Local Government Law - R. Perry Sentell, Jr.

• Publication year: 2001

cal Government Law by R. Perry Sentell, Jr.^*

Trial Judge: "Why do you wish ... to [change City Attorneys midway through this case]? What's wrong with the [City Attorney] you have?"

Mayor: "He doesn't [pay any attention] to anything [we] say."

Trial Judge: "What about that, [Mr. City Attorney]?"

City Attorney: "I'm sorry, Judge, I wasn't [paying attention]."¹

Some say that the "law" of local government, both decisional and statutory, possesses an importance of overarching significance, far exceeding the attention it frequently receives.

I. Municipalities

A. Annexation

In a period highlight, the Georgia Supreme Court finally confronted municipal objections to recent statutes triggering a dispute resolution process upon county objections to land use classification in an area proposed for annexation.² In the case of Higdon v. City of Senoia,³ the court rejected a contention that the statutes conflicted with the constitution's delegation of the municipal zoning power.⁴ Initially, the court deemed it "clear that the statutes . . . concern annexation procedures over which the General Assembly retains power."⁵ Because the measures did not implicate "substantive zoning matters," they "do not conflict with the city's power to zone land within its boundaries."⁶ Finally, the court denied the statute's effect as vesting counties with "ultimate control over [municipal] ability to rezone property."⁷ Although "the Georgia Constitution does give municipalities the power to adopt plans and exercise zoning within . . . city limits, it does not permit a municipality to dictate how a parcel of property may be zoned outside of its boundaries."⁸

The Georgia Court of Appeals rejected an annexation challenge in H-B Properties, Ltd. v. City ofRoswell.⁹ There, while effecting an annexation under the "resolution-referendum" procedure,¹⁰ the city deleted a shopping center from its original proposal approved by the county.¹¹ Upon plaintiffs' challenge, the court engaged a liberal construction of the authorizing statute¹² and approved the city's action:

[T]he map reflecting the deletion of the shopping center was referred to in the notice of public hearing, it was the map presented at the public hearing, and it was the map approved by the mayor and city council at the public hearing and later by a majority of the voters voting in the referendum.¹³

Likewise, the court held that the deletion did not void the County's prior approval: "[The county's] approval encompassed all of the area which was subsequently presented to the voters in the referendum."¹⁴

B. Officers and Employees

Georgia statutory law affords peace officers a number of rights, including the right to be prosecuted only upon grand jury indictment.¹⁵ In Dudley v. State,¹⁶ a former municipal police chief claimed that right in respect to an alleged crime committed in the performance of his duties, for which he was not prosecuted (upon a charge by accusation) until after he left the position.¹⁷ Reversing the court of appeals,¹⁸ the supreme court unanimously invalidated the former officer's conviction.¹⁹ The material statute is "plain and unequivocal," the court asserted, that "a peace officer should not lose . . . protections for the officer's actions in the performance of duty merely because the officer is no longer employed as such at the time of prosecution."²⁰

DeClue v. City of Clayton²¹ likewise focused upon a former municipal employee, one contesting the termination of his employment.²² First, plaintiff charged a violation of due process by the city's change of its employment policies and his subsequent termination.²³ Rejecting those charges, the court of appeals emphasized evidence revealing that plaintiff "had notice of the proposed [policy] changes, and that he exercised his opportunity to be heard regarding the changes."²⁴ Having thus abolished any property interest in plaintiff's status, "the City did not violate his due process rights by terminating his employment without notice and a hearing."²⁵ As for impairment of contract, the court noted that the original policies had themselves expressly provided for subsequent amendment or termination.²⁶ Accordingly, the original policies created no vested right to employment and their change "did not impair [plaintiff's] contract rights as prohibited by Georgia's Constitution."²⁷

Municipal police jurisdiction drew the court of appeals' attention in State v. Gehris.²⁸ The case featured municipal officers who witnessed a traffic violation outside the city limits and called upon county police to investigate a possible charge of driving under the influence.²⁹ Upon the county officer's decision not to proceed, the city police took charge of the perpetrator, administered sobriety tests, and effected an arrest.³⁰ Under these circumstances, the court held, the municipal officers possessed authority to investigate the offense originally committed in their presence,³¹ and to conduct their own investigation when the county officer refused to do so.³² The court thus reversed the trial judge's suppression of the evidence obtained by the city police.³³

C. Powers

The high-profile power litigation of the survey period emerged in Smith & Wesson Corp. v. City of Atlanta,³⁴ a municipality's action against firearms manufacturers³⁵ in the face of a state statute expressly prohibiting the suit.³⁶ The supreme court's decision resolved no substantive issues in the case, reaching only the appropriateness of defendants' request to compel the trial judge's dismissal.³⁷ Rejecting that request, the court emphasized the "extraordinary" nature of mandamus and prohibition,³⁸ and their inappropriateness for "seek[ing] review of rulings of a trial court."³⁹ "Judicial decisions may be characterized as legally sound or woefully weak," the court opined, "[b]ut, whatever the method by which decisions are reached and conveyed, they are 'judicial decisions not subject to challenge by an action for mandamus [or prohibition].'"⁴⁰

The court treated a second power issue in City of Marietta v. CSX Transportation, Inc.⁴¹ specifically the municipal power to acquire a right to use pedestrian crossings over a state-owned railroad.⁴² Holding adversely to the municipality's position, the court was adamant that "there can be no adverse possession or implied dedication of state property to a municipal corporation."⁴³ Consequently, the city could not reverse decisions by the railroad's private lessee to close two pedestrian crossings within the municipality.⁴⁴

In Abedi v. City of Atlanta,⁴⁵ the municipality successfully defended privatization of its water system and the consequent termination of the system's civil service employees.⁴⁶ Upholding the twenty-year arrangement,⁴⁷ the court of appeals emphasized requirements that the private system offer former city employees equal salaries and benefits for the first three years.⁴⁸ "[T]he council and mayor for the City . . . have decided that, for budgetary reasons, the city's water department should be discontinued and privatized,"⁴⁹ the court reasoned, and "the public's interest overrides the civil service employees' interest in continued employment by the city."⁵⁰

D. Regulation

. In the regulatory context,⁵¹ two contests of the period featured efforts to obtain municipal permits. The plaintiff in Elite Realty Services, Inc. v. City of Auburn⁵² sought to mandamus issuance of a building permit, allowing plaintiff to move a structure onto a lot in a municipal subdivision where the structure would then be renovated.⁵³ Affirming denial of the mandamus, the supreme court relied upon a protective covenant which permitted only "site built" homes in the subdivision.⁵⁴ Under a "plain meaning" interpretation of the covenant,⁵⁵ and rejecting proffered countering testimony from the covenant's drafter,⁵⁶ the court concluded that "a site built house is one that is constructed on a lot in [the subdivision] for use there."⁵⁷

Plaintiffs in City of Alpharetta v. Estate of Sims⁵⁸ protested, as "a gross abuse of discretion," municipal denial of a special use permit to build a gasoline station.⁵⁹ The supreme court first announced that its standard of review was "whether any evidence supportfed] the [city's] decision,"⁶⁰ and then focused upon an ordinance requirement that "all reasonable efforts" be made to save "specimen trees."⁶¹ The record revealed that a "significant oak tree" constituted the city's "particular concern,"⁶² and that applicants' attorney "stated only that [the tree] could not be saved."⁶³ Because plaintiffs failed to show "all reasonable efforts" to save the tree, the court asserted, "we cannot conclude that the denial of the conditional use permit was unsupported by the evidence so as to constitute an abuse of the City's discretion."⁶⁴

Municipal regulation also encountered attacks of unconstitutionality. In Johnson u. Athens-Clarke County,⁶⁵ the challenge doomed an ordinance denning "loitering" as being at a place "under circumstances which cause a justifiable and reasonable alarm or immediate concern that such person is involved in unlawful drug activity."⁶⁶ As it applied to defendant, who was arrested after being observed several times at a particular intersection ("a known drug area"),⁶⁷ the court held the ordinance unconstitutionally vague on two grounds.⁶⁸ First, the measure failed to provide fair warning of what the ordinance prohibited.⁶⁹ Second, the measure vested the arresting officer with unguided and subjective discretion in separating the guilty from the innocent.⁷⁰

The attack enjoyed less success in the civil context presented by Old South Duck Tours v. Mayor & Aldermen of Savannah.⁷¹ There, the supreme court sustained the validity of an ordinance prohibiting the use of amphibious tour service vehicles in the city's historic district.⁷² Initially, the court rejected the challengers' charge of preemption;⁷³ i.e., that the ordinance constituted a local statute in a case covered by general statutes...