Professional Documents
Culture Documents
Acals
u!lhcSlalcu!Lcurga
ATLANTJecember 19, 2013
The Court of Appeals hereby passes the following order:
A14A0762. CITY OF BROOKHAVEN ET AL. N. CITY OF CHAMBLEE
Appellant High woods Properties, Inc. ("High woods") has fled an "Emergency
Motion for Expedited Review, Supersedeas, and Injunction Pending Appeal," asking
this Court to (1) expedite the briefing schedule and expedite consideration of this
appeal1 in advance ofDecember 30, 2013; (2) issue supersedeas as to the order of the
Superior Court of DeKalb County, Case No. 2013-CV-7808-10, dated October 28,
2013, which is the subject of the underlying appeal; and (3) issue a status quo
injunction keeping Century Center in unincorporated DeKalb County until this Court
decides this case.
Court of Appeals Rule 40 (b) provides:
In the exercise of its inherent power this Court may issue such orders or
give such direction to the trial court as may be necessary to preserve
jurisdiction of an appeal or to prevent the contested issue from becoming
moot. This power shall be exercised sparingly. Generally, no order
shall be made or direction given in an appeal until it has been docketed
in this Court.
Having considered the motion, along with accompanying exhibits and the record, we
hereby GRANT I PART AND DENY I PART Highwoods' emergency motion.
Highwoods' request to expedite consideration of this appeal and to issue supersedeas
This appeal was docketed in this Court on December 1 7, 2013.
as to the order being appealed is denied. However, we grant High woods' request for
a stay to prevent the contested issues from becoming moot and hereby enjoin the City
of Chamblee from proceeding with the annexation of the Century Center property
owned by Highwoods until resolution of this appeal.2 See OCGA 9-11-62 (e).
Court of Appeals of the State of Georgia
Clerk's Ofce, Atlanta, 12/19/2013
I certi that the above is a true extract from
the minutes of the Court of Appeals a/Georgia.
Witness my signature and the seal of said court
hereto afxed the day and year last above written.
,, __ Clerk.
2 Nothing in this order should be understood to address the merits of the
underlying appeal, affect the annexation of property other than the Century Center
property owned by Highwoods, which is the subject of this appeal, or disturb the
injunction against the City ofBrookhaven entered on October 28, 2013. Based on our
review of the record, it does not appear that the City of Brookhaven has sought or has
been granted a supersedeas fom the trial court of the injunction pending appeal. See
OCGA 9-11-62 (a), (c).
IN THE COURT OF APPEALS
STATE OF GEORGIA
Case No. A14A0762
HIGHWOODS PROPERTIES, INC.,
Appellant,
N+
CITY OF CHAMBLEE, GEORGIA,
Appellee.
CITY OF CHAMBLEE'S RESPONSE TO APPELLANT'S EMERGENCY
MOTION FOR EXPEDITED REVIEW, SUPERSEDEAS, AND
INJUNCTION PENDING APPEAL
On behalf of Appellee
City of Chamblee:
Robert E. Wilson
Georgia Bar No. 768950
Stephen G. Quinn
GeorgiaBar No. 153012
WILSON, MORTON & DOWNS, LLC
125 Clairemont Avenue
Two Decatur TownCenter, Suite 420
Decatur, GA 30030
(404) 377-3638 Telephone
(404) 377-3533 Facsimile
IN THE COURT OF APPEALS
STATE OF GEORGIA
Case No. A14A0762
HIGHWOODS PROPERTIES, INC.,
Appellant,
N.
CITY OF CHAMBLEE, GEORGIA,
Appellee.
CITY OF CHAMBLEE'S RESPONSE TO APPELLANT'S EMERGENCY
MOTION FOR EXPEDITED REVIEW, SUPERSEDEAS, AND
INJUNCTION PENDING APPEAL
COMES NOW, Appellee City of Chamblee, Georgia ("Chamblee") and
makes this response to Appellant Highwoods' Emergency Motion for Expedited
Reivew, Supersedeas and Injunction Pending Appeal, showing this Honorable
Court that Appellant's Motion should be denied. Highwoods has not identified any
particular harm that it would suffer if the appeal continues on its normal course
rather than the expedited Holiday briefing schedule proposed by Appellant.
Moreover, weighing of the equities in this matter demands that this Court deny
supersedeas of the trial court's Order and deny Highwoods' requested injunction so
that the Chamblee annexation endorsed by the overwhelming majority vote of the
citizens can take effect as intended by the General Assembly.
I. FACTS PRESENTED
House Bill 619/Local Act 205 was passed by the 2013 Georgia General
Assembly and signed by Governor Deal on May 6, 2013. Local Act 205 describes
certain territory to be annexed into the existing corporate limits of Chamblee (the
"Chamblee Annexation Area") upon confirmation by a referendum vote by the
residents of the Area to be held November 5, 2013. The Chamblee Annexation
Area includes a large residential neighborhood with approximately 11,000
residents as well as approximately 100 acres of commercial property owned in part
by Appellant Highwoods and known as "Century Center." About two months afer
Local Act 205 was signed by Governor Deal, Highwoods made an application to
the City of Brookhaven to annex Century Center by the "alternative method"
known as the "100% method" (O.C.G.A. 36-36-21). On October 8, 2013,
Brookhaven voted to annex Century Center. However, this annexation did not
become effective because it was enjoined by the interlocutory Order of the DeKalb
County Superior Court. On October 28, 2013, the Superior Court issued its fnal
Order finding that Brookhaven's attempted annexation of Century Center was
preempted by Local Act 205 and that Brookhaven was without authorit to annex
Century Center and therefre enjoined from annexing Century Center until and
unless the residents of the Chamblee Annexation Area fil to confirm the General
Assembly's annexation set fot1h in Local Act 205. On November 5, 2013, the
2
Chamblee Annexation Referendum passed with the support of a decisive majority
of voters ( 61 % ) voting in favor of the annexation into Chamblee.
1
II. ARGUMENT AND CITATION OF AUTHORITY
1. The Normal Schedule fr Briefng and Argument is
Required fr this Important Issue and Will Not Harm
Appellant.
Five (5) business days (not counting Christmas Eve) remain to decide this
appeal if this Court adopts Highwoods' proposed timeframe. This Court should
refuse to impose the Holiday briefing and argument schedule suggested by
Highwoods because the issues raised by this appeal are very likely to guide future
annexation and municipalization issues in DeKalb County, Metro Atlanta and
throughout the State and deserve careful consideration.
2
Five business days is an
inadequate amount of time to address the important issues raised in this appeal.
This Court should not rush the briefing and rush to a decision to accommodate
Highwoods' prefrence for scheduling.
2. Equity Requires this Court to Deny Supersedeas and the
Injunction Requested by Highwoods.
It is the specifc intent of our legislature that trial court injunctions not be
automatically superseded on appeal. Howard v. Smith, 226 Ga. 850 (1970).
1
A copy of the relevant potiion of the DeKalb County Election Summary Report
showing the results of the annexation referendum is attached as Exhibit "A".
2
Please see Atlanta Journal-Constitution article dated October 28, 2013 and
entitled "Battles loom over prime real estate", attached hereto as Exhibit "B".
3
Highwoods has not cited a single annexation case wherein a Georgia Appellate
Court has granted supersedeas or a "status quo injunction" to prevent the trial
court's order fom having effect during the pendency of the appeal. On the other
hand, there are several examples of an annexation being reversed and property
removed from a municipality by an appellate decision, sometimes many years afer
the annexation.
3
Highwoods has not presented any argument or evidence that
merits removing this appeal from the usual rule that a trial court's injunction
remains in place during an appeal.
In its Motion, Highwoods insists that the Chamblee Annexation becoming
effective on December 30, 2013, as required by the Georgia General Assembly,
will be a "harsh result." However, such alleged "harsh result" is poorly defned
within Appellant's Motion. Highwoods does not even suggest any particular harm
that it would suffer if it is temporarily annexed into Chamblee and then this Court
reverses that decision. Instead, the only alleged harm mentioned by Appellant's
Motion is that the City of Brookhaven could be "disadvantaged" by "having to
endure the City ofChamblee's unwinding of its attempted annexation" in the event
that this Court were to reverse the trial court's decision. This claim rings hollow
due to its lack of specificity and because it is not supported by a common sense
3
See e.g. Cit of Chamblee 1. Village of North Atlanta, 217 Ga. 517 (1962);
Plantation Pipe Line Co. 1. Cit of Bremen, 227 Ga. 1, 9 (1970).
4
understanding of what occurs with annexation. This case is about the drawing of
municipal boundaries, not occupation by an invading frce. Highwoods' argument
that Brookhaven should be allowed to "prepare for annexation in anticipation of a
successful appeal" is without merit since the trial court's Order does not prohibit
any such preparation.
Moreover, although Highwoods refers to the City of Brookhaven as an
Appellant in the body of its Motion, it must be noted that Brookhaven is not listed
as an Appellant in the style of the Motion. In fact, the City of Brookhaven has
given the public reason to believe that it is not participating in this appeal as
evidenced by its November 12, 2013 Resolution stating in part that "the City of
Brookhaven recognizes the will of the citizens of Chamblee, respects their decision
and is desirous of discontinuing its participation in the current appeal." A copy of
the City of Brookhaven's November 12, 2013 Resolution is attached hereto as
Exhibit "C".
High woods reveals its selfish motivation when it refers to itself in its Motion
as "the sole affected property owner" impacted by this appeal. In so doing,
Highwoods ignores the approximately 11,000 residents of the Chamblee
Annexation Area that voted in fvor of annexation. These residents of the
Annexation Area could potentially have their annexation invalidated ifHighwoods
5
is successful in this appeal. It is therefre somewhat ironic that Highwoods cites
cases dealing with elections in support of its position.
5
Purdue and Cox are easily
distinguished from the case at bar because in this case the election has already
occurred. Highwoods lost and now seeks to invalidate a lawflly held refrendum
in which the voters overwhelmingly chose to be annexed into Chamblee.
In conclusion, Chamblee submits that the equitable interests of the Georgia
General Assembly and the residents of the Annexation Area outweigh the selfish
interests of a single property owner. The voters have spoken and this Cout1 should
allow their desired annexation to take effect until and unless it makes a final
determination that Georgia law requires otherwise.
Appellant Highwoods has raised a novel and potentially very disruptive
issue with regard to annexations and the incorporation of new cities in Georgia. In
summary, Highwoods claims that a single property owner abutting another
municipality has the power to destroy annexations or the creation of new cities by
acting pursuant to O.C.G.A. 36-36-21 afer the date that the General Assembly
approves the matter but befre the confrming referendum vote. Please see
Footnote 3 ofHighwoods' Motion fr more information on how it claims it has
rendered the General Assembly's Act 205 void as a multiple subject matter act.
5
On page 7 of its Brief, Highwoods cites election cases Purdue v. Palmer,
278 Ga. 216 (2004) and Cox v. Barber, 275 Ga. 415 (2002), as well as Eaves v.
Harris, 258 Ga. 1 (1988).
6
Respectfully submitted this 19
th
day of December, 2013.
125 Clairemont Avenue
Two Decatur TownCenter, Suite 420
Decatur, GA 30030
(404) 377-3638 Telephone
(404) 377-3533 Facsimile
WILSON, MORTON & DOWNS, LLC
By: Isl Stephen G. Quinn
Robert E. Wilson
Georgia Bar No. 768950
Stephen G. Quinn
GeorgiaBar No. 153012
Attorneys fr City of Chamblee, Georgia
7
EXHIBIT A
Election Summary Report
DeKalb County
State of Georgia General Municipal and Special Election
November 5, 2013
Summary For Jmisdiction Wide, Multiple Counters, All Races
Oficial and Complete
Date:l 1/08/13
Time: 14:4 7:39
Page: I of5
Registered Voters 59299 - Cards Cast 10839 18.28% Num. Report Precinct 32 ulD. Reporing 32 I 00.001'
City Commissioner Avondale
Polling ABM AlP PRO Total
Number of Precincts I I I I I
Precincts Reporting I I I 1 I 100.0 t
Times Counted (Reg. Voters 210 I) 367 4 8 0 379 18.0 %
;
Total Votes 694 8 15 0 717
RANDY SBEEBE 180 3 0 0 183 25.52o;.
TERRY GIAGER 226 3 8 0 237 33.05%
SAMANTHA HARRELL 154 3 0 158 22.04%
DA YID LEE Ill (I) 132 0 137 19.11%
Writein Votes 2 0 0 0 2 0.28%
;.
. .. .
Mayor - Chamblee
Polling ABM AIP PRO Total
Nun1ber of Precincts 2 2 J 2 J
Precincts Reporting 2 2 2 2 J 100.0 % '
Times Counted (Reg. Voters 5674) 586 11 2 0 599 10.6
Total Votes 507 6 2 0 515
ERIC CLARKSON Cl) 459 6 0 467 90.68o/'
\Vritein Votes 48 0 0 0 48 9.32%
..
City Council At Large - Chamblee
Polling ABM AlP PRO Total
Number of Precincls 2 2 ' 2 2
Precincts Reporting 2 2 2 2 2 100.0 %
Times Counted (Reg. Voters 5674) 586 IJ 2 0 599 10.6 "
Total Votes 575 II 2 0 588
58.33% c BRIAN MOCK 336 6 I 0 343
SCOTTM. TAYLOR (II 237 5 J 0 J+J 41.33%
Writein Votes 2 0 0 0 2 0.34%
,`., =, .. .:.
City Council Member DI - Chamblee
WEREAS; the City of Brookhaven recogzes the will of the citzens of Chamblee, respects
their decision and is desirous of discontinuing i.ts pacipation in the curent
appeal to the Georgia Su
p
reme Court.
STATE OF GEORGIA
DEKLB COUNTY
CITY OF BROOiVEN
RESOLUTION 2013-11-06
NOW THEREFORE BE IT RESOLVED by the Mayor and Council of the City of
Brookhaven that (i) the City of Brookhaven is to discontinue its participation in any pending
appeal to the Georgia Supreme Court, (ii) fom the date hereof no fnds will be appropriated by
the City of Brookhaven fr the prosecution of the current appeal; and, (iii) the City of
Brookhaven seeks fom the City of Chamblee a dismissal of its civil action against the City of
Brookhaven now pending in the DeKalb County Superior Court.
SO RESOLVED AD EFFECTIVE, this the _dayof_
v
., 2013
ATIEST:
Daniel Hall, Deputy City Clerk
APPROVED:
J. Ma Davis, Mayor
APPROVED AS TO FORM:
Thompson Kurrie Jr., Interim ity Attorey
CERTIFICATE OF SERVICE
I HREBY CERTIFY that I have served a true and correct copy of the
foregoing CITY OF CHAMBLEE'S RESPONSE TO APPELLANT'S
EMERGENCY MOTION FOR EXPEDITED REVIEW, SUPERSEDEAS,
AND INJUNCTION PENDING APPEAL, along with a copy of this Certificate
of Service, upon counsel fr Appellants by U.S. mail to:
Roy E. Barnes
The Barnes Law Group, LLC
3 1 Atlanta Street
Marietta, GA 30060
Andrea Cantrell Jones
Laurel A. David
The Galloway Law Group
3500 Lenox Road, N.E.
Suite 760
Atlanta, GA 30326
This 19t
h
day of December, 2013.
Robert S. Highsmith, Jr.
Holland & Knight LLP
Suite 2000 One Atlantic Center
1201 West Peachtree Street, N.W.
Atlanta, GA 30309-3453
Isl Stephen G. Quinn
Stephen G. Quinn
Georgia Bar No. 153012