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City of Atlanta v. Fulton County

Dec 14, 2015



In a ruling handed down 31 August 2015, Superior Court Judge Gail Tusan ruled the City of Atlanta can annex portions of the Fulton County Industrial District.

Before Judge Tusan's ruling, Atlanta and other municipalities were prohibited from bringing any part of the Fulton Industrial District into their respective cities due to a 1979 constitutional amendment.



    The CITY OF ATLANTA, a municipal corporation and political subdivision of the State of Georgia, acting by and through its Mayor and City Council,



    FULTON COUNTY, a political subdivision of the State of Georgia acting by and through its duly elected Board of Commissioners,



    ~LED IN OFF'n

    I AUG 3 I 2015 .1

    CIVIL ACTION FILE NO. 2015CV258507

    Judge Tusan


    On August 24,2015, the COUlt held oral argument on all outstanding motions in the

    above-referenced action, which include Respondent's motion to dismiss and the Patties' cross

    motions for summary judgment. After consideration of the motions, briefs, all other materials on

    file, and argument of counsel, the Court enters the following Order denying Respondent's

    motion to dismiss and Respondent's motion for summary judgment and granting Petitioner's

    motion for summary judgment. Because of the significant overlap in the issues raised by the

    pending motions, the COUlt addresses them together below.


    The Georgia General Assembly has delegated to municipalities the authority to annex

    unincorporated territory contiguous to their boundaries pursuant to the conditions, restrictions,

    and protections for property owners in O.C.G.A. 36-36-1 et seq. Georgia's annexation statute


  • allows owners of property abutting a municipality to petition that municipality for annexation of

    their property. See generally O.C.G.A. 36-36-21.

    A 1979 local constitutional amendment (the" 1979 LCA") establishes the boundaries of

    the Fulton Industrial District ("FID") and purports to prohibit any annexation or incorporation of

    property within the FID. The 1979 LCA thus interferes with the City of Atlanta's ("Atlanta")

    desire to have the property it owns inside the FID annexed into Atlanta's municipal limits as it

    would otherwise be able to do pursuant to O.C.G.A. 36-36-21. Pursuant to O.C.G.A. 36-36-

    6, Atlanta has notified Fulton County of its desire to annex the property, but has not yet finalized

    the annexation through adoption of an ordinance by the City Council and approval of the

    ordinance by the Mayor. In light of Fulton County's stated opposition to the annexation based

    on the 1979 LCA, Atlanta has asked this Court to declare the 1979 LCA void and that

    accordingly, any annexation within the FID area will be governed by and pursuant to Georgia's

    annexation statute, as is true in the rest of Fulton County.

    The Court finds that this dispute is appropriately resolved through this declaratory

    judgment action. See Ga. Const. Art. 1, 2, ~ 5 ("Legislative acts in violation of this

    Constitution or the Constitution of the United States are void, and the judiciary shall so declare

    them"); Higdon v. City a/Senoia, 273 Ga. 83,85 (2000). The Court also notes that the Georgia

    Attorney General has been served with this action as required by O.C.G.A. 9-4-7(c) and has

    not intervened or otherwise entered an appearance.


    Based on a review of the record and argument of counsel, the Court finds that there are

    no material facts in dispute in this action. The material facts are set forth below.

    1349620.1 2

  • I. Annexation of Atlanta's Property

    Atlanta recently acquired property located within the FID (the "Parcel"). 1 The Parcel is

    contiguous to Atlanta's current municipal boundaries.2 On March 17,2015, Atlanta Mayor

    Kasim Reed notified the Atlanta City Council President that Atlanta wished to annex the Parcel.3

    Later that day, the Clerk of the Atlanta City Council notified Fulton County Chairman John

    Eaves of Atlanta's receipt and acceptance of the annexation request." On April 2, 2015, (then)

    Fulton County Attorney R. David Ware sent Mayor Reed a letter confirming Fulton's position

    that "Atlanta is legally prohibited from annexing" the Parcel. 5 The sole basis for Fulton's

    position stated in Mr. Ware's letter was that such annexation is barred by the 1979 LCA.6

    II. Legislative History of the Fulton Industrial District.

    A. The 1977 Attempt to Create the Fulton Industrial District.

    In 1977, the Georgia General Assembly passed legislation authorizing a referendum in

    Fulton County to create the FID. See HR 10-58, Ga. L. 1977, p. 1569.7 The 1977 General

    Assembly also passed another Act authorizing a separate referendum to repeal a 1937

    constitutional amendment authorizing Fulton County to levy a tax for its schools within Atlanta.

    See HR 8-58, Ga. L. 1977, p. 1567. Each of these proposed amendments was made contingent

    on the voters' approval of the other, separate amendment. Jd. at 1567-68.

    1 See Petition for Declaratory Judgment ("Petition") ~~ 1, 7; Answer and Defenses of Respondent Fulton County ("Answer") ~~ 1, 7. 2 See Petition ~ 7; Affidavit of Stewart T. Henderson, dated June 22, 2015 ~ 3. 3 See Petition ~ 44 and Ex. F; Answer ~ 44. 4 Petition at Ex. F. 5 See April 2, 2015 Letter from R. David Ware to Hon. Kasim Reed. 6 Jd. 7 This Court may take judicial notice of Acts of the General Assembly. O.C.G.A. 24-2-220; Thompson v. Cheatham, 244 Ga. 117, 118 (1979).

    1349620.1 3

  • The voters approved the local constitutional amendment creating the FID at the 1978

    general election. See Ga. L. 1979, p. 5263.8 However, the school tax levy repeal was rejected.

    See Ga. L. 1979, p. 5245.9 Because each amendment was contingent on the passage of the other,

    the 1977 amendments both failed as a matter of law following the November 1978 general


    B. The 1979 Fulton Industrial District Local Constitutional Amendment.

    1. Passage in 1979.

    The year after the two separate amendments failed at the ballot box, the General

    Assembly revisited both topics - creation of the FID and repeal of Fulton's school tax within

    Atlanta. But this time, the General Assembly combined the two previously separate amendments

    into a single local constitutional amendment and a single referendum.

    In 1979, the Georgia General Assembly passed the 1979 LCA legislation. See Ga. L.

    1979, p. 1797. One portion of the 1979 LCA creates the FID and its boundaries, and prohibits

    the annexation or incorporation of any portion of the FID. Ga. L. 1979, pp. 1798-99. The 1979

    LCA provides that the "area [within the FID] shall not hereafter be included within the limits of

    any municipal corporation as now exists or hereafter incorporated except by constitutional

    amendment." ld. at 1799. This portion corresponds to HR 10-58 from 1977.

    Another portion of the 1979 LCA corresponds to HR 8-58 from 1977. This second

    provision prohibits Fulton County from levying any school taxes "within the boundaries of an

    independent school system," i.e., in Atlanta, which had (and has) the only independent school

    system within Fulton County. In contrast, as to the property within the FID, the 1979 LCA

    8 This Court may take judicial notice of election results, including referendum outcomes. Lowe v. Weltner, 118 Ga. App. 635,638 (1968); Raines v. State, 96 Ga. App. 727, 729 (1957). 9 ld.



  • expressly maintained the status quo: "The properties within [the FID] shall be subject to all taxes

    for school purposes." Ga. L. 1979, p. 1799.

    2. Attempts to Continue the 1979 LCA After 1983.

    In 1983, Georgia replaced the 1976 Constitution with the 1983 Constitution, which

    expressly forbade further local constitutional amendments. 1983 Constitution, Art. X, I, ~ 1.

    Article XI, 1, ~ 4 of the 1983 Constitution provided that certain local amendments to the 1976

    Constitution (including the 1979 LCA) would remain effective until July 1, 1987. Jd., Art. XI,

    1, ~ 4. See also Ga. Const. Appendix One.

    During that four-year period, however, pre-existing local constitutional amendments

    could be continued through readoption by local Act of the General Assembly. 10 Ifnot readopted

    by local Act, however, those local constitutional amendments would be "repealed and ...

    deleted" in 1987 by operation of Article XI of the 1983 Constitution. 1983 Constitution, Art. XI,

    I, ~ 4. Article XI expressly prohibited any modifications or changes to any local constitutional

    amendments that were continued. Jd. ("said amendments shall be repealed and shall be deleted

    as a part of this Constitution unless any such amendment shall be specifically continued in force

    and effect without amendment").

    a. HB 85 in 1983.

    In 1983, the Georgia General Assembly passed HB 85 to continue the LCA. Ga. L. 1983,

    p.4077. As a local Act, HB 85 was subject to a constitutional public notice requirement. Ga.

    Const. Art. III, V, ~ IX. HB 85's public notice read:

    Notice is hereby given that there will be introduced at the regular 1983 Session of the General Assembly of Georgia, a bill to continue in force and effect an amendment to the Constitution of Georgia that created in Fulton County a special

    10 Or in some cases not relevant here, by local ordinance or resolution.



  • district to be known as the Fulton County Industrial District, and for other purposes.

    Ga. L. 1983, p. 4078.

    Thus, the public notice for HB 85 did not make any reference to the portion of the 1979

    LCA prohibiting Fult