05 HB36/SCSFA/4
SENATE
SUBSTITUTE TO HB 36
AS
PASSED SENATE
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 for a certain period of time; 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 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 temporary
limitations on the amount of certain special district fees, assessments, and
taxes following the creation of a new municipal corporation in certain counties;
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 an effective date
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
1.1.
Said
Chapter 31 of Title 36 is further amended by striking Code Section 36-31-3,
relating to population standards for incorporation, and inserting in its place a
new Code section to read as follows:
“36-31-3.
(a)
To be eligible for original incorporation as a municipal corporation, the
minimum population standards of the area embraced within the proposed municipal
boundary shall be as follows:
(1)
A total resident population of at least 200 persons; and
(2)
An average resident population of at least 200 persons per square mile for the
total area.
(b)
No local Act granting a municipal charter shall be enacted wherein any part of
the proposed corporate boundary is less than three
mileś
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.”
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 chartered 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 chartered 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 chartered by local Act, the local Act may
provide for a transition period not to exceed 24 months for the orderly
transition of governmental factions 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, the new
municipality shall collect within the territory of the new city all taxes, fees,
assessments, fines and forfeitures, and other moneys as of the first day the
initial governing authority takes office. Where a particular tax, fee,
assessment, fine, forfeiture, or other amount collected 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 chartered 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 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, 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)
This Code section shall apply only when:
(1)
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
(2)
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.
(b)
When a municipal corporation is chartered 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 the
special district consisting of the unincorporated area of the county which shall
be reported as the 'actual special district tax, assessment, and fee
collections';
(2)
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 the unincorporated area
of the county if the unincorporated area received an allocation equal on a per
capita basis to the average per capita allocation to the cities in the county
which shall be reported as the 'deemed allocation of local option sales tax
proceeds';
(3)
The total amount of expenditures by the county for:
(A)
The provision of services within the special district consisting of the
unincorporated area of the county, including only those services which are
provided by the county only in that special district; and
(B)
The construction and maintenance of facilities for the provision of services
referred to in subparagraph (A) of this paragraph; and
(4)
The amount by which expenditures stated in paragraph (3) of this subsection
exceed or are less than the total of the amounts stated in paragraphs (1) and
(2) of this subsection.
(c)
The party performing the audit required by subsection (b) of this Code section
shall prepare as promptly as is practicable a brief informational summary of the
audit findings required by this Code section; and 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.
(d)
When a municipal corporation is chartered by local Act within a county subject
to this Code section, the fees, assessments, and taxes, if any, imposed only
within the special district shall not be increased during the calendar year in
which the municipal corporation is chartered and shall not be increased at any
time during the next two calendar years. During such time period, no new special
district shall be created within the unincorporated area of the county to evade
the purposes of this
prohibition.∀
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 to newly created municipalities when the
municipal corporation created by local Act meets or is subject to the
description specified in subsection (a) of Code Section 36-31-12.
(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 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.
(a)
Except as otherwise provided in this Act, 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.
(b) Section 1.1 of this Act, amending Code Section 36-31-3, shall become effective December 31, 2007, and shall apply with respect to any local Act enacted after that date.
(b) Section 1.1 of this Act, amending Code Section 36-31-3, shall become effective December 31, 2007, and shall apply with respect to any local Act enacted after that date.
SECTION
7.
All
laws and parts of laws in conflict with this Act are repealed.