Long v. Dev. Auth. of Fulton Cnty.
| Citation | 835 S.E.2d 717,352 Ga.App. 815 |
| Decision Date | 30 October 2019 |
| Docket Number | A19A1484, A19A1507, A19A1508 |
| Parties | LONG v. DEVELOPMENT AUTHORITY OF FULTON COUNTY et al. (three cases). |
| Court | Georgia Court of Appeals |
Henry D. Fellows Jr., Joseph Edward Hart, Atlanta, for Appellant.
Sandra Zagier Zayac, Cary Ichter, Henry Chalmers, Andrew Clay Stevens, Lauren Elizabeth Woodyard, Paul L. Howard Jr., Atlanta, for Appellee.
These appeals challenge orders validating revenue bonds authorized for issuance by a county development authority. The appellant claims that the petitions for validation did not comply with a statutory requirement that the purpose of the bonds be set forth; but a review of the petitions reveals that they did in fact state the purpose of the bonds and thus complied with the statutory requirement. The appellant also claims that the court erred in validating the bonds under a statutory "catchall" provision defining such bond projects; but the various phases of the project meet the definition provided by that provision. The appellant further contends that the bond transaction improperly bound the county board of tax assessors to a certain valuation of leasehold interests in the project assets; but the transaction merely provided a proper formula used by the board for such valuations. The appellant also claims that the court erred in refusing a continuance of the bond validation hearing; but there is no showing of an abuse of discretion by the court. Because the appellant has failed to show reversible error, we affirm.
On November 13, 2018, the Development Authority of Fulton County adopted three resolutions authorizing the issuance of taxable revenue bonds for a project at Phipps Plaza in Atlanta in the principal amounts of $90,200,000 for the office portion of the project, $63,300,000 for the hotel portion, and $60,700,000 for the retail portion. The development authority sent notice of the bond resolutions to the Fulton County District Attorney, who subsequently filed petitions in superior court for validation of the bonds. On December 18, 2018, Erica Long moved to intervene and for a continuance of the bond validation hearing scheduled for December 27, 2018. The superior court granted Long’s motion to intervene, but denied her motion for a continuance. After the December 27 evidentiary hearing, the court entered final orders validating the bonds for all three portions of the project.
Long appeals from the three final orders. Because the appeals raise the same issues, they are consolidated for our consideration.
Long contends that the court erred in validating the bonds because the petitions filed by the district attorney failed to satisfy the statutory requirement of setting forth the purpose for which the bonds are to be issued. The contention is without merit.
OCGA § 36-82-75 provides, in part, that such a petition shall set forth "the name of the governmental body seeking to issue the bonds, the amount of bonds to be issued, [and] for what purpose the bonds are to be issued ...." (Emphasis supplied.) Here, each of the petitions stated that the bond proceeds "are to be used to acquire, construct and equip land, improvements and related building fixtures and building equipment (the "Project") in Fulton County, Georgia, to be leased to [the respective appellee company] for use as a mixed-use commercial facility and an economic development project under OCGA § 36-62-2 (6) (N)."
Long has cited no persuasive authority showing that this description of the purpose of the bonds was deficient and did not comply with OCGA § 36-82-75. On the contrary, "[w]e agree with the trial court that the petition[s] substantially complied with the statutory requirement[ ] in [this] regard[ ]." Alexander v. Macon-Bibb County Urban Dev. Auth. , 257 Ga. 181, 184 (4), 357 S.E.2d 62 (1987) (footnote omitted) (involving other OCGA § 36-82-75 requirements about what must be set forth in bond validation petitions). See generally Cottrell v. Atlanta Dev. Auth. , 297 Ga. 1, 770 S.E.2d 616 (2015) (); Sherman v. Dev. Auth. of Fulton County , 320 Ga. App. 689, 690, 740 S.E.2d 663 (2013) ().
Long contends that the trial court erred in validating the bonds pursuant to OCGA § 36-62-2 (6) (N), arguing that the definition of "projects" set forth in that code section does not apply to these cases. We disagree.
OCGA § 36-62-2 provides definitions of various terms for the chapter of the code governing Development Authorities Law. See OCGA § 36-62-1 et seq .
Subsection (6) [of OCGA § 36-62-2 ] identifies fifteen kinds of "projects" that development authorities can finance. Known as the "catchall provision" of subsection (6), paragraph (6) (N) authorizes development authorities to finance: OCGA § 36-62-2 (6) (N).
Development Auth. of Cobb County v. State of Ga. , 306 Ga. 375, 376–78 (1), 829 S.E.2d 160 (2019). "Under paragraph (6) (N), a project is eligible for public financing only to the extent that it promotes ‘the development of trade, commerce, industry, and employment opportunities.’ " Id. at 377 (1), 829 S.E.2d 160.
Here, the trial court found in all three phases of the project – office, hotel, and retail – that the authority had determined the project will develop and promote trade, commerce, industry and employment opportunities for the public good and the general welfare of the state; that the authority had presented unrebutted testimony about such economic benefits of the project to the county and state; that issuance of the bonds to acquire, construct, and equip the project will be in the public interest; and that all phases thus qualify as projects within the meaning of OCGA § 36-62-2 (6) (N).
In challenging these findings in all three cases, Long argues that any intent to also use the bonds to realign streets, provide streetlights, rebuild a fire station, or build an emergency radio station are governmental projects that do not fall under the broad scope of paragraph (6) (N). She relies on Odom v. Union City Downtown Dev. Auth. , 251 Ga. 248, 305 S.E.2d 110 (1983) in support of this argument. Odom , however, is distinguishable from and does not control the instant cases. Rather, the instant cases are similar to Nations v. Downtown Dev. Auth. of the City of Atlanta , 255 Ga. 324, 338 S.E.2d 240 (1985).
As an initial matter, we note that both Odom and Nations did not involve paragraph (6) (N), although they addressed a similar statutory scheme for downtown development authorities. In distinguishing Odom , the Supreme Court in Nations explained:
In Odom , the [development authority] sought to issue revenue bonds, the proceeds of which would finance the construction of a new city hall, renovate the existing police station and jail, and improve city streets. The project thus consisted of purely public elements. This court held that the scope of [that] project did not fall within the constitutionally designated purposes of Downtown Development Authorities which are the promotion and development of trade, commerce, industry, and employment opportunities. In the case before us[, however,] the project is comprised of both public and private components which are integrated so as to produce the desired purposes. The trial court found that the project will promote and develop the public purposes of trade, commerce, industry, and employment opportunities. There is evidence in the record to support this determination.
Nations , supra at 331-332 (4), 338 S.E.2d 240 (citation and punctuation omitted).
As in Nations , the project in the instant cases does not consist of purely public elements, but is comprised of both private and public components. Moreover, the private components of the project greatly outweigh any public components, which would amount to only about $12 million of the more than $200 million total investment in the project. Since the public components are integrated into the larger private components of the project to produce the desired purposes, and the unrebutted evidence shows that the project will promote the development of trade, commerce, industry, and employment opportunities, the trial court did not err in finding that all three phases constitute a project within the meaning of OCGA § 36-62-2 (6) (N).
In Case No. A19A1484, Long also argues that the hotel portion of the project should be evaluated under paragraph (6) (H) (vi) of OCGA § 36-62-2, not under paragraph (6) (N). Under paragraph (6) (H) (vi), projects include:
The acquisition, construction, improvement, or modification of any property, real or personal, which shall be suitable for or used as or in connection with ... [h]otel and motel facilities for lodging which also may provide meals, provided that such facilities are constructed in connection with and adjacent to...
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