Downside Risk, Inc. v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 24 October 1980
• Docket Number: No. 60417,60417
• Citation: 156 Ga.App. 209,274 S.E.2d 653
• Parties: DOWNSIDE RISK, INC. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Court of Appeals

Page 653

274 S.E.2d 653

156 Ga.App. 209

DOWNSIDE RISK, INC. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. 60417.

Court of Appeals of Georgia.

Argued Sept. 3, 1980.

Decided Oct. 24, 1980.

Frank Love, Jr., Jeffrey W. Kelley, Thomas D. Harper, Atlanta, for appellant.

Charles N. Pursley, Jr., Robert A. Boas, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Several years ago the City of Atlanta established by ordinance an area known as the Underground Atlanta Historic District or Park. The purpose was to renovate older buildings below viaducts and overpasses which had the effect of raising and forming streets above old streets and in particular Old Alabama Street which is parallel to railway tracks through the city. Underground Atlanta generally includes property bounded by state owned land leased to the Louisville & Nashville Railroad on the north; Central Avenue on the east; Martin Luther King, Jr. Drive on the south, and Broad Street on the west. In the early 1900's the area was formerly a portion of the central business district of Atlanta before the elevation of streets over the railroad. In the late 1960's Underground Atlanta, Inc. began redeveloping the area in an architectural motif characteristic of the late 1800's. The properties were then leased to various commercial establishments.

Downside Risk, Inc., d/b/a W. D. Crowley's Steak and Lobster House and Bucket Shop, leased certain premises located on the south side of Old Alabama Street in Underground Atlanta and operated these two businesses.

In 1971, the Metropolitan Atlanta Rapid Transit Authority (MARTA) referendum was passed by the people, approving the basic location and alignment of a rapid transit system and in particular through the downtown railroad gulch in the City of Atlanta. The alignment required the severance of the rear portions of the buildings on the north side of Old Alabama Street in Underground Atlanta. Between April, 1975, and April, 1976, MARTA engaged in the acquisition of the properties for the construction of its rapid transit line. In August, 1976, it proceeded with the construction in the area and demolition of the buildings on the north side of Old Alabama Street in Underground Atlanta. MARTA agreed to preserve the facades of the demolished buildings in order to preserve the historic character of the area. Two new stairwells were to be installed and were installed in Underground Atlanta on Old Alabama Street from Alabama and Pryor Streets. By December of 1976 the demolition of the buildings was complete. The restoration of the facades of the buildings occurred form November, 1976, to July, 1977.

The properties leased by Downside Risk, Inc., were across Old Alabama Street from where the demolition and restoration of the facades occurred. Ponders Alley, which was another entrance to Underground Atlanta from Plaza Park was closed, although MARTA contends it did not close it. It is noted here that this entrance is across the railroad crossing which had been fenced off by the railroad. The street ends and vacant lots in Underground Atlanta were walled in on the north side of Old Alabama Street to shield the rapid transit line from sight. This construction was carried out by MARTA.

On April 17, 1977, Downside Risk, Inc., as plaintiff, brought an action in 6 counts naming as defendant Metropolitan Atlanta Rapid Transit Authority (otherwise known as MARTA), and as amended, sought compensation for its losses sustained as the result of the actions of the defendant and prayed that defendant be required to pay just and adequate compensation for the damages to its property in accordance with Code Ann. § 2-301 (Art. I, Sec. III, Par. 1 of the Constitution of Georgia of 1945 (now 1976)), including attorney fees.

Plaintiff contends in Count 1 that Underground Atlanta is a unique subterranean entertainment and shopping area and, as such, each of the businesses located therein are mutually dependent upon one another for their success; that it acquired an implied easement or privilege in the other parts of Underground Atlanta by reason of its lease, as well as an equitable servitude upon the land upon which other diverse business establishments are situated and maintained so as to preserve the development scheme upon which plaintiff relied when acquiring its leasehold. It contends that by the taking of the land on the east side of Old Alabama Street, including the diverse commercial establishments located thereon, plaintiff has been deprived of a valuable property right for which it has not been paid just and adequate compensation in violation of the Constitution of Georgia of 1945 (Code Ann. § 2-301, supra).

In Count 2 it contends that with the razing of the buildings on the east side of Old Alabama Street, now totally destroyed, plaintiff was deprived of a valuable stream of commerce provided by those businesses and its leasehold has been seriously diminished without prior payment of just and adequate compensation as alleged in Count 1 in the damaging of private property for public purposes.

In Count 3 it complains that by reason of the above facts and pursuant to its plans of development defendant MARTA began the construction of its massive rapid transit station nearby, and in the process of construction said facility has engaged in excavating and otherwise removing soil, rock, asphalt, and firmament in the area immediately adjacent to plaintiff's leasehold estate. As a consequence of such operations plaintiff's property has been subjected to the invasion of smoke, dust, dirt, fumes, odors, high decibel noise, vibrations, and other odious bombardments incidental to the use of large earth-moving machines, thereby greatly impairing and impeding plaintiff's physical use and enjoyment of its property. MARTA has closed Old Pryor Street at a point slightly east of its intersection with Old Alabama Street and has thereby wholly negated and impaired the use of said street by persons desiring to enter Underground Atlanta via Old Pryor Street from an easterly direction, thereby depriving plaintiff of a major artery of access to its premises and a valuable stream of commerce provided by said artery, thus taking and damaging private property without prior payment of just and adequate compensation.

In Count 4 it contends that due to the negligent and improper manner in which said improvements have been and continue to be constructed defendant MARTA has created a blemish and eyesore directly in front of plaintiff's commercial establishment so as to amount to a present and continuing nuisance. Such injury and damages suffered by plaintiff will and have greatly and substantially exceeded injury and damages suffered by the public in general; hence, it has suffered losses by reason of the negligent activities and invasions for which it is entitled to be compensated.

In Count 5 it contends that as a direct result of the aforementioned activities of the defendant MARTA, the easement of light, air, and scenic view to plaintiff's leasehold estate has been wholly negated to the great and substantial detriment of its property without prior payment of just and adequate compensation.

In Count 6 it contends that by reason of the creation of the historic zone by public referendum and in reliance upon this public dedication plaintiff entered into the leasehold agreement with Underground Atlanta, Inc., and with the creation on March 17, 1975, by the City of Atlanta of the Historic Park Ordinance, so as to preserve the intrinsic beauty of Underground Atlanta and to insure the project's continued existence, plaintiff continued to occupy its leasehold and acquired an easement in the continued use of the dedicated property for park purposes. It contends that as a result of the diversion of the park property to other uses by the defendant it suffered special damages to its property for which it has not been paid just and adequate compensation.

Plaintiff prayed for judgment against the defendant on all counts "in an amount sufficient to compensate it fully for its' losses sustained as a result of the actions of the defendant."

The defendant answered, in general denying the complaint, admitting only that it is a public body corporate created for the purpose of constructing, operating, and maintaining a rapid transit system for the metropolitan Atlanta area, and subject to the jurisdiction of the court. It also asserted defenses of estoppel, waiver, accord and satisfaction, laches, release, license and statute of frauds.

After discovery, defendant moved for summary judgment on the ground that there was no genuine issue as to any material fact and it was entitled to judgment as a matter of law. Further discovery then occurred, and the defendant consented that the time within which plaintiff might respond to the motion for summary judgment be extended on numerous occasions.

Plaintiff contends that by reason of its evidence and pleadings it is entitled to a jury trial on the issue of taking and damages resulting from the destructive interference with the use of its premises, its equitable servitude, the changes in pedestrian traffic flow and changes in the access to its property and by reason of the loss of special property rights as well as whether defendant's activities in Underground Atlanta constitute a nuisance to which it is entitled to an award of damages. It contends that this litigation is an inverse condemnation and nuisance action arising out of the construction of the rapid rail transit system through Underground Atlanta.

Defendant contends that it did not physically take any property of the plaintiff, submitting numerous and voluminous affidavits and depositions with reference to the construction of the rapid transit rail line through Underground Atlanta, all of which was done pursuant to its lawful obligation to construct public improvements; and that the work was not done in an illegal manner. It offered affidavits of its...