Dillard, Judge.
Fincher Road Investments, LLLP (“Fincher Road”) appeals the trial court’s order on pre-trial issues in a case arising from a condem
nation action brought against it by the City of Canton (“the City’). Following protracted litigation between the parties (including a prior appeal to this Court),
the City sought to dismiss its condemnation action. Fincher Road appeals the trial court’s ruling that it is only entitled to attorney fees and costs of litigation but no compensation for any taking of the property. We agree that the trial court erred and, for the reasons set forth infra, we affirm in part and reverse in part.
The record reflects that on October 11, 2010, the City filed a petition for condemnation and declaration of taking with respect to property owned by Fincher Road.
The City deposited $787,400 with the trial court, which it estimated to be just and adequate compensation for the property. On October 25,2010, the court issued an order and judgment upon the petition, declaring that title had vested in the City and that the City had the right of possession as to the property. On November 22, 2010, Fincher Road filed a notice of appeal to the court’s order as to the value of the condemned property. That same day, Fincher Road also filed a petition to set aside the declaration of taking, contending that the declaration was improper for a number of reasons.
At a hearing convened on December 7, 2010, and later in a written February 28,2011 order, the trial court denied and dismissed Fincher Road’s petition to set aside the declaration of taking based upon a failure to give the City 15 days’ notice prior to the scheduled hearing. This Court then granted Fincher Road’s application for interlocutory appeal of that dismissal. In that appeal, we determined that a superior court has “the discretion to hold a hearing and consider the merits of the petition if the rule nisi was not issued and served upon the condemnor a full 15 days before the hearing.”
As a result, we remanded the case to the trial court to consider whether, “in the exercise of its discretion and considering the attendant circumstances ..., [Fincher Road] should be afforded an opportunity for a hearing and a decision on the merits of [its] petition [ ] to set aside the declaration of taking.”
A remittitur was issued to the trial court on April 12, 2012. On that same day, the City filed with the trial court a motion to set aside the order on the petition for condemnation, asserting that it had determined condemnation of the property was “no longer necessary for public use.” The City also concurrently filed a notice of dismissal
as to its condemnation action, relinquishing all rights to the property. In its motion to set aside the condemnation judgment, the City asked that the court have the clerk disburse to it the previously deposited funds. Fincher Road filed a motion in opposition, contending that it was entitled to compensation for the City’s temporary taking of its property prior to dismissal. Thus, Fincher Road opposed the City’s request for disbursement of funds. Fincher Road also filed a motion for attorney fees and costs of litigation.
In an order on pre-trial issues, the trial court determined that Fincher Road was entitled to attorney fees and costs of litigation under OCGA § 22-1-12 but was not entitled to any other compensation. Thereafter, the court ordered that the case proceed to trial solely to determine the a mount of attorney fees and costs of litigation. This Court granted Fincher Road’s application for interlocutory appeal, which we will now consider.
Our analysis necessarily begins with the Takings Clause of the Fifth Amendment to the United States Constitution, which provides that private property shall not “be taken for public use, without just compensation.”
Suffice it to say, private property rights are among “the most basic of human rights,”
and it is the “charge of the courts to defend them vigilantly.”
A classic taking is, of course, one in which “the government directly appropriates private property for its own use.”
In this respect, the Supreme Court of the United States has explained that the Takings Clause is designed “not to limit the governmental interference with property rights per se, but rather to
secure
compensation
in the event of otherwise proper interference amounting to a taking.”
Thus, governmental action that works a taking of property “necessarily implicates the ‘constitutional obligation to pay just compensation.’ ”
Consistent with this cherished constitutional safeguard, the Supreme Court of the United States has recognized that, “though the classic taking is a transfer of property to the State or to another private party by eminent domain, the Takings Clause applies to other state actions that achieve the same thing.”
And the government “takes” property within the meaning of the Fifth Amendment when it “uses its own property in such a way that it destroys private property,”
enacts a regulation that “forces a property owner to submit to a permanent physical occupation [cit.] or deprives him of all economically beneficial use of his property,”
or “recharacterize [s] as public property what was previously private property.”
Thus, the federal Supreme Court has concluded that “the particular state actor is irrelevant,”
and that “[i]f a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”
But the Supreme Court of the United States has also recognized in more than one case that “the government may elect to abandon its
intrusion or discontinue regulations.”
Nevertheless, even such temporary takings are not “different in kind from permanent takings, for which the Constitution clearly requires compensation.”
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Dillard, Judge.
Fincher Road Investments, LLLP (“Fincher Road”) appeals the trial court’s order on pre-trial issues in a case arising from a condem
nation action brought against it by the City of Canton (“the City’). Following protracted litigation between the parties (including a prior appeal to this Court),
the City sought to dismiss its condemnation action. Fincher Road appeals the trial court’s ruling that it is only entitled to attorney fees and costs of litigation but no compensation for any taking of the property. We agree that the trial court erred and, for the reasons set forth infra, we affirm in part and reverse in part.
The record reflects that on October 11, 2010, the City filed a petition for condemnation and declaration of taking with respect to property owned by Fincher Road.
The City deposited $787,400 with the trial court, which it estimated to be just and adequate compensation for the property. On October 25,2010, the court issued an order and judgment upon the petition, declaring that title had vested in the City and that the City had the right of possession as to the property. On November 22, 2010, Fincher Road filed a notice of appeal to the court’s order as to the value of the condemned property. That same day, Fincher Road also filed a petition to set aside the declaration of taking, contending that the declaration was improper for a number of reasons.
At a hearing convened on December 7, 2010, and later in a written February 28,2011 order, the trial court denied and dismissed Fincher Road’s petition to set aside the declaration of taking based upon a failure to give the City 15 days’ notice prior to the scheduled hearing. This Court then granted Fincher Road’s application for interlocutory appeal of that dismissal. In that appeal, we determined that a superior court has “the discretion to hold a hearing and consider the merits of the petition if the rule nisi was not issued and served upon the condemnor a full 15 days before the hearing.”
As a result, we remanded the case to the trial court to consider whether, “in the exercise of its discretion and considering the attendant circumstances ..., [Fincher Road] should be afforded an opportunity for a hearing and a decision on the merits of [its] petition [ ] to set aside the declaration of taking.”
A remittitur was issued to the trial court on April 12, 2012. On that same day, the City filed with the trial court a motion to set aside the order on the petition for condemnation, asserting that it had determined condemnation of the property was “no longer necessary for public use.” The City also concurrently filed a notice of dismissal
as to its condemnation action, relinquishing all rights to the property. In its motion to set aside the condemnation judgment, the City asked that the court have the clerk disburse to it the previously deposited funds. Fincher Road filed a motion in opposition, contending that it was entitled to compensation for the City’s temporary taking of its property prior to dismissal. Thus, Fincher Road opposed the City’s request for disbursement of funds. Fincher Road also filed a motion for attorney fees and costs of litigation.
In an order on pre-trial issues, the trial court determined that Fincher Road was entitled to attorney fees and costs of litigation under OCGA § 22-1-12 but was not entitled to any other compensation. Thereafter, the court ordered that the case proceed to trial solely to determine the a mount of attorney fees and costs of litigation. This Court granted Fincher Road’s application for interlocutory appeal, which we will now consider.
Our analysis necessarily begins with the Takings Clause of the Fifth Amendment to the United States Constitution, which provides that private property shall not “be taken for public use, without just compensation.”
Suffice it to say, private property rights are among “the most basic of human rights,”
and it is the “charge of the courts to defend them vigilantly.”
A classic taking is, of course, one in which “the government directly appropriates private property for its own use.”
In this respect, the Supreme Court of the United States has explained that the Takings Clause is designed “not to limit the governmental interference with property rights per se, but rather to
secure
compensation
in the event of otherwise proper interference amounting to a taking.”
Thus, governmental action that works a taking of property “necessarily implicates the ‘constitutional obligation to pay just compensation.’ ”
Consistent with this cherished constitutional safeguard, the Supreme Court of the United States has recognized that, “though the classic taking is a transfer of property to the State or to another private party by eminent domain, the Takings Clause applies to other state actions that achieve the same thing.”
And the government “takes” property within the meaning of the Fifth Amendment when it “uses its own property in such a way that it destroys private property,”
enacts a regulation that “forces a property owner to submit to a permanent physical occupation [cit.] or deprives him of all economically beneficial use of his property,”
or “recharacterize [s] as public property what was previously private property.”
Thus, the federal Supreme Court has concluded that “the particular state actor is irrelevant,”
and that “[i]f a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation.”
But the Supreme Court of the United States has also recognized in more than one case that “the government may elect to abandon its
intrusion or discontinue regulations.”
Nevertheless, even such temporary takings are not “different in kind from permanent takings, for which the Constitution clearly requires compensation.”
It is well established, then, that when “the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective.”
Here, the City elected to acquire the subject property by filing a declaration of taking,
which “allows the government to take title
immediately
by filing a petition and declaration of taking and paying into the court registry just and adequate compensation as determined by its own appraisal.”
Indeed, under OCGA § 32-3-7,
[u]pon the filing of the declaration of taking and the deposit into court, which deposit shall be made at the time the declaration of taking is filed to the use of the persons entitled thereto, of the sum of money estimated in the declaration by the condemning authority to be just compensation,
title to the property in fee simple absolute or such lesser interest as is specified in the declaration shall vest in the condemnor; the land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto.
Likewise, OCGA § 32-3-13 provides: “No judgment of any court and no order or ruling of the judge thereof shall be necessary to give
effect to the declaration of taking provided for in Code Section 32-3-6; but the same shall be self-executing, subject, however, to the power of the court as provided for in Code Section 32-3-11.”
The latter Code section authorizes a superior-court judge to, upon proper pleadings and evidence, “set aside, vacate, and annul the declaration of taking, together with any title acquired thereby ... .”
This may be done in situations of “fraud or bad faith, the improper use of the condemnation powers, the abuse or misuse of the condemnation powers, and such other questions as may properly be raised.”
As discussed supra, Fincher Road challenged the City’s petition and declaration of taking under OCGA § 32-3-11, but the trial court dismissed Fincher Road’s challenge for a failure to comply with the procedural requirements of OCGA § 32-3-11 (c). We then remanded to the trial court to exercise its discretion under OCGA § 32-3-11 (c) and determine whether Fincher Road was nevertheless entitled to a hearing on its challenge.
But because the City dismissed its condemnation proceeding concurrent with receipt of the remittitur, the trial court never determined whether it would — or should — exercise its authority to “set aside, vacate, and annul the declaration of taking, together with any title acquired thereby[.]”
When a condemning authority abandons its condemnation proceeding, the court with jurisdiction
shall award the owner of any right or title to or interest in such real property such sum as will in the opinion of the court reimburse such owner for his or her reasonable costs and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings [.]
The City argued below, and argues again on appeal, that these statutory damages limit Fincher Road’s recovery.
The trial court agreed with the City that Fincher Road was only entitled to recover attorney fees and costs of litigation under OCGA § 22-1-12 and that Fincher Road, contrary to its contention, was not
entitled to any other compensation for a temporary taking of its property. Indeed, the trial court concluded that any compensation beyond attorney fees and costs “would be a windfall” because Fincher Road would be fully compensated by receipt of attorney fees and costs. We disagree with this conclusion, and we reject the City’s arguments that Fincher Road should not be compensated for a taking it contended was a nullity.
In a recent opinion authored by Justice David Nahmias, our Supreme Court recognized that OCGA § 22-1-12 “was enacted as part of the 2006 ‘Landowner’s Bill of Rights and Private Property Protection Act,’ which
expanded
property owners’ protections against condemnation rather than limiting those safeguards.”
Instead, OCGA § 22-1-12 functions to “reallocate the
costs
imposed on the condemnor and the condemnee if the condemnor abandons a condemnation action
at any point.”
And unlike most plaintiffs, “condemnors that abandon their actions must . . . pay the property owner’s reasonable costs and expenses actually incurred because of the condemnation proceedings, including attorney, appraisal, and engineering fees.”
Here, while the City’s abandonment of its action undoubtedly entitled Fincher Road to damages under OCGA § 22-1-12, the City’s abandonment and obligation to pay those statutory damages in no way relieved it of “the duty to provide compensation for the period during which the taking was effective.”
Indeed, while it is certainly true, as our Supreme Court has held, that a declaration of taking that fails to strictly comply with statutory requirements “cannot vest title to the land in the condemnor,”
a trial court must still be presented with the issue of compliance so that it may make a determination as to same and actually exercise its authority to set aside, vacate, or annul a declaration of taking.
But given the timing of the City’s dismissal, that never occurred in this
case. Accordingly, Fincher Road is entitled to just and adequate compensation for the City’s temporary taking of its property,
and OCGA §22-1-12 in no way acts to limit Fincher Road’s right of recovery in this regard.
Decided November 13, 2015
Flint, Connolly & Walker, Douglas H. Flint, JohnF. Connolly; Lee & Ziegler, Konrad G. W. Ziegler,
for appellant.
Dyer & Rusbridge, Robert M. Dyer, Alicia M. Argo; Haynie, Litchfield, Crane & White, Douglas R. Haynie, Daniel W. White,
for appellee.
For all of the foregoing reasons, we affirm the portion of the trial court’s order determining that Fincher Road was entitled to attorney fees and costs of litigation under OCGA § 22-1-12, but we reverse the court’s ruling that Fincher Road was not entitled to any additional compensation for the government’s temporary taking of its property.
Judgment affirmed in part and reversed in part.
McFadden, J., concurs. Ellington, P. J., concurs in judgment only.