Let’s forget about the controversy surrounding SB 320 for the moment and look at the bill itself. It applies to Title 8, Chapter 2, Article 1, Part 1 that deals with water concerns and has nothing to do with “building design elements” or zoning.
The bill reflects a power struggle between the developers of private government HOAs and constitutional government that’s occurring in many states besides Georgia. There is the Georgia Constitution and Code (Title 36, Chapter 35, HOME RULE POWERS) that grants municipal powers with certain restrictions. The Georgia Home Rule code grants restricted freedoms and powers to local government but holds them accountable under the state constitution and laws. This is not so with HOAs that go by and large unregulated. The bill makes them more so!
“The Georgia Constitution specifically provides for “home rule” for counties and municipalities in Georgia. While county home rule is constitutionally prescribed, cities may be granted the same right by the state legislature. In both cases the county or city is authorized to adopt “clearly reasonable ordinances, resolutions, or regulations . . . for which no provision has been made by general law and which is not inconsistent with” the Constitution of Georgia.” (“Home Rule and Ordinances,” New Georgia Encyclopedia).
SB 302 supports, in my view, easier HOA approvals by the municipality planning board. Code section 8-2-5 adds (c)(2), the bill does not “Affect the validity or enforceability of private covenants or other contractual agreements among property owners relating to building design elements.” The definition of zoning (Section 2 of the bill) is reworked in Code section 36-66-3. The prohibition of the municipality to regulate “building elements” (Section 1 of the bill) is necessary to allow developer a full play as presented by Section 2.
A reading of Section 2 of the bill allows the perception that it is an attempt to grant HOA developers and their created subdivisions a host of building features and elements, which they can take before the municipality to get rubber stamped. Planning board approvals are basically granted unless there is citizen opposition, or the subdivision plan violates some aspect of the law.
Guess what? SB 302 puts the law on the developer’s side!
HOA Constitutional Government 