Administrative Rules and Regulations.

- Rules and regulations of the Department of Transportation, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Chapter 672-1 et seq.

Law reviews.

- For article, "Quasi-Municipal Tort Liability in Georgia," see 6 Mercer L. Rev. 287 (1955).

JUDICIAL DECISIONS

Constitutionality of condemnation procedures.

- Procedures for taking property established by the Georgia Code of Public Transportation are adequate for the protection of the rights of condemnees, and the procedures do not offend the due process clause or the equal protection clause of the federal Constitution or the Georgia Constitution. Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976).

Cited in Sadtler v. City of Atlanta, 236 Ga. 396, 223 S.E.2d 819 (1976).

RESEARCH REFERENCES

ALR.

- Highway contractor's liability to highway user for highway surface defects, 62 A.L.R.4th 1067.

CHAPTER 1 GENERAL PROVISIONS

JUDICIAL DECISIONS

Cited in Chandler v. Robinson, 269 Ga. 881, 506 S.E.2d 121 (1998); Evans Timber Co. v. Central of Ga. R.R., 239 Ga. App. 262, 519 S.E.2d 706 (1999).

32-1-1. Short title.

This title shall be known as the "Georgia Code of Public Transportation."

(Code 1933, § 95A-101, enacted by Ga. L. 1973, p. 947, § 1.)

32-1-2. Purpose and legislative intent.

The purpose of this title is to provide a code of statutes for the public roads and other transportation facilities of the state, the counties, and municipalities of Georgia. The legislative intent is to provide an effective legal basis for the organization, administration, and operation of an efficient, modern system of public roads and other modes of transportation.

(Code 1933, § 95A-102, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Purpose of the Georgia Code of Public Transportation is organization, administration, and operation of an efficient, modern system of public roads as between the state, counties, and municipalities; the statute's purpose is not to ascertain and fix the status of the public right of use of every road in Georgia. Jordan v. Way, 235 Ga. 496, 220 S.E.2d 258 (1975).

Sign permits.

- Although ground had not been broken on a proposed interchange as of the date an applicant submitted applications for permits for outdoor advertising signs, the Georgia Department of Transportation's denial of the applications comported with O.C.G.A. §§ 32-1-2,32-6-74(a), and32-6-75(a)(18) because the interchange project had progressed to a point such that it constituted an interchange for purposes of § 32-6-75(a)(18) and the proposed sign locations were within the 500-foot blocked out zone established by § 32-6-75(a)(18). Eagle West, LLC v. Ga. DOT, 312 Ga. App. 882, 720 S.E.2d 317 (2011).

State DOT not liable for failing to erect road closure signs on county road.

- Because an accident occurred on a county-owned road and did not occur on a part of the state highway system upon which the DOT owed a duty to motorists, and the couple's expert's affidavit could not establish a legal duty to erect signs or to take other steps to inform drivers of the closure of the county-owned road, summary judgment for the DOT was proper. Diamond v. DOT, 326 Ga. App. 189, 756 S.E.2d 277 (2014).

County's duty to maintain dedicated roads in subdivision.

- Trial court erred by granting mandamus relief under O.C.G.A. § 9-6-20 with regard to a property owner seeking to compel a county to maintain roads in a subdivision because while the county had accepted dedication of the streets, the county still was vested with the discretion to decide whether to open all of the roads or close any of the roads, and the trial court was required to determine whether the county's decisions were arbitrary, capricious, and unreasonable or a gross abuse of discretion as nowhere in the judgment was that standard articulated. Burke County v. Askin, 291 Ga. 697, 732 S.E.2d 416 (2012).

Cited in Fulton County v. Davidson, 253 Ga. 734, 325 S.E.2d 135 (1985); CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998); Evans Timber Co. v. Central of Ga. R.R., 239 Ga. App. 262, 519 S.E.2d 706 (1999).

RESEARCH REFERENCES

ALR.

- Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

32-1-3. Definitions.

As used in this title, the term:

  1. "Abandon" means to close permanently to public travel or to relinquish jurisdiction of a preexisting public road by official action as required by Chapter 7 of this title, thereby foreclosing the duty of future maintenance on such preexisting public road.
  2. "Board" means the State Transportation Board.
  3. "Borrow pit" means land from which dirt, gravel, rock, or related material will be excavated and used for a public road purpose. Such land need not be immediately adjacent or contiguous to the road or project under construction, repair, or reconstruction.
  4. "Bridge" means a structure, including the approaches thereto, erected in order:
    1. To afford unrestricted vehicular passage over any obstruction in any public road, including, but not limited to, rivers, streams, ponds, lakes, bays, ravines, gullies, railroads, public highways, and canals; or
    2. To afford unrestricted vehicular passage under or over existing railroads and public roads.
  5. "Commissioner" means the commissioner of transportation.
  6. "Construction" means the planning, location, surveying, designing, supervising, inspecting, and actual building of a new road; or the paving, striping, restriping, modifying for safety purposes, grading, widening, relocation, reconstruction, or other major improvement of a substantial portion of an existing public road together with all activities incident to any of the foregoing.
  7. "County" means either one of the several counties, any division, department, agency, authority, instrumentality, or branch thereof, or the county governing authority, that is, the judge of the probate court, board of county commissioners, county commissioner, or other county officers in charge of the roads, bridges, and revenues of the county.
  8. "Dedication" means the donation by the owner, either expressly or impliedly, and acceptance by the public of property for public road purposes, in accordance with statutory or common-law provisions.
  9. "Department" means the Department of Transportation.
  10. "Federal-aid systems" means those public roads in Georgia comprised of The Dwight D. Eisenhower System of Interstate and Defense Highways and the National Highway System, as those terms are defined in Section 103 of Title 23 of the United States Code.
  11. "Grade crossing" means a crossing at grade of a public road intersecting a track or tracks of a railroad.
  12. "Grade separation structure" means an underpass or overpass as defined in this Code section.

    (12.1) "Interstate highways" means any highway which constitutes a part of The Dwight D. Eisenhower System of Interstate and Defense Highways as used in Section 103 of Title 23 of the United States Code.

  13. "Let" means to award a contract to one of several persons who have submitted competitive bids therefor in response to advertisement.
  14. "Limited-access road" means a public highway, road, or street for through traffic, over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, view, or air by reason of the fact that their property abuts upon such limited-access highway, road, or street or for any other reason.
  15. "Maintenance" means the preservation of a public road, including repairs and resurfacing not amounting to construction as defined in this Code section.
  16. "Municipality" means an incorporated city, the governing body of which holds at least six regular meetings each year and which for a period of one year has levied and collected an ad valorem tax on the real property in such city or has for a one-year period performed at least two of the following municipal activities and services:
    1. Furnished water service;
    2. Furnished sewage service;
    3. Furnished garbage collection;
    4. Furnished police protection;
    5. Furnished fire protection;
    6. Assessed and collected business licenses;
    7. Furnished street lighting facilities.

      The term may also refer to any division, department, agency, authority, instrumentality, or branch of a municipality. Where the context requires or otherwise indicates, the term "municipality" may also mean the municipal governing authority, that is, the mayor and council, board of aldermen, board of commissioners, or other chief legislative body of a municipality.

  17. "Negotiated contract" means a contract made without formal advertising for competitive bids.
  18. "Other transportation purposes" or "other public transportation purposes" means any transportation facility designed to transport people or goods, including but not limited to railroads, port and harbor facilities, air transport and airport facilities, mass transportation facilities, as defined in paragraph (2) of subsection (a) of Code Section 32-9-1, transportation projects, as defined by subsection (h) of Section 2 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, and transportation enhancement activities, as defined in Section 101 of Title 23 of the United States Code, as amended by Public Law 102-240 as it existed on January 1, 1993.However, in no event and for no purpose shall the term "other transportation purposes" or "other public transportation purposes" be deemed to include coal slurry pipelines.
  19. "Overpass" means a bridge, including the approaches thereto and all appurtenances thereof, for carrying public road traffic over a railroad or another public road or for providing pedestrian walkways over a public road.
  20. "Person" means any individual, partnership, corporation, association, or private organization of any character.
  21. "Private road" means a privately owned road or way, including any bridge thereon, which is only open for the benefit of one or more individuals and not for the general public. This term also means a road which lies on privately owned land.
  22. "Proposal guaranty" means acceptable surety furnished by a bidder as a guaranty that he will enter into a contract and will furnish contract performance and payment bonds if a contract is awarded to him.
  23. "Protective devices" means gates, flashing light signals, and similar devices or combinations thereof, together with necessary appurtenances, to be installed or in operation at any grade crossing and which comply with the safety standards determined by the department as being adequate at that time for the protection of traffic.
  24. "Public road" means a highway, road, street, avenue, toll road, tollway, drive, detour, or other way that either is open to the public or has been acquired as right of way, and is intended to be used for enjoyment by the public and for the passage of vehicles in any county or municipality of Georgia, including but not limited to the following public rights, structures, sidewalks, facilities, and appurtenances incidental to the construction, maintenance, and enjoyment of such rights of way:
    1. Surface, shoulders, and sides;
    2. Bridges;
    3. Causeways;
    4. Viaducts;
    5. Ferries;
    6. Overpasses;
    7. Underpasses;
    8. Railroad grade crossings;
    9. Tunnels;
    10. Signs, signals, markings, or other traffic control devices;
    11. Buildings for public equipment and personnel used for or engaged in administration, construction, or maintenance of such ways or research pertaining thereto;
    12. Wayside parks;
    13. Parking facilities;
    14. Drainage ditches;
    15. Canals and culverts;
    16. Rest areas;
    17. Truck-weighing stations or check points; and
    18. Scenic easements and easements of light, air, view, and access.
  25. "Right of way" means, generally, property or any interest therein, whether or not in the form of a strip, which is acquired for or devoted to a public road.
  26. "Scenic easement" means a servitude devised to permit land to remain in private ownership for its normal agricultural, residential, or other use consistent with public road purposes but at the same time placing a control over the future uses of the area to maintain its scenic, landscape, sightly, or safety values for the public road which the land adjoins.
  27. "State agency" means any division, department, instrumentality, branch, or other body of the state to which state governmental functions have been delegated.

    (27.1) "State roads" or "state routes" means those roads which are defined under paragraph (1) of Code Section 32-4-1.

  28. "Subcontract" means a contract by which one agrees with a party to another contract to perform all or a part of such other contract.
  29. "Underpass" means a bridge, including the approaches thereto and all appurtenances thereof, which provides access for a public road underneath a railroad or another public road or for a pedestrian walkway underneath a public road.
  30. "Utility" means any publicly, privately, or cooperatively owned line, facility, or system for producing, transmitting, or distributing communications, power, electricity, light, heat, gas, oil products, water, steam, clay, waste, storm water not connected with highway drainage, and other similar services and commodities, including publicly owned fire and police signals and street lighting systems, which directly or indirectly serve the public. This term also means a person, municipal corporation, county, state agency, or public authority which owns or manages a utility as defined in this paragraph.
  31. "Vehicle" means a device in, upon, or by which any person or property is or may be transported or drawn upon a public road.

(Code 1933, § 95A-104, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, §§ 1, 2; Ga. L. 1976, p. 775, § 1; Ga. L. 1977, p. 267, § 1; Ga. L. 1979, p. 973, § 1; Ga. L. 1980, p. 590, § 4; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 23; Ga. L. 1993, p. 914, § 1; Ga. L. 2000, p. 136, § 32; Ga. L. 2005, p. 601, § 1/SB 160; Ga. L. 2011, p. 583, § 1/HB 137.)

Law reviews.

- For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 684; former Civil Code 1895, § 603; former Civil Code 1910, §§ 748, 761, 768; and former Code 1933, § 95-1001, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Delegation to contractor permitted.

- Nothing in O.C.G.A. § 32-1-3(24)(J) or O.C.G.A. § 32-2-2(a)(3) prevents the Georgia Department of Transportation from delegating the responsibility for designing and implementing a traffic control plan to a private contractor. Comanche Constr., Inc. v. DOT, 272 Ga. App. 766, 613 S.E.2d 158 (2005).

Sidewalk is included in term "public roads." Broadnax v. City of Atlanta, 149 Ga. App. 611, 255 S.E.2d 86 (1979).

Unopened, undeveloped, proposed roads in a subdivision do not become "public roads" solely by virtue of the process of implied dedication and acceptance. Chatham County v. Allen, 261 Ga. 177, 402 S.E.2d 718 (1991).

County, which had accepted dedication of a subdivision road in 1962 but had not completed the road or maintained it for 50 years, due to the county's mistaken belief that the road was private, was ordered to complete and maintain the road; the county's failure to complete the road was arbitrary and capricious, given the county's acceptance of subdivision plats requiring the road. As to unopened roads in the subdivision, the roads were not public under O.C.G.A. § 9-6-21(b), and the county had no obligation to maintain those unopened roads. Burke County v. Askin, 294 Ga. 634, 755 S.E.2d 747 (2014).

Word "bridge," in this section giving a right of action against a county for defective construction, means a bridge used as an instrumentality for travel along a highway and for crossing streams or ravines. Hubbard v. County of Fulton, 144 Ga. 363, 87 S.E. 281 (1915); Ellis v. Floyd County, 24 Ga. App. 717, 102 S.E. 181 (1920); Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Civil Code 1910, § 748 and former Code 1933, § 95-1001).

Public bridge.

- Bridge which constitutes a portion of the public road is necessarily a public bridge. Early County v. Fain, 2 Ga. App. 288, 58 S.E. 528 (1907) (decided under former Civil Code 1895, § 603).

Public bridge includes toll bridge owned by individual.

- If a person owning land on both sides of a stream built a bridge across the stream for the use of the public, and charged tolls, such a bridge is a public bridge. Dougherty County v. Tift, 75 Ga. 815 (1885) (decided under former Code 1882, § 684).

Public bridge includes all abutments and approaches.

- Term "bridges" includes all the appurtenances necessary to the bridge's proper use and embraces the bridge's abutments and approaches, and that which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself. Howington v. Madison County, 126 Ga. 699, 55 S.E. 941 (1906); Havird v. Richmond County, 176 Ga. 722, 168 S.E. 897, answer conformed to, 47 Ga. App. 580, 171 S.E. 220 (1933); Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934); Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Civil Code 1895, § 603; former Civil Code 1910, § 748; and former Code 1933, § 95-1001).

Public bridge includes fill or embankment in a road which constitutes the approach to a bridge and which is necessary to make access to the bridge a part of the bridge. Havird v. Richmond County, 47 Ga. App. 580, 171 S.E. 220 (1933) (decided under former Code 1910, § 748).

Public bridge includes contiguous embankments necessary for access, which county must repair.

- Contiguous embankment necessary to make access to a bridge, so as to pass over the bridge, is a part of the bridge, and title to the bridge covers such an embankment, but if the embankment is not a necessary part of the bridge, but a part of the streets of the municipality, the town, and not the county, would be bound to keep the bridge in repair. Havird v. Richmond County, 176 Ga. 722, 168 S.E. 897, answer conformed to, 47 Ga. App. 580, 171 S.E. 220 (1933) (decided under former Civil Code 1910, § 748).

Public bridge does not include culverts.

- Culvert and a bridge are not the same even though the culvert and bridge may serve the same purpose. Hubbard v. County of Fulton, 144 Ga. 363, 87 S.E. 281 (1915); Ellis v. Floyd County, 24 Ga. App. 717, 102 S.E. 181 (1920); Floyd County v. Stewart, 97 Ga. App. 67, 101 S.E.2d 879 (1958) (decided under former Civil Code 1910, § 748 and former Code 1933, § 95-1001).

Alley and adjoining culvert were "public roads."

- Alley and an adjoining drainage culvert and ditch in which a child drowned fell within the definition of "public road" under O.C.G.A. § 32-1-3(24)(N), (O). Walden v. City of Hawkinsville, F.3d (M.D. Ga. Sept. 21, 2005).

Public bridges do not include piping and water boxes.

- Piping and water boxes and culverts for drainage purposes across the public roads are not "bridges" within the meaning of the law. Montgomery County v. Seaboard Air Line Ry., 41 Ga. App. 130, 152 S.E. 261 (1930) (decided under former Civil Code 1910, § 748).

Public bridges do not include road leading to bridge.

- Word "bridge" does not include the public road leading thereto, or a drain or opening thereunder. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

Definition of defects in bridge.

- Defect in a bridge, which serves as the basis for liability by a county for injuries received by reason thereof, includes any condition of the bridge which renders the bridge unsafe for travelers passing over the bridge. Havird v. Richmond County, 47 Ga. App. 580, 171 S.E. 220 (1933) (decided under former Civil Code 1910, § 748).

O.C.G.A. § 32-1-3 does not create liability for counties for defects in bridges. Coweta County v. Adams, 221 Ga. App. 868, 473 S.E.2d 558 (1996).

City dock qualified as "other way".

- Although a city could be liable under O.C.G.A. § 32-4-93(a) for failure to maintain a dock that collapsed, injuring the plaintiffs, because the dock fell within the definition of "public road" in O.C.G.A. § 32-1-3, there was no evidence that the city had notice of any defect in the dock, and the plaintiffs' expert affidavit did not identify any defect. Therefore, the city was properly granted summary judgment on immunity grounds. Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).

Road striping falls under definition of construction.

- Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted in the county's action to recover money had and received by the contractor after the contractor asserted that the contract, which was for road striping and which was not opened for public bidding, was for a specialized service under O.C.G.A. § 32-4-63(5), an exception to the public bidding requirements under O.C.G.A. § 32-4-64; however, O.C.G.A. § 32-1-3(6) expressly defined road striping as a form of road construction and not as a special service. Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003).

Construction involving moderate road improvement.

- Plans or designs for striping or widening a road need only be in conformity with then existing standards for striping and widening. Plans or designs do not need to address design issues outside the scope of the moderate improvements. Murray v. DOT, 240 Ga. App. 285, 523 S.E.2d 367 (1999).

County, not Department of Transportation, liable for bridges.

- County is liable for damages resulting from a defect in a bridge, although it may appear that jurisdiction over the highway on which the bridge was located had been assumed by the Highway Department (now Department of Transportation) under the terms of the law, and that the department and not the county was guilty of negligence in the maintenance and construction of the bridge or its approaches, which caused the injury. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1001).

County's duty to maintain dedicated roads in subdivision.

- Trial court erred by granting mandamus relief under O.C.G.A. § 9-6-20 with regard to a property owner seeking to compel a county to maintain roads in a subdivision because while the county had accepted dedication of the streets, the county still was vested with the discretion to decide whether to open all of the roads or close any of the roads, and the trial court was required to determine whether the county's decisions were arbitrary, capricious, and unreasonable or a gross abuse of discretion as nowhere in the judgment was that standard articulated. Burke County v. Askin, 291 Ga. 697, 732 S.E.2d 416 (2012).

Jury question as to effect of limited-access road on existing business.

- Court erred in limiting a property owner's right to present evidence to show that the owner's access had been substantially restricted when the road on which the business fronted was changed by construction to a limited-access road. Whether a property owner has "reasonable access" to the property under the circumstances and whether the existing access was "substantially interfered with" are questions of fact to be decided by the jury. Circle K Gen., Inc. v. Department of Transp., 196 Ga. App. 616, 396 S.E.2d 522 (1990).

Incumbrance known at time of purchase.

- Public road running through a tract of land, which was known to the purchaser at the time of purchase, is not such an incumbrance on the land as would constitute a breach of a covenant of warranty against incumbrances. Hood v. Spruill, 242 Ga. App. 44, 528 S.E.2d 565 (2000).

Railroad grade crossings.

- Georgia Code of Public Transportation precluded a common-law cause of action against a railroad for the failure to install adequate protective devices at a grade crossing on a public road since the railroad had not been requested to do so by the appropriate governmental entity. Southern Ry. v. Georgia Kraft Co., 188 Ga. App. 623, 373 S.E.2d 774 (1988).

Railroad was entitled to summary judgment in a survivor's action claiming damages from the survivor's decedent's fatal collision with a train because the survivor failed to show that the allegedly vision-obstructing vegetation was planted or maintained in violation of any statute, code, or local ordinance and although railroads could be liable under common law negligence principles, the failure to maintain a railroad right of way was addressed by the Georgia Code of Public Transportation, specifically by O.C.G.A. § 32-6-51, and the scope of those provisions encompassed railroads. Town of Register v. Fortner, 262 Ga. App. 507, 586 S.E.2d 54 (2003).

Cited in Wiles v. State, 161 Ga. App. 473, 288 S.E.2d 271 (1982); Duncan v. City of Macon, 221 Ga. App. 710, 472 S.E.2d 455 (1996); Gilbert v. City of Jackson, 287 Ga. App. 326, 651 S.E.2d 461 (2007); Toole v. Georgia-Pacific, LLC, Ga. App. , S.E.2d (Jan. 19, 2011).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 102-103, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Street or road presumed to include bridges.

- Bridges may be a part of city streets, county roads, or the State Aid Highways System; in each case the street or road is defined as including bridges, unless a different meaning is apparent from the context. 1972 Op. Att'y Gen. No. 72-64 (decided under former Code 1933, § 102-103).

Merely deeding privately owned road or driveway to county will not necessarily turn it into a public road. 1980 Op. Att'y Gen. No. U80-37.

Department of Transportation's use of motor fuel tax funds.

- Department of Transportation may not utilize motor fuel tax funds to construct walkways on bridges for fishing. 1975 Op. Att'y Gen. No. 75-96 (decided under former Code 1933, § 102-103).

No expenditure of money on historic preservation if not for transportation.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation, and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) when such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3.

RESEARCH REFERENCES

ALR.

- Establishment by user of highway running longitudinally on railroad right of way, 46 A.L.R. 893.

Extent of rights in right of way acquired for power or light line, 46 A.L.R. 1463.

Power of public utility commission to require railroad company to grant or renew leases or other privileges on its right of way, 47 A.L.R. 109.

Construction or maintenance of sewers, water pipes, or the like by public authorities in roadway, street, or alley as indicating dedication or acceptance thereof, 52 A.L.R.2d 263.

Conveyance of right of way, in connection with conveyance of another tract, as passing fee or easement, 89 A.L.R.3d 767.

32-1-4. Institution and prosecution of criminal proceedings relating to criminal acts against department's property.

  1. As used in this Code section, the term "property of the department" means any property, whether real or personal, which is owned by or in which there is an interest held by the department.
  2. Whenever it may appear to the commissioner that any person or corporation has committed, is committing, has attempted to commit, or is attempting to commit any act which is prohibited by the criminal laws of this state against, or involving in any manner whatsoever, property of the department, he may, in his discretion, transmit such evidence as may be available concerning such act to the Attorney General or to the appropriate prosecuting attorney who may, in his discretion, institute and prosecute the necessary criminal proceedings.

(Ga. L. 1980, p. 590, § 1.)

32-1-5. Powers and duties of Attorney General under Code Section 32-1-4.

In carrying out the duties imposed by Code Section 32-1-4, the Attorney General is vested, in addition to and cumulative of the rights, powers, and duties otherwise appertaining to his office, with all of the rights, powers, duties, privileges, obligations, and immunities held by or inuring to any prosecuting attorney.

(Ga. L. 1980, p. 590, § 2.)

Cross references.

- District attorneys, T. 15, C. 18.

Attorney General, T. 45, C. 15.

32-1-6. Effect of Code Sections 32-1-4 and 32-1-5 on other laws.

Nothing in Code Sections 32-1-4 and 32-1-5 shall limit any statutory or common-law right of the state to punish any person or corporation for the violation of any provision of any law.

(Ga. L. 1980, p. 590, § 3.)

32-1-7. Disbursement of fines and forfeitures.

Reserved. Repealed by Ga. L. 2000, p. 951, § 2-1, effective July, 1, 2001.

Editor's notes.

- Ga. L. 2000, p. 951, § 2-1, provided for the repeal of this Code section. Section 13-1 of that Act, not codified by the General Assembly, provides that the Act becomes fully effective July 1, 2001, but authorizes certain administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the repeal of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001.

This Code section was based on Ga. L. 1978, p. 1989, § 4; Ga. L. 1985, p. 149, § 32; Ga. L. 1992, p. 1236, § 1.

32-1-8. Construction and maintenance of private roads.

It shall be unlawful for any official, officer, or employee of the department, the State Road and Tollway Authority, the Georgia Highway Authority, or any similar authority or of any county or municipality to authorize the construction or maintenance of any private road.

(Code 1933, § 95A-1102, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2001, p. 1251, § 2-1.)

Cross references.

- Georgia Highway Authority, § 32-10-1 et seq.

State Road and Tollway Authority, § 32-10-60 et seq.

Conflicts of interest, § 45-10-20 et seq.

JUDICIAL DECISIONS

Compensated work on private property not prohibited.

- O.C.G.A. § 32-1-8 does not prohibit a county from performing grading work on private property with county equipment and materials at rates established in a published schedule. Woodard v. Smith, 254 Ga. 39, 325 S.E.2d 377 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Remuneration does not render work on private property lawful.

- Even for payment, a county may not lawfully scrape privately-owned driveways; the county's collection of a fee for providing this service would not, given the plain language of the statute, make the transaction lawful. 1976 Op. Att'y Gen. No. U76-24.

32-1-9. Enforcement of title by law enforcement officers.

It shall be the duty of all state and local law enforcement officers to enforce any provision of this title which states that any act or omission is unlawful.

(Code 1933, § 95A-1103, enacted by Ga. L. 1973, p. 947, § 1.)

32-1-10. Penalty.

  1. Any person who violates any of the provisions of this title for which no specific penalty is provided, whether or not such act or omission is expressly declared elsewhere in this title to be unlawful, or who violates any of the rules and regulations issued under authority of and in accord with the provisions of this title shall be guilty of a misdemeanor; provided, however, that a violation of Code Sections 32-6-26 and 32-6-27 shall not be considered a crime.
  2. In addition to the penalty provided for in subsection (a) of this Code section, the department shall have the right to enjoin any act or omission so punishable as a misdemeanor or punished otherwise as provided elsewhere in this title.

(Code 1933, § 95A-1101, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1978, p. 1989, § 4.)

OPINIONS OF THE ATTORNEY GENERAL

Promotion of safety and protection of public investment.

- O.C.G.A. §§ 32-1-10,32-6-23,32-6-24,46-7-61 (now repealed) and46-7-78 (now repealed) are intended to promote the safety of the traveling public and protect the public's investment in the public's roads and highways. 1981 Op. Att'y Gen. No. U81-17.

When Department of Transportation officers may selectively stop vehicles.

- Department of Transportation enforcement officers may not selectively stop vehicles unless the officers have an articulate and reasonable suspicion that the operator is violating, or the vehicle is in violation of, the law. 1987 Op. Att'y Gen. No. U87-31.

32-1-11. Construction of title.

This title shall be construed liberally to effectuate its purposes.

(Code 1933, § 95A-103, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Cited in National Adv. Co. v. Department of Transp., 149 Ga. App. 334, 254 S.E.2d 571 (1979).

CHAPTER 2 DEPARTMENT OF TRANSPORTATION

Article 1 General Provisions.
Article 2 State Transportation Board.
Article 3 Officers.
Article 4 Exercise of Power to Contract Generally.
Cross references.

- Georgia Regional Transportation Authority, T. 50, C. 32.

Editor's notes.

- Ga. L. 2004, p. 898, § 2, not codified by the General Assembly, provides that: "The department will form a pilot program that will provide a state level flow through point for any available federal funding or other forms of financial and development sources and assistance for local, regional, and public-private streetcar projects. Any funding through bonds for such pilot and grant program shall be administered by the State Road and Tollway Authority." This provision for a pilot program was repealed by Ga. L. 2006, p. 498, § 5/SB 150.

Administrative Rules and Regulations.

- Rules of general applicability, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Chapter 672-1.

RESEARCH REFERENCES

Actions Against Road Contractors for Inadequate Warning of Construction Hazards, 72 Am. Jur. Trials 215.

ARTICLE 1 GENERAL PROVISIONS

32-2-1. Composition of department.

The Department of Transportation shall consist of the State Transportation Board, the commissioner of transportation, the director of planning, the deputy commissioner of transportation, the chief engineer, the treasurer and the assistant treasurer of transportation, and such subordinate employees as may be deemed necessary by the commissioner or the director of planning.

(Ga. L. 1919, p. 242, § 1; Ga. L. 1925, p. 208, § 1; Code 1933, § 95-1503, enacted by Ga. L. 1963, p. 3, § 5; Code 1933, § 95A-301, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1994, p. 591, § 1; Ga. L. 2009, p. 976, § 1/SB 200.)

32-2-2. Powers and duties of department generally.

  1. The powers and duties of the department, unless otherwise expressly limited by law, shall include but not be limited to the following:
    1. The department shall plan, designate, improve, manage, control, construct, and maintain a state highway system and shall have control of and responsibility for all construction, maintenance, or any other work upon the state highway system and all other work which may be designated to be done by the department by this title or any other law. However, on those portions of the state highway system lying within the corporate limits of any municipality, the department shall be required to provide only substantial maintenance activities and operations, including but not limited to reconstruction and major resurfacing, reconstruction of bridges, erection and maintenance of official department signs, painting of striping and pavement delineators, furnishing of guardrails and bridge rails, and other major maintenance activities; and, furthermore, the department may by contract authorize and require any rapid transit authority created by the General Assembly to plan, design, and construct, at no cost to the department and subject to the department's review and approval of design and construction, segments of the state highway system necessary to replace those portions of the system which the rapid transit authority and the department agree must be relocated in order to avoid conflicts between the rapid transit authority's facilities and the state highway system;
    2. Except for appropriations to authorize the issuance of general obligation debt for public road work, or to pay such debt, the department shall be the state agency to receive and shall have control and supervision of all funds appropriated for public road work by the state and activities incident thereto from the net proceeds of motor fuel tax, as provided in Article III, Section IX, Paragraph VI(b) of the Constitution of Georgia and any other funds appropriated or provided for by law for such purposes or for performing other functions of the department.If the General Assembly fails to appropriate all of the net proceeds of the motor fuel tax to the department, to the State of Georgia General Obligation Debt Sinking Fund, and to counties for public road work and activities incident thereto, any such unappropriated part of such funds, exclusive of those proceeds required by law to be provided as grants to counties for the construction and maintenance of county roads, shall be made available to the department by the state treasurer, notwithstanding any provisions to the contrary in Part 1 of Article 4 of Chapter 12 of Title 45, the "Budget Act";
    3. The department shall provide for surveys, plans, maps, specifications, and other things necessary in designating, supervising, locating, abandoning, relocating, improving, constructing, or maintaining the state highway system or any part thereof, or any activities incident thereto, or in doing such other work on public roads as the department may be given responsibility for or control of by law;
    4. The department shall reimburse the Department of Law for expenses incurred when the Attorney General of Georgia assigns any assistant attorney general or any deputy assistant attorney general to perform specific legal services in connection with the validation of any bonds as authorized by Code Section 45-15-16 or in connection with contract lawsuits and the acquisition of rights of way for any project on the state highway system constructed or to be constructed by the department and when such services are designated by the Attorney General to include specific items of legal services involving the trial or preparation for trial of individual condemnation cases, contract lawsuits, and related matters on such project or projects, or a group or series of condemnation cases, contract lawsuits, and related matters in connection with a specific project or projects; provided, however, that no such reimbursement shall be made until the Attorney General has submitted a statement of the expenses of such legal services to the department, which statement shall include the name of the assistant attorney general performing such services, the items of legal services performed and the cost thereof, and, further, that no reimbursement shall be made for the expenses of legal services for contract lawsuits unless such services had the advance approval of the commissioner;
    5. The department shall have the authority to negotiate, let, and enter into contracts with the Georgia Highway Authority, the State Road and Tollway Authority, any person, any state agency, or any county or municipality of the state for the construction or maintenance of any public road or any other mode of transportation or for the benefit of or pertaining to the department or its employees in such manner and subject to such express limitations as may be provided by law;
    6. The department shall have the authority to negotiate and enter into reciprocal agreements and contracts with other states or agencies or subdivisions thereof concerning public roads and other modes of transportation and activities incident thereto;
    7. The department and the State Road and Tollway Authority shall be the proper agencies of the state to discharge all duties imposed on the state by any act of Congress allotting federal funds to be expended for public road and other transportation purposes in this state. The department shall have the authority to accept and use federal funds; to enter into any contracts or agreements with the United States or its agencies or subdivisions relating to the planning, financing, construction, improvement, operation, and maintenance of any public road or other mode or system of transportation; and to do all things necessary, proper, or expedient to achieve compliance with the provisions and requirements of all applicable federal-aid acts and programs. Nothing in this title is intended to conflict with any federal law; and, in case of such conflict, such portion as may be in conflict with such federal law is declared of no effect to the extent of the conflict;
    8. The department shall have the authority to exercise the right and power of eminent domain and to purchase, exchange, sell, lease, or otherwise acquire or dispose of any property or any rights or interests therein for public road and other transportation purposes or for any activities incident thereto, subject to such express limitations as are provided by law;
    9. The department and its authorized agents and employees shall have the authority to enter upon any lands in the state for the purpose of making such surveys, soundings, drillings, and examinations as the department may deem necessary or desirable to accomplish the purposes of this title; and such entry shall not be deemed a trespass, nor shall it be deemed an entry which would constitute a taking in a condemnation proceeding, provided that reasonable notice is given the owner or occupant of the property to be entered and that such entry shall be done in a reasonable manner with as little inconvenience as possible to the owner or occupant of the property;
    10. In locating, relocating, constructing, improving, or maintaining any road on the state highway system, the department shall have the authority to control or limit access thereto, including the authority to close off or regulate access from any part of any public road on a county road system or municipal street system to the extent necessary in the public interest;
    11. The department shall have the authority to construct and to perform substantial maintenance of public roads within the boundaries of state parks and on main access roads leading into such parks;
      1. The department shall have the authority to formulate, promulgate, and enforce rules and regulations setting minimum safety standards for bridges on federal-aid public roads and to inspect and close any bridge on any such public road which does not comply with the minimum standards set by the department and which the department determines is unsafe for public travel. No new bridge shall be constructed on any such public road without there first having been obtained a permit for its construction from the department, such permit to be issued only where the proposed bridge will meet the minimum standards set by the department.
      2. The department may inspect and determine the maximum load, weight, and other vehicular dimensions which can be safely transported over each bridge on the state highway system and may post on each such bridge a legible notice showing such maximum safe limits. It shall be unlawful for any person to haul, drive, or bring onto any bridge any vehicle, load, or weight which in any manner exceeds the maximum limits so ascertained and posted on such bridge;
    12. The department shall have the authority to establish, maintain, and operate ferries as part of a public road and to authorize and issue permits for any state agency, any county or municipality, or any private person to establish, maintain, and operate ferries as part of a public road whenever, in the discretion of the department, such ferries are reasonably necessary and in the best interest of the public. All such ferries shall be operated subject to such rules and regulations as the department may adopt to protect the public interest, and the authorization of any such ferry may be revoked whenever, in the discretion of the department, its continued operation is no longer necessary or in the best interest of the public;
    13. The department shall have those duties and powers in regard to programs relating to the Metropolitan Atlanta Rapid Transit Authority established by subsection (i) of Section 8 of an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), particularly as amended by Section 5 of an Act approved March 16, 1971 (Ga. L. 1971, p. 2092);
    14. Reserved;
    15. Reserved;
      1. Subject to general appropriations for such purposes, the department is authorized to plan for and establish a long-term policy in regard to the establishment, development, and maintenance of aviation and aviation facilities in the state; to promote and encourage the use of aviation facilities of the state for air commerce in the state, between the state and other states, and between the state and foreign countries; to cooperate with, counsel, and advise political subdivisions of the state and other departments, boards, bureaus, commissions, agencies, or establishments, whether federal, state, local, public, or private, for the purpose of promoting and obtaining coordination in the planning for and in the establishment, development, construction, maintenance, and protection of a system of air routes, airports, landing fields, and other aviation facilities in the state.
      2. Subject to general appropriations for such purposes, the department is authorized to construct or to contract with any state agency, political subdivision, authority, or person for the construction of airports and of facilities and appurtenances incident to their operation. The authority and limitations of Article 4 of this chapter pertaining to department contracts and subcontracts for construction of public roads shall likewise apply to such airport construction contracts; provided, however, that such a contract when negotiated with a political subdivision shall not be subject to the limitation of subparagraph (d)(1)(A) of Code Section 32-2-61 pertaining to the average bid price for the 60 day period preceding the making of the contract. Article 1 of Chapter 3 and Chapter 7 of this title shall apply to the acquisition or disposition of land or interests therein for such airport construction.
      3. Subject to general appropriations for such purposes, the department is authorized to establish air markers at appropriate locations throughout the state to facilitate air navigation within the state. Said markers shall consist of painting on appropriately located roofs of buildings the names of towns or cities within which such buildings are located, such names to be painted in sufficient size to be legible under good visibility conditions from a height of at least 3,000 feet. The department is authorized to obtain roof releases from the owners of buildings upon which air markers are to be painted or otherwise to obtain permission from such owners to use such roofs for such purposes and to pay the owners reasonable and nominal rentals therefor if such payment is necessary in order to obtain the appropriate permission for the use of such roofs for such purposes.
      4. Subject to general appropriations for such purposes, the department is authorized to maintain or to control for the maintenance of department owned or department leased airports, their facilities, and appurtenances incident to their operation. The authority and limitations of Article 4 of this chapter pertaining to contracts and subcontracts for maintenance of public roads shall likewise apply to such contracts for the maintenance of such department owned or department leased airports, provided that such a contract when negotiated with a political subdivision shall not be subject to the limitation of subparagraph (d)(1)(A) of Code Section 32-2-61 pertaining to the average bid price for the 60 day period preceding the making of the contract;
      1. Subject to general appropriations and any provisions of Chapter 5 of this title to the contrary notwithstanding, the department is authorized within the limitations provided in subparagraph (B) of this paragraph to provide to municipalities, counties, authorities, and state agencies financial support by contract for clearing, dredging, or maintaining free from obstructions and for the widening, deepening, and improvement of the ports, seaports, or harbors of this state.
        1. Municipalities, counties, authorities, or state agencies may, by formal resolution, apply to the department for financial assistance provided by this paragraph.
        2. The department shall review the proposal and, if satisfied that the proposal is in accordance with the purposes of this paragraph, may enter into a contract for expenditure of funds.
        3. The time of payment and any conditions concerning such funds shall be set forth in the contract.
      2. In addition to subparagraph (A) of this paragraph and subject to general appropriations for such purposes, the department with its own forces or by contract may clear, dredge, or maintain free from obstruction and may widen, deepen, and improve the ports, seaports, or harbors of this state;
    16. Code Sections 32-3-1 and 32-6-115 notwithstanding, the department may by contract grant to any rapid transit authority created by the General Assembly, under such terms and conditions as the department may deem appropriate, the right to occupy or traverse a portion of the right of way of any road on the state highway system by or with its mass transportation facilities. Furthermore, the department may by contract lease to the rapid transit authority, under such terms and conditions as the department may deem appropriate, the right to occupy, operate, maintain, or traverse by or with its mass transportation facilities any parking facility constructed by the department. Notwithstanding Code Section 48-2-17, all net revenue derived from the lease shall be utilized by the department to offset the cost of constructing any parking facility. Regardless of any financial expenditures by the rapid transit authority, no right of use or lease granted under this paragraph shall merge into or become a property interest of the rapid transit authority. Upon the transfer of the title of the mass transportation facilities to private ownership or upon the operation of the rapid transportation facilities for the financial gain of private persons, such rights granted by the department shall automatically terminate and all rapid transportation facilities shall be removed from the rights of way of the state highway system; and
    17. The department, in consultation with the Georgia Technology Authority, shall have the authority to plan for, establish, and implement a long-term policy with regard to the use of the rights of way of the interstate highways and state owned roads for the establishment, development, and maintenance of the deployment of broadband services and other emerging communications technologies throughout the state by public or private providers, or both. The department shall be authorized to promote and encourage the use of such rights of way of the interstate highways and state owned roads for such purposes to the extent feasible and prudent. All net revenues from the use, lease, or other activities in such rights of way in excess of any project costs, that are not subject to the jurisdiction of the Federal Highway Administration or that are not otherwise restricted by any federal laws, rules, or regulations, shall be paid into the general fund of the state treasury subject to any restrictions imposed by the Federal Highway Administration. It is the intention of the General Assembly, subject to the appropriation process, that a portion of the amount so deposited into the general fund of the state treasury be appropriated each year to programs to be administered by the Georgia Technology Authority, the Department of Community Affairs, and other state agencies as provided in Chapter 40 of Title 50 to be used to promote and provide broadband services throughout the state.
  2. In addition to the powers specifically delegated to it in this title, the department shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the department and of the state highway system and of other modes and systems of transportation; and this title shall be liberally construed to that end. Any power vested by law in the department but not implemented by specific provisions for the exercise thereof may be executed and carried out by the department in a reasonable manner pursuant to such rules, regulations, and procedures as the department may adopt and subject to such limitations as may be provided by law.

(Ga. L. 1919, p. 242, art. 3, §§ 3, 5; Ga. L. 1919, p. 242, art. 4, §§ 1-3; Ga. L. 1919, p. 242, art. 6, § 3; Ga. L. 1922, p. 176, § 1; Ga. L. 1929, p. 260, § 2; Code 1933, §§ 95-1502, 95-1504, 95-1701, 95-1702, 95-1703, 95-1710, 95-1715, 95-1724; Code 1933, §§ 95A-302, 95A-303, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, §§ 6-9; Ga. L. 1975, p. 98, §§ 1, 2; Ga. L. 1976, p. 416, § 1; Ga. L. 1976, p. 775, § 2; Ga. L. 1979, p. 973, §§ 2, 3; Ga. L. 1980, p. 773, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 56; Ga. L. 1986, p. 10, § 32; Ga. L. 1991, p. 1355, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2000, p. 951, § 2-2; Ga. L. 2001, p. 1251, § 1-1; Ga. L. 2009, p. 848, § 2/SB 85; Ga. L. 2010, p. 863, § 3/SB 296; Ga. L. 2018, p. 629, § 2-1/SB 402.)

The 2018 amendment, effective May 7, 2018, deleted "and" at the end of subparagraph (a)(18)(C), substituted "; and" for the period at the end of paragraph (a)(19), and added paragraph (a)(20).

Cross references.

- Aviation authority, T. 6, C. 5.

Further provisions regarding powers and duties of department as regards aviation, §§ 6-1-1,6-1-2.

Powers and duties of department with regard to construction of bicycle trails and bikeways, § 12-3-115.

Erosion and sediment control plan prepared, § 12-7-7.1.

Motor fuel and road taxes, T. 48, C. 9.

Powers and duties of department regarding welcome centers on federal highways, and installation and operation of vending machines at such centers, § 50-7-12 et seq.

Powers and duties of department with regard to intracoastal waterway, T. 52, C. 3.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, periods were substituted for semicolons at the end of subparagraphs (a)(12)(A), (a)(17)(A)-(a)(17)(C), (a)(18)(A) and subdivisions (a)(18)(B)(i)-(a)(18)(B)(iii); and "subparagraph (d)(1)(A)" was substituted for "subparagraph (A) of paragraph (1) of subsection (a)" in subparagraphs (a)(17)(B) and (a)(17)(D).

Pursuant to Code Section 28-9-5, in 1987, "property" was substituted for "porperty" in paragraph (a)(9) and, in subparagraph (a)(17)(A), "and aviation" was added following the first "aviation" and "and aviation" was deleted following the second "aviation".

Pursuant to Code Section 28-9-5, in 1994, in subsection (a), "contract lawsuits," was substituted for "contract lawsuits" near the middle of paragraph (a)(4) and "or private," was substituted for "or private" near the end of subparagraph (a)(17)(A).

Pursuant to Code Section 28-9-5, in 2018, "Chapter 40" was substituted for "Chapter 39" near the end of paragraph (a)(20).

Editor's notes.

- Ga. L. 2018, p. 629, § 1-1/SB 402, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Achieving Connectivity Everywhere (ACE) Act.'"

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1863, § 672; former Code 1873, § 671; former Code 1882, §§ 684, 690; former Civil Code 1895, §§ 616, 622; former Civil Code 1910, § 748; and former Code 1933, §§ 95-302, 95-1504, 95-1701, 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Georgia DOT is an arm of the state and thus may have immunity under the Eleventh Amendment because any recovery would have been paid out of state funds and the fact that Georgia DOT can allocate the DOT's funds in DOT's own discretion and without intervention by the state legislature does not change the fact that these funds are state funds. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).

Under O.C.G.A. § 32-2-2, the legislature has delegated to DOT the authority to exercise the right and power of eminent domain for public road and transportation purposes. It follows that DOT is an "arm of the State" for eminent domain purposes, and the trial court correctly held that an action brought against DOT under 42 U.S.C. § 1983 could not be maintained for losses occasioned by pre-condemnation publicity. Thompson v. DOT, 209 Ga. App. 353, 433 S.E.2d 623 (1993).

Georgia DOT has immunity under the Eleventh Amendment.

- Georgia DOT, which may receive immunity under the eleventh amendment, did not waive the DOT's immunity when plaintiffs sought relief for inverse condemnation of property that was an ancestral cemetery because DOT had consented to suit in state court; the Georgia Constitution expressly reserves the state's immunity in federal court and a waiver in state court does not constitute a waiver in federal court. Robinson v. Georgia DOT, 966 F.2d 637 (11th Cir.), cert. denied, 506 U.S. 1022, 113 S. Ct. 660, 121 L. Ed. 2d 586 (1992).

Negligent design.

- Contractors were not liable for the negligent design of a ramp as the Georgia Department of Transportation (DOT) had responsibility for the design of the ramp, notwithstanding the fact that DOT gave the contractors no drawings, that the contractors made suggestions for changes to the ramp, and that the contractors implemented the DOT's design; there was no evidence that the DOT relinquished control of the design to the contractors or that the contract specified that the design of the ramp was the contractors' responsibility. Fraker v. C.W. Matthews Contr. Co., 272 Ga. App. 807, 614 S.E.2d 94 (2005), aff'd, No. 06-11805, 2007 U.S. App. LEXIS 28793 (11th Cir. 2007).

Negligence suit involving paving company.

- Trial court erred by granting a paving company summary judgment in a negligence suit based on the affidavit of the company's president because the business records referred to and relied upon by the paving company's president were not attached to the president's affidavit; thus, the affidavit could not be used to support the company's motion for summary judgment. Brown v. Seaboard Constr. Co., 317 Ga. App. 667, 732 S.E.2d 325 (2012).

Department failed to properly apply for discretionary review.

- In a case involving a white supremacist organization being denied a permit for the Adopt-A-Highway program administered by the Georgia Department of Transportation (Department), the court dismissed the Department's appeal for lack of jurisdiction because the Department sought review of a decision of a state administrative agency and was required under O.C.G.A. § 5-6-35(a)(1) to bring the Department's appeal by way of an application for discretionary review, but failed to do so. State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

Cited in Hall County Historical Soc'y, Inc. v. Georgia DOT, 447 F. Supp. 741 (N.D. Ga. 1978); Hendrix v. Department of Transp., 188 Ga. App. 429, 373 S.E.2d 264 (1988); DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002); Campbell v. State Rd. & Tollway Auth., 276 Ga. 714, 583 S.E.2d 32 (2003).

Authority of Department

Enforcement authority granted by O.C.G.A. § 32-2-2 is neither overbroad nor an illegal delegation of legislative functions. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

Delegation to contractor permitted.

- Nothing in O.C.G.A. § 32-1-3(24)(J) or O.C.G.A. § 32-2-2(a)(3) prevents the Georgia Department of Transportation from delegating the responsibility for designing and implementing a traffic control plan to a private contractor. Comanche Constr., Inc. v. DOT, 272 Ga. App. 766, 613 S.E.2d 158 (2005).

Department's duties in connection with state highway system.

- When the charge in question does in fact state that the Department of Transportation has "general responsibility to design, manage and improve the state highway system," it seems to capture the essence of the sections the defendant relies upon, which are in fact very broad, general descriptions of the duties of the DOT. The additional material used by the court is drawn from the more specific statutory description of the respective duties of the DOT and municipalities. Thus, O.C.G.A. § 32-2-2 does indeed mention the general duty of the DOT to "designate, improve, manage, control, construct, and maintain." Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Authority to maintain state-aid highways.

- Court of equity will not interfere with the discretionary action of the State Highway Department (now Department of Transportation) in locating, grading, or improving a state-aid highway, within the area of their legally designated powers, unless such action is arbitrary and amounts to an abuse of the court's discretion. State Hwy. Dep't v. Strickland, 213 Ga. 785, 102 S.E.2d 3 (1958).

There is no general duty imposed on the counties to maintain state highways. Christian v. Monroe County, 203 Ga. App. 342, 417 S.E.2d 37 (1992); Hardy v. Candler County, 214 Ga. App. 627, 448 S.E.2d 487 (1994).

Authority to take property to relocate gas line.

- State Highway Department (now Department of Transportation) was authorized to take property for the relocation of the gas company's interstate gas line since it was in the interest of safety and prevented inconvenience to the public using the gas line and since the acquisition was in furtherance of and reasonably for a public state highway use. Benton v. State Hwy. Dep't, 111 Ga. App. 861, 143 S.E.2d 396 (1965) (decided under former Code 1933, §§ 95-1701, 95-1715, and 95-1724).

Authority to construct public highway through municipalities or cities.

- State Highway Department (now Department of Transportation) may construct public highways through municipalities or cities of this state without their consent. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959) (decided under former Code 1933, § 95-1504).

Extending roads through towns without consent.

- State Highway Board (now State Transportation Board), on the board's own initiative or acting through a county, has the legal right to extend and improve a state-aid road through the streets of a municipality without the consent of the municipality and even against the municipality's will. Perkerson v. Mayor of Greenville, 51 Ga. App. 240, 180 S.E. 22 (1935) (decided under former Code 1933, § 95-1504).

General regulatory power to approve erection of traffic signals.

- When the additional portion of the charge objected to here similarly drew from specific applicable statutory language, the court properly noted the general regulatory power of the Department of Transportation to approve the erection of traffic signals. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Department lacks exclusive responsibility for all aspects of highway system.

- O.C.G.A. § 32-2-2(a)(1) does not place exclusive responsibility for all aspects of the state highway system in the Department of Transportation. City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

Maintenance of highways within city limits.

- When the Department of Transportation fails to maintain those portions of the state highway system lying within a municipality's corporate limits as required by law and when the municipality agreed to perform the necessary maintenance, a municipality can be held liable for such failure under O.C.G.A. § 32-4-93(b). City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

Authority to remove obstructions.

- Management and control of the right of way of the state's system of roads is vested in the Department of Transportation and the department can require the removal of any obstruction placed thereon without express permission. Crider v. Kelley, 232 Ga. 616, 208 S.E.2d 444 (1974).

No authority to maintain overgrown area bordering intersection.

- In a wrongful death action, the trial court did not err in finding the Georgia Department of Transportation immune from suit from liability to the decedent's estate and survivors for failing to maintain an overgrown area of shrubbery that bordered an intersection, as neither O.C.G.A. § 32-2-2, when read in concert with O.C.G.A. § 32-4-93, nor O.C.G.A. § 50-21-24(8) imposed liability on the Department; hence, maintenance of the area did not constitute a "substantial" or "other major" maintenance activity. Welch v. Ga. DOT, 283 Ga. App. 903, 642 S.E.2d 913 (2007).

Condemnation of public property.

- O.C.G.A. § 32-2-2(b) does not constitute specific authority to Department of Transportation to condemn public property. DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Bridges

1. Liability of County

Duties of county authorities in maintaining and repairing bridges.

- County authorities are not insurers of the safety of county bridges, but must only exercise ordinary care in maintaining and repairing the bridges. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

Definition of "bridge" includes approaches.

- While the word "bridge," as used in former Civil Code 1910, § 748 did not include the public road leading thereto, or a drain or opening thereunder, the statute did include "all the appurtenances necessary to its proper use, and embraces its abutments and approaches and that which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself." Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

In an action against a county for damages from the falling of truck through an opening where a public bridge had been into a ravine below, the petition was not subject to demurrer (now motion to dismiss), and the verdict for the plaintiff was not contrary to law or without evidence to support the verdict, under the defendant's contention that the injury was not caused by reason of a "defective bridge" within the meaning of the statute, but from the entire removal of the bridge, for which the county was not liable, since the petition and the evidence showed that at the time of the injury at least a part of the bridge, i.e., the sills constituting a portion of its "approaches," still remained, and the rest of the bridge was then being repaired. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934) (decided under former Civil Code 1910, § 748).

2. Liability of Individual Owners

Standard of care required for private toll bridges.

- Owner of a bridge franchise is bound to exercise only such care and diligence in the construction of a bridge and keeping the bridge in proper order which every prudent man would exert in relation to the same property in view of the object and purpose for which the bridge was erected and used by the prudent man. Tift v. Towns, 53 Ga. 47 (1874) (decided under former Code 1873, § 671).

Nonliability during repairs.

- While the proprietor of a toll bridge is having the bridge repaired, in accordance with the proprietor's duty, the floor being taken up and no toll charged, the proprietor's role as a proprietor of a toll bridge is discontinued; and the proprietor is not liable under this section to one injured by reason of the condition of the bridge. Tift v. Jones, 52 Ga. 538 (1874) (decided under former Code 1873, § 671).

Private toll bridge without permit prohibited.

- This section did not contemplate a case where a public road crossed a bridge, and where a few people obtained possession by a transfer of a mechanic's lien and proceeded to charge a toll without authority granted to the people from some proper source. Whelchel v. State ex rel. Wiley, 76 Ga. 644 (1886) (decided under former Code 1882, § 684).

Ferries

Liability for ferry kept for own use.

- One who keeps a ferry for one's own use is not liable except for gross neglect unless one is in the habit of charging a toll. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871) (decided under former Code 1863, § 672).

When ferry loses private character.

- While the owner of a private ferry may lawfully charge and collect a toll from persons incidentally crossing thereat, should the owner maintain the ferry for use by the public at large or seek public patronage, or pursue the business of keeping up the ferry for the public, the ferry loses the ferry's character as a private ferry. Hudspeth v. Hall, 111 Ga. 510, 36 S.E. 770 (1900) (decided under former Code 1895, § 616).

Suits against public ferry operators for loss of property.

- Since public ferry operators are common carriers, no allegation of negligence was necessary in suits brought to recover damages for loss of property accepted for shipment. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).

Landowner liability.

- Under this section, the owner of the land on which a public ferry is situated, unless the ownership of the ferry be separated from that of the land, is liable for negligent torts committed by the ferry operator in the performance of the operator's duties as such, whether the owner objects to the use of the ferry or not. Printup v. Patton & Jackson, 91 Ga. 422, 18 S.E. 311 (1893) (decided under former Code 1882, § 690).

Amendment to petition showing liability as landowner permissible.

- Petition originally basing liability on ownership of the ferry may be amended to include liability as owner of the land and proof of either will sustain the action. Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910) (decided under former Code 1895, § 622).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-1715 and 95-1724, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Department of Transportation control over contemplated tree cutting operations.

- Given the Department of Transportation's authority and obligation to control the state highway system, it seems imperative that the department maintain rigid and absolute control over any contemplated tree cutting operations, particularly if those operations are undertaken by private individuals on rights-of-way. 1981 Op. Att'y Gen. No. 81-75.

Authorization to formulate rules related to, and issuance of permits for, cutting of trees and vegetation on rights-of-way does not impinge upon the Department of Transportation's authority and legal obligation to control the state highway system. 1981 Op. Att'y Gen. No. 81-75.

Department lacks authority to fund county airport project.

- Department of Transportation may not help fund completion of airport master planning project for county airport because it would constitute a forbidden assumption of county debt. 1973 Op. Att'y Gen. No. 73-126.

Department of Transportation may enter into transportation construction contracts with financial backing from State Road and Tollway Authority.

- Department of Transportation may enter into transportation construction contracts with all or a portion of the financial backing for the contracts coming from a contractual promise from the State Road and Tollway Authority to borrow and provide money to DOT as and when needed to expend on projects that are the subjects of the construction contracts. 2001 Op. Att'y Gen. No. 2001-10.

Department may not contract with individual to maintain federal highways.

- Since the state is obligated to follow federal law with reference to interstate highways, the state's making a contract for supplying to an individual the hay cut from rights of way of interstate highways in return for the individual's cutting it would not be acceptable since the federal government requires maintenance contracts to be made with governmental instrumentalities only. 1973 Op. Att'y Gen. No. U73-71.

Authority to issue license for rail line.

- Department of Transportation has authority to issue a revocable license to a company constructing and operating a rapid rail passenger service line to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att'y Gen. No. 95-45.

Department may buy litter bags for distribution.

- Department of Transportation may lawfully spend motor fuel tax funds for the purchase of litter bags to be distributed free of charge to motorists at Georgia's welcome stations. 1973 Op. Att'y Gen. No. 73-145.

Carriage upon state aircraft must be limited to state officials and employees on official business of the state and those non-employees from whose carriage the state derives some benefit. The only exceptions may be in those areas exempted from Ga. Const. 1983, Art. III, Sec. VI, Para. VI(a), the gratuities provision of the Constitution, by Ga. Const. 1983, Art. III, Sec. VI, Para. VI(b). 1989 Op. Att'y Gen. No. 89-19.

Use of state-owned aircraft.

- If the Governor, Lieutenant Governor, or Speaker of the House must travel on personal or political business, such travel must be accomplished by private means unless the Commissioner of Public Safety has determined that travel on state aircraft is necessary for personal security; otherwise, when any public officer uses a state aircraft for a personal or political reason, the use of the aircraft is contrary to the prohibitions of the gratuities clause and state statutes authorizing the use of state aircraft, even were the official to reimburse the state for the direct costs associated with the trip. 2004 Op. Att'y Gen. No. 04-3.

Department's powers and duties on funding strictly construed.

- Powers and duties delegated to the State Highway Department (now Department of Transportation), especially those concerning appropriations and expenditures of state funds, must be strictly construed. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

Department may not fund road outside of state highway system.

- Specific powers mentioned in this section do not authorize the State Highway Department (now Department of Transportation) to match federal funds or to purchase rights of way on roads which are not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

Department may not reimburse subdivision for rights of way bought outside highway system.

- State Highway Department (now Department of Transportation) has no legal authority to reimburse a political subdivision for the cost of any rights of way they may buy for a federal-aid highway improvement project on a road not on the official state highway system. 1971 Op. Att'y Gen. No. 71-85 (decided under former Code 1933, §§ 95-1715 and 95-1724).

Lapse of appropriations that become deobligated.

- Appropriated state funds which become deobligated during a subsequent fiscal year are subject to lapse, and may not be applied to contracts for which motor fuel tax appropriations were previously committed. 1993 Op. Att'y Gen. No. 93-9.

Department may not expend money on historic preservation if not for transportation.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation, and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) where such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of O.C.G.A. § 32-1-3).

Applicability of Fair and Open Grants Act of 1993 to funds expended from funds.

- Fair and Open Grants Act of 1993, O.C.G.A. § 28-5-120 et seq., does not apply to disbursements made by the Department of Transportation pursuant to contracts entered into with private entities, nor to intergovernmental contracts with counties for harbor maintenance; but the Act does apply when funds are disbursed by the department on an unrestricted basis to, or for the benefit of, local governments for public road and other transportation purposes. 1994 Op. Att'y Gen. No. 94-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 12 et seq.

C.J.S.

- 39A C.J.S., Highways, § 73 et seq.

ALR.

- Duty and liability as to lighting bridge, 47 A.L.R. 355.

Constitutionality and construction of statute relating to location or relocation of highways, 63 A.L.R. 516.

Duty as regards barriers for protection of automobile travel, 86 A.L.R. 1389; 173 A.L.R. 626.

Personal liability of highway officers for damage to or trespass upon land in connection with construction or maintenance of highway, 90 A.L.R. 1481.

Power and duty of highway officers as regards location or routes of roads to be constructed or improved, 91 A.L.R. 242.

Validity and applicability of statutes relating to use of highway by private motor carriers and contract motor carriers for hire, 175 A.L.R. 1333.

Construction of highway through park as violation of use to which park property may be devoted, 60 A.L.R.3d 581.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Highways: Governmental duty to provide curve warnings or markings, 57 A.L.R.4th 342.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

32-2-3. Development of transportation plans; public hearings; approval of plans by board; promulgation of rules and regulations.

  1. As used in this Code section, the term:
    1. "Comprehensive plan" means the major transportation facilities described in this Code section as well as collectors and interconnecting routes within or between standard metropolitan areas, urban areas, and rural areas.
    2. "Local governing body" means the governing body of the city, town, municipality, county, or other local governing unit or authority in the area in which the transportation facility will be located.
    3. "Major transportation facility" means:
      1. Any facility primarily designed to transport people or goods rapidly and efficiently, including but not limited to air transport facilities, railroads, bus services, terminals, freeways, expressways, arterial highways, belt highways, and port facilities; or
      2. Any facility or facilities utilized in providing a mass transit system for a standard metropolitan area or urban area.
    4. "Standard metropolitan area" means a county or group of contiguous counties or parts thereof as designated by the department which contains at least one central city of 50,000 inhabitants or more as determined by the latest available federal census or such other population estimate as may be provided by law.
    5. "Transportation corridor" means a strip of land between two termini or central points within which travel, topography, land uses, environment, and other characteristics are evaluated for transportation purposes.
    6. "Urban area" means an area including and adjacent to a municipality and other urban centers having a population of 5,000 or more as determined by the latest available federal census or such other population estimates as may be provided by law within boundaries to be fixed by the department.
    1. The department in conjunction with the affected local governmental bodies, regional planning agencies, and other appropriate state and federal agencies shall develop:
      1. A comprehensive, state-wide, 20 year transportation plan;
      2. A comprehensive transportation plan for all standard metropolitan areas and those areas which the department determines, based upon population projections, will become a standard metropolitan area within 20 years, such plan to supplement and be compatible with the state-wide transportation plan; and
      3. Comprehensive plans for regions and urban areas as such plans are deemed necessary by the department.
    2. Priority for developing comprehensive plans shall be given to areas in which the need for construction of major transportation facilities is anticipated.
    3. In developing comprehensive transportation plans, the department shall take into account:
      1. Future as well as present needs;
      2. All possible alternative modes of transportation;
      3. The joint use of transportation corridors and major transportation facilities for alternate transportation and community uses;
      4. The integration of any proposed system into all other types of transportation facilities in the community or region;
      5. The coordination with other development plans in the community and region so as to facilitate and synchronize growth; and
      6. The total environment of the community and region including land use, state and regional development goals and decisions, population, travel patterns, traffic control features, ecology, pollution effects, esthetics, safety, and social and community values.
  2. In order to ensure an integrated transportation system, the planning, location, and design of transportation facilities shall be coordinated with the appropriate planning agencies and the affected local governmental bodies.
    1. The department may adopt local or regional transportation plans as part of or in lieu of the department's plan.
    2. The department may develop and design plans for arterial and collector roads and streets, vehicular parking areas, other transportation modes and facilities, and other support facilities which are consistent with the department's comprehensive transportation plans. The department may render to local governmental bodies or their planning agencies such technical assistance and services as are necessary so that local plans and facilities are coordinated with the department's plans and facilities.
  3. The department shall develop systematic techniques for considering those factors to be used in developing comprehensive plans pursuant to subsection (b) of this Code section so that all transportation facilities are so planned that they will function as integral parts of the overall plan for community, regional, and state development as portrayed in the comprehensive plans; and these plans shall be updated at reasonable intervals so as to maintain a viable plan for a 20 year planning period.
    1. The department shall, pursuant to its rules and regulations, hold planning hearings at the appropriate state, regional, or local level, at which time the comprehensive transportation plans included in subsection (b) of this Code section shall be presented for discussion and comment.
    2. The department shall, pursuant to its rules and regulations, hold hearings at the appropriate regional or local level for major transportation facilities, or as required by federal law, as follows:
      1. A facility, site, or project corridor hearing, at a time after the selection of the type or types of transportation facility or facilities to be constructed and prior to the final selection of the specific site or corridor of the proposed facility; and
      2. A design hearing, at a time prior to the department's commitment to a specific design proposal for the facility or facilities.
    3. These public hearings shall be conducted so as to provide an opportunity for effective participation by interested persons in transportation policy decisions, the process of transportation planning, modal selections, and site and route selection, and the specific location and design of major transportation facilities. The various factors involved in the decision or decisions and any alternative proposals shall be clearly presented so that the persons attending the hearing may present their views relating to the decision or decisions which will be made. The facility, site, or project corridor hearing and the design hearing for a proposed facility or facilities may be held simultaneously to satisfy the requirements of this subsection.
      1. The department may satisfy the requirements for a public hearing by holding a public hearing or by publishing two notices of opportunity for public hearing in a newspaper having general circulation in the vicinity of the proposed undertaking and holding a public hearing if any written requests for such a hearing are received. The procedure for requesting a public hearing shall be explained in the notice. The deadline for submission of such a request may not be less than 21 days after the publication of the first notice of opportunity for public hearing and no less than 14 days after the date of publication of the second notice of opportunity for public hearing.
      2. A copy of the notice of opportunity for public hearing shall be furnished at the time of publication to the United States Department of Transportation, the appropriate departments of state government, and affected local governments and planning agencies. If no requests are received in response to a notice within the time specified for the submission of requests, the department shall be deemed to have met the hearing requirements.
      3. The opportunity for another public hearing shall be afforded in any case when proposed locations or designs are changed from those presented in the notices specified in this paragraph or at a public hearing so as to have a substantially different transportation service, social, economic, or environmental effect.
      4. The opportunity for a public hearing shall be afforded in each case in which the department is in doubt as to whether a public hearing is required.
      1. When a public hearing is to be held, two notices of such hearing shall be published in a newspaper having general circulation in the vicinity of the proposed undertaking. The first notice shall be published no less than 30 days prior to the date of the hearing and the second notice shall be published no less than five days prior to the date of the hearing.
      2. Copies of the notice for public hearing shall be mailed to the United States Department of Transportation, appropriate departments of state government, and affected local governments and planning agencies.
  4. All long-range comprehensive transportation plans developed pursuant to this Code section shall be submitted to the board for its approval or disapproval.
  5. The department shall promulgate any rules and regulations, consistent with its practices, that it deems necessary in order to implement this title.

(Ga. L. 1972, p. 1215, §§ 1-7; Code 1933, § 95A-205, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32; Ga. L. 1986, p. 796, § 1; Ga. L. 2001, p. 4, § 32.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1985, periods have been substituted for semicolons at the end of subparagraph (b)(1)(C) and paragraph (b)(2).

Pursuant to Code Section 28-9-5, in 1986, "shall" was substituted for "will" following "Code section" in paragraph (f)(1).

OPINIONS OF THE ATTORNEY GENERAL

Construed with Environmental Policy Act and § 27-3-132. - Factors enumerated in the Environmental Policy Act, O.C.G.A. § 12-16-1 et seq., must be considered when evaluating environmental concerns under O.C.G.A. § 32-2-3. The provisions of O.C.G.A. § 27-3-132 are not repealed by implication by the Georgia Environmental Policy Act. 1991 Op. Att'y Gen. No. 91-29.

RESEARCH REFERENCES

ALR.

- Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Right of private citizen to complain of re-routing of highway or removal or change of route or directional signs, 97 A.L.R. 192.

32-2-4. Information for traveling public.

In order to provide information in the specific interest of the traveling public, the department is authorized to maintain maps and to permit informational directories and advertising pamphlets to be made available at safety rest areas and to establish information centers at safety rest areas for the purpose of informing the public of places of interest within the state and providing such other information as may be considered desirable.

(Ga. L. 1967, p. 423, § 14; Code 1933, § 95A-933, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Camping at rest areas, § 32-6-6.

Installation and operation of vending machines in safety rest areas, § 32-6-116.

32-2-4.1. Gateway Center safety rest area and information center.

  1. Notwithstanding any other provision of law to the contrary, the department may acquire, construct, operate, and maintain a demonstration safety rest area and information center in Cobb County. For purposes of this Code section, the safety rest area and information center shall be known as the "Gateway Center," but the State Transportation Board may name or designate the center in its discretion. In addition to the powers provided in this Code section, cumulatively, the department shall have the same powers with respect to Gateway Center which the department otherwise enjoys with respect to safety rest areas, information centers, and welcome centers.
  2. The purpose of Gateway Center shall be to act as a "gateway" to all of Georgia. Toward that end it shall provide information, goods, and services which assist road travelers and tell them about Georgia. The center may have any facility and provide any service which furthers those purposes, including by way of illustration, but not limitation:
    1. Playground equipment;
    2. Recreation areas;
    3. Indoor and outdoor eating areas;
    4. Restaurant, snack bar, and other facilities for purveying food and beverage;
    5. Vending machines;
    6. Gift, novelty, and souvenir shops;
    7. Advertising;
    8. Information kiosks;
    9. Multimedia displays;
    10. Communication services, such as computer Internet connections;
    11. Parking; and
    12. Markets.

      The prices charged for any service or product shall approximate the prevailing rate within the area for similar items so as not to compete unfairly with private enterprise.

  3. The department may establish a business plan for self-sufficient operation of Gateway Center and may retain for its improvement, maintenance, and operation all miscellaneous funds generated by its operation. Funds not expended for this purpose in the fiscal year in which they are generated shall be deposited in the state treasury. Further, nothing in this Code section may be construed to allow the department to retain any funds required by the Constitution of Georgia to be paid into the state treasury. Except with respect to Code Section 45-12-92 concerning miscellaneous funds, the department must also comply with Part 1 of Article 4 of Chapter 12 of Title 45, the "Budget Act," in regard to the fiscal operation of the center.
  4. By competitive process or negotiation, in its discretion, the department may contract, rent, license, allow, delegate, or otherwise act to cause private persons, public instrumentalities, and entities and units of state and local government to conduct the activities of the center. The department may accept monetary payments in return for rights and privileges, and it may also accept in-kind consideration, which supports the purposes of this Code section. The agreements under this Code section may allow the second parties to produce and retain revenue and may have a term not exceeding 50 years, whether the party is public or private. However, in no event may the department abrogate its ultimate responsibility or convey the fee, an estate for years, or any other interest in the real property of Gateway Center for the purposes of this Code section.
  5. Gateway Center may be a "welcome center, tourist center, and safety rest area" for purposes of Code Section 49-9-42, and the preference given by Code Sections 49-9-41 and 49-9-42 shall apply to and affect Gateway Center.
  6. Gateway Center shall be a "safety rest area and welcome center" for purposes of Code Section 35-2-32, and the Uniform Division of the Department of Public Safety may have jurisdiction to patrol Gateway Center for the purposes stated in that Code section.
  7. The department may pay the costs of Gateway Center from any lawful fund source, if it can comply with requirements of the fund source and this Code section. Possible sources may include, without limitation, miscellaneous funds from operation, gift, appropriation, proceeds of general obligation debt, funds of cooperating local governments and authorities, and grants by the United States or any agency or instrumentality thereof.

(Code 1981, §32-2-4.1, enacted by Ga. L. 1998, p. 1675, § 1; Ga. L. 2000, p. 1153, § 6; Ga. L. 2012, p. 303, § 6/HB 1146.)

32-2-5. Actions by or against department.

  1. The department shall have the authority to bring actions; and it may be sued in such actions as are permitted by law. In addition, the department may adjust and make settlement of any and all claims presented to it under oath.
  2. All actions brought ex contractu by or against the department shall be brought in a county where any part of the work is to be or has been performed. All other actions by or against the department shall be brought in the county in which the cause of action arose. Service upon the department shall be sufficient by serving a second original process issued from the county where the action is filed upon the commissioner personally or by leaving a copy of the same in the office of the commissioner in the Department of Transportation Building, Atlanta, Georgia.

(Ga. L. 1919, p. 242, art. 6, § 3; Ga. L. 1925, p. 208, § 4; Code 1933, § 95-1505; Code 1933, § 95A-304, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 10.)

Law reviews.

- For article surveying contracts - legislation, see 34 Mercer L. Rev. 71 (1982). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims, pursuant to the Georgia Constitution, see 27 Emory L.J. 717 (1978).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- See Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 95-1701, 95-1709, 95-1710, and 95-1720, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Cited in Habersham County v. Cornwall, 38 Ga. App. 419, 144 S.E. 55 (1928); Counihan v. Department of Transp., 162 Ga. App. 374, 290 S.E.2d 514 (1982); Medical Ctr. Hosp. Auth. v. Andrews, 162 Ga. App. 687, 292 S.E.2d 197 (1982); Donaldson v. DOT, 262 Ga. 49, 414 S.E.2d 638 (1992); Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).

Actions Against Department

Section does not waive department's immunity.

- Only under certain limited and previously recognized circumstances may suits be maintained against the Department of Transportation; there was no intent by the General Assembly to waive immunity and permit suits for torts against the department. Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).

Department of Transportation of the State of Georgia may rely on the defense of sovereign immunity in suits seeking to recover damages for breach of contract. National Distrib. Co. v. Department of Transp., 248 Ga. 451, 283 S.E.2d 470 (1981).

There was no intent by the General Assembly in enacting subsection (a) of O.C.G.A. § 32-2-5 to waive immunity and permit suits for torts against the Department of Transportation. Huggins v. Georgia Dep't of Transp., 165 Ga. App. 178, 300 S.E.2d 195 (1983).

Suit is permissible in several situations.

- Suit can be maintained against the State Highway Department (now Department of Transportation) for breach of contract and for recovery of just compensation if private property is taken or damaged for public purposes. Andrews v. Department of Transp., 133 Ga. App. 78, 210 S.E.2d 30 (1974).

Sovereign immunity of the Department of Transportation is pierced by the constitutional right insofar as required by Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. Const. 1983, Art. I, Sec. III, Para. I); but no support exists for the argument that a waiver of sovereign immunity exists for an ex contractu action against the Department of Transportation which is not predicated upon Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. Const. 1983, Art. I, Sec. III, Para. I). National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).

Personal service by authorized person required.

- Language in O.C.G.A. § 32-2-5 authorizing service "by leaving a copy [of process] in the office of the commissioner" contemplates that service may be accomplished by personally serving a person in the Department of Transportation building who is authorized or otherwise qualified to receive service; such service must be made by an authorized person, and employing a private delivery service to deliver a package containing the summons and complaint failed to accomplish the required personal service. DOT v. Marks, 219 Ga. App. 738, 466 S.E.2d 273 (1995).

Effect of motor vehicle liability insurance.

- Department of Transportation, as a state agency, does not come within the ambit of O.C.G.A. § 33-24-51(b), which provides for waiver of governmental immunity to the extent of the amount of motor vehicle liability insurance purchased by "a municipal corporation, a county, or any other political subdivision of this state . . .." Huggins v. Georgia Dep't of Transp., 165 Ga. App. 178, 300 S.E.2d 195 (1983).

Not all actions ex contractu are authorized.

- Fact that an action ex contractu is a correct procedural form by which to assert a constitutionally authorized action against the Department of Transportation does not permit an inference that all actions ex contractu are thus authorized. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).

Who may sue and be sued in permitted actions.

- Department of Transportation, consisting of the State Transportation Board, the commissioner of transportation, the deputy commissioner of transportation, the state highway engineer, the treasurer and the assistant treasurer of transportation, and such subordinate employees as may be deemed necessary by the commissioner, may sue and be sued in such actions as are permitted by law. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).

State department as joint tortfeasor.

- State department or agency can be considered a joint tortfeasor with other resident defendants for venue purposes. Gault v. National Union Fire Ins. Co., 208 Ga. App. 134, 430 S.E.2d 63 (1993).

Venue against an employee of the DOT may be had in a county only if the employee is an alleged joint tortfeasor with a defendant resident in that county. Gault v. National Union Fire Ins. Co., 208 Ga. App. 134, 430 S.E.2d 63 (1993).

Section is venue statute only.

- An action wherein grantors sought to recover against the Department of Transportation for alleged breach of conditions contained in an agreement delineated a "Soil Easement" could not be maintained under the authority of O.C.G.A. § 32-2-5 which is a venue statute only. National Distrib. Co. v. Department of Transp., 157 Ga. App. 789, 278 S.E.2d 648, aff'd, 248 Ga. 451, 283 S.E.2d 470 (1981).

Special venue statutes cumulative of other venue statutes.

- It appears that there is no authority that special venue statutes are exclusive and the inference in the cases is that the special venue statutes are cumulative of other venue statutes. Jahncke Serv., Inc. v. Department of Transp., 134 Ga. App. 106, 213 S.E.2d 150 (1975).

Venue of action against department and joint tortfeasor.

- In an action by a landowner against the Department of Transportation (DOT) and a corporation for abatement of a nuisance, the county in which the cause of action against DOT arose was the residence of DOT for purposes of the action; this allowed the corporation, as a resident joint tortfeasor, to be joined, even though the corporation resided in a separate county. C.W. Matthews Contracting Co. v. Barnett, 219 Ga. App. 763, 466 S.E.2d 657 (1996).

State's Capacity to Sue

Authority to sue.

- State has complete power over the state's internal highway system, including bridges, and in the state's corporate capacity as sovereign may sue for any injury or interference with the state's highway system. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).

Legislative intent to let Department of Transportation protect state's interests.

- General Assembly intended to confer upon the State Highway Department (now Department of Transportation), as one of the state's public agencies, not only the duty of constructing, maintaining, and repairing the highways and bridges of the state-aid system of roads, but also to confer on the Highway Department (now Department of Transportation) the right to protect the state's interest in matters growing out of the maintenance of the state's state-aid system of roads. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).

Legislative intent illustrated by giving Department of Transportation right to sue.

- State has delegated the right to sue to the State Highway Department (now Department of Transportation), which is financially responsible for the state-aid road system. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).

Department as bailee for damaged bridge.

- State Highway Department (now Department of Transportation) was holding a bridge, as part of the state-aid system of roads under the department's jurisdiction, in trust for the use of the public and with the duty to replace the bridge; and, in this capacity considered as a bailee, the department may bring an action for the allegedly negligent destruction of the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).

Use of damages to restore destroyed bridge.

- Logical disposition of any money recovered in an action for the destruction of a bridge on a public highway which is to continue in use would be to use the money for the purpose of restoring the destroyed bridge, or where the bridge has already been rebuilt, to use the money to replace, as nearly as possible, those funds which the Highway Department (now Department of Transportation) expended in restoring the bridge. State Hwy. Dep't v. Florence, 73 Ga. App. 852, 38 S.E.2d 628 (1946) (decided under former Code 1933, §§ 95-1701, 95-1709, 95-1720).

State's Liability to Suit

Effect of department's acts.

- Acts of Department of Transportation are the acts of the State of Georgia and the state performs a governmental function when the state constructs and maintains highways through the Department of Transportation. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

Extent of Department's powers.

- State Highway Department (now Department of Transportation) has no power and no function except those expressly authorized by the state. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

Department not suable without state consent.

- Department of Transportation is a part of the sovereign state, an agent or servant of the state, and the department cannot be sued without the express consent of the sovereign. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

State consent given only in limited situations.

- Department of Transportation is authorized by the state to sue and to be sued, but the power to sue and to be sued in the case of the department is only for special purposes. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

Situations in which county originally liable.

- This section refers to claims for damages against a county which must have originated under laws existing when the highway is taken over as a state-aid road by the State Highway Department (now Department of Transportation), and when the department "ultimately may be liable," not primarily liable. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285, answer conformed to, 50 Ga. App. 520, 179 S.E. 167 (1935) (decided under former Code 1933, § 95-1710).

No consent for suits for personal injuries.

- Right to "make settlement of all claims presented to it under oath," certainly does not include the right to sue the State Highway Department (now Department of Transportation) for damages for personal injuries due to negligence of the department's engineers, but refers to such matters as are expressly provided in statute. Tounsel v. State Hwy. Dep't, 180 Ga. 112, 178 S.E. 285, answer conformed to, 50 Ga. App. 520, 179 S.E. 167 (1935) (decided under former Code 1933, § 95-1710).

Consent for suits for personal injuries given where employee sues for workers' compensation.

- An employee of the Department of Transportation has a right to bring an action directly against the department under the workers' compensation law for compensation for an injury arising out of and during the course of employment by the department. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former law are included in the annotations of this Code section.

Necessity for retaining highway project file for 20-year period.

- It is necessary to retain an entire highway project file for a 20-year period; retaining the release, final voucher, and contract for this period will not adequately protect the state's interest in compliance with state law because highway construction contracts are sealed contracts and are therefore subject to a 20-year statute of limitations. 1973 Op. Att'y Gen. No. 73-89 (decided under former law).

RESEARCH REFERENCES

ALR.

- Right of private citizen to complain of re-routing of highway or removal or change of route or directional signs, 97 A.L.R. 192.

Liability and suability, in negligence action, of state highway, toll road, or turnpike authority, 62 A.L.R.2d 1222.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.

32-2-6. Liability of department for actions against counties; procedure to institute actions.

  1. The department shall defend any action and be responsible for all damages awarded therein in any court of this state against any county under existing laws whenever the cause of action accrues on a public road which at the time of accrual had been designated by the department as a part of the state highway system; provided, however, that no action may be brought under this Code section until the construction of the public road on which the injury complained of occurred has been completed and such public road has been officially opened to traffic as provided in subsection (b) of this Code section. When any such action is brought against a county in any court of this state, it shall be the duty of the plaintiff to provide for service of notice of the pendency of such action against the county upon the department by providing for service of a second original process, issued from the court where the action is filed, upon the commissioner personally or by leaving a copy of the same in the office of the commissioner in the Department of Transportation Building, Atlanta, Georgia. The service of process in such action upon the county shall not be perfected until such second original process has been served as provided in this Code section. The department shall also have the right and authority to defend, adjust, and settle in the name of such county and on its behalf any claim for damages for which the department ultimately may be liable under this Code section.
  2. A public road shall be officially opened to traffic within the meaning of this Code section on the date that the department gives written notice of final acceptance of such work to the contractor or political subdivision performing the work on such road or otherwise in writing acts so as to open the road to traffic by the general public.

(Code 1933, § 95A-305, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, §§ 95-1505, 95-1710, and 95-1712, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

County's immunity from liability not waived.

- This section specifically limits responsibility to those damages awarded against any county "under existing laws" and is not a waiver of the county's immunity from liability. Williams v. Georgia Power Co., 233 Ga. 517, 212 S.E.2d 348 (1975).

No sovereign immunity from inverse condemnation action.

- O.C.G.A. § 32-2-6 applies only to actions when sovereign immunity exists and must be statutorily waived. No sovereign immunity exists when a cause of action for inverse condemnation lies because the Constitution itself affords the right. Powell v. Ledbetter Bros., 251 Ga. 649, 307 S.E.2d 663 (1983), overruled in part on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 398 S.E.2d 191 (1990).

Cited in Evans County v. McDonald, 133 Ga. App. 955, 213 S.E.2d 82 (1975); Counihan v. Department of Transp., 162 Ga. App. 374, 290 S.E.2d 514 (1982).

Joint State-County Suits

County need not be plaintiff in suit by board.

- When the State Highway Board (now State Transportation Board) brings an action for declaratory judgment there is no statute which requires that the county where the subject matter of the suit is located be named a party plaintiff in the case. Woodside v. State Hwy. Dep't, 216 Ga. 254, 115 S.E.2d 560 (1960) (decided under former Code 1933, § 95-1710).

County could "vouch" in the Department of Transportation in an action brought against the county for personal injuries and wrongful death arising out of a collision at a highway intersection. DOT v. Land, 181 Ga. App. 94, 351 S.E.2d 470 (1986), aff'd except as to that part of the opinion affirming the trial court's dismissal of the Department of Transportation as a named party, 257 Ga. 657, 362 S.E.2d 372 (1987), and vacated insofar as it is inconsistent, 185 Ga. App. 630, 366 S.E.2d 242 (1988).

County not proper party when suit lies against Department of Transportation.

- O.C.G.A. § 32-2-6 does not make the county in which roads and bridges are located a proper and necessary party by operation of law when suit lies against the Department of Transportation. The section requires suit be brought against the county and the Department of Transportation shall defend, not vice versa. Powell v. Ledbetter Bros., 251 Ga. 649, 307 S.E.2d 663 (1983), overruled in part on other grounds, David Allen Co. v. Benton, 260 Ga. 557, 398 S.E.2d 191 (1990).

State Liability

Department defends suits originating on state highways.

- State Highway Department (now Department of Transportation) shall defend all suits and be responsible for all damages awarded against any county whenever the cause of action originates on highways, jurisdiction over which has been assumed by the department under the terms of the law. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1710).

Department defends suits after highway has been opened.

- Language of this section is confined to suits brought against the county for causes of action originating on highways, placing ultimate liability upon the Department of Transportation which is to be made a defendant in such actions, and prohibiting the bringing of such actions until the highway is opened to traffic by the department. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).

Department defends suits even when plaintiff sold land before highway opened.

- While the authority of the property owner to institute a suit against a county for damages to property arising from construction of a state-aid road by the Highway Department (now Department of Transportation) is restricted until the state-aid road involved is completed and opened to traffic; the fact that the property owner has divested oneself of title to the property allegedly damaged before the state-aid road involved had been formally opened to traffic and the cause of action had thereby accrued does not defeat the owner's cause of action. Dougherty County v. Pylant, 104 Ga. App. 468, 122 S.E.2d 117 (1961) (decided under former Code 1933, § 95-1712).

Department as defendant in claim against its insured employees.

- When a claim is covered to the extent of insurance provided to employees of the Department of Transportation (DOT), and the employees are named as defendants in the complaint, it is proper to name DOT as a party defendant, even though DOT carries no liability insurance as to such actions. DOT v. Land, 257 Ga. 657, 362 S.E.2d 372 (1987).

Limits on State Liability

Department's acts are acts of the State of Georgia, and the state, in the construction and maintenance of highways through the Department of Transportation, performs a governmental function. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).

Department cannot be sued without state consent.

- Department of Transportation is a part of the sovereign state, an agent or servant of the state, and the department cannot be sued without the express consent of the sovereign. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).

Department may sue or be sued for only limited purposes.

- Highway Department (now Department of Transportation) has no powers and no functions except those expressly authorized by the state; although the Department of Transportation is authorized by the state to sue and to be sued, the power to sue and to be sued in the case of the department is only for special purposes. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).

Negligent severance of building and negligent relocation of trunk sewer.

- State Highway Department (now Department of Transportation) may be sued for the negligent severance of a building and the negligent relocation of a trunk sewer for the purpose of clearing a right of way for the construction of a state-aid road, which is sufficient to show a cause of action which originates on a highway. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).

Remedies for damages off highway not actions against department.

- Procedure for bringing an action against the Department of Transportation is inapplicable to a case where the injury does not originate on a highway; if there has been an independent taking of private property for public use, the injured party is relegated either to the remedy of injunction or mandamus, when such a remedy is appropriate, or else to an action at law. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

Exception for employee suing department for workers' compensation.

- Employee of the Department of Transportation may bring an action directly against the department under the Workers' Compensation Act for an injury arising out of and during the course of employment; this is the sole exception under which the legislature has granted authority for the department to be sued other than the method provided for in statute. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, §§ 95-1505, 95-1710).

County Liability

No waiver of immunity.

- County was not liable because the county had no liability insurance and thus retained the county's sovereign immunity; under O.C.G.A. § 32-2-6, there was nothing which the DOT must have defended or for which DOT must have been responsible for on behalf of the county. DOT v. Price, 208 Ga. App. 320, 430 S.E.2d 602 (1993).

Department of Transportation's waiver of DOT's own immunity by the purchase of liability insurance for employees could not have created a "total" or "partial waiver" of the county's immunity. DOT v. Price, 208 Ga. App. 320, 430 S.E.2d 602 (1993).

No liability for county.

- When there is no liability for the county, the mechanism for holding the DOT responsible for damages under O.C.G.A. § 32-2-6 does not create such liability. Christian v. Monroe County, 203 Ga. App. 342, 417 S.E.2d 37 (1992).

Damage off highway.

- When the department takes rock from land not on a highway, and uses the rock in the construction of a road, the owner's cause of action does not originate on a highway, and the owner's remedy is an action against the board in the county of the residence of a member at the time the suit is brought. State Hwy. Dep't v. Parker, 75 Ga. App. 237, 43 S.E.2d 172 (1947) (decided under former Code 1933, § 95-1710).

Liability of Other Parties

Section not applicable to other defendants.

- Provisions of this section do not include common-law tort actions against parties other than a county and the Department of Transportation simply because the alleged negligent act "originated on a highway." Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).

Actions against contractors.

- Proceeding against a private contractor although based upon a cause of action "originating on a highway" could be maintained without adherence to the provisions of this section. Fulton County v. Woodside, 223 Ga. 316, 155 S.E.2d 404 (1967) (decided under former Code 1933, §§ 95-1710, 95-1712).

Section on necessary parties not applicable to declaratory judgments.

- When the suit was for a declaratory judgment and was not brought under former Code 1933, § 95-1710, a provision of that statute relating to necessary parties was inapplicable to the case made by the petition. Woodside v. State Hwy. Dep't, 216 Ga. 254, 115 S.E.2d 560 (1960) (decided under former Code 1933, § 95-1710).

RESEARCH REFERENCES

ALR.

- Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

32-2-7. Compensation for employees injured in line of duty.

  1. As used in this Code section, the term "external violence, accident, or injury" means any act of violence, an accident, or an injury that is caused by a person other than:
    1. One who is an employee of the department; or
    2. One who is an employee of a contractor or subcontractor performing duties under a contract with the department.
  2. Any employee of the department who, on or after July 1, 1987, is injured in the line of duty by an act of external violence, accident, or injury shall be entitled to receive compensation as provided in this Code section. Going to and from work shall not be considered in the line of duty. For the purposes of this Code section, "line of duty" means working in the proximity of traffic movements or equipment movements doing maintenance, construction, or other activities which may be construed as hazardous.
  3. An employee injured in the line of duty as provided in subsection (b) of this Code section shall continue to receive his regular compensation for the period of time that the employee is physically unable to perform the duties of his employment; provided, however, that such benefits provided in this Code section shall not be granted for injuries resulting from a single incident for more than a total of 180 working days. An employee shall be required to submit to his department head satisfactory evidence of such disability.
  4. Benefits made available under this Code section shall be subordinate to any workers' compensation benefits for which the employee is eligible and shall be limited to the difference between the amount of available workers' compensation benefits and the amount of the employee's regular compensation.

(Code 1981, §32-2-7, enacted by Ga. L. 1987, p. 390, § 1.)

32-2-8. Department to fly POW-MIA flag at interstate rest areas.

The Department of Transportation shall fly the POW-MIA flag year-round at each of the rest areas along interstate highways in this state. The department is authorized to place a plaque at each rest area to indicate Georgia's appreciation of the sacrifices of prisoners of war and those missing in action and their families.

(Code 1981, §32-2-8, enacted by Ga. L. 2001, p. 485, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "year-round" was substituted for "year round" in the first sentence.

ARTICLE 2 STATE TRANSPORTATION BOARD

Editor's notes.

- Ga. L. 2001, p. 1215, § 2, not codified by the General Assembly, provides that: "No state agency shall name or rename any state road, bridge, interchange, or any part of a road in honor of, or with the name of, any person unless such action is approved by a joint resolution or Act of the General Assembly which is approved by the Governor or becomes law without such approval. This Code section shall not apply to a political subdivision of the state naming any road which is under the jurisdiction of such political subdivision."

Ga. L. 2006, p. 72, § 32A/SB 465, not codified by the General Assembly, provided for the repeal of Ga. L. 2001, p. 1215, § 2, which section has been codified as and superceded by Code Section 32-4-3, relating to naming state roads, bridges, or interchanges, and which Code section shall remain effective.

32-2-20. Composition of board; qualifications of members; terms of office; selection of members; filling of vacancies; officers; meetings; compensation.

  1. The State Transportation Board shall be composed of one member to be chosen from each congressional district of the state in the manner provided in subsection (b) of this Code section. Each member of the board shall be a resident of the congressional district which he or she represents. In the event any person who is an officer, agent, official, or employee of the state or of any county, municipality, or other political subdivision thereof or who is a member of the General Assembly is appointed or elected as a member of the board, such person must resign as such officer, agent, official, employee, or member prior to taking office as a member of the board.
  2. Each member shall be elected to serve for a term of five years and until his or her successor is duly elected and certified. The member of the board from each congressional district shall be elected by a majority vote of the members of the House of Representatives and Senate whose respective districts are embraced or partly embraced within such congressional district, meeting in caucus at the regular session of the General Assembly immediately preceding the expiration of the term of office of each such board member. Said caucus shall be called at the state capitol by the Speaker of the House of Representatives and the President of the Senate within the first ten days of the convening of the General Assembly in regular session by mailing to the members of the General Assembly who are affected written notice at least four days before the caucus, which notice shall state the time, place, and purpose of said caucus. Within 15 days after each such election, the Speaker of the House and the President of the Senate shall jointly transmit a certificate of such election to the Secretary of State who, upon receipt thereof, shall immediately issue his or her commission thereon, with the great seal of the state affixed thereto. Any member of the board shall be subject to recall at any time by a majority vote of the legislative caucus that elected the member.
  3. In the event that any vacancy for any cause shall occur in the membership of the board during any regular session of the General Assembly, the remainder of the unexpired term shall be filled by a member elected by a majority vote of those members of the General Assembly whose respective districts are embraced or partly embraced within the congressional district where the vacancy occurred, in the same manner as provided in subsection (b) of this Code section for the election of board members. In the event that any vacancy for any cause shall occur in the membership of the board while the General Assembly is not in session, the remainder of the unexpired term shall be filled by a member elected by a majority vote of those members of the General Assembly whose respective districts are embraced or partly embraced within the congressional district where the vacancy occurred, at a meeting which shall be called by the Speaker of the House of Representatives and the President of the Senate at some convenient location and in the manner provided in subsection (b) of this Code section for the election of board members.
  4. The board shall, by majority vote of those members present and voting at regular sessions, elect from their number a chairman and vice-chairman who shall serve at the pleasure of the board. In like manner, the board shall also elect a secretary, who need not necessarily be a member of the board, and who shall also serve at the pleasure of the board.
  5. The board shall meet in regular session at least one day each month, at least nine of which regular sessions are to be held at the headquarters of the Department of Transportation in Atlanta, and at such other special meetings as may be called by the commissioner, by the chairman, or by a majority of the members of the board upon reasonable written notice to all members of the board. Further, the chairman of the board or the commissioner is authorized from time to time to call meetings of committees of the board which are established by board policy; and to require the attendance of a member or members of the board at places inside or outside the state when, in the opinion of the chairman or the commissioner, the member or members of the board are needed to attend properly to the department's business. A majority of the board shall constitute a quorum for the transaction of all business including election or removal of the commissioner. Except as otherwise provided in this title, any power of the board may be exercised by a majority vote of those members present at any meeting at which there is a quorum.
  6. The members of the board shall receive no salary but shall receive for each day of actual attendance at meetings of the board and the committee meetings the per diem and transportation costs prescribed in Code Section 45-7-21. A like sum shall be paid for each day actually spent in studying the transportation needs of the state or attending other functions as a representative of the board, not to exceed 60 days in any calendar year. No per diem shall be paid for meetings of the board conducted by conference call. In addition, they shall receive actual transportation costs while traveling by public carrier or the legal mileage rate for the use of a personal automobile in connection with such attendance and road study. Such per diem and expense shall be paid from funds appropriated to the department upon presentation, by members of the board, of vouchers approved by the chairperson and signed by the secretary.

(Ga. L. 1919, p. 242, art. 3, § 2; Ga. L. 1921, p. 199, §§ 6, 7; Code 1933, §§ 95-1601, 95-1602, 95-1603, 95-1605; Ga. L. 1950, p. 62, § 4; Ga. L. 1951, p. 31, § 1; Ga. L. 1958, p. 624, § 1; Ga. L. 1963, p. 3, § 1; Ga. L. 1963, p. 282, § 1; Ga. L. 1967, p. 151, § 1; Ga. L. 1968, p. 1055, § 1; Code 1933, § 95A-306, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 11; Ga. L. 1975, p. 833, § 1; Ga. L. 1990, p. 296, § 1; Ga. L. 1995, p. 1041, § 1; Ga. L. 1996, p. 6, § 32; Ga. L. 2009, p. 976, § 2/SB 200; Ga. L. 2010, p. 818, § 1/SB 520; Ga. L. 2011, p. 752, § 32/HB 142.)

Cross references.

- State Transportation Board, Ga. Const. 1983, Art. IV, Sec. IV.

Legal mileage rate, § 50-19-7.

JUDICIAL DECISIONS

No action for unlawful appropriation.

- Without constitutional or statutory authorization, no action lies directly and primarily against the State Highway Board (now State Transportation Board) for unlawful appropriation of private property for road construction purposes. Edmonds v. State Hwy. Bd., 37 Ga. App. 812, 142 S.E. 214 (1928).

OPINIONS OF THE ATTORNEY GENERAL

Section 21-2-4.1 applicable to State Transportation Board.

- O.C.G.A. § 21-2-4.1 applies to whatever appointments must be made to the State Transportation Board as a result of congressional redistricting. 1992 Op. Att'y Gen. No. 92-9.

Lapse of appropriations that become deobligated.

- Appropriated state funds which become deobligated during a subsequent fiscal year are subject to lapse and may not be applied to contracts for which motor fuel tax appropriations were previously committed. 1993 Op. Att'y Gen. No. 93-9.

Expenses for attendance at out-of-state meetings.

- Members of the State Transportation Board of Georgia are entitled to receive, as the daily expense allowance allocated to the members by O.C.G.A. § 45-7-21, their actual expenses for attendance at board and committee meetings which are held out-of-state. 1994 Op. Att'y Gen. No. 94-24.

RESEARCH REFERENCES

C.J.S.

- 39A C.J.S., Highways, § 219 et seq.

32-2-21. Powers and duties of board generally.

The board shall be charged with the general control and supervision of the department. In the exercise of such general control and supervision, the board shall have such duties, powers, and authority as are expressly vested in it by this title, including but not limited to:

  1. Designation of public roads on the state highway system;
  2. Approval of negotiated construction contracts, of authority lease agreements, or of the advertising of nonnegotiated construction contracts; and
  3. Approval of all long-range plans and programs of the department.

(Ga. L. 1925, p. 208, § 3; Code 1933, § 95-1606; Ga. L. 1950, p. 62, § 6; Code 1933, § 95A-307, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1994, p. 591, § 2; Ga. L. 2009, p. 976, § 3/SB 200.)

Cross references.

- State Transportation Board, Ga. Const. 1983, Art. IV, Sec. IV.

JUDICIAL DECISIONS

Voluntary dismissal of claims with prejudice was not a contract and, thus, O.C.G.A. §§ 23-2-20 and32-2-21 did not apply to authorize setting aside of the dismissal. Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 504 S.E.2d 710 (1998).

Cited in Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Lapse of appropriations that become deobligated.

- Appropriated state funds which become deobligated during a subsequent fiscal year are subject to lapse and may not be applied to contracts for which motor fuel tax appropriations were previously committed. 1993 Op. Att'y Gen. No. 93-9.

32-2-22. Definitions; responsibilities of director and Planning Division; approval of program and plan.

  1. As used in this chapter and in Article 2 of Chapter 5 of this title, the term:
    1. "Director" means the director of planning provided for by Code Section 32-2-43.
    2. "Division" means the Planning Division of the department provided for by paragraph (4) of subsection (b) of Code Section 32-2-41.
    3. "Metropolitan planning organization" means the forum for cooperative transportation decision making for a metropolitan planning area.
    4. "Metropolitan transportation plan" means the official intermodal transportation plan that is developed and adopted through the metropolitan transportation planning process for a metropolitan planning area.
    5. "Nonmetropolitan area" means a geographic area outside the designated metropolitan planning areas.
    6. "State-wide strategic transportation plan" means the official, intermodal, comprehensive, fiscally constrained transportation plan which includes projects, programs, and other activities to support implementation of the state's strategic transportation goals and policies. This plan and the process for developing the plan shall comply with 23 C.F.R. Section 450.104.
    7. "State-wide transportation improvement program" means a state-wide prioritized listing of transportation projects covering a period of four years that is consistent with the state-wide strategic transportation plan, metropolitan transportation plans, and transportation improvement programs and required for multi-modal projects to be eligible for funding under Title 23 U.S.C. and Title 49 U.S.C. Chapter 53.
    8. "Transportation improvement program" means a prioritized listing of transportation projects covering a period of four years that is developed and formally adopted by a metropolitan planning organization as part of the metropolitan transportation planning process, consistent with the metropolitan transportation plan, and required for projects to be eligible for funding under Title 23 U.S.C. and Title 49 U.S.C. Chapter 53.
  2. The director and the division shall:
    1. Review and make recommendations to the Governor concerning all proposed regional land transportation plans and transportation improvement programs and negotiate with the propounder of the plans concerning changes or amendments which may be recommended by the department or the Governor, consistent with applicable federal law and regulation;
    2. Review any transportation projects proposed by the department and adopt, remove, or otherwise include such projects as all or a portion of department plans, consistent with applicable federal law and regulation;
    3. Develop the state-wide strategic transportation plan and the state-wide transportation improvement program and support the various transportation improvement programs;
    4. Develop an annual capital construction project list to be reviewed by the Governor and submitted to the General Assembly for consideration in the budget;
    5. Promulgate rules and regulations necessary to carry out its duties under the provisions of this title. The division shall report the content of such rules or regulations to the Transportation Committees of the Senate and House of Representatives for their approval by majority vote prior to the promulgation thereof; and
    6. Do all things necessary or convenient to carry out the powers expressly given in this Code section.
  3. After review and approval by the Governor, the state transportation improvement program and the state-wide strategic transportation plan shall be submitted to the State Transportation Board for approval.

(Code 1981, §32-2-22, enacted by Ga. L. 2009, p. 976, § 4/SB 200.)

ARTICLE 3 OFFICERS

32-2-40. Selection of commissioner of transportation; term; vacancy; bond; other elective office.

  1. The commissioner of transportation shall be the chief executive officer of the department.
  2. The commissioner, his successor, and each succeeding commissioner thereafter shall be selected by a vote of the majority of the total number of members of the board. At the time of said vote, the board shall stipulate the term the commissioner shall serve, and said commissioner shall serve during the stipulated term and until his successor is selected by the board and duly qualified. The board shall stipulate one of the following to be the term of the commissioner:
    1. The commissioner shall serve at the pleasure of the board; or
    2. The commissioner shall serve any term specified by the board up to and including a maximum of four years; however, the board shall not specify a term of office that extends beyond the end of the term of the Governor in office at the time the commissioner's term is scheduled to begin.
  3. If the board stipulates that the commissioner shall serve under the provisions of paragraph (2) of this subsection, upon a vote of the majority of the total members of the board, the commissioner shall be subject to removal by the board for just cause after reasonable notice, copy of charge, hearing, and opportunity for presentation of evidence. In the event of a vacancy in the office of the commissioner by reason of resignation, removal, death, or permanent incapacity and inability to perform the duties of the office, the deputy commissioner shall become acting commissioner to serve until such time as the board at any regular or called meeting selects a new commissioner to fill the unexpired term of office created by such vacancy.
  4. The commissioner shall qualify, upon selection, by executing a bond in the amount of $100,000.00 with a corporate surety licensed to do business in this state and payable to the Governor and his successors in office, such bond to be approved by the Governor and conditioned on the faithful discharge of his duties as commissioner. The premium of such bond shall be paid from funds of the department.
  5. The commissioner shall devote full time and attention to the duties and responsibilities of his office. No person who serves as commissioner shall be eligible, except as hereinafter provided in this subsection, to qualify as a candidate in any primary, special, or general election for any state or federal elective office nor to hold any such office, except as hereinafter provided in this subsection, during the time he serves as commissioner and for a period of 12 months after the date he ceases to serve as commissioner. However, nothing contained in this subsection shall prevent the commissioner from being appointed to any other office nor disqualify him from running in any election to succeed himself in any office to which he was appointed nor to hold such office in the event he is elected thereto and otherwise qualified therefor; provided, however, that the commissioner shall resign as commissioner of transportation before accepting any such appointive office.

(Code 1933, § 95A-308, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1983, p. 400, § 1.)

Cross references.

- Official bonds generally, T. 45, C. 4.

JUDICIAL DECISIONS

Cited in State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016).

32-2-41. Powers, duties, and authority of commissioner; establishment of divisions.

  1. As the chief executive officer of the department, the commissioner shall have direct and full control of the department. He or she shall possess, exercise, and perform all the duties, powers, and authority which may be vested in the department by law, except those duties, powers, and authority which are expressly reserved by law to the board or the director of planning. The commissioner's principal responsibility shall be the faithful implementation of transportation plans produced by the director of planning and approved by the Governor and the State Transportation Board, subject to the terms of such appropriations Acts as may be adopted from time to time. The commissioner shall also be responsible for the duties and activities assigned to the commissioner in Article 5 of Chapter 8 of Title 48. When the board is not in regular or called session, the commissioner shall perform, exercise, and possess all duties, powers, and authority of the board except:
    1. Approval of the advertising of nonnegotiated construction contracts; and
    2. Approval of authority lease agreements.

      The commissioner shall also have the authority to exercise the power of eminent domain and to execute all contracts, authority lease agreements, and all other functions except those that cannot legally be delegated to him or her by the board.

    1. The commissioner shall have the authority to employ, discharge, promote, supervise, and determine the compensation of such personnel as he or she may deem necessary or useful to the effective operation and administration of the department except that the commissioner shall not employ a person who is related within the second degree of consanguinity to the commissioner or any member of the board, provided that such prohibition shall not be applied so as to terminate the employment of persons employed before said prohibited relationship was created by the subsequent election of a board member or appointment of a commissioner.
    2. Notwithstanding the provisions of subsection (b) of Code Section 32-6-29, the commissioner shall have the authority to appoint and employ five nonuniformed investigators who shall be certified peace officers pursuant to the provisions of Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act." The investigators shall have full arrest powers in cases involving internal affairs of the department and in cases involving obstruction of, encroaching on, or injury to public roads or rights of way. In such cases, the investigators shall be authorized:
      1. To investigate Department of Transportation related crimes committed anywhere in the state;
      2. To arrest any person violating the criminal laws of this state;
      3. To serve and execute warrants after notifying the law enforcement agency of the local jurisdiction of the intent to serve such warrant or warrants;
      4. To enforce in general the criminal laws of this state;
      5. To issue citations for civil damage to any person found to be violating the laws, rules, and regulations pertaining to vegetation management; and
      6. To carry firearms while performing their duties but only if such investigators have been certified by the Georgia Peace Officer Standards and Training Council as having successfully completed the course of training required by Chapter 8 of Title 35, the "Georgia Peace Officer Standards and Training Act."
    3. The power granted to the commissioner in paragraph (1) of this subsection shall be subject to and limited by Article 1 of Chapter 20 of Title 45 establishing a merit system for department employees, to the extent that the same or any amendments thereto are now or may be hereafter applicable to department personnel.
    4. There shall be a Planning Division of the department, directed and staffed by the director of planning, which shall be the department's principal unit for developing the state transportation improvement program and the state-wide strategic transportation plan and coordinating transportation policies, planning, and programs related to design, construction, maintenance, operations, and financing of transportation, under the supervision of the director. The division and the director shall not have jurisdiction over the funds allocated for the local maintenance and improvement grant program pursuant to subsection (d) of Code Section 32-5-27 except as expressly provided by said subsection.
    5. There shall be an Engineering Division of the department to be supervised by the chief engineer, a Finance Division of the department to be supervised by the treasurer, an Administration Division of the department to be supervised by the deputy commissioner, an Intermodal Division to be supervised by an appointee serving at the pleasure of the commissioner, and a Local Grants Division to be supervised by an appointee serving at the pleasure of the commissioner. The duties, responsibilities, and personnel of each such division shall be as established by the commissioner.
    6. The commissioner may establish a Construction Division, an Operations and Maintenance Division, a Permitting Division, and a Public-Private Initiatives Division of the department. The commissioner shall assign to such divisions, except as otherwise provided by law, such personnel and such duties and responsibilities as may be necessary and appropriate for the proper functioning of the department.

(Code 1933, § 95A-309, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 12; Ga. L. 1994, p. 591, § 3; Ga. L. 2004, p. 898, § 1; Ga. L. 2009, p. 976, § 5/SB 200; Ga. L. 2010, p. 396, § .1/SB 305; Ga. L. 2010, p. 778, § 1.1/HB 277; Ga. L. 2010, p. 818, § 2/SB 520.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1991, "authority lease agreements" was substituted for "authority-lease agreements" in paragraph (a)(2) and in the undesignated language at the end of subsection (a).

Editor's notes.

- Ga. L. 2010, p. 778, § 1/HB 277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Investment Act of 2010.'"

Law reviews.

- For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010).

JUDICIAL DECISIONS

Regulation of outdoor advertising.

- Since former paragraph (a)(4) of O.C.G.A. § 32-2-41 expressly forbade the commissioner from exercising the board's power concerning the approval of "long-range plans and programs of the department," and the adoption, amendment, or repeal of departmental rules and regulations concerning outdoor advertising in Georgia was a long-range program, the commissioner was not empowered to adopt proposed amendments to such rules and regulations sua sponte. Outdoor Adv. Ass'n v. DOT, 186 Ga. App. 550, 367 S.E.2d 827, cert. denied, 186 Ga. App. 918, 367 S.E.2d 827 (1988).

32-2-41.1. Progress report and State-wide strategic transportation plan.

  1. On or before October 15, 2009, the director shall prepare a report for the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the Senate Transportation Committee and the House Committee on Transportation, respectively, detailing the progress the division has made on preparing a State-wide Strategic Transportation Plan. The director shall deliver a draft of the plan for comments and suggestions by members of the General Assembly and the Governor on or before December 31, 2009. Comments and suggestions by the House and Senate Transportation Committees of the General Assembly and the Governor shall be submitted to the director no later than February 15, 2010. This plan shall include a list of projects realistically expected to begin construction within the next four years, the cost of such projects, and the source of funds for such projects. The plan shall be developed with consideration of investment policies addressing:
    1. Growth in private-sector employment, development of work force, and improved access to jobs;
    2. Reduction in traffic congestion;
    3. Improved efficiency and reliability of commutes in major metropolitan areas;
    4. Efficiency of freight, cargo, and goods movement;
    5. Coordination of transportation investment with development patterns in major metropolitan areas;
    6. Market driven travel demand management;
    7. Optimized capital asset management;
    8. Reduction in accidents resulting in injury and loss of life;
    9. Border-to-border and interregional connectivity; and
    10. Support for local connectivity to the state-wide transportation network.

      The investment policies provided for in paragraphs (1) through (10) of this subsection shall also guide the development of the allocation formula provided for under Code Section 32-5-27 and shall expire on April 15, 2012, and every four years thereafter unless amended or renewed. The final version of the State-wide Strategic Transportation Plan shall be completed by April 10, 2010, and shall be delivered to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the Senate Transportation Committee and the House Committee on Transportation. A report detailing the progress of projects and programs in the State-wide Strategic Transportation Plan shall be prepared and delivered annually thereafter, and a revised version shall be prepared and delivered at least biennially thereafter.

  2. The report and plan prepared under subsection (a) of this Code section shall also be published on the website of the department.

(Code 1981, §32-2-41.1, enacted by Ga. L. 2008, p. 528, § 1/HB 1189; Ga. L. 2009, p. 976, § 6/SB 200; Ga. L. 2014, p. 851, § 1/HB 774.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Code Section 32-2-41.1, as enacted by Ga. L. 2008, p. 806, § 1/SB 417, was redesignated as Code Section 32-2-41.2.

32-2-41.2. Development of benchmarks; reports; value engineering studies.

  1. The commissioner shall develop and publish in print or electronically benchmarks, based upon the type and scope of a construction project, that detail a realistic time frame for completion of each stage of a construction project, including preliminary engineering and design, environmental permitting and review, and right of way acquisition.
  2. The director shall submit an annual report to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House and Senate Transportation Committees detailing the progress of every construction project valued at $10 million or more against the benchmarks. This report shall include an analysis explaining the discrepancies between the benchmarks and actual performance on each project as well as an explanation for delays. This report shall also be published on the website of the department.
  3. The department shall create and maintain on its website a detailed status report on each project under planning or construction. This status report shall include, but not be limited to, the name and contact information of the project manager, if applicable.
  4. Value engineering studies shall be performed on all projects whose costs exceed $50 million, except for any project procured in accordance with Code Sections 32-2-79, 32-2-80, and 32-2-81, and the director shall submit an annual report to the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, and the chairpersons of the House and Senate Transportation Committees detailing the amount saved due to the value engineering studies. This report shall also be published on the website of the department.

(Code 1981, §32-2-41.2, enacted by Ga. L. 2008, p. 806, § 1/SB 417; Ga. L. 2009, p. 976, § 7/SB 200; Ga. L. 2010, p. 838, § 10/SB 388; Ga. L. 2013, p. 67, § 1/HB 202; Ga. L. 2014, p. 851, § 2/HB 774.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2008, Code Section 32-2-41.1, as enacted by Ga. L. 2008, p. 806, § 1/SB 417, was redesignated as Code Section 32-2-41.2.

32-2-42. Deputy commissioner of transportation; chief engineer; treasurer and assistant treasurer.

  1. The commissioner shall appoint a deputy commissioner of transportation to serve at the pleasure of the commissioner. Before assuming the duties of his or her office, the deputy commissioner shall qualify by giving bond with a corporate surety licensed to do business in this state, such bond to be in the amount of $500,000.00 and payable to the Governor and his or her successors in office. The bond shall be subject to the approval of the Governor and shall be conditioned on the faithful discharge of the duties of the office, including any duties of the office of the commissioner which the deputy commissioner may be required to perform as acting commissioner. The premium for the bond shall be paid out of the funds of the department. The deputy commissioner shall be the assistant commissioner and shall be empowered to act in his or her own name for the commissioner. The deputy commissioner may exercise to the extent permitted by law only such powers and duties of the commissioner as have been previously assigned to him or her in writing by the commissioner. In the event of the commissioner's temporary incapacity which causes his or her absence from the offices of the Department of Transportation in Atlanta, Georgia, for 30 consecutive days, the deputy commissioner shall assume all the powers and duties of the commissioner, to be exercised until such time as the commissioner's temporary absence or incapacity shall cease. In the event of the commissioner's permanent incapacity, the deputy commissioner shall become acting commissioner, as provided in subsection (c) of Code Section 32-2-40.
  2. The commissioner shall appoint a chief engineer to serve at the pleasure of the commissioner. The chief engineer shall be the chief engineer of the department and shall be a professional engineer registered in accordance with Chapter 15 of Title 43 and who shall be experienced in highway engineering.
  3. The commissioner shall appoint a treasurer of the department to serve at the pleasure of the commissioner. Before assuming the duties of his or her office, the treasurer shall qualify by giving bond with a corporate surety licensed to do business in this state, such bond to be in the amount of $500,000.00 and payable to the Governor and his or her successors in office. The bond shall be subject to the approval of the Governor and shall be conditioned on the faithful discharge of the duties of the office. The premium for the bond shall be paid out of the funds of the department. The duties of the treasurer shall be to receive all funds from all sources to which the department is entitled, to account for all funds received by the department, to adjust for additional appropriations or balances brought forward from previous years with the prior approval of the Office of Planning and Budget, and to perform such other duties as may be required of him or her by the commissioner. The commissioner shall have the authority to appoint an assistant treasurer in the same manner and under the same conditions as set forth in this subsection for the appointment of the treasurer, including the qualifying in advance by giving bond of the same type, amount, and paid for in the same manner as required of the treasurer. The assistant treasurer shall assume the duties of office of treasurer upon the incapacity or death of the treasurer and shall serve until a new treasurer is appointed as provided in this subsection.
  4. Any provision of this title or of any other statute or of any rule or regulation to the contrary notwithstanding, the commissioner or the deputy commissioner may, in addition to serving as commissioner or deputy commissioner, also simultaneously serve as chief engineer, provided that he or she shall be appointed and shall possess the qualifications as prescribed in subsection (b) of this Code section. A commissioner or deputy commissioner simultaneously serving as chief engineer shall be paid for the discharge of all his or her duties the sum to which he or she is entitled as commissioner or deputy commissioner.

(Ga. L. 1925, p. 208, § 2; Code 1933, § 95-1607; Ga. L. 1950, p. 62, § 7; Code 1933, § 95A-310, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1975, p. 102, § 1; Ga. L. 1994, p. 591, § 4; Ga. L. 2009, p. 976, § 8/SB 200; Ga. L. 2011, p. 583, § 2/HB 137.)

Cross references.

- Official bonds generally, T. 45, C. 4.

32-2-43. Director of planning; appointment; responsibilities.

  1. There shall be a director of planning appointed by the Governor subject to approval by a majority vote of both the House Transportation Committee and the Senate Transportation Committee. The director shall serve during the term of the Governor by whom he or she is appointed and at the pleasure of the Governor. If the Governor's term expires and the incoming Governor has not made an appointment, the current director of planning may serve until a replacement is appointed by the incoming Governor and confirmed by the House and Senate Transportation Committees.
  2. The director of planning's principal responsibility shall be the development of transportation plans, including the development of the state-wide strategic transportation plan and state-wide transportation improvement program and other comprehensive plans pursuant to the provisions of Code Section 32-2-3 and Code Section 32-2-22, strategic transportation plans pursuant to the provisions of Code Section 32-2-41.1, and benchmarks and value engineering studies pursuant to the provisions of Code Section 32-2-41.2, in consultation with the board, the Governor, and the commissioner. The director shall also be responsible for the duties and activities assigned to the director in Article 5 of Chapter 8 of Title 48. The director shall be the director of the Planning Division of the department and shall possess, exercise, and perform all the duties, powers, and authority which may be vested in such division by law and are necessary or appropriate for such purpose, except those duties, powers, and authority which are expressly reserved by law to the board or the commissioner.

(Code 1981, §32-2-43, enacted by Ga. L. 2009, p. 976, § 9/SB 200; Ga. L. 2010, p. 778, § 2/HB 277; Ga. L. 2011, p. 583, § 3/HB 137.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, "the" was deleted following "may be vested in" in the last sentence of subsection (b).

Editor's notes.

- Ga. L. 2010, p. 778, § 1/HB 277, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Investment Act of 2010.'"

ARTICLE 4 EXERCISE OF POWER TO CONTRACT GENERALLY

Cross references.

- Applicability of article to airport construction contracts, § 32-2-2(a)(17).

State purchasing contracts generally, § 50-5-50 et seq.

Applicability of State Properties Code to department, § 50-16-38.

RESEARCH REFERENCES

ALR.

- Construction and effect of "changed conditions" clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

32-2-60. Authority to contract; form and content of construction contracts; bonds.

  1. The department shall have the authority to contract as set forth in this article and in Code Section 32-2-2. All department construction contracts shall be in writing. Any contract entered into by the department for the construction of a public road shall include, as a cost of the project, provisions for sowing vegetation, if appropriate, on all banks, fills, cuts, ditches, and other places where soil erosion is likely to result from the necessary incidents to road work along the right of way of the road project.
  2. Persons, firms, or corporations submitting bids on department construction contracts are required to examine the site of the proposed work and determine for themselves the anticipated subsurface and latent physical conditions at the site prior to submitting a bid on the project. The submission of a bid shall be prima-facie evidence that the bidder has made such examination and is satisfied as to the conditions to be encountered in performing the work. The department does not in any way guarantee the amount or nature of subsurface materials which may be encountered and which must be excavated, graded, or driven through in performing the work on the project. The contractor shall not plead deception or misunderstanding because of variations from quantities of work to be performed or materials to be furnished as shown on the plans or minor variations from the locations or character of the work. Payment will be made only for actual quantities of work performed in accordance with the plans and specifications. The department shall not provide compensation above the amount bid on such project solely due to the encountering of subsurface or latent physical conditions at the site which are different from those anticipated by the bidder.
    1. Notwithstanding the provisions of subsection (b) of this Code section, the department reserves the right to make, at any time during the progress of work, such increases or decreases in quantities and such alterations in the details of construction as necessary or desirable to satisfactorily complete the work. Such increases or decreases shall not invalidate the contract nor release the surety and the contractor agrees to perform the work as altered.
    2. Whenever an alteration materially increases or decreases the scope of the work specified in the contract, a supplemental agreement acceptable to both parties shall be made.In the absence of a supplemental agreement acceptable to both parties, the department may direct that the work be done either by force account or at existing contract prices.Any force account agreement shall be in writing, specifying the terms of payment signed by the chief engineer, and agreed to in writing by the contractor.
    3. Changes made by the engineer will not be considered to waive any of the provisions of the contract, nor may the contractor make any claim for loss of anticipated profits because of the changes, or by reason of any variation between the approximate quantities and the quantities of work as done.
    1. When the estimated amount of any department construction contract exceeds $300 million, performance and payment bonds shall be required in the amount of at least the total amount payable by the terms of the contract unless the department, after public notice, makes a written determination supported by specific findings that single bonds in such amount are not reasonably available, and the board approves such determination in a public meeting. In such event, the estimated value of the construction portion of the contract, excluding right of way acquisition and engineering, shall be guaranteed by a combination of security including, but not limited to, the following:
      1. Payment, performance, surety, cosurety, or excess layer surety bonds;
      2. Letters of credit;
      3. Guarantees of the contractor or its parent companies;
      4. Obligations of the United States and of its agencies and instrumentalities; or
      5. Cash collateral;

        provided, however, that the aggregate total guarantee of the project may not use a corporate guarantee of more than 35 percent. The combination of such guarantees shall be determined at the discretion of the department, subject to the approval of the board; provided, however, that such aggregate guarantees shall include not less than $300 million of performance and payment bonds and shall equal not less than 100 percent of the contractor's obligation under the construction portion of the contract.

    2. Payment guarantees approved pursuant to this subsection shall be deemed to satisfy the requirements of Code Section 13-10-61. Contractors requesting payment under construction contracts guaranteed pursuant to this subsection shall provide the following certification under oath with each such request: "All payments due to subcontractors and suppliers from previous payment received under the contract have been made, and timely payments will be made from the proceeds of the payment covered by this certification."

(Ga. L. 1965, p. 628, § 1; Code 1933, § 95A-801, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1988, p. 1908, § 1; Ga. L. 1994, p. 591, § 5; Ga. L. 2006, p. 663, § 1/HB 1177; Ga. L. 2007, p. 47, § 32/SB 103; Ga. L. 2018, p. 372, § 1/SB 445.)

The 2018 amendment, effective July 1, 2018, deleted former subsection (d), which read: "The provisions of subsections (b) and (c) of this Code section shall be applicable only to federal-aid highway contracts."; and redesignated former subsection (e) as present subsection (d).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, "limited to, the following:" was substituted for "limited to the following:" near the end of the introductory paragraph of subsection (e) (now subsection (d)), "Guarantees" was substituted for "Guaranties" in paragraph (e)(3) (now subparagraph (d)(1)(C)), and in paragraph (e)(5) (now subparagraph (d)(1)(E)), "collateral; provided, however," was substituted for "collateral. (6) Provided however" and "percent" was substituted for "%".

Editor's notes.

- Ga. L. 1988, p. 1908, § 2, not codified by the General Assembly, provides: "The provisions of this Act shall not be applicable to or affect existing contracts in effect on the effective date of this Act." This Act became effective April 14, 1988.

Ga. L. 1988, p. 1908, § 4, not codified by the General Assembly, provides: "No provision of this Act shall prohibit any court of law or equity from reforming a contract or awarding damages based upon a mutual mistake of fact or fraud in the inception of a contract or its performance."

OPINIONS OF THE ATTORNEY GENERAL

Necessity for retaining highway project file for 20-year period.

- It is necessary to retain an entire highway project file for a 20-year period; retaining the release, final voucher, and contract for this period will not adequately protect the state's interests in compliance with state law because highway construction contracts are sealed contracts and are therefore subject to a 20-year statute of limitations. 1973 Op. Att'y Gen. No. 73-89.

32-2-61. Limitations on power to contract.

  1. The department is expressly prohibited from making or contracting any debts or entering into any contract for which it does not have sufficient funds appropriated at the time of making said debt or entering into said contract to enable it to meet such debt or such contract obligation. However, such prohibition shall not apply to contracts entered into pursuant to Article IX, Section III, Paragraph I and Article VII, Section IV, Paragraph IV of the Constitution of Georgia; and the department is expressly authorized to enter into such contracts and to obligate the department in connection therewith. For the purpose of paying obligations imposed by any such contract, such funds as may be appropriated to the department for activities incident to providing and maintaining an adequate system of public roads in the state and the cost incident thereto may be pledged by the department.
    1. The board shall not enter into any lease contract if:
      1. The aggregates of all lease rentals from that and all other such lease contracts including the contract or contracts proposed to be entered into exceed $19,900,000.00 per annum or 15 percent of the funds appropriated to the department in the fiscal year immediately preceding entering into any such lease rental contract, whichever is greater; or
      2. Such lease contract constitutes security for bonds or other obligations issued by the lessor.
    2. The execution of any lease contract is prohibited until the General Assembly has specifically provided funds in an appropriations Act for the payment of at least one year's rental under such contract.
  2. Except as authorized by Article 3 of Chapter 5 of Title 50, the department is prohibited from entering into any contract for the purchase of supplies, materials, equipment, or services, except those services ancillary to the construction and maintenance of a public road.
    1. The department is prohibited from negotiating any contract for the construction or maintenance of a public road involving the expenditure of $200,000.00 or more except any contract:
      1. With counties, municipalities, and state agencies, provided that such negotiated contract shall be made at the average bid price of the same kind of work let to contract after advertisement during a period of 60 days prior to the making of the contract;
      2. With a railroad company or utility concerning relocation of its tracks or facilities where the same are not then located on a public road and such relocation is necessary as an incident to the construction or improvement of a public road. However, nothing contained in this subsection shall be construed as requiring the department to furnish a site or right of way for railroad or railway lines or tracks or utility facilities required to be removed from a public road. Furthermore, this subsection shall not prevent the department from assisting in the removal and relocation of publicly owned utilities from locations on public roads as provided in Code Section 32-6-170;
      3. For emergency construction or maintenance involving the expenditure of $200,000.00 or more when the public interest requires that the work be done without the delay of advertising for public bids;
      4. For the procurement of business, professional, or other services from any person, firm, or corporation as an independent contractor;
      5. With the State Road and Tollway Authority; or
      6. Through the provisions of a design-build contract as provided for in Code Section 32-2-81.
    2. A department contract negotiated and made with a political subdivision, as authorized by subparagraph (A) of paragraph (1) of this subsection, may be subcontracted to any person or political subdivision. It may be performed with inmate labor, except in the case of a public work constructed with federal aid, or the forces of such political subdivision or those of a political subdivision to which such contract has been subcontracted. However, the department shall have the authority to furnish planning, contract plans, specifications, and engineering supervision over a public road being constructed by a political subdivision or by its subcontractor. Any subcontract made under authority of this subsection shall not constitute the basis of any claim against the department, nor shall such subcontract be considered an assignment of the rights of the political subdivision under its contract with the department.
  3. Except for public roads within and leading to state parks, the department is prohibited from maintaining any public road not on the state highway system. Any department contract with a state agency or political subdivision for construction of a public road not then, nor to become upon completion of the contract, part of the state highway system or a road within or leading to a state park shall not relieve the agency or the political subdivision of the responsibility for maintaining such public road as such duty is imposed by this Code section and by Code Sections 32-4-41 and 32-4-91.

(Ga. L. 1950, p. 62, § 12; Ga. L. 1951, p. 31, § 3; Ga. L. 1953, Jan.-Feb. Sess., p. 81, § 1; Ga. L. 1955, p. 249, § 1; Ga. L. 1961, p. 22, § 1; Ga. L. 1967, p. 382, § 1; Ga. L. 1968, p. 1055, § 5; Code 1933, § 95A-802, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 19; Ga. L. 1975, p. 1159, §§ 1-3; Ga. L. 1983, p. 3, § 56; Ga. L. 1989, p. 356, § 1; Ga. L. 1997, p. 699, § 1; Ga. L. 2001, p. 1251, § 1-2; Ga. L. 2004, p. 905, § 1; Ga. L. 2005, p. 117, § 30A/HB 312; Ga. L. 2007, p. 167, § 1/HB 192; Ga. L. 2012, p. 1343, § 1/HB 817.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1991, "subparagraph (A) of paragraph (1)" was substituted for "subparagraph (1)(A)" in the first sentence of paragraph (d)(2).

JUDICIAL DECISIONS

Effect of transfer of state road.

- Department of Transportation is prohibited from maintaining a road after the road is transferred from the state highway system and the department owed no duty to plaintiff who was injured in an accident on the road. Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).

When an injured party sued the Georgia Department of Transportation (DOT) for injuries received in a single-car accident on a county road, the party could not maintain a negligent maintenance claim against DOT because the road on which the accident occurred was not part of the state highway system, nor did the road lead to a state park; thus, under O.C.G.A. § 32-4-41(1), the county was obligated to maintain the road and, under O.C.G.A. § 32-2-61(e), DOT's contract with the county to improve the road did not relieve the county of this responsibility. Ogles v. E.A. Mann & Co., 277 Ga. App. 22, 625 S.E.2d 425 (2005).

State DOT not liable for failing to erect road closure signs on county road.

- Because an accident occurred on a county-owned road and did not occur on a part of the state highway system upon which the DOT owed a duty to motorists, and the couple's expert's affidavit could not establish a legal duty to erect signs or to take other steps to inform drivers of the closure of the county-owned road, summary judgment for the DOT was proper. Diamond v. DOT, 326 Ga. App. 189, 756 S.E.2d 277 (2014).

Cited in DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Barrett v. Ga. DOT, 304 Ga. App. 667, 697 S.E.2d 217 (2010).

OPINIONS OF THE ATTORNEY GENERAL

Department of Transportation may enter into transportation construction contracts with financial backing from State Road and Tollway Authority.

- Department of Transportation may enter into transportation construction contracts with all or a portion of the financial backing for the contracts coming from a contractual promise from the State Road and Tollway Authority to borrow and provide money to DOT as and when needed to expend on projects that are the subjects of the construction contracts. 2001 Op. Att'y Gen. No. 2001-10.

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

32-2-62. Advertising of nonnegotiated construction contracts; approval of negotiated construction contracts; factors to be considered by board for priority of projects.

The advertising of all nonnegotiated department construction contracts shall have the prior approval of the board. When the board is not in session, the commissioner may approve negotiated construction contracts. In determining public roads most in need of work and also the type, class, width, location, and order of priority of each project, the board shall take into consideration such factors as the use of the public road in question; the present need and anticipated development of the area traversed by it; whether or not it is a school bus or mail route; and its use for agricultural or industrial purposes. The board shall also take into consideration the information disclosed by the records required by Code Section 32-4-2 to be maintained by the department.

(Code 1933, § 95A-803, enacted by Ga. L. 1973, p. 947, § 1.)

32-2-63. Authority of commissioner to execute contracts and authority lease agreements.

The commissioner shall have full authority to execute contracts and authority lease agreements on behalf of the department whenever such contracts or agreements have been approved in accordance with this title.

(Code 1933, § 95A-804, enacted by Ga. L. 1973, p. 947, § 1.)

32-2-64. Required letting of contracts by public bid; posting bid on department website sufficient.

Except as authorized by subsection (d) of Code Section 32-2-61, all department construction and maintenance contracts shall be let by public bid. For purposes of this Code section, posting a bid on the department's website shall satisfy the public bid requirement.

(Ga. L. 1949, p. 372, § 2; Code 1933, § 95A-805, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2012, p. 1343, § 2/HB 817.)

Cross references.

- Letting of contracts by Department of Administrative Services by public bid, § 50-5-67.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1950, p. 62, as amended, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Judicial notice that construction be done by independent contractor not required.

- In a suit by a property owner for damage to property caused by highway construction, the requirement that competitive bids be taken on highway maintenance and construction contracts does not require the court to take judicial notice of the fact that the construction was done by an independent contractor. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964) (decided under former Ga. L. 1950, p. 62, as amended).

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

Authority of state, municipality, or other governmental entity to accept late bids for public works contracts, 49 A.L.R.5th 747.

32-2-65. Advertising for bids.

  1. On all contracts required to be let by public bid, the commissioner shall advertise for competitive bids for at least two weeks; the public advertisement shall be inserted once a week in such newspapers or other publications, or both, as will ensure adequate publicity, the first insertion to be at least two weeks prior to the opening of bids, the second to follow one week after the publication of the first insertion; provided, however, that the advertisement requirement provided in this Code section shall be satisfied by posting the required information on the department's website for the required time period.
  2. Such advertisement shall include but not be limited to the following items:
    1. A description sufficient to enable the public to know the approximate extent and character of the work to be done;
    2. The time allowed for performance;
    3. The terms and time of payment, including a statement that final payment of amounts withheld or deposited in escrow need not be made until the issuance of the chief engineer's certification of satisfactory completion of work and acceptance thereof, as provided in Code Sections 32-2-75 through 32-2-77;
    4. Where and under what conditions and costs the detailed plans and specifications and proposal forms may be obtained;
    5. The amount of the required proposal guaranty;
    6. The time and place for submission and opening of bids;
    7. The right of the department to reject any one or all bids; and
    8. Such further notice as the department may deem advisable as in the public interest.

(Ga. L. 1949, p. 373, § 3; Code 1933, § 95A-806, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1994, p. 591, § 6; Ga. L. 2018, p. 372, § 2/SB 445.)

The 2018 amendment, effective July 1, 2018, added the proviso at the end of subsection (a).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1950, p. 62, as amended, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Judicial notice that construction be done by independent contractors.

- In a suit by a property owner for damage to property caused by highway construction, the requirement that competitive bids be taken on highway maintenance and construction contracts does not require the court to take judicial notice of the fact that the construction was done by an independent contractor. Richmond County v. Williams, 109 Ga. App. 670, 137 S.E.2d 343 (1964) (decided under former Ga. L. 1950, p. 62, as amended).

OPINIONS OF THE ATTORNEY GENERAL

Letting one-bid projects, limited negotiation with certain bidders, and letting to second-low bidders are now legal under O.C.G.A. § 32-2-69 and can be included in the "advertised specifications," whether that term can be applied to the standard specifications themselves or whether the three identified circumstances must be specifically referenced in the actual advertisement of the project. 1986 Op. Att'y Gen. No. 86-21.

32-2-66. Prequalifications of contractors and subcontractors.

In order to establish a list of reliable persons qualified to bid on a department contract or to subcontract with such persons and to ensure that the contract may be awarded to the lowest reliable bidder, the department may adopt and publish in print or electronically uniform and reasonable rules and regulations which may include but not be limited to the following:

  1. A requirement that every contractor desiring to be qualified to bid or subcontract file with the department an application including, among other information: a financial statement; a complete questionnaire regarding the contractor's organization and the work performed by such contractor; and a statement of equipment owned or leased by such contractor;
  2. Conditions under which a contractor or subcontractor may become disqualified to bid or to subcontract;
  3. Procedures for assigning maximum capacity ratings to contractors and subcontractors; and
  4. Provisions for waiving prequalification of contractors for construction of specialty items. For the purpose of this paragraph, "specialty items" means work that requires highly specialized knowledge, craftsmanship, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole.

(Code 1933, § 95A-807, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2010, p. 838, § 10/SB 388.)

32-2-67. Payment by bidder to cover costs.

A bidder shall be required to pay to the department a reasonable sum sufficient to cover the cost to the department of copies of the bid proposal form of the department, the standard specifications of the department, and the plans of the contract if such plans are required because the particular contract calls for construction.

(Code 1933, § 95A-808, enacted by Ga. L. 1973, p. 947, § 1.)

32-2-68. Proposal guaranty by bidder.

  1. No bid will be considered by the department unless it is accompanied by a proposal guaranty in the form of a certified check or other acceptable security payable to the treasurer of the department for an amount deemed by the department to be in the public interest and necessary to ensure that the successful bidder will execute the contract on which he bid.
  2. A proposal guaranty will be returned to a bidder upon receipt by the department of the bidder's written withdrawal of his bid if such receipt is before the time scheduled for the opening of bids. Upon the determination by the department of the lowest reliable bidder, the department will return the proposal guaranties to all bidders except that of the lowest reliable bidder. If no contract award is made within 30 days after the date set for the opening of bids, all bids shall be rejected and all proposal guaranties shall be returned unless the department and the successful bidder agree in writing to a longer period of time.

(Code 1933, § 95A-809, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Forfeiture of bid bond.

- Contractor's bid bond was required to be forfeited since the contractor first attempted to withdraw the contractor's bid after all bids submitted were opened and then declined to execute the contract awarded to the contractor. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

32-2-69. Bidding process and award of contract.

  1. Except as authorized by Code Sections 32-2-79 and 32-2-80, the department shall award the contract to the lowest reliable bidder, provided that the department shall have the right to reject any and all such bids whether such right is reserved in the public notice or not and, in such case, the department may readvertise, perform the work itself, or abandon the project.
  2. If only one bid is received, the department shall open and read the bid.If the bid is at or below the department's cost estimate for the project as certified by the chief engineer, such cost estimate shall be read immediately and publicly.If the bid exceeds the department's cost estimate for the project, the department may negotiate with the bidder to establish a fair and reasonable price for the contract, provided that the resulting negotiated contract price is not greater than the bid and that the department's cost estimate is disclosed to the bidder prior to the beginning of the negotiations.
  3. If the department made errors in the bidding documents which resulted in an unbalanced bid, the department may negotiate with the lowest reliable bidder to correct such errors, provided that the lowest reliable bidder is not changed.
  4. If the lowest reliable bidder is released by the department because of an obvious error or if the lowest reliable bidder refuses to accept the contract and thereby forfeits the bid bond, the department may award the contract to the next lowest reliable bidder, readvertise, perform the work itself, or abandon the project.
  5. For purposes of this Code section, posting of a bid on the department's website shall be equivalent to having read the bid.
  6. The signed, notarized affidavit required in subsection (b) of Code Section 13-10-91 shall be submitted to the department prior to the award of any contract.

(Code 1933, § 95A-810, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1986, p. 153, § 1; Ga. L. 1994, p. 591, § 7; Ga. L. 2003, p. 905, § 3; Ga. L. 2012, p. 1343, § 3/HB 817; Ga. L. 2018, p. 372, § 3/SB 445.)

The 2018 amendment, effective July 1, 2018, added subsection (f).

Law reviews.

- For note on the 2003 amendment to this Code section, see 20 Ga. St. U. L. Rev. 170 (2003).

JUDICIAL DECISIONS

Forfeiture of bid bond.

- Contractor's bid bond was required to be forfeited after the contractor first attempted to withdraw the contractor's bid after all bids submitted were opened and then declined to execute the contract awarded to the contractor. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

Department of Transportation was not obligated to release a bidder from the bidder's contractual obligations due to an obvious error in the bid. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

Reliable bidder.

- Even if a contractor's claim that a state transportation department violated the contractor's U.S. Const., amend. 14 equal protection rights by subjecting the contractor's paving work to testing and by preventing the contractor's lowest bid for a repaving project from being accepted was cognizable as a class of one claim, the contractor's complaint did not meet the tightened Fed. R. Civ. P. 8 requirements for 42 U.S.C. § 1983 claims; the contractor did not identify similarly situated contractors who were treated more favorably with regard to defect testing, and the comparator cited by the contractor with regard to the failure to facilitate acceptance of the contractor's repaving bid was not properly alleged to have been similarly situated in the absence of an allegation of performance problems, particularly when O.C.G.A. § 32-2-69(a) did not require that the lowest bidder be chosen, but that the lowest reliable bidder be chosen. Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269 (11th Cir. 2008).

OPINIONS OF THE ATTORNEY GENERAL

Letting one-bid projects, limited negotiation with certain bidders, and letting to second-low bidders are now legal under O.C.G.A. § 32-2-69 and can be included in the "advertised specifications," whether that term can be applied to the standard specifications themselves or whether the three identified circumstances must be specifically referenced in the actual advertisement of the project. 1986 Op. Att'y Gen. No. 86-21.

RESEARCH REFERENCES

ALR.

- Public contracts: authority of state or its subdivision to reject all bids, 52 A.L.R.4th 186.

Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

32-2-70. Bonds of successful bidder.

Where the contract price exceeds $100,000.00, no department construction contract shall be valid unless the contractor first gives:

  1. The performance and payment bonds in accordance with Chapter 10 of Title 13; and
  2. Such other bonds or insurance policies required by the department in its proposal forms, including but not limited to public liability and property damage insurance bonds or policies.

(Code 1933, § 95A-811, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2001, p. 4, § 32; Ga. L. 2001, p. 820, § 2; Ga. L. 2007, p. 167, § 2/HB 192.)

Code Commission notes.

- The amendment of this Code section by Ga. L. 2001, p. 4, § 32, irreconcilably conflicted with and was treated as superseded by Ga. L. 2001, p. 820, § 2. See County of Butts v. Strahan, 151 Ga. 417 (1921).

RESEARCH REFERENCES

ALR.

- Failure of public authorities to take contractor's bond as required by law, as rendering them liable to laborers or materialmen, 64 A.L.R. 678.

Validity of statute or ordinance which requires liability or indemnity insurance or bond as condition of license for conducting business or profession, 120 A.L.R. 950.

State or local government's liability to subcontractors, laborers, or materialmen for failure to require general contractor to post bond, 54 A.L.R.5th 649.

32-2-71. Failure of successful bidder to sign contract or furnish bonds.

If the successful bidder fails to sign the contract or furnish the bonds or policies required by Code Section 32-2-70, the proposal guaranty will become the property of the department as liquidated damages. The contract then may be readvertised or the project may be abandoned.

(Code 1933, § 95A-812, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Forfeiture of bid bond.

- Contractor's bid bond was required to be forfeited after the contractor first attempted to withdraw the contractor's bid after all bids submitted were opened and then declined to execute the contract awarded to the contractor. DOT v. American Ins. Co., 268 Ga. 505, 491 S.E.2d 328 (1997).

32-2-72. Oath by successful bidder.

A successful bidder, before commencing the work, shall execute a written oath, as required by subsection (e) of Code Section 36-91-21, stating that he or she has not violated such Code section which makes it unlawful to restrict competitive bidding.

(Code 1933, § 95A-813, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 7; Ga. L. 2001, p. 820, § 3.)

32-2-73. Supplemental and extension agreements.

The department shall be authorized to execute supplemental agreements to the original contract covering changes or revised or new unit prices and items and supplementing the original contract not to exceed a 20 percent increase in cost of the project and to execute extension agreements affecting the length of the project which may be increased by adding sections to said project or by relocation of said project not to exceed 20 percent of the total length of the project or 20 percent of total contract cost.

(Ga. L. 1949, p. 373, § 4; Code 1933, § 95A-814, enacted by Ga. L. 1973, p. 947, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Department of Transportation professional service contracts.

- While the provisions of O.C.G.A. § 32-2-73 do not apply to contracts for professional services, which are governed by O.C.G.A. § 50-22-1 et seq., legislation is required to allow the Department of Transportation to exceed the limitations of such professional services contracts found in O.C.G.A. § 50-6-25(b). 1994 Op. Att'y Gen. No. U94-14.

32-2-74. Effect of federal laws on Code Sections 32-2-60 through 32-2-73; power of department to secure benefits of federal-aid program.

  1. Nothing in Code Sections 32-2-60 through 32-2-73 is intended to conflict with any federal law; and, in case of such conflict, such portion of those Code sections as may be in conflict with such federal law is declared of no effect to the extent of the conflict.
  2. The department is authorized to take the necessary steps to secure the full benefit of the federal-aid program and to meet any contingencies not provided for in Code Sections 32-2-60 through 32-2-73, abiding at all times by a fundamental purpose to plan, survey, construct, reconstruct, maintain, improve, and pave as economically as possible those public roads of Georgia which, under the terms of Code Sections 32-2-60 through 32-2-73, are most in need of such construction or work in such a manner as will best promote the interest, welfare, and progress of the citizens of Georgia.

(Code 1933, § 95A-815, enacted by Ga. L. 1973, p. 947, § 1.)

32-2-75. Contract clauses for retainage of amounts constituting a percentage of gross value of completed work; time of final payment of retained amounts to contractor.

  1. As used in this Code section and Code Sections 32-2-76 and 32-2-77, the term:
    1. "Engineer" means the chief engineer or the engineer designated by the Georgia Highway Authority or the State Road and Tollway Authority.
    2. "Escrow account" means the certificates of deposit issued by a state or national bank in Georgia and any uninvested cash held in escrow.
    3. "State" means the Department of Transportation, the Georgia Highway Authority, or the State Road and Tollway Authority.
    4. "Treasurer" means the treasurer of the Department of Transportation, the treasurer of the Georgia Highway Authority, or the treasurer of the State Road and Tollway Authority.
  2. The state is authorized to insert a clause in the specifications of all contracts let and awarded as a result of public lettings for the construction, improvement, maintenance, or repair of any road, highway, bridge, or appurtenance thereto providing for the retainage of amounts constituting a percentage of the gross value of the completed work as may be provided for in the contract.
  3. Final payment of the retained amounts to the contractor under the contract to which the retained amount relates will be made after certification by the engineer that the work has been satisfactorily completed and is accepted in accordance with the contract, plans, and specifications.

(Ga. L. 1971, p. 635, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32; Ga. L. 1994, p. 591, § 8; Ga. L. 2001, p. 1251, § 2-1.)

Cross references.

- Authorization and procedure for retention of contractual payments by state or political subdivisions; procedure for final payment, § 13-10-81.

Georgia Highway Authority, § 32-10-1 et seq.

State Road and Tollway Authority, § 32-10-60 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 13 Am. Jur. 2d, Building and Construction Contracts, § 22.

C.J.S.

- 17B C.J.S., Contracts, § 583.

ALR.

- Right and duty of highway contractor as to barricading or obstructing street or highway, 104 A.L.R. 955.

32-2-76. Contract clauses providing for escrow agreements; mandatory provisions of escrow agreements.

  1. In lieu of the retained amounts provided for in Code Section 32-2-75, the state is authorized to insert a clause in the specifications of all contracts let and awarded as a result of public lettings for the construction, improvement, maintenance, or repair of any road, highway, bridge, or appurtenance thereto providing for the maintenance of an escrow account in an amount at least equal to the amount of the retainage authorized by the contract, in accordance with such rules and regulations as are authorized to be promulgated by the state.
  2. Any such escrow agreement entered into pursuant to this Code section must contain as a minimum the following provisions:
    1. Only state or national banks chartered within this state may serve as an escrow agent;
    2. The escrow agent must limit the investment of funds of the contractor held in escrow in lieu of retained amounts provided for in Code Section 32-2-75 to negotiable certificates of deposits issued by any state or national bank in this state, including but not limited to certificates of deposit issued by the bank acting as escrow agent, registered in the name of the escrow agent as such under escrow agreement with the contractor;
    3. As interest on certificates of deposits held in escrow becomes due, it shall be collected by the escrow agent and paid to the contractor;
    4. The escrow agent shall promptly acknowledge to the treasurer of the department or the appropriate authority the amount and value of the escrow account held by the escrow agent, and any additions to the escrow account shall be reported immediately. Withdrawals from the escrow account shall only be made subject to the written approval of the treasurer of the department or the appropriate authority;
    5. Upon default or overpayment, as determined by the state, of any contract subject to this procedure and upon the written demand of the treasurer of the department or the appropriate authority, the escrow agent shall within ten days deliver a certified check to the treasurer of the department or the appropriate authority in the amount of the escrow account balance relating to the contract in default;
    6. The escrow account may be terminated upon completion and acceptance of the contract(s) as provided in Code Section 32-2-75;
    7. All fees and expenses of the escrow agent shall be paid by the contractor to the escrow agent and if not paid shall constitute a lien on the interest accruing to the escrow account and shall be paid therefrom;
    8. The escrow account shall constitute a specific pledge to the state, and the contractor shall not, except to his surety, otherwise assign, pledge, discount, sell, or transfer his interest in said escrow account, the funds in which shall not be subject to levy, garnishment, attachment, or any other process whatsoever; and
    9. The form of the escrow agreement and provisions thereof in compliance with this Code section as well as such other provisions as the treasurer of the department or the appropriate authority shall from time to time prescribe shall be subject to written approval of the treasurer of the department or the appropriate authority. The approval of the escrow agreement by the treasurer of the department or the appropriate authority shall authorize the escrow agent to accept appointment in such capacity.

(Ga. L. 1971, p. 635, § 2; Ga. L. 1982, p. 3, § 32.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 13 Am. Jur. 2d, Building and Construction Contracts, § 22.

C.J.S.

- 17B C.J.S., Contracts, § 583.

32-2-77. Liability of treasurer of the department or other appropriate authority and state to contractor or surety.

Neither the treasurer of the department or the appropriate authority nor the state shall be liable to the contractor or his surety for the failure of the escrow agent to perform under the escrow agreement, or for the failure of any bank to honor certificates of deposits issued by it which are held in the escrow account.

(Ga. L. 1971, p. 635, § 3.)

RESEARCH REFERENCES

C.J.S.

- 30A C.J.S., Escrows, § 15 et seq.

32-2-78. Definitions.

As used in this Code section and Code Sections 32-2-79 and 32-2-80, the term:

  1. "Participating local governing authority" includes the governing authority of any county or municipality whose geographical jurisdiction includes the project.
  2. "Project" means a project which the department deems appropriate for letting pursuant to the procedures of Code Section 32-2-79 and Code Section 32-2-80.

(Code 1981, §32-2-78, enacted by Ga. L. 2009, p. 976, § 10/SB 200.)

Editor's notes.

- Former Code Section32-2-78, concerning definitions, was based on Code 1981, § 32-2-78, enacted by Ga. L. 2003, p. 905, § 1; Ga. L. 2005, p. 902, § 1/SB 270, and was repealed by Ga. L. 2009, p. 976, § 1/SB 200, effective May 11, 2009.

OPINIONS OF THE ATTORNEY GENERAL

Projects pending at time of amendment.

- Georgia Department of Transportation's authority to enter a binding contract pursuant to the former Public Private Initiatives law was revoked by the 2009 Public Private Partnership law; those projects or portions of projects which were not formalized by an executed contract with the selected firm before May 11, 2009, must be re-procured under the authority and provisions of the 2009 law. 2009 Op. Att'y Gen. No. 2009-7.

32-2-79. Reporting on congestion mitigation; letting of projects.

  1. The staff of the department shall jointly identify and report to the board by July 31 of each odd-numbered year those projects on the state-wide transportation improvement program or otherwise identified that afford the greatest gains in congestion mitigation or promotion of economic development.
  2. Any project identified pursuant to subsection (a) of this Code section that will not be initiated within two years of the reporting date or that does not have specific available and complete funding may be let and constructed utilizing the procedures of this Code section and Code Section 32-2-80. All personnel of the department shall cooperate in all respects in the letting, construction, maintenance, and operation of such projects, including without limitation providing such access and control of portions of the state highway system as may be requested or required from time to time for such purposes.
  3. Projects wholly or partly in a metropolitan planning area shall be included in a fiscally constrained transportation improvement program.

(Code 1981, §32-2-79, enacted by Ga. L. 2009, p. 976, § 10/SB 200.)

Editor's notes.

- Former Code Section32-2-79, concerning requirements for solicited and unsolicited proposals for public-private initiative, was based on Code 1981, § 32-2-79, enacted by Ga. L. 2003, p. 905, § 2; Ga. L. 2005, p. 902, § 2/SB 270; Ga. L. 2006, p. 72, § 32/SB 465, and was repealed by Ga. L. 2009, p. 976, § 1/SB 200, effective May 11, 2009.

Administrative Rules and Regulations.

- Governing public-private partnerships, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Chapter 672-17.

32-2-80. Public and private financing of projects; prohibitions; request for proposed process; no delegation of eminent domain; performance and payment security.

    1. The department shall evaluate a project to determine, in the judgment of the department, appropriate or desirable levels of state, local, and private participation in financing such project. In making such determination, the department shall be authorized and encouraged to seek the advice and input of the affected local governing authorities, applicable metropolitan planning organizations, and the private financial and construction sectors.

      (1.1) No constitutional officer or member of the State Transportation Board shall serve as an agent, lobbyist, or board member for any entity directly or indirectly under contract with or negotiating a contract with the department under this Code section for one year after leaving his or her position as a constitutional officer or member of the State Transportation Board.

    2. For projects that are funded or financed in part or in whole by private sources, the department shall be authorized to issue a written request for proposal indicating in general terms the scope of the project, the proposed financial participations in the project, and the factors that will be used in evaluating the proposal and containing or incorporating by reference other applicable contractual terms and conditions, including any unique capabilities or qualifications that will be required of the contractor. Public notice of such request for proposal shall be made at least 90 days prior to the date set for receipt of proposals by posting the legal notice on a single website that shall be procured and maintained for such purposes by the Department of Administrative Services or in substantially the same manner utilized by the department to solicit requests for proposals.
    3. Upon receipt of a proposal or proposals responsive to the request for proposals, the department shall accept written public comment, solicited in the same manner as provided for notice of proposals, for a period of 30 days beginning at least ten days after the date set for receipt of proposals. In addition, the department shall hold at least one public hearing on such proposals not later than the conclusion of the period for public comment.
    4. The department shall engage in individual discussions with two or more respondents deemed fully qualified, responsible, and suitable on the basis of initial responses and with emphasis on professional competence and ability to meet the level of private financial participation called for by the department. Repetitive informal interviews shall be permissible. In the event that any local governing authority has agreed to consider financial participation in the project, a representative of such local governing authority, appointed by such local governing authority, may participate in such discussions and interviews. At the discussion stage, the department may discuss estimates of total project costs, including, but not limited to, life cycle costing and nonbinding estimates of price for services. Proprietary information from competing respondents shall not be disclosed to the public or to competitors. At the conclusion of such discussions, on the basis of evaluation factors published in the request for proposal and all information developed in the selection process, the department, with the input of any participating local governing authority, shall select in the order of preference two or more respondents whose qualifications and proposed services are deemed most meritorious. Negotiations shall then be conducted with two or more respondents and with the participation of the designated representative of any participating local governing authority. Upon approval by the department, the commissioner shall select the respondent for project implementation based upon contract terms that are the most satisfactory and advantageous to the state and to the department based upon a thorough assessment of value and the ability of the final project's characteristics to meet state strategic goals and investment policies as provided for by paragraphs (1) through (10) of subsection (a) of Code Section 32-2-41.1. Before making such selection, the commissioner shall consult with any participating local governing authority or authorities. Notwithstanding the foregoing, if the terms and conditions for multiple awards are included in the request for proposal, the department may award contracts to more than one respondent. Should the department determine in writing and in its sole discretion that only one respondent is fully qualified, or that one respondent is clearly more highly qualified and suitable than the others under consideration, a contract may be negotiated and awarded to that respondent.
    5. Nothing in this Code section shall require the department to continue negotiations or discussions arising out of any request for proposal.
    6. The department shall be authorized to promulgate reasonable rules or regulations to assist in its evaluation of the proposal and to implement the purposes of this Code section. The department shall report the content of such rules or regulations to the Transportation Committees of the Senate and House of Representatives for their approval by majority vote prior to the promulgation thereof and shall make quarterly reports to the same chairpersons of all of its activities undertaken pursuant to the provisions of this Code section.
  1. Any contracts entered into pursuant to this Code section may authorize funding to include tolls, fares, or other user fees and tax increments for use of the project that is the subject of the proposal. Such funding may be distributed by contract among the participants in the project as may be provided for by contract. The department may take any action to obtain federal, state, or local assistance for a qualifying project that serves the public purpose of this Code section and may enter into any contracts required to receive such assistance. The department may determine that it serves the public purpose of this Code section for all or any portion of the costs of a qualifying project to be paid, directly or indirectly, from the proceeds of a grant or loan made by the federal, state, or local government or any instrumentality thereof. The department may agree to make grants or loans to the operator from time to time from amounts received from the federal, state, or local government or any agency or instrumentality thereof.
  2. The commissioner shall be authorized to delegate such duties and responsibilities under this Code section as he or she deems appropriate from time to time; provided, however, that the final approval of contracts provided for in this Code section shall be by action of the State Transportation Board.
  3. The power of eminent domain shall not be delegated to any private entity with respect to any project commenced or proposed pursuant to this Code section.
  4. Any contract for a public-private partnership shall require the private partner or each of its prime contractors to provide performance and payment security. Notwithstanding any other provision of law, the penal sum or amount of such security may be less than the price of the contract involved, based upon the department's determination on a project-by-project basis of what sum may be required to adequately protect the department, the state, and the contracting and subcontracting parties.

(Code 1981, §32-2-80, enacted by Ga. L. 2009, p. 976, § 10/SB 200.)

Editor's notes.

- Former Code Section32-2-80, concerning authority to contract with proposer for public-private initiative, was based on Code 1981, § 32-2-80, enacted by Ga. L. 2003, p. 905, § 2; Ga. L. 2005, p. 902, § 3/SB 270, and was repealed by Ga. L. 2009, p. 976, § 1/SB 200, effective May 11, 2009.

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 32-2-80(a)(2) authorizes a single method of procurement for contracts for a newly defined form of contract: a contract for public-private partnerships. While the former Public Private Initiatives law permitted both solicited and unsolicited proposals, the 2009 Public Private Partnership law, O.C.G.A. § 32-2-78 et seq., requires, that a solicited proposal be utilized. 2009 Op. Att'y Gen. No. 2009-7.

Qualification for consideration under public-private partnership.

- The 2009 Public Private Partnership law, O.C.G.A. § 32-2-78 et seq., now contemplates that only those "projects that are funded or financed in part or in whole by private sources" qualify for consideration under the public-private partnership provisions of O.C.G.A. § 32-2-80, whereas the former Public Private Initiatives law authorized private financial contribution as one of three permissible legal foundations for the contract. 2009 Op. Att'y Gen. No. 2009-7.

Projects pending at time of amendment.

- Georgia Department of Transportation's authority to enter a binding contract pursuant to the former Public Private Initiatives law was revoked by the 2009 Public Private Partnership law, O.C.G.A. § 32-2-78 et seq.; those projects or portions of projects which were not formalized by an executed contract with the selected firm before May 11, 2009, must be re-procured under the authority and provisions of the 2009 law. 2009 Op. Att'y Gen. No. 2009-7.

32-2-81. "Design-build procedure" defined; procedures for utilization; limitation on contracting; report.

  1. As used in this Code section, the term "design-build procedure" means a method of contracting under which the department contracts with another party for the party to both design and build the structures, facilities, systems, and other items specified in the contract.
  2. The department may use the design-build procedure for buildings, bridges and approaches, rail corridors, technology deployments, and limited or controlled access projects or projects that may be constructed within existing rights of way where the scope of work can be clearly defined or when a significant savings in project delivery time can be attained.
  3. When the department determines that it is in the best interests of the public, the department may combine any or all of the environmental services, utility relocation services, right of way services, design services, and construction phases of a public road or other transportation purpose project into a single contract using a design-build procedure. Design-build contracts may be advertised and awarded notwithstanding the requirements of paragraph (1) of subsection (d) of Code Section 32-2-61. However, construction activities shall not begin on any portion of such projects until title to the necessary rights of way and easements for the construction of that portion of the project has vested in the state or a local governmental entity and all railroad crossing and utility agreements have been executed.
  4. The department shall adopt by rule procedures for administering design-build contracts. Such procedures shall include, but not be limited to:
    1. Prequalification requirements;
    2. Public advertisement procedures;
    3. Request for qualification requirements;
    4. Request for proposal requirements;
    5. Criteria for evaluating technical information and project costs;
    6. Criteria for selection and award process, provided that the rules shall specify that the criteria for selection shall consist of the following minimum two components for any two-step procurement process:
      1. A statement of qualifications from which the department will determine a list of qualified firms for the project, provided that, if the department determines it is in the state's best interest, it may omit this requirement and move directly to a one-step procurement process through the issuance of a request for proposal from which the department may select the lowest qualified bidder; and
      2. From the list of qualified firms as provided in subparagraph (A) of this paragraph, a technical proposal and a price proposal from each firm from which the department shall select the lowest qualified bidder or, in the event the department uses the best value procurement process, the request for proposal shall specify the requirements necessary for the selection of the best value proposer which shall include, at a minimum, a weighted cost component and a technical component. A proposal shall only be considered nonresponsive if it does not contain all the information and level of detail requested in the request for proposal. A proposal shall not be deemed to be nonresponsive solely on the basis of minor irregularities in the proposal that do not directly affect the ability to fairly evaluate the merits of the proposal. Notwithstanding the requirements of Code Section 36-91-21, under no circumstances shall the department use a "best and final offer" standard in awarding a contract in order to induce one proposer to bid against an offer of another proposer. The department may provide for a stipulated fee to be awarded to the short list of qualified proposers who provide a responsive, successful proposal. In consideration for paying the stipulated fee, the department may use any ideas or information contained in the proposals in connection with the contract awarded for the project, or in connection with a subsequent procurement, without obligation to pay any additional compensation to the unsuccessful proposers;
    7. Identification of those projects that the department believes are candidates for design-build contracting; and
    8. Criteria for resolution of contract issues. The department may adopt a method for resolving issues and disputes through negotiations at the project level by the program manager up to and including a dispute review board procedure with final review by the commissioner or his or her designee. Regardless of the status or disposition of the issue or dispute, the design-builder and the department shall continue to perform their contractual responsibilities. The department shall have the authority to suspend or provide for the suspension of Section 108 of the department's standard specifications pending final resolution of such contract issues and disputes. This paragraph shall not prevent an aggrieved party from seeking judicial review.
  5. In contracting for design-build projects, the department shall be limited to contracting for no more than 50 percent of the total amount of construction projects awarded in the previous fiscal year.
  6. Not later than 90 days after the end of the fiscal year, the department shall provide to the Governor, Lieutenant Governor, Speaker of the House of Representatives, and chairpersons of the House and Senate Transportation Committees a summary containing all the projects awarded during the fiscal year using the design-build contracting method. Included in the report shall be an explanation for projects awarded to other than the low bid proposal. This report shall be made available for public information.

(Code 1981, §32-2-81, enacted by Ga. L. 2004, p. 905, § 2; Ga. L. 2005, p. 950, § 1/HB 530; Ga. L. 2009, p. 8, § 32/SB 46; Ga. L. 2010, p. 396, § 1/SB 305; Ga. L. 2012, p. 1343, § 4/HB 817; Ga. L. 2013, p. 68, § 1/SB 70.)

CHAPTER 3 ACQUISITION OF PROPERTY FOR TRANSPORTATION PURPOSES

Article 1 General Provisions.
Article 2 Acquisition of Rights of Way and Easements for Federal Parkways.
Cross references.

- Power of condemnation, Ga. Const. 1983, Art. III, Sec. VI, Para. II.

Exercise by Department of Transportation of power of eminent domain to acquire property for construction of welcome centers, § 50-7-12.

Law reviews.

- For annual survey of law of real property, see 38 Mercer L. Rev. 319 (1986).

JUDICIAL DECISIONS

Effect of

§ 32-8-1 on relocation expenses. - Enactment of O.C.G.A. § 32-8-1 does not alter the fact that relocation expenses, whether awarded judicially or administratively, are still a part of the "just and adequate compensation" guaranteed to condemnees under the Constitution. DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983).

Relocation expenses may be recovered by administrative proceeding.

- Under O.C.G.A. § 32-8-1, a condemnee whose property is being acquired for federally assisted highway projects may, but is not required to, seek payment of relocation expenses directly from the Department of Transportation in an administrative action. DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983).

Seeking administrative payment of relocation expenses precludes a separate judicial determination of the same relocation expenses in the statutorily authorized condemnation proceedings. DOT v. Gibson, 251 Ga. 66, 303 S.E.2d 19 (1983).

ARTICLE 1 GENERAL PROVISIONS

JUDICIAL DECISIONS

Procedure for taking property comports with due process.

- Procedure for taking property under O.C.G.A. Art. 1, Ch. 3, T. 32 does not offend the due process guarantees of either the state or federal constitutions; however, to ensure due process to the property owner, the statute must be strictly conformed to by the condemning body. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Notice pleading does not apply to condemnation proceedings.

- General notion of notice pleading under O.C.G.A. Ch. 11, T. 9 does not apply to condemnation proceedings. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

32-3-1. Authority to acquire property for present or future public road or other transportation purposes.

  1. Any property may be acquired in fee simple or in any lesser interest, including scenic easements, airspace, and rights of access, by a state agency or a county or municipality through gift, devise, exchange, purchase, prescription, dedication, eminent domain, or any other manner provided by law for present or future public road or other transportation purposes.
  2. Public road purposes shall include rights of way; detours; bridges; bridge approaches; ferries; ferry landings; overpasses; underpasses; viaducts; tunnels; fringe parking facilities; borrow pits; offices; shops; depots; storage yards; buildings and other necessary physical facilities of all types; roadside parks and recreational areas; the growth of trees and shrubbery along rights of way; scenic easements; construction for drainage, maintenance, safety, or esthetic purposes; the elimination of encroachments, private or public crossings, or intersections; the establishment of limited-access public roads; the relocation of utilities; and any and all other purposes which may be reasonably related to the development, growth, or enhancement of the public roads of Georgia.
  3. Property or interests shall not be acquired for "future public road purposes," as that term is used in this Code section, unless:
    1. Construction will be commenced on the property to be acquired within a period of not less than two years nor more than ten years following the end of the fiscal year in which the secretary of transportation of the United States approves an advance of all the necessary funds to the department for the acquisition of rights of way for such construction under authority of Title 23, Section 108, United States Code, as amended; and
    2. The intended acquisition is part of a specific plan of highway development, and the acquisition will assist in accomplishing one or more of the following:
      1. A substantial monetary savings;
      2. The enhancement of the integration of highways with public or private urban redevelopment; or
      3. The forestalling of the physical or functional obsolescence of highways.
  4. In the process of acquiring property or interests for any public road purpose, an entire lot, block, or tract of land may be acquired if by so doing the interest of the public will be best served.

(Code 1933, § 95A-601, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1981, p. 878, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32.)

Cross references.

- Municipal street improvements, T. 36, C. 39.

Easements generally, T. 44, C. 9.

Law reviews.

- For article surveying real property law in 1984-1985, see 37 Mercer L. Rev. 343 (1985). For comment on Southern Ry. v. State Hwy. Dep't., 219 Ga. 435, 134 S.E.2d 12 (1963), see 1 Ga. St. B. J. 242 (1964).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 640; former Code 1933, §§ 36-1001, 95-1701, 95-1710, 95-1715, 95-1721, 95-1724, and Chs. 23-6, 95-2, and 95-17; former Ga. L. 1955, p. 559, and former Ga. L. 1961, p. 517, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Condemnation Act requirements override all Civil Practice Act provisions.

- Requirements of the Condemnation Act override all provisions of the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, in conflict with the Condemnation Act's special purposes. DOT v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984).

Service of process requirement.

- Property owner's motion to dismiss for improper service of process was properly denied in a city's in rem forfeiture action because the service requirements of the Civil Procedure Act, O.C.G.A. § 9-11-4(a), did not apply and a property owner was informed of the owner's appellate rights as required by O.C.G.A. § 32-3-1 et seq., Acquisition of Property for Transportation Purposes. Whigham v. City of Atlanta, 262 Ga. App. 742, 586 S.E.2d 412 (2003).

No power to damage property without taking property interest.

- People, in adopting the Constitution, and the General Assembly, in enacting O.C.G.A. § 32-3-1, did not intend to allow a public body to condemn the right to damage property without also taking a property interest. Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981).

No statutory requirement for simultaneous land acquisition.

- Because there is no statutory provision that all land for a project must be acquired simultaneously, the Department of Transportation did not abuse the department's condemnatory powers by taking appellant's property to construct an allegedly private roadway without acquiring the adjacent property necessary to complete the project. Texaco, Inc. v. DOT, 165 Ga. App. 338, 301 S.E.2d 59 (1983).

Property upon which construction will commence within two years is not acquired for "future" public road purposes and is not subject to the restrictions of O.C.G.A. § 32-3-1 upon acquisitions for "future" public road purposes. Citizens Coalition for Planned Growth, Inc. v. Glynn County, 249 Ga. 664, 292 S.E.2d 847 (1982).

For purposes of O.C.G.A. § 32-3-1, "present road purposes" refers to construction to begin in less than two years, while "future public road purposes" refers to construction that will commence within a period of not less than two nor more than ten years. Fulton County v. Davidson, 253 Ga. 734, 325 S.E.2d 135 (1985).

Subdivision lot owners have easement in roads.

- Where the owners of a tract of land subdivide the tract into lots, record a map or plat showing such lots, with designated streets and a public park, and sell lots with reference to such map or plat, the owners are presumed to have irrevocably dedicated such streets and park for the use of all of the lot owners in the subdivision. The owners of lots in the subdivision have an easement in these public areas whether or not there has ever been an acceptance of the dedication by public authorities or the public generally. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

Dedication in plat transfers only easement.

- There is a presumption that the dedication of roads to a county, whether express or implied, transfers only an easement. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

Governing authority can acquire fee-simple title to a county road only through condemnation or an express grant in a deed or other instrument. When a road is established by dedication and there is no express grant of fee-simple title, an easement results. Northpark Assocs. No. 2 v. Homard Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992).

An easement was a compensable property interest in a condemnation action. Lee v. City of Atlanta, 219 Ga. App. 264, 464 S.E.2d 879 (1995).

Municipally owned property.

- Department of Transportation may not exercise eminent domain powers over municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Anticipated condemnation uncompensable.

- Trial court correctly granted the Department of Transportation's motion for summary judgment as to restaurant owner's claim sounding in inverse condemnation since DOT was not even permitted to acquire property interests for future road building until the federal agency had approved in advance all the requisite funding. Thompson v. DOT, 209 Ga. App. 353, 433 S.E.2d 623 (1993).

Compensation for interests.

- Department of Transportation was required to compensate adjoining landowner in action in which the department sought to condemn a strip of land in order to widen a highway for interference with the landowner's access to a public road but not for the revocation of a license allowing the landowner to maintain a driveway over an existing right of way. Harper Invs., Inc. v. DOT, 251 Ga. App. 521, 554 S.E.2d 619 (2001).

Counterclaim.

- After the Department of Transportation initiated condemnation proceedings against a property owner, the owner was not permitted to file a counterclaim to recover damages for unauthorized use of the remainder because the subject of the counterclaim was outside the bounds of this type of condemnation. DOT v. Fina Oil & Chem. Co., 194 Ga. App. 185, 390 S.E.2d 99 (1990).

Striking valuation testimony proper.

- Trial court did not manifestly abuse the court's discretion by striking certain testimony of the condemnee's expert witness regarding valuation on the ground that the testimony was without sufficient foundation since the testimony was based on an assumption of the value as if the subject property had already been subdivided, which it had not; in making the court's ruling, the trial court properly discerned that, even though a different use of the property was shown to have been reasonably probable, a jury cannot evaluate the property as though the new use were an accomplished fact. Woodland Partners Ltd. P'ship v. DOT, 286 Ga. App. 546, 650 S.E.2d 277 (2007), cert. denied, No. S07C1767, 2007 Ga. LEXIS 698 (Ga. 2007).

Cited in DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985); DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181 (1988); DOT v. Foster, 262 Ga. App. 524, 586 S.E.2d 64 (2003); Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006).

Authority to Condemn

Condemnation not required when no prior right of access.

- Condemnor creating a limited access highway does not have to condemn a purported "right of access" where none has previously existed. DOT v. Hardin, 231 Ga. 359, 201 S.E.2d 441 (1973) (decided under former Ga. L. 1955, p. 559).

Condemnation authorized when relocating gas line.

- State Highway Department (now Department of Transportation) is authorized to take property for the relocation of a gas company's interstate gas line since it was in the interest of safety and prevented inconvenience to the public using the gas line and since the acquisition was in furtherance of and reasonably for a public state highway use. Benton v. State Hwy. Dep't, 111 Ga. App. 861, 143 S.E.2d 396 (1965) (decided under former Code 1933, §§ 36-1301, 95-1701, 95-1715, 95-1724).

Condemnation authorized in fee simple.

- City was not attempting to acquire a greater interest in the property than that authorized by law by seeking to acquire the land in fee simple. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

All interests may be condemned, whether acquired by easement or by fee simple title to the property. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Permanent construction easement.

- Under the facts of this case, assertions that the condemnation of a permanent construction easement was an abuse and misuse of the Department of Transportation's (DOT's) powers of condemnation were without merit. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).

So long as general public not excluded from road, power of eminent domain could be exercised.

- Trial court properly denied a condemnee's petition to set aside a declaration of taking filed by a county under O.C.G.A. § 32-3-1 because the road at issue was open for use by the general public despite only a few private citizens most likely using the road; but, so long as the general public was not excluded, the power of eminent domain could be exercised. Emery v. Chattooga County, 325 Ga. App. 587, 753 S.E.2d 149 (2014).

Legislative Intent

Section strictly construed.

- In statutory proceedings, where persons may be deprived of property, this section must be strictly construed. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559.

Any agency in joint project can acquire land.

- Under former Code 1933, § 95-1704a, it was the legislative intent that, when a limited access highway was to be constructed by the joint action of several governmental agencies, the rights of way for the highway could be acquired, by purchase, condemnation, or otherwise, by any of the governmental authorities of this state cooperating in the project. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716 (1958) (decided under former Ga. L. 1955, p. 559).

Trial

1. Preliminary Procedure

Ordinance needed to condemn where required by municipal charter.

- If the charter of a municipality requires the adoption of a valid ordinance as a prerequisite to the condemnation of private property, and such requirement is not complied with prior to the condemnation proceedings, the action will be enjoined. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Condemnation proceedings are in rem.

- Citations of authority that a suitor cannot join in one action in personam a number of persons and causes of action have no application to a condemnation proceeding in rem against described lands. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Condemnor can join several tracts of land in proceeding.

- Condemnor can, in one proceeding, condemn a right of way over several tracts of land owned by different persons. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Exhausting administrative remedies.

- In an action in which the plaintiff landowners filed suit against the defendant county alleging a taking under the Fifth Amendment, and inverse condemnation under Ga. Const. 1983, Art. I, Sec. III, Para. I, in connection with the county's recreational development of the county's adjoining property, because the landowners failed to avail themselves of Georgia's inverse condemnation procedure, the Fifth Amendment takings claim was premature, and the county's motion for partial judgment on the pleadings was granted. Carney v. Gordon County, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

2. Burden of Proof

Condemnor cannot just abandon condemnation proceedings. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Condemnee's burden of proof in city condemnation proceeding.

- In the absence of proof that the city is asserting a right to abandon the project, or that the condemnation proceedings were not in good faith, the condemnation of lands for highways will not be enjoined on the theory that the city is authorized by the city's charter to disapprove an award for the value of the land. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Burden of showing amount and property interest claimed.

- It is the duty of persons claiming an interest in property sought to be condemned to establish the amount and character of the interest claimed. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Burden of showing how and what damage occurred.

- In an action for damages to private property instituted under Ga. Const. 1976, Art. I, Sec. III, Para. I (see Ga. L. Const. 1983, Art. III, Sec. VI, Para. II) and former Code 1933, § 95-1710, allegations showing the nature of the cause, describing the property damaged, and relating the manner in which the property was damaged in the construction of a designated state highway were proper and necessary to set forth the plaintiff's case. Bartow County v. Darnell, 95 Ga. App. 193, 97 S.E.2d 610 (1957) (decided under former Code 1933, § 95-1710).

Trial court erred in denying an agency's motion for a directed verdict pursuant to O.C.G.A. § 9-11-50 in a condemnation proceeding pursuant to O.C.G.A. § 32-3-1 et seq.; the property owner's appraiser failed to provide adequate evidence that the owner suffered consequential damages based on damage to a fence. DOT v. Morris, 263 Ga. App. 606, 588 S.E.2d 773 (2003).

Burden of showing taking for public purpose.

- In order to recover from a county for a taking, the plaintiff must show that the taking was done for a public purpose of the county; however, nothing appearing to the contrary, the allegation that the county took the property as part of a right of way for a road and street within the municipality and while acting in the conduct of the county's business sufficiently alleged the right of the county to condemn the land in question. McGhee v. Floyd County, 95 Ga. App. 221, 97 S.E.2d 529 (1957) (decided under former Code 1933, Chs. 23-6, 95-2).

Taking need not be for public necessity.

- It is not necessary to show that the proposed alteration in the road is a public necessity; it is sufficient to show that it is of public utility. Barnard v. Durrence, 22 Ga. App. 8, 95 S.E. 372 (1918) (decided under former Code 1910, § 640).

3. Verdict and Appeal

Proper to exclude evidence of price paid for nearby land.

- It was not error to exclude from evidence a deed offered by the condemnee to show the price the condemnor paid for land located in alleged close proximity to that of the condemnee. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Code 1933, § 36-1001).

No instructions about condemnation benefits if evidence shows only damage.

- When the condemnee introduced evidence to show that, because of the condemnation, the condemnee would be required to expend certain amounts on fences, screening hedges, and grading, and thus would be consequentially damaged, and there was no evidence as to any consequential benefits resulting from the improvement, the evidence did not authorize a charge on consequential benefits. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Code 1933, § 36-1001).

No double award for taking and access loss.

- When the state has specifically condemned access rights to a proposed highway, and when the highway will result in a loss of access to part of the condemnee's land, a charge which designates the condemnation of access rights as an element of compensation for the taking and the loss of access as an element of consequential damages, does not authorize a double award for the same thing. State Hwy. Dep't v. Price, 123 Ga. App. 655, 182 S.E.2d 175 (1971) (decided under former Ga. L. 1961, p. 517).

Equity court, not jury, determines legality of condemnation.

- In condemnation proceedings, the only issue before the assessors or a jury on appeal is the amount of compensation to be paid, and neither the assessors nor a jury can determine whether the condemnor is proceeding legally; the remedy of the landowners is to apply to a court of equity to enjoin the illegal proceedings. Garden Parks v. Fulton County, 88 Ga. App. 97, 76 S.E.2d 31 (1953) (decided under former Ga. L. 1961, p. 517).

Prerequisites for vacating judgment for property value.

- Affirmative action seeking to set aside judgment in favor of condemnor, and payment of all expenses and damages accrued to the condemnee, are essential to the vacating and setting aside of a judgment for the value of property condemned. Marist Soc'y v. City of Atlanta, 212 Ga. 115, 90 S.E.2d 564 (1955) (decided under former Ga. L. 1955, p. 559).

Previous donation by condemnee.

- Since previous donation by condemnee had no relevance to the determination of the amount of just and adequate compensation for the property taken, references by condemnee's president to that previous donation as having been "forced" and "coerced" implied that condemnor had acted in bad faith; thus, the testimony by condemnee's president was both irrelevant and prejudicial. DOT v. Ultima-Trimble, Ltd., 204 Ga. App. 309, 418 S.E.2d 820 (1992).

Comparable sales properly considered.

- Jury was authorized to determine that evidence of comparable sales in the area of a landowner's land, even though higher than the landowner's expert's opinion of the market value of the acreage, reasonably established the value of the land, and it could fix the market value of the land higher or lower than that amount asserted by an expert, provided that the jury's verdict was not so disparate as to justify an inference of gross mistake or undue bias; thus, when the evidence supported the jury's award, there was no inference that it was the result of gross mistake or undue bias. DOT v. Brannan, 278 Ga. App. 717, 629 S.E.2d 481 (2006).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-2904 and 95-2907, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

No expenditure of money on historic preservation if not for transportation.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances where the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) when such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of § 32-1-3).

License for department to build retaining wall on slope easement.

- Department of Transportation is responsible for acquiring the proper permission from a property owner in the form of a license to erect a retaining wall upon a slope easement; after permission is acquired, a wall may be erected and the original license is converted into an easement by operation of law; permission for the erection of retaining walls should be in writing so that a court need not make a factual determination as to whether permission was granted. 1971 Op. Att'y Gen. No. 71-165 (decided under former Code 1933, §§ 95-2904, 95-2907).

RESEARCH REFERENCES

ALR.

- Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Eminent domain: possibility of overcoming specific obstacles to contemplated use as element in determining existence of necessary public use, 22 A.L.R.4th 840.

32-3-2. Acquisition procedure generally; recording order and judgment or instrument of conveyance; filing order and judgment or instrument in records of department.

All acquisition of property or interests for public road and other transportation purposes shall proceed under the methods set out in this article and in Title 22. Any instrument which conveys such property or interest to or any order and judgment which vests such property or interest in a state agency, county, or municipality shall be recorded in the name of the agency, county, or municipality in each county wherein the property or interest may lie, notwithstanding Code Section 50-16-3. In the case of property or interests acquired by the department, the instrument or order and judgment shall also be kept in the records of the department. Article 1 of Chapter 6 of Title 48 shall not apply to property or interests acquired under the authority of this article.

(Code 1933, § 95A-602, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For comment on Southern Ry. v. State Hwy. Dep't, 219 Ga. 435, 134 S.E.2d 12 (1963), see 1 Ga. St. B. J. 242 (1964).

JUDICIAL DECISIONS

Cited in Citizens Coalition for Planned Growth, Inc. v. Glynn County, 249 Ga. 664, 292 S.E.2d 847 (1982); DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

RESEARCH REFERENCES

ALR.

- Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

32-3-3. Acquisition of property by devise, exchange, prescription, or dedication; acquisition by county or municipality on behalf of department.

  1. The department or any county or municipality is authorized to accept donations, transfers, or devises of land from private persons, from the federal government, or from other state agencies, counties, or municipalities, provided that such land is suitable for present or future public road purposes. Any property may be so acquired in fee or any lesser interest, provided that the state agency, county, or municipality thereby obtains an interest sufficient to ensure reasonable protection of the public investment which it may thereafter make in such land. The instrument which conveys such property or interest shall be recorded in the county or counties where such property or interest lies and, in the case of property or interests acquired by the department, shall also be kept in the records of the department.
  2. Any state agency, county, or municipality is authorized, for public road purposes, to enter into agreements with other state agencies, counties, or municipalities, with the federal government, and with private persons for the exchange of real property or interests therein for public road purposes. Such exchange shall not be consummated unless the exchange serves the best interest of the public and unless the property or interest to be acquired in exchange is appraised as being of equal value to, or of greater value than, the property or interest to be exchanged.
  3. Notwithstanding Code Section 44-5-163, any state agency, county, or municipality is authorized to acquire by prescription and to incorporate into its system of public roads any road on private land which has come to be a public road by the exercise of unlimited public use for the preceding seven years or more.
  4. Any state agency, county, or municipality may acquire rights of way or other real property or interests therein by dedication, provided that the property or interests are adequate for public road purposes and serve the best interests of the public; provided, further, that the agency, county, or municipality receives a warranty deed, except where the property or interest is acquired from a state or federal agency, a county, or a municipality, in which case, where legally possible, a warranty deed shall be received; but, if it is not legally possible to receive a warranty deed, then a quitclaim deed shall be received.
  5. When a road is approved as part of the state highway system, it shall be the duty of the county or municipality through which the road will pass to assist the department in procuring the necessary rights of way as economically as possible; and all expenses thereof shall be paid as provided in Code Section 32-5-25, provided that, whenever the county or municipality acquires property or interests for the department, title to such property or interest may be acquired in the name of the department.

(Code 1933, § 95A-602, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32.)

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 509 and former Code 1933, §§ 85-410 and 95-1721, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Intergovernmental exchanges not governed by disposal provisions.

- An exchange of condemned property between the Department of Transportation and a county did not require application of the notice requirements and repurchase rights of O.C.G.A. § 32-7-4. Swims v. Fulton County, 267 Ga. 94, 475 S.E.2d 597 (1996).

Construction.

- Phrase "adequate for public road purposes" in O.C.G.A. § 32-3-3(d) did not mean that the property presently had to have a road constructed on it that met certain engineering standards, but that, in a general sense, the property to be acquired must have been suitable or adequate for accommodating a public road. Rabun County v. Mt. Creek Estates, LLC, 280 Ga. 855, 632 S.E.2d 140 (2006).

Cited in DOT v. Ridley, 149 Ga. App. 16, 253 S.E.2d 563 (1979); Citizens Coalition for Planned Growth, Inc. v. Glynn County, 249 Ga. 664, 292 S.E.2d 847 (1982); DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Prescription

Creation of public road.

- Under the common law, a public road may come into existence by prescription. Southern Ry. v. Combs, 124 Ga. 1004, 53 S.E. 508 (1906) (decided under former Civil Code 1895, § 509).

Since a private road had been blocked and impassable for more than 10 years, there could not have been continuous use of the road for 7 years and, therefore, there could be no prescriptive rights in the road. Chandler v. Robinson, 269 Ga. 881, 506 S.E.2d 121 (1998), overruled on other grounds, Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (2007).

Road obtained by prescription becomes public.

- Public road can come into existence by public use and public work, and when such use and work are continuous for 20 years, it is certainly a public road, so far as the right of the people to use the road as a highway is concerned. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Mandamus to require county to maintain road.

- Group of landowners were properly granted mandamus relief requiring a county to maintain an adjacent road as the county acquired title to the road by prescriptive acquisition, abandonment was not an issue, and compliance with O.C.G.A. § 32-3-3(c) did not need to be shown when a roadway was otherwise acquired by prescription; moreover, urging that a county's failure to meet the county's obligation to maintain public roads was an acceptable method of abandoning a roadway would encourage counties to disregard their public duty. Shearin v. Wayne Davis & Co., P.C., 281 Ga. 385, 637 S.E.2d 679 (2006).

Dedication

Highway may come into existence by dedication. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Highway may under certain circumstances be implied. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Owner's intention to dedicate property to public use must be shown, whether express or implied. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Dedication may be written, by parol, inferred, or implied.

- Dedication may be made in writing, or by parol; or dedication may be inferred from acts, or implied, in certain cases, from long use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Dedication by acts showing assent to public use.

- Intention to dedicate property to public use is essential to a dedication, but this may be proved by acts showing an assent that property should be so used and enjoyed. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Acts must show unambiguous intent to abandon.

- When an established dedication is claimed, the acts relied on to establish the dedication must be such as to clearly and satisfactorily indicate a purpose on the part of the owner to abandon the owner's personal dominion over the property and to devote the property to a definite public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

In order to constitute a dedication of land to public uses, an intention on the part of the owner to abandon the use of the land to the public must be shown by proof of unequivocal and unambiguous words or acts of such owner; the circumstances must be such as to show a clear assent to such dedication. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Inference from owner's acquiescence implies knowledge of public claim.

- While an intention to dedicate need not be shown by an express declaration to that effect, but may be inferred under certain circumstances from an acquiescence by the owner in the use of the owner's property by the public, such acquiescence is in the nature of an estoppel in pais, and implies a knowledge on the part of the owner of the claim by the public to the right to appropriate the owner's property to the public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Occasional public roadwork does not prove presumptive dedication.

- Occasional road-working of property by public authorities, there being no other evidence of maintenance, is not of itself sufficient to create the presumption of an intention to dedicate; the use and maintenance must be of the character and for the length of time sufficient to create a presumptive right of the public therein. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Retention of dominion despite public use.

- Mere fact that the public uses the property of a private individual is not necessarily inconsistent with the retention of dominion by the owner. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Mere use of one's property by a small portion of the public, even for an extended period of time, is not sufficient to authorize an inference that the property has been dedicated to a public use, unless it clearly appears that there was an intention to dedicate, and that this dedication was accepted by the public authorities, either in express terms or by implication resulting from the maintenance of a way public in its nature. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Failure to act in isolated instances.

- Acquiescence cannot be effective to deprive the owner of the owner's property when the claimed acquiescence amounts to no more than a failure to protest in isolated instances when some members of the public travel over the owner's land. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Period must be long enough to presume gift.

- In every case of an implied dedication it must appear that the property has been in the exclusive control of the public for a period long enough to raise the presumption of a gift. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Differences Between Dedication and Prescription

Dedication implies conveyance and acceptance, while prescription requires unbroken possession or use under claim of right. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Prescription requires public use for 20 years.

- Before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way without interruption or substantial change, for a period of 20 years or more; the use must not only be adverse, but the use must be continuous and uninterrupted, although it is not every slight or occasional use of the land by the owner that will constitute an interruption of the public use. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Uninterrupted adverse use under claim of right.

- When there is no other evidence against the owner to support a dedication but the mere fact of such use, so that the right claimed by the public is purely prescriptive, it is essential, to maintain it, that the use or enjoyment should be adverse, that is with a claim of right, and uninterrupted and exclusive for the requisite length of time. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Less use needed for dedication than for prescription.

- Since there was no intention to dedicate, but the public has taken possession of the property of an individual, and used and maintained the property as a highway for a period of 20 years or more, a highway by prescription becomes complete; when there was an intention to dedicate, the maintenance of a way for a less time will bring into existence a completed highway by dedication. Dunaway v. Windsor, 197 Ga. 705, 30 S.E.2d 627 (1944) (decided under former Code 1933, § 85-410).

Procuring Rights of Way

County must negotiate with owner.

- Negotiations by a county authority, procuring rights-of-way for roads in the name of the State Highway Department (now Department of Transportation) in an effort to agree with the owner of the property to be taken are not only authorized, but are required. Miller v. State Hwy. Dep't, 200 Ga. 485, 37 S.E.2d 365 (1946) (decided under former Code 1933, § 95-1721).

OPINIONS OF THE ATTORNEY GENERAL

No transfer tax on property acquired by Department of Transportation.

- Tax on transfer of real property does not apply to property acquired by Department of Transportation. 1974 Op. Att'y Gen. No. U74-56.

What property may be exchanged.

- DOT may only exchange real property for real property and may not include any exchange of money or other personal property in such an exchange. 1992 Op. Att'y Gen. No. 92-8.

RESEARCH REFERENCES

ALR.

- Reservation of right of way for railroad or street railway in dedicating property for highway, 43 A.L.R. 766; 131 A.L.R. 1472.

Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Validity and effect of conditions or covenants in deed of property for streets relating to the use of the property or the street, 69 A.L.R. 1047.

Dedication: acceptance of some of streets, alleys, and the like appearing on plat as acceptance of all, 32 A.L.R.2d 953.

Width and boundaries of public highway acquired by prescription or adverse use, 76 A.L.R.2d 535.

Relative rights and liabilities of abutting owners and public authorities in parkways in center of street, 81 A.L.R.2d 1436.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

32-3-3.1. Relocation or reconstruction of outdoor advertising sign; requirements.

  1. When rights of way or real property or interests therein are acquired by a state agency, county, or municipality for public road purposes and an outdoor advertising sign permitted by the state in accordance with Part 2 of Article 3 of Chapter 6 of this title and a local county or municipal ordinance, which has not lapsed and is in good standing, is located upon such property, the outdoor advertising sign may be relocated or reconstructed and relocated through agreement of the owner of the property and owner of the outdoor advertising sign, if such owners do not refer to the same person, so long as the new location:
    1. Is within 250 feet of its original location, provided that the new location meets the requirements for an outdoor advertising sign provided in Part 2 of Article 3 of Chapter 6 of this title;
    2. Is available to the owner of the outdoor advertising sign and is comparable to the original location, as agreed upon by the owner of the outdoor advertising sign and the department;
    3. Does not result in a violation of federal or state law; and
    4. Is within zoned commercial or industrial areas or unzoned commercial or industrial areas as defined in Code Section 32-6-71.
  2. An outdoor advertising sign relocated as provided for in subsection (a) of this Code section may be adjusted in height or angle or both in order to restore the visibility of the sign to the same or a comparable visibility which existed prior to acquisition by a state agency, county, or municipality, provided that the height of such relocated sign shall not exceed the greater of the height of the existing sign or 75 feet, as measured from the base of the sign or the crown of the adjacent roadway to which the sign is permitted, whichever is greater.
  3. For any federal aid project or any project financed in whole or in part with federal funds, the actual costs of relocation or reconstruction and relocation of an outdoor advertising sign relocated as provided for in subsection (a) of this Code section shall be paid by the department. For any project not financed in whole or in part with federal funds, the actual costs of relocation or reconstruction and relocation shall be paid by the owner of the outdoor advertising sign.
  4. If no relocation site that meets the requirements of paragraphs (1) through (4) of subsection (a) of this Code section exists, just and adequate compensation shall be paid by the department to the owner of the outdoor advertising sign.
  5. If a sign is eligible to be relocated as provided for in subsection (a) of this Code section but such new location would result in a conflict with local ordinances in the city or county of applicable jurisdiction and no variance or other exception is granted to allow relocation as requested by the owner of the outdoor advertising sign, just and adequate compensation shall be paid by the local governing authority to the owner of the outdoor advertising sign. However, no compensation resulting from the denial of a variance or exception by a local governing authority for an outdoor advertising sign eligible for relocation under this Code section shall be paid either directly or indirectly by the department.

(Code 1981, §32-3-3.1, enacted by Ga. L. 2015, p. 1072, § 5/SB 169.)

32-3-4. Authority to bring condemnation proceedings.

  1. Whenever any state agency, county, or municipality desires to take or damage private property, including scenic easements, air rights, rights of access, and other interests in land for public road purposes or for any other public transportation purposes and shall find or believe, concerning which the decision of the condemning authority shall be final and conclusive, that the title of the apparent or presumptive owner of such property is defective, doubtful, incomplete, or in controversy, or that there are or may be unknown persons or nonresidents who have or may have some claim or demand thereon or some actual or contingent interest or estate therein, or that there are minors or persons under disability who are or may be interested therein, or that there are taxes due or that should be paid thereon, or shall for any reason conclude that it is desirable to have a judicial ascertainment of any question connected with the matter, such state agency, county, or municipality, through any authorized representative, may file a proceeding in rem in the superior court of the county having jurisdiction condemning the property or interests to the use of the petitioner upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.
  2. When the acquisition of public property or an interest therein is necessary for public road purposes, including limited-access roads provided for by Article 4 of Chapter 6 of this title, the department may acquire such public property or interest therein by condemnation and the power of eminent domain when such acquisition is approved by the State Commission on the Condemnation of Public Property as provided in Code Section 50-16-183. The procedures for the condemnation of property provided for in this Code section and Code Sections 32-3-5 through 32-3-19 of this article and the procedures provided for the condemnation of property in Article 3 of Chapter 2 of Title 22 and the procedures provided for the condemnation of property in Article 2 of Chapter 2 of Title 22 when the property sought is a public cemetery shall apply to the condemnation of public property or an interest therein by the department. As used in this subsection, the term "public property" has the meaning provided for in Code Section 50-16-180.

(Code 1933, § 95A-603, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1979, p. 973, § 4; Ga. L. 1982, p. 3, § 32; Ga. L. 1986, p. 1187, § 4.)

Law reviews.

- For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Condemning Local Government Condemnation," see 39 Mercer L. Rev. 11 (1987). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009).

JUDICIAL DECISIONS

Choice of condemnation procedures.

- Even though the title to property to be condemned for transportation purposes was not in question, a city could choose to use procedures set forth in O.C.G.A. § 32-3-4 and, although the city could have done so, was not required to use the procedures set forth in O.C.G.A. § 22-2-1 et seq. Back v. City of Warner Robins, 217 Ga. App. 326, 457 S.E.2d 582 (1995).

Definition of "owners."

- Word "owners" as used in this statutory scheme means all parties having an interest in the subject land, whether their claims be based on a warranty deed, security deed, filed lis pendens notice, or other statutory lien. DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976).

Land condemnable in one proceeding.

- If the ownership rights of any one with an interest in the land attaches to one tract of land in its entirety, regardless of the extent of the claims of the other "owners," the tract of land can be condemned in a single in rem action. DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976); DOT v. Kenney, 238 Ga. 173, 231 S.E.2d 767 (1977).

No compensation for traffic pattern change.

- Compensation for a change in the traffic pattern on the road adjacent to the condemnees' property is not recoverable. DOT v. Katz, 169 Ga. App. 310, 312 S.E.2d 635 (1983).

Consideration of other factors impacting deprivation.

- In a condemnation case, the jury instructions as a whole were correct in informing the jury that when the owner's access to a public road was taken, the deprivation should be compensated, but the jury could consider whether the owner had any alternative access when determining the amount of damages due to the deprivation of access. Curry v. DOT, 341 Ga. App. 482, 801 S.E.2d 95 (2017).

Department of Transportation's exercise of eminent domain powers.

- Department of Transportation may not exercise eminent domain powers over municipally owned property as the legislature has not clearly granted such authority or created a procedure therefore, and as such grant may not be implied from statutory provisions generally establishing a procedure for state agencies to condemn "private property." DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985) (decided prior to the 1986 amendment, which added subsection (b)).

Admission of deeds of sale on other properties as direct evidence of valuation.

- In a condemnation action wherein a county challenged the valuation placed on the landowner's property, the trial court did not abuse the court's discretion by allowing the admission of four deeds of sale on other properties as direct evidence of the condemned property's value since a proper foundation was laid for the deeds and dissimilarities in the land went to the weight of the evidence of the deeds, not the admissibility of the deeds. Henry County v. RJR Mgmt. One, LLC, 290 Ga. App. 241, 659 S.E.2d 676 (2008).

Trial court erred in dismissing the Georgia Department of Transportation's (DOT's) condemnation petition for the department's failure to submit a properly attested affidavit with the department's petition as the condemnees were estopped from challenging the taking of the condemnees' property because the condemnees withdrew the money deposited by DOT in the court registry. Ga. DOT v. Bowles, 292 Ga. App. 829, 666 S.E.2d 92 (2008).

Cited in Chamlee v. DOT, 189 Ga. App. 334, 375 S.E.2d 626 (1988).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 54, 69, 70.

C.J.S.

- 29A C.J.S., Eminent Domain, §§ 32, 33, 100, 101, 107 et seq.

32-3-5. Contents of condemnation petition; notice.

  1. The petition referred to in Code Section 32-3-4 shall set forth:
    1. The facts showing the right to condemn;
    2. The property or interests to be taken or damaged;
    3. The names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known;
    4. Descriptions of the persons or classes of unknown persons whose rights therein are to be excluded or otherwise affected;
    5. Such other facts as are necessary for a full understanding of the cause;
    6. A prayer for the judgment of the court in accordance with Code Section 32-3-13 or 32-3-19; and
    7. The date of the approval of the original location of the highway.
  2. If any of the persons referred to in the petition are, so far as may be known, minors or under disability, that fact shall be stated.
  3. It shall be the duty of the condemning authority, within 30 days from the date of the original approval and designation of said location as a highway, to cause the location of said highway in said county to be advertised once each week for four consecutive weeks in the newspaper of the county in which the sheriff's advertisements are carried; and said advertisement shall designate the land lots or land districts of said county through which such highway will be located. Said advertisement shall further show the date of the original location of such highway as provided for in this subsection. Said advertisement shall further state that a plat or map of the project showing the exact date of the original location is on file at the office of the Department of Transportation and that any interested party may obtain a copy of same by writing to the Department of Transportation and paying a nominal cost therefor.

(Code 1933, § 95A-604, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1998, p. 1539, § 10.)

Law reviews.

- For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U. L. Rev. 115 (1998). For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009).

JUDICIAL DECISIONS

Necessity of taking is presumed.

- O.C.G.A. § 32-3-5 does not require the condemnor in its condemnation to establish the necessity of condemning the particular property taken; necessity is presumed, and the presumption is rebutted only by a showing by the condemnee of fraud or bad faith by the condemnor in its decision to condemn the land. West v. DOT, 176 Ga. App. 806, 338 S.E.2d 45 (1985).

Descriptions sufficiently clear to allow proof of damages.

- When the notice clearly described and depicted the easement areas and specified the permanent nature of the easements, the descriptions were sufficiently clear to allow proof of damages. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).

Property or interests to be taken or damaged.

- Court did not abuse the court's discretion when the court directed the Department of Transportation as condemnor to recast the department's declaration of taking to include reasonably foreseeable personalty and fixtures. DOT v. Whitfield, 233 Ga. App. 747, 505 S.E.2d 247 (1998).

Cited in DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); DOT v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988); Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544 (1988); DOT v. Whitfield, 233 Ga. App. 747, 505 S.E.2d 247 (1998).

32-3-6. Declaration of taking; Order of condemnation by condemning authority.

  1. In addition to the petition filed pursuant to Code Section 32-3-4, the petitioner shall also file with the court a declaration of taking signed by:
    1. The commissioner or the deputy commissioner of the Department of Transportation if the petitioner is seeking to acquire property or interests on behalf of the department;
    2. The county governing authority if the petitioner is seeking to condemn for county road system purposes or any other public transportation purpose; or
    3. The municipal governing authority if the petitioner is seeking to condemn for municipal street system purposes or any other public transportation purpose.
  2. The declaration of taking shall declare that the lands are being taken for the use of the condemnor, subject to the order of the court provided for in Code Section 32-3-12. The declaration shall contain or have annexed thereto:
    1. A statement of the authority under which, and the public use for which, such lands are taken;
    2. A description of the lands taken sufficient for the identification thereof;
    3. A statement of the estate or interest in the lands taken for public use;
    4. A plat showing the lands taken;
    5. A statement of the sum of money estimated by the condemning authority to be just compensation for the land taken, including consequential damages to land not taken, accompanied by a sworn copy as an exhibit of the appraiser's statement justifying the sum; and
    6. A certified copy of an order by the commissioner if the property or interest is being condemned for the department or by the county or municipality if the property or interest is being condemned for a county or municipality, finding that the circumstances are such that it is necessary to proceed in the particular case under this article, and specifically authorizing condemnation under this article.
  3. Such an order of the commissioner or governing authority shall be conclusive as to the use of the property or interest condemned and as to the authority of the commissioner or governing authority to condemn under this article.

(Code 1933, § 95A-605, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 15; Ga. L. 1975, p. 813, § 1; Ga. L. 1979, p. 973, § 5.)

Law reviews.

- For annual survey on real property law, see 61 Mercer L. Rev. 301 (2009).

JUDICIAL DECISIONS

Condemnor must prove just and adequate compensation.

- Condemnor has the burden of proving just and adequate compensation in condemnation cases, but once the condemnor has established a prima facie case, the burden is on the condemnee to produce overcoming evidence when the condemnor asserts greater value or damage. West v. DOT, 176 Ga. App. 806, 338 S.E.2d 45 (1985).

Condemnor must show declaration of taking method was necessary.

- City's declaration of taking violated O.C.G.A. § 32-3-6(b)(6) and, consequently, could not vest title in the city; the declaration of taking method could not have been necessary or essential, as required by the statute, when the city council also contemplated and specifically authorized use of an alternative method. City of Atlanta v. Yusen Air & Sea Serv. Holdings Inc., 263 Ga. App. 82, 587 S.E.2d 230 (2003).

Easement not adequately described.

- When the Department of Transportation filed a declaration of taking pursuant to O.C.G.A. § 32-3-1 et seq., which included the taking of a temporary work easement to be used in the demolition of a building on condemned property, the department did not adequately describe the easement as the department's plat attached to the department's declaration did not describe the easement, and there was no description of the easement's width nor any limitation regarding a pathway which had to be used when traversing land not condemned; the issue was not rendered moot by the fact that the condemnees did not obtain a stay pending appeal and the work was completed during the appeal's pendency because O.C.G.A. § 32-3-17.1 authorized a trial court to order a condemnor to amend a defective declaration of taking. Ga. 400 Indus. Park, Inc. v. DOT, 274 Ga. App. 153, 616 S.E.2d 903 (2005).

Affidavit as to just compensation not an admission of fact.

- Department of Transportation's affidavit filed pursuant to paragraph (b)(5) of O.C.G.A. § 32-3-6 did not constitute an admission of fact which would be admissible against the Department of Transportation in the condemnee's appeal pursuant to O.C.G.A. § 32-3-14. Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984).

Failure to allow impeachment of state appraiser warrants new trial.

- Condemnees were entitled to a new trial in a Georgia Department of Transportation (DOT) condemnation proceeding; the trial court erred in refusing to allow impeachment of the DOT expert with the disparity between the expert's pretrial estimate of just compensation (JC) and the higher estimate the expert gave at trial as impeachment might have convinced the jury to award JC closer to the higher JC estimate of the condemnees' expert. Steele v. DOT, 295 Ga. App. 244, 671 S.E.2d 275 (2008).

Condemnor not bound by original estimate upon condemnee's appeal.

- If a condemnee is dissatisfied with the compensation originally estimated by the condemnor and elects to appeal that issue to a jury, the condemnor is not bound by the condemnor's original estimate but can present evidence de novo as to fair market value and consequential damages. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983); Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984).

Right to attorney fees in condemnation proceeding.

- Party in condemnation proceeding acquired no vested right in attorney fees awarded to the attorney through the judgment of the trial court. DOT v. Kendricks, 244 Ga. 613, 261 S.E.2d 391 (1979).

Cited in DOT v. Lurie, 138 Ga. App. 9, 225 S.E.2d 687 (1976); Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976); Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977); DOT v. Worley, 150 Ga. App. 768, 258 S.E.2d 595 (1979); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); DOT v. Rudeseal, 156 Ga. App. 712, 276 S.E.2d 52 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Right to interest in condemnation proceeding.

- Right to receive interest as part of just and adequate compensation vests on date of taking, which is the day the declaration of taking, accompanied by the payment of just and adequate compensation, is filed in a superior court. 1980 Op. Att'y Gen. No. 80-100.

32-3-7. Deposit of estimated compensation; vesting of title in condemning authority; protection of due process rights.

  1. Upon the filing of the declaration of taking and the deposit into court, which deposit shall be made at the time the declaration of taking is filed to the use of the persons entitled thereto, of the sum of money estimated in the declaration by the condemning authority to be just compensation, title to the property in fee simple absolute or such lesser interest as is specified in the declaration shall vest in the condemnor; the land shall be deemed to be condemned and taken for the use of the condemnor; and the right to just compensation for the same shall vest in the persons entitled thereto.
  2. Nothing in this Code section shall be construed so as to deprive the owner of the property or interest of due process of law as guaranteed by the Constitutions of Georgia and of the United States.

(Code 1933, § 95A-605, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32.)

JUDICIAL DECISIONS

Effect of petition.

- Petition is not mere pleading but instrument which passes title when filed and just and adequate compensation is paid into the court under O.C.G.A. § 32-3-7. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Standing.

- Temporary administratrix, who was also the wife of the decedent landowner, had standing as a party to the action for the recovery of just compensation for land taken by the Department of Transportation in a condemnation proceeding. DOT v. Foster, 262 Ga. App. 524, 586 S.E.2d 64 (2003).

Open Records Law.

- "Property has been acquired" for purposes of the Open Records Law, O.C.G.A. § 50-18-70 et seq., exemption only after condemnation proceedings, including any litigation, have been completed. Black v. Georgia DOT, 262 Ga. 342, 417 S.E.2d 655 (1992).

Effect of omission of commencement date.

- Department of Transportation's omission of the commencement date of the temporary construction easement the department sought to condemn did not render the declaration of taking invalid; as a matter of law, the commencement date for the temporary construction easement is the date of the taking. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).

Nonconforming declaration of taking cannot vest title in condemnor.

- Declaration of taking which does not conform to the dictates of O.C.G.A. § 32-3-7 cannot vest title to the land in the condemnor. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Vesting of title by amended declaration.

- Amended declaration can only vest title in condemnor at time of amendment, and does not relate vesting back to the time of the original declaration. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Amendment to justification of just and adequate compensation.

- Along with amendment to declaration, amendment to justification of just and adequate compensation should be filed by condemnor. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Date of taking for determining land value or consequential damages.

- For the purpose of determining the value of the land taken or consequential damages to land not taken, the condemnee shall have the right to elect whether the date of taking is the date of the filing of the original declaration of taking or the date of the filing of the amendment. Dorsey v. DOT, 248 Ga. 34, 279 S.E.2d 707 (1981).

Condemnee has no vested right in attorney fees granted by court.

- Party in condemnation proceeding acquired no vested right in the attorney fees awarded to the party through the judgment of the trial court. DOT v. Kendricks, 244 Ga. 613, 261 S.E.2d 391 (1979).

Trial court does not have authority, under O.C.G.A. § 32-3-7, to require payment of reasonable and necessary attorney fees and expenses of litigation for proceedings before an appellate court of this state. DOT v. Franco's Pizza & Delicatessen, Inc., 200 Ga. App. 723, 409 S.E.2d 281, cert. denied, 200 Ga. App. 895, 409 S.E.2d 281 (1991), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994).

Condemnation not required when no prior right of access.

- Condemnor creating a limited access highway need not condemn a purported "right of access" where none has previously existed. DOT v. Hardin, 231 Ga. 359, 201 S.E.2d 441 (1973) (decided under former Ga. L. 1955, p. 559).

Cited in DOT v. Lurie, 138 Ga. App. 9, 225 S.E.2d 687 (1976); Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976); Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977); DOT v. Worley, 150 Ga. App. 768, 258 S.E.2d 595 (1979); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Blonder v. Department of Transp., 156 Ga. App. 711, 275 S.E.2d 762 (1980); DOT v. Delta Mach. Prods. Co., 162 Ga. App. 252, 291 S.E.2d 104 (1982); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Right to interest in condemnation proceeding.

- Right to receive interest as part of just and adequate compensation vests on date of taking, which is the day the declaration of taking, accompanied by the payment of just and adequate compensation, is filed in a superior court. 1980 Op. Att'y Gen. No. 80-100.

Surplus property, not to be placed in court registry.

- Legislature intended that only money, and not surplus property, be placed into the court registry for satisfaction of any judgment resulting from a condemnation action. 1992 Op. Att'y Gen. No. 92-8.

RESEARCH REFERENCES

ALR.

- Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

32-3-8. Service of process in condemnation proceedings generally.

  1. Upon the filing of the petition and declaration, where the owner or owners of the property sought to be condemned or any person having a claim against or interest in the same are residents of this state, the petition and declaration shall be served upon such persons personally. In cases where such persons are residents of this state but not of the county in which such property or interest is located, such service shall be by second original, as in other cases.
  2. If the owner, or any of the owners, or any person having a claim against or interest in the property is a minor or under any disability whatsoever, such notice shall be served:
    1. Upon his or her guardian; and, if such guardian is a nonresident of this state, upon the judge of the probate court of the county in which the property or interest is located, who shall appoint a guardian ad litem to represent such minors or persons under disability in the litigation, provided that, if the nonresident guardian intervenes, he or she shall serve in lieu of the guardian ad litem; or
    2. If there is no guardian, personally upon the minor, where such minor is a resident of this state. If such minor is not a resident of the county where the property or interest is located, service shall be by second original, as is provided by law in other cases, and upon the judge of the probate court of the county where the property or interest is located, who shall appoint a guardian ad litem to represent the minor in the litigation.
  3. In subsection (b) of this Code section, if the judge of the probate court is disqualified, for reason of interest or other cause, notice shall be served upon the clerk of the superior court of the county, who shall appoint a guardian ad litem to represent the minor or person under disability.
  4. If the property or interest sought to be condemned is held in trust or if the condemnation is directed toward property in which remainders have been created, notice shall be served upon the trustee and also upon such persons as have an interest under the conveyance and who are of age, provided that, where any of the persons to be served are not residents of the county, such service shall be by second original, as in other cases.
  5. A copy of the petition and declaration shall be served upon the tax collecting authority of any county or municipality in which the property or interest may be located, who shall make known in writing the taxes due on the property or interest; and the court shall give such direction as will satisfy the same and discharge the lien thereon.
  6. In all instances, and in addition to the service provided for in this Code section, the condemnor shall, at the time of filing the petition and declaration of taking, cause a copy of such proceedings to be posted on the bulletin board at the courthouse. In addition thereto, such advertisement shall be published in the official newspaper of the county in which the property or interest is located, which notice shall describe the property or interest taken so as to identify the same and shall give the name or names of the owner or owners of such property or interest or persons having claims against such property or interest so far as the same may be known. Such notice shall be published in such newspaper once each week for two weeks subsequent to the filing of such petition and declaration.

(Code 1933, § 95A-606, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2004, p. 161, § 7.1.)

Cross references.

- Service of process generally, § 9-11-4.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1882, § 606; former Civil Code 1895, § 520; and former Civil Code 1910, §§ 640 - 642, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Effect of section on other section's definition of personal service.

- Ga. L. 1973, p. 947, § 1 (see now O.C.G.A. § 32-3-8) requires that the petition and declaration shall be served personally, but personal service as defined in Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) is not in conflict with this requirement. DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).

Condemnee's right to proper service until voluntary waiver.

- Condemnees have a perfect right to waive service and come in, but until the condemnees are properly served, and unless the record shows this fact by a proper return of service, the right remains until the right is voluntarily waived. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

Extension for late-filed affidavits of service in O.C.G.A.

§ 9-11-4(h) did not apply in condemnation case. - In a condemnation case, the trial court did not err in dismissing the property owners' notice of appeal as untimely under O.C.G.A. § 32-3-14, which allowed 30 days from the date of service to appeal; although the affidavits of service were filed more than five business days from the date of service, which would trigger a tolling of the deadline under O.C.G.A. § 9-11-4(h), the rule of civil procedure conflicted with the special eminent domain statute and therefore did not apply. Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

No presumption of compliance.

- Order of the commissioner authorizing the widening of a public road and reciting "that notice of such widening had been published as required by law" furnishes no evidence by presumption or otherwise that persons or agents, residing on the land through which such road goes, were notified in writing as required. Fulton County v. Amorous, 89 Ga. 614, 16 S.E. 201 (1892) (decided under former Code 1882, § 606).

Notice mandatory in condemnation.

- If no notice is given as required, a petition to enjoin the condemnation of the land for the road should be sustained. Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Civil Code 1910, § 642).

Injunction proper if notice not given.

- It is error for the court to refuse to enjoin the county authorities from proceeding to condemn the land, there having been no compliance with former Civil Code 1910, § 640 et seq. Ainslee v. County of Morgan, 151 Ga. 82, 105 S.E. 836 (1921); Mitchell County v. Hudspeth, 151 Ga. 767, 108 S.E. 305 (1921); Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Civil Code 1910, § 640).

Notice to agent insufficient.

- When one purporting to be an agent of the owner of lands signs the application for establishing a road with the letters "agt." after the individual's name, this is an individual signature and will not deprive the owner of the owner's right to notice. Commissioners of Roads & Revenues v. Curry, 154 Ga. 378, 114 S.E. 341 (1922) (decided under former Code 1910, § 642).

Lessee entitled to notice.

- Lessee of property which was subjected to a partial taking was entitled to notice from the condemnor, not the lessor. Sims v. Foss, 201 Ga. App. 345, 411 S.E.2d 59 (1991).

Widening condemned property requires notice.

- Since the evidence was undisputed that the road through the plaintiff's premises was originally marked and laid out by the road commissioners, 20 feet in width, and that the county authorities were attempting to widen the road so as to embrace land of the plaintiff without first acquiring, in the manner prescribed by law, the right to do so, the court erred in refusing to enjoin the taking of a strip of the plaintiff's land so as to widen the road beyond the limits originally marked out. Buchanan v. James, 130 Ga. 546, 61 S.E. 125 (1908) (decided under former Civil Code 1895, § 520).

Clerical error in notice not ground for dismissal.

- Words in a notice, "said road to be 50 feet in length," clearly appeared to be a clerical error, and, the length of the road otherwise appearing therein, it was proper to overrule a motion to dismiss the proceeding, based on the ground that the notice showed that the road was to be only 50 feet long, and for that reason could not be of public utility. Anderson v. Howard, 34 Ga. App. 292, 129 S.E. 567 (1925) (decided under former Civil Code 1910, § 642).

Timeliness of appeal.

- Since the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in subsection (f) of this section, the appeal was not timely. DOT v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977); DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Blonder v. Department of Transp., 156 Ga. App. 711, 275 S.E.2d 762 (1980).

Final order and judgment was improperly set aside based on a finding that the property owner was disabled and that, as a result of the owner's status, service of process was improper because the owner's notice of appeal was untimely as it was filed approximately four months after the petition for condemnation and declaration; in the notice of appeal, the owner failed to plead defective service; the owner's motion raising the issue of improper service was filed approximately five months after the notice of appeal; the owner's motion should have been made pursuant to a motion to set aside under the condemnation act; and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., could not be used to extend specific periods of time fixed in special statutory proceedings. DOT v. Szenczi, Ga. App. , S.E.2d (Mar. 13, 2020).

Cited in Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); DOT v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988).

32-3-9. Service of nonresidents in condemnation proceedings.

  1. If a nonresident of this state owns the property condemned or any interest therein, whether such interest is as the owner of the fee or some lesser interest, or any easement, or as a guardian for a minor or a person non compos mentis, or as a trustee, or growing out of similar facts, such nonresident, in the event that his or her address is known, shall be served with a true and correct copy of the petition and declaration, together with any orders of the court thereon. It shall be the duty of the clerk of the superior court for the county wherein such condemnation proceeding is pending to enclose a copy of the petition and declaration in an envelope, properly addressed to the nonresident at his or her last known address, and to deposit the same in the United States mail, properly registered or certified and with a return receipt requested, or deliver the same by statutory overnight delivery; and the clerk shall make a return service, showing these facts, upon the original petition and declaration in such matter for which he or she shall be paid the fee he or she receives for like service for each service made, the same to be taxed against the costs in the case. Such certificate of service shall be final and conclusive as to service of the petition upon the nonresident and shall become a part of the record in the matter.
  2. Where the address of the nonresident is unknown, whether such nonresident is the owner of the property, a minor, or the trustee or guardian of such minor or has any other lawful interest in the property, the method of advertising the condemnation of the particular property, as provided for in subsection (c) of Code Section 32-3-5, shall be sufficient service upon such nonresidents and shall be final and conclusive; provided, however, that, in that event, it shall be the duty of the condemnor, in filing the petition for condemnation, to certify that the address of such person or persons is unknown to the condemnor; provided, further, that it shall be the duty of the sheriff of the county wherein the condemnation is pending to inquire into the truth of such allegation and to enter a certificate upon the condemnation proceeding, within three days from the filing of the same, verifying the truth of the allegation. This certificate, together with the method of advertising of such condemnation proceedings provided for in the laws and statutes described above, shall be final and conclusive as to lawful service of the petition for condemnation upon the nonresident. For each such certificate, the sheriff shall receive the fee the sheriff receives for like service for each such certificate, the same to be taxed as other costs in the case.

(Code 1933, § 95A-606, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1998, p. 1539, § 11; Ga. L. 2000, p. 1589, § 7.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.

Law reviews.

- For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U. L. Rev. 115 (1998).

JUDICIAL DECISIONS

Statutory construction.

- Ga. L. 1973, p. 947, § 1 requires that the petition and declaration shall be served personally, but personal service as defined in Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) is not in conflict with this requirement. DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).

Condemnee's right to proper service remains until waived.

- Condemnees have a perfect right to waive service and come on in, but until the condemnees are properly served, and unless the record shows this fact by a proper return of service, the right remains until the right is voluntarily waived. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

Waiver of improper service.

- Pretermitting whether the property owner could have challenged the final judgment of condemnation via O.C.G.A. Ý 9-11-60(b) on the ground that the owner was not properly served, the trial court abused the court's discretion by granting the motion to set aside the final judgment because the property owner waived the issue of improper service when the motion was not filed at the time the owner filed the notice of appeal and the owner failed to plead improper service of the petition for condemnation and declaration of taking in the notice of appeal. DOT v. Szenczi, Ga. App. , 841 S.E.2d 228 (2020).

Timeliness of appeal.

- When the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in O.C.G.A. § 32-3-8, the appeal was not timely. DOT v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977).

Cited in DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

32-3-10. Substantial compliance with Code Sections 32-3-8 and 32-3-9.

  1. The proceeding described in this article being in rem, no provision in Code Sections 32-3-8 and 32-3-9 as to service shall be so construed as to invalidate the intent of the condemnor or as to delay the taking of the property or interest described in the declaration of taking and in the petition or in any manner as to delay the progress of the work for which the taking was made; and a substantial compliance with the provisions for service as heretofore set out in this article shall be deemed sufficient.
  2. At any stage of the cause before final verdict and judgment, the judge of the superior court may order such additional service to be made or such additional parties to be named as may be required by equity and justice; but this shall not be so construed as to invalidate the taking or delay the progress of the work.

(Code 1933, § 95A-606, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1985, § 520 and former Civil Code 1910, § 640, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Statutory construction.

- Ga. L. 1973, p. 947, § 1 requires that the petition and declaration be served personally, but personal service as defined in Ga. L. 1972, p. 689, §§ 1-3 does not conflict with this requirement. DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).

No injunction in advance of hearing if ample legal remedy.

- As the landowner's remedy at law was ample, it was not erroneous to refuse to enjoin the county from continuing a proceeding in advance of the hearing provided for in former Civil Code 1895, § 641. Atlanta & W.P.R.R. v. Redwine, 123 Ga. 736, 51 S.E. 724 (1905); Hutchinson v. Lowndes County, 131 Ga. 637, 62 S.E. 1048 (1908); Ballard v. Jones, 148 Ga. 513, 97 S.E. 443 (1918) (decided under former Civil Code 1895, § 520 and former Civil Code 1910, § 640).

Condemnee's right to service unless voluntarily waived.

- Condemnees have a perfect right to waive service and come in, but until the condemnees are properly served, and unless the record shows this fact by a proper return of service, the right remains until the right is voluntarily waived. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

Timeliness of appeal.

- When the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in Ga. L. 1973, p. 947, § 1, the appeal was not timely. DOT v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977).

Cited in DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); DOT v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

32-3-11. Power of judge to set aside, vacate, and annul declaration of taking; issuance and service on condemnor of rule nisi; hearing.

  1. Upon proper pleadings and evidence, under the applicable rules of law, the judge of the superior court shall have the authority to set aside, vacate, and annul the declaration of taking, together with any title acquired thereby, in the same way and manner and for the same reasons as are provided by Code Sections 23-2-60 and 9-11-60. The power of the court in this respect shall not be construed as extending to a determination of questions of necessity, but there shall be a prima-facie presumption that the property or interest condemned is taken for and is necessary to the public use provided for in this article.
  2. The power of the court as described in subsection (a) of this Code section shall be restricted to the following questions:
    1. Fraud or bad faith, as contemplated by Code Sections 23-2-60 and 9-11-60;
    2. The improper use of the powers of this article, such as are not contemplated by this article;
    3. The abuse or misuse of the powers of this article; and
    4. Such other questions as may properly be raised, including the question of whether or not this article has been invoked in some respect beyond the privileges conferred by this article or by an unauthorized agency, county, or municipality.
  3. If the condemnee desires to raise such questions as are outlined in subsection (b) of this Code section, the same shall be done by proper pleadings, in the form of a petition addressed to the judge of the superior court having jurisdiction thereof, filed in the same proceedings not later than 30 days subsequent to the date of service upon the condemnee of the declaration of taking. The presiding judge shall thereupon cause a rule nisi to be issued and served upon the condemnor, requiring him to show cause at a time and place designated by the judge why the title acquired by the declaration of taking should not be vacated and set aside in the same way and manner as is now provided for setting aside deeds acquired by fraud. Such hearing shall be had not earlier than 15 days from the time of service of the rule nisi upon the condemnor, nor later than 60 days from the date of filing of the declaration of taking, and with the right of appeal by either party, as in other cases.

(Code 1933, § 95A-607, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For annual survey of zoning and land use law, see 57 Mercer L. Rev. 447 (2005). For annual survey of zoning and land use law, see 58 Mercer L. Rev. 477 (2006). For annual survey on real property, see 64 Mercer L. Rev. 255 (2012). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Issue must be raised within 30 days.

- Condemnees waived any challenge to the legality of a condemnor's declaration of taking and any right to urge that the taking is ineffective in order to commence proceedings which are otherwise subject to the five-year dismissal rule under O.C.G.A. § 9-11-41(e) by failing to raise any issue of a defective declaration of taking within the 30-day period mandated under O.C.G.A. § 32-3-11. Parker v. Department of Transp., 184 Ga. App. 882, 363 S.E.2d 156 (1987), cert. denied, 184 Ga. App. 910, 363 S.E.2d 156 (1988).

Subsection (c) hearing requirement.

- Subsection (c) of O.C.G.A. § 32-3-11 requires that a hearing be held, not that a ruling be made, within the 60-day time period. DOT v. City of Atlanta, 259 Ga. 305, 380 S.E.2d 265 (1989).

Georgia legislature did not intend to deprive the trial court of jurisdiction to consider the motion to set aside if the hearing was not held within 60 days because, once the condemnee had fulfilled the obligation to file a timely motion to set aside, O.C.G.A. § 32-3-11(c) contemplates action by the court, not by the condemnee. As such, the trial court did not err when the court refused to dismiss the motion to set aside. Cobb County v. Robertson, 314 Ga. App. 455, 724 S.E.2d 478 (2012).

Transfer set aside.

- When, in a proceeding to condemn property for highway purposes, the evidence was that the Department of Transportation by this taking would create a grave and unusual risk to the safety of the public, the transfer of defendant's property to the department was set aside unless or until the department became bound to implement a plan of construction that would provide adequate protection against ice falling from defendant's broadcasting tower and guy wires under which the property condemned lies. Cox Communications, Inc. v. DOT, 256 Ga. 455, 349 S.E.2d 450 (1986).

Remedy for bad faith finding.

- Although the trial court properly found that Georgia Department of Transportation acted in bad faith in issuing the department's declaration of taking regarding the condemnees' land, the department erred in setting aside, on the condemnees' motion, only the limited access portion of the declarations of taking as the proper remedy was to set aside the declarations of taking in their entirety. DOT v. Bunn, 268 Ga. App. 712, 603 S.E.2d 2 (2004).

Association failed to prove that the proposed road was unsafe; thus, the taking was not an improper use of the Department of Transportation's condemnation powers. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).

Superior court erred by not setting aside a declaration of taking on the basis of a county's bad faith exercise of the county's power of eminent domain, since the condemnees' property was condemned to avoid inconveniencing a lumber company which was the owner of adjacent land. Brannen v. Bulloch County, 193 Ga. App. 151, 387 S.E.2d 395 (1989).

No abuse or misuse of powers found.

- Under the facts of this case, assertions that the condemnation of a permanent construction easement was an abuse and misuse of the Department of Transportation's (DOT's) powers of condemnation were without merit. Skipper v. DOT, 197 Ga. App. 634, 399 S.E.2d 538 (1990).

Compensation limited.

- Department of Transportation would not be required both to provide compensation for a diminution in the value of the amenities package and to construct a barrier so as to eliminate such diminution in value. Habersham Downs Homeowners' Ass'n v. DOT, 212 Ga. App. 686, 442 S.E.2d 868 (1994).

Recovery of attorney's fees and costs by condemnee.

- Condemnee's claim for attorney's fees and litigation expenses based on the fraud and bad faith that condemnor allegedly exhibited during the condemnor's acquisition of the property in question could only be raised in a proceeding pursuant to O.C.G.A. § 32-3-11 and not in an action seeking to establish just and reasonable compensation only. DOT v. Franco's Pizza & Delicatessen, Inc., 164 Ga. App. 497, 297 S.E.2d 72 (1982).

Action in which landowners sought to vacate a condemnation and requested attorney fees for litigation spawned from the misuse and improper use of the powers of the department of transportation was a "proper case" for the recovery of attorney fees. DOT v. B & G Realty, Inc., 197 Ga. App. 613, 398 S.E.2d 762 (1990).

Requirement that a request for fees under O.C.G.A. § 13-6-11 be made in the complaint is consistent with subsection (c) of O.C.G.A. § 32-3-11. DOT v. Georgia TV Co., 244 Ga. App. 750, 536 S.E.2d 773 (2000).

Error to apportion damages without evidence in support of claim.

- Award for condemned land utilized for a road right-of-way was just and adequate compensation, but the trial court erred in apportioning damages to one plaintiff without receiving evidence in support of the plaintiff's claim for damages. Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001).

Pending valuation issue in trial court results in no appellate court jurisdiction.

- Appellate court had to dismiss the company's appeal of the trial court's denial of the company's motion to set aside, vacate, and annul the county's declaration of taking in a condemnation action as the issue of the property's valuation was still pending before the trial court; accordingly, the appellate court did not have jurisdiction over the appeal because the record did not show that the company followed the procedures for bringing an interlocutory appeal and the trial court had not issued a final judgment from which the company could appeal. TJW Enters. v. Henry County, 261 Ga. App. 547, 583 S.E.2d 144 (2003).

Rule nisi.

- Trial court erred in dismissing the Georgia Department of Transportation's (DOT's) condemnation petition for the department's failure to submit a properly attested affidavit with the department's petition as the condemnees were estopped from challenging the taking of their property because the condemnees withdrew the money deposited by DOT in the court registry. Ga. DOT v. Bowles, 292 Ga. App. 829, 666 S.E.2d 92 (2008).

Application of 60-day requirement.

- Pursuant to the clear language of O.C.G.A. § 32-3-11(c), it is the duty of the court, not the condemnee, to issue a rule nisi and schedule the required hearing. The Supreme Court of Georgia disapproves of the portion of Lopez-Aponte v. City of Columbus, 267 Ga. App. 65 (2004), which places the burden of issuing a rule nisi and obtaining a timely hearing upon the condemnee. Adkins v. Cobb County, 291 Ga. 521, 731 S.E.2d 665 (2012).

Petition to set aside properly denied.

- Trial court properly denied a condemnee's petition to set aside a declaration of taking filed by a county under O.C.G.A. § 32-3-1 because the road at issue was open for use by the general public despite only a few private citizens most likely using the road, but so long as the general public was not excluded, the power of eminent domain could be exercised. Emery v. Chattooga County, 325 Ga. App. 587, 753 S.E.2d 149 (2014).

Petition to set aside improperly granted.

- Final order and judgment was improperly set aside based on a finding that the property owner was disabled and that, as a result of the owner's status, service of process was improper because the owner's notice of appeal was untimely as the notice was filed approximately four months after the petition for condemnation and declaration; in the notice of appeal, the owner failed to plead defective service; the owner's motion raising the issue of improper service was filed approximately five months after the notice of appeal; the owner's motion should have been made pursuant to a motion to set aside under the condemnation act; and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., could not be used to extend specific periods of time fixed in special statutory proceedings. DOT v. Szenczi, Ga. App. , S.E.2d (Mar. 13, 2020).

Cited in Coffee v. Atkinson County, 236 Ga. 248, 223 S.E.2d 648 (1976); Metropolitan Atlanta Rapid Transit Auth. v. Trussell, 247 Ga. 148, 273 S.E.2d 859 (1981); Texaco, Inc. v. DOT, 165 Ga. App. 338, 301 S.E.2d 59 (1983); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985); Cox Communications, Inc. v. DOT, 178 Ga. App. 499, 343 S.E.2d 765 (1986); DOT v. Hudson, 179 Ga. App. 842, 348 S.E.2d 106 (1986); Chamlee v. DOT, 189 Ga. App. 334, 375 S.E.2d 626 (1988); DOT v. Rasmussen, 244 Ga. App. 245, 534 S.E.2d 573 (2000); Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001); City of Atlanta v. Yusen Air & Sea Serv. Holdings Inc., 263 Ga. App. 82, 587 S.E.2d 230 (2003); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

RESEARCH REFERENCES

ALR.

- Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

32-3-12. Orders of court for payment of award in condemnation proceedings, for surrender of property, and as to other charges.

  1. Upon the application of the parties in interest, and not earlier than 15 days subsequent to the date of the last advertisement in the official newspaper of the county as provided for in subsection (f) of Code Section 32-3-8, the court shall order that the money deposited in the court, or any part thereof applied for, be paid forthwith to the parties found to be entitled thereto, for the just compensation to be awarded in the proceedings; provided, however, that, where the validity of the proceedings has been placed in issue as provided for in Code Section 32-3-11, the court shall not order the payment of the fund to the condemnee pending a final determination of such questions.
  2. Upon the filing of a declaration of taking, the court shall have power to fix the time, the same to be not later than 60 days from the date of the filing of the declaration of taking as provided in Code Section 32-3-6, within which and the terms upon which the parties in possession shall be required to surrender possession to the petitioner. The court shall have power to make such orders in respect of encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as shall be just and equitable.

(Code 1933, § 95A-608, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Taking hearing distinguished from appeal from offered compensation.

- Taking hearing, as provided in Ga. L. 1973, p. 947, § 1, is a right that is separate and apart from an appeal from the offered compensation, and does not in any way affect the right of appeal. DOT v. Palmer, 152 Ga. App. 630, 263 S.E.2d 514 (1979).

Ga. L. 1973, p. 947, § 1 applies only to possession, while time for filing a notice of appeal is contained in Ga. L. 1973, p. 947, § 1 and is controlling in all cases where an appeal is desired. DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651, cert. denied, 449 U.S. 843, 101 S. Ct. 125, 66 L. Ed. 2d 51 (1980).

Cited in DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976).

32-3-13. Self-executing nature of declaration of taking; court costs; entry of judgment; transfer of case to closed docket; effect of Code section on condemnor's title.

  1. No judgment of any court and no order or ruling of the judge thereof shall be necessary to give effect to the declaration of taking provided for in Code Section 32-3-6; but the same shall be self-executing, subject, however, to the power of the court as provided for in Code Section 32-3-11.
  2. If no appeal is filed as provided for in Code Section 32-3-14, the condemnor shall, at the next term of the superior court convening not earlier than 30 days subsequent to the date of service, as provided for in Code Sections 32-3-8 and 32-3-9, or at any time thereafter, pay all accrued court costs in the case to the clerk of the superior court in which the same is pending, at which time the judge of the superior court shall enter judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking. If such sum has been withdrawn from the court by the condemnee as provided for in Code Section 32-3-12, the clerk of the superior court shall mark such judgment satisfied; and if the condemnee has not withdrawn such sum the clerk shall immediately apply the same to the payment of the judgment and either transmit the same to the condemnee or cause the condemnee to be notified that he, the clerk, holds the same subject to the demand of the condemnee.
  3. In any event, the case shall be transferred, under the conditions set out in this Code section, to the closed docket.
  4. Nothing provided for in this Code section shall be construed as in any way affecting the title acquired by the condemnor by virtue of the declaration of taking, as provided for in Code Section 32-3-7.

(Code 1933, § 95A-609, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Provision for opening default inapplicable.

- Ga. L. 1967, p. 226, § 24 does not apply to a condemnation proceeding. DOT v. Forrester, 149 Ga. App. 647, 255 S.E.2d 115 (1979).

Cited in Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); DOT v. Samuels, 185 Ga. App. 871, 366 S.E.2d 181 (1988).

32-3-14. Filing notice of appeal.

If the owner, or any of the owners, or any person having a claim against or interest in the property is dissatisfied with the amount of compensation as estimated in the declaration of taking and deposited in court, as provided for in Code Section 32-3-7, such person or persons, or any of them, shall have the right, at any time subsequent to the filing of the declaration and the deposit of the fund into court, but not later than 30 days following the date of the service as provided for in Code Sections 32-3-8 and 32-3-9, to file with the court a notice of appeal, the same to be in writing and made a part of the record in the proceedings.

(Code 1933, § 95A-610, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For annual survey on zoning and land use law, see 61 Mercer L. Rev. 427 (2009).

JUDICIAL DECISIONS

General Consideration

Taking hearing distinguished from appeal from offered compensation.

- Taking hearing, as provided in Ga. L. 1973, p. 947, § 1, is a right that is separate and apart from an appeal from the offered compensation as provided in Ga. L. 1973, p. 947, § 1, and does not in any way affect the right of appeal under that section. DOT v. Palmer, 152 Ga. App. 630, 263 S.E.2d 514 (1979).

Automatic dismissal under

§ 9-11-41(e). - Automatic dismissal provision of O.C.G.A. § 9-11-41(e), whereby any action in which no written order is taken for five years is automatically dismissed, applies to condemnation proceedings. Adams v. Cobb County, 184 Ga. App. 879, 363 S.E.2d 260 (1987), aff'd, 258 Ga. 352, 370 S.E.2d 748 (1988).

Condemnee who appeals deemed "plaintiff".

- For every practical purpose and for every substantive issue, a condemnee who appeals a determination of value to a jury under O.C.G.A. § 32-3-14 is a "plaintiff." Adams v. Cobb County, 258 Ga. 352, 370 S.E.2d 748 (1988).

Doctrine of equitable estoppel is unavailable to extend a property owner's time for filing a notice of appeal under O.C.G.A. § 32-3-14; thus, a property owner could not rely on the doctrine. Moreover, the owner did not show that counsel for the state made intentional misstatements or was grossly negligent, and it was not shown that the owner exercised reasonable diligence. Cedartown North P'ship, LLC v. Ga. DOT, 296 Ga. App. 54, 673 S.E.2d 562 (2009).

Partial taking condemnation order not final judgment.

- Because a partial taking condemnation order was not otherwise a final appealable judgment within the meaning of O.C.G.A. § 5-6-34(a), and the parties could have appealed by complying with the relevant interlocutory appeal requirements, but did not do so, the appeals court lacked jurisdiction to consider either the appeal or the cross-appeal; moreover, the superior court's rulings on the admissibility of certain evidence constituted no judgment on the merits of any part of the appealing party's claim for just and adequate compensation. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006).

Cited in DOT v. Great S. Enters., Inc., 137 Ga. App. 710, 225 S.E.2d 80 (1976); DOT v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976); DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977); Department of Transp. v. Rudeseal, 148 Ga. App. 179, 251 S.E.2d 11 (1978); Blonder v. Department of Transp., 156 Ga. App. 711, 275 S.E.2d 762 (1980); Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983); Department of Transp. v. Wright, 169 Ga. App. 332, 312 S.E.2d 824 (1983); Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984); Chambers v. DOT, 172 Ga. App. 197, 322 S.E.2d 366 (1984); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988); Department of Transp. v. Morris, 186 Ga. App. 673, 368 S.E.2d 155 (1988); Lovell v. Department of Transp., 187 Ga. App. 259, 370 S.E.2d 27 (1988); Whitfield v. DOT, 248 Ga. App. 172, 546 S.E.2d 308 (2001).

Time Limitation on Appeals

Civil practice provisions inapplicable.

- Provisions of the Civil Practice Act (O.C.G.A. Ch. 11, T. 9) which deal with time frames do not apply to periods of time which are definitely fixed by other statutes such as O.C.G.A. § 32-3-14. Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544, cert. denied, 186 Ga. App. 917, 368 S.E.2d 544 (1988).

Extension for late-filed affidavits of service in O.C.G.A.

§ 9-11-4(h) did not apply. - In a condemnation case, the trial court did not err in dismissing the property owners' notice of appeal as untimely under O.C.G.A. § 32-3-14, which allowed 30 days from the date of service to appeal; although the affidavits of service were filed more than five business days from the date of service, which would trigger a tolling of the deadline under O.C.G.A. § 9-11-4(h), the civil procedure rule conflicted with the special eminent domain statute and therefore did not apply. Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).

Period for appeal fixed by section.

- Granting extensions of time as permitted under certain circumstances by the Civil Practice Act (O.C.G.A. Ch. 11, T. 9) does not apply to periods of time which are definitely fixed by other statutes. McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976).

Ga. L. 1973, p. 947, § 1 applies only to possession, while time for filing a notice of appeal is contained in Ga. L. 1973, p. 947, § 1 and is controlling in all cases where an appeal is desired. Department of Transp. v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651, cert. denied, 449 U.S. 843, 101 S. Ct. 125, 66 L. Ed. 2d 51 (1980).

Effect of failure to timely file.

- When the lessee of a portion of property being condemned did not file a timely notice of appeal, the lessee was not entitled to a jury trial on the valuation of the lessee's interest in the property and could not raise the issue of business losses. Lil Champ Food Stores, Inc. v. DOT, 230 Ga. App. 715, 498 S.E.2d 94 (1998).

Thirty-day period under this section cannot be extended. Department of Transp. v. Palmer, 152 Ga. App. 630, 263 S.E.2d 514 (1979).

Time for appeal.

- Trial court has no authority or discretion to extend the period of time for filing a notice of appeal. McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976).

Right to appeal to a jury from a declaration of taking is absolutely conditional upon the filing of a timely notice of appeal in the superior court, and not even the trial court is empowered to extend the period of time for filing the notice of appeal. Department of Transp. v. Rudeseal, 156 Ga. App. 712, 276 S.E.2d 52 (1980).

Final order and judgment was improperly set aside based on a finding that the property owner was disabled and that as a result of the owner's status service of process was improper because the owner's notice of appeal was untimely as the notice was filed approximately four months after the petition for condemnation and declaration; in the notice of appeal, the owner failed to plead defective service; the owner's motion raising the issue of improper service was filed approximately five months after the notice of appeal; the owner's motion should have been made pursuant to a motion to set aside under the condemnation act; and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., could not be used to extend specific periods of time fixed in special statutory proceedings. DOT v. Szenczi, Ga. App. , S.E.2d (Mar. 13, 2020).

Statute tolling filing time in cases of fraud not applicable.

- O.C.G.A. § 32-3-14 sets forth a mandatory time period for filing an appeal in a condemnation action, not a statute of limitation for commencing a particular type of action; thus, O.C.G.A. § 9-3-96 did not apply to extend a property owner's time for filing an appeal. Moreover, the owner did not show that the Department of Transportation committed actual fraud involving moral turpitude or that the owner itself exercised reasonable diligence. Cedartown North P'ship, LLC v. Ga. DOT, 296 Ga. App. 54, 673 S.E.2d 562 (2009).

What constituted "service" for purposes of calculating 30 days.

- "Personal service" required under Ga. L. 1973, p. 947, § 1 includes all the variations provided in the Civil Practice Act and does not mandate that the condemner be handed the petition individually. Department of Transp. v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).

Filing by cocondemnee.

- Condemnee's notice of appeal is untimely despite the fact that the cocondemnee filed a timely answer because the cocondemnee's answer was not a notice of appeal where the answer did not express dissatisfaction with the proposed compensation but merely sought to clarify its name. Howard v. Department of Transp., 184 Ga. App. 116, 361 S.E.2d 7 (1987).

Condemnee's statutory period for filing a notice of appeal is not extended by late service on a cocondemnee. Howard v. Department of Transp., 184 Ga. App. 116, 361 S.E.2d 7 (1987).

Code Section 32-3-17, allowing intervention, inapplicable to named condemnee.

- O.C.G.A. § 32-3-17 makes provision for parties whose claims were unknown at the time the petition was filed and who were not named therein, or for taxpayers seeking to intervene in a condemnation proceeding, and is inapplicable to the situation of a condemnee named in the petition who files an appeal more than 30 days after being served with the petition. Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544, cert. denied, 186 Ga. App. 917, 368 S.E.2d 544 (1988).

Appeals less than 30 days after advertising can still be untimely.

- When the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in subsection (f) of Ga. L. 1973, p. 947, § 1, the appeal was not timely. Department of Transp. v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977).

Personal Service

Applicability of thirty-day provision.

- Thirty-day provision in this section refers only to period following personal service on condemnee as shown by the return of service. Department of Transp. v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977).

Joint Owners

Appeal allowed when some joint owners not properly served.

- Since the record failed to show service on some of the parties named as joint owners in each of several cases, a notice of appeal to a jury on the questions of value and consequential damages was not too late, although filed more than 30 days after the filing of the declaration of taking, since the condemnees were not properly served and did not waive service until the actual filing of the appeal. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

Issue of personal service to be disposed of as whole.

- When a joint notice of appeal is filed by all condemnees, the court should not dismiss the appeal as to some of the appellants who were served in the first instance while allowing it as to others, but the issue should be taken and disposed of as a whole. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).

Issues on Appeal

Affidavit as to just compensation not an admission of fact.

- Department of Transportation's affidavit filed pursuant to O.C.G.A. § 32-3-6(b)(5) did not constitute an admission of fact which would be admissible against the Department of Transportation in condemnee's appeal pursuant to O.C.G.A. § 32-3-14. Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984).

Original estimate not binding in jury appeal.

- When a condemnee is dissatisfied with the compensation originally estimated and elects to appeal that issue to a jury, the condemnor is not bound by the condemnor's original estimate and can present evidence de novo as to fair market value and consequential damages. Aiken v. Department of Transp., 171 Ga. App. 154, 319 S.E.2d 58 (1984).

Business loss damages need not be specifically pled in notice of appeal.

- Because there was no legislative requirement that, in a condemnation proceeding, a party seeking business loss damages had to specifically and separately plead for such in the notice of appeal, in accordance with the consent judgment that the Georgia Department of Transportation was bound by, a lessee's appeal was to proceed to trial on the lessee's claims for business loss, damages to trade fixtures, and relocation expenses. DOT v. Camvic Corp., 284 Ga. App. 321, 644 S.E.2d 171 (2007).

32-3-15. Interlocutory hearing on amount of compensation.

  1. An appeal having been filed as provided in Code Section 32-3-14, the appellant or appellants, at any time before the beginning of the trial of the issue formed on such appeal, but not later than 90 days after the date of service as provided in Code Sections 32-3-8 and 32-3-9, may file in the case a petition for an interlocutory hearing on the issue of whether the amount deposited in court as just and adequate compensation is sufficient. Such petition shall be served as may be directed by the court. The petition shall be verified and shall state the amount which is claimed by the petitioner to represent just and adequate compensation, together with a sworn, written statement of the facts upon which the claim is based.
  2. Upon the presentation of the interlocutory petition to the judge of the court in which the case is pending, the court shall make such order as to the appointment of assessors as shall conform most nearly to Article 1 of Chapter 2 of Title 22 and shall give all interested persons equal rights in the selection thereof. If by reason of conflicting interests or otherwise such equality of right cannot be preserved, the judge shall make such order on the subject as shall secure a fair and impartial assessment. The board of assessors so appointed shall determine from all evidence offered by the parties, from personal inspection of the premises, and from its own professional judgment whether the condemnor should be required to deposit any additional amount as estimated compensation and shall, within 30 days of the date of reference to such board, make an interlocutory award based upon such determination.
  3. Upon approval of the interlocutory award by the court and service of a copy upon the condemnor, as may be directed by the court, the condemnor shall within 15 days pay into court any additional amount required to be paid pursuant to the interlocutory award.
  4. Upon the application of the party or parties in interest at any time before a jury verdict on the appeal, the court shall order that the additional money deposited in court be paid forthwith to the parties found to be entitled thereto; provided, however, that any party or parties receiving any payment of any amount paid into court pursuant to an interlocutory award shall, before receiving such payment, file in the case a bond in the amount of such payment conditioned for the repayment of any amount so received by such party which may be in excess of the amount awarded by the jury upon the trial of the appeal. Such bond shall be executed by a surety company authorized to do business in this state; and, in the event the amount awarded by the jury on final trial of the appeal is less than the total amount paid into court by the condemnor, judgment may be entered against the principal and surety on the bond for the amount by which the total amount paid into court exceeds the amount awarded by the jury; and, if the amount awarded by the jury is less than the original deposit, judgment may be entered against the condemnee for that part of the judgment not covered by the bond.
  5. The assessors shall be compensated as provided in Code Section 22-2-84.
  6. The interlocutory award provided for in this Code section shall not be subject to exceptions to any higher court.
  7. If the condemnee notifies the court in writing to dismiss the appeal filed by the condemnee pursuant to Code Section 32-3-14 within 15 days following the date the interlocutory award is approved by the court, that interlocutory award shall become the final judgment in the proceeding and shall not be vacated or modified, and that appeal shall be dismissed unless the condemnor files with the court a notice objecting to such dismissal within 15 days following the date the condemnee notified the condemnor of the notice to dismiss such appeal.

(Code 1933, § 95A-611, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1991, p. 332, § 1; Ga. L. 1998, p. 1539, § 12.)

Editor's notes.

- Ga. L. 1991, p. 332, § 2, not codified by the General Assembly, provides that the amendment shall be applicable to those proceedings in which the declaration of taking is filed with the court on or after July 1, 1991.

Law reviews.

- For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U. L. Rev. 115 (1998).

JUDICIAL DECISIONS

For discussion of the constitutionality of this section, see Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977).

Legislative intent to make interlocutory award available.

- That the interlocutory award is not subject to being vacated or modified after 15 days indicates a legislative intent to make the interlocutory award quickly available to the condemnee without further protracted dispute over the interlocutory amount. Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977).

No intent to make interlocutory award of estimated compensation unappealable.

- Interpretation of this section which would allow interlocutory awards of estimated compensation to become nonappealable final judgments is contrary to the legislative scheme. Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977).

Court appointment of special master to hear all issues improper.

- Trial court's sua sponte appointment of a special master and the court's submission of all issues to that master was contrary to O.C.G.A. § 32-3-15, which contemplates that only the condemnee can petition for an appointment of a special master and that such a master can consider only the issue of compensation. Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984).

Condemnee required to post bond.

- Same requirements pertaining to a condemnee's obligation to post bond apply to a condemnee who seeks a greater award, whether the condemnee pursues an interlocutory hearing before a special master, or appeals directly to a jury, the sum initially awarded by the court. Kellett v. Department of Transp., 174 Ga. App. 214, 329 S.E.2d 514 (1985).

Cited in Department of Transp. v. 0.144 Acres of Land, 167 Ga. App. 59, 306 S.E.2d 59 (1983).

OPINIONS OF THE ATTORNEY GENERAL

Surplus property not to be placed in court registry.

- Legislature intended that only money, and not surplus property, be placed into the court registry for satisfaction of any judgment resulting from a condemnation action. 1992 Op. Att'y Gen. No. 92-8.

RESEARCH REFERENCES

ALR.

- Referee's failure to file report within time specified by statute, court order, or stipulation as terminating reference, 71 A.L.R.4th 889.

32-3-16. Appeal to jury; evidence to be heard on appeal; subsequent review of issues not brought before jury.

  1. After the notice of appeal has been filed as provided in Code Section 32-3-14, it shall be the duty of the court at the next term thereof, which shall convene not earlier than 30 days subsequent to the date of service, as provided for in Code Sections 32-3-8 and 32-3-9, to cause an issue to be made and tried by a jury as to the value of the property or interest taken and the consequential damages to property or interests not taken, with the same right to move for a new trial and file a notice of appeal as in other cases at law, provided that an interlocutory award has not become final pursuant to Code Section 32-3-15.
  2. When an appeal has been filed pursuant to Code Section 32-3-14, all subsequent proceedings thereon shall have the nature of a de novo investigation with the right of either party, under the rules of evidence as provided for in the general laws of this state, to introduce evidence concerning:
    1. The fair market value of the property or interest taken or other evidence of just and adequate compensation;
    2. The prospective and consequential damages to the remaining property or interests by reason of the taking and use of the property or interest for the purposes for which taken; and
    3. The consequential benefits accruing to such remaining property or interests by reason of such taking and use,

      provided that such consequential benefits, if any, may be offset against such consequential damages, if any; but, in no event, shall consequential benefits be offset against the value of the property or interest actually taken.

  3. If, for any reason, the issues made by the filing of the notice of appeal provided for in this Code section are not tried by a jury as to the value of the property or interest taken and the consequential damages to the property or interests not taken, at the next term of the court after the filing of such appeal, such fact shall not be cause for dismissal of the appeal and the issues made by such appeal shall be subject to trial at any future term of the court.

(Code 1933, § 95A-612, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Further provisions regarding evidence to be considered in determining just and adequate compensation, §§ 22-2-109,22-2-137.

JUDICIAL DECISIONS

Interlocutory awards of estimated compensation appealable.

- Any interpretation of this section allowing interlocutory awards of estimated compensation to become nonappealable final judgments is contrary to the legislative scheme. Morgan v. Department of Transp., 239 Ga. 560, 238 S.E.2d 95 (1977).

Failure to make issue at trial of alleged error.

- If alleged error was never made an issue at trial, no question is presented for review on appeal. DeKalb County v. Cowan, 151 Ga. App. 753, 261 S.E.2d 478 (1979).

Issue of whether or not property is unique is a jury question. DOT v. 19.646 Acres of Land, 178 Ga. App. 287, 342 S.E.2d 760 (1986).

Condemnor not bound by original estimate upon condemnee's appeal to jury.

- When a condemnee is dissatisfied with the compensation originally estimated by the condemnor and elects to appeal that issue to a jury, the condemnor is not bound by the condemnor's original estimate but can present evidence de novo as to the fair market value and consequential damages. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).

Evidence of sales of comparable property in condemnation proceedings which is not too remote in point of time could become relevant as the basis of an expert's explanation as to how the expert arrived at the valuation and, when such use is made of evidence of comparable sales, no foundation need be laid concerning the similarity of the property. Panos v. Department of Transp., 162 Ga. App. 53, 290 S.E.2d 295 (1982).

Improper exclusion of expert opinion.

- Expert's opinion as to what the expert would pay for condemned land was probative of the land's fair market value and improperly excluded by the trial court. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985).

Expert appraiser previously employed by another condemning authority.

- In a condemnation action where the issue was just and adequate compensation, and the condemnees' expert appraiser testified to having previously been employed by another condemning authority to appraise the same property, but the Department of Transportation did not object to the witness at trial, the issue may not be raised on appeal. DOT v. Bennett, 194 Ga. App. 789, 391 S.E.2d 724 (1990).

Greater difficulty in ingress and egress which is occasioned by changing traffic patterns is not an appropriate item of damages in eminent domain proceedings. Department of Transp. v. Coley, 184 Ga. App. 206, 360 S.E.2d 924 (1987).

Consequential damages provable.

- In condemnation proceedings, the condemnee is entitled to prove every element of consequential damage that is relevant. Department of Transp. v. Coley, 184 Ga. App. 206, 360 S.E.2d 924 (1987).

Because a condemnee did not claim lost profits or business losses, the trial court properly limited the condemnee's evidence to the value of the property taken and consequential damages to the remainder; because the jury's valuation was within the range of the evidence, the trial court properly denied the condemnee's motion for a new trial. Thornton v. DOT, 275 Ga. App. 401, 620 S.E.2d 621 (2005).

Business loss damages need not be specifically pled in notice of appeal.

- Because there was no legislative requirement that, in a condemnation proceeding, a party seeking business loss damages had to specifically and separately plead for such in the notice of appeal, in accordance with the consent judgment that the Georgia Department of Transportation was bound by, a lessee's appeal was to proceed to trial on the lessee's claims for business loss, damages to trade fixtures, and relocation expenses. DOT v. Camvic Corp., 284 Ga. App. 321, 644 S.E.2d 171 (2007).

Use of "condemnee" rather than "condemnor" in burden of proof instruction.

- When, in a condemnation action, the use of "condemnees" rather than "condemnor" in the charge explaining the burden of proof is clearly inadvertent, a slip of the tongue, the error is not likely to confuse or mislead the jury and, thus, is not so substantial as to require reversal. Morrison v. DOT, 166 Ga. App. 144, 303 S.E.2d 501 (1983).

Jury charges constituting reversible error.

- Jury charge that limited jury's use of the replacement- cost-less-depreciation method for establishing fair market value to situations where the market or income approaches were not suitable was incorrect and constituted reversible error. Jotin Realty Co. v. Department of Transp., 174 Ga. App. 809, 331 S.E.2d 605 (1985).

Attorney's fees and costs recoverable only in

§ 32-3-11 action. - Condemnee's claim for attorney's fees and litigation expenses based on the fraud and bad faith that the condemnor allegedly exhibited during the condemnor's acquisition of the property in question could only be raised in a proceeding pursuant to O.C.G.A. § 32-3-11 and not in an action seeking to establish just and reasonable compensation only. Department of Transp. v. Franco's Pizza & Delicatessen, Inc., 164 Ga. App. 497, 297 S.E.2d 72 (1982).

Cited in Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984).

RESEARCH REFERENCES

ALR.

- Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel, 59 A.L.R.4th 308.

32-3-17. Right to intervene in proceedings; effect of subsequent proceedings on rights of condemnor.

  1. No provision of this article in reference to any rule or order, or time for responding thereto, shall be held or construed to exclude any person by way of default from making known his rights or claims in the property or interests or in the fund arising therefrom. Any such person claiming an interest or any rights therein may file appropriate pleadings or intervention at any time before verdict and be fully heard thereon. If any person, at any time during the pendency of such proceeding, desires to come in and be heard on any claim to the fund or interest therein, he shall be allowed to do so.
  2. After the filing of the declaration of taking and the payment of the fund into the registry of the court as provided for in Code Section 32-3-7, the petitioner shall not be concerned with or affected by any subsequent proceedings except as to the appeal and interlocutory petition provided for in Code Sections 32-3-14 and 32-3-15 respectively and concerning which the sole issue shall be as to the amount of just and adequate compensation.

(Code 1933, § 95A-613, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32.)

JUDICIAL DECISIONS

All claimants to one piece of condemned property are to be joined in one action for resolution of all issues by trial. DOT v. McLaughlin, 163 Ga. App. 1, 292 S.E.2d 435 (1982), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994).

Public possesses "an interest" in public property and, therefore, taxpayers possess the right to intervene in condemnation actions against land owned by the entity to which the taxpayers pay their taxes. DOT v. City of Atlanta, 255 Ga. 124, 337 S.E.2d 327 (1985).

Code section inapplicable to named condemnee.

- O.C.G.A. § 32-3-17 is inapplicable to the situation of a condemnee named in the petition who files an appeal more than 30 days after being served with the petition. Bates & Assocs. v. Department of Transp., 186 Ga. App. 828, 368 S.E.2d 544, cert. denied, 186 Ga. App. 917, 368 S.E.2d 544 (1988).

Validity of taking not affected by dispute over funds.

- Dispute between two condemnees over the ownership of the funds paid into the registry of the court and the manner in which the funds were paid out did not affect the validity of the taking itself. Brown v. Department of Transp., 191 Ga. App. 321, 381 S.E.2d 532, cert. denied, 191 Ga. App. 921, 381 S.E.2d 532 (1989).

Cited in Department of Transp. v. Olshan, 237 Ga. 213, 227 S.E.2d 349 (1976); Robinson v. DOT, 185 Ga. App. 597, 364 S.E.2d 884 (1988).

32-3-17.1. Decisions upon questions of law; power of judge to give necessary orders and directions; jury trial in open court only.

All questions of law arising upon the pleadings or in any other way arising from the cause, subsequent to the filing of the declaration of taking and the deposit of the fund, and subsequent to the filing of notice of appeal, if any, shall be passed on by the presiding judge who may, from time to time, make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law; but no jury trial shall be had except in open court.

(Code 1981, §32-3-17.1, enacted by Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32.)

JUDICIAL DECISIONS

Consolidation of condemnation cases when entire property has common use.

- Whether it is appropriate to consolidate two condemnation proceedings depends upon the use of the property, and when the entire property had a common use so as to entitle the landowners to the consequential damages calculated as resulting to the whole of the property rather than to separate parcels, the trial court's order consolidating the two cases was not in error - especially where to allow two different actions to be brought regarding the one property could have resulted in great harm and injustice to the condemnees' substantive rights. Department of Transp. v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984).

Restriction on court's power to appoint special master.

- O.C.G.A. § 32-3-17.1 does not give the superior court the authority to make a sua sponte appointment of a special master to resolve all issues in the proceedings as if the issues had been brought under O.C.G.A. § 22-2-100 et seq. Stephens v. Department of Transp., 170 Ga. App. 784, 318 S.E.2d 167 (1984).

Evidentiary hearing required for mixed questions of law and fact.

- In a proceeding by a lessor for compensation for an easement on condemned property, the issue of the lessor's interest involved mixed questions of law and fact and could only be dealt with by the court on evidentiary hearing, trial on non-value issues, or summary judgment and not under O.C.G.A. § 32-3-17.1. S & S Food Servs., Inc. v. DOT, 222 Ga. App. 579, 475 S.E.2d 197 (1996).

Amendment of defective declaration of taking.

- When the Department of Transportation filed a declaration of taking pursuant to O.C.G.A. § 32-3-1 et seq., which included the taking of a temporary work easement to be used in the demolition of a building on the condemned property, the department did not adequately describe the easement as the department's plat attached to the department's declaration did not describe the easement, and there was no description of the easement's width nor any limitation regarding a pathway which had to be used when traversing land not condemned; the issue was not rendered moot by the fact that the condemnees did not obtain a stay pending appeal and the work was completed during the appeal's pendency because O.C.G.A. § 32-3-17.1 authorized a trial court to order a condemnor to amend a defective declaration of taking. Ga. 400 Indus. Park, Inc. v. DOT, 274 Ga. App. 153, 616 S.E.2d 903 (2005).

Business loss damages need not be specifically pled in notice of appeal.

- Because there was no legislative requirement that, in a condemnation proceeding, a party seeking business loss damages had to specifically and separately plead for such in the notice of appeal, in accordance with the consent judgment that the Georgia Department of Transportation was bound by, a lessee's appeal was to proceed to trial on the lessee's claims for business loss, damages to trade fixtures, and relocation expenses. DOT v. Camvic Corp., 284 Ga. App. 321, 644 S.E.2d 171 (2007).

Condemnee has no vested right in attorney fees granted by court.

- Trial court does not have authority, under O.C.G.A. § 32-3-17.1, to require payment of reasonable and necessary attorney fees and expenses of litigation for proceedings before an appellate court of this state. DOT v. Franco's Pizza & Delicatessen, Inc., 200 Ga. App. 723, 409 S.E.2d 281, cert. denied, 200 Ga. App. 895, 409 S.E.2d 281 (1991), overruled on other grounds, 264 Ga. 393, 444 S.E.2d 734 (1994).

32-3-18. Prevention or delay of vesting of title in condemnor.

No appeal in any cause under this article and no bond or undertaking given shall operate to prevent or delay the vesting of title to such lands in the condemnor, subject, however, to the power of the court as provided in Code Section 32-3-20.

(Code 1933, § 95A-615, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32.)

32-3-19. Jury verdict; entry of judgment; award; effect on condemnor's title.

  1. The verdict of the jury shall have respect to the lands described in the declaration of taking as set forth in Code Section 32-3-6, or such interest therein as may be described in said declaration, or to any separate claim against the property or interest therein as may be ordered and may be molded under the direction of the court so as to do complete justice and avoid confusion of interest. The court shall give such direction as to the disposition of the fund as shall be proper according to the rights of the several respondents.
  2. After the verdict of the jury, the court shall, in instances where no motion for new trial or notice of appeal is filed within the time provided for by law or where such verdict has been affirmed by a proper appellate court and the remittitur from such court has been made the judgment of the superior court, enter judgment in favor of the condemnee and against the condemnor in the amount of such verdict, together with the accrued court costs, which judgment shall be immediately credited with the sum of money deposited by the condemnor with the declaration of taking and which shall bear interest as provided in subsection (c) of this Code section; and, upon the failure or refusal of the condemnor immediately to deposit such increase in such sum into the registry of the court, as well as the accrued court costs, it shall be the duty of said clerk to issue execution therefor.
  3. After just and adequate compensation has been ascertained and established by judgment, the judgment shall include, as part of the just and adequate compensation awarded, interest from the date of taking to the date of payment pursuant to final judgment at the rate of 7 percent per annum on the amount awarded by final judgment as the value of the property as of the date of taking; but interest shall not be allowed on so much thereof as shall have been paid into the court and was subject to withdrawal by the condemnee without the requirement of posting a bond as required by Code Section 32-3-15. However, if the condemnee posted the bond and withdrew the additional deposit made after the special master's award and is later awarded a sum greater than the original deposit but less than the special master's award, the condemnee shall not be entitled to interest on this additional deposit for the time he had use of the money; but he shall be entitled to receive the percentage of the reasonable cost of the bond that the sum awarded over the original deposit bears to the sum of the special master's award over the original deposit. If the condemnee is later awarded a sum that exceeds the special master's award and he has posted bond and withdrawn the additional deposit, he shall not be entitled to interest on this additional deposit for the time he had use of the money but he shall be entitled to the reasonable cost of the bond.
  4. No sum so paid into the court shall be charged with commissions or poundage.
  5. In any event, the case shall be transferred, under the conditions set out in this Code section, to the closed docket. Nothing in this Code section shall be construed as in any way affecting the title acquired by the condemnor by virtue of the declaration of taking as provided for in Code Section 32-3-7.

(Code 1933, § 95A-616, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Interest on judgments generally, § 7-4-12.

Law reviews.

- For annual survey on local government law, see 68 Mercer L. Rev. 199 (2016). For annual survey on real property, see 69 Mercer L. Rev. 251 (2017).

JUDICIAL DECISIONS

Entry of judgment.

- Language of subsection (b) of O.C.G.A. § 32-3-19, which explicitly directs the entry of judgment in three enumerated instances, is meaningless or mere surplusage, and that language does not implicitly prohibit the entry of judgment in unenumerated instances. DOT v. Petkas, 189 Ga. App. 633, 377 S.E.2d 166, cert. denied, 189 Ga. App. 911, 377 S.E.2d 166 (1988).

Legislative determination of prejudgment interest rate constitutional.

- Prejudgment interest rate specified by subsection (c) of O.C.G.A. § 32-3-19 compensates the condemnee for the use of funds generated in a condemnation action, not for the use of the property condemned; thus, this interest rate is not part of "just compensation," and legislative determination of the rate does not involve improper exercise of a judicial function. Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985).

Different percentages for prejudgment and postjudgment interest.

- If no suspect class of condemnees is involved, application of different statutory percentages to prejudgment and postjudgment interest in condemnation cases is not unconstitutional. Brooks v. DOT, 254 Ga. 60, 327 S.E.2d 175 (1985).

Interest on award.

- O.C.G.A. §§ 7-4-12 and32-3-19 are to be construed together so that interest to the condemnee payable under these eminent domain proceedings is 7 percent between the date of taking and the final judgment and 12 percent thereafter until paid. Department of Transp. v. Cochran, 160 Ga. App. 583, 287 S.E.2d 599 (1981); DOT v. Delta Mach. Prods. Co., 162 Ga. App. 252, 291 S.E.2d 104 (1982).

Property owner was entitled to interest under the statute since the lump sum estimate of just and adequate compensation, when paid into the court by the defendant city, was not immediately subject to withdrawal by the property owner as the sum had not been apportioned among the property owner and the owner's tenants. Chouinard v. City of E. Point, 237 Ga. App. 266, 514 S.E.2d 220 (1999).

In a condemnation action, the trial court erred in denying a lessor's motion in limine to exclude evidence of the lessor's entitlement to statutory pre-judgment interest under O.C.G.A. § 32-3-19 because the fact that the trial court could later instruct the jury to disregard irrelevant evidence was not a reason to allow the jury to hear the irrelevant evidence; under the statutory framework of § 32-3-19, the amount of pre-judgment interest due a condemnee is determined after the jury enters a verdict. CNL APF Partners, LP v. DOT, 307 Ga. App. 511, 705 S.E.2d 862 (2010).

Trial court erred by failing to award prejudgment interest on $1.27 million from the date of the taking through the date that amount was deposited into court as that amount was not initially deposited by the Department of Transportation. Shiv Aban, Inc. v. Ga. DOT, 336 Ga. App. 804, 784 S.E.2d 134 (2016).

Term "just and adequate compensation" in subsection (c) of O.C.G.A. § 32-3-19 does not include prejudgment interest as an integral part which would make prejudgment interest subject to postjudgment interest. Department of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 353 S.E.2d 603 (1987).

Post-judgment interest in condemnation actions is to be awarded in accordance with O.C.G.A. § 7-4-12 at 12 percent per annum rather than at 7 percent under O.C.G.A. § 32-3-19, as the former is the more recent of the statutes. Department of Transp. v. Vest, 160 Ga. App. 368, 287 S.E.2d 85 (1981).

When jury's award is less than condemnor's deposit.

- In a condemnation case in which the jury awarded the property owner $86,000, because the DOT had initially paid $118,250 into the court's registry, the trial court properly entered judgment against the owner in the amount of $32,250. Curry v. DOT, 341 Ga. App. 482, 801 S.E.2d 95 (2017).

Jury verdict establishes value.

- Last word on value is the jury's verdict; the jury establishes the value. If the jury finds as a fact that the condemnor underestimated the value of the land, the condemnor must pay more; if it finds as a fact that the condemnor overestimated the value, the condemnee is not entitled to the proceeds of the government agency's mistake. Kellett v. Department of Transp., 174 Ga. App. 214, 329 S.E.2d 514 (1985).

Appeals.

- Mere filing of a timely motion for new trial or a notice of appeal, both of which contemplate the prior entry of a judgment on the jury's verdict, do not destroy the underlying viability of that prior judgment as a final appealable order in the case. DOT v. Petkas, 189 Ga. App. 633, 377 S.E.2d 166, cert. denied, 189 Ga. App. 911, 377 S.E.2d 166 (1988).

Cited in Department of Transp. v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Just and adequate compensation interest vests on date of taking.

- Right to receive interest as part of just and adequate compensation vests on date of taking, which is the day the declaration of taking, accompanied by the payment of just and adequate compensation, is filed in a superior court. 1980 Op. Att'y Gen. No. 80-100.

Interest on amount recovered in condemnation cases.

- Condemnation cases filed before the effective date of O.C.G.A. § 7-4-12 bear interest at 7 percent on the amount recovered from the date of taking. Cases filed on and after the effective date of O.C.G.A. § 7-4-12 bear interest at 7 percent from the date of taking to the date of final judgment and at 12 percent from the date of final judgment. 1980 Op. Att'y Gen. No. 80-100.

Surplus property not to be placed in court registry.

- Legislature intended that only money, and not surplus property, be placed into the court registry for satisfaction of any judgment resulting from a condemnation action. 1992 Op. Att'y Gen. No. 92-8.

32-3-20. Effect of article on other methods of condemnation.

In cases involving condemnation of private property for public road purposes or any other public transportation purpose, this article shall be supplementary to and cumulative of the methods of procedure for condemnation of private property prescribed in Chapter 2 of Title 22.

(Code 1933, § 95A-617, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1979, p. 973, § 6.)

ARTICLE 2 ACQUISITION OF RIGHTS OF WAY AND EASEMENTS FOR FEDERAL PARKWAYS

Cross references.

- Limited access roads generally, § 32-6-110 et seq.

32-3-30. Power of department to acquire rights of way and easements.

The department shall have the authority and is empowered to acquire, either by condemnation, purchase, gift, or other methods, rights of way and easements necessary to comply with the laws, rules, and regulations of the United States government for the construction of federal parkways in Georgia.

(Ga. L. 1967, p. 604, § 1; Ga. L. 1969, p. 982, § 1.)

Cross references.

- Easements generally, T. 44, C. 9.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 99, 209, 210, 259. 27 Am. Jur. 2d, Eminent Domain, § 784 et seq. 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 191, 192.

C.J.S.

- 29A C.J.S., Eminent Domain, §§ 146, 180.

32-3-31. Method of acquisition.

The authority delegated by this article to the department to acquire rights of way and easements for federal parkways shall be the same authority as hereinbefore provided by law for the acquisition of rights of way for present or future public road or other transportation purposes in Georgia; and the department shall exercise such authority in the same manner and under the same Code sections which provide for the construction of state-aid roads in this state.

(Ga. L. 1967, p. 604, § 2; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses in Real Property, § 14 et seq. 26 Am. Jur. 2d, Eminent Domain, §§ 87, 95, 294. 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 32, 33, 191 et seq.

C.J.S.

- 28A C.J.S., Easements, § 21 et seq. 29A C.J.S., Eminent Domain, §§ 65, 118, 133, 146, 180 et seq. 39A C.J.S., Highways, §§ 1, 2, 3, 27, 178, 195 et seq.

32-3-32. Acquisition of fee simple title; designation on official county map.

The rights of way acquired by the department may, at the option of the department, be a fee simple title; and the nature and extent of the rights of way and easements so acquired shall be designated upon an official county map showing the location of the rights of way across each county in this state.

(Ga. L. 1967, p. 604, § 5; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses in Real Property, § 12. 26 Am. Jur. 2d, Eminent Domain, §§ 87, 101. 27 Am. Jur. 2d, Eminent Domain, § 770 et seq.

C.J.S.

- 29A C.J.S., Eminent Domain, § 630. 39A C.J.S., Highways, § 203.

32-3-33. Inclusion of scenic easements in rights of way.

The department may acquire scenic easements; and these may be included as part of the rights of way to be acquired by the department for federal parkways in those cases mutually acceptable to the department and the United States government or its appropriate agency.

(Ga. L. 1967, p. 604, § 3; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses in Real Property, § 7. 26 Am. Jur. 2d, Eminent Domain, §§ 135, 137, 156, 157. 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 200 et seq., 208, 350.

C.J.S.

- 28A C.J.S., Easements, §§ 53, 82, 114. 29A C.J.S., Eminent Domain, §§ 133, 139, 151. 39A C.J.S., Highways, § 211.

32-3-34. Amount of land to be acquired for rights of way.

  1. The lands and interest in lands to be acquired in fee simple for federal parkway rights of way shall average not more than 125 acres per mile plus not more than 25 acres per mile in scenic easements; and in no case shall the width of the fee simple rights of way for federal parkway land be less than 300 feet. It is the intent of this Code section that in using the acreage per mile method there will be permitted the balancing of the total acreage over the entire length of the federal parkway project within the state and that such usage will provide for flexibility to narrow or widen the fee simple lands acquired for federal parkways to meet specific conditions.
  2. The variance of the width of the lands to be acquired by the department for federal parkways is to be dependent upon topographical conditions; requirements of federal parkway design; acquisition of acreage adjacent to the federal parkway at designated locations of scenic, historic, or recreational value or significance; simplicity and ease of rights of way acquisition; cost of rights of way acquisition; and other conditions considered by the department to be controlling; but in no case shall the width of the fee simple rights of way to be acquired for federal parkways be less than the 300 feet provided for in this Code section.

(Ga. L. 1967, p. 604, § 4; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Easements and Licenses in Real Property, §§ 54, 55, 70. 27 Am. Jur. 2d, Eminent Domain, § 788. 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 193.

C.J.S.

- 28A C.J.S., Easements, § 93 et seq. 39A C.J.S., Highways, § 206 et seq.

ALR.

- Width of way created by express grant, reservation, or exception not specifying width, 28 A.L.R.2d 253.

32-3-35. Access for private roads.

The acquisition of rights of way by the department for federal parkways shall permit no reservations or interests of access for private roads connecting to or crossing the federal parkways; and the department shall acquire, as part of the rights of way for federal parkways, the rights and interests of access for private roads.

(Ga. L. 1967, p. 604, § 7; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 69, 70.

C.J.S.

- 29A C.J.S., Eminent Domain, § 33.

32-3-36. Conveyance of title to rights of way to United States government or its appropriate agency.

The department is authorized and empowered to convey such title or interest as is acquired for federal parkway rights of way to the United States government or its appropriate agency, free and clear of all claims for compensation.

(Ga. L. 1967, p. 604, § 6; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 17, 88, 90, 112, 223 et seq., 241, 269. 27 Am. Jur. 2d, Eminent Domain, §§ 365, 366, 381 et seq.

C.J.S.

- 29A C.J.S., Eminent Domain, §§ 20, 93, 100, 101, 133, 213 et seq.

32-3-37. Use of property before final condemnation; enforcement of Code section.

  1. When areas of land or interests in land have been tentatively designated by the United States government to be included within federal parkways but the final survey and plans necessary for the construction of federal parkways as provided by law have not yet been made, no person shall cut or remove any timber from such areas as so designated pending the completion and finalization of such survey and plans after receiving notice from the department that such area is under investigation. Any property owner who suffers loss or damage by reason of the restraint upon his right to use the timber upon his land pending such investigation and the finalization of survey and plans for the construction of federal parkways shall be entitled to recover compensation from the department for the temporary appropriation of his property and for any damage to his property caused by such temporary appropriation, in the event the same is not finally included within the area designated as a federal parkway.
  2. The provisions of this Code section may be enforced under the same law now applicable for the adjustment and payment of compensation in the acquisition of rights of way for present or future public road or other transportation purposes.

(Ga. L. 1967, p. 604, § 9; Ga. L. 1969, p. 982, § 1.)

32-3-38. Advertisement restrictions near parkways.

  1. No advertisement or advertising structure shall be erected, constructed, installed, maintained, or operated within 500 feet of the boundary of any federal parkway rights of way acquired by the department under this article except as follows:
    1. Advertisements which are securely attached to a place of business or residence which does not exceed one advertising structure with a total area not to exceed 100 square feet may be erected or maintained or caused to be erected or maintained by the owner or lessee of such place of business or residence within 150 feet of such place of business or residence if and only if the advertisement or advertising structure relates solely to merchandise, services, or entertainment sold, produced, manufactured, or furnished at such place of business or residence;
    2. Signs may be erected or maintained or caused to be erected or maintained on any farm by the owner or lessee of such farm if and only if such signs relate solely to farm produce, merchandise, services, or entertainment sold, produced, manufactured, or furnished on such farm and when the signs so erected or maintained do not exceed two in number with a combined total area not to exceed 150 square feet;
    3. Signs may be posted or displayed upon real property by the owner, or by the authority of the owner, stating that the property upon which the sign is located, or a part of such property, is for sale or rent; and such signs, when so posted or displayed, may state any data pertaining to such property and its appurtenances and the name and address of the owner and the agent of such owner;
    4. Notice of any railroad, bridges, ferries, or other transportation or transmission company may be posted or displayed when found necessary in the discretion of the commissioner;
    5. A sign containing 16 square feet or less and bearing an announcement of any county, town, village, or city, or historic place or shrine, which is situated in this state, advertising itself or local industries, meetings, buildings, or attractions, may be posted or displayed, provided that the sign is maintained wholly at public expense or at the expense of such historic place or shrine;
    6. Historic markers erected by duly constituted and authorized public authorities may be posted or displayed; and
    7. Highway markers and signs erected or caused to be erected by the commissioner or other authorities, in accordance with the law, may be posted or displayed.
  2. Any person who violates the advertising restrictions of this Code section or any lawful regulation promulgated by the department under authority of this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in Code Section 32-6-91. The department is authorized to use the remedies set forth in Code Sections 32-6-93, 32-6-94, and 32-6-96, in order to enforce the advertising restrictions set forth in this Code section.

(Ga. L. 1967, p. 604, § 10; Ga. L. 1969, p. 982, § 1.)

Cross references.

- Control of advertising, informational, directional, and other signs generally, § 32-6-50 et seq.

Administrative Rules and Regulations.

- Granting, renewal, and revocation of permits for outdoor advertising, Official Compilation of the Rules and Regulations for the State of Georgia, Department of Transportation, Chapter 672-6 et seq.

RESEARCH REFERENCES

Am. Jur. 2d.

- 3 Am. Jur. 2d, Advertising, §§ 2, 6 et seq., 15 et seq., 27 et seq. 40 Am. Jur. 2d, Highways, Streets, and Bridges, § 324.

C.J.S.

- 40 C.J.S., Highways, § 332.

ALR.

- Municipality's power to permit private owner to construct building or structure overhanging or crossing the air space above public street or sidewalk, 76 A.L.R.2d 896.

Validity and construction of provision prohibiting or regulating advertising sign overhanging street or sidewalk, 80 A.L.R.3d 687.

Validity and construction of statute or ordinance restricting outdoor rate advertising by motels, motor courts, and the like, 80 A.L.R.3d 740.

32-3-39. Concurrent jurisdiction conceded to United States government; taxing power of state reserved.

The State of Georgia, by this article, does concede concurrent jurisdiction to the United States government or its appropriate agency for rights of way and the lands or interest in lands conveyed to the United States government for federal parkway purposes under this article. However, the State of Georgia expressly reserves the taxing power as applied to all persons, property, or operations within the federal parkway rights of way except as applied to the property of and the operations of the United States government and its agencies.

(Ga. L. 1967, p. 604, § 8; Ga. L. 1969, p. 982, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 17 et seq., 88, 90, 105, 109. 77 Am. Jur. 2d, United States, § 34 et seq.

C.J.S.

- 91 C.J.S., United States, § 8 et seq.

CHAPTER 4 STATE, COUNTY, AND MUNICIPAL ROAD SYSTEMS

Article 1 General Provisions.
Article 2 State Highway System.
Article 3 County Road Systems.
Part 1 GENERAL POWERS AND DUTIES OF COUNTIES.
Part 2 EXERCISE BY COUNTIES OF POWER TO CONTRACT GENERALLY.
Article 4 Municipal Street Systems.
Part 1 GENERAL POWERS AND DUTIES OF MUNICIPALITY.
Part 2 Exercise by Municipalities of Power
to Contract Generally. Cross references. - Toll road and toll bridge licenses issued by counties and municipalities, § 36-60-21.

Public works bidding, § 36-91-1 et seq.

Public bridge franchise issued by state, § 44-8-10.

Law reviews.

- For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998).

RESEARCH REFERENCES

Actions Against Road Contractors for Inadequate Warning of Construction Hazards, 72 Am. Jur. Trials 215.

ARTICLE 1 GENERAL PROVISIONS

32-4-1. Classification of public roads.

For purposes of jurisdiction and administration, the public roads of Georgia shall be divided and classified in accordance with the three types of classifications provided in this Code section:

  1. STATE HIGHWAY SYSTEM. The state highway system shall consist of those public roads which on July 1, 1973, are shown by the records of the department to be "state-aid roads," those public roads thereafter designated by the department as part of the state highway system, and all of The Dwight D. Eisenhower System of Interstate and Defense Highways within the state;
  2. COUNTY ROAD SYSTEMS. Each county road system shall consist of those public roads within that county, including county roads extending into any municipality within the county, which are shown to be part of that county road system by the department records on July 1, 1973, and any subsequent additions to such county road system made by the county;
  3. MUNICIPAL STREET SYSTEMS. Each municipal street system shall consist of those public roads within the limits of that municipality which are not in any other classification under this Code section.

(Code 1933, § 95A-201, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 136, § 32.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 69-301, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Road may become public without department recording road in county road system.

- Failure of the Department of Transportation to record a particular road as being a part of the county road system does not determine whether such road becomes a public road by prescription. Jordan v. Way, 235 Ga. 496, 220 S.E.2d 258 (1975).

Circular airport roadway not street.

- Roadway in the form of a circle, situated wholly within the limits of a municipal airport, is not a city "street." Mayor of Savannah v. Lyons, 54 Ga. App. 661, 189 S.E. 63 (1936) (decided under former Code 1933, § 69-301).

Cited in Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993); City of Social Circle v. Sims, 228 Ga. App. 582, 492 S.E.2d 240 (1997); DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002); Murray v. Ga. DOT, 284 Ga. App. 263, 644 S.E.2d 290 (2007); Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).

OPINIONS OF THE ATTORNEY GENERAL

Deeding privately-owned road or driveway to county.

- Merely deeding privately owned road or driveway to county will not necessarily turn that private property into a public road. 1980 Op. Att'y Gen. No. U80-37.

When county must maintain roads annexed into municipalities.

- Because the county must maintain roads on the county road system and because public roads are not removed from the system by mere annexation into a municipality where the road lies, the county must continue to maintain roads on the county road system which are in areas annexed into a municipality until the governing authority of the county removes the roads from the county road system by appropriate action. 1976 Op. Att'y Gen. No. U76-21.

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 3.

C.J.S.

- 39A C.J.S., Highways, § 1.

ALR.

- Responsibility of county for injury from defect in highway, 2 A.L.R. 721.

Term "highway" in statutory provision relative to vehicle traffic as including street, 54 A.L.R. 1250.

Jurisdiction and power in respect of street road which is part of, or touches upon, a state or federal highway, 144 A.L.R. 307.

32-4-2. Official map, list, and records; rules and regulations.

    1. The department shall prepare an official map showing all public roads on the state highway system. Changes to the state highway system shall be recorded on this map as soon as is reasonably possible; and such map, as it is periodically revised, shall be filed with the Secretary of State and shall be open for public inspection. As often as reasonably possible but not less than once every five years, the department shall also prepare and distribute to each county a map showing all the public roads on its county road system including extensions into municipalities.
      1. The department shall prepare an official list of all portions or features of the state highway system, including without limitation public roads, bridges, or interchanges, which have been named by Act or resolution of the General Assembly or by resolution of the State Transportation Board. The department shall update the list to reflect any additions or changes as soon as is reasonably possible; and such list, as periodically revised, shall be open for public inspection. For each such named portion or feature of the state highway system, the list shall specify without limitation the official name; the state highway system route number; the name of each county wherein the named portion or feature is located; a citation to the Act or resolution of the General Assembly or the resolution of the State Transportation Board officially naming such portion or feature; and a brief biographical, historical, or other relevant description of the person, place, event, or thing commemorated by such naming.
      2. The department may contract with a state historical society to make such list available in electronic format free of charge to Internet users, provided that any web page providing such list pursuant to this subparagraph shall be searchable without limitation by county name.
  1. The department shall keep written records of the mileage on all public roads on the state highway system and on all public roads on each of the county road systems. These written records shall be revised as soon as is reasonably possible after any changes to the above public road systems. They shall indicate whether roads are paved or unpaved and shall contain information as to the condition, status, type, and use of all such public roads and such other information as deemed necessary for sound, long-range planning of public road construction and maintenance. These records shall be made available to each county and to the public.
  2. The department may provide reasonable rules and regulations for keeping accurate and up-to-date, between official measurements, the mileage record called for in this Code section. Each county shall comply with such rules and regulations.
  3. Not more often than every four years, a county may request an official measurement of its county road system under the rules and regulations of the department; and the department shall comply with such a request if properly made. Whenever a mileage measurement is to be made in any county, whether in response to a request or in the regular course of measurement for the records of the department, the county shall furnish a representative to accompany the representatives of the department in its measurement. In case of disagreement between the department representative and the county representative as to their findings, the matter shall be referred to the commissioner, whose decision as to the facts thereof shall be final and conclusive. The distribution of the county grants based on public road mileage of the county road system shall be made on the basis of the latest official mileage record for each county as shown by department records at the end of the preceding fiscal year.
  4. The official record of the state highway system shall consist of an official map, as provided for in subsection (a) of this Code section, and a written record, as provided for in subsection (b) of this Code section, the written record to have priority in case of conflict between the two. Resolutions of the board designating a road as part of the state highway system, as provided for in Code Section 32-4-21, and certifications of abandonment, as provided for in subsection (a) of Code Section 32-7-2, shall serve as the official record until such changes are recorded on the official map and in the written record.
  5. The official record of a county road system shall consist of an official map, as provided for in subsection (a) of this Code section, and a written record, as provided for in subsection (b) of this Code section, the written record to have priority in case of conflict between the two. The minutes of the county containing resolutions designating roads as a part of a county road system, as provided for in Code Section 32-4-40, and certifications of abandonment, as provided for in subsection (b) of Code Section 32-7-2, shall serve as the official record until such changes are recorded on the official map and in the written record.
  6. For purposes of this chapter, state maps and written records shall only be maintained on public roads which are open to public travel.

(Orig. Code 1863, § 578; Code 1868, § 642; Code 1873, § 603; Code 1882, § 603; Ga. L. 1890-91, p. 134, § 1; Civil Code 1895, § 516; Civil Code 1910, § 636; Code 1933, § 95-108; Code 1933, § 95A-204, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 1304, § 1; Ga. L. 2001, p. 4, § 32; Ga. L. 2009, p. 8, § 32/SB 46; Ga. L. 2011, p. 583, § 4/HB 137.)

JUDICIAL DECISIONS

Width of road determinations.

- When the county has no road register, and the road at issue has never been laid out by the county, registered, or classified, the road's width must be determined by the prescriptive use of the road. Turner v. Brown, 234 Ga. 605, 216 S.E.2d 853 (1975).

Removal of road from official map.

- After the Department of Transportation removed a road from the official map for the state highway system and placed the road on the official map for the county road system and the county adopted a resolution accepting the road, the evidence established that the department had no obligation to maintain the road. Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).

OPINIONS OF THE ATTORNEY GENERAL

When county must maintain roads annexed into municipalities.

- Because the county must maintain roads on the county road system and because public roads are not removed from the system by mere annexation into a municipality where the road lies, the county must continue to maintain roads on the county road system which are in areas annexed into a municipality until the governing authority of the county removes the roads from the county road system by appropriate action. 1976 Op. Att'y Gen. No. U76-21.

32-4-3. Naming state roads, bridges, or interchanges.

No state agency shall name or rename any state road, bridge, interchange, or any part of a road in honor of, or with the name of, any person unless such action is approved by a joint resolution or Act of the General Assembly which is approved by the Governor or becomes law without such approval. This Code section shall not apply to a political subdivision of the state naming any road which is under the jurisdiction of such political subdivision.

(Code 1981, §32-4-3, enacted by Ga. L. 2002, p. 415, § 32.)

Cross references.

- Specific powers of General Assembly, Ga. Const. 1983, Art. III, Sec. VI, Para. II.

Editor's notes.

- The provisions of this Code section were previously enacted in substantially similar form by Ga. L. 2001, p. 1215, § 2.

Ga. L. 2006, p. 72, § 32A/SB 465, not codified by the General Assembly, provided for the repeal of Ga. L. 2001, p. 1215, § 2, which section has been codified as and superceded by Code Section 32-4-3, relating to naming state roads, bridges, or interchanges, and which Code section shall remain effective.

32-4-4. Abandonment of utility facilitles containing asbestos pipe.

  1. As used in this Code section, the term "entity" means a county, a municipality, a consolidated government, or a local authority.
  2. Whenever existing utility facilities owned and operated by an entity contain asbestos pipe and such facility exists in the public rights of way of any highway, road, or street authorized pursuant to this title, and the entity determines that such facility should no longer be utilized, the entity that owns and operates the utility facility shall file a notice of abandonment with the department if the facility is located upon the public rights of way under the authority of the department. Upon abandonment, the entity shall have the discretion to:
    1. Remove and dispose of the asbestos pipe in accordance with federal laws and regulations;
    2. Leave the asbestos pipe in place and fill it with grout or other similar substance designed to harden within the pipe; or
    3. Allow the pipe to remain undisturbed in the ground and take no further action.
  3. At the request of the department or entity, any asbestos pipe left in the right of way as authorized by subsection (b) of this Code section shall be marked so as to be locatable.
  4. The entity shall not relinquish the ownership of said facility as stated in subsection (h) of Code Section 25-9-7 and Code Section 32-6-174. The facility shall be deemed abandoned and out of service.

(Code 1981, §32-4-4, enacted by Ga. L. 2009, p. 302, § 1/HB 101; Ga. L. 2011, p. 583, § 5/HB 137.)

ARTICLE 2 STATE HIGHWAY SYSTEM

32-4-20. Composition of state highway system.

The state highway system shall consist of an integrated network of arterials and of other public roads or bypasses serving as the major collectors therefor. No public road shall be designated as a part of the state highway system unless it meets at least one of the following requirements:

  1. Serves trips of substantial length and duration indicative of regional, state-wide, or interstate importance;
  2. Connects adjoining county seats;
  3. Connects urban or regional areas with outlying areas, both intrastate and interstate; or
  4. Serves as part of the principal collector network for the state-wide and interstate arterial public road system.

(Code 1933, § 95A-202, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2012, p. 1343, § 5/HB 817; Ga. L. 2015, p. 1072, § 1/SB 169.)

Cross references.

- Giving of notice of intention to condemn road constituting part of state highway system for purpose of constructing electric power plant, § 22-3-42.

JUDICIAL DECISIONS

Road not part of state highway system.

- Trial court did not err in granting the Georgia Department of Transportation (DOT) summary judgment in a driver's action alleging that the department negligently maintained a dirt road because the road was not a part of the state highway system since the road did not meet any of the four requirements of O.C.G.A. § 32-4-20, and the DOT had no duty to maintain the road; the dirt road was a dead-end loop that led back to a county road and was part of a right-of-way that was fenced off from the travel lanes of an interstate, and at some point before the incident, access to the road had been restricted by a gate. Barrett v. Ga. DOT, 304 Ga. App. 667, 697 S.E.2d 217, cert. denied, No. S10C1813, 2010 Ga. LEXIS 918 (Ga. 2010).

32-4-21. Designation of roads as part of state highway system.

Whenever the board, or the commissioner when the board is not in session, deems it necessary and in the public interest to have a new or existing public road designated as part of the state highway system, whether as additional mileage or as part of a substitution or relocation, the board, by resolution, or the commissioner, by written notice to the board, may designate such road to be a part of the state highway system. If the road proposed to be designated is a part of either a county road system or a municipal street system, the department shall give written notice to the county or municipality of the effective date that such road shall become part of the state highway system. Any change on the state highway system by designation shall be recorded on the official map and in the written records of the state highway system, as provided for in subsections (a) and (b) of Code Section 32-4-2.

(Laws 1818, Cobb's 1851 Digest, p. 947; Code 1863, §§ 579, 580; Code 1868, §§ 643, 644; Code 1873, §§ 604, 605; Code 1882, §§ 604, 605; Civil Code 1895, §§ 520, 521; Civil Code 1910, §§ 640, 641; Code 1933, §§ 95-201, 95-202; Code 1933, § 95A-202, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Removal of road from official map.

- After the Department of Transportation removed a road from the official map for the state highway system and placed the road on the official map for the county road system and the county adopted a resolution accepting the road, the evidence established that the department had no obligation to maintain the road. Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).

Liability for maintenance of road when written notice not given.

- Georgia Department of Transportation was responsible for maintaining a bypass on a road because the department had taken over maintenance of the road even though the department had not yet given the statutory written notice of the road becoming a part of the state highway system. DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002).

32-4-22. Creation of Developmental Highway System.

  1. There is created as a part of the state highway system a system of public roads to be known as the Developmental Highway System which shall consist of the following road corridors (not in order of priority):
    1. Appalachian;
    2. The South Georgia Parkway;
    3. U.S. 27;
    4. U.S. 82;
    5. Golden Isles;
    6. Savannah River;
    7. U.S. 441;
    8. Fall Line;
    9. U.S. 319;
    10. U.S. 19;
    11. U.S. 84;
    12. U.S. 1/SR 17;
    13. SR 72;
    14. Northern Arc further identified as the North Georgia Connector between the U.S. Highway 411 and U.S. Highway 41 interchange in Bartow County to State Highway 316 in Gwinnett County;
    15. East-west Highway from I-59 North to I-85 North;
    16. Truck access routes, including without limitation:
      1. SR 133 from Albany to Valdosta;
      2. SR 40 from Folkston to St. Marys; and
      3. SR 125 from Fitzgerald to I-75;
    17. SR 32;
    18. Power Alley, U.S. 280 from Columbus to Savannah;
    19. SR 125 from its intersection with SR 107 in Ben Hill County (Fitzgerald Bypass) to its intersection with SR 32 in Irwin County; and
    20. SR 15 from its intersection with US 441/SR 24 at Watkinsville to its intersection with US 1 in Toombs County.

      Without limiting the foregoing, said system is further identified as including those roads and corridors referred to as "the Governor's Road Improvement Program" in that resolution adopted by the State Transportation Board dated November 17, 1988.

  2. The location and mileage of the Developmental Highway System shall be as generally described in subsection (a) of this Code section, with the power of the State Transportation Board to make such variances therein as shall be dictated by sound engineering and construction practices.
  3. The Developmental Highway System shall be under the control and supervision of the board, subject to the provisions of this Code section or any other Act of the General Assembly; provided, however, that the State Road and Tollway Authority is authorized to construct all or any part of such system and to enter into agreements with the department, pursuant to Code Section 32-2-61, for such purpose. Any project the cost of which is paid from the proceeds of garvee bonds as defined in Code Section 32-10-90.1 shall be, pursuant to a contract or agreement between the authority and the department, planned, designed, and constructed by the Department of Transportation or a contractor contracting with the Department of Transportation.

(Code 1981, §32-4-22, enacted by Ga. L. 1989, p. 221, § 1; Ga. L. 1994, p. 701, § 1; Ga. L. 2001, p. 1215, § 1; Ga. L. 2001, p. 1251, § 1-3; Ga. L. 2005, p. 320, § 1/SB 107.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, a punctuation change was made at the beginning of paragraph (a)(2).

Law reviews.

- For note on 1989 enactment of this Code section, see 6 Ga. St. U. L. Rev. 257 (1989).

JUDICIAL DECISIONS

Road part of state highway system.

- Trial court did not err by denying the Georgia Department of Transportation's motion to dismiss a wrongful death action filed by the decedents' parents based on sovereign immunity because it was undisputed that the road in question was part of the state highway system. DOT v. Delor, 351 Ga. App. 414, 830 S.E.2d 519 (2019), cert. denied, 2020 Ga. LEXIS 260 (Ga. 2020).

32-4-23. Council on Rural Transportation and Economic Development; creation and membership; powers, duties, and authority; funding; expense allowances; repeal.

Reserved. Repealed by Ga. L. 1997, p. 976, § 1, effective March 31, 2000.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2007, this Code section number was designated as reserved.

Editor's notes.

- This Code section was based on Code 1981, § 32-4-23, enacted by Ga. L. 1996, p. 1512, § 1; Ga. L. 1997, p. 976, § 1.

32-4-24. Alternative tourism routes; welcome centers authorized.

  1. The board shall designate as alternative tourism routes roads that are a part of the state highway system that traverse the state and pass through or in close proximity to historic sites or tourist attractions in the state. Interstate highways that traverse the state shall not be eligible for designation as an alternative tourism route. The initial alternative tourism routes shall be U.S. Highway 27 and U.S. Highway 441.
  2. The board shall consult with the Department of Economic Development, county governing authorities, and historical sites and tourist attractions located in this state in the selection of additional alternative tourism routes. The Department of Economic Development shall promote such routes and sites and attractions along such routes to the motoring public.
  3. Subject to the appropriation process, the department may within five years of the designation of an alternative tourism route construct within 20 miles of the state line on each end of such route a welcome center. Subject to the appropriation process, if the department decides to construct such a center, it shall negotiate and contract with the local governing authorities where the welcome center is located for the maintenance and operation of such center.

(Code 1981, §32-4-24, enacted by Ga. L. 2007, p. 291, § 1/SB 282.)

ARTICLE 3 COUNTY ROAD SYSTEMS

Cross references.

- Application for and issuance of writ of mandamus against county board of commissioners or probate judge to compel building, repair, and maintenance of county roads, § 9-6-21.

Grants to counties for road construction and maintenance, as such grants relate to relief of ad valorem taxation on tangible property in county, § 36-17-20 et seq.

PART 1 G ENERAL POWERS AND DUTIES OF COUNTIES

32-4-40. Designation of roads as part of county road system; designation of system on maps and written records of county.

Each county shall, by resolution, designate roads to be a part of its county road system; and such resolutions shall be recorded in the minutes of the county. All such roads shall be laid out on the shortest and best route to their intended destination and with as little injury to private property as possible. When a road has been designated as a part of a county road system, this change shall be recorded on the official map of the county road system, as provided for in subsection (a) of Code Section 32-4-2, and in the written record of the county road system, as provided for in subsection (b) of Code Section 32-4-2.

(Laws 1818, Cobb's 1851 Digest, p. 951; Code 1863, § 584; Code 1868, § 648; Code 1873, § 609; Code 1882, § 609; Civil Code 1895, § 529; Civil Code 1910, § 645; Code 1933, § 95-205; Code 1933, § 95A-203, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Acceptance of transfer of state road.

- After the Department of Transportation removed a road from the official map for the state highway system and placed the road on the official map for the county road system and the county adopted a resolution accepting the road, the evidence established that the department had no obligation to maintain the road. Georgia DOT v. Smith, 210 Ga. App. 741, 437 S.E.2d 811 (1993).

32-4-41. Duties.

The duties of a county with respect to its county road system, unless otherwise expressly limited by law, shall include but not be limited to the following:

  1. A county shall plan, designate, improve, manage, control, construct, and maintain an adequate county road system and shall have control of and responsibility for all construction, maintenance, or other work related to the county road system. Such work may be accomplished through the use of county forces, including inmate labor, by contract as authorized in paragraph (5) of Code Section 32-4-42, or otherwise as permitted by law. Nothing in this paragraph shall be construed to prevent a county from entering into a contract providing for a municipality to maintain an extension of the county road system within the municipal limits;
  2. A county shall control, administer, and account for funds received for the county road system and activities incident thereto from any source whatsoever, whether federal, state, county, municipal, or any other; and it shall expend such funds for and on behalf of the county in connection with the county road system and for any purpose in connection therewith which may be authorized in this title or by any other law;
  3. A county shall inspect and determine the maximum load, weight, and other vehicular dimensions which can be safely transported over each bridge on the county road system and shall post on each bridge and on each approach thereto on the county road a sign containing a legible notice showing such maximum safe limits, each such sign to conform to the department regulations promulgated under authority of Code Section 32-6-50. However, the department is authorized to give technical assistance to counties, when so requested, in carrying out this paragraph. It shall be unlawful for any person to haul, drive, or bring on any bridge any vehicle, load, or weight which in any manner exceeds the maximum limits so ascertained and posted on such bridge; and any person hauling, driving, or otherwise bringing on such bridge any load or weight exceeding the maximum limits so ascertained and posted shall do so at his own risk; and the county shall not be liable for any damages to persons or property that may result therefrom;
  4. A county shall keep on file in the office of the county clerk, available for public inspection, the map of the county road system prepared by the department as provided for in subsection (a) of Code Section 32-4-2. In addition to keeping on file a map of the county road system, the county shall notify the department within three months after a county road is added to the local road or street system and shall further notify the department within three months after a local road or street has been abandoned. This notification shall be accompanied by an appropriate digital file, map, or plat depicting the location of the new or abandoned road;
  5. A county shall procure the necessary rights of way for public roads of the state highway system within the county in compliance with subsection (e) of Code Section 32-3-3 and Code Section 32-5-25; and
  6. In acquiring property for rights of way for federal-aid highway projects on its county road system, the county shall comply with the requirements of the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended by the Uniform Relocation Act Amendments of 1987, Title IV of Public Law 100-17, and in general shall be guided by the policies applicable to the department as set forth in Code Section 32-8-1.

(Code 1933, § 95A-401, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1980, p. 775, § 5; Ga. L. 1981, p. 953, § 1; Ga. L. 1988, p. 1737, § 1; Ga. L. 1998, p. 1206, § 1; Ga. L. 2011, p. 583, § 6/HB 137.)

Cross references.

- Weight of vehicle and load, § 32-6-26.

Designated local truck route signs, § 32-6-50.

U.S. Code.

- The Uniform Relocation System and Real Property Acquisition Policy Act of 1970, referred to in this Code section, is codified as 42 U.S.C. § 4601 et seq.

Law reviews.

- For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 95-9 and § 95-1721, and former Ga. L. 1955, p. 124, as amended, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Constitutional to require county authorities to maintain roads.

- Requiring county authorities to maintain roads did not violate state constitutional provisions dealing with the creation of debts since counties are granted authority to build and maintain roads and to levy taxes for such purposes. State v. Georgia Rural Rds. Auth., 211 Ga. 808, 89 S.E.2d 204 (1955) (decided under former Ga. L. 1955, p. 124, as amended).

Constitutional to require county to build and maintain bridges.

- It is the duty of county authorities to construct and maintain bridges across streams in a workmanlike and proper manner so that any person may use the bridges in safety in ordinary travel. DeKalb County v. Brewer, 107 Ga. App. 231, 129 S.E.2d 540 (1963), later appeal, 111 Ga. App. 269, 141 S.E.2d 234 (1965) (decided under former Code 1933, Ch. 95-9).

Judicial review of abandonment decision.

- In a mandamus action, a trial court erred by reversing a decision of a county board of commissioners to abandon a road as the trial court failed to give proper deference to the board's decision to abandon the road and substituted the court's own judgment for that of the board. Scarborough v. Hunter, 293 Ga. 431, 746 S.E.2d 119 (2013).

No liability for defective bridges.

- There is no language in O.C.G.A. § 32-4-41 specific enough to waive sovereign immunity and make a county liable for the county's defective bridges. Kordares v. Gwinnett County, 220 Ga. App. 848, 470 S.E.2d 479 (1996).

Duty to install signs.

- In a personal injury action, contractor had no duty to protect the plaintiff from dangerous or defective conditions caused by others; the county, not the contractor, had the obligation to install the signs which the plaintiff claimed were necessary. Purvis v. Virgil Barber Contractor, 205 Ga. App. 13, 421 S.E.2d 303 (1992).

When an injured party sued the Georgia Department of Transportation (DOT) for injuries received in a single-car accident on a county road, the party could not maintain a negligent maintenance claim against DOT because the road on which the accident occurred was not part of the state highway system, nor did the road lead to a state park; thus, under O.C.G.A. § 32-4-41(1), the county was obligated to maintain the road and, under O.C.G.A. § 32-2-61(e), DOT's contract with the county to improve the road did not relieve the county of this responsibility. Ogles v. E.A. Mann & Co., 277 Ga. App. 22, 625 S.E.2d 425 (2005).

State DOT not liable for failing to erect road closure signs on county road.

- Because an accident occurred on a county-owned road and did not occur on a part of the state highway system upon which the DOT owed a duty to motorists, and the couple's expert's affidavit could not establish a legal duty to erect signs or to take other steps to inform drivers of the closure of the county-owned road, summary judgment for the DOT was proper. Diamond v. DOT, 326 Ga. App. 189, 756 S.E.2d 277 (2014).

Duty to maintain dedicated roads in subdivision.

- Trial court erred by granting mandamus relief under O.C.G.A. § 9-6-20 with regard to a property owner seeking to compel a county to maintain roads in a subdivision because while the county had accepted dedication of the streets, the county still was vested with the discretion to decide whether to open all of the roads or close any of the roads, and the trial court was required to determine whether the county's decisions were arbitrary, capricious, and unreasonable or a gross abuse of discretion as nowhere in the judgment was that standard articulated. Burke County v. Askin, 291 Ga. 697, 732 S.E.2d 416 (2012).

County, which had accepted dedication of a subdivision road in 1962 but had not completed the road or maintained the road for 50 years, due to the county's mistaken belief that the road was private, was ordered to complete and maintain the road; the county's failure to complete the road was arbitrary and capricious, given the county's acceptance of subdivision plats requiring the road. As to unopened roads in the subdivision, the roads were not public under O.C.G.A. § 9-6-21(b), and the county had no obligation to maintain those roads. Burke County v. Askin, 294 Ga. 634, 755 S.E.2d 747 (2014).

Constitutional to require county to secure rights of way.

- In the construction of state-aid roads by the State Highway Board (now Transportation Board), it is the duty of the county authorities having control of county roads to assist in procuring the necessary rights of way. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716 (1958) (decided under former Code 1933, § 95-1721).

Extent of right-of-way.

- County could only acquire by prescription a right-of-way over that which was actually used as a roadway, and the standard 30 foot width on which the county relied was applicable only to roads which were formally acquired by the county. Clack v. Henry County, 261 Ga. 623, 409 S.E.2d 647 (1991).

Only the right-of-way actually acquired could be included in the roadway. Clack v. Henry County, 261 Ga. 623, 409 S.E.2d 647 (1991).

Authority to develop asphalt facilities.

- Given the general and broad powers of counties authorized by Ga. Const. 1976, Art. IX, Sec. V, Para. II (see now Ga. Const. 1983, Art. IX, Sec. IV) and this section to levy taxes and expend funds for the construction and maintenance of roads, it is reasonable to imply that the authority can develop facilities for the production of asphalt for use in the county road system. Ledbetter Bros. v. Floyd County, 237 Ga. 22, 226 S.E.2d 730 (1976).

Historical use as public road.

- County's right to the roadway depends on the historical use of the roadway as a public road, not on any express grant of the property to the county or on any express dedication of the property for use as a roadway. Clack v. Henry County, 261 Ga. 623, 409 S.E.2d 647 (1991).

Assumption of duty.

- After the trial court correctly interpreted contract provisions as only requiring the defendant to install traffic control devices, or to take preventative or corrective action when traffic related problems were caused from preexisting hazards or by the defendant's construction activities, the defendant did not undertake to perform the duties under paragraph (1) of O.C.G.A. §§ 32-4-41 and32-6-50(c). Adams v. APAC-Georgia, Inc., 236 Ga. App. 215, 511 S.E.2d 581 (1999).

Cited in Department of Transp. v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977); Peluso v. Central of Ga. R.R., 165 Ga. App. 215, 299 S.E.2d 51 (1983); Hendrix v. Department of Transp., 188 Ga. App. 429, 373 S.E.2d 264 (1988); Evans Timber Co. v. Central of Ga. R.R., 239 Ga. App. 262, 519 S.E.2d 706 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 95-101, 95-102, and 95-801, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Board of education may not maintain roads.

- Board of education may not use the board's funds for laying out, altering, maintaining, and improving a public, county-maintained road even though school transportation would be facilitated thereby; it is the sole duty and responsibility of the local officials in charge of county matters to lay out, alter, maintain, and improve the road in the manner the officials deem best suited to the needs of the county. 1962 Op. Att'y Gen. p. 189 (rendered under former Code 1933, §§ 95-101, 95-102, and 95-801).

When county must maintain roads annexed into municipalities.

- Because the county must maintain roads on the county road system and because public roads are not removed from the system by mere annexation into a municipality where the road lies, the county must continue to maintain roads on the county road system which are in areas annexed into a municipality until the governing authority of the county removes the roads from the county road system by appropriate action. 1976 Op. Att'y Gen. No. U76-21.

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

RESEARCH REFERENCES

ALR.

- Responsibility of county for injury from defect in highway, 2 A.L.R. 721.

Constitutionality of statutory provisions as to political corporations or divisions which shall bear cost of establishing or maintaining highways, 2 A.L.R. 746; 123 A.L.R. 1462.

Right of way at street or highway intersections, 37 A.L.R. 493; 47 A.L.R. 595.

Duty as regards barriers for protection of automobile travel, 86 A.L.R. 1389; 173 A.L.R. 626.

Personal liability of highway officers for damage to or trespass upon land in connection with construction or maintenance of highway, 90 A.L.R. 1481.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

Liability of private landowner for vegetation obscuring view at highway or street intersection, 69 A.L.R.4th 1092.

32-4-42. Powers.

The powers of a county with respect to its county road system, unless otherwise expressly limited by law, shall include but not be limited to the following:

  1. A county shall have the authority to negotiate, let, and enter into contracts with any person or any agency, county, or municipality of the state for the construction, maintenance, administration, or operation of any public road or activities incident thereto in such manner and subject to such express limitations as may be provided by Part 2 of this article or any other provision of law. A county shall also have the authority to perform such road work with its own forces or with a combination of its own forces and the work of a contractor, notwithstanding any contrary provisions of Chapter 91 of Title 36;
  2. A county shall have the authority to accept and use federal and state funds and to do all things necessary, proper, or expedient to achieve compliance with the provisions and requirements of all applicable federal-aid or state-aid acts and programs in connection with the county's public roads. Nothing in this title is intended to conflict with any federal law and, in case of such conflict, such portion as may be in conflict with such federal law is declared of no effect to the extent of the conflict;
    1. A county shall have the authority to acquire and dispose of real property or any interest therein for public road purposes, as provided in Article 1 of Chapter 3 of this title and in Chapter 7 of this title. In any action to condemn property or interests therein for such purposes, notice thereof shall be signed by the condemning county; and such notice shall be deemed to be the official action of the county in regard to the commencement of such condemnation proceedings. For good cause shown a county, at any time after commencement of condemnation proceedings and prior to final judgment therein, may dismiss its condemnation action, provided that (i) the condemnation proceedings have not been instituted under Article 1 of Chapter 3 of this title, and (ii) the condemnor has first paid to the condemnee all expenses and damages accrued to the condemnee up to the date of the filing of the motion for dismissal of the condemnation action.
    2. Pursuant to the requirements of Part 2 of this article, a county shall have the power to purchase, borrow, rent, lease, control, manage, receive, and make payment for all personal property, such as equipment, machinery, vehicles, supplies, material, and furniture, which may be needed in the operation of its county road system; to lease, rent, lend, or otherwise transfer temporarily county property used for road purposes, as authorized by law; to sell or otherwise dispose of all personal property owned by the county and used in the operation of the county road system which is unserviceable; and to execute such instruments as may be necessary in connection with the exercise of the powers described in this subparagraph;
  3. A county and its authorized agents and employees may enter upon any lands in the county for the purpose of making such surveys, soundings, drillings, and examinations as the county may deem necessary or desirable to accomplish the purposes of this title; and such entry shall not be deemed a trespass nor shall it be deemed an entry which would constitute a taking in a condemnation proceeding, provided that reasonable notice of such entry shall be given the owner or occupant of such property, such entry shall be done in a reasonable manner with as little inconvenience as possible to the owner or occupant of the property, and the county shall make reimbursement for any actual damages resulting from such entry;
  4. A county shall have the authority to employ, discharge, promote, set and pay the salaries and compensation of its personnel, and determine the duties, qualifications, and working conditions for all persons whose services are needed in the construction, maintenance, administration, operation, and development of its county road system; to work inmates maintained in the county correctional institution or inmates hired from the Department of Corrections and maintained by the latter; and to employ or contract with such engineers, surveyors, attorneys, consultants, and all other employees as independent contractors whose services may be required, subject to the limitations of existing law;
  5. A county may grant permits and establish reasonable regulations for the installation, construction, maintenance, renewal, removal, and relocation of pipes, mains, conduits, cables, wires, poles, towers, traffic and other signals, and other equipment, facilities, or appliances of any utility in, on, along, over, or under the public roads of the county which are a part of the county road system lying outside the corporate limits of a municipality. However, such regulations shall not be more restrictive with respect to utilities affected thereby than are equivalent regulations promulgated by the department with respect to utilities on the state highway system under authority of Code Section 32-6-174. As a condition precedent to the granting of such permits, the county may require application in writing specifically describing the nature, extent, and location of the portion of the utility affected and may also require the applicant to furnish an indemnity bond or other acceptable security conditioned to pay any damages to any part of the county road system or to any member of the public caused by work of the utility performed under authority of such permit. At all times it shall be the duty of the county to ensure that the normal operation of the utility does not interfere with the use of the county road system. The county may also order the removal or discontinuance of the utility, equipment, facility, or appliances where such removal and relocation are made necessary by the construction or maintenance of any part of the county road system lying outside the corporate limits of a municipality. In so ordering the removal and relocation of a utility or in performing such work itself, the county shall conform to the procedure set forth for the department in Code Sections 32-6-171 and 32-6-173, except that when the removal and relocation have been performed by the county, it shall certify the expenses thereof for collection to its county attorney;
  6. A county shall have the power to purchase supplies for county road system purposes through the state as authorized by Code Sections 50-5-100 through 50-5-102;
  7. In addition to any taxes authorized by Article 4 of Chapter 5 of Title 48 to be levied and collected for the construction and maintenance of its county road system and activities incident thereto, a county is authorized to levy and collect any millage as may be necessary for such purposes;
  8. A county may provide for surveys, maps, specifications, and other things necessary in designating, supervising, locating, abandoning, relocating, improving, constructing, or maintaining the county road system, or any part thereof, or any activities incident thereto or necessary in doing such other work on public roads as the county may be given responsibility for or control of by law;
  9. In addition to the powers specifically delegated to it in this title and except as otherwise provided by Code Section 12-6-24, a county shall have the authority to adopt and enforce rules, regulations, or ordinances; to require permits; and to perform all other acts which are necessary, proper, or incidental to the efficient operation and development of the county road system; and this title shall be liberally construed to that end. Any power vested in or duty placed on a county but not implemented by specific provisions for the exercise thereof may be executed and carried out by a county in a reasonable manner subject to such limitations as may be provided by law;
  10. In all counties of this state having a population of 550,000 or more according to the United States decennial census of 1970 or any future such census, the county governing authority shall be empowered by ordinance or resolution to assess against any property the cost of reopening, repairing, or cleaning up from any public way, street, road, right of way, or highway any debris, dirt, sediment, soil, trash, building materials, and other physical materials originating on such property as a result of any private construction activity carried on by any developer, contractor, subcontractor, or owner of such property. Any assessment authorized under this paragraph, the interest thereon, and the expense of collection shall be a lien against the property so assessed coequal with the lien of other taxes and shall be enforced in the same manner as are state and county ad valorem property taxes by issuance of a fi. fa. and levy and sale as set forth in Title 48, known as the "Georgia Public Revenue Code"; and
  11. Municipalities whose incorporating Acts became of full force and effect on or after May 1, 2017, but prior to January 1, 2019, shall not establish or maintain restrictions on access by commercial motor vehicles as defined in paragraph (8.1) of Code Section 40-1-1 to portions of the road system providing access to commercial driveways as defined in Code Section 32-6-130, except as to the applicable road system, exceeding any county restrictions in effect on such portions on the date of incorporation unless such county by ordinance or resolution concurs on such restriction.

(Code 1933, § 95A-402, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 13; Ga. L. 1981, p. 3259, §§ 1, 2; Ga. L. 1982, p. 2107, § 28; Ga. L. 1983, p. 3, § 23; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, p. 94, § 32; Ga. L. 2000, p. 498, § 8; Ga. L. 2002, p. 1126, § 2; Ga. L. 2018, p. 372, § 4/SB 445.)

The 2018 amendment, effective July 1, 2018, deleted "and" at the end of paragraph (10); substituted "Code'; and" for "Code."' at the end of paragraph (11); and added paragraph (12).

Cross references.

- Authority of counties to erect bridges across navigable streams, T. 36, C. 14.

Use of parking meter receipts to pay principal, interest, and other expenses of revenue bonds issued to finance public parking areas or public parking buildings, § 36-82-62.

Promulgation of rules and regulations governing hiring out of inmates to Department of Transportation, municipalities, counties, and others, § 42-5-60.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1982, "coequal" was substituted for "co-equal" in the last sentence of paragraph (11).

Pursuant to Code Section 28-9-5, in 2019, "paragraph (8.1)" was substituted for "paragraph (8.3)" near the middle of paragraph (12).

Law reviews.

- For annual survey article on real property law, see 52 Mercer L. Rev. 383 (2000). For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 602 and former Civil Code 1910, § 640, which were subsequently repealed but were succeeded by provisions in this Code section are included in the annotations for this Code section.

Utility right of way fee.

- County was not entitled to extract from power company a tax, franchise fee, rental fee, or other charge in return for permission to use county road rights of way outside of municipalities for erection, maintenance, and use of power transmission lines. DeKalb County v. Georgia Power Co., 249 Ga. 704, 292 S.E.2d 709 (1982).

County had authority to grant permits and establish reasonable regulations for the installation of pipes, conduits, cables, and wires on the county's public roads; thus, the county had the "necessarily implied authority" to charge companies, such as the telecommunication company, a permit fee for the company's application to use the county's public rights-of-way. Accordingly, the county had the authority to enforce the county's ordinance imposing that fee and furthermore the telecommunication company did not show that the ordinance was unconstitutional. BellSouth Telecomms., Inc. v. Cobb County, 277 Ga. 314, 588 S.E.2d 704 (2003).

Control over water mains.

- There was nothing in the 1979 Act creating the Coweta County Water and Sewer Authority that extended the county's control over water mains not belonging to the county authority. The county's authority to regulate the City of Newnan's Water, Sewerage and Light Commission's progress into the county was limited only by paragraph (6) of O.C.G.A. § 32-4-42. Coweta County v. City of Newnan, 253 Ga. 457, 320 S.E.2d 747 (1984).

When privately built bridge is county bridge.

- Bridge constructed by private citizens, part of the material being furnished by the citizens, in accordance with an agreement with county officials, is a county bridge. County of Tattnall v. Newton, 112 Ga. 779, 38 S.E. 47 (1901) (decided under former Civil Code 1895, § 602).

County right to acquire land for state.

- County authorities in charge of laying out and constructing public highways can accept lands dedicated by their owners for public roads, and can open and build new public roads therein in cooperation with the State Highway Department (now Department of Transportation) under contract with the federal government. Lee County v. Mayor of Smithville, 154 Ga. 550, 115 S.E. 107 (1922) (decided under former Civil Code 1910, § 640).

County liable to power company for movement of power lines from private property easement.

- Trial court properly found that a power company was entitled to compensation from a county for the taking of the company's private property easements, including the costs of relocating the electrical power and distribution poles, when the county widened a road because a 1929 franchise agreement did not apply to situations where the power company was forced by the county to relocate power transmission lines and poles that the company originally erected on private property easements. Clayton County v. Ga. Power Co., 340 Ga. App. 60, 796 S.E.2d 16 (2017).

Authorization to enter arbitration.

- O.C.G.A. § 32-4-42 is to be liberally construed to promulgate the efficient operation and development of the county road system; the county was authorized to consent to arbitration as a means of resolving road construction contract disputes. Bryan County v. Yates Paving & Grading Co., 251 Ga. App. 441, 554 S.E.2d 584 (2001).

Cited in Chatham County Comm'rs v. Seaboard Coast Line R.R., 169 Ga. App. 607, 314 S.E.2d 449 (1984); Georgia Power Co. v. Collum, 176 Ga. App. 61, 334 S.E.2d 922 (1985); Bibb County v. Georgia Power Co., 241 Ga. App. 131, 525 S.E.2d 136 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

Sheriff authorized to enforce traffic regulations.

- Counties have authority to regulate amount of weight which may be carried over specific county roads by ordinances which amount to establishment of truck routes. 1982 Op. Att'y Gen. No. 82-20.

Any city or county ordinances purporting to regulate vehicular weights must not exceed maximum weights permitted by O.C.G.A. § 32-6-26. 1982 Op. Att'y Gen. No. 82-20.

County sheriff's department may enforce ordinances prohibiting trucks over ten wheels from using residential roads within county except when making temporary deliveries. 1996 Op. Att'y Gen. No. U96-17.

RESEARCH REFERENCES

ALR.

- Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

PART 2 E XERCISE BY COUNTIES OF POWER TO CONTRACT GENERALLY

RESEARCH REFERENCES

ALR.

- Construction and effect of "changed conditions" clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

32-4-60. "Contract" defined.

As used in this part, the term "contract" means a contract or subcontract entered into by a county with any person, with the state or federal government or an agency of either, with another county or counties, with a municipality or municipalities, or with any combination of the foregoing entities for the construction, reconstruction, or maintenance of all or part of a public road, including but not limited to a contract for the purchase of materials, for the hiring of labor, for professional services, or for other things or services incident to such work.

(Code 1933, § 95A-816, enacted by Ga. L. 1973, p. 947, § 1.)

Law reviews.

- For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003).

32-4-61. Authority of county to contract; form of contracts; approval of contracts by resolution.

A county shall have the authority to contract as set forth in this part and in paragraph (1) of Code Section 32-4-42. Any contract for work on all or part of the county road system shall be in writing and shall be approved by resolution which shall be entered on the minutes of such county.

(Code 1933, § 95A-817, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1937, p. 912, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

When petition for relief sufficient.

- Petition alleging that county commissioners had entered into contracts with one of the commissioner's members for the construction of roads in the county without contracts being in writing and entered on the minutes of the board, and in violation of the contracts between the State Highway Department (now Department of Transportation) and the county was sufficient as against a general demurrer (now motion to dismiss) to show that the plaintiffs were entitled to some of the substantial relief prayed for. Ferguson v. Randolph County, 211 Ga. 103, 84 S.E.2d 70 (1954) (decided under former Ga. L. 1937, p. 912).

Cited in Faulk v. Twiggs County, 269 Ga. 809, 504 S.E.2d 668 (1998).

32-4-62. Contracts with state, state agencies, adjoining counties, and incorporated municipalities of county.

  1. Subject to the limitations of this Code section, in addition to the authority to contract with a private contractor, a county may enter into a contract with the state, a state agency, another county or municipality, or with any combination or number of the foregoing entities for work on any public road system of Georgia.
  2. Such a contract with a state agency is subject to the limitations of Code Section 32-2-61, including the cost of the negotiated contract, and the right of the department to supervise performance of the contract.
  3. A county shall have authority to enter into a contract with adjoining counties for the joint work on a road constituting a part of the county road system of those counties which are parties to such contract.
  4. A county shall have the authority provided in subsection (b) of Code Section 32-4-112 to contract with a municipality and expend funds for work on public roads within a municipality in the county.

(Code 1933, § 95A-818, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Provision that county treasurer or other county official shall not receive commission on funds received or disbursed in connection with county contracts with Department of Transportation for construction or repair of roads, § 36-6-13.

OPINIONS OF THE ATTORNEY GENERAL

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

32-4-63. Limitations on power to contract; at least two estimates required for certain expenditures.

  1. A county is prohibited from negotiating a contract except a contract:
    1. Involving the expenditure of less than $200,000.00;
    2. With a state agency or county or municipality with which a county is authorized to contract in accordance with the provisions of Code Sections 32-4-61 and 32-4-62;
    3. For the purchase of those materials, supplies, and equipment necessary for the county's construction and maintenance of its public roads and for the support and maintenance of the county's forces used in such work, as authorized by Chapter 91 of Title 36;
    4. Subject to Article 6 of Chapter 6 of this title, with a railroad or railway company or a publicly or privately owned utility concerning relocation of its line, tracks, or facilities where the same are not then located in a public road and such relocation or grade-crossing elimination is necessary as an incident to the construction of a new public road or to the reconstruction or maintenance of an existing public road. Nothing contained in this paragraph shall be construed as requiring a county to furnish a site or right of way for railroad or railway lines or tracks of public utility facilities required to be removed from a public road;
    5. For engineering or other kinds of professional or specialized services;
    6. For emergency maintenance requiring immediate repairs to a public road, including but not limited to bridge repairs, snow and ice removal, and repairs due to flood conditions; or
    7. Otherwise expressly authorized by law.
  2. No contract involving an expenditure of more than $20,000.00 but less than $200,000.00 shall be awarded under this Code section without the submission of at least two estimates.

(Code 1933, § 95A-819, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1989, p. 356, § 2; Ga. L. 2000, p. 498, § 9; Ga. L. 2014, p. 851, § 3/HB 774.)

Law reviews.

- For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

JUDICIAL DECISIONS

Specialized services.

- Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted in the county's action to recover money had and received by the contractor, since the contractor asserted that the contract, which was for road striping and which was not opened for public bidding, was for a specialized service under O.C.G.A. § 32-4-63(5), an exception to the public bidding requirements under O.C.G.A. § 32-4-64; however, O.C.G.A. § 32-1-3(6) expressly defined road striping as a form of road construction and not as a special service. Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003).

No power to enter contract.

- County was properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 in the county's action to recover money received by the contractor for applying stripes to the county's roads, where the county commissioner awarded the contract without public bidding, the contract was oral, and the contract was for over $190,000; a belated objection under O.C.G.A. § 36-10-1 did not prevent the county from recovering the funds because the contract was beyond the county's authority to enter as O.C.G.A. § 32-4-63(1) barred counties from negotiating contracts in excess of $20,000, and the contract was not exempt from competitive bidding under § 32-4-63(5). Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003).

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

32-4-64. Required letting of contracts by public bid.

Except as authorized by Code Section 32-4-63, all contracts shall be let by public bid.

(Code 1933, § 95A-820, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1937, p. 912, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Public bidding was required.

- Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted in the county's action to recover money had and received by the contractor, after the contractor asserted that the contract, which was for road striping and which was not opened for public bidding, was for a specialized service under O.C.G.A. § 32-4-63(5), an exception to the public bidding requirements under O.C.G.A. § 32-4-64; however, O.C.G.A. § 32-1-3(6) expressly defined road striping as a form of road construction and not as a special service. Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003).

Petition sufficient against motion to dismiss.

- Petition alleging that the county commissioners had entered into contracts with one of the commissioner's members for the construction of roads in the county without the contracts being in writing and entered on the minutes of the board, and in violation of the contracts between the State Highway Department (now Department of Transportation) and the county, was sufficient as against a general demurrer (now motion to dismiss) to show that the plaintiffs were entitled to some of the substantial relief prayed for. Ferguson v. Randolph County, 211 Ga. 103, 84 S.E.2d 70 (1954) (decided under former Ga. L. 1937, p. 912).

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

32-4-65. Advertising for bids.

  1. Notwithstanding any provision of Chapter 91 of Title 36 and of any other provision of law to the contrary, on all contracts to be let by public bid a county shall advertise for competitive sealed bids for at least two weeks. The public advertisement shall be inserted once a week for two weeks in such newspaper wherein the county sheriff's sales are advertised or in such other newspapers or publications, or both, as will ensure adequate publicity, the first insertion to be two weeks prior to the opening of the sealed bids, the second to follow one week after the publication of the first insertion.
  2. Such advertisement shall include but not be limited to the following:
    1. A description sufficient to enable the public to know the approximate extent and character of the work to be done;
    2. The time allowed for performance;
    3. The terms and time of payment;
    4. Where and under what conditions and costs the detailed plans and specifications and proposal forms may be obtained;
    5. The amount of the proposal guaranty, if one is required;
    6. The time and place for submission and opening of bids;
    7. The right of the county to reject any one or all bids; and
    8. Such further notice as the county may deem advisable as in the public interest.

(Code 1933, § 95A-821, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 10.)

JUDICIAL DECISIONS

Cited in Faulk v. Twiggs County, 269 Ga. 809, 504 S.E.2d 668 (1998).

RESEARCH REFERENCES

ALR.

- Right of public authorities to reject all bids for public work or contract, 52 A.L.R.4th 186.

32-4-66. Payment by bidder to cover costs.

A county may require each bidder to pay a reasonable sum sufficient to cover the cost to the county, where applicable, of the bid proposal form, the contract, and its specifications.

(Code 1933, § 95A-822, enacted by Ga. L. 1973, p. 947, § 1.)

32-4-67. Proposal guaranty by bidder.

  1. No bid, other than a bid solely for engineering or other kinds of professional services, will be considered by a county unless it is accompanied by a proposal guaranty in the form of a certified check or other acceptable security payable to the county for an amount deemed by the county in the public interest necessary to ensure that the successful bidder will execute the contract on which he bid.
  2. A proposal guaranty will be returned to a bidder upon receipt by the county of the bidder's written withdrawal of his bid if such receipt is before the time scheduled for the opening of bids. Upon the determination by a county of the lowest reliable bidder, the county will return the proposal guaranties to all bidders except that of the lowest reliable bidder. If no contract award is made within 30 days after the date set for the opening of bids, all bids shall be rejected and all proposal guaranties shall be returned unless the county and the successful bidder agree in writing to a longer period of time.

(Code 1933, § 95A-823, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2007, p. 167, § 3/HB 192.)

32-4-68. Award of contract to lowest reliable bidder; procedure upon rejection of bids.

Where a contract has been let for bid, the county, by resolution entered in its minutes, shall award the contract to the lowest reliable bidder, provided that the county shall have the right to reject any and all such bids whether such right is reserved in the public notice or not and, in such case, may readvertise, perform the work itself, or abandon the project.

(Ga. L. 1922, p. 37, § 1c; Code 1933, § 95-1105; Code 1933, § 95A-824, enacted by Ga. L. 1973, p. 947, § 1.)

JUDICIAL DECISIONS

Cited in Faulk v. Twiggs County, 269 Ga. 809, 504 S.E.2d 668 (1998).

RESEARCH REFERENCES

ALR.

- Right of public authorities to reject all bids for public work or contract, 52 A.L.R.4th 186.

Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

32-4-69. Bonds of successful bidder generally.

Notwithstanding any provision of Chapter 91 of Title 36 to the contrary, when the price of a contract let to bid, other than a contract solely for engineering or other kinds of professional services, is $5,000.00 or more, no contract of a county shall be valid unless the contractor first gives:

  1. A performance bond that meets the requirements established in Parts 1 and 3 of Article 3 of Chapter 91 of Title 36 in the amount of the bid, with one good and solvent surety, for the faithful performance of the contract and to indemnify the county for any damages occasioned by a failure to perform the same within the prescribed time;
  2. A payment bond that meets the requirements established in Parts 1 and 4 of Article 3 of Chapter 91 of Title 36; and
  3. Such other bonds required by the county in its advertisement for bids, including but not limited to public liability and property damage insurance bonds.

(Ga. L. 1922, p. 37, § 1b; Code 1933, § 95-1104; Code 1933, § 95A-825, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 11; Ga. L. 2001, p. 820, § 4; Ga. L. 2007, p. 167, § 4/HB 192.)

OPINIONS OF THE ATTORNEY GENERAL

Contract amount.

- Performance bonds are required on all county contracts in the amount of $5,000.00 or more for the construction, reconstruction, or maintenance of public roads. Payment bonds are required on these type of contracts if the contract amount is in excess of $20,000.00. 1988 Op. Att'y Gen. No. U88-32.

32-4-70. Bridge repair bonds.

  1. As used in this Code section, the term "bridge" shall include the approaches to such bridge within 50 feet of either end except when the bridge itself measures 100 feet or more, in which case the term "bridge" shall include the approaches within 100 feet of either end of the bridge.
  2. Where the contract relates to the construction or reconstruction of all or a part of a bridge, the county or counties affected may require the successful contractor to add to the conditions of the performance bond required under paragraph (1) of Code Section 32-4-69 the following condition: to keep the bridge in good condition for a period of not less than seven years.

(Laws 1888, Cobb's 1851 Digest, p. 39; Code 1863, § 649; Code 1868, § 711; Code 1873, § 671; Code 1882, § 671; Civil Code 1895, § 603; Civil Code 1910, § 748; Code 1933, § 95-1001; Code 1933, § 95A-826, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Authority of counties to erect bridges across navigable streams, T. 36, C. 14.

JUDICIAL DECISIONS

Bridge includes fill or embankment in road of approach.

- Fill or an embankment in a road which constitutes the approach to a bridge and which is necessary to make access to the bridge is a part of the bridge. Havird v. Richmond County, 47 Ga. App. 580, 171 S.E. 220 (1933).

Cited in Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 102-103, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Bridges assumed to be part of connected roads, streets, and highways.

- Bridges may be a part of city streets, county roads, or the state-aid highway system; in each case, the street or road is defined as including bridges, unless a different meaning is apparent from the context. 1972 Op. Att'y Gen. No. 72-64 (decided under former Code 1933, § 102-103).

32-4-71. Failure to take bonds; liability of county.

  1. If the payment bond required by paragraph (2) of Code Section 32-4-69 is not taken, the county shall be liable to subcontractors, laborers, materialmen, and other persons, as provided in Part 4 of Article 3 of Chapter 91 of Title 36, for losses to them resulting from failure to take such bond.
  2. If the condition of bridge repair authorized by Code Section 32-4-70 to be added to the performance bond is not taken, the contracting county or counties shall be primarily liable for all injuries caused by reason of any defective bridge for damages occurring within seven years of the contractor's work on the bridge and its acceptance by the county or counties, provided that the county shall be discharged from all liability upon the inclusion in the performance bond of the aforesaid bridge repair condition.
  3. Nothing in this Code section shall be construed so as to impose personal liability on the county governing authority.

(Laws 1888, Cobb's 1851 Digest, p. 39; Code 1863, § 669; Code 1868, § 731; Code 1873, § 691; Code 1882, § 691; Civil Code 1895, § 603; Civil Code 1910, § 748; Code 1933, § 95-1001; Code 1933, § 95A-827, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 12; Ga. L. 2001, p. 820, § 5.)

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, §§ 623, 748; former Civil Code 1910, §§ 757, 768; and former Code 1933, §§ 23-1901 through 23-1905, 95-1001, 95-1210, which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Cited in Sikes v. Candler County, 247 Ga. 115, 274 S.E.2d 464 (1981).

Bridges

Definition of bridge.

- Word "bridge" in this section, which gives a right of action against a county for defective construction, means a bridge used as an instrumentality for travel along a highway and for crossing streams or ravines. Hubbard v. Fulton County, 144 Ga. 363, 87 S.E. 281 (1915); Ellis v. Floyd County, 24 Ga. App. 717, 102 S.E. 181 (1920); Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946).

Bridge includes necessary approaches.

- Term "bridge" includes all the appurtenances necessary to the bridge's proper use, and embraces the bridge's abutments and approaches; that which is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself. Howington v. Madison County, 126 Ga. 699, 55 S.E. 941 (1906); Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946).

Fill or embankment in road of approach to a bridge and which is necessary to make access to the bridge is a part of the bridge. Havird v. Richmond County, 47 Ga. App. 580, 171 S.E. 220 (1933).

Contiguous embankments necessary for access, which county must repair.

- Contiguous embankment necessary to make access to a bridge, so as to pass teams and wagons over the bridge, is a part of the bridge, and title to the bridge covers such an embankment; but if the embankment is not a necessary part of the bridge, but a part of the streets of the municipality, the town, and not the county, would be bound to keep the bridge in repair. Havird v. Richmond County, 176 Ga. 722, 168 S.E. 897, answer conformed to, 47 Ga. App. 580, 171 S.E. 220 (1933).

Road leading to bridge.

- While the word "bridge" does not include the public road leading thereto, or a drain or opening thereunder, it does include all the appurtenances necessary to the bridge's proper use, and embraces the bridge's abutments and approaches and that which is necessary as an approach to connect the bridge with the highway is an essential part of the bridge itself. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934).

Culverts.

- Culvert and a bridge are not the same, even though the culvert and bridge may serve the same purpose. Hubbard v. Fulton County, 144 Ga. 363, 87 S.E. 281 (1915); Ellis v. Floyd County, 24 Ga. App. 717, 102 S.E. 181 (1920); Floyd County v. Stewart, 97 Ga. App. 67, 101 S.E.2d 879 (1958).

Piping and water boxes.

- Piping and water boxes for drainage purposes across the public roads are not "bridges" within the meaning of the law. Montgomery County v. Seaboard Air Line Ry., 41 Ga. App. 130, 152 S.E. 261 (1930).

Defects

Definition of defects in bridge.

- Defect in a bridge, which serves as the basis for liability by a county for injuries received by reason thereof, includes any condition of the bridge which renders the bridge unsafe for travelers passing over the bridge. Havird v. Richmond County, 47 Ga. App. 580, 171 S.E. 220 (1933).

Includes approaches left during repairs.

- When in action against a county for damages from the falling of a truck through an opening where a public bridge had been, into a ravine below, the petition was not demurrable (now motion to dismiss), and the verdict for the plaintiff was not contrary to law or without evidence to support the verdict since the petition and the evidence showed that at the time of the injury at least a part of the bridge, i.e., the sills constituting a portion of its "approaches," still remained, and the rest of the bridge was being repaired. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934).

Road machinery left on approaches.

- When the county, or State Highway Department (now Department of Transportation) negligently leaves road machinery on the abutment or approach to a bridge which causes injuries to a person undertaking to cross the bridge in an automobile, such dangerous condition in the bridge is a defect in the bridge, which makes a county liable for injuries caused by a defective bridge. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946).

Liability

County liability.

- County is primarily liable for injuries caused by defective bridges, whether erected by contractors or county authorities. Berrien County v. Vickers, 73 Ga. App. 863, 38 S.E.2d 619 (1946).

County authorities are bound to exercise ordinary care; county authorities are not insurers of the safety of county bridges. Warren County v. Evans, 118 Ga. 200, 44 S.E. 986 (1903) (decided under former Civil Code 1895, § 623).

County liability for failure to take contractor's bond.

- For a county to be liable for injuries resulting from defective bridge repairs there must have been a failure to take a bond from a contractor when such a bond was required, and the injury complained of must have occurred within the time which would have been covered by the contractor's bond, if such a bond had been given. Wolf v. Upson County, 44 F.2d 925 (5th Cir. 1930) (decided under former Civil Code 1910, §§ 757, 768).

Bridges adjoining county lines.

- Since a public bridge was constructed under contract with the authorities of one county across a stream dividing that county from another (the authorities of the latter refusing to participate therein), it was the duty of the county authorities causing the construction of such bridge to take bond in accordance with this section. Cook v. County of DeKalb, 95 Ga. 218, 22 S.E. 151 (1894). See also Laurens County v. McLendon, 19 Ga. App. 246, 91 S.E. 283 (1917); Wells v. Jefferson County, 19 Ga. App. 455, 91 S.E. 943 (1917) (decided under former Code 1882, § 691 and former Civil Code 1910, § 768.

Either county or contractor may be sued.

- Action may be brought either against the contractor or against the county; it is not necessary that the plaintiff should sue the contractor to insolvency before suing the county. Arnold, Estes & Co. v. Henry County, 81 Ga. 730, 8 S.E. 606 (1889) (decided under former Code 1882, § 691).

County not liable after seven years.

- Liability of the contractor is to keep the bridge in good repair for seven years, whether a bond is given for that purpose or not and the liability of the county does not extend beyond that. Monroe County v. Flint, 80 Ga. 489, 6 S.E. 173 (1888).

Built without bond.

- After a county let out the contract for building a bridge to the lowest bidder, but took no bond from the contractor, and the injury complained of occurred ten years after the time of building the bridge, there was no legal liability on the part of the county because of such injury. Monroe County v. Flint, 80 Ga. 489, 6 S.E. 173 (1888).

Bond limited to three years.

- When the bond and security required and taken limited the period to three years, this may be treated as a "sufficient guarantee" so as to exempt the county from liability for damages sustained within such period of three years. Mappin v. County of Washington, 92 Ga. 130, 17 S.E. 1009 (1893).

No county liability when bridge rebuilt without contract.

- Liability for defects in a county-line bridge attaches only for failure of the county to take a sufficient bond from the contractor. Thus, since the petition showed that such a bridge was rebuilt by the county without a contract, and without taking a bond, no liability for injuries caused by defects in such a bridge attached against the county. Jones v. Appling County, 90 Ga. App. 386, 83 S.E.2d 53 (1954) (decided under former Code 1933, §§ 23-1901 through 23-1905, 95-1001, 95-1210).

When county itself undertakes bridge work, O.C.G.A. § 32-4-71 is inapplicable and provides for no county liability for defective bridges. Kordares v. Gwinnett County, 220 Ga. App. 848, 470 S.E.2d 479 (1996).

RESEARCH REFERENCES

ALR.

- Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.

32-4-72. Failure of successful bidder to sign contract or furnish bonds.

If the successful bidder fails to sign the contract or furnish the bonds required under authority of Code Section 32-4-71, his proposal guaranty, if one had been required by the county, will become the property of the county as liquidated damages. The contract then may be readvertised, performed with county forces, or the project abandoned.

(Code 1933, § 95A-828, enacted by Ga. L. 1973, p. 947, § 1.)

32-4-73. Oath by successful bidder.

A successful bidder, before commencing the work, shall execute a written oath, as required by subsection (e) of Code Section 36-91-21, stating that he or she has not violated such Code section, which makes it unlawful to restrict competitive bidding.

(Code 1933, § 95A-829, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 13; Ga. L. 2001, p. 820, § 6.)

32-4-74. Applicability of other laws to this part.

Except as indicated to the contrary in this part, Chapter 91 of Title 36 shall not apply to this part.

(Code 1933, § 95A-830, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 14; Ga. L. 2001, p. 4, § 32; Ga. L. 2001, p. 820, § 7.)

Code Commission notes.

- The amendment of this Code section by Ga. L. 2001, p. 4, § 32, irreconcilably conflicted with and was treated as superseded by Ga. L. 2001, p. 820, § 7. See County of Butts v. Strahan, 151 Ga. 417 (1921).

ARTICLE 4 MUNICIPAL STREET SYSTEMS

PART 1 G ENERAL POWERS AND DUTIES OF MUNICIPALITY

Law reviews.

- For article, "Revisionist Municipal Liability," see 52 Ga. L. Rev. 375 (2018).

32-4-90. Acquisition of rights of way.

Acquisition of rights of way for public roads on the state highway system located within the corporate limits of a municipality shall be made in compliance with subsection (e) of Code Section 32-3-3 and Code Section 32-5-25.

(Code 1933, § 95A-501, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Constitutionality of statutory provisions as to political corporations or divisions which shall bear cost of establishing or maintaining highways, 2 A.L.R. 746; 123 A.L.R. 1462.

32-4-91. Construction and maintenance of systems; acquisition of labor; maximum bridge weight; notification of department about new streets and abandoned streets.

  1. A municipality shall plan, designate, improve, manage, control, construct, and maintain an adequate municipal street system and shall have control of and responsibility for all construction, maintenance, or other work related to the municipal street system. Such work may be accomplished through the use of municipal forces, including inmate labor, by contract as authorized in paragraph (1) of subsection (a) of Code Section 32-4-92, or otherwise as permitted by law.
  2. A municipality shall notify the department within three months after a municipal street is added to the municipal street system and shall further notify the department within three months after a municipal street is abandoned. This notification shall be accompanied by an appropriate digital file, map, or plat depicting the location of the new or abandoned street.

(a.1)A municipality shall post on each bridge on the municipal street system and on each approach thereto on the municipal street a sign containing a legible notice showing the maximum safe weight limit for such bridge, each such sign to conform to the department regulations promulgated under authority of Code Section 32-6-50.

(Code 1933, § 95A-502, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1981, p. 953, § 2; Ga. L. 1996, p. 6, § 32; Ga. L. 1998, p. 1206, § 2; Ga. L. 2011, p. 583, § 7/HB 137.)

Cross references.

- Weight of vehicle and load, § 32-6-26.

Promulgation of rules and regulations governing hiring out of inmates, § 42-5-60.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 95-15; and former Ga. L. 1953, Nov.-Dec. Sess., p. 556 (see now O.C.G.A. § 40-6-20), which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section.

Municipal regulation and control of state highway use.

- This section does not give municipalities power to regulate and control use of state highways. Mayor of Woodbury v. State Hwy. Dep't, 225 Ga. 723, 171 S.E.2d 272 (1969) (decided under former Ga. L. 1953, Nov.-Dec. Sess., p. 556).

Construction of state highway through municipality.

- State Highway Department (now Department of Transportation) may construct public highway through municipality without the municipality's consent. City of Carrollton v. Walker, 215 Ga. 505, 111 S.E.2d 79 (1959) (decided under former Code 1933, Ch. 95-15).

State Highway Department's control of traffic signals on state highways.

- State Highway Department (now Department of Transportation), instead of the municipalities of the state, has the power to place and operate traffic control devices on state highways within the limits of the municipalities. Mayor of Woodbury v. State Hwy. Dep't, 225 Ga. 723, 171 S.E.2d 272 (1969) (decided under former Ga. L. 1953, Nov.-Dec. Sess., p. 556).

State DOT not liable for failing to erect road closure signs on county road.

- Because an accident occurred on a county-owned road and did not occur on a part of the state highway system upon which the DOT owed a duty to motorists, and the couple's expert's affidavit could not establish a legal duty to erect signs or to take other steps to inform drivers of the closure of the county-owned road, summary judgment for the DOT was proper. Diamond v. DOT, 326 Ga. App. 189, 756 S.E.2d 277 (2014).

Photographs of roadway taken after accident insufficient to show city's notice of defect.

- In a driver's action against a city under O.C.G.A. § 32-4-91, alleging that an accident occurred because an area of broken pavement around a manhole caused the driver's vehicle to veer into oncoming traffic, photographs of the area taken two weeks after the accident did not constitute evidence of the city's notice of the defect under O.C.G.A. § 32-4-93(a). City of Macon v. Brown, 343 Ga. App. 262, 807 S.E.2d 34 (2017).

OPINIONS OF THE ATTORNEY GENERAL

County must maintain roads in county road system.

- Because the county must maintain roads on the county road system and because public roads are not removed from the system by mere annexation into a municipality where the road lies, the county must continue to maintain roads on the county road system which are in areas annexed into a municipality until the governing authority of the county removes the roads from the county road system. 1976 Op. Att'y Gen. No. U76-21.

Truck routes.

- By establishing truck routes, a city may effectively regulate the amount of weight which may be carried on designated streets on a municipal street system. 1982 Op. Att'y Gen. No. 82-20.

Any city or county ordinances purporting to regulate vehicular weights must not exceed maximum weights permitted by O.C.G.A. § 32-6-26. 1982 Op. Att'y Gen. No. 82-20.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 86.

ALR.

- Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.

Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.

Relative rights and liabilities of abutting owners and public authorities in parkways in center of street, 81 A.L.R.2d 1436.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

32-4-92. Powers.

  1. The powers of a municipality with respect to its municipal street system, unless otherwise expressly limited by law, shall include but not be limited to the following:
    1. Subject to the limitations of subparagraph (d)(1)(A) of Code Section 32-2-61, a municipality has the authority to contract with any person, the federal government or its agencies, the state or its agencies, other municipalities, a county in which the municipality lies, or any combination of the foregoing entities for the construction, reconstruction, or maintenance of any public road located within the municipality;
    2. A municipality may accept and use federal and state funds for municipal street purposes and do all things necessary, proper, or expedient to achieve compliance with the provisions and requirements of all applicable federal-aid acts and programs. Nothing in this title is intended to conflict with any such federal-aid law and, in case of such conflict, such portion as may be in conflict with such federal law is declared of no effect to the extent of the conflict;
    3. A municipality may acquire, manage, and dispose of real property or any interests therein for public roads on its municipal street system under the procedures provided in Article 1 of Chapter 3 of this title and in Chapter 7 of this title. In acquiring property for rights of way for federal-aid highway projects on its system, the municipality shall comply with the requirements of the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policy Act of 1970, as amended by the Uniform Relocation Act Amendments of 1987, Title IV of Public Law 100-17, and in general be guided by the policies applicable to the department as set forth in Code Section 32-8-1. For good cause shown, a municipality, at any time after commencement of condemnation proceedings and prior to final judgment therein, may dismiss its condemnation action, provided that (A) the condemnation proceedings have not been instituted under Article 1 of Chapter 3 of this title and (B) the condemnor has first paid to the condemnee all expenses and damages accrued to the condemnee up to the date of the filing of the motion for dismissal of the condemnation action;
    4. Subject to the requirements of Part 2 of this article, a municipality may purchase, borrow, rent, lease, control, manage, receive, and make payment for all personal property such as equipment, machinery, vehicles, supplies, material, and furniture which may be needed in the operation of the municipal street system and may sell or otherwise dispose of all personal property owned by the municipality and used in the operation of said municipal street system which is no longer necessary or useful in connection with the operation of said system; and it may execute such instruments as may be necessary in connection with the exercise of the foregoing powers in this paragraph;
    5. A municipality and its authorized agents and employees shall have the authority to enter upon any lands in the municipality for the purpose of making such surveys, soundings, drillings, and examinations as the municipality may deem necessary or desirable to accomplish the purposes of this title; and such entry shall not be deemed a trespass, nor shall it be deemed an entry which would constitute a taking in a condemnation proceeding. However, reasonable notice shall be given the owner or occupant of the property to be entered; such entry shall be done in a reasonable manner with as little inconvenience as possible to the owner or occupant of the property; and the municipality shall make reimbursement for any actual damages resulting from such entry;
    6. A municipality may employ, discharge, promote, set and pay the salaries and compensation of its personnel, and determine the duties, qualifications, and working conditions for all persons whose services are needed in the construction, maintenance, administration, operation, and development of its municipal street system; and may employ or contract as independent contractors with such engineers, surveyors, attorneys, consultants, and all other employees whose services may be required, subject to the limitations of existing law;
    7. Except as otherwise provided by Code Section 12-6-24, a municipality may regulate and control the use of the public roads on its municipal street system and on portions of the county road systems extending within the corporate limits of the municipality. Any municipality may regulate the parking of vehicles on any such roads in order to facilitate the flow of traffic and to this end may require and place parking meters on or immediately adjacent to any or all of such roads for the purpose of authorizing timed parking in designated spaces upon the payment of a charge for such privilege. A municipality also may place such parking meters on or adjacent to any public road on the state highway system located within the corporate limits of the municipality when authorized by the department pursuant to Code Section 32-6-2;
    8. A municipality may purchase supplies for municipal street system purposes through the state, as authorized by Code Sections 50-5-100 through 50-5-102;
    9. A municipality may provide lighting and maintenance thereof on any public road located within its limits;
    10. A municipality may grant permits and establish reasonable regulations for the installation, construction, maintenance, renewal, removal, and relocation of pipes, mains, conduits, cables, wires, poles, towers, traffic and other signals, and other equipment, facilities, or appliances of any utility in, on, along, over, or under any part of its municipal street system and of a county road system lying within its municipal limits. However, such regulations shall not be more restrictive with respect to utilities affected thereby than are equivalent regulations promulgated by the department with respect to utilities on the state highway system under authority of Code Section 32-6-174. As a condition precedent to the granting of such permits, the municipality may require application in writing specifically describing the nature, extent, and location of the portion of the utility affected. The municipality may also require the applicant to furnish an indemnity bond or other acceptable security conditioned to pay for any damage to any part of a public road or to any member of the public caused by the work of the utility performed under authority of such permit. However, it shall be the duty of the municipality to ensure that the normal operation of the utility does not interfere with the use of any portion of the municipal street system or of a municipal extension of a county public road. The municipality may also order the removal and relocation of the utility, equipment, facilities, or appliances where such removal and relocation is made necessary by the construction and maintenance of any part of the municipal street system or municipal extension of a county public road. In so ordering the removal and relocation of a utility or in performing such work itself, the municipality shall conform to the procedure set forth for the department in Code Sections 32-6-171 and 32-6-173, except that when the removal and relocation have been performed by the municipality, it shall certify the expenses thereof for collection to its city attorney; and
    11. A municipality may provide for surveys, maps, specifications, and other things necessary in supervising, locating, abandoning, relocating, improving, constructing, or maintaining the municipal street system, or any part thereof, or any activities incident thereto or necessary in doing such other work on public roads as the municipality may be given responsibility for or control of by law.
  2. In addition to the powers specifically delegated to it in this title, a municipality shall have the authority to perform all acts which are necessary, proper, or incidental to the efficient operation and development of the municipal street system; and this title shall be liberally construed to that end. Any such power vested by law in a municipality, but not implemented by specific provisions for the exercise thereof, may be executed and carried out by a municipality in a reasonable manner pursuant to such rules, regulations, and procedures as a municipality may adopt and subject to such limitations as may be provided by law.

(Code 1933, §§ 95A-503, 95A-504, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1980, p. 775, § 6; Ga. L. 1988, p. 1737, § 2; Ga. L. 2002, p. 1126, § 3.)

Cross references.

- Assessments by municipalities for street improvements, T. 36, C. 39.

Use of parking meter receipts to pay principal, interest, and other expenses of revenue bonds issued to finance public parking areas or public parking buildings, § 36-82-62.

U.S. Code.

- The Uniform Relocation System and Real Property Acquisition Policy Act of 1970, referred to in this Code section, is codified as 42 U.S.C. Ch. 61.

Law reviews.

- For annual survey of administrative law, see 56 Mercer L. Rev. 31 (2004). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS

Police power of municipalities.

- State law has not preempted police power authority of municipalities to regulate location and maintenance of outdoor advertising signs within their territorial jurisdictions. City of Doraville v. Turner Communications Corp., 236 Ga. 385, 223 S.E.2d 798 (1976).

City's ordinances prohibiting the use of amphibious vehicles as tour vehicles in parts of the city were not preempted by the state law giving the Public Service Commission the authority to issue certificates of public convenience and necessity; the ordinances fall within the constitutional exception to the doctrine of preemption since the General Assembly enacted general laws authorizing the local government to exercise its police powers and enact the local laws at issue. Old South Duck Tours, Inc. v. Mayor & Aldermen of Savannah, 272 Ga. 869, 535 S.E.2d 751 (2000).

No municipal liability for lighting.

- City's failure to add supplemental lighting to crossing was not actionable for negligence as O.C.G.A. § 32-4-92 provides that a municipality "may" provide lighting on any public road located within the municipality's limits, but is under no duty to provide lighting if the municipality does not choose to do so. Biggers ex rel. Key v. Southern Ry., 820 F. Supp. 1409 (N.D. Ga. 1993). but see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998), aff'd, 182 F.3d 788 (11th Cir. 1999).

Court's authority to review.

- Federal appellate court determined that whether an amendment to Macon, Ga., Code of Ordinances art. VII, § 18-153 that increased the annual permit fee that the City of Macon charged a telecommunications company for placement of the company's fiber optic cable on utility poles from $2.00 to $4.50 per linear foot was preempted by O.C.G.A. § 32-4-92(a)(10), or otherwise invalid because it exceeded the fees charged by the Georgia Department of Transportation for its rights of way, was an issue appropriate for resolution by the Supreme Court of Georgia through a certified question. Alltel Communs., Inc. v. City of Macon, 345 F.3d 1219 (11th Cir. 2003).

Cited in Department of Transp. v. Doss, 238 Ga. 480, 233 S.E.2d 144 (1977); Georgia Power Co. v. Collum, 176 Ga. App. 61, 334 S.E.2d 922 (1985); Murray v. Ga. DOT, 284 Ga. App. 263, 644 S.E.2d 290 (2007).

OPINIONS OF THE ATTORNEY GENERAL

Scope of municipal regulation of state highway system.

- Municipality may not, by ordinance, seek to regulate streets which are a part of the state highway system, except when the municipality is placing parking meters on or adjacent to a road which is a part of the system, and has been first authorized by the department to place such parking meters; or the municipality may also erect or maintain a traffic-control device on a road which is a part of the system, if written approval has first been obtained from the department. 1974 Op. Att'y Gen. No. U74-94.

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

Truck routes.

- By establishing truck routes, a city may effectively regulate the amount of weight which may be carried on designated streets on the municipal street system. 1982 Op. Att'y Gen. No. 82-20.

Any city or county ordinances purporting to regulate vehicular weights must not exceed maximum weights permitted by O.C.G.A. § 32-6-26. 1982 Op. Att'y Gen. No. 82-20.

Use of cameras to enforce traffic laws.

- Municipalities are not prohibited by Georgia's Constitution or laws from enacting ordinances regarding enforcement of traffic control devices by the use of cameras. 2000 Op. Att'y Gen. No. U2000-7.

RESEARCH REFERENCES

C.J.S.

- 40 C.J.S., Highways, § 263 et seq.

ALR.

- Validity of restrictions as to points at which jitney bus passengers may be taken on and discharged, 6 A.L.R. 110.

Validity of statute or ordinance giving right of way in streets or highways to certain classes of vehicles, 38 A.L.R. 24.

Constitutionality of statute or ordinance denying right of property owners to defeat a proposed street improvement by protest, 52 A.L.R. 883.

Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.

Duty as regards barriers for protection of automobile travel, 86 A.L.R. 1389; 173 A.L.R. 626.

Personal liability of highway officers for damage to or trespass upon land in connection with construction or maintenance of highway, 90 A.L.R. 1481.

Validity, construction, and application of municipal ordinances relating to loading or unloading passengers by interurban busses on streets, 144 A.L.R. 1119.

Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.

Municipality's power to permit private owner to construct building or structure overhanging or crossing the air space above public street or sidewalk, 76 A.L.R.2d 896.

Liability of private landowner for vegetation obscuring view at highway or street intersection, 69 A.L.R.4th 1092.

32-4-93. Liability of municipalities for defects in public roads.

  1. A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.
  2. A municipality is relieved of any and all liability resulting from or occasioned by defective construction of those portions of the state highway system or county road system lying within its corporate limits or resulting from the failure of the department or the county to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road.

(Civil Code 1895, § 749; Civil Code 1910, § 898; Code 1933, § 69-303; Ga. L. 1961, p. 469, § 4; Code 1933, § 95A-505, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Liability of municipal corporations for acts or omissions of officers, T. 36, C. 33.

Law reviews.

- For article discussing necessity of liability insurance for Georgia counties and municipalities, and constitutional authority of the units to provide such insurance, see 25 Ga. B.J. 35 (1962). For article discussing Georgia's practice of exposing municipalities to tort liability through the use of nuisance law, see 12 Ga. St. B. J. 11 (1975). For article discussing origin and construction of Georgia statute concerning municipal liability for street defects, see 14 Ga. L. Rev. 239 (1980). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For annual survey article discussing local government law, see 51 Mercer L. Rev. 397 (1999). For survey article on local government law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 353 (2003). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For note discussing state liability for highway defects and waiver of sovereign immunity under U.S. Const., amend. 11, see 27 Emory L.J. 337 (1978).

JUDICIAL DECISIONS

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Ga. L. 1895, p. 306, which was subsequently repealed but was succeeded by provisions in this Code section, are included in the annotations for this Code section.

Recreational Property Act.

- Applying the Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., to a municipal sidewalk does not place the RPA in conflict with O.C.G.A. § 32-4-93, which sets forth circumstances in which a city may be liable for defects in its streets and sidewalks; simply stated, the RPA will control when the sidewalk is used for a "recreational purpose" and the other requirements of the RPA are satisfied, and § 32-4-93 will apply in other cases. City of Tybee Island v. Godinho, 270 Ga. 567, 511 S.E.2d 517 (1999).

Ordinance denying liability unconstitutional.

- Insofar as charter provisions relieve a city from liability for negligence in the maintenance of the city's streets, such provision is inconsistent with general law in this state, and the inhibition contained in Ga. Const. 1945, Art. I, Sec. IV, Para. I (see Ga. Const. 1983, Art. III, Sec. VI, Para. IV) against the passage of special laws conflicting with existing general law precluded raising such charter provisions as a defense to a personal injury action against the city. City of Macon v. Harrison, 98 Ga. App. 769, 106 S.E.2d 833 (1958).

When legal duty exists in favor of third persons, city may by ordinance regulate the matter of the duty's performance. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

O.C.G.A. § 32-4-93(a) applies to sidewalks and constructive notice of a defect may be imputed through the knowledge of the city's employees or agents, or may be shown by testimony as to how long the defect existed prior to the injury, objective evidence that the defect existed over time, or evidence that others were injured as a result of the same condition over a period of years. Clark v. City of Atlanta, 322 Ga. App. 151, 744 S.E.2d 122 (2013).

Duty to maintain streets and sidewalks.

- Municipal corporation has the duty to exercise ordinary care in keeping the municipality's streets and sidewalks in a reasonably safe condition so that a person can pass along the streets and sidewalks in the ordinary methods of travel with reasonable safety. City of East Point v. Christian, 40 Ga. App. 633, 151 S.E. 42 (1929); City of Silvertown v. Harcourt, 51 Ga. App. 160, 179 S.E. 772 (1935); City of Barnesville v. Sappington, 58 Ga. App. 27, 197 S.E. 342 (1938); Harris v. City of Rome, 59 Ga. App. 279, 200 S.E. 337 (1938).

Municipalities generally have a ministerial duty to keep their streets in repair, and municipalities are liable for injuries resulting from defects after actual notice, or after the defect has existed for a sufficient time to infer notice. Bush v. City of Gainesville, 105 Ga. App. 381, 124 S.E.2d 667 (1962).

Obligation of a city to maintain portions of the state highway system within the city's corporate limits if the city has "constructed or agreed to perform the necessary maintenance of such roads" applies to public sidewalks. Williams v. City of Social Circle, 225 Ga. App. 746, 484 S.E.2d 687 (1997).

Constructive notice of uneven sidewalk pavers.

- Trial court erred by granting a city summary judgment in a pedestrian's negligence suit seeking damages for a slip and fall on uneven sidewalk pavers because the evidence showed that the uneven and defective condition existed at least seven months prior to the fall; thus, a genuine issue of fact existed as to whether the city had constructive notice. Clark v. City of Atlanta, 322 Ga. App. 151, 744 S.E.2d 122 (2013).

City was liable for defect in sidewalk.

- Since a victim was injured on the city's sidewalk, the trial court erred in granting summary judgment to the city as the pleadings were sufficient to raise the inference that the city, having repaired the sidewalk, had implied knowledge of the defect therein. English v. City of Macon, 259 Ga. App. 766, 577 S.E.2d 837 (2003).

Tree limb crashing onto pedestrian.

- City was not entitled to summary judgment on the pedestrian's claims for injuries suffered when a tree limb crashed on the pedestrian as the pedestrian walked on a city street because maintenance of the streets was a ministerial duty, O.C.G.A. § 36-33-1(b), required by O.C.G.A. § 32-4-93(a), and there was evidence that the tree was visibly decayed or dying. City of Fitzgerald v. Caruthers, 332 Ga. App. 731, 774 S.E.2d 777 (2015).

City was not liable for injuries to plaintiff who stepped in a hole in a grassy area about nine feet from the edge of the paved street since the evidence showed that the hole was not located on a city street or sidewalk. City of Vidalia v. Brown, 237 Ga. App. 831, 516 S.E.2d 851 (1999).

City was relieved of liability for the injuries sustained by the injured parties when the parties were hit by a motor vehicle at an intersection that was dark due to a loose hinge on a streetlight, under O.C.G.A. § 32-4-93(a), as the city did not have actual notice of the problem, and the problem had not existed for any appreciable length of time so as to give the city constructive notice of the problem. Roquemore v. City of Forsyth, 274 Ga. App. 420, 617 S.E.2d 644 (2005).

In a case in which the plaintiff fell over an 18-foot retaining wall, which had no barrier on top, the trial court erred in denying the city's motion for directed verdict because there was no evidence showing the retaining wall was part of the physical road on which the general public traveled; the testimony showed that the retaining wall itself was not a sidewalk, and the expert admitted that there was no path along the side of the retaining wall for public use; and there was no evidence that the city intended for the area near the retaining wall to be used by the public. City of Alpharetta v. Hamby, 352 Ga. App. 511, 835 S.E.2d 366 (2019).

No evidence of city liability.

- Trial court did not err by dismissing a pedestrian's slip and fall claims against a city because there was no evidence that the city owned any part of the sidewalk and no evidence that the city performed any maintenance, repairs, or renovations to the sidewalk; thus, the pedestrian presented no evidence to support the contention that the city had or breached a duty to maintain the sidewalk. Hagan v. Ga. DOT, 321 Ga. App. 472, 739 S.E.2d 123 (2013).

City had no notice or knowledge of drainage problem.

- Motorist's failure to show a city's knowledge or notice of a roadway drainage problem, which caused a traffic accident, defeated the motorist's negligence and nuisance claims against the city. Thompson v. City of Atlanta, 274 Ga. App. 1, 616 S.E.2d 219 (2005).

City immune for operation of a fountain.

- City was entitled to sovereign immunity under O.C.G.A. § 32-4-93 in a pedestrian's claim against the city for negligent maintenance of a fountain which the pedestrian argued resulted in ice forming on a sidewalk where the pedestrian slipped and fell. The pedestrian failed to point to specific evidence of the city's actual or constructive notice of any defect in the fountain. Naraine v. City of Atlanta, 306 Ga. App. 561, 703 S.E.2d 31 (2010).

Duty exists as to travel both by day and by night.

- General rule of law is that a municipal corporation must keep the municipality's streets and sidewalks reasonably safe for travel in the ordinary mode by night as well as by day. If the municipality fails to do so, the municipality is liable in damages for injuries sustained in consequence. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).

City responsible for maintaining annexed highways.

- Where a territory is lawfully annexed to a city, the new area becomes a part of the city for all municipal purposes, the public highways therein become streets of the city, and the city becomes chargeable with the duty of using reasonable diligence in seeing that the streets are placed and kept in such condition as will make passage thereon reasonably safe. Bush v. City of Gainesville, 105 Ga. App. 381, 124 S.E.2d 667 (1962).

Maintenance of portions of state highway system.

- When the Department of Transportation fails to maintain those portions of the state highway system lying within a municipality's corporate limits as required by law, a municipality can be held liable for such failure where the municipality agreed to perform the necessary maintenance. City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

Even though a city agreed to maintain a portion of a state highway, the city was not responsible for correcting design and construction deficiencies. Duncan v. City of Macon, 221 Ga. App. 710, 472 S.E.2d 455 (1996).

City was not responsible for maintenance of a traffic signal device at the intersection of a city street and a state highway, where the Department of Transportation engineered, constructed, maintained, and set the timing sequence for the device and the city had no discretion or decision-making power with regard to the device's location, sequencing, or timing. McPherson v. City of Fort Oglethorpe, 200 Ga. App. 129, 407 S.E.2d 99 (1991).

No authority to maintain overgrown area bordering intersection.

- In a wrongful death action, the trial court did not err in finding the Georgia Department of Transportation immune from suit from liability to the decedent's estate and survivors for failing to maintain an overgrown area of shrubbery that bordered an intersection, as neither O.C.G.A. § 32-2-2, when read in concert with O.C.G.A. § 32-4-93, nor O.C.G.A. § 50-21-24(8) imposed liability on the department; hence, maintenance of the area did not constitute a "substantial" or "other major" maintenance activity. Welch v. Ga. DOT, 283 Ga. App. 903, 642 S.E.2d 913 (2007).

Failure of city to erect a stop sign at an intersection was not a "defect" which would exempt the city from claiming immunity under O.C.G.A. § 32-4-93. McKinley v. City of Cartersville, 232 Ga. App. 659, 503 S.E.2d 559 (1998).

Defects for which liability arises generally.

- Defects in the municipality's streets for which a municipal corporation may be held liable have been held to include objects adjacent to, and suspended over, the municipality's streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous. City of Bainbridge v. Cox, 83 Ga. App. 453, 64 S.E.2d 192 (1951); Richards v. Mayor of Americus, 158 Ga. App. 693, 282 S.E.2d 122 (1981).

Liability for gradual defects.

- Municipal corporation is liable for defects which are gradually brought about by the forces of nature, and for defects or obstructions created in or placed on a public street by strangers which render such street unsafe for normal travel, where the municipality had notice of such defect or obstruction and failed to exercise ordinary care in remedying or removing the defect or obstruction, or where the defect or obstruction had existed for a sufficient length of time, and when taken in connection with the nature of the defect or obstruction, it could be reasonably said that the city should have known, and had reasonable time to repair or remove the defect or obstruction. City of Barnesville v. Sappington, 58 Ga. App. 27, 197 S.E. 342 (1938).

Municipality is bound to keep the municipality's streets in a reasonably safe condition for travel by night as well as by day, and is responsible if the municipality fails to exercise ordinary care to accomplish safety, where the municipality knows or should know that the street is in an unsafe condition. Where a defect in a street has existed for so long a time that the city in the exercise of ordinary diligence ought to have discovered and remedied the defect, actual notice is unnecessary. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938); Mason v. Crowe, 88 Ga. App. 191, 76 S.E.2d 432 (1953).

Notice of defective condition.

- Where the defective condition of a sidewalk is due to the failure to repair the sidewalk or due to the negligent acts of third persons, a city is not liable unless it had actual notice of the defect, or unless the city appears from the facts in the case that the defect could have been ascertained by the exercise of ordinary care, as when the defect existed for such a length of time that notice will be implied. City of Rome v. Stone, 46 Ga. App. 259, 167 S.E. 325 (1933).

Liability for minor defects.

- Defect in a city sidewalk, as described in a petition suing a municipality for personal injuries, although of a size and nature ordinarily classed as a "minor defect," was not minor enough to require holding as a matter of law on demurrer (now motion to dismiss) that the defendant was not negligent in performing the defendant's legal duty to keep the defendant's public streets and sidewalks reasonably safe enough for passage, when it appeared that the defendant knew or should have known of the defect in time to repair the defect or set up warning signals. City of Rome v. Richardson, 62 Ga. App. 85, 7 S.E.2d 927 (1940).

Liability for acts of agents and employees.

- Municipal corporation is liable for defects and obstructions existing in one of the municipality's public streets created in or placed thereon by the municipality's own agents or employees, which renders such street unsafe to persons passing along such street. City of Barnesville v. Sappington, 58 Ga. App. 27, 197 S.E. 342 (1938) (decided under former Code 1933, § 69-301).

Agency relationship between municipality and state.

- Where a municipal corporation selected and paid a contractor to grade the municipality's streets although the State Highway Department (now Department of Transportation) agreed to pay part of the costs, and the work was to be performed under an engineer appointed by the municipality, whose selection, plans, and specifications had to be approved by the department, and the department was to inspect the work only in a general way to see that the plans and specifications were complied with, the municipality, in performing the work, was an independent contractor, and not the agent of the department, regardless of whether the portion of the street graded, within the municipality, had become a state-aid road. Gaines v. City of Calhoun, 42 Ga. App. 89, 155 S.E. 214 (1930) (decided under former Code 1910, § 828).

City liable although state prescribed specifications for grading.

- When the owner of property abutting upon the street graded by a municipality sustained damage to the value of the owner's property because the municipality changed the grade of the street in accordance with plans and specifications prescribed by the State Highway Department (now Department of Transportation) the municipality is not relieved of liability to the property owner merely because the State Highway Department (now Department of Transportation) prescribed the plans and specifications. Gaines v. City of Calhoun, 42 Ga. App. 89, 155 S.E. 214 (1930) (decided under former Code 1910, § 828).

Distinction between discretionary nonfeasance and negligent maintenance by city.

- Clear line is drawn between discretionary nonfeasance and negligent maintenance of something erected by the city, in the city's discretion, in such manner as to create a dangerous nuisance, and which amounts to misfeasance. Christensen v. Floyd County, 158 Ga. App. 274, 279 S.E.2d 723 (1981).

Deciding whether to erect or not to erect a traffic control sign or to maintain the sign after installation is an exercise of a governmental function by a municipality, and the municipality is not liable for any negligent performance of this function. Christensen v. Floyd County, 158 Ga. App. 274, 279 S.E.2d 723 (1981).

Traffic controls which are government functions for safety.

- Operation and maintenance of traffic lights and other traffic control devices is a governmental function conducted on behalf of the public safety and for the negligent performance of which municipal corporations are not liable. Barnett v. City of Albany, 149 Ga. App. 331, 254 S.E.2d 481 (1979).

Driver's allegations of negligence against a city for negligent maintenance of a stop sign, which was allegedly obscured by foliage, were subject to summary judgment based on the city's sovereign immunity pursuant to O.C.G.A. § 36-33-1(b). The driver's nuisance claim was barred because the driver failed to show the city's awareness of a problem with the stop sign. Albertson v. City of Jesup, 312 Ga. App. 246, 718 S.E.2d 4 (2011), cert. denied, No. S12C0398, 2012 Ga. LEXIS 245 (Ga. 2012).

Traffic controls which are unrelated to street maintenance.

- Operation and maintenance of traffic lights and other traffic control devices are not related to the maintenance of the streets as such, and liability of a municipality for the negligent failure to maintain a stop sign after the stop sign is once erected cannot be predicated on the theory that the stop sign is a part of street maintenance. Barnett v. City of Albany, 149 Ga. App. 331, 254 S.E.2d 481 (1979).

City liable for defect despite franchise granted to power company.

- After a bus passenger is injured when the passenger's arm, which is propped in an open bus window, is wedged between the bus window frame and a power pole installed by an electric company under a franchise agreement with a city, and the city asserts that the city granted the franchise an exercise of the city's legislative powers for which the city cannot be held liable under O.C.G.A. § 36-33-1, the city's claim of governmental immunity is not the issue; the issue instead is the liability of the city under O.C.G.A. § 32-4-93 for the alleged defect in a public road in the city's municipal street system. Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 307 S.E.2d 47 (1983).

City not liable when railroad negligently placed warning device.

- City was not liable in public nuisance action for injuries to plaintiff arising out of train and car collision allegedly due to negligent placement of warning device at railroad where the road and warning device in question were constructed and maintained by the county or railroad company and where there was no evidence that the city had assumed responsibility for maintenance of that section of the road in question. Peluso v. Central of Ga. R.R., 165 Ga. App. 215, 299 S.E.2d 51 (1983).

Liability of owner whose property abuts street on highway.

- Owner of property abutting upon a street or highway is not, by virtue thereof, liable for defects in the streets or highways. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

If a city ordinance can be taken and construed as meaning that the owner of any improved or vacant premises of whatever character and size, within the limits of a city, becomes instantly liable for injuries to third persons from the moment any trash, banana peeling, ice, snow, or other object falls upon the abutting sidewalk, without fault or knowledge on the part of such owner, it would manifestly be a rule so harsh and unconscionable as would render such municipal ordinance unconstitutional and void as violative of Ga. Const. 1877, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

When abutting property owner owes no duty to third person because of a defective condition of the sidewalk against which the property abuts, unless, the defect was brought about by such owner personally, the city could not by ordinance, under guise of police regulation, impose the city's own liability upon such property owner or make the owner liable to third persons for acts other than the owner's own. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

Rule that an owner of property abutting upon a street or highway is not, because of ownership, liable for defects in the street or highway does not apply when the owner of abutting property creates a defect or nuisance in a street or highway. In this event the owner is liable, not because the owner owns the abutting property, but because the owner creates or maintains the things from which injury results. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

Liability for injury sustained during punitive road work.

- City is not liable in damages for an injury sustained by the plaintiff after the plaintiff had been convicted of a penal offense in the city's police court and sentenced to work on the city's public streets, although the plaintiff's injury occurred while the plaintiff was thus engaged in such work, and resulted solely from the city's negligence, as keep and maintenance of the convict and the work the convict was required to perform upon the city's public streets is a governmental function, for the negligent performance of which the city is not liable to the convict/plaintiff in damages for a resulting injury. Hurley v. City of Atlanta, 208 Ga. 457, 67 S.E.2d 571 (1951), cert. denied, 343 U.S. 917, 72 S. Ct. 650, 96 L. Ed. 1331 (1952).

Removal of warning devices by third persons.

- If proper guards are erected or proper lights or signals are placed by city to give warning of danger caused by excavation or obstruction in a street, and such guards or signals are removed or rendered ineffective by third parties, or from causes over which the city has no control, the city is absolved from resultant damage unless the city fails, after notice of the removal of such warnings, to replace the warnings within a reasonable time. City of Rome v. Alexander, 63 Ga. App. 301, 11 S.E.2d 52 (1940).

Defect where street abuts state highway.

- Notwithstanding that a city was not negligent in construction of an asphalt street, it would, if negligent in maintaining a dangerous hole or defect where the asphalt pavement joined cement state highway, be responsible for any injury sustained by an occupant of an automobile if the hole or defect caused the car to go out of control and to swerve along the asphalt street, although the street was reasonably safe for automobile travel in the usual and ordinary mode. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).

Lighting of streets.

- In the absence of any statutory requirement, a municipal corporation need not light the municipality's streets with lamps, and no liability results from the municipality's decision whether or not to light the municipality's streets. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935).

If a city performs the city's duty to keep the city's streets in a reasonably safe condition, the mere absence of an ordinary street light at a given point will not constitute such negligence as to render the city liable. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935).

Operation of a traffic light conducted in behalf of the public safety is a governmental function in the exercise of the police power for the negligent performance of which a city is not liable. Stanley v. City of Macon, 95 Ga. App. 108, 97 S.E.2d 330 (1957).

Street used for school access only.

- Street situated entirely on property owned by a municipal corporation and devoted entirely by the municipality to school purposes, which street serves only as an entrance to the school buildings situated thereon, and which exists for the use of the general public only in the sense that any member of the general public desiring access to the school buildings and grounds could use the street, is not such a public street that the city will be held liable for the street's negligent construction and maintenance. City of Atlanta v. Keiser, 50 Ga. App. 600, 179 S.E. 192 (1935).

Planning and construction of safety zone.

- In the planning and the construction of a safety zone on a city street, the city is engaged in a governmental function and could not be held liable for any error in judgment in such planning. Beall v. City of Atlanta, 72 Ga. App. 760, 34 S.E.2d 918 (1945).

For a discussion of liability for maintenance of safety zone, see Beall v. City of Atlanta, 72 Ga. App. 760, 34 S.E.2d 918 (1945).

Power lines.

- When, in a city street about 80 feet wide, the city has authorized the erection and maintenance, longitudinally down the middle of the street, of a series of poles supporting electrical wires, and on either side of the poles there remains a driveway approximately 40 feet in width each, and the poles cause no substantial danger or interference with the lawful use of the road, the maintenance of the poles in the street is not negligence, either as a matter of law or in fact. South Ga. Power Co. v. Smith, 42 Ga. App. 100, 155 S.E. 80 (1930).

Because material fact questions remained regarding the quality of a utility company's inspection and whether the company had constructive knowledge of an electrical wiring defect outside of a homeowner's home, summary judgment was properly denied. Schuessler v. Bennett, 287 Ga. App. 880, 652 S.E.2d 884 (2007), cert. denied, No. S08C0398, 2008 Ga. LEXIS 230 (Ga. 2008).

Tree overhanging sidewalk.

- Even if a tree actually grew in a park so that the tree's maintenance is a governmental function, if some of the tree's limbs overhung a sidewalk not part of a park so that the sidewalk was not in a reasonably safe condition, so that persons could pass along the sidewalk in the ordinary methods of travel with reasonable safety, a municipality would be liable for any injuries caused by such unsafe condition, if other requirements of notice and negligence obtained. Mayor of Savannah v. Harvey, 87 Ga. App. 122, 73 S.E.2d 260 (1952) (decided under former Ga. L. 1895, p. 306).

City park and tree commission liability for negligently maintained trees.

- Act creating a park and tree commission for a city does not relieve the city of the city's duty to keep the city's sidewalks in a reasonably safe condition so that persons could pass along the sidewalks in the ordinary methods of travel with reasonable safety, and a petition, alleging injuries due to the negligence of the city in performing such duty, states a cause of action as against a general demurrer (now motion to dismiss). Mayor of Savannah v. Harvey, 87 Ga. App. 122, 73 S.E.2d 260 (1952).

City maintenance of drainage culverts.

- Summary judgment was granted in favor of a city upon a father's claim of negligence under O.C.G.A. § 32-4-93(a) because: (1) there was no showing that the city had a legal duty to expand the culvert pipe in which the child drowned, to widen the shoulder of the street, or to erect a guardrail, as no statute required the city to take these actions, and the city's construction code did not impose a duty with regard to the culvert; (2) there was no evidence that the city negligently maintained the culvert; and (3) the city had no actual or constructive notice of flooding problems near the culvert or of defects in the culvert. Walden v. City of Hawkinsville, F.3d (M.D. Ga. Sept. 21, 2005).

City could be liable for dock collapse but had no notice of any defect.

- Although a city could be liable under O.C.G.A. § 32-4-93(a) for failure to maintain a dock that collapsed, injuring the plaintiffs, because the dock fell within the definition of "public road" in O.C.G.A. § 32-1-3, there was no evidence that the city had notice of any defect in the dock, and the plaintiffs' expert affidavit did not identify any defect. Therefore, the city was properly granted summary judgment on immunity grounds. Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).

Photographs of roadway taken after accident insufficient to show city's notice of defect.

- In a driver's action against a city under O.C.G.A. § 32-4-91, alleging that an accident occurred because an area of broken pavement around a manhole caused the driver's vehicle to veer into oncoming traffic, photographs of the area taken two weeks after the accident did not constitute evidence of the city's notice of the defect under O.C.G.A. § 32-4-93(a). City of Macon v. Brown, 343 Ga. App. 262, 807 S.E.2d 34 (2017).

Duty to maintain dock.

- In an action for injuries suffered when a city-owned dock collapsed, the trial court did not err in finding that the city had a ministerial duty to maintain the dock in a reasonably safe conditions because the dock was a "way" intended for public use and the passage of vehicles boarding the ferry. Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019).

Cited in Broadnax v. City of Atlanta, 149 Ga. App. 611, 255 S.E.2d 86 (1979); City of Social Circle v. Sims, 228 Ga. App. 582, 492 S.E.2d 240 (1997); City of Atlanta v. Mitcham, 296 Ga. 576, 769 S.E.2d 320 (2015); City of Brunswick v. Smith, 350 Ga. App. 501, 829 S.E.2d 781 (2019).

Trial Procedure

Allegation that walkway is part of municipal streets and sidewalks.

- When it is alleged that the walkway on which the plaintiff was injured is a part of the sidewalk and street system of a municipal corporation there must be some evidence that the walkway was intended and maintained by the city for such use. Kesot v. City of Dalton, 94 Ga. App. 194, 94 S.E.2d 90 (1956).

Evidence as to presence or character of city safeguard.

- If the question is whether a city has performed the city's duty in regard to keeping a street in a reasonably safe condition, or whether the city has been negligent in that regard, and in respect to failing to erect proper safeguards or to placing proper lights at a dangerous place where an injury occurs, the character of the light at that point, or the light's absence, may be shown as a circumstance bearing on the question of negligence. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935).

If a municipality obstructs a street or allows the street to remain obstructed, or out of repair, or in a dangerous condition, the fact of the absence of lights or safeguards of any character at the place or that a street light established at that point has been allowed to remain unlit for a number of nights before an injury occurred to a pedestrian may be considered, along with the other evidence, in determining whether there is negligence in failing to keep the street in a reasonably safe condition. Lundy v. City Council, 51 Ga. App. 655, 181 S.E. 237 (1935).

Evidence which raises fact question of implied notice to city.

- Evidence that a power pole was maintained in the same location for many years and that the pole bore scrape marks from passing vehicles is sufficient to raise a fact question of implied notice to the city. Kicklighter v. Savannah Transit Auth., 167 Ga. App. 528, 307 S.E.2d 47 (1983).

Evidence of notice required.

- Because there was a lack of evidence that the city had actual or constructive knowledge of a defect created by a sewer overflow resulting in the absence of the manhole cover, the issue of negligence became a matter of law. Quinn v. City of Cave Spring, 243 Ga. App. 598, 532 S.E.2d 131 (2000).

Evidence needed to defeat summary judgment.

- Once a city put forth evidence showing that the city had installed pipes in a culvert through which a creek ran under a street in compliance with municipal standards for culvert work, it was incumbent upon a resident claiming negligence to come forward with some evidence of negligent installation of the pipes in order to defeat summary judgment; as the resident had not done so, it was proper to grant summary judgment for the city. Gilbert v. City of Jackson, 287 Ga. App. 326, 651 S.E.2d 461 (2007).

Notice of defect.

- County water and sewer authority was not liable to motorist injured when street pavement collapsed, since the authority had no duty to inspect water lines under the street in the absence of any actual or constructive notice of a defect. Andrews v. City of Macon, 191 Ga. App. 745, 382 S.E.2d 739 (1989).

Constructive notice.

- While the question of constructive notice is ordinarily one for the jury, in the absence of any evidence as to constructive notice there is no reasonable ground for two opinions, and thus the issue of negligence is a matter of law, not a question of fact for the jury. Andrews v. City of Macon, 191 Ga. App. 745, 382 S.E.2d 739 (1989).

In an action for injuries sustained by plaintiff when plaintiff stepped in a hole on the right-of-way maintained by the city, the plaintiff's opinion that "the hole appeared to have been there for a significant period of time," without other evidence of how long the hole had been in existence, was insufficient to raise a factual question as to the city's constructive notice of the hole. Brumbelow v. City of Rome, 215 Ga. App. 321, 450 S.E.2d 345 (1994).

Even though the size of the depression in which the plaintiff tripped and the grass growing over the depression presented some evidence of age, the factors did not establish that the depression was so old as to provide a basis for concluding that the city had constructive knowledge of the hazard. Rischack v. City of Perry, 223 Ga. App. 856, 479 S.E.2d 163 (1996).

Summary of means of showing implied or constructive notice of a defect.

- See Crider v. City of Atlanta, 184 Ga. App. 389, 361 S.E.2d 520, cert. denied, 184 Ga. App. 909, 361 S.E.2d 520 (1987).

When notice presumed.

- If a defect has existed in a sidewalk for such a length of time that by reasonable diligence in the performance of their duties the defect ought to have been known by the proper authorities, notice will be presumed, and proof of actual knowledge will not be necessary in order to render the municipality liable for injuries occasioned thereby. Ellis v. Southern Grocery Stores, Inc., 46 Ga. App. 254, 167 S.E. 324 (1933).

Knowledge on the part of a city of a defect in one of the city's sidewalks will be presumed when the defect has continued for such a length of time that, by reasonable diligence in the performance of the city's duties, the defect's existence should have become known to the proper authorities. City of Silvertown v. Harcourt, 51 Ga. App. 160, 179 S.E. 772 (1935).

Time needed for implied notice depends on defect and location.

- Length of time that must elapse from the creation or placing of an obstruction in the street or sidewalk of a municipality, in order to authorize a finding of negligence against the municipality, will vary according to the location and nature of the defect. City of Barnesville v. Sappington, 58 Ga. App. 27, 197 S.E. 342 (1938).

It was error to overrule the city's motion for judgment n.o.v. in the case of a bus passenger who was injured when a portion of street pavement collapsed, where a crack in the pavement which could have existed for three days prior to the collapse was not itself the defect, when three days was not a sufficient time for surface or rainwater entering the crack to have undermined the pavement, and when there was nothing to indicate that if the city had investigated the crack that the cavity which caused plaintiff's injuries would have been discovered. City of Atlanta v. Hightower, 177 Ga. App. 140, 338 S.E.2d 683 (1985).

Jury questions.

- In an action against a municipal corporation for injuries sustained while running along a certain street in the city after dark, which street was alleged to have been in a defective and unsafe condition, questions of whether the city was negligent in failing to keep the street and walkway in question in a reasonably safe condition, whether the plaintiff was guilty of negligence in running along the street and walkway on the occasion in question, and what negligence constituted the proximate cause of the injury, are questions which should have been submitted to a jury. Harris v. City of Rome, 59 Ga. App. 279, 200 S.E. 337 (1938).

When an action is brought against a municipality for injuries alleged to have been brought about by the existence of an obstruction in a public street of the municipality which was not shown to have been placed there by the city, when no actual notice of the obstruction is shown, the issue of whether or not the obstruction had existed for a sufficient length of time to charge the city with negligence in failing to discover and remove the obstruction should be generally left to the jury. City of Barnesville v. Sappington, 58 Ga. App. 27, 197 S.E. 342 (1938); City of Bainbridge v. Cox, 83 Ga. App. 453, 64 S.E.2d 192 (1951).

Whether a defect or hole in a city street gave a right of action to a person injured thereby is ordinarily a question for the jury, because it is a complicated question of fact, involving the depth of the hole or defect, the defect's appearance to travelers on the street, and the danger which might have been anticipated and guarded against by the city in the exercise of reasonable forethought. Mayor of Buford v. Medley, 58 Ga. App. 48, 197 S.E. 494 (1938).

When it appears that a city has permitted an excavation in a street, it becomes a question for the jury to determine as to the extent and character of the warnings or signals placed which are necessary and sufficient to give notice to members of the public using such street of the presence of such excavation or obstruction. City of Rome v. Alexander, 63 Ga. App. 301, 11 S.E.2d 52 (1940).

While it is true that a city would not be liable for the existence of a latent defect not discoverable by the exercise of ordinary care, whether the defect was such as the municipality should have discovered the defect in the exercise of ordinary care in keeping the streets and sidewalks in a reasonably safe condition is a question for the jury. City of Bainbridge v. Cox, 83 Ga. App. 453, 64 S.E.2d 192 (1951).

In a wrongful death case, the trial court properly denied a city summary judgment on the plaintiffs' negligence and nuisance claims based on the obstruction in the line of sight caused by a tree as a jury had to determine whether the tree located on the city's right of way obstructed the view of oncoming traffic such that the tree was a defect within the meaning of O.C.G.A. § 32-4-93.

RESEARCH REFERENCES

Defective Design or Setting of a Traffic Control Signal, 6 POF2d 683.

Municipality's Failure, in Making Street Repairs, to Avoid Injury to Adjacent Property, 8 POF2d 361.

Highway Defects - Road Shoulder, 16 POF2d 1.

Highway Defects - Barrier on Guardrail, 17 POF2d 413.

Highway Defects - Warning Device, 18 POF2d 487.

Public Authority's Failure to Remove or Guard Against Ice or Snow on Surface of Highway or Street, 21 POF2d 251.

Highway Defects - Liability for Failure to Install Median Barrier, 50 POF2d 63.

Highway Defects - Negligent Design or Maintenance of Curve, 14 POF3d 527.

Establishing Liability of a State or Local Highway Administration, Where Injury Results from the Failure to Place or Maintain Adequate Highway Signs, 31 POF3d 351.

Governmental Liability for Failure to Maintain Trees Near Public Way, 41 POF3d 109.

Governmental Liability for Injury to Landowner's Property from Road Construction Activities on Neighboring Land, 65 POF3d 311.

Proof of Roadside Hazard Case, 71 POF3d 1.

Liability of Municipality or Abutting Landowner for Injury Caused by Defective Condition of Sidewalk, 86 POF3d 327.

C.J.S.

- 39A C.J.S., Highways, § 237.

40 C.J.S., Highways, § 414 et seq.

ALR.

- Responsibility of county for injury from defect in highway, 2 A.L.R. 721.

Applicability of statute or ordinance requiring notice of claim for damages from injuries in street as affected by the conditions which caused the injury, 10 A.L.R. 249.

Liability of a municipal corporation for injuries caused by the unsafe condition of a street resulting from or incidental to work performed under a permit authorizing the construction, alteration, repair, or demolishing of a building or its appurtenances, 11 A.L.R. 1343.

Liability of municipality for act of employee engaged in sprinkling or cleaning streets or removing garbage or rubbish, 14 A.L.R. 1473; 32 A.L.R. 988; 52 A.L.R. 187; 60 A.L.R. 101; 156 A.L.R. 692; 156 A.L.R. 714.

Negligent or unlawful use of road as a defect within statute rendering county, town, or other political division liable for damages, 22 A.L.R. 588.

Liability of municipality for injury from ice or snow on crosswalk, 32 A.L.R. 1293.

Liability of municipality for damages by fire because of condition of streets delaying or impeding fire department, 33 A.L.R. 694.

Duty to make highway safe for children as including duty to prevent their leaving it at a place of danger, 36 A.L.R. 309.

Personal liability of public official for personal injury on highway, 40 A.L.R. 39; 57 A.L.R. 1037.

Municipal liability for drowning of child in pond created by its failure to provide drainage in constructing highway embankment, 40 A.L.R. 488.

Liability of municipality for condition of the part of private driveway which is within the street, 42 A.L.R. 1281.

Liability of municipality for injury to lateral support in grading street, 44 A.L.R. 1494.

Liability of municipal corporation for injury incident to coasting in street, 46 A.L.R. 1434.

Liability of municipality for injury to traveler in alley, 48 A.L.R. 434.

Notice of condition of street due to acts of municipal employees as condition precedent to municipal liability, 50 A.L.R. 1193.

Liability of municipality for injury or damage due to sprinkling of street, 51 A.L.R. 575.

Liability of municipality for negligence not affecting the condition of the street itself by its agents or servants while engaged in making street improvements, 52 A.L.R. 524.

Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.

Duty and liability of public authorities as to conditions beyond limits of highway which affect safety or comfort of travel, 53 A.L.R. 764.

Liability for conditions in space between lot lines and sidewalk actually within limits of street, but apparently part of the abutting property, 56 A.L.R. 220.

Duty of municipality to remedy conditions due to traffic rendering roadway dangerous for automobiles, 63 A.L.R. 208.

Duty and liability as to construction or maintenance of bridge as respects weight of load, 68 A.L.R. 605.

Liability for injury by stepping or falling into opening in sidewalk while doors are open or cover off, 70 A.L.R. 1358.

Liability of municipality for injury due to defective catch-basin covers, and the like, maintained in street in connection with drainage or sewer system, 71 A.L.R. 753.

Municipal liability for injuries from snow and ice on sidewalk, 80 A.L.R. 1151; 39 A.L.R.2d 782.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 82 A.L.R. 749; 159 A.L.R. 329; 65 A.L.R.2d 1278.

Liability of municipality for injury to person or property due to improper plan for or defects in original construction of street or highway, 90 A.L.R. 1502.

Failure of municipality to adopt, or to enforce, traffic regulations as ground of its liability for damage to property or person, 92 A.L.R. 1495; 161 A.L.R. 1404.

Liability of municipality for injury or damage by automobile colliding with temporary obstruction in connection with alteration or repair of street, 100 A.L.R. 1386.

Abandonment or discontinuance of use of rails, poles, wires, or other obstructions having previous lawful situs in street as affecting liability of municipality or another for personal or property damage resulting therefrom, 102 A.L.R. 677.

Liability of public for injury or damage from slides or fall of object from embankment at side of highway, 107 A.L.R. 596.

Municipal liability for injury due to condition of street, 109 A.L.R. 605.

Degree of inequality in sidewalk which makes question for jury or for court, as to municipality's liability, 119 A.L.R. 161; 37 A.L.R.2d 1187.

Liability of municipality or other governmental body to pedestrian for injury in street closed or partially closed during construction or repairs, 119 A.L.R. 841.

Duty and liability of municipality, or other political subdivision, as regards condition of streets as extending to place or structure not strictly part of street but commonly used by public as an extension of or by-pass between streets, 126 A.L.R. 443.

Liability of municipality for injury or damage due to pole maintained by third person in street or highway, 128 A.L.R. 1269.

Liability for injury to pedestrian predicated upon slope or contour of sidewalk or crosswalk, or slippery nature of material of which it is constructed, 133 A.L.R. 1026.

Scope of employment of municipal employee engaged in work in street or highway, or in directing traffic, as regards municipal responsibility for his tort, 136 A.L.R. 1361.

Liability for injury to pedestrian due to condition of street or highway as affected by his blindness or other physical disability, 141 A.L.R. 721.

Duty of municipality to children playing in street, 154 A.L.R. 1330.

Cleaning and sprinkling of streets as governmental or private function as regards municipal immunity from liability for tort, 156 A.L.R. 692.

Liability of governmental unit for collision with safety and traffic-control devices in traveled way, 7 A.L.R.2d 226.

Liability of municipality for damage caused by fall of tree or limb, 14 A.L.R.2d 186.

Liability of municipal corporation to pedestrian for slippery condition of sidewalk caused by deposits of earth or mud thereon, 16 A.L.R.2d 1290.

Liability of municipal corporation for injury or death occurring from defects in, or negligence in construction, operation, or maintenance of its electric street-lighting equipment, apparatus, and the like, 19 A.L.R.2d 344.

Liability for injury on parking or strip between sidewalk and curb, 19 A.L.R.2d 1053; 98 A.L.R.3d 439.

Installation or operation of parking meters as within governmental immunity from tort liability, 33 A.L.R.2d 761.

Liability of municipality for injury resulting from slippery condition of walk concurring with defects therein, 41 A.L.R.2d 739.

Liability for negligence of public body or political subdivision operating toll bridge, 43 A.L.R.2d 550.

Duty and liability of municipality as regards barriers for protection of adult pedestrians who may unintentionally deviate from street or highway into marginal or external hazards, 44 A.L.R.2d 633.

Liability of municipality for failure to erect traffic warnings against entering or using street which is partially barred or obstructed by construction or improvement work, 52 A.L.R.2d 688.

Liability for injury or damage by tree or limb overhanging street or highway, 54 A.L.R.2d 1195.

Liability of state, municipality, or public agency for vehicle accident occurring because of accumulation of water on street or highway, 61 A.L.R.2d 425.

Municipal liability for injury or death from collision with rope or clothesline across sidewalk or street, 75 A.L.R.2d 565.

Liability of municipal corporation to person injured in fall because of slippery substance such as paint or oil deliberately placed upon surface of street or sidewalk, 81 A.L.R.2d 1194.

Liability of municipality for injury or death resulting from temporary condition or obstruction in street in connection with holiday, entertainment, parade or other special event, 84 A.L.R.2d 508.

Liability of municipality for injury or death from defects or obstructions in sidewalk to one riding thereon on bicycle, tricycle, or similar vehicle, 88 A.L.R.2d 1423.

Liability for injury from defective condition or improper operation of lift bridge or drawbridge, 90 A.L.R.2d 105.

Existence of actionable defect in street or highway proper as question for court or for jury, 1 A.L.R.3d 496.

Liability of highway authorities arising out of motor vehicle accident allegedly caused by failure to erect or properly maintain traffic control device at intersection, 34 A.L.R.3d 1008.

Liability of governmental unit for injuries or damage resulting from tree or limb falling onto highway from abutting land, 95 A.L.R.3d 778.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from ice or snow on surface of highway or street, 97 A.L.R.3d 11.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from failure to repair pothole in surface of highway or street, 98 A.L.R.3d 101.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Liability, in motor vehicle-related cases, of governmental entity for injury, death, or property damage resulting from defect or obstruction in shoulder of street or highway, 19 A.L.R.4th 532.

Governmental liability for failure to reduce vegetation obscuring view at railroad crossing or at street or highway intersection, 22 A.L.R.4th 624.

Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.

Duty of public authorities to erect and maintain warning signs or devices for curves in highway, 57 A.L.R.4th 342.

Governmental tort liability as to highway median barriers, 58 A.L.R.4th 559.

Legal aspects of speed bumps, 60 A.L.R.4th 1249.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

32-4-94. Standards for construction of curb ramps.

  1. The standard for construction of curbs on each side of any municipal street or of any connecting street or road for which curbs have been prescribed by the governing body of the municipal corporation having jurisdiction thereover shall be not less than one ramp per lineal block giving on the crosswalks at intersections. Such ramps shall be at least 40 inches wide and shall be so constructed as to allow reasonable access to the crosswalk for physically disabled persons.
  2. Standards set for curb ramping under subsection (a) of this Code section shall not apply to any curb existing on July 1, 1974, but shall apply to all new curb construction and to all replacement curbs constructed at any point in a block which gives reasonable access to a crosswalk; provided, however, that the standards set for curb ramping under subsection (a) of this Code section shall apply to curbs on each side of the street circling the state capitol; provided, further, that the standard for construction of curbs on each side of the street circling the state capitol shall be not less than two ramps per lineal block giving on the crosswalks at intersections.

(Ga. L. 1974, p. 514, § 1; Ga. L. 1995, p. 1302, § 14.)

Cross references.

- Access to and use of public facilities by physically disabled persons generally, T. 30, C. 3.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 8.

C.J.S.

- 64 C.J.S., Municipal Corporations, § 1141.

ALR.

- Right of municipality to hasten flow of surface water along natural drain ways by improvements of street or highway, 36 A.L.R. 1463.

Liability of municipality for injury to lateral support in grading street, 44 A.L.R. 1494.

PART 2 E XERCISE BY MUNICIPALITIES OF POWER TO CONTRACT GENERALLY

RESEARCH REFERENCES

ALR.

- Construction and effect of "changed conditions" clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

32-4-110. "Contract" defined.

As used in this part, the term "contract" means a contract or subcontract entered into by a municipality with any person, the state or federal government or an agency of either, with another municipality or municipalities, with a county or counties, or with any combination of any of the foregoing entities, for the construction, reconstruction, or maintenance of all or part of a public road in said municipality, including but not limited to a contract or subcontract for the purchase of materials, for the hiring of labor, for professional services, or for other things or services incident to such work.

(Code 1933, § 95A-831, enacted by Ga. L. 1973, p. 947, § 1.)

32-4-111. Authority of municipality to contract; form of contracts; approval of contracts by resolution.

A municipality shall have the authority to contract as set forth in this part and in Part 1 of this article. Any contract for work on all or part of the municipal road system shall be in writing and be approved by resolution which shall be entered on the minutes of such municipality.

(Code 1933, § 95A-832, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1991, p. 94, § 32.)

32-4-112. Contracts with state agencies and adjoining counties.

  1. A contract with a state agency is subject to those limitations of subparagraph (d)(1)(A) and paragraph (2) of subsection (d) of Code Section 32-2-61.
    1. A municipality may contract with any county in which part of the municipality lies for the construction and maintenance of a public road within the limits of such municipality. A municipality may contract with any county abutting the corporate limits of such municipality for the construction and maintenance of a bridge within the limits of both such municipality and such county.
    2. In such contract, the county may agree to use any county funds available for the construction and maintenance of roads in such county, including funds derived from general obligation bonds issued after approval in a county-wide election, to pay the costs, in whole or in part, of the construction or maintenance of such public road.
    3. In such contract, the municipality may agree to use any funds available for the construction and maintenance of roads in such municipality, together with any funds the municipality may collect pursuant to its power to assess any part of its share of the cost of such contract against abutting and adjoining property and the owners thereof according to the provisions of Chapter 39 of Title 36, as if the municipality were performing the work alone, unless the terms of such assessment shall be in violation of the municipality's charter, an ordinance of the municipality, or a general law of the state.
    4. The work under such contract may be performed either by county or municipal forces or by a contractor employed by either or jointly.

(Code 1933, § 95A-833, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2018, p. 714, § 1/SB 324.)

The 2018 amendment, effective July 1, 2018, added the second sentence in paragraph (b)(1).

OPINIONS OF THE ATTORNEY GENERAL

Contract for improvement of county road located in municipality.

- County may, by contract, obtain the cooperation of a municipality in the right-of-way acquisition for, and construction and maintenance of, a county road located within the municipality, but the county cannot require this of a municipality absent an appropriate contract. 1986 Op. Att'y Gen. No. U86-27.

32-4-113. Limitations on power to contract; at least two estimates required for certain expenditures.

  1. A municipality is prohibited from negotiating a contract except a contract:
    1. Involving the expenditure of less than $200,000.00;
    2. With a state agency or political subdivision as authorized by Code Sections 32-4-111 and 32-4-112;
    3. With a railroad or railway company or a publicly or privately owned utility as authorized by Article 6 of Chapter 6 of this title;
    4. For engineering or other kinds of professional or specialized services;
    5. For emergency maintenance requiring immediate repairs to a public road, including but not limited to bridge repairs, snow and ice removal, and repairs due to flood conditions; or
    6. Otherwise expressly authorized by law.
  2. No contract involving an expenditure of more than $20,000.00 but less than $200,000.00 shall be awarded under this Code section without the submission of at least two estimates.

(Code 1933, § 95A-834, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1989, p. 356, § 3; Ga. L. 2014, p. 851, § 4/HB 774.)

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids and condition of public contract, 15 A.L.R.3d 733.

32-4-114. Required letting of contracts by public bid.

Except as authorized by Code Section 32-4-113, all contracts shall be let by public bid.

(Code 1933, § 95A-835, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Contract for personal services as within requirement of submission of bids as condition of public contract, 15 A.L.R.3d 733.

32-4-115. Advertising for bids.

  1. Notwithstanding any provision of Code Section 36-39-10 to the contrary, on all contracts to be let by public bid a municipality shall advertise for competitive sealed bids for at least two weeks. The public advertisement shall be inserted once a week in such newspapers wherein the county sheriff's sales are advertised or in such newspapers or other publications, or both, as will ensure adequate publicity, the first insertion to be at least two weeks prior to the opening of the sealed bids, the second to follow one week after the publication of the first insertion.
  2. Such advertisement shall include but not be limited to the following:
    1. A description sufficient to enable the public to know the approximate extent and character of the work to be done;
    2. The time allowed for performance;
    3. The terms and time of payment;
    4. Where and under what conditions and costs the detailed plans and specifications and proposal forms may be obtained;
    5. The amount of the proposal guaranty, if one is required;
    6. The time and place for submission and opening of bids;
    7. The right of the municipality to reject any one or all bids; and
    8. Such further notice as the municipality may deem advisable as in the public interest.

(Ga. L. 1922, p. 37, § 1a; Code 1933, § 95-1103; Code 1933, § 95A-836, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Right of public authorities to reject all bids for public work or contract, 52 A.L.R.4th 186.

32-4-116. Payment by bidder to cover costs.

A municipality may require each bidder to pay a reasonable sum sufficient to cover the cost to the municipality, where applicable, of the bid proposal form, the contract, and its specifications.

(Code 1933, § 95A-837, enacted by Ga. L. 1973, p. 947, § 1.)

32-4-117. Proposal guaranty by bidder.

  1. A municipality may require that each bid on a particular contract, as a prerequisite to the bid being considered, be accompanied by a proposal guaranty in the form of a certified check or other acceptable security payable to the municipality for an amount deemed by the municipality in the public interest necessary to ensure that the successful bidder will execute the contract on which he bid.
  2. Such proposal guaranty will be returned to a bidder upon receipt by the municipality of the bidder's written withdrawal of his bid if such receipt is before the time scheduled for the opening of bids. Upon the determination by the municipality of the lowest reliable bidder, the municipality will return proposal guaranties to all bidders except the proposal guaranty of the lowest reliable bidder. If no contract award is made within 30 days after the date set for the opening of bids, all bids shall be rejected and all proposal guaranties shall be returned unless the municipality and the successful bidder agree in writing to a longer period of time.

(Code 1933, § 95A-838, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake of fact or that of his employee, 2 A.L.R.4th 991.

32-4-118. Award of contract to lowest reliable bidder; procedure upon rejection of bids.

Notwithstanding any provisions of Code Section 36-39-11 to the contrary, where a contract has been let for bid, the municipality, by resolution entered in its minutes, shall award the contract to the lowest reliable bidder, provided that the municipality shall have the right to reject any and all such bids whether such right is reserved in the public notice or not and, in such case, may readvertise, perform the work itself, or abandon the project.

(Ga. L. 1922, p. 37, § 1c; Code 1933, § 95-1005; Code 1933, § 95A-839, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Public contracts: authority of state or its subdivision to reject all bids, 52 A.L.R.4th 186.

Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

Encroachment of trees, shrubbery, or other vegetation across boundary line, 65 A.L.R.4th 603.

32-4-119. Bonds of successful bidder.

Notwithstanding any provision of Chapter 91 of Title 36 to the contrary, where the contract price is $5,000.00 or more, no construction contract of a municipality, other than a contract solely for engineering or other professional services, shall be valid unless the contractor first gives:

  1. A performance and payment bond which meets the requirements of Parts 1, 3, and 4 of Article 3 of Chapter 91 of Title 36; and
  2. Such other bonds or insurance policies required by the municipality in its proposal forms, including but not limited to public liability and property damage insurance bonds or policies and bonds to maintain in good condition such completed construction for a period of not less than five years.

(Ga. L. 1922, p. 37, § 1b; Code 1933, § 95-1104; Code 1933, § 95A-840, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2001, p. 820, § 8; Ga. L. 2007, p. 167, § 5/HB 192.)

32-4-120. Failure to take bonds; liability of municipality.

If the payment bond required by Code Section 32-4-119 is not taken, the municipality then shall be liable to subcontractors, laborers, materialmen, and other persons, as provided in Part 4 of Article 3 of Chapter 91 of Title 36, for losses to them resulting from failure to take such bond.

(Code 1933, § 95A-841, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 15; Ga. L. 2001, p. 820, § 9.)

32-4-121. Failure of successful bidder to sign contract or furnish bonds.

If the successful bidder fails to sign the contract or furnish the bonds required under authority of Code Section 32-4-119, his proposal guaranty, if one had been required by the municipality, will become the property of the municipality as liquidated damages. The contract then may be readvertised, or the project may be abandoned.

(Code 1933, § 95A-842, enacted by Ga. L. 1973, p. 947, § 1.)

RESEARCH REFERENCES

ALR.

- Right of bidder for state or municipal contract to rescind bid on ground that bid was based upon his own mistake of fact or that of his employee, 2 A.L.R.4th 991.

32-4-122. Oath by successful bidder.

A successful bidder, before commencing the work, shall execute a written oath, as required by subsection (e) of Code Section 36-91-22, stating that he has not violated such Code section which makes it unlawful to restrict competitive bidding.

(Code 1933, § 95A-843, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2001, p. 4, § 32.)

32-4-123. Other laws applicable to part.

Except as indicated to the contrary in this part, Chapter 91 of Title 36 shall not apply to this part.

(Code 1933, § 95A-844, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 2000, p. 498, § 16; Ga. L. 2001, p. 820, § 10.)

CHAPTER 5 FUNDS FOR PUBLIC ROADS

Article 1 Federal Funds.
Article 2 State Public Transportation Fund.
Article 3 Allocation of Funds.
Editor's notes.

- By resolution (Ga. L. 2007, p. 352), the General Assembly created the Joint Study Committee on Transportation Funding to undertake a study of the conditions, needs, issues, and problems with the funding of Georgia's transportation system. The Committee made a report to the General Assembly and was abolished on December 31, 2007.

ARTICLE 1 FEDERAL FUNDS

32-5-1. Receipt of federal-aid funds by state; department authorized to waive chapter provisions inconsistent with or contrary to federal laws, rules, or regulations.

  1. The state treasurer is designated a proper authority to receive any of the federal-aid funds apportioned by the federal government under 23 U.S.C. and to receive any other federal funds apportioned to the State of Georgia for public road and other public transportation purposes, unless designated otherwise by the federal government and except as such funds may be directed by the federal government to the State Road and Tollway Authority.
  2. If any provisions of this chapter are inconsistent with or contrary to any laws, rules, regulations, or other requirements of the United States Department of Transportation or other federal agencies, the Georgia Department of Transportation is authorized and empowered to waive such provisions of this chapter in order to resolve any such inconsistency or conflict, it being the purpose of this chapter to enable the department to comply with any requirement of the federal government in order to procure all possible federal aid and assistance for the construction or maintenance of the public roads of Georgia and other public transportation purposes.

(Code 1933, § 95A-701, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1991, p. 94, § 32; Ga. L. 1993, p. 1402, § 18; Ga. L. 1999, p. 112, § 1; Ga. L. 2001, p. 1251, § 1-4; Ga. L. 2010, p. 863, § 3/SB 296.)

Law reviews.

- For article, "Standards for Smart Growth: Searching for Limits on Agency Discretion and the Georgia Regional Transportation Authority," see 36 Georgia L. Rev. 247 (2001). For note on 1999 amendment to this Code section, see 16 Ga. St. U. L. Rev. 233 (1999).

JUDICIAL DECISIONS

Cited in Campbell v. State Rd. & Tollway Auth., 276 Ga. 714, 583 S.E.2d 32 (2003).

OPINIONS OF THE ATTORNEY GENERAL

No expenditure of money on historic preservation if not for transportation.

- Department of Transportation may expend federal and state funds on transportation enhancement activities as defined in 23 U.S.C. § 101(a) in those instances when the Code of Public Transportation gives the department the authority to expend such funds, but the Department of Transportation has no authority to expend federal or state money on historic preservation, rehabilitation, and operation of historic transportation buildings, structures, or facilities (including historic railroad facilities and canals) when such buildings, structures, or facilities are not being acquired for transportation purposes. 1993 Op. Att'y Gen. No. 93-3 (decided prior to 1993 amendment of O.C.G.A. § 32-1-3).

32-5-2. Appropriation of funds to department.

All federal funds received by the state treasurer under Code Section 32-5-1 are continually appropriated to the department for the purpose specified in the grants of such funds except as such funds may be directed by the federal government to the State Road and Tollway Authority.

(Code 1933, § 95A-702, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1993, p. 1402, § 18; Ga. L. 2001, p. 1251, § 1-5; Ga. L. 2010, p. 863, § 3/SB 296; Ga. L. 2015, p. 1072, § 2/SB 169.)

JUDICIAL DECISIONS

Cited in Campbell v. State Rd. & Tollway Auth., 276 Ga. 714, 583 S.E.2d 32 (2003).

ARTICLE 2 STATE PUBLIC TRANSPORTATION FUND

Administrative Rules and Regulations.

- Grant programs, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Chapter 672-12.

OPINIONS OF THE ATTORNEY GENERAL

Replacement of public facilities.

- Department of Transportation may presently make payments to effectuate the federal purpose of functional replacement of publicly owned facilities; while the department may not pay for the functional replacement of improvements without considering the value of the improvement, the department may, in appropriate cases, make payments which reflect special values approximating the replacement costs of the improvement. 1973 Op. Att'y Gen. No. 73-186.

32-5-20. "State Public Transportation Fund" defined.

As used in this article, the term "State Public Transportation Fund" means that money the expenditures of which are controlled and supervised by the department by virtue of paragraph (2) of subsection (a) of Code Section 32-2-2.

(Code 1933, § 95A-703, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Motor fuel and road taxes, T. 48, C. 9.

32-5-21. Priority of expenditures from fund.

Subject to the restrictions on expenditures imposed by Code Section 32-5-23, the State Public Transportation Fund shall be expended by the department in the following order:

  1. To pay the rentals on lease contracts entered into pursuant to the authority of the Constitution of Georgia;
  2. To pay into the State of Georgia Guaranteed Revenue Debt Common Reserve Fund the amount of the highest annual debt service requirements for an issue of guaranteed revenue debt for public road projects initiated pursuant to Code Section 32-10-67, upon its issuance, when the guarantee of the specific issue has been authorized by an appropriation of moneys governed by Article III, Section IX, Paragraph VI(b) of the Constitution and the appropriation meets the requirements for such debt as provided by Article VII, Section IV, Paragraph III(b) of the Constitution;
  3. To pay the costs of operating the department and for any emergencies or unusual situations;
  4. To pay the costs necessary to comply with the conditions of federal-aid apportionments to the state for the planning, surveying, constructing, paving, and improving of the public roads in Georgia;
  5. As directed from time to time by appropriations Acts; and
  6. After the requirements set out in the foregoing provisions of this Code section have been met, the remainder of the State Public Transportation Fund to be expended to pay the costs of maintaining, improving, constructing, and reconstructing the public roads of the state highway system, for maintaining roads within and leading to state parks, and for constructing public roads by department forces.

(Code 1933, § 95A-704, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 56; Ga. L. 1991, p. 1355, § 2; Ga. L. 2009, p. 976, § 11/SB 200.)

RESEARCH REFERENCES

ALR.

- Constitutionality of statutory provisions as to political corporations or divisions which shall bear cost of establishing or maintaining highways, 2 A.L.R. 746; 123 A.L.R. 1462.

32-5-22. Other expenditures from fund.

Expenditures from the State Public Transportation Fund may be made, under such conditions as the department may provide, for streets, driveways, and parking areas located upon the property of and serving:

  1. Public schools;
  2. Colleges of the university system;
  3. State agencies and governments of political subdivisions; and
  4. Hospitals constructed with the assistance of financial grants from the federal government, authorized by Title 42, Chapter 6A, Subchapter IV, United States Code, as amended.

(Code 1933, § 95A-705, enacted by Ga. L. 1973, p. 947, § 1.)

32-5-23. Limitations on expenditures from fund.

Notwithstanding Code Section 32-5-22 and except as expressly authorized elsewhere in this title, no funds from the State Public Transportation Fund shall be expended for the construction or maintenance of:

  1. Private driveways, roads, or bridges; or
  2. Public roads that have since been abandoned.

(Code 1933, § 95A-706, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32.)

Cross references.

- Abandonment of public roads, T. 32, C. 7.

32-5-24. Authorization of expenditure for public roads serving planned communities.

Reserved. Repealed by Ga. L. 2015, p. 385, § 2-6/HB 252, effective July 1, 2015.

Editor's notes.

- This Code section was based on Code 1933, § 95A-706.1, enacted by Ga. L. 1974, p. 1215, § 3; Ga. L. 1982, p. 3, § 32.

Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

32-5-25. Use of fund in regard to acquisition of rights of way.

Whenever property is acquired under subsection (e) of Code Section 32-3-3, all expenses of the acquisition thereof, including the purchase price and all direct and consequential damages awarded in any proceeding brought to condemn any such right of way, shall be paid by the county in which such right of way or portion thereof is situated. When such right of way or portion thereof lies within the limits of a municipality, acquisition expenses shall be paid by such municipality unless the county concerned agrees to procure such right of way on behalf of the municipality. However, nothing contained in this Code section shall prevent the department from using the State Public Transportation Fund to acquire such right of way, to pay any damage awarded on account of the location of any road that is a part of the state highway system, or to assist a county or municipality in so doing. Furthermore, nothing in this Code section shall be construed to authorize an expenditure from the State Public Transportation Fund for the procurement of a right of way for a road to be constructed on a county road system or municipal street system except as otherwise provided by law or by agreement between the federal government and the department.

(Code 1933, § 95-1721, enacted by Ga. L. 1935, p. 160, § 1; Code 1933, § 95A-707, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Acquisition of rights of way within municipalities for state highway system, § 32-4-90.

OPINIONS OF THE ATTORNEY GENERAL

No conflict of interest was created by a special assistant Attorney General representing the owner of property condemned by a county for road purposes. 1983 Op. Att'y Gen. No. U83-64.

RESEARCH REFERENCES

ALR.

- Constitutionality of state legislation to reimburse public utilities for cost of relocating their facilities because of highway construction, conditioned upon federal reimbursement of the state under the terms of Federal-Aid Highway Act (23 U.S.C. § 123), 75 A.L.R.2d 419.

32-5-26. Reimbursement of counties and municipalities in regard to acquisition of rights of way.

The department shall be required to reimburse any county or municipality of this state the sums actually expended by it in accordance with subsection (e) of Code Section 32-3-3 where construction on the right of way so acquired by the county or municipality has not been begun within ten years from the date title to such right of way was acquired in the name of the department.

(Ga. L. 1947, p. 1186, § 1; Code 1933, § 95A-708, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 18.)

32-5-27. Allocation formula development and implementation.

  1. The Planning Division of the department and the director of planning shall develop an allocation formula for:
    1. A state-wide transportation asset management program;
    2. A state-wide transportation asset improvement program; and
    3. A local maintenance and improvement grant program.

      Funds from the State Public Transportation Fund shall be allocated by the department pursuant to such formula as further defined in subsections (b) through (d) of this Code section and as appropriated by the General Assembly. Every four years, concurrent with the renewal of the state-wide strategic transportation plan, the division and the director shall update the data used in the allocation formula and shall review the distributional components of the formula and at such time may amend the formula as necessary to support implementation of the plans provided for in Code Section 32-2-22.

  2. Funds appropriated for the state-wide transportation asset management program shall be allocated pursuant to the long-range state-wide strategic transportation plan and shall be available for administration, maintenance, operations, and rehabilitation of infrastructure.
    1. Funds allocated for the state-wide transportation asset improvement program shall be allocated for capital construction projects, which may include new capacity, expansion of current infrastructure, safety improvements, or completion of, additions to, and capital improvement of state strategic corridors and economic development highways, including but not limited to those identified pursuant to Code Section 32-4-22. Recommendations for appropriation to the state-wide transportation asset improvement program shall include consideration of current and future regional population and regional employment. Local funding matches may be required.
    2. A portion of this allocation shall be a specific itemized and prioritized project list and such portion shall be not less than 10 percent nor more than 20 percent of the aggregate allocation from the State Public Transportation Fund, subject to and consistent with the provisions of the state-wide transportation improvement program, for such fiscal year. In developing such project list the division and the director may accept project recommendations from the Transportation Committees of the Senate and the House of Representatives, the Governor, metropolitan planning organizations, and nonmetropolitan areas. Such projects shall be prioritized in accordance with the state-wide strategic transportation plan. The division and the director shall submit such prioritized capital construction projects to the Governor for consideration in advance of the legislative session each year. The Governor shall submit all or a portion of such capital construction project requests as part of the Governor's budget recommendations to the General Assembly. The General Assembly may appropriate funds to any project on the prioritized project list.
    3. In addition to the portion of the state-wide transportation asset improvement program subject to the 10 percent limitation in paragraph (2) of this subsection, additional funds from the State Public Transportation Fund may be allocated to the state-wide transportation asset improvement program that are not subject to specific project selection.
  3. Funds allocated for the local maintenance and improvement grant program shall replace funds formerly available under the local assistance road program and state-aid program and shall be allocated by the Local Grants Division of the department to local governing authorities as grants or otherwise according to a funding formula developed by the division and the director. Such formula shall include considerations of paved and unpaved lane miles and vehicle miles traveled and may include population, employment, and local funding matches available, as well as other factors as may be determined by the division and the director. Funds allocated each fiscal year for the local maintenance and improvement grant program shall be not less than 10 percent nor more than 20 percent of the money derived from motor fuel taxes received by the state in the immediately preceding fiscal year, less the amount of refunds, rebates, and collection costs authorized by law and shall be used only for the purposes available for the proceeds of such taxes. Grants of such funds shall include provisions requiring adherence to adequate roadway standards, accounting practices, and applicable transportation plans. Additional allocations to this program from other funding sources shall be allocated subject to the requirements for usage attached to such funds.
  4. Funds allocated or appropriated pursuant to the provisions of this Code section shall not be subject to redirection or reservation pursuant to Chapter 12 of Title 45 or to budgetary reduction except as provided by subparagraph (b) of Paragraph VI of Section IX of Article III of the Constitution.
  5. Information pertaining to all funds received and expended by, through, or from the department, including but not limited to project numbers, let dates, estimated costs, actual costs, estimated completion date, status, priority ranking, congressional, House, and Senate districts, vendor names, contract amounts, and other pertinent contract information, shall be published on the website of the department as data in structured format. As used in this subsection, "structured format" means data that is presented in machine readable format.

(Code 1981, §32-5-27, enacted by Ga. L. 2009, p. 976, § 12/SB 200.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2009, a comma was deleted following "the division" in the last sentence of subsection (a).

32-5-27.1. Ten-Year Strategic Plan.

  1. In addition to the requirements contained in Code Section 32-5-27, the department shall annually prepare and submit to the General Assembly, for approval by the Senate Transportation Committee and the House Committee on Transportation, a ten-year strategic plan that outlines the use of department resources for the upcoming fiscal years.
  2. The Senate Transportation Committee and the House Committee on Transportation shall approve the plan and may make recommendations to the Senate Appropriations Committee and the House Committee on Appropriations for their consideration in developing the budget.
  3. Such plan shall identify at least the following categories and establish a target percentage of resources to be expended and the respective fund sources in each of the following areas:
    1. Construction of new highway projects;
    2. Maintenance of existing infrastructure;
    3. Bridge repairs and replacement;
    4. Safety enhancements; and
    5. Administrative expenses.
  4. Priority shall be given to expenditure of available resources for maintenance, expansion, and improvement of highway infrastructure in the areas of this state most impacted by traffic congestion and to areas of this state in need of highway infrastructure to aid in attracting economic development to the area.
  5. Such plan shall also bring forward all efficiencies found within the bureaucracy of the department and how those funds have been redirected to road construction.

(Code 1981, §32-5-27.1, enacted by Ga. L. 2015, p. 236, § 2-1/HB 170.)

Editor's notes.

- Ga. L. 2015, p. 236, § 8-1/HB 170, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Transportation Funding Act of 2015.'"

Ga. L. 2015, p. 236, § 8-2/HB 170, not codified by the General Assembly, provides: "It is the intention of the General Assembly, subject to appropriations and other constitutional obligations of this state, that year to year revenue increases be prioritized to fund education, transportation, and health care in this state."

Ga. L. 2015, p. 236, § 9-1(b)/HB 170, not codified by the General Assembly, provides: "Tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by the passage of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of this Act." This Act became effective July 1, 2015.

Law reviews.

- For article on the 2015 enactment of this Code section, see 32 Ga. St. U. L. Rev. 261 (2015).

ARTICLE 3 ALLOCATION OF FUNDS

32-5-30. Allocation of state and federal funds; items excluded from budgeting; budgeting periods; authorization of reduction of funds allocated.

    1. The total of expenditures from the State Public Transportation Fund under paragraphs (4), (5), and (6) of Code Section 32-5-21 plus expenditures of federal funds appropriated to the department shall be budgeted by the department over two successive budgeting periods every decade. However, such budgeting shall not include:
      1. Any federal funds specifically designated for projects that have been earmarked by a member of Congress in excess of appropriated funds;
      2. Any funds for a project undertaken for purposes of providing for the planning, surveying, constructing, paving, and improving of The Dwight D. Eisenhower System of Interstate and Defense Highways within the state; or
      3. Any funds for a project undertaken for purposes of providing for the planning, surveying, constructing, paving, and improving of any part of the state designated freight corridor, when such designation is made by the director of planning with approval from a majority of the board.
    2. The first budgeting period shall commence immediately following redistricting of congressional districts and shall be for a duration of five years. The second budgeting period shall continue until the beginning of the budgeting period following the next redistricting of congressional districts after each decennial census; provided, however, that if the congressional districts have been redrawn prior to a new decennial census, but after the approval of an existing map based on the last decennial census, the budgeting period shall include two successive budgeting periods. The first budgeting period shall end upon approval of the new redistricting and the second budgeting period shall commence from the date such redrawn congressional districts have been approved and shall continue until the next budgeting period following the next redistricting of congressional districts. The department shall budget such expenditures such that at the end of such budgeting period funding obligations equivalent to at least 80 percent of such total for such budgeting period shall have been divided equally among the congressional districts in this state, as those districts existed at the commencement of such budgeting period, for public road and other public transportation purposes in such districts.
    1. The board may upon approval by two-thirds of its membership authorize a reduction in the share of funds allocated pursuant to this Code section to any such congressional district if such supermajority of the board determines that such district does not have sufficient projects available for expenditure of funds within that district to avoid lapsing of appropriated funds.
    2. In the event that funding becomes available to the department which could not otherwise be allocated among congressional districts due to the allocation requirements of this Code section, the board may upon approval by a majority of its membership authorize a waiver of such allocation requirements to the extent necessary to allow the expenditure of such funding, and any project, projects, or portion thereof undertaken with such additional funding shall be in addition to those projects funded in accordance with the allocation requirements of this Code section in the fiscal year in which the additional funds became available or any subsequent year; provided, however, that any such waiver shall be valid only for the fiscal year in which it is granted, and any funds budgeted pursuant to a waiver granted by this paragraph which were not obligated by the end of such fiscal year shall not be obligated in violation of the allocation requirements of this Code section in a subsequent fiscal year unless a majority of the board again authorizes a waiver of the allocation requirements in such subsequent fiscal year.
  1. Provisions of this Code section may be waived pursuant to subsection (b) of Code Section 32-5-1 only upon approval by two-thirds of the membership of the board.

(Code 1981, §32-5-30, enacted by Ga. L. 1999, p. 112, § 2; Ga. L. 2000, p. 1483, § 1; Ga. L. 2001, p. 4, § 32; Ga. L. 2002, p. 1490, § 1; Ga. L. 2005, p. 724, § 1/SB 4; Ga. L. 2006, p. 72, § 32/SB 465; Ga. L. 2009, p. 8, § 32/SB 46; Ga. L. 2013, p. 67, § 2/HB 202; Ga. L. 2017, p. 774, § 32/HB 323.)

The 2017 amendment, effective May 9, 2017, part of an Act to revise, modernize, and correct the Code, substituted "provided, however, that if" for "provided, however, if" near the middle of the second sentence of paragraph (a)(2).

Law reviews.

- For article, "Standards for Smart Growth: Searching for Limits on Agency Discretion and the Georgia Regional Transportation Authority," see 36 Ga. L. Rev. 247 (2001). For note on 1999 enactment of this Code section, see 16 Ga. St. U. L. Rev. 233 (1999).

32-5-31. Duty of board to submit yearly report; requirements of report.

In each calendar year, the board shall provide to the Governor, Lieutenant Governor, and Speaker of the House of Representatives a written report detailing the allocation of funding obligations among congressional districts pursuant to Code Section 32-5-30 for the fiscal year ending June 30 of that same calendar year. Such report shall include without limitation the annual funding obligations and the projected expenditures of funds for the five-year period and any and all documents or information indicating how the department intends to allocate the applicable state and federal funds among congressional districts as required by Code Section 32-5-30 or a detailed explanation of why the department is unable to allocate such funds as required.

(Code 1981, §32-5-31, enacted by Ga. L. 1999, p. 112, § 2; Ga. L. 2000, p. 1483, § 1.)

Law reviews.

- For article, "Standards for Smart Growth: Searching for Limits on Agency Discretion and the Georgia Regional Transportation Authority," see 36 Ga. L. Rev. 247 (2001).

CHAPTER 6 REGULATION OF MAINTENANCE AND USE OF PUBLIC ROADS GENERALLY

Article 1 General Provisions.
Article 2 Dimensions and Weight of Vehicles and Loads.
Article 3 Control of Signs and Signals.
Part 1 PUBLIC ROADS GENERALLY.
Part 2 STATE HIGHWAY SYSTEM.
Article 4 Limited-access Roads.
Article 5 Commercial Property and Subdivisions.
Part 1 COMMERCIAL PROPERTY.
Part 2 SUBDIVISIONS.
Article 6 Public Utilities.
Part 1 IN GENERAL.
Part 2 RAILROADS.
Article 7 Transportation of Hazardous Materials.
Article 8 Control of Junkyards.
Cross references.

- Access to and use of public facilities by physically handicapped persons, T. 30, C. 3.

Penalty for operating unlicensed or unregistered vehicles on public highways, § 40-2-8.

Uniform rules of the road, T. 40, C. 6.

Procedure for passing stationary authorized emergency vehicles, stationary towing or recovery vehicles, or stationary highway maintenance vehicles, § 40-6-16.

RESEARCH REFERENCES

ALR.

- Liability, in motor vehicle-related cases, of governmental entity for injury, death, or property damage resulting from defect or obstruction in shoulder of street or highway, 19 A.L.R.4th 532.

Liability of governmental entity for damage to motor vehicle or injury to person riding therein resulting from collision between vehicle and domestic animal at large in street or highway, 52 A.L.R.4th 1200.

Highway contractor's liability to highway user for highway surface defects, 62 A.L.R.4th 1067.

Governmental tort liability for detour accidents, 1 A.L.R.5th 163.

ARTICLE 1 GENERAL PROVISIONS

32-6-1. Obstructing, encroaching on, or injuring public roads.

  1. It shall be unlawful for any person to obstruct, encroach upon, solicit the sale of any merchandise on, or injure materially any part of any public road. For purposes of this Code section, the term "obstruct" shall include without limitation the causing of any buildup of rock, gravel, mud, dirt, chemicals, or other materials by continued ingress or egress of vehicles or of any natural waters dammed or redirected by diversion to an extent which presents a hazard to the traveling public.
  2. Any person who unlawfully obstructs, encroaches upon, or injures said public road shall be responsible for reimbursing the Department of Transportation or the applicable local governing authority in the case of a road which is part of a county road system or municipal street system for the costs of removal of said obstructions or encroachments and the costs of repairs to the public road incurred by such department or local governing authority, including any costs associated with traffic management; provided, however, that such costs shall be limited to those costs which are directly incurred from such damages. Costs incurred for traffic management may include, but not be limited to, costs incurred for flagging, signing, or provision of detours, provided that these activities are directly caused by the obstruction, encroachment, or injury to the public road system. The court may, in addition to any other sentence authorized by law, order a person convicted of violating this Code section to make such restitution for the offense.
  3. Nothing in this Code section shall abridge or limit any authority provided by law for the installation and operation of vending machines at welcome centers, tourist centers, and safety rest areas. Nothing in this Code section shall limit in any way the department's authority to lease property to state or federal agencies, counties, or municipalities as provided for in Code Section 32-7-5, or limit the Department of Transportation's ability to grant a license to any utility or railroad corporation as defined in Code Section 46-1-1.

(Code 1933, § 95A-903, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1979, p. 132, § 4; Ga. L. 1988, p. 1431, § 1; Ga. L. 1993, p. 315, § 1; Ga. L. 2002, p. 1126, § 4.)

Cross references.

- Further provisions regarding obstruction of public roads, § 16-11-43.

Prohibition against interference with public roads and streets by mass picketing near site of labor dispute, § 34-6-5.

Law reviews.

- For article, "Recommendations Regarding Control of Outdoor Advertising Along the Interstate Highway System in Georgia," see 14 Mercer L. Rev. 308 (1963).

JUDICIAL DECISIONS

Section's applicability to structures on private property.

- O.C.G.A. § 32-6-1 does not apply to structures which are on private property adjacent to public roads. Smith v. Hiawassee Hdwe. Co., 167 Ga. App. 70, 305 S.E.2d 805 (1983).

Applicability to operation of and parking vehicles.

- O.C.G.A. § 32-6-1 does not in any way regulate vehicles used upon state highways, and therefore does not authorize the conviction of a person for obstructing and encroaching upon a public road resulting from operating and parking vehicles. Cartwright v. State, 197 Ga. App. 868, 399 S.E.2d 736 (1990).

O.C.G.A. § 32-6-1 does not apply to improperly parked tractor-trailer, which is a parked vehicle rather than a structure. Southern Intermodal Logistics, Inc. v. Coleman, 175 Ga. App. 853, 334 S.E.2d 888 (1985).

Department can require removal of obstructions.

- Management and control of the right of way of the state's system of roads is vested in the Department of Transportation, and the department can require the removal of any obstruction placed thereon without express permission. Crider v. Kelley, 232 Ga. 616, 208 S.E.2d 444 (1974).

Bridge partially blocking traffic lights.

- Railroad's bridge, which partially blocked traffic lights at a nearby intersection, did not infringe on the public right-of-way, when the space provided by the bridge for the public right-of-way adequately allowed for the safe and unimpeded flow of traffic thereunder and the traffic lights were not part of the bridge's structure. City of Fairburn v. Cook, 188 Ga. App. 58, 372 S.E.2d 245, cert. denied, 188 Ga. App. 911, 372 S.E.2d 245 (1988).

OPINIONS OF THE ATTORNEY GENERAL

Authority to issue license for rail line.

- Department of Transportation has authority to issue a revocable license to a company constructing and operating a rapid rail passenger service line to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att'y Gen. No. 95-45.

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 31.

C.J.S.

- 40 C.J.S., Highways, § 335 et seq.

ALR.

- Constitutionality of statute or ordinance imposing upon abutting owners or occupants duty in respect of care or condition of street or highway, 58 A.L.R. 215.

Municipality's power to permit private owner to construct building or structure overhanging or crossing the air space above public street or sidewalk, 76 A.L.R.2d 896.

Relative rights and liabilities of abutting owners and public authorities in parkways in center of street, 81 A.L.R.2d 1436.

Liability of private landowner for vegetation obscuring view at highway or street intersection, 69 A.L.R.4th 1092.

32-6-2. Authority of department, counties, and municipalities to regulate parking; parking vehicles or leaving vehicles unattended on right of way of public road on state highway system.

Notwithstanding Code Section 40-6-200 and Code Sections 40-6-202 through 40-6-204:

  1. The department may regulate and prohibit the parking of any type of vehicle on any public road on the state highway system, including extensions thereof into or through municipalities. Whenever any state or local law enforcement officer finds a vehicle parked in violation of law or the department's regulations, such officer or employee is authorized to move such vehicle or require the driver or other person in charge of the vehicle to move the same. If the vehicle is unattended, such officer is authorized to remove or provide for the removal of such vehicle to the nearest garage or other place of safety at the owner's expense. State or local law enforcement officers and the department are further authorized, with or without the consent of the owner, to remove or have removed any obstruction, cargo, or personal property which is abandoned, unattended, or damaged as a result of a vehicle accident which the department determines to be a threat to public health or safety or to mitigate traffic congestion, and any person or towing service that is removing an obstruction, cargo, or personal property at the location of such obstruction, cargo, or personal property upon instruction by a law enforcement officer, an official of a fire department acting under the authority of paragraph (1) of Code Section 25-3-1 or paragraph (3) of Code Section 25-3-2, or an official of the department shall be liable only for gross negligence;
  2. A county may regulate and control the parking of vehicles on the county road system and to this end the county may place parking meters on or immediately adjacent to any or all such roads, except extensions into a municipality, for the purpose of authorizing timed parking in designated spaces upon the payment of a charge for such privilege. A county may also place such parking meters on or adjacent to any public road on the state highway system located within the county and outside the corporate limits of a municipality when authorized by the department pursuant to paragraph (1) of this Code section;
  3. A municipality may regulate and control the parking of vehicles on its municipal street system and on extensions of a countyroad system within its corporate limits and to this end may place parking meters on or immediately adjacent to any or all of such roads for the purpose of authorizing timed parking in designated spaces upon the payment of a charge for such privilege. A municipality also may place such parking meters on or adjacent to any public road on the state highway system located within the corporate limits of the municipality when authorized by the department pursuant to paragraph (1) of this Code section; and
  4. It shall be unlawful for any person to park or leave unattended any vehicle upon the right of way of any public road on the state highway system for over 48 hours.

(Code 1933, § 95A-904, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1985, p. 149, § 32; Ga. L. 1993, p. 370, § 1; Ga. L. 2000, p. 951, § 2-3; Ga. L. 2005, p. 334, § 12-1/HB 501; Ga. L. 2007, p. 170, § 1/HB 231.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2006, "county road" was substituted for "count yroad" in the first sentence of paragraph (3).

Law reviews.

- For article, "Recommendations Regarding Control of Outdoor Advertising Along the Interstate Highway System in Georgia," see 14 Mercer L. Rev. 308 (1963).

JUDICIAL DECISIONS

Cited in Old Republic Union Ins. Co. v. Floyd Beasley & Sons, Inc., 250 Ga. App. 673, 551 S.E.2d 388 (2001).

OPINIONS OF THE ATTORNEY GENERAL

Removal of unattended vehicles by law enforcement officers.

- Any vehicle left unattended for more than 48 hours on the right of way of a public road within the State Highway System may be removed by state or local law enforcement officers. 1973 Op. Att'y Gen. No. 73-165.

Municipal regulation of streets in State Highway System.

- Municipality may not, by ordinance, seek to regulate streets which are a part of the State Highway System, unless the municipality is attempting to place parking meters on or adjacent to a road which is a part of the State Highway System, and has been first authorized by the department to place the parking meters; or the municipality is attempting to erect or maintain a traffic-control device on a road which is a part of the State Highway System, and written approval has first been obtained from the department. 1974 Op. Att'y Gen. No. U74-94.

RESEARCH REFERENCES

ALR.

- Validity of restrictions as to points at which jitney bus passengers may be taken on and discharged, 6 A.L.R. 110.

32-6-3. Deposit of driver's license with arresting officer in lieu of bail or incarceration; driver's failure to appear before proper judicial officer; applicability of Code section to foreign licenses.

Reserved. Repealed by Ga. L. 1999, p. 81, § 32, effective April 5, 1999.

Editor's notes.

- This Code section was based on Code 1933, § 95A-1101, enacted by Ga. L. 1978, p. 1989, § 4. For present provisions, see Code Section 17-6-11.

32-6-4. Removal of natural or manmade obstructions, cargo, or personal property during state of emergency.

State or local law enforcement officers, including fire department officials, and the department are authorized, upon the issuance of an executive order by the Governor declaring a state of emergency, with or without the consent of the owner, to remove or have removed any natural or manmade obstruction, cargo, or other personal property which is abandoned, unattended, or damaged and the law enforcement officer or the department determines such object to be a threat to public health or safety or to be contributing to traffic congestion. Any person, contractor, towing service, or other entity that is removing an obstruction, cargo, or other personal property pursuant to the instruction of a law enforcement officer, an official of a fire department acting under the authority of paragraph (1) of Code Section 25-3-1 or paragraph (3) of Code Section 25-3-2, or the department, and under the provisions of this Code section, shall be liable for damage or harm at the location where the obstruction, cargo, or other personal property was left abandoned or unattended, only when the person, contractor, towing service, or other entity was grossly negligent in the performance of his or her assigned duties; provided, however, nothing in this Code section shall limit liability for any damage or harm caused at a location different from the location where the obstruction, cargo, or other personal property was left abandoned or unattended.

(Code 1981, §32-6-4, enacted by Ga. L. 2011, p. 583, § 8/HB 137.)

32-6-5. Closure of or limiting access to roads due to declared state of emergency for inclement weather conditions; exception for certain vehicle operators.

  1. The department may close or limit access to any portion of road on the state highway system due to a declared state of emergency for inclement weather conditions that results in dangerous driving conditions. There shall be erected or posted signage of adequate size indicating that a portion of the state highway system has been closed or access has been limited. When the department determines a road shall have limited access due to a declared state of emergency for inclement winter weather conditions, notice shall be given to motorists through posted signage that motor vehicles must be equipped with tire chains, four-wheel drive with adequate tires for existing conditions, or snow tires with a manufacturer's all weather rating in order to proceed. Such signage shall inform motorists that it shall be unlawful to proceed on such road without such equipment. With the exception of buses, operators of commercial motor vehicles as defined by Code Section 40-1-1 with four or more drive wheels traveling on a road declared as limited access due to a declared state of emergency for inclement winter weather conditions shall affix tire chains to each of the outermost drive wheel tires. Bus and motor coach operators shall affix tire chains to at least two of the drive wheel tires before proceeding on a road with limited access due to a declared state of emergency for inclement winter weather conditions. For purposes of this Code section, the term "tire chains" means metal chains which consist of two circular metal loops, positioned on each side of a tire, connected by not less than nine evenly spaced chains across the tire tread or any other traction devices as provided for by rules and regulations of the commissioner of public safety.
  2. A driver of a motor vehicle who causes an accident or blocks the flow of traffic while failing to comply with the requirements of subsection (a) of this Code section when access is limited on the state highway system due to a declared state of emergency for inclement weather conditions shall be fined up to $1,000.00.
  3. This Code section shall not apply to a tow operator towing a motor vehicle or traveling to a site from which a motor vehicle shall be towed or to emergency responders traveling the roadway in order to fulfill their duties.

(Code 1981, §32-6-5, enacted by Ga. L. 2012, p. 1343, § 6/HB 817; Ga. L. 2014, p. 807, § 1/HB 753.)

Administrative Rules and Regulations.

- Tire chains, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Public Safety, Chapter 570-37.

32-6-6. Camping on roadways; penalty.

  1. For purposes of this Code section, the term "camping" means temporary habitation outdoors as evidenced by one or more of the following actions: the erection or use of tents or other shelters; the laying down of sleeping bags, blankets, or other materials used for bedding; the placing or storing of personal belongings; the making of a fire; or the act of cooking.
  2. It shall be unlawful for any person to knowingly use any portion of road on the state highway system or any property owned by the department for camping.
  3. Nothing in this Code section shall prohibit the normal, customary, and temporary use of safety rest areas, welcome centers, tourist centers, and other property of the department or state highway system specifically designated for purposes of resting, sleeping, eating, or other similar activities by persons traveling by vehicle.
  4. This Code section shall not apply to state or local government officials or employees acting in their official capacity and while performing activities as part of their official duties and shall not apply to any employee of a contractor or subcontractor performing duties under a contract with the department.
  5. Any person convicted of violating this Code section shall be guilty of a misdemeanor.

(Code 1981, §32-6-6, enacted by Ga. L. 2018, p. 372, § 5/SB 445.)

Effective date.

- This Code section became effective July 1, 2018.

Cross references.

- Information for traveling public, § 32-2-4.

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting not required.

- Offenses arising from a violation of O.C.G.A. § 32-6-6 do not, at this time, appear to be offenses for which fingerprinting is required. 2018 Op. Att'y Gen. No. 18-3.

ARTICLE 2 DIMENSIONS AND WEIGHT OF VEHICLES AND LOADS

Cross references.

- Powers and duties of state fire marshal with regard to sale and storage of liquified petroleum gas, § 10-1-260 et seq.

Authority of Commissioner of Agriculture to stop and inspect commercial vehicles pursuant to enforcement of weights and measures law, § 10-2-6.

Required equipment for motor vehicles generally, T. 40, C. 8.

Georgia Forest Product Trucking Rules, § 46-1-1.

Administrative Rules and Regulations.

- Permits for vehicles or loads of excess weight or dimension, Official Compilation of the Rules and Regulations of the State of Georgia, State Department of Transportation, Chapter 672-2.

Public school bus inspection, Official Compilation of the Rules and Regulations of the State of Georgia, Department of Public Safety, Chapter 570-31.

32-6-20. General restrictions.

No vehicle or load shall be operated or moved upon the public roads of Georgia if a dimension or the weight of such vehicle or load exceeds the limitations specified in Code Sections 32-6-22 through 32-6-24 or in Code Section 32-6-26 unless exempted in Code Section 32-6-25 or authorized to do so by a permit issued pursuant to Code Section 32-6-28.

(Ga. L. 1927, p. 226, § 15; Code 1933, § 68-401; Code 1933, § 95A-953, enacted by Ga. L. 1973, p. 947, § 1.)

Cross references.

- Observing laws by motor carriers, § 40-1-122.

JUDICIAL DECISIONS

Cited in Wiles v. State, 161 Ga. App. 473, 288 S.E.2d 271 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Twin trailer vehicle subject to general weight and dimension limitations.

- While there is no express prohibition against the operation of twin trailers in Georgia, such a vehicle is subject to the weight and dimension limitations placed upon all vehicles by the General Assembly. 1980 Op. Att'y Gen. No. 80-9.

When Department of Transportation officers may selectively stop vehicles.

- Department of Transportation enforcement officers may not selectively stop vehicles unless the officers have an articulate and reasonable suspicion that the operator is violating, or the vehicle is in violation of, the law. 1987 Op. Att'y Gen. No. U87-31.

RESEARCH REFERENCES

ALR.

- Validity and applicability of statutes relating to use of highway by private motor carriers and contract motor carriers for hire, 175 A.L.R. 1333.

Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

Automobiles: construction and operation of statutes or regulations restricting the weight of motor vehicles or their loads, 45 A.L.R.3d 503.

32-6-21. Redesignated.

Reserved. Redesignated as Code Section 40-6-248.1 by Ga. L. 2006, p. 275, § 3-9/HB 1320, effective July 1, 2006.

Editor's notes.

- Ga. L. 2006, p. 275, § 3-9/HB 1320, redesignated former Code Section 32-6-21 as present Code Section 40-6-248.1.

Ga. L. 2006, p. 275, § 4-1/HB 1320 reserved the designation of this Code section.

32-6-22. Height of vehicles and loads.

  1. Except as authorized in subsection (b) of this Code section and except when so authorized by a permit issued pursuant to Code Section 32-6-28, no vehicle unladen or with a load shall exceed a height of 13 feet, six inches.
  2. On highways which constitute a part of The Dwight D. Eisenhower System of Interstate and Defense Highways as such term is used in 23 U.S.C. Section 127 and ramps or service streets which provide reasonable access thereto, no vehicle transporting motor vehicles (commonly known as automobile carriers) unladen or with a load shall exceed a height of 14 feet.

(Ga. L. 1927, p. 226, § 15; Code 1933, § 68-401; Ga. L. 1941, p. 449, § 1; Ga. L. 1956, p. 83, § 2; Ga. L. 1959, p. 27, § 1; Ga. L. 1964, p. 83, § 1; Ga. L. 1968, p. 30, § 1; Code 1933, § 95A-956, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1996, p. 1010, § 1; Ga. L. 2000, p. 136, § 32.)

OPINIONS OF THE ATTORNEY GENERAL

Traffic regulation.

- This section qualifies as a statute relating to traffic upon the public roads, streets, and highways, violation of which is punishable as a misdemeanor offense. 1979 Op. Att'y Gen. No. U79-14.

RESEARCH REFERENCES

ALR.

- Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

32-6-23. Width of vehicles and loads.

Unless otherwise provided in this Code section or exempted in Code Section 32-6-25 or so authorized by a permit issued pursuant to Code Section 32-6-28, no vehicle shall exceed a total outside width, including any load thereon, of 102 inches, exclusive of mirrors and accessories attached thereto, when operated on any street, road, or highway.

(Ga. L. 1927, p. 226, § 15; Code 1933, § 68-401; Ga. L. 1941, p. 449, § 1; Ga. L. 1951, p. 772, § 1; Ga. L. 1956, p. 83, § 2; Ga. L. 1959, p. 27, § 1; Ga. L. 1964, p. 83, § 1; Ga. L. 1968, p. 30, § 1; Code 1933, § 95A-957, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1979, p. 439, § 1; Ga. L. 1983, p. 1798, § 1; Ga. L. 1984, p. 22, § 32; Ga. L. 1984, p. 621, § 1; Ga. L. 1999, p. 567, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Promotion of safety and protection of public investment.

- O.C.G.A. §§ 32-1-10,32-6-23,32-6-24,46-7-61 (now repealed) and46-7-78 (now repealed) are intended to promote the safety of the traveling public and protect the public's investment in the public's roads and highways. 1981 Op. Att'y Gen. No. U81-17.

Traffic regulation.

- This section qualifies as a statute relating to traffic upon the public roads, streets, and highways, violation of which is punishable as a misdemeanor offense. 1979 Op. Att'y Gen. No. U79-14.

RESEARCH REFERENCES

ALR.

- Validity and applicability of statutes relating to use of highway by private motor carriers and contract motor carriers for hire, 175 A.L.R. 1333.

Liability for injury or damage caused by collision with portion of load projecting beyond rear or side of motor vehicle or trailer, 21 A.L.R.3d 371.

Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

32-6-24. Length of vehicles and loads.

  1. As used in this article, the term:
    1. "Bimodal semitrailer" means a detachable load-carrying unit designed to be attached to a coupling on the rear of a truck tractor by which it is partly supported during movement over the highway and designed either with retractable flanged wheels or to attach to a detachable flanged wheel assembly for movement on the rails.
    2. "Combination of vehicles" means a semitrailer pulled by a truck tractor or a semitrailer and trailer pulled by a truck tractor operating in a truck tractor-semitrailer-trailer combination.
    3. "Extendable semitrailer" means a semitrailer that has been manufactured for the purpose of extending the frame to increase the overall length for the purpose of transporting single-piece loads.
    4. "NHS" means the National Highway System.
    5. "Semitrailer" means a detachable load-carrying unit designed to be attached to a coupling on the rear of a truck tractor by which it is partly supported.
    6. "Trailer" means a detachable load-carrying unit designed to be attached to a coupling at the rear of a semitrailer and capable of support in operation without the truck tractor.
    7. "Truck tractor" means the noncargo-carrying power unit that operates in combination with a semitrailer or trailer, except that a truck tractor and semitrailer engaged in the transportation of automobiles may transport motor vehicles on part of the power unit.
  2. Unless exempted in Code Section 32-6-25 or so authorized by a permit issued pursuant to Code Section 32-6-28, the following length limits shall apply:
    1. Trailer and semitrailer lengths:
      1. Truck tractor-semitrailer-trailer combinations shall have trailers and semitrailers that do not exceed 28 feet in length;
      2. Truck tractor-semitrailer combinations shall have semitrailers that do not exceed 53 feet in length, unless signs are posted that indicate semitrailer length restrictions;
      3. On interstate and NHS routes, single-piece loads may be transported on an extendable semitrailer that exceeds 53 feet, provided that no pieces will be loaded end to end and the semitrailer does not exceed 75 feet in length; on roads other than the interstate and NHS routes, the foregoing provisions of this subparagraph shall also apply, except that the overall length shall not exceed 100 feet. Empty extendable semitrailers or extendable semitrailers transporting a single-piece load of 53 feet or less shall be required to maintain a semitrailer length of 53 feet or less. When the semitrailer is extended as described in this subparagraph, the rear extremity of each extendable semitrailer or load shall be marked with a four-inch multidirectional amber strobe light and with 18 inch bright red or orange warning flags on the rearmost of the load or semitrailer;
      4. Maxi-cube combinations shall have a cargo box that does not exceed 34 feet, provided that the pair of cargo boxes together does not exceed 60 feet and the overall length, including the power unit, does not exceed 65 feet; and
      5. Trailer and semitrailer length requirements in this paragraph shall not apply to automobile and boat transporters; however, no unit of the vehicle shall exceed 56 feet in length; and
    2. Overall truck tractor-semitrailer or truck tractor-semitrailer-trailer lengths:
      1. Maxi-cube combinations shall have an overall length that does not exceed 65 feet;
      2. Saddlemount and saddlemount with fullmount combinations shall have an overall length that does not exceed 97 feet; and
      3. All other combinations of truck tractor-semitrailer or truck tractor-semitrailer-trailer operated on roads other than interstate or the NHS shall have an overall length that does not exceed 100 feet, unless signs are posted that indicate length restrictions. This maximum length shall include the federal allowance for automobile and boat transporter loads to overhang up to three feet over the front of the vehicle and overhang up to six feet over the rear of the vehicle.

(Ga. L. 1927, p. 226, § 15; Code 1933, § 68-401; Ga. L. 1956, p. 83, § 2; Ga. L. 1959, p. 27, § 1; Ga. L. 1964, p. 83, § 1; Ga. L. 1968, p. 30, § 1; Code 1933, § 95A-958, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, §§ 35, 36; Ga. L. 1979, p. 439, § 2; Ga. L. 1980, p. 576, §§ 1-3; Ga. L. 1981, p. 133, § 1; Ga. L. 1983, p. 1798, § 2; Ga. L. 1985, p. 1002, § 1; Ga. L. 1987, p. 414, § 1; Ga. L. 1987, p. 1030, § 1; Ga. L. 1989, p. 1569, § 1; Ga. L. 1989, p. 693, § 1; Ga. L. 1990, p. 255, § 1; Ga. L. 1991, p. 94, § 32; Ga. L. 1992, p. 2467, § 1; Ga. L. 1993, p. 786, § 1; Ga. L. 1995, p. 990, § 1; Ga. L. 1996, p. 1010, § 2; Ga. L. 1999, p. 567, § 2; Ga. L. 1999, p. 828, § 1; Ga. L. 2000, p. 136, § 32; Ga. L. 2000, p. 1654, § 1; Ga. L. 2001, p. 4, § 32; Ga. L. 2010, p. 442, § 1/HB 1174; Ga. L. 2017, p. 720, § 1/HB 328.)

The 2017 amendment, effective July 1, 2017, substituted "six feet" for "four feet" near the end of the last sentence of subparagraph (b)(2)(C).

Cross references.

- Light, flag, or strobe lamp on projecting load, § 40-8-27.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "term" was substituted for "terms" at the end of the introductory language of subsection (a).

JUDICIAL DECISIONS

Delegation of authority constitutional.

- Delegation of authority to the Department of Transportation to determine which of the thousands of miles of state highways are suitable for the types of truck traffic governed by the statute is not unconstitutional. State v. Moore, 259 Ga. 139, 376 S.E.2d 877 (1989).

Enforcement of different limits violates equal protection clause.

- Enforcement of total length limits - i.e., combination of vehicle and load - for general freight transport that are different from those total length limits enforced as to live poultry transport violates the equal protection clause of the Georgia Constitution. State v. Moore, 259 Ga. 139, 376 S.E.2d 877 (1989).

Cited in Seabolt v. State, 174 Ga. App. 572, 330 S.E.2d 789 (1985).

OPINIONS OF THE ATTORNEY GENERAL

Preemption.

- 49 U.S.C. § 2311, which establishes certain minimum vehicle lengths, without reference to loads, did not preempt O.C.G.A. § 32-6-24 with regard to load lengths of automobile transporters on federally assisted highways. 1985 Op. Att'y Gen. No. U85-1.

Promotion of safety and protection of public investment.

- O.C.G.A. §§ 32-1-10,32-6-23,32-6-24,46-7-61 (now repealed) and46-7-78 (now repealed) are intended to promote the safety of the traveling public and protect the public's investment in the public's roads and highways. 1981 Op. Att'y Gen. No. U81-17.

Traffic regulation.

- This section qualifies as a statute relating to traffic upon the public roads, streets, and highways, violation of which is punishable as a misdemeanor offense. 1979 Op. Att'y Gen. No. U79-14.

RESEARCH REFERENCES

ALR.

- Validity, construction, and application of statutes or other regulations affecting the moving of buildings on highways, 83 A.L.R.2d 464.

Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

32-6-25. Exemptions for farming, agricultural, and forest management equipment.

The limitations of Code Section 32-6-23 as to width and of Code Section 32-6-24 as to length shall not apply to the following loads and vehicles, which may exceed such limitation without a permit: farming or agricultural equipment or forest management equipment, whether self-propelled or being hauled, when such vehicle or equipment is being operated during daylight hours upon a public road not part of The Dwight D. Eisenhower System of Interstate and Defense Highways by dealers or by the owner thereof or his agent within a radius of 40 miles of the property of the dealer or owner. The foregoing exemptions do not apply to vehicles hauling or transporting forest products.

(Ga. L. 1965, p. 206, § 1; Ga. L. 1968, p. 30, § 1; Code 1933, § 95A-954, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 532, § 1; Ga. L. 2000, p. 136, § 32.)

32-6-25.1. Exemptions for port vehicles used to transport cargo or containers.

The limitations of Code Section 32-6-23 as to width and of Code Section 32-6-24 as to length shall not apply to the following loads and vehicles, which may exceed such limitation without a permit: Any vehicle or equipment used for transporting cargo or containers between and within wharves, storage areas, or terminals within the facilities of any port under the jurisdiction of the Georgia Ports Authority when such vehicle or equipment is being operated upon any public road not part of The Dwight D. Eisenhower System of Interstate and Defense Highways by the owner thereof or his or her agent within a radius of ten miles of the port facility of origin and accompanied by an escort vehicle equipped with one or more operating amber flashing lights that are visible from a distance of 500 feet.

(Code 1981, §32-6-25.1, enacted by Ga. L. 1999, p. 784, § 2; Ga. L. 2000, p. 136, § 32.)

32-6-26. Weight of vehicle and load.

  1. As used in this Code section, the term:
    1. "Federal bridge formula" means:

      CLICK TO VIEWFORMULA

      Where W = the overall gross weight on any group of two or more consecutive axles to the nearest 500 pounds, L = the distance in feet between the extreme of any group of two or more consecutive axles, and N = the number of axles in the group under consideration.

    2. "Lift axle" means any axle on any vehicle manufactured after July 1, 1978, which axle may be raised or lowered with respect to the horizontal plane of the vehicle.
    3. "Single axle" means all the wheels whose centers may be included between two parallel transverse vertical planes 40 inches apart.
    4. "State bridge formula" means:

      CLICK TO VIEWFORMULA

      Where W = the maximum allowable gross weight of the vehicle or combination of vehicles to the nearest 500 pounds, L = the distance in feet between the first and last axles of the vehicle or combination of vehicles, and N = the number of axles on the vehicle or combination of vehicles.

    5. "Tandem axle" means two or more consecutive axles, excluding the steering axle, which extend across the full width of the vehicle and whose centers may be included between parallel vertical planes spaced more than 40 inches apart but not more than 216 inches apart.
  2. Except when authorized by a permit issued pursuant to Code Section 32-6-28 and except as otherwise provided in this Code section:
    1. No vehicle equipped with high pressure pneumatic, solid rubber, or cushion tires and operated upon any public road of this state shall carry a load on any wheel which exceeds 8,000 pounds by more than 13 percent or a load on any single axle which exceeds 16,000 pounds by more than 13 percent; and
    2. No vehicle equipped with low pressure pneumatic tires and operated upon any public road of this state shall carry a load on any wheel which exceeds 9,000 pounds by more than 13 percent or a load on any single axle which exceeds 18,000 pounds by more than 13 percent.
      1. On all highways within this state which are not interstate highways, the maximum total gross weight authorized for any vehicle and load shall not exceed 80,000 pounds; the maximum load authorized on any single axle shall be as provided in subsection (b) of this Code section; the maximum load on any tandem axle shall be 40,680 pounds; and subject to subparagraph (B) and subparagraph (C) of this paragraph, the maximum total gross weight authorized for any vehicle and load shall be the maximum load authorized on any single axle multiplied by the number of axles with which the vehicle is equipped.
      2. For vehicles and loads with an actual total gross weight between 73,280 pounds and 80,000 pounds, the maximum total gross weight authorized for the vehicle and load shall be determined by applying the state bridge formula.
      3. For any vehicle equipped with four axles, the maximum total gross weight authorized for the vehicle and load shall be 70,000 pounds.
    1. Reserved.
    2. No lift axle may be used in computing the maximum total gross weight authorized for any vehicle or load.
      1. On all highways within this state which are interstate highways, the maximum total gross weight authorized for any vehicle and load shall not exceed 80,000 pounds; the maximum load authorized on any single axle shall be as provided in subsection (b) of this Code section; and, except as provided in subparagraph (B) of this paragraph, the maximum overall gross weight in pounds on a group of two or more consecutive axles shall be determined by applying the federal bridge formula. In applying the formula, no lift axle shall be counted as an individual or additional axle when determining the maximum overall gross weight.
      2. Notwithstanding the provisions of subparagraph (A) of this paragraph, the maximum load authorized on any tandem axle shall be 34,000 pounds, and any two consecutive sets of tandem axles may carry a gross load of 34,000 pounds each if the overall distance between the first and last axles of such consecutive sets of tandem axles is 36 feet or more; however, except for vehicles and combinations of vehicles exceeding 55 feet in length, the maximum gross weight authorized on a tandem axle for a vehicle or combination of vehicles carrying a gross weight of less than 73,280 pounds shall be 40,680 pounds.
    1. If at any time federal law authorizes any weight greater than that authorized by this subsection, such greater weight under federal law shall be authorized on the interstate highways within this state.
  3. Subject to the provisions of this article, the department shall be authorized, on behalf of the state, to enter into agreements with the United States Secretary of Transportation as provided in Section 127 of Title 23 of the United States Code, relating to the control of vehicle weight and width limitations, which agreements shall exempt certain vehicles from the requirements of subsection (d) of this Code section. The department shall be authorized to take action in the name of the state to comply with the terms of any such agreement and to promulgate any rules and regulations necessary to ensure the department's compliance with federal laws and to provide for the issuance of the special permits required by this Code section.
  4. On any public road of a county road system, the maximum total gross weight of a vehicle and load shall not exceed 56,000 pounds unless the vehicle is making a pickup or delivery on such road; except that if a county road is constructed to the same standards as those highways of this state which are interstate highways and is authorized as a designated local truck route pursuant to official resolution of the county, the maximum weight limits for such designated local truck route shall be the same as those for highways in this state which are not interstate highways as provided by paragraph (1) of subsection (c) of this Code section. The county shall notify the department of any roads designated by the county as a local truck route within 90 days of such designation.
    1. The weight limitations provided for in this Code section, except the limitation in subsections (f) and (h) of this Code section, may be exceeded on any public road within this state which is not an interstate highway, or when making a pickup or delivery on any public road of a county road system, without a permit only when the load on any single axle does not exceed 23,000 pounds, the load on any tandem axle does not exceed 46,000 pounds, and the maximum total gross weight of the vehicle and load does not exceed 80,000 pounds when:
      1. Hauling forest products from the forest where cut to the first point of marketing or processing;
      2. Hauling live poultry or cotton from a farm to a processing plant;
      3. Hauling feed from a feed mill to a farm;
      4. Hauling granite, either block or sawed, or any other naturally occurring raw ore or mineral for further processing, from the quarry or stockpile area to a processing plant located in the same or an adjoining county and construction aggregates hauled to any point, unless otherwise prohibited;
      5. Hauling solid waste or recovered materials from points of generation to a solid waste handling facility or other processing facility;
      6. Hauling concrete that is in a freshly mixed and unhardened state for delivery to a customer; or
      7. Hauling poultry waste from the point of origin to a farm.

        No lift axle may be used in computing the maximum total gross weight authorized for any vehicle or load under this paragraph.

    2. A vehicle which is hauling the products listed in subparagraphs (A) through (F) of paragraph (1) of this subsection or which is hauling any other agricultural or farm product from a farm to the first point of marketing or processing shall be permitted a 5 percent variance from the weight limitations in paragraph (1) of this subsection within a 100 mile radius of the farm or point of origin. Any person who violates the load limitations provided for in this paragraph by exceeding the 5 percent variance per single axle, tandem axle, or maximum total gross weight shall be fined on the basis of the weight limitations of paragraph (1) of this subsection, including the variance allowed by this paragraph.
    3. A vehicle which is hauling the products listed in subparagraph (G) of paragraph (1) of this subsection shall be permitted a 5 percent variance from the weight limitations in paragraph (1) of this subsection within a 250 mile radius of the farm or point of origin. Any person who violates the load limitations provided for in this paragraph by exceeding the 5 percent variance per single axle, tandem axle, or maximum total gross weight shall be fined on the basis of the weight limitations of paragraph (1) of this subsection and not on the basis of the variance allowed by this paragraph.
    4. Any vehicle carrying a load as authorized in this subsection at night shall be equipped with lights clearly visible for a distance of not less than 300 feet from the front and rear of the vehicle.
  5. Notwithstanding any provision of this Code section to the contrary, no vehicle or combination of vehicles shall be operated over any bridge with a posted limit which is less than the total gross weight of the vehicle and its load.
    1. Any vehicle which can be made to comply with the requirements of this Code section by shifting the load and which is then loaded to comply with this Code section shall not be held to be in violation of this Code section.
    2. On all highways within this state which are not interstate highways:
      1. Except as provided in subparagraph (B) of this paragraph, for all vehicles, fines for violations of the total gross weight limitations provided for in subsection (c) of this Code section shall be based on the amount by which the actual weight of the vehicle and load exceeds the allowable maximum weight determined under subsection (c) of this Code section.
      2. For vehicles equipped with four axles, fines for violations of the total gross weight limitations provided for in subsection (c) of this Code section shall be based on the amount by which the actual weight of the vehicle and load exceeds 70,000 pounds.
  6. Except as provided in subsections (f) and (h) of this Code section, weight limits and axle definitions for any bimodal semitrailer, semitrailers, and trailers operated on highways and public roads within this state shall be weight limits and axle definitions authorized by federal law governing interstate highways.

(Ga. L. 1927, p. 226, § 16; Ga. L. 1931, Ex. Sess., p. 114, § 2; Code 1933, §§ 68-402, 68-702; Ga. L. 1941, p. 449, §§ 1-3; Ga. L. 1955, p. 392, §§ 1, 2; Ga. L. 1956, p. 83, § 2; Ga. L. 1964, p. 83, § 1; Ga. L. 1968, p. 30, §§ 1, 2; Code 1933, § 95A-959, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1111, § 1; Ga. L. 1975, p. 68, § 1; Ga. L. 1978, p. 1965, § 1; Ga. L. 1978, p. 1989, § 1; Ga. L. 1980, p. 576, § 4; Ga. L. 1983, p. 3, § 23; Ga. L. 1983, p. 1798, §§ 3, 4; Ga. L. 1984, p. 621, § 2; Ga. L. 1987, p. 414, § 2; Ga. L. 1989, p. 693, §§ 2, 3; Ga. L. 1995, p. 862, § 1; Ga. L. 1996, p. 1512, §§ 2, 3; Ga. L. 1998, p. 1206, § 3; Ga. L. 2000, p. 136, § 32; Ga. L. 2002, p. 1484, § 1; Ga. L. 2004, p. 366, § 22; Ga. L. 2005, p. 601, § 2/SB 160; Ga. L. 2005, p. 822, § 1/HB 279; Ga. L. 2006, p. 72, § 32/SB 465; Ga. L. 2006, p. 292, § 1/HB 1106; Ga. L. 2007, p. 237, § 1/HB 536; Ga. L. 2008, p. 155, § 1/HB 981; Ga. L. 2011, p. 548, § 1/SB 54; Ga. L. 2012, p. 775, § 32/HB 942; Ga. L. 2012, p. 1343, § 7/HB 817.)

Cross references.

- Posting of bridge weight limit on county road, § 32-4-41.

Posting of bridge weight limit on municipal street, § 32-4-91.

Designated local truck route signs, § 32-6-50.

JUDICIAL DECISIONS

Conclusive presumption of road damage by overweight vehicles is constitutional.

- The conclusive presumption under O.C.G.A. § 32-6-27 of damage to the public roads caused by overweight vehicles does not deprive the person accused of violating O.C.G.A. § 32-6-26 of any constitutional right. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

It is constitutionally permissible for the state to enact a statute providing that any person who operates an overweight motor vehicle on the public roads shall be conclusively presumed to have damaged the roads, and requiring such person to recompense the state for such damage in accordance with a schedule pegging the amount of the damages to the poundage of excess weight. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

Section's failure to differentiate between timber and other freight haulers.

- Failure of O.C.G.A. § 32-6-26 to differentiate between timber haulers and other freight haulers does not render statute unconstitutional. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982) (decided prior to 1984 amendment).

Limited application exception not unconstitutional.

- When a limited exemption to highway weight requirements was granted for certain industries which could not take advantage of other statutory exceptions, there was no arbitrary decision violative of equal protection of those industries which were not granted the same limited exemptions since overall gross weights and axle load requirements still had to be met and the exemptions applied to short hauls on state roads. Department of Transp. v. Georgia Mining Ass'n, 252 Ga. 128, 311 S.E.2d 443 (1984).

"Tag axle," which permits the amount of weight borne by the axle to be adjusted by the driver from inside the truck through the manipulation of a switch which causes an air bag located between the axle and the frame of the trailer to inflate or deflate, is not a "lift axle" within the contemplation of paragraph (c)(3) of O.C.G.A. § 32-6-26. Anchor Motor Freight, Inc. v. Department of Transp., 199 Ga. App. 108, 404 S.E.2d 148, cert. denied, 199 Ga. App. 905, 404 S.E.2d 148 (1991).

Constitutional right to jury trial in administrative proceedings.

- There is no constitutional right to a jury trial in administrative proceedings when a driver is issued with an overweight citation. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

Person assessed can prosecute action for judicial review in superior court.

- Person issued an overweight vehicle assessment does have at least the statutory right to prosecute the action for judicial review of the administrative decision in the superior court of the county of his or her residence. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

Cited in Firestone Tire & Rubber Co. v. Hall, 152 Ga. App. 560, 263 S.E.2d 449 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Municipalities are authorized to regulate weight of vehicles using municipal streets as long as such regulations are reasonable and do not violate general maximum weight limits contained in O.C.G.A. § 32-6-26. 1982 Op. Att'y Gen. No. 82-20.

Equalization of load must be by physically shifting load.

- O.C.G.A. § 32-6-26 does not allow equalization by changing the position of the truck's "sliding tandem" or by changing the fifth wheel setting. Subsection (i) of O.C.G.A. § 32-6-26 requires the truck driver to physically shift the load so as to bring the load into compliance with Georgia's truck weight laws. 1992 Op. Att'y Gen. No. U92-21.

RESEARCH REFERENCES

ALR.

- Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

Automobiles: construction and operation of statutes or regulations restricting the weight of motor vehicles or their loads, 45 A.L.R.3d 503.

32-6-27. Enforcement of load limitations.

  1. Any person who violates the load limitation provisions of Code Section 32-6-26 shall be conclusively presumed to have damaged the public roads, including bridges, of this state by reason of such overloading and shall recompense the state for such damage in accordance with the following schedule:
    1. Five cents per pound for all excess weight over the allowed weight limitations, including any applicable variances;
    2. For the following vehicles, damages for excess weight shall be assessed at 125 percent times the rate imposed on offending vehicles operating without a permit:
      1. Where a vehicle is authorized to exceed the weight limitations of Code Section 32-6-26 by a permit issued pursuant to Code Section 32-6-28, the term "excess weight" means that weight which exceeds the weight allowed by such permit; and
      2. Where a vehicle is authorized to exceed the weight limitations of Code Section 32-6-26 by a permit issued pursuant to Code Section 32-6-28 as a superload permit or superload plus permit, the term "excess weight" means:
        1. Any single axle weight which exceeds any single axle weight allowed by such permit; and
        2. All weight greater than 150,000 pounds when the gross weight of the vehicle and load exceeds the gross weight allowed by such permit or when any axle spacing is less than that specified by such permit; or
    3. Any vehicle that utilizes idle reduction technology shall have any penalty for violating Code Section 32-6-26, except for subsections (f) and (h), calculated by reducing from the actual gross weight, single axle weight, tandem axle weight, or the allowed weight on any group of two or more axles the manufacturer's certified weight of the idle reducing technology or 550 pounds, whichever is less. The operator of the vehicle shall present written certification from the manufacturer specifying the weight of the idle reducing technology and demonstrate that the idle reducing technology is fully functional at all times when so requested by any law enforcement officer or employee of the Department of Public Safety.
      1. The Department of Public Safety is authorized to issue a warning to the owner or operator of any vehicle in violation of a maximum weight limit on a county road which is a designated local truck route under subsection (f) of Code Section 32-6-26 but for which signs have not been placed or maintained as required under paragraph (2) of subsection (c) of Code Section 32-6-50 upon the first such violation and to issue a citation to such owner or operator for a subsequent such violation.

        (A) The Department of Public Safety is authorized to issue a citation to the owner or operator of any vehicle in violation of a maximum weight limit on a bridge for which signs have been placed and maintained as required under paragraph (3) of Code Section 32-4-41 or subsection (a.1) of Code Section 32-4-91.

      2. The Department of Public Safety is authorized to issue a warning to the owner or operator of any vehicle in violation of a maximum weight limit on a bridge but for which signs have not been placed or maintained as required under paragraph (3) of Code Section 32-4-41 or subsection (a.1) of Code Section 32-4-91 upon the first such violation and to issue a citation to such owner or operator for a subsequent such violation.
  2. The schedules listed in paragraphs (1) and (2) of subsection (a) of this Code section shall apply separately to:
    1. The excess weight of the gross load; and
    2. The sum of the excess weight or weights of any axle or axles;

      provided, however, that where both gross load and axle weight limits are exceeded, the owner or operator shall be required to recompense the state only for the largest of the money damages imposed under paragraphs (1) and (2) of this subsection.

    1. Within 30 days after the issuance of the citation, the owner or operator of any offending vehicle shall pay the amount of the assessment to the Department of Public Safety or request an administrative determination of the amount and validity of the assessment.
    2. The right to an administrative determination of the amount and validity of the assessment shall be granted only to the owner or operator of an offending vehicle.
    3. The party requesting an administrative determination of the amount and validity of the assessment shall deposit the amount of the assessment with the Department of Public Safety, within the time permitted to request such determination, before the determination will be granted. In the event the assessment is determined to be erroneous, the Department of Public Safety shall make prompt refund of any overpayment after receipt of a final decision making such determination.
    4. If an administrative hearing is requested, it shall be held in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the rules and regulations of the Department of Public Safety. The scope of any such hearing shall be limited to a determination of:
      1. The weight of the offending vehicle;
      2. The maximum weight allowed by law on the roadway upon which the offending vehicle was operated; and
      3. Whether the operator had in his or her actual possession a valid oversize or overweight permit issued by the Department of Transportation allowing the vehicle to operate in excess of the maximum weight otherwise allowed by law on the roadway upon which the offending vehicle was operated.
    5. Any person who has exhausted all administrative remedies available within the Department of Public Safety and who is aggrieved by a final order of the Department of Public Safety is entitled to judicial review in accordance with Chapter 13 of Title 50.
    6. If a party requests an administrative determination of the amount and validity of the assessment and fails to appear without first obtaining permission from the administrative law judge or does not withdraw the request in writing no less than five days in advance of a scheduled hearing, the party shall be deemed in default and the citation shall be affirmed by operation of law. The party shall be deemed to owe the sum of $75.00 in addition to the amount due on the citation, which sum shall represent hearing costs.
  3. All moneys collected in accordance with this Code section shall be disposed of as follows:
    1. All moneys collected for violations of the weight limitations imposed by this article shall be remitted to the general fund of the state treasury;
    2. All moneys collected for violations of the height, width, or length limitations imposed by this article, after the appropriate statutory deductions, shall be retained by the governing authority of the county wherein the violation occurred for deposit in the general treasury of said county;
    3. Hearing costs imposed pursuant to paragraph (6) of subsection (c) of this Code section shall be retained by the Department of Public Safety;
    4. Reissuance fees imposed pursuant to paragraph (4) of subsection (g) of this Code section shall be retained by the Department of Revenue; and
    5. Restoration fees imposed pursuant to paragraph (1) of subsection (i) of this Code section shall be retained by the Department of Revenue.
  4. Any owner or operator of a vehicle which is operated on the public roads of this state in violation of the weight limitations provided in this article shall be required, in addition to paying the moneys provided in subsection (a) of this Code section, to unload all gross weight in excess of 6,000 pounds over the legal weight limit at the closest reasonable location.
  5. Any person authorized by law to enforce this article may seize the offending vehicle of an owner who fails or whose operator fails to pay the moneys prescribed in subsection (a) of this Code section and hold such vehicle until the prescribed moneys are paid. If the offending vehicle is not registered in this state, any person authorized by law to enforce this article may seize any vehicle owned or operated by an owner who fails or whose operator fails to pay the moneys prescribed in subsection (a) of this Code section and hold such vehicle until the prescribed moneys are paid. Any person seizing a vehicle under this subsection or subsection (e) of this Code section may, when necessary, store the vehicle; and the owner thereof shall be responsible for all reasonable storage charges thereon. When any vehicle is seized, held, unloaded, or partially unloaded under these subsections, the load or any part thereof shall be removed or cared for by the owner or operator of the vehicle without any liability on the part of the authorized person or of the state or any political subdivision because of damage to or loss of such load or any part thereof.
    1. Whenever any person, firm, or corporation violates this article and becomes indebted to the Department of Public Safety because of such violations and fails within 30 days of the date of issuance of the overweight assessment citation either to pay the assessment or appeal to the Department of Public Safety for administrative review, as provided for in subsection (c) of this Code section, such assessment shall become a lien upon the overweight motor vehicle so found to be in violation, which lien shall be superior to all liens except liens for taxes or perfected security interests established before the debt to the Department of Public Safety was created.
    2. Whenever any person, firm, or corporation requests an administrative review, it shall be held in accordance with Chapter 13 of Title 50, the "Georgia Administrative Procedure Act." In the event that the administrative law judge finds in favor of the Department of Public Safety, the person, firm, or corporation shall pay the assessment within 30 days after that decision becomes final or, if judicial review is had in accordance with Chapter 13 of Title 50, then within 30 days after final judicial review is terminated. If the person, firm, or corporation fails to pay the assessment within 30 days, such assessment shall become a lien as provided for under paragraph (1) of this subsection.
    3. The Department of Public Safety shall perfect the lien created under this subsection by sending notice thereof on a notice designated by the commissioner of public safety, by first-class mail or by statutory overnight delivery, to the owner and all holders of liens and security interests shown on the records of the Department of Revenue maintained pursuant to Chapter 3 of Title 40. Upon receipt of notice from the Department of Public Safety, the holder of the certificate of title shall surrender same to the state revenue commissioner for issuance of a replacement certificate of title bearing the lien of the department unless the assessment is paid within 30 days of the receipt of notice. The Department of Revenue may append the lien to its records, notwithstanding the failure of the holder of the certificate of title to surrender said certificate as required by this paragraph.
    4. Upon issuance of a title bearing the lien of the Department of Public Safety, or the appending of the lien to the records of the Department of Revenue, the owner of the vehicle or the holder of any security interest or lien shown in the records of the Department of Revenue may satisfy such lien by payment of the amount of the assessment, including hearing costs, if any, and payment of a reissuance fee of $100.00. Upon receipt of such amount, the Department of Public Safety shall release its lien and the Department of Revenue shall issue a new title without the lien.
    1. The Department of Public Safety, in seeking to foreclose its lien on the motor vehicle arising out of an overweight motor vehicle citation assessed under this article, may seek an immediate writ of possession from the court before whom the petition is filed, if the petition contains a statement of facts, under oath, by the Department of Public Safety, its agents, its officers, or attorney setting forth the basis of the petitioner's claim and sufficient grounds for issuance of an immediate writ of possession.
    2. The Department of Public Safety shall allege under oath specific facts sufficient to show that it is within the power of the defendant to conceal, encumber, convert, convey, or remove from the jurisdiction of the court the property which is the subject matter of the petition.
    3. The court before whom the petition is pending shall issue a writ for immediate possession, upon finding that the petitioner has complied with paragraphs (1) and (2) of this subsection. If the petitioner is found not to have made sufficient showing to obtain an immediate writ of possession, the court may, nevertheless, treat the petition as one being filed under Code Section 44-14-231 and proceed accordingly.
    4. When an immediate writ of possession has been granted, the Department of Public Safety shall proceed against the defendant in the same manner as provided for in Code Sections 44-14-265 through 44-14-269.
    1. Whenever any person, firm, or corporation violates this article and fails within 30 days of the date of issuance of the overweight assessment citation either to pay the assessment or appeal to the Department of Public Safety for an administrative review as provided for under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," the Department of Revenue may act to suspend the motor vehicle registration of the vehicle involved. However, if the person, firm, or corporation requests an administrative review, the Department of Revenue shall act to suspend the registration only after the issuance of a final decision favorable to the Department of Public Safety and the requisite failure of the person, firm, or corporation to pay the assessment. Upon such failure to pay the assessment, the Department of Revenue shall send a letter to the owner of such motor vehicle notifying the owner of the suspension of the motor vehicle registration issued to the motor vehicle involved in the overweight assessment citation. Upon complying with this subsection by paying the overdue assessment and upon submitting proof of compliance and paying a $10.00 restoration fee to the Department of Revenue, the state revenue commissioner shall reinstate any motor vehicle registration suspended under this subsection. In cases where the motor vehicle registration has been suspended under this subsection for a second or subsequent time during any two-year period, the Department of Revenue shall suspend the motor vehicle registration for a period of 60 days and thereafter until the owner submits proof of compliance with this subsection and pays the $150.00 restoration fee to the Department of Revenue.
    2. Unless otherwise provided for in this Code section, notice of the effective date of the suspension of a motor vehicle registration occurs when the owner has actual knowledge or legal notice thereof, whichever first occurs. For the purposes of making any determination relating to the restoration of a suspended motor vehicle registration, no period of suspension shall be deemed to have begun until ten days after the mailing of the notice required in paragraph (1) of this subsection.
    3. For the purposes of this subsection, except where otherwise provided, the mailing of a notice to a person at the name and address shown in records of the Department of Revenue maintained under Chapter 3 of Title 40 shall, with respect to the holders of liens and security interests, be presumptive evidence that such person received the required notice.
    4. For the purposes of this subsection, except where otherwise provided, the mailing of a notice to a person or firm at the name and address shown on the overweight assessment citation shall, with respect to owners and operators of vehicles involved in an overweight assessment, be presumptive evidence that such person received the required notice.
    5. The state revenue commissioner may suspend the motor vehicle registration of any offending vehicle for which payment of an overweight assessment is made by a check that is returned for any reason.
    6. For the purposes of this subsection, where any provisions require the Department of Public Safety or the Department of Revenue to give notice to a person, which notice affects such person's motor vehicle license plate, the mailing of such notice and the name and address shown on the notice of overdue assessment citation supplied by the Department of Public Safety, as required by this subsection, shall be presumptive evidence that such person received the required notice.

(a.1) (1) (A)The Department of Public Safety is authorized to issue a citation to the owner or operator of any vehicle in violation of a maximum weight limit on a county road which is a designated local truck route under subsection (f) of Code Section 32-6-26 and for which signs have been placed and maintained as required under paragraph (2) of subsection (c) of Code Section 32-6-50.

(Ga. L. 1956, p. 83, § 3; Code 1933, § 95A-960, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 37; Ga. L. 1978, p. 1989, § 2; Ga. L. 1981, p. 998, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 3, § 23; Ga. L. 1985, p. 149, § 32; Ga. L. 1992, p. 1236, § 2; Ga. L. 1998, p. 1206, § 4; Ga. L. 2000, p. 951, §§ 2-4, 2-5; Ga. L. 2002, p. 415, § 32; Ga. L. 2003, p. 450, § 1; Ga. L. 2005, p. 334, § 12-2/HB 501; Ga. L. 2005, p. 822, § 2/HB 279; Ga. L. 2006, p. 72, § 32/SB 465; Ga. L. 2007, p. 237, § 2/HB 536; Ga. L. 2010, p. 442, § 2/HB 1174; Ga. L. 2011, p. 548, § 2/SB 54; Ga. L. 2017, p. 720, § 2/HB 328.)

The 2017 amendment, effective July 1, 2017, substituted "550 pounds" for "400 pounds" near the end of the first sentence of paragraph (a)(3).

JUDICIAL DECISIONS

Conclusive presumption of road damage by overweight vehicles is constitutional.

- Conclusive presumption of damage to the public roads caused by overweight vehicles pursuant to O.C.G.A. § 32-6-27 does not deprive the person accused of violating O.C.G.A. § 32-6-26 of any constitutional right. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

It is constitutionally permissible for the state to enact a statute providing that any person who operates an overweight motor vehicle on the public roads shall be conclusively presumed to have damaged the roads, and requiring such person to recompense the state for such damage in accordance with a schedule pegging the amount of the damages to the poundage of excess weight. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

No opportunity to prove damages. There is certainly no constitutional requirement that the person accused of operating an overweight vehicle be given an opportunity to avoid the penalty or fine by proving that no perceptible damage to the roads in fact occurred in the driver's case. DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

Cited in Department of Transp. v. Georgia Mining Ass'n, 252 Ga. 128, 311 S.E.2d 443 (1984).

RESEARCH REFERENCES

ALR.

- State regulation of carriers by motor vehicle as affected by interstate commerce clause, 49 A.L.R. 1203; 62 A.L.R. 52; 85 A.L.R. 1136; 109 A.L.R. 1245; 135 A.L.R. 1358.

Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

Automobiles: construction and operation of statutes or regulations restricting the weight of motor vehicles or their loads, 45 A.L.R.3d 503.

32-6-28. Permits for excess weight and dimensions.

  1. Generally.
      1. The commissioner or an official of the department designated by the commissioner may, in his or her discretion, upon application in writing and good cause being shown therefor, issue a permit in writing authorizing the applicant to operate or move upon the state's public roads a motor vehicle or combination of vehicles and loads whose weight, width, length, or height, or combination thereof, exceeds the maximum limit specified by law, provided that the load transported by such vehicle or vehicles is of such nature that it is a unit which cannot be readily dismantled or separated; and provided, further, that no permit shall be issued to any vehicle whose operation upon the public roads of this state threatens to unduly damage a road or any appurtenance thereto, except that the dismantling limitation specified in this Code section shall not apply to loads which consist of cotton, tobacco, concrete pipe, and plywood that do not exceed a width of nine feet or of round bales of hay that do not exceed a width of 11 feet and which are not moved on part of The Dwight D. Eisenhower System of Interstate and Defense Highways. However, vehicles transporting portable buildings and vehicles not exceeding 65 feet in length transporting boats on roads not a part of The Dwight D. Eisenhower System of Interstate and Defense Highways, regardless of whether the nature of such buildings or boats is such that they can be readily dismantled or separated, may exceed the lengths and widths established in this article, provided that a special permit for such purposes has been issued as provided in this Code section, but no such special permit shall be issued for a load exceeding 12 feet in width when such load may be readily dismantled or separated. A truck tractor and low boy type trailer may, after depositing its permitted load, return to its point of origin on the authorization of its original permit.
      2. Notwithstanding the provisions of subparagraph (A) of this paragraph, the commissioner or an official of the department designated by the commissioner may, in his or her discretion, upon application in writing and good cause being shown therefor, issue to a specific tow vehicle a permit in writing authorizing the applicant to operate or move upon the state's public roads a motor vehicle or combination of vehicles and loads for transporting not more than two modular housing units or sectional housing units if the total weight, width, length, and height of the vehicle or combination of vehicles, including the load, does not exceed the limits specified in Code Sections 32-6-22 and 32-6-26. Permission to transport two modular housing units is only authorized when the modular unit transporter meets the minimum specifications contained in subparagraph (C) of this paragraph. No permit shall be issued to any vehicle or combination of vehicles whose operation upon the public roads of this state threatens the safety of others or threatens to damage unduly a road or any appurtenance thereto.
      3. A modular unit transporter shall meet all requirements of the Federal Motor Carrier Safety Administration and all state safety requirements, rules, and regulations. The modular unit transporter shall be properly registered and have a proper, current license plate. At a minimum, the modular unit transporter shall:
        1. Be constructed of 12 inch steel I beams doubled and welded together;
        2. Have all axles equipped with brakes;
        3. Have every floor joist on each modular section securely attached to the beams with lag bolts and washers, or lag bolts, washers, and cable winches; and
        4. Have an overall length not to exceed 80 feet including the hitch.
    1. Permits may be issued, on application to the department, to persons, firms, or corporations without specifying license plate numbers in order that such permits which are issued on an annual basis may be interchanged from vehicle to vehicle. The department is authorized to promulgate reasonable rules and regulations which are necessary or desirable to govern the issuance of such permits, provided that such rules and regulations are not in conflict with this title or other provisions of law.
    2. Every such permit shall be carried in the vehicle or combination of vehicles to which it refers and shall be open to inspection by any police officer, state trooper, or authorized agent of the department.
    3. The application for any such permit shall describe the type of permit applied for, as said types of permits are described in subsection (c) of this Code section. In addition, the application for a single-trip permit shall describe the points of departure and destination.
    4. The commissioner or an official of the department designated by the commissioner is authorized to withhold such permit or, if such permit is issued, to establish seasonal or other time limitations within which the vehicles described may be operated on the public road indicated, or otherwise to limit or prescribe conditions of operation of such vehicles when necessary to ensure against undue damage to the road foundation, surfaces, or bridge structures, and to require such undertaking or other security as may be deemed necessary to compensate the state for any injury to any roadway or bridge structure.
    5. For just cause, including, but not limited to, repeated and consistent past violations, the commissioner or an official of the department designated by the commissioner may refuse to issue or may cancel, suspend, or revoke the permit and any permit privileges of an applicant or permittee. The specific period of time of any suspension shall be determined by the department. In addition, any time the restrictions or conditions within which a permitted vehicle must be operated are violated, the permit may be immediately declared null and void.
    6. The department is authorized to promulgate rules and regulations necessary to enforce the suspension of permits authorized in this Code section.
    7. The department shall issue rules to establish a driver training and certification program for drivers of vehicles escorting oversize/overweight loads. Any driver operating a vehicle escorting an oversize/overweight load shall meet the training requirements and obtain certification under the rules issued by the department pursuant to this Code section. The rules may provide for reciprocity with other states having a similar program for escort certification. Certification credentials of the driver of an escort vehicle shall be carried in the escort vehicle and be readily available for inspection by law enforcement personnel or an authorized employee of the department. The department shall implement the vehicle escort driver training and certification program on or before July 1, 2010, and the requirements for training and certification shall be enforced beginning on January 1, 2011.
    8. Permit holders shall be required to meet the following minimum insurance standards:
      1. For loads where the gross vehicle weight is less than or equal to 10,000 pounds:
        1. For bodily injury a limit of $50,000.00 per person for injury or death as a result of any one occurrence; and
        2. For property damage a limit of $50,000.00 for damage to property of others in any one occurrence; or
      2. For commercial motor carriers where the gross vehicle weight is greater than 10,000 pounds:
        1. For bodily injury a minimum of $300,000.00 for each person and $1 million for multiple persons for injury or death as a result of any one occurrence; and
        2. For property damage a minimum of $1 million for damage to property of others in any one occurrence.
  2. Duration and limits of permits.
    1. Annual permit. The commissioner or an official of the department designated by the commissioner may, pursuant to this Code section, issue an annual permit which shall permit a vehicle to be operated on the public roads of this state for 12 months from the date the permit is issued even though the vehicle or its load exceeds the maximum limits specified in this article. However, except as specified in paragraph (2) of this subsection, an annual permit shall not authorize the operation of a vehicle:
      1. Whose total gross weight exceeds 100,000 pounds;
      2. Whose single axle weight exceeds 25,000 pounds;
      3. Whose total load length exceeds 100 feet;
      4. Whose total width exceeds 102 inches or whose load width exceeds 144 inches; or
      5. Whose height exceeds 14 feet and six inches.
    2. Annual permit plus. Vehicles and loads that meet the requirements for an annual permit may apply for a special annual permit to carry wider loads on the NHS. The wider load limits shall be a maximum of 14 feet wide from the base of the load to a point 10 feet above the pavement and 14 feet and eight inches for the upper portion of the load.
    3. Annual commercial wrecker emergency tow permit. Pursuant to this Code section, the commissioner may issue an annual permit for vehicles towing disabled, damaged, abandoned, or wrecked commercial vehicles, including combination vehicles, even though such wrecker or its load exceeds the maximum limits specified in this article. An annual commercial wrecker emergency tow permit shall not authorize the operation of a vehicle:
      1. Whose single axle weight exceeds 25,000 pounds;
      2. Whose load on one tandem axle exceeds 50,000 pounds and whose load on any secondary tandem axle exceeds 38,000 pounds; or
      3. Whose total load length exceeds 125 feet.
    4. Six-month permit. Six-month permits may be issued for loads of tobacco or unginned cotton the widths of which do not exceed nine feet, provided that such loads shall not be operated on The Dwight D. Eisenhower System of Interstate and Defense Highways.
    5. Single trip. Pursuant to this Code section, the commissioner may issue a single-trip permit to any vehicle or load allowed by federal law.
    6. Multitrip. Pursuant to this Code section, the commissioner may issue a multitrip permit to any vehicle or load allowed by federal law. A multitrip permit authorizes the permitted load to return to its original destination on the same permit, if done so within ten days, with the same vehicle configuration, and following the same route, unless otherwise specified by the department. A multitrip permit authorizes unlimited permitted loads on the same permit, if done so within the allowable ten days, with the same vehicle configuration, and following the same route.
  3. Fees. The department may promulgate rules and regulations concerning the issuance of permits and charge a fee for the issuance thereof as follows:
    1. Annual. Charges for the issuance of annual permits shall be $150.00 per permit.
    2. Annual permit plus. Charges for the issuance of annual permits plus shall be $500.00 per permit.
    3. Annual commercial wrecker emergency tow permit. Charges for the issuance of annual commercial wrecker emergency tow permits shall be $500.00 per permit.
    4. Six months. The charges for the issuance of six-month permits for loads of tobacco or unginned cotton shall be $25.00 per permit.
  4. Notwithstanding any provision of Code Section 48-2-17 to the contrary, all fees collected in accordance with this Code section shall be paid to the treasurer of the department to help defray the expenses of enforcing the limitations set forth in this article and may also be used for public road maintenance purposes in addition to any sums appropriated therefor to the department.

(5) Single trip. Charges for the issuance of single-trip permits shall be as follows:

(A) Any load not greater than 16 feet wide, not greater than 16 feet high, and not weighing more than 150,000 pounds or any load greater than 100 feet long which does not exceed the maximum width, height, and weight limits specified by this subparagraph ............$ 30.00 (B) Superload permit. Any load having a width, height, or weight exceeding the maximum limit therefor specified in subparagraph (A) of this paragraph and not weighing more than 180,000 pounds ...................125.00 (C) Superload plus permit. Any load having a weight exceeding the maximum limit therefor specified in subparagraph (B) of this paragraph 500.00

Multitrip. Charges for the issuance of multitrip permits shall be $100.00 for any load not greater than 16 feet wide, not greater than 16 feet high, and not weighing more than 150,000 pounds or any load greater than 100 feet long which does not exceed the maximum width, height, and weight limits specified by this paragraph.

(Ga. L. 1968, p. 30, § 1; Ga. L. 1969, p. 637, § 1; Ga. L. 1971, p. 43, § 1; Ga. L. 1971, p. 462, §§ 2, 3; Ga. L. 1972, p. 356, §§ 1, 2; Code 1933, § 95A-961, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 38; Ga. L. 1975, p. 400, § 1; Ga. L. 1979, p. 439, § 4; Ga. L. 1980, p. 576, § 7; Ga. L. 1982, p. 3, § 32; Ga. L. 1983, p. 1798, § 5; Ga. L. 1986, p. 471, §§ 1-3; Ga. L. 1986, p. 655, § 1; Ga. L. 1987, p. 846, § 1; Ga. L. 1992, p. 987, § 1; Ga. L. 1992, p. 2467, §§ 2-4; Ga. L. 1993, p. 348, § 1; Ga. L. 1995, p. 10, § 32; Ga. L. 1995, p. 155, § 1; Ga. L. 1996, p. 1010, § 3; Ga. L. 1996, p. 1512, § 3A; Ga. L. 1999, p. 567, § 3; Ga. L. 2000, p. 136, § 32; Ga. L. 2000, p. 1654, § 2; Ga. L. 2002, p. 1126, §§ 5, 6; Ga. L. 2010, p. 442, § 3/HB 1174; Ga. L. 2011, p. 548, §§ 3, 4/SB 54; Ga. L. 2012, p. 732, § 1/HB 835; Ga. L. 2012, p. 775, § 32/HB 942; Ga. L. 2013, p. 738, § 1/SB 218.)

Cross references.

- License fees for different weight categories of vehicles, § 40-2-151.

JUDICIAL DECISIONS

Cited in DOT v. Del-Cook Timber Co., 248 Ga. 734, 285 S.E.2d 913 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Issuance of permits.

- Commissioner or the commissioner's designee is empowered to issue annual permits which authorize the operation of vehicles which do not exceed a height of 14'6" for hauling automobiles when the conditions specified in this section have been met. 1973 Op. Att'y Gen. No. 73-110.

When considering issuance of permits for vehicles exceeding maximum weight or dimensions allowed by law, discretion of the commissioner of transportation or the commissioner's designee is limited to consideration of whether good cause for issuance of the permit has been shown by the applicant, whether the loads transported may be readily dismantled or separated, and whether the vehicle and load threatens to unduly damage the roads of the state. 1982 Op. Att'y Gen. No. 82-84.

Permits for moving houses.

- Municipal corporation, which has the authority to control the streets and highways within the municipality's corporate limits, may enact an ordinance requiring that permits be obtained prior to moving houses on streets and highways lying within the corporate limits and charging a fee reasonably related to the expenses incurred by a municipality during the course of moving a house. 1974 Op. Att'y Gen. No. U74-23.

RESEARCH REFERENCES

ALR.

- State regulation of carriers by motor vehicle as affected by interstate commerce clause, 49 A.L.R. 1203; 62 A.L.R. 52; 85 A.L.R. 1136; 109 A.L.R. 1245; 135 A.L.R. 1358.

Power to limit weight of vehicle or its load with respect to use of streets or highways, 75 A.L.R.2d 376.

Validity, construction, and application of statutes or other regulations affecting the moving of buildings on highways, 83 A.L.R.2d 464.

Violation of regulation governing size or weight of motor vehicles, or combinations of vehicles and loads, on the highway as basis of liability for personal injury, death, or damage to private property, 21 A.L.R.3d 989.

Automobiles: construction and operation of statutes or regulations restricting the weight of motor vehicles or their loads, 45 A.L.R.3d 503.

32-6-29. Responsibility of the Department of Transportation; responsibility of the Department of Public Safety.

  1. The Department of Transportation shall be responsible for rules and regulations relating to size and weight limits and issuance of permits under this article.
  2. The Department of Transportation shall not, however, employ any law enforcement officers or agents except as may be specifically authorized by other laws. Law enforcement responsibility for enforcement of this article shall be in the Department of Public Safety.

(Ga. L. 1960, p. 1122, § 1; Ga. L. 1968, p. 193, § 2; Code 1933, § 95A-962, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1974, p. 1422, § 40; Ga. L. 1976, p. 1500, § 1; Ga. L. 1978, p. 1989, § 3; Ga. L. 1979, p. 814, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 1993, p. 91, § 32; Ga. L. 1993, p. 366, § 1; Ga. L. 2000, p. 951, § 2-6; Ga. L. 2000, p. 1199, § 1; Ga. L. 2005, p. 334, § 12-3/HB 501.)

JUDICIAL DECISIONS

Department of Transportation enforcement officer had authority to enforce travel restrictions in high occupancy vehicle lanes. Edge v. State, 226 Ga. App. 559, 487 S.E.2d 117 (1997), overruled on other grounds by Zilke v. State, 299 Ga. 232, 787 S.E.2d 745 (2016).

Cited in Smith v. Commercial Transp., Inc., 220 Ga. App. 866, 470 S.E.2d 446 (1996).

OPINIONS OF THE ATTORNEY GENERAL

Arrest powers of Department of Transportation enforcement officers extend only to arrests for commission of crimes specifically enumerated by statute conferring powers. 1978 Op. Att'y Gen. No. 78-73.

RESEARCH REFERENCES

ALR.

- Authority of public official, whose duties or functions generally do not entail traffic stops, to effectuate traffic stop of vehicle, 18 A.L.R.6th 519.

32-6-30. Stopping vehicles for purposes of weighing, measuring, or inspecting; reports of violations; refusal to stop.

  1. Any law enforcement officer or employee of the Department of Public Safety to whom law enforcement authority has been designated who observes a motor vehicle being operated upon a public road of the state and who has reason to believe that: (1) Any provision of this article is being violated; (2) The vehicle is improperly licensed in violation of Code Sections 40-2-150 through 40-2-162; or (3) A fuel tax registration card is not being carried or that a proper distinguishing identification marker is not affixed to the vehicle in violation of Code Section 48-9-39 is authorized to stop such vehicle and weigh, measure, or inspect the same. Violations of such licensing or fuel tax registration and identification requirements shall be reported to the Department of Revenue.
    1. If the operator of the vehicle shall refuse to stop upon proper order as directed by a person authorized by subsection (a) of this Code section to stop, weigh, measure, or inspect the vehicle or its load, the operator shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $200.00. The operator shall have the right to post an appropriate bond, which shall not exceed $400.00, when any law enforcement officer or employee of the Department of Public Safety authorized to enforce this article apprehends said operator for any violation of this article.
    2. In addition, the operator's driver's license or nonresident's driving privilege may be suspended for a period of not more than 90 days by the Department of Driver Services upon satisfactory proof of said refusal to stop or drive the vehicle upon the scales. Each person who shall apply for a Georgia driver's license, or for nonresident driving privileges, or for a renewal of same thereby consents to stop such vehicle for inspection or to drive such vehicle upon scales whenever so ordered by a law enforcement official or authorized employee of the Department of Public Safety.

(Ga. L. 1960, p. 1122, § 2; Ga. L. 1968, p. 193, §§ 1, 3; Code 1933, § 95A-963, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1982, p. 3, § 32; Ga. L. 2000, p. 951, § 2-7; Ga. L. 2002, p. 1074, § 5; Ga. L. 2005, p. 334, § 12-4/HB 501; Ga. L. 2007, p. 47, § 32/SB 103.)

Cross references.

- General duty of Georgia State Patrol to check motor vehicles for excess load, § 35-2-33.

Stopping of motor vehicles for lack of proper equipment or for other safety violations, § 40-8-200.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2002, "Code Sections 40-2-150 through 40-2-162; or" was substituted for "Code Section 40-2-150 through Code Section 40-2-162; or" in paragraph (a)(2) (now item (a)(2)).

Editor's notes.

- Ga. L. 2002, p. 1074, § 8, not codified by the General Assembly, provides that: "This Act shall not abate any prosecution, punishment, penalty, administrative proceedings or remedies, or civil action related to any violation of law committed prior to the effective date of this Act." The effective date of Ga. L. 2002, p. 1074 was July 1, 2002.

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 32-6-30 is a traffic law since the statute provides for criminal liability for refusing to stop and permit vehicles to be weighed, measured, and inspected. 1981 Op. Att'y Gen. No. U81-17.

Classification of traffic offenses includes violations of O.C.G.A. §§ 32-6-30 and46-7-61 (now repealed). 1981 Op. Att'y Gen. No. U81-17.

Cases may be tried upon uniform traffic citation.

- Since violations of O.C.G.A. §§ 32-6-30 and46-7-61 (now repealed) constitute misdemeanor traffic offenses, cases arising from these sections may be tried upon a uniform traffic citation, and any cash appearance bonds posted may be forfeited as provided by O.C.G.A. § 17-6-8. 1981 Op. Att'y Gen. No. U81-17.

32-6-31. Construction of Code Sections 32-1-10, 32-6-26, 32-6-27, and 32-6-29.

The provisions of Code Sections 32-1-10, 32-6-26, 32-6-27, and 32-6-29 shall not, and shall not be construed to, modify, change, or diminish any power or duty held by any other law enforcement unit, enforcement officer, or peace officer.

(Ga. L. 1978, p. 1989, § 5; Ga. L. 1982, p. 3, § 32; Ga. L. 2000, p. 136, § 32; Ga. L. 2002, p. 415, § 32.)

ARTICLE 3 CONTROL OF SIGNS AND SIGNALS

Cross references.

- Regulation of advertisements and advertising structures along federal parkway rights of way, § 32-3-38.

PART 1 P UBLIC ROADS GENERALLY

32-6-50. Uniform regulations governing erection and maintenance of traffic-control devices; placement, removal, defacement, damaging, or sale of devices.

  1. The department shall promulgate uniform regulations governing the erection and maintenance on the public roads of Georgia of signs, signals, markings, or other traffic-control devices, such uniform regulations to supplement and be consistent with the laws of this state. Insofar as practical, with due regard to the needs of the public roads of Georgia, such uniform regulations shall conform to the recommended regulations as approved by the American Association of State Highway and Transportation Officials.
  2. In conformity with its uniform regulations, the department shall place and maintain, or cause to be placed and maintained, such traffic-control devices upon the public roads of the state highway system as it shall deem necessary to regulate, warn, or guide traffic, except that the department shall place and maintain a sign for each railroad crossing at grade on the state highway system, warning motorists of such crossing, provided that each railroad company shall also erect and maintain a railroad crossbuck sign on its right of way at every such crossing. The department may remove or direct removal of all traffic-control devices and signs which are erected on the state highway system by any governing authority without the permission of the department.
  3. In conformity with the uniform regulations of the department:
    1. Counties and municipalities shall place and maintain upon the public roads of their respective public road systems such traffic-control devices as are necessary to regulate, warn, or guide traffic except that counties and municipalities also shall erect and maintain a sign for each railroad crossing at grade on their respective county road or municipal street systems, warning motorists of such crossing. Furthermore, each railroad company shall erect and maintain a railroad crossbuck sign on its right of way at all such crossings; and
    2. Counties, on their respective road systems, shall place and maintain on each county road which is authorized as a designated local truck route, pursuant to official resolution of the county, at each intersection of such road with a state highway signs identifying such county road as a designated local truck route and giving notice of the maximum weight limits for such designated local truck route in accordance with subsection (f) of Code Section 32-6-26.
  4. It shall be unlawful for any person to remove, deface, or damage in any way any official traffic-control device lawfully erected or maintained pursuant to this Code section or any other law.
  5. No person, firm, corporation, or other entity shall offer for sale any sign, signal, marking, or other device intended to regulate, warn, or guide traffic upon the public roads of this state, unless it conforms with the uniform regulations promulgated under subsection (a) o