4.

MEMORANDUM
MEETING OF: December 30, 2021
COMMITTEE: Brookhaven City Council
DEPARTMENT: Legal

ISSUE/AGENDA ITEM TITLE:

Consideration and Approval to Amend Ordinance 2021-11-02 an Emergency Declaration of the
City of Brookhaven as Authorized by O.C.G.A. 38-3-28, to Establish Emergency Powers of the
Mayor, to Crate an Effective Date, and for Other Purposes - City Attorney Chris Balch

FUNDING SOURCE:
N/A

ACCOUNT NUMBER:
N/A

BACKGROUND/SUMMARY:
Please see attached.

STAFF RECOMMENDATION:

ATTACHMENTS:

• 211229.Final Emergency Ordinance Amendment (DOCX)

Page 1
Packet Pg. 10
 4.2.a

Attachment: 211229.Final Emergency Ordinance Amendment (ORD-2021-12-08 : Consideration and Approval to Amend Ordinance 2021-11-02
AN ORDINANCE TO AMEND ORDINANCE 2021-11-02 AN EMERGENCY
DECLARATION OF THE CITY OF BROOKHAVEN AS AUTHORIZED BY
O.C.G.A. § 38-3-28, TO ESTABLISH EMERGENCY POWERS OF THE MAYOR, TO
CREATE AN EFFECTIVE DATE, AND FOR OTHER PURPOSES

WHEREAS, the City of Brookhaven has been operating pursuant to an Emergency Declaration
since March 16, 2020; and

WHEREAS, in the last two weeks the State of Georgia has seen a spike of 72,000 positive
COVID-19 cases;

WHEREAS, the City has coordinated and worked with CovidCareGa to provide drive-through
COVID-19 testing and vaccination facilities in the City; and

WHEREAS, Drive-through testing is a critical aspect of community care for the health and
welfare of the citizens of the City of Brookhaven and DeKalb County; and

WHEREAS, Access to COVID-19 testing and vaccinations is fundamental to the health,

welfare, and safety citizens, residents, and visitors to Brookhaven and DeKalb
County; and

WHEREAS, in the judgment of the Mayor and Council of the City of Brookhaven, there exists
emergency circumstances located within its jurisdiction requiring extraordinary and
immediate response for the protection of the health, safety, and welfare of the
citizens of the community, the state, and the nation; and

WHEREAS, it is essential for the governing authority of the City continue to act in order to
minimize the spread of COVID-19 and to prevent or minimize sickness, injury, or
death, to people and damage to property resulting from this public health crisis; and

WHEREAS, O.C.G.A. § 38-3-28 provides the political subdivisions of this state with the
authority to make, amend, and rescind such orders, rules, and regulations as may
be necessary for emergency management purposes to supplement rules and
regulations promulgated by the Governor during a State of Emergency; and

WHEREAS, the United States Supreme Court has previously held that “[u]pon the principle of
self-defense, of paramount necessity, a community has the right to protect itself
against an epidemic of disease which threatens the safety of its members”; and

WHEREAS, the Charter of the City of Brookhaven provides the governing authority of the City
with the authority to take actions deemed necessary to deal with such an emergency
for the protection of the safety, health, and well-being of the citizens of the city;

NOW, THEREFORE, IT IS HEREBY DECLARED that a local state of emergency exists

within the City and shall continue until the conditions requiring this declaration are abated.

Packet Pg. 11
 4.2.a

Attachment: 211229.Final Emergency Ordinance Amendment (ORD-2021-12-08 : Consideration and Approval to Amend Ordinance 2021-11-02
Section 1. Findings of Fact

For purposes of describing the circumstances which warrant the adoption of an emergency
ordinance, the governing authority of the City hereby adopt and make the findings included in the
“WHEREAS” clauses as findings of fact.

Section 2. Extension of Declaration of Public Health State of Emergency

The Mayor and City Council hereby extend the public health state of emergency first declared
and established by Ordinance 2020-05-03, within the City because of the proliferation of COVID-
19 in the United States and the State of Georgia, which will remain in force and effect as provided
herein.

Section 3. Delegation of Authority for Public Response to the COVID-19 Global Pandemic

The City Council expressly delegates and directs that the Mayor, City Manager and City Attorney,
working together, have the authority and power to initiate emergency use of private property for
public purposes to mitigate the spread or impact of COVID-19, to include the initiation of
negotiations or actions for the short-term taking of real property (not fee simple ownership) for
public purposes, to enter into leases or other agreements with private property owners and others
to respond to the COVID-19 Global Pandemic,

Section 4. Mayor Retains Executive Authority over other COVID-19 Responses

Nothing in this Ordinance is intended to change or alter the authority previously delegated to the
Mayor, as found at Section 6 of Ordinance 2021-11-05 and its predecessors, to issue Executive
Orders as he deems appropriate subject to ratification at a Regular Meeting of the City Council.

Section 5. City Manager Retains Administrative Control over City Operations

Nothing in this Ordinance is intended to change or alter the authority previously granted to the
City Manager or their designee pursuant to Section 4 of Ordinance 2021-11-05 and its predecessors
to administer or control operations of the City and of City Staff.

Section 6. All other Provisions of ORD 2021-11-05 Remain in Force and Effect

All other and remaining provisions of Ordinance 2021-11-05 shall be unaffected by this
Ordinance and shall remain in force and effect, including the suspensions of ordinances and
other enforcement found in Section 9.

Section 7. Finding of Unlawfulness or Pre-emption

If any Court of competent jurisdiction shall find any part or portion of this Ordinance to be
unlawful or pre-empted by State law, such section shall be null, void, and of no force or effect;
however, all other and remaining portions and parts of this Ordinance shall remain in full force
and effect, notwithstanding the invalidated section.

Packet Pg. 12
 4.2.a

Attachment: 211229.Final Emergency Ordinance Amendment (ORD-2021-12-08 : Consideration and Approval to Amend Ordinance 2021-11-02
This Ordinance shall become effective immediately upon passage and it and Ordinance 2021-11-
05 shall remain in effect until 11:59 p.m. on January 30, 2022, unless repealed or further extended
by action of the City Council.

ORDAINED AND RESOLVED, this 30th day of December, 2021.

John Arthur Ernst, Jr.

Mayor

Attest: Approved as to form:

Susan Hiott Christopher D. Balch

City Clerk City Attorney

Packet Pg. 13