2021 Georgia Code
Title 32 - Highways, Bridges, and Ferries
Chapter 3 - Acquisition of Property for Transportation Purposes
Article 1 - General Provisions
§ 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; or
   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; Ga. L. 2020, p. 371, § 4/HB 1098.)

The 2020 amendment, effective July 29, 2020, substituted "or" for "and" at the end of paragraph (c)(1).

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

Easements generally, T. 44, C. 9.

- 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).

ANALYSIS

• General Consideration
• Authority to Condemn
• Legislative Intent
• Trial

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.

- 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).

- 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.