*1 Decided October Baker, General,
Thurbert Attorney Boleyn, E. Susan V. Senior General, Burton, Attorney Assistant Attorney Patricia B. Assistant General, for appellant. Sanders, Jr., Edwards,
Troutman Robert P. for appellee. S00A1103. v. CITY OF HIGDON SENOIA et al.
S00A1104. COWETA CITY OF COUNTY v. SENOIA. Thompson, Justice. companion upon these cases we are called to resolve whether (4) (C)
OCGA 36-70-24 delegation 36-36-11 violate the of zon- ing power under Art. Par. IV the Constitution. For the follow, reasons which we constitutional, declare the statutes and reverse judgment the trial court. session,
In its 1997 enacted the Service Delivery Act, OCGA 36-70-20 § et to “minimize inefficiencies seq., resulting duplication of and competition services between local and to a mechanism to resolve disputes over local government delivery, service funding and land use.” Id. equity, end, Toward that OCGA 36-70-24 provides for a res- dispute § a process olution when bona fide land use dispute arises between the city and over the use of which the subject land of annexa- tion. “[a] It that requires process 1,1998, shall be established July to resolve land use classification disputes county objects when a land use an area to be annexed into a municipality (a) within the county.” Id. OCGA 36-36-11 a defines “bona fide land § objection” classification as an a objection to proposed change land use which “results in substantial change intensity allowable use of the or a property change significantly to a different (b) use.” allowable OCGA 36-36-11 an provides annexation is any not effective until bona fide land use classification objections raised by relative to the area to be annexed are resolved pursuant to the resolution required 36- by OCGA § (4) (C). 70-24
To with the mandate comply (C), of OCGA 36-70-24 Coweta all County municipalities within incorporated county, includ- Senoia, ing the approved and adopted a written memorandum agreement (“agreement”) establishing to resolve land use disputes regarding classification property be annexed.
The present when litigation arose the owners 55.29 acres of applied unincorporated Coweta located in land sought develop The owners for annexation Senoia family requested single R-l residential a residential subdivision property zoning, is in one acre. The minimum lots of which allows Zoning requires County’s District, Rural Reserve *2 County notified the of lot of five acres. Coweta minimum size object proposed on the basis the higher density land use of its intent to Senoia requested in result a and would allows that the intensity of in of the use the increase substantial County phase dispute of resolution initiated the first the Coweta objections by notifying City agreement land of the of Senoia its step The next of the annexation. conflicts created agreement required the mitigative parties measures to the to devise parties proposed annexation. The created the address the conflicts mitigating dispute in as to the substantive successful were City problem question However, a arose when the of of land use.1 responsible for that would be added the condition Senoia Senoia agreed upon monitoring implementation of restrictions. When it the agree apparent not that Senoia and Coweta could became entity implementation, was would the which monitor - stage appeals of a annexation the next the reso- referred to board of lution agreement. The board recommended as set forth agreed upon approval previously with the restric- of annexation compliance. county required that the monitor tions on land use and rejected The of Senoia the board’s recommendation. parties phase called for the
The next of the resolution process. mutually and a mediation to select a mediator undertake parties, they despite suggestions When, were unable to from both agree upon mediator, a filed this action for declar- Senoia challenged constitutionality atory judgment in it of OCGA (4) (C) Higdon, capacity §§ Jim in his official 36-70-24 and 36-36-11. Community Georgia Department as of the the Commissioner granted Affairs, leave intervene as a defendant. The trial was judge and unconstitu- declared OCGA 36-36-11 36-70-24 tional in of Art. Par. IV of the Constitu- violation authority (governing municipality may exer- tion of each zoning). appeals Higdon cise the Commissioner Jim Case County appeals in S00A1103; No. Case No. S00A1104. agreed mutually property It that the would restrict the use of was Senoia family bordering single all lots would contain a residential homes and that minimum of 1.6 acres.
Case No. S00A1103 1. It is that the trial asserted court erred to dismiss refusing ground on the it did not a complaint properly assert claim for declaratory judgment. disagree. We Declaratory Judgment Act is “to settle uncertainty afford relief from with insecurity respect to rights, status, relations; legal liberally [it] other is to be construed and administered.” 9-4-1. An for declaratory judgment OCGA action remedy “an constitutionality available test a in a statute where case an actual with controversy respect Harper exists thereto.” 297) (1969). 420, 225 Ga. Burgess, Act been broadened to relief in a justiciable cases where contro- versy (b); exists. City Marietta, Baker v. There is justiciable “[w]here a controversy concrete issue is and there present, legal definite assertion rights, and positive legal thereto, with duty respect which are denied party.” City Snow, adverse Nashville v. (a) (1948). 377-378 *3 of aspects settled, some the land use dispute have been the trial court correctly determined that a justiciable controversy City exists because of Senoia is from prevented annexing prop- erty it alleges under a statute which be unconstitutional. There- fore, declaratory is a judgment proper vehicle to determine the rights of the It follows that parties. correctly the trial court to dis- refused miss complaint. Compare City Marietta, Baker v. supra of (there was justiciable controversy no and the trial court without was jurisdiction petition declaratory judgment to consider the because the county failed to make the required objection proposed use). annexation and land
Case No. S00A1104
2. The constitutional
was
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properly raised and
below
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invoke the constitutional
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See
Court.
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generally
Resources,
Blackston v. Dept. Natural
86
they merely
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or
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stitutional
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municipality
procedure
to be followed before
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legislature.
granted by
privilege
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exercise the
municipal
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Assembly
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(150
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City of Jesup,
by annexation,
In we are the statements of this Assembly explained § 36-36-10, the General the intent. governmental OCGA interest furthered OCGA 36-36-11: Assembly enacting express in It is the General the intent of provide provisions chapter alternative the methods for from of this for annexing deannexing into an area or areas or or municipality. Except corporate other- limits of a as the expressly provided chapter, provision in no wise this this relating by any chapter to annexation or deannexation such alternate method intended to or shall be construed to in any way impair authority restrict, limit, or otherwise the the to annex or deannex local Act. legislature enacting Likewise, the evinced in its the Ser- Delivery provides: vice Act.
[T]his resulting article intended to minimize inefficiencies duplication competition from governments putes equity, process municipal of services and between local
and to a mechanism to resolve dis- government delivery, funding local over service government delivery and land use. The local service noncompatible in should result the minimization of county plans simple, land use and in a con- agreement describing pro- cise which local will specified vide which service in areas within a provision how of such services will be funded. inquiring we exercise caution when into statements
legislative upon rejection justified only intent, the of such statements is proof.” County, the “clearest See Erotica v. Peach Cafe reject legislative 47, 48 We decline to objectives in this case. It is clear that the statutes under considera procedures tion concern annexation over the General Assem bly power. Pipe supra. prescriptions retains Line, Plantation set out in OCGA 36-36-11 and 36-70-24 create a attempting disputes concerning They to resolve annexation. take into orderly growth city impact consideration the need for the upon county. the land to be annexed as well as ‘Whether to add additional land area calls for an evaluation of the benefits and enlargement resulting impact upon burdens of such financial, and the political city and environmental structure and the Pipe supra. area to Line, be annexed.” Plantation resolu objectives. tion furthers those Because substantive implicated, matters are not statutes issue do not conflict with city’s power zone land within its boundaries. Finally, reject argument provisions ques- we Senoia’s that the give ability tion rezone ultimate over control While Art. Par. TVof the Consti- municipalities give power adopt plans tution does zoning and exercise city permit municipality limits, within its it does not dic- parcel property may tate how a “The be zoned outside of its boundaries. governing authority municipality each and of each may plans may adopt zoning.” exercise the Id. See also *5 907) (438 Rubin, Ga. v. Advertising Co. O S (1994) of land and restrict use power, to zone (municipality Ashkouti boundaries), grounds, on other overruled within its 785) (1999). Therefore, Suwanee, unconstitutionally infringe municipality’s does not zoning rights. reversed Judgment in Case No. S00A1103.
Judgment affirmed All concur. the Justices No. S00A1104. Case Justice, concurring. Carley, cases because majority’s opinion captioned I can concur OCGA 36-70-24 holding only the (C) constitutional Court’s II, IV Paragraph not Article Section do violate and 36-36-11 curiae present amicus Georgia Constitution. the 1983 VI, I, Section Par- statutes violate Article that those argument viable they delegate unlawfully because I of the Constitution agraph resolution process, courts to a dispute judicial power exclusive not by the trial court and is issue was not ruled on that constitutional before this Court. properly joins opinion. Hines in this
I am authorized to state that Justice October Decided Baker, General, M. Attorney Formby, Deputy E. Daniel
Thurbert Jr., Lewis, General, Ballard, E. Assis- B. Grace Senior Attorney John General, Higdon. for Attorneys tant Houston, Parnell, A. Young Kimberly H. Lane
Hawkins & Powell, LeVorse, Davis, Jr., A. A. Jerry Glover & Mitchell Debra E. Ballard, Jr., Conner, Baker, General, Attorney E. John B. Thurbert General, Attorney County. for Coweta Deputy Olson, Nelson, Jenkins, E. Peter R. Jenkins & Frank Senoia. Crane, Douglas Haynie, P. Emilie K. Petro- Haynie, & Litchfield Grubiak,
vich, Pridgen, James F. J. amici curiae. Kelly v. THE S00A1231. LUCAS STATE.
Benham, Chief Justice. mur- Michael Lucas’s convictions for appeal Johnny This he woman whom cruelty to children.1 Lucas and the with der 6,1992, 25,1992, April indicted on June The victim in this case died on and Lucas was