Allright Auto Parks, Inc. v. City of Atlanta

• Decision Date: 15 July 1987
• Docket Number: No. 43946,43946
• Citation: 257 Ga. 315,357 S.E.2d 797
• Parties: ALLRIGHT AUTO PARKS, INC. et al. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

Page 797

357 S.E.2d 797

257 Ga. 315

ALLRIGHT AUTO PARKS, INC. et al. v. CITY OF ATLANTA.

No. 43946.

Supreme Court of Georgia.

July 15, 1987.

Reconsideration Denied July 30, 1987.

John W. Bonds, Jr., Richard L. Robbins, Sutherland, Asbill & Brennan, Atlanta, for Allright Auto Parks, Inc., et al.

Thomas A. Bowman, William Lee Roberts, Maria Jones Brooks, Robert L. Zoeckler, Fulton County Tax Comm'r, Doris R. Williams, Municipal Revenue Collector, Atlanta, for City of Atlanta.

Kutak, Rock & Campbell, Felker W. Ward, Jr., J. Lanier Meeks, Long, Aldridge & Norman, Clay C. Long, Amici Curiae.

PER CURIAM.

This is an appeal from a judgment of condemnation in the Superior Court of Fulton County. We affirm.

The condemnation is associated with the redevelopment of the old Underground Atlanta district in Atlanta. The history of the planned redevelopment has been summarized by this court in two earlier cases, Nations v. Downtown Development Authority of the City of Atlanta, 255 Ga. 324, 338 S.E.2d 240 (1986), and Nations v. Downtown Development Authority of the City of Atlanta, 256 Ga. 158, 345 S.E.2d 581 (1986). Those appeals concerned challenges to the validation of bonds to finance the development. In the instant litigation, the appellants own and operate a parking lot at the corner of Martin Luther King Boulevard and Pryor Street in Atlanta which the City of Atlanta is attempting to condemn as part of the site for a parking garage which will be part of the Underground Atlanta redevelopment.

On April 26, 1985, the Director of the City of Atlanta Bureau of Purchasing & Real Estate, Dave Miller, mailed a letter to the appellants' office in Houston, Texas, which they received on April 30. The letter notified them that their parking lot was scheduled for acquisition as part of the redevelopment, and informed them that under OCGA § 36-61-9(c) they had the option of notifying the appellee of their willingness and intention to develop and maintain the property in accordance with the appellee's urban redevelopment plan, see OCGA § 36-61-2(20). Thereafter, the appellants attempted to learn the details of the plan's specifications for the development of their property, in order to determine whether they wished to exercise their option under § 36-61-9(c). No specifications were made available by the appellee.

In July 1985, the appellee filed a complaint for an in rem condemnation proceeding pursuant to OCGA § 22-2-100 et seq. and OCGA § 36-61-1 et seq. In its complaint the appellee alleged that acquisition of the appellants' property was necessary for the Underground Atlanta Urban Redevelopment Project. A special master appointed by the superior court conducted an evidentiary hearing.

At the hearing, Gary Holmes, Chief of the City of Atlanta Office of Economic Development, testified that he had participated in discussions with "Mr. Miller and [City?] Council [and] [m]embers of the City Attorney's office" about sending the letter. He said "the basic nature of the discussions was adequate notice to people who can participate in the plan...." When questioned about why the letter had been sent, he replied that, "[v]ery simply, we sent the wrong letter." Director Miller testified that the letter of April 26 had been sent by mistake. When asked whether he had discussed the letters to property owners with the City Attorney's office before they went out, he replied, "No, we had discussions on the process by which clients would be notified. I'm not saying we specifically had a discussion relative to [the appellants' property] as opposed to any--any of the others."

Mr. Holmes gave his opinion that acquisition of the appellants' property and construction of a parking facility on it was necessary for completion of the overall redevelopment project. He testified that as of the date of the hearing the appellee was preparing but had not yet completed plans for the particular type of parking structure which was to be placed on the appellants' property. According to Mr. Holmes, if the condemnation were successful, the appellee planned to retain ownership of the land and then lease it to the Downtown Development Authority (hereafter, DDA). The facility then would be either leased to or operated under contract by a private company. Holmes testified that this was merely his understanding of how the facility would be operated, since this point was not specified in the urban redevelopment plan. ¹ Mr. Holmes also told the special master that the parking structure would be open to citizens using other buildings or areas outside Underground Atlanta.

Thereafter, the special master filed an award recommending condemnation of the subject property for the use of the appellee, and the condemnees filed exceptions. The appellee filed an amendment to its complaint for condemnation, adding 1983 Ga. Const., Art. IX, Sec. II, Par. III(a)(11) as an additional ground for condemnation. In April 1986 the superior court entered judgment for the appellee, overruling and denying all of the appellants' exceptions.

1. The appellants contend that the appellee's letter of April 26, 1985, should estop it from denying the appellants the opportunity of developing its property in accordance with the urban redevelopment plan, once finalized. We disagree, because the appellants have not shown that "it was the governing body, i.e., city council, rather than a mere employee carrying out a ministerial function, which knowingly chose or did such act which it tried to undo." Corey Outdoor Advertising v. Board of Zoning Adjustment of the City of Atlanta, 254 Ga. 221, 224(3), 327 S.E.2d 178 (1985). The testimony of city officials Miller and Holmes, while suggestive of the exercise of authority conferred by city council, is not specific enough to meet this test. Moreover, the fact that the appellants' employees fruitlessly attempted to comply with the letter of April 26, 1985, does not constitute a substantial change in position detrimental to the appellants. See P.C. Gailey Contractors v. Exxon Co., 143 Ga.App. 827(2), 240 S.E.2d 208 (1977).

2. The superior court found that the appellee is not subject to the requirements of OCGA § 36-61-9(c), because the subject property is to be used for a "public use." Appellants contend that this holding is erroneous. We disagree.

Section 36-61-9 (c) states that "[u]nless the property is to be acquired for the purpose of devoting it to a public use, a municipality or county may not acquire real property through the exercise of the power of eminent domain pursuant to subsection (a) of this Code section until the following conditions and requirements have been met: (1) The municipality or county shall, in writing, notify the owner of the real property proposed to be acquired of the planned use of the property as set forth in the urban redevelopment plan for the urban redevelopment area wherein the property is located. (2) Within 30 days after being so notified, the owner of the property shall have the option of notifying the municipality or county, in writing, of his willingness and intention to develop and maintain the property in accordance with the urban redevelopment plan.... (3) When the owner of such real property exercises the option provided by paragraph (2) of this subsection, the municipality or county shall make an investigation to determine the ability of the owner to develop and maintain the property in accordance with the urban redevelopment plan. In making such an investigation, the municipality or county shall examine the financial and legal ability of the owner and such other factors as may be relevant to making the determination. (4) If the municipality or county determines that the owner of such real property has the ability to develop and maintain the property in accordance with the urban redevelopment plan, the owner shall have the right to retain ownership of the property by executing an agreement with the municipality or county to develop and maintain the property in accordance with the urban redevelopment plan. Any such agreement shall be as the municipality or county deems necessary and appropriate as to form and content...." (Emphasis supplied.)

The issue for this court to decide is, stated simply, whether the planned parking structure is to be devoted to a "public use" or a "non-public use" within the meaning of OCGA § 36-61-9(c). If, as the trial court held, it is to be devoted to a "public use," then the requirements of § 36-61-9(c) are not triggered. Moreover, because the Urban Redevelopment Law does not expressly define the term "public use" for purposes of applying § 36-61-9, it is our task to infer the intended meaning.

We have held that the question of public necessity or public purpose is a matter of legislative discretion which will not be interfered with or controlled unless the condemning authority acts in bad faith. City of Atlanta v. Heirs of Champion, 244 Ga. 620, 261 S.E.2d 343 (1979). We have distinguished bad faith from negligence and have gone so far as to equate it with conscious wrongdoing motivated by improper interest or by ill will. City of Atlanta v. First National Bank of Atlanta, 246 Ga. 424, 271 S.E.2d 821 (1980).

In City of Atlanta v. Petkas, 253 Ga. 447, 321 S.E.2d 725 (1984), we again recognized this court's...