Georgia Supreme Court Affirms Counties’ Right to Object to Annexation of Unincorporated Areas

The Georgia Supreme Court has again affirmed that a county has standing to sue one of its cities to prevent annexation of unincorporated properties within the county.  However, the Supreme Court held that where the annexing city and property owners of annexed property had no present intention to rezone the annexed properties a county can not present sufficient evidence of a threat of harm to obtain interloctutory injunction relief.

Keep read for GZB’s summary of Cherokee County v. City of Holly Springs, Georgia Supreme Court, Case No. S08A0759, decided on September 22, 2008.

Cherokee County sued the City of Holly Springs to stop the City’s annexation of an area in Cherokee County known as Hickory Flats.  Cherokee County alleged that the City had failed to follow the annexation procedures required by O.C.G.A. § 36-36-21 and its own city ordinances.

Cherokee County filed a motion seeking an interlocutory injunction to prevent the annexation from becoming effective and to preserve the status quo during the duration of the lawsuit.  After a hearing on the motion, the trial court decided that (1) the County did not have standing to seek the interlocutory injunction and (2) even assuming standing, the law and facts were so adverse to the County that it was so unlikely the County would ultimately win making it proper to deny the injunction was improper because of the inconvenience and harm that would be cause to the City.

The trial court reasoned that the County did not have standing because

it failed to show it possessed a legally protected interest or to allege evidence that shows that the county will suffer harm due to the city’s acceptance of deficient annexation applications and not due to the annexation itself.

The Supreme Court reversed the trial court’s decision as to standing citing to the 1909 case of DeKalb County v. City of Atlanta, 132 Ga. 727 as its longstanding recognition that a County has an interest in contesting the legality of annexation:

If the county has a right which it becomes essential to enforce by process of law, or a wrong is being done which will be detrimental to the county and its interests, why should it not be allowed to enforce the right or seek a remedy against the wrong?  The county of DeKalb now has jurisdiction over the territory involved in this controversy.  From the property therein taxes are collected, and it furnishes county revenue.  It exercises dominion over the roads and the working of them and my collect road tax, if the alternative road law is or should be put in force. If there are persons residing in that territory exercising any business which requires a county license, this payment furnishes a further source of revenue.  Jurors are drawn from citizens there.  It forms now an integral part of DeKalb County, subject to its management, control, and any revenue or benefit derivable therefrom.  It cannot be that a county must submit to have such portion of its territory unlawfully taken from it and transferred to another county, without being able to contest the legality of the proceeding.

However, the Supreme Court affirmed the trial court’s denial of injunctive relief to the County stating that at most the evidence presented was conflicted as to the harm to the County and the validity of the challenged annexation.

A pdf of the decision in Cherokee County v. City of Holly Springs, Georgia Supreme Court, Case No. S08A0759, decided on September 22, 2008 can be found here.

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One response to this post.

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