Eminent Domain and Attorneys' Fees in Georgia: a Growing State's Need for a New Fee-shifting Statute
| Jurisdiction | Georgia,United States |
| Publication year | 2010 |
| Citation | Vol. 27 No. 4 |
Georgia State University Law Review
Article 14
3-13-2012
Eminent Domain and Attorneys' Fees in Georgia: A Growing State's Need for a New Fee-Shifting Statute
Crystal Genteman
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Recommended Citation
Genteman, Crystal (2010) "Eminent Domain and Attorneys' Fees in Georgia: A Growing State's Need for a New Fee-Shifting Statute ," Georgia State University Law Review: Vol. 27: Iss. 4, Article 14. Available at: http://digitalarchive.gsu.edu/gsulr/vol27/iss4/14
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EMINENT DOMAIN AND ATTORNEYS' FEES IN GEORGIA: A GROWING STATE'S NEED FOR A NEW FEE-SHIFTING STATUTE
Crystal Genteman*
Introduction
"The domestic tranquility is gone," said Jacksonville, Florida resident Joseph Santoni, whose front yard was partially taken by the Jacksonville Transit Authority (JTA) for a four year construction easement.1 After the JTA started widening the two lane historic and scenic Fort caroline Road into a four lane, Santoni often found his driveway blocked by construction equipment and his landscaping torn up.3 Like many state constitutions and the Federal Constitution,4 Florida's constitution guarantees that property owners receive just compensation when their property is taken.5 For the forty-eight month easement, the JTA offered Santoni a mere $1,400 in compensation.6 Dissatisfied with the JTA's offer, Santoni, along with nineteen other Fort Caroline Road property owners, took their cases to trial.
Although Florida juries awarding just compensation typically are not allowed to consider the impact of a taking on the adjacent property, Santoni's attorney argued that Florida case law often recognized an exception in road projects. Thus, Santoni's attorneys,
* J.D. Candidate, 2011, Georgia State University College of Law. I would like to thank Christian Togrimson and Professor Colin Crawford for their assistance.
1. Tony Quesada, Jury to Decide Compensation in Road Project Partial Takings, Jacksonville Bus. J., Aug. 18, 2006, available at http://jacksonville.bizjournals.com/jacksonville/ stories/2006/08/21/story04.html.
2. Kandace Lankford, Canal, Trees on Minds of Planners, Fla. Times-Union, Mar. 20, 2002, available at http://jacksonville.com/tu-online/stories/032002/neR_8904323.shtml.
3. Quesada, supra note 1.
4. U.S. Const. amend. V.
5. Fla. Const. art. X, § 6.
6. Tony Quesada, JTA Must Pay More for Wonderwood Property, Jacksonville Bus. J., Aug. 28, 2006, available at http://jacksonville.bizjournals.com/jacksonville/stories/2006/08/28/daily1 .html.
7. Id.
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who also represented the other homeowners, argued that the JTA had failed to recognize the damage that would be done to the homeowners' property adjacent to the road in addition to the damages caused to the actual part taken.9 Mr. Santoni's trial was combined with two of the other homeowners, and at the joint trial, the jury awarded Mr. Santoni $40,000.10 The total judgment for all three homeowners was $105,150 more than the JTA had originally offered.11 "We wanted to make them whole because they were
sacrificing for the good of the community," said one juror. Florida's fee-shifting statute requires that property owners are made whole
through the reimbursement of their attorneys' fees, and following an extensive hearing, the circuit judge entered a final judgment on costs requiring the JTA to pay a substantial portion of the owners' litigation expenses.14 Without a fee-shifting statute, would the Fort Caroline Road residents have been able to challenge the government's offers? Is mandating that the government pay property owners' attorneys' fees in eminent domain cases therefore necessary to ensure that property owners receive just compensation and are made whole?
Until 2006, Georgia also had a fee-shifting statute.15 However, the General Assembly repealed the statute as part of Georgia's eminent domain reform,16 which was enacted in reaction to the Supreme
Court's decision in Kelo v. City of New London. Georgia, like
9. Id.
10. Id.
11. Id.
12. Quesada, supra note 6.
13. Fla. Stat. § 73.092(1) (2009).
14. Jacksonville Transp. Auth. v. McEldowney, No. 02-02083-CA CV-C, Duval County, Fla. (2007) (on file with author). See infra notes 145-57 for a detailed explanation of the mechanics of Florida's fee-shifting statutes.
15. Ga. Code Ann. § 22-2-84.1 (1982), repealed by 2006 Ga. Laws 39, § 6.
16. HB 1313, 2006 Ga. Gen. Assem.
17. Kelo v. City of New London, 545 U.S. 469 (2005) (holding that the city could authorize a private developer to take landowners' properties for a large-scale redevelopment project because it constituted a "public use" under the Fifth Amendment). In a dissenting opinion, Justice O'Connor warned that following the holding, "[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory." Id. at 503 (O'Connor, J., dissenting).
Public outcry was swift and fierce to the Court's interpretation of "public use." Michael Allen Wolf, Hysteria Versus History: Public Use in the Public Eye, in Private Property, Community
2011] EMINENT DOMAIN AND ATTORNEYS' FEES 831
almost every other state, passed substantial eminent domain reform with the intent of preventing eminent domain from being used in redevelopment projects as it was in Kelo, while also providing citizens with more procedural protections.19 One such procedural
protection was the repeal of Georgia's former fee-shifting statute because the statute had a chilling effect on eminent domain
litigation. A property owner who appealed an award of just compensation could not be reimbursed for his own litigation expenses even if he received a larger amount on appeal than the government's initial offer; however, if the property owner did not recover a certain amount on appeal, he would be forced to pay the government's
expenses. Through repealing the statute, the General Assembly removed an important barrier to litigation for property owners who feared having to pay the government's expenses. However, this left a gap in Georgia law because the General Assembly failed to enact a new fee-shifting statute, such as Florida's statute, that would reimburse property owners who are successful in their appeals for their attorneys' fees in eminent domain litigation—thus ensuring they are made whole.
Georgia's constitution guarantees that private property will not be
taken without "just and adequate compensation." Although owners and condemning authorities often disagree about a dollar figure that is "just and adequate," many property owners lack the sufficient resources to challenge the government in an eminent domain proceeding if they feel the government's offer is too low. For those
Development, and Eminent Domain 15 (Robin Paul Malloy ed., 2008) (documenting the chronology of extensive negative media coverage following the decision and arguing that the newsworthiness of the decision at the time it was announced, the sharp dissents in Kelo, and the explosion of politically conservative media were substantial factors influencing public response to the opinion).
18. Castle Coalition, 50 State Report Card: Tracking Eminent Domain Legislation Since Kelo 1 (2007) (noting that two years after the Kelo decision, forty-two states had passed some form of eminent domain reform).
19. Jody Arogeti et al., General Provisions and Condemnation Procedure: Provide a Comprehensive Revision of Provisions Regarding the Power of Eminent Domain, Crimes and Offenses, 23 Ga. St. U. L. Rev. 157 (2006).
20. Id. at 179.
21. See infra notes 115-26.
22. Ga. Code Ann. § 22-2-84.1 (1982), repealed by 2006 Ga. Laws 39, § 6.
23. Ga. Const. art. I § 3, 1 1.
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who can either afford to hire an attorney or find an attorney who will work on a contingent fee basis, any potential recovery is offset by
litigation expenses, including attorneys' fees.
Due to Georgia's extensive growth in recent years, Georgia landowners are in special need of a statute authorizing the recovery of attorneys' fees for property owners in eminent domain proceedings. Between 1990 and 2000, Georgia saw a 26.4%
25
population increase.25 Experts expect this rapid growth to continue and predict that the state's population will swell by 34% between the years 2000 and 2015.26 Population growth increases demand for state services, which in turn results in more instances of condemnation of
private property for public use. With such dramatic changes in a relatively short period of time, Georgia has encountered some severe
28
growing pains.28 Although Atlanta is the eighth-largest metropolitan
24. See infra notes 194-223 for a detailed discussion of financial limitations on the property owner's ability to litigate his position.
25. Governor's Office of Plan. & Budget, Georgia in Perspective 8 (2009), http://opb.georgia.gov/vgn/images/portal/cit_1210/45/18/162784478Georgia_in_Perspective_2009.pdf. Between 2000 and 2007, Georgia's population grew at 16.6%, "more than twice the national growth rate of 7.2%." Id at 9. During the same time period, Georgia's population growth was the fastest of all Southern states, even outpacing Florida. Id.
26. Governor's Office of Plan. & Budget, Georgia 2015 Population Predictions 1 (2005), http://www.opb.state.ga.us/media/3016/georgia_population_projections_reduced_web_5_25_05.pdf.
27. See Memorandum from the Georgia Department of Transportation Office of Right of Way Acquisition (Nov. 6, 2009) (on file with author)...
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