DeKalb County v. Georgia Power Co., 38585
| Decision Date | 30 June 1982 |
| Docket Number | No. 38585,38585 |
| Citation | 292 S.E.2d 709,249 Ga. 704 |
| Parties | DeKALB COUNTY et al. v. GEORGIA POWER COMPANY. |
| Court | Georgia Supreme Court |
George P. Dillard, Gail C. Flake, Decatur, for DeKalb County et al.
Jack Thrasher, L. Jack Swertfeger, Jr., Robert P. Edwards, Jr., Troutman, Sanders Lockerman & Ashmore, Atlanta, for Georgia Power Co.
DeKalb County appeals from entry of mandamus absolute compelling issuance to Georgia Power Company of a permit for construction of a 230,000 volt power transmission line along and within the right-of-way of Ashford-Dunwoody Road in unincorporated DeKalb County. We affirm for the reasons stated in this opinion.
Associations of nearby homeowners appeared in this court as amici curiae in support of the decision of the DeKalb County Commissioners denying the permit and thereby requiring either underground construction or rerouting of the line.
An identical 230,000 volt power transmission line is in service along another stretch of Ashford-Dunwoody Road.
Although the briefs of the parties allude to considerations of public safety, health and welfare, it is apparent from the record that the county does not contest the power company's compliance with all technical requirements imposed by the county's engineers and by the Georgia Department of Transportation. Rather, the underlying causes of the dispute are the desire of the county to collect from the power company the same franchise fees for the power company's use of county road rights-of-way lying outside unincorporated areas as municipalities are permitted to collect within municipal boundaries.
Applications for permits to construct power lines within road rights-of-way routinely are processed by and between the technical staffs of the power company and the county without intervention of the county board of commissioners. None heretofore has been denied. In this instance, alone, the matter came on to be heard by the commissioners.
1. DeKalb County is not entitled to extract from the power company a tax, franchise fee, rental fee, or other charge (however designated) in return for permission to use the county's road rights-of-way outside of municipalities for the erection, maintenance and use of power transmission lines. We reaffirm what we have said on this subject twice before. DeKalb County v. Atlanta Gas Light Company, 230 Ga. 65, 195 S.E.2d 427 (1973); DeKalb County v. Atlanta Gas Light Company, 228 Ga. 512, 186 S.E.2d 732 (1972). We also reject the county's contention that the power to collect such moneys arises by implication from the home rule provisions of the constitution, from state law, as a necessary consequence of the general police powers of the county, or from its franchise agreement with the power company. Code Ann. §§ 2-5901, 95A-402(f); DeKalb County v. Brown Builders Company, 227 Ga. 777, 183 S.E.2d 367 (1971). The trial court did not err by enjoining collection of the sums sought by the county.
2. Assuming, without deciding, that the county commissioners have standing to challenge on federal due process and equal protection grounds those provisions of state law allowing municipalities, but not counties, to charge public utilities for the construction, maintenance and use of power transmission lines within road rights-of-ways (Richmond County v. Pierce, 234 Ga. 274, 278(4), 215 S.E.2d 665 (1975); Stewart v. Davidson, 218 Ga. 760, 764, 130 S.E.2d 822 (1963)) we find no violation of either of those federal constitutional precepts. Blackmon v. Monroe, 233 Ga. 656, 659, 212 S.E.2d 827 (1975).
3. The county contends that it was denied an opportunity to prove to a jury that the proposed power transmission line may become unsafe in some unspecified manner, and may lower surrounding property values, whereas an underground line, along Ashford-Dunwoody Road, or an overhead line located elsewhere, would not have those results. The trial court regarded proof of those facts as being immaterial to the question of whether mandamus should issue, but gave the county an ample opportunity to fill out, for appeal purposes, its proof by testimony in open court or affidavits, or to make a tender of proof. We agree with the trial court for the reasons hereafter stated that neither consideration properly should have been within the contemplation of the county commissioners in deciding whether or not to issue the permit. 1
The transcript establishes without contradiction that construction of the power line in accordance with the plans submitted to and approved by the engineering staffs of the county and the State Department of Transportation will meet all current technical requirements and criteria.
The record shows that construction of the power line at the contemplated location will not interfere with present or planned uses of Ashford-Dunwoody Road.
The county may require the power company to move the power line to accommodate future widening of Ashford-Dunwoody Road, but may not deny the power company a permit to locate the power line within the right-of-way of that road because of speculation that Ashford-Dunwoody Road may be widened at some unspecified and unknown time in the future. Craven v. Ga. Power Co., 248 Ga. 79, 281 S.E.2d 568 (1981); Faulkner v. Ga. Power Co., 243 Ga. 649, 650-51, 256 S.E.2d 339 (1979); Evans v. Just Open Government, 242 Ga. 834, 842, 251 S.E.2d 546 (1979); Ga. Ry. &c. Co. v. City of Atlanta, supra, 154 Ga. at 744-46, 115 S.E. 263.
Adjoining landowners do not have a right of action against the power company for inverse condemnation as a result of the construction of a high voltage power...
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