Cobb cityhood: Legislative attorneys cast doubt on legality of ‘city lite’ charters

12/14/2020 —  Marietta, Georgia — An official Cobb County absentee ballot drop box is displayed outside of the Cobb County Elections and Voter Registration Office in Marietta, Monday, December 14, 2020.  (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

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12/14/2020 — Marietta, Georgia — An official Cobb County absentee ballot drop box is displayed outside of the Cobb County Elections and Voter Registration Office in Marietta, Monday, December 14, 2020. (Alyssa Pointer / Alyssa.Pointer@ajc.com)

Credit: Alyssa Pointer / Alyssa.Pointer@ajc.com

Cobb County cityhood movements used charter limitations to sway voters anyway

To appeal to conservative voters who don’t want the higher taxes associated with city living, the Republican state lawmakers behind three Cobb County cityhood movements wrote some guardrails into the cities’ charters.

The Lost Mountain charter says a public referendum is needed to issue debt. The East Cobb charter limits the city property tax rate to no more than 1 mill. Both charters, and that of Vinings, require the cities to provide some services, but not others — a key selling point for voters skeptical of government.

But according to the Georgia Legislature’s own attorneys, the charters can’t legally do any of those things.

Under the state constitution, there’s no such thing as a “city lite” that has limited powers, the attorneys testified before the cityhood legislation was passed.

“The idea of a ‘city lite’ is not a legal concept, it’s more of a theory, a marketing idea for the people supporting these cities to say ‘well, we’re only going to provide these certain services,’ ” Stuart Morelli, an attorney for the Office of Legislative Counsel told lawmakers in an October 2021 hearing on cityhood.

“That’s going to be a policy call ... it’s not going to be a legal restriction going forward for a future government.”

That mirrors the conclusion reached by a 2015 legislative study committee, top experts on cityhood and a former chief justice of the Georgia Supreme Court: So-called “city lites” are unconstitutional.

However — absent a court ruling giving these opinions legal weight — lawmakers haven’t been deterred from sending “city lite”-style charters to voters. Nor have cityhood proponents shied away from making promises to voters that critics say are legally dubious.

To be clear, cities can and often do offer limited services. Under Georgia law, they can offer as few as three public services and still qualify as a municipality.

The question is whether the Legislature, through a city’s charter, can put roadblocks in place that would make it harder for local officials to offer more services, raise taxes or issue debt.

A lawsuit pending in Cobb Superior Court contends that it can’t. But that suit, brought by cityhood opponents, won’t be heard until after voters go to the ballot on May 24. As a result, voters have been left to weigh for themselves whether the charters they’re voting on will actually do what they say.

Bill Riley, an attorney for the cityhood movements, told The Atlanta Journal-Constitution that the charters don’t limit the cities’ future powers. They simply provide the initial direction of how the city should be set up, he said.

“It’s not misleading at all,” Riley said. “You’re telling voters exactly how you plan for this to run. And when they go and they elect their officials, they can elect officials who promise to continue that or promise that they’re going to do something else.”

But critics of “city lites” say that’s not the message Cobb County voters hear on the campaign trail, or when they read the city charters.

“We believe it’s strongly misleading to those who get to vote for that new city,” Todd Edwards, the deputy legislative director for the Association County Commissioners of Georgia, told lawmakers at the October hearing.

‘Slipping it by the voters’

In 2015, a state Senate study committee on cityhood solicited three legal opinions on a “city lite” charter that restricts city services.

All three came to the same conclusion: “It violates the Georgia constitution,” wrote Norman Fletcher, a former chief justice of the Georgia Supreme Court.

Riley, the attorney for cityhood sponsor state Rep. Ginny Ehrhart (R-Powder Springs), agreed that the three proposed cities can’t have fewer powers than other cities under the state constitution.

The Vinings charter says it point blank: “This city shall have all the powers possible for a city to have under the ... constitution.”

All three charters also have provisions that limit the cities from providing certain services. Lost Mountain and East Cobb can only add services through a referendum, while the Vinings charter provides no mechanism to do so at all.

The 2015 opinions say these limitations aren’t constitutional. But, Fletcher added, that doesn’t mean that cities with such charters can’t be formed — it’s just that the restrictions might not be enforceable.

Instead, Fletcher suggested, the “city lite” provisions in places like the city of Tucker, which incorporated in 2016, would probably be removed from their charters if tested in court.

Cityhood supporters in Cobb County, meanwhile, have leaned heavily on the contested charter provisions in their sales pitches to voters.

The East Cobb cityhood website insists taxes won’t go up, because the charter requires a referendum to raise property taxes above 1 mill. The Vinings cityhood campaign says that they would “keep city government small” because additional city services would be “subject to state legislative approval.” Ehrhart, in a hearing, said Lost Mountain would have “a series of guardrails” that makes it “a little bit more difficult to grow.”

“It is so clearly unconstitutional and they are slipping it by the voters,” Allen Lightcap, the attorney challenging the city charters, told the AJC.

‘We were assured this would work’

Five years after it incorporated as a “city lite,” Peachtree Corners hired the University of Georgia’s Carl Vinson Institute of Government to review its city charter. The report caused an uproar.

The “city lite” provisions were unconstitutional, the review found. And, under UGA’s guidance, city leaders rewrote the charter to remove the disputed limits on city powers.

Some residents said they felt “bamboozled,” the AJC reported. Peachtree Corners Mayor Mike Mason, who was a top advocate for cityhood, said he had no idea the charter had problems.

“No one ever told me, or anyone with the ‘Yes Campaign,’ that what we were proposing had an unconstitutional element,” Mason wrote in a 2018 letter to residents. “We were assured this innovative concept would work.”

Peachtree Corners was incorporated in 2012, three years before the legislature studied the legal issues surrounding a “city lite.” Today’s cityhood movements can’t say the same.

“I’m surprised that it’s even still feasible for this to happen,” Brian Johnson, the city manager for Peachtree Corners, told the AJC. He said his city worked “intimately” with Legislative Counsel to address the constitutionality questions when they surfaced.

State Rep. Teri Anulewicz (D-Smyrna), who opposes the three cityhood efforts, says Legislative Counsel is not at fault for any problems with the charters. Their role is to draft bills and provide advice, she said. Lawmakers are free to ignore it.

“They are very good lawyers that are often asked to write really bad bills,” Anulewicz said.

Riley, the attorney for the cityhood movements, says that under home rule, future city leaders can amend their charters the same way Peachtree Corners did. He said the provisions that limit city services are no different from the line in every charter that gives the city a name.

Lawmakers “are setting it up,” Riley said. “But if you don’t like the name, even though (lawmakers) told you it was in perpetuity? You can change it.”


“City lite” provisions

The Georgia Constitution gives all cities 14 supplemental powers to provide certain services, such as public safety, parks and water and sewer utilities. Legislative attorneys say the General Assembly is prohibited from regulating those powers except through general legislation, which would apply to all cities. As a result, a number of legal experts argue that “city lite” charters that try to limit the powers of proposed municipalities in Georgia through local law may be unconstitutional.

Here are some of the disputed “city lite” provisions found in three proposed city charters in Cobb County:

  • The Lost Mountain charter requires city leaders to call a public referendum to issue debt.
  • The East Cobb charter limits the city property tax rate to a maximum of 1 mill.
  • The Lost Mountain, East Cobb and Vinings city charters require city leaders to provide some services — such as planning and zoning and parks and recreation — but not others. The charters direct the cities to acquire other services through contracts with Cobb County or other public or private entities.
  • The Lost Mountain and East Cobb charters require city leaders to hold a referendum in order to add services, while the Vinings charter does not provide a mechanism for adding services.