Agenda - Planning Commission - 09/02/1997

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Page 8 - August 10, 1997 Z.B. " J Simmons a license for 1994, and later for 1995. In 1995, the Georgia Department of Transportation condemned a portion of Simmons' land, including most of the property's improvements: the busi- ness office, the septic tanks, other buildings, and graded areas. Simmons asked the county to rezone the remaining property for commer- cial use so he could operate his business on that part of the land. The county commission denied the petition, 'and a county official ordered him to move the business off the property. Two commissioners said they denied the application because the remaining land was not large' enough for the trucking operation, and the plan would eliminate the buffer protecting neighboring homes. Simmons sued the department, claiming it failed to fairly compensate for the partial taking of his property. During a jury trial, Simmons testified he paid the required taxes on his business and registered all his trucks with the county. An official in charge of issuing business licenses testified he knew Simmons had a business on the property, even before the first license was issued. Simmons testified that he contacted local real estate agents and had been unable to find suitable and affordable property in the county or a neighboring county. In addition, Simmons and his wife testified the department had failed to find them comparable properties, in terms of practicality and cost. Simmons' expert appraiser testified the condemnation cost Simmons $289,776. The department claimed Simmons' failure to get a business license earlier restricted his claim to a grandfathered use, so his operation had never been a legal, nonconforming use. As a result, the department said, Simmons' claim of $289,776 in damages was too high - it was based on the mistaken belief that he had a legal, nonconforming use. Instead, the department claimed, the property's cost had to be restricted to the fair market value of the residential- agricultural classification, which was $31,400. After the jury deadlocked, the court granted the department judgment. Simmons appealed. DECISION: Reversed and returned to the trial court. Simmons had a legal, nonconforming use of the property when the taking occurred, and the department didn't compensate him fairly or adequately for it. At the time of the taking, Simmons was operating his business with the county's approval - it had issued him business licenses two years in a row. And even before the first license, the county official testified, the county knew about the business and allowed it to operate. The county didn't object to Simmons' operation until after the taking occurred. Had the taking not oc- curred, the evidenced suggested, Simmons still would have been operating his business on the whole property without a problem. Because Simmons' property was a legal, nonconforming use, the department had to compensate him accordingly. The department was wrong in attempting to compensate him for the land's agricultural-residential value, because Simmons wasn't using it for that purpose. . ...-/ . I cPt :"