Power of Eminent Domain; Conditions; Title Acquired

  1. Law
  2. Georgia Code
  3. Local Government
  4. Urban Redevelopment
  5. Power of Eminent Domain; Conditions; Title Acquired

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  1. Except as otherwise provided in subsection (c) of this Code section, a municipality or county shall have the right to acquire, by exercise of the power of eminent domain, any real property which it may deem necessary for its purposes under this chapter, after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. A municipality or county may exercise the power of eminent domain in the manner provided in Title 22; or it may exercise the power of eminent domain in the manner provided by any other applicable statutory provisions for the exercise of the power of eminent domain. Property already devoted to a public use may be acquired, provided that no real property belonging to the municipality, the county, the state, or any political subdivision thereof may be acquired without its consent.
  2. Whenever condemnation proceedings are instituted and carried on by a municipality or county in accordance with subsection (a) of this Code section or through any other method of condemnation provided by law, upon the payment by the municipality or county seeking condemnation of the amount of the award and final judgment on appeal the municipality or county shall become vested with a fee simple indefeasible title to the property to which the condemnation proceedings relate. Such payment may be offset in whole or in part by the amount of any municipal or county tax liens on the condemned property and by any existing special assessments tax liens on the condemned property, including without limitation education or special district taxes collected by the municipality or county; provided, however, that any such setoff shall be subject to any existing tax liens having higher priority pursuant to Code Section 48-2-56 and to the interest in the condemned property of any known beneficiary of a year's support pursuant to former Code Section 53-5-2 as such existed on December 31, 1997, if applicable, or Code Sections 53-3-1, 53-3-2, 53-3-4, 53-3-5, and 53-3-7; provided, further, that where the condemned property is subject to a valid deed to secure debt, such setoff shall only be allowed for tax liens which arose as a result of an assessment against such property. It is declared to be necessary, to enable such municipalities and counties to exercise their powers under this Code section, that upon the condemnation proceedings being had, the municipalities and counties shall become vested with fee simple indefeasible title to the property involved in the proceedings.
  3. Unless the property is to be acquired for the purpose of devoting it to a public use, a municipality or county may not acquire real property through the exercise of the power of eminent domain pursuant to subsection (a) of this Code section until the following conditions and requirements have been met:
    1. The municipality or county which adopted the urban redevelopment plan has approved a resolution authorizing the exercise of the power of eminent domain by the agency to acquire the property;
    2. The municipality or county shall, in writing, notify the owner of the real property proposed to be acquired of the planned rehabilitation of the property as set forth in the urban redevelopment plan for the urban redevelopment area wherein the property is located;
    3. Within 30 days after being so notified, the owner of the property shall have the option of notifying the municipality or county, in writing, of his willingness and intention to rehabilitate and maintain the property in accordance with the urban redevelopment plan. In the event of multiple ownership of the property, unanimous agreement by the owners shall be required; and the failure of any one owner to notify the municipality or county, within the time limitation specified in this paragraph, of his willingness and intention to rehabilitate and maintain the property in accordance with the urban redevelopment plan shall be deemed to be a failure to exercise the option provided in this paragraph; and
    4. The owner of the property may execute an agreement with the municipality or county to rehabilitate the property in accordance with the urban redevelopment plan. Any such agreement shall be as the municipality or county deems necessary and appropriate as to form and content; in connection therewith, the municipality or county shall have the right to require sufficient performance, payment, and completion bonds. In the event that any such owner, at any time, fails to comply with or defaults in the performance of the provisions of the agreement, such property shall no longer be subject to the agreement, the option provided by paragraph (3) of this subsection shall no longer apply, and the property may be acquired by the municipality or county by purchase or through the exercise of the power of eminent domain.In the alternative, the municipality or county may either specifically enforce the agreement, exercise any rights under any bonds which may have been required, and obtain any other legal or equitable relief as may be available to the municipality or county or, if the owner fails to exercise the option to rehabilitate the property or defaults on the agreement to rehabilitate the property, the municipality or county may implement those portions of the urban development plan with respect to such property to the extent the municipality or county deems necessary and the costs of implementing such plan shall be a lien against the property enforceable in the same manner as tax liens.

(Ga. L. 1955, p. 354, § 8; Ga. L. 1971, p. 445, §§ 1, 2; Ga. L. 1982, p. 3, § 36; Ga. L. 1992, p. 6, § 36; Ga. L. 1992, p. 2533, § 14; Ga. L. 1994, p. 877, § 1; Ga. L. 1998, p. 128, § 36; Ga. L. 2011, p. 752, § 36/HB 142.)

Law reviews.

- For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For note on the 1994 amendment of this Code section, see 11 Ga. St. U. L. Rev. 212 (1994).

JUDICIAL DECISIONS

Demand that just and adequate compensation be first paid is imperative. It means that such payment covers its value at the time of taking and not its value many rental periods or years prior to the actual institution of condemnation proceedings. Housing Auth. v. Schroeder, 222 Ga. 417, 151 S.E.2d 226 (1966).

Exercise of power of eminent domain under this section must be pursuant to the formulation of an urban redevelopment plan which necessitates the acquisition of specific real property to effectuate its purposes. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980).

Qualification on right of eminent domain.

- Right of the state to obtain private property for the public purpose of urban redevelopment is qualified by the requirement that the property owner must be permitted to develop the owner's land personally in accordance with the proposed plan, if the owner so desires and if the owner has the resources to do so. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980); Ward v. Housing Auth., 157 Ga. App. 825, 278 S.E.2d 715 (1981).

Requirement of specificity in urban redevelopment plan.

- When, pursuant to court order, condemnee was provided with a map showing the proposed use of the condemnee's land, in conjunction with the lands of other owners, as part of a 66,600 square foot warehouse, any requirement of specificity in an urban redevelopment plan was amply satisfied by this information. Waller v. Clayton County, 200 Ga. App. 706, 409 S.E.2d 561, cert. denied, 200 Ga. App. 897, 409 S.E.2d 561 (1991).

Option of landowner to develop personally.

- This section gives a private landowner the option of retaining ownership of the land and developing the land in accordance with the urban redevelopment plan when the land was to be put to a nonpublic use. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980).

Term "multiple ownership" refers to a situation when a particular parcel within the tract to be condemned is owned by more than one person, rather than to all owners of all parcels within the tract. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980).

Term "property" refers to each individual parcel within the tract to be condemned, rather than to the tract as a whole, thus extending to each parcel owner the option of retaining ownership and developing in accordance with the urban redevelopment plan. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980).

Not applicable to conveyance of previously condemned property.

- Even assuming the original condemnation proceeding was conducted pursuant to the Urban Redevelopment Law and that O.C.G.A. § 36-61-9 was applicable to it, the 2003 conveyance was not a re-taking by a municipality or county and thus the transaction was not governed by the requirements of § 36-61-9. By its terms, the statute applies to the original taking of property by eminent domain. The 2003 conveyance was, instead, a re-purposing of the property from that involved in the original taking. Darling Int'l, Inc. v. Carter, 294 Ga. 455, 754 S.E.2d 347 (2014).

Subsection (c) distinguishes between procedures to be followed in acquiring property for public use and in acquiring property for nonpublic use. McCord v. Housing Auth., 246 Ga. 547, 272 S.E.2d 247 (1980).

Planned parking structure was to be devoted to "public use" within the meaning of subsection (c) of O.C.G.A. § 36-61-9 and therefore did not trigger the requirements of that subsection. Allright Auto Parks, Inc. v. City of Atlanta, 257 Ga. 315, 357 S.E.2d 797 (1987).

Cited in Nations v. Downtown Dev. Auth., 255 Ga. 324, 338 S.E.2d 240 (1985).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 23 et seq., 433 et seq.

ALR.

- Constitutionality, construction, and application of statutes or governmental projects for improvement of housing conditions (slum clearance), 130 A.L.R. 1069; 172 A.L.R. 966.

Depreciation in value, from project for which land is condemned, as a factor in fixing compensation, 5 A.L.R.3d 901.

What constitutes "Blighted Area" within urban renewal and redevelopment statutes, 45 A.L.R.3d 1096.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.


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