(1)
Petition for Annexation Arbitration. A petition for annexation
arbitration must be filed with the Department to begin the process.
(a)
HB2a. The Department's
HB2a Notification of Objection to Annexation and Request for
Panel form must be used by the party petitioning for appointment of an
arbitration panel. All fields on the form must be completed, including:
The County name;
The City name;
A legal description of the subject property or
properties; and
Contact information for the local governments and
property owners.
Form HB2A shall be accompanied by supporting materials,
including a copy of the Notice of Annexation provided in O.C.G.A. §
36-36-111, a copy of the Notice of
Objection provided in O.C.G.A. §
36-36-113, the owner's/developer's
petition for annexation, documentation showing that a majority of the elected
body of the objecting local government voted in favor of the objection, and any
additional correspondence or materials exchanged between the parties relevant
to the proposed annexation.
(b)
Verifiable Delivery. The
HB2a form and accompanying materials must be sent to the parties and the
Department by Verifiable Delivery. In all circumstances, regardless of the
method of delivery, the means of verifying delivery shall be clearly evident on
the materials provided.
(2)
Review of the Petition. Upon
receipt of a petition for annexation arbitration, the Department will review
the petition and determine whether the conflict is eligible for annexation
arbitration. In making this determination, the Department must consider if the
following conditions have been met:
(a)
Standing. Whether the petitioner is or is an authorized
representative of the affected county governing authority.
(b)
Completeness. Whether the
petition is complete and accompanied by the required supporting materials, as
described above, including the provision of a mechanism to verify delivery for
all statutorily-required notices as defined above.
(c)
Timeliness. Whether all
statutorily-required notices issued thus far into the process have included all
materials and information required by statute and whether such notices have
been timely delivered, in accordance with the timeline prescribed by statute,
based upon the Department's verification.
1.
Notice of Annexation. Within thirty (30) days of a municipal
corporation's acceptance of a petition of annexation, the municipal corporation
shall notify the governing authority of the county and any impacted school
system in which the territory to be annexed is located by verifiable delivery.
Statute provides that this Notice of Annexation includes the proposed zoning
and land use for such area.
2.
Notice of Objection. The county can then object by majority vote,
as defined by applicable general or local law. The objection will be delivered
to the municipal corporation and the Department by verifiable delivery, no
later than the end of the forty-fifth (45
th) day
following the county's receipt of the Notice of Annexation from the city.
The Department shall request any additional information from
the local governments necessary for it to make determinations related to this
section. The local governments shall comply in the prompt delivery of the
requested information within the timeframe provided by the Department when
making its request.
(d)
Jurisdiction. Whether the
petition is based upon an objection that is subject to annexation arbitration
as provided in section O.C.G.A. §
36-36-113 of statute. The
Department shall make no determination as to the validity of the objection as
such determination is reserved exclusively to the arbitration panel. Rather,
the Department shall focus its determination on whether the objection:
1. Advances any arguments related to a
potential material increase in burden upon the county resulting from change in
proposed zoning or land use, proposed increase in density, and/or
infrastructure demands related to the proposed change in zoning or land use.
Objections failing to advance such arguments cannot be considered by an
annexation arbitration panel.
2.
Provides any information purporting to be evidence demonstrative of any
potential financial impact that could result from the proposed annexation.
The Department will decline to advance petitions for
annexation arbitration that fail to meet all of the conditions detailed above.
Once such a determination has been reached, the Department will notify the
municipal and county governments of this determination and explain its
rationale for doing so. The objecting local government may revise, amend, and
perfect its petition and resubmit it for the department's review if sufficient
time remains to provide it via verifiable delivery to the municipal corporation
and the Department prior to expiration of the forty-five (45) days allotted to
the county for filing its Notice of Objection.
(3)
Advancement of the
Petition. If, after reviewing the petition, the Department determines
that the annexation conflict is eligible for arbitration via this process, it
shall notify the parties listed below.
The petitioning local government;
The local government whose proposed action is the
subject of the arbitration;
The impacted school system;
Other members from the local governments possibly
including but not limited to the planning directors, the county and city
manager, and the chief elected officials;
Members of the Georgia Municipal Association and the
Association of County Commissioners of Georgia;
The planning director of the regional commission in
which the subject property is located;
Appropriate additional staff at the
Department;
Qualified arbitration panelists from the municipal,
county, and academic pools as provided by statute.
In providing this notice to the local governments, the
Department shall request that each government designate a case coordinator and
communicate that individual's identity to the department within a timeframe
communicated by the Department when making such request.
(4)
Initiation of Annexation
Arbitration Process. The Department shall follow this process in
appointing a panel.
(a)
Availability
and Eligibility to Serve. Once the Department has provided notice that
the petition will advance, it shall attempt to appoint an arbitration panel.
The Department will inform eligible individuals within the pools of panelists
established for this purpose regarding the matter that their participation on a
panel has been requested and ask them to confirm their availability and
eligibility.
(b)
Selection of
Potential Panelists. Once the Department has received the necessary
number of panelists: four (4) from the county pool, four (4) from the municipal
pool, and three (3) from the academic pool, the Department will contact the
city and county for strikes. If an excess of panelists from one or more pools
is achieved, the Department shall randomly choose from the available panelists
within each pool to reach the number of panelists required for that
pool.
(c)
Striking Potential
Panelists. The Department shall provide the county government the name,
title/position, term of office (if from a local government pool) or
qualification (if an academic panelist, and the residency of the potential
panelists from the municipal and academic pools. The Department shall provide
the municipal government the name, title/position, term of office (if from a
local government pool) or qualification (if an academic panelist, and the
residency of the potential panelists from the county and academic pools. The
municipality shall strike two (2) potential panelists from the county pool and
the county shall strike two (2) potential panelists from the municipal pool.
The municipality and the county shall each strike one (1) panelist from the
academic pool and one (1) alternate strike. In the event that both local
governments opt to strike the same academic panelist, the alternate panelist
selected by the local government whose strikes are received by the Department
second (in order of their receipt) will be struck from the pool. Ultimately,
the panel will be appointed consisting of the five (5) potential panelists
remaining unstruck after all strikes have been received. The local governments
shall use whatever criteria seems most appropriate to them to select their
strikes, but under no circumstances shall potential panelists be contacted by
any local government, applicant or property owners, or impacted school system,
or on behalf of any the aforementioned parties prior to appointment of an
arbitration panel.
The local governments shall expeditiously inform the
Department of the potential panelists they choose to strike. This information
shall be provided by the local government's representative to the Department's
process manager via electronic mail. These strikes shall be provided to the
Department within the timeframe it provides to the local governments when it
requests strikes.
(d)
Appointment of the Panel. The forgoing process having successfully
completed, an impartial third-party panel will be appointed no later than the
fifteenth (15
th) day following the date when the
Department first received a complete and timely petition to object from a
county with standing to request arbitration. The panelists and the individuals
and entities listed in section
110-12-8-.03(3),
above, will be notified via electronic mail of the panel's appointment.
If, despite its efforts, the Department is unable to fulfill
the request for an arbitration panel within the fifteen (15) days provided by
statute (e.g., an insufficient number of eligible panelists were available to
serve, strikes were not provided to the Department within the requested
timeframe, etc.), the Department will necessarily decline to appoint a panel.
Statute offers no provision for extension of this timeline or waiver of this
requirement. In such a case, the Department shall notify the individuals and
entities listed in section
110-12-8-.03(3),
above, of the impasse, that the Department is unable to fulfill the request for
a panel, and recommend that the objecting party consider seeking judicial
resolution of the conflict.
Appointment of the panel concludes the Department's active
role in the process. The Department shall not participate in the scheduling or
conducting of meetings/hearings, management of the panel (except in the event
of the withdrawal or subsequent ineligibility of a panelist), collecting owed
costs, filing of deed restrictions, etc.
(e)
Replacement of Panelists. In
the event that a panelist becomes or is determined to be ineligible or
otherwise unable to participate in the arbitration process subsequent to the
panel's appointment, such a panelist may withdraw or be withdrawn from the
panel.
The Department will first seek availability of the two
potential panelists previously struck from the withdrawn panelist's pool. If
either or both of the previously struck panelists is still available and
eligible to participate, the Department shall inquire if the local government
that struck the panelist(s) is willing to withdraw its strike and accept the
appointment of the previously struck panelist as a replacement.
If the local government is unwilling to accept a
previously-struck panelist, the Department will again seek available panelists
from the entire pool of panelists. The first eligible panelist indicating to
the Department that they are available to serve will be appointed as a
replacement.
(5)
Panelists.
(a)
Remuneration. The members of the arbitration panel will receive
the same per diem, expenses, and allowances for their service on the panel as
authorized by law for members of the General Assembly.
(b)
Selection. Panelists will be
solicited from an existing pool of eligible participants, meaning they meet the
below requirements:
1. A current elected
official for a county or city or, someone who was an elected official for a
county or city within the past six (6) years; or
2. A person with a master's degree or higher
in planning or an MPA, who is currently employed by an institution of higher
learning in Georgia, other than the Carl Vinson Institute of Government of the
University of Georgia; and
3. They
have attended the statutorily mandated training regarding annexation
arbitration provided by the Carl Vinson Institute of Government. Such training
shall include, among other things, content intended to facilitate panelist's
compliance with applicable regulations and statute related to the conduct of
meetings. All potential panel members must have attended this
training.
(c)
Frequency of Participation. As nearly as practicable, no one from
the pool of potential panelists should serve on a panel more than four (4)
times in one (1) calendar year.
(d)
Residency. Panelists shall not participate in an arbitration panel
if they currently live in the county which has interposed the objection, or any
municipality located wholly or partially in such county. Pool members shall
notify the Department of their updated address if they change residence into
the territory of a different local government while in the pool of potential
panelists.
(6)
Meetings. The panel, once appointed, should meet as soon as
practicable after the appointment and receive evidence and argument from the
local governments and the applicant or property owner. These meetings can take
place in person, virtually, or via teleconference. Any meeting should provide
an opportunity for all affected parties to be present.
Any meeting within which evidence is to be presented or
argument to be made shall be open to the public, Any opportunity for input or
involvement by the general public in any meeting is at the discretion of the
panel (or its elected chair, if such a position is created), however, under no
circumstance shall public comment be permitted to impair, impede, interrupt, or
otherwise frustrate the presentation of evidence and arguments by the local
governments.
At least 14 days prior to the meeting of a panel, the hearing
notice for the meeting shall be sent to the Department. The Department will put
the notice on their website and share it with the county, municipality, and
applicant/property owner. The county and city are encouraged to post public
notice of the such meetings in accordance with their own standard
practices.
The panel shall meet at times, dates, locations, and via
media of its own choosing and the affected parties must comply with the
scheduling set by the panel. In doing so, the panel shall make all reasonable
effort when dictating its schedule to allow attendance by all affected parties.
Ultimately, however, the panel shall dictate the schedule of meetings, not the
affected parties.
Written record of all meetings shall be kept by the panel
(its elected secretary, its appointed hearing officer, and/or court reporter).
Such records shall include, but not be limited to:
Identities of panelists and representatives of affected
parties in attendance (and any absences of required attendees);
Copies of documents provided to the panel and/or
produced by the panel (e.g.: agenda, if created; schedule of meetings;
documentary evidence presented;
Motions made by panelists and the local governments;
and,
Outcome of votes taken by the panel including the
number of those in favor and opposed, the identity of those in favor and
opposed.
All determinations and decisions of the panel whether
pertaining to its own organization (e.g., electing a chair), the merits of the
case (e.g., determining whether to impose zoning restrictions), or any other
substantial matter shall be made on the basis of a majority vote of the five
panelists. All votes shall be "Yay" or "Nay" with no abstentions
permitted.
(7)
Evidence
and Argument. The panel shall conduct a meeting at which the local
governments as well as the applicant or property owner shall present evidence
and arguments related to the following topics:
The existing local comprehensive plans of both the
County and City;
The existing land use patterns in the area of the
subject property;
The existing zoning patterns in the area of the subject
property;
Each jurisdiction's provision of infrastructure to the
area of the subject property and to the areas in the vicinity of the subject
property;
Whether the county has approved similar changes in
intensity or allowable uses on similar developments in other unincorporated
areas of the County;
Whether the county has approved similar developments in
other unincorporated areas of the county which have a similar impact on
infrastructure as complained of by the County in its objection; and
Whether the infrastructure or capital outlay project
which is claimed adversely impacted by the county in its objection was funded
by a county-wide tax.
The county shall provide supporting evidence that its
objection is consistent with its local comprehensive plan and the pattern of
existing land uses and zonings in the area of the property, which may include,
but not be limited to, adopted planning documents and capital or infrastructure
plans. Likewise, the municipal corporation and/or the applicant or property
owner shall provide supporting evidence that the proposed annexation is
consistent with the municipality's local comprehensive plan and the pattern of
existing land uses and zonings in the area of the property, which may include,
but not be limited to, adopted planning documents and capital or infrastructure
plans. Each of these parties may provide evidence and argument undermining the
evidence and argument presented by its opposition.
A municipality may opt maintain neutrality on a proposed
annexation action and defer all advocacy in support of such an action to the
applicant or property owner who has made such a proposal. Such a position shall
not be viewed as unreflective of good faith participation in the process. Such
a position shall have no bearing on the panel's consideration of the merits of
the proposed annexation.
Failure of an applicant or property owner to provide evidence
and argument advocating for the proposed annexation shall have no bearing on
the panel's consideration of the merits of the proposed annexation.
Evidence and argument not relevant to the grounds for
objection provided at O.C.G.A. §
36-36-113 or related to the items
listed and discussed above (e.g., arguments related to contiguity of borders or
the creation of "unincorporated islands") are beyond the panel's purview and,
as such, shall not be presented to or entertained by the panel. In complying
with this rule avoiding raising arguments to the panel that are beyond the
panel's purview, a local government and/or applicant or property owner reserves
and does not waive any such arguments.
(8)
Deliberation and Decision.
The panel shall meet to deliberate and make decisions on the outcome of the
arbitration. This may occur in one or more meetings, as determined by the
panel. This may occur during the same meeting as the meeting(s) within which
evidence and argument are presented, but it is not necessarily so.
The panel shall first determine whether or not the grounds
for objection as specified in the objection are valid pursuant to O.C.G.A.
§
36-36-113. In reaching its
determination, the panel shall consider the local governments' arguments and
evidence as it relates to the grounds provided by statute and the directions
provided above. After deliberation, the determination of the panel shall be
established by majority vote of the five panelists.
If the panel determines that an objection is valid, they
shall, by majority vote of the five (5) panelists, determine whether or not it
necessary to establish development limitations including reasonable zoning,
land use, or density conditions that are applicable, to the annexation and
propose reasonable mitigating measures as to an objection pertaining to
infrastructure demands.
The panel may determine by majority vote of the five
panelists that either of the local governments has advanced a position that is
not valid on its face. If the position advanced by a local government
determined by the panel to have so wholly invalid, the costs associated with
the annexation arbitration process which would have generally been divided
equally between the local governments will be borne in their entirety by the
party deemed to have advanced such a position. The rationale for this method of
apportioning costs shall be clearly communicated in the panel's findings. The
panel's determination(s) and any necessary development limitations and/or other
mitigation measures shall be detailed in writing.
All determinations and decisions of the panel shall be made
on the basis of a majority vote of the five panelists. All votes shall be "Yay"
or "Nay" with no abstentions permitted.
(9)
Process Options.
(a)
Court Reporter & Hearing
Officer. The panel may elect to employ a court reporter and/or hearing
officer to assist the panel in creating procedural records and/or managing the
hearing process. All costs and charges related to the employment of a court
reporter and/or hearing officer shall be evenly divided between the local
governments except as otherwise provided. The court reporters and hearing
officers available to the panel shall be the Georgia Court Professional
Directory hosted by the Judicial Council of Georgia, Administrative Office of
the Courts. Hearing Officers shall be selected from the court professionals
labeled "neutrals" in the directory while court reporters shall be selected
from among those labeled as such in the directory.
(b)
Decision Extension. While
generally, the panel is to render a decision regarding the annexation
arbitration dispute no later than sixty (60) days following its appointment,
the chair of the panel is authorized to extend this deadline once, for a period
of up to ten (10) business days. The need for such an extension shall be based
upon such criteria as the chair deems appropriate and necessary to conform with
the purpose of the process. Such an extension shall be immediately provided in
writing to the local governments, the applicant or property owner, and the
Department via verifiable delivery.
(c)
Postponement. The City and
County may, by mutual agreement, postpone the arbitration process for a period
of up to one hundred eighty (180) days to negotiate a potential settlement.
This postponement will pause the sixty (60)-day deadline. Any such agreement
shall be immediately provided in writing to the applicant or property owner,
the panel, and the Department via verifiable delivery.
(d)
Costs. The arbitration costs
will generally be split evenly between the county and the municipal
corporation. However, as provided above, in some circumstances, the panel may
elect to apportion the entirety of the costs associated with the arbitration
process to one party. Regardless of the manner of apportioning costs (i.e.,
evenly split or wholly apportioned to one party), all associated process costs,
including any reasonable costs of the property owner or owners participating in
the process, will be apportioned in the same manner. Fees shall be payable to,
as apportioned, within 45 days of the conclusion of the arbitration process as
provided in these rules.
(e)
Withdrawal. The objecting local government may, by majority vote
of its elected body, as defined by applicable general or local law, withdraw
its objection at any point of the process for any reason. Likewise, the
applicant or property owner may withdraw the annexation petition at any time
for any reason, thus rendering the arbitration moot. Notice of a withdrawal
shall be provided to the Department, the municipality, the applicant or
property owner, and, if it has already been empaneled, the panel within seven
(7) days of the body's vote. Upon receipt of this notice, the Department shall
acknowledge its receipt and immediately dissolve the panel. If withdrawal
occurs after costs have been incurred, all parties shall be responsible for
their own costs, and any costs that may have already been incurred by the panel
shall be split evenly between the county and the municipal
corporation.
(f)
Appeal. The municipal or county governing authority or an
applicant for annexation may appeal the decision of the panel by filing an
action in the superior court of the county within 10 days from the verified
receipt date of the panel's findings. The sole grounds for appeal shall be to
correct errors of fact or of law, the bias or misconduct of an arbitrator, or
the panel's abuse of discretion. Any party filing such an appeal shall provide
a notice to all the affected parties, the Department, and the panel that has
filed such an action. Copies of all filings including any order(s) issued as a
result of the appeal shall be provided to the Department via verifiable
delivery. Any unappealed order shall be binding upon the parties.
(g)
Interparty Negotiations.
Ongoing communication, discussion, and negotiation between the local
governments and/or the applicant or property owner outside of arguments before
the panel are critical to a mutually-agreeable outcome for a disputed
annexation. The local governments and the applicant or property owner are urged
to take every opportunity to resolve their conflict outside of hearings in
front of the arbitration panel.
The county, the municipal governing authority, and the
property owner or applicant shall negotiate in good faith throughout the
annexation proceedings provided by this article and may at any time enter into
a written agreement governing the annexation. Such agreement may provide for
changing the zoning, land use, or density of the annexed property during a
period of less than two (2) years. All costs that may have been incurred by the
parties and/or the panel shall be apportioned as provided in the agreement. Any
such agreement shall be immediately provided in writing to the local
governments, the applicant or property owner, the panel, and the Department via
verifiable delivery. If such an agreement is reached after the arbitration
panel is appointed and before its dissolution, the panel shall hold a meeting
at which the agreement shall be adopted by the panel as its findings. If such
an agreement results in a withdrawal of the objection or a withdrawal of the
annexation petition, the section of these rules regarding withdrawals, above,
shall apply.
(10)
Conclusion of Annexation Arbitration Process. The panel's findings
shall be detailed in writing and provided to the affected parties and the
Department by verifiable delivery within 60 days of its appointment.
(a) If the findings contain zoning, land use,
or density conditions, or other mitigating measures, the county shall ensure
that the findings are recorded in the deed of records of the County with the
following caption description:
1. The name of
the current property owner
2.
Recording reference of the current owner's acquisition deed and a general
description of the property
3.
Clearly stating any expiration date of any restrictions or conditions
Documentation clearly demonstrating that this recordation has
occurred shall be provided to the affected parties municipality, the applicant
or property owner, and the Department once it has been completed.
(b) By operation of law,
requiring no further action of the local governments, the applicant or property
owner, the Department, or the panel, itself, the panel shall be dissolved on
the ten (10th) day after it renders its findings.
However, the panel may be reconvened if, upon appeal, the court remands the
matter to the panel for further consideration. If so reconvened, the panel
shall, again, be dissolved on the ten (10th) day
after it renders its further findings.
(c) The annexation arbitration process will
be understood to have concluded after: the Department has received the panel's
findings; remuneration for costs has been provided; either the opportunity to
appeal the panel's decision has expired or the appellate process has concluded;
and, if the court has remanded the matter to the panel, the panel has completed
that process and provided its subsequent findings to the local governments, the
applicant or property owner, the Department, and, as appropriate, the
court.
(d) Following the conclusion
of this process, the city and an applicant for annexation may either accept the
findings of the panel and proceed with the remaining annexation process or
abandon the annexation proceeding, altogether.
(e) If at any time during the proceedings the
municipal corporation or applicant abandons the proposed annexation, the county
shall not change the zoning, land use, or density affecting the property for a
period of one year unless such change is made in the service delivery agreement
or comprehensive plan and adopted by the affected city and county and all
required parties.
(f) If the
annexation is completed after final resolution of any objection, whether by
agreement of the parties, act of the panel, or court order as a result of an
appeal, the annexing local government shall not change the zoning, land use, or
density of the annexed property for a period of two (2) years unless such
change is made in the Service Delivery Strategy or Comprehensive Plan and
adopted by the affected city and county and all required parties.
