HB1166: HB1166 Local government; zoning decisions shall not affect or be required for certain residential dwellings of 400 square feet or fewer; provide

26 LC 62 0527S The Senate Committee on State and Local Governmental Operations - General offered the following substitute to HB 1166: A BILL TO BE ENTITLED AN ACT To amend Chapter 30 of Title 36 of the Official Code of Georgia Annotated, relating to1 general provisions regarding provisions applicable to municipal corporations only, so as to2 provide for conclusive evidence of termination or continuation of certain municipal3 corporations; to provide for a review commission for distressed municipalities; to provide4 for investigation of distressed municipalities; to provide for reports by a review commission;5 to provide for petition to appoint a receiver; to provide for c ertain hearings; to provide for6 the appointment of a receiver; to provide for the qualification s, powers, and duties of the7 receiver; to provide for certain restrictions on receivers; to provide for a recovery plan; to8 provide for extensions to a recovery plan; to provide for automatic end of a receivership; to9 provide for certain emergency assistance; to provide for a rost er of certain entities and10 individuals; to provide for a definition; to provide for related matters; to repeal conflicting11 laws; and for other purposes.12 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:13 - 1 - 26 LC 62 0527S SECTION 1.14 Chapter 30 of Title 36 of the Official Code of Georgia Annotate d, relating to general15 provisions regarding provisions applicable to municipal corpora tions only, is amended by16 revising Code Section 36-30-7.1, relating to inactive municipalities, as follows:17 "36-30-7.1.18 (a) On and after July 1, 1995, any Any municipal corporation in this state shall be deemed19 an inactive municipality and its charter shall be repealed by o peration of law if the20 municipal corporation fails to meet any of the minimum standards provided in subsection21 (b) of this Code section for determining an active municipality.22 (b) An active municipality is any incorporated municipality in this state the governing23 body of which meets each of the following minimum standards:24 (1) Provides at least three of the following services, either directly or by contract:25 (A) Law enforcement;26 (B) Fire protection (which may be furnished by a volunteer fire force) and fire safety;27 (C) Road and street construction or maintenance;28 (D) Solid waste management;29 (E) Water supply or distribution or both;30 (F) Waste-water treatment;31 (G) Storm-water collection and disposal;32 (H) Electric or gas utility services;33 (I) Enforcement of building, housing, plumbing, and electrical codes and other similar34 codes;35 (J) Planning and zoning; and36 (K) Recreational facilities;37 (2) Holds at least six regular, monthly or bimonthly, officially recorded public meetings38 within the 12 months next preceding the execution of the certif icate required by39 subsection (c) of this Code section; and40 - 2 - 26 LC 62 0527S (3) Qualifies for and holds a regular municipal election as provided by law, other than41 a municipality which has a governing authority comprised composed of commissioners42 or other members who are appointed by a judge of the superior court.43 (c) Not later than July 1, 1994, each municipal corporation in this state shall file with the44 Department of Community Affairs either:45 (1) A certification from the governing authority that the municipal corporation meets the46 minimum standards for determining an active municipality enumerated in subsection (b)47 of this Code section; or48 (2) A certification from the governing authority that the municipal corporation does not49 meet the minimum standards for determining an active municipali ty enumerated in50 subsection (b) of this Code section, including a statement that the governing authority51 recognizes that its legal existence will under the provisions o f this Code section be52 terminated as of July 1, 1995.53 (d) After October 15, 1994, the Department of Community Affair s shall transmit to the54 governing authority of each municipal corporation in the state either:55 (1) A statement confirming that the Department of Community Affairs has received from56 the municipal corporation the filing required by subsection (c) of this Code section,57 including a statement of which type of filing was received from that municipal58 corporation; or59 (2) A statement that the Department of Community Affairs has n ot received from the60 municipal corporation the filing required by subsection (c) of this Code section, including61 a statement that the municipal corporation's legal existence will be terminated as of July62 1, 1995, unless such filing is received by December 31, 1994.63 (e) A municipal corporation which does not timely make the filing required by subsection64 (c) of this Code section shall have a grace period until December 31, 1994, to make such65 filing. However, if such filing is not made by December 31, 199 4, the legal status of the66 municipal corporation shall be the same as that of a municipal corporation which does not67 - 3 - 26 LC 62 0527S meet the minimum standards for determining an active municipali ty enumerated in68 subsection (b) of this Code section; and such municipal corpora tion shall cease to have69 legal existence as of July 1, 1995.70 (f) As quickly as practicable after December 31, 1994, the Dep artment of Community71 Affairs shall compile a listing of all municipal corporations i n this state indicating those72 whose legal existence will be terminated as of July 1, 1995, an d those whose legal73 existence will not be so terminated.74 (c) A certified copy of such listing shall be the listing of all municipal corporations whose75 existence was terminated as of July 1, 1995, or whose legal exi stence had not been76 terminated on such date, which had been provided to the Secretary of State and shall be77 conclusive evidence, acceptable in any court and recordable in any public records, of the78 termination or continuation of existence of a municipal corporation. The Secretary of State79 shall transmit such a certified copy of the listing to the legislative counsel for publication80 in the Georgia Laws for the year 1995, and all All courts of this state may take judicial81 notice of the listing so published.82 (g)(d) Upon the termination of existence of a municipal corporation as provided for in this83 Code section, the existence of any local authority created by o r for such municipal84 corporation shall likewise terminate on the same date. Upon the termination of any85 municipal corporation or local authority under this Code section, all assets, property, and86 legal rights and obligations of the municipal corporation or local authority shall devolve87 by operation of law upon the governing authority of the county in which the legal situs of88 the municipal corporation or local authority was located; provi ded, however, that this89 devolution of rights and obligations shall in no manner obligat e the county to provide90 continued employment for any employee of the abolished municipal corporation or local91 authority. In the case of legal indebtedness of a municipal cor poration or local authority92 devolving upon a county under this Code section, the county shall be authorized but not93 required to levy a special district tax, fee, or assessment within the formerly incorporated94 - 4 - 26 LC 62 0527S territory (or a portion thereof corresponding to any special di s t r i c t f o r w h i c h t h e95 indebtedness was incurred) for the purpose of retiring all or a portion of such indebtedness.96 Assets devolved to the county governing authority pursuant to this Code section which are97 deemed to be excess by the county shall be used to retire any i ndebtedness of the98 terminated municipal corporation or local authority. Property d evolved to the county99 governing authority pursuant to this Code section which is deemed to be unnecessary by100 the county shall be sold and the proceeds from such sale used to retire any indebtedness of101 the terminated municipal corporation or local authority.102 (h)(e)(1) Upon the termination of existence of a municipal corporation as provided in this103 Code section, the geographic area that was contained in the bou ndaries of the former104 municipal corporation may continue to be identified under the same name and style as the105 former municipal corporation, and for such purpose signs and other appropriate insignia106 may be erected for such identification.107 (2) The Department of Community Affairs shall establish a desi gnation of 'historic108 township' for communities created on or before 1900, provide fo r the establishment of109 unincorporated town councils, provide a procedure for converting such municipalities to110 townships, and for registration of such.111 (i) At the session of the General Assembly held in the year 1996 only, a new charter may112 be granted to a municipal corporation which ceased to exist und er the provisions of this113 Code section solely because of a failure to make the required filing with the Department114 of Community Affairs (not including any case where the municipal corporation failed to115 meet the minimum standards of an active municipality enumerated in subsection (b) of this116 Code section), without regard to the minimum standards for inco rporation set out in117 Chapter 31 of this title. In such a case the local law granting the new charter shall have118 attached thereto, in lieu of the certificate otherwise required by Code Section 36-31-5, a119 certificate by the author of the bill stating that the requirements of this subsection are met120 by the municipal corporation being reincorporated. In any such case assets and property121 - 5 - 26 LC 62 0527S and rights and obligations which devolved upon the county shall be retransferred from the122 county back to the municipal corporation.123 (j)(f) In any case in which the legal dissolution of a municipal cor poration has not been124 certified under the provisions of subsection (f) (c) of this Code section but the municipal125 corporation does not in fact meet the minimum standards for det ermining an active126 municipality enumerated in subsection (b) of this Code section, any citizen of the127 municipal corporation or the county in which the legal situs of the municipal corporation128 is located may bring at any time on or after July 1, 1995, a declaratory judgment action for129 a declaration of the dissolution of the muni cipal corporation. Any such action shall be130 brought in the superior court of the county wherein the legal s itus of the municipal131 corporation is located. If a judgment is entered declaring the dissolution of the municipal132 corporation, the court shall file a certified copy of the judgment with the Secretary of State133 and the legislative counsel. A copy of such judgment shall be p ublished in the next134 publication of the annual session laws with the same status and effect provided for in135 subsection (f) (c) of this Code section; and a certified copy of the judgment from the court136 or the Secretary of State shall have the same status and effect as described in subsection (f)137 (c) of this Code section."138 SECTION 2.139 Said chapter is further amended by adding a new Code section to read as follows:140 "36-30-7.2.141 (a) As used in this Code section, the term 'distressed municipality' means any municipal142 corporation in this state, or an authority controlled directly or indirectly by such municipal143 corporation, which failed to meet any one of the minimum standards specified for an active144 municipality pursuant to subsection (b) of Code Section 36-30-7.1 or has met at least two145 of the following criteria:146 - 6 - 26 LC 62 0527S (1) The municipality has failed to comply with the requirements of Code Section 36-81-7147 for two consecutive years;148 (2) The municipality has failed to prepare and approve an annu al budget for two149 consecutive fiscal years pursuant to Code Section 36-81-5;150 (3) The municipality has failed to make required payments to judgment creditors for 90151 days beyond the date of the recording of the judgment;152 (4) The municipality has contracted for one or more of the ser vices listed in153 subsection (1) of paragraph (b) of Code Section 36-30-7.1, owes the contractor or other154 governing authority payments in excess of 12 months of contracted service price, and has155 failed to reach a written agreement or judicial disposition wit h such contractor or156 governing authority on repayment of such outstanding balance;157 (5) The municipality's incurred debt exceeds the limits allowed by Article IX, Section V,158 Paragraph I of the Georgia Constitution;159 (6) The municipality has defaulted in payment of principal or interest on any of its bonds160 or notes or in payment of rentals due any authority;161 (7) The municipality has been unable to pay employees for 30 days;162 (8) The municipality has failed to forward taxes withheld on the income of employees163 or has failed to transfer employer or employee contributions fo r social security for a164 period of at least 30 days; or165 (9) The municipality has accumulated and operated a deficit equal to 5 percent or more166 of its revenues for two consecutive fiscal years without adequate cash reserves.167 (b)(1) The Governor shall appoint a review commission upon written request from the168 majority of the Senators and Representatives whose districts include all or a portion of169 the geographical area of a municipal corporation alleging that the municipal corporation170 is a distressed municipality. Such request shall include the specific reasons for alleging171 such municipal corporation is a distressed municipality. The r eview commission shall172 be composed of the commissioner of community affairs and two municipal officials who173 - 7 - 26 LC 62 0527S are not located within the same county or counties as the alleged distressed municipality. 174 The members of the review commission shall receive no compensation for their services,175 but shall be reimbursed for any expenses incurred in connection with the investigation. 176 The funds necessary to conduct the investigation shall come from funds appropriated to177 the executive branch of government.178 (2)(A) The review commission shall make a written report of it s findings to the179 Governor within 14 days of appointment; provided, however, that the Governor may180 grant a review commission additional time to report. If the review commission finds181 that the municipal corporation is a distressed municipality, th en the Governor shall182 review such findings and may direct the Attorney General to fil e a petition in the183 superior court of the judicial circuit of the alleged distresse d municipality. Such184 petition shall name an individual to be appointed, and the superior court shall have no185 authority to appoint anyone other than the individual named in the petition.186 (B)(i) The receiver shall have a minimum of five years of experience in local legal,187 management, or budgetary matters and be a resident of this stat e. The receiver's188 compensation and reimbursement for actual and necessary expenses shall be paid by189 this state and compensation shall be established by the Attorney General; provided,190 however, that the Attorney General may seek and shall be entitled to reimbursement191 of any such expenses from the distressed municipality within five years of the end of192 the receivership.193 (ii) A receiver appointed pursuant to this subsection shall not seek or hold a position194 as an elected or appointed public official within this state or as a political party officer195 during the term of the receivership and within one year of the receivership ending. 196 The receiver shall also not r eceive any compensation, fee, or c ommission from the197 distressed municipality, or receive any fee or commission from the sale or lease of198 property or other financial transaction involving the distressed municipality.199 - 8 - 26 LC 62 0527S (iii) A receiver shall not be personally liable for any obliga tions of the distressed200 municipality and shall enjoy sovereign immunity and official immunity and remain201 immune from any suit except as the General Assembly shall waive such immunities.202 (C) The Attorney General shall serve the petition appointing a receiver upon the203 governing body of the distressed municipality and the chief exe cutive officer of the204 distressed municipality. Additionally, the Attorney General shall publish notice of the205 filing of the petition in the legal organ of the county which i s the legal situs of the206 municipality or in a newspaper having a general circulation in such county at least207 equal to that of the legal organ at least seven days before any hearing on such petition.208 (c) The superior court shall conduct a hearing on the petition within 30 days of the209 Attorney General filing such petition. The court shall issue an order on the petition within210 60 days of the filing of the petition, laying out findings of f act and a determination of211 whether a municipal corporation is a distressed municipality.212 (d) If the superior court grants the petition and finds that t he municipal corporation is a213 distressed municipality, such court's order shall:214 (1) Set forth findings;215 (2) Declare the distressed municipality to be in receivership;216 (3) Appoint a receiver for a period not to exceed two years; p rovided, however, the217 Attorney General may request additional two-year extensions if further implementation218 of a recovery plan is necessary to bring the municipality out of distress; and219 (4) Direct the receiver to develop a recovery plan pursuant to subsection (e) of this Code220 section within 30 days and submit such plan to the court, the A ttorney General, the221 governing body of the distressed municipality, and if applicabl e, the chief executive222 officer of the distressed municipality.223 (e)(1) The recovery plan developed by the receiver shall include:224 (A) The continued provision of vital and necessary services;225 - 9 - 26 LC 62 0527S (B) Payment of the financial obligations of the distressed municipality, including, but226 not limited to, debt obligations, municipal securities, lease r ental obligation, legal227 obligations, and consensual modifications of existing obligations; and228 (C) Timely deposit of required payments to the pension fund in which the distressed229 municipality participates.230 (2) The recovery plan may provide for:231 (A) The sale, lease, conveyance, assignment, or other use or disposition of the assets232 of the distressed municipality or authority;233 (B) The approval, modification, rejection, renegotiation, or termination of contracts or234 agreement of the distressed municipality, except to the extent prohibited by the235 Constitutions of Georgia and of the United States;236 (C) The execution of new contracts or agreements; and237 (D) Other information the receiver deems appropriate.238 (3) The recovery plan shall not and the receiver shall not be authorized to:239 (A) Unilaterally adopt any form of taxation beyond what is authorized by law or the240 Constitution of Georgia;241 (B) Unilaterally abrogate, alter, or otherwise interfere with a lien, charge, covenant, or242 relative priority that is held by a holder of a debt obligation of the distressed243 municipality and granted by contract, law, rule, or regulation governing debt244 obligations;245 (C) Unilaterally impair or modify existing bonds, notes, municipal securities, or other246 lawful contractual or legal obligations of the distressed municipality; or247 (D) Authorize the use of the proceeds of the sale, lease, conv eyance, assignment, or248 other use or disposition of the assets of the distressed munici pality without first249 applying such proceeds to the payment of outstanding debt oblig ations owed by the250 distressed municipality, subject to any lien, charge, covenant, restriction, contract, law,251 rule, or regulation that encumbers or is otherwise applicable to the assets.252 - 10 - 26 LC 62 0527S (f)(1) The court shall conduct a hearing on the recovery plan within 30 days of receiving253 such plan from the receiver. The court shall confirm the recovery plan within 60 days of254 receipt of such plan unless it finds by clear and convincing ev idence that the plan is255 arbitrary, capricious, or wholly inadequate to alleviate the fi scal emergency in the256 distressed municipality.257 (2) The receiver shall notify the court of any modification to the recovery plan. The258 court may conduct a hearing on the modification plan within 30 days of receiving such259 plan. The court shall confirm the modification of the recovery plan within 60 days of260 receiving such plan unless it finds by clear and convincing evi dence that the plan is261 arbitrary, capricious, or wholly inadequate to alleviate the fi scal emergency in the262 distressed municipality.263 (g) Notwithstanding any other provision of law to the contrary, the receiver shall have the264 following powers and duties:265 (1) To require the distressed municipality or authority to tak e actions necessary to266 implement the recovery plan;267 (2) To modify the recovery plan as necessary to achieve the fi nancial stability of the268 distressed municipality;269 (3) To require the distressed municipality to negotiate interg overnmental agreements270 between itself and another political subdivision of this state to eliminate and avoid271 deficits, maintain sound budgetary practices, and avoid interru ption of municipal272 services;273 (4) To submit quarterly reports to the governing body and, if applicable, the chief274 executive officer of the distressed municipality and to the Attorney General. Such reports275 shall be posted on a publicly accessible website maintained by the distressed276 municipality;277 (5) To require the distressed municipality to cause the sale, lease, conveyance,278 assignment, or other use or disposition of the distressed municipality's assets;279 - 11 - 26 LC 62 0527S (6) To approve, disapprove, modify, reject, terminate, or rene gotiate contracts and280 agreements with the distressed municipality except to the exten t prohibited by the281 Constitutions of Georgia and of the United States;282 (7) To direct the distressed municipality to take any other ac tion to implement the283 recovery plan;284 (8) To attend open and closed meetings of the governing body o f the distressed285 municipality and make reports to the public on implementation of such plan;286 (9) To employ financial or legal experts deemed necessary to develop and implement the287 recovery plan; provided, however, that notwithstanding any law to the contrary, the288 employment of such experts shall not be subject to any contractual competitive bidding289 procedures;290 ( 1 0 ) T o m a k e a r e c o m m e n d a t i o n t o t h e A t t o r n e y G e n e r a l t h a t t h e municipality be291 disincorporated; and292 (11) To make a recommendation to the Attorney General and the court that the293 municipality be removed from receivership.294 (h)(1) A receiver appointed pursuant to this Code section shall have the power to issue295 orders to elected or appointed officials of the distressed municipality to implement any296 provision of the recovery plan and to refrain from taking any a ction which would297 interfere with the powers granted to the receiver or the goals of the recovery plan. Any298 such order shall be enforceable by bringing an action pursuant to Article 2 of Chapter 6299 of Title 9; provided, however, that the court shall grant or deny the relief from such action300 within 14 days of the filing of any such action.301 (2) Any elected or appointed official or other interested party of a distressed municipality302 may petition the court to enjoin any action of the receiver that is contrary to this Code303 section.304 (i) Except as otherwise provided for in this Code section, the receivership shall expire two305 years after the appointment of the receiver.306 - 12 - 26 LC 62 0527S (j) Notwithstanding any other provision of law to the contrary, if the Governor determines307 t h a t t h e n e e d f o r s t a t e a s s i s t a n c e f o r , o v e r s i g h t o f , o r i n t e r vention for a distressed308 municipality is of an emergency nature such that a delay in act ion would cause material309 harm to the provision of public services or to the financial in terests of this state, the310 Governor may direct the Department of Administrative Services to authorize an emergency311 procurement pursuant to Code Section 50-5-71, or to utilize existing state-wide contracts312 or prequalified vender rosters established pursuant to subsection (k) of this Code section313 to secure necessary staffing or professional services in an expeditious manner. Any such314 emergency procurement shall be reported to the chairpersons of the Senate Finance315 Committee and the House Committee on Ways and Means within ten business days.316 (k)(1) The Department of Administrative Services, in consultation with the state auditor317 and the Department of Community Affairs, shall establish and ma intain a master318 state-wide contract roster for local government turnaround specialists pursuant to Code319 Section 50-5-57.320 (2) To qualify for inclusion on such roster, a firm or individual shall demonstrate;321 (A) Experience in providing fiscal recovery or financial advis ory services to322 governmental entities of comparable complexity;323 (B) Professional credentials in governmental accounting, publi c administration, or324 municipal finance, including, but not limited to, certified pub lic accountants or325 equivalent licensure or certification; and326 (C) No disqualifying conflicts of interest with this state or any of its political327 subdivisions.328 (3) The Department of Administrative Services shall conduct a competitive solicitation329 to establish the initial roster and shall update such roster no less frequently than every330 three years. The Governor may utilize the roster to procure sp ecialist services for any331 local government subject to emergency process pursuant to this Code section, using the332 - 13 - 26 LC 62 0527S expedited procurement process authorized pursuant to subsection (j) of this Code section."333 SECTION 3.334 All laws and parts of laws in conflict with this Act are repealed. 335 - 14 -