City of Marietta v. Summerour
302 Ga. 645
Ga.2017Background
- Summerour owned a small grocery parcel in Marietta; the City sought to acquire it for a park and, after failed negotiations, filed to condemn.
- City made offers in 2010 and 2013 based on internal appraisals but did not provide a written summary of the appraisal basis to Summerour until May 2014.
- Summerour responded with a counteroffer, engaged counsel and obtained his own appraisal; negotiations later stalled.
- The City filed a condemnation petition in October 2014; a special master found the City complied with OCGA § 22-1-9 and valued the property at $225,000; the trial court adopted the return and ordered condemnation.
- The Court of Appeals reversed, holding the City failed to timely provide the appraisal summary required by OCGA § 22-1-9(3) and remanded to consider bad faith.
- The Georgia Supreme Court reviewed and held § 22-1-9 obligations are mandatory to the extent practicable, the City violated § 22-1-9(3) by untimely disclosure, and the condemnation petition must be dismissed (no further bad-faith inquiry required).
Issues
| Issue | Plaintiff's Argument (Summerour) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Are the provisions of OCGA § 22-1-9 mandatory or discretionary? | § 22-1-9 is mandatory except where compliance is impracticable; its protections are judicially enforceable. | The statute is only guidance; its "to the greatest extent practicable" language makes it discretionary and non-judicially enforceable. | Mandatory to the extent practicable; legislature omitted federal disclaimer, so provisions are enforceable. |
| Was the City required to provide a written summary of the appraisal basis before or at initiation of negotiations under § 22-1-9(3)? | The summary must be provided at or very near the start of negotiations to enable fair bargaining. | The timing language modifies only the offer requirement; the summary has no express timing and could be provided later. | The summary must be provided before negotiations or as soon thereafter as practicable; City failed to provide it timely. |
| Did the City comply with § 22-1-9(3) in this case? | N/A (fact issue argued by both sides: Summerour says no; City claims it did). | City argued offers and appraisal existence satisfied the statute despite delayed summary. | City did not provide a sufficient appraisal summary until May 2014 (months after negotiations began); noncompliance established. |
| Remedy for § 22-1-9(3) violation — is dismissal required or must bad faith be shown? | Dismissal of condemnation petition is appropriate; strict statutory prerequisites must be followed. | Remedy should require a showing of bad faith or be limited because § 22-1-9 lacks an explicit remedial clause. | Dismissal of condemnation petition is proper without a separate bad-faith finding; condemnor acted outside authority by failing to comply. |
Key Cases Cited
- Summerour v. City of Marietta, 338 Ga. App. 259 (Court of Appeals decision reversed in part) (Court of Appeals decision addressing § 22-1-9(3) timeliness)
- City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424 (1980) (condemnation invalid if condemnor acts beyond lawful authority)
- United States v. 410.69 Acres of Land, 608 F.2d 1073 (5th Cir. 1979) (federal counterpart treated as non‑enforceable where federal statute contains explicit disclaimer)
- Frank v. City of Atlanta, 72 Ga. 428 (1884) (high power of eminent domain requires strict compliance with statutory conditions)
- Thomas v. City of Cairo, 206 Ga. 336 (1950) (condemnation improper without strict statutory compliance)