Stanford v. City of Atlanta

• Decision Date: 27 September 2021
• Docket Number: A21A1004
• Parties: STANFORD v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

361 Ga.App. 248

863 S.E.2d 721

STANFORD

v.CITY OF ATLANTA.

A21A1004

Court of Appeals of Georgia.

September 27, 2021

Michael D. Johnson, Craig K. Pendergrast, Atlanta, for Appellant.

Richard Joseph Valladares, Steven Jason Rosenwasser, Atlanta, for Appellee.

Gobeil, Judge.

Melissa Stanford appeals from the trial court's dismissal of her action — on her own behalf and as a proposed class representative of similarly situated property owners of commercial properties — against the City of Atlanta (the "City") based on the assessment of annual "frontage" fees.¹ In her suit, Stanford alleged that the City's assessment of such fees constitutes an "illegal tax" as opposed to a reasonable fee for solid waste services. On appeal, Stanford asserts that: (1) the trial court erred in dismissing the action due to her failure to attach certified copies of the applicable municipal ordinances to her complaint as amended; and (2) even assuming her pleading was deficient, the court should have allowed Stanford the opportunity to amend her complaint to include the applicable ordinances. For the reasons that follow, we reverse the dismissal order and remand the case to the trial court for further proceedings.

A motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. The appellate court reviews de novo the trial court's ruling on the defendants’ motion to dismiss, accepting as true all well-pled material allegations in the complaint and resolving any doubts in favor of the plaintiff.

Williams v. DeKalb County , 308 Ga. 265, 270 (2), 840 S.E.2d 423 (2020) (citations and punctuation omitted).

So viewed, the record shows that pursuant to the Code of the City of Atlanta ("City Code") § 130-84, the City charges commercial property owners a mandatory annual fee for solid waste services ("solid waste fees"), for services such as street sweeping, emptying public trash receptacles, right-of-way mowing, and storm debris removal. The City does not collect any solid waste generated by commercial property owners. Rather, such owners generally contract with private vendors for the collection of solid waste generated at their commercial properties.

On November 5, 2018, the City Council approved City Ordinance 18-O-1300, whereby the City amended City Code § 130-84 and increased the annual solid waste fees assessed on commercial property owners effective April 1, 2019. Pursuant to the 2018 amendment, the City eliminated mandatory solid waste fees for single-family residential property owners and small multi-family (defined as five or fewer units) effective April 1, 2019.² Additionally, the City Council passed City Ordinance 19-O-1297, which modified City Code § 130-84, and initiated the assessment of a new mandatory multi-family unit fee to owners of multi-family units in developments containing six or more units. The City Code does not permit commercial property owners to opt-out of the payment of solid waste fees or multi-family unit fees (collectively, "frontage fees") imposed by City Code § 130-84.

On June 26, 2019, Little Five Points Partnership, LLLP ("L5PP")³ filed a putative class action lawsuit against the City on behalf of itself and as a potential class representative of other owners of commercial properties in the City, alleging in pertinent part that the collection of frontage fees constitutes an unlawful tax. L5PP did not attach a copy of City Code § 130-84 or the two contested city ordinances to the complaint. Discovery commenced and L5PP filed the deposition of Rita Braswell, an employee of the City's Department of Public Works, with the trial court on March 3, 2020. Attached to the deposition, among other things, were copies of City Ordinance 18-O-1300 (Exhibit 6) and City Ordinance 19-O-1297 (Exhibit 17), which both amended sections of City Code § 130-84.

L5PP moved for class certification of the action. During a hearing on the motion on March 5, 2020, the court admitted a certified copy of City Ordinance 18-O-1300, which amended the solid waste fees contained in City Code § 130-84 effective April 1, 2019. The court also admitted a copy (not certified) of City Ordinance 19-O-1297, which amended the multi-family unit fee in City Code § 130-84.

The court subsequently denied L5PP's motion for class certification, finding in relevant part that L5PP was an inadequate class representative as the entity was owned and managed by L5PP's co-counsel's brother, thereby giving "an appearance of and potential for impropriety."

L5PP filed a motion seeking to substitute Stanford as the proposed class representative. As relevant here, since 2012, Stanford has owned and resided in a unit located within a multi-unit condominium property in the City and is subject to the frontage fees. Attached to the motion to substitute was a draft amended complaint, which did not include a copy of City Code § 130-84 or the applicable ordinances. The trial court granted L5PP's motion to substitute Stanford as both plaintiff and class representative in the underlying action.

The City moved to dismiss the action for failure to state a claim for relief, arguing, among other things, that Stanford's claims were barred by existing case law. On October 13, 2020, Stanford filed an amended and restated complaint, which likewise did not include a copy of City Code § 130-84 or the two ordinances as exhibits. In the amended complaint, Stanford sought to represent a class of "commercial property owners," which she defined as

owners of interests in commercial, industrial, retail, office, institutional, and multi-family properties (i.e., townhome, condominium, and apartment developments with six (6) or more dwelling units) who are and/or have been subject to assessment and payment of [frontage fees] imposed by the City pursuant to City Code [§] 130-84.

Stanford described that:

The primary subject matter of this action is the assessment of illegal taxes in the form of mandatory charges by the City that it refers to as solid waste collection frontage fees against [Stanford] and other commercial property owners as described herein pursuant to City Code [§] 130-84.

Stanford alleged that the frontage fees, "while claimed by the City to be user fees, are in part or whole in the nature of illegal taxes not authorized by the Georgia Constitution and Georgia law," and "substantially exceed[ ] the reasonable cost of any street sweeping which the City has planned and performed on streets adjacent to [Stanford's] property and other commercial properties in the City." As relief, Stanford demanded that the City refund all frontage fees paid by members of the class during the previous five years, and further sought to enjoin the City from collecting such fees in the future.

The trial court granted the City's motion and dismissed the action. As relevant here, the court sua sponte addressed whether Stanford had properly pleaded City Code § 130-84:

The gravamen of Stanford's claims is that City Code § 130-84 imposes illegal taxes. Because City Code § 130-84 is not set forth verbatim in the Complaint, an uncertified copy is not attached to the Complaint and Amended Complaint, and the City has not admitted the language of City Code § 130-84 in its Answer, the [c]ourt finds Stanford has not properly pled City Code § 130-84. Accordingly, the [c]ourt finds the Amended Complaint fails to state a claim.

The instant appeal followed.⁴

1. Stanford argues that the trial court erred in dismissing the action based "on the mistaken premise that [she] failed to adequately plead City Code [§] 130-84." Specifically, she highlights that copies of the applicable ordinances — City Ordinances 18-O-1300 and 19-O-1297 — were filed and admitted into the record at the March 5, 2020 hearing on L5PP's motion for class certification, as well as attached as exhibits to City employee Braswell's deposition filed during discovery.

"It is well established by numerous decisions of this [C]ourt that judicial notice can not be taken by the superior court or this [C]ourt of city or county ordinances, but they must be alleged and proved." Thorsen v. Saber , 288 Ga. 18, 19 (1), 701 S.E.2d 133 (2010) (citation and punctuation omitted). "The proper method of proving a city ordinance is production of the original ordinance or a certified copy thereof." Holman v. Glen Abbey Homeowners Assn. , 356 Ga. App. 379, 385 (2), 847 S.E.2d 1 (2020) (citation and punctuation omitted).

In its dismissal order, the trial court relied heavily on the Supreme Court of Georgia's recent decision in Williams . In that case, the plaintiff incorporated into his complaint by reference a copy of the salary ordinance, which was attached as an exhibit to the complaint, as amended. Williams , 308 Ga. at 268 (1) n. 6, 840 S.E.2d 423. Our Supreme Court concluded that for purposes of the motion to dismiss, the plaintiff "pled the existence and content of the ordinance; moreover, he demonstrated that, within the framework of the complaint, a certified copy of the ordinance may be introduced at trial or during an evidentiary proceeding to prove the ordinance." Id. Notably, our case law does not hold that the only method to prove an ordinance is by attaching a certified copy to a complaint or amended complaint. See, e. g., Whitfield v. City of Atlanta , 296 Ga. 641, 642, 769 S.E.2d 76 (2015) (vacating the superior court's ruling on the constitutionality of a municipal ordinance on a motion to dismiss as a copy of the ordinance, certified or otherwise, "appears nowhere in the record ") (emphasis supplied); Holman , 356 Ga. App. at 385 (2), 847 S.E.2d 1 (declining to address assertion...