In Georgia Dept. of Transp. v. Peach Hill Properties , 278 Ga. 198 599 SE2d 167 2004, we held that the trial court abused its discretion by ordering the Department of Transportation DOT to submit to the Federal Aviation Administration the exemption request of Peach Hill Properties, Inc. for a landfill to be located within six miles of a regional airport. However, we also concluded that the trial court could mandate “1 the development of reasonable guidelines enabling Peach Hill to seek a landfill exemption and 2 a prompt and fair consideration of Peach Hill’s exemption request.” Georgia Dept. of Transp. v. Peach Hill Properties , supra at 201 2. On remand, the trial court entered an order consistent with our opinion and, in response, DOT adopted Rule 672-9-.05. However, Peach Hill did not submit an exemption application under the provisions of that rule, as we had indicated would be appropriate. Instead, Peach Hill filed an amended petition for declaratory judgment and mandamus under the previous case number. Acting pursuant to that amended petition, the trial court struck certain requirements and criteria in Rule 672-9-.05 as vague, duplicative of existing rules, unrelated to air safety, impossible to comply with, or providing DOT with unfettered discretion. The trial court further ordered DOT to adopt a rule which complies with that court’s orders, and directed the entry of a final judgment. DOT appeals from that judgment.
1. DOT contends that the trial court lacked subject matter jurisdiction to grant declaratory judgment concerning the validity of Rule 672-9-.05. This jurisdictional issue “is properly before us notwithstanding DOT’s failure to raise it below. Cit.” Department of Medical Assistance of Ga. v. Beverly Enterprises , 195 Ga. App. 753, 754 1 395 SE2d 15 1990, rev’d on other grounds, 261 Ga. 59 401 SE2d 499 1991.
