07 LC 28
3723S
The
Senate State and Local Governmental Operations Committee offered the following
substitute to HB 2:
substitute to HB 2:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 36 of Title 36 of the Official Code of Georgia Annotated, relating
to annexation of territory, so as to provide that the provisions of Code Section
36-36-11, relating to the effect of an objection to land use following a
rezoning and the minimum procedures for addressing related issues, shall not be
used on or after September 1, 2007; to provide a procedure for resolving
disputes between governing authorities relative to annexation; to provide for
applicability; to provide for a notice of annexation; to provide for a
prohibition on a change in zoning or land use; to provide for objection; to
provide for grounds and procedures; to provide for an arbitration panel; to
provide for membership, duties, and compensation; to provide for appeal; to
provide for annexation following such procedures; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
36 of Title 36 of the Official Code of Georgia Annotated, relating to annexation
of territory, is amended by revising subsection (a) of Code Section 36-36-11,
relating to the effect of an objection to land use following a rezoning and the
minimum procedures for addressing related issues, as follows:
"(a)
The intent of this Code section is to provide a mechanism to resolve disputes
over land use arising out of the rezoning of property to a more intense land use
in conjunction with or subsequent to annexation in order to facilitate
coordinated planning between counties and municipalities particularly with
respect to areas contiguous to municipal
boundaries;
provided, however, that on and after September 1, 2007, such dispute resolutions
shall be governed by the provisions of Article 7 of this chapter and the
provisions of this Code section shall be limited to proceedings initiated prior
to such date."
SECTION
2.
Said
chapter is further amended by adding a new article to read as
follows:
"ARTICLE
7
36-36-110.
The
procedures of this article shall apply to all annexations pursuant to this
chapter but shall not apply to annexations by local Acts of the General
Assembly.
36-36-111.
Upon
receipt of a petition of annexation, a municipal corporation shall notify the
governing authority of the county in which the territory to be annexed is
located by certified mail or by statutory overnight delivery. Such notice shall
include a copy of the annexation petition which shall include the proposed
zoning and land use for such area. The municipal corporation shall take no
final action on such annexation except as otherwise provided in this
article.
36-36-112.
If
no objection is received as provided in Code Section 36-36-113, the annexation
may proceed as otherwise provided by law; provided, however, that as a condition
of the annexation the municipal corporation shall not change the zoning or land
use plan relating to the annexed property to a more intense density than that
stated in the notice provided for in Code Section 36-36-111 for one year after
the effective date of the annexation unless such change is made in the service
delivery agreement or comprehensive plan and is adopted by the affected city and
county and all required parties.
36-36-113.
(a)
The county governing authority may by majority vote object to the annexation
because of a material increase in burden upon the county directly related to any
one or more of the following:
(1)
The proposed change in zoning or land use;
(2)
Proposed increase in density; and
(3)
Infrastructure demands related to the proposed change in zoning or land
use.
(b)
Delivery of services may not be a basis for a valid objection but may be used in
support of a valid objection if directly related to one or more of the subjects
enumerated in paragraphs (1), (2), and (3) of subsection (a) of this Code
section.
(c)
The objection provided for in subsection (a) of this Code section shall document
the nature of the objection specifically providing evidence of any financial
impact forming the basis of the objection and shall be delivered to the
municipal governing authority by certified mail or statutory overnight delivery
to be received not later than the end of the thirtieth calendar day following
receipt of the notice provided for in Code Section 36-36-111.
(d)
In order for an objection pursuant to this Code section to be valid, the
proposed change in zoning or land use must:
(1)
Result in:
(A)
A substantial change in the intensity of the allowable use of the property or a
change to a significantly different allowable use; or
(B)
A use which significantly increases the net cost of infrastructure or
significantly diminishes the value or useful life of a capital outlay project,
as such term is defined in Code Section 48-8-110, which is furnished by the
county to the area to be annexed; and
(2)
Differ substantially from the existing uses suggested for the property by the
county´s comprehensive land use plan or permitted for the property pursuant
to the county´s zoning ordinance or its land use ordinances.
36-36-114.
(a)
Not later than the fifteenth calendar day following the date the municipal
corporation received the first objection provided for in Code Section 36-36-113,
an arbitration panel shall be appointed as provided in this Code
section.
(b)
The arbitration panel shall be composed of five members to be selected as
provided in this subsection. The Department of Community Affairs shall develop
three pools of arbitrators, one pool which consists of persons who are currently
or within the previous six years have been municipal elected officials, one pool
which consists of persons who are currently or within the previous six years
have been county elected officials, and one pool which consists of persons with
a master´s degree or higher in public administration or planning and who
are currently employed by an institution of higher learning in this state, other
than the Carl Vinson Institute of Government. The pool shall be sufficiently
large to ensure as nearly as practicable that no person shall be required to
serve on more than two panels in any one calendar year and serve on no more than
one panel in any given county in any one calendar year. The department is
authorized to coordinate with the Georgia Municipal Association, the Association
County Commissioners of Georgia, the Council of Local Governments, and similar
organizations in developing and maintaining such pools.
(c)
Upon receiving notice of a disputed annexation, the department shall choose at
random four names from the pool of municipal officials, four names from the pool
of county officials, and three names from the pool of academics; provided,
however, that none of such selections shall include a person who is a resident
of the county which has interposed the objection or any municipal corporation
located wholly or partially in such county. The municipal corporation shall be
permitted to strike or excuse two of the names chosen from the county officials
pool; the county shall be permitted to strike or excuse two of the names chosen
from the municipal officials pool; and the county and municipal corporation
shall each be permitted to strike or excuse one of the names chosen from the
academic pool.
(d)
Prior to being eligible to serve on any of the three pools, persons interested
in serving on such panels shall receive joint training in alternative dispute
resolution together with zoning and land use training, which may be designed and
overseen by the Carl Vinson Institute of Government in conjunction with the
Association County Commissioners of Georgia and the Georgia Municipal
Association, provided such training is available.
(e)
At the time any person is selected to serve on a panel for any particular
annexation dispute, he or she shall sign the following oath: 'I do solemnly
swear or affirm that I will faithfully perform my duties as an arbitrator in a
fair and impartial manner without favor or affection to any party, and that I
have not and will not have any ex parte communication regarding the facts and
circumstances of the matters to be determined, other than communications with my
fellow arbitrators, and will only consider, in making my determination, those
matters which may lawfully come before me.'
36-36-115.
(a)(1)
The arbitration panel appointed pursuant to Code Section 36-36-114 shall meet as
soon after appointment as practicable and shall receive evidence and argument
from the municipal corporation, the county, and the applicant or property owner
and shall by majority vote render a decision which shall be binding on all
parties to the dispute as provided for in this article not later than the
sixtieth day following such appointment. The meetings of the panel in which
evidence is submitted or arguments of the parties are made shall be open to the
public pursuant to Chapter 14 of Title 50. The panel shall first determine the
validity of the grounds for objection as specified in the objection. If an
objection involves the financial impact on the county as a result of a change in
zoning or land use or the provision of maintenance of infrastructure, the panel
shall quantify such impact in terms of cost. As to any objection which the
panel has determined to be valid, the panel, in its findings, may establish
reasonable zoning, land use, or density conditions applicable to the annexation
and propose any reasonable mitigating measures as to an objection pertaining to
infrastructure demands.
(2)
In arriving at its determination, the panel shall consider:
(A)
The existing comprehensive land use plans of both the county and
city;
(B)
The existing land use patterns in the area of the subject property;
(C)
The existing zoning patterns in the area of the subject property;
(D)
Each jurisdiction´s provision of infrastructure to the area of the subject
property;
(E)
Whether the county has approved similar changes in intensity or allowable uses
on similar developments in other unincorporated areas of the county;
(F)
Whether the county has approved similar developments in other unincorporated
areas of the county which have a similar impact on infrastructure as complained
of by the county in its objection; and
(G)
Whether the infrastructure or capital outlay project which is claimed adversely
impacted by the county in its objection was funded by a county-wide
tax.
(3)
The county shall provide supporting evidence that its objection is consistent
with its land use plan and the pattern of existing land uses and zonings in the
area of the subject property.
(4)
The county shall bear at least 75 percent of the cost of the arbitration. The
panel shall apportion the remaining 25 percent of the cost of the arbitration
equitably between the city and the county as the facts of the appeal warrant;
provided, however, that if the panel determines that any party has advanced a
position that is substantially frivolous, the costs shall be borne by the party
that has advanced such position.
(5)
The reasonable costs of participation in the arbitration process of the property
owner or owners whose property is at issue shall be borne by the county and the
city in the same proportion as costs are apportioned under paragraph (4) of this
subsection.
(6)
The panel shall deliver its findings and recommendations to the parties by
certified mail or statutory overnight delivery.
(b)
If the decision of the panel contains zoning, land use, or density conditions,
the findings and recommendations of the panel shall be recorded in the deed
records of the county with a caption describing the name of the current owner of
the property, recording reference of the current owner´s acquisition deed
and a general description of the property, and plainly showing the expiration
date of any restrictions or conditions.
(c)
The arbitration panel shall be dissolved on the tenth day after it renders its
findings and recommendations but may be reconvened as provided in Code Section
36-36-116.
(d)
The members of the arbitration panel shall receive the same per diem, expenses,
and allowances for their service on the committee as is authorized by law for
members of interim legislative study committees.
(e)
If the panel so agrees, any one or more additional annexation disputes which may
arise between the parties prior to the panel´s initial meeting may be
consolidated for the purpose of judicial economy if there are similar issues of
location or similar objections raised to such other annexations or the property
to be annexed in such other annexations is within 2,500 feet of the subject
property.
36-36-116.
The
municipal or county governing authority or an applicant for annexation may
appeal the decision of the arbitration panel by filing an action in the superior
court of the county within ten calendar days from receipt of the panel´s
findings and recommendations. The sole grounds for appeal shall be to correct
errors of fact or of law, the bias or misconduct of an arbitrator, or the
panel´s abuse of discretion. The superior court shall schedule an
expedited appeal and shall render a decision within 20 days from the date of
filing. If the court finds that an error of fact or law has been made, that an
arbitrator was biased or engaged in misconduct, or that the panel has abused its
discretion, the court shall issue such orders governing the proposed annexation
as the circumstances may require, including remand to the panel. Any unappealed
order shall be binding upon the parties. The appeal shall be assigned to a
judge who is not a judge in the circuit in which the county is
located.
36-36-117.
If
the annexation is completed after final resolution of any objection, whether by
agreement of the parties, act of the panel, or court order as a result of an
appeal, the municipal corporation shall not change the zoning, land use, or
density of the annexed property for a period of one year unless such change is
made in the service delivery agreement or comprehensive plan and adopted by the
affected city and county and all required parties. Following the conclusion of
the dispute resolution process outlined in this article, the municipal
corporation and an applicant for annexation may either accept the
recommendations of the arbitration panel and proceed with the remaining
annexation process or abandon the annexation proceeding. A violation of the
conditions set forth in this Code section may be enforced thereafter at law or
in equity until such conditions have expired as provided in this Code
section.
36-36-118.
If
at any time during the proceedings the municipal corporation or applicant
abandons the proposed annexation, the county shall not change the zoning, land
use, or density affecting the property for a period of one year unless such
change is made in the service delivery agreement or comprehensive plan and
adopted by the affected city and county and all required parties. A violation
of the conditions set forth in this Code section may be enforced thereafter at
law or in equity until such period has expired. After final resolution of any
objection, whether by agreement of the parties, act of the panel, or any appeal
from the panel´s decision, the terms of such decision shall remain valid
for the one-year period and such annexation may proceed at any time during the
one year without any further action or without any further right of objection by
the county.
36-36-119.
The
county, the municipal governing authorities, and the property owner or owners
shall negotiate in good faith throughout the annexation proceedings provided by
this article and may at any time enter into a written agreement governing the
annexation. If such agreement is reached after the arbitration panel has been
appointed and before its dissolution, such agreement shall be adopted by the
panel as its findings and recommendations. If such agreement is reached after
an appeal is filed in the superior court and before the court issues an order,
such agreement shall be made a part of the court´s order. Any agreement
reached as provided in this Code section shall be recorded as provided in Code
Section 36-36-115."
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.