GWINNETT COUNTY v. CITY OF NORCROSS

310 Ga. 851

• Court: Supreme Court of Georgia
• Decided: February 15, 2021
• Docket: S20C1464
• Status: Published

Opinion

310 Ga. 851 FINAL COPY

S20C1464. GWINNETT COUNTY v. CITY OF NORCROSS et al. Order.

The Supreme Court today denied the petition for certiorari in this case.

All the Justices concur, except Bethel, J., who dissents.

BETHEL, Justice, dissenting.

Rain will continue to be in the Georgia forecast. And when it

comes, the water will flow downhill. In a State with a growing urban

footprint featuring ever increasing impervious and less permeable

surfaces, the problem of flooding is certain to grow. Additionally, the

proliferation of municipalities in those urbanized settings presents

the possibility of a large number of situations where, as here, built

assets are essentially stranded in high density areas. These assets

need only neglect from the local governing authorities to become

liabilities. When they do, counties bear a significant exposure that, I suspect, is not on many of their risk management profiles because

they believe municipalities are responsible for regulating storm

water infrastructure within their limits, regardless of the origin

story of the infrastructure.

Here, the City of Norcross accepted the annexation of certain

developed property into its corporate boundary. That property had

existing storm water management infrastructure that was required

by Gwinnett County when the improvements on the property were

constructed. That infrastructure was dedicated to public use for

purposes of maintenance and inspection. Because the land is now

within the Norcross city limits, it is subject to the city’s storm water

management fee and no longer subject to Gwinnett County’s storm

water management fee.1 Moreover, Norcross and Gwinnett County

have agreed pursuant to a Service Delivery Strategy Agreement that

1 In communities across Georgia, storm water management funding is

addressed in a number of ways. Both the City of Norcross and Gwinnett County have elected to charge a fee based on impervious or less permeable surfaces as a means of determining the volume of precipitation added to the system due to the development of the property. Norcross will provide storm water services within its municipal

boundaries. Nevertheless, Norcross contends that Gwinnett County

is responsible for the maintenance and repair of the storm water

assets in question because there has been no legal transfer of the

responsibility for them from Gwinnett County to Norcross.

Norcross may well be correct, and our precedent, which was

heavily relied upon by the Court of Appeals, seems to favor its

position in this case. See Fulton County v. City of Sandy Springs,

295 Ga. 16, 17 (757 SE2d 123) (2014) (holding that county retained

an obligation to maintain storm water management infrastructure

located on property annexed by municipality). However, that

decision does not squarely answer the question before us.

In Fulton County, the infrastructure in question was physically

constructed by the county prior to the annexation of the property by

the city. 2 Id. at 16. Moreover, Fulton County involved the

2 In rejecting Fulton County’s argument that it was constitutionally

prohibited from operating a storm water collection system within a municipality without contractual authority, see Ga. Const. of 1983, Art. IX, Sec. II, Par. III, this Court pointed in part to the fact that Fulton County was construction of detention ponds on land subject to easements and in

part owned in fee by the county as the result of condemnation. Id.

Additionally, Fulton County does not appear to address a situation

in which the county and city have entered into a service delivery

strategy agreement or how such agreement might outline (or alter)

the local governments’ responsibility for the maintenance of storm

water infrastructure on property annexed by the city. In light of the

serious implications for communities and local governments across

Georgia, these factors and the arguments found in Justice Benham’s

dissent in Fulton County, raise issues of gravity and public

importance that warrant our granting review of the Court of

Appeals’ decision in this case.

For these reasons, I would grant the petition for certiorari

sought by Gwinnett County in this case. Thus, I respectfully dissent.

Because I have been unable to persuade a majority of my

colleagues on this Court to grant a writ of certiorari in this case, I

merely being required to maintain what it had “previously decided to build.” Id. at 17. also write to suggest that the General Assembly give swift attention

to this very significant issue. I will not endeavor to suggest what

policy solutions would best address this scenario, but I will suggest

that making sure that local governments have a clear understanding

of who is responsible for this type of infrastructure is in everyone’s

best interest. And in the event the legacy jurisdiction is deemed to

be the properly responsible party, it should have clear authority to

access and maintain storm water infrastructure and a means to fund

such efforts.

ORDERED FEBRUARY 15, 2021. Certiorari to the Court of Appeals of Georgia—355 Ga.App. 662. Murray J. Weed, Tuwanda R. Williams, Michael P. Ludwiczak, for appellant. Andrew J. Whalen III, for appellees.