A lawsuit filed this week in Cobb Superior Court seeks to remove the Vinings cityhood referendum from the May primary ballot, arguing that state lawmakers violated home rule under the Georgia Constitution when they drafted its proposed city charter.
If successful, the suit could have far-reaching implications, imperiling two other Cobb County cityhood movements whose proposed charters attempt to restrict their cities’ public services in a similar way.
The proposed Vinings charter, contained in House Bill 840, directs the new city to provide planning and zoning, code enforcement, and parks and recreation services, while contracting with Cobb County or private entities to obtain other public services, such as police and fire.
Under Georgia law, cities are allowed to provide as many public services as they want from a list of 14 “supplemental powers,” as long as they offer at least three. But the lawsuit argues that the legislature can’t tell a city which ones to provide. The lawsuit argues the legislation authorizing the referendum effectively does so through the proposed charter.
“The voters should not be forced to vote for or against a city whose charter is clearly unconstitutional,” says the lawsuit, brought by Joseph Young, a Cobb County resident who lives within the proposed Vinings city boundaries.
Attorneys with Georgia Legislative Counsel, which drafted the legislation, wrote in a statement that the premise of the lawsuit is wrong. ”The City of Vinings would have all of the powers and duties of any other city,” the statement said.
The case hinges on four paragraphs of the charter that lay out the city’s powers. Indeed, two of them say Vinings has all the powers of any other city under the state constitution. But the other two say the city government shall provide some services but not others.
Allen Lightcap, Young’s attorney, told the AJC it’s like the legislature saying, “we’re not regulating how Vinings can use its powers, we’re only telling Vinings how it can use its powers,” he said.
It’s not that the legislature can never limit city powers. It just can’t do so through a “local law,” like House Bill 840, that only affects a single city, the lawsuit argues. The state constitution says the legislature can only regulate a city’s 14 “supplemental powers” through what’s known as a “general law” that applies across the state.
The lawsuit cites a 1994 state attorney general opinion that said the legislature couldn’t amend the Gainesville city charter to regulate its sewer rates. However, the cases aren’t apples to apples. The 1994 legislation sought to limit an existing city’s powers, while the Vinings charter is for a proposed city that still has to be approved by voters.
“It’s hard to see this lawsuit as anything other than an attack on the democratic process,” the Vinings Exploratory Committee said in a statement to the AJC, noting that the bill passed with bipartisan support. “...We are confident the Court will uphold the law as constitutional and not interfere with the citizens of Vinings right to vote on the formation of the new city of Vinings.”
The committee said its charter was modeled after metro Atlanta cities like Sandy Springs, Dunwoody and South Fulton. However, an AJC review found that none of the three cities’ charters currently contain the disputed paragraphs specifying which services the cities have to provide.
The charters for the proposed Cobb cities of Lost Mountain and East Cobb have language saying the cities can only offer certain services if voters agree through a referendum, and Lightcap says he expects lawsuits challenging those charters to be filed as well. If so, they would likely be combined into one case, he said.
The proposed city charter for Mableton — a South Cobb cityhood movement set for the November ballot — does not have the disputed provisions.
The court could agree with the lawsuit’s arguments but still allow the election to proceed by ruling that some parts of the charter can’t be enforced.
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