Cox Communications, Inc. v. Department of Transportation
Cox Communications, Inc. v. Department of Transportation
Opinion of the Court
Appellant brought this action under OCGA § 32-3-11 (a) to set aside a declaration of taking filed by appellee. The property taken is intended to be part of the Presidential Parkway and runs beneath guy wires supporting a broadcast tower owned and operated by appellant. Appellant’s expressed concern is that traffic on the road will be endangered by ice falling from the tower. Because of the tower’s height, 1,076 feet above ground level, ice forms on the upper portions of the tower and on the guy wires during the winter, even when the temperature on the ground is above freezing. The trial court, after taking evidence and hearing arguments from both sides, held that there had been no bad faith on the part of appellee which would warrant setting aside the declaration of taking. This appeal is from that judgment and from the trial court’s denial of appellant’s motion for reconsideration. We affirm.
1. In its first enumeration of error, appellant argues that appellee’s action in proceeding with the condemnation without having first decided how to protect the public from falling ice was such bad faith as would require that the declaration of taking be set aside.
The bad faith required to support an interference with a condemnor’s discretion in determining the necessity of taking land for a public purpose and selecting the location and amount of land necessary “has been equated with conscious wrongdoing motivated by improper interest or ill will.” City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424 (271 SE2d 821) (1980). The trial court, applying that standard, found no such bad faith, noting that appellee has made efforts through the use of consultants, engineers, and meteorologists to determine the most feasible means of protecting the public from ice falling from the tower and guy wires. Our review of the record shows that the trial court’s findings on the issue of bad faith are supported by the evidence. That being so, this court will not disturb the trial court’s decision. City of Atlanta v. Heirs of Champion, 244 Ga. 620 (261 SE2d 343) (1979).
2. Appellant’s second enumeration of error concerns the trial court’s holding that appellant’s “suggestions” for protecting the public from falling ice have been “accepted” by appellee, and the trial court’s failure to set aside the declaration of taking on the basis of appellee’s alleged refusal to honor prior representations concerning a particular method of protection from falling ice.
We find the “acceptance” of “suggestions” issue to be a matter of semantics. While it is true that appellee has not accepted appellant’s suggestions in the sense of adopting appellant’s preferred solution to the problem, appellee has clearly accepted appellant’s suggestion that the public be protected and has included appellant’s proposed solutions in its consideration of the problem. We deem the latter sense of the phrase to be the one employed by the trial court and hold that the court’s finding in that regard is supported by the evidence.
Appellant’s contention that appellee has refused to honor promises made to Cox and representations made to the public concerning the specific method to be used to protect the public from falling ice is not supported by the evidence in the record. The promises made to appellant were that studies would be conducted to consider the problems involved in locating a road under appellant’s tower’s guy wires and that an independent consultant would be retained to study the problems. As the trial court noted in its findings of fact, those things have been done. As to appellant’s assertion that appellee promised to adopt some solution to the problems prior to acquiring any of appellant’s property, we do not find such a promise in the record. Of the documents cited by appellant in support of its assertion, two are affidavits of appellant’s employees who stated that a representative of appellee had assured them that a study would be conducted; one is a letter from an attorney representing appellant to an official of appellee, recounting that official’s indication that the promised studies could be completed within 30 days; and the last is a letter from a different attorney to appellee’s chief executive officer, stating the attorney’s “understanding” that the problem would be resolved prior to land acquisition. None of those documents, in our opinion, constitutes a binding commitment by appellee to resolve the problems involving falling ice prior to acquiring appellant’s property. In short, there is nothing in the record demanding a conclusion that appellee has practiced fraud on appellant.
3. In its motion to set aside the declaration of taking, appellant asserted that appellee had shown bad faith by failure to comply with federal regulations regarding maintenance of airspace over the proposed Presidential Parkway, specifically, 23 CFR § 713.204. Appellant’s third enumeration of error is that the trial court failed to set aside the taking on that ground.
We note first that there has been no showing that appellee will not comply with the cited regulation or that a state highway department must comply with all the requirements prior to condemning land for the highway. And even if there has been some noncompliance on the part of appellee with the cited regulation, the record is devoid of evidence that such noncompliance was intentional or motivated by any improper interest or ill will such as would authorize a court to set aside a declaration of taking. See City of Atlanta v. First Nat. Bank of Atlanta, supra. We find no error with regard to the trial court’s failure to sustain this ground of appellant’s motion.
4. Appellant’s final enumeration of error concerns the trial court’s denial of appellant’s motion for reconsideration. In support of that motion, appellant submitted a copy of a resolution of the Atlanta City Council disapproving further construction of the Presidential Parkway and a copy of a resolution of the Atlanta-Fulton County Senate Delegation to the same effect. Appellee, in opposition to appellant’s motion, submitted a copy of a letter vetoing the Atlanta City Council’s resolution.
We find no error in the trial court’s denial of appellant’s motion for reconsideration. The “evidence” in support of the motion consisted of the collective opinions of two groups of elected officials, neither of which opinions had any legal effect on the Presidential Parkway and neither of which was probative of appellant’s assertion of appellee’s bad faith.
As the cited cases make clear, any damages such as those appellant fears, “if compensable, must be sought in a separate action against the condemnor.” Simon, supra at 480. That is to say, if appellant incurs liability to a passerby who is injured by ice falling from the tower onto the new road, that will be the time to address, in an inverse condemnation action, the issue of appellee’s liability to appellant for such injury. See MARTA v. Trussell, 247 Ga. 148 (1) (273 SE2d 859) (1981). It was, therefore, appropriate that the trial court did not attempt to adjudicate that issue in the present action.
Judgment affirmed.
Concurring Opinion
concurring specially.
By specifically excepting from the taking “that portion of the air space over the above described property necessary to maintain the
I am authorized to state that Judge Pope and Judge Beasley join in this special concurrence.
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