dissenting.
The “bad faith” in this case arose from reckless or false representations made to induce the sale of the subject property by the City of Marietta to the condemnees that the City had no plans to widen the street and to take by eminent domain part of what it sought to sell to the condemnees. The “bad faith” did not arise after the condemnees owned the land and the City of Marietta sought to reacquire part of it to widen the street. None of this would have resulted had the City of Marietta kept what it needed for the street widening and sold the remainder to the condemnees or told them that there was a strong possibility of the street widening. Clearly, the City of Marietta was at fault in selling the property and then granting building permits and use permits for the upgrading of the property without fair warning that the fair market value of the property as a business could be adversely affected by its plans to widen the street by reacquiring part of the property. The condemnees’ remedy is either in receiving full and adequate compensation in the condemnation action or another action to recover damages that cannot be recovered in condemnation, i.e., OCGA § 13-6-11 expenses of litigation for bad faith. To bar eminent domain is an extraordinary remedy, rarely granted.
Bad faith under any action for eminent domain that will bar a taking has a different meaning than it does for other areas of law. “ ‘[I]n the context of abuse by a public officer of his official discretion, the term “bad faith” has been sharply distinguished from negligence *629or bad judgment and has been equated with conscious wrongdoing motivated by improper interest or by ill will(,)’ and that ‘(t)he term “bad faith” has been used side by side with the word “fraud” in describing those exercises of official discretion to condemn lands with which the courts will interfere.’ ” Concept Capital Corp. v. DeKalb County, 255 Ga. 452, 453 (3) (339 SE2d 583) (1986), quoting City of Atlanta v. First Nat. Bank of Atlanta, 246 Ga. 424, 425 (271 SE2d 821) (1980); see also West v. Dept. of Transp., 176 Ga. App. 806, 807 (1) (338 SE2d 45) (1985). In condemnation cases, bad faith has been restricted to the basis for setting aside a condemnation as exceeding lawful authority to exercise eminent domain and not as the basis for damages. Earth Mgmt. v. Heard County, 248 Ga. 442 (283 SE2d 455) (1981).
“[OCGA § 22-2-82] provides that an authorized condemning body shall be the exclusive judge of the public need of property to be acquired and the amount of property to be acquired for the public purpose. [Cit.] The question of whether there is a necessity for taking the fee is a matter of legislative discretion, which will not be interfered with or controlled unless the authority acts in bad faith or beyond the powers conferred upon it by law. [Cit.] Tn 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.’ [Cits.]” (Emphasis in original.) City of Atlanta v. Heirs of Champion, 244 Ga. 620, 621 (261 SE2d 343) (1979).
“Our holding in Earth Management did not erode the authority of condemning bodies nor change the law as pronounced in Heirs of Champion or First Nat. Bank. Rather, the import of that holding is that a condemning authority may not utilize the power of eminent domain to restrict a legitimate activity in which the state has an interest.” City of Atlanta v. Petkas, 253 Ga. 447, 448-449 (321 SE2d 725) (1984).
While I agree with the majority that the conduct of the agents of the City of Marietta in the representations made and the way the sale of the property to the condemnees was carried out by the agents for the City of Marietta in a reprehensible fashion, such conduct nonetheless fell outside the condemnation action so that it must be brought as a separate cause of action either in tort or contract for damages not recoverable in this condemnation action for conduct prior to and unrelated to the condemnation; such conduct was not “bad faith” within eminent domain that would void the condemnation. The effect of the majority is to broaden the scope of what constitutes bad faith in condemnation to encompass all prior conduct between the parties relating to the property to be taken, even when not a part of any condemnation and is to shield such property for the *630future from the exercise of eminent domain, no matter for what purpose the property is sought for public purposes.
Decided July 16, 1998 Reconsideration denied July 29, 1998 Moore, Ingram, Johnson & Steele, John H. Moore, J. Kevin Moore, for appellants. Haynie & Litchfield, Douglas R. Haynie, for appellee.“[If w]hat the condemnee is attempting to litigate is the liability, if any, of the condemnor based upon its alleged fraudulent conduct in connection with the negotiation and acquisition procedures which it utilizes[, then specifically, condemnee points to the fact that business damages are recognized under Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966) and enhancement of value compensation is authorized by the rule of Hard v. Housing Auth. of Atlanta, 219 Ga. 74 (132 SE2d 25) (1963).” Dept. of Transp. v. Franco’s Pizza &c., 164 Ga. App. 497, 499 (297 SE2d 72) (1982) (Carley, J., concurring specially). In that event, appropriate damages would be recoverable in full and fair compensation for the property taken and consequential damages to the remainder of the property under this condemnation action.
I am authorized to state that Presiding Judge McMurray joins in this dissent.