Citing a missed deadline, the Georgia Department of Community Affairs, or DCA, has declined to name an arbitration panel in the ongoing dispute between Bulloch County and the city of Statesboro over the city’s annexation of about 37 acres on Beasley Road.

This follows from the county Board of Commissioners making a formal objection, by a 6-0 vote on April 4, to the city’s proposed annexation of the tract at the request of its owner, Bel Air Estates Inc., for creation of a residential subdivision.  The county filed an amended objection with the DCA April 19-20 and requested that the DCA create a third-party panel to settle the dispute between local governments as called for under a state law.

Meanwhile, an attorney for the city asserted that the county had given insufficient reasons for its objection and that the arbitration process would violate the state Constitution. The DCA didn’t accept that, and went ahead with attempting to name a panel.

If the process had proceeded as expected, a five-member panel, with two “municipal,” or city, arbitrators, two “county” arbitrators and one “academic” arbitrator would have been created. The DCA sent a list of about four potential city-oriented panelists – such as current or former council members from other cities – and about three academics to the county. County officials were asked to request three “strikes” for removal of potential panelists, and did so.

But after the DCA provided a similar list of potential county panelists – such as current or former county commissioners from other parts of the state – and academics to the city government, the city did not submit a list of requested strikes by the close of business May 4 as DCA requested.

Juli Yoder, principal planner and manager with the DCA, stated in a May 10 email to Statesboro and Bulloch County officials and their attorneys that the deadline for appointment of the panel had been 11:59 p.m. May 6. That, the DCA indicated, would have met a requirement in the law that a panel be named within 15 days after the city received the state agency’s notice of the county’s objection.

Yoder noted that the city had filed a second objection instead of suggesting strikes by May 4, but then sent a list of strikes two days after the deadline.

“The City provided strikes to DCA, via email, Monday, May 8, 2023 at 9:09 a.m.,” Yoder stated in the email. “For the foregoing reasons, DCA is unable to fulfil this request and respectfully declines to appoint a panel.”

George H. Rountree of the Statesboro firm Brown Rountree, as lead counsel for the Bulloch County government in this matter, wrote to DCA Commissioner Christopher Nunn on Friday, requesting that the state agency reconsider and appoint an arbitration panel.

Rountree argued that the state law that describes the arbitration process “permits – but does not require – the parties to strike or excuse names” from the pool of panelists. A regulation appearing to mandate that the county and city make strikes contradicts the law, he stated.

“Moreover, regardless of whether strikes are viewed as permissive or mandatory, to allow a municipal government to thwart the appointment of an arbitration panel by simply refusing to timely submit strikes vitiates the entire statutory scheme for arbitration,” Rountree wrote. “If this decision is allowed to stand, it is possible that no arbitration panels will be appointed in the future because municipalities may simply refuse to submit strikes on a timely basis.”

Yoder, in Monday, May 15, email to Bulloch and Statesboro officials, acknowledged receipt of the county’s reconsideration request and expressed the DCA’s prompt rejection of it. She cited state law in relation to the deadline.

“The statute, specifically 36-36-114(a), allows for panel appointment not later than the fifteenth calendar day, following the date the department (DCA) received the objection request,” Yoder wrote. “The fifteenth day was May 6, 2023. Due to this, there is no process for reconsideration.”

Headed to court?

So at this point the question becomes whether the 36.55-acre tract on Beasley Road can or cannot be annexed into Statesboro’s city limits. Starting its second annexation attempt on this land March 21, City Council did not vote to annex but only to acknowledge receipt of the property owner’s request and have the city clerk investigate its sufficiency while other staff members notified the county and school board.

Phoned Monday, City Attorney Cain Smith said the city is going ahead with the annexation and rezoning on the basis that there is no valid objection.

“The question of zoning map designation, with that parcel being zoned R-6, will be on the Planning Commission meeting agenda June 6, and the zoning map designation, along with Planning Commission’s recommendation, as well as the annexation, will be on the June 20 (mayor and council) agenda,” Smith said.

The city’s challenge to the county’s objection wasn’t handled by Smith, the City Hall staff attorney, but by Ted C. Baggett, a private attorney from Lawrenceville retained for the purpose.

The state arbitration process is new, and Smith said the DCA provided no biographical information on the panel members, despite a requirement in the law to do so, until Baggett sent an open records request. The city only received the information after the strike deadline had passed, Smith said.

But the county’s position is that the annexation is blocked, according to Rountree. The controlling state law, he said, would give the city a choice, to proceed with annexation subject to the recommendations of an arbitration panel or abandon the annexation process.

“The city can do one or the other, and so it appears to us that because the city prevented the arbitration panel from being impaneled, they have no recommendations to accept,” Rountree said. “Therefore, the only choice available to the city is to abandon the annexation proceeding.”

As of Monday, neither the city nor the county had filed anything in court.

“Hopefully everybody will do what is required of them, and that will be the end of it,” Rountree said.

Began in January 

Although it took a new turn with the county’s objection, controversy over annexing the tract dates from the beginning of the year.

The Bel Air Estates shareholders have planned to sell the land to developer Lamar Smith of Smith Family Homes, with annexation to allow for city water and sewer service as a condition of purchase. 

Their first proposal was for rezoning of what was first described as 41 acres from the city’s default annexation zoning of R-40 single-family residential to R-2 townhome residential for creation of a subdivision with up to 212 townhouse units. 

But other area property owners and residents objected, citing the potential population density, traffic and effects on the character of the neighborhood as well as faults in the city’s notification process. 

City Council first voted Jan. 17 to annex the site. But some of the objecting citizens filed a legal challenge in Bulloch County Superior Court, noting errors in the city’s procedure that included acting to annex before a required 45-day opportunity for the county commissioners to object had fully passed. 

In a Feb. 23 consent order, the city agreed that the January annexation was “null and void.” But as expected, the property owners applied again to have the land annexed, this time with a proposal to have the property rezoned to R-6 for 124 lots for detached, single-family houses. 

The county commissioners in their April 4 resolution objected on the grounds that the increase in population density would “impose infrastructure demands” on the county because of an increase in traffic.