Gwinnett man sues to stop Mulberry cityhood referendum

Lawsuit says local law seeking the vote is unconstitutional.

A man who lives in the boundaries of the proposed city of Mulberry in northeastern Gwinnett County sued the county’s elections board and the elections supervisor late Friday, seeking to stop the cityhood referendum in the May primary.

Early voting began Monday, and Election Day is May 21.

The lawsuit, filed in Gwinnett County Superior Court, argues a local law that sent the Mulberry charter to voter referendum is unconstitutional.

The charter states that Mulberry can’t collect a municipal property tax unless voters approve it in a referendum and spells out which services the city will provide: zoning, code enforcement and storm water management.

Those things infringe on the home rule powers that the Georgia Constitution grants cities, said Allen Lightcap, the attorney for litigant Stephen Hughes.

“Unfortunately, we have a case where there are serious questions of constitutionality over the main facet of the city that the proponents have been touting to the voters,” Lightcap said.

Lightcap cited a 1981 Georgia Supreme Court ruling, Peacock v. Georgia Municipal Association, in saying the Legislature can only regulate cities’ authorities to tax and choose services through general law that applies to all cities, not local law that singles out one area. The law that proposed the Mulberry charter, SB 333, was a local law introduced by state Sen. Clint Dixon, R-Buford.

Lightcap is also challenging the creation of the city of Mableton in Cobb County on different grounds.

Dixon and state Rep. Chuck Efstration, who would live in the new city, are leading the campaign for it. They say the city would grant its 41,000 residents more local control over zoning amid backlash to a proposal for hundreds of apartments in the area. They have pointed to Peachtree Corners, the only more populous city in Gwinnett, as a model because Peachtree Corners does not levy a city property tax.

Hughes, 70, a retired safety director for a road building company, said he attended the legislators’ town hall meeting last week about the proposed city and heard the comparison to Peachtree Corners.

But a quick Google search found a 2018 article in The Atlanta Journal-Constitution about that city’s charter rewrite when similar questionable language was flagged.

The article quoted a resident who said she felt “bamboozled” and “cheated.”

“I certainly don’t want to feel that way and I don’t want my neighbors and my friends living in the area to feel that way,” Hughes said. “I don’t want people to vote yes to the thing and not have the information. When I saw that it was unconstitutional, I wanted to challenge it.”

Citizens for Mulberry, a pro-city special interest committee, said in a statement that developers were behind the lawsuit.

“No court in Georgia has ever declared this city charter structure as unconstitutional and we expect this lawsuit will fail,” the group said in a statement posted to social media.

Gwinnett County over the weekend released a study from Valdosta State University that projected the county would lose almost $8.2 million in revenues to the new city, but save about $1.9 million in stormwater expenses, for a net loss of more than $6 million. However, the study noted Mulberry officials would have to negotiate with Gwinnett County for services the city will not provide, impacting revenues and expenses in other ways.

Mulberry would cover 26 square miles in the northeastern corner of Gwinnett, stopping at the county line and the city of Braselton.

The western and southern borders match those of Efstration’s district.

Its residents would have a median household income of about $121,000, wealthier than any other Gwinnett city or the county as a whole.

Its population would be majority white in a county that is 36% white.

There is no multifamily housing in the proposed boundaries.

COURTESY GEORGIA SENATE A referendum for a new city of Mulberry, which would be Gwinnett County’s secondmost populous city with about 41,000 residents, faces a legal challenge that would stop the move before the primary election May 21.