ZONING PROCEDURES AND ANNEXATION LAWS

by Peter R. Olson, Esq.

Jenkins, Olson & Bowen, P.C.

This information was presented at the February 2009 GAZA conference.

Annexation is government by O.C.G.A. Title 36, Chapter 36. There are several general provisions that apply to all annexations, which a zoning administrator should be aware of. Title 36 of the Georgia Code 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, as each municipality is nothing but a "creation of the General Assembly", whose boundaries can be modified by the General Assembly.

GENERAL PROVISIONS APPLICABLE TO ALL ANNEXATIONS

When an application for annexation is received, the municipality must:

1. Within five (5) business days give written notice of the proposed annexation to the governing authority of the county wherein the property is located.

2. The notice must include a map or other description sufficient to identify the area. O.C.G.A. 36-36-111 requires forwarding a copy of the petition to the county, including indicating the proposed zoning and land use for the area.

3. All notices, whether to or from the city or county, must be sent certified mail, or statutory overnight delivery (FedEx or such), return receipt requested. (O.C.G.A. 36-36-6 and 36-36-9).

Response.

1. The county must respond, via certified mail, return receipt requested, within five (5) business days of receipt, and inform if any county-owned facilities are located in the proposed area to be annexed.

2. If no objection is received within 30 days of the county's receipt of notice, final action on the annexation can proceed. If objection is lodged, then further procedures are triggered.

Ownership of County Facilities in Annexed Areas.

1. In general, ownership of county properties and facilities is not affected by annexation of the area they are in.

2. 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 by joint resolution.

3. If a county owned property or county owned facility is no longer usable for service to the unincorporated area of the county after annexation, the municipality is required to acquire such property provided the annexation is final, the property of 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 if the parties do not agree within 180 days.

Utility Service Agreements.

Utility service agreements in effect as of July 1, 1992 are not invalidated by annexations except by mutual written consent. The inclusion of a date suggests, by laws of statutory interpretation, that annexation can invalidate utility service agreements entered into after that date.

Unincorporated Islands.

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 provide services.

Annexation Across County Boundary Lines.

Annexation across county boundary lines, when the municipality does not already have property in the new county, can only be performed subject to special procedures contained in O.C.G.A. 36-36-23. Within ten (10) business days of receiving an application for annexation, the municipal corporation shall provide written notice to the county governing authority of the adjoining county of its intent to annex into the county. A meeting between the county governing authority and municipal governing authority shall be held to discuss the proposed annexation if the county governing authority files a written request for such meeting with the municipal governing authority within 15 days of receipt of the notice of the proposed annexation. The requested meeting shall be held within 15 days of the request by the county unless otherwise agreed to by the county and the municipality.

No municipality may annex into an adjoining county in which the municipality is not already located unless otherwise agreed to by the county governing authority of the adjoining county. Such annexation shall be deemed approved, unless the county governing authority adopts a resolution opposing the annexation within 30 days following the earlier of A) the completion of the meeting between the municipal and county governing authorities, if any, or B) 30 days after notice of the proposed annexation from the municipal corporation to the county governing authority, if no meeting is requested by the county governing authority.

Post-Annexation Notice.

Once the property is annexed, identification of property shall be filed with the Department of Community Affairs and the governing authority of the county in which the property is located. These reports should be filed no later than 30 days following the last day of the yearly quarter in which the annexation becomes effective. Failure to comply with this requirement does not invalidate an annexation. The submission of the report shall be made in writing and may also be made in electronic format, at the discretion of the submitting municipality. The report must contain:

1. The legal authority under which the annexation was accomplished, which shall be the ordinance or resolution number for any annexation.

2. The name of the county in which the property being annexed is located; the enactment date and effective date of the annexation ordinance, resolution, or local Act of the General Assembly; and

3. A letter from the governing authority of any municipality annexing  property stating their intent to add the annexed area to maps provided by the United States Bureau of the Census during their next regularly scheduled boundary and annexation survey of the municipality stating that the survey and map will be completed as instructed and returned to the United States Bureau of the Census.

Effective Date of Annexation.

1. Annexations by local Act become effective for ad valorem purposes on December 31 of the year in which the annexation occurred, but for 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)

2. 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)

Voting Rights Act.

The requirements of the Voting Rights Act, 47 U.S.C. 1971 et seq. and particularly Section 5 of the Act, apply to all annexations. O.C.G.A. 36-36-3. 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). Therefore, after the annexation is effective, a "Section 5 preclearance letter" is submitted to the Department of Justice, at least 60 days before any election. Procedures for preclearance can be found at 28 C.F.R. part 51. The City Attorney should be involved in this submission, as it is highly technical. Useful information can be found at the Department of Justice website, www.usdoj.gov/crt/voting/sec_5/about.php

A copy of the preclearance letter should be submitted to the Department of Community Affairs. Additionally, O.C.G.A. 36-60-11 requires all actions submitted for preclearance by a local government to be submitted to the Attorney General.