Can I Stop The Government From Taking My Land?
One of the most common questions we get after a property owner is served with an eminent domain action is: “Is there anything I can do to stop the government from taking my land?” Generally, a property owner cannot stop an eminent domain action; however, a property owner does have the right to appeal the amount that the condemning authority decides is just and adequate compensation for the property and, in some unique cases, the property owner may be able to have the entire eminent domain action “set aside.” This blog post will discuss the procedures used in eminent domain actions and the benefits of filing an appeal or a set aside of the condemnation judgment.
The types of procedures generally vary between the three different types of condemnation: (1) the Assessor Method, (2) the Special Master Method, or (3) the Declaration of Taking Method. A prior blog post explained the similarities and differences between these three types of condemnation. However, in all three cases, the eminent domain action must begin by a notice or a petition that is served on the property owner and any other person having an interest in the property. At that point, the condemning authority must provide the property owner with its proposed amount of just and adequate compensation as well as follow other procedures relevant to including the property owner in the process as discussed below.
After the condemnation judgment has been entered the property owner has three options: accept the judgment, appeal the condemning authority’s amount of just and adequate compensation, or file a set aside to stop the eminent domain action. In most of our cases, an appeal of the condemning authority’s amount of just and adequate compensation makes the most sense as the condemning authority conveniently fails to take into account many important factors when calculating its amount of damages. On the other hand, in some instances, based on the conduct of the condemning authority, it is more practical to file a set aside of the condemnation judgment.
Under the Supreme Court of Georgia’s decision in 2017 in City of Marietta v. Summerour, a condemnation petition is ripe for dismissal if the condemning authority fails to meet its burden of establishing a valid “public use” for the property or if the condemning authority fails to comply with O.C.G.A. §§ 22-1-9 and 22-1-10. Some of the rights granted to property owners by these statutes include the right to access the information obtained from the appraisal of his or her property, the right to accompany the appraiser during his or her inspection of the property, and the right to attend and be heard at any such public meeting where the condemning authority approves the eminent domain action. If the condemning authority does not follow these procedures or if the property owner can demonstrate that he or she was prevented from proving his or her damages in the condemnation case because of fraud, accident, mistake, or the improper acts of the condemning authority, unmixed with the negligence or fault of the property owner, the property owner can seek damages in addition to having the condemnation action set aside.
The next question then becomes, what happens when the condemnation action is “set aside.” At best, the set aside could cause the condemning authority to rethink its processes, procedures, and intention with respect to the property. However, in most if not all cases, the set aside just delays the inevitable—it causes the condemning authority to start the condemnation process all over again. Some property owners see this as just delaying what is sure to happen, but for others, they see it as more time to have with their property and showing the condemning authority that if their land is going to be taken, it is going to have to be taken the right way with no shortcuts. Regardless of which side of the fence you’re on, it is important to have experienced legal representation throughout all of these processes.
If you have been contracted by a condemning authority related to a proposed or pending acquisition of your property, our firm would be happy to speak with you about your rights and expectations. We can be contacted at 770-957-3937 or at email@example.com.
Smith, Welch, Webb & White, LLC., is recognized as a premier law firm throughout the state of Georgia with expertise in this area of law. We have an uncompromising commitment to serving our clients and community. Our team of experts routinely handles a wide range of legal matters beyond just eminent domain, and will be happy to provide outstanding service for you, your family, or business.
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