TITLE 36 LOCAL GOVERNMENT

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ARTICLE 3 ANNEXATION PURSUANT TO APPLICATION BY OWNERS OF 60 PERCENT OF LAND AND 60 PERCENT OF ELECTORS

36-36-32. Annexation upon application of owners of 60 percent of the land and 60 percent of the resident electors generally; application and signature requirements.

Authority is granted to the governing bodies of the several municipal corporations of this state to annex to the existing corporate limits thereof unincorporated areas which are contiguous to the existing corporate limits at the time of such annexation, in accordance with the procedures provided in this article and in Article 1 of this chapter, upon the written and signed application of not less than 60 percent of the electors resident in the area included in any such application and of the owners of not less than 60 percent of the land area, by acreage, included in such application.The authority granted in this Code section is in addition to existing authority and is intended to provide a cumulative method of annexing territory to municipal corporations in addition to those methods provided by present law.
Each such application shall contain a complete description of the land proposed to be annexed. Lands to be annexed at any one time shall be treated as one body, regardless of the number of owners, and all parts shall be considered as adjoining the limits of the municipal corporation when any one part of the entire body abuts such limits.
Each person signing an application for annexation shall also print or type thereon his name, address, and the date of signature.In addition, he shall indicate whether he is a landowner within the area to be annexed, an elector, or both.
For the purpose of determining the percentage of electors signing such application, the municipal governing body shall obtain a list of electors residing in such area from the board of registrars of the county or counties in which the area lies.The list shall be compiled by the board of registrars and provided to the municipal governing body in accordance with Code Section 21-2-227.The municipal governing body shall bear the expense of the preparation of the list in the manner prescribed by such Code section.
For the purpose of determining ownership of the property included within such application, the record titleholder of the fee simple title or his legal representative shall be considered the "owner" of the property.
Signatures of owners of public roads and other public land within the area to be annexed shall not be required in satisfying the requirements of subsection (a) of this Code section and the acreage of such public properties shall be excluded from acreage calculations pertaining to the landowner approval required by subsection (a) of this Code section. This subsection applies only where the public properties are included in the area to be annexed.
The necessary number of signatures of landowners and electors shall be obtained within one calendar year following the date of the first signature obtained.Failure to collect the required number within the one-year period shall invalidate previously collected signatures.Nothing in this subsection shall prohibit collection of signatures from the same persons on subsequent applications for annexation.

(Ga. L. 1966, p. 409, § 1; Code 1981, §36-36-22; Code 1981, §36-36-32, as redesignated by Ga. L. 1992, p. 2592, § 3; Ga. L. 1993, p. 91, § 36; Ga. L. 1994, p. 1443, § 27.)

Law reviews.

- For article questioning the constitutionality of this section, see 10 Ga. L. Rev. 169 (1975). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004).

JUDICIAL DECISIONS

This section is not unconstitutional on the theory that the section attempts to delegate "legislative power," including the right to change municipal boundaries, to local governments. Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 188 S.E.2d 864 (1972) (see O.C.G.A. § 36-36-32).

Ga. L. 1966, p. 409, § 1 (see O.C.G.A. § 36-36-32) is a "general law" and provides a method of municipal annexation as contemplated by Ga. L. 1965, p. 298, § 2 (see O.C.G.A. § 36-35-2). Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 188 S.E.2d 864 (1972).

Best interest determinations.

- Although finding that a city had not made a best interest determination as required by O.C.G.A. § 36-36-37(a), a trial court never held that the determination had to be made on the record; since the city's annexation evidence under O.C.G.A. § 36-36-35 was inadequate to assist the citizens in participating intelligently in the public hearing, the county was entitled to summary judgment under O.C.G.A. § 9-11-56. City of Riverdale v. Clayton County, 263 Ga. App. 672, 588 S.E.2d 845 (2003).

Comparison of 100 percent and 60 percent methods of annexation.

- Requirements of the 100 percent method and the 60 percent method are different. In the 100 percent method, the land being annexed need only abut the municipal boundaries. In the 60 percent method, the land being annexed must coincide with the municipal boundaries on one-eighth of the municipality's aggregate external boundary. City of Marietta v. Cobb County Sch. Dist., 237 Ga. 518, 228 S.E.2d 894 (1976).

Involvement of only one landowner does not prohibit use of 60 percent method.

- When the procedures that must be followed in using the "60 percent method" were followed by the city in effecting an annexation, the fact that there was only one landowner involved and no electors involved in this annexation did not prohibit use of the "60 percent method" prescribed by statute. Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 188 S.E.2d 864 (1972) (see O.C.G.A. § 36-36-32).

The 60 percent method of annexation may be used in areas with no registered voters. Niskey Lake Water Works, Inc. v. Garner, 228 Ga. 864, 188 S.E.2d 864 (1972).

Removal of persons "resident in the area".

- City had two options when the city found that 36 people were no longer "resident in the area." It could have challenged the names of the 36 people the city determined to be nonresidents and had the names removed from the list, or it could have sought others who were "resident in the area." City Council v. Richmond County, 259 Ga. 161, 377 S.E.2d 851 (1989).

When city discovered that 34 electors had moved and that two were no longer living in the area sought to be annexed, the city could not just subtract the 36 names that the city determined to be "nonresident in the area" from the total to arrive at the requisite 60 percent. City Council v. Richmond County, 259 Ga. 161, 377 S.E.2d 851 (1989).

City failed to comply with publishing requirements.

- Trial court properly granted summary judgment in favor of a county because the city failed to publish a notice as required by O.C.G.A. § 36-36-36(a) that accurately described the property to be annexed; thus, the city failed to comply, or to substantially comply, with the requirements of that statute. City of Lovejoy v. Clayton County, 335 Ga. App. 881, 783 S.E.2d 395 (2016).

Annexations properly invalidated.

- Judgment invalidating the City of Atlanta's attempted annexation of five areas was affirmed because the trial court correctly held that the annexations were invalid since at the time the annexations would have become effective, the areas in question were already part of the newly incorporated City of South Fulton and, thus, ineligible for annexation by Atlanta. City of Atlanta v. Mays, 301 Ga. 367, 801 S.E.2d 1 (2017).

Cited in Pharris v. Mayor of Jefferson, 226 Ga. 489, 175 S.E.2d 845 (1970); Pharris v. Mayor of Jefferson, 227 Ga. 32, 178 S.E.2d 863 (1970); City of Cartersville v. Bartow County Sch. Dist., 145 Ga. App. 129, 243 S.E.2d 293 (1978); City of Ft. Oglethorpe v. Boger, 267 Ga. 485, 480 S.E.2d 186 (1997).

OPINIONS OF THE ATTORNEY GENERAL

Correctional institution site and adjoining property may be annexed by city in one procedure, upon application of appropriate persons, when property adjoining correctional institution abuts city limits. 1981 Op. Att'y Gen. No. 81-37.

Intent of General Assembly in referring to "the record title holder of the fee simple title" was to give the grantor of a security deed the right to decide upon the question of annexation. Thus, in determining ownership of land for the purpose of determining the eligibility of a landowner to sign an application for annexation to a municipality, it should be done without regard to whether such land is encumbered by an outstanding deed to secure debt. 1967 Op. Att'y Gen. No. 67-16.

It is the apparent legislative scheme to place decision as to annexation upon persons residing in area, rather than upon persons holding mere security interests in the property. 1972 Op. Att'y Gen. No. U72-105.

Need for voice of property owner to be heard.

- Legislature did not intend for any property to be annexed to a municipal corporation without the owner of the property at least being allowed a voice on the question of such annexation. Of course, if the county or State School Building Authority (now Georgia Education Authority (Schools)) or some other governmental entity chooses not to make application for annexation, but at least 60 percent of the other owners of property in the area making application for annexation do apply, the statutory requirements are met irrespective of the wishes of some owners. 1967 Op. Att'y Gen. No. 67-236.

Governing body of a municipality does not have authority to annex a lesser included portion of territory described in an original application. 1967 Op. Att'y Gen. No. 67-253.

Landowners may withdraw their consent to any annexation petition at any time through the date of the public hearing on such petition. If these withdrawals result in a reduction of the percentage of the land represented below 60 percent of the total area of land to be annexed, the petition is thereby invalidated, and the municipality into which the land was to be annexed has no authority to continue with the annexation. 1975 Op. Att'y Gen. No. U75-62.

Municipal governing body must request a list of electors registered in particular area making application for annexation. When preparing the list, the board of registrars should determine those electors within that area as of the date on which the application for annexation was presented by the electors and property owners to the municipal governing body. 1967 Op. Att'y Gen. No. 67-236.

Annexation of state park.

- Municipality must have specific legislative approval to annex state park. 1968 Op. Att'y Gen. No. 68-211.

Acreage of railroad rights of way, county owned property, creeks and rivers, and other similar land must be included in calculation of total acreage for which application for annexation is made. 1967 Op. Att'y Gen. No. 67-236.

Department of Offender Rehabilitation (now Corrections) lacks authority to apply for or consent to annexation of state owned real property. 1981 Op. Att'y Gen. No. 81-37.

RESEARCH REFERENCES

Am. Jur. 2d.

- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 38 et seq.

C.J.S.

- 62 C.J.S., Municipal Corporations, §§ 60 et seq., 73, 74, 80.

ALR.

- Power to extend boundaries of municipal corporations, 64 A.L.R. 1335.

Power to detach land from municipal corporations, towns, or villages, 117 A.L.R. 267.

Capacity to attack the fixing or extension of municipal limits or boundary, 13 A.L.R.2d 1279, 17 A.L.R.5th 195.

Right of one governmental subdivision to challenge annexation proceedings by another such subdivision, 17 A.L.R.5th 195.

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