Sherman v. Development Authority

740 S.E.2d 663, 320 Ga. App. 689, 2013 Fulton County D. Rep. 935, 2013 WL 1165280, 2013 Ga. App. LEXIS 258
Court of Appeals of Georgia·Decided March 22, 2013·No. A12A2111·Published·Cited by 9 cases

Opinion

Branch, Judge.

This appeal arises from a bond validation proceeding in which the State of Georgia petitioned the Fulton County Superior Court for a judgment approving the issuance of certain taxable revenue bonds by the Development Authority of Fulton County (“DAFC”) and validating the bonds and various bond security documents. See OCGA § 36-62-1 et seq. John S. Sherman, a taxpayer and citizen of Fulton County, appeals from the order of the trial court validating and confirming the bonds and bond security. For the reasons explained below, we vacate the order of the trial court and remand this case for further proceedings consistent with this opinion.

[690] The record shows that the purpose of the bonds at issue is to finance the development of a manufacturing facility in Fulton County (“the Project”) that, once completed, will be leased to Owens Corning Roofing and Asphalt, LLC (“Owens”). Thus, among other things, the petition sought to create a bond transaction leasehold estate1 where, in consideration for the issuance of the bonds, Owens agreed to transfer fee simple title in the Project to DAFC, and DAFC and Owens agreed to execute a lease agreement under which Owens will have the right to possession of the Project for a term of ten years, excluding any construction or installation period. At the conclusion of the lease term, Owens will have a right to acquire the Project for nominal consideration.

As part of the transaction, the Fulton County Board of Tax Assessors (the “Board”), DAFC, and Owens executed a Memorandum of Agreement (the “Memorandum”) which establishes the valuation methodology the Board will employ in assessing ad valorem taxes on the leasehold estate.2 Specifically, the Memorandum provides that the Board will determine the fee simple market value of the Project utilizing the income approach, and then will determine the value of Owens’s leasehold interest by utilizing a “ramp-up schedule.” The “ramp-up schedule” assumes that the value of the leasehold interest in the first year of the lease is fifty percent of the fee simple market value, and that value increases by five percent each year as the ten-year term progresses and as Owens moves closer to receiving the benefit of its reversionary interest in the Project.3

[691] The petition and complaint were filed on September 27, 2011, and a hearing or hearings on the matter occurred some time thereafter.4 On October 10, 2011, Sherman filed a document captioned “Objections to Bond Validation Petition, Denial of Bond Validation Petition Allegations and Plea in Abatement” and on October 11 he filed his first amendment to this pleading.5 In his pleadings Sherman requested, inter alia, that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a),6 “including without limitation, specific factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate . . . according to the Harris factors, as required under Sherman [7] .”7

[692] On March 8, 2012, the court below entered an order validating the bond issuance. Sherman now appeals from that order, asserting that the trial court erred by failing to set forth therein findings of fact or conclusions of law sufficient to support its ultimate holdings that (i) the method used by DAFC to value the leasehold estate was valid under the requirements of Harris and Sherman I; (ii) the structure of the bond transaction did not violate OCGA § 36-62-8;8 (iii) the Memorandum was not ultra vires, in violation of OCGA § 36-30-3 (a);9 and (iv) the structure of the bond transaction did not create an unconstitutional tax exemption.

Because the facts in this case are undisputed, we conduct a de novo review of the record to determine whether the trial court committed plain legal error. Sherman v. Dev. Auth. of Fulton County, 317 Ga. App. 345, 346 (730 SE2d 113) (2012) (“Sherman IF’).

1. We first address our holding in Sherman II, because we find that its analysis applies to the current case.

Sherman II arose out of a bond validation proceeding similar to the one at issue here.10 As in this case, Sherman became a party to the proceeding and “requested that the trial court provide an order setting forth findings of fact and conclusions of law pursuant to OCGA § 9-11-52 (a).” 317 Ga. App. at 346. He also specifically requested that the court make “factual findings regarding the evidence presented regarding the valuation of the proposed leasehold estate according to the Harris factors, as required under Sherman I.” (Citation and punctuation omitted.) Id. at 350 (4) (a). In response to this request, the trial court issued an order containing findings of fact and conclusions of law, many of which are identical to those made here;11 Our Sherman II opinion held that these conclusory findings, which did not set forth the facts or analysis on which the court based [693] those conclusions, failed to comply with OCGA § 9-11-52 (a). Id. at 352 (4) (b). The order, therefore, provided no basis for “meaningful appellate review,” and we concluded that “[b]ecause the [trial court’s order] contains ‘merely a dry recitation that certain legal requirements have been met... adequate appellate review of the trial judge’s decision making process is effectively prevented.’ ” Id. Accordingly, remand was necessary to allow the superior court to “ ‘enter a judgment setting forth requisite findings of fact and conclusions of law that will allow meaningful appellate review of the trial court’s rejection of Sherman’s arguments.’ ” (Footnote omitted.) Id.

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Sherman v. Development Authority, 740 S.E.2d 663, 320 Ga. App. 689, 2013 Fulton County D. Rep. 935, 2013 WL 1165280, 2013 Ga. App. LEXIS 258 (Ga. Ct. App. 2013).

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