Zoning and Land Use Law - Dennis J. Webb, Jr., Marcia Mccrory Ernst, Joseph L. Cooley, John Chadwick Torri, and Victor A. Ellis

• Publication year: 2007

Zoning and Land Use Lawby Dennis J. Webb, Jr.^* Marcia McCrory Ernst^** Joseph L. Cooley^*** J. Chadwick Torri^**** and Victor A. Ellis^*****

This Article provides a succinct and practical analysis of the significant judicial decisions in the area of zoning and land use law that were handed down by Georgia appellate courts between June 1, 2006 and May 31, 2007. The cases surveyed fall primarily within five categories: (1) condemnation, (2) nuisance and trespass, (3) easements and restrictive covenants, (4) zoning, and (5) miscellaneous.

I. Condemnation

During the survey period, Georgia appellate courts decided several condemnation cases, many of which did not involve novel issues. The Georgia Supreme Court, however, did consider one interesting case involving the eminent domain powers of private utility companies and another case involving the date of taking for valuation purposes when the condemnation petition is amended. Additionally, the Georgia Supreme Court examined two cases addressing the public use requirement for urban redevelopment condemnations as well as a series of cases dealing with various evidentiary and procedural issues.

A. Paramount Power of Electric Power Utility Companies to Condemn Property

Recently, several counties have attempted to use their land use regulatory powers to prevent or limit eminent domain condemnations by electric power utility companies ("EPUC"). However, various superior courts and the Georgia Supreme Court have rejected the counties' actions and reaffirmed that the eminent domain powers of private EPUCs preempt local zoning and land use laws.

In Forsyth County v. Georgia Transmission Corp.,¹ Forsyth County enacted an ordinance that required the approval of the Forsyth County Board of Commissioners before an EPUC could construct high-voltage power lines.² The supreme court held that the ordinance violated the Home Rule Act of the Georgia constitution³ by infringing on the EPUC's exercise of the power of eminent domain.⁴

Georgia Transmission Company ("GTC") is a nonprofit corporation comprised of multiple electric membership corporations that collectively distribute, transmit, and sell electric power throughout Georgia. In 2002 GTC began plans to construct an electric transmission line in Forsyth County and began acquiring property for the project.⁵

In June 2004 Forsyth County amended its code to create the Forsyth County Power Transmission Line Overlay Zoning District (the "PTL-OD Ordinance").⁶ The preamble to the resolution creating the PTL-OD Ordinance provided that the construction or installation of any new electric power transmission lines "'shall be prohibited unless and until the electric utility associated therewith successfully complies with the PTL-OD procedures being created by this Resolution.'"⁷ The new PTL-OD Ordinance required GTC to apply for a zoning map amendment for its proposed transmission line and obtain overlay zoning approval from Forsyth County for construction and operation.⁸ Additionally, the ordinance required GTC to prove that "the conditions governing the construction, operation, and maintenance of the transmission [line were] appropriate."⁹ The PTL-OD Ordinance further allowed GTC to apply for an overlay prior to acquiring property for the transmission line in order to "'allow Forsyth County to exercise reasonable zoning regulatory authority over the siting of high power transmission lines without first requiring the utility to go to the possible wasteful expense of acquiring ownership of its preferred route before obtaining final land use authorization.'"¹⁰

GTC brought a declaratory judgment action against Forsyth County and its board of commissioners challenging the constitutionality of the PTL-OD Ordinance. The trial court ruled that the PTL-OD Ordinance was an unconstitutional infringement upon GTC's power of eminent domain, thereby violating the home rule provisions of the state constitution.¹¹

On appeal, the Georgia Supreme Court first noted that the Home Rule Act of the Georgia constitution "grants the governing authority of each county the legislative authority 'to adopt clearly reasonably ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution.'"¹² The court next noted that the constitution "further provides that the powers granted to counties pursuant to the home rule provision, 'shall not be construed to extend to . . . [any] [a]ction affectingthe exercise of the power of eminent domain.'"¹³

Then, the supreme court stated that "[t]he general law authorizes an EPUC to exercise the power of eminent domain to effectuate the purpose of furnishing electric power and service."¹⁴ Thus, the court held that "GTC is a condemning body with the authority to act as the exclusive judge of the necessities of the public needs."¹⁵

The supreme court noted that in the recent cases of Rabun County v. Georgia Transmission Corp.¹⁶ and Cobb County v. Georgia Transmission Corp.,¹⁷ it held that "certain county ordinances violated the home rule provision by effectively infringing on an EPUC's exercise of its statutory power of eminent domain to acquire property for the construction of a high-voltage power line."¹⁸ In both cases, the counties enacted a moratorium on the construction of new high-voltage transmission lines, and GTC brought declaratory judgment actions challenging the ordinances. The trial courts in both cases determined that the ordinances infringed on GTC's power of eminent domain.¹⁹ In both cases, the Georgia Supreme Court affirmed the trial courts' rulings, holding that the "ordinances blocked GTC's purpose of constructing high voltage transmission lines and thus violated the home rule provision by affecting the power of eminent domain."²⁰

However, in Forsyth County, the County argued that its PTL-OD Ordinance, unlike the ordinances in Rabun County and Cobb County, was not a moratorium or a per se obstruction to GTC's exercise of eminent domain.²¹ The County argued that its PTL-OD Ordinance "does not unconstitutionally affect GTC's power of eminent domain because it provides only 'modest oversight,' and fosters and augments, rather than halts, an applicant's plans."²² The Georgia Supreme Court rejected these arguments, however, finding that the PTL-OD Ordinance "forbids the erection of GTC's electric power transmission line unless GTC successfully complies with the procedures established by the [PTL-OD O]rdinance, and it authorizes Forsyth County to deny 'any or all' portions of an application."²³ Thus, the Georgia Supreme Court held that this "power to wholly preclude construction is an unconstitutional infringement on GTC's legislatively-delegated power of eminent domain."²⁴

B. Date of Taking for Valuation Purposes is the Date that Condemnor Pays the Amount of the Special Master's Award into the Registry of the Court

In Orr v. Georgia Transmission Corp. ("Orr II"),²⁵ the Georgia Supreme Court ruled that the Georgia Court of Appeals erred when it determined in Orr v. Georgia Transmission Corp. ("Orr I")²⁶ that the date of a taking occurs when the original condemnation petition is filed.²⁷ In a unanimous opinion written by Justice P. Harris Hines, the supreme court held that under the circumstances of the case, the date of the taking occurred when the "condemnor paid the amount of the special master's award into the registry of the court pursuant to the superior court's order making [the] award the judgment of the court."²⁸

On October 30, 2001, Georgia Transmission Corporation ("GTC") filed a condemnation petition in the Forsyth County Superior Court seeking a right of way easement for certain electric transmission lines. The petition also sought an easement to enter onto adjoining lands to remove dangerous trees ("dangerous tree maintenance easement"). On December 19, 2001, the special master awarded Orr $15,775 as the fair market value of the property condemned and $16,000 in consequential damages to the remaining property.²⁹

Thereafter, Orr timely filed a notice of appeal for a jury trial on the issues of value and damages. Orr also filed exceptions to the ruling on nonvalue issues, asserting that the portion of GTC's petition involving the dangerous tree maintenance easement was vague and indefinite and an unconstitutional exercise of the power of eminent domain. The superior court overruled the exceptions and entered a judgment adopting the award of the special master on March 22, 2002.³⁰ "The judgment provided that upon payment into the registry of the court the total sum of $31,775, the condemnor would be vested with title to the condemned property."³¹ On June 5, 2002, GTC paid the amount of the award into the registry of the court.³²

Before the case was called for trial on the issue of value and damages, the Georgia Court of Appeals held in the case of Mosteller Mill, Ltd. v. Georgia Power Co.³³ that "a 'danger[ous] tree' maintenance easement is effective only if it accurately and definitely describes the interest being taken."³⁴ Accordingly, on October 13, 2005, the parties filed a consolidated pretrial order in which they stipulated to an amendment to the petition to remove the dangerous tree maintenance easement.³⁵ Orr then filed a motion to elect October 13, 2005, the date of the amendment, as the date of taking.³⁶ Citing Official Code of Georgia Annotated ("O.C.G.A.") section 22-2-109,³⁷ the superior court rejected such election and ordered the date of taking to be October 30, 2001, the date GTC filed its original petition.³⁸ Orr appealed to the Georgia Court of Appeals the trial court order setting the date of taking as the date of the original petition. The court of appeals affirmed the trial court order.³⁹

In doing so, the Georgia Court of Appeals distinguished Dorsey v. Department of Transportation,⁴⁰ which allowed a condemnee the right to elect whether the date of...