2016 Legislative Session

When is a City Not a City?

When the city is Peachtree Corners or Tucker, that’s when. At least according to Jeff Lanier, the Deputy Legislative Counsel for the Georgia Legislature. Under Mr. Lanier’s interpretation of the Georgia Constitution, the “City Lite” concept of creating municipalities that are categorically stripped of certain powers given to all other municipalities is prohibited. Peachtree Corners was chartered under this principle back in 2011 and Tucker is currently in transition mode having been approved just last year. The idea is to give more localized control to citizens through the creation of smaller units of government while also keeping taxes in check.

So the cities are declared null and void, right? Not so fast. Mr. Lanier’s opinion was among a trio of opinions authored by himself, Ken Jarrard, and Norman S. Fletcher given to the Georgia Senate study committee on annexation, de-annexation, and incorporation.

tucker, ga

Downtown Tucker via DiscoverDekalb

 

The goal of the committee was to analyze current Georgia policy as well as the policies of other states in order to come up with a more efficient and less-politicized way of creating new Georgia cities. The push by communities to create new and separate governments over the past several years has revealed many weaknesses in the process of creating new cities and the resulting structure of such cities.

The legality of the “city lite” concept is of much importance since we already have one in existence, have one in transition, and have another proposed (the City of Sharon Springs in Forsyth County). As communities continue to clamor for separate governments while simultaneously asking for reduced taxes the idea of cities with limited powers will likely remain popular.

The Georgia Constitution, under Article IX, Section II, Paragraph 3(a) gives every chartered municipality basic operating powers and then allows them to exercise certain supplementary powers, such as police and fire protection, public housing, public transportation, and street and road construction. Article IX, Section II, Paragraph 3(c) of the Constitution allows the Georgia Assembly to regulate, restrict, or limit these powers through general laws. The Assembly, however, cannot withdraw any of the these powers.

So the “city lite” concept of creating municipalities with powers specifically withdrawn appears to be in clear conflict with the Georgia Constitution. Any restriction, limitation, or regulation of these powers would have to come via a general law; that is, a law that applies uniformly to all municipalities. A municipal charter is not a general law, but a local law. See City of Calhoun v. North Georgia Electric Membership Corporation, 233 Ga. 759 (1975. The government of the proposed City of Sharon Springs would only have the ability to exercise land use and zoning controls, code adoption and enforcement, and solid waste management services. The charters of Peachtree Corners and Tucker have similar restrictions.

The other point addressed by Mr. Lanier and others concerned the ability for the General Assembly to allow municipalities to exercise basic and supplementary rights through referendum. Proponents of this argue, as Mr. Lanier summarized, that requiring a referendum prior to exercising a power is not a limitation or restriction that would conflict with the Constitution, but merely a procedural device. All three of the legal opinions given to the committee contained opposite conclusions.

peachtree cornersIn the end, Mr. Lanier, Mr. Fletcher, and Mr. Jarrard believe the “city lite” concept is in direct conflict with the Supplementary Powers Clause of the Georgia Constitution. Both the creation of a municipal charter that directly withdraws certain powers and the creation of a municipal charter that does not specifically withdraw powers, but requires a referendum to exercise those power are in direct conflict with the Constitution. Cities chartered under this concept are not true Georgia cities since they are not operating in the manner prescribed by the Constitution.

The good news for Peachtree Corners and Tucker is that should a court agree with the opinions presented to the committee, it is Mr. Lanier’s opinion that only the unconstitutional aspects of each charter would likely be eliminated as opposed to the entire charter; meaning the cities would gain all the rights given to municipalities under the Constitution.

In the end the committee recommends abandoning the “city lite” concept and possibly developing a Township/Village model that would allow the creation of jurisdictions that can only control land use and zoning. The full report, which also addresses annexation and de-annexation can be found here.

The 2016 Legislation session is set to begin next week and we’ll be providing weekly updates on interesting and important land use, development, and environmental legislation, so please check in!

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