310 Ga. 804 FINAL COPY
S20A1205. POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. v. CUNARD et al.
WARREN, Justice.
The heart of this case is a dispute between the Polo Golf and
Country Club Homeowners’ Association (the “HOA”) and Forsyth
County over the validity of Section 4.2.2 of Forsyth County’s
Addendum to the Georgia Stormwater Management Manual, an
ordinance that makes HOAs “responsible for maintenance of all
drainage easements and all stormwater facilities within the entire
development.” Section 4.2.2 of the Forsyth County Addendum to the
Georgia Stormwater Management Manual (“Section 4.2.2” of the
“Addendum”).1 The HOA argues that Section 4.2.2 is
1 The Addendum was initially promulgated by the County’s Department
of Engineering, but its enabling ordinance incorporates the provisions of the Addendum into the ordinance by reference. See Forsyth County Ordinance No. 75, § 34-184 (c) (“The provisions of the GSMM and the Forsyth County Addendum are incorporated by reference as a part of this Ordinance as fully and completely as if set forth verbatim herein.”). unconstitutional and otherwise invalid and that individual lot
owners are responsible for maintaining stormwater infrastructure
on their lots. Variants of this case have been litigated and appealed
multiple times in this and other Georgia courts, including a 2019
appeal in this Court. See Polo Golf and Country Club Homeowners
Assn., Inc. v. Cunard, 306 Ga. 788 (833 SE2d 505) (2019) (“Polo Golf
II”).2
On remand from our Polo Golf II decision, the trial court
evaluated and rejected the HOA’s remaining claims that Section
4.2.2 is invalid because it requires the HOA to trespass on the
private property of homeowners, constitutes involuntary servitude
2 Polo Golf I, discussed more below, refers to Polo Golf and Country Club
Homeowners’ Assn., Inc. v. Rymer, 294 Ga. 489 (754 SE2d 42) (2014), which involved a dispute between the HOA, Forsyth County, and lot owners within the Polo Golf development over responsibility for a sinkhole on the lot owners’ property. In Polo Golf I, we held that an earlier version of Section 4.2.2, which applied only to a “new development” or “redevelopment,” did not apply to Polo Golf and Country Club, which was developed before the County adopted the Addendum. See Polo Golf I, 294 Ga. at 494-495. On remand, the trial court granted the HOA’s motion for summary judgment as to all of the lot owners’ claims against the HOA. The Court of Appeals affirmed the judgment in part and reversed in part in Rymer v. Polo Golf and Country Club Homeowners Assn., Inc., 335 Ga. App. 167 (780 SE2d 95) (2015). As explained below, the Addendum was revised in 2014. 2 under the United States and Georgia Constitutions, and exceeds the
scope of the ordinance that authorizes Forsyth County to
promulgate the Addendum. The trial court thus denied the HOA’s
motion for summary judgment and granted the defendants’ cross-
motion for summary judgment. The HOA appealed, and we now
affirm.
1. Background.
(a) Litigation History.
In Polo Golf II, we summarized the following background facts:
[The HOA] is a nonprofit corporation which oversees a housing subdivision in unincorporated Forsyth County called “the Polo Fields.”[3] The stormwater mechanisms in the subdivision including the Wellington Dam, which shores up a body of water known as the Wellington Lake, are failing due to age. The failure of these various stormwater mechanisms has caused flooding, sinkholes, and other property damage for some individual homeowners. This situation has resulted in almost a decade’s worth of litigation, including a previous decision in this Court concerning similar underlying facts and some of the same parties. See Polo Golf and Country Club Homeowners’ Assn., Inc. v. Rymer, 294 Ga. 489 (754 SE2d 42) (2014) (“Polo Golf I”). In Polo Golf I, John and Diane Rymer, who were individual homeowners of the Polo
3 At some point before 1995, the neighborhood became known as Polo
Golf and Country Club. 3 Fields, [the HOA], and Forsyth County disagreed as to who was responsible for repairing failing stormwater mechanisms affecting the Rymers’ property pursuant to the 2004 version of Section 4.2.2 set forth in Forsyth County’s Addendum to the Georgia Stormwater Management Design Manual. . . .[4] In Polo Golf I, [the HOA] contended the 2004 version of Section 4.2.2 was unconstitutional; however, this Court did not reach the constitutional issue in Polo Golf I because we concluded that the provision applied to new developments and redevelopments, but not to already-existing developments such as the Polo Fields. 294 Ga. at 495. In January 2014, while this Court’s decision in Polo Golf I was still pending, Forsyth County enacted a new version of Section 4.2.2 which now states in pertinent part as follows: When any subdivision or industrial/commercial park, whether new or existing, has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development. (Emphasis supplied.)
Polo Golf II, 306 Ga. at 789-790 (footnotes omitted). With
respect to Section 4.2.2, we concluded:
The 2014 version of Section 4.2.2 states that homeowner associations (“HOAs”) are responsible for maintaining all
4 The 2004 version of Section 4.2.2 stated:
When a subdivision or industrial/commercial park has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development. . . . 4 drainage easements and stormwater facilities in their developments. The 2014 version of Section 4.2.2 further provides that the county, in certain circumstances, may direct HOAs to take certain actions (e.g., applying larvicides or making repairs) to comply with their overall responsibility to maintain such systems or otherwise be penalized for noncompliance.
Id. at 792.
With respect to the repairs at issue here, the following facts are
also relevant. In August 2017, the HOA’s board sent a letter to the
owners of lots at or abutting Wellington Dam and Lake informing
them that the dam was leaking and “could potentially have a
complete failure.”5 Claiming that Polo Golf’s Declaration of
Covenants, Restrictions and Easements (the “Declaration”) “does
not place any obligation upon the [HOA] to maintain or repair the
dam,” the HOA contended that the lot owners were obligated to
maintain and repair all “structures” on their lots under Section 6.14
of the Declaration and that they were obligated to pay the
reasonable expenses necessary to maintain the structural integrity
5 The record shows that the HOA does not own any of the Wellington
Dam/Lake lots. 5 of the dam under Section 6.17 (d). The HOA therefore argued that
the lot owners were obligated to pay for repair of the dam. But it
also gave the lot owners formal notice that “[i]f the dam is not
repaired within thirty days, then the [HOA] may exercise the right
of abatement.”
The lot owners disagreed with the HOA’s characterizations of
their obligations under the Declaration and disputed that they were
obligated to repair the failing dam. Then, in November 2017, the
HOA sent a letter to the lot owners disavowing any involvement
with the repairs and “fully revok[ing]” the portion of its earlier letter
notifying lot owners that it might exercise its right of abatement,
while also noting that the HOA could in the future “consider the
remedies available to [it], including the right of abatement.”
The HOA ultimately sued John Cunard, Director of Forsyth
County’s Department of Engineering, and Benny Dempsey,
Stormwater Division Manager of Forsyth County’s Department of
Engineering, to prevent prospective enforcement of Section 4.2.2.
The trial court granted the defendants’ motion for judgment on the
6 pleadings in part because it concluded that sovereign immunity
barred the HOA’s suit against the county officials. It also rejected
the HOA’s arguments that Section 4.2.2 violated the Contracts
Clause of the United States Constitution and the Georgia
Constitution’s prohibition against retroactive laws. In Polo Golf II,
we reversed the trial court’s determination that sovereign immunity
barred the suit against county officials, affirmed the trial court’s
grant of the defendants’ motion for judgment on the pleadings as to
the HOA’s arguments on the merits, and remanded the case so the
trial court could resolve the HOA’s remaining contentions about
Section 4.2.2’s validity.6
As part of our remand in Polo Golf II, we instructed the trial
court to address the HOA’s remaining arguments that Section 4.2.2
6 Specifically, we considered and rejected the HOA’s challenge under the
Contracts Clause of the United States Constitution because, even if the County enforced Section 4.2.2 against the HOA, enforcement would not actually prohibit the HOA from exercising the contractual remedies the Declaration provided. Polo Golf II, 306 Ga. at 792-793. Similarly, we rejected the HOA’s claim that Section 4.2.2 violates the Georgia Constitution’s prohibition against retroactive laws, see Ga. Const. of 1983, Art. I, Sec. I, Par. X, reasoning that the HOA failed to demonstrate an injury to a vested right. See Polo Golf II, 306 Ga. at 794.
7 is invalid because, among other things, it (1) requires the HOA to
commit an illegal trespass and (2) constitutes involuntary servitude.
On remand, the HOA asserted an additional argument that had
been raised in earlier briefing: that Section 4.2.2 is invalid because
it exceeds the scope of the authority provided in its enabling
ordinance. Resolving these issues against the HOA, the trial court
denied the HOA’s motion for summary judgment in its entirety and
granted the defendants’ cross-motion for summary judgment.7
(b) Relevant Sources of Authority.
In Forsyth County, maintenance obligations for stormwater
management systems are set forth, in part, in a county-specific
addendum to the Georgia Stormwater Management Manual. The
County enacted its Addendum under the authority of Forsyth
County Ordinance No. 75 (the “enabling ordinance”), which
provides:
The department of engineering shall develop, and update periodically, an addendum to the state stormwater
7 In ruling on the dispositive motions, the trial court converted the defendants’ then-pending motion for judgment on the pleadings into a motion for summary judgment. 8 management design manual for the guidance of persons specifically preparing stormwater management reports, and designing or operating stormwater management systems in Forsyth County.
Ordinance No. 75, Section 34-185 (e).
In turn, Section 4.2.2 of the Addendum, which Forsyth County
revised in 2014, provides:
When any subdivision or industrial/commercial park, whether new or existing, has a legally created property or homeowners association, the association will be responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.
Polo Golf’s Declaration also includes covenants pertaining to
maintenance and property upkeep for its development. The
Declaration provides that “[e]ach Owner shall keep and maintain
each Lot and Structure owned by him . . . in good condition and
repair” and defines a “structure” as, among other things, “any thing
or object that placement of which upon any Lot may affect the
appearance of such Lot” including any “temporary or permanent
improvement to such Lot.” Declaration, §§ 6.14, 1.12 (a).
“Structure” is also defined as
9 any excavation, grading, fill, ditch, diversion dam or other thing or device which affects or alters the natural flow of surface waters from, upon or across any Lot, or which affects or alters the flow of any waters in any natural or artificial creek, stream, wash or drainage channel from, upon or across any Lot.
Id. at 1.12 (b) (emphasis supplied).8
The Declaration also contains covenants setting forth
maintenance obligations related to Wellington Dam and Lake:
Owners of Lots which abut any such lake agree to pay any reasonable expenses necessary to maintain the structural integrity of the Dam and such other maintenance to the lake as may be agreed upon by the majority of the abutting Lot Owners.
Declaration, § 6.17 (d) (emphasis supplied).
The Declaration authorizes the HOA to implement several
enforcement mechanisms if lot owners breach the maintenance
covenants set out in the Declaration. Foremost among them is the
right of abatement: the HOA’s right “to enter at all reasonable times
8 In Polo Golf I, we noted that “Polo’s covenants . . . provide that each
homeowner is to maintain and repair the structures on his own property, including any stormwater facilities or device affecting or altering the natural flow of surface waters on any lot.” See Polo Golf I, 294 Ga. at 489.
10 upon any Lot or Structure, as to which a violation, breach or other
condition to be remedied exists, and to take the actions specified” in
a required notice sent by the HOA to the lot owner. Declaration,
§ 8.02.9 To exercise its right of abatement, the following must occur:
the Architectural Control Committee—a committee tasked with
ensuring that alterations to structures on lots in the neighborhood
comply with the Declaration—notifies the HOA board (the “Board”)
that, in its opinion, an owner has violated the Declaration. See
Declaration, § 6.14. If the Board agrees, it must provide written
notice to the lot owner. If the lot owner fails to remedy the specified
violation within 30 days, the HOA may exercise the right of
abatement under the Declaration. Section 8.02 of the Declaration
provides that, in the event the HOA exercises its right of abatement,
it is not “deemed to have committed a trespass or wrongful act solely
by reason of such entry and such actions, provided [they] are carried
out in accordance with the provisions of this Section.” Under such
9 In addition, the HOA may (among other things) seek specific performance in court and secure and enforce liens against a lot whose owner is in violation of the Declaration. See Declaration, §§ 8.03-8.04. 11 circumstances, the lot owner is liable for the costs incurred. See id.
2. Standard of Review.
“Our review of the grant or denial of a motion for summary
judgment is de novo.” Nguyen v. Southwestern Emergency
Physicians, P.C., 298 Ga. 75, 82 (779 SE2d 334) (2015) (citation and
punctuation omitted). As part of our review, “we construe the
evidence most favorably towards the nonmoving party.” Id.
(citation and punctuation omitted).
3. The HOA argues that the trial court erred when it concluded
that Section 4.2.2 “places ultimate maintenance responsibility for all
drainage easements and stormwater facilities” within the Polo Golf
development on the HOA. Specifically, the HOA contends that the
trial court erred by rejecting the HOA’s argument that Section 4.2.2
is invalid—both facially and as-applied to the HOA—because it
requires homeowners’ associations generally, and the HOA
specifically, to perform maintenance on land it does not own without
granting access rights, and thus to trespass on private property to
remedy stormwater violations. We disagree.
12 To prevail on its facial challenge to Section 4.2.2, the HOA
must establish that “no set of circumstances exists under which
[Section 4.2.2] would be valid.” Ga. Dept. of Human Svcs. v. Steiner,
303 Ga. 890, 899 (815 SE2d 883) (2018) (citation and punctuation
omitted). Here, however, the trial court determined that the HOA
had “power through its declarations to exercise the right of self-help
to abate the non-complying drainage easement or stormwater
facility existing on an individual lot owner’s lot within the
subdivision” and therefore rejected the HOA’s argument that
compliance with Section 4.2.2 is a legal “impossibility.”
The trial court’s conclusions are supported by the text of both
Section 4.2.2 and the Declaration. To begin, nothing in the text of
Section 4.2.2 requires an HOA to enter private property to perform
maintenance. To the contrary, and as we explained in Polo Golf II:
On its face . . . Section 4.2.2 does not mention or prescribe the means by which an HOA must meet its responsibility to maintain drainage easements or stormwater facilities. It also does not expressly or implicitly prohibit an HOA from using its contractual relationships with homeowners to effect compliance therewith.
13 Polo Golf II, 306 Ga. at 792-793. See also id. at 793 (rejecting the
HOA’s contracts clause arguments, concluding that the HOA “ha[d]
not shown any actual inability to exercise its contractual remedies
because of the county’s stormwater ordinance”). To that end, the
Declaration provides for remedies short of physical intrusion on a
lot owner’s property, including the HOA seeking specific
performance in court and securing and foreclosing on a lien against
the lot. See Declaration, §§ 8.03-8.04.10
Moreover, the Declaration expressly provides that, in the event
that the HOA exercises its right of abatement, it is not “deemed to
have committed a trespass or wrongful act solely by reason of such
entry and such actions, provided [they] are carried out in accordance
with the provisions of this Section.” Declaration, § 8.02 (emphasis
supplied). Thus, as we concluded in Polo Golf II, Section 4.2.2 does
not on its face preclude the HOA from using the abatement remedy
or any other method of self-help set forth in the Declaration. Nor
10 Notably, the HOA’s counsel conceded in the proceedings below that the
Declaration gives the HOA enforcement mechanisms that do not require the HOA or its agents to physically enter a homeowner’s lot. 14 does Section 4.2.2 require the HOA to trespass. Given that the text
of the Declaration states that if the HOA exercises its right of
abatement and physically enters a lot to perform maintenance, it is
not “deemed to have committed a trespass,” there are at least some
circumstances under which Section 4.2.2 would be valid. As a result,
the HOA’s facial challenge fails. See Bello v. State, 300 Ga. 682, 686
(797 SE2d 882) (2017) (rejecting an appellant’s facial challenge to a
statute when counsel conceded at oral argument that the statute
might be valid “in some instances”).
The HOA also challenges Section 4.2.2 as invalid as applied to
the HOA. Specifically, it argues that because the right of abatement
is available only after the HOA formally determines that a lot owner
is in violation of the Declaration, the HOA could find itself in a
situation where the HOA determines that a lot owner’s stormwater
issue does not violate its Declaration, but the County nevertheless
concludes that the lot owner violated county ordinances and cites
15 the HOA for the violation under Section 4.2.2.11 Under such a
scenario, the HOA argues, Section 4.2.2 would force the HOA to
trespass on private property to perform maintenance and is
therefore invalid as applied to the HOA. For its part, Appellees
argue that the HOA’s concern is unfounded because any violation of
Section 4.2.2 necessarily violates the Declaration.
We need not answer the speculative question of whether a
violation of Section 4.2.2 always violates the Declaration to conclude
that the HOA’s as-applied challenge fails. That is because, as
mentioned above, neither Section 4.2.2 nor Polo Golf’s Declaration
requires the HOA to physically enter a lot owner’s property.
Moreover, the Declaration equips the HOA with enforcement
mechanisms short of physical intrusion on another’s property—such
as seeking specific performance and securing a lien against a lot—
11 The HOA also offers another version of this argument: that the trial
court erred by “not finding that [the HOA] has no authority to enforce county law.” Specifically, it argues that “Appellees cannot require [the] HOA to find a covenant violation and require enforcement on the property of another owner.” We reject this version of the HOA’s argument for the same reasons set forth below. 16 in addition to the self-help right of abatement, which the Declaration
makes clear would not constitute a trespass. See Polo Golf II, 306
Ga. at 792-793. To that end, the trial court found that “exercising
self-help and entering [a homeowner’s] lot [would] not commit a
trespass,” in part because the HOA “would be acting pursuant to the
terms of the declaration that the lot owner subjected herself to when
she purchased her lot within the subdivision.” We agree.
Not only does the text of the Declaration support the trial
court’s conclusion that the HOA had a self-help remedy available to
it, the record on appeal shows that the HOA in fact initiated its right
of abatement here. Indeed, the HOA took a preliminary step toward
abatement when it sent a letter to the lot owners whose property
abutted Wellington Dam and Lake informing them of the Dam’s
failing condition, telling them that lot owners were responsible
under the Declaration for repairing the structure, and warning them
that “[i]f the dam is not repaired within thirty days, then the [HOA]
may exercise the right of abatement.” Although the HOA later
purported to revoke that notice, it reserved its right to abate in the
17 future, thus demonstrating the HOA’s ability to comply with Section
4.2.2 without trespassing. The HOA’s as-applied challenge to
Section 4.2.2 therefore fails.12 Accordingly, we affirm the trial
court’s grant of the defendants’ cross-motion for summary judgment
as to the HOA’s trespass arguments.
4. The HOA contends that Section 4.2.2 is unconstitutional—
facially and as-applied to the HOA—because it compels the HOA to
maintain property the HOA does not own, and thus constitutes
involuntary servitude in violation of the United States and Georgia
Constitutions. See U.S. Const. Amend. XIII (“Neither slavery nor
12 We likewise reject the HOA’s argument that, in enacting Section 4.2.2,
the County “hijack[ed]” the HOA’s discretion under the Declaration and “substitute[d] [its] own judgment for the judgment of the ACC and [HOA],” specifically with respect to the right to abatement, thereby violating the “business judgment rule.” See generally Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 580, 584-586 (761 SE2d 332) (2014) (explaining that the business judgment rule typically prevents courts from second-guessing the good-faith, informed decisions of a corporate board). It is not at all clear that the business judgment rule applies here, and the HOA has made no showing that Section 4.2.2 “hijacks” the right of abatement or any other self-help remedy set forth in the Declaration. Unlike in Rymer, 335 Ga. App. at 174, where a Polo Golf lot owner asked the trial court to find that the HOA breached its duty by not exercising its Declaration remedies against other lot owners, this appeal does not present the question of whether a corporation has exercised its discretion over its own affairs lawfully and in good faith.
18 involuntary servitude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.”); Ga. Const. Art. I,
Sec. I, Par. XXII (“There shall be no involuntary servitude within
the State of Georgia except as a punishment for crime after legal
conviction thereof or for contempt of court.”). The trial court held
that the obligation imposed by Section 4.2.2 “does not fall within the
realm of compulsory labor as contemplated by the Thirteenth
Amendment,” and we agree.
The Thirteenth Amendment of the United States Constitution
and Article I, Section I, Paragraph XXII of the Georgia Constitution
were enacted “[i]n response to this country’s past institutional
enslavement of people of African descent.” Gasses v. City of
Riverdale, 288 Ga. 75, 78 (701 SE2d 157) (2010).13 The United States
Supreme Court has held that although “[t]he primary purpose of the
13 The HOA offers no authority to support its argument that Section 4.2.2
violates Article I, Section I, Paragraph XXII of the Georgia Constitution. Nor does it attempt to distinguish—or compare—the state constitutional provision with its federal counterpart. Accordingly, we decline to separately analyze the HOA’s contention under the Georgia Constitution. 19 Amendment was to abolish the institution of African slavery as it
had existed in the United States at the time of the Civil War,” the
Thirteenth Amendment “was not limited to that purpose; the phrase
‘involuntary servitude’ was intended to extend to cover those forms
of compulsory labor akin to African slavery which in practical
operation would tend to produce like undesirable results.” United
States v. Kozminski, 487 U.S. 931, 942 (108 SCt 2751, 101 LE2d 788)
(1988) (citation and punctuation omitted). But “the prohibition
against involuntary servitude does not prevent the State or Federal
Governments from compelling their citizens, by threat of criminal
sanction, to perform certain civic duties,” including jury service,
military service, and roadwork. Id. at 943-944. Likewise, this Court
has held that a municipal ordinance requiring citizens to “maintain
grass, weeds, and vegetation for the welfare of the community is not
constitutionally prohibited involuntary servitude.” Gasses, 288 Ga.
at 78.
The HOA contends that a key distinction between Section 4.2.2
and the type of ordinance at issue in Gasses is that Section 4.2.2
20 requires the HOA to perform work on property owned by an
individual lot owner, as opposed to property owned by the HOA. It
thus argues that compelled labor on another’s property constitutes
involuntary servitude.
We have no trouble concluding that the HOA has not
established a Thirteenth Amendment violation here. That is
because the record belies the HOA’s characterization of its Section
4.2.2 obligations. As the trial court noted, “the HOA is not a
stranger to the privately-owned properties which comprise the
subdivision.” The Declaration plainly states that the HOA is a “non-
profit civic organization [existing] for the sole purpose of performing
certain functions for the common good and general welfare of the
people of the Development,” Declaration, § 3.01 (emphasis supplied),
and both the HOA and the individual lot owners consented to the
various obligations and covenants set forth in the Declaration.
Moreover, as explained above, the HOA has specific authority under
certain circumstances (such as with the right of abatement) to enter
a lot owner’s property and perform maintenance. Because the
21 maintenance obligations imposed by Section 4.2.2 do not constitute
involuntary servitude under the Thirteenth Amendment to the
United States Constitution, we affirm the trial court’s grant of
summary judgment to the defendants with respect to the HOA’s
involuntary servitude arguments.14
5. Finally, citing Department of Human Resources v. Anderson,
218 Ga. App. 528, 529 (462 SE2d 439) (1995),15 the HOA contends
that Section 4.2.2 is invalid because it is an administrative rule that
“exceeds the scope of or is inconsistent with the authority of the
statute upon which it is predicated.” Id. Specifically, the HOA
argues that Section 4.2.2 is “facially invalid” because it exceeds the
14 We emphasize that we resolve the HOA’s as-applied challenges based
on the record on appeal in this case, and in large part on the text of the various covenants and other agreements set forth in Polo Golf’s Declaration. We express no opinion about how similar as-applied challenges would fare under a different set of contractual agreements.
15 In Anderson, the Court of Appeals held invalid a Department of Human Resources regulation involving the process for modifying court-ordered child support because the regulation exceeded the authority provided to the Department of Human Resources in OCGA § 19-11-12. See Anderson, 218 Ga. App. at 528-529.
22 scope of the authorization provided in Forsyth County Ordinance
No. 75.16
Section 34-185 (e) of Ordinance No. 75 provides:
The [county] department of engineering shall develop, and update periodically, an addendum to the state stormwater management design manual for the guidance of persons specifically preparing stormwater management reports, and designing or operating stormwater management systems in Forsyth County.
The HOA argues that when the Addendum was revised in
2014, the lot owners—and not the HOA—operated the stormwater
management system in the Polo Golf subdivision, and because the
HOA did not “prepare stormwater reports” or “design[ ] or operat[e]
stormwater management systems in Forsyth County” at that time,
“the government improperly used Section 4.2.2 to create a brand
new obligation onto [the] HOA to become an operator of a
stormwater system.” (Emphasis in original.) In short, the HOA
argues that because it did not “operat[e] stormwater management
16 We interpret the HOA’s argument that the 2014 version of Section
4.2.2 is “facially invalid” as an argument that Section 4.2.2 is invalid because its promulgation was unauthorized. 23 systems” in 2014, as referenced in Ordinance No. 75, Section 4.2.2
could not lawfully apply to the HOA and therefore “exceeds its
enabling ordinance.”
The trial court rejected this argument and determined that the
HOA “is an operator of a stormwater management system within
the subdivision it was created to protect.” And although the trial
court offered no reasoning to support this conclusion, we cannot say
that it erred when it concluded that the HOA “falls within the scope
of persons or entities to which [Section 4.2.2] applies.” That is
because the HOA’s argument—though characterized as Section
4.2.2 being invalid because it is inconsistent with its enabling
ordinance—is really another species of the Contracts Clause and
retroactivity arguments the HOA offered, and we rejected, in Polo
Golf II. Indeed, in Polo Golf II, the HOA disputed that Section 4.2.2
“makes [the HOA] responsible for the maintenance of all stormwater
mechanisms within the subdivision.” Polo Golf II, 306 Ga. at 790.
We rejected that challenge, explaining that “[t]he 2014 version of
Section 4.2.2 states that homeowners associations (‘HOAs’) are
24 responsible for maintaining all drainage easements and stormwater
facilities in their developments” and rejecting the HOA’s argument
that Section 4.2.2 impaired its contractual relationship with lot
owners by precluding the HOA from enforcing individual lot owners’
maintenance obligations under the Declaration. Id. at 792-793. We
similarly rejected the HOA’s argument that applying Section 4.2.2
to the HOA violated Georgia’s constitutional prohibition against
retroactive laws. Id. at 793-794. In so doing, we held that the HOA
had “failed to fully articulate a vested right or show that any alleged
vested right has been injuriously affected by the 2014 version of
Section 4.2.2.” Id. at 794. In other words, we held that the HOA had
not demonstrated that it had a vested right in the lot-owner-
maintenance obligations set forth in the pre-2014 Declaration, or
that, at the very least, Section 4.2.2 had not substantially interfered
with any right the HOA had. See id.
The HOA’s argument in this appeal is fundamentally the same:
notwithstanding this Court’s holding that Section 4.2.2 applies to
the HOA and was not unconstitutionally retroactive, the HOA
25 objects “to the County making [the HOA] an operator of the
stormwater system within the Polo Fields subdivision when the
County’s own law [in 2014], as well as the Declaration, put the
stormwater maintenance on individual lot owners rather than on
[the] HOA.” As explained in Polo Golf II, however, and as recounted
above, we have already rejected the merits of that argument.
Accordingly, we again reject the HOA’s argument that Section 4.2.2
is invalid and affirm the trial court’s conclusion that the HOA “falls
within the scope of persons or entities to which the addendum
applies.”
Judgment affirmed. All the Justices concur, except McMillian, J., who concurs in Divisions 1, 2, 3, and 4, and concurs specially and in judgment only in Division 5.
26 MCMILLIAN, Justice, concurring specially.
I concur fully in the judgment and in the majority opinion
except for its Division 5, in which I concur in judgment only.
Although I agree with the majority’s conclusion that Section 4.2.2 is
not invalid on the ground that it exceeds the authority granted by
Ordinance No. 75, I reach this conclusion based on a plain reading
of the text of Ordinance No. 75 itself without regard to prior holdings
of this Court.
In interpreting county ordinances,
we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.
Cowen v. Clayton County, 306 Ga. 698, 702 (2) (a) (832 SE2d 819)
(2019) (citations and punctuation omitted). See also Sliney v. State,
260 Ga. 167 (391 SE2d 114) (1990) (applying rules of statutory
construction to county ordinance). Section 34-183 (6) of Ordinance
No. 75 provides that one of the stated purposes of the ordinance is
27 to
[e]stablish provisions for the long-term responsibility for and maintenance of structural stormwater control facilities and nonstructural stormwater management practices to ensure they continue to function as designed, are maintained, and pose no threat to public safety.
(Emphasis supplied.) Section 34-185 of Ordinance No. 75 outlines
the scope of responsibility invested in the County’s Department of
Engineering. Subsection (b) of that section places responsibility on
the Director of the Engineering Department or his or her designee
for the coordination and enforcement of the Ordinance’s provision,
and Section 34-185 (e), pursuant to which Section 4.2.2 was drafted,
The department of engineering shall develop, and update periodically, an Addendum to the state stormwater management design manual for the guidance of persons specifically preparing stormwater management reports, and designing or operating stormwater management systems in Forsyth County.
This language is couched in the present tense and thus
requires the department to provide guidance to all persons
currently operating any stormwater systems in Forsyth
28 County. The next section of Ordinance No. 75, Section 34-186,
outlines the powers granted to the Department of Engineering,
and subsection (b) (2) expressly allows the department to
“[d]etermine the manner in which stormwater facilities should
be operated.” That grant of power necessarily includes the
authority to determine who should be charged with
responsibility for operating such facilities, including the
maintenance of such facilities, in order to maintain public
safety. Although this Court interpreted the 2004 version of
Section 4.2.2 of the Addendum as imposing responsibility on
HOAs “for maintenance of all drainage easements and all
stormwater facilities within the entire development” only as to
new developments and redevelopments, Polo Golf and Country
Club Homeowners’ Assn., Inc. v. Rymer, 294 Ga. 489, 495 (2)
(754 SE2d 42) (2014) (“Polo Golf” I),17 the text of Ordinance No.
17 This Court based its conclusion on the “Purpose and Applicability”
section of the 2004 version of the Addendum, which addressed only new developments and redevelopments. See Polo Golf I, 294 Ga. at 492-95 (2). However, Section 1.1 of the 2014 version of the Addendum, which addresses
29 75 authorized the Department to extend the responsibility of
homeowners’ associations to operate stormwater management
systems in subdivisions or industrial/commercial parks
“whether new or existing,” as it did in the 2014 version of the
Addendum. While this Court’s prior rulings with regard to the
Contracts Clause and retroactive laws provide somewhat
analogous support to this interpretation of the plain language
of Ordinance No. 75, I do not believe, as the majority concludes,
that those holdings are determinative of the HOA’s argument
with regard to the authority supporting Section 4.2.2. Thus, I
would reject the HOA’s argument that Section 4.2.2 is “facially
invalid” based on the plain language of Ordinance No. 75,
which authorizes the department to amend Section 4.2.2 to
make the HOA responsible for the maintenance of stormwater
systems within the subdivision.
“Applicability,” expressly provides that “[e]xisting, new and planned stormwater facilities shall comply with the maintenance requirements of Section 4 of this addendum,” which includes Section 4.2.2. 30 DECIDED FEBRUARY 15, 2021. County ordinance; constitutional question. Forsyth Superior Court. Before Judge Bagley. Lueder, Larkin & Hunter, John T. Lueder, for appellant. Jarrard & Davis, Kenneth E. Jarrard, Joseph P. Mitchell, for appellees.