra, 314 Ga....
...Second, we must reverse the trial court’s dismissal of appellants’ motion to vacate because the court determined it was appellants’ responsibility to cause a rule nisi to issue and schedule a hearing within the 60-day requirement. Pursuant to the clear language of OCGA § 32-3-11 (c), it is the duty of the court, not the condemnee, to issue a rule nisi and schedule the required hearing....
...Jackel, Christopher L. Phillips, for appellee. Samuel S. Olens, Attorney General, R. O. Lerer, Deputy Attorney General, Denise E. Whiting-Pack, Senior Assistant Attorney General, Mary Jo Volkert, Assistant Attorney General, amici curiae. 2. Because OCGA § 32-3-11 (c)’s 60-day requirement is discretionary, it did not act as a procedural bar to the trial court’s consideration of the merits of appellants’ motion to vacate the declaration of taking filed by Cobb County....