County and residents fare evenly in condemnation cases

By Patrick Fox

The Atlanta Journal-Constitution

When the Gwinnett County Commission rejected a $5.2 million settlement in a land dispute Tuesday, one member warned the county usually loses condemnation cases in court.

But a study Commissioner Kevin Kenerly cited as evidence shows landowners hardly fare any better in judgments.

Based on its appraised values for the properties, the county did not win any of the cases referenced, but neither did the landowners in most cases.

The study, compiled through the county attorney’s office, includes complete data for 13 of 14 condemnation cases filed over the past 12 years.

“It’s hard to judge wins and losses without knowing what all the issues are,” said Atlanta attorney Charles Pursley, who has handled eminent domain cases for 32 years and wrote a book on the subject. “But if I’m representing a property owner, I would certainly expect to do better than to split the difference.”

Based on that criteria, the county “won” about half the cases listed.

McDonough attorney Warren Power, whose clients have included the state Department of Transportation and the city of Atlanta, said Kenerly’s comments were technically correct.

By law, he said, juries always find for the property owner, who must be compensated for the land taken.

“The flip side of that is [the government] has lost in that they’ve been told how much money they have to pay, but they’ve also won in that they’ve acquired the property,” Powell said. “So it depends on your perspective as to who loses.”

The study was brought up Tuesday when the County Commission voted 4-0 to reject a proposal to pay $5.2 million to acquire 16 acres from Old Peachtree Partners. If approved, the sale would have ended a lawsuit involving 2.6 acres of right of way the county acquired from Old Peachtree Partners in 2007 for the McGinnis Ferry Road extension project.

Appraisals for the property are not available, but Old Peachtree Partners attorney Tony Powell told commissioners the $5.2 settlement was a good deal for the county. He said he has an appraiser who values the land at much more.

Kenerly did not return requests for an interview Wednesday.

Buzz Brockway, a former Gwinnett County GOP chairman and conservative blogger, said he was glad the commission voted down the settlement.

“It seems to me the best way to sort this out is in the courts,” he said. “They had a deal, and the owner of the land reneged on the deal. If that happened between you and me, we’d go to court to settle it.”

Here is a rundown of the 13 cases referenced in the study of condemnation cases involving Gwinnett County:

Condemnee -- Year Filed -- County Appraisal -- Condemnee Appraisal -- Judgment/Verdict

Benny Bolden -- 1996 -- $12,900-- $93,000 -- $42,500

Ruby H. McHugh -- 1997 -- $11,911 -- $350,000 -- $87,500

Van Os Seed --1998 -- $31,200 -- $107,518 -- $51,513

Jeffrey Sibley -- 1998 -- $7,750 -- $70,000+/- -- $19,500

George Dillard* -- 2002 -- $9,500 -- $146,131 -- $34,500

Bobby Smathers -- 2003 -- $6,100 -- $18,000 -- $8,200

Naomi Flanigan -- 2005 -- $16,625 -- $125,000 -- $115,000

Barbara Howard -- 2006 -- $132,250 -- $337,250 -- $325,000

Gann Enterprises -- 2006 -- $3,100,000 -- $6,000,000 -- $5,625,512

William Snead -- 2007 -- $510,900 -- $1,300,359 -- $1,160,000

James Walton -- 2007 -- $351,900 -- $715,000 -- $730,000

Attix, Pinto, Ketchum -- 2008 -- $56,100 -- $135,000 -- $67,100

*Involved two separate cases for two separate properties