Adc Invs., LLC v. Dep't of Transp.

• Decision Date: 06 February 2014
• Docket Number: No. A13A2420.,A13A2420.
• Citation: 325 Ga.App. 685,754 S.E.2d 648
• Court: Georgia Court of Appeals
• Parties: ADC INVESTMENTS, LLC v. DEPARTMENT OF TRANSPORTATION.

325 Ga.App. 685

754 S.E.2d 648

ADC INVESTMENTS, LLC

v.DEPARTMENT OF TRANSPORTATION.

No. A13A2420.

Court of Appeals of Georgia.

Feb. 6, 2014.

Mahaffey Pickens Tucker, Gerald Davidson Jr., Lawrenceville, for Appellant.

Luther Harold Beck, Jr., Asst. Atty. Gen., Buford, Chandler, Britt, Jay, Beck & Zwald, James Russell Little, Samuel S. Olens, Atty. Gen., for Appellee.

McMILLIAN, Judge.

In this condemnation action, ADC Investments, LLC (“ADC”) appeals the trial court's partial grant of summary judgment, precluding ADC from presenting evidence about an anticipated stream of income from a changeable, digital billboard which ADC claims would likely have been installed on the condemned property. The Georgia Department of Transportation (“DOT”), on the other hand, asserts that ADC's damages are limited to the value of the property as it existed on the date of the taking, i.e., with a static billboard, since zoning ordinances at the time barred the construction of a digital billboard on the site. Based on our review of the record, we reverse and remand for further proceedings consistent with this opinion.

The facts are largely undisputed.¹ This condemnation action involves a 25–square foot parcel of real property located in the City of Lawrenceville, Gwinnett County, Georgia, near the intersection of Highway 316 and State Route 20. The only improvement on the property on the date of the taking, February 11, 2011, was a static, double-facedbillboard. An entity related to ADC, Crown Media, LLC (“Crown Media”) owned the property. In 2003, Crown Media leased the site to ADC under a 99–year lease (the “Lease”), and ADC in turn subleased the parcel to The Lamar Company, LLC ² (“Lamar”). The sublease commenced on the same date as the Lease and also had a 99–year term (the “Sublease”). As of the date of the taking, the Lease and the Sublease both had remaining terms of approximately 91 years.

The Sublease provided for a minimum fixed guaranteed annual rent payable from Lamar to ADC and also provided for an alternative rent calculation whereby Lamar would pay ADC 25 percent of its net revenues if such amounts exceeded $12,000 per year. The Sublease also authorized Lamar to alter or replace the billboard structure itself during the term of the Sublease.

As of the date of taking, the City of Lawrenceville had in place an outdoor advertising sign ordinance which specifically prohibited digital signs in all zoning districts, except for non-profit entities under certain circumstances. However, on February 7, 2011, four days before the taking, the City of Lawrenceville, in a meeting of the mayor and council, conducted a “first reading” of an amendment to the ordinances that would specifically permit digital signs under certain circumstances, and less than four months after the date of taking, the City of Lawrenceville amended its sign ordinances to permit digital advertising at certain sites, including the corridor abutting ADC's property. Nine months after the taking, the City of Lawrenceville authorized Lamar to erect a digital billboard within 100 feet of and immediately adjacent to the site.³ A Lamar executive also testified that Lamar would have located a digital billboard upon the ADC property but for the condemnation. During discovery, ADC presented expert testimony about the anticipated stream of income from the digital billboard and its potential effect on the value of its leasehold interest.

In advance of trial, DOT moved for partial summary judgment, asserting that ADC should not be able to present evidence on this anticipated future income stream because the site should be valued as of the date of taking and the conversion to digital was impermissibly remote and speculative. The trial court agreed, and this appeal followed.

1. In three related enumerations of error, ADC asserts that the trial court erred in granting partial summary judgment to DOT, thereby precluding ADC from recovering just and adequate compensation as a result of the taking. ⁴ See Ga. Const. of 1983, Art. I, Sec. III, Par. I(a). In conducting this de novo review of the grant of summary judgment, we keep this principle in mind: “It has long been the policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” (Citation and punctuation omitted.) Gwinnett County v. Ascot Investment Co., 314 Ga.App. 874, 877(2), 726 S.E.2d 130 (2012).

But this liberality is not without its bounds. In the context of evidence of zoning changes that could affect value, our Supreme Court has held that “[f]or such evidence to be admissible, the condemnee must show that a change in zoning to allow the usage is probable, not remote or speculative, and is so sufficiently likely as to have an appreciable influence on the present market value of the property.” Unified Government of Athens–Clarke County v. Watson, 276 Ga. 276, 277, 577 S.E.2d 769 (2003) (relying on Colonial Pipeline Co. v. Williams, 206 Ga.App. 303, 304, 425 S.E.2d 380 (1992) and Civils v. Fulton County, 108 Ga.App. 793, 797, 134 S.E.2d 453 (1963)). See also Dept. of Transp. v. Jordan, 300 Ga.App. 104, 105–106, 684 S.E.2d 141 (2009). Moreover, when considering a different potential use for a condemned property:

The fact that the property is merely adaptable to a different use is not in itself a sufficient showing in law to consider such different use as a basis for compensation; it must be shown that such use of the property is so reasonably probable as to have an effect on the present value of the land.

(Citation omitted.) Dept. of Transp. v. Patten Seed Co., 290 Ga.App. 532, 532(1), 660 S.E.2d 30 (2008). See also Woodland Partners Ltd. Partnership v. Dept. of Transp., 286 Ga.App. 546, 550(3), 650 S.E.2d 277 (2007).

2. With these principles in mind, we turn now to the primary issues in this case—whether it was reasonably probable and sufficiently likely that the City of Lawrenceville's sign ordinances would have been amended to allow a digital billboard, that once permitted it was reasonably probable that Lamar ⁵ would have converted the static billboard to digital, and that such changes would have had an appreciable impact on the value of the property at the time of taking.

With respect to these issues and in opposition to the motion for partial summary judgment, ADC propounded evidence of: (1) a high demand for digital advertising in the area surrounding the property; (2) the property was particularly suited for digital advertising; ⁶ (3) four days before the date of taking, the City of Lawrenceville began the process of amending its sign ordinances to allow for digital billboards and the ordinances were actually amended nine months after the taking; (4) after the sign ordinances were amended, Lamar constructed a digital billboard within 100 feet of the condemned property and adjacent to the property; and (5) a Lamar executive testified that Lamar preferred the ADC property as a location for the digital billboard and would have converted the billboard to digital, but for the condemnation. Moreover, ADC produced expert testimony showing that the present market value of its leasehold interest would be significantly impacted with a digital billboard in place.

Based on this record, we find that genuine issues of material fact exist as to the reasonable probability that the sign ordinances would have been amended and the billboard converted to digital and that these...