Fox v. City of Cumming

The plaintiff lacked standing o seek a public use determination under O.C.G.A. § 22-1-11, which applies only in pending condemnation proceedings, because the city had not commenced a condemnation action.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Following the dismissal of her action against the City of Cumming, Deborah Fox appeals, contending that the trial court erred in ruling that there was no justiciable controversy under OCGA § 22-1-11 The Landowner’s Bill of Rights and Private Property Protection Act. Because the City has not initiated a condemnation proceeding against Fox, and because the issue presented on appeal arises only from the relief sought by Fox under OCGA § 22-1-11, which only applies when a condemnation proceeding has been filed, we affirm. “On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss.” Hendry v. Wells .1 The record shows that in June 2007, Fox received a letter from the City providing notice to her that the City would be entering her property to conduct a survey for the purpose of designing sewer facilities located in part on her property. The letter stated that, incidental to the City’s power of eminent domain, the City had the right to enter Fox’s property for the purpose of performing the survey. Despite Fox’s resistance in correspondence and in meetings with the City, the City informed her that it would undertake the survey over her objection. Fox then filed an action seeking i a temporary injunction to prevent the survey and ii a determination, under OCGA § 22-1-11, as to whether the City’s sewer plan was a lawful exercise of the power of eminent domain for a public use. The City moved to dismiss, and before final resolution, the trial court entered a consent order allowing the survey to take place. Following a subsequent hearing, the trial court dismissed Fox’s action without prejudice, ruling that Fox lacked standing to proceed under OCGA § 22-1-11, because the City had not commenced a condemnation action. Fox now appeals.

Fox contends that the trial court erred in ruling that she was not authorized to seek a public use determination under OCGA § 22-1-11 prior to the commencement of a condemnation proceeding by the City. We disagree.

Fox v. City of Cumming

The plaintiff lacked standing o seek a public use determination under O.C.G.A. § 22-1-11, which applies only in pending condemnation proceedings, because the city had not commenced a condemnation action.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report