Moss v. Hall County Bd. of Com'rs, A90A0741

• Decision Date: 26 September 1990
• Docket Number: No. A90A0741,A90A0741
• Citation: 397 S.E.2d 493,197 Ga.App. 76
• Parties: MOSS v. HALL COUNTY BOARD OF COMMISSIONERS.
• Court: Georgia Court of Appeals

Page 493

397 S.E.2d 493

197 Ga.App. 76

MOSS v. HALL COUNTY BOARD OF COMMISSIONERS.

No. A90A0741.

Court of Appeals of Georgia.

Sept. 26, 1990.

Thompson, Fox & Chandler, Robert B. Thompson, Gainesville, for appellant.

Hulsey, Oliver & Mahar, Joseph D. Cooley III, Gainesville, for appellee.

McMURRAY, Presiding Judge.

This condemnation proceeding involves the taking of a portion of certain real property for development of a public road. The procedure utilized by the condemnor, while not in complete conformity with either the special master method or the declaration of taking method, is not the subject of any issue raised on appeal. Condemnor Board of Commissioners of Hall County, Georgia, deposited $12,900, with the trial court, as estimated just compensation. Condemnee Moss answered and demanded a hearing before a special master to determine just and adequate compensation. The special master awarded $23,113.43. Both parties appealed the special master's award and a jury trial resulted in a verdict awarding $12,900. Condemnee Moss appeals. Held:

One of the issues at trial was the amount of consequential damages to the portion of the tract remaining in the ownership of condemnee after the taking. Condemnee presented evidence that under a strict application of the set-back requirements, contained in the relevant building and zoning ordinances, the remaining tract suffered a reduction of permissible building area that was disproportionately greater than the taking and that this reduction of building area adversely affected the value of the remainder.

In rebuttal, condemnor was permitted, over condemnee's objection as to relevance, to present evidence with respect to the action of the Hall County Board of Zoning Appeals in granting set-back variances in four instances where the request for variance arose from hardships caused by a taking of a portion of a tract for a road improvement project. All of the four instances were recent and two were on the same street as condemnee's property. The admission of this evidence is enumerated as error.

Condemnor contends that the evidence was properly admitted under Civils v. Fulton County, 108 Ga.App. 793, 134 S.E.2d 453, to show that there was a possibility of an exception to the zoning restrictions sufficient to appreciably influence the market value of the remaining property. See also Atlanta Warehouses v. Housing Auth. of Atlanta, 143 Ga.App. 588, 592, 239 S.E.2d 387, and Klumok v. State Hwy. Dept., 119 Ga.App. 505, 167 S.E.2d 722. However, the Civils v. Fulton County, 108 Ga.App. 793, 134 S.E.2d 453, supra, decision is limited by the admonition that any evidence admitted to shed light on the value of the property, such as that showing a possible exception to zoning regulations, must not be remote or speculative. Condemnee contends that evidence of specific variances under the zoning law should be excluded as remote and speculative. "Evidence which logically tends to prove or disprove a material fact in issue is relevant. Every act or circumstance serving to elucidate or throw light upon the issue is relevant and admissible. Dept. of Transp. v. Lewyn, 168 Ga.App. 283, 286(3), 308 S.E.2d 684 (1983). Furthermore, even where the relevancy of evidence is doubtful, it should be admitted and its weight determined by the jury. Carver v. Jones, 166 Ga.App. 197, 198(2), 303 S.E.2d 529 (1983)." Schroeder v. Hunter Douglas, Inc., 172 Ga.App. 897, 900(6), 324 S.E.2d 746. We do not view the evidence at issue in the case sub judice as lacking in probative value on the issue of the value of the property, therefore it was properly admitted. Rosenthal v. Hudson, 183 Ga.App. 712(2), 360 S.E.2d 15.

Judgment affirmed.

SOGNIER, J., concurs.

CARLEY, C.J., concurs specially.

CARLEY, Chief Judge, concurring specially.

I do not dissent to the majority's affirmance of the judgment in this case. I am, however, compelled to write separately. As the facts set forth in the majority opinion suggest, there is some confusion as to whether the instant condemnation case is one wherein it was the special master method or the declaration of taking method that was employed. I believe that it is necessary to explain why this confusion exists in the instant case so as to decrease the likelihood of its reoccurrence in future condemnation cases.

"Proceedings instituted pursuant to OCGA § 22-2-100 et seq. [, the special master method,] and those instituted pursuant to OCGA § 32-3-1 et seq. [, the declaration of taking method,] are each separate and distinct special statutory proceedings and, as such, are subject to their own unique special statutory...