A map of the city of Tucker, approved by voters on Nov. 3

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.

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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.

“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.

Other recommendations from the report:

– Codify feasibility studies for any new cities and require the study to include the impact on existing cities, county government and government entities including school districts

– Further study of a township or village concept

– Codify the House Governmental Affairs and House Intragovernmental Coordination Committees rule that requires all municipal incorporation legislation be introduced during the first year of a biennium so it can be reviewed properly over a two-year period

– Codify a referendum requirement

– Directly notify every affected local government whenever local legislation is proposed

– Clarify the annexation arbitration process

– Create and adopt a new Service Delivery Agreement before the end of the transitional period
Further study of the current process of transfer and compensation of property due to annexations and incorporations to establish a more uniform and equitable method

Here is the full report released by the committee:

2015AnnexationStudyCommitteeFINAL

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