HB295: HB295 Local government; procedures for real property owners to make claims for compensation for loss of property value or expenses incurred; provisions

26 HB 295/AP House Bill 295 (AS PASSED HOUSE AND SENATE) By: Representatives Gaines of the 120th, Leverett of the 123rd, Crowe of the 118th, Jones of the 47th, Anderson of the 10th, and others A BILL TO BE ENTITLED AN ACT To amend Chapter 60 of Title 36 of the Official Code of Georgia Annotated, relating to1 general provisions applicable to counties and municipal corpora tions, so as to provide2 procedures for real property owners to make claims for compensa tion from local3 governments for loss of property value or expenses incurred due to the local government's4 failure to comply with or nonenforcement of certain laws, ordinances, and resolutions or due5 to the local government maintaining a public nuisance; to provide for definitions; to provide6 judicial remedies if such claims are rejected or not acted upon by local governments; to7 suspend applicable statutes of limitations while such claims ar e being considered by local8 governments; to provide for exceptions and limitations; to waiv e sovereign immunity; to9 amend Chapter 80 of Title 36 of the Official Code of Georgia Annotated, relating to general10 provisions applicable to counties, municipal corporations, and other governmental entities,11 so as to authorize mandamus actions regarding local governments and their officials and12 employees for a violation of the prohibition on immigration san ctuary policies; to amend13 Code Section 42-1-11.5 of the Official Code of Georgia Annotated, relating to compliance14 with immigration detainer notices, so as to authorize mandamus actions; to amend Chapter15 18 of Title 50 of the Official Code of Georgia Annotated, relat ing to state printing and16 documents, so as to provide for public disclosure of certain documents; to provide for related17 matters; to repeal conflicting laws; and for other purposes.18 H. B. 295 - 1 - 26 HB 295/AP BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:19 SECTION 1.20 Chapter 60 of Title 36 of the Official Code of Georgia Annotate d, relating to general21 provisions applicable to counties and municipal corporations, is amended by adding a new22 Code section to read as follows:23 "36-60-34.24 (a) As used in this Code section, the term:25 (1) 'Fair market value' means the probable sales price that wo uld be agreed upon for a26 parcel of real property by a buyer and seller on the open market with a reasonable amount27 of time for the parcel to be listed for sale or otherwise offer ed for sale on the open28 market, with the buyer having knowledge of all the uses and purposes to which the parcel29 is adapted and for which it is capable.30 (2) 'Local government' means the governing authority of a coun ty, municipality, or31 consolidated government.32 (3) 'Owner' means the holder of either fee simple title or a leasehold to a parcel of real33 property; provided, however, that, in the event that a leaseholder to a particular parcel of34 property filed a claim pursuant to this Code section, the holder of the underlying fee title35 in the same parcel shall not also be qualified as an owner of such parcel under this Code36 section.37 (4) 'Policy, pattern, or practice' means a pervasive, systemic , or organized standard38 operating procedure of a generalized nature, but shall not include accidental, isolated, or39 sporadic acts.40 (b) In addition to any other remedial procedures provided by law, and notwithstanding any41 provisions of Chapters 11, 33, and 92 of this title or Chapter 21 of Title 50 to the contrary,42 the owner of a parcel of real property may submit a written claim for compensation to the43 local government in which such real property is located if:44 H. B. 295 - 2 - 26 HB 295/AP (1) The local government adopts and enforces a policy, pattern, or practice of:45 (A) Failing to comply with Code Section 36-80-23, relating to prohibitions on46 immigration sanctuary policies, or Chapter 36 of Title 50, rela ting to verification of47 lawful presence within the Unites States; or48 (B) Declining to enforce existing laws, ordinances, or other legislation prohibiting:49 (i) Illegal public camping;50 (ii) Loitering;51 (iii) Obstructing public thoroughfares;52 (iv) Panhandling;53 (v) Possession or use of controlled substances in violation of Chapter 13 of Title 16;54 (vi) Shoplifting; or55 (vii) Public intoxication or public urination while trespassing on private property; or56 (2) The local government maintains a public nuisance and:57 (A) The owner incurs documented expenses to mitigate the effec ts of such policy,58 pattern, practice, or public nuisance on the owner's real property; or59 (B) The fair market value of the owner's real property is redu ced by such policy,60 pattern, practice, or public nuisance.61 (c) The amount of compensation to which the owner is entitled pursuant to this Code62 section shall be, at the owner's election, equal to:63 (1) The documented expenses incurred by the owner that were reasonably necessary, at64 the discretion of the owner, to mitigate the effects of the pol icy, pattern, practice, or65 maintenance of a public nuisance to the owner's real property; or66 (2) The reduction in fair market value of the property resulti ng from the local67 government's policy, pattern, practice, or maintenance of a public nuisance.68 (d)(1) Except as otherwise provided in this Code section, clai ms for compensation69 pursuant to this Code section shall be administered in accordan ce with Code70 Section 48-5-380. A claim made pursuant to this Code section shall be in writing, shall71 H. B. 295 - 3 - 26 HB 295/AP state the measure of compensation being elected by the owner, and shall state the policy,72 pattern, practice, or public nuisance which caused:73 (A) The owner to incur expenses reasonably necessary to mitigate the effects of such74 policy, pattern, practice, or public nuisance; or75 (B) The reduction in fair market value of the property.76 A claim shall also state and itemize the monetary value of suc h incurred expenses or77 reduction in fair market value and describe the specific conseq uences of the local78 government's policy, pattern, practice, or public nuisance that form the factual basis of79 the owner's claim.80 (2) A claim shall be presented to a local government within th e tax year in which the81 events occurred upon which the claim is predicated.82 (3) Upon the presentation of a claim pursuant to this Code sec tion, the governing83 authority of the local government shall consider and act upon the claim within 30 days84 from the presentation.85 (4) If the local government accepts the claim, it shall pay the compensation established86 pursuant to this Code section to the owner within 30 days of accepting the claim and the87 claim shall be satisfied.88 (5)(A) If the local government rejects or does not respond to the claim within 30 days89 of its presentation, the owner may bring an action against the local government in the90 superior court having jurisdiction over such local government.91 (B) A claim filed pursuant to this Code section that is rejected or not responded to by92 a local government shall act as a notice of claim or ante litem notice otherwise required93 by law, and no additional notices provided for by Chapters 11, 33, and 92 of this title94 or Chapter 21 of Title 50 shall be required, regardless of whet her or not the owner95 pursues remedies pursuant to this Code section or as otherwise authorized by law.96 (C) If an action is brought against a local government pursuant to this paragraph, the97 local government shall bear the burden of proof in demonstratin g that its actions are98 H. B. 295 - 4 - 26 HB 295/AP lawful, that the amount of the claim is unreasonable, or that the local government took99 reasonable steps to mitigate the alleged public nuisance.100 (D) In an action brought pursuant to this paragraph:101 (i) The owner shall not be liable to the local government for attorney fees or costs;102 and103 (ii) A prevailing owner shall be awarded reasonable attorney fees and costs.104 (e) The compensation paid by a local government pursuant to this Code section shall:105 (1) Be in lieu of any other claims or causes of action the owner may have for monetary106 damages from the local government arising from the policy, patt ern, practice, or107 maintenance of a public nuisance giving rise to the claim made pursuant to this Code108 section that occur prior to the date such compensation is paid; and109 (2) Not exceed the amount of ad valorem property taxes paid on such owner's parcel and110 levied by such local government in the prior tax year.111 (f) The running of any applicable statute of limitations shall be suspended during the time112 that a claim presented pursuant to this Code section is pending before such local113 government without action on their part.114 (g) An owner may submit a claim pursuant this Code section relating to a particular parcel115 of real property once per tax year. If a local government deni es a claim for being116 administratively incomplete, the owner shall be permitted to revise and resubmit the claim117 to ensure the claim is administratively complete.118 (h) If the policy, pattern, practice, or public nuisance remai ns in place after an owner119 submits a claim pursuant to this Code section, and the owner continues to suffer monetary120 damages as a result of such continuance, the owner may file subsequent claims pursuant121 to this Code section in subsequent tax years.122 (i) Nothing in this Code section shall prohibit a local govern ment and an owner from123 entering into a settlement agreement for an amount less than the compensation otherwise124 requested by a claim filed pursuant to this Code section.125 H. B. 295 - 5 - 26 HB 295/AP (j) In the event that an owner has filed an unsuccessful admin istratively complete claim126 pursuant to this Code section for the same parcel of property t hat did not result in the127 awarding of any compensation, and such owner files subsequent administratively complete128 claims for the same parcel of property, the local government shall recover from such owner129 the costs of litigation and reasonable attorney's fees incurred in defending any unsuccessful130 claim filed by such owner.131 (k) This Code section shall not apply to:132 (1) Decisions by local government officials exercising prosecu torial discretion to not133 prosecute alleged offenders if such discretion is exercised on a case-by-case basis and the134 justification for each such decision is published on a monthly basis by the local135 government;136 (2) Acts of executive clemency;137 (3) Acts or omission mandated by federal or state law; and138 (4) Actions taken by district attorneys, solicitors-general, or other elected county officers139 not subject to the control of the governing authority of a loca l government or the140 employees of such officers.141 (l) The General Assembly hereby waives the sovereign immunity of local governments to142 the extent necessary to effectuate this Code section."143 SECTION 2.144 Chapter 80 of Title 36 of the Official Code of Georgia Annotate d, relating to general145 provisions applicable to counties, municipal corporations, and other governmental entities,146 is amended by adding a new subsection to Code Section 36-80-23, relating to prohibition on147 immigration sanctuary policies by local governmental entities, certification of compliance,148 and punishment, to read as follows:149 H. B. 295 - 6 - 26 HB 295/AP "(f) In the event that a local governing body acts in violation of this Code section, any150 individual aggrieved by such violation may petition the superior court for mandamus relief,151 and such petition shall receive priority on such court's docket."152 SECTION 3.153 Code Section 42-1-11.5 of the Official Code of Georgia Annotated, relating to compliance154 with immigration detainer notices, is amended by revising said Code section as follows:155 "42-1-11.5.156 (a) As used in this Code section, the term:157 (1) 'Custodial authority' means the commissioner if a person is in physical custody at a158 penal institution, the sheriff if a person is in physical custody at a county jail, the warden159 if a person is in physical custody at county correctional institution, and the chief of police160 if a person is in physical custody at a municipal detention facility.161 (2) 'Immigration detainer notice' means documentation issued by the federal government162 requesting that a custodial authority maintain temporary custod y of an illegal alien as163 such term is defined in Code Section 42-4-14, including a United States Department of164 Homeland Security Form I-247 document or a similar successor form.165 (b) Any custodial authority who has custody of a person who is subject to an immigration166 detainer notice shall:167 (1) Comply with, honor, and fulfill any request made in the immigration detainer notice;168 and169 (2) Inform the person identified in the immigration detainer n otice that the person is170 being held pursuant to such notice.171 (c) In the event that a custodial authority acts in violation of this Code section, any 172 individual aggrieved by such violation may petition the superior court for mandamus relief,173 and such petition shall receive priority on such court's docket."174 H. B. 295 - 7 - 26 HB 295/AP SECTION 4.175 All laws and parts of laws in conflict with this Act are repealed.176 H. B. 295 - 8 -