Update: Forbes is covering this story, here: Nick Sibilla, "Landowner's Bill Of Rights Are Not 'Suggested Guidelines,' Georgia Supreme Court Rules"
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Here's a decision which we've been waiting for in a case we've been following since it was decided in the intermediate appellate court, involving Georgia's "landowner bill of rights."
In City of Marietta v. Summerour, No. S17G0057 (Oct. 30, 2017), the Georgia Supreme Court concluded that when a statute says "before the initiation of negotiations" with a property owner, the condemnor must "establish and amount it believes to be just compensation," and "shall make a prompt offer" of that amount to the owner, and that the agency "shall provide" the owner a written statement of how it determined that amount -- that it means just that. "Shall" means must, and "before" means before. So the failure of the agency to provide those things at the right time -- even though it did so later, and there was no showing of ill will or bad faith -- meant that the taking was invalid.
The facts are pretty straightforward. The city condemned a grocery store for a recreation center. After multiple attempts to contact the property owner and multiple offers of compensation, the city and the owner finally began the negotiation process, during which Summerour asked the city to produce a summary of its appraiser's report as required by the Georgia statute. The city eventually provided the summary, and its full report. The parties still could not agree, and the city instituted condemnation. But although the city eventually provided the summary, it did not do so initially.
The court of appeals agreed with the owner that the city was required to have complied with the statute's requirement that the condemnor provide a summary of the basis for its calculation of just compensation before starting the negotiation process, and remanded the case to the trial court for a determination whether the city had acted in bad faith. The Georgia Supreme Court agreed on the result, but tweaked it a bit, concluding that bad faith, vel non, wasn't an element, and it didn't matter what the city's intent was. The point of the statute was to protect property owners, and procedural and timing requirements like these are there for a purpose.
The court, correctly in our view, read the statutory requirement strictly, and held that the statute mandates a condemnor provide the summary "before the initiation of negotiations." Here, the city only provided the summary years after initially contacting Summerour about the acquisition of his property, and after Summerour had asked the city for it. Not good enough.
If you are interested, here are the docket, and the oral argument video, and a news story about the case:
- Case docket
- Oral argument video
- Atlanta Journal Constitution video and story on the case, "Landowner’s Bill of Rights tested at Georgia Supreme Court."
Anyone who has followed this blog for any length of time knows that we appreciate the scene from one of the Pirates of the Caribbean films where Geoffrey Rush's character notes that in his view, the "Pirate's Code" isn't so much a set of requirements, but "more like what you'd call guidelines than actual rules." Too often, we have experienced condemning agencies treating the requirements of the applicable eminent domain statutes more like guidelines, than actual rules that cabin their authority. Their approach seems to be "we're going to get the property anyway, so what's the difference whether we strictly stick to the rules?" We think, as the Georgia court concluded, that eminent domain statutes are strictly construed for a reason: with great power comes great responsibility, and when exercising a power to deprive an owner of their property, the agency has a supreme obligation to follow the rules "just so." It's a point that we often make with courts, but that we note is honored more regularly in the breach than in the actual observance.
But as the Georgia court rightly noted, the requirements of the statute aren't there simply to make humbug for agencies, but "to protect property owners from abuse of the power of eminent domain at all stages of the condemnation process." Slip op. at 13. The only real difference the Supreme Court had with the court of appeals' approach is that it asked too much: "And dismissing the condemnation petition is an appropriate remedy where a condemning authority has acted outside its authority by violating the law, irrespective of bad faith." Slip op. at 27. Having failed to adhere to the statue, the city's condemnation was ultra vires.
Those of us outside of Georgia where this opinion is not binding precedent should still take a close read of the case. We think other courts will be positively influenced by the court's approach and its analysis, even if your eminent domain code doesn't have exactly the same language.
If this topic fascinates you as it does us, be sure to join us in Charleston, South Carolina in January 2018 for the 35th Annual ALI-CLE Eminent Domain and Land Valuation Litigation Conference, where we have scheduled a session on "Strict Construction: How to Make it Work in the Courtroom," with Dana Berliner of the Institute for Justice, and Stephen D. Gurr of Bryan Cave (Denver). Their session will walk us through the various approaches the courts take, and how to connect the dots in your case.