CITY OF BROOKHAVEN et al.
CITY OF CHAMBLEE
Annexation. DeKalb Superior Court. Before Judge Barrie.
Barnes Law Group, Roy E. Barnes, Holland & Knight, Robert S. Highsmith, Jr., Galloway Law Group, Andrea C. Jones, Laurel A. David, Riley McLendon, William F. Riley, Jr., Cecil G. McLendon, Jr., Leonid M. Felgin, for appellants.
Wilson, Morton & Downs, Robert E. Wilson, Stephen G. Quinn, for appellee.
MCMILLIAN, Judge. Andrews, P. J., and McFadden, J., concur.
This appeal presents an issue of first impression: whether a municipality has the authority pursuant to OCGA § 36-36-21 to annex land that the General Assembly has designated for annexation to another municipality, subject to a referendum, before the referendum takes place. We find that municipalities do not have such authority.
The facts underlying this appeal are undisputed, and thus the application of law to these facts is subject to de novo review. Fayette County v. Steele, 268 Ga.App. 13 (601 S.E.2d 403)
In 2013, the General Assembly passed Local Act 205 (the " Act" ), which established boundaries for an area of land (the " Annexation Area" ) for annexation by the City of Chamblee, Georgia (" Chamblee" ). Ga. L. 2013, pp. 4320-4322. The Annexation Area included " Century Center," a commercial development owned by Highwoods Properties, Inc. (" Highwoods" ). Section 1 of the Act provided a legal description of the Annexation Area and stated that it was creating a new charter for Chamblee " by annexing [the area] to the existing corporate limits" of the City. Ga. L. 2013, p. 4320. Section 2 of the Act provided that " the election superintendent of DeKalb County shall call and conduct an election as provided in this section for the purpose of submitting this Act to the electors of the [Annexation Area] for approval or rejection." Id. at 4321. The legislation further provided that the superintendent was to conduct this referendum " on the Tuesday after the first Monday in November, 2013," and that " [i]f more than one-half of the votes cast on such question are for approval of the annexation, then this Act shall become effective on December 30, 2013." Id. But " [i]f more than one-half of the votes cast on such question are for rejection of the annexation, this Act shall not become effective and shall be automatically repealed on the first day of January immediately following such election date." Id. The Act was signed by the Governor on May 6, 2013. Ga. L. 2013, p. 4322.
Thereafter, on July 1, 2013, Highwoods applied to the City of Brookhaven, Georgia (" Brookhaven" ) for annexation of Century Center [329 Ga.App. 347] into that city's corporate limits under the " 100 percent method" of annexation outlined in OCGA § 36-36-21. After Brookhaven's city council scheduled a vote on the issue, Chamblee filed a petition seeking a declaratory judgment and injunctive relief against Brookhaven. Chamblee initially obtained a temporary restraining order enjoining the Brookhaven city council from voting on the annexation. Subsequently, the trial court allowed Highwoods to intervene in the action as a defendant, without objection by Chamblee or Brookhaven. And on August 19, 2013, the trial court issued an interlocutory injunction barring Brookhaven " from acting to annex any portion of the [Annexation Area] until further order of this Court." In September 2013, the parties filed cross-motions for summary judgment.
In the interim, Brookhaven and Highwoods filed an emergency motion in the Supreme Court of Georgia seeking relief from the August 19 injunction. On October 3, 2013, the Supreme Court granted the motion, staying the trial court's interlocutory injunction " to the extent that it prohibits a vote by the City Council of Brookhaven on the annexation of Century Center or otherwise interferes with acts of a legislative character." Thereafter, on October 11, 2013, Brookhaven and Highwoods filed a document entitled " Notice of Annexation" in the trial court, which stated that " on Tuesday, October 8, 2013, the City of Brookhaven annexed the territory known as Century Center," but which did not include any supporting documentation.
Based on that filing, Brookhaven and Highwoods asserted in supplemental briefing on the cross-motions for summary judgment that Brookhaven's annexation of the Century Center property was a fait accompli. And they argued that allowing Chamblee's annexation to proceed by enforcing the Act would mean that the Act would serve both to ...