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Enforcement of city ordinances/code – the implications of the 2002 Georgia Court of Appeals ruling

The following is the text of an email I sent to the City of Dunwoody and the city staff today.  

“Mayor, Council Members, and City of Dunwoody staff:

I am writing to address a concern I have regarding recent correspondence about the city’s process for permitting and inspections for compliance with city ordinances; specifically as they relate to other governmental entities operating within the city’s boundaries.

This letter will conclude that based on a 2002 Georgia Court of Appeals case, (click here to read), the City of Dunwoody should seek to enforce its ordinances/code, regarding building, plumbing, electrical, land disturbance, storm water, etc. for any building activity on property owned by the school district, or county, within the city of Dunwoody.

I will further conclude that the Court explicitly stated that within a city, only the city, is imbued with the powers to enforce such things as building, plumbing, electrical, storm water, etc. codes. Other governmental entities are barred from enforcing any of these “supplementary powers” within the corporate boundaries of the city.

Please indicate for me when the city will enforce these “supplementary powers” on the recent activity that has taken place at Dunwoody High School, and provide me with the documentation that the necessary plan review, permitting, and inspection processes have taken, or will take, place.

I – Recent statements and facts

In a Facebook post regarding the construction of temporary, portable classrooms being built on the grounds of Dunwoody High School, Councilman Nall, stated:

“DCSD isn’t exempt from complying with applicable building codes, life safety reviews, etc. As a separate, sovereign government, they have a number of ways to accomplish it without necessarily coming through the city.” On April 9th at 5:55pm

In response to my question: “How would they comply with the applicable city codes in a way that doesn’t involve the city?” Councilman Nall replied: “They don’t. That’s the point.” On April 9th @ 6:26pm

”DCSD is exempt from city-specific rules, but not rules of higher government, such as state or feds. DCSD is considered a local governing authority.” On April 9th at 6:35pm

“Community Development advises DCSD submitted paperwork late last week for review. That said, also confirmed DCSD regularly initiates paperwork for city review, but doesn’t follow through to a city permit issued or city CO. This is because DCSD not obligated to work through city for reasons already posted here (i.e. separate government). As I have to post full comment thread into our open records database, I’ll not respond further on this thread. Happy to direct anyone to correct department or provide other info via email: terry.nall@dunwoodyga.gov where open records info is automatically captured.” On April 10th at 12:37pm

The conclusion I draw from these statements is that the City of Dunwoody definitively holds the position, as expressed by Councilman Nall, that:

(1) DCSD can conduct any and all types of construction on their property within the corporate boundaries of the City, so long as used for educational purposes.

(2) The City is not entitled to require permits and perform inspections to insure that DCSD is compliant with any applicable city ordinances and codes.

I agree with (1). So, long as the property is used for educational purposes, a city or county cannot enforce its rules of zoning. If the school district were to try to use some part of the property for other purposes, then zoning restrictions would apply. This was contemplated and ruled on in the “DeKalb Cell Tower case” (Click here to read the Opinion and Order in that case.)

I disagree with (2). The city is entitled to require permits and perform inspections to insure that DCSD is compliant with all other city ordinances and codes, outside of the rules of zoning. Counties and school districts (political subdivisions of state government) are exempt from zoning within a city’s boundaries but they are not exempt from every other ordinance or code. The Georgia Court of Appeals explicitly stated this in a 2002 case that, ironically, involved DeKalb County and The City of Decatur. I will go into those specific details below. These are the details, as discussed by the Court of Appeals that contradict the above written statements of Councilman Nall.

I am concerned that the posture of the city of Dunwoody, in these matters, creates a very real potential liability for the city. If the temporary structures, or any other building structure on the DCSD property fails in some way, and the city has neglected or abdicated its responsibility to permit and inspect the processes and building, the city may be exposed to legal actions. I am further concerned that the state may find the municipality is not fulfilling its obligations under certain state laws.

I further note that the city has recently settled a 4th lawsuit for a member of the police force and that a recent email was sent to the Dunwoody Chamber of Commerce from a council member that revealed that the City has a “don’t ask, don’t tell” policy about enforcement of some ordinances/codes. These facts magnify my concern about the operations and risk mitigation of the city.

II – Compliance with city ordinances/code

In June of 2002, The City of Decatur won their suit against DeKalb County on appeal to The Georgia Court of Appeals. This case is exactly on point with my contention that the city is entitled to enforce all of its ordinances, with the exception of zoning, when another government owns and builds on that property. Indeed, I would argue that the city must enforce its ordinances/codes in order to: (1) avoid any claims of negligence, (2) protect the elected officials from claims that would strip them of the “official immunity”, (3) protect the city from claims of being arbitrary in its enforcement, and (4) continue to receive the goodwill of the citizens within the city.

The history of the 2002 case is this:

DeKalb County was constructing a courthouse and doing renovations to an existing building. DeKalb allowed a contractor to commence construction before obtaining permits from Decatur and did not apply for permits relating to the renovations. The city of Decatur indicated they would seek to enforce their ordinances. DeKalb sued Decatur to seek relief from having to comply with Decatur’s ordinances. The trial court found in favor of DeKalb. Decatur appealed.

The appeals court found that:

(1) They agreed that DeKalb was not subject to the municipal zoning regulations, so long as the property were being used for governmental purposes. (Trial court got that part correct.)

(2) The Court of Appeals found that the trial court “did err by concluding that all other municipal building regulations fell under the broad category of zoning and therefore were unenforceable…”

(3) The Court of Appeals went on to say “Even under the Georgia Constitution, municipal powers relating to “zoning” are included in an entirely separate section from supplementary municipal powers relating to the enforcement of “[c]odes, including building, housing, plumbing, and electrical codes” and those involving “[s]torm water and sewage collection and disposal systems.”

Implication: While immune from zoning regulations, another government (county of school district) is obligated to follow all other rules within the municipality they find themselves.

(4) The Court of Appeals stated:

“Indeed, unless otherwise provided by law, a county is barred from enforcing its supplementary powers within a municipality, as a municipality is imbued with the task of enforcing its supplementary powers within its own boundaries. Ga. Cost. of 1983, Art. IX, Sec. II, Par. III(b)(1).”

Implication: This statement from the court contradicts Councilman Nall’s two assertions, listed above, that DCSD (1) “is exempt from city-specific rules”, and (2) that they have some other way of enforcing their supplementary powers: “As a separate, sovereign government, they have a number of ways to accomplish it without necessarily coming through the city”.

In fact, the court explicitly is stating that within the city, only the city, is imbued with the powers to enforce such things as building, plumbing, electrical, storm water, etc. codes.

(5) The court further ruled that municipalities are required to “adopt….comprehensive ordinance(s), establishing the procedures governing land-disturbing activities which are conducted within their….boundaries” under the Georgia Erosion and Sedimentation Act.

III – Conclusion

I have alerted the DeKalb County Fire Department (DKFD) to the building of the temporary, portable classrooms. It is my understanding they intend to perform the inspection and enforcement tasks with which they are imbued. I am disappointed that the city of Dunwoody did not share this information with DKFD.

I am concerned based on the statements by elected city officials, documented in writing, that the city cannot and will not enforce its building codes. This appears to, not only be incorrect, but places Dunwoody’s students, and government at risk.

I hope that the city will make a statement and demonstrate compliance with all current ordinances, rules, regulations, etc. so that the citizens of the city can be assured that Dunwoody does not operate with a “don’t ask, don’t tell” policy regarding any matter.

IV – Commentary

The city of Dunwoody was born from an organic desire to have a more responsive government that was closer to the people. The expectation was to see robust enforcement of quality of life issues. The expectation included having council members that looked out for the best interests of the citizens of the city. The people that worked so hard to make the city a reality based on these expectations were not “complainers” then; and citizens that point out current deficiencies with the city should not be labeled “complainers” today.

It is the job of the elected officials to make sure the city lives up to its promise. That requires holding the employees and contractors of the city responsible for the quality of the work and advice they are giving you and the citizens. Of course, there are times that employees should be recognized and praised for particularly excellent service. There are also times when you need to speak up about the poor performance of staff. It requires dispassionate discernment on your part to see the difference. You are the voice of the citizens and not the cheerleaders for taxpayer funded staff. I know that each of you are more than capable of being the robust advocate that the citizens deserve. That is what will actually make Dunwoody better.

–Nancy

Nancy Jester”

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  1. […] who lives in Dunwoody, blasted Dunwoody officials in an email to the mayor and City Council, on Facebook and in an email to constituents for allowing […]

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