POLO GOLF AND COUNTRY CLUB HOMEOWNERS ASSOCIATION, INC. v. CUNARD 2-15-2021 Substitute Opinion Issued.

In the Supreme Court of Georgia

Decided: February 15, 2021

S20A1205. POLO GOLF AND COUNTRY CLUB HOMEOWNERS
ASSOCIATION, INC. v. JOHN 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
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

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.”).

Polo Golf I, discussed more below, refers to Polo Golf and Country Club
2

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
private property of homeowners, constitutes involuntary servitude

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’ Assoc., Inc. v. Rymer, 294 Ga. 489 (754 SE2d

3 At some point before 1995, the neighborhood became known as Polo
Golf and Country Club.
3
42) (2014) (“Polo Golf I”). In Polo Golf I, John and Diane
Rymer, who were individual homeowners of the Polo
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).

4The 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
Polo Golf II, 306 Ga. at 789-790 (footnotes omitted). With

respect to Section 4.2.2, we concluded that

The 2014 version of Section 4.2.2 states that homeowner
associations (“HOAs”) are responsible for maintaining all
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

5The record shows that the HOA does not own any of the Wellington
Dam/Lake lots.
5
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

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 “if 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,

6
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

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 U.S. 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

6 Specifically, we considered and rejected the HOA’s challenge under the
Contracts Clause of the U.S. 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,

7
 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

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 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

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.

7In 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
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
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

9
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:

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).

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
 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

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

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
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

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. at 82

(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

12
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.

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:

13
 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.

Polo Golf II, 306 Ga. at 792-793. See also id. at 793 (in 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

Notably, the HOA’s counsel conceded in the proceedings below that the
10

Declaration gives the HOA enforcement mechanisms that do not require the
HOA or its agents to physically enter a homeowner’s lot.
14
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

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

15
issue does not violate its Declaration, but the County nevertheless

concludes that the lot owner violated county ordinances and cites

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

require the HOA to physically enter a lot owner’s property.

Moreover, the Declaration equips the HOA with enforcement

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
mechanisms short of physical intrusion on another’s property—such

as seeking specific performance and securing a lien against a lot—

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

towards 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 “if the dam is not repaired within thirty days,

17
then the Association may exercise the right of abatement.” Although

the HOA later purported to revoke that notice, it reserved its right

to abate in the 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 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

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[ed] [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 Federal Deposit Insurance 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 v. Polo Golf and Country
Club Homeowners Assn., Inc., 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 in violation of the United States and Georgia

Constitutions. See U.S. Const. Amend. XIII (“Neither slavery nor

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, Par. 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

13 The HOA offers no authority to support its argument that Section 4.2.2
violates Article I, Section I, Par. XXII of the Georgia Constitution. Nor does it

19
States Supreme Court has held that although “[t]he primary

purpose of the 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.”

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.
20
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

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.

21
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

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 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

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
“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

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

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
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

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

24
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

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.

25
 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

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 specially in Division 5.

26
S20A1552. POLO GOLF AND COUNTRY CLUB HOMEOWNERS
ASSOCIATION, INC. v. CUNARD, et al.

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 omitted). See also Sliney v. State, 260 Ga. 167 (391

SE2d 114) (1990) (applying rules of statutory construction to county

ordinance). Section 35-183 (6) of Ordinance No. 75 provides that one

27
of the stated purposes of the ordinance is 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,

provides:

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

Contract 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