O.C.G.A. § 32-3-3.2 and three years of unanswered questions
Steven L. Jones and Alexandra Rason Coons
by Alexandra Rason Coons and Steven L. Jones
In 2020, the state of Georgia legislature (United States) enacted a new condemnation statute: O.C.G.A. § 32-3-3.2. It states that when a state or local government acquires property for public road purposes through negotiated sale or eminent domain, and “issue[s] to a property owner” a “documentation of a conflict” that “reveal[s] a proposed cure for an alleged damage that resulted” from the acquisition but would violate an applicable “local government land use … or land disturbance regulation”, the local government must either (1) “[g]rant a minimum degree of variance from [the conflicting] land use or land disturbance” regulation for the remaining parcel; or (2) upon denial of the variance, pay the property owner “just and adequate compensation for damages related to” the conflict identified by the documentation of a conflict. But, “no compensation shall be paid directly or indirectly by” the governmental entity that acquired the property (O.C.G.A. § 32-3-3.2(b)(2)).
As of the writing of this article, no appellate case has been decided interpreting or applying O.C.G.A. § 32-3-3.2. As a result, many questions remain unanswered.
First, while the Georgia legislature may adopt laws establishing procedures governing a local government’s constitutional home rule zoning power, the legislature may not usurp that power (Ga. Const. Art. IX, Sec. II, Para. IV). Because it would require a local government to grant a “minimum degree variance”, is O.C.G.A. § 32-3-3.2 an unconstitutional usurpation of the authority of local governments to exercise zoning power? This question is especially problematic when the local government is also the acquiring government because the statute provides that under no circumstance shall “compensation … be paid either directly or indirectly by the” acquiring government, and therefore, in such a case, the local government’s only option is to grant the variance.
Second, the statute does not define a “minimum degree variance”, which may or may not include an elimination of the underlying requirement. Can a “minimum degree” variance be a “total” variance of the underlying requirement?
Third, can the statute pit different government departments against each other when one department is pursuing the acquisition and another department administers the land use ordinance and land disturbance regulations?
Fourth, can a property owner request, facilitate, or demand a documentation of conflict if the property owner identifies the conflict that the government did not recognise?
Finally, the land use and land disturbance regulation at issue may not be permitted to be varied under the government’s existing regulations. If there is not a codified procedural mechanism to vary the conflicting regulation, does the statute create one?
GGI member firmTaylor English Duma LLP Atlanta (GA), USAT: +1 770 434 6868Law Firm Services
Taylor English Duma LLP is a full-service law firm headquartered in Atlanta. The firm represents all types of clients, from Fortune 500 companies to startups to individuals. A 2018 recipient of the Forbes Small Giants award, the firm is the Georgia law firm member of GGI Global Alliance.
Alexandra Rason Coons is a partner in the real estate department at Taylor English. Her practice includes the financing, acquisition, disposition, and leasing of real estate assets, including retail, multi-family, office, hotels, and mixed-use developments. Contact Alexandra.
Steven Jones is a partner in Taylor English’s real estate department. He advises and represents developers, builders, operators, and individuals throughout the state of Georgia in land use, zoning, and eminent domain/condemnation issues. Contact Steven.
