Burke County v. Askin

755 S.E.2d 602, 327 Ga. App. 116, 2014 Fulton County D. Rep. 1102, 2014 WL 1259123, 2014 Ga. App. LEXIS 267
CourtCourt of Appeals of Georgia
DecidedMarch 28, 2014
DocketA13A1909
StatusPublished
Cited by2 cases

This text of 755 S.E.2d 602 (Burke County v. Askin) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke County v. Askin, 755 S.E.2d 602, 327 Ga. App. 116, 2014 Fulton County D. Rep. 1102, 2014 WL 1259123, 2014 Ga. App. LEXIS 267 (Ga. Ct. App. 2014).

Opinion

Phipps, Chief Judge.

This appeal involves a resolution by the Burke County Board of Commissioners (the “Board”) to abandon its interest in five roads located in the Pineview Subdivision, pursuant to OCGA § 32-7-2 (b) (1). Otis F. Askin, Sr., and a corporation affiliated with him, Tiger, Inc. (collectively, “Askin”) owned several lots in the subdivision and one tract outside of the subdivision; the outside tract bordered one of the five roads. Askin filed in superior court a complaint against the Board and Burke County (collectively, the “County”) seeking to set aside the resolution of abandonment. The superior court reversed the resolution as to three of the roads. We granted the County’s application for discretionary review of the superior court’s decision reversing the Board’s resolution to abandon the three roads. For the reasons that follow, we reverse the superior court’s judgment to the extent that it reversed the Board’s resolution, and affirm the judgment to the extent that it affirmed the resolution.

These parties previously appeared before the Supreme Court of Georgia in the case of Burke County v. Askin.1 Certain of the facts involved in the instant case are stated therein as follows.

Pineview Subdivision was established in Burke County in 1954. In 1962, the roads shown on a plat of the subdivision were dedicated by deed to, and accepted by, Burke County, and the Burke County Board of Commissioners passed a resolution to “cut or build roads” in the subdivision; the streets appearing on the subdivision plat are Frances Avenue, Maple Drive, Poplar Drive, Elm Drive, and Sycamore Drive. The deed conveying these streets to Burke County stated that it was made “in consideration of the benefits to the property of the undersigned by the construction and mainteance [sic] of said roads.” At some point, Maple Drive, Elm Drive, and a portion of Frances Avenue were constructed as [117]*117unpaved roads; it does not appear that the other roads were constructed, nor can it be established what person or entity constructed the roads that were built. In 2004, Askin purchased several lots in Pineview Subdivision, and Tiger, Inc., a corporation affiliated with Askin (collectively “Askin”), purchased a tract of land outside of Pineview, but bordering on Frances Avenue. After attempts to have the County maintain the subdivision roads, Askin sought a writ of mandamus to compel the County to, inter alia, repair and maintain the roads. After a hearing, the superior court granted certain mandamus relief, concluding that the County was obligated to maintain Maple and Elm Drives, as well as complete the construction of Frances Avenue and maintain that entire street. But, the court also found that the County had no obligation to maintain Poplar and Sycamore Drives.2

In Askin I, the County appealed the superior court’s grant of mandamus as it pertained to Maple Drive, Elm Drive, and Frances Avenue, and Askin cross-appealed the court’s failure to order the County to maintain Poplar Drive and Sycamore Drive.3 The Supreme Court vacated the superior court’s order granting a writ of mandamus because it had relied on an incorrect legal standard (namely, the superior court had not found that the County’s decision was arbitrary, capricious, and unreasonable or that it was a gross abuse of discretion).4 Additionally, the Supreme Court concluded that the County had discretion as to whether to open subdivision roads dedicated to it.5 The Court also noted that the County’s discretionary authority to abandon such roads was granted by statute, and the superior court’s role was limited to review of any such exercise of that discretion.6

In November 2011, before the Supreme Court had decided Askin I, after issuing written notice and holding a public hearing, the Board adopted a new resolution, the one at issue here, which abandoned all five roads. The Board made numerous findings of fact and concluded that all the roads

have ceased to be used by the public to the extent that no substantial public purpose is served by them; and . . . [i]t is otherwise in the best interest of the County to abandon any [118]*118interest held by the County in [the five roads] in order to relieve the public from the charge of maintaining roads that are no longer useful or convenient to the public.

Askin appealed the resolution to superior court, asserting that the abandonment was contrary to law, constituted an abuse of discretion, was arbitrary and capricious, deprived them of access to their property, and prejudiced their substantial rights. The superior court affirmed the Board’s decision to abandon its interest in Poplar and Sycamore streets, and reversed the Board’s decision with respect to Frances, Maple, and Elm streets.

1. The County contends that the superior court erred by substituting its judgment for that of the Board as to the weight of the evidence on questions of fact. We agree.

In adopting the resolution to abandon the five roads, the Board acted as an administrative body.7

When a superior court reviews the decision of an administrative agency, [t]he court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The superior court’s review of evidentiary issues is limited to determining whether factual findings are supported by any evidence. We review the superior court’s decision to determine whether the superior court has, in its own final ruling, committed an error of law. On appeal to this Court, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.8

A county has statutory authority to abandon public roads under its jurisdiction “[wjhenever deemed in the public interest.”9

The abandonment process is governed by OCGA § 32-7-2 (b) (1), which says: When it is determined that a section of the county road system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it (or that its removal from the county road system is otherwise in the best public interest), the county, by [119]*119certification recorded in its minutes, accompanied by a plat or sketch, and, after notice to property owners located thereon, after notice of such determination is published in the newspaper in which the sheriff’s advertisements for the county are published once a week for a period of two weeks, and after a public hearing on such issue, may declare that section of the county road system abandoned. Thereafter, that section of road shall no longer be part of the county road system and the rights of the public in and to the section of road as a public road shall cease.10

As pointed out in Askin I, the fact that a county has accepted an express dedication of roads in a subdivision does not mean that the county is without discretion to leave those dedicated roads unopened.* 11

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Cite This Page — Counsel Stack

Bluebook (online)
755 S.E.2d 602, 327 Ga. App. 116, 2014 Fulton County D. Rep. 1102, 2014 WL 1259123, 2014 Ga. App. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-county-v-askin-gactapp-2014.