CITY OF ATLANTA v. MAYS et al.
S17A0629
Supreme Court of Georgia
June 5, 2017
301 Ga. 367
NAHMIAS, Justice.
FINAL COPY
CITY OF ATLANTA v. MAYS et al.
NAHMIAS,
This case involves challenges to the City of Atlanta’s attempted annexation of five areas. The trial court correctly held that the annexations were invalid because at the time they would have become effective, the areas in question were already part of the newly incorporated City of South Fulton and thus ineligible for annexation by Atlanta. Accordingly, we affirm.
1. On April 26, 2016, the Governor signed House Bill 514 (“HB 514”), a local act that incorporated the City of South Fulton (“South Fulton”). Section 1.10 of the act says, in part, “The City of South Fulton in Fulton County is incorporated by the enactment of this charter and is constituted and declared a body politic and corporate under the name of ‘City of South Fulton.’” Section 1.11 defines the boundaries of South Fulton to “include all unincorporated areas of Fulton County . . . as such exist on July 1, 2016,” and explains that “[t]he boundaries of the city are more particularly described in Appendix A, attached to and made a part of this charter.” Appendix A says that South Fulton “shall not include any territory that was annexed into another municipality before July 1, 2016,” and it describes all of the areas that are to be a part of South Fulton unless otherwise incorporated.
Section 7.14 of HB 514 provides for a special referendum election to be held on November 8, 2016, for “the purpose of submitting this Act to the qualified voters of the proposed City of South Fulton . . . for approval or rejection.” Qualified voters are defined in Section 7.13 as “the qualified electors of Fulton County residing within the corporate limits of the City of South Fulton as described by Section 1.11.” Section 7.14 then says, “If more than half of the votes cast on such question are for approval of the Act, it shall become of full force and effect; otherwise, it shall thereafter be void and of no force and effect.” However, Section 7.15 (a) says, “Sections 1.10 and 1.11 of this chapter and those provisions of this charter necessary for the special election provided for in Section 7.14 of this charter shall become effective immediately upon this Act’s approval by the Governor or upon its becoming law without such approval.” Other provisions of HB 514 address things necessary for South Fulton to function after the referendum, such as granting the city “all the powers of self-government not otherwise prohibited by this charter or by general law” and establishing the structure and elections for the city’s government.
Shortly after the Governor approved HB 514 on April 26, 2016, the City of Atlanta (“Atlanta”) received petitions for annexation from five unincorporated areas of Fulton County contiguous to Atlanta. The communities asking to be annexed (collectively, “the Communities”) and the dates the annexation petitions were received are as follows: Cascade Falls on April 29; Cascade Business Corridor on May 16; Danforth Road on May 18; Cascade Manor on May 20; and Cottages at Cascade on June 3. All five petitions requested annexation based on the “60/60 method,” see
Atlanta’s municipal clerk validated the annexation petitions and reported the validations to the Atlanta City Council at the beginning of a public hearing that was held on June 15 for all of the proposed annexations except Cottages at Cascade and on June 28 for Cottages at Cascade.2 On June 20, the City Council approved the four proposed annexations heard on June 15, and the Mayor signed the four annexation ordinances on June 21. On June 28, the City Council approved the Cottages at Cascade annexation, and the Mayor signed the annexation ordinance the same day.3 All of the ordinances said that they would become effective in accordance with applicable provisions of Georgia law.4
On July 19, 2016, Emelyn T. Mays and five other individuals (collectively, “Mays”), who represent each of the proposed annexation areas as residents or property owners, filed a petition for declaratory judgment challenging the annexations in Fulton County Superior Court.5 See
On September 9, 2016, Atlanta filed a notice of appeal to this Court.7 On September 13, Mays filed an emergency motion asking the Court to lift the automatic supersedeas of
2. Mays argues that we should now dismiss this appeal as moot, rather than deciding its merits, because the creation of South Fulton was approved in the referendum last November. The voters’ approval of HB 514 does not render the act immune from challenge, however. The relief Atlanta seeks is not an injunction of the referendum. Compare Bruck v. City of Temple, 240 Ga. 411, 413 (240 SE2d 876) (1977) (explaining that because the election approving a local annexation act had been held, the appellants’ request for an injunction of the election was moot). Instead, Atlanta is challenging the boundary-setting provisions of HB 514. Relief remains available for this challenge because if it were successful, then South Fulton’s boundaries were substantially misidentified and the vote approving HB 514 was invalid, not only because people who did not reside within South Fulton were allowed to vote but also because all of the voters could not have known what particular incorporated area they were voting to approve.8 Thus, Atlanta’s contentions — first, that the Communities were properly annexed into Atlanta before they became part of South Fulton under the terms of HB 514 and second, that if they were not, HB 514 is unconstitutional — are “still alive.” Bruck, 240 Ga. at 413 (holding that the appellants’ challenge to the local annexation act for failing to provide for the extension or creation of wards was not moot after the referendum because it was alleged that “this omission from the local Act renders it unconstitutional from its inception”). See also Wall v. Bd. of Elections of Chatham County, 242 Ga. 566, 568-571 (250 SE2d 408) (1978) (holding that the appellants’ request to enjoin the referendum on an annexation act was moot because the referendum had been held, but addressing the merits of other challenges to the act).9
3. We turn now to the interaction between HB 514 and Atlanta’s attempted annexations and specifically the question of whether the annexations were accomplished in time to remove the Communities from the unincorporated areas of Fulton County that became the City of South Fulton. The portions of HB 514 most pertinent to this question are those defining the boundaries of South Fulton — Section 1.11 and Appendix A. As mentioned previously, Section 1.11 defines the boundaries of South Fulton as “all unincorporated areas of Fulton County . . . as such exist on July 1, 2016 . . . [and as] more particularly described in Appendix A,” which says that South Fulton “shall not include any territory that was annexed into another municipality before July 1, 2016.” Atlanta argues that Section 1.11 and Appendix A are
Atlanta also argues that the Communities should never have been considered a part of South Fulton for two reasons: first, because the areas were made part of Atlanta before July 1; and second, because the part of HB 514 setting the date for defining South Fulton’s boundaries should be construed as merely directory and the date moved later to allow for Atlanta’s annexations. Atlanta raised these arguments only in its reply brief, after similar arguments were made in an amicus curiae brief filed by a group of residents from the Communities who support Atlanta’s annexations. An appellant who raises an argument for the first time in a reply brief is not entitled to have that argument considered. See, e.g., Dallow v. Dallow, 299 Ga. 762, 779 (791 SE2d 20) (2016); Higbee Co. v. Solomon, 334 Ga. App. 884, 889 (780 SE2d 490) (2015). But even if we consider these arguments, it is clear that they lack merit (which may explain Atlanta’s delay in raising them).
(a) Each of Atlanta’s five annexation ordinances recited that it would become effective as provided by Georgia law. The general rule in Georgia law is that a municipal ordinance becomes effective when it is signed and filed by the Mayor unless there is a constitutional or general statutory provision governing the matter. See City of Atlanta v. East Point Amusement Co., 222 Ga. 774, 776 (152 SE2d 374) (1966). In this case, there is a pertinent statutory provision altering the rule.
Atlanta claims that determining whether the Communities were part of Atlanta before July 1 is not one of those “other purposes.” Instead, Atlanta argues that we should look at when the annexations “occurred,” and contends that the annexations “occurred” as soon as the Mayor signed each ordinance in June. In support of this argument, Atlanta asserts that
(b) Atlanta alternatively argues that if the annexations were not accomplished before July 1, 2016, the trial court should have treated the July 1 deadline as merely directory and moved it back one day to allow Atlanta’s annexations to take effect. Atlanta bases this argument on Section 7.17 of HB 514, which says in part:
It is the intention of the General Assembly that this Act be construed as directory rather than mandatory with respect to any date prescribed in this Act. If it is necessary to delay any action called for in this Act for providential cause or any other reason, it is the intention of the General Assembly that the action be delayed rather than abandoned. Any delay in performing any action under this Act, whether for cause or otherwise, shall not operate to frustrate the overall intent of this Act.
The provision goes on to discuss two specific applications of this rule, stating that if it is not possible to hold the referendum election or first municipal election on the date specified in the act, such election should be held “as soon thereafter as is reasonably practicable.”
As indicated by its text and these examples, Section 7.17’s proviso for delay applies to dates when the actions called for by HB 514 must be done; many such actions are specified in the act, including the holding of the initial elections and various actions transitioning government functions from Fulton County to the new city. But HB 514 does not mandate that any action occur on July 1; instead, that is simply the day on which the boundaries of South Fulton were settled under the terms of Section 1.11 and Appendix A. And even if July 1 could be construed as the date when the “action” of determining the boundaries had to be completed, Atlanta has offered no reason why it was “necessary to delay [this] action” to further the intent of HB 514. Atlanta’s desire to annex the Communities before they could become part of South Fulton is not such a reason. To the extent Atlanta argues that delay was necessary to ensure HB 514’s constitutionality, we now turn to — and reject — the argument that HB 514 would be unconstitutional if it did not allow Atlanta’s annexations.
4. Atlanta argues that if HB 514 is construed as preventing its annexations of the Communities on (or even after) July 1, 2016, then the act is unconstitutional and thus void. And because HB 514 is void, the argument continues, the Communities are not part of South Fulton and were subject to annexation by Atlanta on July 1. Atlanta’s argument hinges on the Uniformity Clause of the Georgia Constitution, which says in relevant part that “no local or special law shall be enacted in any case for which provision has been made by an existing general law.”
Atlanta contends that HB 514 conflicts with the general laws that give cities the power to annex contiguous, unincorporated areas when the city meets the requirements of one of three annexation methods set forth in what we will call the “Municipal Annexation Statutes.”12 In particular, Atlanta
(a) To begin with, the general law on which Atlanta relies for its purported authority to annex the Communities does not permit a city to annex territory that is already part of another city;
We note that on this point, the trial court’s analysis was slightly off-base. While the court concluded that HB 514 put a “hold” on the Communities on July 1, pending the November 8 referendum, HB 514 actually incorporated these areas. Section 7.15 of the act says clearly that Sections 1.10 and 1.11, which incorporate South Fulton and define its boundaries, became effective when the Governor approved the act, which he did on April 26, 2016, and Sections 1.11 and Appendix A fixed the city’s boundaries as of July 1. See also
Once the Communities were incorporated along with the rest of South Fulton,
(b) More importantly, the trial court was correct in concluding that the annexation power of cities is subordinate to the General Assembly’s power to annex and incorporate. Atlanta argues that the General Assembly’s power to incorporate South Fulton by local law was precluded because the Municipal Annexation Statutes regulate how the boundaries of cities may be changed and thus occupy that regulatory field. This Court has explained that the Uniformity Clause “was intended to [e]nsure that once the legislature entered a field by enacting a general law, that field must thereafter be reserved exclusively to general legislation and could not be open to special or local laws.” Hudgins, 193 Ga. at 623. See also Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 274-275 (507 SE2d 460) (1998).
However, the field that the Municipal Annexation Statutes occupy is not how all city boundaries are established, but rather only how the boundaries of existing cities may be changed by those cities under the limited annexation powers delegated to them by the General Assembly. Indeed,
Except as otherwise expressly provided in this chapter, no provision of this chapter relating to annexation or deannexation by any such alternate method is intended to or shall be construed to in any way restrict, limit, or otherwise impair the authority of the General Assembly to annex or deannex by local Act.
The only express limitation the legislature has placed on its own authority to annex by local act is
Furthermore, this Court has squarely held that the Municipal Annexation Statutes do not limit the General Assembly’s power to control the boundaries of cities. In City of Fort Oglethorpe v. Boger, 267 Ga. 485 (267 SE2d 186) (1997), the Court held that the General Assembly’s annexation of a non-contiguous area into the City of Fort Oglethorpe by local act was valid even though municipalities are limited to annexing contiguous areas and some language in
The Court of Appeals applied a similar rationale in City of Brookhaven, which presented circumstances analogous to those here. In that case, the General Assembly passed a local act that “established boundaries for an area of land (the ‘Annexation Area’) for annexation by the City of Chamblee.” City of Brookhaven, 329 Ga. App. at 346. The act also provided for a referendum election on the annexation. See id. After the act was signed but before the referendum could take place, Brookhaven attempted to annex part of the Annexation Area. See id. at 349. Citing
Perhaps recognizing that
5. Because the City of Atlanta did not annex the five Communities before they became part of the City of South Fulton by the terms of HB 514, a constitutionally valid local act, the trial court’s ruling that Atlanta’s annexations were invalid was correct. We therefore do not need to address the other arguments raised by Mays and relied on by the trial court as alternative reasons for holding that Atlanta’s annexations were invalid.
Judgment affirmed. All the Justices concur.
Decided June 5, 2017.
Annexation; constitutional question. Fulton Superior Court. Before Judge Dempsey.
Bondurant, Mixson & Elmore, Emmet J. Bondurant II, Robert L. Ashe III, David G. H. Brackett; Holland & Knight, Robert S. Highsmith, Jr.; Joseph D. Young, for appellant.
Robbins Ross Alloy Belinfante Littlefield, Joshua B. Belinfante, Kimberly K. Anderson, for appellees.
Rusi C. Patel, Susan J. Moore, Michael V. Coleman, Peter D. Coffman, amici curiae.
Notes
Authority is granted to the governing bodies of the several municipal corporations of this state to annex to the existing corporate limits thereof unincorporated areas which are contiguous to the existing corporate limits at the time of such annexation, in accordance with the procedures provided in this article and in Article 1 of this chapter, upon the written and signed application of not less than 60 percent of the electors resident in the area included in any such application and of the owners of not less than 60 percent of the land area, by acreage, included in such application. The authority granted in this Code section is in addition to existing authority and is intended to provide a cumulative method of annexing territory to municipal corporations in addition to those methods provided by present law.
The municipal governing body shall hold a public hearing on any application which has been determined to meet the requirements of this article. The hearing shall be held not less than 15 nor more than 45 days from the time the governing body makes a determination that the petition is valid. Notice of the time and place of the hearing shall be given in writing to the persons presenting the application and shall be advertised once a week for two consecutive weeks immediately preceding the hearing in a newspaper of general circulation in the municipal corporation and in the area proposed for annexation.
If, after the public hearing, the governing body determines that the annexation to the municipal corporation of the area proposed in the application would be in the best interest of the residents and property owners of the area proposed for annexation and of the citizens of the municipal corporation, the area may be annexed to the municipal corporation by the adoption of an annexing ordinance.
(a) Except as provided in subsection (c) of this Code section, all annexation other than by local Act shall become effective for ad valorem tax purposes on December 31 of the year during which such annexation occurred and for all other purposes shall become effective on the first day of the month following the month during which the requirements of Article 2, 3, or 4 of this chapter, whichever is applicable, have been met.
. . .
(c) (1) Where an independent school system exists within the boundaries of a municipality, other effective dates may be established by the municipality solely for the purpose of determining school enrollment.
(2) Unless otherwise agreed in writing by a county governing authority and the municipal governing authority, where property zoned and used for commercial purposes is annexed into a municipality with an independent school system, the effective date for the purposes of ad valorem taxes levied for educational purposes shall be December 31 of the year after the year in which the requirements of Article 2, 3, or 4 of this chapter, whichever is applicable, have been met.
Id. at 348.The General Assembly [has] 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.