By
Peter R. OlsonÓ
JENKINS, BOWEN AND WALKER, P.C.
15 South Public Square
Cartersville, Georgia 30120
770/387-1373
INTRODUCTION
Annexation is governed by O.C.G.A. Title 36, Chapter 36 (§ 36-36-1 et seq.) That chapter describes three main types of annexation: the 100 percent method, the 60 percent method, and annexation by resolution and referendum. Property can also be annexed by local Act of the General Assembly. Each will be outlined in turn, and deannexation procedures will be briefly discussed. Following that will be an analysis of zoning problems that arise in the annexation context. Finally, this paper will address the latest amendments to the Zoning Procedures Law, O.C.G.A. § 36-66-1 et seq., including the problems it was designed to address.
I. THE 100 PERCENT METHOD
Municipal corporations can annex unincorporated areas contiguous to the existing corporate limits--"contiguous" means abuts the municipal limits, or is separated by a street, river or railroad-type right-of-way, or city land, or land owned by some other political subdivision, or the lands owned by the state. O.C.G.A. § 36-36-20.
This method does not apply to cities wholly or partially within counties having over 100,000 population. O.C.G.A. § 36-36-21.
A. Requirements for Application for Annexation
1. Written
2. Signed by 100 percent of owners (or legal representative thereof) of all the land, except the owners of any public road or right-of-way; however, owner of private road must consent or sign application.
3. Complete description of lands to be annexed.O.C.G.A. § 36-36-21
B. When an application for annexation is received, the municipality must:
1. Give notice (cert. mail) of the proposed annexation to the governing authority of the county wherein the property is located,
2. Within five business days, and
3. The notice must include a map or other description sufficient to identify the area. O.C.G.A. § 36-36-6
C. The county must respond (cert. mail) within five business days of receipt, and inform if any county owned facilities are located in the proposed area to be annexed. O.C.G.A. § 36-36-7.
D. Once property annexed, identification of property shall be filed with the Secretary of State (Director of Elections Division), and the governing authority of the county in which the property is located. O.C.G.A. § 36-36-3.
II. THE 60 PERCENT METHOD
Under this method, municipal corporations of at least 200 persons can annex a contiguous area--but contiguous area has a different definition from the definition of the 100 percent method. Here, "contiguous" means at least one-eighth of the property's aggregate external boundary must abut the municipal boundary (or would abut if not separated by streets, rivers, public rights-of-way, county land, city land or state land). O.C.G.A. § 36-36-31.
A. Requirements for Application for Annexation
1. Written
2. Signed by at least 60 percent of the electors resident in the area and at least 60 percent of the owners (or legal representatives thereof) of the land area, by acreage. Name, address and date of signature must also be printed on application, and whether landowner, elector or both.
3. A complete description of lands proposed to annex. The property cannot cross county lines by this method. (O.C.G.A. § 36-36-33).
4. All signatures must be collected within one year from the first signature collected. O.C.G.A. § 36-36-32
B. When an application for annexation is received, the municipality must:
1. Give notice (cert. mail) of the proposed annexation to the governing authority of the county wherein the property is located,
2. Within five business days, and
3. The notice must include a map or other description sufficient to identify the area.
O.C.G.A. § 36-36-6
C. The county must respond (cert. mail) within five business days of receipt, and inform if any county owned facilities are located in the proposed area to be annexed. O.C.G.A. § 36-36-7.
D. The municipality evaluates the application
1. In order to determine electors in the area, the municipal governing body must obtain a list of electors from the board of registrars of the county.
2. Owners of public lands and roads are not considered in calculating the acreage.
O.C.G.A. § 36-36-32
E. If the application does not comply with the requirements, the applicant is notified. O.C.G.A. § 36-36-34. If the requirements are satisfied, the municipal corporation prepares a report, setting forth:
1. Municipal plans for extending police, fire, garbage and street maintenance to the area, as well as the extension of water and sewer service.
2. A map showing present and proposed boundaries of the city, the major water mains, sewer interceptors and outfalls, and proposed extensions of such.
3. This report must be prepared and available to the public at least fourteen days prior to the public hearing. O.C.G.A. § 36-36-35
F. Public Hearing
1. Held within 15 to 45 days after petition determined valid under step (D) above.
2. Notice of time and place must be given in writing to the persons presenting the petition, and it must be advertised once a week for two weeks in a general area newspaper.
3. All persons resident or owning property in the municipal corporation or the area to be annexed may be heard.
O.C.G.A. § 36-36-36
G. Any property owner or elector may withdraw his consent in writing postmarked or received within three days after the public hearing. The compliance must then be recalculated. O.C.G.A. § 36-36-36.
H. If after the hearing, the municipal corporation wants to go forward with the annexation, it may do so by ordinance, within 60 days of the validation of all signatures. O.C.G.A. § 36-36-37.
I. Once property annexed, identification of property shall be filed with the Secretary of State, and the governing authority of the county in which the property is located. O.C.G.A. § 36-36-38.
J. Within thirty days, any elector or property owner of the annexed area or the municipal corporation may file a petition for declaratory judgment in the county superior court, to determine the validity of the annexation as related to this chapter of the Georgia Code. The court can declare the annexation void upon the finding of procedural defects. Further review is normally available. O.C.G.A. § 36-36-39.
III. RESOLUTION AND REFERENDUM
Municipal corporations have the authority to extend their boundaries by resolution and referendum. O.C.G.A. § 36-36-50 et seq.
A. Standards for area to be annexed
1. Adjacent or contiguous, with at lease one-eighth of the aggregate external boundaries coinciding. O.C.G.A. §§ 36-36-52, 36-36-54.
2. No part within the boundary of another municipal corporation or county. O.C.G.A. § 36-36-54.
3. No part may be receiving municipal services from any other entity than the city proposing annexation; can be waived by agreement. O.C.G.A. § 36-36-54.
4. Must be developed for urban purposes--two people per acre, and at least 60 percent divided into lots and tracks of five acres or less, and 60 percent of lots are less than one acre. O.C.G.A. § 36-36-54(c).
5. Exemption from (4) available if the non-urban area separates the city from an area meeting the definition of 4, and the non-urban area is at least 60 percent bounded by the city and the area meeting the definition of 4. O.C.G.A. § 36-36-54(d).
6. Natural topographical boundaries should be used where practical. O.C.G.A. § 36-36-54(e).
B. The municipal corporation must prepare a report containing the following:
1. Municipal plans for extending police, fire, garbage and street maintenance to the area, as well as the extension of water and sewer service, and showing the general land use plan of the area-including timetables.
2. A map showing present and proposed boundaries of the city, the major water mains, sewer interceptors and outfalls, and proposed extensions of such.
3. The report must be available at least 14 days prior to public hearing, make it available to the public in the city clerk's office, and may prepare a summary for public distribution.
4. A statement that the requirements of (A) above have been met.
5. Describe the plans for financing the expansions of services. O.C.G.A. § 36-36-56
C. Municipality must pass a resolution stating:
1. The intent to annex
2. Describing the boundaries
3. Fixing a date for a public hearing between 30 and 60 days after the passage of the resolution. O.C.G.A. § 36-36-57
D. Upon adoption of the resolution, the city must:
1. Give notice (cert. mail) of the proposed annexation to the governing authority of the county wherein the property is located,
2. Within five business days, and
3. The notice must include a map or other description sufficient to identify the area. O.C.G.A. § 36-36-6
E. The county must respond (cert. mail) within five business days of receipt, and inform if any county owned facilities are located in the proposed area to be annexed. O.C.G.A. § 36-36-7.
F. Notice of the public hearing must:
1. Show the date, time and place of the hearing
2. Describe clearly the boundaries of the area under consideration
3. State that the report under B. is available in the city clerk's office at least 14 days prior to the hearing
4. Be advertised one a week for three successive weeks in a general area newspaper (last ad at least one week before hearing), or if no such paper, post in at least three public places of area to be annexed for 30 days prior to the hearing O.C.G.A. § 36-36-57
G. Public hearing:
1. City official presents the report of B.
2. All persons resident or owning property in the territory described in the notice of the hearing and all residents of the municipality shall be given an opportunity to be heard.
O.C.G.A. § 36-36-57
H. Referendum to ratify or reject annexation:
1. Held between 30 and 60 days after the public hearing
2. Held under procedures of O.C.G.A. § 21-3-1 et seq., as far as practical.
3. Only persons registered to vote for members of the General Assembly, residing, on the date of the adoption of the resolution, in the proposed area to be annexed, shall vote on the referendum.
4. Majority wins. If majority vote not to annex, no attempt at annexation under of any portion of the property by this method can be tried again for two years.
O.C.G.A. § 36-36-58
I. Once the property is annexed, identification of property shall be filed with the Secretary of State, and the governing authority of the county in which the property is located. O.C.G.A. § 36-36-59.
J. This method does not apply to any territory which has been a part of a municipal corporation for three years immediately prior to July 1, 1970, and which has been or is in the process of being deannexed from the corporate limits of such corporation. O.C.G.A. § 36-36-61.
K. Appeal to the superior court is available, but in determining whether the criteria of A. have been met, the court must use the city's estimates. O.C.G.A. § 36-36-55.
IV. LOCAL ACT BY THE GENERAL ASSEMBLY—ARTICLE 1A
The General Assembly has the authority to pass local Acts annexing territory to municipal corporations. The above methods are derived from the General Assembly's legislative power to annex. This authority was codified effective July 1, 1996 as Article 1A of Chapter 36, Title 36.
A. Local Acts annexing areas comprised of more than 50 percent residential property, by acreage must use this Article. Residential is defined as sub 5 acre lots. Presumably this article need not be followed for annexation of property less than 50 percent residential. O.C.G.A. § 36-36-15.
B. Author of the legislation must:
1. Give notice (cert. mail) of the proposed annexation to the governing authority of the county wherein the property is located,
2. Within five business days, and
3. The notice must include a map or other description sufficient to identify the area.
O.C.G.A. §§ 36-35-16, 36-36-6.
C. The county must respond (cert. mail) within five business days of receipt, and inform if any county owned facilities are located in the proposed area to be annexed. O.C.G.A. § 36-36-7.
D. The legislation may incorporate referendum approval under the terms and conditions specified in local law, and such referendum approval is required if the area to be annexed contains more than 500 people, or more than 3 percent of the municipalities population. The municipality must pay for the referendum. O.C.G.A. § 36-36-16.
E. There is no contiguity requirement for this method. See, City of Fort Oglethorpe v. Boger, 267 Ga. 485, 480 S.E.2d 186 (1997).
V. ANNEXATION OF UNINCORPORATED ISLANDS—UNDER ARTICLE 6
A. Under Article 6 of Chapter 36, Title 36, an unincorporated island consists of an unincorporated area in existence as of January 1, 1991, and consisting of 50 or less with its aggregate boundaries abutting a city, or a combination of cities. In other words, the entire border of this island must touch the boundaries of incorporated areas, whether one city or several. The unincorporated land can be separated by county, municipal or state land, or by the width of a creek or river, a street right of way, or a railroad/public service right of way. For example, a parcel of land, entirely abutted along its perimeter by city land, except for a small parcel of state property on the border, could still be annexed. All the property must be in the same county. O.C.G.A. § 36-36-90.
B. Municipalities can annex unincorporated islands by ordinance, at a regular meeting of the city governing authority, thirty days after written notice to owners. O.C.G.A. § 36-36-92(b).
C. Notice of intent must be mailed to owners at last known address, off of ad valorem tax records. O.C.G.A. § 36-36-92(b).
D. Once the property is annexed, identification of property shall be filed with the Secretary of State, and the governing authority of the county in which the property is located. O.C.G.A. § 36-36-92(b).
E. An unincorporated island can be surrounded by one city or several. The city with the greatest boundary has the right to incorporate. The unincorporated island can be separated from the city by a street right of way, a creek or river, or a public service/railroad right of way owned by some other entity, and still share a contiguous boundary, allowing annexation. O.C.G.A. § 36-36-92(c)
F. This annexation contains a Code requirement that it be precleared by the U.S. Justice Department pursuant to the Voting Rights Act of 1965. Application for preclearance shall be submitted not later than 90 days (formerly 60) following the adoption of the annexation ordinance. (All annexations must be cleared, see infra.
VI. ALTERNATE PROCEDURES TO ANNEX UNINCORPORATED ISLANDS
A. Article 1, of Title 36, Chapter 36, (O.C.G.A. § 36-36-5) provides an alternative procedures for annexing unincorporated islands. If the island is more than 50 acres, it must be annexed through the 60 percent method. If the unincorporated area is less than 50 acres, it can be annexed by the 100 percent method, the 60 percent method, the resolution and referendum method, or by local act. See Culpepper v. City of Cordele, 212 Ga.App. 890, 443 S.E.2d 642 (1994). Article 6 annexation provides a simpler alternative.
VII. GENERAL PROVISIONS
A. In general, ownership of county properties and facilities is not affected by annexation of the area they are in. O.C.G.A. § 36-36-7(b).
B. If a municipality annexes on both sides of a county road right of way, the municipality shall assume the ownership, control, care and maintenance of that property unless the county and municipality agree otherwise. O.C.G.A. § 36-36-7(c).
C. If a county owned property or county owned facility is no longer useable for service to the unincorporated area of the county, the municipality is required to acquire such property provided the annexation is final, the property or facility is solely funded by, and solely provides service to, unincorporated areas, and the county adopts a resolution declaring the property unusable only as a result of the annexation. The county receives fair market value--as determined by agreement or by special master appointed by superior court. O.C.G.A. § 36-36-7(d).
D. Annexations done by methods other than local Act are effective for ad valorem tax purposes on December 31 of the year during which the annexation occurred. If an independent school district exists within the boundaries of a municipality, other effective dates may be established solely for determining school enrollment. For all other purposes, annexations are effective on the first day of the month following the month during which the requirements of the method are met. O.C.G.A. § 36-36-2(a).
Annexations by local Act become effective for ad valorem purposes on December 31 of the year in which the annexation occurred, but or all other purposes become effective on the date the local Act becomes effective or on such date as is specified in the Act. O.C.G.A. § 36-36-2(b).
E. Annexations or deannexations which would create unincorporated islands are prohibited. An unincorporated island consists of an unincorporated area whose boundaries are entirely bounded by one or several cities, or an unincorporated area which the county has no reasonable means of physical access to for provisions of services. O.C.G.A. § 36-36-4.
F. If an unincorporated area (only in a county having between 480,000 and 580,000 population by any decennial census) is serviced by a county, and is included in the county's comprehensive zoning plan, it cannot be annexed by a city without the city first getting approval from the county, by official recorded act. The owner of any real property in such county can enjoin any city which has not gotten authority to annex from exercising any powers. O.C.G.A. § 36-36-70.
G. Though the O.C.G.A only requires Justice Department preclearance in one section, the requirements of the Voting Rights Act, 47 U.S.C. § 1971 et seq. apply to all annexations. The basis of this requirement is the effect annexation has on voting. Even the annexation of vacant land which is anticipated to become residential has been held to require preclearance, as it constituted a "change in voting practice or procedure." City of Pleasant Grove v. U.S., 479 U.S. 462, 107 S.Ct. 794, 93 L.Ed.2d 866, (1987). After-the-fact preclearance, while an oxymoron, does solve the problem. City of Arcade v. Emmons, 268 Ga. 230, 486 S.E.2d 359 (1997).
VIII. DEANNEXATION
Deannexation is possible by local Act of the General Assembly, or by the reverse 100 percent method. O.C.G.A. § 36-36-22. Property deannexed by local Act cannot be "reannexed" by the same municipality under any provision of this Title 36, Chapter 36, for a period of three years. O.C.G.A. § 36-35-2.
A. Requirements for Application
1. Written
2. Signed by all of the owners of all of the land, except the owners of any public street, road, highway, or right of way, proposed to be deannexed
3. Containing a complete description of the lands to be deannexed
O.C.G.A. § 36-36-22
B. Next, a resolution of the county in which such property is located consenting to such deannexation must be passed. O.C.G.A. § 36-36-22.
C. When such application is acted upon by the municipal authorities and the land is, by ordinance, deannexed from the municipal corporation, an identification of the property so deannexed shall be filed with the Secretary of State. O.C.G.A. § 36-36-22.
IX. ZONING IN RELATION TO ANNEXATION
Once an annexation is effective, which occurs on the first day of the month following satisfaction of all annexation requirements of the method followed, the property transfers from the jurisdiction of the county, losing whatever zoning the county provided, and becomes unzoned. This issue presents problems to most cities conducting annexation. A variety of invalid zoning methods are typically used. Recognition of this problem sparked recent amendments to the Zoning Procedures Law (the "ZPL" – O.C.G.A. § 36-66-1 et seq.), designed to address the problems.
Those amendments, effective July 1, 1996, added a new definition to "Zoning Decision," to include an amendment to a zoning ordinance which zones property which is to be annexed by a municipality. O.C.G.A. § 36-66-3.
The main amendment provides the procedure to be followed by municipalities when they annex property. The procedures required by the ZPL can be initiated at any time notice of the proposed annexation is provided to the county under O.C.G.A. § 36-36-6. The required public hearing must be held prior to the annexation. An additional notice of the annexation must be published in the county's general circulation newspaper. The final vote cannot be held prior to adoption of the annexation ordinance or resolution or the effective date of the local Act annexation. Once the zoning procedures are followed and the municipality approves the zoning, it becomes effective on the date the annexation becomes effective, or on the date actually approved, whichever is later. O.C.G.A. § 36-66-4(d).
The General Assembly revisited the ZPL in 1998, adopting further procedures relating to annexation of property. Qualified municipalities are now authorized to adopt a zoning ordinance that provides for all annexed property to come into the city for the same use for which that property was zoned immediately prior to such annexation. O.C.G.A. § 36-66-4(e). Qualified counties that deal with deannexed properties can adopt similar ordinances. (Id.). Qualification means that the relevant city and county must have a common zoning ordinance.
Further 1998 amendments relate to location of a halfway house, drug rehabilitation center or other drug treatment facility. O.C.G.A. § 36-66-4(f) requires a pubic hearing six to nine months before the final action of the zoning. The government must give notice of the hearing by posting notice and publishing in a general circulation newspaper. No further requirement besides a hearing is required, but this provision may violate the Americans with Disabilities Act, 42 U.S.C. § 12131, and the Rehabilitation Act, 29 U.S.C. § 794. Treating a rezoning differently for persons with handicap potentially violates that act, and the ZPL is facially discriminatory. The ADA and the Rehabilitation Act were both found to be violated by a zoning ordinance recently in the Ninth Circuit Court of Appeals. (See, Bay Area Addiction Research and Treatment Inc. v. City of Antioch, No. 98-16612 (9th Cir., June 3, 1999)).
X. ANNEXATION AND THE SERVICE DELIVERY STRATEGIES ACT
One problem that arises in annexations is when a developer cannot get the density or use he desires from the county, he has his property annexed into a more cooperative city. This leads to problems such as an area a county has designated on its land use plan as residential suddenly becoming commercial when the city takes it over.
The General Assembly has recently been considering how to deal with this problem. During the 1998 legislative session, the General Assembly enacted O.C.G.A. § 36-36-11, which held that, after July 1, 1998, an annexation shall not be effective until any bona fide land use classification objections raised by the county relating to the area to be annexed are resolved pursuant to the dispute resolution process requirement of O.C.G.A. § 36-70-24(C)(4) (which is the Service Deliveries Strategy Act). A "bona fide land use classification objection" was defined as an objection to a proposed change in zoning that results in a substantial change in intensity of use, or a change to a significantly detrimental allowable use. O.C.G.A. § 36-70-24(C)(4) requires that every county and every city in every count, regardless of population, must come up with a process to resolve land use classification disputes when the county objects to the proposed use.
The penalty the Assembly imposed for failure to come up with a process by July 1, 1999 is withdrawal of state funding. Once an approved service delivery strategy is adopted, the funding resumes at the beginning of the next month. 1999 amendments applied this requirement to all counties and cities, but exempted counties from the penalties if the offending city is under 500 persons.
Some counties and cities have had difficulty coming up with a procedure to resolve land use disputes. There is no guidance in the statutes as to what the procedure should be, nor who should have ultimate authority to decide the objections. O.C.G.A. § 36-36-11 halts the annexation unless the objections are resolved, which gives counties a powerful way to halt annexations.
The recent case of Baker v. City of Marietta, 271 Ga. 210, 518 S.E.2d 879) (1999), involved a dispute between Cobb County and Marietta over these provisions. Marietta sought to annex certain property, and Cobb County make an objection. The city and county had been unable to agree on any method to resolve these disputes, and so there was no way to resolve the issue. Cobb County filed suit seeking an injunction on the annexation and a declaration of rights under the new statutes. The trial court ruled that the objection letter was not proper because it was signed only by the Chairman of the Board of Commissioners, and not the entire Board. The trial court further declared O.C.G.A. § 36-36-11 and 36-70-24(C)(4) as unconstitutional, in violation of Art. IX, Sec. 2, Para. 9, because it interfered with a municipality's right to control zoning within its boundaries. Cobb County was satisfied with the striking of the statute and did not appeal. The attorney general had intervened to protect the statute and appealed. The Supreme Court ruled that the finding of the trial court that the bona fide objection was invalid was sufficient to find that the annexations should go forward, and the trial court had no justiciable controversy left enabling it to rule on the constitutionality. The Supreme Court ruled that the striking on constitutional grounds was thus an advisory opinion, and vacated that portion of the opinion.
Subsequently, the City of Senoia sued Coweta County and challenged the constitutionality of H.B. 489. In this case, the trial court again struck the statute as an unconstitutional interference with the zoning power. A copy of that order is attached. This case has been appealed by Coweta County and the State, in the person of Jim Higdon, Commissioner of the Department of Community Affairs, and is currently before the Supreme Court. (Coweta Co. v. Senoia, Case No. S00A1104; Jim Higdon v. Senoia, Case No. S00A1103).
