This case involves a dispute over the value of undeveloped timberland containing a subterranean mineral deposit that was condemned by the Georgia Department of Transportation (“DOT”). Following a jury trial, the jury awarded $50,000 to the condemnees, Dr. Frank O. Evans, Jr. and Robert Earl Evans, which was far below what they had sought as compensation for the condemned property. On appeal, the condemnees contend that the trial court erred by denying their motion in limine seeking to exclude any evidence or argument relating to the zoning of the condemned property; by allowing opinion testimony from the DOT’s expert real estate appraisers regarding the reasonable probability of a change in zoning to permit mining on the property; and by giving allegedly inconsistent, erroneous charges to the jury relating to the issue of zoning and the valuation of land containing mineral deposits. For the reasons discussed below, we discern no error by the trial court and affirm.
The record reflects that on February 20, 2009, the DOT filed a petition for condemnation and acquired a 12.087-acre portion of a larger tract of undeveloped timberland as part of a road construction project. The condemned property contained a subterranean deposit of kaolin, a mineral used in paint and other products. A kaolin mine that originally opened in the 1950s was located to the north of the condemned property. To the south of the condemned property was a residential neighborhood.
The condemned property was located within the city limits of Gordon, Georgia. In 1994, the City of Gordon enacted a zoning ordinance, and the condemned property was zoned agricultural. Under the zoning ordinance, mining was not permitted in an area zoned agricultural absent a special exception approved by the Gordon
The DOT and the condemnees failed to reach agreement on the value of the condemned property. The DOT asserted that the highest and best use of the property was its present agricultural use as timberland, and that the kaolin deposit did not enhance the value of the property in light of the City of Gordon’s zoning restrictions on mining and the unlikelihood of a special exception being approved. In contrast, the condemnees asserted that the value of the condemned property was significantly enhanced by the kaolin deposit and was not affected by zoning considerations.
A jury trial ensued on the issue of valuation of the condemned property. Before the presentation of evidence, the condemnees moved in limine to exclude any evidence or argument related to zoning considerations, contending that zoning was irrelevant in condemnation cases involving mineral deposits because the minerals have intrinsic value as part of the land. The trial court denied the motion.
The DOT called two real estate appraisers as experts to testify on the issue of valuation, both of whom opined that the highest and best use of the condemned property was its current agricultural use as timberland. In reaching this conclusion, both appraisers discounted the presence of the kaolin deposit on the condemned property because it could not be mined under the City of Gordon’s current zoning ordinance, which prohibited mining on property zoned agricultural. They further opined that based on their investigation into the matter, they did not believe that the Gordon City Council would grant a special exception to permit mining on the condemned property, and that the likelihood of such a grant was too remote and speculative to enter into their valuation of the property. The appraisers distinguished the condemned property from the kaolin mine operated to the north of the property because the other mine had been grandfathered into the City of Gordon’s zoning ordinance, and because the condemned property abutted a residential neighborhood that would be negatively impacted by the construction of a mine. Based on these conclusions, the first appraiser valued the condemned property at $27,196. The second appraiser valued the condemned property at $26,591, but also determined that there was an additional $4,409 in consequential damages to the condemnees’ remaining land.
After the DOT concluded its case-in-chief, the condemnees called two expert witnesses to address the issue of valuation, a minerals engineer and a real estate appraiser. The minerals engineer testified that he had drilling samples taken from the condemned property, that he tested the kaolin found in the samples, and that the kaolin was of sufficient quality to be merchantable and marketable for use
Following the presentation of the conflicting expert testimony and the parties’ closing arguments, the trial court gave its charge to the jury, including a charge on the relevance of zoning considerations over the objection of the condemnees. The jury thereafter returned a verdict valuing the condemned property at $50,000, and the trial court entered final judgment in that amount. This appeal by the condemnees followed.
1. The condemnees argue that the trial court erred in denying their motion in limine seeking to exclude any evidence or argument relating to zoning. According to the condemnees, zoning is not a relevant factor for consideration by the jury in valuing property in condemnation cases involving mineral deposits.
“Amotion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. Irrelevant evidence that does not bear directly or indirectly on the questions being tried should be excluded.” (Punctuation and footnote omitted.) CNL APF Partners, LP v. Dept. of Transp.,
“The sole issue to be determined in a condemnation matter is the just and adequate compensation due for property taken.” (Punctuation and footnote omitted.) CNL APF Partners, LP,
The condemnees argue, however, that zoning considerations are only relevant in condemnation cases that fall under the analysis employed in Dept. of Transp. v. Benton,
It is true that Gunn and Sharpe state that a Benton-type analysis does not apply in condemnation cases involving mineral deposits. See Gunn,
Furthermore, allowing the jury to consider zoning in condemnation cases involving mineral deposits is consistent with the long-established “policy of the Georgia appellate courts to be liberal in allowing matters to be considered by the jury which might affect their collective minds in determining the just and adequate compensation to be paid the condemnee.” (Punctuation and footnote omitted.) Dept. of Transp. v. Southeast Timberlands, Inc.,
For these combined reasons, we conclude that, as in other types of condemnation cases, zoning considerations are relevant and material to a jury’s determination of what constitutes just and adequate compensation to the condemnee in cases involving mineral deposits. The trial court therefore did not abuse its discretion in denying the condemnees’ motion in limine and allowing evidence and argument regarding the City of Gordon’s zoning ordinance and the reasonable probability of a special exception being granted for kaolin mining.
In condemnation cases, we will not disturb a trial court’s decision to admit evidence pertaining to the likelihood of a change in zoning absent a manifest abuse of discretion. United Government of Athens-Clarke County v. Watson,
An expert may not render an opinion that is wholly speculative or conjectural.
As previously noted, the DOT called two real estate appraisers to testify as experts at trial. The first appraiser described how he went about appraising the condemned property and discussed the information he gathered and people he interviewed upon which he based his opinion. According to the appraiser, he inspected the condemned property and adjoining parcels, reviewed the DOT’s highway plans for the property, reviewed two mineral valuation reports regarding the kaolin deposits, reviewed the depositions of Dr. Evans and the condemnees’ expert minerals engineer, and interviewed residential
The second appraiser testified that his investigation included an inspection of the condemned property, interviews with nearby residential property owners, an interview with the owner of the kaolin mine operated to the north of the property and observations of the mining operation conducted there, a review of aerial photographs of that mining operation, a review of two minerals valuations reports of the condemned property, a review of the DOT’s highway plans for the property, and a review of the deposition testimony of Dr. Evans and of a city official involved in zoning decisions. Based on his investigation, the appraiser also concluded that the highest and best use of the condemned property was its current agricultural use as timberland, and he valued the property at $26,591, plus certain consequential damages to the condemnees’ remaining land. As part of his valuation of the condemned property, the appraiser concluded from his investigation that it was unlikely that the Gordon City Council would grant a special exception to permit mining on the property, and that the likelihood of such a grant was too speculative to enter into his
Given this record evidence, we cannot say that the opinion testimony of the DOT’s expert real estate appraisers regarding the likelihood of a change in zoning was wholly speculative. To the extent that the appraisers may have speculated to some degree in reaching their conclusions regarding the likelihood that a special exception would be granted for kaolin mining, that factor went to the weight of their testimony rather than its admissibility. See Layfield,
Relying upon Fulton County v. Dangerfield,
3. The trial court charged the jury that in valuing the condemned property, it should consider the existence of the kaolin deposit on the property, regardless of whether the condemnees had mined it or had plans to mine it at the time of the taking. The trial court also charged the jury that in considering “uses” of the condemned property as part
“A jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” (Citation and punctuation omitted.) Ware v. Henry County Water & Sewerage Auth.,
Taken as a whole, the trial court’s charges in this case were an accurate statement of the law applicable to condemnation cases involving mineral deposits. The trial court correctly charged the jury that it should consider the mineral deposits as part of its valuation of the condemned property, irrespective of whether the condemnees had mined the property or planned to mine it at the time of the taking. This charge was consistent with Gunn, where we indicated that mineral deposits have intrinsic value as part of the land that should be considered by the jury in valuing the condemned property, even if the condemnee never personally mined or had plans to mine the minerals as of the date of the taking. See Gunn,
At the same time, however, the fact that unmined mineral deposits on the condemned property have at least some intrinsic value does not rule out the jury also considering the uses to which the property could lawfully be put, including the mining of those deposits, as part of its calculation of just and adequate compensation. We made that very point in Gunn when we indicated, as noted supra in Division 1, that the “possible future use” of the condemned property for mining of the mineral deposits was part of the “permissible analysis” by the jury in valuing the property. Gunn,
Accordingly, the jury charges on mineral deposits and zoning considerations, when construed together, were not conflicting and were an accurate statement of the law. In arriving at its ultimate valuation of the condemned property, the jury was properly allowed to consider the intrinsic value of the mineral deposits, as well as the possibility of lawfully mining those deposits under the present zoning ordinance or the grant of a special exception. We therefore discern no error by the trial court in its charges to the jury in this case.
Judgment affirmed.
Notes
The condemnees also cite to Clark v. City of Kennesaw,
Because the jury trial in this condemnation case was conducted in October 2013, the new Georgia Evidence Code applies. See Ga. L. 2011, p. 99, § 101. But many cases decided under the former rules are still useful to our analysis regarding expert testimony and speculation. See Paul S. Milich, “Expert Witnesses — Examination at Trial,” Courtroom Handbook on Georgia Evidence 299 (2014 ed.).
We note that an expert properly may rely on inadmissible facts and data such as hearsay in reaching his opinion, “if the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” (Citation omitted.) Anderson v. Atlanta Gas Light Co.,