Archive for the ‘Georgia General Assembly’ Tag

Reeves Gets City Council Member’s Ethics Charges Dropped in Dunwoody

English: The Dunwoody Farmhouse

English: The Dunwoody Farmhouse (Photo credit: Wikipedia)

ATC litigation partner Matt Reeves represented Dunwoody City Council Member Dr. Adrian Bonser, a dentist, in getting ethics charges against her dropped.  This was the first Board of Ethics matter in the new City of Dunwoody, and included approximately six months of proceedings and a four-hour ethics hearing in September.  The dispute centered around complex Georgia Open Meetings Act and Executive Session issues.

Matt was counsel to the Georgia House Judiciary Committee Chairman during the 2008 Georgia General Assembly, when legislation was approved to create the City of Dunwoody.  Matt has handled many governmental litigation matters, in addition to litigating eminent domain, business, real estate and probate cases.

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.

ATC Capitol Update – Week 4, February 6, 2012   Leave a comment

English: Close-up of the gold dome atop the Ge...

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Today is the 15th legislative day of the 40 day session and the General Assembly will be in session Monday through Thursday this week.

BUDGET

Every session, legislators have two budgets to pass. The first budget they deal with is the amended or “supplemental” budget for the current fiscal year (Georgia’s fiscal year runs from July 1 to June 30). This is where the budget passed by the previous year’s General Assembly gets revised up or down as actual revenues for the year are compared to the revenue numbers that were projected when that budget was originally passed. Since the supplemental budget is really just an amendment to the current year’s budget, this budget usually passes in the first half of the General Assembly session.

The other budget is the “big budget” or the budget for the coming fiscal year. Legislators work on this budget from the beginning of the legislative session often until the very last hours of the very last day of the session. This is the budget where policies are made, priorities are set and marching orders are issued to the state government for the coming year.

On Friday, the House approved the Amended FY 2012 state budget, increasing overall state spending by approximately $255 million more than the FY 2012 budget approved last year (for a total FY 2012 state budget of about $18.6 billion). It includes approximately $700 million in additional spending for transportation (including $300 million for the I-75/I/575 project and about $14 million in additional money for K-12 education.

FUNDING FOUND FOR I-75/I-575 REVERSIBLE TOLL LANE PROJECT

Last week, we reported on Cobb County Chairman Tim Lee’s request that the Transportation Investment Act project list that was unanimously approved by the Regional Roundtable last October (and which is scheduled to be voted on by Metro Atlanta voters on July 31, 2012) be reopened by the General Assembly so that the $689 million currently allocated for a transit connection between Cobb County and MARTA’s Arts Center Station could be reallocated to the I-75/I-575 reversible toll lane project which was postponed by Governor Deal in December.

Legislative leadership indicated that they did not want to open up the project list and the Governor’s Office reiterated that the Governor had merely postponed the I-75/I-575 project and was continuing to look for other ways to fund that project. Last week, the House found another way to fund that project, allocating $300 million in the Amended FY 2012 budget to that project. When combined with the approximately $300 million already allocated to that project by the Georgia Department of Transportation (GDOT) and additional funds freed up by an accounting change (also approved by the House on Friday) that would allow unspent motor fuel tax funds from previous years to be rolled over by GDOT to be used going forward, it appeared that funding for the reversible toll lane project had been achieved. However, some GDOT Board members indicated that the $300 million they had previously allocated was for a public-private partnership project and that a fully public project might be viewed differently.

ETHICS REFORM

HB 889 was introduced last week by Rep. Joe Wilkinson (Chairman of the House Ethics Committee) with the full support of House leadership. The bill 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 when Speaker Glenn Richardson was in power). Speaker of the House David Ralston also indicated that he supported an increase in the budget for the long underfunded state agency. Status: Pending in House Rules Committee.

Other legislation of note

HB 718 – Would create 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 used as venture capital for Georgia-based start-up companies. STATUS: Pending in the House Insurance Committee.

HB 48 – Would expand Georgia’s existing freeport tax exemptions to make Georgia more 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. Pending in Senate Finance Committee.

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 12th and pending in House Rules 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: Passed by House Education Committee on January 12th and by the full House by a vote of 162-1 on January 24th. Pending in Senate Education & Youth Committee.

SB 33 – Zero-based budgeting for all state agencies. SB 33, sponsored by Gwinnett’s own Sen. David Shafer (and which already passed the full Senate last year) could be the legislative vehicle to finally 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 House (by a 135-38 vote) and Senate (by a 48-1 vote) last year. Pending in House-Senate Conference 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.

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 determine if they should be consolidated 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.

HR 1162 – A Constitutional amendment to allow for charter schools to be approved by the state over the objection of local school boards. Proposed 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 which, if granted, would entitle that school to state and (possibly) local school funding (the question of whether local funds would be included is still under much discussion). 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. Pending in House Rules Committee.

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 and still pending in House Ways & Means 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 and pending in Senate Judiciary Committee.

The Week Ahead

The current legislative calendar calls for the General Assembly to be in session Monday through Thursday this week, returning after Valentine’s Day to be in session Wednesday, February 15th through Friday, February 17th.

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ATC Georgia Capitol Update – Week 3, January 30, 2012   Leave a comment

By: Michael Sullivan, head of ATC’s Zoning, Land Use & Governmental Relations Group

Things are humming along under the Gold Dome, with several pieces of legislation passing out of either the House or Senate last week. Monday, January 30th is the 10th legislative day of the 40 day legislative session and the General Assembly will be in session Monday through Friday this week.

Transportation

Cobb County Chairman Tim Lee dropped an unexpected political bomb Tuesday afternoon in a Capitol press conference in which he requested that the Transportation Investment Act project list that was unanimously approved by the Regional Roundtable last October (and which is scheduled to be voted on by Metro Atlanta voters on July 31, 2012) be reopened by the General Assembly so that the $689 million currently allocated for a transit connection between Cobb County and MARTA’s Arts Center Station could be reallocated to the I-75/I-575 reversible toll lane project which was postponed by Governor Deal in December.

Chairman Lee had previously been a vocal champion of the transit project, despite vehement criticism from Tea Party activists, the Marietta Daily Journal and others who opposed it. Now Lee says that the I-75/I-575 reversible toll lanes project has always been a higher priority for Cobb and that “we would much rather have the managed lanes” than the transit project. The party line from Lee’s camp is that once the Governor postponed the higher priority I-75/I-575 project, that constituted a “substantial and material change” that altered the way the list would have been put together if it had happened before the final project list was approved. However, many of Lee’s biggest supporters in the Cobb business community were blindsided by the announcement and have been highly critical of the attempted project switcheroo. Many believe that Lee simply got scared that his defense of the transit proposal might cost him his reelection in the Republican primary (also on July 31). The reaction Chairman Lee got at the Atlanta Regional Commission meeting last week was even more critical, with many of his fellow Regional Roundtable members giving him an earful for an action they felt could undermine the credibility of a project list for which they all worked so hard to gain unanimous support. Regional transit advocates also weighed in, since the removal of such a significant project from the project list would tip what is essentially a 50/50 split between transit and roads into a list much more heavily weighted toward roads.

House Speaker David Ralston indicated that he maintains his oft expressed position that the project list (as well as the rest of the Transportation Investment Act) should not be opened back up. Governor Deal’s office reiterated that the Governor had merely postponed the I-75/I-575 project and was continuing to look for other ways to fund that project. The original I-75/I-575 project was a public-private partnership that would have involved granting the winning bidder the right to charge a toll for access to the reversible lanes that company would partially fund. The Governor was primarily concerned about a provision in the proposed project in which the State would have agreed not to construct any major alternate roadways in the I-75/I-575 corridor for at least 60 years (in order to assure the private company of a return on its investment), a condition to which Governor Deal was absolutely unwilling to agree.

Transit governance

The Governor’s Transit Governance Task Force issued its final report On Monday, January 23rd and as had been hinted at for a year, recommended that a reconstituted Georgia Regional Transportation Authority (GRTA) become the agency to coordinate transit operations within the 13 county Metro Atlanta air quality non-attainment area (all of the 10 counties in the ARC, plus Coweta, Forsyth and Paulding counties). Gwinnett was well-represented on the Task Force by Rep. Donna Sheldon co-chairing the committee and by Gwinnett County Chairman Charlotte Nash (a former GRTA Board member). The recommendations call for a Transit Governance Council (TGC) to be created within GRTA, which would have policy-making and transit oversight authority. The TGC would be made up primarily of local elected officials (1 county chair and 1 mayor from each of the 13 counties, an at-large mayor and two at-large county commissioners, plus the Mayor of Atlanta and 5 GRTA Board members). At-large members would be appointed by the Governor and approved by the sub-group members of the TGC (county chairs would approve the at-large county chair, etc.).

Fifty-four pages of the 67 page Final Report were dedicated to a draft version of the legislation needed to enact the recommendations but no bill has been introduced yet. Most believe that legislative leadership wanted to gauge the reactions to the Report before dropping an actual bill. Many proponents of the Regional Transportation Referendum believe that some form of regional transit governance is critical to passage of the 1-penny sales tax in July. Stay tuned.

HOPE

Last week, Democratic leaders in the House and Senate jointly unveiled their proposals for modifying the HOPE scholarship & grant program, including:

  • SB 336 – Imposing a cap on eligibility based on family income, children from families with a household income of $140,000 or more would no longer be eligible for HOPE.
  • SB 334 – Eliminating the GPA requirement for eligibility for the Zell Miller Scholarship, which was created as part of last year’s HOPE reforms and which will pay full tuition for Georgia high school Valedictorians and Salutatorians as well as all Georgia high school students graduating with a 3.7 or better GPA and who also score a minimum 1200 on the SAT or 26 on the ACT. Democrats propose to eliminate any SAT or ACT requirement and offer full tuition to anyone graduating in the top 3% of aGeorgiahigh school graduating class.
  • SR 722 – Constitutional amendment to add a student representative to the Board of Regents (the composition of which is set by the Georgia Constitution).
  • SB 335 – Eliminating the GPA requirement which was imposed last year for students receiving the HOPE Grant to attend aGeorgiatechnical college. The HOPE Grant differs from the HOPE Scholarship, in that the HOPE Grant was intended to provide job training for adults seeking to obtain technical training and to increase the knowledge and skills ofGeorgia’s workforce.

The Governor and Republican leadership in both chambers have stated very forcefully that they view any sort of income cap on HOPE Scholarship eligibility as a non-starter. Majority caucus leadership response to the first three items above would indicate that none of these three proposals have much chance of being included in whatever form HOPE reform legislation ultimately takes.

Other legislation of note

HB 718 – Would create 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 used as venture capital for Georgia-based start-up companies. STATUS: Pending in the House Insurance Committee.

HB 48 – Would expand Georgia’s existing freeporttax exemptions to make 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. Pending in Senate Finance Committee.

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 12th and pending in House Rules 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: Passed by House Education Committee on January 12th and by the full House by a vote of 162-1 on January 24th. Pending in Senate Education & Youth Committee.

SB 33 – Zero-based budgeting for all state agencies. SB 33, sponsored by Gwinnett’s own Sen. David Shafer (and which already passed the full Senate last year) could be the legislative vehicle to finally 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 House (by a 135-38 vote) and Senate (by a 48-1 vote) last year. Pending in House-Senate Conference 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.

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 determine if they should be consolidated or abolished. STATUS: Passed the House (by a 120-56 vote) and Senate (by a 42-9 vote) last year. Pending in House-Senate Conference Committee.

HR 1162 – A Constitutional amendment to allow for charter schools to be approved by the state was introduced on Tuesday by Speaker Pro-Tem Jan Jones. Proposed 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 which, if granted, would entitle that school to state and local school funding. 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: Introduced on January 24, 2012 and pending in House Education Committee.

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 and still pending in House Ways & Means 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.

The Week Ahead

The current legislative calendar calls for the General Assembly to be in session Monday through Friday this week and Monday through Thursday next week. Image

ATC Georgia Capitol Update – Week 2, January 23, 2012   Leave a comment

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By: Michael Sullivan, head of ATC’s Zoning, Land Use & Governmental Relations Group 

The Georgia General Assembly was not in session last week, both in observance of the Dr. Martin Luther King, Jr. Holiday on Monday and to devote the remainder of the week to the budget presentations before the House and Senate Joint Appropriations Committee.

But that doesn’t mean that important work was not being done. Certainly the work that was done on the budget by the Joint Appropriations Committee is among the most important work done in any legislative session and as anyone who has sat through even part of them can attest, just enduring almost 20 hours of budget presentations over three days is definitely hard work in and of itself.

The Senate Republican and Democratic caucuses separately unveiled their legislative agendas for the session last week. The Senate Republican Majority Caucus agenda was presented at a Capitol press conference on Wednesday (by a group of senators that included Gwinnett Sen. Renee Unterman and Sen. Fran Millar) and includes:

  • Zero-based budgeting for all state agencies. SB 33, sponsored by Gwinnett’s own Sen. David Shafer (and which already passed the full Senate last year) could be the legislative vehicle to 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. A similar zero-based budget bill (SB 1, also by Sen. Shafer) easily passed the General Assembly in 2010 but was vetoed by then Governor Perdue (the Senate overrode that veto in 2011 but the House chose not to act). With Governor Deal already unilaterally implementing zero-based budgeting for 10% of state agencies on his own (fulfilling his zero-base budgeting campaign promise), this looks like the year zero-based budgeting may finally pass into law.  
  • Cap on state spending. SR 20, filed last year, 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. SR 20 passed the Senate last February and is pending in the House Ways & Means Committee.
  • “Sunset legislation.” SB 223, filed last year, 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 determine if they should be consolidated or abolished. Different versions of SB 223 have passed both chambers and SB 223 is currently in a House/Senate conference committee.
  • A Constitutional amendment to allow for charter schools to be approved by the state. Proposed 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 which, if granted, would entitle that school to state and local school funding. 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 must be approved by two-thirds (2/3) majority of both the House and Senate and must then be subsequently ratified byGeorgia’s voters in a general election.   
  • Abolish the “65% rule” for K-12 spending (see HB 705, below) which currently requires 65% of all school system funds to be spent in the classroom.
  • Elimination of all state and local sales and use taxes on energy used in manufacturing, agriculture and mining.
  • Child protection bill that 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). The bill will be sponsored by Gwinnett’s own Sen, Renee Unterman, who has long been one of the leading champions at the Capitol for more forceful child protection laws.

The Senate Democrats’ agenda includes:

  • Three year moratorium on new High Occupancy Toll lanes (HOT lanes).
  • Online voter registration and same-day voter registration on Election Day.
  • Creating an independent State Ethics Commission, appointed by the Chief Justice of the Georgia Supreme Court and Chief Judge of the Georgia Court of Appeals (rather than the Governor, Speaker of the House and Lt. Governor, as it is currently) and creating a dedicated funding level of 0.01% of the overall state budget.
  • Require all fees collected by the state to be dedicated to the programs for which they are collected.
  • Comprehensive review of all “tax breaks” and subsidies in the tax code.
  • SB 175, filed last year, would create an independent “Citizen’s Redistricting Commission” to draw Georgia’s congressional and legislative districts (rather than the General Assembly drawing the maps).  

TAX REFORM

Legislative leaders confirmed assumptions last week that there will be no comprehensive tax reform in this year’s legislative session and even Governor Deal’s proposal to eliminate the sales tax on energy used in manufacturing began to get some pushback from local governments that don’t want to lose the local portion of the sales tax on energy that they currently collect. Estimates are that the local sales taxes collected on energy by all cities and counties in Georgia total more than $100 million and that kind of money at a time when local government budgets have already been slashed by decreased sales and property taxes generally, means that counties and cities (and their lobbyists) will be fully engaged in trying to keep legislators from eliminating the local portion of energy sales taxes. Legislative leaders, however, seem intent on eliminating all sales taxes on energy used in manufacturing, agriculture and mining to maximize the value of the incentive for those industries. Sen. Bill Heath, the chairman of the joint committee that will be dealing with these issues, indicated that he wants to see the tax eliminated completely as well as his belief that a compromise with local governments on the issue would ultimately be reached.  

HOPE

As I mentioned last week, the Georgia Student Finance Commission (which administers Georgia’s HOPE scholarship & grant program) has projected that Lottery revenues are not increasing as fast as the number of HOPE eligible students requires and that a $107 million shortfall is projected in FY 2014, increasing to $163 million by FY 2016. Under those projections, current high school freshmen can expect HOPE to cover less than half of their tuition at UGA or Tech by the time they enter college. If you are a legislator or Governor who doesn’t want to soon become a former legislator or former Governor anytime soon, those are projections that you are going to want to address. This Wednesday the process of addressing that funding gap will begin in earnest at a meeting of the Joint House & Senate Higher Education Committee. Despite having just passed sweeping changes to HOPE last year, look for more comprehensive HOPE reform in this year’s session as legislators try to find ways get HOPE back on sound fiscal footing.   

 

EDUCATION

HB 705 – The House Education Committee recommended do pass for a bill that 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 Georgia have already been granted exemptions from the rule).

HB 713 – The House Education Committee also recommended do pass for a bill that 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.

GOVERNOR LOWERS HOT LANE TOLLS

Thursday, the State Road and Tollway Authority Board approved Governor Deal’s request to lower the minimum toll for the HOT lanes in I-85 down to 1 cent per mile during off-peak traffic periods. While the HOT lanes are at capacity during weekday morning and afternoon rush hours, the move was intended to increase utilization of the lanes during non-peak periods. Also, for those of you who access I-85 at Sugarloaf Parkway, there are plans to add a southbound access point near Boggs Road by the end of January.    

PEACH PASS – THERE’S AN APP FOR THAT

While working on lowering those HOT lane tolls, the State Road and Tollway Authority also announced a new free app “Peach Pass Go” which Peach Pass users can utilize to change their status from paying the toll to being a carpool with three or more passengers (carpools of three or more passengers do not have to pay the toll but DO have to have a Peach Pass sticker). The status change still has to be accomplished prior to entering the lane (and if you’re driving, let one of your passengers handle that task) but was previously only available via the Peach Pass website

The Week Ahead

The current legislative calendar calls for the General Assembly to be in session Monday through Thursday this week in addition to a flurry of House and Senate committee meetings that are scheduled as legislators put the MLK week off behind them and the legislative process kicks into full-swing.

ATC Georgia Capitol Update – Week 1, January 16, 2012   Leave a comment

Georgia State Capitol building in Atlanta, Geo...

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By: Michael Sullivan,  head of ATC’s Zoning, Land Use & Governmental Relations group. 

On Monday, January 9, 2012, the Georgia General Assembly convened for the first full week of its 2012 session. Things got off to a much faster start than normal, with the Senate actually passing two substantive bills (See SB 184 & SB 38 below) on the first day. This was a big break from a tradition where the first day of every session has been treated as largely ceremonial, with little more than a few opening day speeches and a short homily from the pastor of the day before adjourning. However, since 2012 is the second year of the two year biennial session, bills that were filed in 2011 are still alive for possible passage this year and start in the position they were in as of the end of last year’s session. So bills that passed out of committee or out of one chamber or the other last year start this session in the same position and do not have to start the legislative process all over again. Senate Majority leader Chip Rogers summed up the message legislators intended to send, stating “We should start our business on Day 1, setting ceremony aside. We don’t need to waste taxpayer money.”

The House & Senate met Monday through Friday but will not reconvene for the sixth legislative day until next Monday, January 23, 2011. Traditionally, the General Assembly takes the week following the first week of the session off to observe the Dr. Martin Luther King, Jr. Holiday and to devote the rest of the week to the budget presentations by state agency heads to the House and Senate Joint Appropriations Committee.

State of the State

On Tuesday, Governor Nathan Deal delivered his second State of the State Address, in which he outlined his legislative agenda for the 2012 session. Highlights include:

  • Elimination of the sales tax on energy used in manufacturing.
  • Creating sales and use tax exemptions for construction materials used in “projects of regional significance” to allow Georgia to better compete with other states for economic development projects (such as major job center relocations or expansions).
  • Restructure Georgia’s job tax credit programs to allow the credits to be applied to smaller projects (decreasing the threshold to qualify for these credits from the current minimum of 50 or more new jobs down to include projects that create 15 or more new jobs).
  • New funding for criminal justice reform, including: $10 million for “Accountability Courts” to handle drug, DUI and other similar offenses and $35.2 million for additional prison beds for dangerous offenders. (Look for more comprehensive criminal justice reform legislation later this session that will address Georgia’s unsustainable prison population growth and which may include some Texas-type reforms, such as creating alternative sentencing options for non-violent offenders and more focus on the treatment of drug addiction and job training for inmates – in the Governor’s words “transforming our corrections system into a last resort of opportunity – a place where low-level offenders are reclaimed and restored to society as functioning members of the community…working to support their own families and paying taxes.”)
  • Restoring the 10 days that were cut from public Pre-K as part of last year’s HOPE cuts (increasing the total number of Pre-K days back to 170).
  • Full-funding of the Quality Basic Education (QBE) enrollment growth funding formula (an additional $146.6 million over the Amended FY 2012 and FY 2013 budgets), with no cuts to QBE, Equalization Grants or other enrollment based state funding programs to K-12 education.
  • An additional $111.3 million to the Technical College System and University System to fund the massive enrollment growth both systems have experienced in recent years.
  • An additional southbound lane and “flex shoulders” which could be utilized as traffic lanes onGeorgia400 during peak traffic periods.
  • $45.7 million in additional funding for reservoir creation and expansion (this is the FY2013 portion of the $300 million investment in water supply over four years that was committed by Governor Deal last year).

The Governor also stressed his continued support for the deepening of the Savannah Harbor to accommodate the larger “Panamax” ships that will be used once the Panama Canal enlargement is completed in 2014. The Governor requested an additional $46.7 million toward deepening the Port on top of the $136 million already invested by the State thus far. The State’s investment serves as significant “skin in the game” invested by the State of Georgia in the context of attracting the additional Federal funding needed to complete this important project.   

BUDGET

Despite 18 months of positive tax revenue reports and year-to-date revenue being up 6.8%, no one is expecting to see any increased spending in the FY 2013 budget. The Governor and the leadership in both the House and Senate have made it clear that they want to continue to use the lean budgetary reality of the past several years as an ongoing impetus to find ways to make state government more efficient and to use any additional funds coming in from increasing tax revenue to restore the Revenue Shortfall Reserve Fund (“rainy day fund”) which was depleted by the economic downturn. As the Governor stated in his State of the State Address, when he took office last January “the Revenue Shortfall Reserve Fund…had only enough money to fund state operations for less than two days…the balance today is $328 million, an increase of 183%. I remain committed to building up this strategic reserve by keeping our spending in check.” Georgia is one of only eight states with a AAA credit rating from the three major rating agencies. 

TAX REFORM

Despite pre-session talk of a more wide-ranging restructuring of Georgia’s tax code, Governor Deal indicated that he is focused only on proposals that he believes will result in immediate job creation and retention. Specifically, (1) eliminating the sales tax on energy used in manufacturing, (2) allowing a sales tax exemption on construction materials used in building or expanding facilities of regional importance, and (3) reducing the eligibility requirements for a relocation or expansion project to qualify for Georgia’s job tax credit program from projects that create 50+ jobs down to projects that create 15+ new jobs. All three of these proposals came from the Governor’s Competitiveness Initiative Task Force, a joint effort of the Georgia Chamber and the Georgia Department of Economic Development.

While there was some talk before the session of more wide ranging tax reforms, the Governor and legislative leaders have made it clear that any tax cuts will have to be paid for in offsetting spending reductions, which is tough to do within an overall state budget that has already been drastically shrinking for several years. That is why the Governor chose to focus only on job creating tax cuts rather than a larger set of tax cuts that would be even more difficult to pay for.

EDUCATION

SB 184 – Passed the Senate on the first day and eliminates so-called “last hired, first fired” policies which could result in teachers with the most seniority being retained while more recently hired teachers would be fired or laid off, even if they had better classroom performance than the more senior teachers. Senate testimony indicated that teachers who had been named teacher of the year in their schools had later been forced to be let go because of the seniority policies. Senate Majority Leader Chip Rogers stated it thusly: “We have teachers of the year who are fired because of this ridiculous policy. We want the very best teachers in the classroom regardless of what day they were hired.”

SB 38 – Also passed by the Senate on the first day. Gives the State School Superintendent the power to hire and fire the employees in the Georgia Department of Education.

HOPE

In a presentation to the House and Senate Joint Economic Development & Tourism Committee on Monday, Tim Connell, Executive Director of the Georgia Student Finance Commission (which administers Georgia’s HOPE scholarship & grant program) indicated that lottery revenues are not increasing as fast as the number of HOPE eligible students requires and that absent further changes, there would be a $107 million shortfall in FY 2014 and increasing to $163 million by FY 2016.

BOARD OF REGENTS APPROVES COLLEGE MERGERS

Two weeks ago, University System Chancellor Hank Huckaby recommended the merger of eight colleges into four and on Tuesday, the Board of Regents unanimously approved that plan. The mergers are:

  • Augusta State and Georgia Health Sciences University(formerly known as the Medical College of Georgia)
  • Gainesville State College and North Georgia College
  • Macon State College and Middle Georgia College
  • South Georgia College and Waycross College

No campuses will be closed as a result of the mergers. The idea is that significant savings will result from combining nearby institutions into a unified administration, eliminating an entire set of administrative positions, such as college presidents, vice presidents and their support staffs. In 2008, the Technical College System of Georgia began the process of merging 14 of its colleges and saw significant savings and administrative efficiencies as a result and the success of those mergers caused legislators to question whether mergers of nearby University System institutions might not be similarly successful. Should these mergers go smoothly, don’t be surprised if other mergers of University System institutions are proposed. In fact, many legislators responded to these four mergers with comments along the lines of “why didn’t they do more colleges?” or “why didn’t they merge X college and Y college while they were at it?” Mergers of some of those x and y colleges are fraught with considerably more political peril than the four named in this round (including some historically Black colleges) but not merging those colleges will get a lot harder to defend once others have already been successfully merged. 

The Week Ahead

The legislature will not be in session the week of January 16th in observance of the Dr. Martin Luther King, Jr. Holiday and to devote the rest of the week to the budget presentations to the House and Senate Joint Appropriations Committee. The General Assembly will reconvene on Monday, January 23, 2012.

Possible Amendment to Georgia Condo Act   Leave a comment

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The Georgia legislature has a bill pending for the next legislative session (SB 136) which, if passed into law, may help owners in condominium associations where the developer/declarant remains in control of the condominium association.

Essentially, the bill amends O.C.G.A. 44-3-101 to provide that certain failures to act, by the declarant, would allow owners a way to gain control of the condominium association via petition to the superior court of the county in which the condominium is located. 

For condominium unit owners, particularly those in condominiums that “stalled out” due to the economic downturn, this bill is worth watching.  Note though, that it is ONLY applicable to Georgia condominiums, and not other types of homeowner or property owner associations.  If you are unsure if you are dealing with a condominium or another type of association, you should seek knowledgeable legal advice.

Don’t Let the Government Steal Your Land   1 comment

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By R. Matthew Reeves

Gwinnett County and North Georgia have experienced tremendous success and growth, and along with a vibrant economy comes an increased demand for roads, schools, parks, government buildings, power lines, and other public infrastructure.  Our local prosperity has caused real estate values to increase steadily over the years.  Land is at a premium in our area.  The city, county and state government’s need for more property, combined with a corresponding high monetary value of private property in our area, pits the government’s power of condemnation/eminent domain against the right of private property owners to obtain just and adequate compensation when the government takes their land against their will.

Condemnation is a longstanding power of the government to take land that the government deems necessary for the public good.  The government’s power to confiscate private property falls shortly behind the ability to put people in jail and send people off to war, as the government’s strongest powers.  While under almost all circumstances the property owner is defenseless against the government’s decision to take their land, property owners do have the right under the state and federal Constitutions to obtain just and adequate compensation when their land is taken from them.  The condemnation process is a complex process which was largely crafted by the government for the government’s benefit.  Condemnation proceedings, more than almost any other legal proceeding, are filled with numerous deadlines, which could cause you to waive or lose your rights to be compensated if a deadline is missed.  It is important to retain legal counsel early in the condemnation process to ensure that your rights to compensation are adequately protected.  Even if you are extremely experienced and sophisticated in the field of real estate, the condemnation process is a process in which you need a legal advocate. 

While government lawyers fight hard in most condemnation cases to keep the amount of money which the government pays land owners to the lowest level possible, the recent downturn in the economy, with its detrimental impact on government budgets, has created a situation in which the government will fight harder than ever before to keep condemnation payouts low.  Also, while one would think that the number of condemnations would decrease during the current economic downturn, a large percentage of the special purpose local options sales tax (SPLOST) is budgeted for road projects, and the federal government is also a consistent source of road building funds.  Additionally, governments and power companies are relatively recession-proof, have deep pockets, and have long-range budgets which are not as impacted by economic downturns as purely private businesses. 

 There are two main types of condemnation proceedings.  The first is the “declaration of taking” method, which is utilized in most road-related condemnations.  In a road-related condemnation, the government is able to take your land immediately by filing a condemnation lawsuit and depositing an amount of money into the registry of court which the government contends is just and adequate compensation.

 The other type of commendation proceeding, which is employed in most other types of condemnations, such as school, park, government building, or power line condemnations, is the “special master” method.  In the special master method, the government files a condemnation lawsuit, and the judge assigned to the case appoints a special master who is a local attorney familiar with real estate law, to consider evidence presented by the government and the land owner early in the proceeding.  The special master hears evidence from both sides, and determines an initial amount of compensation to the land owner, which the government is required to pay into the registry of court prior to obtaining title to the land which it seeks to condemn.

Very rarely does the declaration of taking or special master method produce a result that is acceptable to landowners.  If you have an attorney who is familiar with the condemnation process, you can preserve the ability to seek more compensation following the initial declaration of taking or special master step in the condemnation process. 

If you have a larger condemnation case, you can proceed to an “interlocutory hearing”, in which three assessors/appraisers will hear evidence presented by both the government and the landowner, and determine an amount of just and adequate compensation.  The three assessor panel is generally comprised of one appraiser selected by the government, one appraiser selected by the landowner, and a third appraiser selected by the two previously selected appraisers.  If the three assessor panel’s decision is acceptable to both the government and the landowner, the case will conclude at that time.  Either party has the right to appeal the three assessor panel’s decision to a jury trial. 

Even if you decide not to participate in a three assessor panel, you are entitled to a right to a jury trial in most condemnation cases, as long as you work with your attorney to preserve your right to a jury trial.  Between when the condemnation case is filed, and the jury trial, there is a “discovery process”, which usually last six months or more, in which the government and the landowner exchange documents and conduct depositions of their witnesses. 

 The way that you, as the landowner, prove the amount of just and adequate compensation, is to present layperson and expert witness testimony that your land was valuable before the taking, and that the taking has left you with a piece of property that is diminished in value.  You also cross-examine the government’s witnesses, who almost always allege that your land had a low value prior to the taking and/or that the land has not been damaged by the condemnation.  In most cases, it is necessary to retain a real estate appraiser and engineer who are capable of testifying at trial in your favor, in order to establish a credible case for just and adequate compensation.  Based on the circumstances of your case, it might be advisable to enlist other experts, such as business valuation experts, surveyors, or building/development expert witnesses. 

With all of the procedural and proof hurdles outlined above, it is easy to envision a scenario in which you, as the land owner, end up with unjust and inadequate compensation in a condemnation case.  As a result of the pro-government condemnation process traditionally in Georgia, and in response to the United States Supreme Court’s Kelo v. City of New London decision in 2005, the Georgia General Assembly enacted the Landowner’s Bill of Rights in 2006.  This recent condemnation reform bill was sponsored by Chairman Wendall Willard of the House Judiciary Committee, for whom I served as legal counsel during the 2008 Georgia General Assembly, and I was able to learn more about this new bill through representing Chairman Willard recently.

            The following are recent reforms enacted as part of the Landowners Bill of Rights:

  • The government is prohibited from using the power of eminent domain for private development purposes;
  • Landowners are now able to participate in the selection of the special master in special master proceedings.  Previously, the condemnor’s attorney nominated the special master, who was often the lawyer for another governmental entity, who predictably would award a low amount to the landowner;
  • The government is now required to offer prior the full amount its appraiser believes is just and adequate compensation, when a fee simple interest is being acquired, prior to when a condemnation lawsuit is filed.  Previously, and still with easements or property interests short of a fee simple interest, the government would frequently only offer a portion of the land’s appraised value;
  • When a condemnation displaces you from your home, business, or farm, the government is required to give you 90 days written notice before you are forced to be relocated, and only after the money is paid to you;
  • Georgia law now places the burden of proof upon the government to show that a condemnation is necessary for a public use;
  • Georgia law now explicitly provides for relocation expenses when you are displaced from your home, business, or farm due to a condemnation.  Previously, relocation compensation was only required under limited circumstances, which were governed by federal law.
  • Other procedural hurdles for the government to jump through have been enacted, such as increased notice to landowners prior to a condemnation.

While the Georgia General Assembly has attempted to level the playing field in condemnation cases, landowners still have to fight to pursue just and adequate compensation when their land is condemned.  There are many traps for the unwary which you can avoid by enlisting an attorney as soon as you learn that a condemnation is on the horizon.

  

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You may, as long as you include this complete bio with it:

Matt Reeves is a partner in the litigation group at Andersen, Tate & Carr, P.C., a Gwinnett County, Georgia law firm.  He focuses his practice on real estate, business and probate litigation.

 Blog: www.andersentatecarr.wordpress.com

Website: www.atclawfirm.com

Copyright © 2010, R. Matthew Reeves & Andersen, Tate & Carr, P.C.

ATC Has A New Partner!   Leave a comment

Andersen, Tate & Carr, P.C. is pleased to announce that it has elected R. Matthew “Matt” Reeves as a member of the firm.

Matt Reeves is a veteran business, real estate, and probate litigation attorney at Andersen, Tate & Carr, P.C.  He is the President-Elect of the Gwinnett County Bar Association and was counsel to the House Judiciary Committee during the 2008 Georgia General Assembly.  Matt graduated with honors from the University of Georgia School of Law and Mercer University.  He and his wife, Suzette, have three young children and reside in Duluth.  Reeves is optimistic about the future of Gwinnett County and the firm, in part because he interviewed with the firm as a law student the week after September 11, 2001 and remembers witnessing the post-9/11 recovery in the area after extremely dark days.

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