City of Atlanta v. First National Bank

Deen, Chief Judge. This appeal represents the second condemnation by the City of Atlanta in its action to acquire land on behalf of MARTA (Metropolitan Atlanta Rapid Transit Authority) for use in its construction of an Atlanta Arts Center station on its northern line. The original plans of July, 1978, left intact a 15-apartment structure at the corner of Fifteenth Street and Lombardy Way, provided for all-day parking and in addition for an area designated as “kiss-ride” where passengers could be let off or picked up by automobiles which then continue to other destinations. In the original plan the kiss-ride facility, to contain 31 spaces, was located just north of Sixteenth Street, the latter deadending into land used for the facility. This plan called for destruction of a low retaining wall and enlargement of the sloping area involved by a larger wall ten feet in height. It was thereafter decided by the MARTA engineers that the kiss-ride parking area should be moved to the corner now occupied by the trust property here involved, which would permit landscaping the slope instead of building a higher retaining wall, make slight changes in the approaches for MARTA buses, reduce the temporary parking from 31 to 29 spaces, etc. The additional retaining wall height would furnish about the same kiss-ride space and is feasible by raising the wall to a maximum height of 20 feet instead of 10, the additional cost to be approximately $200,000 by the highest estimate. The cost of the property now sought to be acquired (which would eliminate raising the height of the wall) is variously estimated between $200,000 and $400,000. It therefore appears that the same facilities can be provided by MARTA utilizing the land already taken at no greater expenditure than the acquisition of the property here involved. The engineer and project manager for the condemnor, however, offered considerable testimony to the effect that the additional land would represent some improvement in the flow of traffic and like considerations. As to the apartment complex [659] involved, it appears undisputed that the structure is of good architectural appearance and sound condition and blends well into the adjacent residential area. These figures do not include either the cost of demolition of the apartment complex if this parcel is condemned, or the cost of restructuring the area already acquired by means of retaining wall to utilize approximately the same area according to the original plan as modified to accommodate four additional bus bays. A special master heard the condemnation proceedings initiated under Code Chapter 36-6A. His summary reflects the major areas of disagreement between the parties as to the public necessity of adding additional property to that already acquired for the same purpose. The special master summed up the questions as follows: “As reflected by the testimony of Mr. Medley [the project manager for MARTA] the various factors taken into consideration in making the determination to abandon the use of the previously acquired property in favor of the subject property were: 1. The increase in width of the bus facility; 2. the dead-end situation at the section parking area; 3. the cost of the wall, and 4. straightening of the bus way drive.” After analyzing these problems in detail the special master reached the conclusion that: “Under the evidence presented, the inescapable conclusion is that the property previously acquired by MARTA for the development of its ‘kiss-ride’ facility at the Art Center Station was adequate for the proposed purpose and that through the instant action the City of Atlanta, for the benefit of MARTA, is making an effort to take more land than is reasonably necessary for the accomplishment of the public purpose and that the reasons given for abandoning the previously acquired property in favor of the condemnation of the subject property are arbitrary, capricious and indicative of bad faith.” This conclusion was appealed to and upheld by the judge of the Superior Court of Fulton County. Close examination of the testimony and accompanying maps provided for the acquisition of. the original land as well as the subsequent desired enlargement lead to the inescapable conclusion that, construed as a whole in favor of the judgment entered, the original taking was sufficient to meet the needs perceived by the MARTA Board and its engineers and other staff. The question then becomes one of law: Where both the original and present overall plans offered by MARTA appear to be adequate for the purposes intended, may the owner of property sought to be additionally condemned resist on the ground that the additional taking is arbitrary, capricious, and not reasonably necessary? “The taking of more land than is necessary for public purposes cannot be justified [660] on the principles underlying the right of eminent domain. When more land is taken than is necessary for public uses, it is in effect a taking for private use, or for no use; in either of which instances the right does not exist.” Piedmont Cotton Mills v. Ga. R. &c. Co., 131 Ga. 129, 136 (62 SE 52) (1908). Under conflicting evidence in eminent domain cases, as in others, a trial judge has the right to believe the party to whom the evidence preponderates in determining whether or not the taking is reasonably necessary. Barrett v. State Hwy. Dept., 211 Ga. 876 (89 SE2d 652) (1955). It has many times been stated that in the absence of bad faith the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, both as to necessity and amount. Cf. City of Atlanta v. Heirs of Champion, 244 Ga. 620 (261 SE2d 343) (1979), which latter case also holds: “Even though the evidence regarding necessity [for the taking] may have been in conflict, the trial judge was authorized to determine the factual issues in the case. These findings should not be disturbed on appeal if there is evidence to support them.” Thus, necessity may become a factual issue. Further, the presumption in favor of the correctness of the condemnor’s determination is greatly weakened, if not destroyed, by the fact that MARTA in 1978 specifically decided not to condemn the property in question and in fact prepared working specifications placing the parking facility within the area taken, and its engineer now admits that those plans allow (or, with the raising of the retaining wall can allpw) for most of the improvements desired plus the same or an additional number of bus bays and parking spaces. Further, it appears from the maps that if the temporary parking facility is switched over to land cleared by removal of the apartment complex, the land originally condemned which was allocated to this purpose will be left unused for all practical purposes, in itself an obvious waste of funds. Argued February 6, 1980 Decided May 19, 1980 There was evidence substantially supporting, if not preponderating, to the decision of the special master, affirmed by the superior court, that the additional taking of the property here involved is not reasonably necessary, from which it follows that such taking would be arbitrary and capricious. After examination of the entire record, we concur in the result reached. Judgment affirmed. Quillian, P. J., McMurray, P. J., Smith, Shulman, Banke, Birdsong and Carley, JJ., concur. Sognier, J., dissents. Ferrin Y. Mathews, Charles N. Pursley, Jr., for appellant. Charles E. Watkins, Jr., Jefferson D. Kirby, III, for appellees.