Gwinnett Co. man sues to block Mulberry from becoming full-fledged city

GWINNETT COUNTY, Ga. — A Gwinnett County man is taking efforts to stop Mulberry from incorporating as a fully-fledged city to court.

Stephen Hughes, a resident in the county, is suing on the grounds that the charter up for vote by Gwinnett residents violates state home rule powers granted by the Georgia Constitution.

Located north of Dacula and next to Braselton, Mulberry’s effort to fully incorporate was made official through the Georgia legislature, who voted to approve the cityhood effort in February.

Then, Gov. Brian Kemp signed the legislation into law, granting cityhood to Mulberry.

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As mentioned in comments by House Majority Leader Chuck Efstration in February before the bill was signed into law, the charter would create Mulberry as a city that could not collect taxes from its residents.

A feasibility study cited by members of the Georgia House of Representatives explained how they believe the city would be “financially viable without collecting any city property taxes.”

Now, Hughes’ lawsuit is arguing that the charter, which must be approved by a referendum of Gwinnett County voters, is unconstitutional.

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More specifically, the lawsuit says Senate Bill 333, which made Mulberry a city, should not be on the ballot because the proposed charter removes the ability for Mulberry to impose ad valorem taxes on residents, and it allegedly takes away the city’s ability to use home rule and supplementary powers for items such as planning, zoning, code enforcement and storm-water collection and disposal, among other powers.

“SB 333 seeks to create a city that cannot collect property ad valorem tax,” according to a release by Hughes’ attorney, Allen Lightcap of Mayer & Harper LLP. “This is strictly and explicitly prohibited according to binding precedent of the Supreme Court of Georgia in Peacock v. Georgia Municipal Association. The General Assembly can only regulate a city’s constitutional authority to tax through general law, not local law. SB 333 is plainly a local law, so its restrictions on taxation will be immediately struck down, if the voters approve the city.”

Additionally, Lightcap said in a statement that allowing the scheduled Mulberry vote on ballots for a May 21 referendum “would perpetuate a fraud on the public,” due to lack of certain collection and home rule powers.

The taxation portion is one of the points at the heart of Hughes’ lawsuit, according to a statement from Lightcap.

“Mr. Hughes filed this lawsuit because SB 333 is indisputably unconstitutional, and these defects go to the heart of the bill. What’s worse, the very features of the proposed City of Mulberry that are being touted to the voters are the same features that are unconstitutional,” Lightcap said in a statement.

The lack of taxation was one of the explicit purposes of the bill, according to its legislative supporters.

“I am thankful to both my Democrat and Republican colleagues who voted in favor of this legislation in today’s vote, which would create the City of Mulberry without implementing any city property taxes,” Efstration said in a February statement. “As a resident of the proposed city, I look forward to voting in favor of granting my neighbors local control over planning and zoning in the May 21st primary.”

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