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Long v. Development Authority of Fulton County

Court of Appeals of Georgia, Fifth Division

October 30, 2019

LONG
v.
DEVELOPMENT AUTHORITY OF FULTON COUNTY et al. (three cases).

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          MCFADDEN, CHIEF JUDGE

         These appeals challenge orders validating revenue bonds authorized for issuance by a county development authority. The appellant claims that the petitions for validation did not comply with a statutory requirement that the purpose of the bonds be set forth; but a review of the petitions reveals that they did in fact state the purpose of the bonds and thus complied with the statutory requirement. The appellant also claims that the court erred in validating the bonds under a statutory "catchall" provision defining such bond projects; but the various phases of the project meet the definition provided by that provision. The appellant further contends that the bond transaction improperly bound the county board of tax assessors to a certain valuation of leasehold interests in the project assets; but the transaction merely provided a proper formula used by the board for such valuations. The appellant also claims that the court erred in refusing a continuance of the bond validation hearing; but there is no showing of an abuse of discretion by the court. Because the appellant has failed to show reversible error, we affirm.

         1. Facts and procedural posture.

         On November 13, 2018, the Development Authority of Fulton County adopted three resolutions authorizing the issuance of taxable revenue bonds for a project at Phipps Plaza in Atlanta in the principal amounts of $90, 200, 000 for the office portion of the project, $63, 300, 000 for the hotel portion, and $60, 700, 000 for the retail portion. The development authority sent notice of the bond resolutions to the Fulton County District Attorney, who subsequently filed petitions in superior court for validation of the bonds. On December 18, 2018, Erica Long moved to intervene and for a continuance of the bond validation hearing scheduled for December 27, 2018. The superior court granted Long's motion to intervene, but denied her motion for a continuance. After the December 27 evidentiary hearing, the court entered final orders validating the bonds for all three portions of the project.

          Long appeals from the three final orders. Because the appeals raise the same issues, they are consolidated for our consideration.

         2. Purpose of the bonds.

         Long contends that the court erred in validating the bonds because the petitions filed by the district attorney failed to satisfy the statutory requirement of setting forth the purpose for which the bonds are to be issued. The contention is without merit.

         OCGA § 36-82-75 provides, in part, that such a petition shall set forth "the name of the governmental body seeking to issue the bonds, the amount of bonds to be issued, [and] for what purpose the bonds are to be issued. . . ." (Emphasis supplied.) Here, each of the petitions stated that the bond proceeds "are to be used to acquire, construct and equip land, improvements and related building fixtures and building equipment (the "Project") in Fulton County, Georgia, to be leased to [the respective appellee company] for use as a mixed-use commercial facility and an economic development project under OCGA § 36-62-2 (6) (N)."

         Long has cited no persuasive authority showing that this description of the purpose of the bonds was deficient and did not comply with OCGA § 36-82-75. On the contrary, "[w]e agree with the trial court that the petition[s] substantially complied with the statutory requirement[] in [this] regard[]." Alexander v. Macon-Bibb County Urban Dev. Auth., 257 Ga. 181, 184 (4) (357 S.E.2d 62) (1987) (footnote omitted) (involving other OCGA § 36-82-75 requirements about what must be set forth in bond validation petitions). See generally Cottrell v. Atlanta Dev. Auth., 297 Ga. 1 (770 S.E.2d 616) (2015) (where purpose of bonds was to fund a portion of the cost of developing, constructing, and operating a new stadium facility in Atlanta); Sherman v. Dev. Auth. of Fulton County, 320 Ga.App. 689, 690 (740 S.E.2d 663) (2013) (noting that purpose of bonds was to finance the development of a manufacturing facility that would be leased to a certain company).

         3. OCGA § 36-62-2 (6) (N).

         Long contends that the trial court erred in validating the bonds pursuant to OCGA § 36-62-2 (6) (N), arguing that the definition of "projects" set forth in that code section does not apply to these cases. We disagree.

         OCGA § 36-62-2 provides definitions of various terms for the chapter of the code governing Development Authorities Law. See OCGA § 36-62-1 et seq.

Subsection (6) [of OCGA § 36-62-2] identifies fifteen kinds of "projects" that development authorities can finance. Known as the "catchall provision" of subsection (6), paragraph (6) (N) authorizes development authorities to finance: "The acquisition, construction, installation, modification, renovation, or rehabilitation of land, interests in land, buildings, structures, facilities, or other improvements and the acquisition, installation, modification, renovation, rehabilitation, or furnishing of fixtures, machinery, equipment, furniture, or other property of any nature whatsoever used on, in, or in connection with any such land, interest in land, building, structure, facility, or other improvement, all for the essential public purpose of the development of trade, commerce, industry, and employment opportunities. A project may be for any industrial, commercial, business, office, parking, public, or other use, provided that a majority of the members of the authority determines, by a duly adopted resolution, that the project and such use thereof would further the public purpose of this chapter." OCGA § 36-62-2 (6) (N).

Development Auth. of Cobb County v. State of Ga., ___ Ga. ___ (1) (829 S.E.2d 160) (2019). "Under paragraph (6) (N), a project is eligible for public financing only to the extent that it promotes 'the development of trade, commerce, industry, and ...


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