Burke County v. Askin
291 Ga. 697
Ga.2012Background
- Burke County seeks mandamus relief to compel road maintenance in Pineview Subdivision; Askin and Tiger cross-appeal for broader relief.
- Pineview Subdivision (established 1954) had roads dedicated by deed to Burke County (Frances Ave, Maple Dr, Poplar Dr, Elm Dr, Sycamore Dr); some roads were paved, others not built.
- In 2004, Askin bought lots in Pineview and Tiger, Inc. bought land nearby; Askin sought mandamus to require county maintenance and construction of roads; trial court ordered Maple and Elm maintenance and Frances Ave completion, but not Poplar or Sycamore.
- County argued OCGA 9-6-21(b) (resident-only mandamus against county board) was exclusive; trial court rejected, applying OCGA 9-6-20 (general mandamus).
- The court held 9-6-20 predates 9-6-21(b); remedies are cumulative; county has duty to maintain roads under OCGA 32-4-41(1).
- The trial court’s order to open the unopened Frances Avenue portion relied on discretion but did not articulate the proper “arbitrary, capricious, and unreasonable” standard; case remanded for correct application of the standard and for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to issue mandamus | Askin: 9-6-21(b) controls. | County: 9-6-21(b) provides exclusive remedy. | 9-6-20 applicable; remedy cumulative. |
| Open Frances Avenue portion | Discretion to open roads supports mandamus. | Discretion to open is asserted; not automatic. | Remand for proper abuse-of-discretion standard. |
| Open/maintain Poplar and Sycamore Drives | County must open/maintain these roads. | Discretionary decision to open not mandatory. | Remand to assess with correct standard. |
| Mootness of abandonment issue | Abandonment challenged; need injunction. | Abandonment resolved; moot. | Matter moot; affirmed abstention from injunction. |
Key Cases Cited
- Fountain v. Suber, 225 Ga. 361 (Ga. 1969) (preexisting mandamus right; remedies are cumulative)
- Van Valkenburg v. Stone, 172 Ga. 642 (Ga. 1931) (new remedy does not erase preexisting remedy)
- Chatham County v. Allen, 261 Ga. 177 (Ga. 1991) (county may open or keep closed dedicated roads; discretion)
- Gwinnett County v. Ehler Enterprises, 270 Ga. 570 (Ga. 1999) (mandamus standard: abuse of discretion must be arbitrary, capricious, unreasonable)
- Massey v. Georgia Bd. of Pardons & Paroles, 275 Ga. 127 (Ga. 2002) (mandamus requires clear legal right or gross abuse of discretion)
- Pittman v. City of Jesup, 232 Ga. 635 (Ga. 1974) (deed reversion clauses; subdivision road rights and duties)
- Scarborough v. Hunter, 288 Ga. 687 (Ga. 2011) (review of discretionary acts; limits on injunctions)
- State v. Mulkey, 252 Ga. 201 (Ga. 1984) (absurd result if road maintenance contradicts common sense)