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Official Opinion 2004-1

Official Opinion 2004-1

January 14, 2004
To: 

Governor

Re: 

A county or municipality may participate as a member for limited purposes in the Atlanta Regional Commission under federal laws and regulations governing metropolitan planning organizations while remaining a member of a regional development center other than the Atlanta Regional Commission.

You have requested my opinion on provisions of federal law which appear in some instances to conflict with certain Georgia laws concerning required transportation planning activities to retain eligibility for federal highway assistance funds. The Twenty-Second Decennial Census (2000) resulted in population density information that placed portions of eight new counties within the current ten-county Atlanta Urbanized Area: Barrow, Bartow, Coweta, Forsyth, Newton, Paulding, Spalding, and Walton.

The following example can be used to illustrate the issues involved. Walton County1 is a member of the Northeast Georgia Regional Development Center. Under the 2000 census, portions of Walton County have been added to the Atlanta Urbanized Area (AUZA) and its associated federal Metropolitan Planning Organization (MPO). The Atlanta Regional Commission is designated by state law as the MPO for the AUZA and also serves as the regional development center (RDC) for its area. State law, however, precludes a county from being in two different RDCs. O.C.G.A. § 50-8-32. The principal question, then, is whether Walton County, for certain limited federal transportation planning purposes, can be a member of the Atlanta Regional Commission while simultaneously remaining a member of the Northeast Georgia RDC. I conclude that under the current circumstances, Walton County can properly remain in the Northeast Georgia RDC while participating in the Atlanta Regional Commission in a limited fashion as a part of the federal MPO.

Georgia has enacted a specific set of laws in order to comply with federal transportation planning requirements. More specifically, 23 U.S.C. § 134(b)(1) requires, in pertinent part, that a “metropolitan planning organization shall be designated for each urbanized area with a population of more than 50,000 individuals . . . in accordance with procedures established by applicable State or local law.” For this purpose, O.C.G.A. §§ 50-8-80 through 50 8 103 created metropolitan area planning and development commissions and specifically designated each such commission as the official “planning agency” for “comprehensive transportation studies required by 23 U.S.C. Sections 101, 134” and others. O.C.G.A. § 50 8 93. It should be noted, however, that the “area” defined in O.C.G.A. § 50-8-80(1) is not synonymous with the area defined in the federal references set forth in O.C.G.A. § 50 8 93(d).

Planning and development commissions are implemented at the call of the chairman of the county commission of the most populous county in the designated area. O.C.G.A. § 50 8 82. The “area” that may be covered pursuant to O.C.G.A. § 50-8-80(1) is the standard metropolitan statistical area (SMSA) resulting from the most recent census, subject to changes made by the state Board of Community Affairs. Further, no area, county, or municipality shall be designated into the SMSA “without the affirmative vote of such area, county, or municipality or its governing body.” Id. The Department of Community Affairs (DCA) has not utilized the SMSA as the designated area for the Atlanta Regional Commission (the Atlanta SMSA today even includes a county in Alabama). Instead, DCA has reduced the size of the included area to that of the federally designated AUZA, thus establishing ARC as both a planning and development commission and the designated MPO for the AUZA. Further, the ARC has, for its designated full membership area, taken on the responsibility of an RDC pursuant to O.C.G.A § 50-8-83.

Regional development centers are created pursuant to O.C.G.A. §§ 50-8-30 through 50 8 45 to promote, assist, and develop coordinated, comprehensive, and orderly planning under guidance from the state through the DCA. The Board of Community Affairs is charged with establishing the boundaries of an RDC, subject to approval of the General Assembly. See O.C.G.A. §§ 50 8 4(f) and 50-8-32.

Throughout the Code sections governing metropolitan area planning and development commissions and regional development centers, there are clear indications that such commissions were also intended to act as, and be considered, the RDCs for their areas. For example, “[a planning and development] commission shall be, for its area, a regional development center as defined in and with all the powers, duties, and obligations of a regional development center set forth in Article 2 of this chapter . . . .”2 O.C.G.A. § 50-8-83. In addition, “[e]ach county shall be wholly within the region of one regional development center, and no county shall be divided among more than one region.” O.C.G.A. § 50-8-32. Finally, O.C.G.A. § 50-8-42 states that “[a]ny metropolitan area planning and development commission, created pursuant to Article 4 of this chapter, shall also serve as the regional development center for the area covered by such metropolitan area planning and development commission.”3 While one might then conclude that the planning and development commissions and the RDCs must be mutually exclusive organizations, such a conclusion would frustrate the clear intent of the General Assembly.

The rules of statutory construction in O.C.G.A. § 1-3-1 provide that we should “look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” It is an elementary rule of statutory construction that a statute must be construed in relation to other statutes of which it is a part and all statutes relating to the same subject matter; that is, statutes should be construed and harmonized wherever possible so as to give effect to the legislative intent. Ryan v. Commissioners of Chatham County, 203 Ga. 730 (1948).

The factual dilemma encountered in the present situation is that the decennial census does not designate population centers by reference to geopolitical boundaries. In most cases, including the example of Walton County used in this opinion, the population area included within the AUZA is not the whole county.4 The additional area included in the metropolitan planning boundary, which reflects the current air quality nonattainment area and the contiguous area anticipated to become urbanized in the next 20 years, also comprises less than the entire county.5See 23 U.S.C. § 133(c)(2)(a). The majority of Walton County is outside both the AUZA and the metropolitan planning boundary. Nevertheless, the newly-urbanized areas and projected areas must also be considered as a part of the MPO under federal requirements, and, for the limited purposes of transportation planning only, must participate as well in the ARC.

The General Assembly has provided some guidance for such situations in O.C.G.A § 50 8 42: “In the event of any conflict between the provisions of law governing metropolitan planning and development commissions and those governing regional development centers, however, the laws governing metropolitan area planning and development commissions shall control and shall govern the metropolitan area planning and development commission.” Thus, the intent of the General Assembly is that the federally-determined MPO designations are to be followed in the event of conflict. This interpretation is consistent with the General Assembly’s intent, as set forth in O.C.G.A. § 50-8-93, to insure Georgia’s compliance with federal law, 23 U.S.C. § 133(d)(4), which makes receipt of federal funding for surface transportation programs contingent upon the state’s compliance with, inter alia, the planning requirements of 23 U.S.C. § 134.

One of the federally accepted methods for establishing an MPO is by agreement of the governor and local governments representing at least 75% of the affected population, including the central city. For example, in 1992 Cherokee County was directed to be included in the MPO as a part of the ARC, “for federal transportation planning purposes only,” with the concurrence of the governor and the existing nine member counties of the ARC.6 This limited participation did not trigger the requirement for full membership, that is, an affirmative vote of the county pursuant to O.C.G.A. § 50-8-80(1). A year later, however, Cherokee County approved full membership in the ARC, including the ARC as its RDC.

The powers of a planning and development commission pursuant to O.C.G.A. § 50-8-83 are both broad and in addition to the powers it may have as an RDC. This provides a basis for concluding that an area may be admitted into a planning and development commission for limited federal transportation planning purposes but not be included for participation in the commission’s role as an RDC. See also O.C.G.A § 50-8-42. The ARC also has and is permitted to exercise “all power and authority which may be necessary or convenient to enable it to perform and carry out the duties and responsibilities imposed on it . . . .” O.C.G.A § 50-8-98. Accordingly, since the ARC is already limited in size from the statutory SMSA to only the areas included within the AUZA, I conclude that the ARC may establish categories of membership that are limited to accommodate the variety of planning responsibilities it must undertake. Thus, the area of full membership in which it exercises RDC powers may be smaller than the AUZA (and MPO) in which it exercises limited powers, such that portions of counties and other areas may be included within the federally appropriate planning area without requiring an entire county to join as a full member of the ARC as an RDC.

Concerning implementation of changes in membership, the statutory process requires certain approvals. To become a member of the federal MPO through the ARC, for example, the area of Walton County falling within the AUZA must have its boundaries set by the Board of Community Affairs. See O.C.G.A. § 50-8-80(1) (providing for changes to be made by the Board of Community Affairs to the SMSA “pursuant to Code Section 50-8-30”7 ). Further, pursuant to O.C.G.A § 50-8-4(f) and (g), the new area designation must then be approved by the General Assembly through either joint resolution or act. If the designation by the Board of Community Affairs also permits areas such as Walton County, the example used in this opinion, to become a limited member of the ARC while remaining in the Northeast Georgia RDC, it would be appropriate to include that decision within the approval requested of the General Assembly. You should keep in mind that a county such as Walton County, as an alternative, could pursuant to O.C.G.A. § 50 8 80(1) become a full member of the ARC and leave the Northeast Georgia RDC with the approval of the appropriate governing body or bodies within Walton County.8 Such approval would come from the county commission for unincorporated areas covered and from the appropriate municipality for any municipal area to be included within full membership in the ARC. Finally, as required by O.C.G.A. § 50-8-84(c), should such full membership be approved the ARC should be redistricted in accordance with O.C.G.A. § 50 8 84(a)(6) as to its 15 members-at-large within 90 days after local approvals are received.

In conclusion, it is my official opinion that a county or municipality may participate as a member of the Atlanta Regional Commission for the limited purposes of federal laws and regulations governing metropolitan planning organizations while remaining a member of a regional development center other than the Atlanta Regional Commission so long as the statutory processes and approvals outlined above are obtained.

Prepared by:

GEORGE S. ZIER
Senior Assistant Attorney General


1 Throughout this opinion Walton County is used for illustrative purposes only.

2 Article 2 of Chapter 8, Title 50, establishes the regional development centers.

3 Article 4 establishes the planning and development commissions, but this Code section is in Article 2, establishing regional development centers.

4 The population area of Walton County included in the AUZA appears to comprise considerably less than ten percent of the land area of the county located in its extreme western border.

5 The land area encompassed within the metropolitan planning boundary appears to be no more than one-half of Walton County.

6 Resolution of the Atlanta Regional Commission dated February 26, 1992; letter of Governor Miller concurring dated June 9, 1992.

7 The correctness of this reference in O.C.G.A. § 50-8-80 to O.C.G.A. § 50-8-30 as a source of the board’s authority is uncertain. Code section 50-8-30 provides a statement of legislative findings, purpose, and intent and instructs that the article (Article 2) should be construed liberally; it does not appear to confer substantive authority on any entity. Perhaps the reference was intended to be to O.C.G.A. § 50 8 32, which authorizes the board of community affairs “to establish the boundaries of any region for which a metropolitan area planning and development commission . . . also serves as the regional development center.”

8See note 6 and accompanying text supra.