IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA
JEWEL JOHNSON, RAPHAEL
AMMONS, ALICE HAMILTON,
LEROI STANLEY, LILLIE ECHOLS,
REBECCA KASHEF, EVELYN
WEAVER, and CAROLYN WILSON,
Civil Action File
No.2016-CV-276928

Petitioners,
v.
CITY OF ATLANTA
Respondent.

FINAL ORDER
On October 25,2016,

the COUlt conducted the trial on Petitioners' First Amended

Petition for Declaratory Judgment (hereinafter, "Petition").

By consent of the parties, additional

evidence was jointly submitted to the COUlt on October 26, 2016. Closing arguments were held
on October 31, 2016. After considering the briefs, evidence submitted, and oral argument from
all parties, the Court hereby enters the following Order denying the Petition.
MATERIAL FACTS
The Georgia General Assembly has delegated to municipalities the authority to almex
unincorporated territory contiguous to their boundaries pursuant to the conditions, restrictions,
and protections for property owners in the State Annexation of Territory Act (O.e.G.A. 36-361, et seq.) (referred to herein as "Annexation Act"). The Annexation Act allows owners of
property abutting a municipality to petition that municipality for annexation of their property,
In 2015, hundreds of residents of the Loch Lomond community requested that their
community be annexed into the City of Atlanta ("Atlanta") pursuant to the Annexation Act. The
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proponents of the Loch Lomond annexation effort used the "60% Method," which requires
individuals and property owners seeking annexation to submit petitions signed by at least 60% of
the electors in the subject area, as well as the owners of at least 60% of the land area, by acreage,
in the community. See O.C.G.A.

36-36-32.

After Atlanta received the Loch Lomond Petition ("Loch Lomond Petition") on April 1,
2015, and in accordance with the prerequisites to annexation set forth in the Annexation Act,
Atlanta: (1) commenced an investigation and concluded that the application complied with the
Annexation Act; (2) made plans for extension of services to Loch Lomond; and (3) held a public
hearing and determined that annexation into the City of Atlanta of Loch Lomond would be in the
best interests of the residents and property owners of Loch Lomond and the citizens of Atlanta.

See generally O.C.G.A. 36-36-34 through 36-36-37.

Collectively, the Loch Lomond Petition consists of hundreds of written and signed names
of individuals applying for annexation and indicating whether the individuals signed as a
landowner, a registered voter, or both, along with their addresses and date of signature, as
required by O.e.G.A. 36-36-32(c).
Atlanta validated the Loch Lomond Petition on April 18, 2016.
pursuant to O.C.G.A. 36-36-34,

Upon validation, and

the City proceeded to act on the annexation. Atlanta notified

Loch Lomond residents of the validation. Atlanta prepared a service delivery report, and made
such report available to the public online and in the Municipal Clerk's office at least 14 days
prior to the public hearing. Atlanta held a duly noticed public hearing on the annexation, as
required by O.C.G.A.

36-36-36 on May 25, 2016.

On the date of the public hearing, the Municipal Clerk determined that since initial
validation, 19 of the petitioners had timely withdrawn their consent to the Petition pursuant to

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O.C.G.A.

36-36-36(c).

11 other "withdrawals" were received, but the Municipal Clerk

correctly deemed them to not comply with relevant statutory requirements. On May 31, 2016,
two additional petitioners submitted letters to the Municipal Clerk withdrawing their consent to
the Loch Lomond Petition. On May 31, 2016, 11 of the 19 petitioners who had withdrawn their
consent then submitted affidavits to the Municipal Clerk rescinding their withdrawal of consent
and stating their intent to be annexed. As reported by the Municipal Clerk to the Atlanta City
Council prior to final vote on June 6, 2016, the Loch Lomond Petition complied with the 60%
requirements for electors, and for land ownership. With regard to electors, 246 of 404 or 60.89%
applied for annexation. With regard to land area, owners of 164.65 of271 total acres or 60.76%
applied for annexation. The Atlanta City Council unanimously adopted (15-0) the annexation
ordinance, and Mayor Kasim Reed signed the ordinance that same day. Atlanta thus annexed
Loch Lomond on June 6, 2016.
Petitioners brought this declaratory judgment action pursuant to O.C.G.A. 36-36-39(b)
on June 27,2016 to invalidate the annexation based on a purported failure to satisfy the
requirements of the 60% Method. Atlanta filed the official record of its annexation, pursuant to
O.C.G.A. 36-36-39(a), on September 22,2016.
On April 26, 2016, Georgia House Bill 514 (referred to herein as "HB 514") was signed
into law, calling for a referendum and vote on the creation of "the City of South Fulton."
Petitioners amended their petition on September 28, 2016, seeking a declaration that the
annexation was untimely pursuant to HB 514. Atlanta notified the Attorney General's office
pursuant to O.C.G.A. 9-4-7(c) on October 8, 2016 that it intended to raise the constitutionality
of HB 514 as a defense to Petitioners' Amended Complaint, as it did in briefs to this Court, at the
trial on October 25, and at the closing argument on October 31, 2016.

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CONCLUSIONS

OF LAW

Standard of Review

"The judgment of the court on any such petition may declare the annexation ordinance
null and void upon a finding that the application and the municipal corporation's action thereon
are not in substantial compliance with this article. Upon a finding that procedural defects or
defects in the plan for service to the annexed areas exist, the court, where possible, shall frame a
judgment to perfect such defect and uphold the ordinance." O.C.G.A. 36-36-39(b).
Georgia's appellate courts have repeatedly held that the Annexation Act should be
construed liberally in favor of annexation. H-B Props., Ltd. v. City of Roswell, 247 Ga. App.
851,852

(2001); Powers v. City of Cordele, 143 Ga. App. 363,363 (1977); City of Gainesville v.

Hall County Bd. ofEduc., 233 Ga. 77, 80 (1974); Higdon v. City of Senoia, 273 Ga. 83 (2000).
This liberal application is also in keeping with the statutory mandate that the trial court should
fashion a remedy to uphold the annexation where possible. O.CG.A. 36-36-39(b).

As the

Georgia Supreme Court noted:

[i]n reviewing the question of annexation by municipalities in this state we must
conclude that the General Assembly intended that a liberal policy apply in this
area. The General Assembly has made several methods available and has
apparently sought to leave such matters primarily under local control. When this
court has applied a strict interpretation of these methods ... the General Assembly
has promptly amended the statutes to overcome such court enunciated limitations.
City of Gainesville, 233 Ga. at 80.
Timeliness of the AnnexationlHB

514

Petitioners allege various teclmical infirmities with the Loch Lomond annexation
ordinance. Further, in the Amended Complaint, Petitioners also argue that because the
annexation ordinance was adopted in June, it is in conflict with HB 514, which states that the
boundaries for the potential City of South Fulton "shall include all unincorporated areas of
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Fulton County, including the Fulton County Industrial District, as such exist on July 1, 2016."
This Court finds, however, that Loch Lomond was annexed as of the date the Mayor signed the
annexation ordinance, thereby concluding the City's statutorily-required legislative process,
which was June 6, 2016.

This reading ofHB 514 is consistent with HB 514's provision that

excludes from the potential new city's boundaries "any territory that was annexed into another
municipality before July 1,2016."
Here, Atlanta received a voluminous annexation application, and conducted the necessary
investigation to determine that the requirements of the Annexation Act were met before
proceeding with the required public hearing. On June 6, 2016, Atlanta properly and legally
adopted the annexing ordinance for Loch Lomond. Atlanta's annexation of Loch Lomond was
thus timely and valid.
This Court also construes HB 514, a local law, to not impair or restrict Atlanta's exercise
of a power granted to Atlanta by general law, to avoid having to declare HB 514 unconstitutional
as violating Article III, Section VI, Paragraph IV(a) of the Georgia Constitution, generally
known as the Uniformity Clause, See Lomax v. Lee, 261 Ga. 575,579
Hudgins, 193 Ga. 618, 623-24 (1942).

(1991);

City of Atlanta v.

Absent construing HB 514 in such a way as to find

Atlanta's annexation timely, HB 514 would violate the Uniformity Clause, and this COUli would
declare it void. However, as an alternative construction that does not give rise to a constitutional
concern is available, this Court will adhere to the canon of construction urging adoption of the
constitutional choice, rather than the unconstitutional interpretation. See City of Macon v. Smith,
244 Ga. 157, 158 (1979).
Petitioners'

Substantive Challenges

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In terms of Petitioners' various alleged technical infirmities in the annexation ordinance,

after consideration of all of the evidence and argument, this Court finds Petitioners' allegations
without merit. I Specifically, this Court finds Atlanta's process to be in at least substantial
compliance with the requirements of the Annexation Act. See O.C.G.A. 36-36-39(b).
Petitioners have not alleged, much less proven, the existence of any defects that could not be so
remedied.

Electors
At the trial of this matter, held on October 25, 2016, Petitioners introduced evidence that
five of the individuals who applied for annexation subsequently died, prior to validation.
Petitioners argue that those signatures should have been removed from the Petition, and that they
should not count towards satisfaction of the 60% requirement for resident electors set f011h in
O.C.G.A. 36-36-32.

No reported Georgia case SUpp011s Petitioners' argument. Instead,

O.CG.A. 36-36-32 provides that "[a]uthority is granted ... to annex ... upon the written and
signed application of not less than 60 percent of the electors resident in the area included in any

such application and of the owners of not less than 60 percent of the land area, by acreage,
included in such application." (emphasis added). Such language suggests that the signature must
be valid at the time a petition is signed. O.C.G.A. 36-36-32(g) provides that signatures must be

At the trial on October 25, Petitioners alleged the Atlanta's annexation process was void
because Atlanta's "governing body" failed to personally verify the annexation petition. That
argument, however, was not enumerated in the Pre-Trial Order jointly submitted by the parties,
and entered by this Court on October 18. Nor was it in Petitioners' Original Petition or the First
Amended Petition. Accordingly, upon objection by Respondent, and after hearing argument by
the Parties, this COUl1 ruled that the "governing body" argument had been waived by Petitioners
and could not be raised for the first time at the trial.
I

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collected within one year of the date of the first obtained signature, and that failure to do so will
"invalidate previously collected signatures," but it does not otherwise suggest that signatures will
"expire" or otherwise become void after some period of time or external event. This Court
declines to graft onto the statute eligibility requirements that the General Assembly has not seen
fit to include. Petitioners do not argue, and there is no evidence to suggest, that any of the
Petition signatures were falsified or otherwise wrongfully obtained. Accordingly, while certain
petition signers unfortunately passed away after signing the Petition, this COUli declines to
invalidate their consent to annexation.
Further confirming this conclusion, Georgia's election code contains specific (and
persuasive) guidance that petitioners' eligibility to sign should be determined as of the time of
signature. See, e.g., O.C.G.A. 21-4-19 ("An elector's eligibility to sign an application for a
recall petition or a petition for recall shall be determined as of the date immediately preceding
the date the application or petition is signed by that elector.").

Compare In re Petition/or

Annexation 0/360.08 Acres, More or Less, 706 N.E.2d 1,9 (Ohio Ct. App. 1997) (finding that
petitioner who died before annexation petition was submitted to city could not be counted where
statute set date of measurement of petition validity "as of the time the petition was filed')
(emphasis added). Therefore, even if a petitioner died after signing but before submission of the
Petition, if such signature was part of the application submitted to the City of April 1, 2015, the
signature constitutes the unrevoked intent of the landowner and/or voter to annex while living.
Petitioners' position is akin to asking that an early voter's ballot be discarded if the voter dies
before Election Day and/or election certification.
Finally, no heir or legal representative of these petitioners notified the City of such death
and requested name removal from the Petition prior to submission, validation, or annexation

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despite the substantial intervening period of time. Accordingly, their signatures are ratified and
may properly be included.

See Powers, 143 Ga. App. 363.

Second, Petitioners also object to inclusion of the eleven individuals who withdrew their
consent but timely reinstated, by affidavit, their consent to annexation, arguing that there is no
statutory authority permitting such a turnabout. However, a fundamental purpose of the
annexation statute is to reflect (and protect) the will of the community discussing annexation.
That statutory purpose would be frustrated, for no good reason, if those reinstatements were
disregarded. Accepting these eleven reinstatements is in keeping with long-standing Georgia
jurisprudence that the Annexation Act should be construed liberally in favor of annexation. See
above.
FU11her, other states have recognized the right of annexation petitioners who withdraw
their consent to reinstate their consent up to final adoption of the annexation ordinance. Town of
Brookfield v. City of Brookfield, 80 N. W.2d 800, 802-03 (Wis. 1957); Szatkowski v. Bountiful
City, 906 P.2d 902, 907 (Utah Ct. App. 1995). In Szatkowski, the Utah COUl1 of Appeal affirmed
the trial court's determination that the municipality "substantially complied with the annexation
statute when it allowed petitioners to add or reinstate their names in support of annexation after
the original petition had been filed but before a final vote on annexation was taken." 906 P.2d at
907. Accord O.C.G.A. 36-36-39(b). As the Szatkowski court reasoned, if a petitioner may
remove his name, he should be able to reinstate his name, as both "allow the people to express
their approval or disapproval within a reasonable time." Szatkowski, 906 P.2d at 907. Georgia's
Annexation Act also is focused on ensuring, ultimately, that the will of the residents is
represented, and reinstatement best protects that goal. Accordingly, this Court holds that Atlanta
properly included those eleven individuals in the validation.

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Finally, Petitioners argued that the City improperly counted 15 "indirect" matches
towards the 60% voter requirement because they are registered voters in Fulton County, but not
at a Loch Lomond address. At the trial on October 25, Petitioners did not introduce any
evidence, nor did Petitioners even allege that these 15 petitioners do not reside in Loch Lomond.
Instead, Petitioners' argument was that because those 15 individuals are not registered to vote at
an address in Loch Lomond and their petitions should therefore not COW1t, even though these
petitioners signed as residing in Loch Lomond?
Of the 270 registered voter signatures on the Petition, the City verified that 241 of these
were registered to vote at the address indicated on the Petition (i.e. "direct match"). For the
individuals who signed the Petition but whose name and address did not match the election rolls,
rather than simply count or discount them, consistent with the guidance set f011h in City Council
of Augusta, the City communicated with the Board to inquire whether these individuals were
registered to vote in Fulton County. Fulton County election officials responded that 15 of the
individuals who signed the Petition were in fact registered voters in the county, just at a different
address (i.e. "indirect matches"). These officials also confirmed that there was only one person
registered to vote in the county with that name, thereby eliminating any potential for
misidentification.

Based on this, and upon guidance from Georgia's Secretary of State's office,

the City accepted these Petitions pursuant to O.C.G.A. 21-2-235(a),

which provides:

In addition to the official list of electors, the Secretary of State shall also maintain
an inactive list of electors. Notwithstanding any other provision of law to the
contrary, the names of electors on the inactive list of electors shall not be counted
in computing the number of ballots required for an election, the number of voting
devices needed for a precinct, the number of electors required to divide or

The signed petitions state that he/she signs as a landowner and voter ("registered to vote and
own land within the area to be annexed") or voter "registered to vote in but do not own land
within the area to be annexed."). See, e.g., 10Imson000007-8.
2

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constitute a precinct, or the number of signatures needed on any petition.

However, any elector whose name appears on the inactive list shall be eligible to
sign a petition and such petition signature, if valid and regardless of the validity of
the petition as a whole, shall be sufficient to return the elector to the official list of
electors if the elector still resides at the address listed on the elector's registration
records and shall be grounds to proceed under Code Section 21-2-234 to

confirm the change of address of the elector if the elector provides a different
addressfrom the address which appears on the elector's registration records.
(Emphasis added).
Pursuant to this authority, signing the Petition as a resident elector at the address listed on
the Petition and submitting it to the City was sufficient for election officials to confirm the
change of address of residency and for the City to count these registered voters. Additionally,
deed records confirm that 9 of the 15 indirect matches own the property at which they signed as
both a landowner and voter. Accepting these 15 signatures is in keeping with long-standing
Georgia jurisprudence that the Annexation Act should be construed liberally in favor of
annexation. H-B Props., Ltd., 247 Ga. App. at 852 (slight modification in boundary did not
invalidate annexation); Powers, 143 Ga. App. 363 (upholding annexation where application
incorrectly described property at the southeast corner of street but property owner's intent was
clear); City of Gainesville, 233 Ga. at 80; Higdon, 273 Ga. 83.

Voter Summary
The Court finds that the City properly verified that 246 of 404 or 60.89% of resident
electors applied for annexation.

Acreage
At the trial on October 25, Petitioners introduced evidence disputing whether certain
parcels were validly included in the City's validation. At the Court's suggestion, and with the
consent of the parties, additional evidence was submitted regarding those parcels on October 26,

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labeled parcels 1-23 below. The Court will discuss its findings of fact and conclusions of law
regarding each of them based on the submitted evidence.

Parcel 1 - 4575 Heather Court

Recorded at Deed Book 9888, Page 198 filed 12/26/1985 is quit claim deed from William
H. Palmer to Dorothy E. Palmer. Dorothy E. Palmer died on III 2010, as confirmed by a
certified copy of death certificate. William H. Palmer is the surviving spouse of Dorothy E.
Palmer, and as such became the owner as of Dorothy E. Palmer's death. As owner of the
property within the meaning of O.C.G.A. 36-36-32(e), William H. Palmer applied for
annexation on 8/18/2014.

Parcell is valid.

Parcel 2 - 0 Heatherland Drive

Bettie 1. Crosby is the record titleholder. Ms. Crosby did not apply for annexation.
Fulton County Tax Commissioner's office records erroneously list the property as 1415
Heatherland Drive, a property for which the City received a Petition. As the City now concedes,
the City counted this property in error, resulting in a reduction of 0.873232 acres from the
verified total.
Parcel 3 - 1270 Heatherland Drive
Recorded at Deed Book 4770, Page 93 filed 3/2112009 is the vesting quit claim deed
from Herman Griner to his wife, Katherine M. Griner granting fee simple title. Herman Griner
applied for annexation on 8/23/2014. Chevan Hill, attorney in fact for Katherine Griner, applied
for annexation on 6/4/2015, authorized to do so by a power-of-attorney signed by Katherine
Griner. The additional application and power-of-attorney was filed with the Court on
10/20/2016.

The Court concludes that the requisite consent to armex this parcel by its owner

Page 11 of22

within the meaning of O.C.G.A. 36-36-32(e), in this case through her legal representative,
O.C.G.A. 36-36-32(e), has been demonstrated.

Parcel 3 is valid.

Parcel 4 - 1375 Heatherland Drive

Recorded at Deed Book 54204, Page 687 dated 8/20/2014 is an Order of Years Support
vesting fee simple title in Ocie H. Hoyt. As owner of the property within the meaning of
O.C.G.A. 36-36-32(e), Ocie H. Hoyt applied for annexation on 8/29/2014.

Of note, but not of

legal significance, subsequent to such application, Ocie H. Hoyt conveyed her property to JelTY
D. Woodfork and Thelma S. Woodfork.

The COUli further notes that the Woodforks also applied

for annexation as submitted in the record. Parcel 4 is valid.

Parcel 5 - 4594 Heatherwood Drive

Recorded at Deed Book 22484, Page 312 filed 4/2111997 is the vesting deed granting fee
simple title to Leroy Owens, Sr. and Juanita Owens, husband and wife. Juanita Owens died
12/27/2011 as shown by a submitted certified death certificate copy. As owner of the property
within the meaning of O.C.G.A. 36-36-32(e), Leroy Owens, Sr. applied for annexation on
8/22/2014.

Parcel 5 is valid.

Parcel 6 - 4635 Heatherwood Drive

Recorded at Deed Book 39924, Page 632 filed 5/4/2005 is a quit claim deed from Sandra
Jackson to Jackson Holdings Ill, LLC. Sandra Jackson is managing member of Jackson
Holdings III, LLC, as evidenced by certified records from the Secretary of State's office. Sandra
Jackson applied for annexation on 8/20/2014. As owner of the property within the meaning of
O.C.G.A. 36-36-32(e),

Sandra Jackson signed for the property as a legal representative of

Jackson Holdings III, LLC. Parcel 6 is valid.

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Parcel 7 - 4675 Heatherwood

Drive

Recorded at Deed Book 5874, Page 342 filed 7/3011973 is the vesting deed granting fee
simple title to Dorothy 1. Wise and Joseph Wise, Jr. As set forth in Article I of the last will and
testament of Joseph Wise, Jr. dated 5/2011987, certified copy submitted, Dorothy 1. Wise, first
wife of Joseph Wise, Jr., is deceased. As set forth in Article III of such will, Joseph Wise, Jr.
Wise remarried Jean S. Wise. As further set forth in Article III, Joseph Wise, Jr. bequeathed the
property to Jean S. Wise upon his death. As set forth in the Petition to Probate Will in Solemn
form, certified copy submitted, filed by Jean S. Wise, Joseph Wise, Jr. died on 1117/2013.

Jean

Wise was named as the executor of Joseph Wise, Jr.'s will by the Fulton County Probate Court
on 3/712014, as evidenced by a submitted certified copy of Petition and Order. As owner of the
property within the meaning ofO.C.O.A.
8/21/2014.

36-36-32(e),

Jean Wise applied for annexation on

Parcel 7 is valid.

Parcel 8 - 4520 Lanark Drive

Recorded at Deed Book 53921, Page 437, is the vesting deed dated 6/1112015

granting

fee simple title to Jules W. Evans, Sr. and Leslie McTier Evans as joint tenants with rights of
survivorship.

As evidenced by a submitted certified copy of death certificate, Jules W. Evans,

S1'. died 7/8/2014.

As further evidenced by a submitted certified copy of Affidavit-Death of Joint

Tenant, filed on 11/3/2015 at Deed Book 55545, Page 259, Leslie McTier Evans is the widow of
Jules W. Evans, Sr. and as surviving spouse, is the sole owner of the property. As owner of the
property within the meaning ofO.C.O.A.

36-36-32(e), Leslie McTier Evans also known as

Leslie Evans applied for annexation on 8/25/2014.

Parcel 8 is valid.

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Parcel 9 - 4550 Lanark Drive

Recorded at Deed Book 46757, Page 242, filed 5119/2008is the vesting deed granting fee
simple title to Hua Ding and Roy P. Johnston as joint tenants with rights of survivorship.
Recorded at Deed Book 54545, Page 1 filed 1/14/2015 is an Affidavit Affecting Title to Real
Property stating that Roy P. Jolmston died 6/9/2008 and further stating that as of such death, Hua
Ding became the sole owner of the property. As owner of the property within the meaning of
O.C.G.A. 36-36-32(e), Hua Ding applied for annexation on 10114/2014. Of note, but not of
legal significance, subsequent to such application, Hua Ding conveyed the property. Parcel 9 is
valid.

Parcel 10 - 4584 Lanark Drive SW

Recorded at Deed Book 49904, Page 153 filed 3111/2011

is the vesting deed granting fee

simple title to Raymond Eldridge and Toni Eldridge. As owner of the property within the
meaning ofO.C.G.A.

36-36-32(e), Raymond Eldridge applied for annexation on 8119/2014.

There is no evidence that Toni objected to Raymond's application for annexation of the property.
Since annexation, Toni has been receiving services from the City. Toni Eldridge is thus deemed
to have ratified her consent to the annexation. See Powers, 143 Ga. App. 363 (holding that
where only one of the tenants in common applied for annexation, but both owners received
benefits of annexation, the non-signing owner was found to have ratified the acts of the signing
owner). Parcell 0 is valid.

Parcel 11- 4600 Lanark Drive SW

Recorded at Deed Book 38188, Page 692, is a deed filed 8/10/2004 from Aaron H. Evans
to Bernadene Clonts Evans. As evidenced by a submitted certified copy of death certificate,
Bernadene C. Evans died 4/22/2006, survived by her husband Aaron H. Evans (Defendant's

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Exhibit No. 1-2). A submitted security deed for the property, recorded at Deed Book 21199,
Page 251 filed 611211996 and given by Bernadene C. Evans and Aaron H. Evans is still active as
shown by the certain assignment recorded at Deed Book 56188, Page 584 filed 5/20/2016.
owner ofthe property within the meaning ofO.C.O.A.
for annexation on 8/26/2014.

As

36-36-32(e), Aaron H. Evans applied

Parcel 11 is valid.

Parcel 12 - 4610 Lanark Drive SW

Recorded at Deed Book 46217, Page 529 filed 1114/2008 is the vesting deed granting fee
simple title to William R. Shepherd and Buretta S. Shepherd. As owner ofthe property within
the meaning ofO.C.O.A.

36-36-32(e), William R. Shepherd and Buretta S. Shepherd applied

for annexation on 8/21/2014.

Of note, but not oflegal significance, subsequent to application,

the Shepherds conveyed their individual interests to the Buretta S. Shepherd and William R.
Shepherd, Sr., Trust, each co-trustee of the Trust, and recorded at Deed Book 54779, Page 595
filed on 4/6/2015.

The Court finds that the Shepherds are the trustees and legal representatives

of the Trust and so whether they applied for annexation in their individual or official capacity,
their signatures are valid and represent unambiguous consent to the annexation. Parcel 12 is
valid.

Parcel 13 - 0 Loch Lomond Trail (High Lake)

Recorded at Deed Book 3330, Page 579 is the deed dated 2118/1958 vesting fee simple to
the High Lake in High Loch Lomond, Inc. Said deed provides that abutting property owners
enjoy rights to the High Lake. Velma Brown, a/k/a Velma Smith, Vice-President of High Loch
Lomond, Inc., applied for annexation of the property on 121112014.

The signed application

included a cover letter of same date evidencing Ms. Brown's capacity to sign, relevant bylaw
section, and copies of abutting High Lake property owners' respective applications for

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annexation to establish that more than a majority consented to the annexation. The bylaws
confer upon its officers, including Ms. Brown, full power and authority over the affairs of the
association. The City submitted a certified copy of filings with the Georgia Secretary of State's
Office and full by-laws. Accordingly, Ms. Brown, as legal representative for High Loch
Lomond, Inc., O.C.G.A. 36-36-32(e), applied for annexation of the property, Parcel 13 is
valid.
The Court further finds that none of the Petitioners' property abuts the High Lake, nor
have Petitioners introduced any evidence from a High Loch Lomond, Inc. officer or member
rebutting Ms. Brown's authority to sign. See Holliday Constr. Co. v. Sandy Springs Assocs.,

Inc., 198 Ga. App. 20,21 (1990) (where officer has apparent authority, challenger may not
defeat by mere allegation that in truth and fact there was no such authority); Augusta Surgical

Ctr., Inc. v. Walton & Heard Office Venture, 235 Ga. App. 283,286 (1998) (apparent authority
to do an act is created as to a third person when the statement or conduct of the alleged principal
reasonably cause the third party to believe that the principal consents to the act done).

Parcel 14 - 1270 Loch Lomond Trail SW

Recorded at Deed Book 49199, Page 213 filed 7/19/2010 is the vesting deed granting fee
simple title to Hazel Taylor, Devon Taylor and Valencia Williams.
within the meaning ofO.C.G.A.
8/30/2014.

As owner of the property

36-36-32(e), Hazel Taylor applied for annexation on

As owner of the property within the meaning ofO.C.G.A. 36-36-32(e), Devon

Taylor and Valencia Williams applied for annexation on 6/1/2015.

While Devon Taylor and

Valencia Williams applied for annexation after the Petition was filed with the City on 4/1/2015,
the COUli finds no statutory prohibition in the Annexation Act against such action. The COUli
further finds such action in keeping with City Council v. Richmond County, 259 Ga. 161 (1989)

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(recognizing opportunity for seeking additional electors to arrive at requisite 60%). Parcel 14 is
valid.

ParcellS - 1340 Loch Lomond Trail SW

Recorded at Deed Book 6049, Page 500 filed 5/711974 is the vesting deed granting fee
simple title to Kenneth Jones. As owner of the property within the meaning ofO.CG.A. 3636-32(e), Kenneth Jones applied for annexation on 1011112014.

Of note, but not oflegal

significance, subsequent to application, Kenneth Jones transferred the property to himself and
Helen C. Jones, as joint tenants with rights of survivorship, recorded at Deed Book 55168,
170 filed on 7/20/2015.

Page

Parcel 15 is valid.

Parcel 16 - 1355 Loch Lomond Trail SW

Recorded at Deed Book 20811, Page 186 filed 4/811996 is the vesting deed granting fee
simple title to Phenecia C. Morris and Mary E. Morris. As established by Deed Book 41679,
Page 492, filed 1/3/2006, Mary E. Morris is also known as Mary Belcher Morris.
the property within the meaning ofO.C.G.A.

As owners of

36-36-32(e), Phenecia C. Morris and Mary

Belcher Morris a/k/a Mary E. Morris applied for annexation on 8/20/2014.

Of note, but not of

legal significance, subsequent to application, Phenecia C. Morris and Mary E. Morris a/k/a Mary
Belcher Morris transferred the property to Marilyn Phenecia Morris by virtue of deed of gift
recorded at Deed Book 54466, Page 396 filed 12118/2014 and noting that all parties reside at the
property. Parcel 16 is valid.

Parcel 17 - 1435 Loch Lomond Trail SW

Recorded at Deed Book 44336, Page 458 filed 1/25/2007 is the vesting deed granting fee
simple title to Tyron H. Lester and Eddie L. Cooke, Jr., as joint tenants with rights of
survivorship.

As owners of the property within the meaning ofO.C.G.A.

Page 17 of22

36-36-32(e), Tyrone

H. Lester and Eddie L. Cooke, Jr. signed the Petition on 6/1/2015.

While Tyron H. Lester and

Eddie L. Cooke, Jr. applied for annexation after the Petition was filed with the City on 4/1/2015,
the Court finds no statutory prohibition in the Annexation Act against such action. The Court
further finds such action in keeping with City Council v. Richmond County, 259 Ga. 161 (1989)
(recognizing opportunity for seeking additional electors to arrive at requisite 60%). Parcel 17 is
valid.

Parcel 18 - 1515 Loch Lomond Trail SW

Recorded at Deed Book 31587, Page 19 filed 1/2/2002 is the vesting deed granting fee
simple title to Earl Cooper and Linda Brooks Cooper, as joint tenants with right of survivorship.
Earl Cooper, husband of Linda Brooks Cooper, died 4117/2008, as evidenced by submitted
certified copy of death certificate, leaving Linda Brooks Cooper the sole owner of the property.
As owner of the property within the meaning ofO.C.G.A.
applied for annexation on 8/23/2014.

36-36-32(e),

Linda Brooks Cooper

Parcel 18 is valid.

Parcel 19 - 1795 Loch Lomond Trail SW

Recorded at Deed Book 34882, Page 595 filed 5/9/2003 is the vesting deed granting fee
simple title to Harold Watson and Queen E. Watson as joint tenants with right of survivorship.
Harold Watson died on 5/9/2008, as evidenced by submitted certified copy of death certificate,
leaving his wife Queen E. Watson the sole owner of the property. As owner oftbe property
within the meaning of O.C.G.A.

36-36-32(e),

Queen E. Watson applied for annexation on

911 0/20 14. Parcel 19 is valid.

Parcel 20 - 1870 Loch Lomond Trail SW

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Recorded at Deed Book 51367, Page 329 filed 7/2/2012 is the vesting deed granting fee
simple title to Hiari Jabbie. As set forth on that certain security deed recorded at Deed Book
54269, Page 592 filed 10/21/2014, Hiari Jabbie is also known as Hiari Imara. As owner of the
property within the meaning ofO.C.G.A. 36-36-32(e), she applied for annexation as Hiari
Imara on 8/21/2014 and again 'as Hiari Jabbie on 5/30/3015.

Parcel 20 is valid.

Parcel 21 - 0 New Hope Rd. (Low Lake)

Recorded at Deed Book 53667, Page 344 filed 3/27114 is the deed vesting fee simple title
to the Low Lake in Lower Loch Lomond Lake HOA, Inc. Clarence W. Wilson, 11'., President of
Lower Loch Lomond Lake HOA, Inc., applied for annexation of the property on 10/30/2014.
Mr. Wilson is an incorporator according to the Articles of Incorporation on file with the Georgia
Secretary of State. Mr. Wilson submitted a letter dated 1211/2014 explaining HOA bylaws and
that pursuant to the bylaws, there are 27 members of the HOA and two-third majority rules and
19 of the 27 lake owners applied for annexation (70%). He enclosed copies of such lake owner
annexation applications. The City submitted a certified copy of filings with the Georgia
Secretary of State's Office. Accordingly, Mr. Wilson, as legal representative for Lower Loch
Lomond Lake HOA, Inc., O.C.G.A. 36-36-32(e),

applied for annexation of the property.

Parcel 21 is valid.
The Court further finds that none of the Petitioners' property abuts the Low Lake, nor
have Petitioners introduced any evidence from Lower Loch Lomond Lake HOA, Inc. officer or
member rebutting Mr. Wilson's authority to sign. See Holliday Canstr. Co., 198 Ga. App. at 21
(where officer has apparent authority, challenger may not defeat by mere allegation that in truth
and fact there was no such authority); Augusta Surgical Ctr., 235 Ga. App, at 286 (apparent

Page 19 of22

authority to do an act is created as to a third person when the statement or conduct of the alleged
principal reasonably cause the third party to believe that the principal consents to the act done).

Parcel 22 - 1220 New Hope Dr.

Recorded at Deed Book 48852, Page 195 filed 3/1112010 is a deed granting fee simple
title to Jacqueline S. Hood and Kenneth M. Hood. As owner of the property, Jacqueline S. Hood
applied for annexation on 8/23/2014. There is no evidence that Kenneth objected to Jacqueline's
application for annexation of the property.

Since annexation, Kenneth has been receiving

services from the City. Kenneth M. Hood is thus deemed to have ratified his consent to the
annexation. See Powers, 143 Ga. App. 363 (holding that where only one of the tenants in
common applied for annexation, but both owners received benefits of annexation, the nonsigning owner was found to have ratified the acts of the signing owner).

Parcel 22 is valid.

Parcel 23 - Parcel ID 14F006200020073

The record titleholder of this parcel is Fulton County, Georgia, as evidenced by Deed
Book 26880, Page 258 filed 611511999.

Stewart Henderson, geographic information system

analyst for the City testified at trial that he mistakenly included this property in the total acreage
calculation for Loch Lomond, which is 271 acres. He further testified that in preparation for trial
he discovered that this parcel should have been excluded because of its public ownership.
Pursuant to O.C.G.A 36-36-32(f), the acreage of public properties "shall be excluded from
acreage calculations" pertaining to the landowner approval requirement. The Court finds this
oversight to be a procedural defect that it must perfect consistent with O.C.G.A.

36-36-39(b).

Accordingly, the 0.5546 acreage ofthe property should be subtracted from the 271 acreage used
during the initial validation. The correct acreage to be considered by the COUl1 for the purposes
of this case is 270.4454.

Page 20 of22

Land Summary

The City verified that owners of 164.65 acres applied for annexation. The COUli upholds
Petitioners' challenge to Parcel 2 (.87 acres) and denies Petitioners' challenges to the remaining
parcels, leaving a verified acreage of 163.78 (164.65-.87). As set forth above, the adjusted total
land area acreage is 270.44. As a result, owners of 60.56% of the land area applied for
annexation. The Court further notes that even without the adjusted total land area acreage, the
verified acreage would stand at 60.44%.
Conclusion

Based on the foregoing, the Court finds that the City lawfully annexed Loch Lomond.
Petitioners' request for declaratory relief is hereby DENIED in its entirety. The parties will bear

...... Ju ge Gail Tusan,

./
Chief Judge, Atlanta Judicial Circuit

Prepared by:
Cathy D. Hampton
City Attorney
Georgia Bar No. 321899
Jeffrey S. Haymore
Sr. Assistant City Attorney
Ga. Bar No. 142479
Ashley Scott
Assistant City Attorney
Ga. Bar No. 976929
Anamaria Hazard
Associate City Attorney
Ga. Bar No. 304277
Page 21 of22

55 Trinity Avenue, S.W., Suite 5000

Atlanta, Georgia 30303
(404) 546-4123 (office)
(404) 494-1670 (facsimile)
j haymore@atlantaga.gov
Robert L. Ashe III
Georgia Bar No. 208077

BONDURANT MIXSON & ELMORE, LLP

1201 West Peachtree Street, NW
Suite 3900
Atlanta, Georgia 30309
(404) 881-4100 (office)
(404) 881-4111 (facsimile)
rashe@bmelaw.com

Attorneys/or the City

0/ Atlanta

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