SUPREME COURT OF GEORGIA
Case No. S20C1464
February 15, 2021
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
GWINNETT COUNTY v. CITY OF NORCROSS et al.
The Supreme Court today denied the petition for certiorari in
this case.
All the Justices concur, except Bethel, J., who dissents.
Court of Appeals Case No. A20A1033
SUPREME COURT OF THE STATE OF GEORGIA
Clerk’s Office, Atlanta
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minutes of the Supreme Court of Georgia.
Witness my signature and the seal of said court hereto
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S20C1464. GWINNETT COUNTY v. CITY OF NORCROSS, et al.
BETHEL, Justice, dissenting.
Rain will continue to be in the Georgia forecast. And when it
comes, the water will flow downhill. In a State with a growing urban
footprint featuring ever increasing impervious and less permeable
surfaces, the problem of flooding is certain to grow. Additionally, the
proliferation of municipalities in those urbanized settings presents
the possibility of a large number of situations where, as here, built
assets are essentially stranded in high density areas. These assets
need only neglect from the local governing authorities to become
liabilities. When they do, counties bear a significant exposure that,
I suspect, is not on many of their risk management profiles because
they believe municipalities are responsible for regulating storm
water infrastructure within their limits, regardless of the origin
story of the infrastructure.
Here, the City of Norcross accepted the annexation of certain
developed property into its corporate boundary. That property had
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existing storm water management infrastructure that was required
by Gwinnett County when the improvements on the property were
constructed. That infrastructure was dedicated to public use for
purposes of maintenance and inspection. Because the land is now
within the Norcross city limits, it is subject to the city’s storm water
management fee and no longer subject to Gwinnett County’s storm
water management fee.1 Moreover, Norcross and Gwinnett County
have agreed pursuant to a Service Delivery Strategy Agreement that
Norcross will provide storm water services within its municipal
boundaries. Nevertheless, Norcross contends that Gwinnett County
is responsible for the maintenance and repair of the storm water
assets in question because there has been no legal transfer of the
responsibility for them from Gwinnett County to Norcross.
1In communities across Georgia, storm water management funding is
addressed in a number of ways. Both the City of Norcross and Gwinnett County
have elected to charge a fee based on impervious or less permeable surfaces as
a means of determining the volume of precipitation added to the system due to
the development of the property.
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Norcross may well be correct, and our precedent, which was
heavily relied upon by the Court of Appeals, seems to favor its
position in this case. See Fulton County v. City of Sandy Springs,
295 Ga. 16, 17 (757 SE2d 123) (2014) (holding that county retained
an obligation to maintain storm water management infrastructure
located on property annexed by municipality). However, that
decision does not squarely answer the question before us.
In Fulton County, the infrastructure in question was physically
constructed by the county prior to the annexation of the property by
the city.2 Id. at 16. Moreover, Fulton County involved the
construction of detention ponds on land subject to easements and in
part owned in fee by the county as the result of condemnation. Id.
Additionally, Fulton County does not appear to address a situation
2 In rejecting Fulton County’s argument that it was constitutionally
prohibited from operating a storm water collection system within a
municipality without contractual authority, see Ga. Const. of 1983, Art. IX,
Sec. II, Par. III, this Court pointed in part to the fact that Fulton County was
merely being required to maintain what it had “previously decided to build.”
Id. at 17.
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in which the county and city have entered into a service delivery
strategy agreement or how such agreement might outline (or alter)
the local governments’ responsibility for the maintenance of storm
water infrastructure on property annexed by the city. In light of the
serious implications for communities and local governments across
Georgia, these factors and the arguments found in Justice Benham’s
dissent in Fulton County, raise issues of gravity and public
importance that warrant our granting review of the Court of
Appeals’ decision in this case.
For these reasons, I would grant the petition for certiorari
sought by Gwinnett County in this case. Thus, I respectfully dissent.
Because I have been unable to persuade a majority of my
colleagues on this Court to grant a writ of certiorari in this case, I
also write to suggest that the General Assembly give swift attention
to this very significant issue. I will not endeavor to suggest what
policy solutions would best address this scenario, but I will suggest
that making sure that local governments have a clear
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understanding of who is responsible for this type of infrastructure is
in everyone’s best interest. And in the event the legacy jurisdiction
is deemed to be the properly responsible party, it should have clear
authority to access and maintain storm water infrastructure and a
means to fund such efforts.
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