DECIDED OCTOBER 7, 1996 — RECONSIDERATION DENIED NOVEMBER 8, 1996. Certiorari to the Court of Appeals of Georgia — 219 Ga. App. 750. Henderson Henderson, DeVaul L. Henderson, Michael Peter Ludwiczak, for appellant.
(Citation and punctuation omitted; emphasis in original.) Stafford v. Bryan County Bd. of Ed., 219 Ga. App. 750, 752 (3) ( 466 SE2d 637) (1995), rev'd on other grounds, Stafford v. Bryan County Bd. of Ed., 267 Ga. 274 ( 476 SE2d 727) (1996). "[The] admissibility of evidence is a matter which rests largely within the sound discretion of the trial court."
Other courts have concluded that evidence of contamination is relevant to market value in eminent domain proceedings. Finklestein v Dep't of Transportation, 656 So.2d 921, 922 (Fla, 1995); Stafford v Bryan Co Bd of Education, 219 Ga. App. 750, 752; 466 S.E.2d 637 (1995), rev'd on other grounds 267 Ga. 274; 476 S.E.2d 727 (1996); Tennessee v Brandon, 898 S.W.2d 224, 227 (Tenn, 1994); Olathe v Stott, 253 Kan. 687, 689-690; 861 P.2d 1287 (1993); Redevelopment Agency of Pamona v Thrifty Oil Co, 4 Cal.App. 4th 469, 474; 5 Cal.Rptr.2d 687 (1992); Dep't of Health v Hecla Mining Co, 781 P.2d 122, 126 (Colo, 1989). Significantly, none of these jurisdictions' condemnation statutes contain provisions that may be construed to preclude consideration of environmental remediation costs in determining just compensation.
Will-Ed Enterprises. v. MARTA, 139 Ga. App. 829 ( 229 S.E.2d 763) (1976).Stafford v. Bryan County Bd. of Educ., 219 Ga. App. 750, 752 (3) ( 466 S.E.2d 637) (1995), reversed on other grounds, 267 Ga. 274 ( 476 S.E.2d 727) (1996).Hulsey, supra; Acree Oil Co. v. Dept. of Transp., 216 Ga. App. 586, 588 ( 455 S.E.2d 590) (1994), reversed on other grounds, Dept. of Transp. v. Acree Oil Co., 266 Ga. 336 ( 467 S.E.2d 319) (1996).
Bowman v. State, 205 Ga. App. 347, 348 ( 422 S.E.2d 239) (1992); see State v. Davis, 217 Ga. App. 225, 227 ( 457 S.E.2d 194) (1995) ("deferential" standard of review). We decline to address Sawyer's contention that the search was rendered illegal because the authorities may have seized items not listed in the warrant because it is raised for the first time on appeal. Stafford v. Bryan Cty. Bd. of Ed., 219 Ga. App. 750, 752 (4) ( 466 S.E.2d 637) (1995). 3. Sawyer maintains that the trial court erred by failing to charge on the lesser included offense of theft by taking.
BLACKBURN, Judge. In Stafford v. Bryan County Bd. of Ed., 219 Ga. App. 750 ( 466 S.E.2d 637) (1996), we affirmed the trial court's entry of judgment on the amended award of a special master, as well as the jury verdict which succeeded that award. In Stafford v. Bryan County Bd. of Ed., 267 Ga. 274 ( 476 S.E.2d 727) (1996), the Supreme Court reversed our decision.
Several other courts have similarly concluded. See Redevelopment Agency of Pomona v. Thrifty Oil Co., 4 Cal.App.4th 469, 5 Cal.Rptr.2d 687, 689 n. 9 (1992); Fla. Dep't of Transp. v. Finkelstein, 629 So.2d 932, 934 (Fla.Dist.Ct.App.1993); Stafford v. Bryan Cnty. Bd. of Educ., 219 Ga.App. 750, 466 S.E.2d 637, 640–41 (1995); City of Olathe v. Stott, 253 Kan. 687, 861 P.2d 1287, 1290 (1993); La. Dep't of Transp. & Dev. v. La.-Ark. Ry. Co., 704 So.2d 822, 823 (La.Ct.App.1997); Silver Creek Drain Dist. v. Extrusions Div., Inc., 468 Mich. 367, 663 N.W.2d 436, 437 (2003); Or. Dep't of Transp. v. Hughes, 162 Or.App. 414, 986 P.2d 700, 703 (1999); Tennessee v. Brandon, 898 S.W.2d 224, 227 (Tenn.Ct.App.1994). ¶ 52 Furthermore, the concerns raised by Ryan and the Minnesota Supreme Court are based on an assumption that a subsequent environmental action is a certainty.
We are mindful that other jurisdictions have allowed evidence of contamination and the cost of cleanup to be admitted in an eminent domain proceeding. See Redevelopment Agency v. Thrifty Oil Co., 4 Cal.App.4th 469, 5 Cal.Rptr.2d 687, 689 (1992) (remediation issue was properly considered where city took possession of gas station property and spent $182,000 to treat gasoline contamination); Finkelstein v. Department of Transp., 656 So.2d 921, 925 (Fla. 1995) (where owner is entitled to reimbursement of remediation costs, the condemned property should be valued as if the contamination cleanup had been completed, but testimony about contamination "stigma" and its effect on value is allowed); Stafford v. Bryan County Bd. of Educ., 219 Ga. App. 750, 466 S.E.2d 637, 640 (1995) (the general environmental condition of the condemned property was a relevant factor in fairly assessing the market value); City of Olathe v. Stott, 253 Kan. 687, 861 P.2d 1287, 1289 (1993) (Kansas Storage Tank Act does not preempt general statutes regarding eminent domain; thus, evidence of contamination is admissible in an eminent domain proceeding involving a determination of the fair market value of property taken); State v. Brandon, 898 S.W.2d 224, 227 (Tenn.App. 1994) (evidence of contamination and cost of reasonable steps to remedy the contamination is admissible and relevant to issue of fair market value). We also recognize that, in the determination of actual value of property for tax assessment purposes under Iowa Code section 441.21, evidence of contamination and estimated cost of cleanup is admissible as a factor that may affect market value.