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Photo credit: Tingey Injury Law Firm
On Thursday, Dec. 29, the Hart County Board of Commissioners scheduled a called meeting for an executive session, which led to the unanimous decision by the board to formally write a letter of negotiation with the city council to “restart the process” of arbitration.
The board hired Kim Higginbotham of the Gordon Law Firm to negotiate the issues surrounding the board’s objection to the city’s proposed annexation of the 274 acres situated between Fairview Avenue and Liberty Hill Road, which developers Kenny Whitworth and Brandt Bentley plan to turn into a subdivision.
The motive for the county’s letter to the city derives from an announcement the board made on Dec. 8, 2022 about the state’s failure to process the county’s request for arbitration due to the state’s inability to assemble a panel of arbitrators to preside over the county and city’s dispute. The state’s inaction left city council with the ability to proceed with annexation, if it so chooses, unchallenged by legal objections from the county.
Hartwell city manager Jon Herschell indicated that council was “going to go forward with the annexation” due to the state’s failure to assemble a panel of arbiters, which Higginbotham rejected on the basis that “the city is not entitled to benefit from the [Georgia Department of Community Affairs’] failure” and that the status of the arbitration proceedings remains with an “unresolved valid objection.”
The letter that the board sent to city council threatens legal action if the city proceeds with the annexation without negotiating in “good faith throughout the annexation proceedings.”
“I can find no authority in the law that would allow the city to annex with an unresolved objection pending,” Higginbotham wrote. “Quite the opposite. [The statute] contemplates a resolution before annexation and goes on further to state, ‘a violation of the conditions set forth in this code section may be enforced thereafter at law or in equity’ until such conditions have expired as provided in this Code section.’ There is no expiration therein provided regarding a failure of the DCA, and in fact a failure is not contemplated by the law.”
The statute Higginbotham alludes to is Georgia Code 36-36-117 which reads, “If the annexation is completed after final resolution of any objection, whether by agreement of the parties, act of the panel, or court order as a result of an appeal, the municipal corporation shall not change the zoning, land use, or density of the annexed property for a period of one year unless such change is made in the service delivery agreement or comprehensive plan and adopted by the affected city and county and all required parties. Following the conclusion of the dispute, resolution process outlined in this article, the municipal corporation and an applicant for annexation may either accept the recommendations of the arbitration panel and proceed with the remaining annexation process or abandon the annexation proceeding. A violation of the conditions set forth in this Code section may be enforced thereafter at law or in equity until such conditions have expired as provided in this Code section.”
Higginbotham said county commissioners contend that they have a right to object to an annexation application and be heard through an arbitration and appeals process before annexation can be validly concluded. Higginbotham further contends that if council proceeds with the annexation that “court intervention” will ensue between the city and the county.
“Where there is a right without a current remedy, court intervention will be necessary should the city maintain its position that the city will annex the property in question on Jan. 9, 2022,” Higginbotham wrote. “The use of the term ‘thereafter’ in the statute clearly shows a legislative intent that premature annexation does not render the issue moot.”
The county contends that the best course of action for the city and county is to “restart the process” and allow the DCA to assemble a panel of arbiters in accordance with the law or proceed with a “less formal arbitration process” using fewer arbitrators. If the city rejects the proposals of the county and proceeds with annexation, then the county will proceed with litigation against the city.
“The county’s objection to the annexation should not be taken lightly as it was made after considerable research and discussion, and further, the vote by the board of commissioners to object was unanimous,” Higginbotham wrote. “The City of Hartwell’s continuation with the annexation process by attempting to unjustly circumvent or override the rights of Hart County will surely lead to major unnecessary discord and litigation between the two governmental entities.”