06 LC
25 4198
House
Bill 976
By:
Representatives Porter of the
143rd,
Hugley of the
133rd,
Smyre of the
132nd,
Orrock of the
58th,
Oliver of the
83rd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 2 of Title 22 of the Official Code of Georgia Annotated, relating
to condemnation procedure generally, so as to require that certain declarations
of taking be served and filed by condemning bodies; to provide for right of
repurchase by the former owner or other disposal if the declared intended use of
condemned property has not commenced within a certain period; to define a term;
to redesignate certain provisions; to amend Title 32 of the Official Code of
Georgia Annotated, relating to highways, bridges, and ferries, so as to change
certain provisions relating to declaration of taking, contests of and
attachments to declaration, and conclusive nature of order of condemnation by
condemning authority; to change certain provisions relating to abandonment and
disposal of property not needed for public road purposes; to amend the Official
Code of Georgia Annotated so as to conform certain related cross-references; to
provide legislative declarations and findings; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
PART
I
SECTION 1-1.
SECTION 1-1.
The
General Assembly finds and declares as follows:
(1)
"The right of the humblest individual in the enjoyment of his property must be
protected. The right to take private property from the owner for public use
often works extreme hardship and savors of oppression. Nothing but a public
necessity can justify it, and then only in strict conformity with the law."
Williams v.
LaGrange, 213 Ga. 241 (1957);
(2)
The issue of what constitutes a legitimate public necessity or public good is
raised when the power of eminent domain is exercised by state or local
government and property so condemned or an interest therein is soon conveyed "to
people who could have no interest in acquiring the property other than as a
means to make money."
Housing Authority of
Atlanta v. Johnson, 209 Ga. 560 (1953). In
the words of our own Georgia Supreme Court, "If the property of one individual
can be taken from another for this purpose, where does the power of eminent
domain stop? ... 'Public use' means just what it says and means that the power
of eminent domain can never be exercised to acquire property to be used by
private individuals solely for private use and private gain."
Id.
If even some alleged indirect public benefit, such as an improved tax base, were
to result from such condemnation by government and reconveyance for private use
and private gain, "we can not subscribe to the doctrine that the power of
eminent domain may be resorted to and a person deprived of his property every
time there may be some public benefit resulting. To so hold would be to cut the
very foundation from under the sacred right to own property."
Id.;
(3)
In the exercise of the power of eminent domain by state or local government, the
private property rights of residents and businesses should be protected over the
speculative interests of private developers and corporations; and
(4)
The purpose of this Act it to protect the rights of private property owners
against the exercise of the power of eminent domain by state or local
governments for false and improper purposes.
PART
II
SECTION 2-1.
SECTION 2-1.
Chapter
2 of Title 22 of the Official Code of Georgia Annotated, relating to
condemnation procedure generally, is amended by redesignating Article 1,
relating to proceedings before assessors, as Article 1A of such chapter, and by
redesignating Code Section 22-2-1, relating to the definition of "condemnor," as
Code Section 22-2-10.
SECTION
2-2.
Said
chapter is further amended by adding a new article to read as
follows:
"ARTICLE
1
22-2-1.
As
used in this article, the term 'condemning body' means:
(1)
The State of Georgia or any branch of the government of the State of Georgia;
(2)
Any county or municipality of the State of Georgia;
(3)
Any state or local government authority; or
(4)
Any other political subdivision of the State of Georgia which is vested with the
power of eminent domain.
22-2-2.
(a)
Concurrent with service of any notice, petition, or declaration of condemnation
or taking required by this chapter or any other provision of this Code to be
served upon the owner or owners of the property to be condemned, the condemning
body seeking to exercise the power of eminent domain shall in addition thereto
and in the same manner serve such property owner or owners with a declaration of
taking under this Code section signed by:
(1)
The head of the state agency, or his or her deputy, seeking to acquire property
or interests on behalf of the state;
(2)
The county or municipal governing authority seeking to acquire property or
interests on behalf of a county or municipality;
(3)
The head of the state or local government authority, or his or her deputy,
seeking to acquire property or interests on behalf of a state or local
government authority; or
(4)
The governing body of any other political subdivision seeking to acquire
property or interests on behalf of such other political
subdivision.
(b)
The declaration of taking shall declare that the lands are being taken for the
use of the condemning body. The declaration shall contain or have annexed
thereto:
(1)
A statement of the authority under which, and the public use for which, such
lands are taken; a statement of when that use will commence; and a description
of how the property will be altered to sustain such use;
(2)
A description of the lands taken sufficient for the identification thereof;
(3)
A statement of the estate or interest in the lands taken for public use;
(4)
A plat showing the lands taken;
(5)
A statement of the sum of money estimated by the condemning body to be just
compensation for the property taken, including consequential damages to property
not taken, accompanied by a sworn copy as an exhibit of the
appraiseŕs
statement justifying the sum; and
(6)
A certified copy of an order by the signer of the declaration of taking, finding
that the circumstances are such that it is necessary to proceed with
condemnation in the particular case, that other alternatives are not
practicable, and specifically authorizing such condemnation.
(c)
Concurrent with or prior to service upon the property owner or owners, a copy of
such declaration and any annex thereto shall be filed also in the superior court
of each county in which the property lies.
22-2-3.
(a)
Any condemning body shall have a period not to exceed three years from the date
the estate or interest in the condemned property is acquired in which to
commence public use of the condemned property in the manner set forth in the
declaration required by Code Section 22-2-2. If such use has not commenced
during such period, the condemning body shall dispose of the property in
accordance with Code Section 22-2-4.
(b)
For purposes of this Code section, if the declared use is the use of a building
or structure to be erected or renovated on the condemned property, such use will
be deemed to commence when actual erection or renovation of the building or
structure commences on the property held by the condemning body, not including
land clearing, road building, the laying of utility lines or pipes, or other
site preparation.
22-2-4.
(a)(1)
In disposing of property pursuant to Code Section 22-2-3, the condemning body
shall notify the owner of such property at the time of its acquisition or, if
the tract from which the condemning body acquired its property has been
subsequently sold, shall notify the owner of abutting land holding title through
the owner from whom the condemning body acquired its property. The notice shall
be in writing delivered to the appropriate owner or by publication if his or her
address is unknown; and he or she shall have the right to acquire, as provided
in this subsection, the property with respect to which the notice is given.
Publication, if necessary, shall be in a newspaper of general circulation in the
county or counties where the property is located.
(2)
When a parcel acquired by the condemning body or any interest therein is being
disposed of, it may be acquired under the right created in paragraph (1) of this
subsection at such price as may be agreed upon, but in no event less than the
price paid for its acquisition.
(3)
If the right of acquisition is not exercised within 60 days after due notice,
the condemning body shall proceed to sell such property as provided in
subsection (b) of this Code section.
(b)(1)(A)
Unless a sale of the property is made pursuant to paragraph (2) or (3) of this
subsection, such sale shall be made to the bidder submitting the highest of the
sealed bids received after public advertisement for such bids for two weeks. The
condemning body shall have the right to reject any and all bids, in its
discretion, to readvertise, or to abandon the sale.
(B)
Such public advertisement shall be inserted once a week in such newspapers or
other publication, or both, as will ensure adequate publicity, the first
insertion to be at least two weeks prior to the opening of bids, the second to
follow one week after the first publication. Such advertisement shall include
but not be limited to the following items:
(i)
A description sufficient to enable the public to identify the
property;
(ii)
The time and place for submission and opening of sealed bids;
(iii)
The right of the condemning body to reject any one or all of the
bids;
(iv)
All the conditions of sale; and
(v)
Such further information as the condemning body may deem advisable as in the
public interest.
(2)(A)
Such sale of property may be made by a county or municipality by listing the
property through a real estate broker licensed under Chapter 40 of Title 43 who
has a place of business located in the county where the property is located or
outside the county if no such business is located in the county where the
property is located. Property shall be listed for a period of at least three
months. Such property shall not be sold at less than its fair market value. All
sales shall be approved by the governing authority of the county at a regular
meeting and shall be open to the public at which meeting public comments shall
be allowed regarding such sale.
(B)
Commencing at the time of the listing of the property as provided in
subparagraph (A) of this paragraph, the county or municipality shall provide for
a notice to be inserted once a week for two weeks in the legal organ of the
county indicating the names of real estate brokers listing the property for the
political subdivision. The county or municipality may advertise in magazines
relating to the sale of real estate or similar publications.
(C)
The county or municipality shall have the right to reject any and all offers, in
its discretion, and to sell such property pursuant to the provisions of
paragraph (1) of this subsection.
(3)(A)
Such sale of property may be made by a county or municipality to the highest
bidder at a public auction conducted by an auctioneer licensed under Chapter 6
of Title 43. Such property shall not be sold at less than its fair market
value.
(B)
The county or municipality shall provide for a notice to be inserted once a week
for the two weeks immediately preceding the auction in the legal organ of the
county including, at a minimum, the following items:
(i)
A description sufficient to enable the public to identify the
property;
(ii)
The time and place of the public auction;
(iii)
The right of the department or the county or municipality to reject any one or
all of the bids;
(iv)
All the conditions of sale; and
(v)
Such further information as the department or the county or municipality may
deem advisable as in the public interest.
The
county or municipality may advertise in magazines relating to the sale of real
estate or similar publications.
(C)
The county or municipality shall have the right to reject any and all offers, in
its discretion, and to sell such property pursuant to the provisions of
paragraph (1) of this subsection.
(c)
Any conveyance of property shall require the approval of the condemning body, by
order of the head of the state agency or his or her deputy, by resolution of the
county or municipal governing authority as recorded in the minutes of its
meeting, by order of the head of the state or local government authority or his
or her deputy, or by resolution of the governing body of such other political
subdivision of the state that condemned the property as recorded in the minutes
of its meeting. If the conveyance is so approved, a quitclaim deed may be
executed, conveying such property to the purchaser. All proceeds arising from
such sales shall be paid into and constitute a part of the funds of the
seller."
PART
III
SECTION 3-1.
SECTION 3-1.
Title
32 of the Official Code of Georgia Annotated, relating to highways, bridges, and
ferries, is amended by striking Code Section 32-3-6, relating to filing
declaration of taking, contents of and attachments to declaration, and
conclusive nature of order of condemnation by condemning authority, and
inserting in lieu thereof the following:
"32-3-6.
(a)
In addition to the petition filed pursuant to Code Section 32-3-4, the
petitioner shall also
file with
the court
serve and
file a declaration of taking
signed
by:
(1)
The commissioner or the deputy commissioner of the Department of Transportation
if the petitioner is seeking to acquire property or interests on behalf of the
department;
(2)
The county governing authority if the petitioner is seeking to condemn for
county road system purposes or any other public transportation purpose;
or
(3)
The municipal governing authority if the petitioner is seeking to condemn for
municipal street system purposes or any other public transportation
purpose.
(b)
The declaration of taking shall declare that the lands are being taken for the
use of the condemnor, subject to the order of the court provided for in Code
Section 32-3-12. The declaration shall contain or have annexed
thereto:
(1)
A statement of the authority under which, and the public use for which, such
lands are taken;
(2)
A description of the lands taken sufficient for the identification
thereof;
(3)
A statement of the estate or interest in the lands taken for public
use;
(4)
A plat showing the lands taken;
(5)
A statement of the sum of money estimated by the condemning authority to be just
compensation for the land taken, including consequential damages to land not
taken, accompanied by a sworn copy as an exhibit of the
appraiseŕs
statement justifying the sum; and
(6)
A certified copy of an order by the commissioner if the property or interest is
being condemned for the department or by the county or municipality if the
property or interest is being condemned for a county or municipality, finding
that the circumstances are such that it is necessary to proceed in the
particular case under this article, and specifically authorizing condemnation
under this article.
in accordance
with Code Section 22-2-2.
(c)(b)
Such
an
An
order of the commissioner or governing authority
made, served,
and filed as part of or annexed to such declaration of taking in accordance with
Code Section 22-2-2 shall be conclusive as
to the use of the property or interest condemned and as to the authority of the
commissioner or governing authority to condemn under this
article."
SECTION
3-2.
Said
title is further amended in Chapter 7, relating to abandonment and disposal of
property not needed for public road purposes, by adding a new Code section to
read as follows:
"32-7-6.
This
chapter shall not apply when disposal of property by a condemning body is
required under Article 1 of Chapter 2 of Title 22, in which event the provisions
of such article shall
control."
PART
IV
SECTION 4-1.
SECTION 4-1.
The
Official Code of Georgia Annotated is amended by striking the term "Article 1 of
this chapter" and inserting in lieu thereof "Article 1A of this chapter"
wherever the former term appears in the following Code
sections:
(1) Code Section 22-2-135, relating to appointment of assessors; and
(2) Code Section 22-2-136, relating to appeal from assessorś award.
(1) Code Section 22-2-135, relating to appointment of assessors; and
(2) Code Section 22-2-136, relating to appeal from assessorś award.
SECTION
4-2.
The
Official Code of Georgia Annotated is further amended by striking the term
"Article 1 of Chapter 2 of this title" and inserting in lieu thereof "Article 1A
of this chapter" wherever the former term appears in Code Section 22-2-133,
relating to service of process.
SECTION
4-3.
The
Official Code of Georgia Annotated is further amended by striking the term
"Article 1 of Chapter 2" and inserting in lieu thereof "Article 1A of Chapter 2"
wherever the former term appears in the following Code
sections:
(1) Code Section 22-1-7, relating to effect of failure to agree on compensation;
(2) Code Section 22-3-44, relating to appeal to superior court; and
(3) Code Section 22-3-120, relating to condemnation for construction of lighthouses, beacons, etc.
(1) Code Section 22-1-7, relating to effect of failure to agree on compensation;
(2) Code Section 22-3-44, relating to appeal to superior court; and
(3) Code Section 22-3-120, relating to condemnation for construction of lighthouses, beacons, etc.
SECTION
4-4.
The
Official Code of Georgia Annotated is further amended by striking the term
"Article 1 of Chapter 2 of Title 22" and inserting in lieu thereof "Article 1A
of Chapter 2 of Title 22" wherever the former term appears in the following Code
sections:
(1) Code Section 20-2-522, relating to condemnation procedure;
(2) Code Section 32-3-15, relating to interlocutory hearing on amount of compensation;
(3) Code Section 44-9-42, relating to selection of assessors;
(4) Code Section 44-9-43, relating to show cause order;
(5) Code Section 44-9-44, relating to appeals from award of assessors;
(6) Code Section 46-4-57, relating to exercise of right of eminent domain by gas utilities; and
(7) Code Section 50-16-106, relating to manner for determining rights and compensation in condemnation proceedings.
(1) Code Section 20-2-522, relating to condemnation procedure;
(2) Code Section 32-3-15, relating to interlocutory hearing on amount of compensation;
(3) Code Section 44-9-42, relating to selection of assessors;
(4) Code Section 44-9-43, relating to show cause order;
(5) Code Section 44-9-44, relating to appeals from award of assessors;
(6) Code Section 46-4-57, relating to exercise of right of eminent domain by gas utilities; and
(7) Code Section 50-16-106, relating to manner for determining rights and compensation in condemnation proceedings.
PART
V
SECTION 5-1.
SECTION 5-1.
All
laws and parts of laws in conflict with this Act are repealed.