Department of Transportation v. Bridges ( 1996 )

Blackburn, Judge.

In the underlying action, Bridges sought recovery from the Department of Transportation (DOT) on a theory of inverse condemnation. Upon our grant of its application for interlocutory appeal, the DOT appeals the trial court’s denial of its motion for summary judgment.

Bridges’ complaint is based on the DOT’s closing of Chumley Circle at its intersection with Canton Road. Bridges’ property is an undeveloped commercial tract of land which abuts Chumley Circle near its intersection with Canton Road. It is the only property in the county with a Chumley Circle street address and the only property which uses Chumley Circle as its primary access to Canton Road. Surrounding properties are zoned residential and either have direct access to Canton Road or have used other residential streets for access. The DOT closed Chumley Circle at its intersection with Canton Road for safety reasons.

The court’s denial of summary judgment rested on the conclusion that Bridges has a right to be compensated for any substantial impairment of his right of access to his property, that the existing means of ingress and egress may not be substantially interfered with without compensation, and that it is for the jury to decide whether there has been a substantial impairment or interference.

1. The issue here is whether Bridges has suffered any violation of a special right which he holds by virtue of ownership of his property, as opposed to a violation of those general rights which he enjoys in common with the public. If he has not, then he cannot recover damages for this injury, which he suffers in common with other members of the public.

Bridges’ commercial property had been zoned O & I since 1985, and he intended to develop it as office property. The DOT action has taken away Bridges’ right to develop his property commercially because it has cut off access to the commercial artery and the only access is now through residential neighborhoods. As Bridges owns the only property so affected, his injury raises a jury question. Being the solitary property affected is the ultimate state of uniqueness.

Whether property is unique is a jury question, and only slight evidence of uniqueness is required to warrant the submission of the issue to the jury. DeKalb County v. Glaze, 189 Ga. App. 1, 4 (375 SE2d 66) (1988). All evidence is viewed in favor of Bridges and in opposition to the DOT’S motion for summary judgment. The facts herein outlined are supported by Bridges’ affidavit and are undisputed by the DOT. The trial court correctly decided to submit this question to a jury. See Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287 (1) (342 SE2d 760) (1986); Dept. of Transp. v. 2.734 Acres of Land, 168 Ga. App. 541, 542 (1) (309 SE2d 816) (1983).

In Circle K Gen. v. Dept. of Transp., 196 Ga. App. 616 (396 SE2d 522) (1990), an excellent opinion authored by Judge Beasley, this Court held that the property owner in that case had the right to present evidence to show the access to its property had been substantially restricted. Substitution of a controlled access road by the State was held to potentially cause damage to the property owner which was compensable insofar as an access road was not the same as access to the major thoroughfare. In this case, Bridges has not even been provided with a controlled access road, but rather is faced with a constructed barrier which completely blocks his access to Canton Road. Additionally, a review of the diagram attached as Exhibit 1 to Bridges’ affidavit shows that access to his commercially zoned property is now available only through surrounding residential property which is a substantial and unique detriment to him. The trial court in Circle K noted that “the [property owner] would be entitled to recover for any damages from the change in access which would be unique to itself and not of the same kind as the general public meaning the other property owners along [the street on which the plaintiff’s property was located] whose access was also changed.” (Punctuation omitted; emphasis supplied.) Id. at 617.

The dissent focuses on a distinguishable case, Tift County v. Smith, 219 Ga. 68, 72 (131 SE2d 527) (1963), in which the Court reiterated the existence of the “cul-de-sac” theory in which Georgia courts had permitted landowners to recover for damages incurred as a result of the dead-ending of a road within the same block as the property involved, citing Felton v. State Hwy. Bd., 47 Ga. App. 615 (171 SE 198) (1933), and Ga. Terminal Co. v. Temple Baptist Church, 144 Ga. 791 (87 SE 1023) (1916). The Court also recognized in Tift, supra at 71, that it did not apply to factual situations like the present case: “The holdings by this court in Ward and Georgia Terminal Co., supra[ cases similar to the present case], and those by the Court of Appeals turn upon whether the dead-end obstruction is within the same block as the property involved. Thus, there is no decision by this court as to whether a situation comparable to the one here constitutes a claim compensable under the constitutional provision invoked.” (Emphasis supplied.)

In Tift, the Court further stated: “The complaint here is based upon access, reoí to the road upon which their property abuts, but to a particular place, Eldorado.” (Emphasis in original.) Id. “The only interference plaintiffs allege is inconvenience of travel on the old road.” Id. at 72. “It is significant that they allege no . . . other damage that is peculiar to them because of their ownership of this property.” (Emphasis supplied.) Id. Tift did not involve an interference with the right to develop one’s property consistent with its existing zoning, as does the present case. The right to so develop one’s property is a property right with which the DOT cannot interfere without compensation to the landowner. See Ga. Const. 1983, Art. I, Sec. Ill, Par. I.

Bridges’ property is the only property on Chumley Circle and is the only property directly affected by the DOT’s action. This distinguishes the present case from Tift and MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987), which cites Tift. The flaw in applying MARITA and Tift to the present case is the underlying assumption in those cases that there are others who adjoin the “abutting highway” and are similarly affected, and thus there is no special right in the complaining landowner. “[0]ne whose right of access from his property to an abutting highway is cut off or substantially interfered with has a special property right which entitles him to damages. But if his access is not so terminated or obstructed, if he has the same access to the highway as he did before the closing, his damage is not special, but is of the same kind, although it may be greater in degree, as that of the general public, and he has lost no property right for which he is entitled to compensation.” (Punctuation omitted.) MARITA, supra at 733, quoting Tift.

Bridges’ access differs in kind, as no other property abuts the road, not in degree, and thus MARITA and Tift are inapplicable. Further, Bridges has also lost a property right for which he is entitled to compensation, even under the language of Tift, that being his right to develop his property which was precluded by the DOT’s action. Bridges’ inability to develop the commercial potential of his property is a special damage unique to him alone, suffered as a result of the actions of the DOT. Being the only one affected is as unique and special as one can get; there is no higher degree of uniqueness. “[CJonsequential damages must be special to the condemnee and not be those suffered by the public in general.” Hillman v. Dept. of Transp., 257 Ga. 338, 339 (359 SE2d 637) (1987).

This case is also distinguishable from the Durpo case cited by the dissent. See Dept. of Transp. v. Durpo, 220 Ga. App. 458 (469 SE2d 404) (1996). In Durpo, the landowner complained that its direct access to a main road was closed, thereby causing a loss of business because of the new less-direct method its customers must travel to reach it. In the present case, Bridges can no longer develop his commercial property due to the DOT’s actions. The only remaining access to Bridges’ commercial property is through residential neighborhoods. Bridges’ damages are special and unique as contrasted with the type of damages addressed in Durpo.

Therefore, the trial court did not err in denying DOT’s motion for summary judgment.

2. Bridges contends that he has been denied access to the county sewer system. Bridges alleged that he had received approval to access the county sewer system, that he presented evidence (which he did) that the closure of Chumley Circle at its intersection with Canton Road has denied him his only access to the sewer system, and that such access is necessary in order for him to develop his property. A complete denial of access to a public utility under these circumstances would constitute a compensable damaging of property. Consequently, the court did not err in denying DOT’s motion for summary judgment on Bridges’ amendment to his complaint.

3. We do not address DOT’s argument regarding the separation of powers clause of the Georgia Constitution, in that it does not appear this issue was raised below. See, e.g., Tanthongsack v. State, 265 Ga. 88 (1) (453 SE2d 468) (1995).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, C. J, and Andrews, J., concur in part and dissent in part.