Lead Opinion
The appellee, Webb Development, Inc. (Webb) sought a writ of
After receiving a “sewer availability” letter from Cobb County, Webb purchased almost 30 acres of land zoned for half-acre residential purposes. The letter indicated sewer service was available, but that a certain test would have to be made before the subdivision plans could be approved. The letter also stated that the County was “very reluctant to enter into condemnations for developers. All efforts by the developer must be exhausted before Cobb County would even look into the matter.” Prior to the time Webb’s subdivision plans were approved, the County had a condemnation policy available to assist develоpers. Approximately eight months after plan approval, the policy was changed. The condemnation policy now requires developers to attempt to obtain easements prior to plan apprоval by the Board.
Webb’s easement negotiations failed, and Webb had the land analyzed for septic tank systems. The Board’s agenda acknowledged that Webb had been negotiating for months to obtain easements and that Webb had “follоwed the established County guidelines for easement acquisition.” However, the Board again adopted a new policy which required a mediation agent to mediate the proper route for the off-site sewer easemеnts. The Board defines an “Easement Mediation Agent” as follows:
[A] person appointed by the Cobb County Water System to preside over a meeting among the property owner(s), thé developer and its surveyor/engineer, and a reрresentative of the Cobb County Water System Engineering Department in determining the most feasible route for any off-site sewer easement the developer may be required to install in a single family residential subdivision development in compliance with Cobb County policies.1
Webb met with the mediator and the other requisite parties, and the mediator found the following: Sewer was “available” to the subdivision under the Cobb County Water System guidelines; therefore, Webb was “required to connect to public sewer.” However, Webb indicated that its tests showed that septic tanks could be used, and the owners did not object. The mediator also found that Webb had
The Board had before it the mediator’s recommendation that it assist Webb in condemning the easement; however, it appeared that septic tank systems would be a good solution, and the property owners did not object. The Board voted to allow the subdivision to go forward with septic tanks. Unfortunately, the next month, the Health Department determined that only 18 of the 50 lots were suitable for septic tanks. The lot upon which the model home had been built was not one of thе 18 lots; therefore, no certificate of occupancy could be issued.
Webb again sought assistance from the Board; however, it took no action, and Webb sought a writ of mandamus. The trial court found, among other things: the County had rеjected other methods of sewage disposal that did not involve traversing private property; Webb acted in good faith; Webb expended considerable amounts of money while building its subdivision according to the approved plans; Webb complied with all the prerequisites to the exercise of condemnation, even after the Board changed its policy and applied it retroactively to Webb; the sewer lines are lying unused; a certificate оf occupancy cannot be issued for the model home rendering it useless as a home; and 32 of the 50 lots cannot be used for residential purposes because of the Board’s refusal to condemn an outfall line or authorize any alternative method of sewage disposal. The trial court ordered “that a Writ of Mandamus Absolute issue, requiring Cobb County to service by sewer the remaining thirty-two lots in [Webb’s] Subdivision.”
1. The appellant enumerates nine errors, all relatеd to granting the writ of mandamus.
(b) The appellant argues that the trial court erred in finding a gross abuse of discretion, we cannot agree. The Board is the “ultimate arbiter” of the methods of sewage disposal. Webb’s subdivision plans were approved at a time when the Board had in place a method of condemnation available for developers, although tifie Board was “reluctant” to use it until all efforts were exhausted. Eight months after Webb’s plans were approved the Board changed its policy to require developers to obtain easements before plan approval. Webb met every articulated standard for obtaining assistancе before the policy was changed; after the change, Webb again, and in good faith, met all the articulated standards. The County rejected alternative methods that did not involve traversing other’s property. After Webb “exhausted” аll efforts at negotiation, Webb attempted to use septic tank systems. The Board approved the development of 50 residential lots and it approved septic tank sewage disposal for all 50 lots. Additionally, the mediatоr found that because sewer service was “available” under the terms of the County’s ordinance that Webb was therefore “require [ed]” to connect to the lines. The ordinance requires Webb to connect, and the County “has a duty аnd obligation to work with [Webb] to allow [it] the highest and best use of [its] property. ...” DeKalb County v. Flynn,
2. The appellant complains that the trial court’s writ of mandamus is not sufficiently specific because it does not expressly state what “areas of the adjoining property are to be condemned.”
The writ requires the County to service the remaining 32 lots with sewer and specifically states that the Board
retains the options of acquiring the necessary easements through private negotiations or condemnation of the required outfall line, along with determining the precise location of the line once it leaves the southwest corner of the Homewood/Westwood Subdivision.
The Board is vested with broad discretion in determining both the necessity for taking land and for the selection of land to be taken. Craven v. Ga. Power Co.,
3. The appellant argues that the trial court erred in ordering it to condemn private land for a private purpose, and that there was no necessity to condemn. The Board may negotiate or condemn; furthermore, condemnation for sewer lines is not condemnation for a private purpose. Austin Enterprises v. DeKalb County,
Judgment affirmed.
Notes
The request for Board assistance in condemnation provides, in pertinent part: “G. The developer shall pay all fees of the Easement Mediation Agent in addition to all easement, judgment, and legal costs related to the Condemnation.”
Dissenting Opinion
dissenting.
The effect of the majority opinion is to require of a county commission the involuntary exercise of its power of eminent domain, to the end that the private property of one citizen is wrested from him by condemnation, and its benefits are bestowеd upon another private citizen, for the private enrichment of the latter.
1. (a) Our Constitution provides:
Except as otherwise provided in this Paragraph, private property shall not be taken or damaged for public purposes without just and adequate compensation first being paid. [Emphasis supplied.] [Constitution of Georgia of 1983, Art. I, Sec. Ill, Par. I.]
(b) There is no warrant within our Constitution for the taking of private property for private purposes.
2. (a) The prior decisions of this court are in accord with that proposition. In Earth Management v. Heard County,
We have repeatedly held that private property may not be taken for a private purpose and thаt a condemning authority may not act in bad faith in the exercise of the right of eminent domain. [Emphasis supplied.]
(b) In this connection, see Dept. of Transp. v. City of Atlanta,
“As the legislature can not in every case supervise the condemnation, it may confer the power upon agenсies . . . [t]he power thus conferred is always to be strictly construed, and will not be permitted to be exercised except where it is affirmatively granted.” (Emphasis supplied.)
This court earlier, in State Hwy. Dept. v. Hatcher,
3. (a) The majority relies upon Austin Enterprises, Inc. v. DeKalb County,
(b) “The general rule to be followed is that a court will not substitute its judgment for that of a condemning authority in determining the need for a taking or the type of interest to be taken.” Carroll County v. City of Bremen,
Even so, to the extent that Austin Enterprises permits, through the medium of eminent domain, one citizen to acquire the private property of another, it should be overruled, or, at the minimum, limited to its factual and procedural circumstances.
4. To countenance the use of eminent domain as an aid to the private development of real property is to unleash a staggering potential for corruption. In this case, we may have uncorked the fabled bottle, from which will emerge an evil genie that is fearsome beyond belief.