GA Code § 36-70-25.1 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 70 - Coordinated and Comprehensive Planning and Service Delivery by Counties and Municipalities|Article 2 - Service Delivery|§ 36-70-25.1. Dispute Resolution Procedures

  As used in this Code section, the term "affected municipality" means each municipality required to adopt a resolution approving the local government service delivery strategy pursuant to subsection (b) of Code Section 36-70-25.   If a county and the affected municipalities in the county do not reach an agreement on a service delivery strategy, the provisions of this Code section shall be followed as the process to resolve the dispute.   If a county and the affected municipalities in the county are unable to reach an agreement on the strategy prior to the imposition of the sanctions provided in Code Section 36-70-27, a means for facilitating an agreement through some form of alternative dispute resolution shall be employed. Where the alternative dispute resolution action is unsuccessful, the neutral party or parties shall prepare a report which shall be provided to each governing authority and made a public record. The cost of alternative dispute resolution authorized by this subsection shall be shared by the parties to the dispute pro rata based on each party's population according to the most recent United States decennial census. The county's share shall be based upon the unincorporated population of the county.   In the event that the county and the affected municipalities in the county fail to reach an agreement after the imposition of sanctions provided in Code Section 36-70-27, then the following process is available to the parties:     The county or any affected municipality located within the county may file a petition in superior court of the county seeking mandatory mediation. Such petition shall be assigned to a judge, pursuant to Code Section 15-1-9.1 or 15-6-13, who is not a judge in the circuit in which the county is located. The judge selected may also be a senior judge pursuant to Code Section 15-1-9.2 who resides in another circuit.   The visiting or senior judge shall appoint a mediator within 30 days of receipt of the petition. Mediation shall commence within 30 days of the appointment of a mediator. The mandatory mediation process shall be completed within 60 days following the appointment of the mediator. A majority of the members of the governing body of the county and each affected municipality shall attend the initial mediation. Following the initial meeting, the mediation shall proceed in the manner established at the initial meeting. If there is no agreement on how the mediation should proceed, a majority of the members of the governing body of the county and each affected municipality shall be required to attend each mediation session unless another process is agreed upon. Unless otherwise provided in accordance with paragraph (2) of this subsection, the cost of alternative dispute resolution authorized by this subsection shall be shared by the parties to the dispute pro rata based on each party's population according to the most recent United States decennial census.   During the mediation process described in this subsection, the sanctions imposed pursuant to Code Section 36-70-27 may, by order of the court, be held in abeyance by the judge against any or all of the parties participating in such mediation process.   The judge may, by order of the court, substitute any mediation entered into pursuant to subsection (c) of this Code section for the mediation required pursuant to this subsection; and     If no service delivery strategy has been submitted for verification to the Department of Community Affairs at the conclusion of the mediation, any aggrieved party may petition the superior court and seek resolution of the items remaining in dispute. The visiting or senior judge shall conduct an evidentiary hearing or hearings as such judge deems necessary and render a decision with regard to the disputed items. In rendering the decision, the judge shall consider the required elements of a service delivery strategy with a goal of achieving the intent of this article as specified in Code Section 36-70-20. It shall be in the discretion of the judge to hold the sanctions specified in Code Section 36-70-27 against one or more of the parties in abeyance pending the disposition of the action. The court is authorized to utilize its contempt powers to obtain compliance with its decision relating to the disputed items under review. The judge shall be authorized to impose mediation costs and court costs against any party upon a finding of bad faith.     The court shall notify, or cause to be notified, the Department of Community Affairs in the event that penalties are abated during the pendency of mediation or litigation held pursuant to subsection (d) of this Code section. A notice shall also be sent in the event penalties become applicable to the parties.   Any service delivery agreement implemented as a result of the process set forth in this Code section shall remain in effect until revised pursuant to Code Section 36-70-28.     (Code 1981, §36-70-25.1, enacted by Ga. L. 2000, p. 1439, § 1; Ga. L. 2006, p. 72, § 36/SB 465.)   Code Commission notes.   - Ga. L. 2000, p. 1439, § 1, as enacted, contained two subsections designated as (d). Pursuant to Code Section 28-9-5, in 2000, the second subsection (d) was redesignated as subsection (e) and subsection (e) was redesignated as subsection (f); "subsection (c)" was substituted for "subsection (b)" in subparagraph (d)(1)(D); and "subsection (d)" was substituted for "subsection (c)" in newly designated subsection (e).   Pursuant to Code Section 28-9-5, in 2006, "imposition" was substituted for "impositions" in the introductory paragraph of subsection (d).   Law reviews.   - For annual survey on local government law, see 70 Mercer L. Rev. 177 (2018).   JUDICIAL DECISIONS   Constitutionality.    - Trial court erred by finding that the Service Delivery Strategy Act, O.C.G.A. § 36-70-20, specifically O.C.G.A. § 36-70-25.1(d)(2), was unconstitutional because it did not permit the trial court to direct that the parties enter into a particular agreement and, therefore, did not invade the province of the legislative branch by imposing a tax or allocating the proceeds of that tax. City of Union Point v. Greene County, 303 Ga. 449, 812 S.E.2d 278 (2018), overruled on other grounds by City of College Park v. Clayton County, 830 S.E.2d 179, 306 Ga. 301 (2019).   Scope of trial court's authority.    - Trial court exceeded the court's authority under the Service Delivery Strategy Act, O.C.G.A. § 36-70-20 et seq., by finding it in breach of contract and by imposing declaratory and injunctive relief because it was not authorized to impose a remedy not provided by O.C.G.A. § 36-70-25.1(d)(2) for claims brought under the Act; the court had no authority under the Act to fashion a different remedy or enjoin the parties as to the funding or the method of provision of those services. City of Union Point v. Greene County, 303 Ga. 449, 812 S.E.2d 278 (2018), overruled on other grounds by City of College Park v. Clayton County, 830 S.E.2d 179, 306 Ga. 301 (2019).    Trial court's ruling that sovereign immunity did not bar claims under the Service Delivery Strategy Act, O.C.G.A. § 36-70-20, specifically O.C.G.A. § 36-70-25.1(d)(2), was affirmed because sovereign immunity was waived only to the extent of the statute, which extends no further than the remedies specifically authorized by the Act and the trial court could not exceed the scope of § 36-70-25.1(d)(2) by granting relief not provided therein for claims brought under the Act. City of Union Point v. Greene County, 303 Ga. 449, 812 S.E.2d 278 (2018), overruled on other grounds by City of College Park v. Clayton County, 830 S.E.2d 179, 306 Ga. 301 (2019).   Claim seeking declaration that agreement still in effect not barred by sovereign immunity.    - County's claims against the Georgia Department of Community Affairs (DCA) commissioner and board members in their individual capacities were not barred by sovereign immunity; the county sought a declaration that under O.C.G.A. § 36-70-25.1(f) and the county's service delivery agreement, the county and its cities were eligible for state-administered financial assistance and that denial of such assistance was not in accordance with law. Bd. of Comm'rs of Lowndes County v. Mayor & Council of Valdosta, 309 Ga. 899, 848 S.E.2d 857 (2020).    Cited in Cobb County v. City of Smyrna, 270 Ga. App. 471, 606 S.E.2d 667 (2004); Upper Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 701 F.3d 669 (11th Cir. 2012); Bd. of Regents of the Univ. Sys. of Ga. v. One Sixty Over Ninety, LLC, 351 Ga. App. 133, 830 S.E.2d 503 (2019), cert. denied, No. S19C1521, 2020 Ga. LEXIS 118 (Ga. 2020).