CopyCited 16 times | Published | Supreme Court of Georgia | Mar 15, 2018
...ggs, Justice.
This dispute between Greene County and the City of Union Point arises out of the Service Delivery Strategy Act, OCGA §
36-70-20 et seq., and calls into question the constitutionality of the evidentiary hearing process provided by OCGA §
36-70-25.1 (d) (2)....
...stitutional, and further found that sovereign immunity barred all claims and remedies except those provided for in the SDS Act itself. We affirm the trial court's ruling on sovereign immunity, but reverse its finding on the constitutionality of OCGA §
36-70-25.1 (d) (2)....
...OCGA §
36-70-20. The SDS Act prescribes a process for developing a local government service agreement, OCGA §
36-70-21, its required components, OCGA §
36-70-23, and criteria for its development, OCGA §
36-70-24.
The SDS Act was amended in 2000 to add OCGA §
36-70-25.1.2 This statute provides a "mechanism to resolve disputes" between a county and its municipalities, beginning with "some form of alternative dispute resolution" under subsection (c), "the imposition of sanctions" by the limitation of fun...
...The trial court entered a temporary restraining order directing the County to resume dispatch and communications services. A month later, in response to a motion to dismiss, the City amended its complaint to seek a declaratory judgment and mediation under OCGA §§
36-70-28 (c)4 and
36-70-25.1 (d)....
...torney fees, and attached a certified copy of the service delivery agreements on file with the Georgia Department of Community Affairs.
On January 12, 2016, the trial court entered a consent order assigning the dispute to mediation pursuant to OCGA §
36-70-25.1 (d) (1) (A), staying all other proceedings in the case, directing the County to continue to provide dispatch and communications services until the end of the mediation period, and adding the city of Greensboro as a necessary party to the mediation under OCGA §
36-70-25.1 (d) (1) (B)....
...The dispute went to mediation, where the parties reached agreement "in principle" on a number of issues, but were unable to resolve the dispute regarding dispatch and communications services. At the petition of the City, as provided for in the consent order, the trial court proceeded to an evidentiary hearing under OCGA §
36-70-25.1 (d) (2).
After hearing two days of testimony and argument and receiving approximately 1750 pages of documentary evidence, the trial court issued a 47-page "Final Order." In that order, the trial court concluded that OCGA §
36-70-25.1 (d) (2) is unconstitutional and void because it violates the separation of powers clause of the Georgia Constitution.5 While finding that the rest of the parties' contentions therefore were moot, the trial court "for purposes of judicial economy" nevertheless ruled on those issues....
...urces, and enjoining the funding of those services from other sources, as well as enjoining the collection of fees until an agreement is reached, and directing that certain fees be refunded.
The City appeals from the trial court's finding that OCGA §
36-70-25.1 (d) (2) is unconstitutional, its finding that sovereign immunity barred most of the City's claims, and its specific findings with respect to funding for road and bridge maintenance....
...d' in order to create a specific statutory waiver of sovereign immunity.
(Citations and punctuation omitted.) Ga. Dept. of Corrections v. Couch,
295 Ga. 469, 473-474 (2),
759 S.E.2d 804 (2014).
(a) The only potential parties to an action under OCGA §
36-70-25.1 are counties and affected municipalities....
...But here, as the trial court correctly held, sovereign immunity is waived only to the extent of the statute , which extends no further than the remedies specifically authorized by the Act. Therefore, as discussed in Division 2, below, the trial court may not exceed the scope of OCGA §
36-70-25.1 (d) (2) by granting relief not provided therein for claims brought under the SDS Act. We therefore affirm the trial court's ruling that sovereign immunity does not bar claims under OCGA §
36-70-25.1 (d) (2).
(b) Not all of the claims in the case below, however, arise under the SDS Act....
...at 596 (2),
755 S.E.2d 184 (injunctive relief); Olvera v. Univ. System of Ga. Bd. of Regents,
298 Ga. 425, 427,
782 S.E.2d 436 (2016) (declaratory judgment).
2. Next, we address the trial court's holding that the dispute resolution process prescribed by OCGA §
36-70-25.1 (d) (2) is unconstitutional....
...nts judicial resolution of the allocation and distribution of tax proceeds, a process that we deem to be a clear violation of the separation of powers doctrine." Id. at 749,
749 S.E.2d 685.
In contrast, the referral to the superior court under OCGA §
36-70-25.1 (d) (2) contains important distinctions from the one disapproved in Turner County....
...t the process prescribed by the SDS Act as a whole "should result in a simple, concise agreement describing which local government will provide which service in specified areas within a county and how provision of such services will be funded." OCGA §
36-70-25.1 does not authorize the trial court to implement, in its own discretion, these broad, aspirational goals....
...Instead, the local government entities continue their negotiation and preparation of a service delivery strategy and related agreements. The trial court's power is limited to the abeyance or allowance of sanctions, its contempt authority, or the imposition of costs upon a finding of bad faith. OCGA §
36-70-25.1 (d) (2).
As Turner acknowledges,
We recognize the basic principle embodied in the separation of powers doctrine that the legislature cannot delegate legislative power to the courts....
...Delegation to a court of power to ascertain a state of facts under which a statute is applicable is not an unlawful delegation of legislative power to the judiciary.
Harrell v. Courson,
234 Ga. 350, 352,
216 S.E.2d 105 (1975), cited in Turner, supra,
293 Ga. at 745,
749 S.E.2d 685. OCGA §
36-70-25.1 does not authorize the court to substitute its judgment for that of the county and municipalities with regard to the creation of a service delivery agreement, nor to adopt one party's interpretation to the exclusion of another, and enter that in the form of a final agreement....
...provided and the funding of such services, and to determine whether such services and funding comply with the provisions of the law. This process does not amount to an unconstitutional violation of the separation of powers doctrine.
Moreover, OCGA §
36-70-25.1 (d) (2), unlike the provision disapproved in Turner, does not permit the trial court to direct that the parties enter into a particular agreement....
...It therefore does not invade the province of the legislative branch by imposing a tax or allocating the proceeds of that tax, as forbidden by Turner. The responsibility remains with the parties to enter into and implement a service agreement that complies with the law. See OCGA §
36-70-25.1 (f)....
...Wilson,
259 Ga. 685, 686 (2) (b),
386 S.E.2d 128 (1989) (trial court authorized to use contempt powers to compel county to comply with zoning code).
However, as the City concedes, the trial court is not authorized to grant relief pursuant to OCGA §
36-70-25.1 beyond the scope of the remedies made available in that Code section....
...with this opinion.
3. The parties have appealed and cross-appealed from certain specific findings entered by the trial court.
(a) The City appeals from the trial court's findings with regard to the funding of road and bridge maintenance. But OCGA §
36-70-25.1 (d) (2) provides that "any aggrieved party may petition the superior court and seek resolution of the items remaining in dispute" after the parties fail to agree to a service delivery strategy in the mandatory mediation provided by subsection (d) (1)....
...The judicial resolution of this issue was not authorized under the statute until the parties have complied with the two-step process prescribed by the statute and first submitted the question of road and bridge maintenance funding to mediation. This portion of the trial court's order therefore *287exceeded the scope of OCGA §
36-70-25.1 (d) (2), and it must be reversed.
(b) In its cross-appeal, the County contends the trial court erred in permanently enjoining the County from imposing fees on the City for emergency dispatch services and in mandating the use of a particular technology for delivering those services. As noted above, we agree that the trial court's remedies in the process prescribed by OCGA §
36-70-25.1 (d) (2) are limited to those authorized therein....
...Moreover, the trial court was not authorized to fashion a remedy of its own for the dispute between the County and City regarding the funding of these services; it could only find the relevant facts and apply the law to those facts. It is then authorized to use only the remedies enumerated in OCGA §
36-70-25.1 (d) (2)"to obtain compliance" from the parties in reaching a service delivery agreement: hold statutory sanctions in abeyance (or allow them), employ its contempt powers, and assess costs against a party acting in bad faith....
...The County first complains that the trial court exceeded its authority under the Act by finding it in breach of contract and by imposing declaratory and injunctive relief. As we have noted above, the trial court was not authorized to impose a remedy not provided by OCGA §
36-70-25.1 (d) (2) for claims brought under the Act....
...ediation with regard to these services, the trial court was correct in concluding that an agreement was never reduced to a service delivery strategy or approved under OCGA §
36-70-25. Nevertheless, in the dispute resolution process provided by OCGA §
36-70-25.1 (d) (2), the trial court is limited to the actions and remedies outlined in that Code section, and it was not authorized to adopt any agreement made "in principle" or partially performed by the parties outside the framework of the statu...
...eview and revise, if necessary, a strategy in accordance with paragraphs (2) and (3) of subsection (b) of this Code section, then any of the parties may use the alternative dispute resolution and appeal procedures set forth in subsection (d) of Code Section
36-70-25.1."
"The legislative, judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided." Ga....
...estion, the trial court relied in part on OCGA §
46-5-120 et seq., the "Georgia Emergency Telephone Number 9-1-1 Service Act of 1977." While it cited this act, however, the court's order recites that its ruling was made under the provisions of OCGA §
36-70-25.1 (d) (2), and we review the order only with respect to that Code section and do not decide or rule upon any other claims that may exist upon remand, such as the breach of contract claims discussed in Division (1) (b), supra.
This does n...
CopyCited 15 times | Published | Supreme Court of Georgia | Mar 15, 2018
...This dispute between Greene County and the City of Union Point arises
out of the Service Delivery Strategy Act (“SDS Act”), OCGA §
36-70-20 et
seq., and calls into question the constitutionality of the evidentiary hearing
process provided by OCGA §
36-70-25.1 (d) (2)....
...unconstitutional, and further found that sovereign immunity barred all claims
and remedies except those provided for in the SDS Act itself. We affirm the trial
court’s ruling on sovereign immunity, but reverse its finding on the
constitutionality of OCGA §
36-70-25.1 (d) (2)....
...The SDS Act prescribes a process for developing a local
government service agreement, OCGA §
36-70-21, its required components,
OCGA §
36-70-23, and criteria for its development, OCGA §
36-70-24.
The SDS Act was amended in 2000 to add OCGA §
36-70-25.1.2 This
1
See Ga....
...The trial court
entered a temporary restraining order directing the County to resume dispatch
and communications services. A month later, in response to a motion to dismiss,
the City amended its complaint to seek a declaratory judgment and mediation
under OCGA §§
36-70-28 (c)4 and
36-70-25.1 (d)....
...strategy in accordance with paragraphs (2) and (3) of subsection
(b) of this Code section, then any of the parties may use the
alternative dispute resolution and appeal procedures set forth in
subsection (d) of Code Section
36-70-25.1.
4
second motion to dismiss on the grounds of sovereign immunity, standing, and
untimely request for mediation, the City again amended its complaint to assert
claims for breach of con...
...attorney fees, and attached a certified copy of the service delivery agreements
on file with the Georgia Department of Community Affairs.
On January 12, 2016, the trial court entered a consent order assigning the
dispute to mediation pursuant to OCGA §
36-70-25.1 (d) (1) (A), staying all
other proceedings in the case, directing the County to continue to provide
dispatch and communications services until the end of the mediation period, and
adding the City of Greensboro as a necessary party to the mediation under
OCGA §
36-70-25.1 (d) (1) (B)....
...parties reached agreement “in principle” on a number of issues, but were unable
to resolve the dispute regarding dispatch and communications services. At the
petition of the City, as provided for in the consent order, the trial court
proceeded to an evidentiary hearing under OCGA §
36-70-25.1 (d) (2).
After hearing two days of testimony and argument and receiving
approximately 1,750 pages of documentary evidence, the trial court issued a 46-
page “Final Order.” In that order, the trial court concluded that OCGA...
...enjoining the
funding of those services from other sources, as well as enjoining the collection
of fees until an agreement is reached, and directing that certain fees be refunded.
The City appeals from the trial court’s finding that OCGA §
36-70-25.1
(d) (2) is unconstitutional, its finding that sovereign immunity barred most of the
City’s claims, and its specific findings with respect to funding for road and
bridge maintenance....
...o create
a specific statutory waiver of sovereign immunity.
(Citations and punctuation omitted.) Ga. Dept. of Corrections v. Couch,
295 Ga.
469, 473-474 (2) (759 SE2d 804) (2014).
(a) The only potential parties to an action under OCGA §
36-70-25.1 are
counties and affected municipalities....
...ly held, sovereign immunity is waived
only to the extent of the statute, which extends no further than the remedies
specifically authorized by the Act. Therefore, as discussed in Division 2, below,
the trial court may not exceed the scope of OCGA §
36-70-25.1 (d) (2) by
granting relief not provided therein for claims brought under the SDS Act. We
therefore affirm the trial court’s ruling that sovereign immunity does not bar
claims under OCGA §
36-70-25.1 (d) (2).
(b) Not all of the claims in the case below, however, arise under the SDS
Act....
...at 596 (2) (injunctive relief); Olvera v. Univ. System of
Ga. Bd. of Regents,
298 Ga. 425, 427 (782 SE2d 436) (2016) (declaratory
judgment).
2. Next, we address the trial court’s holding that the dispute resolution
process prescribed by OCGA §
36-70-25.1 (d) (2) is unconstitutional....
...resolution of the allocation and distribution of tax proceeds, a process that we
14
deem to be a clear violation of the separation of powers doctrine.” Id. at 749.
In contrast, the referral to the superior court under OCGA §
36-70-25.1
(d) (2) contains important distinctions from the one disapproved in Turner....
...intent that the process prescribed by the SDS Act as a whole “should result . .
. in a simple, concise agreement describing which local government will provide
which service in specified areas within a county and how provision of such
services will be funded.” OCGA §
36-70-25.1 does not authorize the trial court
to implement, in its own discretion, these broad, aspirational goals....
...is not an unlawful
delegation of legislative power to the judiciary.
(Punctuation omitted.) Harrell v. Courson,
234 Ga. 350, 352 (216 SE2d 105)
16
(1975), cited in Turner, supra,
293 Ga. at 745. OCGA §
36-70-25.1 does not
authorize the court to substitute its judgment for that of the county and
municipalities with regard to the creation of a service delivery agreement, nor
to adopt one party’s interpretation to the exclusion of another, and enter that in
the form of a final agreement....
...provided and the funding of such services, and to determine whether such
services and funding comply with the provisions of the law. This process does
not amount to an unconstitutional violation of the separation of powers doctrine.
Moreover, OCGA §
36-70-25.1 (d) (2), unlike the provision disapproved
in Turner, does not permit the trial court to direct that the parties enter into a
particular agreement....
...It therefore does not invade the province of the legislative
branch by imposing a tax or allocating the proceeds of that tax, as forbidden by
Turner. The responsibility remains with the parties to enter into and implement
a service agreement that complies with the law. See OCGA §
36-70-25.1 (f).
None of the trial court’s actions go beyond those powers generally inherent in
the judiciary....
...Wilson,
259 Ga. 685, 686 (2) (b)
(386 SE2d 128) (1989) (trial court authorized to use contempt powers to compel
county to comply with zoning code).
However, as the City concedes, the trial court is not authorized to grant
relief pursuant to OCGA §
36-70-25.1 beyond the scope of the remedies made
available in that Code section....
...conformity with this opinion.
3. The parties have appealed and cross-appealed from certain specific
findings entered by the trial court.
(a) The City appeals from the trial court’s findings with regard to the
funding of road and bridge maintenance. But OCGA §
36-70-25.1 (d) (2)
provides that “any aggrieved party may petition the superior court and seek
resolution of the items remaining in dispute” after the parties fail to agree to a
service delivery strategy in the mandatory mediation provided by subsection (d)
(1)....
...tep process prescribed by
the statute and first submitted the question of road and bridge maintenance
funding to mediation. This portion of the trial court’s order therefore exceeded
19
the scope of OCGA §
36-70-25.1 (d) (2), and it must be reversed.
(b) In its cross-appeal, the County contends the trial court erred in
permanently enjoining the County from imposing fees on the City for
emergency dispatch services and in mandating the use of a particular technology
for delivering those services. As noted above, we agree that the trial court’s
remedies in the process prescribed by OCGA §
36-70-25.1 (d) (2) are limited to
those authorized therein....
...Moreover, the trial
court was not authorized to fashion a remedy of its own for the dispute between
the County and City regarding the funding of these services; it could only find
the relevant facts and apply the law to those facts. It is then authorized to use
only the remedies enumerated in OCGA §
36-70-25.1 (d) (2) “to obtain
compliance” from the parties in reaching a service delivery agreement: hold
statutory sanctions in abeyance (or allow them), employ its contempt powers,
and assess costs against a party acting in bad faith....
..., the trial court relied in part
on OCGA §
46-5-120 et seq., the “Georgia Emergency Telephone Number 9-1-1 Service Act
of 1977.” While it cited this Act, however, the court’s order recites that its ruling was made
under the provisions of OCGA §
36-70-25.1 (d) (2), and we review the order only with
respect to that Code section and do not decide or rule upon any other claims that may exist
upon remand, such as the breach of contract claims discussed in Division 1 (b), supra....
...The County first complains that the trial court exceeded its authority under
the Act by finding it in breach of contract and by imposing declaratory and
injunctive relief. As we have noted above, the trial court was not authorized to
impose a remedy not provided by OCGA §
36-70-25.1 (d) (2) for claims
brought under the Act....
...ation with regard to these services, the
trial court was correct in concluding that an agreement was never reduced to a
service delivery strategy or approved under OCGA §
36-70-25. Nevertheless,
in the dispute resolution process provided by OCGA §
36-70-25.1 (d) (2), the
trial court is limited to the actions and remedies outlined in that Code section,
and it was not authorized to adopt any agreement made “in principle” or
partially performed by the parties outside the framework of th...
...BENHAM, Justice, concurring in part and dissenting in part.
I concur with Division 1 of the majority’s opinion addressing the
sovereign immunity issue raised in this appeal. I dissent, however, with respect
to Divisions 2 and 3, and would hold that OCGA §
36-70-25.1 is
unconstitutional because it improperly delegates purely legislative issues to the
trial court for judicial resolution.
26
The majority characterizes the issue posed in this case as one involving
the evidentiary hearing process set forth in OCGA §
36-70-25.1....
...roposed by one of the parties and the
authority of the SDS Act to “render a decision” with respect to items remaining
in dispute between governmental entities who are required to reach an
agreement for a service delivery strategy.
OCGA §
36-70-25.1 authorizes a trial court judge “to utilize its contempt
powers to obtain compliance with its decision relating to the disputed items
under review.” In this case, those items include not simply whether the County
must provide emer...
...III.
I am authorized to state that Presiding Justice Melton and Justice Hunstein
join in this dissent.
29
Decided March 15, 2018 — Reconsideration
denied March 29, 2018.
OCGA §
36-70-25.1 (d) (2); constitutional question....
CopyCited 8 times | Published | Supreme Court of Georgia | Mar 5, 2024
...consensus on a new SDS Agreement, but the negotiations between
the parties did not successfully resolve all of their issues. As a result,
in 2018 and 2019, the County, the City, and other municipalities
within the County participated in voluntary mediation under the
Act. See OCGA §
36-70-25.1 (c).4 The parties were able to settle all
but two of forty-one service issues in dispute through mediation.
To resolve the remaining conflicts, the County filed a three-
count petition pursuant to OCGA §
36-70-25.1 (d)5 seeking court-
3 Because the parties failed to agree to an updated SDS Agreement by
the February 28, 2019 deadline, sanctions under OCGA §
36-70-27 (a) were
imposed on the County and each municipality. However, after the County filed
a petition seeking resolution of these issues, the superior court ordered that
the sanctions be held in abeyance during the pendency of the litigation. See
OCGA §
36-70-25.1 (d) (2) (“It shall be in the discretion of the judge to hold the
sanctions specified in Code Section
36-70-27 against one or more of the parties
in abeyance pending the disposition of the action.”).
4 OCGA §
36-70-25.1 (c) provides for the use of alternative dispute
resolution, as follows:
If a county and the affected municipalities in the county are
unable to reach an agreement on the strategy prior to the
imposition of the sanctions provided in Code Section
36-70-27, a
means for facilitating an agreement through some form of
alternative dispute resolution shall be employed.
5 OCGA §
36-70-25.1 (d) (1) (A) allows the parties to seek resolution of
their disputes in superior court:
In the event that the county and the affected municipalities
3
ordered mediation and/or a judicial resolution of the disputes....
...party may petition the superior court and seek resolution of the items
remaining in dispute. The . . . judge shall conduct an evidentiary hearing or
hearings as such judge deems necessary and render a decision with regard to
the disputed items.” OCGA §
36-70-25.1 (d) (2).
4
charged its own residents and those it charged the Outside
Customers....
...taxes, assessments, or user fees are levied or imposed or through
such other mechanism agreed upon by the affected parties which
complies with the intent of subparagraph (A) of this paragraph[.]
7
36-70-25.1 (d).
Following a hearing, the superior court granted the County’s
cross-motion for partial summary judgment on the road
maintenance funding issue and denied the City’s motion, concluding
as a matter of law tha...
...come from “property taxes, insurance premium taxes, assessments,
or user fees” levied or imposed with a special service district, or does
it authorize the County to use other sources of revenue?
(3) Is a superior court that is adjudicating a petition under
OCGA §
36-70-25.1 (d) (2) authorized to determine whether the
City’s usage rates charged to water customers in unincorporated
areas of the County are an illegal tax?
1....
...a determination the superior court is authorized to make on remand
after an evidentiary hearing and after considering the totality of the
circumstances, including geographic location and usage of the
21
roads.13 See OCGA §
36-70-25.1 (d) (2) (“The visiting or senior judge
shall conduct an evidentiary hearing or hearings as such judge
deems necessary and render a decision with regard to the disputed
items.”).14
2....
...14 The Act provides that proceedings seeking resolution of SDS disputes
“shall be assigned to a judge . . . who is not a judge in the circuit in which the
county is located. The judge selected may also be a senior judge . . . who resides
in another circuit.” OCGA §
36-70-25.1 (d) (1) (A).
22
through such other mechanism agreed upon by the
affected parties which complies with the intent of
subparagraph (A) of this paragraph[.]
The County argues that...
...assessments”
refer to any assessment that is not otherwise classified as a tax or
fee, and we reverse the Court of Appeals on this ground.
3. Finally, we consider whether the superior court, which is
conducting this proceeding under OCGA §
36-70-25.1 (d), has the
29
authority in such a proceeding to determine whether the City’s
usage rates charged to the Outside Customers constitute an illegal
tax and whether the City is permitted to transfer p...
...y to follow to
petition the superior court for resolution of items “remaining in
dispute.”
Here, after presumably following the procedure laid out in
OCGA §
36-70-24 (2) (B), the County filed its petition in this case
pursuant to OCGA §
36-70-25.1 (d) (2) to resolve the parties’
remaining disputes....
...These issues are clearly matters that must be addressed
in negotiating a new SDS Agreement for the provision of water and
sewage services, and thus disputes about such matters are
considered issues “remaining in dispute” under the Act. See OCGA
§§
36-70-23;
36-70-24;
36-70-25.1 (d) (2).
However, Count IV seeks a determination as to whether the
City’s water charges constitute an illegal tax on the Outside
Customers and whether the City could transfer profits collected
from those customers to its general fund. These are not items that
must be negotiated as part of an SDS Agreement, see OCGA §§ 36-
70-23 and
36-70-24 (2), and thus cannot be considered items
“remaining in dispute” under the statutory process outlined in
OCGA §
36-70-25.1 (d). Because Count IV seeks a judicial
determination that is beyond the scope of the Act, its requested relief
falls outside the statutory dispute process contemplated by OCGA §
33
36-70-25.1 (d) (2). See City of Union Point v. Greene County,
303 Ga.
449, 459 (2) (812 SE2d 278) (2018) (superior court “is not authorized
to grant relief pursuant to OCGA §
36-70-25.1 beyond the scope of
the remedies made available in that Code section”), disapproved of
on other grounds by City of College Park v....
Published | Supreme Court of Georgia | Mar 5, 2024
...consensus on a new SDS Agreement, but the negotiations between
the parties did not successfully resolve all of their issues. As a result,
in 2018 and 2019, the County, City, and other municipalities within
the County participated in voluntary mediation under the Act. See
OCGA §
36-70-25.1 (c).4 The parties were able to settle all but two of
forty-one service issues in dispute through mediation.
3 Because the parties failed to agree to an updated SDS Agreement by
the February 28, 2019 deadline, sanctions under OCGA §
36-70-27 (a) were
imposed on the County and each municipality. However, after the County filed
a petition seeking resolution of these issues, the superior court ordered that
the sanctions be held in abeyance during the pendency of the litigation. See
OCGA §
36-70-25.1 (d) (2) (“It shall be in the discretion of the judge to hold the
sanctions specified in Code Section
36-70-27 against one or more of the parties
in abeyance pending the disposition of the action.”).
4 OCGA §
36-70-25.1 (c) provides for the use of alternative dispute
resolution, as follows:
If a county and the affected municipalities in the county are unable
to reach an agreement on the strategy prior to the imposition of
the sanctio...
...facilitating an agreement through some form of alternative dispute
resolution shall be employed.
3
To resolve the remaining conflicts, the County filed a three-
count petition pursuant to OCGA §
36-70-25.1 (d)5 seeking court-
ordered mediation and/or a judicial resolution of the disputes....
...de and
outside of [the] city limits and (b) [the] County’s authority to provide
water service to all customers located in the unincorporated area of
the County.”
The County later amended its petition to add another count
5 OCGA §
36-70-25.1 (d) (1) (A) allows the parties to seek resolution of
their disputes in superior court:
In the event that the county and the affected municipalities in the
county fail to reach an agreement after the imposition of sanctions...
...party may petition the superior court and seek resolution of the items
remaining in dispute. The . . . judge shall conduct an evidentiary hearing or
hearings as such judge deems necessary and render a decision with regard to
the disputed items.” OCGA §
36-70-25.1 (d) (2).
4
(“Count IV”) alleging that the City’s water service charges for
residents in unincorporated areas of the County or in another
municipality (the “Outside Customers”) amounted t...
...whether the City’s water rate charges to Outside Customers
amounted to an illegal tax and whether the City could transfer any
profits gleaned from the excess charges to its general fund were
beyond the scope of the statutory proceeding prescribed in OCGA §
36-70-25.1 (d).
Following a hearing, the superior court granted the County’s
cross-motion for partial summary judgment on the road
maintenance funding issue and denied the City’s motion, concluding
as a matter...
...come from “property taxes, insurance premium taxes, assessments,
or user fees” levied or imposed with a special service district, or does
it authorize the County to use other sources of revenue?
(3) Is a superior court that is adjudicating a petition under
OCGA §
36-70-25.1 (d) (2) authorized to determine whether the
9
City’s usage rates charged to water customers in unincorporated
areas of the County are an illegal tax?
1....
...the County is
a determination the superior court is authorized to make on remand
after an evidentiary hearing and after considering the totality of the
circumstances, including geographic location and usage of the
roads.13 See OCGA §
36-70-25.1 (d) (2) (“The visiting or senior judge
shall conduct an evidentiary hearing or hearings as such judge
deems necessary and render a decision with regard to the disputed
items.”)....
...14 The Act provides that proceedings seeking resolution of SDS disputes
“shall be assigned to a judge . . . who is not a judge in the circuit in which the
county is located. The judge selected may also be a senior judge . . . who resides
in another circuit.” OCGA §
36-70-25.1 (d) (1) A).
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that funding for services provided primarily for the benefit of the
unincorporated area come from “property taxes, insurance premium
taxes, assessments, or user fees” levied o...
...assessments”
refer to any assessment that is not otherwise classified as a tax or
fee, and we reverse the Court of Appeals on this ground.
3. Finally, we consider whether the superior court, which is
conducting this proceeding under OCGA §
36-70-25.1 (d), has the
authority in such a proceeding to determine whether the City’s
usage rates charged to the Outside Customers constitute an illegal
tax and whether the City is permitted to transfer profits from the
excess fees collected from water service to Outside Customers into
its general fund....
...32
petition the superior court for resolution of items “remaining in
dispute.”
Here, after presumably following the procedure laid out in
OCGA §
36-70-24 (2) (B), the County filed its petition in this case
pursuant to OCGA §
36-70-25.1 (d) (2) to resolve the parties’
remaining disputes....
...These issues are clearly matters that must be addressed
in negotiating a new SDS Agreement for the provision of water and
sewage services, and thus disputes about such matters are
considered issues “remaining in dispute” under the Act. See OCGA
§§
36-70-23;
36-70-24;
36-70-25.1 (d) 2).
However, Count IV seeks a determination as to whether the
City’s water charges constitute an illegal tax on the Outside
Customers and whether the City could transfer profits collected
33
from those customers to its general fund. These are not items that
must be negotiated as part of an SDS Agreement, see OCGA §§ 36-
70-23 and
36-70-24 (2), and thus cannot be considered items
“remaining in dispute” under the statutory process outlined in
OCGA §
36-70-25.1 (d)....
...uested relief
falls outside the statutory dispute process contemplated by § 36-70-
25.1 (d) (2). See City of Union Point v. Greene,
303 Ga. 449, 459 (2)
(812 SE2d 278) (2018) (superior court “is not authorized to grant
relief pursuant to OCGA §
36-70-25.1 beyond the scope of the
remedies made available in that Code section”), disapproved of on
other grounds by City of College Park v....
