GA Code § 36-35-3 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 35 - Home Rule Powers|§ 36-35-3. (See Editor's notes.) Adoption of Ordinances, Rules, and Regulations; Amendment of Charters and Amendment or Repeal of Ordinances, Rules, and Regulations by Petition and Referendum

  The governing authority of each municipal corporation shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto. Any such charter provision shall remain in force and effect until amended or repealed as provided in subsection (b) of this Code section. This Code section, however, shall not restrict the authority of the General Assembly, by general law, to define this home rule power further or to broaden, limit, or otherwise regulate the exercise thereof. The General Assembly shall not pass any local law to repeal, modify, or supersede any action taken by a municipal governing authority under this Code section, except as authorized under Code Section 36-35-6.   Except as provided in Code Section 36-35-6, a municipal corporation may, as an incident of its home rule power, amend its charter by following either of the following procedures:   Municipal charters may be amended by ordinances duly adopted at two regular consecutive meetings of the municipal governing authority, not less than seven nor more than 60 days apart. A notice containing a synopsis of the proposed amendment shall be published in the official organ of the county of the legal situs of the municipal corporation or in a newspaper of general circulation in the municipal corporation once a week for three weeks within a period of 60 days immediately preceding its final adoption. The notice shall state that a copy of the proposed amendment is on file in the office of the clerk or the recording officer of the municipal governing authority and in the office of the clerk of the superior court of the county of the legal situs of the municipal corporation for the purpose of examination and inspection by the public. The recording officer of the municipal governing authority shall furnish anyone, upon written request, a copy of the proposed amendment. No amendment under this paragraph shall be valid to change or repeal an amendment adopted pursuant to a referendum as provided in paragraph (2) of this subsection or to change or repeal a local Act of the General Assembly ratified in a referendum as provided in paragraph (2) of this subsection or to change or repeal a local Act of the General Assembly ratified in a referendum by the electors of the municipal corporation unless at least 12 months have elapsed after such referendums. No amendment under this paragraph shall be valid if provision has been made therefor by general law; or     Amendments to charters or amendments to or repeals of ordinances, resolutions, or regulations adopted pursuant to subsection (a) of this Code section may be initiated by a petition, filed with the governing authority of the municipal corporation, containing, in cases of municipal corporations with a population of 5,000 or less, the signatures of at least 25 percent of the electors registered to vote in the last general municipal election; in cases of municipal corporations with a population of more than 5,000 but not more than 100,000, at least 20 percent of the electors registered to vote in the last general municipal election; and in cases of municipal corporations with a population of more than 100,000, at least 15 percent of the electors registered to vote in the last general municipal election. The petition shall specifically set forth the exact language of the proposed amendment or repeal. The governing authority shall determine the validity of such petition within 50 days of its filing with the governing authority. In the event that the governing authority determines that such petition is valid, it shall be the duty of such authority to issue the call for an election for the purpose of submitting such amendment or repeal to the registered electors of the municipal corporation for their approval or rejection. Such call shall be issued within one week after the determination of the validity of the petition. The governing authority shall set the date of the election as provided in Code Section 21-2-540. The governing authority shall cause a notice of the date of the election to be published in the official organ of the county of the legal situs of the municipal corporation or in a newspaper of general circulation in the municipal corporation once a week for two weeks immediately preceding such date. The notice shall also contain a synopsis of the proposed amendment or repeal and shall state that a copy thereof is on file in the office of the clerk or the recording officer of the municipal governing authority and in the office of the clerk of the superior court of the county of the legal situs of the municipal corporation, for the purpose of examination and inspection by the public. The recording officer of the municipal governing authority shall furnish anyone, upon written request, a copy of the proposed amendment. If more than one-half of the votes cast on the question are for approval of the amendment or the repeal, the same shall become of full force and effect; otherwise it shall be void and of no force and effect. The expense of the election shall be borne by the municipal corporation. It shall be the duty of the governing authority to hold and conduct such election. The election shall be held under the same laws and rules and regulations as govern special elections of the municipal corporation, except as otherwise provided in this subparagraph. It shall be the duty of the governing authority to canvass the returns and to declare and certify the result of the election. It shall be the further duty of the governing authority to certify the result thereof to the Secretary of State. A referendum on any such amendment or repeal shall not be held more often than once each year. No amendment under this subparagraph shall be valid if provision has been made therefor by general law.   In the event that the governing authority determines that the petition is not valid, it shall publish in explicit detail the reasons why such petition is not valid. Such publication shall be in the official organ of the county of the legal situs of the municipal corporation or in a newspaper of general circulation in the municipal corporation, in the week immediately following the date on which the petition is declared to be not valid. In any proceeding in which the validity of the petition is at issue, the tribunal considering such issue shall not be limited by the reasons assigned.   The sponsor of a petition authorized by this paragraph shall obtain copies of all official petitions from the clerk of the governing authority. The clerk of the governing authority shall approve all petitions as to form. The clerk of the governing authority shall provide a place on each form for the person collecting signatures to provide his or her name, street address, city, county, state, ZIP Code, and telephone number and to swear that he or she is a resident of the municipality affected by the petition and that the signatures were collected inside the boundaries of the affected municipality. The collection of signatures for the petition shall begin on the day the clerk of the governing authority provides official copies to the sponsor of the petition. A petition authorized by subparagraph (A) of this paragraph shall not be accepted by the governing authority for verification if more than 60 days have elapsed since the date the sponsor of the petition first obtained copies of the petition from the clerk of the governing authority. Any petition being circulated pursuant to subparagraph (A) of this paragraph on July 1, 1989, shall be filed with the clerk of the governing authority by not later than July 11, 1989. The clerk of the governing authority shall, within seven days, provide the sponsor with official petitions. The sponsor shall have 60 additional days after obtaining official petitions to collect the remaining number of required signatures. Nothing in this subparagraph shall invalidate otherwise valid signatures collected on or before July 1, 1989.       Any other provisions of this chapter to the contrary notwithstanding, subsection (b) of this Code section shall not apply to any city-county consolidated government in existence on January 1, 1976, and any such city-county consolidated government shall not be authorized to amend its consolidated government charter pursuant to subsection (b) of this Code section.    (Ga. L. 1965, p. 298, § 3; Ga. L. 1966, p. 296, § 1; Ga. L. 1976, p. 1429, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1989, p. 1584, § 1; Ga. L. 1991, p. 94, § 36; Ga. L. 1998, p. 295, § 3.)   For application of this statute in 2020, see Executive Order 04.02.20.01.   A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.   Law reviews.   - For article, "The Municipal Home Rule Act of 1965 (this chapter)," see 3 Ga. St. B. J. 333 (1967). For article as to the power of Georgia local governments to regulate the trades and occupations of its citizens, see 9 Ga. L. Rev. 115 (1974). For article, "Extraterritorial Power in Georgia Municipal Law," see 12 Ga. L. Rev. 1 (1977). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For note on the validity of population statutes in Georgia, see 2 Ga. St. B. J. 533 (1966). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Powers of Municipalities   Validity of Ordinances    OPINIONS OF THE ATTORNEY GENERAL   Editor's notes.   - In light of the similarity of the statutory provisions, opinions prior to the enactment of this Code section are included in the annotations for this Code section.    City police officer may not arrest  one for violation of city ordinances when the police officer is outside city limits. 1954-56 Op. Att'y Gen. p. 490 (decided under former law).   Amount of license fees or taxes.   - Licensing power of a municipality is granted by the charter creating the municipality; the amount of license fees or taxes a municipality may levy on a particular business is not regulated by statute, but appellate courts have ruled that a municipal tax on an occupation must be reasonable. 1954-56 Op. Att'y Gen. p. 493 (decided under former law).    City may establish personnel department and merit board  without the necessity of special Acts of the General Assembly. 1969 Op. Att'y Gen. No. 69-310.   Joint purchase of riot control equipment.   - All counties and those municipalities having the requisite charter authority may enter into cooperative agreements with one another for the purchase and use of equipment to be employed in jointly administered riot control programs. 1969 Op. Att'y Gen. No. 69-141.    Governing authority of affected municipality or county has authority to control boxing events  in the authority's jurisdiction. 1970 Op. Att'y Gen. No. 70-167.   Effect of failure of prior election on acts validly conducted.   - Municipality may treat an election ordered as a result of the failure of a prior election as a continuation of that prior election, recognizing those acts validly conducted. 1976 Op. Att'y Gen. No. 76-23.   Change of election date.   - Municipality is not empowered to amend a municipal charter by ordinance with respect to date of a municipal general election. 1977 Op. Att'y Gen. No. 77-33.    City has home rule power to amend a city's charter  by ordinance so as to remove from the charter a limitation on the millage rate which the city may use in levying ad valorem taxes. 1983 Op. Att'y Gen. No. U83-19.   Municipal home rule power not violated by World Congress Center's regulations.    - O.C.G.A. § 10-9-14 empowering the Geo. L. Smith II Georgia World Congress Center Authority to regulate activities on the sidewalks and streets immediately adjacent to the World Congress Center's projects during an event period do not violate the City of Atlanta's home rule power under subsection (a) of O.C.G.A. § 36-35-3 or Ga. Const. 1983, Art. IX, Sec. II, Para. III(c). 1994 Op. Att'y Gen. No. U94-4.   City authorized to charge rental fee to state.   - City of Atlanta may charge the Board of Regents for permitting a fiber optic cable to lie under city owned streets based on city code provisions enacted pursuant to the city's home rule power. 1995 Op. Att'y Gen. No. 95-14.   RESEARCH REFERENCES   Am. Jur. 2d.   - 42 Am. Jur. 2d, Initiative and Referendum, §§ 6, 24 et seq., 33 et seq., 48. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 30 et seq., 90.   C.J.S.   - 62 C.J.S., Municipal Corporations, §§ 30, 112 et seq., 385 et seq.   ALR.    - Power of municipal councils to punish for contempt, 8 A.L.R. 1586.    Validity of municipal ordinance prohibiting or regulating keeping of livestock, 32 A.L.R. 1372; 40 A.L.R. 566.    Delegation by municipality of its powers as to building regulations, 43 A.L.R. 834; 46 A.L.R. 88.    Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669.    Power to forbid or restrict repair of wooden building within fire limits, 56 A.L.R. 878.    Constitutionality of city manager or commission form of municipal government, 67 A.L.R. 737.    Power to include in municipal contract or proposal therefor, provisions designed to relieve local unemployment, or encourage local industries, 81 A.L.R. 255.    Implied power of municipality to operate nursery, quarry, gravel pit, or other sites for production of material needed for carrying out powers expressly conferred upon it, 104 A.L.R. 1342.    Matters pertaining to police department as within exclusive control of municipalities under home rule charters, 105 A.L.R. 259.    Home rule charter as affecting power of legislature in respect of municipal taxation, 106 A.L.R. 1202.    Validity, construction, and application of ordinances prohibiting or regulating "curb service," 111 A.L.R. 131.    Power of municipality to impose chain store license tax, 111 A.L.R. 596.    Statute relating to municipal fire departments as interference with local self-government, 141 A.L.R. 903.   Validity of municipal regulation of solicitation of magazine subscriptions, 9 A.L.R.2d 728.   Conclusiveness of declaration of emergency in ordinance, 35 A.L.R.2d 586.   What constitutes requisite majority of members of municipal council voting on issue, 43 A.L.R.2d 698.   Power of municipality or other governmental unit to make contract or covenant exempting or releasing property from special assessment, 47 A.L.R.2d 1185.   Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.   Validity of municipal regulation of storage or accumulation of lumber, straw, trash, or similar inflammable material, 64 A.L.R.2d 1040.   Ordinance providing for suspension or revocation of state-issued driver's license as within municipal power, 92 A.L.R.2d 204.   Power of municipal corporation to enact civil rights ordinance, 93 A.L.R.2d 1028.   Validity of municipal ordinance regulating time during which restaurant business may be conducted, 53 A.L.R.3d 942.   Validity and construction of curfew statute, ordinance, or proclamation, 59 A.L.R.3d 321; 83 A.L.R.4th 1056.   Construction and application of ordinances relating to unrestrained dogs, cats, or other domesticated animals, 1 A.L.R.4th 994.   Power of municipal corporation to legislate as to Sunday observance, 10 A.L.R.4th 246.   Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.