Cherokee County, Georgia v. Inline Communities, LLC ( 2020 )

SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
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October 5, 2020
In the Court of Appeals of Georgia
A20A1511. CHEROKEE COUNTY, GEORGIA v. INLINE
COMMUNITIES, LLC et al.
MILLER, Presiding Judge.
The City of Woodstock, Georgia, annexed approximately 145.96 acres of land
in previously unincorporated Cherokee County at the request of the owners of that
land. The County filed a petition to challenge this annexation, and it now appeals
from the trial court’s order granting summary judgment and upholding the validity of
the annexation. We conclude that this annexation meets all of the relevant criteria
under OCGA § 36-36-20 (a) because (1) the entire annexation area has a sufficiently
long border with the existing city limits; (2) the annexation area includes only whole
“parcels” of land; and (3) the annexation area is sufficiently large. We therefore
affirm the trial court’s grant of summary judgment.
“Summary judgment is only proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of law. A de novo standard of
review applies to an appeal from a grant of summary judgment.” (Citations omitted.)
Calloway v. City of Fayetteville, 296 Ga. App. 200 (674 SE2d 66) (2009).
In reviewing the question of annexation by a municipality in this state
we must conclude that the General Assembly intended that a liberal
policy apply in this area. The General Assembly has made several
methods available and has apparently sought to leave such matters
primarily under local control. When this [C]ourt has applied a strict
interpretation of these methods, the General Assembly has promptly
amended the statutes to overcome such court-enunciated limitations.
(Citations and punctuation omitted.) Fayette County v. Steele, 268 Ga. App. 13, 14
(601 SE2d 403) (2004).
This appeal concerns the City’s annexation of an area that consists of three
parcels of property that were previously located in unincorporated Cherokee County.
The three parcels of property are respectively owned by (1) Greater North Georgia
Charities, Inc. (“GNGC”); (2) David Porter; and (3) the Estate of Arnold Goldberg
and Havgol, LLC. The GNGC property is 10.11 acres in size and has a border of
378.43 feet with the pre-existing City boundary. The Porter property is 5.53 acres in
size and is located between the GNGC property and the Goldberg property. The
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Goldberg property is approximately 127 acres in size and thus constitutes the vast
majority of the area to be annexed. Appellee Inline Communities, LLC is a real estate
developer which is seeking to construct a residential subdivision on the Goldberg
property.
In December 2018, Inline Communities submitted a revised application to the
City for it to annex the three properties using the “100% method” of annexation.1 The
County timely informed the City of its objection to the annexation. The City voted to
approve the annexation over the County’s objection, and on June 10, 2019, the City
passed an ordinance to recognize the annexation.
The next day, the County filed the instant action against Inline Communities,
the property owners, and various city officials, seeking declaratory and injunctive
relief on the basis that the annexation was void because it did not follow the requisite
statutory requirements. The defendants each filed motions for summary judgment.
Following a hearing, the trial court granted the defendants’ motions for summary
judgment. This appeal followed.
1
The “100% method” is so named because it requires that 100% of the
landowners involved join the application for annexation. OCGA § 36-36-21.
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1. The County first argues that OCGA § 36-36-20 requires that the land to be
annexed have a border with the existing City limits that is greater than 50 feet long
and that the boundary requirement was not met in this case because there is a fact
issue as to whether the boundary between the GNGC property and the Porter property
is greater than 50 feet.2 The County thus argues that, if this boundary is less than 50
feet, then it is insufficient to meet the statutory requirements. We conclude that this
argument is belied by the plain language of the statute.
Under the “100% method” that was used to annex the property here, Georgia
municipalities may “annex to the municipality’s existing corporate limits contiguous
unincorporated areas upon the written and signed applications of all of the owners of
all of the land[.]” Scarbrough Group v. Worley, 290 Ga. 234, 235 & n.1 (719 SE2d
430) (2011). To qualify as a “contiguous unincorporated area” eligible for annexation
under this method, the Georgia code sets out three requirements:
(1) At least one-eighth of the aggregate external boundary or 50 feet of
the area to be annexed, whichever is less, either abuts directly on the
municipal boundary or would directly abut on the municipal boundary
2
One side of the boundary between the GNGC property and the Porter property
ends at a river, and so the fact dispute between the parties arises from the different
ways that could be used to mark the shoreline of the river and thus mark the end of
the boundary.
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if it were not otherwise separated from the municipal boundary by lands
owned by the municipal corporation or some other political subdivision,
by lands owned by this state, or by the definite width of:
(A) Any street or street right of way;
(B) Any creek or river; or
(C) Any right of way of a railroad or other public service
corporation which divides the municipal boundary and any area proposed to
be annexed;
(2) The entire parcel or parcels of real property owned by the person
seeking annexation is being annexed; provided, however, that lots shall
not be subdivided in an effort to evade the requirements of this
paragraph; and
(3) The private property annexed, excluding any right of way of a
railroad or other public service corporation, complies with the annexing
municipality’s minimum size requirements, if any, to construct a
building or structure occupiable by persons or property under the
policies or regulations of the municipal development, zoning, or
subdivision ordinances.
OCGA § 36-36-20 (a).
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We first note that the statute requires that “the area to be annexed” needs to
have a border with the existing city limits of at least 50 feet. OCGA § 36-36-20 (a)
(1). The GNGC Property has a border with existing city limits of 378.43 feet, which
is clearly more than the 50 feet the statute requires. Thus, the “area to be annexed,”
viewed as a whole, meets this boundary requirement.
The County nevertheless argues that the border between the GNGC property
and the Porter property must also meet this 50-feet requirement because the property
owners should not be allowed “to do in a bulk annexation what you could not
otherwise do with individual annexations.” This, however, is precisely what the
statute allows. In addition to the boundary requirement referring to the “area to be
annexed” as opposed to the individual properties to be annexed, the statute
specifically provides that “[l]ands to be annexed at any one time shall be treated as
one body, regardless of the number of owners, and all parts shall be considered as
adjoining the limits of the municipal corporation when any one part of the entire body
abuts such limits.” (Emphasis supplied.) OCGA § 36-36-21. In analyzing a prior
version of this statute with identical language, we have previously concluded that this
sentence means exactly what it says: we look to the entire area to be annexed as a
whole to see if the border requirement has been met. City of Holly Springs v.
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Cherokee County, 299 Ga. App. 451, 456-457 (2) (682 SE2d 644) (2009) (analyzing
OCGA § 36-36-2 (a) (1976)). In light of these statutory provisions, and because all
three properties are contiguous, the precise length of the boundary between the Porter
property and the GNGC property is not relevant for purposes of OCGA § 36-36-20
(a) (1).
The County further asserts that the annexation should be disallowed because
it is a “spoke and stem annexation,” which it argues is forbidden under the current
version of the statute. The term “spoke and stem annexation” usually describes an
annexation of a property that was connected to the rest of the city only by a road, part
of a road, or a sidewalk. See City of Holly Springs, supra, 299 Ga. App. at 455-457
(2). Such annexations are indeed forbidden under the current statute, see id., but, in
any event, that situation is not present here because none of the boundaries of the
properties at issue involve roads or other public rights of way. See OCGA § 36-36-21
(“Except as provided in subsection (c) of Code Section 36-36-20, nothing in this
article shall be construed to authorize annexation of the length of any public right of
way except to the extent that such right of way adjoins private property otherwise
annexed by the municipal corporation.”).
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Finally, to the extent that the County argues that we should not permit
annexations such as the one here as a matter of good policy, we note that our
appellate courts have routinely rejected such policy arguments. See Paulding County
v. City of Hiram, 240 Ga. 220, 224 (2) (240 SE2d 71) (1977) (“[Our prior case law]
contains the implicit, if not express, conclusion that the only requirements that need
be met to sustain the validity of annexations under the 100% Method are those found
in the annexation statute. Under this (the 100%) method of annexation the only
property involved is that of the owner who applies for annexation. It merely gives him
a free election as to whether to have it within or without the municipality provided
it is contiguous to an area of the city and the city is willing to annex. Any other
interpretation of the legislative intent would be to deprive the owner of such land of
this right of election.”) (citation and punctuation omitted); City of Gainesville v. Hall
County Bd. of Educ., 233 Ga. 77, 80 (2) (209 SE2d 637) (1974) (“The fact that such
‘stem’ or ‘spoke’ annexation will result in irregular and odd shaped city limits, as
indeed it does here, is no basis for declaring such annexations void.”); see also
Cooper v. City of Gainesville, 248 Ga. 269, 270 (282 SE2d 322) (1981) (upholding
the trial court’s ruling that, because the annexed property came within the statute’s
definition of “contiguous,” the annexation was legal, even if unwise); City of Holly
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Springs, supra, 299 Ga. App. at 455-457 (2) (rejecting challenge to alleged “spoke or
stem annexation” because the annexed property met the statutory definition of
“contiguous”). Because the annexation at issue met the statutory boundary
requirement, the trial court correctly granted summary judgment in this respect.
2. Next, the County argues that the trial court incorrectly determined that the
annexation involved “[t]he entire parcel or parcels of real property owned by the
person[s] seeking annexation. . . .” OCGA § 36-36-20 (a) (2). The County argues that
the Porter property does not meet this requirement because Porter owns another
property that is not being annexed that is close to his property that is being annexed.
The County argues that Porter’s two properties should be treated as one “parcel”
under the statute because the properties were both given to Porter in the same deed
and because the two properties are listed together under the same tax parcel
identification number. Because Porter is not seeking to annex both properties,
therefore, the County argues that the annexation of Porter’s property is void. We
conclude that this argument is not meritorious.
We first note that the deed that gave Porter ownership of the two properties
clearly sets out that the two properties were entirely separate tracts of land, referring
to one as “Tract One” and the other as “Tract Two,” and the deed defined each tract
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through entirely separate metes and bounds. Second, we have previously defined the
terms “parcel of land” and “tract of land” as synonyms that both refer to “a
contiguous quantity of land.” (Citation omitted.) Floral Hills Memory Gardens, Inc.
v. Robb, 227 Ga. 470, 472 (1) (181 SE2d 373) (1971). The two Porter properties at
issue are not contiguous with each other, and so they cannot be considered part of the
same “parcel” under this definition. Third, we note that multiple distinct parcels of
property are frequently conveyed together under the same deed, see, e.g., Atlanta Dev.
Auth. v. Clark Atlanta Univ., 298 Ga. 575, 576 (784 SE2d 353) (2016) (one deed
conveyed three distinct parcels of land), and so the fact that Porter’s two properties
were conveyed together in the same deed does not by itself have any bearing on
whether the two properties are part of the same “parcel” or not. Finally, the county’s
tax records, standing alone, are not conclusive evidence of the status or boundaries
of a property. See, e.g., Resseau v. Bland, 268 Ga. 634 (491 SE2d 809) (1997) (noting
that trial court instructed the jury that “it was not to consider the tax maps as evidence
of ownership of the depicted tracts but only as evidence of the county tax records”);
Maughon v. Lassiter, 231 Ga. App. 705, 706 (500 SE2d 626) (1998) (expert witness
admitted that a plat based upon tax records “can’t establish where the [property] line
actually is” when such plat was inconsistent with the description in the deed). From
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this record, the trial court correctly determined that Porter’s two properties constituted
separate “parcels of real property.”
The County also points to the phrase “[t]he entire parcel or parcels of real
property owned by the person seeking annexation” and argues that this provision of
OCGA § 36-36-20 (a) (2) requires that Porter annex the entire amount of real property
in his possession, even if it constitutes multiple parcels, but we reject this
interpretation. The statute’s reference to “parcel or parcels” is simply a recognition
that multiple parcels of land may be involved in an annexation. It is not a directive
that a private property owner must annex all real property in his or her possession,
regardless of the property’s contiguity or spatial relation to the area sought to be
annexed. Indeed, imposing such a requirement in this case would result in Porter’s
second property constituting an isolated municipal island that would be detached
from the rest of the City limits, and we have previously concluded that the General
Assembly did not intend to create such isolated islands. See City of Buford v.
Gwinnett County, 262 Ga. App. 248, 251 (2) (585 SE2d 122) (2003) (annexation void
where property held in fee simple separated annexation from existing city limits
because “the General Assembly surely did not intend” for an annexation to create an
“isolated municipal island”).
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Thus, we conclude that there is no genuine fact issue as to whether Porter’s two
properties constitute a single “parcel” under OCGA § 36-36-20 (a) (2), and the trial
court properly granted summary judgment in this respect.
3. Finally, the County argues that the annexation does not satisfy OCGA § 36-
36-20 (a) (3), which states that the annexation must “compl[y] with the annexing
municipality’s minimum size requirements, if any, to construct a building or structure
occupiable by persons or property under the policies or regulations of the municipal
development, zoning, or subdivision ordinances.” The County argues that the GNGC
Property cannot meet this requirement because no occupiable structure can be built
on that property. This argument is also not meritorious because the record shows that
occupiable structures may be built on the annexed area.
First, as noted above in Division 1, the statute provides that “[l]ands to be
annexed at any one time shall be treated as one body, regardless of the number of
owners,” OCGA § 36-36-21, and occupiable structures can clearly be built on the
entire annexation area. Indeed, the record shows that the whole point of this particular
annexation is so that Inline Communities can build a residential subdivision on the
Goldberg property. Second, even if OCGA § 36-36-20 (a) (3)’s requirements applied
to each of the properties individually, the City’s municipal code clearly provides that
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“[p]rojects which involve an annexation are exempt from” its minimum size
requirements, and the statute’s use of the phrase “if any” clearly contemplates the
existence of cities that do not have a minimum size requirement for annexed
properties. OCGA § 36-36-20 (a) (3).
The County argues at length that OCGA § 36-36-20 (a) (3) requires more than
a satisfaction of the minimum lot size requirements and that it also requires that each
property actually meet all municipal requirements for the building of a structure
“occupiable by persons or property.” However, the County’s reading of the statute is
misplaced because OCGA § 36-36-20 (a) (3) only specifically refers to a
“municipality’s minimum size requirements,” and we see nothing else in the statute
that would mandate compliance with a municipality’s building requirements
generally. Thus, we conclude that the trial court properly determined that the
annexation satisfied this prong of the statute.
For the reasons provided above, we conclude that the trial court properly
determined that this annexation passed statutory muster. We therefore affirm the trial
court’s grant of summary judgment.
Judgment affirmed. Mercier and Coomer, JJ., concur.
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