In a recent letter, a state rights-of-way engineer asked on behalf of the Department of Transportation whether the Department could issue a permit to American MAGLEV Technology, Inc., which would permit American MAGLEV Technology to cross the rights-of-way of several state routes, when constructing and operating a rail line, or MAGLEV trail, between the Georgia State MARTA station and the parking lot across Capitol Avenue from Atlanta-Fulton County Stadium. American MAGLEV Technology has presented a plan for constructing this MAGLEV trail and this plan proposes a route which would cross DOT-owned property adjacent to Martin Luther King Jr. Drive and then cross the rights-of-way of Interstate I-75/85, State Route 154 (Memorial Drive), and Interstate I-20. The plan also would require touch down points in the medians of I-75/85 and I-20.

The Department has statutory authority to issue such a license. Official Code of Georgia Annotated § 32-2-2(a)(1) authorizes the Department to "manage, control, . . . and maintain a state highway system." The authority granted the Department by this Code Section, coupled with the additional general authority given the Department by O.C.G.A. § 32-2-2(a)(8), "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," give the Department the general authority to issue revocable licenses or permits, to the extent that authority is not specifically limited by other provisions of law.

One provision of law which affects the Department's management and control of its rights-of-way is O.C.G.A. § 32-6-1, which prohibits obstructions, encroachments upon, solicitation of sales of merchandise on, or injuries to any part of any public road. This Code Section does provide that nothing in it shall "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." The question therefore must be answered whether American MAGLEV Technology is a utility or railroad corporation as defined in Code Section 46-1-1, to whom a license to encroach upon state rights-of-way may be issued.

As defined in O.C.G.A. § 46-1-1(15): "'Utility' means any person who is subject in any way to the lawful jurisdiction of the commission." The commission, referring to the Public Service Commission, has jurisdiction over, among others, "persons or private companies who operate rapid rail passenger service lines within this state." O.C.G.A. § 46-2-20(a). American MAGLEV Technology clearly falls within the definition of a person, pursuant to O.C.G.A. § 46-8A-1, who must obtain a permit from the Public Service Commission before operating a rapid rail passenger service line, pursuant to O.C.G.A. § 46-8A-2.

Consequently, since American MAGLEV Technology, in order to operate a rapid rail passenger service line, must come under the jurisdiction of the Public Service Commission pursuant to the Code Sections cited above, it is a utility within the meaning of O.C.G.A. § 46-1-1, and the Department may grant a license to it for encroachment upon rights-of-way owned or under the control of the Department, pursuant to O.C.G.A. § 32-6-1.

Because the license which American MAGLEV Technology seeks would permit it to cross, and establish touch down points on, property on which has been constructed a limited-access road, state and federal laws which govern limited-access roads must be considered. Official Code of Georgia Annotated § 32-6-115 provides, in pertinent part:

[N]o commercial enterprise or activities shall be authorized or conducted by the department or any other agency or by a county or municipality of the state, within or on the property on which have been constructed limited-access roads as defined in this article, provided that the term "commercial enterprise or activities" shall not be so construed as to prevent the installation of public utility facilities, to the extent that it is authorized by law, . . . .

While the term "utility" is defined in the Code of Public Transportation, O.C.G.A. § 32-1-3(30) (and, to a much more limited extent, in 23 U.S.C. § 123(b)), the term "public utility," which is the term used in O.C.G.A. § 32-6-115, is not defined in the Code of Public Transportation.

The term "public utility" is commonly understood as being "[a] business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence and need, such as electricity, gas, water, transportation, or telephone or telegraph service." Black's Law Dictionary 1108 (5th ed. 1979). While the general definition of public utilities would include both publicly and privately owned companies, and therefore would be consistent with the definition of "utility" in 23 U.S.C. § 123(b) and in O.C.G.A. § 32-1-3(30), this definition of "public utility" goes beyond O.C.G.A. § 32-1-3(30), by including transportation services, which are not specifically included in the definition of "utility" under the Code of Public Transportation.

Despite the lack of a definition of "public utility" in the Code of Public Transportation, and the lack of any specific language including transportation services within the definition of "utility" in the Code of Public Transportation, I nonetheless conclude that the general definition of public utility, which would include transportation services, should be the definition used in interpreting O.C.G.A. § 32-6-115. To conclude otherwise would prevent any railroad from constructing a new rail line that would cross a limited-access highway. Since O.C.G.A. § 32-6-191 provides a mechanism for paying for new or relocated rail crossings over roads on the state highway system, it must have been contemplated by the General Assembly that such crossings could be over limited-access roads on the state highway system.

Given this understanding, there is no prohibition under O.C.G.A. § 32-6-115 for allowing a public utility providing transportation services from installing its facilities on property on which has been constructed limited-access roads. Such a use of public rights-of-way, even though used for a limited-access road, is specifically authorized under state law, and the Department may give limited permission, in the form of a license, to use public rights-of-way in the manner described in the state engineer's letter.

"A license, as a term of real estate law, is an authority to do a particular act or series of acts upon another's land, without possessing any estate therein." Grant v. Haymes, 164 Ga. 371, 377 (1927). The terms of this license must be clearly set out, in writing, so that no interest in the Department's property is given. See O.C.G.A. § 44-9-4.

That there is statutory authority for the Department to enter into such a transaction does not end the inquiry. As you are aware, even though the General Assembly gave the Department statutory authority to issue permits for the trimming of trees on public rights-of-way adjacent to outdoor advertising signs, the Supreme Court has held that the issuing of such permits constitutes an illegal gratuity under Art. III, Sec. VI, Para. VI, 1983 Ga. Constitution. In Garden Club of Georgia, Inc. v. Shackelford, Ga. (No. S95A1301, Nov. 6, 1995), rehearing denied, the Court held:

"Because an unobstructed view of outdoor advertising signs on private property substantially benefits the sign owners without providing an equivalent benefit to the state or its citizens, we hold that DOT's regulations violate the Georgia constitution's prohibition against the granting of gratuities."

Slip opinion at 3.

In order to meet this test of "substantial" benefits being received, American MAGLEV must pay consideration which can be deemed substantial. Charging a fee for these permits which approximates fair market value, considering the particular uses to which these rights-of-way have been put would accomplish this. Public funds were expended to acquire and improve these rights-of-way, and agreements were made with the Secretary of Transportation concerning the use of such rights-of-way as were acquired with federal funds. 23 U.S.C. § 112. Moreover, caissons were placed in the right-of-way of Interstate I-75/85 for the proposed construction of a parking deck by the Georgia Building Authority at some future date. The Treasurer for the Department has advised that these caissons were funded by an appropriation of one million, six hundred thousand dollars ($1,600,000) from state general funds for capital outlay, in the supplemental appropriations act for fiscal year 1986. Each of these are factors which should be considered in determining the appropriate consideration for these permits.

Therefore, it is my official opinion that the Department of Transportation has the statutory authority to issue a revocable license to American MAGLEV Technology authorizing American MAGLEV Technology to cross airspace over state routes and to establish touch down points within the right-of-way of state routes in the construction of a MAGLEV trail, so long as consideration is received by the Department which represents a substantial benefit to the public.

Prepared by:

Senior Assistant Attorney General