HomeMy WebLinkAboutResolutions 20-03-533 - 03/02/2020 - Opposing House Bill 5231
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STATE OF GEORGIA
COUNTY OF FULTON
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A RESOLUTION OF THE CITY OF MILTON OPPOSING HOUSE BILL 523,
RESTRICTING LOCAL GOVERNMENTS FROM PROHIBITING SHORT TERM
RENTALS IN RESIDENTIAL DISTRICTS
WHEREAS, pursuant to O.C.G.A. § 36-35-3, municipal corporations have the legislative
power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property,
affairs, and local government; and
WHEREAS, pursuant to Art. 9, § 2, ¶ IV of the Georgia Constitution, municipalities and
counties have been given the exclusive power to adopt plans and may exercise the power of zoning;
WHEREAS, pursuant to the above constitutional provision, the Georgia General
Assembly does not have this power to zone power;
WHEREAS, the General Assembly only has the power to establish procedures regarding
the exercise of the zoning power;
WHEREAS, it has been the law in Georgia, via constitutional fiat, for at least a half -
century that �nly counties and cities have the zoning power (011ey Valley Estates, Inc. v. Fussell,
232 Ga. 779 (1974);
WHEREAS, as stated in Hunt v. McCollum, 214 Ga. 809 (Ga. 1959), "[t]he controlling
matter in this case is that only the authorities empowered by the Constitution to zone can zone,
and the legislature is powerless to provide otherwise;
WHEREAS, the unique power of (only) municipalities and counties to exercise the power
of zoning is not a delegated power from the General Assembly, but rather is a power conferred by
the citizens of the State of Georgia via the Constitution;
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WHEREAS, the power of zoning has been long defined as the authority to restrict the
owner's use of his own property. Stone Mountain Industries, Inc. v. Wilhite, 221 Ga. 269 (Ga.
1965);
WHEREAS, a former version of the Georgia Constitution made clear that zoning was the
"authority to pass zoning and planning laws whereby such cities or counties may be zoned or
districted for various uses and other or different uses prohibited therein; and regulating the use for
which said zones or districts may be set apart, and regulating the plans for development and
improvements on real estate therein..."
WHEREAS, even under the current Zoning Procedures Law (O.C.G.A. 36-66-3), zoning
is defined as "the power of local governments to provide within their respective territorial
boundaries for the zoning or districting of property for various uses and the prohibition of other or
different uses within such zones or districts and for the regulation of development and the
improvement of real estate within such zones or districts;
WHEREAS, as such, it cannot be reasonably disputed that the power to zone is the power
to prohibit uses;
WHEREAS, HB 523 would restrict local governments from prohibiting Short -Term
rentals in zoning districts;
WHEREAS, based upon the authorities identified above, that would be improper;
WHEREAS, by restricting the local government's ability to regulate short-term rental
properties (to include forbidding municipalities from prohibiting Short -Term rental usage in
zoning districts), HB 523 is in contravention of those constitutional limitations on the power of the
General Assembly to affect a municipalities or counties zoning power;
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WHEREAS, the Georgia Constitution vests the power of zoning in local cities and
counties; and the City of Milton believes it is self-evident that government that is closer to the
people is better suited to deal with local land use issues; and,
WHEREAS, HB523 is therefore both legally and practically improper and
unconstitutional.
THEREFORE, IT IS HEREBY RESOLVED by the Mayor and City Council that:
1. All of the statements and expressions of policy in the above preamble are hereby
restated and ratified;
2. The City asks that its local delegation to the General Assembly work to defeat HB523,
and thereby ensure that zoning decisions, to include the regulation and/or prohibition
of Short -Term Rentals, remain vested exclusively in the hands of local governing
zoning authorities, like municipalities and counties;
3. That City staff are directed to send a copy of this Resolution to the City of Milton's
local delegation to the General Assembly as soon as possible.
So approved this 2nd day of March 2020.
Attest:
Sudie AM Gordo , City Clerk
Approved:
Joe Lockwood, Mayor
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