Board of Com'rs of Atkinson County v. Guthrie
Board of Com'rs of Atkinson County v. Guthrie
Opinion of the Court
A group of Atkinson County property owners challenged the constitutionality of a county ordinance that makes them responsible for the payment of garbage collection fees for their rental property. The trial court struck down the ordinance as unconstitutional, and the county appealed. The property owners then filed a motion to dismiss the appeal, which the trial court granted. The issues on appeal are whether the trial court properly dismissed the notice of appeal as illegal and whether the county ordinance is constitutional. Because the county met all the statutory requirements for filing its notice of appeal and the county ordinance does not violate the due process rights of property owners by assessing them for the cost of services to their property, we reverse.
The Atkinson County Solid Waste Management Authority was established in 1992 and borrowed 3.4 million dollars from the United States Department of Agriculture to construct a county landfill. In 1994 the authority and the county board of commissioners entered into an intergovernmental contract in which the county agreed that all waste generated in the unincorporated areas of the county would be delivered to the landfill. In 1995 the agreement was amended to make the county responsible for payment of the authority’s debt if the fees collected did not cover the debt payments. When the landfill fees did not generate sufficient income to pay the authority’s debt,
In March 1999, the board adopted an ordinance requiring owners of rental property to pay the garbage collection fees for their rental property. The ordinance was enacted because the authority had difficulty collecting fees from tenants of rental property. It provides that the owner of rental property shall be responsible for paying the garbage collection fee for the rental property or rental unit. If fees are not paid, a lien is imposed against the property; after 90 days the board chairman is authorized to issue an execution for the levy and sale of the property as provided by law. The execution shall be recorded in the general execution docket in the superior court clerk’s office and advertised in the county’s legal organ.
Eighteen property owners filed a lawsuit challenging the ordinance, contending that neither the board nor the authority had the constitutional or statutory power to require a property owner to pay the debt of another person. Without holding a hearing or giving any reason for its decision, the trial court declared the ordinance unconstitutional under the Georgia Constitution. The order was filed on February 16, 2000; the county filed a notice of appeal on March 14, 2000. Subsequently, the property owners filed a motion to dismiss the county’s appeal on the grounds that the board never voted to file an appeal at any meeting in February or March. Finding that the board never authorized an appeal in executive or open session, the trial court dismissed the notice of appeal as untimely.
S00A1695. DISMISSAL OF APPEAL.
1. The Appellate Practice Act gives either party in any civil case the right to appeal from any judgment of the court by filing a notice of appeal within 30 days after entry of the appealable decision or judgment.
S00A1164. CONSTITUTIONALITY OF COUNTY ORDINANCE.
2. A county may enact regulations to protect the health, safety, and general welfare of the public under its police powers.
The Georgia Comprehensive Solid Waste Management Act additionally provides that municipalities, counties, authorities, and special districts have the power to “adopt and enforce additional regulations, not in conflict with this part, imposing further conditions, restrictions, or limitations with respect to the handling or disposal of [residential and commercial] solid waste.”
The Georgia Constitution requires that regulations enacted as
Just as property owners have been held liable for a previous owner’s or occupant’s failure to pay for water, sewer, and sanitation services, property owners who rent their property may be liable for a tenant’s failure to pay for similar county services. The Atkinson County ordinance, like the ordinances upheld in previous cases, makes the solid waste collection fee a charge on the property. It is reasonable to make property owners ultimately responsible for the payment of garbage collection fees on their property since they may include the monthly fee as part of the rent charged to their tenants.
Judgment reversed.
OCGA § 5-6-38 (1995).
See Sharp v. State, 183 Ga. App. 641, 642 (360 SE2d 50) (1987) (to constitute an “entry,” oral order must be reduced to writing, signed by the judge, and filed with the clerk).
See Vinson v. Home Builders Ass’n, 233 Ga. 948, 949 (213 SE2d 890) (1975).
Ga. Const, art. 9, sec. 2, paras. 1 & 3 (a) (2).
OCGA §§ 12-8-30.9; 12-8-22 (1996).
See OCGA § 12-8-39.3.
See Rockdale County v. Mitchell’s Used Auto Parts, 243 Ga. 465 (254 SE2d 846) (1979); see also Davis v. Weir, 497 F.2d 139, 144 (5th Cir. 1974) (discussing equal protection analysis under the United States Constitution).
240 Ga. 528 (242 SE2d 50) (1978).
Id. at 530; see Harrison v. Jones, 226 Ga. 344 (175 SE2d 26) (1970); Dodd v. City of Atlanta, 154 Ga. 33 (113 SE 166) (1922); City of Atlanta v. Burton, 90 Ga. 486 (16 SE 214) (1892).
See City of Atlanta v. Burton, 90 Ga. at 489 (“It is somewhat analogous to a lien for taxes, which attaches to the property itself, and for the payment of which the property is subject”).
See Glendale Estates v. Mayor & City Council of Americus, 222 Ga. 610 (151 SE2d 142) (1966) (city ordinance was not arbitrary or discriminatory when it made owner of mobile home park responsible for water bill where a master meter served multiple units of mobile homes); see also Poythress v. Wilkins, 218 Ga. App. 475 (462 SE2d 423) (1995) (taxing authorities could not enforce assessment for fire protection and waste management against property owners who owned mobile home park when ordinance provided that assessment was to be levied on all “dwelling units” and “residential units,” which court defined as mobile homes).
Dissenting Opinion
dissenting.
I agree with the majority that the appeal filed by the Board of Commissioners was not subject to dismissal, and that the Board of Commissioners had the authority to enact ordinances concerning the collection of solid waste and the fees to be charged for that service. I cannot agree, however, that the ordinance in question is not subject to the complaint made by the appellees, that it denies them due process of law by making them liable for the debts of others.
The majority opinion suggests that the ordinance makes the garbage collection fee a charge on the property. If that were so, this would be a different case. However, the ordinance involved in this case recognizes that the solid waste regulations of Atkinson County provide that a garbage can shall be provided for each housing unit, rental unit, and mobile home, and that “every user of a garbage can shall pay the established collection fee.” Nonetheless, the ordinance goes on in its very next section to purport to make owners of rental property liable for the garbage collection fees on their rental property. It may thus be seen that the basic system in Atkinson County is not one that makes garbage collection fees a charge on the property as the majority suggests, but one that links liability for garbage collection fees to the use of a garbage can supplied by the county. That basic system is disturbed by the present ordinance which seeks to make some owners responsible for the debts of other persons who, having used a garbage can, are personally liable for the garbage collection fees.
The situation in this case may be contrasted with that in Bowery Savings Bank v. DeKalb County, 240 Ga. 528 (242 SE2d 50) (1978), where an ordinance established a lien on property and permitted cessation of water service until an arrearage is paid. There, all property served by the water was subject to such liens. On the record before us, only rental properties are made subject to liens for nonpayment. Thus, the county has sought to enforce against the property of one person the personal debts of another. While this Court found no due process violation in the collection system set forth in Bowery Savings Bank, supra, the system questioned on this appeal does what our Constitution forbids in the first paragraph of the first section of the first article: it deprives the owners of rental units of property by leg
Because I am convinced that the ordinance in question violates the guarantee of due process in Art. I, Sec. I, Par. I of the Georgia Constitution, I would affirm the judgment of the trial court to that effect. Accordingly, I must dissent to the majority opinion’s reversal of the trial court’s judgment.
I am authorized to state that Justice Hunstein joins in this dissent.
Reference
- Full Case Name
- BOARD OF COMMISSIONERS OF ATKINSON COUNTY v. GUTHRIE Et Al. (Two Cases)
- Cited By
- 9 cases
- Status
- Published