This opinion is in response to your request for advice on whether the City of Atlanta may charge the Board of Regents for permitting a fiber optic cable to lie under city streets.

The Home Rule for municipalities in the Georgia Constitution gives municipalities the power to "adopt clearly reasonable ordinances, resolutions, or regulations relating to its property . . . for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto." O.C.G.A. § 36-35-3(a). Accordingly, the City of Atlanta has enacted a Code provision addressing "encroachments," defined by the Code as "[p]ipes, wires, conduits or similar facilities." Atlanta City Code §§ 9-3031(a)(1)-a-3, 9-3031(b)(3). As a prerequisite for permission to encroach upon city property, these Code Sections require the entity seeking to encroach to consummate an agreement with the city to pay an annual rental fee for space occupied by the "encroachment." Atlanta City Code § 9-3031(b)(3).

While I have found no Georgia law precisely addressing the issue of a city charging the state a rental fee for laying underground cables, there is authority requiring the state to make payments to a city in analogous contexts. See, e.g., 1980 Op. Att'y Gen. 80-5 (GBA may be required to pay the City of Atlanta service fees); 1979 Op. Att'y Gen. 79-75 (municipality is not precluded from charging a fee for optional services

furnished to the Board of Regents); O.C.G.A. § 50-16-183 (state agencies may exercise power of eminent domain to condemn city property pursuant to that agency's specific statute, all of which require payment of just compensation). It follows that, as long as no general laws have made provisions for such property, there are no inconsistent constitutional or charter provisions, and the City of Atlanta owns the property upon which the cable will encroach, the city may require Regents to enter into an agreement requiring them to pay a "rental" fee for the space occupied by the fiber optic cable which, under the Code's definition, constitutes an "encroachment."

You also asked whether the city could force Regents to enter into an agreement when Regents has already obtained certain permits from the Department of Transportation ("DOT") pursuant to O.C.G.A. § 32-6-174. This Code Section allows DOT to promulgate regulations for the State Highway System and any public road projects which DOT has undertaken. Thus, while DOT regulations may require permits for certain streets which involve or have involved public road projects, if the streets are currently owned by the City of Atlanta, the city may still require Regents to enter into an agreement and pay a fee for the use of such property.

In addition, you have asked whether the city could charge Regents for the use of abandoned Georgia Power steam tunnels, through which the cables will run, when Regents has already obtained permission from Georgia Power to use the tunnels. While the tunnels may have been installed by Georgia Power pursuant to a franchise agreement with the City of Atlanta, from the information provided to me the city appears to have retained all ownership rights in the property, granting Georgia Power only usage rights. (Franchise Agreement between City of Atlanta and Georgia Power Company, dated December 8, 1965, Ï1, hereinafter referred to as "Agreement"). Furthermore, Georgia Power's Agreement allows it to use city streets only for the transmission of "electric energy and steam." (Agreement, Ï1). Thus, Georgia Power has no authority to grant Regents usage rights in the tunnels for installation of fiber optic computer cables.

Finally, from the information provided to me, there appears to be a question as to whether all of the streets involved in this project are city owned or whether certain streets, referred to as DOT "M" Routes, are state owned. This opinion makes no representations as to the ownership of the streets involved, but merely sets forth my opinion as to the city's power to charge fees for the use of City of Atlanta owned streets.

Therefore, based on the foregoing, it is my official opinion that the City of Atlanta may charge the Board of Regents for permitting a fiber optic cable to lie under city owned streets based on Atlanta City Code §§ 9-3031(a)(1)-a-3 and 9-3031(b)(3), enacted pursuant to the city's home rule power.

Prepared by:

CHERYL A. JANSON
Assistant Attorney General