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A Blog about Real Estate, How it Can Be Damaged, and Disputes Over its Transfer

This blog is a personal blog written to discuss legal issues affecting Georgia property, and how it is damaged, transferred, and fought over. I write this partly to keep abreast of the law, and partly to offer a forum for my writing. In order to find content, I often analyze Georgia Supreme Court decisions. I try to update this blog as I can, but writing is a time consuming process.

Tuesday, November 29, 2011

Local Government Has Discretion Regarding Road Abandonment

Disputes sometimes arise regarding a local government's authority to abandon public streets and roads.  Generally, in Georgia it has been difficult to challenge an abandonment resolution by a county or municipality.  In fact, the Georgia General Assembly recently amended the abandonment statute to increase the discretion of local governments to abandon streets and roads.

In 2010 following requests by association and neighborhood interests, the legislature amended the language of O.C.G.A. Section 32-7-2 via Senate Bill 354, 2010 Ga. Laws 443.  Section 32-7-2 contains the standard that governs the power of Georgia counties and cities to abandon county roads and city streets.  Before 2010, the language of the statute required that a local government show that the a street or road had "ceased to be used by the public to the extent that no substantial public purpose [was] served" by it.  In Senate Bill 354, the legislature added "or that its removal from the municipal street system is otherwise in the best public interest " after the former language. 

The addition of the added language to Section 32-7-2 increased the power of local government to abandon streets and roads over the objections of property owners and members of the public using the streets.  This expansion of power was acknowledged by the Georgia Supreme Court in the opinion in  Scarborough v. Hunter, 288 Ga. 687, 706 S.E.2d 650 (2011).  In Scarborough, supra, the court overruled a prior decision in Cherokee County v. McBride, 262 Ga. 460, 421 S.E.2d 530 and held that a trial court lacked authority to prevent a government from holding a public hearing regarding road abandonment. 

Notwithstanding the modification of Section 32-7-2, certain property owners using public roads and streets may still have private easement rights that are not extinguished by the abandonment.
Northpark Associates No. 2, Ltd. v. Homart Dev. Co., 262 Ga. 138, 414 S.E.2d 214 (1992) ("closing of abandoned portions of subdivision roads and their relocation did not eliminate purchaser's easement rights in subdivision roads delineated on recorded subdivision plat").

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