Voters in northeastern Gwinnett County weeks ago approved the creation of the new city of Mulberry, but the legal battle concerning the city’s charter is not over.
Stephen Hughes, a retiree who lives in the new city, recently withdrew his initial lawsuit seeking to strike the incorporation question from the May 21 ballot and filed two new lawsuits in its place. Hughes sued Gwinnett elections officials to stop Mulberry’s city council elections scheduled for November and filed a separate complaint against the county itself, seeking a ruling that state legislators crafted an illegal charter for Mulberry and a prohibition against participating in the new city’s transition process.
“We seek, first, declaratory relief to declare SB 333 unconstitutional and to strike down the city of Mulberry,” Hughes’ attorney, Allen Lightcap, told The Atlanta Journal-Constitution.
According to Georgia’s sovereign immunity law, anyone seeking declaratory relief must sue only the state or a local unit of government, such as a county or city.
Mulberry is scheduled to become a city on Jan. 1, when the five-member elected council is sworn in. The council will choose a mayor from among them.
Estimates say Mulberry will become Gwinnett’s second most populous city at 41,000 residents, including those in the affluent Hamilton Mill subdivision and areas around Little Mulberry Park. Encompassing 26 square miles, it will be Gwinnett’s largest city by land area.
Mulberry’s charter prohibits the city from imposing its own property tax, though county and school district property taxes are unaffected. The charter further states that it can only be changed through a voter referendum, although state law allows city councils to amend charters without sending questions to the ballot.
Hughes’ lawsuits argue those provisions are unconstitutional because they violate cities’ home rule powers under Georgia law.
State House Majority Leader Chuck Efstration, who lives in the new city, and Sen. Clint Dixon proposed the charter in Senate Bill 333, which Gov. Brian Kemp in February signed into law, forwarding it to voters to ratify. The lawsuits say the Legislature can’t set taxation laws that apply to some cities but not others.
Efstration proposed the new city last fall amid backlash to a developer’s application to build hundreds of apartments in the area. There is no multifamily housing in Mulberry’s borders.
According to the charter, the new city will provide planning and zoning, code enforcement and stormwater services. The city council will have to negotiate with Gwinnett County, and potentially other local governments or private entities, to provide other services, including police and parks.
Michael Coker, president of Citizens for Mulberry Inc., a special interest committee that campaigned in favor of the new city, said Kemp is expected to appoint a transition team, typically five or six experts who help set up new cities. There will be a two-year transition period, during which Gwinnett County keeps providing all services until the Mulberry council notifies the county it’s ready to take over, according to the charter.
Mulberry’s incorporation will trigger a massive renegotiation of service agreements between Gwinnett County, the new city and the 16 other cities partially or wholly in Gwinnett.
Citizens for Mulberry Inc. will intervene in Hughes’ lawsuits, said Coker, who will also intervene as an individual. A Mulberry resident and attorney, Coker said he is exploring a run for city council.
Hughes is a former safety director for a road building company. Pro-city leaders allege his lawsuit is being funded by developers. Lightcap has declined to say where the money is coming from. Hughes’ lawsuits say he is concerned the new city could impose a property tax and forbid him from keeping bees.
Efstration said Hughes and his supporters aren’t truly concerned about taxes, as they are attacking the provision of the charter that prevents taxation.
“Their objectives are to thwart the will of the voters,” he said.
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