Archive for the ‘Georgia General Assembly’ Tag
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.
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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).
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.
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.
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.
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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.
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.
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.
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.
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.
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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.
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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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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.
Copyright © 2010, R. Matthew Reeves & Andersen, Tate & Carr, P.C.
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.