Fulton County Superior Court

***EFILED***RM
Date: 611412016 4:46:35 PM
Cathelene Robinson, Clerk

IN TI-IE SUPERIOII COUR OF ITT]I,TON COUNTY

STATE O}'GEORGIA
CITY OF COLLBGE PARK, GEORGIA,
Plaintil'f,

Civil Action Filc No.:

v.

FULTON COUNTY, GEOII^GIA, and all

membcrs of the Fulton County Board
of Cornnrissioners as fbllou,s: JOI-IN H. EAVES,
LTZ HT\USJ\,IANN,I]OB ELLIS, LEE
N,TOITRIS, JOAN P. GARNER, N,IARVIN
S. ARRINGTON and EivlN{A I. DARNELL;
F'ULTON COUNTY BOARD OF ELECTIONS
z\ND REGISTII{TION, and nll mcnrbers of
the Fulton County Board of Elections and
Itegistration as follorvs: IVIARY COONIiY,
STAN I\,IATARAZZO, DAVID I}URGB,
IIUKIYA THOMAS ancl LU II:IER BECK,

2016CV276450

I)el'enclants.

VERTIiIED PETII.ION I{OR DECLARAI]ORY JUDGIVIENT ANp IMi\,IEDrATIL

EOtiITAts.LE AI\D TNJUNCT'M RELIETI

CON{ES NOW the Plaintiff City ol College Park (refbrred to herein as "College Park")
ancl files

this Verified Petition .for Declarotory

Jvalgrnent ancl lrnmecliute Ecluiluble

atd

Injunctive Relief against the above named Del'endants, showing the Court as follorvs:

PARTIES

1.

College Park is a n:unicipal corporation, duly incorporate.d undel thc lar.vs of the State of
Georgia, rvith its principle headqnarlers situated within Fr"rlton County, Georgia.

2.

Defendant Fulton County, Georgia (referred to herein as "Fulton County") is a political

subdivision of the State of Georgia.

3.

Fuiton Counly may be served with process thror:gh ti,e Chainrran

Con:missioners, Defenclant.Iohn I"I. Eaves (ret-elled to herein

AS

of its

Boarcl

o1'

"Eaves"), at i41 Pr1,or Street

SW, lOth Floor, Atlanta, Gz\ 30303.

4.

The Fulton County Board of Cor"rnty Cornmissioners is the duly elected governing authority
for Fulton County.

5.

Defendant

Liz IJausrnann (relerled to herein as "Ilausmarnn") is the Vice Chairman of

the

Fulton County Board of Commissioners,

6,

Det'endants: tsob

Ellis (referred to herein as "Ellis"), Lee N,lorris (refen'ed to herein

as

"Morris"), Joarr P. Garner (reI'erred to herein as "Garner"), Marvin S. Arrington. Jr. (referred

to herein as "Arrington"), tlnd Emma I. Darneil (referred to irerein as "Darne[l"),

are

rnembers of the Fulton County Board of Comnrissionet's.

7.

The individual metnbers of the Fuiton County Boarcl of Cornmissioners are sued in t]reir

official capacities and may each be served r,r,ith process at

l4l

Pryor Street SW, 1Oth Floor,

Atlanta, GA 30303.

8.

The Fulton County Board of Elections and Registration (referred to helein as the "Electior-r
Board") serves as the election superintendent of Fulton Count-v.

9.

The Election Board may be served with process through its Chairpersou, Delenclant lv{ary
Cooney (reI'errecl to herein as "Cooney"), art 130 Peachtree Street, SW, Atlanta, Georgia.

10. Defendants: Stan Matarazzo (refer:red

to herein as "lt4atarazzo"), David Burge (refcrred to

herein as "Burge"), Rul<iya Thomas (ret-erred to herein as "Thomas"), and Luther Beck
(referred to herein as "Beck"), are members of the Election Board.

1. 'I'he individr"ral members

of the Election Boarci are suecl in their ofl-rcial capacities and may

each be serued rvith process at i 30 Peachtree Street, SW, Atlanta, Georgia.

I2. Fulton County is subject to the jurisdiction of tiris Court.

i3. l'he Fulton County Board of CommissioneLs' rnentbers are subject to the jurisdiction of this
Conrt.
14. The Election Board is subject to the jurisdiction of this Court.
15. The Election Board members zue subject to the

jurisdiction o1'this Court.

i6. The Georgia Attorney General has been notified of this action pursuaut to O.C.G.A. $ 9-4-7
and other applicable laws, as this case dralvs into qurestion the

validity of state legislation.

17. Venue in Fulton County, Georgia, is proper.

BELBVANT FACI]S
18.

On ApLil 26. 2016, Georgia I-louse Bill 514 (ret'erred to herein as "Flcruse l3ill 514")
signed into law, causing for a referendum and vote on the creation of "the City

of

r,vas

South

Fulton," whose municipal boundaries "shall include all unincorporated areas of Fulton
County, including the Fulton County Industriai District, as such exist on Juh, 1. 2016."
House
19.

Bill 514, Section 1 .I 1.

Days after Ifouse

Bill

514's passage, College Park leceived two separate landowner

airnexation petitions Ii'om Coca-Cola Refreshments IJSA, Inc. and Manheim Remarketing,
Inc. on April 29, 20I 6 arid May 3, 2016, respectively (petitions coiiectively refered to herein

as the "Annexation Petitions"), seeking

to annex, pursuant to the State Anlexation of

Territory Act (O.C.G.A. $ 36-36-1 et ai.) (relbrred to i-rerein as "Annexation Act"), trventlz-

six parcels of propelty located along Buffington Road ald Roosevelt Highrvay
unincorporated Fulton County (property ret'erred

in

to irerein as the "Subiect Property")

(Annexation Petitions are attached hereto as Exhibits A and B, respectiveiy).

20. The aforementioned landornrlers accompanied

the Annexation Petitions with requests for

rezoning o1'the Strbject Property fio:n M-1 (Light Industrial) in Fulton County to ]t4-1 (Light

Industrial) in College Park (requests are attached hereto as Exhibits C ancl I), respectively).
21. Coliege Park prornptly provided notice

of the Annexation Petitions to Fulton Courty,

via

certitied mail, in a letter dated Nfay 4,2016 (notices and deiivery confirrnations attached
hereto as Exhibit E),

22. College Park's Planning Commission reviewed, assessed and recommended apploviii of the
Annexation Petitions on N{ay 23,2016 (See Ivlay 23,2016 rnemo attacl.red hereto as Exhibit
F).

23. Fulton County's Department o1'Planning and Community Services

assessed the Annexation

Petitions.
24.

Fulton County's Department ofl Planning and Commr"rnity Services

is

charged with

overseeing Fnlton County's land use map, the cornprehensive plan, zoning applications and
plocedtrres, policy regulation and community outreacir ancl Iiaison scn ices.

25. FLrlton Counly's Department of Planning and Comnrunity Services advisecl Fulton County's
Board of Commissioners that they should not object to the Anriexation Petitions.
26. An or about June 1,2016, Fulton County's Department of Planning and Commrmity Services
notifiecl Fulton Couulv's Boald of Conimissioners that it foturd "no basis upon r.vhich to file

valid objection" to the Annexation Petitions (Exliibit G).

27. On or about Jrrne i ,2016, Fulton County's Department of Planning and Community Services

lhrther notified Fulton County's Board of Commissioners that the Annexation Petition's
"proposed zoning and iand use designations" were "consisterit witir current Fu]ton Count.v

Zoning and the leurd use designations" (See Agenda Item Summary attached hereto

as

Exhibit G).
28. On or about .Iune 1, 201 6, Fulton Couuty's Departrnent of Planning and Community Services
sought to obtain the Fulton County's Board of Commissioners "approval to notif,v the City

o1'

College Park" that Fulton County had no objection to the Annexation petitions (Exhibit G).

29.The Fulton County's Board

Department
Defbnclant

of Planning

of

Cornmissioners reiected the recommendation

of

their

anci Community Ser.'r'ices, instead passing a tnotion, tuade by

Arrington and seconded by Defendant Eaves, ob.iecting to the Annexatiort

Petitions. (See Fulton County.Tune 1,2016 Post Agenda Ivlinutes attached hereto as Exhibit
H).
30. On

or about Jr:ne 8. 2016, College Park's Vlayor's office receivecl a letter fi'om Fulton

County's Deparlment of Planning and Community Services (letter referred to herein

as

"Objection Letter" and attached hereto as Exhibit I) asserting that:

"F-ulton County objects to the proposed annexation based on a nraterial increase in

burden upon the County directly related

to the proposed density

and the

infiastructure demands related to the ploposed change in zoning and land use."
31.

Fulton County

did not inclucie

ancllor relbrence within the Objection Letter

any

documentation or eviclence to support its asserted objection (Exhibit I).

32. Fulton County's Ob.iection Letter does not comport i,vith the requirements of tire Annexation

Act to constitute a valid objection (Exhibit

I).

O.C.G,A.

36-36-113.

33. Fulton County's Objection Letter is inconsistent rvith the recommendation plovided

to it by

its own Department of Planning and Commnnity Services (Exhibits G & I).
34, Fulton County has

Annexatiou Act.

no valid basis tbr objecting to the Annexation Petitions nnder the

in bad faitli, in an attempt

35. I"'ulton County's Objection Letter is subrnitted to College Park

to

uniar.vfully cieiay and interl'ere with Clollege Part's entitlerlent to annex the subject properties
under the Annexation Act.
36.

As Fulton County's Objection l,etter does not comport rvith the requirements of
Annexation Act (O.C.G.A. $ 36-36-l et al.),
Department

it cioes not confer

the

juriscliction to the state

of Community r\ffairs to compel College Park to participate in the proscribed

statrrtory arbitration process.

37. The Department of Commr"urity Affairs is charged under the Annexation Act rvith facilitating

arbitration paneis for resolution of annexation dispr.rtes. O.C.G.A.

Ss

36-36-1 14.

38. The Department of Community Affairs has advised College Park that

if Fulton Clount,v secks

to proceed on its Objection Letter, "there is no reality in r.rftich \\/e ciur envision the
arbitration process corrcluding by.Tuly 1," the date l',y u,hich House Biil 514 declares all of
unincorporated Fulton County to be the City of Soutir

Fulton

Department of Community Affairs attached hereto as Exhibit

39.

(see correspondence fror-n the

.T).

l'he Departn:ent of Community Affairs has further advised Coliege Park that "[i]f DCr\
receives the necessary paperwork [frorn Fulton County] to initiate
process, ive

t]e annexation arbitration

will be compelled by statute to undertake it."

40. To College Park's detriment, Fulton CountS, has since reqr:estecl that the Georgia Department

of Community Affairs faciiitatc the lengthv arbitration process on the ba.sis of its unltrrvfirl
Objection Letter (see correspondence from the Deptrrtment of Community Affairs atttrchecl
hereto as Exhibit K).
41

Section 7 .74 of House

Bill

514 provides that:

The election superintendent of Fulton Cormty shall call a special election lbr the
purpose

ol submitting this Aot to the qualified voters o[ the proposed City

ol'Sor.rth

Fulton, as provided in Secticrn 7.13 of this cliarter, tbr approval or rejection. The
superintendent shall set the date of such election fbr the 'fuesday next follor,ving the

first lvlonday in November,2016. The superintendent shaLl issue the call fcrl sttch
election at leasl 30 days prior to the date thereof.
42. House

Bill 514 thereby

pr.uporls

to nLrllify and invalidate rnultiple

1;rovisions nnder the

Annexation Act as of July I ,2016,

43. Fulton County's Oitjection Letter is submitted to Collegc Park irr bad taith, in an attempt to
delay College Part's vote on the Annexation Petitions beyond the July 1,2016 deaclline in
House

Bill

514,

44. F'ulton County's Objection Letter is submitted to College Parh maliciously, to interfere rvitl"i

College Park's entitlement to iurnex the Sub.iect Properlies under tlte Annexation Ac1.
45.

If Irulton Courrty

and the Electiol Board are not enjoined from proceeding r,vith lhe creatiorr

of the City of South Fulton under House Bill 514, College Park and its citizens rvill

be

irreparably harmed, including the loss of College Park's rightful claim to territory, as rvell

as

the loss by Coilege Park and its citizens of rnillions of clollars in tax revenue.

COUNT

f)cclaratorv Judgment
(Fulton County's Objection Letter Violates the Anncxation Act)
46.

The aliegations containecl

reference as

il tllly

in all priol

paragraphs

Petition are incorporated by

set forth herein.

47. Fulton County's Objection Letter violates

o.c.G.A.

of this

the Annexation Act on rrult\rle

grouncls.

$ 36-36-113.

48, Particularly, Fnlton County's Objection Letter fails to "document tire naturur

of [it's

elected

O.C.G,A. $ 36-36-113(a)l objection." O.C.G.A. $ 36-36-113(c).

49. Additionally, Fulton County's Objection Letter fails
any financial impact

to "specifically provid[e] evidence of

fbnling the basis of the objection." O.C,G.A,

$ 36-36-1 13(c).

50. Fulton County's Objection Letter is unlawf-ul in that the proposed annexations do not result

in "[a] substantial change in the intensit_v of the ailowable use olthe property or a change to

significantly different allowable use." O.C.G.A. $ 36-36-1 13(d).

51. Fulton County's Objection Letter is urlawf'ul

does not result

in "[a.j

in that the proposed annexation aird rezoning

nse r,vhich significantly increases the net cost

of infrastructure

or

significantly diminishes the value or usetul Iife of a capital outlay project." O.C,G,A. $ 3636-1 13(d).

52. Fulton Connty's Objection Letter is uniarvful

in that the proposed annexation and rezoning

does not "[d]iff-er substantially ti'om the existing uses slrggestecl

for the propert), by

the

county's comprehensive land use plan or permitted lbr the property pursuant to the county's
zoning ordinance or its land use ordinances." O.C.G.A. $ 36-36-1i3(d).

53.As set forth in the Annexation Petitions, no change in zoning wili occur pursuant to

tire

proposed amexations.
5r1,

By Fulton County's zoning clepartment's ow1 admission, Fulton County has "no basis tpon
which to t'ile a valicl objection" to the Annexation Petitions.

55. College

Park seeks judicial declarations that F'ulton County's Objection ietter is non-

compliant with the Annexation Act and that Fulton County has "no basis qron r.vhich to file

valid objection" to the Annexation Petitions.

COUNT 2
Declar:ttorv Judgment
(House
56.

Bill5I4

is Invalid Duc to Conflict

The allegations contained

rel''erence as

if tully

with the Annexation Act)

in all prior paragraphs of this Petition are incorporated

set forth herein.

by

57.I-Iouse

Bill 514 is invalid in that it

conflicts with the Annexation Act and pluports to

invalidate rnultiple provisions therein.

58, Where there
Inagawa

is a "conflict fin legislation], the local act must yield to the general statute."

v. Fa),ette Corlnty,29l Ga. 715, 719 (2012);

S,ee

also City o1' Atlaqta.v. Hudgins,

193 Ga.618 (1) (19 SE2d 508) (1942) (hoiding that general laws prevail over conflicting
Iocal laws); Savage v. Cit], o1'Ajlanta,242 Ga. at 679-680 (3) & n, 10 (invalidating locai

la,uv

that was contrary to general larv).

59. House Bill 514's provision that "the City of

Sor-rth

Fulton...shall include all unincorporated

areas of Fulton Cormty. . . a.s such exist on July 1, 2016," is in conflict r,vith general law which

authorizes municipalities to annex territory

[the Annexation

Act]." O.C.G.A.

60. T'herefore, r.vhile the Annexation

"in

accorclance rvith the procedures provided in

$ 36-36-21.

Act mandates tirat upon cornpliance vi,ith its procedures,

"such lands shall constitute a part of the lands within the corporate limits of the [annexing]

rruricipal corporation," Flolrse Bill 514 provides that such annexed property shall iristead
consist of "the City of South Fulton" should the parlies

lbllow the procedures of Annexation

Act beyond July 1 ,2016. Compare O,C.G.A. $ 36-36-21, rvith House Bill 514, Section 1.11.
61. House

Bill

514 thus imperr:rissibly places a timefran:e and expiration on the period of

applicably of fl:e Amexation Act.

62. For example, the Annexation

Act plovides that "ff.]olior,ving the conclusion of the dispute

resoiutiott process outlined in this article, the municipal corporation... may

the remaining annexation process, O.C.G.A. $ 36-36-

63. T'his

.,.

proceed r,r,ith

17.

is in conflict i,r,ith l-IB 514 which purports to place an expiration on College Park's

authority to proceed as set folth under O.C.G.A. $ 36-36-117.

64. As House

Bill 514 is in conf'lict rvithrlultiple provisions of the Annexation,A.ct, it

shor"rld

L.,c

III, $ Vl, Para. IV)

contained in all prior patagrapirs of this Petition are incorporated

by

declared invalicl.

COUNT

Declaratory Judgment

(llouse I]ill514 Violates Ga. Const. Art.

65.

The allegations
reference as

if

fr-rlly set tbrtl-r herein.

66. House Bili 514's conflict with the Annexation Act renders it unconstitutional. Ga. Const.
Art. III, $ VI, Para. IV.
67. Particularly, the Georgia constitution provides that:
"La\,vs

of'a general nature shall have uniform operation throughout this

state arrcl

no local or special law shall be enacted in any case {br u,hich provision has

l-reen

made by an existing general law, excepl that the Generai Assernbiy may by general

law authorize local governments by local ordinance or resolution to exercise police

powers which do not conflict with genelal laws."
Ga. Const. Aft.

IiI, $ VI, Pala. IV(a).

68. z\s such, House

Bill 5 i4

shouicl be declared unconstittrtional.

COUI{T

I_nterlocutorv In iunction

(Enjoining the Election Board from Representing the Subject Property as Being within the

Territorial Bounds of the Cify of South Fulton in the Special Election under House Bill
s14)
69.

The allegations contained in all prior paragraphs of tiiis Petition are incorporated
reference as

iffully

b1,

set fortir herein.

70. Immediate interlocutory relief is necessary in this matter to protect College Parl<'s interests
and prevent the Subject Property tiorn being deemed, appropriated, and/ol acivertised as the

City of South Fulton effective .iuly 1, 2016, as set forth in House Bill 514.
r0

Tl. "Equitable relief is generally a matter witirin the sound discretion of the trial court." State
Farm Mr-rt. Auto. Ins. Co. v,-Mabry,274 Ga.49B, 510 (2001).

72. Injunction

is an "appropriate

remedy" where

a legislative act complained

appears

"uncoustitutional and void." Sqr.rthwestern R. Co. v. Southern & Atlantic Tel. Co.,46 Ga. 43,
s1 (1872).
73.

It is Iong

standing tradition

in Georgia that "fe]quity will enjoin municipal authorities

Ii'om

holding an election to determine whether a given territory shall be annexed to the city, rvhen
the [legislation] calling fbr the election" appears faulty. Mayor &c. of N4acon v. Hr.rghes. 110
Ga, 795 (i900).
74. Consequently,

equity rnay enjoin an election in situations iike the present "where

the

constitutional riglrts of citizens and taxpayers are sought to be invaded by an attempt to make
an unconstitutional or inapplicable iaw operative thlough the means o1'an

election." Iown ol-

Maysvil-lgv. Smith, 132 Ga.316 (1909); County of DeKalb v. Atlanta, 132 Ga. i27 (1909);
Marbut v. Flollingshead, 772 Ga.531, 538-539 (1931).
75. This is consistent r,vith the pupose

of a preliminary injunction: "to presewe the

status quo

and prevent allegedly irreparable injury until the court [has] the opportunity to decide
whether

to issue a permanent injunction." Schiavo ex rel. Schindler v. Schiavo, 403

F.3d

126r,1262 (1lth Cir. 2005).

76. House

Bill 514 cails for "ftlhe election superintendent of Fulton County" to advertise ancl

prepare

for "a special election" to occur during the fir'st week in Novenrber on 2016 ibr

public vote on the proposed City of South Fulton. I-Iouse Bill 514, Section 7.14.
77. Similar to the cases cited above, the adveltisement of the Subject Properties

in such special

election as being parl oi'the City of South Fulton rvill bring about uncertainty with respect to

1i

the iegality of the referenduin, causing confusion and the increased likelihood of

inultiplicity of suits.
78. College Park thelelbre l'espectflrlly requests that the Courl temporarily enjoiu and r:estrain the

Election Board liom representing the Srib.ject Property as being part of the territorial bounds
of the City of South Fulton in the special election under House

Ilill

514.

79. The harm should such election proceed wouid also include College Park's loss of its tiglrtful

claim to territory and

hr"rncirecls

of thousands of clollars annually in tax levcnue.

80. A preliuiinzuy injunction r,vill irnpose minimal,

if any, harm in this matter

and is necessary to

preserve the status quo with re.spect to the Subject Property r,vhile serious questions about
House

Bill 514's constitutionaiity

are assessed.

81. College Park additionally requests tirat the Court enter adclitional interlocutory, enlergency

and injunctive relief against Defendant.s, as necessary, to protect College Palk's interests
prior to July 1, 2016 and throughout the litigation.
82. Counsel

fbr College Park, by signing this Petition, hereby certify that the Georgia Attorney

General (Attorney General Sam Olens (Email: AGOlens@larv.ga.gov) and Kathleen

Pacious (Email: kpacious@larv.ga.gov), Office

N'I.

of the Attomey Gencral, 40 Capitol

Square, SW, Atlanta, Ga 30334) and counsel fol Det-endants (Fulton County Attorney

Patrise

M. Perkins-I-Ioolier (Email: patrise.perl<ins-hookcr@lultoncountyga.gov) and

Assistant F'ulton County Attorney Steven Rosenberg

(Email:

steven.rosenberg@fultoncountyga.gov), Irulton County Ol'lice of the County Attorney,

141

Pryor Sf. SW, Suite 4038, Atlanta, GA 30303) have been

provide=cl

with a copy of this

Petition and notice of College Park's intent to seek an immediate hearing on this matter.

t2

83.

As a result, the interests of the parties are representecl and available for

cletense, ancl

hearing on the issuance of an inlerlocutory order on June 20, 2016 and/or a1 the Court's
earliest opportunity is warranted and proper.

COUNT 5

Interlocutorv In i unction
(Enjoining the Subject Property from Becorning ancllor Being Representcd as thc Citv of
South li'ulton Efl'ective July 1,2016 under House Bill514)
84.

Tire allegations coutained

reference as

85. I"{ouse

Bill

ii'fully

in all prior

paragraphs

of this Petition are incorporated

by

set folth herein,

514 unlaw1'uily provides that the territorial bouncls

of the City of South Fulton

"slrall inchrde all uniricorpomted areas of Fulton County, incitrcling the Fulton County
Industrial District, as such exist on July 1, 2016." House Bill 514, Section
86. 'Ihe occlrnence

of such will

cause College Parli's loss o1 its

.1

rightful claim to territory

ancl

hundreds of thousands of dollars annrially in tax revenue.

87.

An interlocutory injunction enjoining the Subject Ploperty from becoming and/or

represented as the

being

City of South Fulton effective July i,2016, as set lorth urder Llouse Bill

514 is proper and necessaq, to prevent such irreparable harm and pleserve the status qr.ro
lvhile serious questions about l-louse Bill 514's constitutionality are revier,ved.
88.

As such, a hearing on the issuance of an immediate interlocutory order on June 20, 20i6
and/or at the Court's eariiest opportunity is warranted and proper.

COUNT

Bconomic Dirmages
89.

The allegations contained

rel'erence as

if fully set ibrth

in all prior paragraplis of this Petition are incorporated

herein.

13

by

90. Fulton Corinty and

its commissioners are knowingly violating the Aunexation Act

rvith

respect to the Annexation Petitions.

91.Fulton County and its commissi<lners irave no valid, legal basis to object to the Annexation
Petitions.
92, Fultorr County and its cor:rmissioner's Objection Letter is legally invalid.
93, College Park has incurred and

will

continue to incur economic danrages in this action as a

result of Fultori County and its commissioners' actions.

94. Fulton County and its cornmissioners' actions are in bad fhith, making thern likewise liable

for the economic clamages caused to College Pal* by such ntiscouduct.

95. Fulton Counly and its commissioners' reckless and blatant violatiou

make

it

of the Annexation Act

reasonable to conclude that their actions are an illegal attempt to deprive College

Park of its right to annex the Subject Property.

96. College Park stands to lose millions of dollars in revenue

iiorl

property taxes that would be

assessecl upon the Sub.iect Propelty,.

97. This revenue would be used

to irnprove the infi'astn-rcture, facilities, utilities,

anci seruices

otfered by College Park to its citizens.

98. As such, the economic damages to College Park

will easily exceed $15,000,000.00.

99. College Park requests to be awarded up to and above the same, with the precise am.oult of
economic damages to be proven at trial.

COUNT 7

Aftorlgv's

100.

Fees

The allegations contained in all prior Paragraphs of this Petition are incorporated by

reference as

if fully

set fbrth herein.

L4

101.

Fulton County and its commissioners ale operating in bacl faith through their continuecl

invalid and iilegal objection to the Amrexation Petitions.

102,

Fuiton County and its commissioners are being stubbornly litigious in forcing Co)iege

Park to incur effort and expense, including attorneys' fees,

fol initiating

anci maintaining this

action,

103,

Pursuant to O,C.G.A. $ 13-6-11, College Park is entitled to recover its expenses forthis

litigation flom Fulton County and its commissioner's, including attorneys' fees.

WHEREFORE, Plair-rtifl'Collcge Park respectfully prays that this llonorable Court:

a.

I)eclare that Fulton County's Objection Letter is non-compliant with the Annexation Act

and that Fulton County has "no basis upon which to

file a valid objection" to

the

Annexation Pelitions, and enter interlocutory, emergency and injunctive relief,

necessary,

to protect College Park's intelests prior to July 1,20i6 and throughout

as

1he

litigation;

b.

Declale that I-{ouse

Bill 514 is in conflict with rnultiple provisions of the Annexation Act

and is thus unenforceable and invalid, partialll, andior in its entirety;

c.

Declare that House

Bill

514 is unconstitutional and in violation of Ga. Const. Art.

VI, Para. IV(a), and is thus unenforceable

d.

Set this matter

ancl

III,

invalid, partially and/or in its entirety;

for a hearing on June 20,2416 and./or at the Court's earliest opportunity

and thereafter issue an interlocutory injunction restraining the Election Board from
representiug the Subiect Ptoperty as being part of the territorial bounds
South Fulton in the speciai election undel House

e.

Bill

of the City of

514;

Setthis matter for a hearing on.Iune 20,2016 or at the Court's earliest oppol'tunity and
thereal'ter issue an interlocutory injunction enjoining the Subject Property fiom becoming

i5

and/or being represenled as the City of Sor"rth Fulton efl'ective

juiy 1,2016, as set forth

turder I-louse ISill 514;

Au,ard College Park economic damages against Fulton County and its Board of
Commissioners in an amolrnt up to and above $15,000,000.00, with the precise amount to
be determined by the fact finder;

Awald Plaintiff College Park attorneys' fees and costs in corurection with Fulton County
and its Board

of Commissioners'misconduct, pursuantto O.C.G.A. $ 13-6-11

aucl other

applicable laws; and

h.

Grant Plaintiff College

ParL<

any such additional relief as the Court finds just and proper;

including any additional interlocutory and permanent equitable relief the Court deems
necessary to protect College Park's iai,vful interests witlt respect to the Subject Property,

Respectftrlly sub,rittecl,n,,

Jd;y or- Ifne

2016.

ATTORNEYS FOR T}IE CITY O}'COLLEGE I'ARK:

STEVEN M. FINCHER
Georgia Bar No. 260325
WINSTON A, DENN,IAITI(
Geolgia Bal No. 2117 5)
EMILIA C. WALi(E,i{
Georgia Bar No. 558385
JOHN O'NEAL
Georgia Bar No. 822618

FINCHER DENMARK & MINNIFIELD LLC

8024 Fairoaks Coufi
Jonesboro, Georgia 30236
(7 7 0) 47 8-99 5 0 (telephone)
(7 7 0) 47 l -9948 (facsimile)

i6

INI

CITY

OIT

THE SUPERIOIT COURT OF FULI]ON COUNTY

STATE OI.'GF]ORGIA

COLLEGE PARK, GEORGIA,

Plaintiff,
Civil Action File

v.

No.:

2016CV276450

FULTON COUN'I'Y, GEOIIGIA, et al.,

Defendants.

rqR.JMNrEprATE EOrrrTAflI,E 4Np

IN.IUNCTIVE RELIEF

CnRTTFTEAT_E OF SBRVTgE QrL &EOUEST

I, En:ilia C. Walker, connsel for the City of College Park, and pursuant to O.C.G.A $ 9-4-

7, and other applicable laws, hereby certifl, that I have tI:is day, on June l/,.2016, provided the
Georgia Attorney General iurd counsel fbr Delendants lvith notice

ol this action and College

Park's intent to seek air immediate hearing and interlocutory order on the sarle, by sending

copy of this Verifiecl Petition.fbr Declaratory .ludgment and Immecl.iate Equitable and Injunctive
Relief, by overnight Fed-Ex delivery and email, to:
Sam Olens, Georgia Attorney General

Email: AGolens@law.ga.gov
Kathleen NI. Pacious, Deputy Attorney General
Iimail: kpacious@law.ga.gov
Office of the Attorney General
40 Capitol Squarc, SW
Atlanta, Ga 30334
Patrisc M. Perliins-Hooker, Fulton County Attorney
Emlil: patrise.perkins-hooker@fultoncountyga. gov
Steven llosenberg, Assistant Eulton County Attoruey
Enr;ril: steven.rosen berg@fultoncountyga. gov
Fulton County Oflice of the Counfy Attorney
141 Pryor St. SW, Suite 4038
Atlanta, GA 30303 4

ffi
Georgia Bar No. 558385

t7

IN THE SUPBRIOIT COURT OF FULTON COUNTY

STATE OF GEORGIA

CITY OF COLLEGE P-ARK, GEORGIA,

Plairrtiff;

Civil Action File No.:

2016CV276450

FULTON COUNTY, GEORGIA, et al.,

Defendants.

vERII'tcATlON
PERSONAI-LY APPEAITED before me, an oflicer duiy authorir"edby law to aclnrilister
oaths, Terrance R, Irtfoore, the lawf'ully and duly appointed Ciry Manager'lbr the City of College
Park, Georgiu, rvho,

foregoing

aliel first being duly sworn,

states that tlie thcts contained in the rvithin and

VElllFlED PEIIITION FOR DICLARATORY JUDGNIIINT ANI)

IN{MEDL'\TE EQUITAI}LB AND IN,fUNCTIVE IIELIEF are true arrd correct to the best of'
his infonnation and kuowleclge,

$I$tl!?ffi
City Manager

",,,,,,:--'-ffi;*ffi

,,,,,,

ffixhfrhfrt

College Pork Planning Commission

Monheim & Caca Cola Annexotion
Council Ward:

Ward 4

Council,Member:

Roderick Gay

Planning Commissioner:

Whitney Flemister

Planning Commission

Mgeting Date:
t.,t.
Memo Prepared by:

RE:

May 23, 2015

Lauren Blaszyk, AICP

Annexation of 26 Parcels into the Corpoiate City Limits of Cotlege Falk

The City has received an annexation petitlon for 25 parcels from M-anheim Remarketing,

lnc. The parcels are

located afong Roosevelt Highway, with one parcel located on the north side of Roosevelt Highway near
Washington Road, and the additional 24 parcels located on the south side of Roosevelt Highway along
Buffington
Road. The parcels are currently zoned w-1 (Light lndustrial) in Fulton County, ,nU i,o OioOor"l
.,.I j
College Park zoning designation is M.t (Light lndustrial). ln addition, a conditional use request is necessary to
allow for the current use of the property as an auto auctiorr, as this is not an allowed use under College Park's

The City has also received an annexation petition for one (1) parcel from Matthew J. Fanoe, VP of Real Estate for
Coca Cola Refr-eshments QSA, lnc. This parcel is located at 5300 Buffington Road. This parcel is currently zoned

M-1 (Light lndustrial) in Fulton Coqnty, and the proposed College Fark zoning designation is M-1 (Light
lndustrial). ltscurrent and future

us.e is a Coca Cola

bottling planL

A list {Table 1. Proposed Parcels for Annexa'tion) and map of all parcels requested for annexation is attaqhed,
along with the annexation petitions, rezoning applications; and conditional use application (Manheim
Remarketing, lnc. only). The list of parcels includes the current Fulton County zoning district and Future Land
Use Map designation, as r,vell as the proposed College Park zoning district and Future Development Map
Character Area designations.

Staff recommends approval of the.annexation of 25 parcels owned by Manheim Remarketing, lnc. witlr a City of
College Park zoning designation of M-1 (Light lndustrial) and a conditional use to allow for the continued use of
the property as an auto auction. Staff recommends Future Development Map Character Area designations as
listed in Table 1.
Staff recommends approval of the annexation of one parcel owned by Coca Cola Refreshments USA, Inc. with a
l
City of College Park zoning designation of M-1 (Light lndustrial) to allow for the continued use of the property as
a bottling plant. Staff recommends the Future Development Map Character Area designation as listed in Table
1.

ffixhBbEt

(N
' 4 Efffi

E+aEi
PtIEr.'{!

IgL'a,P@I
E@. t|7r -'!E
@El 'c' 'r-@'S

wi.alh*&
ffiW

Depqrtment of F!:pnning and Community Services

Fulton County Governrnent Service Center

At Fulton lndustfial Boulevard

5440 Fu'lton tn'd:us'tria l Boulevar:d
Atlanta, GA 30336

rllffi.$il fffi[IHTY
June 3, 20L6

Honora ble Jap-k, F, [on gino

Mayor
CitysfCollege Park
F:O. 8ox,,87137
College, P.ar:k, GA j30337

RE: Buffihglon Road and Roosevelt HighWay community Annexation Notice

Dea.r':rl\4ayoi,Lo n$in o:

provide notification thqt, the Fulton Counly Boar:d of

Commissioners, at its June 1, 20tr 6,meetin,g; a'pproved an obiection to;the proposed annexation of
:Roosev e lt Highwa,y,
app roxi mately 18a acres. a ion g Buffi n glon Road a nd

The purrpose of this letter is

to

Fulton Countyo-hjects to the proposed annexation based o,n a,material increase in burden upon
the eounty Oire"itV r:elated to the proposed density and the infrastruature demands related to
th e ,p-rro:posed ,ch,anBe in zoning or land use'
SincerelV,

#b;^b*.***4-4
) (t
V

Ran-dy Beck

Directof

cc:

Mern.ber:s of th,e Fu'lton County Board 'of Cornmissioners

Patri se P.erki ns- Hooke r; F u lton Co u nty Atto fn e17

Melissa Brooks, City of College Par(

p;\C.A.p.rcjacr.s\ECDr.20,l.ir

CitrT

Clerk

Annsr,3tians\6-3--td BOC.Aprion.Resptuse,,Letter

- Coilege,Par:k

184 ucrcs OBJECTION <Jocx

ffixhEhEe

Salem Desir
From:
Sent:

Emilia Walker <ewalker@fdmlegal.com >

Thursday, iune 09, 2016 5:16 PM

To:

sdesir@fdmlegal.com
FW: 0037-1157 College Park Anrrexation Buffington Road: Buffington Road Annexation

Subject:

Follow Up FIag:

Follow up
Flagged

FIag Status:

Fro m : Jon West [ma.ilto rJo n.

\&.e.

St@dqa. ga. gov]

Sent: Wednesday, June 08, 2016 4:57

To: Emilia Walker

PM

Cc: Brian Johnson

Subject: RE: 0037-1157 College Park Annexation Buffington Road: Buffington Road Annexation
Ms. Waiker,
Thank you for contacting DCA on this matter, lt was a pleasure chatting with you.
At the time of this message, DCA has not received the materials necessary to initiate the annexation arbitration
process from Fulton County,

lf DCA receives the necessary paperwork to initiate the annexation arbitration process, we will be compelled by
statute to undertake it. Given the statutory timeline for the arbitration process, there is no reality in which we
can envision the arbitration process concluding byJuly 1. Because the annexation arbitration panel is comprised
of volunteers from across the state and the ultimate composition of the panel is derived as a result of process
that takes all ofthe 15 days provided by statute to orchestrate (and even that is typically difficult to satisfy),
there is no meaningful opportunity to expedite the process.
DCA has no role in validating the grounds upon which the county-level government bases its objection(s). The
only body, outside of the courts, empowered to make those judgements is the arbitration pa nel provided for by

statute, Asmentionedabove,thetimelinenecessaryforempanelingagroupof

qualifiedvolunteerstohear

arguments and render a decision would take the parties past the July 1 deadline set by the legislature.
You asked if DCA had ever been faced with similar issues in the past. I mentioned that the first and only time anything
similar has been encountered was last year in a dispute between Cherokee County and the City of Holly Springs. While a
number of unrelated issues were at-play in that case, the issue of purportedly lnvalid grounds for an objection was a
factor. Only the arbitration panel (or a court of larv), is empowered by statute to evaluate the grounds for an objection
to an annexation, Once DCA receives a timely objection, it is compelled to initiate the process. You'il find discussion of
this in the attached pdf containing correspondence between DCA and the two parties involved in that case on: 1) page
24 of the pdf in the last paragraph of DCA's 8/1,4/2A75 response to the Holly Springs regarding that City's decision to
effectively opt-out of the process due to purportedly invalid grounds; and 2) on page 27 of the pdf in the second

paragraph of an 8/1712015 letter from Cherokee County's attorney to the City of Holly Springs.
Let me know if we can be of further assistance.

--Jwest

rd{a;"

(# Georgta:x'***u.o.,,,

.fti'f lt'r-f

Cornr*unity A,ffelrs

Jsn A. West, AICP

Senior Planner: Local & lntergoverrrrnental Programs
Georgia Department of Communlty Atfairs
60 Executiva Park South, NE

Atlanta, Georgia 30329

Learn cpra abottt out commilntotil [() fii.!'tQgsrxg,

Direct 404-327-6872
Fax'/7A-302-L)703

lg!:r=We$tr0.dqu&.gs!

From: Emilia Walker [rn ailto :ewal ker@fdmlegal.com]

Sent: Wednesday, June 08, 2016 3:57 PM
To: Jon West <J.gn !Vs5!-@dca.E3.g_qv>

Subject:0037-1157 Cotlege Park Annexation Buffington Road: Buffington Road Annexation

Good afternoon, I represent the City of College Park. Please give me a call at your earliest to discuss the attached
annexation notice we received from Fulton County.

Thanks.
Emilia C. Walker, Esq.
Senior Associate

Direct Dial: (770) 692-2034

ATTsti!{sY,$ AT LA},i,
sf.$t $.${r{{B* *{{.rn *,}xii}r'i;ssi s.r, a$iliiht

y&ir*{4.e.S}r$t*.Ii*.rf r:ffi {ilt{$.

Alolryrl*e

ffixhEbf;e K

I]II

Salem Desir
Emilia Walker <ewalker@fdmlegal.com>
Thursday, June 09, 201"6 5:15 PM

From:
Sent:
To:

Subject:
Attachments:

sdesir@fdmlegal.com
FW: Annexation Objection - Fulton County and City of College Park
HB2A - Objection to City of College Park for Atlanta Auto Auction and Co,...pdf; HB2A
Attachment - Objection to City of College Park for Atl Auto Auction....pdf; College Park
Annexation Application.pdf; HB2A - Objection to City of Atlanta for Martins Park
Annexation - June 2..,.pdf; HB2A Attachment - Objection to City of Atlanta for Martins
Park Annexati...,pdf; Annexation Martins Park Atlanta Notice Letter - 60 Percent
Method.pdf; HB2A - Objection to City of Atlanta for Cascade Falls Annexation - June
....pdf; HB2A Attachrnent - Objection to City of Atlanta for Cascade Falls Annexat....pdf;
Annexation Cascade Falls Atlanta Notice Letter - 60 Percent Method.pdf

Follow Up Flag:

Follow up

Flag Status:

Flagged

From : lon West [mailto:Jon,West@dca.ga.gov]

Sent: Thursday, June 09, 2016 4:31

To: Reed, Shayla

PM

Cc: Beck, Randy; Macauley, Michelle; Perkins-Hooker, Patrise; Rosenberg, Steven; Smith, Jenise; Lauren Blaszyk; Emilia
Walker; PEMD OPQG Administration
Subject: RE: Annexation Objection - Fulton County and City of College Park
The Georgia Department of Community Affairs has received the attached materials from Fulton County pursuant to

three requests for Annexation Arbitration. DCA will examine the materials immediately and be in further contact with
information about "next steps".
Thank you.

-J.A.West

drG,F

(&Georgiirr,:.+*t*.o,,,*fij

,',.fl,r'.
;u

Jon A. West, AtrCP

"-L

f,ommunity Affalrs

Senior Planner: Local & lntergovernmental Programs

Georgia DeFartment of CcnTrnunity Affairs
SO Executive Park South, NE
Atlanta, Georgia 30329

Laarfi rnora ahatrt our committnent to W-Le!l^$!ng.

Direct 404-327-6872
Fax 770"302-9703
lar.W-g-9.t@-q"c-a.g.i-,gg-Y