ASK SIMON BLOOM
Uneasy Easement
What’s on your mind? Please send your “Ask Simon” questions to kmurphy@hbag.org.

Q: I am trying to develop single family home lots and need to hook up to utilities by getting an easement over some adjacent property. The adjacent property owner won’t give me the time of day, and I can’t make any progress. Is there another legal avenue I can take to force the adjacent property owner to let me cross his property to hook up to the utilities?

A: As land development in and around the metro-Atlanta area has recovered, several counties have embraced the process of “county-assisted” condemnation. This relatively new phenomenon can be a blessing or a curse –depending on which side of the taking you are standing on.

Imagine that a developer needs access to a public utility for the lots in a new subdivision or a new commercial development— a common occurrence, to be sure. But, for some reason or another, the developer cannot hook up to that utility without an easement over someone else’s property, and that owner just does not want to deal with it. You might be thinking that

the developer will be left out in the cold with no ability to get the utility that he needs to complete the development. This is where countyassisted condemnation may come to the developer’s rescue.

In counties that have adopted county-assisted condemnation, the county commissioners have passed

a resolution stating that, in situations like the one described above, the developer may ask the county to condemn the land the developer wants for its easement, pursuant to whichever condemnation statute is available (this generally depends upon the type of utility or use at issue). To be sure, it’s not as simple as calling up the county’s planning department and asking the first person available. There typically is a list of procedures and formalities that have to be observed, including getting an appraisal and showing that the developer did try to pay for the easement before asking the county to take it and, in some counties, participating in a county-sponsored mediation process. Additionally, even countyassisted condemnation will not alleviate the developer’s burden of paying the related costs for the necessary work to be done.

Unfortunately for the adjacent property owner whose land is the subject of the take, the county-assisted condemnation process provides little protection. Even more, the formalities that are required by statute are often times not strictly observed by the county itself, leaving the property owner with limited avenues for relief. From this perspective, county-assisted condemnation is a useful tool for a developer working in any county that provides the option, especially since the county will be stuck litigating any objection to the take.

A founding partner at his own Atlanta firm— Bloom Sugarman—Simon has extensive experience handling legal challenges involving eminent domain, zoning and land use, building codes, sewer and water run-off issues, contract disputes, partnership disputes, and construction litigation. He also understands the nuances involved when dealing with multiple levels of government, associations, and the sometimes tenuous relationships with sub-contractors and suppliers. o