Hall County v. Merritt

• Decision Date: 17 July 1998
• Docket Number: No. A98A0779.,A98A0779.
• Citation: 233 Ga. App. 526,504 S.E.2d 754
• Parties: HALL COUNTY v. MERRITT et al.
• Court: Georgia Court of Appeals

504 S.E.2d 754

233 Ga. App. 526

HALL COUNTY v. MERRITT et al.

No. A98A0779.

Court of Appeals of Georgia.

July 17, 1998.

Certiorari Denied December 4, 1998.

Stewart, Melvin & Frost, Frank Armstrong III, Gainesville, for appellant.

Hulsey, Oliver & Mahar, Thomas L. Fitzgerald, Gainesville, for appellee.

McMURRAY, Presiding Judge.

Appellant-condemnor Hall County ("the County") filed a special master petition to condemn the fee simple interest in 51.578 acres belonging to appellee-condemnee, Roy Merritt, for the purpose of constructing and maintaining a municipal solid waste landfill. The special master awarded $575,000 as the actual market value with no consequential damages or consequential benefits. Both condemnee Roy Merritt and the condemnor County appealed to the superior court. The issue of just and adequate compensation was tried before a jury which returned a general verdict awarding Roy Merritt "$1,035,600 (20,000.00) per acre." From the judgment entered on the jury's verdict, the County brings this appeal. Held:

1. Hall County first contends the trial court erred in denying its motion in limine and in admitting opinion testimony by David Childers, an expert real estate appraiser, that the highest and best use of the property was as a private sanitary landfill. The County argues that a private sanitary landfill was not reasonably possible, even though state environmental authorities already had declared the area including Roy Merritt's 51 acres to be a suitable site for a landfill, because the County already acquired the adjacent property; the Hall County land use master plan did not envision private sanitary landfills; and County ordinances forbade dumping municipal waste that originated from outside of Hall County. Consequently, the County argues that Childer's opinion testimony is based on mere speculation and without probative value.

James Henry Miller, the County Engineer, affirmed that on March 7, 1994, "the county did obtain from the [Georgia] Environmental Protection Division a site suitability approval;... [that on] August 18th of 1995, [the subject] property was taken from Mr. Merritt for this landfill[; and] that the landfill is now in operation." County Engineer Miller also conceded that a private "construction demolition landfill ..." operated legally in Hall County. County Engineer Miller further acknowledged that "some counties have turned to private landfill companies to operate landfills for them...."

Condemnee's expert real estate appraiser, David Childers, testified as follows: "As of the date of taking, ... this property had been designated as suitable for part of a sanitary landfill. Site suitability is the key word here.... And so the highest and best use of the property at that time was then to combine it with the adjoining properties to complete this landfill site and develop it as a sanitary landfill. [Childers] recognized the fact that the front part of the property was already zoned for industrial use and [that a] landfill was an allowed use on that part of the property, but that the rear part of the property was not zoned for industrial use. So the property would have to be rezoned in order to develop a sanitary landfill."

"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 mind in determining the just and adequate compensation to be paid the condemnee. In Georgia the condemnee is entitled to recover for the value of property based on its special adaptability for uses, [cits.], and, unlike most jurisdictions, including those which can only be effectuated by an authority with the power of condemnation. [Cits.] In short, the Georgia courts have permitted almost any possibility to be submitted to the jury which might shed light on the true value of the property, subject only to the limitations that the matter must not be merely remote or speculative and its consideration must be authorized by the evidence." Civils v. Fulton County, 108 Ga.App. 793, 795(2), 796(2)(b), 134 S.E.2d 453.

The jury is not restricted solely to present zoning. Dept. of Transp. v. Sconyers, 151 Ga.App. 824, 826(2), 261 S.E.2d 728. See also City of Albany v. Oxford Solid Waste Landfill, 267 Ga. 283, 284(2), 476 S.E.2d 729 (mandamus issued ordering city to approve land disturbance permit). Specifically, "where there `is a possibility or probability that the zoning restrictions may in the near future be repealed or amended so as to permit the use in question, such likelihood may be considered if the prospect of such repeal or amendment is sufficiently likely as to have an appreciable influence upon present market value[, provided] such possible change in zoning regulations must not be remote or speculative.'" Civils v. Fulton County, 108 Ga.App. 793, 797, 134 S.E.2d 453, supra.

"In condemnation proceedings, it is within the trial court's discretion to determine whether the evidence shows that the subject property is reasonably suited for a use different from its existing use, and it may admit or exclude evidence of value for such other use. Its rulings admitting or excluding such evidence will not be reversed unless there was a manifest abuse of its discretion. Dept. of Transp. v. Great Southern Enterprises, 137 Ga.App. 710, 713(2), 225 S.E.2d 80 (1976)." Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304, 425 S.E.2d 380. The salient circumstances in the case sub judice are that the state environmental authorities had determined the surrounding area, including a portion of the condemned property, was a suitable site for a sanitary landfill, and that the county already was operating a sanitary landfill in close proximity to the condemned parcel. There is evidence that some counties have contracted the responsibility for maintaining and operating sanitary landfills to private concerns. In an era in which privatization is an increasingly common alternative to tasks hitherto the domain of local government, we cannot say the superior court manifestly abused its discretion in admitting expert opinion as to the true market value on the date of taking, premised on the use of the property as a proprietary landfill. See State Hwy. Dept. v. Thomas, 106 Ga.App. 849(1), 851, 128 S.E.2d 520. Even where the relevancy of evidence is doubtful, it should be admitted and its weight determined by the jury. Moss v. Hall County Bd. of Comm., 197 Ga.App. 76, 77, 397 S.E.2d 493.

2. Next, the County contends the...