Department of Transp. v. Poole
| Decision Date | 23 June 1986 |
| Docket Number | No. 71909,71909 |
| Citation | 179 Ga.App. 638,347 S.E.2d 625 |
| Parties | DEPARTMENT OF TRANSPORTATION v. POOLE et al. |
| Court | Georgia Court of Appeals |
Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Roland F. Matson, Sr. Asst. Atty. Gen., Charles J. Driebe, for appellant.
G. Robert Oliver, Jonesboro, for appellees.
Appellee O'Dell G. Poole owned a mobile home park and several acres of undeveloped land adjacent to it. In 1968, 1970, and 1972, appellee applied for a rezoning for the adjacent land so that she could expand her trailer park; on each occasion the Clayton County Board of Commissioners (Board) denied the application. In 1981, appellant Department of Transportation (DOT) condemned a portion of appellee's undeveloped land for a right-of-way for Highway I-675. At the condemnation trial, appellee sought to present evidence to show that the DOT influenced the Board's decisions to deny her zoning requests in order to preserve the DOT's ability to obtain the right-of-way at a lower cost. Appellee also sought to prove that because the requests were denied at the DOT's behest, she was prevented from earning $105,000 in profit from the planned trailer park expansion. The trial court allowed the evidence to be presented to the jury, characterizing the lost profits as "other damages," and the jury returned a verdict in appellee's favor on the issue. In most of its 15 enumerations of error, appellant contests the trial court's decisions to admit the evidence and to allow the jury to consider whether appellee was entitled to the "other damages." We find that the "other damages" issue was not properly before the jury.
1. Appellant's first ten enumerations address essentially the same issue--whether or not the DOT's alleged influence of the Board's zoning decisions against appellee was a wrong that could be redressed in the condemnation proceeding. After analyzing this case, we conclude that appellee was seeking redress against the wrong entity in the wrong forum at the wrong time. Assuming that the DOT did influence the zoning decisions, the final, official decisions to deny appellee's zoning requests were made by the Clayton County Board of Commissioners; it was that Board, not the DOT, that was to be held accountable for those zoning decisions. Barrett v. Hamby, 235 Ga. 262, 265, 219 S.E.2d 399 (1975). Id. If appellee felt that the zoning decision was improper or unjustified, she should have challenged the constitutionality of the zoning ordinance as it was applied to her property by filing suit against Clayton County within 30 days of the adverse decision. Village Centers v. DeKalb County, 248 Ga. 177, 281 S.E.2d 522 (1981); Tuggle v. Manning 224 Ga. 29, 159 S.E.2d 703 (1968). Appellee would then have had the opportunity to prove by presenting clear and convincing evidence that the zoning classification was significantly detrimental to her and was in substantially related to the public health, safety, morality and welfare. Once she did so, the burden would have shifted to the county to prove that the zoning was justified. Brown v. Dougherty County, 250 Ga. 658, 300 S.E.2d 509 (1983); Flournoy v. City of Brunswick, 248 Ga. 573, 285 S.E.2d 16 (1981). If the county could carry its burden of proof, appellee would not be entitled to any relief. If the county could not carry its burden, appellee would have been entitled to the zoning change sought and could have proceeded accordingly. Since appellee did not pursue this course of action, she was precluded from recovering from the DOT more than a decade later what she might have earned had she sought the proper relief in a timely manner from the party that actually denied her the opportunity to use...
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Department of Transp. v. Petkas, s. 76525
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