You have asked for my opinion as to the procedures that should be employed by the Department of Transportation in disposing of access rights in the context of permitting commercial driveway permits under O.C.G.A. § 32-6-133(b). This statute was passed by the General Assembly as Act No. 924 (House Bill 1243) in the 1996 Regular Session.

From information provided by your staff, I understand that this legislation was passed to address a particular problem that often arises in the context of an application for a commercial driveway permit under O.C.G.A. § 32-6-131. When a property owner applies for a commercial driveway permit, quite often all access rights from the owner's property to the adjoining state highway are owned by the Department. In such cases, the access rights generally were acquired by the Department as part of the initial right-of-way acquisition. In order to allow for commercial access to the property, the Department must convey such access rights back to the property owner. Prior to the

1996 legislation, this process was controlled by O.C.G.A. § 32-7-4, providing for the disposal of surplus property as defined by O.C.G.A. § 32-7-3. The operative language appears in O.C.G.A. § 32-7-4(a)(2), as follows: "When only remnants or portions of the original acquisition are being disposed of, they may be acquired for the market value thereof at the time the department, county, or municipality decides the property is no longer needed."

Since the property owner had to reacquire these access rights after a determination by the Department that they are surplus property, the owner was required under the provisions of O.C.G.A. § 32-7-4(a)(2) to pay fair market value for such rights, as supported by a qualified property appraisal. This process paralleled federal regulations for the disposal of property interests acquired with federal funds. Quite often, the character of the property had changed since the right-of-way acquisition, and the fair market value of the access rights had appreciated to the public benefit in an amount substantially greater than the Department paid in the acquisition.

The new statute sets a maximum amount that may be charged in conjunction with a commercial driveway permit, including acquisition of the access rights owned by the Department, if the owner at the time of the Department's acquisition or the first succeeding owner is making the application for a permit. The total charge may not exceed the compensation paid by the Department to the property owner in its acquisition of the property. Subsection (b)(2) of the new statute, O.C.G.A. § 32-6-133, contains a limitation period of ten years that is subject to several interpretations, the most logical of which would be that the owner subsequent to the owner from whom the acquisition is made may only claim this right for ten years, unless that subsequent owner is an "heir or assign" of the owner at the time of acquisition. For purposes of this opinion, the interpretation of this exception has not been extensively examined.

The Georgia Constitution prohibits the General Assembly from granting any donation or gratuity. Ga. Const. 1983, Art. III, Sec. VI, Para. VI. The Supreme Court of Georgia has held that a statute requiring the Department to grant tree-trimming permits to outdoor advertising companies without substantial benefit in the performance of the Department's governmental mission in return is a violation of the gratuities clause of

the Constitution. Garden Club of Georgia, Inc. v. Shackelford, 266 Ga. 24 (1995). This office has opined repeatedly that agencies may not dispose of publicly owned property without obtaining fair market value, or its equivalent in an exchange, for the transaction. See, e.g., 1971 Op. Att'y Gen. U71-17; 1995 Op. Att'y Gen. 95-25; 1997 Op. Att'y Gen. 97-6.

Therefore, based upon these legal authorities, it is my official opinion that the Department must receive in return for the disposal of access rights under O.C.G.A. § 32-6-133(b), the fair market value of such rights or other substantial benefit in aid of the performance of the Department's governmental mission. A gift of any portion of access rights to the property owner would be a prohibited gratuity under the Georgia Constitution, Article III, Section VI, Paragraph VI.

Prepared by:

Senior Assistant Attorney General