Evans v. Dep't of Transp.

• Decision Date: 19 March 2015
• Docket Number: No. A14A1795.,A14A1795.
• Citation: 331 Ga.App. 313,771 S.E.2d 20
• Parties: EVANS et al. v. DEPARTMENT OF TRANSPORTATION.
• Court: Georgia Court of Appeals

331 Ga.App. 313

771 S.E.2d 20

EVANS et al.

v.DEPARTMENT OF TRANSPORTATION.

No. A14A1795.

Court of Appeals of Georgia.

March 19, 2015.

Certiorari Denied Sept. 8, 2015.

Boone, Scott & Boone, Joseph Alexander Boone, Irwinton, for Appellants.

Paul Hammond Dunbar, III, Asst. Atty. Gen., Augusta, Avant & Evans, Irwin B. Evans, Sandersville, Samuel S. Olens, Atty. Gen., for Appellee.

Opinion

BARNES, Presiding Judge.

This case involves a dispute over the value of undeveloped timberland containing a subterranean mineral deposit that was condemned by the Georgia Department of Transportation (“DOT”). Following a jury trial, the jury awarded $50,000 to the condemnees, Dr. Frank O. Evans, Jr. and Robert Earl Evans, which was far below what they had sought as compensation for the condemned property. On appeal, the condemnees contend that the trial court erred by denying their motion in limine seeking to exclude any evidence or argument relating to the zoning of the condemned property; by allowing opinion testimony from the DOT's expert real estate appraisers regarding the reasonable probability of a change in zoning to permit mining on the property; and by giving allegedly inconsistent, erroneous charges to the jury relating to the issue of zoning and the valuation of land containing mineral deposits. For the reasons discussed below, we discern no error by the trial court and affirm.

The record reflects that on February 20, 2009, the DOT filed a petition for condemnation and acquired a 12.087-acre portion of a larger tract of undeveloped timberland as part of a road construction project. The condemned property contained a subterranean deposit of kaolin, a mineral used in paint and other products. A kaolin mine that originally opened in the 1950s was located to the north of the condemned property. To the south of the condemned property was a residential neighborhood.

The condemned property was located within the city limits of Gordon, Georgia. In 1994, the City of Gordon enacted a zoning ordinance, and the condemned property was zoned agricultural. Under the zoning ordinance, mining was not permitted in an area zoned agricultural absent a special exception approved by the Gordon City Council. No special exception was ever approved for mining kaolin on the condemned property.

The DOT and the condemnees failed to reach agreement on the value of the condemned property. The DOT asserted that the highest and best use of the property was its present agricultural use as timberland, and that the kaolin deposit did not enhance the value of the property in light of the City of Gordon's zoning restrictions on mining and the unlikelihood of a special exception being approved. In contrast, the condemnees asserted that the value of the condemned property was significantly enhanced by the kaolin deposit and was not affected by zoning considerations.

A jury trial ensued on the issue of valuation of the condemned property. Before the presentation of evidence, the condemnees moved in limine to exclude any evidence or argument related to zoning considerations, contending that zoning was irrelevant in condemnation cases involving mineral deposits because the minerals have intrinsic value as part of the land. The trial court denied the motion.

The DOT called two real estate appraisers as experts to testify on the issue of valuation, both of whom opined that the highest and best use of the condemned property was its current agricultural use as timberland. In reaching this conclusion, both appraisers discounted the presence of the kaolin deposit on the condemned property because it could not be mined under the City of Gordon's current zoning ordinance, which prohibited mining on property zoned agricultural. They further opined that based on their investigation into the matter, they did not believe that the Gordon City Council would grant a special exception to permit mining on the condemned property, and that the likelihood of such a grant was too remote and speculative to enter into their valuation of the property. The appraisers distinguished the condemned property from the kaolin mine operated to the north of the property because the other mine had been grandfathered into the City of Gordon's zoning ordinance, and because the condemned property abutted a residential neighborhood that would be negatively impacted by the construction of a mine. Based on these conclusions, the first appraiser valued the condemned property at $27,196. The second appraiser valued the condemned property at $26,591, but also determined that there was an additional $4,409 in consequential damages to the condemnees' remaining land.

After the DOT concluded its case-in-chief, the condemnees called two expert witnesses to address the issue of valuation, a minerals engineer and a real estate appraiser. The minerals engineer testified that he had drilling samples taken from the condemned property, that he tested the kaolin found in the samples, and that the kaolin was of sufficient quality to be merchantable and marketable for use in paint products. Taking into account the minerals engineer's evaluation of the kaolin deposit, the real estate appraiser valued the condemned property at $1,132,485, plus an additional $704,000 in consequential damages, based on his opinion that the property was significantly enhanced by the value of the kaolin. Both experts believed that the City of Gordon would not restrict kaolin mining on the condemned property, based on information they had learned from a former city zoning administrator, and given that the aforementioned kaolin mine was already being operated within city limits to the north of the condemned property.

Following the presentation of the conflicting expert testimony and the parties' closing arguments, the trial court gave its charge to the jury, including a charge on the relevance of zoning considerations over the objection of the condemnees. The jury thereafter returned a verdict valuing the condemned property at $50,000, and the trial court entered final judgment in that amount. This appeal by the condemnees followed.

1. The condemnees argue that the trial court erred in denying their motion in limine seeking to exclude any evidence or argument relating to zoning. According to the condemnees, zoning is not a relevant factor for consideration by the jury in valuing property in condemnation cases involving mineral deposits.

“A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. Irrelevant evidence that does not bear directly or indirectly on the questions being tried should be excluded.” (Punctuation and footnote omitted.) CNL APF Partners, LP v. Dept. of Transp., 307 Ga.App. 511, 513(3), 705 S.E.2d 862 (2010). The grant or denial of a motion in limine is reviewed only for an abuse of discretion. Id. We conclude that the trial court did not abuse its discretion in ruling that zoning considerations could be considered by the jury.

“The sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken.” (Punctuation and footnote omitted.) CNL APF Partners, LP, 307 Ga.App. at 515(4), 705 S.E.2d 862. “Generally, just and adequate compensation is the fair market value of the condemned property at the time of taking.” Canada W., Ltd. v. City of Atlanta, 169 Ga.App. 907, 909(1), 315 S.E.2d 442 (1984). “Fair market value is defined as the price that a seller who desires but is not required to sell and a buyer who desires but is not required to buy would agree is a fair price after due consideration of all the elements reasonably affecting value.” (Citation and punctuation omitted.) Thornton v. Dept. of Transp., 275 Ga.App. 401, 404(2), 620 S.E.2d 621 (2005).

One of the elements that reasonably may affect the value of the condemned property and should be considered by the jury is the presence of mineral deposits. See Sharpe v. Dept. of Transp., 267 Ga. 267, 269, 476 S.E.2d 722 (1996) ; Dept. of Transp. v. Bacon Farms, L.P., 270 Ga.App. 862, 863 –864(1), 608 S.E.2d 305 (2004) ; Gunn v. Dept. of Transp., 222 Ga.App. 684, 685(1), 476 S.E.2d 46 (1996) ; Williams v. Mayor, etc., of Carrollton, 195 Ga.App. 590(2), 394 S.E.2d 389 (1990). But it is also well established that in determining what constitutes just and adequate compensation, “the jury may consider existing zoning and possible or probable future zoning changes which are sufficiently likely to have an appreciable influence upon the present market value” of the condemned property. McDaniel Enterprises v. Gwinnett County, 162 Ga.App. 419, 291 S.E.2d 738 (1982). See Unified Government of Athens–Clarke County v. Watson, 276 Ga. 276, 276–277, 577 S.E.2d 769 (2003) ; Hall County v. Merritt, 233 Ga.App. 526, 527(1), 504 S.E.2d 754 (1998) ; Civils v. Fulton County, 108 Ga.App. 793, 797(2)(b), 134 S.E.2d 453 (1963). Hence, evidence regarding the City of Gordon's zoning ordinance, and the reasonable probability that a special exception for kaolin mining would be granted by the Gordon City Council in the future, was relevant to the jury's valuation of the condemned property in this case.

The condemnees argue, however, that zoning considerations are only relevant in condemnation cases that fall under the analysis employed in Dept. of Transp. v. Benton, 214 Ga.App. 221, 222 –223(1), 447 S.E.2d 159 (1994), where we found that the trial court erroneously allowed speculative evidence regarding the hypothetical future development of unimproved condemned property into subdivision lots. In Benton, we noted that a condemned property's mere potential adaptability to a different residential or commercial use cannot form the basis for compensation unless the future use is so reasonably probable as to affect the property's present value. Id. According to the condemnees, a Benton -type analysis does not apply in condemnation cases involving mineral deposits, thereby precluding the...