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City of Atlanta v. Mays

Supreme Court of Georgia

June 5, 2017

MAYS et al.

          NAHMIAS, Justice.

         This case involves challenges to the City of Atlanta's attempted annexation of five areas. The trial court correctly held that the annexations were invalid because at the time they would have become effective, the areas in question were already part of the newly incorporated City of South Fulton and thus ineligible for annexation by Atlanta. Accordingly, we affirm.

         1. On April 26, 2016, the Governor signed House Bill 514 ("HB 514"), a local act that incorporated the City of South Fulton ("South Fulton"). Section 1.10of the act says, in part, "The City of South Fulton in Fulton County is incorporated by the enactment of this charter and is constituted and declared a body politic and corporate under the name of 'City of South Fulton.'" Section 1.11defines the boundaries of South Fulton to "include all unincorporated areas of Fulton County . . . as such exist on July 1, 2016, " and explains that "[t]he boundaries of the city are more particularly described in Appendix A, attached to and made a part of this charter." Appendix A says that South Fulton "shall not include any territory that was annexed into another municipality before July 1, 2016, " and it describes all of the areas that are to be a part of South Fulton unless otherwise incorporated.

         Section 7.14 of HB 514 provides for a special referendum election to be held on November 8, 2016, for "the purpose of submitting this Act to the qualified voters of the proposed City of South Fulton . . . for approval or rejection." Qualified voters are defined in Section 7.13 as "the qualified electors of Fulton County residing within the corporate limits of the City of South Fulton as described by Section 1.11." Section 7.14 then says, "If more than half of the votes cast on such question are for approval of the Act, it shall become of full force and effect; otherwise, it shall thereafter be void and of no force and effect." However, Section 7.15 (a) says, "Sections 1.10 and 1.11 and those provisions of this charter necessary for the special election provided for in Section 7.14 of this charter shall become effective immediately upon this Act's approval by the Governor or upon its becoming law without such approval." Other provisions of HB 514 address things necessary for South Fulton to function after the referendum, such as granting the city "all the powers of self-government not otherwise prohibited by this charter or by general law" and establishing the structure and elections for the city's government.

         Shortly after the Governor approved HB 514 on April 26, 2016, the City of Atlanta ("Atlanta") received petitions for annexation from five unincorporated areas of Fulton County contiguous to Atlanta. The communities asking to be annexed (collectively, "the Communities") and the dates the annexation petitions were received are as follows: Cascade Falls on April 29; Cascade Business Corridor on May 16; Danforth Road on May 18; Cascade Manor on May 20; and Cottages at Cascade on June 3. All five petitions requested annexation based on the "60/60 method, " see OCGA § 36-36-32, which requires a petition to be signed by at least 60% of the registered voters and by owners of at least 60% of the land in the area proposed for annexation.[1]

          Atlanta's municipal clerk validated the annexation petitions and reported the validations to the Atlanta City Council at the beginning of a public hearing that was held on June 15 for all of the proposed annexations except Cottages at Cascade and on June 28 for Cottages at Cascade.[2] On June 20, the City Council approved the four proposed annexations heard on June 15, and the Mayor signed the four annexation ordinances on June 21. On June 28, the City Council approved the Cottages at Cascade annexation, and the Mayor signed the annexation ordinance the same day.[3] All of the ordinances said that they would become effective in accordance with applicable provisions of Georgia law.[4]

         On July 19, 2016, Emelyn T. Mays and five other individuals (collectively, "Mays"), who represent each of the proposed annexation areas as residents or property owners, filed a petition for declaratory judgment challenging the annexations in Fulton County Superior Court.[5] See OCGA § 36-36-39 (explaining that any resident elector or any property owner in the area may bring a petition for declaratory judgment to challenge an annexation). On August 29, the trial court held an evidentiary hearing, and on September 8, the court issued an order granting Mays's request for declaratory judgment and declaring the annexations null and void on the ground that they were untimely under the terms of HB 514 and thus the Communities were part of South Fulton. In reaching this conclusion, the court expressly rejected Atlanta's contention that HB 514 unconstitutionally conflicts with the general laws governing annexation by municipalities by preventing Atlanta's annexation of the Communities as of July 1, 2016.[6]

         On September 9, 2016, Atlanta filed a notice of appeal to this Court.[7] On September 13, Mays filed an emergency motion asking the Court to lift the automatic supersedeas of the trial court's order, see OCGA § 5-6-46 (a), and to expedite the appeal on the ground that the staying of the order would confuse voters as to whether they could vote in the November 8 referendum, make it impossible to describe the borders of South Fulton, and affect the outcome of the referendum by disenfranchising voters within the purportedly annexed areas. After receiving a response from Atlanta, we denied the motion to expedite the appeal, but granted the motion to lift the supersedeas, meaning that the annexations were not in force at the time of the referendum and that qualified electors residing in the Communities were allowed to vote in the referendum. In the referendum election on November 8, 2016, the voters approved HB 514, thus giving it full force and effect.

          2. Mays argues that we should now dismiss this appeal as moot, rather than deciding its merits, because the creation of South Fulton was approved in the referendum last November. The voters' approval of HB 514 does not render the act immune from challenge, however. The relief Atlanta seeks is not an injunction of the referendum. Compare Bruck v. City of Temple, 240 Ga. 411, 413 (240 S.E.2d 876) (1977) (explaining that because the election approving a local annexation act had been held, the appellants' request for an injunction of the election was moot). Instead, Atlanta is challenging the boundary-setting provisions of HB 514. Relief remains available for this challenge because if it were successful, then South Fulton's boundaries were substantially misidentified and the vote approving HB 514 was invalid, not only because people who did not reside within South Fulton were allowed to vote but also because all of the voters could not have known what particular incorporated area they were voting to approve.[8] Thus, Atlanta's contentions - first, that the Communities were properly annexed into Atlanta before they became part of South Fulton under the terms of HB 514 and second, that if they were not, HB 514 is unconstitutional - are "still alive." Bruck, 240 Ga. at 413 (holding that the appellants' challenge to the local annexation act for failing to provide for the extension or creation of wards was not moot after the referendum because it was alleged that "this omission from the local act renders it unconstitutional from its inception"). See also Wall v. Bd. of Elections, 242 Ga. 566, 568-571 (250 S.E.2d 408) (1978) (holding that the appellants' request to enjoin the referendum on an annexation act was moot because the referendum had been held, but addressing the merits of other challenges to the act).[9]

         3. We turn now to the interaction between HB 514 and Atlanta's attempted annexations and specifically the question of whether the annexations were accomplished in time to remove the Communities from the unincorporated areas of Fulton County that became the City of South Fulton. The portions of HB 514 most pertinent to this question are those defining the boundaries of South Fulton - Section 1.11 and Appendix A. As mentioned previously, Section 1.11 defines the boundaries of South Fulton as "all unincorporated areas of Fulton County . . . as such exist on July 1, 2016 . . . [and as] more particularly described in Appendix A, " which says that South Fulton "shall not include any territory that was annexed into another municipality before July 1, 2016." Atlanta argues that Section 1.11 and Appendix A are inconsistent because Section 1.11 sets the annexation deadline on July 1 and Appendix A sets it before July 1. But Section 1.11 specifically refers to Appendix A as describing South Fulton's boundaries "more particularly, " and Appendix A says particularly that if territory was not annexed into another city before July 1, it became part of South Fulton.

         Atlanta also argues that the Communities should never have been considered a part of South Fulton for two reasons: first, because the areas were made part of Atlanta before July 1; and second, because the part of HB 514 setting the date for defining South Fulton's boundaries should be construed as merely directory and the date moved later to allow for Atlanta's annexations. Atlanta raised these arguments only in its reply brief, after similar arguments were made in an amicus curiae brief filed by a group of residents from the Communities who support Atlanta's annexations. An appellant that raises an argument for the first time in a reply brief is not entitled to have that argument considered. See, e.g., Dallow v. Dallow, 299 Ga. 762, 779 (791 S.E.2d 20) (2016); Higbee Co. v. Solomon, 334 Ga.App. 884, 889 (780 S.E.2d 490) (2015). But even if we consider these arguments, it is clear that they lack merit (which may explain Atlanta's delay in raising them).

         (a) Each of Atlanta's five annexation ordinances recited that it would become effective as provided by Georgia law. The general rule in Georgia law is that a municipal ordinance becomes effective when it is signed and filed by the Mayor unless there is a constitutional or general statutory provision governing the matter. See City of Atlanta v. East Point Amusement Co., 222 Ga. 774, 776 (152 S.E.2d 374) (1966). In this case, there is a pertinent statutory provision altering the rule. OCGA § 36-36-2 (a) sets the effective date of annexations done "other than by local Act."[10] The statute provides special effective dates for purposes of ad valorem taxes and independent school systems, but it says that "for all other purposes [such annexations] shall become effective on the first day of the month following the month during which the requirements of Article 2, 3, or 4 of this chapter [which provide the three methods for municipal annexations], whichever is applicable, have been met." OCGA § 36-36-2 (a).

         Atlanta claims that determining whether the Communities were part of Atlanta before July 1 is not one of those "other purposes." Instead, Atlanta argues that we should look at when the annexations "occurred, " and contends that the annexations "occurred" as soon as the Mayor signed each ordinance in June. In support of this argument, Atlanta asserts that § 36-36-2 (a) indicates that an annexation "occurs" before it becomes "effective" because the statute says that for ad valorem tax purposes, the act "shall become effective . . . on December 31 of the year during which such annexation occurred." We need not decide what "occurred" means regarding the effective date of the tax aspects of the annexation ordinances, however, because it is clear that no portion of the ordinances had any legal import before July 1. See OCGA § 36-36-2 (a). See also Columbus, Georgia Consolidated Government v. Schmidt, 269 Ga. 723, 724 (507 S.E.2d 435) (1998) (looking at the effective date of the ordinance to determine when its provisions took effect). Thus, there was no effective annexation until July 1, and HB 514 requires that territory be "annexed" before July 1 to be removed from South Fulton.[11]

         (b) Atlanta alternatively argues that if the annexations were not accomplished before July 1, 2016, the trial court should have treated the July 1 deadline as merely directory and moved it back one day to allow Atlanta's annexations to take effect. Atlanta bases this argument on Section 7.17 of HB 514, which says:

It is the intention of the General Assembly that this Act be construed as directory rather than mandatory with respect to any date prescribed in this Act. If it is necessary to delay an action called for in this Act for providential cause or any other reason, it is the intention of the General Assembly that the action be delayed rather than abandoned. Any delay in performing any action under this Act, whether for cause or otherwise, shall not operate to frustrate the overall intent of this Act.

         The provision goes on to discuss two specific applications of this rule, stating that if it is not possible to hold the referendum election or first municipal election on the date specified in the act, such election should be held "as soon thereafter as is reasonably practicable."

         As indicated by its text and these examples, Section 7.17's proviso for delay applies to dates when the actions called for by HB 514 must be done; many such actions are specified in the act, including the holding of the initial elections and various actions transitioning government functions from Fulton County to the new city. But HB 514 does not mandate that any action occur on July 1; instead, that is simply the day on which the boundaries of South Fulton were settled under the terms of Section 1.11 and Appendix A. And even if July 1 could be construed as the date when the "action" of determining the boundaries had to be completed, Atlanta has offered no reason why it was "necessary to delay [this] action" to further the intent of HB 514. Atlanta's desire to annex the Communities before they could become part of South Fulton is not such a reason. To the ...

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