McDaniel Enterprises Inc. v. Gwinnett County

Birdsong, Judge. The sole enumeration of error made in this condemnation case is that the trial court erred in charging the jury: “In determining the value of property... you are restricted to uses which may be lawfully made of it at the time of the taking as set out in the zoning ordinances then in effect.” It is alleged that, contrary to the leading case of Civils v. Fulton County, 108 Ga. App. 793, 796-797 (134 SE2d 453), this charge restricted the jury from considering the highest and best use testified to, industrial, in determining fair market value. The charge given was not correct. In determining value the jury may consider existing zoning and possible or probable future zoning changes which are sufficiently likely to have an appreciable influence upon the present market value. See Code Ann. § 36-505. However, we find no harm. The evidence shows the condemned property was zoned for industrial use at the time of taking, so we do not see how the charge, by restricting consideration of use to the present zoning use (industrial) prevented the jury from considering this property’s highest and best use, which appellant contends is industrial. Judgment affirmed. McMurray, P. J., and Banke, J., concur. James A. Henderson, for appellee.