05 HB
36/AP
House
Bill 36 (AS PASSED HOUSE AND SENATE)
By:
Representatives Willard of the
49th,
Geisinger of the
48th,
and Wilkinson of the
52nd
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
revise provisions of law relating to creation of new municipal corporations; to
amend Chapter 31 of Title 36 of the Official Code of Georgia Annotated, relating
to incorporation of municipal corporations, so as to eliminate certain minimum
distance requirements applicable to new incorporations; to provide that new
municipal corporations shall have a minimum amount of time to arrange for
service delivery; to change provisions relating to development requirements for
areas to be incorporated; to provide that the Attorney General shall seek
federal Voting Rights Act preclearances required in connection with new
incorporations; to provide for the authorization and regulation of alcoholic
beverage sales in new municipalities under certain circumstances; to provide for
the orderly transition of responsibilities and functions to a new municipality
from its county and provide for counties to retain certain functions and
responsibilities for certain periods of time; to provide for intergovernmental
relations; to provide for delayed application of certain laws; to authorize
appointment of interim representatives; to provide that a chartering Act may
specify any length or lengths for initial terms of office; to authorize the
appropriation of funds to the Department of Community Affairs for loans or
grants or both to new municipal corporations; to provide for effect with respect
to certain county special districts and provide certain protections for the
residents of such districts; to provide for the manner of expenditure of certain
county special district taxes, fees, and assessments under certain
circumstances; to provide for certain auditing and reporting requirements with
respect to special district revenues and expenditures in certain counties; to
amend Article 2 of Chapter 8 of Title 48 of the Official Code of Georgia
Annotated, relating to joint county and municipal local option sales tax, so as
to change provisions for distribution with respect to certain newly incorporated
municipalities and other local governments in the county; to provide for other
related matters; to provide for severability; to provide for effective dates and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
31 of Title 36 of the Official Code of Georgia Annotated, relating to
incorporation of municipal corporations, is amended by striking Code Section
36-31-2 thereof, relating to minimum distances between corporate boundaries, and
inserting in its place the following:
∀36-31-2.
(a)
No local Act granting a municipal charter shall be enacted wherein any part of
the proposed corporate boundary is less than three miles distance from the
corporate boundary of any existing municipal corporation in this state;
provided, however, that, if the residents of a certain geographical area within
three miles of an existing municipal corporation have been denied annexation to
the municipal corporation by the people of the municipal corporation, the
residents of such geographical area shall be entitled to incorporate a new
municipal corporation at any time within 12 months after such denial, and a
local Act granting a municipal charter may be enacted; provided, further, that
the population of the area proposed to be incorporated must exceed the
population of the existing municipal corporation, and a certificate from the
governing authority of the existing municipal corporation or from the judge of
the superior court of the county, evidencing the denial of annexation and the
population figures, must accompany the certificate of incorporation required by
this chapter.
(b)
Any provision of subsection (a) of this Code section to the contrary, a local
Act granting a municipal charter to any area comprising the former boundaries of
a municipal corporation the charter of which was repealed by operation of Code
Section 36-30-7.1 may be enacted at the regular 1996 or 1997 session of the
General Assembly without regard to the proximity of the proposed municipal
corporation to an existing municipal corporation.
When
a municipal corporation is created by local Act as authorized in this chapter,
the provisions of Code Section 36-30-7.1 shall not apply for two years from the
date the first elected officials of such municipal corporation take office. No
later than July 1 following the expiration of such two-year period, the
governing authority of the municipal corporation shall file a certification with
the Department of Community Affairs stating whether the municipal corporation
does or does not meet the standards for an active municipality under subsection
(b) of Code Section
36-30-7.1.∀
SECTION
2.
Said
Chapter 31 of Title 36 is further amended by striking Code section 36-31-4,
relating to standards for areas to be incorporated, and inserting in its place a
new Code section to read as follows:
∀36-31-4.
To
be eligible for original incorporation as a municipal corporation, the area
embraced shall be so developed that at least 60 percent of the total number of
lots and tracts in the area at the time of incorporation are used for
residential, commercial, industrial, institutional,
recreational,
or governmental purposes and shall be subdivided into lots and tracts such that
at least 60 percent of the total acreage, not counting the acreage
used
which
at the time of incorporation
is used for,
held for future use for, or subject to a contract for future
use for commercial, industrial,
governmental,
recreational,
or institutional purposes, consists of lots and tracts of five acres or less in
size.∀
SECTION
3.
Said
Chapter 31 of Title 36 is further amended by adding at its end new Code sections
to read as follows:
∀36-31-6.
When
a new municipal corporation is created by local Act, the Attorney General shall
be responsible for seeking any and all preclearances required in connection with
such Act and incorporation under the federal Voting Rights Act of 1965, as
amended, until such time as the new municipal corporation notifies the Attorney
General that it has the ability to seek any further preclearances
required.
36-31-7.
When
a new municipal corporation is created by local Act, the governing authority of
the municipal corporation shall have all the same powers to license and regulate
alcoholic beverages within its territory as did the governing authority of the
county when such territory was within the unincorporated area of the county.
Without limiting the generality of the foregoing, it is specifically provided
that no petition, election, or other condition precedent which might otherwise
be required under Title 3 to authorize sales of any alcoholic beverages shall be
required in order for the governing authority of the municipality to exercise
such powers.
36-31-8.
(a)
When a new municipal corporation is created by local Act, the local Act may
provide for a transition period not to exceed 24 months for the orderly
transition of governmental functions from the county to the new municipal
corporation. The local Act may specify the time or times during the transition
period (or the method or methods for determining the time or times during the
transition period) at which:
(1)
Various governmental functions, services, and responsibilities will be assumed
by the new municipal corporation within its territory; and
(2)
The municipal court of the new municipality shall begin to exercise its
jurisdiction over various subject matters.
(b)
When a chartering local Act so provides for a transition period, the county in
which the new municipality is located shall continue to provide within the
territory of the new city all government services and functions which it
provided as of the date of enactment of the chartering local Act. The county
shall continue to provide such services and functions until the end of the
transition period; provided, however, that the new city may assume the provision
of any service or function at such earlier time as may be specified in the
chartering local Act or at such earlier time as may be agreed upon by the county
and the new city.
(c)
When a chartering local Act so provides for a transition period, on and after
the first day the initial governing authority takes office, the governing
authority may from time to time adopt appropriate measures to initiate
collection within the territory of the new city during the transition period of
all taxes, fees, assessments, fines and forfeitures, and other moneys. Where a
particular tax, fee, assessment, fine, forfeiture, or other amount collected by
the city during the transition period is specifically related to the provision
of a particular government service or function by the county, the service or
function shall continue to be provided by the county during the transition
period contingent upon payment by the city of the actual cost of providing such
service or function unless otherwise provided in a written agreement between the
new city and the county.
(d)
When a chartering local Act so provides for a transition period, the county in
which the new city is located shall not from the time of enactment of the
charter until the end of the transition period remove from the county road
system any road within the territory of the new city except with the agreement
of the new city.
(e)
When a chartering local Act so provides for a transition period, the new
municipality shall not be subject to the laws specified in this subsection
during the transition period; provided, however, that the new city and other
political subdivisions may during the transition period commence planning,
negotiations, and other actions necessary or appropriate for compliance after
the transition period. During the transition period, the new municipality shall
not be subject to:
(1)
Chapter 70 of this title, relating to planning and service delivery
strategies;
(2)
Provisions of Code Sections 12-8-31.1 and 12-8-39.2, relating to solid waste
planning and solid waste management reporting;
(3)
Provisions of Code Section 48-13-56, relating to reporting of excise taxes
collected and expended pursuant to Article 3 of Chapter 13 of Title 48;
and
(4)
Provisions of Code Section 36-81-8, relating to reporting of local government
finances, reporting of revenues derived from a tax levied pursuant to Article 3
of Chapter 13 of Title 48, and reporting of local government services and
operations.
(f)
When a chartering local Act so provides for a transition period, upon the
termination of the transition period subsections (b) through (e) of this Code
section shall cease to apply and the new city shall be a fully functioning
municipal corporation and subject to all general laws of this
state.
(g)
As of the date a chartering local Act is approved by the Governor or becomes law
without such approval, the Governor is authorized to appoint five persons to
serve as interim representatives of the newly incorporated municipality until
the election of the
municipalitýs
first governing authority. The interim representatives shall cease to serve as
of the time the members of the first governing authority take office. The
function of the interim representatives shall be to facilitate the provision of
municipal services and facilities, the collection of taxes and fees, and the
negotiation of intergovernmental agreements in preparation of the establishment
of the new municipality. The interim representatives shall not have the ability
to enter into any binding agreements, to expend public funds, or to incur any
liability on behalf of the new municipality. Any person who is serving as or has
served as an interim representative shall be ineligible to qualify for election
as a member of the initial governing authority of the new
municipality.
36-31-9.
When
a new municipal corporation is created by local Act, the chartering local Act
may provide for the initial terms of office of members of the governing
authority to be of any length or lengths; and the provisions of this Code
section shall control over any conflicting provisions of Code Sections
21-2-541.1 and 21-2-541.2.
36-31-10.
The
General Assembly may, in connection with the incorporation of a new municipal
corporation, at any time (before, after, or contemporaneously with the passage
of the chartering Act) appropriate to the Department of Community Affairs funds
for grants or loans or both to a specific existing or proposed municipal
corporation. When funds are so appropriated, the department shall make grants as
specified by recipient, amount, and purpose and loans as specified by recipient,
amount, interest rate, term, and purpose in the appropriation unless the
chartering Act fails to secure passage or otherwise fails to become
effective.
36-31-11.
When
a municipal corporation is created by local Act within a county which has a
special district for the provision of local government services consisting of
the unincorporated area of the county, the territory within the new municipal
corporation shall be removed from the special district except to the extent
otherwise provided by Code Section 36-31-8 during a transition period and except
that the county may continue to levy within such territory any previously
imposed tax for the purpose of retiring any special district debt until such
time as such debt is retired.
36-31-12.
(a)
The General Assembly finds that:
(1)
The purpose of a special services district is to provide special services to a
given geographic area and to finance the provision of those services from taxes,
fees, and assessments levied in the geographic area which benefits from the
services;
(2)
The creation of a municipal corporation within a county which has a special
services district for the unincorporated area of the county may result in the
special services district being divided into noncontiguous areas or in existing
noncontiguous areas of such district being even more remote from each other;
and
(3)
The purpose of a special services district is defeated if it becomes divided
into noncontiguous areas which are remote from each other and one or more of
such noncontiguous areas is subsidizing the provision of services in other such
noncontiguous areas.
(b)
When a municipal corporation is created by local Act within a county which has a
special district for the provision of local government services consisting of
the unincorporated area of the county and following the creation of said
municipal corporation the special district is divided into two or more
noncontiguous areas, any special district taxes, fees, and assessments collected
in such a noncontiguous area shall be spent to provide services in that
noncontiguous area.
(c)
When a municipal corporation is created by local Act within a county subject to
this Code section, the county shall for the fiscal year in which the municipal
corporation is chartered and for each of the next two fiscal years have included
in its annual audit detailed findings as to:
(1)
The amount of any special district taxes, assessments, and fees collected in
each noncontiguous area of the special district;
(2)
The total amount of expenditures by the county for:
(A)
The provision of services within each noncontiguous area of the special
district, including only those services which are provided by the county only in
the special district; and
(B)
The construction and maintenance of facilities for the provision of services
referred to in subparagraph (A) of this paragraph; and
(3)
The amount by which expenditures stated in paragraph (2) of this subsection
exceed or are less than the amount stated in paragraph (1) of this
subsection.
(d)
The party performing the audit required by subsection (c) of this Code section
shall prepare as promptly as is practicable a brief informational summary of the
audit findings required by that subsection. The informational summary shall also
include a statement of the amount of proceeds collected by the county pursuant
to any tax under Article 2 of Chapter 8 of Title 48 which would be allocated to
each noncontiguous area of the special district if such area received an
allocation equal on a per capita basis to the average per capita allocation to
the cities in the county. After each
yeaŕs
summary becomes available, a copy of the summary shall be included with the next
ad valorem tax bills mailed by the county to residents of the special district
consisting of the unincorporated area of the county.
(e)
For purposes of determining applicability of this Code section, a county shall
be considered to have a special district for the provision of local government
services when a county has created a special district for such purposes pursuant
to Article IX, Section II, Paragraph VI of the Constitution or has created a
similar district for the provision of services under any other provision of any
past or present Constitution or
law.∀
SECTION
4.
Article
2 of Chapter 8 of Title 48 of the Official Code of Georgia Annotated, relating
to joint county and municipal local option sales tax, is amended by inserting a
new subsection (f) at the end of Code Section 48-8-89.1, relating to
distribution of the tax upon creation of a new municipal corporation in certain
counties, to read as follows:
∀(f)(1)
This subsection shall apply only when:
(A)
A municipal corporation is chartered by local Act within a county which has a
special district for the provision of local government services consisting of
the unincorporated area of the county; and
(B)
The population of the unincorporated area of the county will, after removal of
the population of the new municipality from the unincorporated area, constitute
less than 20 percent of the population of the county according to the most
recent decennial census.
(2)
Notwithstanding any other provision of this Code section, if there exists within
any special district in which the tax authorized by this article is imposed a
qualified municipality described in paragraph (1) of this subsection which was
not a qualified municipality on the date of filing with the commissioner of the
most recently filed certificate under Code Section 48-8-89, such qualified
municipality may request the commissioner to give notice of the qualified
municipalitýs
existence and status as a qualified municipality as provided in this subsection.
Upon receipt of such a request, the commissioner shall, unless he or she
determines that the requesting entity is not a qualified municipality, within 30
days give written notice of the qualified
municipalitýs
existence and status to the county which is conterminous with the special
district in which the qualified municipality is located and to each other
qualified municipality within the special district. Such written notice shall
include the name of the new qualified municipality, the effective date of the
notice, and a statement of the provisions of this subsection.
(3)
Within 60 days after the effective date of the notice referred to in paragraph
(2) of this subsection, a new distribution certificate shall be filed with the
commissioner for the special district. This distribution certificate shall
address only the proceeds of the tax available for distribution from the
percentage allocated to the county in the current distribution certificate and
shall specify as a percentage of the total proceeds of the tax what portion of
the proceeds shall be received by the county in which the special district is
located and by the new qualified municipality.
(4)
Except as otherwise provided in this paragraph, a distribution certificate
required by this subsection must be executed by the governing authorities of the
county within which the special district is located and each new qualified
municipality located wholly or partially within the special district. If a new
certificate is not filed within 60 days as required by paragraph (3) of this
subsection, the commissioner shall distribute the proceeds of the tax available
for distribution from the percentage allocated to the county in the current
distribution certificate such that the new qualified municipality receives an
allocation equal on a per capita basis to the average per capita allocation to
the other qualified municipalities in the county (according to population), to
be expended as provided in paragraph (2) of subsection (a) of Code Section
48-8-89. Every other qualified municipality shall continue to receive the share
provided by the existing distribution certificate or otherwise provided by law.
The county shall receive the remaining proceeds of the tax, to be expended as
provided in paragraph (2) of subsection (a) of Code Section 48-8-89. For the
purpose of determining the population of new qualified municipalities, only that
portion of the population of each such municipality which is located within the
special district shall be computed. For the purpose of determining population
under this Code section, all calculations of population shall be according to
the most recent decennial census.
(5)
The commissioner shall begin to distribute the proceeds as specified in the
certificate applicable to the county and the new qualified municipality or, if
such a certificate is not filed, as specified in paragraph (4) of this
subsection on the first day of the first month which begins more than 60 days
after the effective date of the notice referred to in paragraph (2) of this
subsection. The commissioner shall continue to distribute the proceeds of the
tax according to the existing certificate and the certificate applicable to the
county and the new qualified municipality or, if such a certificate is not
filed, as specified in paragraph (4) of this subsection until a subsequent
certificate is filed and becomes effective as provided in Code Section
48-8-89.∀
SECTION
5.
In
the event any section, subsection, sentence, clause, or phrase of this Act shall
be declared or adjudged invalid or unconstitutional, such adjudication shall in
no manner affect the other sections, subsections, sentences, clauses, or phrases
of this Act, which shall remain of full force and effect as if the section,
subsection, sentence, clause, or phrase so declared or adjudged invalid or
unconstitutional were not originally a part hereof. The General Assembly
declares that it would have passed the remaining parts of this Act if it had
known that such part or parts hereof would be declared or adjudged invalid or
unconstitutional.
SECTION
6.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval and shall apply with respect to any local Act
enacted at the 2005 regular session of the General Assembly or any future
session.
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.