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Burke Cnty. v. Askin

Burke County's failure to construct, maintain and repair the full length of a public county road over the past 50 years was due to the County's mistake and neglect, rather than the lawful exercise of the County's discretion.

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Burke County, its Board of Commissioners, and members of the Commission “the County” appeal the superior court’s grant of a writ of mandamus requiring the County to repair, maintain and construct certain roads dedicated to the County.1 This is the second appearance of this case before the Court. See Burke County v. Askin, 291 Ga. 697 732 SE2d 416 2012 “Burke County I”. In the prior appeal and cross-appeal, this Court vacated the superior court’s grant of mandamus relief and remanded the case with direction for the court to reconsider under the proper legal standard that portion of its ruling requiring the County to construct and maintain a previously unopened section of roadway. On remand, the superior court again issued a writ of mandamus granting the relief requested and the County appeals. For the reasons discussed below, we affirm the decision of the superior court.

The evidence shows that in 1962 five roads shown on a plat of Pineview, a proposed subdivision located in Burke County, were dedicated by deed to, and accepted by, the County, which thereafter passed a resolution to “cut or build” the roads. At some point, three of the roads were constructed as unpaved roads. Pineview’s proposed main thoroughfare, Frances Avenue, was one of the roads constructed, although the last few hundred feet remained unfinished. The two remaining roads on the plat appear never to have been built.2

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