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Motions to Set Aside Declarations of Taking
MOTIONS TO SET ASIDE DECLARATIONS OF TAKING
Mathew M. McCoy
Ruari J. O’Sullivan
McCorkle & Johnson, LLP
TABLE OF CONTENTS
A. Introduction 2
B. OCGA § 32-3-11 3
C. Procedural Considerations 4
D. Burden 6
E. Rulings in Favor of Motions to Set Aside 7
F. Rulings Against Motions to Set Aside 15
G. Arguments in Favor of Motion to Set Aside 18
H. Conclusion 22
MOTIONS TO SET ASIDE DECLARATIONS OF TAKING
In Georgia, a condemning authority may exercise its power of eminent domain through a number of various legal proceedings. Depending on the circumstances, the authority may condemn by a summary proceeding, a proceeding in rem, a special master proceeding, or a declaration of taking. The focus of this paper arises in the context of a taking exercised by the latter method, the declaration of taking. The declaration of taking, established and governed by OCGA § 32-3-1, et seq., may only be utilized by a condemning authority for public road or public transportation purposes. The declaration of taking is unique in that it is automatic, meaning that once it is filed it has the effect of a final judgment and title passes to the condemnor. It is the “only procedure that allows the taking or damaging of private property before an evidentiary hearing has been held to fix the amount of just and adequate compensation.” Because it is a final judgment, if dissatisfied, the condemnee can file notice of appeal to challenge the amount of taking, or file a motion to set aside the declaration of taking, the focus of this paper.
Under certain circumstances Georgia courts will grant motions to set aside declarations of taking in favor the condemnee. The authority setting aside such motions, however, has limited applicability due to the unique factual circumstances on which the decisions are based. Still, there are methods attorneys may use to align their case with the legal implications of those decisions. More importantly, however, the motion to set aside may be used by the condemnee to gain an advantage, especially when such motions are anticipated in advanced, sufficiently prepared for, and well-plead.
The grounds and procedures for making such motions are controlled by OCGA § 32-3-11, which will be discussed in further detail below. This paper will also address the burden, implications, and other considerations that must be kept in mind when filing a motion under Section 32-3-11. Lastly, this paper will discuss the case law surrounding these motions, including those circumstances that make such motions particularly viable, and provide methods for distinguishing the contrary authority to align future cases with the handful of positive decisions.
B. OCGA § 32-3-11
Section 32-3-11(a) grants superior courts the ability to “set aside, vacate, and annul the declaration of taking, together with any title acquired thereby....” The statute’s broad grant of authority in subsection (a) is qualified in subsection (b), which only allows the superior courts to exercise such authority upon proper pleadings and evidence showing:
1. Fraud or bad faith, as contemplated by Sections 23-2-60 and 9-11-60;
2. The improper use of the powers of condemnation for transportation purposes not contemplated by the article;
3. The abuse or misuse of the powers of condemnation for transportation purposes; and
4. Such other questions as may be properly raised, including the question of whether or not this article has been invoked in some respect beyond the privileges conferred for the condemnation for transportation purposes or by an unauthorized agency, county or municipality.
Subsection (c) of the OCGA § 32-3-11 sets forth the procedural mechanism the condemnee must utilize in order to raise one of the permitted showings, above, and seek a motion to set aside. First, the condemnee must petition the judge of the superior court presiding over the condemnation, filed no later than 30 days from the date service was made upon the condemnee for the declaration of taking. The judge must then issue a rule nisi, requiring the condemnor to show why title to the condemned property should not be set aside at a hearing that must occur between 15 days after service for the rule nisi hearing was made upon the condemnor and 60 days from the date of filing the declaration of taking. Both parties have a right of appeal from the rule nisi hearing determination.
C. Procedural Considerations
The short deadlines, mentioned above, leave very little room for condemnee’s attorneys to maneuver in once a declaration of taking is filed. However, if approached appropriately, the short time frames may be turned in an attorney’s favor and used against the condemning authority to, at the very least, gain bargaining leverage. Although things move quickly once the declaration is filed, in the normal case the declaration can be anticipated far in advance. During this time it is important to develop, or at least predict, your theory of opposition, discussed in greater detail below, and, if possible, assemble the evidence and testimony you may need to support your theory.
If completely unprepared, scheduling and holding depositions within the tight time frame between the declaration and hearing might be difficult, especially in light of the Civil Practice Act, which may require leave of court to take depositions in such tight periods and requires reasonable notice to be given to the witness. During that window of time, attorneys should utilize Georgia Open Records Act if necessary to quickly obtain relevant information. It should be noted, however, that the Georgia Opens Records Act cannot be used to obtain real estate appraisals or engineering or feasibility estimates related to a condemnation. However, as suggested by Department of Transportation v. Bunn, when relevant to the motion to set aside, prior plans of the condemnation and evidence of negotiations between the parties may be introduced on the record.
As a practical matter, because the timing for filing the two are identical, attorneys should file the motion to set aside the declaration at the same time that they file a notice of appeal. In filing the motion to set aside, attorneys should attach a draft rule nisi order for the judge to execute. Otherwise, it is highly possible that the judge may cause a rule nisi to be issued outside of the applicable time period. While not necessarily fatal to the motion, for an who attorney has anticipated the declaration of taking and sufficiently developed a theory supported by evidence, any delay would favor the condemning authority.
At the time of filing a declaration of taking, the condemnor is required by statute to deposit just compensation into the court. The condemnee may accept the amount by withdrawing the just compensation. However, if the condemnee is filing a motion to set aside the declaration, the condemnee must leave the deposited amount in the court. To do otherwise would be an act inconsistent with the motion to set aside.
OCGA § 32-3-11 states the superior court judge may exercise the power to set aside a declaration of taking “in the same way and manner and for the same reasons as are provided by Code Sections 23-2-60 and 9-11-60.” Section 23-2-60 simply states that “fraud will authorize equity to annul conveyances,” while Section 9-11-60 invokes the general rules of civil procedure regarding motions to set aside. The case law surrounding Section 9-11-60 makes it clear that in such motions the trial judge is the finder of fact. In exercising the authority to set aside declarations of judgment pursuant to Section 32-3-11, the court has broad discretion to exercise its power, and will not be overturned unless clearly erroneous. On appeal, the superior court’s decision will not reverse the decision if there is “any evidence” to support it.
E. Rulings in Favor of Motion to Set Aside
Subsection (b)(2) of Section 32-3-11, dealing with improper use of the condemnation powers, has been successfully invoked once to set aside a motion of declaration. In Cox Communications, Inc. v. Department of Transportation, the Department of Transportation (“DOT”) had condemned a portion of a parcel owned by Cox Communications to construct a four-lane highway. Adjacent to the proposed highway stood one of Cox Communications’ broadcast tower, supported by guy wires that would stretch over the proposed highway. Cox Communications petitioned the court to dismiss the declaration. In the subsequent rule nisi hearing, evidence was put forth that melting ice, which routinely forms on the guy wires, would fall directly on the proposed location of the four lane highway. The superior court found no exercise of bad faith and denied the motion. The Georgia Court of Appeals subsequently affirmed that decision.
On further appeal, the Supreme Court, applying the clearly erroneous standard of review, affirmed the trial court’s determination that there had been no bad faith on the part of the DOT. However, as discussed above, a court may still dismiss a declaration of condemnation absent bad faith if one of the separate showings of OCGA § 32-3-11 is evidenced in the rule nisi hearing. Here, although it had not been raised on appeal, the Supreme Court found that the trial court should have granted the motion to set aside under subsection (b)(2), which “authorizes the superior court to set aside a declaration of taking upon a determination that such a taking would constitute ‘the improper use of the powers of this article, such as are not contemplated by this article.” The Court found that the “grave and unusual risk to the safety of the public” from the potential falling ice was an improper use of the power of condemnation. The protection of persons, the Court stated, is “a paramount duty of government.”
The precedential authority of Cox Communications may, in actuality, be fairly limited. Firstly, within the decision itself, the Court stressed that the facts were “unique.” The Court stressed that the potential for injury from falling ice in this case was not speculative and that any injury would likely cause serious injury or death; the Court could not condone the DOT’s construction of a highway of “an unusually dangerous nature.” Further, at least one other court has distinguished Cox Communications explicitly. That court highlighted the fact that Cox Communications “was explicitly premised upon its unique facts, and absent those distinctive and rare facts, the analogy to Cox fails.”
Condmenees have successfully relied on subsection 32-3-11(b)(3), regarding the abuse or misuse of the condemnation powers, to set aside a declaration of taking. In Department of Transportation v. Hudson, the DOT filed a declaration to take a temporary easement on the condemnee’s heavily wooded property adjacent to a highway for use as a detour route. On the other side of the highway was unwooded property. The DOT’s design engineer, in choosing a detour, undertook “no environmental impact analysis, cost analysis, or other comparative analysis....” The engineer did maintain, however, that the placing the detour on the other side of the highway would result in less safe traffic flow and estimated that it would be more expensive. The condemnee filed a motion to set aside the judgment for abuse and misuse of the condemnation power.
Before turning to the issue at hand, the court took to clarify apparently conflicting statements from the prior case law and Section 32-3-11 itself. Firstly, the general condemnation case law holds that “in the absence of bad faith, the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.” Further, Section 32-3-11 itself establishes “a prima-facie presumption that the property or interest condemned is taken for and is necessary to the public use....” In the case at hand, with the absence of bad faith coupled with the fact that the condemnee’s grounds for petition rested on questioning “what and how much land” was taken, a court would be fully justified in leaving the taking in the discretion of the condemning authority. The court of appeals, in this instance, however, downplayed the significance of the prima facie case of necessity and allowed courts to examine more closely the DOT’s procedures in selecting targets for evidence of abuse or misuse of discretion. The court of appeals recognized that, “[i]n determining whether a condemning authority has abused its discretion, the matter has usually been discussed in terms of bad faith or fraud” and corrected that narrow view of condemnation by finding that “there is no absolute requirement of showing bad faith.” From the face of the statute, this is plain, but the court’s decision in Hudson was significant in that it stretched inquiries concerning whether there was an improper use of power into the realm of the DOT’s most fundamental activities - choosing which properties to condemn. Ultimately, in Hudson, the court found that the evidence in the record warranted the superior court to find that the DOT had hardly used any discretion in selecting their target property by failing to undertake the appropriate analysis. To allow the DOT to improperly condemn in this fashion, the court said, “would play ducks and drakes with the concept of discretion itself.”
Condemnees have succeeded on motions to set aside declarations of condemnation based on OCGA § 32-3-11(b)(1) for bad faith exercise of the condemnation power. In Brannen v. Bulloch County, a dirt county road divided the property of a large lumber company into separate parcels. Evidence on the record showed that the road was in a state of disrepair, in part because the large lumber vehicles routinely used the road. When it rained, the road became impassable to regular traffic. Evidence was also introduced that the county choose not to repair and maintain the road in order not to inconvenience the operation of the lumber company. Repairing the road would mean that the lumber company would have to move water pipes and lines adjacent to the road, and digging the necessary drainage ditches would mean that the lumbering trucks could only access the road where culverts were placed, in contravention to the free access to the road the trucks had at the time. The county concluded that the best option was to build a new road around the lumber company’s property, and the lumber company agreed to reimburse the county for all the costs of condemnation. The condemnees filed a motion to set aside the declaration of taking for bad faith, and the superior court denied the petition.
On appeal by the condemnees, the lumber company argued that, in light of the fact that the county taxpayers would not foot the bill for the new road, and because the express purpose of the new and safer road was for the benefit of the public, the courts should not interfere with its discretion to build the road. The Georgia Court of Appeals noted that, in fact, the “Supreme Court ‘has been reluctant to find bad faith on the party of a condemnor in its determination of public purpose,” and has only rarely found that the condemnor has abused its authority. However, for the court, the weight of prior authority requiring a strong showing of fraud to establish abuse did not affect the language of OCGA § 32-3-11, which stood as a testament to the Georgia Legislature’s “recognition of the very real potential for abuse that exists in the exercise of the power of eminent domain.” Although directed by maxim not to substitute its opinion for that of the comdneor, the court found that the “real reason” for the condemnation, despite the stated public purpose, was for the benefit of the lumber company. For the court, because the county condemned the property to avoid inconveniencing the lumber company, “such action [was] beyond the power conferred upon the county by law and amounts to bad faith.”
Like Hudson, Brannen demonstrates that despite the numerous directives in the body of authority that limit the power of courts to question the motives behind condemnations, courts may be willing to incise deeper into the condemnor’s intent under the right factual circumstances when considering motions to set aside. Ultimately, however, the unique and eyebrow-raising factual circumstances of Brannen, like those in Cox Communications, may significantly limit the precedential effect the decision may have in the ordinary rule nisi hearing. Still, Brannen may be cited to support the contention that specific evidence of ill will or furtive motive are not required for the court to consider setting aside the declaration on the grounds of bad faith. In Brannen, the court recognized that the county was not harboring any ill will against the condemnees, but, believing that the potential for abuse was “very real” in condemnations, looked beyond the stated reasons and found bad faith where the “real reason” differed.
In Department of Transportation v. Bunn, the (b)(3) bad faith was again successfully invoked to set aside a declaration of taking. In that case, the DOT sought to build a state bypass around a Georgia town on condemnees property. Over the course of three years of negotiations, the condemnees routinely inquired about access to the new road. Their inquiries were dismissed by the DOT, who wanted to first establish compensation before discussing access. For three years and through five negotiations, the condemnees were never informed that the road was intended from the beginning to be a limited access road. There was conflicting evidence on the record concerning whether the DOT agents had represented that they had the authority to negotiate access. The superior court granted the condemnees’ motion to set aside on the grounds of bad faith.
On appeal, the Georgia Court of Appeals cited the standard of review that it would not reverse the trial court’s finding of fact if there was “any evidence” to support its decision. The court found that, although the DOT’s contention that it need not inform the condemnees exactly what interests are being acquired until the petition is filed, the DOT’s decision must still come face-to-face with the restrictions of OCGA § 32-3-11 that direct attention toward the condemnor’s course of dealing. The court acknowledged that the superior court had the right to weigh some evidence over other evidence in reaching a decision and found that there was enough evidence in the record to support a “finding that the DOT acted in bad faith by using access to lure [the condemnees] to the negotiating table.”
Attorneys’ fees may also be recovered by succeeding on a motion to set aside. In Department of Transportation v. B & G Realty, Inc., the DOT engaged in a lengthy series of transactions with a condemnee that evidenced bad faith and improper use of its power. Among the abuses of its power, the DOT had unlawfully cut off access to the condemnee’s property, failed to restore conditions after damaging the property, filed condemnation actions without notice to condemnee’s counsel, and unlawfully took possession of the property despite a court order. The superior court found a pattern of bad faith and abuse of the condemnation powers under Section 32-3-11.
In determining the validity of attorneys’ fees, the Georgia Court of Appeals found that if attorneys’ fees are not sought as compensation for the condemnation, they may be brought under Section 32-3-11. The court determined that such an action for attorney’s fees would be governed by Section 13-6-11, which allows for the expenses of litigation to be paid in contracts cases “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Prior decisions had found that in condemnation actions, the condemnee could not recover under Section 13-6-11 unless “the condemnee can leap the versus barrier (i.e., be the plaintiff).” A motion to dismiss under Section 32-3-11 is such an action, according to the court. Ultimately, the court found that the superior court’s award of attorneys’ fees was proper.
F. Rulings Against Motions to Set Aside
In Habersham Downs Homeowner’s Association, Inc. v. Department of Transportation, the DOT condemned the common area owned by an HOA to widen a road. The proposed widened road would travel above and close to the amenities area of the HOA, which included a swimming pool. Prior to the taking only 15-30 feet separated trees bordering the amenities area from the road. The HOA filed a motion to set aside on the grounds that, by creating an unsafe condition, the DOT was improperly exercising its condemnation powers. The HOA also contended that the declaration should be set aside because the DOT, like in Hudson, had failed to provide an environmental impact statement. The trial court disagreed, found no evidence in support of the unsafe condition, and denied the motion.
On appeal, the Court of Appeals cited the standard that it would uphold the trial court’s decision if there was “any evidence” to support it. The court emphasized that, in alleging an unsafe condition, the association had “hired no road design consultants, safety experts or engineers, and called none as witnesses,” but did call upon the testimony of a broker who had been a DOT appraiser, who himself stated that he lacked the qualification to assess the design’s safety. With such evidence, the court quickly distinguished the case from Cox Communications, which it emphasized posed “unique” circumstances: “absent those distinctive and rare facts, the analogy to Cox fails. The facts here are not unique. Moreover, while the danger in Cox was a proven one, the concerns here consist of unproven speculation.” The court also distinguished the condemnee’s reliance on Hudson. What that case really hinged on, the court found, was not simply that the DOT had failed to deliver an environmental impact statement to the condemnees, but rather that the DOT had failed entirely to even perform such analysis. Here, the court found, such analysis had in fact been performed.
In Back v. City of Warner Robbins, the city condemned property for the construction of a roadway, and the condemnees filed a motion to set aside on the grounds that the city abused its discretion by failing to consider less burdensome alternatives and also that the taking was improper as it would primarily benefit private businesses. The condemnees alleged that the proposed road was intended to benefit the private businesses around a mall. At the hearing, evidence was adduced that the city council members and the mayor could not remember any alternatives that were considered. The superior court denied the condemnees’ motion.
In addressing the issue of less burdensome alternatives, the Court of Appeals supported the trial court’s finding that the City had considered alternatives, unlike Hudson, because there was some evidence on the record that the city engineers and planners designed the project after considering alternatives over the many of years of preliminary planning. The court also upheld the trial courts determination that the proposed project was not intended for an improper private purpose. The court limited the applicability of Brannen by stating that that case rested on “extreme facts” that made it clear that there had been an improper private purpose, and thus looking beyond the condemnor’s statements was warranted. Here, no such look into the “real” reason for the condemnation was necessary because the evidence on the record “showed that the purpose of the project was to relieve traffic congestion and reduce the number of accidents.”
In Skipper v. Department of Transportation, the DOT condemned two permanent easements on condemnees property. The easements were to be used “for the right to construct and maintain a slope” and “for the right to construct and maintain drainage.” The condemnee, believing that the DOT was taking more than was necessary because a temporary construction easement would be more appropriate, filed a motion to set aside based on an abuse and misuse of condemnation power. The superior court denied the motion. The Court of Appeals cited the presumption established by Section 32-3-11 that “the property or interest condemned is taken for and is necessary to the public use,” and relied on the language that “the exercise of the right of eminent domain rests largely in the discretion of the authority exercising such right, as to the necessity, and what and how much land shall be taken.” The court found that the testimony on the record regarding the increased construction problems that would result from making the easement temporary rather than permanent justified the superior court’s denial of the motion, and would not “substitute their judgment for that of the condemning authority—neither as the quantum of the interest to be condemned, nor the location or the quantum of land to be acquired.”
G. Arguments in Favor of Motion to Set Aside
From the case law cited above it is apparent that the outcomes of motions to set aside declarations of taking are highly fact driven. For example, in Cox Communications, the Supreme Court seemed lured by the “unique” facts of the proposed project in question that, if developed, would result in occasional loads of ice to fall directly on a busy highway. Clearly, such facts stir animus. The Court, in overturning the two lower courts, relied on no developed law concerning what constituted an improper exercise of the condemnation power. Instead, the Court seemed more concerned with the “grave and unusual risk” and the inability of future plaintiffs to hold the DOT accountable under sovereign immunity. In Hudson, the DOT failed to do any analysis regarding environmental impact or cost. In Brannen, the decision to set aside the declaration was driven by an exceptional set of circumstances, where the county, fearing inconvenience to a lumber company, contracted with the company to condemn property for a road around the company’s expansive facility.
The uniqueness of the factual circumstances that underlie the decisions to set aside declarations of taking make them highly susceptible to being distinguished. In fact, most of them have. The “unique” language of Cox Communications was seized upon in Habersham to distinguish it. The power of Brannen was subsequently minimized in Back as an “extreme” case that did alter the general rule that courts should be wary to look behind the condemnor’s stated purposes and requirements. Still, however, there is room to work around the negative authority. The fast-paced nature of this form of condemnation from declaration of taking to rule nisi hearing catches many attorneys off-guard and hamstrings their ability to respond fully. However, for those attorneys who anticipate and prepare for these proceedings in the months before the declaration of taking is filed, the rule nisi hearing becomes a great opportunity to lay down carefully prepared evidence that draws attention to the uniqueness of the facts surrounding each case. For example, in Habersham, the condemnee produced no evidence or testimony that reliably established that the road created an unusually dangerous hazard due to its perched height above the neighborhood swimming pool, a point necessary for it prove that the condemning authority had acted improperly. The failure to get relevant and reliable witnesses may well have been a result of the fast-paced nature of the proceedings.
Further, because these motions are so fact driven, it provides attorneys with the opportunity to get creative and develop novel arguments that may ultimately pique the interests of the condemning authority. For example, in one known situation, a condemnee, in arguing that the DOT has abused its condemnation discretion, relied on Woodside v. City of Atlanta, which holds that the condemning authority is required to acquire all property actually utilized for a public project. In that case, an affidavit from an expert in environmental engineering was submitted with the motion to set aside that stated that the proposed road project would entrap large quantities of water and cause significant runoff flooding on adjacent properties and may in fact cause, at times of heavy rain, as much as 30 acres to be flooded. After filing the motion the DOT came back to the bargaining table and settled.
Even if an attorney does not have the facts to succeed on a motion to set aside, the motion still holds value. Where an attorney has spent time crafting unique, non-obvious and well-developed arguments and employed sufficient foresight to accumulate reliable evidence, such motions are more likely to give the DOT or other condemning authority pause. Ultimately, doing so may increase bargaining leverage and enhance the probability that the condemnee achieve a favorable settlement.
However, when relying on the case law, attorneys should focus on drawing out certain legal arguments without focusing heavily on each case’s factual circumstances unless they happen to be directly analogous. Firstly, attorneys should cite Brannen for the proposition that courts may delve more inquisitively beneath the stated purpose given by the condemning authority to find evidence of bad faith or improper use of the condemnation power, especially in light of the Georgia Legistature’s recognition of “the very real potential for abuse that exists in the exercise of the power of eminent domain.” According to the court, a court does not “substitute [its] opinion” for the condemning authority’s opinion when it determines upon what information or motive the condemnor based its decision. Although the Back court subsequently labeled Brannen an “extreme case” and determined that the it would not look beyond the condemnor’s stated purpose, that decision can be distinguished. In Back, the court found that it was inappropriate to inquire further into the condemnee’s stated purpose because there was “no evidence” of the condemnor’s impropriety on the record. However, where there is some evidence put forth that the condemnor was misusing its powers, like in Brannen, there is a good argument that the court should inquire more deeply. Similiarly, although Cox Communications has been distinguished as a rare case, it still stands for the proposition from the state’s highest authority that where there is a grave and unusual risk to the safety of the public, there has been an improper use of the power of condemnation. By anticipating making this argument in advance, an attorney may be able to show how the condition creates an unusual safety risk and avoid the failings of the condemnee in Habersham that failed to put forth reliable evidence on the issue of safety.
Lastly, it should be emphasized that bad faith is not necessary. The condemnation case law is riddled with language that suggests that a showing of bad faith nearly amounting to fraud is necessary for before a condemnor’s actions will be invalidated. But under the narrow context of Section 32-3-11 hearings, no such showing need be made. Both in Cox Communications and Brannen, the court set aside the judgment despite the lack of direct evidence on the record of the condemning authority’s ill will.
Because the declaration of taking automatically vests title in the condemnor upon filing and deposit of funds, it is treated as a final judgment. Thus, in order to object on the whole to the taking, the condemnee must file a motion to set aside the declaration of taking, a motion that can be granted in the same fashion as the common motion to set aside encountered in civil practice. A condemnee only has 30 days from the date of service of the declaration to file the motion to set aside. From there, the court must conduct a rule nisi hearing not later than 60 days from the date of filing the declaration of taking. Because of the rapidity of these proceedings, attorneys should anticipate, if possible, their theories of opposition before the condemnor files the declaration of taking in order to avoid scrambling within the narrow time constraints.
Although the body of authority favorable to the condemnee is largely based on easily distinguishable unique factual circumstances, there are some maxims and inferences that can be favorably pulled from the authority. Further, as the cases suggest, the courts are willing to find improper use of the condemnation proceedings in a variety of circumstances, including situations where the condemnation creates a dangerous result, where the condemnation serves a private entity, when there has been improper bargaining, or insufficient analysis. The wide spectrum of these decisions opens the door for attorney creativity and newer theories that themselves can be developed into unique scenarios that support a motion to set aside. Ultimately, even if a particular set of facts makes it improbable that a court would set aside the declaration, a well-developed motion may strengthen an attorney’s bargaining power in seeking an out-of-court resolution to the condemnation.
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