City of Brookhaven v. City of Chamblee

• Citation: 765 S.E.2d 33,329 Ga.App. 346
• Decision Date: 23 October 2014
• Docket Number: No. A14A0762.,A14A0762.
• Court: United States Court of Appeals (Georgia)
• Parties: CITY OF BROOKHAVEN et al. v. CITY OF CHAMBLEE.

329 Ga.App. 346

765 S.E.2d 33

CITY OF BROOKHAVEN et al.

v.CITY OF CHAMBLEE.

No. A14A0762.

Court of Appeals of Georgia.

Oct. 23, 2014.

Certiorari Denied March 2, 2015.

Laurel Allyson David, Holland & Knight, Robert Sparks Highsmith Jr., Gallloway Law Group, Andrea Cantrell Jones, Atlanta, Cecil Guy McLendon Jr., Riley McLendon, William F. Riley Jr., Leonid Michael Felgin, Marietta, Barnes Law Group, Roy E. Barnes, for Appellants.

Stephen Gervaise Quinn, Wilson, Morton & Downs, Robert E. Wilson, Decatur, for Appellee.

Opinion

McMILLIAN, Judge.

This appeal presents an issue of first impression: whether a municipality has the authority pursuant to OCGA § 36–36–21 to annex land that the General Assembly has designated for annexation to another municipality, subject to a referendum, before the referendum takes place. We find that municipalities do not have such authority.

The facts underlying this appeal are undisputed, and thus the application of law to these facts is subject to de novo review.

Fayette County v. Steele, 268 Ga.App. 13, 601 S.E.2d 403 (2004). In 2013, the General Assembly passed Local Act 205 (the “Act”), which established boundaries for an area of land (the “Annexation Area”) for annexation by the City of Chamblee, Georgia (“Chamblee”).¹ Ga. L. 2013, p. 4320–4322. The Annexation Area included “Century Center,” a commercial development owned by Highwoods Properties, Inc.² (“Highwoods”). Section 1 of the Act provided a legal description of the Annexation Area and stated that it was creating a new charter for Chamblee “by annexing [the area] to the existing corporate limits” of Chamblee. Ga. L. 2013, Vol. 2, at 4320. Section 2 of the Act provided that “the election superintendent of DeKalb County shall call and conduct an election as provided in this section for the purpose of submitting this Act to the electors of the [Annexation Area] for approval or rejection.” Id. at 4321. The legislation further provided that the superintendent was to conduct this referendum “on the Tuesday after the first Monday in November, 2013,” and that “[i]f more than one-half of the votes cast on such question are for approval of the annexation, then this Act shall become effective on December 30, 2013.” Id. But “[i]f more than one-half of the votes cast on such question are for rejection of the annexation, this Act shall not become effective and shall be automatically repealed on the first day of January immediately following such election date.” Id. The Act was signed by the Governor on May 6, 2013. Ga. L. 2013, at 4322.

Thereafter, on July 1, 2013, Highwoods applied to the City of Brookhaven, Georgia (“Brookhaven”) for annexation of Century Center into that city's corporate limits under the “100 percent method” of annexation outlined in OCGA § 36–36–21.³ After Brookhaven's city council scheduled a vote on the issue, Chamblee filed a petition seeking a declaratory judgment and injunctive relief against Brookhaven. Chamblee initially obtained a temporary restraining order enjoining the Brookhaven city council from voting on the annexation. Subsequently, the trial court allowed Highwoods to intervene in the action as a defendant, without objection by Chamblee or Brookhaven. And on August 19, 2013, the trial court issued an interlocutory injunction barring the Brookhaven “from acting to annex any portion of the [Annexation Area] until further order of this Court.” In September 2013, the parties filed cross-motions for summary judgment.

In the interim, Brookhaven and Highwoods filed an emergency motion in the Supreme Court of Georgia seeking relief from the August 19 injunction. On October 3, 2013, the Supreme Court granted the motion, staying the trial court's interlocutory injunction “to the extent that it prohibits a vote by the City Council of Brookhaven on the annexation of Century Center or otherwise interferes with acts of a legislative character.” Thereafter, on October 11, 2013, Brookhaven and Highwoods filed a document entitled “Notice of Annexation” in the trial court, which stated that “on Tuesday, October 8, 2013, the City of Brookhaven annexed the territory known as Century Center,” but which did not include any supporting documentation.

Based on that filing, Brookhaven and Highwoods asserted in supplemental briefing on the cross-motions for summary judgment that Brookhaven's annexation of the Century Center property was a fait accompli. And they argued that allowing Chamblee's annexation to proceed by enforcing the Act would mean that the Act would serve both to deannex the Century Center property from the corporate limits of Brookhaven and to annex it to the corporate limits of Chamblee. As a result, they contended that the Act would violate this state's constitutional requirement that all legislation have a single subject matter. See Ga. Const. of 1983, Art. III, Sec. V, Par. III. On October 28, 2013, the trial court issued an order granting Chamblee's summary judgment motion and allowing Chamblee to proceed with its annexation. The Order also denied Highwoods's and Brookhaven's summary judgment motions, without addressing their constitutional argument. Highwoods appealed that order the same day.

Subsequently, on November 5, 2013, voters approved Chamblee's annexation by referendum. Under the terms of the Act, that annexation became effective on December 30, 2013, but in response to an emergency motion filed by Highwoods, this Court issued an order on December 19, 2013, enjoining Chamblee from proceeding with the annexation of the Century Center property pending resolution of this appeal.

1. The issues in this case require us to consider the relative powers of annexation granted to the General Assembly and to municipalities under Georgia law. The starting point of our analysis is the provision of the Georgia Constitution vesting all legislative power in the General Assembly. Ga. Const. of 1983, Art. III, Sec. I, Par. I. Historically, our Supreme Court determined that the power of annexation is legislative in nature and that the legislature could not delegate such power to municipalities because the Georgia Constitution did not authorize it to do so. See Du Pre v. City of Marietta, 213 Ga. 403, 405–406(2), 99 S.E.2d 156 (1957) ; Phillips v. City of Atlanta, 210 Ga. 72, 75, 77 S.E.2d 723 (1953). See also Ballentine v. Willingham, 237 Ga. 60, 61(1), 226 S.E.2d 593 (1976) (“It has always been within the power of the General Assembly to extend or diminish the corporate limits of a municipality.”). Therefore, annexation by a municipality required a local act by the General Assembly. See Bruck v. City of Temple, 240 Ga. 411, 413(3), n. 3, 240 S.E.2d 876 (1977).

But in 1954, the Georgia Constitution was amended to allow the General Assembly “[to provide] by law for the self-government of municipalities and to that end [it was] expressly given the authority to delegate its power so that matters pertaining to municipalities may be dealt with without the necessity of action by the General Assembly.” Ga. Const. of 1983, Art. IX, Sec. II, Par. II. This amendment thus granted the General Assembly the authority to delegate the power of annexation to municipalities. See Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 866, 188 S.E.2d 864 (1972).

The General Assembly subsequently passed legislation delegating to municipalities the authority to annex adjoining land under three alternative methods: (1) the “100% method,” by which a municipality may annex adjoining land upon application by all the owners of the land, with certain exceptions, OCGA §§ 36–36–50 to 36–36–23 ; (2) the “60% method,” by which a municipality may annex adjoining land upon application by a minimum of 60% of adjoining landowners, OCGA §§ 36–36–30 to 36–36–40 ; and (3) the “Resolution and Referendum method,” by which a municipality may, on its own initiative, annex contiguous lands meeting certain requirements, by resolution and referendum, OCGA §§ 36–36–51 to 36–36–61. Nevertheless, the General Assembly has expressly retained its authority to annex or deannex by local act and has clarified that none of the alternative annexation methods “is intended to or shall be construed to in any way to restrict, limit, or otherwise impair the authority of the General Assembly to annex or deannex by local Act.” OCGA § 36–36–10.⁴ See also OCGA § 36–36–16.

2. In this case, the General Assembly exercised its authority to annex by local act by designating a particular tract of land for annexation by Chamblee and by providing that the electors in the Annexation Area would vote on the issue in a referendum.⁵ But before the referendum could take place, Highwoods petitioned Brookhaven to annex the Century Center property under the 100% method, and the Brookhaven city council voted to approve the annexation. Highwoods argues on appeal that the trial court erred in relying on the Act to grant summary judgment to Chamblee because under its terms, the Act would not become effective until later, after referendum approval, which occurred approximately one month after the Brookhaven council's vote.

Thus, we must determine the Act's status at the time the Brookhaven city council voted to annex Century Center. Under Georgia law, the baseline rule is that local legislation is intended to have the effect of law “immediately upon approval by the Governor or upon [its] becoming law without his approval, unless a different effective date is specified in the Act ....” OCGA § 1–3–4(b). Among other things, the Act both identified the Annexation Area for inclusion within the Chamblee corporate limits and directed the elections superintendent in DeKalb County to hold a referendum to allow a vote on whether that designated area should be annexed. If the voters approved the annexation, the Act then stated that it would become effective on December 30, 2013. Thus, we find that the Act was in effect when signed by the Governor with regard to setting the referendum for a vote on the designated Annexation...