Senate Bill 138
By: Senators Dixon of the 45th, Still of the 48th, Cowsert of the 46th, Setzler of the 37th and
Anavitarte of the 31st
AS PASSED
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 31 of Title 36 of the Official Code of Georgia Annotated, relating to
incorporation of municipal corporations, so as to provide for the transition of certain services
related to newly incorporated municipalities in certain counties; to provide definitions; to
provide for the provision and cost allocation of police and law enforcement services for such
municipalities; to provide for the ownership, control, and maintenance of road rights of ways
and certain storm-water drainage infrastructure in such municipalities; to provide for the
transfer of certain fees and taxes collected by such county to such municipalities; to exempt
such counties from having to renegotiate service delivery strategy agreements and address
the provision of services to such municipalities in lieu of such renegotiations; to provide that
such municipalities shall not be obligated to pay certain election costs; to provide that a
county shall cover the legal expenses of such a newly incorporated municipality in the event
of legal challenges relating to or arising from the transition of such services; to provide for
a limited waiver of sovereign immunity; to amend Chapter 8 of Title 33 of the Official Code
of Georgia Annotated, relating to fees and taxes related to insurance, so as to revise
provisions related to population data related to newly incorporated municipalities and
municipal taxes on life insurance and other insurance companies; to revise provisions related
to when newly incorporated municipalities may be allocated taxes on life insurance and other
insurance companies; to provide for related matters; to provide an effective date; to repeal
conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Chapter 31 of Title 36 of the Official Code of Georgia Annotated, relating to incorporation
of municipal corporations, is amended by adding a new Code section to read as follows:
<ins>"36-31-11.2.
(a) As used in this Code section, the term:
(1) 'County' means a county with more than 15 municipalities wholly or partially located
within its boundaries.
(2) 'Qualified municipality' means any new municipality created by local Act which
becomes law on or after January 1, 2024.
(3) 'Transition period' means the period for the transition of governmental services from
a county to a qualified municipality as provided for by this chapter or the local Act
incorporating such qualified municipality.
(b) Notwithstanding any provision of law to the contrary:
(1)(A) When a qualified municipality is created within a county which has a special
district consisting of both the unincorporated area and certain incorporated areas of the
county for the provision of police or law enforcement services, the territory within the
new qualified municipality shall remain in such special district until the qualified
municipality notifies the county of its intention to leave such special district and assume
full responsibility for the provision of police and law enforcement services. In no event
shall a qualified municipality be required to provide more than one year's notice prior
to exercising the option provided for in this paragraph to leave such special district if
</ins>
<ins>the county police department is staffed at less than 95 percent of its authorized number
of certified peace officers.
(B)(i) During the period that a qualified municipality remains within a police or law
enforcement special district as provided for in subparagraph (A) of this paragraph, the
county shall continue to provide police and law enforcement services within the
boundaries of the qualified municipality in the same manner as other parts of the
special district.
(ii) In the event that, at the end of a fiscal year for the special district, the actual
special district ad valorem taxes collected within the boundaries of the qualified
municipality are greater than the actual costs incurred by the county in providing
police or law enforcement services within the boundaries of the qualified
municipality, within 60 days of the final day of such fiscal year, the county shall
deliver such excess funds to the qualified municipality.
(iii) For the purpose of complying with division (ii) of this subparagraph, the actual
costs of providing police or law enforcement services within the qualified
municipality shall be calculated based upon the actual time county police or law
enforcement officers spend providing police or law enforcement services within the
boundaries of the qualified municipality. The costs of such police and law
enforcement services shall include the costs of county police or law enforcement
officers:
(I) Patrolling and responding to dispatches or calls for service within the qualified
municipality; and
(II) Investigating crimes originating within the qualified municipality regardless of
the physical location where such investigative activities occur.
(iv) The fiscal authority for a special district for the provision of police or law
enforcement services shall have the duty of tracking all information and making all
calculations necessary to comply with the provisions of this paragraph.
</ins>
<ins>(v) Nothing in the paragraph shall affect or be affected by the provision of law
enforcement services by a county sheriff.
(2) A qualified municipality during the transition period shall assume ownership or
control over any road rights of way located within the area incorporated and shall have
the full power and authority to regulate the use of such rights of ways, including but not
limited to the granting of franchises and collection of franchise fees related to the use of
such rights of way. At the sole discretion of the qualified municipality, during any such
transition period, the county shall continue to perform maintenance and care for such road
rights of way in the same manner that the county maintains and cares for road rights of
way owned and controlled by the county in the unincorporated parts of the county.
(3) A qualified municipality shall not take control of, maintain, be responsible for, or
hold title to any infrastructure designed to temporarily retain 1,000 gallons or more of
storm water or any dams or detention ponds located within the boundaries of such
municipality that, prior to the creation of such municipality, were controlled, maintained,
or the responsibility of the county unless such municipality explicitly agrees otherwise.
Regardless of any transition period, the county shall continue to control, maintain, and
be responsible for such infrastructure in the same manner and degree as it did prior to the
incorporation of the qualified municipality until the qualified municipality and the county
agree otherwise.
(4)(A) In the event that:
(i) A qualified municipality succeeds to the control of local government services
pursuant to Article IX, Section II, Paragraph III(a) of the Constitution, this chapter,
or the local Act incorporating the qualified municipality during the middle of a
county's fiscal year;
(ii) The county, immediately prior to the qualified municipality succeed to the
provision of such service, levied or collected any tax, fee, or other charge within
</ins>
<ins>territory that is then or subsequently within the boundaries of the qualified
municipality; and
(iii) Such tax, fee, or charge is directly related to the provision of such service,
the county shall remit to the qualified municipality funds equal to a pro rata share of
such collections based upon the amount of time during such fiscal year that the county
verses the qualified municipality provide the service related to such tax, fee, or
collection.
(B) This paragraph shall apply, but not be limited, to alcoholic beverage fees and taxes,
business license fees, and occupation taxes collected within the qualified municipality,
and shall not affect the validity of any permits or licences issued by the county upon the
collection of such taxes, fees, or charges.
(5)(A) For the purposes of this paragraph, the term 'permit or other official approval
of activity' mean any permitting or application process related to licenses or permits
related, but not limited to, alcoholic beverages, building, community development, land
use and zoning, and regulated businesses or industries.
(B) In the event that a county, prior to a qualified municipality succeeding to the
control of a local government services pursuant to Article IX, Section II,
Paragraph III(a) of the Constitution, this chapter, or the local Act incorporating the
qualified municipality, accepts any application and fee related to the issuance of a
permit or other official approval of activity relating to a governmental service assumed
by the qualified municipality, and the related permitting or regulatory process is not
fully completed by the county by the time the qualified municipality succeeds to the
provision of such service, and such fees are not fully refunded to the applicant, the
county shall transfer and remit to the qualified municipality the following percentage
of such fees collected by the county:
(i) Ninety-five percent if no action beyond mere acceptance has been taken upon the
application;
</ins>
<ins>(ii) Seventy-five percent if the application has been processed but no required
inspections have occurred; or
(iii) Fifty percent if the application or regulatory process has been completed but final
approval or permits have not be issued.
(C) The county shall transfer all required funds to the qualified municipality within 30
days of being obligated to remit fees as required by subparagraph (B) of this paragraph.
(6) The incorporation of a qualified municipality shall not require the county or any
municipalities located within such county to renegotiate any service delivery strategy
agreement enacted pursuant to Chapter 72 of this title that is in place on the date that the
qualified municipality is incorporated. In lieu of such agreement being renegotiated
during any transition period, the qualified municipality may elect to have the county
provide within the boundaries of the qualified municipality any service or services that
the county is providing to either another municipality or the unincorporated areas of the
county pursuant to the then-current service delivery strategy agreement. The county shall
provide any such elected services to the qualified municipality under the same conditions
and in the same manner as it provides to the other municipality or the unincorporated area
of the county. Such elections shall occur within six months of either the effective date
of this Code section or the date of incorporation, whichever is later.
(7) A qualified municipality shall have no obligation to repay the costs of any special
election conducted either to:
(A) Present a question to the voters on the incorporation of such municipality; or
(B) Elect the initial governing authority of such municipality.
(c)(1) In the event that:
(A) A county fails to comply with the transition provisions provided for in this Code
section, a qualified municipality is forced to seek judicial remedies for such failure to
comply, and the qualified municipality is ultimately successful in such legal action; or
</ins>
<ins>(B) A qualified municipality is subject to a legal action initiated by a third party
seeking to enforce its rights as a result of the qualified municipality's failure to meet a
duty or obligation provided by law, and the qualified municipality's failure to meet such
duty or obligation was the direct result of actions taken by a county relating to the
transition of services between the county and qualified municipality,
then the county shall be responsible for reimbursing the qualified municipality for all
legal expenses incurred by such qualified municipality in prosecuting or defending such
action as well as any damages paid by the qualified municipality to such injured third
party. The sovereign immunity of the county is waived to the extent necessary to
effectuate this paragraph.
(2) In the event that a county is found by a court of competent jurisdiction to have
violated any duty or obligation arising from this chapter, the sovereign immunity of such
county and the governmental immunity of all local officials of such local governing body
is waived in all matters arising during a period of one year from the date of such judicial
finding."
</ins> SECTION 2.
Chapter 8 of Title 33 of the Official Code of Georgia Annotated, relating to fees and taxes
related to insurance, is amended by revising subsection (h) of Code Section 33-8-8.1, relating
to county and municipal corporation taxes on life insurance companies, and by adding a new
subsection to read as follows:
"(h) For purposes of this Code section, population shall be measured by the United States
decennial census of 1990 or any future such census plus any corrections or revisions
contained in official statements by the United States Bureau of the Census made prior to
the first day of September immediately preceding the distribution of the proceeds of such
taxes by the Commissioner and any additional official census data received by the
Commissioner from the United States Bureau of the Census or its successor agency
pertaining to any newly incorporated municipality. <ins>Any such official census data relating
to any newly incorporated municipality shall be backdated to the initial filing provided for
in subsection (e) of this Code section; provided, however, in the event that such census data
is insufficient, the Commissioner shall use the census tract data from the charter of the
newly incorporated municipality in lieu of the official census data.</ins> Such corrections,
revisions, or additional data shall be certified to the Commissioner by the Office of
Planning and Budget on or before August 31 of each year.
<ins>(i) Notwithstanding any other provisions of this Code section to the contrary, in the event
a new municipality is incorporated in a given year by the approval of a referendum of the
electors of such municipality, and within 18 months of such referendum taking place such
municipality has completed all steps necessary to impose a tax as provided for in this Code
section, and the proceeds of such tax have not already been allocated by the Commissioner,
such municipality shall be entitled to be considered a municipality pursuant to
paragraph (2) of subsection (d) of this Code section and shall be allocated taxes collected
pursuant to this Code section for the year such referendum took place."
</ins> SECTION 3.
Said chapter is further amended by revising subsection (c) and adding a new subsection to
Code Section 33-8-8.2, relating to county and municipal corporation taxes on other than life
insurance companies, as follows:
<ins>"(b.1) Notwithstanding any other provisions of this Code section to the contrary, in the
event a new municipality is incorporated in a given year by the approval of a referendum
of the electors of such municipality, and within 18 months of such referendum taking place
such municipality has completed all steps necessary to impose a tax as provided for in this
Code section, and the proceeds of such tax have not already been allocated by the
Commissioner, such municipality shall be entitled to be considered a municipality pursuant
</ins>
<ins>to this Code section to be allocated taxes collected pursuant to this Code section for the
year such referendum took place.
</ins> (c) For purposes of this Code section, population shall be measured by the United States
decennial census of 1990 or any future such census plus any corrections or revisions
contained in official statements by the United States Bureau of the Census made prior to
the first day of September immediately preceding the distribution of the proceeds of such
taxes by the Commissioner and any additional official census data received by the
Commissioner from the United States Bureau of the Census or its successor agency
pertaining to any newly incorporated municipality. <ins>Any such official census data relating
to any newly incorporated municipality shall be backdated to the initial filing provided for
in paragraph (1) of subsection (b) of this Code section; provided, however, in the event that
such census data is insufficient, the Commissioner shall use the census tract data from the
charter of the newly incorporated municipality in lieu of the official census data.</ins> Such
corrections, revisions, or additional data shall be certified to the Commissioner by the
Office of Planning and Budget on or before August 31 of each year."
SECTION 4.
This Act shall become effective upon its approval by the Governor or upon its becoming law
without such approval.
SECTION 5.
All laws and parts of laws in conflict with this Act are repealed.