Archive for the ‘Government Relations & Land Use’ Category

RECENT GEORGIA CONDEMNATION CASES   Leave a comment

RECENT GEORGIA CONDEMNATION CASES

By R. Matthew Reeves

 

Gwinnett County’s renewal of the one-cent Special Purpose Local Option Sales Tax in November of 2013 provides three more years of millions of dollars of local funding for transportation projects, which will no doubt produce more condemnation cases in Gwinnett County. Eminent domain law remains a highly specialized area of Georgia law, as evidenced by several reported condemnation cases over the past year.

Condemnation cases often require application of other areas of Georgia law, and in Postell v. Bd. of Commissioners of Houston County, 317 Ga. App. 898 (2012), probate law was applied. As part of a road project, Houston County condemned part of a 101 acre tract that Mr. Postell’s great-grandfather owned until he died intestate in 1949. Several weeks after the property was condemned, Mr. Postell was conveyed the property by way of a quit claim deed from his mother. The Court of Appeals affirmed the denial of Mr. Postell’s motion to set aside the condemnation, holding that Mr. Postell had no standing to challenge the taking because the quit claim deed was not recorded until after title had passed to the condemning authority. The Postell court noted that a petition for condemnation is not merely a pleading, but is an instrument which passes title.

Fulton County v. Dillard Land Investments, LLC, 322 Ga. App. 344 (2013), also analyzed when a condemnation becomes final. Dillard concerned a condemnation to expand a library, which must proceed under a special master form of condemnation, rather than a declaration of taking as in road-related condemnations. The Special Master opined that the property owner was entitled to $5,187,500.00. Apparently shell-shocked by the award, Fulton County attempted to voluntarily dismiss the case and abandon the proposed condemnation before the massive sum was paid. The Court of Appeals reversed the trial court, and held that Fulton County was authorized to dismiss the case. The Court’s reasoning hinged upon the fact that title does not pass in a special master condemnation until money is paid into the registry of court pursuant to the special master’s award.

Georgia Dept. of Transportation v. Jackson, 322 Ga. App. 212 (2013), was an inverse condemnation case in which a property owner claimed that the DOT condemned a property interest he owned, when the DOT closed a driveway that led to his property. Between the DOT’s road and the owner’s property were a tract with no owner of record, and a railroad track. Based on aerial photographs and evidence of use of the driveway for decades, including testimony from a local historian and attorney, Judge Bill Ray wrote an opinion affirming a jury verdict based on the inverse condemnation of the property owner’s prescriptive easement.

Power companies have the power of eminent domain to acquire land for transmission likes and other infrastructure. In Boston Creek Holdings, LLLP v. Amicalola Electrical Membership Corp., 320 Ga. App. 375 (2013), the Court held that there is a one-year statute of limitations for claims against power companies for occupying the lands of others. In this case, potential class action claims filed in 2011 based on power lines installed between 1979 and 2008 were dismissed on statute of limitations grounds.

In Amica Mutual Insurance Co. v. Gwinnett County Police Department, 738 S.E.2d 622 (Ga. Ct. App. Feb. 19, 2013), distinguished jurist Judge Michael Clark was once again affirmed, when the Court of Appeals held that Gwinnett County was entitled to sovereign immunity against an inverse condemnation claim based on damage caused during a police stand- off. Judge Clark and the Court of Appeals sided with effective but messy cops in this subrogation suit following a homeowner’s insurance claim based upon damage to a home during the execution of an aggravated assault arrest warrant. Former Gwinnett County Bar Association President Tuwanda Williams and County Attorney Van Stephens won this appeal.

If probate law, seven-figure Fulton County awards unrecorded driveway easements, “S.O.L.” issues, and knock-down drag-out fights with cops were not colorful enough, the barring of alcohol in private booths at a nude dancing club near Hartsfield-Jackson Airport rounds out this review of recent eminent domain cases. In Walleye, LLC v. City of Forest Park, 322 Ga. App. 562 (2013), the Court of Appeals affirmed summary judgment on an inverse condemnation claim, holding that based on the facts of the case, after passage of an alcohol-nudity ordinance, the subject property did not experience a regulatory taking.

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Matthew “Matt” Reeves is a former President of the GCBA, a partner at Duluth law firm Andersen, Tate & Carr, P.C., and practices real estate, business and probate litigation, including representing property owners and business owners in eminent domain matters.

 

This article was previously published in the Gwinnett County Bar Association newsletter.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Interview by Daily Report; Matt Reeves and Robert Thomas successfully defend against appeal…   Leave a comment

R. Matthew Reeves

Waterscape, [represented by Andersen, Tate & Carr attorneys R. Matthew Reeves and Robert D. Thomas], [recently asked the] Forsyth County Superior Court Judge David Dickinson to disqualify [attorney George] Butler from representing the [opposing party], on the basis that Butler had been a lawyer for Waterscape.

Waterscape sought dismissal of the appeals, saying that the disqualification order was not a final order, meaning that Butler and his clients had to obtain a certificate of immediate review or follow the application procedures for an interlocutory appeal. Butler’s clients argued that there was a conflict in Georgia case law on whether a disqualification order is directly appealable.

[In reviewing the brief filed by Mr. Reeves and Mr. Thomas], the Nov. 13 opinion by Court of Appeals Judge Lisa Branch, joined by Chief Judge Herbert Phipps and Judge John Ellington…sided with Waterscape, ruling that Butler and his clients could not appeal the disqualification order at this point in the litigation.

The cases are Settendown Public Utility v. Waterscape Utility, No. A13A0830, and Butler v. Waterscape Utility, No. A13A0831.

Read more:

http://www.dailyreportonline.com/PubArticleDRO.jsp?id=1202628794506&Panel_Parties_Appeal_Over_Loss_of_Lawyer_is_Premature#ixzz2l9Bx9Ho7

- photos and summary courtesy of the Daily Report (Nov. 19, 2013).

 

Georgia Community Association “Priority Lien” Bill – A New Year, Another Chance

For years now, there has been an ongoing push to try to pass a bill in the Georgia legislature that would give community associations that are subject to the Georgia Property Owners Association Act (as opposed to “common law associations”) and condominium associations a special “Priority Lien.”  In 2013, the push continues.  The proposed legislation would allow Georgia associations to collect up to 6 months of past due assessments at a foreclosure sale, if any assessments were due at the time of foreclosure. In 2013 expect this push to continue.  Similar bills have been adopted in 18 states and the District of Columbia in the wake of the home foreclosure crisis.
This would be a huge help to associations. Often assessments are one of the first bills to go unpaid when a homeowner gets into financial trouble and at the time of a foreclosure there may be significant amounts overdue. As the law currently stands the lien of the association for the past due assessments is wiped out in condominiums and associations subject to the Georgia Property Owners Association Act (and generally in common law associations too). Associations typically have no other income stream and so this can really hurt the association’s ability to fund its obligations, often to the detriment of the other property owners that are members of the association.
However, bank lobbyists have lobbied extensively against the passage of such a bill and stand strongly opposed to its adoption.
Also, if such a bill were passed, the distinction between “common law associations” and Georgia Property Owners Association Act associations (aka “POA Act associations” or “statutory associations”) would continue to grow.

This is a situation that bears watching, especially if you are a member of an association that would be affected by such a change in the law.

By: Amy H. Bray, a partner in our Commercial Real Estate Department

ATC Capitol Update – Sine Die Edition, April 2, 2012   Leave a comment

By: Michael L. Sullivan

If the old saying is true that no man’s life, liberty or property are safe while the legislature is in session, then we can all breathe a big sigh of relief now that the 2012 Session of the Georgia General Assembly has come to a close. Legislators adjourned Sine Die (Latin for “without a day” meaning they adjourn without a day designated to return) around midnight on Thursday.

Several positive legislative accomplishments were achieved this session, including significant tax reform and economic development initiatives designed to make Georgia more competitive and criminal justice reform designed to transform Georgia from being “tough on crime” to being “smart on crime.” Many of those legislative victories came down to the last few days of the session. Below is a listing of notable legislation that passed the General Assembly and now awaits the signature of Governor Nathan Deal (who has 40 days from the end of the legislative session to sign or veto legislation).

TAX REFORM & ECONOMIC DEVELOPMENT

HB 386 – The tax reform plan that was hammered out in behind the scenes negotiations between legislative leadership and the Governor’s Office. While the bill passed both chambers only 4 days after it was first introduced, many of its provisions had already been well vetted, having been based largely on the recommendations of the Governor’s Special Council on Tax Reform and informed by the feedback received from the business during the Georgia Competitiveness Initiative process. Provisions include:

• Elimination (phased in over three years) of the state sales tax on energy used in manufacturing and agriculture. Local governments will be authorized to impose a local excise tax on energy used in manufacturing (avoiding the negative impact that would have resulted on local governments, particularly as to SPLOSTs and E-SPLOSTs).
• Elimination of the sales tax and ad valorem “birthday tax” on motor vehicles sold after March 1, 2013, replacing it with a new, one time title fee, paid at the time of purchase (starting at 6.5% and going up to 7% in 2015).
• Raising the personal income tax exemption for married taxpayers filing jointly from $5,400 to $7,400 (married taxpayers filing separate returns can each claim $3,700).
• Tightens the requirements to qualify for land conservation tax credits.
• Eliminates the sales and use tax exemption for the sale or lease of film production equipment or services.
• Eliminates the taxation of energy and machinery or equipment used in agriculture.
• Reinstates the sales tax holiday for back-to-school clothes, supplies, etc. and energy efficient products (October 5-7, 2012 and October 4-6, 2013).
• Attempts to expand the collection of sales tax to internet sales transactions, focused on vendors or others with a physical presence in Georgia (a requirement under a 1992 U.S. Supreme Court opinion).
• Creates a new exemption from sales taxes on construction materials used in “competitive projects of regional significance” as determined by the Commissioner of the Department of Economic Development. Proposed exemption is limited to the period between January 1, 2012 and June 30, 2014.

HB 48 – Will expand Georgia’s existing freeport tax exemptions to allow local governments to exempt business inventory, making Georgia more competitive with neighboring states which have no tax on business inventory.

HB 100 – Will create a Georgia Tax Court (as a pilot project) to handle taxpayer disputes involving the Georgia Department of Revenue.

HB 1027 – Would tighten the requirements for productions to qualify for Georgia’s existing film, television and interactive gaming production tax credits, eliminating the sales tax exemption for production equipment and materials and allowing video game productions to qualify for the credits, while limiting the total amount of tax credits available to all video game productions in Georgia to $25 million (and to no more than $5 million for any individual company).

EDUCATION

HR 1162 – Is a Constitutional amendment that would allow charter schools to be approved by the state over the objection of local school boards. Charter schools would first apply to the local board of education in the jurisdiction in which they are located and if denied, they could then apply to the Georgia Charter Schools Commission for a charter and such approval would entitle a charter school to only the state portion of school funding, not any local school system funds. This Constitutional amendment is in response to (and would overturn) the May 2011 decision of the Georgia Supreme Court which declared that only local school boards could approve charter schools. Constitutional amendments are not subject to approval or veto by the Governor. This proposed Constitutional amendment will be on the November 2012 ballot.

HB 713 – Will delay until 2013 the implementation of the college and career readiness initiatives that were scheduled to go into effect this fall. These initiatives include requiring some level of career awareness education for students in all grades (K-12) as well as the “career pathways” program in which career focused programs of study in at least 16 defined career areas would be created for all high schools and students would follow a course schedule partially focused on the particular career interest they select beginning in 9th grade. Department of Education officials indicated that more time was needed to make sure that these programs are implemented in the right way.

SB 302 – Will increase the cap on the bonding authority of the Georgia Higher Education Facilities Authority from $300 million to $500 million, allowing for more money to build new facilities on Technical College System and University System campuses.

CRIMINAL JUSTICE REFORM

HB 1176 – A comprehensive criminal justice reform bill designed to stem Georgia’s unsustainable prison population growth, including alternative sentencing options for low-level, non-violent offenders to get treatment or job training and the expansion of specialized drug courts. The bill incorporates some of the recommendations of the 2011 Special Council on Criminal Justice Reform and would transform Georgia’s criminal justice system from the “tough on crime” mentality prevalent in the 1990s to a more “smart on crime” system. Georgia currently spends more than $1 billion per year on its corrections system and that number is projected to grow by more than $200 million per year if present incarceration trends continue.

HB 641 – Comprehensive overhaul of Georgia’s juvenile justice system.

OTHER LEGISLATION OF NOTE

HB 347 – Will begin the process of repaying the approximately $720 million borrowed by the State of Georgia from the Federal Unemployment Account (which was necessary to pay out the unprecedented volume of unemployment benefit claims which depleted Georgia’s Unemployment Compensation Fund during the Great Recession) and return Georgia’s Unemployment Compensation Fund to solvency. It proposes to do this with a number of changes, including: (1) increasing the taxable wages subject to unemployment insurance contributions from $8,500 to $9,500 (effective 1/1/13), (2) creating an automatic increase in the unemployment insurance rate table rates, based on the then current percentage of the State-Wide Reserve Ratio, (3) reducing the maximum number of weeks for which an unemployed worker could receive benefits on a floating scale of 12 to 20 weeks (and reduced from the current maximum of 27 weeks to a new maximum of 20 weeks), which would be based on the state’s then current unemployment rate.

HB 636 – Will allow residents of the proposed City of Brookhaven in DeKalb County to vote on whether to create the latest new Georgia city. The vote will occur on July 31, 2012 and if approved, the new city’s mayor & council would be elected this November.

HB 954 – Shortens the period for elective abortion to the first 20 weeks (from the current 26 weeks). Exemption added on Day 40 to exempt abortions of “medically futile” pregnancies or those performed to “avert the death…or risk of substantial and irreversible physical impairment of a major bodily function” of the mother.

SB 33 – Will bring “zero-base” budgeting to Georgia’s budget process, requiring every state agency to submit a zero-base budget once every six years. A zero-base budget would require every budget to start at zero and for every line item for a particular program or agency to be justified, rather than the current scenario where the starting point for budget discussions is the previous year’s budget amount and the discussion is how much that amount will be raised or lowered.

HB 456 – “Sunset legislation” bill that would create a “Legislative Sunset Advisory Subcommittee” that would regularly assess all state programs, departments and agencies to make a recommendation on whether they should be consolidated, privatized or abolished.

SB 402 – Will allow up to 5% of the Georgia Employee Retirement System’s funds to be invested in “alternative investments” including venture capital funds.

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Condemnation Talk with the Oconee County Rotary Club   Leave a comment

 

Oconee County courthouse in Watkinsville, Georgia

Oconee County courthouse in Watkinsville, Georgia (Photo credit: Wikipedia)

ATC Partner Matt Reeves addressed the Oconee County Rotary Club in Watkinsville on March 20, 2012, on the topic of Condemnation/Eminent Domain.  Firm corporate attorney Eadaoin Waller is a member of the club.  Property owners in fast-growing counties such as Oconee County, Gwinnett County, and surrounding counties frequently encounter condemnation, and Matt and several other ATC attorneys including managing partner Tom Tate and Jim Joedecke have tried many condemnation cases to verdict in recent years.  Matt spoke to the club about legal issues concerning condemnation, the Landowners Bill of Rights, and the U.S. Supreme Court’s Kelo decision.  Reeves answered questions from Rotarians, and the club made a donation to the “Oconee Wee Read” program in Matt’s honor following the presentation. 

ATC Capitol Update – Week 10, March 19, 2012   Leave a comment

By: Michael L. Sullivan

Today is the 34th day of the 40 day legislative session. The General Assembly will be in session Monday through Thursday this week. There has not yet been a calendar set for the final three legislative days.

HOUSE & SENATE APPROVE FY 2012 SUPPLEMENTAL BUDGET

Last Monday, the House and Senate agreed on an $18.08 billion dollar FY2012 supplemental budget. The version passed by the Senate was lower that the version previously approved by the House, due to projected revenue estimates that were lowered by Governor Deal after the House had completed its work. The House then agreed to the Senate’s changes later the same day. Governor Deal signed the FY 2012 supplemental budget into law on Thursday.

TAX REFORM

Regular readers of this update will recall that there has been a lot of talk this session about tax reform directed at incentivizing economic development and spurring job creation. Despite the talk, there was no legislation moving forward regarding any of these various tax reform proposals that had passed the House prior to Crossover Day (the Georgia Constitution requires all legislation dealing with taxation to originate in the House). However, there are exceptions to the Crossover Day rule and tax reform legislation that gets vetted by the Special Joint Committee on Georgia Revenue Tax Structure (comprised of both representatives and senators) is one of those exceptions. This morning, that committee held a hearing on HB 386, a formerly 127 page omnibus tax reform bill that was introduced last year and has which has now been replaced with a 53 page committee substitute version that incorporates the tax reform plan that has been hammered out in behind the scenes negotiations between legislative leadership and the Governor’s Office. Despite the magnitude of what is proposed, with only a few legislative days left, the bill may be voted out of committee early this week and head to the House and Senate for an up or down vote (with no amendments from the floor) later this week. Provisions include:

  • Elimination (phased over three years) of the state sales tax on energy used in manufacturing and agriculture. Local governments will be authorized to impose a local excise tax on energy used in manufacturing (avoiding the negative impact that would have resulted on local governments, particularly as to SPLOSTs and E-SPLOSTs).
  • Elimination of the sales tax and ad valorem taxes on motor vehicles sold after March 1, 2013, replacing it with a new, one time state and local title fee, paid at the time of purchase (starting at 6.5% and going up to 7% in 2015).
  • Raising the personal income tax exemption for married taxpayers filing jointly from $5,400 to $7,400 (married taxpayers filing separate returns can each claim $3,700).
  • Tightens the requirements to qualify for land conservation tax credits.
  • Eliminates the sales and use tax exemption for the sale or lease of film production equipment or services.
  • Eliminates the taxation of energy and machinery or equipment used in agriculture.
  • Reinstates the sales tax holiday for back-to-school clothes, supplies, etc. and energy efficient products (October 5-7, 2012 and October 4-6, 2013).
  • Attempts to expand the collection of sales tax to internet sales transactions, focused on vendors or others with a physical presence in Georgia (a requirement under a 1992 U.S. Supreme Court opinion).
  • Creates a new exemption from sales taxes on construction materials used in “competitive projects of regional significance” as determined by the Commissioner of the Department of Economic Development. Proposed exemption is limited to the period between January 1, 2012 and June 30, 2014.

REGIONAL TRANSPORTATION REFERENDUM EDUCATION TV ADS DEBUT

On Thursday, the Metro Atlanta Voter Education Network (MAVEN) unveiled television and radio ads that begin to educate commuters about the cost of Atlanta’s notorious traffic congestion.

Metro Atlanta commuters know how much time they personally waste sitting in traffic, but we want to make sure the entire region realizes the cumulative effect of years of failing to invest in an adequate transportation system,” said Bob Voyles, chair of the MAVEN Board of Directors. “We believe this is the kind of information voters will want to know before making a decision on how to vote on the July 31 Regional Transportation Referendum.”

On July 31st, voters in the 10-county Metro Atlanta region will vote on a proposed one-cent sales levy to build 157 transportation projects. In addition to those projects, 15 percent of the funds raised will be returned to local jurisdictions to address local priorities such as repaving, sidewalks and traffic signals.

MAVEN hired R&R Partners to produce the ads. R&R has a winning record of ad work for transportation referendums. The firm has also partnered with Sports Illustrated and ESPN, and is responsible for the “What Happens in Vegas, Stays in Vegas” campaign. The ads will begin running immediately on broadcast, cable TV and radio stations throughout the region. For more information visit www.transformmetroatlanta.com and to and to view the television ad go to http://transformmetroatlanta.com/blog/a-calculated-approach.

MAVEN is a coalition of more than 100 businesses, organizations and individuals that have joined together to educate voters about the July 31 referendum. MAVEN does not advocate any position, instead focusing on informing voters about the details and particulars of the referendum.

TODD LONG TO BECOME GEORGIA DOT DEPUTY COMMISSIONER

Current  Planning Director Todd Long will be transitioning into a new transportation position. Long will become the GDOT Deputy Commissioner on April 16, 2012. In this new role, Long will report to GDOT Commissioner Keith Golden. The position of Planning Director was created as part of the Transportation Investment Act (TIA) and Long is the only person to have served in that role, which reports directly to the Governor (rather than the GDOT Commissioner or GDOT Board). Long was originally appointed by Governor Sonny Perdue and was then retained by Governor Nathan Deal when he took office. As Planning Director, Long had primary responsibility for the transportation project selection process, including shepherding the Regional Roundtable process that resulted in unanimous approval of the TIA project list that Metro Atlanta voters will vote on in July 2012.

Other legislation of note

HB 48 – Would expand Georgia’s existing freeporttax exemptions to allow local governments to exempt business inventory, making Georgiamore competitive with neighboring states which have no tax on business inventory. STATUS: Passed out of House Ways & Means Committee on February 24, 2011. Passed the full House on March 2, 2011 (by a vote of 166-1). Passed the Senate Finance Committee on Tuesday, February 7, 2012 but was recommitted to Senate Finance Committee on February 17, 2012. Senate Finance Committee passed a revised version on February 29, 2012. The full Senate passed that version on March 12, 2012 (by a vote of 44-0) and the House approved the Senate version on March 14, 2012 (by vote of 164-0), sending the bill to the Governor for his signature.

HB 100 – Would create a Georgia Tax Court (as a pilot project) to handle taxpayer disputes involving the Georgia Department of Revenue. STATUS: Introduced in 2011 session and passed out of House Judiciary Committee on February 29, 2012. Passed the full House (by a vote of 165-0) on March 7, 2012. Pending in Senate Judiciary Committee.

HB 641 – By Rep. Wendell Willard, would overhaul Georgia’s juvenile justice system. STATUS: Passed out of House Judiciary Committee on February 24, 2012. Passed the full House (by a vote of 172-0) on February 29, 2012. Pending in Senate Judiciary Committee.

HB 713 – Bill will delay until 2013 the implementation of the college and career readiness initiatives that were scheduled to go into effect this fall. These initiatives include requiring some level of career awareness education for students in all grades (K-12) as well as the “career pathways” program in which career focused programs of study in at least 16 defined career areas would be created for all high schools and students would follow a course schedule partially focused on the particular career interest they select beginning in 9th grade. Department of Education officials indicated that more time was needed to make sure that these programs are implemented in the right way. Status: January 12, 2012. Passed the full House on January 24, 2012 by a vote of 162-1. Passed by the Senate Education & Youth Committee on February 15, 2012. Passed the full Senate (by a vote of 44-8) on March 14, 2012. Bill awaits the signature of the Governor.

HB 868 – By Rep. Doug Collins seeks to modernize the current structure of income tax credits used to attract and retain businesses creating new jobs in certain designated strategic industries in Georgia. The current system offers much higher job tax credit amounts to businesses locating or expanding in poorer counties (Tier 1) and conversely, much smaller incentives in more affluent counties (such as Gwinnett, Fulton, or Cobb, which are Tier 4). The bill would also lower the minimum job creation threshold needed to qualify for the tax credits available to businesses creating “new quality jobs” (defined as jobs paying at or above 110% of the average wage in the county in which the job would be located). STATUS: Introduced on February 1, 2012. A watered down version passed out of the House Ways & Means Committee on February 29, 2012 and was passed by the full House (by a vote of 167-0) on March 7, 2012. Passed out of the Senate Economic Development Committee on March 13, 2012. Pending in Senate Rules Committee.

HB 954 – Shortens the period for elective abortion to the first 20 weeks (from the current 26 weeks). STATUS: Passed the House Judiciary Non-Civil Committee on February 27, 2012 and passed the full House (by a vote of 102.65) on February 29, 2012. Pending in Senate Health & Human Services Committee.

HB 994 – By Rep. Ed Lindsey, would encourage the redevelopment of designated brownfield sites by extending the preferential tax assessment of those properties for up to 15 years. STATUS: introduced on February 16, 2012 and passed out of the House Ways & Means Committee on February 28, 2012. Passed the full House on March 7, 2012 (by a vote of 157-0). Pending in Senate Finance Committee.

HB 1027 – Would tighten the requirements for productions to qualify for Georgia’s existing film, television and interactive gaming production tax credits. The original version of the bill specifically excluded video game productions from qualifying for the credits but the current version allows video game productions to qualify, while limiting the total amount of tax credits available to all video game productions in Georgia to $25 million (and to no more than $5 million for any individual company). Alabama, Florida, North Carolinaand Louisianaare all nearby or adjacent states that offer tax incentives targeted at attracting interactive gaming production. Georgianow ranks 4th among states in film and television production (behind California, New York and Louisiana). If all individual film and television productions were combined and treated as a single “employer,” film and television production would rank as one of Georgia’s top 10 employers (and if you excluded public sector employers, would be Georgia’s 3rd largest employer). Georgia’s film and television tax credits have resulted in a 1,000% increase in production activity in the state (from $244 million in 2008 to $2.4 billion in 2011) and have created an excellent return on investment when measured in direct economic impacts (such as jobs and direct spending) but are even more impressive when ancillary economic impacts, such as tourism and marketing Georgia are taken into account. STATUS: passed out of House Ways & Means Committee (by committee substitute) and the full House (by a vote of 154-0) on March 7, 2012. Pending in Senate Finance Committee.

HB 1052 – By Rep. Mike Jacobs, would overhaul the structure of the MARTA Board of Directors, staggering terms, imposing term limits and requiring representation of geographically diverse areas within MARTA’s jurisdiction. It would also impose new transparency and competitive bidding requirements for the award of MARTA contracts as well as new accounting and finacial disclosure procedures. Under the proposal, the MARTA Board would have one nonvoting member (the Executive Director of the Georgia Regional Transportation Authority) and 11 voting members, as follows: 3 residents of the City of Atlanta nominated by the Mayor and appointed by the City Council; 3 DeKalb County residents appointed by the Board of Commissioners (at least one of which would be from south of the City of Decatur and one of which would be from north of the City of Decatur); 1 DeKalb County resident appointed by a majority vote of the mayors of all the cities in DeKalb; 1 Fulton County resident from south of the City of Atlanta appointed by the Fulton County Board of Commissioners; 2 Fulton County residents from north of the City of Atlanta appointed by a majority vote of the North Fulton mayors; and the Planning Director of the Georgia Department of Transportation. STATUS: Introduced on February 16, 2012 and passed out of House Transportation Committee on February 29, 2012. Passed the full House (by a vote of 115-55) on March 7, 2012. Pending in the Senate Transportation Committee.

HB 1176 – A comprehensive criminal justice reform bill designed to Georgia’s unsustainable prison population growth, including alternative sentencing options for low-level, non-violent offenders to get the treatment or job training that can help them become contributing members of society rather than a drain on taxpayers. The bill incorporates some (but not all) of the recommendations of the 2011 Special Council on Criminal Justice Reform and would transform Georgia’s criminal justice system from the “tough on crime” mentality prevalent in the 1990s to a more “smart on crime” system. Georgiacurrently spends more than $1 billion on its corrections system and that number is projected to grow by more than $200 million if present incarceration trends continue. The Governor’s Office has indicated some concerns with HB 1176 as currently drafted and that they would like to see changes that would incorporate all of the recommendations of the Special Council on Criminal Justice Reform. STATUS: Rather than following the normal process of being vetted by one chamber before being sent to the other, this bill has been assigned to a House-Senate Special Joint Committee on Georgia Criminal Justice Reform that will work with the Governor’s Office to try to work out all of the remaining issues with the bill in the short amount of time left. HB 1176 is not subject to the Crossover Day requirements.

HR 1162 – By Rep. Jan Jones, is a Constitutional amendment to allow charter schools to be approved by the state over the objection of local school boards. Under the current proposal, charter schools would first apply to the local board of education in the jurisdiction in which they are located and if denied, they could then apply to the Georgia Charter Schools Commission for a charter and such approval would entitle a charter school to only the state portion of school funding, not any local school system funds. This Constitutional amendment is in response to (and would overturn) the May 2011 decision of the Georgia Supreme Court which declared that only local school boards could approve charter schools. STATUS: Passed out of House Education Committee on February 2, 2012. Failed to pass by the required Constitutional 2/3 majority on February 8, 2012 (10 votes short of the required 120). House voted to reconsider on Thursday, February 9, 2012 and Passed the House on February 22, 2012 (by a vote of 123-48). Approved by Senate Education & Youth Committee on February 24, 2012 and was debated by the full Senate before being tabled (presumably because they were short of having the necessary 2/3 majority) on February 29, 2012. The bill is eligible to be pulled from the table and brought up at any time in the Senate.

SB 33 – By Sen. David Shafer, would bring “zero-base” budgeting to Georgia’s budget process, requiring every state program, agency or department to submit a zero-base budget once every four years. A zero-base budget would require every budget to start at zero and for every line item for a particular program or agency to be justified, rather than the current scenario where the starting point for budget discussions is the previous year’s budget amount and the discussion is how much that amount will be raised or lowered. STATUS: Passed the Senate (by a 48-1 vote) and House (by a 135-38 vote) last year but in different versions. Working out the two versions is pending in a House-Senate Conference Committee.

SB 223 – “Sunset legislation” bill that would create a “Legislative Sunset Advisory Subcommittee” that would regularly assess all state programs, departments and agencies (each agency would be reviewed at least every 8 years) to make a recommendation if they should be consolidated, privatized or abolished. STATUS: Passed the House (by a 120-56 vote) and Senate (by a 42-9 vote) last year. Senate Conference Committee version was passed by the Senate on January 30, 2012 by a vote of 37-12. Senate Conference Committee version pending acceptance, amendment or rejection by the House.

SB 302 – Would increase the cap on the bonding authority of the Georgia Higher Education Facilities Authority from $300 million to $500 million, allowing for more money to build new facilities on Technical College System and University System campuses. STATUS: Passed out of the Senate Appropriations Committee on January 30, 2012 and passed the full Senate on February 1, 2012. Pending in House Higher Education Committee.

SB 321 – By Sen. Renee Untermanwould make it much harder for thieves to sell stolen scrap metal by imposing stringent new requirements on metal recyclers who purchase scrap metal, including (1) prohibiting cash payments in scrap metal purchase transactions, (2) require recyclers to keep on file a copy of the seller’s valid photo ID and thumbprint, VIN number of the vehicle used to deliver the metal, digital photo of the metal items, thumbprint of the seller (all of which would be provided to the sheriff of that county), and (3) prohibiting recyclers from purchasing copper or aluminum coil from non-verified sellers (such as licensed contractors). STATUS: Approved by the Senate Regulated Industries and Utilities Committee on February 15, 2012. Passed out of the full Senate on February 29, 2012 (by a vote of 44-5). Pending in House Judiciary Non-Civil Committee.

SB 355 – By Sen. Renee Unterman, would require mandatory reporting of child abuse by anyone (other than clergy and attorneys bound by attorney-client privilege) to report evidence of possible child abuse (currently only seven specifically defined types of professionals, such as teachers, are required to report evidence of child abuse). The bill would also extend the statute of limitations on crimes against children to the victim’s 18th birthday plus 10 years (or plus 15 years, in cases of forcible rape). STATUS: Introduced on January 26, 2012. Passed out of the Senate Judiciary Committee on February 28, 2012 and passed the full Senate on March 5, 2012. Pending in House Judiciary Committee.

SB 402 – By Sen. Tim Golden would allow up to 5% of the Georgia Employee Retirement System’s funds to be invested in “alternative investments” including venture capital funds. STATUS: Introduced on February 7, 2012 and passed out of the Senate Retirement Committee on February 17, 2012. Passed the full Senate (by a vote of 50-4) on February 23, 2012. Passed out of House Retirement Committee on March 7, 2012. Pending in House Rules Committee.

SB 447 – By Sen. Fran Millar, would begin the process of repaying the approximately $720 million borrowed by the State of Georgia from the Federal Unemployment Account (which was necessary to pay out the unprecedented volume of unemployment benefit claims which depleted Georgia’s Unemployment Compensation Fund during the Great Recession) and return Georgia’s Unemployment Compensation Fund to solvency. It proposes to do this with a number of changes, including: (1) increasing the taxable wages subject to unemployment insurance contributions from $8,500 to $9,500 (effective 1/1/13), (2) creating an automatic increase in the unemployment insurance rate table rates, based on the then current percentage of the State-Wide Reserve Ratio, (3) reducing the maximum number of weeks for which an unemployed worker could receive benefits on a floating scale of 12 to 20 weeks (and reduced from the current maximum of 27 weeks to a new maximum of 20 weeks), which would be based on the state’s then current unemployment rate, and (4) imposes a one week waiting period before receiving unemployment benefits (effective 7/1/12). STATUS: Introduced on February 15, 2012 and passed out of the Senate Insurance and Labor Committee on February 22. Passed by the full Senate on February 24, 2012 (by a vote of 34-13). Pending in House Industrial Relations Committee.

SB 448 – By Sen. Don Balfour, the “Small Business Borrower Protection Act” would provide that a subsequent purchaser of a debt obligation (such as a mortgage) would be limited to recovering against the guarantor on a personal guaranty only the lesser of (1) the actual amount paid by the subsequent purchaser for that debt obligation, plus the interest rate on the note from the date it was purchased, or (2) the maximum amount permitted to be collected under the personal guaranty associated with that debt obligation. STATUS: Introduced on February 15, 2012 and passed out of committee on February 23, 2012. Passed the full Senate (by a vote of 45-0) on February 27, 2012. Pending in House Banks & Banking Committee.

SR 20 – Would place a cap on state spending, with increases limited to the previous year’s budget amount plus inflation and population increase (if any). Any excess revenues would be funneled to the Rainy Day Fund. STATUS: Passed the Senate last February (by a vote of 42-7) and is pending in the House Ways & Means Committee.

The Week Ahead

The current legislative calendar calls for the General Assembly to be in session Monday, March 19th through Thursday, March 22nd (which will be legislative day 37). At some point this week, the calendar will be set for the final three legislative days with the expectation that the session will conclude sometime before March 30th.

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ATC Capitol Update – Week 9, March 12, 2012   Leave a comment

By: Michael L. Sullivan

Today is the 31st day of the 40 day legislative session. Nine days to go!

CROSSOVER DAY

Last Wednesday was “Crossover Day,” the 30th legislative day and the day by which legislation must have passed out of one chamber in order to be considered by the other chamber. Bills that did not pass out of one chamber or the other by the end of the 30th day are dead for the rest of this session.

Crossover Day went well into the night (around 10:30pm) with the House approving the FY 2013 Budget (HB 742, by a vote of 151-21) around noon and then both chambers spending the rest of the day primarily focused on issues with “red meat” appeal to certain Republican constituencies, such as gun bills (2 in the Senate, one in the House), drug testing for recipients of public aid (Senate and House) and abortion and birth control legislation.

Other legislation of note

HB 48 – Would expand Georgia’s existing freeporttax exemptions to allow local governments to exempt business inventory, making Georgiamore competitive with neighboring states which have no tax on business inventory. STATUS: Passed out of House Ways & Means Committee on February 24, 2011. Passed the full House on March 2, 2011 by a vote of 166-1. Passed the Senate Finance Committee on Tuesday, February 7th but was recommitted to Senate Finance Committee on February 17, 2012. Senate Finance Committee passed a revised version on February 29, 2012. Pending in Senate Rules Committee.

HB 100 – Would create a Georgia Tax Court (as a pilot project) to handle taxpayer disputes involving the Georgia Department of Revenue. STATUS: Introduced in 2011 session and passed out of House Judiciary Committee on February 29, 2012. Passed the full House (by a vote of 165-0) on March 7, 2012. Pending in Senate Judiciary Committee.

HB 641 – By Rep. Wendell Willard, would overhaul Georgia’s juvenile justice system. STATUS: Passed out of House Judiciary Committee on February 24, 2012. Passed the full House (by a vote of 172-0) on February 29, 2012. Pending in Senate Judiciary Committee.

HB 713 – Bill will delay until 2013 the implementation of the college and career readiness initiatives that were scheduled to go into effect this fall. These initiatives include requiring some level of career awareness education for students in all grades (K-12) as well as the “career pathways” program in which career focused programs of study in at least 16 defined career areas would be created for all high schools and students would follow a course schedule partially focused on the particular career interest they select beginning in 9th grade. Department of Education officials indicated that more time was needed to make sure that these programs are implemented in the right way. Status: January 12, 2012. Passed the full House on January 24, 2012 by a vote of 162-1. Passed by the Senate Education & Youth Committee on February 15, 2012. Pending in Senate.

 

HB 718 – Would have created a Georgia Capital Acceleration Fund of up to $200 million (financed by the sale of insurance premium tax credits sold by the state over an initial 3 year period). The fund would be administered by a Georgia Capital Acceleration Authority and could be used as venture capital for Georgia-based start-up companies. STATUS: Failed to pass out of the House Insurance Committee – DEAD FOR THIS SESSION.

HB 705 – Would eliminate the requirement that was imposed on school systems a couple of years ago that 65% of all school system funds must be spent in the classroom. The change was recommended by the K-12 finance commission based on research finding no evidence of the 65% rule having any impact on student achievement (and the reality that at least 40 school systems in Georgiahave already been granted exemptions from the rule). Status: Passed by House Education Committee on January 12, 2012 but failed to pass the full House before Crossover Day – DEAD FOR THIS SESSION.

HB 86 – Would eliminate all state and local sales and use taxes on energy used in manufacturing. Bill could be expanded to include agriculture and mining. STATUS: Introduced last session but failed to pass out of the House Ways & Means Committee – DEAD FOR THIS SESSION.

HB 868 – By Rep. Doug Collins seeks to modernize the current structure of income tax credits used to attract and retain businesses creating new jobs in certain designated strategic industries in Georgia. The current system offers much higher job tax credit amounts to businesses locating or expanding in poorer counties (Tier 1) and conversely, much smaller incentives in more affluent counties (such as Gwinnett, Fulton, or Cobb, which are Tier 4). The bill would also lower the minimum job creation threshold needed to qualify for the tax credits available to businesses creating “new quality jobs” (defined as jobs paying at or above 110% of the average wage in the county in which the job would be located). STATUS: Introduced on February 1, 2012. A watered down version passed out of the House Ways & Means Committee on February 29, 2012 and was passed by the full House (by a vote of 167-0) on March 7, 2012. Pending in Senate Economic Development Committee.

HB 889 – By Rep. Joe Wilkinson, would restore the authority of the Georgia Government Transparency and Campaign Finance Commission (formerly known as the State Ethics Commission) to make, interpret and apply rules governing lobbying activities and campaign finance (authority which was taken away in 2009). Status: Failed to pass out of the House Rules Committee prior to Crossover Day – DEAD FOR THIS SESSION.

HB 994 – By Rep. Ed Lindsey, would encourage the redevelopment of designated brownfield sites by extending the preferential tax assessment of those properties for up to 15 years. STATUS: introduced on February 16, 2012 and passed out of the House Ways & Means Committee on February 28, 2012. Passed the full House on March 7, 2012 (by a vote of 157-0). Pending in Senate Finance Committee.

HB 1027 – Would tighten the requirements for productions to qualify for Georgia’s existing film and television tax credits. Previous version of the bill excluded video game productions from qualifying but the current version allows video game productions to qualify but would also limit the total amount of tax credits available to all video game productions in Georgiato $25 million. Georgianow ranks 4th among states in film and television production (behind California, New York and Louisiana). If all individual film and television productions were combined and treated as a single “employer,” film and television production would rank as one of Georgia’s top 10 employers (and if you excluded public sector employers, would be Georgia’s 3rd largest employer). Film and television tax credits have created an excellent return on investment when measured in direct economic impacts (such as jobs and investment) but are even more impressive when ancillary economic impacts, such as tourism and marketing Georgia are taken into account. STATUS: passed out of House Ways & Means Committee (by committee substitute) and the full House (by a vote of 154-0) on March 7, 2012. Pending in Senate Finance Committee.

HB 1052 – By Rep. Mike Jacobs, would overhaul the structure of the MARTA Board of Directors, staggering terms, imposing term limits and requiring representation of geographically diverse areas within MARTA’s jurisdiction. It would also impose new transparency and competitive bidding requirements for the award of MARTA contracts as well as new accounting and finacial disclosure procedures. Under the proposal, the MARTA Board would have one nonvoting member (the Executive Director of the Georgia Regional Transportation Authority) and 11 voting members, as follows: 3 residents of the City of Atlanta nominated by the Mayor and appointed by the City Council; 3 DeKalb County residents appointed by the Board of Commissioners (at least one of which would be from south of the City of Decatur and one of which would be from north of the City of Decatur); 1 DeKalb County resident appointed by a majority vote of the mayors of all the cities in DeKalb; 1 Fulton County resident from south of the City of Atlanta appointed by the Fulton County Board of Commissioners; 2 Fulton County residents from north of the City of Atlanta appointed by a majority vote of the North Fulton mayors; and the Planning Director of the Georgia Department of Transportation. STATUS: Introduced on February 16, 2012 and passed out of House Transportation Committee on February 29, 2012. Passed the full House (by a vote of 115-55) on March 7, 2012. Pending in the Senate Transportation Committee.

HB 1176 – A comprehensive criminal justice reform bill designed to Georgia’s unsustainable prison population growth, including alternative sentencing options for low-level, non-violent offenders to get the treatment or job training that can help them become contributing members of society rather than a drain on taxpayers. The bill incorporates some (but not all) of the recommendations of the 2011 Special Council on Criminal Justice Reform and would transform Georgia’s criminal justice system from the “tough on crime” mentality prevalent in the 1990s to a more “smart on crime” system. Georgiacurrently spends more than $1 billion on its corrections system and that number is projected to grow by more than $200 million if present incarceration trends continue. The Governor’s Office has indicated some concerns with HB 1176 as currently drafted and that they would like to see changes that would incorporate all of the recommendations of the Special Council on Criminal Justice Reform. STATUS: Rather than following the normal process of being vetted by one chamber before being sent to the other, this bill has been assigned to a House-Senate Special Joint Committee on Georgia Criminal Justice Reform that will work with the Governor’s Office to try to work out all of the remaining issues with the bill in the short amount of time left. HB 1176 is not subject to the Crossover Day requirements.

HR 1162 – By Rep. Jan Jones, is a Constitutional amendment to allow charter schools to be approved by the state over the objection of local school boards. Under the current proposal, charter schools would first apply to the local board of education in the jurisdiction in which they are located and if denied, they could then apply to the Georgia Charter Schools Commission for a charter and such approval would entitle a charter school to only the state portion of school funding, not any local school system funds. This Constitutional amendment is in response to (and would overturn) the May 2011 decision of the Georgia Supreme Court which declared that only local school boards could approve charter schools. STATUS: Passed out of House Education Committee on February 2, 2012. Failed to pass by the required Constitutional 2/3 majority on February 8, 2012 (10 votes short of the required 120). House voted to reconsider on Thursday, February 9, 2012 and Passed the House on February 22, 2012 (by a vote of 123-48). Approved by Senate Education & Youth Committee on February 24, 2012 and was debated by the full Senate before being tabled (presumably because they were short of having the necessary 2/3 majority) on February 29, 2012. The bill is eligible to be pulled from the table and brought up at any time in the Senate.

sb 33 – By Sen. David Shafer, would bring “zero-base” budgeting to Georgia’s budget process, requiring every state program, agency or department to submit a zero-base budget once every four years. A zero-base budget would require every budget to start at zero and for every line item for a particular program or agency to be justified, rather than the current scenario where the starting point for budget discussions is the previous year’s budget amount and the discussion is how much that amount will be raised or lowered. STATUS: Passed the Senate (by a 48-1 vote) and House (by a 135-38 vote) last year but in different versions. Working out the two versions is pending in a House-Senate Conference Committee.

SB 223 – “Sunset legislation” bill that would create a “Legislative Sunset Advisory Subcommittee” that would regularly assess all state programs, departments and agencies (each agency would be reviewed at least every 8 years) to make a recommendation if they should be consolidated, privatized or abolished. STATUS: Passed the House (by a 120-56 vote) and Senate (by a 42-9 vote) last year. Senate Conference Committee version was passed by the Senate on January 30, 2012 by a vote of 37-12. Senate Conference Committee version pending acceptance, amendment or rejection by the House.

SB 321 – By Sen. Renee Unterman would make it much harder for thieves to sell stolen scrap metal by imposing stringent new requirements on metal recyclers who purchase scrap metal, including (1) prohibiting cash payments in scrap metal purchase transactions, (2) require recyclers to keep on file a copy of the seller’s valid photo ID and thumbprint, VIN number of the vehicle used to deliver the metal, digital photo of the metal items, thumbprint of the seller (all of which would be provided to the sheriff of that county), and (3) prohibiting recyclers from purchasing copper or aluminum coil from non-verified sellers (such as licensed contractors). STATUS: Approved by the Senate Regulated Industries and Utilities Committee on February 15, 2012. Passed out of the full Senate on February 29, 2012 (by a vote of 44-5). Pending in House Judiciary (Non-Civil) Committee.

SB 355 – By Sen. Renee Unterman, would require mandatory reporting of child abuse by anyone (other than clergy and attorneys bound by attorney-client privilege) to report evidence of possible child abuse (currently only seven specifically defined types of professionals, such as teachers, are required to report evidence of child abuse). The bill would also extend the statute of limitations on crimes against children to the victim’s 18th birthday plus 10 years (or plus 15 years, in cases of forcible rape). STATUS: Introduced on January 26, 2012. Passed out of the Senate Judiciary Committee on February 28, 2012 and passed the full Senate on March 5, 2012. Pending in House Judiciary Committee.

SB 402 – By Sen. Tim Golden would allow up to 5% of the Georgia Employee Retirement System’s funds to be invested in “alternative investments” including venture capital funds. STATUS: Introduced on February 7, 2012 and passed out of the Senate Retirement Committee on February 17, 2012. Passed the full Senate (by a vote of 50-4) on February 23, 2012. Passed out of House Retirement Committee on March 7, 2012. Pending in House Rules Committee.

SB 447 – By Sen. Fran Millar, would begin the process of repaying the approximately $720 million borrowed by the State of Georgia from the Federal Unemployment Account (which was necessary to pay out the unprecedented volume of unemployment benefit claims which depleted Georgia’s Unemployment Compensation Fund during the Great Recession) and return Georgia’s Unemployment Compensation Fund to solvency. It proposes to do this with a number of changes, including: (1) increasing the taxable wages subject to unemployment insurance contributions from $8,500 to $9,500 (effective 1/1/13), (2) creating an automatic increase in the unemployment insurance rate table rates, based on the then current percentage of the State-Wide Reserve Ratio, (3) reducing the maximum number of weeks for which an unemployed worker could receive benefits on a floating scale of 12 to 20 weeks (and reduced from the current maximum of 27 weeks to a new maximum of 20 weeks), which would be based on the state’s then current unemployment rate, and (4) imposes a one week waiting period before receiving unemployment benefits (effective 7/1/12). STATUS: Introduced on February 15, 2012 and passed out of the Senate Insurance and Labor Committee on February 22. Passed by the full Senate on February 24, 2012 (by a vote of 34-13). Pending in House Industrial Relations Committee.

SB 448 – By Sen. Don Balfour, the “Small Business Borrower Protection Act” would provide that a subsequent purchaser of a debt obligation (such as a mortgage) would be limited to recovering against the guarantor on a personal guaranty only the lesser of (1) the actual amount paid by the subsequent purchaser for that debt obligation, plus the interest rate on the note from the date it was purchased, or (2) the maximum amount permitted to be collected under the personal guaranty associated with that debt obligation. STATUS: Introduced on February 15, 2012 and passed out of committee on February 23, 2012. Passed the full Senate (by a vote of 45-0) on February 27, 2012. Pending in House Banks & Banking Committee.

SR 20 – Would place a cap on state spending, with increases limited to the previous year’s budget amount plus inflation and population increase (if any). Any excess revenues would be funneled to the Rainy Day Fund. STATUS: Passed the Senate last February (by a vote of 42-7) and is pending in the House Ways & Means Committee.

The Week Ahead

The current legislative calendar calls for the General Assembly to be in session Monday through Wednesday this week. Next week, legislators will be in session Monday, March 19th through Thursday, March 22nd (which will be legislative day 37). At some point next week, the calendar will be set for the final three legislative days with the expectation that the session will conclude sometime before March 30th.

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