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Unofficial Opinion 96-16

Unofficial Opinion 96-16

September 4, 1996
To: 

Representative
District 24

Re: 

A tie vote on consideration of a zoning proposal by the Madison County Board of Commissioners is not a "defeat" of the proposal so as to bar its reconsideration pursuant to O.C.G.A. § 36-66-4.

You have asked for my opinion as to whether a tie vote at the Madison County Board of Commissioners constitutes a defeat for a zoning proposal and, if so, whether that proposal may not be reconsidered for at least six months under O.C.G.A. § 36-66-4(c). It is my unofficial opinion that a 3-3 vote on a zoning proposal in Madison County constitutes neither a passing nor a defeat of the proposal. As a result, the proposal may be voted on by the Board again within six months despite Section 36-66-4(c).

As you have noted, the Georgia Supreme Court has made brief reference to such issues in the past. In Gradous v. Board of Commissioners, 256 Ga. 469 (1986), for instance, the Court noted that "the vote of the county commissioners resulted in an even split so that the motion to rezone failed for the lack of a majority." Id. at 469. More substantially, the Court held in Harrison v. Arogeti, 228 Ga. 55 (1971), that "[u]nless expressly authorized by the Act creating it, such a body can exercise its powers only upon the vote of a majority of its members." Id. at 58.

In 1992, local legislation established the current structure of the Madison County Board of Commissioners, 1992 Ga. Laws 4873 et seq., which includes five commissioners and a chairman,

all six of which are required to vote "unless he shall be disqualified to vote thereon because of conflict of interest or other legal reason." 1992 Ga. Laws 4873, 4878-79. This Act provides, "A majority vote of the entire board will control the determination of all policies on the board." Id. at 4878. Therefore, just as it takes four votes to pass a proposal, it also requires four votes to defeat a proposal. Otherwise, less than a majority of the Board would be able to control the determination of the Board's policies. As a result, a 3-3 vote does not finally resolve a proposal's fate.

Official Code of Georgia Annotated § 36-66-4(c) provides that:

If the zoning decision of a local government is for the rezoning of property and the amendment to the zoning ordinance to accomplish the rezoning is defeated by the local government, then the same property may not again be considered for rezoning until the expiration of at least six months immediately following the defeat of the rezoning by the local government.

Because three members of the Board alone do not have the power to act on a proposal, a 3-3 vote taken on a zoning proposal does not constitute a defeat within the meaning of Section 36-66-4(c). Therefore, the zoning proposal may be voted on again within six months.

Prepared by:

CHRISTOPHER A. MCGRAW
Assistant Attorney General