Lee v. Department of Transp.
| Decision Date | 10 March 1989 |
| Docket Number | No. 77348,77348 |
| Citation | 191 Ga.App. 1,380 S.E.2d 726 |
| Parties | LEE v. DEPARTMENT OF TRANSPORTATION. |
| Court | Georgia Court of Appeals |
Thomas L. Washburn III, Atlanta, for appellant.
Weiner, Dwyer, Yancey & Mackin, Dennis S. Mackin, J. Matthew Dwyer, Jr., Thomas C. Dempsey, Atlanta, Michael J. Bowers, Atty. Gen., Marion O. Gordon, Roland F. Matson, James S. Howell, Asst. Attys. Gen., for appellee.
The Department of Transportation condemned a 20-by-200 foot strip from a larger parcel of land owned by Julian Lee as part of the widening of Cleveland Avenue in Fulton County. After the trial court granted the DOT's motion in limine regarding evidence of consequential damages to the remainder of the property, the jury returned a verdict for the value of the taken property, as stipulated by the parties. Lee appeals.
The trial court erred by excluding evidence of the damages to appellant's remaining property caused by the condemnation which appellant incurred after the date of the taking of the frontage property. The record, as perfected by appellant, reveals that at the time appellant purchased the property, it was legally capable of accommodating a 14,000-square-foot shopping center. The square footage amount was regulated by certain City of Atlanta building codes under which the maximum square footage of a commercial building was calculated according to the number of parking spaces available for the building. Appellant began by razing the prior structures on the property and submitting building plans for a 14,000-sq.-ft. structure pursuant to the City's building regulations, to develop his property for that purpose. Appellant applied for a building permit but before he could obtain approval to build a 14,000-sq.-ft. structure and before the building could be constructed, the DOT announced its plan to widen Cleveland Avenue. Appellant was informed that the DOT would have to condemn a 20-by-200 foot strip of his property fronting the avenue. Based on the calculated loss of parking spaces, only a 10,400-sq.-ft. shopping center could be constructed on the remaining property, and the building permit issued by the City of Atlanta pursuant to appellant's application reflected that smaller structure.
The evidence is uncontroverted that frontage property was condemned and that appellant did lose the extra parking spaces necessary to support a 14,000-sq.-ft. commercial building. The taking of the frontage property directly caused the reduction in the square footage of the building the remaining property could legally accommodate. The evidence appellant introduced detailed the damages to his remaining property from the difference in value between the 14,000-sq.-ft. shopping center he could have constructed but for the loss of the parking space property taken by the DOT and the 10,400-sq.-ft. shopping center he could legally construct on the remainder. However, the trial court excluded this evidence and prevented appellant from proving and recovering the consequential damages to his remaining property solely because the City of Atlanta, recognizing the impact the DOT's project would have on appellant's property, had rendered its decision permitting a 10,400, rather than a 14,000-sq.-ft. building prior to the actual date of taking.
Appellant does not seek to recover compensation for lost rent or other damages to his remaining property incurred prior to the date of taking. The compensation appellant seeks stems from losses resulting from the 3,600-square-foot diminution in the size of his shopping center after the taking. Appellant argues the trial court's evidentiary ruling on the DOT's motion in limine penalized him by preventing his recovery of compensation for losses directly caused by the condemnation dating after the taking merely on the basis that the City of Atlanta's decision to deny him a permit for the larger building was rendered before the taking. Appellant asserts that had the City delayed its decision until after the actual date of taking or had his 14,000-sq.-ft. building been still in the planning stage as a future use of the property, his evidence would have been admissible, see, e.g., Department of Transp. v. Pilgrim, 175 Ga.App. 576, 578-579 (2 and 3), 333 S.E.2d 866 (1985); Klumok v. State Hwy. Dept., 119 Ga.App. 505(1), 167 S.E.2d 722 (1969), as evidence tending to show the impact of the taking on plans for the remaining property, and thus to exclude appellant's evidence on the fortuity of the City's timing in rendering its decision would be inequitable. We agree.
It is irrelevant when a prohibition is placed on property where it is clear that the condemnation is the reason why the property failed to avoid that prohibition and where the damages sought are the damages occurring after the date of taking. In the case at bar, it is uncontroverted that the sole reason for the City's denial of appellant's permit for a 14,000-sq.-ft. building was its determination that the announced taking would eliminate the parking spaces necessary to accommodate the larger building and that the remaining property was legally able to support only the building with the lessor square footage. Thus, although appellant clearly cannot recover for damages incurred prior to the actual taking, see Housing Auth. of Decatur v. Schroeder, 222 Ga. 417, 151 S.E.2d 226 (1966), he is entitled to compensation, upon proper proof, for the difference between the building he could have built but for the direct result of the condemnation (14,000-sq.-ft.) and the building he was limited to as a direct consequence of the taking (10,400-sq.-ft.). See generally Wright v. MARTA, 248 Ga. 372, 376, 283 S.E.2d 466 (1981); Continental Corp. v. Dept. of Transp., 185 Ga.App. 792, 793, 366 S.E.2d 160 (1988).
The DOT cites this court to Department of Transp. v. Poole, 179 Ga.App. 638, 347 S.E.2d 625 (1986). The DOT's reliance on Poole, however, is misplaced because appellant is not relitigating the denial of his building permit here or alleging that collusion existed between the DOT and the City in the denial of his permit. The validity of the City's decision to permit only a 10,400-sq.-ft. building on appellant's property is...
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Steele v. Department of Transp.
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Metropolitan Atlanta Rapid Transit Authority v. Martin, s. A89A1139
...Martin and EDI were allowed to pursue the topic of the denial of this permit insofar as it was relevant. See Lee v. Dept. of Transp., 191 Ga.App. 1, 380 S.E.2d 726 (1989). Contrary to their assertions on appeal, they were simply denied the opportunity to pursue the topic insofar as it was i......
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Lee v. Department of Transp.
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