POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. v. CUNARD 2-15-2021 Substitute Opinion Issued. ( 2021 )

In the Supreme Court of Georgia
Decided: February 15, 2021
S20A1205. POLO GOLF AND COUNTRY CLUB HOMEOWNERS
ASSOCIATION, INC. v. JOHN CUNARD et al.
WARREN, Justice.
The heart of this case is a dispute between the Polo Golf and
Country Club Homeowners’ Association (the “HOA”) and Forsyth
County over the validity of Section 4.2.2 of Forsyth County’s
Addendum to the Georgia Stormwater Management Manual, an
ordinance that makes HOAs “responsible for maintenance of all
drainage easements and all stormwater facilities within the entire
development.” Section 4.2.2 of the Forsyth County Addendum to the
Georgia Stormwater Management Manual (“Section 4.2.2” of the
“Addendum”).1 The HOA argues that Section 4.2.2 is
1 The Addendum was initially promulgated by the County’s Department
of Engineering, but its enabling ordinance incorporates the provisions of the
Addendum into the ordinance by reference. See Forsyth County Ordinance
unconstitutional and otherwise invalid and that individual lot
owners are responsible for maintaining stormwater infrastructure
on their lots. Variants of this case have been litigated and appealed
multiple times in this and other Georgia courts, including a 2019
appeal in this Court. See Polo Golf and Country Club Homeowners
Assn., Inc. v. Cunard, 306 Ga. 788 (833 SE2d 505) (2019) (Polo Golf
II).2
On remand from our Polo Golf II decision, the trial court
evaluated and rejected the HOA’s remaining claims that Section
4.2.2 is invalid because it requires the HOA to trespass on the
No. 75, § 34-184 (c) (“The provisions of the GSMM and the Forsyth County
Addendum are incorporated by reference as a part of this Ordinance as fully
and completely as if set forth verbatim herein.”).
Polo Golf I, discussed more below, refers to Polo Golf and Country Club
2
Homeowners’ Assn., Inc. v. Rymer, 294 Ga. 489 (754 SE2d 42) (2014), which
involved a dispute between the HOA, Forsyth County, and lot owners within
the Polo Golf development over responsibility for a sinkhole on the lot owners’
property. In Polo Golf I, we held that an earlier version of Section 4.2.2, which
applied only to a “new development” or “redevelopment,” did not apply to Polo
Golf and Country Club, which was developed before the County adopted the
Addendum. See Polo Golf I, 294 Ga. at 494-495. On remand, the trial court
granted the HOA’s motion for summary judgment as to all of the lot owners’
claims against the HOA. The Court of Appeals affirmed the judgment in part
and reversed in part in Rymer v. Polo Golf and Country Club Homeowners
Assn., Inc., 335 Ga. App. 167 (780 SE2d 95) (2015). As explained below, the
Addendum was revised in 2014.
2
private property of homeowners, constitutes involuntary servitude
under the United States and Georgia Constitutions, and exceeds the
scope of the ordinance that authorizes Forsyth County to
promulgate the Addendum. The trial court thus denied the HOA’s
motion for summary judgment and granted the defendants’ cross-
motion for summary judgment. The HOA appealed, and we now
affirm.
1. Background.
(a) Litigation History
In Polo Golf II, we summarized the following background facts:
[The HOA] is a nonprofit corporation which oversees a
housing subdivision in unincorporated Forsyth County
called “the Polo Fields.”[ 3] The stormwater mechanisms
in the subdivision including the Wellington Dam, which
shores up a body of water known as the Wellington Lake,
are failing due to age. The failure of these various
stormwater mechanisms has caused flooding, sinkholes,
and other property damage for some individual
homeowners. This situation has resulted in almost a
decade’s worth of litigation, including a previous decision
in this Court concerning similar underlying facts and
some of the same parties. See Polo Golf and Country Club
Homeowners’ Assoc., Inc. v. Rymer, 294 Ga. 489 (754 SE2d
3 At some point before 1995, the neighborhood became known as Polo
Golf and Country Club.
3
42) (2014) (“Polo Golf I”). In Polo Golf I, John and Diane
Rymer, who were individual homeowners of the Polo
Fields, [the HOA], and Forsyth County disagreed as to
who was responsible for repairing failing stormwater
mechanisms affecting the Rymers’ property pursuant to
the 2004 version of Section 4.2.2 set forth in Forsyth
County’s Addendum to the Georgia Stormwater
Management Design Manual. . . .[ 4]
In Polo Golf I, [the HOA] contended the 2004 version
of Section 4.2.2 was unconstitutional; however, this Court
did not reach the constitutional issue in Polo Golf I
because we concluded that the provision applied to new
developments and redevelopments, but not to already-
existing developments such as the Polo Fields. 294 Ga. at
495.
In January 2014, while this Court’s decision in Polo
Golf I was still pending, Forsyth County enacted a new
version of Section 4.2.2 which now states in pertinent part
as follows:
“When any subdivision or
industrial/commercial park, whether new or
existing, has a legally created property or
homeowners association, the association will
be responsible for maintenance of all drainage
easements and all stormwater facilities within
the entire development.” (Emphasis supplied).
4The 2004 version of Section 4.2.2 stated:
When a subdivision or industrial/commercial park has a legally
created property or homeowners association, the association will
be responsible for maintenance of all drainage easements and all
stormwater facilities within the entire development. . . .
4
Polo Golf II, 306 Ga. at 789-790 (footnotes omitted). With
respect to Section 4.2.2, we concluded that
The 2014 version of Section 4.2.2 states that homeowner
associations (“HOAs”) are responsible for maintaining all
drainage easements and stormwater facilities in their
developments. The 2014 version of Section 4.2.2 further
provides that the county, in certain circumstances, may
direct HOAs to take certain actions (e.g., applying
larvicides or making repairs) to comply with their overall
responsibility to maintain such systems or otherwise be
penalized for noncompliance.
Id. at 792.
With respect to the repairs at issue here, the following facts are
also relevant. In August 2017, the HOA’s board sent a letter to the
owners of lots at or abutting Wellington Dam and Lake informing
them that the dam was leaking and “could potentially have a
complete failure.” 5 Claiming that Polo Golf’s Declaration of
Covenants, Restrictions and Easements (the “Declaration”) “does
not place any obligation upon the [HOA] to maintain or repair the
dam,” the HOA contended that the lot owners were obligated to
5The record shows that the HOA does not own any of the Wellington
Dam/Lake lots.
5
maintain and repair all “structures” on their lots under Section 6.14
of the Declaration and that they were obligated to pay the
reasonable expenses necessary to maintain the structural integrity
of the dam under Section 6.17 (d). The HOA therefore argued that
the lot owners were obligated to pay for repair of the dam. But it
also gave the lot owners formal notice that “if the dam is not repaired
within thirty days, then the [HOA] may exercise the right of
abatement.”
The lot owners disagreed with the HOA’s characterizations of
their obligations under the Declaration and disputed that they were
obligated to repair the failing Dam. Then, in November 2017, the
HOA sent a letter to the lot owners disavowing any involvement
with the repairs and “fully revok[ing]” the portion of its earlier letter
notifying lot owners that it might exercise its right of abatement,
while also noting that the HOA could in the future “consider the
remedies available to [it], including the right of abatement.”
The HOA ultimately sued John Cunard, Director of Forsyth
County’s Department of Engineering, and Benny Dempsey,
6
Stormwater Division Manager of Forsyth County’s Department of
Engineering, to prevent prospective enforcement of Section 4.2.2.
The trial court granted the defendants’ motion for judgment on the
pleadings in part because it concluded that sovereign immunity
barred the HOA’s suit against the county officials. It also rejected
the HOA’s arguments that Section 4.2.2 violated the Contracts
Clause of the U.S. Constitution and the Georgia Constitution’s
prohibition against retroactive laws. In Polo Golf II, we reversed the
trial court’s determination that sovereign immunity barred the suit
against county officials, affirmed the trial court’s grant of the
defendants’ motion for judgment on the pleadings as to the HOA’s
arguments on the merits, and remanded the case so the trial court
could resolve the HOA’s remaining contentions about Section 4.2.2’s
validity. 6
6 Specifically, we considered and rejected the HOA’s challenge under the
Contracts Clause of the U.S. Constitution because, even if the County enforced
Section 4.2.2 against the HOA, enforcement would not actually prohibit the
HOA from exercising the contractual remedies the Declaration provided. Polo
Golf II, 306 Ga. at 792-793. Similarly, we rejected the HOA’s claim that Section
4.2.2 violates the Georgia Constitution’s prohibition against retroactive laws,
7
As part of our remand in Polo Golf II, we instructed the trial
court to address the HOA’s remaining arguments that Section 4.2.2
is invalid because, among other things, it (1) requires the HOA to
commit an illegal trespass and (2) constitutes involuntary servitude.
On remand, the HOA asserted an additional argument that had
been raised in earlier briefing: that Section 4.2.2 is invalid because
it exceeds the scope of the authority provided in its enabling
ordinance. Resolving these issues against the HOA, the trial court
denied the HOA’s motion for summary judgment in its entirety and
granted defendants’ cross-motion for summary judgment. 7
(b) Relevant Sources of Authority
In Forsyth County, maintenance obligations for stormwater
management systems are set forth, in part, in a county-specific
addendum to the Georgia Stormwater Management Manual. The
see Ga. Const. of 1983, Art. I, Sec. I, Par. X, reasoning that the HOA failed to
demonstrate an injury to a vested right. See Polo Golf II, 306 Ga. at 794.
7In ruling on the dispositive motions, the trial court converted the
defendants’ then-pending motion for judgment on the pleadings into a motion
for summary judgment.
8
County enacted its Addendum under the authority of Forsyth
County Ordinance No. 75 (the “enabling ordinance”), which
provides:
The department of engineering shall develop, and update
periodically, an Addendum to the state stormwater
management design manual for the guidance of persons
specifically preparing stormwater management reports,
and designing or operating stormwater management
systems in Forsyth County.
Ordinance No. 75, Section 34-185 (e).
In turn, Section 4.2.2 of the Addendum, which Forsyth County
revised in 2014, provides:
When any subdivision or industrial/commercial park,
whether new or existing, has a legally created property or
homeowners association, the association will be
responsible for maintenance of all drainage easements
and all stormwater facilities within the entire
development.
Polo Golf’s Declaration also includes covenants pertaining to
maintenance and property upkeep for its development. The
Declaration provides that “[e]ach Owner shall keep and maintain
each Lot and Structure owned by him . . . in good condition and
repair” and defines a “structure” as, among other things, “any thing
9
or object that placement of which upon any Lot may affect the
appearance of such Lot” including any “temporary or permanent
improvement to such Lot.” Declaration, §§ 6.14, 1.12 (a).
“Structure” is also defined as:
any excavation, grading, fill, ditch, diversion dam or other
thing or device which affects or alters the natural flow of
surface waters from, upon or across any Lot, or which
affects or alters the flow of any waters in any natural or
artificial creek, stream, wash or drainage channel from,
upon or across any Lot.
Id. at 1.12 (b) (emphasis supplied). 8
The Declaration also contains covenants setting forth
maintenance obligations related to Wellington Dam and Lake:
Owners of Lots which abut any such lake agree to pay any
reasonable expenses necessary to maintain the structural
integrity of the Dam and such other maintenance to the
lake as may be agreed upon by the majority of the
abutting Lot Owners.
Declaration, § 6.17 (d) (emphasis supplied).
8 In Polo Golf I, we noted that “Polo’s covenants . . . provide that each
homeowner is to maintain and repair the structures on his own property,
including any stormwater facilities or device affecting or altering the natural
flow of surface waters on any lot.” See Polo Golf I, 294 Ga. at 489.
10
The Declaration authorizes the HOA to implement several
enforcement mechanisms if lot owners breach the maintenance
covenants set out in the Declaration. Foremost among them is the
right of abatement: the HOA’s right “to enter at all reasonable times
upon any Lot or Structure, as to which a violation, breach or other
condition to be remedied exists, and to take the actions specified” in
a required notice sent by the HOA to the lot owner. Declaration,
§ 8.02. 9 To exercise its right of abatement, the following must occur:
the Architectural Control Committee—a committee tasked with
ensuring that alterations to structures on lots in the neighborhood
comply with the Declaration—notifies the HOA board (the “Board)”
that, in its opinion, an owner has violated the Declaration. See
Declaration, § 6.14. If the Board agrees, it must provide written
notice to the lot owner. If the lot owner fails to remedy the specified
violation within 30 days, the HOA may exercise the right of
abatement under the Declaration. Section 8.02 of the Declaration
9 In addition, the HOA may (among other things) seek specific
performance in court and secure and enforce liens against a lot whose owner is
in violation of the Declaration. See Declaration, §§ 8.03-8.04.
11
provides that, in the event the HOA exercises its right of abatement,
it is not “deemed to have committed a trespass or wrongful act solely
by reason of such entry and such actions, provided [they] are carried
out in accordance with the provisions of this Section.” Under such
circumstances, the lot owner is liable for the costs incurred. See id.
2. Standard of Review.
“Our review of the grant or denial of a motion for summary
judgment is de novo.” Nguyen v. Southwestern Emergency
Physicians, P.C., 298 Ga. 75, 82 (779 SE2d 334) (2015) (citation and
punctuation omitted). As part of our review, “we construe the
evidence most favorably towards the nonmoving party.” Id. at 82(citation and punctuation omitted).
3. The HOA argues that the trial court erred when it concluded
that Section 4.2.2 “places ultimate maintenance responsibility for all
drainage easements and stormwater facilities” within the Polo Golf
development on the HOA. Specifically, the HOA contends that the
trial court erred by rejecting the HOA’s argument that Section 4.2.2
is invalid—both facially and as-applied to the HOA—because it
12
requires homeowners’ associations generally, and the HOA
specifically, to perform maintenance on land it does not own without
granting access rights, and thus to trespass on private property to
remedy stormwater violations. We disagree.
To prevail on its facial challenge to Section 4.2.2, the HOA
must establish that “no set of circumstances exists under which
[Section 4.2.2] would be valid.” Ga. Dept. of Human Svcs. v. Steiner,
303 Ga. 890, 899 (815 SE2d 883) (2018) (citation and punctuation
omitted). Here, however, the trial court determined that the HOA
had “power through its declarations to exercise the right of self-help
to abate the non-complying drainage easement or stormwater
facility existing on an individual lot owner’s lot within the
subdivision” and therefore rejected the HOA’s argument that
compliance with Section 4.2.2 is a legal “impossibility.”
The trial court’s conclusions are supported by the text of both
Section 4.2.2 and the Declaration. To begin, nothing in the text of
Section 4.2.2 requires an HOA to enter private property to perform
maintenance. To the contrary, and as we explained in Polo Golf II:
13
On its face . . . Section 4.2.2 does not mention or prescribe
the means by which an HOA must meet its responsibility
to maintain drainage easements or stormwater facilities.
It also does not expressly or implicitly prohibit an HOA
from using its contractual relationships with homeowners
to effect compliance therewith.
Polo Golf II, 306 Ga. at 792-793. See also id. at 793 (in rejecting the
HOA’s contracts clause arguments, concluding that the HOA “ha[d]
not shown any actual inability to exercise its contractual remedies
because of the county’s stormwater ordinance”). To that end, the
Declaration provides for remedies short of physical intrusion on a
lot owner’s property, including the HOA seeking specific
performance in court and securing and foreclosing on a lien against
the lot. See Declaration, §§ 8.03-8.04.10
Moreover, the Declaration expressly provides that, in the event
that the HOA exercises its right of abatement, it is not “deemed to
have committed a trespass or wrongful act solely by reason of such
entry and such actions, provided [they] are carried out in accordance
Notably, the HOA’s counsel conceded in the proceedings below that the
10
Declaration gives the HOA enforcement mechanisms that do not require the
HOA or its agents to physically enter a homeowner’s lot.
14
with the provisions of this Section.” Declaration, § 8.02 (emphasis
supplied). Thus, as we concluded in Polo Golf II, Section 4.2.2 does
not on its face preclude the HOA from using the abatement remedy
or any other method of self-help set forth in the Declaration. Nor
does Section 4.2.2 require the HOA to trespass. Given that the text
of the Declaration states that if the HOA exercises its right of
abatement and physically enters a lot to perform maintenance, it is
not “deemed to have committed a trespass,” there are at least some
circumstances under which Section 4.2.2 would be valid. As a result,
the HOA’s facial challenge fails. See Bello v. State, 300 Ga. 682, 686
(797 SE2d 882) (2017) (rejecting an appellant’s facial challenge to a
statute when counsel conceded at oral argument that the statute
might be valid “in some instances”).
The HOA also challenges Section 4.2.2 as invalid as applied to
the HOA. Specifically, it argues that because the right of abatement
is available only after the HOA formally determines that a lot owner
is in violation of the Declaration, the HOA could find itself in a
situation where the HOA determines that a lot owner’s stormwater
15
issue does not violate its Declaration, but the County nevertheless
concludes that the lot owner violated county ordinances and cites
the HOA for the violation under Section 4.2.2. 11 Under such a
scenario, the HOA argues, Section 4.2.2 would force the HOA to
trespass on private property to perform maintenance and is
therefore invalid as applied to the HOA. For its part, Appellees
argue that the HOA’s concern is unfounded because any violation of
Section 4.2.2 necessarily violates the Declaration.
We need not answer the speculative question of whether a
violation of Section 4.2.2 always violates the Declaration to conclude
that the HOA’s as-applied challenge fails. That is because, as
mentioned above, neither Section 4.2.2 nor Polo Golf’s Declaration
require the HOA to physically enter a lot owner’s property.
Moreover, the Declaration equips the HOA with enforcement
11 The HOA also offers another version of this argument: that the trial
court erred by “not finding that [the HOA] has no authority to enforce county
law.” Specifically, it argues that “Appellees cannot require [the] HOA to find
a covenant violation and require enforcement on the property of another
owner.” We reject this version of the HOA’s argument for the same reasons set
forth below.
16
mechanisms short of physical intrusion on another’s property—such
as seeking specific performance and securing a lien against a lot—
in addition to the self-help right of abatement, which the Declaration
makes clear would not constitute a trespass. See Polo Golf II, 306
Ga. at 792-793. To that end, the trial court found that “exercising
self-help and entering [a homeowner’s] lot [would] not commit a
trespass,” in part because the HOA “would be acting pursuant to the
terms of the declaration that the lot owner subjected herself to when
she purchased her lot within the subdivision.” We agree.
Not only does the text of the Declaration support the trial
court’s conclusion that the HOA had a self-help remedy available to
it; the record on appeal shows that the HOA in fact initiated its right
of abatement here. Indeed, the HOA took a preliminary step
towards abatement when it sent a letter to the lot owners whose
property abutted Wellington Dam and Lake informing them of the
Dam’s failing condition, telling them that lot owners were
responsible under the Declaration for repairing the structure, and
warning them that “if the dam is not repaired within thirty days,
17
then the Association may exercise the right of abatement.” Although
the HOA later purported to revoke that notice, it reserved its right
to abate in the future, thus demonstrating the HOA’s ability to
comply with Section 4.2.2 without trespassing. The HOA’s as-
applied challenge to Section 4.2.2 therefore fails. 12 Accordingly, we
affirm the trial court’s grant of defendants’ cross-motion for
summary judgment as to the HOA’s trespass arguments.
4. The HOA contends that Section 4.2.2 is unconstitutional—
facially and as-applied to the HOA—because it compels the HOA to
maintain property the HOA does not own, and thus constitutes
12 We likewise reject the HOA’s argument that, in enacting Section 4.2.2,
the County “hijack[ed]” the HOA’s discretion under the Declaration and
“substitute[ed] [its] own judgment for the judgment of the ACC and [HOA],”
specifically with respect to the right to abatement, thereby violating the
“business judgment rule.” See generally Federal Deposit Insurance Corp. v.
Loudermilk, 295 Ga. 579, 580, 584-586 (761 SE2d 332) (2014) (explaining that
the business judgment rule typically prevents courts from second-guessing the
good-faith, informed decisions of a corporate board). It is not at all clear that
the business judgment rule applies here, and the HOA has made no showing
that Section 4.2.2 “hijacks” the right of abatement or any other self-help
remedy set forth in the Declaration. Unlike in Rymer v. Polo Golf and Country
Club Homeowners Assn., Inc., 335 Ga. App. at 174, where a Polo Golf lot owner
asked the trial court to find that the HOA breached its duty by not exercising
its Declaration remedies against other lot owners, this appeal does not present
the question of whether a corporation has exercised its discretion over its own
affairs lawfully and in good faith.
18
involuntary servitude in violation of the United States and Georgia
Constitutions. See U.S. Const. Amend. XIII (“Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.”); Ga. Const. Art. I,
Sec. I, Par. XXII (“There shall be no involuntary servitude within
the State of Georgia except as a punishment for crime after legal
conviction thereof or for contempt of court.”). The trial court held
that the obligation imposed by Section 4.2.2 “does not fall within the
realm of compulsory labor as contemplated by the Thirteenth
Amendment,” and we agree.
The Thirteenth Amendment of the United States Constitution
and Article I, Section I, Par. XXII of the Georgia Constitution were
enacted “[i]n response to this country’s past institutional
enslavement of people of African descent.” Gasses v. City of
Riverdale, 288 Ga. 75, 78 (701 SE2d 157) (2010).13 The United
13 The HOA offers no authority to support its argument that Section 4.2.2
violates Article I, Section I, Par. XXII of the Georgia Constitution. Nor does it
19
States Supreme Court has held that although “[t]he primary
purpose of the Amendment was to abolish the institution of African
slavery as it had existed in the United States at the time of the Civil
War,” the Thirteenth Amendment “was not limited to that purpose;
the phrase ‘involuntary servitude’ was intended to extend to cover
those forms of compulsory labor akin to African slavery which in
practical operation would tend to produce like undesirable results.”
United States v. Kozminski, 487 U.S. 931, 942 (108 SCt 2751, 101
LE2d 788) (1988) (citation and punctuation omitted). But “the
prohibition against involuntary servitude does not prevent the State
or Federal Governments from compelling their citizens, by threat of
criminal sanction, to perform certain civic duties,” including jury
service, military service, and roadwork. Id. at 943-944. Likewise,
this Court has held that a municipal ordinance requiring citizens to
“maintain grass, weeds, and vegetation for the welfare of the
community is not constitutionally prohibited involuntary servitude.”
attempt to distinguish—or compare—the state constitutional provision with
its federal counterpart. Accordingly, we decline to separately analyze the
HOA’s contention under the Georgia Constitution.
20
Gasses, 288 Ga. at 78.
The HOA contends that a key distinction between Section 4.2.2
and the type of ordinance at issue in Gasses is that Section 4.2.2
requires the HOA to perform work on property owned by an
individual lot owner, as opposed to property owned by the HOA. It
thus argues that compelled labor on another’s property constitutes
involuntary servitude.
We have no trouble concluding that the HOA has not
established a Thirteenth Amendment violation here. That is
because the record belies the HOA’s characterization of its Section
4.2.2 obligations. As the trial court noted, “the HOA is not a
stranger to the privately-owned properties which comprise the
subdivision.” The Declaration plainly states that the HOA is a “non-
profit civic organization [existing] for the sole purpose of performing
certain functions for the common good and general welfare of the
people of the Development,” Declaration, § 3.01 (emphasis supplied),
and both the HOA and the individual lot owners consented to the
various obligations and covenants set forth in the Declaration.
21
Moreover, as explained above, the HOA has specific authority under
certain circumstances (such as with the right of abatement) to enter
a lot owner’s property and perform maintenance. Because the
maintenance obligations imposed by Section 4.2.2 do not constitute
involuntary servitude under the Thirteenth Amendment to the
United States Constitution, we affirm the trial court’s grant of
summary judgment to defendants with respect to the HOA’s
involuntary servitude arguments.14
5. Finally, citing Department of Human Resources v. Anderson,
218 Ga. App. 528, 529 (462 SE2d 439) (1995),15 the HOA contends
that Section 4.2.2 is invalid because it is an administrative rule that
14 We emphasize that we resolve the HOA’s as-applied challenges based
on the record on appeal in this case, and in large part on the text of the various
covenants and other agreements set forth in Polo Golf’s Declaration. We
express no opinion about how similar as-applied challenges would fare under
a different set of contractual agreements.
15 In Anderson, the Court of Appeals held invalid a Department of
Human Resources regulation involving the process for modifying court-ordered
child support because the regulation exceeded the authority provided to the
Department of Human Resources in OCGA § 19-11-12. See Anderson, 218 Ga.
App. at 528-529.
22
“exceeds the scope of or is inconsistent with the authority of the
statute upon which it is predicated.” Id. Specifically, the HOA
argues that Section 4.2.2 is “facially invalid” because it exceeds the
scope of the authorization provided in Forsyth County Ordinance
No. 75.16
Section 34-185 (e) of Ordinance No. 75 provides:
The [county] Department of Engineering shall develop,
and update periodically, an Addendum to the state
stormwater management design manual for the guidance
of persons specifically preparing stormwater
management reports, and designing or operating
stormwater management systems in Forsyth County.
The HOA argues that when the Addendum was revised in
2014, the lot owners—and not the HOA—operated the stormwater
management system in the Polo Golf subdivision, and because the
HOA did not “prepare stormwater reports” or “design[] or operat[e]
stormwater management systems in Forsyth County” at that time,
“the government improperly used Section 4.2.2 to create a brand
16 We interpret the HOA’s argument that the 2014 version of Section
4.2.2 is “facially invalid” as an argument that Section 4.2.2 is invalid because
its promulgation was unauthorized.
23
new obligation onto [the] HOA to become an operator of a
stormwater system.” (Emphasis in original.) In short, the HOA
argues that because it did not “operat[e] stormwater management
systems” in 2014, as referenced in Ordinance No. 75, Section 4.2.2
could not lawfully apply to the HOA and therefore “exceeds its
enabling ordinance.”
The trial court rejected this argument and determined that the
HOA “is an operator of a stormwater management system within
the subdivision it was created to protect.” And although the trial
court offered no reasoning to support this conclusion, we cannot say
that it erred when it concluded that the HOA “falls within the scope
of persons or entities to which [Section 4.2.2] applies.” That is
because the HOA’s argument—though characterized as Section
4.2.2 being invalid because it is inconsistent with its enabling
ordinance—is really another species of the Contracts Clause and
retroactivity arguments the HOA offered, and we rejected, in Polo
Golf II. Indeed, in Polo Golf II, the HOA disputed that Section 4.2.2
“makes [the HOA] responsible for the maintenance of all stormwater
24
mechanisms within the subdivision.” Polo Golf II, 306 Ga. at 790.
We rejected that challenge, explaining that “[t]he 2014 version of
Section 4.2.2 states that homeowners associations (‘HOAs’) are
responsible for maintaining all drainage easements and stormwater
facilities in their developments” and rejecting the HOA’s argument
that Section 4.2.2 impaired its contractual relationship with lot
owners by precluding the HOA from enforcing individual lot owners’
maintenance obligations under the Declaration. Id. at 792-793. We
similarly rejected the HOA’s argument that applying Section 4.2.2
to the HOA violated Georgia’s constitutional prohibition against
retroactive laws. Id. at 793-794. In so doing, we held that the HOA
had “failed to fully articulate a vested right or show that any alleged
vested right has been injuriously affected by the 2014 version of
Section 4.2.2.” Id. at 794. In other words, we held that the HOA had
not demonstrated that it had a vested right in the lot-owner-
maintenance obligations set forth in the pre-2014 Declaration, or
that, at the very least, Section 4.2.2 had not substantially interfered
with any right the HOA had. See id.
25
The HOA’s argument in this appeal is fundamentally the same:
notwithstanding this Court’s holding that Section 4.2.2 applies to
the HOA and was not unconstitutionally retroactive, the HOA
objects “to the County making [the HOA] an operator of the
stormwater system within the Polo Fields subdivision when the
County’s own law [in 2014], as well as the Declaration, put the
stormwater maintenance on individual lot owners rather than on
[the] HOA.” As explained in Polo Golf II, however, and as recounted
above, we have already rejected the merits of that argument.
Accordingly, we again reject the HOA’s argument that Section 4.2.2
is invalid and affirm the trial court’s conclusion that the HOA “falls
within the scope of persons or entities to which the addendum
applies.”
Judgment affirmed. All the Justices concur, except McMillian,
J., who concurs specially in Division 5.
26
S20A1552. POLO GOLF AND COUNTRY CLUB HOMEOWNERS
ASSOCIATION, INC. v. CUNARD, et al.
MCMILLIAN, Justice, concurring specially.
I concur fully in the judgment and in the majority opinion
except for its Division 5, in which I concur in judgment only.
Although I agree with the majority’s conclusion that Section 4.2.2 is
not invalid on the ground that it exceeds the authority granted by
Ordinance No. 75, I reach this conclusion based on a plain reading
of the text of Ordinance No. 75 itself without regard to prior holdings
of this Court.
In interpreting county ordinances,
we must afford the statutory text its plain and ordinary
meaning, we must view the statutory text in the context
in which it appears, and we must read the statutory text
in its most natural and reasonable way, as an ordinary
speaker of the English language would.
Cowen v. Clayton County, 306 Ga. 698, 702 (2) (a) (832 SE2d 819)
(2019) (citations omitted). See also Sliney v. State, 260 Ga. 167 (391
SE2d 114) (1990) (applying rules of statutory construction to county
ordinance). Section 35-183 (6) of Ordinance No. 75 provides that one
27
of the stated purposes of the ordinance is to
[e]stablish provisions for the long-term responsibility for
and maintenance of structural stormwater control
facilities and nonstructural stormwater management
practices to ensure they continue to function as designed,
are maintained, and pose no threat to public safety.
(Emphasis supplied.) Section 34-185 of Ordinance No. 75 outlines
the scope of responsibility invested in the County’s Department of
Engineering. Subsection (b) of that section places responsibility on
the Director of the Engineering Department or his or her designee
for the coordination and enforcement of the Ordinance’s provision,
and Section 34-185 (e), pursuant to which Section 4.2.2. was drafted,
provides:
The Department of Engineering shall develop, and update
periodically, an Addendum to the state stormwater
management design manual for the guidance of persons
specifically preparing stormwater management reports,
and designing or operating stormwater management
systems in Forsyth County.
This language is couched in the present tense and thus
requires the department to provide guidance to all persons
currently operating any stormwater systems in Forsyth
28
County. The next section of Ordinance No. 75, Section 34-186,
outlines the powers granted to the Department of Engineering,
and subsection (b) (2) expressly allows the department to
“[d]etermine the manner in which stormwater facilities should
be operated.” That grant of power necessarily includes the
authority to determine who should be charged with
responsibility for operating such facilities, including the
maintenance of such facilities, in order to maintain public
safety. Although this Court interpreted the 2004 version of
Section 4.2.2 of the Addendum as imposing responsibility on
HOAs “for maintenance of all drainage easements and all
stormwater facilities within the entire development” only as to
new developments and redevelopments, Polo Golf and Country
Club Homeowners’ Assn., Inc. v. Rymer, 294 Ga. 489, 495 (2)
(754 SE2d 42) (2014) (Polo Golf I), 17 the text of Ordinance No.
17 This Court based its conclusion on the “Purpose and Applicability”
section of the 2004 version of the Addendum, which addressed only new
developments and redevelopments. See Polo Golf I, 294 Ga. at 492-95 (2).
However, Section 1.1 of the 2014 version of the Addendum, which addresses
29
75 authorized the Department to extend the responsibility of
homeowners’ associations to operate stormwater management
systems in subdivisions or industrial/commercial parks
“whether new or existing,” as it did in the 2014 version of the
Addendum. While this Court’s prior rulings with regard to the
Contract Clause and retroactive laws provide somewhat
analogous support to this interpretation of the plain language
of Ordinance No. 75, I do not believe, as the majority concludes,
that those holdings are determinative of the HOA’s argument
with regard to the authority supporting Section 4.2.2. Thus, I
would reject the HOA’s argument that Section 4.2.2 is “facially
invalid” based on the plain language of Ordinance No. 75,
which authorizes the department to amend Section 4.2.2 to
make the HOA responsible for the maintenance of stormwater
systems within the subdivision.
“Applicability,” expressly provides that “[e]xisting, new and planned
stormwater facilities shall comply with the maintenance requirements of
Section 4 of this addendum,” which includes Section 4.2.2.
30