County Stormwater Ordinance Not Invalid

In Polo Golf & Country Club Homeowners Ass'n, Inc. v. Cunard, 854 S.E.2d 732 (Ga. 2021), a homeowners association (HOA) brought an action against county engineering department executives in their individual capacities, seeking declaratory and injunctive relief regarding enforcement of an addendum to the county's stormwater ordinance. The addendum (Section 4.2.2) made HOAs “responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.” The HOA argued that the addendum is unconstitutional and otherwise invalid and that individual lot owners are responsible for maintaining stormwater infrastructure on their lots. Variants of this case have been litigated and appealed multiple times. On remand, the trial court evaluated and rejected the HOA's remaining claims that the addendum is invalid because it requires the HOA to trespass on the private property of homeowners, constitutes involuntary servitude under the United States and Georgia Constitutions, and exceeds the scope of the ordinance that authorizes the county to promulgate the addendum. The trial court denied the HOA's motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed. The Georgia Supreme Court affirmed.

To prevail on its facial challenge to the addendum, the HOA must establish that “no set of circumstances exists under which [Section 4.2.2] would be valid.” The trial court determined, and the Georgia Supreme Court agreed, that the HOA had “power through its declarations to exercise the right of self-help to abate the non-complying drainage easement or stormwater facility existing on an individual lot owner's lot within the subdivision” and therefore rejected the HOA's argument that compliance with the addendum is a legal “impossibility.” Thus, the Georgia Supreme Court held that the stormwater ordinance was not facially invalid on the basis it required the HOA to perform maintenance on land it did not own.

The HOA also challenged the addendum as invalid as applied to the HOA. Specifically, it argued that because the right of abatement is available only after the HOA formally determines that a lot owner is in violation of the Declaration, the HOA could find itself in a situation where the HOA determines that a lot owner's stormwater issue does not violate its Declaration, but the county nevertheless concludes that the lot owner violated county ordinances and cites the HOA for the violation under Section 4.2.2. Under such a scenario, the HOA argued, Section 4.2.2 would force the HOA to trespass on private property to perform maintenance and is therefore invalid as applied to the HOA. The trial court found, and the Georgia Supreme Court agreed, that “exercising self-help and entering [a homeowner's] lot [would] not commit a trespass,” in part because the HOA “would be acting pursuant to the terms of the declaration that the lot owner subjected herself to when she purchased her lot within the subdivision.” Thus, the Georgia Supreme Court held that the stormwater ordinance was not invalid as applied to the HOA.

The HOA also argued that Section 4.2.2 is unconstitutional—facially and as-applied to the HOA—because it compels the HOA to maintain property the HOA does not own, and thus constitutes involuntary servitude in violation of the United States and Georgia Constitutions. The trial court held, and the Georgia Supreme Court agreed, that the obligation imposed by Section 4.2.2 “does not fall within the realm of compulsory labor as contemplated by the Thirteenth Amendment.” Thus, the Georgia Supreme Court held that the stormwater ordinance was not facially invalid on the basis it constituted an involuntary servitude.

Last, the HOA argued that Section 4.2.2 is invalid because it is an administrative rule that “exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated.” Specifically, the HOA argued that Section 4.2.2 is “facially invalid” because it exceeds the scope of the authorization provided in the county ordinance, which provided:

The [county] Department of Engineering shall develop, and update periodically, an Addendum to the state stormwater management design manual for the guidance of persons specifically preparing stormwater management reports, and designing or operating stormwater management systems in Forsyth County.

The HOA argued that when the addendum was revised in 2014, the lot owners—and not the HOA—operated the stormwater management system in the subdivision, and because the HOA did not “prepare stormwater reports” or “design[ ] or operat[e] stormwater management systems in Forsyth County” at that time, “the government improperly used Section 4.2.2 to create a brand new obligation onto [the] HOA to become an operator of a stormwater system.” In short, the HOA argued that because it did not “operat[e] stormwater management systems” in 2014, as referenced in the ordinance, Section 4.2.2 could not lawfully apply to the HOA and therefore “exceeds its enabling ordinance.” The trial court rejected this argument and determined, and the Georgia Supreme Court agreed, that the HOA “is an operator of a stormwater management system within the subdivision it was created to protect.” Thus, the Georgia Supreme Court held that stormwater ordinance was not facially invalid on the basis it exceeded the scope of the authorization provided to the county.