Ware v. HENRY CTY WATER & SEWERAGE AUTH., A02A1362.

• Decision Date: 20 November 2002
• Docket Number: No. A02A1362.,A02A1362.
• Citation: 575 S.E.2d 654,258 Ga. App. 778
• Parties: WARE et al. v. HENRY COUNTY WATER & SEWERAGE AUTHORITY.
• Court: Georgia Court of Appeals

575 S.E.2d 654

258 Ga. App. 778

WARE et al. v. HENRY COUNTY WATER & SEWERAGE AUTHORITY.

No. A02A1362.

Court of Appeals of Georgia.

November 20, 2002.

Reconsideration Denied December 10, 2002.

James D. Patrick, Jr., Columbus, for appellants.

Smith, Welch & Brittain, A.J. Welch, Jr., William A. White, McDonough, for appellee. POPE, Senior Appellate Judge.

The Henry County Water Sewerage Authority (HCWSA) initiated this action in Butts County Superior Court to condemn 4.34 acres owned by Marilyn Patrick Ware, James D. Patrick, Jr. and Alice Patrick Taunton in Butts County (the "Patricks"). This condemnation action was filed in pursuit of HCWSA's plan to build a reservoir that will straddle Henry and Butts Counties, and provide for Henry County's future water needs. The special master in the case recommended that the Patricks' property be condemned and that their compensation for the property be $16,000. The Patricks appealed the award of the special master to the superior court. The Butts County Superior Court later adopted the special master's condemnation recommendation as the judgment of the court following the court's denial of a motion to dismiss filed by the Patricks.¹ The matter subsequently proceeded to trial on the issue of the property's valuation, where the jury returned a verdict in favor of the Patricks in the amount of $43,400.

The Patricks appeal from various orders issued during the course of this long and complex litigation. We will address the pertinent procedural history in the context of the Patricks' enumerations.

1. The Patricks assert that the trial court erred in denying their motion to dismiss on various grounds. We find no error.

(a) They first assert that HCWSA lacked the authority to condemn their Butts County property. They argue that the Butts County Water Sewerage Authority (BCWSA) was granted exclusive jurisdiction in Butts County over water reservoirs by the legislature, which expressly granted BCWSA the power of eminent domain. Ga. L. 1986, pp. 5457, 5461, § 4(3). In contrast, they assert that the act creating HCWSA did not expressly grant it the power of condemnation. Ga. L. 1961, p. 2588. Even if HCWSA has the power of condemnation, the Patricks assert that it lacked the authority to exert it extraterritorially in Butts County.

In ruling that HCWSA has the power of condemnation, the trial court relied upon Johnston v. Clayton County Water Auth., 222 Ga. 39, 148 S.E.2d 417 (1966), in which the Supreme Court of Georgia ruled that the Clayton County Water Authority (CCWA) had the power of eminent domain. The Supreme Court first examined the act creating CCWA, Ga. L. 1955, pp. 3344-3351. It concluded that the act did not grant CCWA the power of eminent domain, but did grant it the power to build and maintain a water system and to issue revenue anticipation certificates. The court then examined the Revenue-Certificate Law of 1937, Ga. L. 1937, pp. 761-774, now codified at OCGA § 36-82-60 et seq. That law gives the power of eminent domain to local public entities having corporate powers and the right to issue revenue certificates. OCGA §§ 36-82-61(2)(C); 36-82-62(a)(1). The Supreme Court concluded, therefore, that CCWA had the power of eminent domain. 222 Ga. at 41-42(2), 148 S.E.2d 417.

Similarly, while the act creating HCWSA does not expressly grant it the power of eminent domain, it does grant the authority the power to build and maintain water systems "[both] within [and] without the limits of said county," and to join the governing authority in the issuance of revenue anticipation certificates. Ga. L. 1961, at p. 2589, § 2. Accordingly, HCWSA also possesses the power of eminent domain as granted under OCGA § 36-82-62(a). See Johnston, 222 Ga. at 41-42, 148 S.E.2d 417; Austin Enterprises v. DeKalb County, 222 Ga. 232, 234-235(1)(b), 149 S.E.2d 461 (1966) (water authority had the power of eminent domain "even without the express grant of authority by a special law").

And that statute expressly provides that the power of eminent domain shall extend outside of the county's territorial limits, as it grants:

[the] power ... [t]o acquire, by gift, purchase, or the exercise of the right of eminent domain, and to construct, to reconstruct, to improve, to better, and to extend any undertaking wholly within or wholly outside the governmental body or partially within and partially outside the governmental body; and to acquire, by gift, purchase, or the exercise of the right of eminent domain, lands, easements, rights in lands, and water rights in connection therewith.

(Emphasis supplied.) OCGA § 36-82-62(a)(1).²

(b) The Patricks also assert that the intergovernmental contracts clause of the Georgia Constitution, Art. IX, Sec. II, Par. III(b)(1), required HCWSA to obtain the consent of Butts County before proceeding with the condemnation action. Our Supreme Court has held, however, that this clause does not apply when a governmental entity has been given a specific, extraterritorial power by general or local law. Kelley v. City of Griffin, 257 Ga. 407-409, 359 S.E.2d 644 (1987); Coweta County v. City of Newnan, 253 Ga. 457, 459-460(1), 320 S.E.2d 747 (1984). Because OCGA § 36-82-62 explicitly grants HCWSA extraterritorial powers of eminent domain, the authority was not required to obtain Butts County's agreement before instituting this condemnation action.

(c) The Patricks further rely upon a variety of statutes to assert that HCWSA was required to obtain various permits before condemning their property, but we do not read any of these statutes as imposing such a requirement.

The Patricks assert that the authority was required under OCGA § 12-5-29(b) to obtain a permit from the Environmental Protection Division (EPD) of the Georgia Department of Natural Resources (DNR) before condemning their land. The Georgia Water Quality Control Act, OCGA § 12-5-21 et seq., upon which the Patricks rely, grants to the DNR the authority to regulate the withdrawal of surface waters in the state. The specific provision cited by the Patricks merely requires that an EPD permit be obtained prior to construction of a system for the disposal or discharge of sewage or waste. OCGA § 12-5-29(b). Nothing in the language of the statute required a permit before the filing of this condemnation proceeding.

And the Patricks' assertion that HCWSA was required under OCGA § 12-5-376(a) to obtain a permit to construct a dam prior to filing suit is similarly without merit. That statute provides only that a permit must be obtained "prior to [the] commencement of construction." OCGA § 12-5-376(a). Nor is there merit to the Patricks' argument that federal law required HCWSA to acquire a Section 404 permit under the Federal Clean Water Act, 33 USC § 1344, before filing this action. And we do not read OCGA § 36-80-18, which requires that an environmental impact assessment be performed prior to the acquisition of real property for parks or recreational use, as preempting this condemnation proceeding, as the Patricks contend.

(d) The Patricks also rely upon provisions of the Georgia Water Supply Act, OCGA § 12-5-471 et seq., to assert that HCWSA was required to have an agreement with Butts County before initiating this action. While the provisions cited by the Patricks impose requirements upon the DNR, nothing in those statutes imposes any requirement upon HCWSA prior to instituting a condemnation action. See OCGA §§ 12-5-472; 12-5-475.

(e) The Patricks next argue that their motion to dismiss should have been granted because HCWSA violated the statutory requirements by dismissing the probate judge and the tax commissioner of Butts County as parties to the condemnation proceeding after the trial court ruled that they were necessary parties. But we find no ruling by the trial court that the probate judge and the tax commissioner were necessary parties. Rather, the court ordered only that they be served with a copy of the petition of condemnation.

The trial court ordered service upon the probate judge in a representative capacity on behalf of "all unknown parties, unknown person or persons claiming any interest in the property, unborn remaindermen and all persons laboring under disability and not represented by guardians or other personal representatives." See OCGA § 22-2-107(f). And the Code provides that the tax commissioner be served with notice of the petition "where any taxes are alleged or supposed to be due or unpaid," OCGA § 22-2-134, although there is no evidence in the record of such unpaid taxes on the Patricks' property.

HCWSA later dismissed without prejudice the tax commissioner, the probate judge, unknown owners, unborn remaindermen, minors or insane persons having title, interest, claim or demand in or against the property. Even assuming, without deciding, that this dismissal was unauthorized, there is nothing in the record to show how this dismissal prejudiced the Patricks' interests with regard to the property so as to preempt the condemnation proceeding against them.

Moreover, as the trial court noted, the special master ruled on the only issue raised by the tax commissioner and the probate judge: whether the special master should be recused. Under these circumstances, we think the trial court properly found that the dismissal of these nonrelated parties provided no basis to support the Patricks' motion to dismiss.

2. The Patricks next assert error in the failure to grant their motion to recuse the special master in the case. They argued for recusal under the Judicial Code of Conduct on the ground that the special master practiced before and at times had been a judge pro tem of the Juvenile Court of Henry County where the attorney for HCWSA presides on a part-time basis. In support of this argument, the Patricks introduced evidence that the special master had been compensated for his services by the juvenile court.

"The alleged bias of the judge which would...