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Senate Committee Declares Tucker Unconstitutional

Posted by Dan Whisenhunt on
  December 16, 2015

The new city of Tucker, which was overwhelmingly approved by voters on Nov. 3, has an unconstitutional provision in its charter, a new report says.

Additionally the report finds that while charters for new cities may provide a cap on tax rates, there’s nothing that requires cities to seek voter approval before raising taxes.

At a Tucker 2015 meeting held in October, just before the Nov. 3
city referendum was held, organizers were still telling residents
about the benefits of a "limited government," as Anne Lerner is
seen here doing, while Michele Penkava (front row, far right) looks
on.  Both women are now running for city council seats in
District 3, though not against one another.  Each of the three
districts will have two city council members.  Elections take place
the first week of March 2016. 
The Senate Annexation, Deannexation and Incorporation Study Committee met this summer to review how the state handles creating new cities and how existing cities annex new territory. The committee’s report was released on Wednesday, Dec. 16.

Tucker was approved as a “city lite” concept, meaning it is providing a limited number of services compared with a traditional city. In Tucker’s case, the city will provide Planning and Zoning, Code Enforcement, and Parks and Recreation services. The city lite concept isn’t unique to Tucker. It is currently being used by the city of Peachtree Corners.

Under the city lite model, a city can only offer additional services if voters approve it.
But the committee found that the concept is inherently unconstitutional.  (Or, it is their belief that it would most likely be found to be unconstitutional in a court of law, if ever such a lawsuit is brought forward.

“Under the Georgia constitution, a city possesses certain supplementary powers regarding the provision of local government services under the Supplementary Powers Clause,” the report says. “The Clause provides that these powers may be regulated, restricted or limited by the General Assembly only by ‘general law,’ but it may not withdraw any such powers.”

The report adds later, “requiring voter approval before a city may provide a specific service is a limitation on the powers of the city by a local law, which would run afoul of the Supremacy Powers Clause.” Only the General Assembly can regulate, restrict or limit the powers of a city, the report said.

The report recommends prohibiting the creation of such cities in the future and anticipates a court may rule the idea unconstitutional at some point. If that happens, it would strike the limitation of powers from the city’s charter, the report says.

The report also finds that while new cities promise that taxes won’t go up without voter approval, in reality no such approval is required.

According to the report, provisions in city charters limiting the city’s tax rate, a millage cap, are constitutional but there’s nothing that requires the city to follow them either.

The report says, “limitations of municipal home rule … do not preclude a city council from altering or even removing a millage cap through home rule powers.” The committee is recommending that language be added to city charters clarifying that cities can increase taxes without voter approval.

Read more on Decaturish.

Save Tucker! comments from Facebook:  (
when asked what does this mean:

The Tucker 2015 group only spoke about three services (as did Lavista Hills most of the time and under the Lakeside name as well) ... they assumed all other services would / could remain with the county for exactly the same amount we are currently paying. That's not the case at all. All the city services listed in the state constitution will be transferred to city authority. The city council and mayor will have to figure out whether to take on the service or contract out for it. Even if they contract out the services right back to the county, there are no guarantees that the county will charge the city the same amount.  
Rep. Tom Taylor even warned about this at the boundary committee hearing. He said that the county was charging Dunwoody $500,000 per month to provide police services and they had to scramble to come up with that money because the feasibility report did not take that expense into account. Terry Cole, from Tucker 2015, spoke after him and said something to the effect of "That's great because that means we can start providing police services right away because we have that much in our surplus already!" What she wasn't getting was that: A) Tucker's land mass is much bigger than Dunwoody and will most likely cost more to police and B) the "surplus" of only $800,000 would only cover police service for one month. Then what was she planning to do?  
Obviously, Tucker, like all cities, will have to start out by borrowing significant amounts of money to get its operations off the ground. And who will be responsible for repaying those loans? Taxpayers, mostly residential. Can we count on revenue from commercial property or the high dollar revenue potential of the land inside the perimeter that we were "given" in the boundary negotiations? (Most of which was already called Tucker and in our own Tucker zip code)  
Well, sadly, no because the Tucker Northlake CID plans already have most of that property set aside for a massive apartment complex. And most of the big businesses there and even some small ones have already closed their doors. We received the only part of Northlake actually deemed a "slum zone" by the county if we are recalling that correctly.  
Tucker is actually losing businesses left and right because the low tax, unincorporated status that made us so appealing is now going away or being offset by tax incentives given out by other areas... like Dunwoody and Sandy Springs, ironically the two areas that Sen. Millar and Rep. Taylor represent and look out for above all else.

and why does it matter:

It matters because a lot of people voted for Tucker based on the concept of a government with limited powers and little to no tax increase. It is now coming to light that the state constitution gives all powers to all cities upon their inception. If you don't care, you will when you see what it will cost to run a "real" city that has full powers, which the legislators likely knew was what they were approving all along. 
Sen. Millar and Rep. Oliver, both of whom sponsored city bills in the area, but neither of whom are accountable to Tucker residents, were both on the committee that has now deemed a city-lite concept to be unconstitutional, in their opinions. None of it will actually be proven true until it plays out in a courtroom. And who has the money to fight that battle? 

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