Scarborough v. Hunter
288 Ga. 687
Ga.2011Background
- Stephens County pursued statutory abandonment of Winding Bluff Road, which the County had accepted as a public road in 2007.
- By 2010 the County decided to initiate abandonment procedures and notified the public of a hearing for July 27, 2010.
- Landowners along Winding Bluff Road filed a mandamus action on July 19, 2010, seeking to compel maintenance and to restrain the abandonment hearing.
- A temporary restraining order was issued by the trial court preventing the Board from holding the hearing or voting on abandonment the day before the hearing.
- The Board sought interlocutory appeal; the Supreme Court granted review to determine whether the TRO was proper and whether the Board could be restrained from exercising its abandonment discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court properly enjoin the Board's abandonment discretion? | Landowners claim the Board abused discretion by seeking to abandon a public road. | Board argues it has statutory discretion to abandon roads when no substantial public purpose remains and when public interest favors abandonment. | TRO was improper; court must defer to Board's discretion and review actions after. |
| Does OCGA § 50-13-19(h) permit a trial court to enjoin the Board's exercise of discretion in abandonment cases? | Trial court should enforce maintenance and prevent abandonment to protect rights. | § 50-13-19(h) does not authorize preemptive injunction of agency discretion; it sets standard for review after action. | It does not authorize a preemptive injunction of discretion. |
| May a county abandon a road under OCGA § 32-7-2 when funds to maintain exist or do not exist? | Abandonment would impair public maintenance and injure property values. | Abandonment may be in the best public interest when maintenance is no longer feasible. | Discretion to abandon lies with the Board; review is for abuse of discretion, not preemptive blocking. |
Key Cases Cited
- Carnes v. Charlock Investments, Inc., 258 Ga. 771, 373 S.E.2d 742 (1988) (trial court must not substitute its judgment; review for abuse of discretion)
- Cherokee County v. McBride, 262 Ga. 460, 421 S.E.2d 530 (1992) (overruled to the extent it supported preemptive injunctions against discretionary acts)
- McIntosh County v. Fisher, 242 Ga. 66, 247 S.E.2d 863 (1978) (public benefit requirement for road vacating; discretion to remove when useful purpose ends)
- Torbett v. Butts County, 271 Ga. 521, 520 S.E.2d 684 (1999) (public interest considerations in road abandonment)