21CV0462. v. ) ) MCDUFFIE COUNTY, GEORGIA, ) ) Defendant. ) ) ) ) ) IN THE SUPERIOR COURT OF MCDUFFIE COUNTY STATE OF GEORGIA

IN THE SUPERIOR COURT OF MCDUFFIE COUNTY STATE OF GEORGIA

PAUL W. MCCORKLE,· ⁾

)

First Plaintiff, ⁾

)

JAMES S. MCCORKLE, ⁾

) CIVIL ACTION FILE Second Plaintiff, ⁾ NO.:

)

ROLAND LEON HICKMAN, ⁾

)

Third Plaintiff, ⁾

)

WILLIAM H. FLUKER, ⁾

) Fourth Plaintiff, ⁾ )

TEDDY LEWIS REESE, ⁾

)

Fifth Plaintiff, ⁾

v. ⁾

) MCDUFFIE COUNTY, GEORGIA, ⁾ )

Defendant. )

) ) ) )

COMPLAINT

COME NOW Plaintiffs PAUL W. MCCORKLE, JAMES S. MCCORKLE, ROLAND LEON HICKMAN, WILLIAM H. FLUKER, and TEDDY LEWIS REESE (collectively "Plaintiffs") and allege the following against MCDUFFIE COUNTY, GEORGIA ("Defendant" or "County"):

Page 1 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

CLERK OF SUPERIOR COURT MCDUFFIE COUNTY, GEORGIA

21CV0462

OCT 12, 2021 03:24 PM

PARTIES AND JURISDICTION (1)

PAUL W. MCCORKLE 1s a legal resident of MCDUFFIE COUNTY, GEORGIA and owns numerous parcels of real property located in MCDUFFIE COUNTY, GEORGIA.

(2)

JAMES S. MCCORKLE is a legal resident of MCDUFFIE COUNTY, GEORGIA and owns numerous parcels of real property located in MCDUFFIE COUNTY, GEORGIA.

ROLAND LEON HICKMAN is a legal resident of MCDUFFIE COUNTY, GEORGIA and owns numerous parcels of real property located in MCDUFFIE COUNTY, GEORGIA.

WILLIAM H. FLUKER is a legal resident of MCDUFFIE COUNTY, GEORGIA and owns numerous parcels of· real property located in MCDUFFIE COUNTY, GEORGIA.

'

(s)

TEDDY LEWIS REESE is a legal resident of MCDUFFIE COUNTY, GEORGIA and owns numerous parcels of real property located in MCDUFFIE COUNTY, GEORGIA.

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Paul W. McCorkle, et. al. v. McDuffie County, Georgia

(6)

Defendant is a county formed pursuant and subject to the Constitution and laws of the State of Georgia. Defendant is subject to the jurisdiction and venue of this Court.

This Court has jurisdiction over the parties and the subject matter of this action.

(8) Venue is proper before this Court.

BACKGROUND (9)

MCDUFFIE COUNTY, GEORGIA is authorized by the Georgia Constitution to

provide fire protection service.

(10)

The Board of Commissioners of McDuffie County, Georgia

.

protection utility by amending Section 78 of the McDuffie County Code by adding Article VII and Chapter 78.

(11)

The Board of Commissioners of McDuffie County, Georgia adopted the FIRE PROTECTION UTILITY ORDINANCE (hereinafter "Ordinance") on September 1, 2021

during a regularly scheduled Commission meeting. The Ordinance is attached hereto marked as Exhibit "A".

Page 3 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

(12)

The Board of Commissioners of McDuffie County, Georgia held two "public hearings" in connection with the Ordinance. The first "public hearing" took place on August 24, 2021 before a special called meeting.

The second "public hearing" took place on September 1, 2021 before a regularly scheduled Commission meeting.

During the first "public hearing," a single citizen spoke up asking why the hearing had not been advertised in the newspaper. The County Clerk advised that customary notice had been sent to the newspaper and radio.

No residents spoke at the second "public hearing" according to the approved minutes.

(16)

Neither the August 24, 2021 "public hearing" nor the September 1, 2021 "public hearing" were properly advertised in the county's legal organ pursuant to Georgia law.

Due to the lack of proper public notice, few McDuffie County residents had prior knowledge of the consideration of the Ordinance before its adoption.

(18)

The Ordinance indicates that separate classes of customers will be created based upon differences reflected in the following: building structure and contents; fire risk; fire

Page 4 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

protection services provided by the County; and the respective demands that the customers' properties place on the fire service. Sec. 78-205 (a).

The Ordinance then creates three (3) separate classes of property consisting of (1)

single-family residential (SFR); (2) non-single family residential (NSFR); and (3) undeveloped land. Sec. 78-205 (a).

. (20)

The Ordinance distinguishes between single family residential and single-family residential customers; non-single family residential and non-single family residential customers; and undeveloped property and undeveloped property customers. Sec 78-202.

(21)

The Ordinance adds the word customer on the end of each class when describing a utility customer who can·be a landowner, land tenant, or resident. The word customer is used to more broadly encompass those individuals who may possess but not own

certain pieces of real property. Sec. 78-202.

(22)

The Ordinance indicates that fees ·shall be determined in a fair, reasonable, and equitable manner. Sec. 78-206 (a) and Sec. 78-206 (b).

The Ordinance requires cost apportionment based on the demand the property places on the fire department and the fire protection services provided. Sec. 78-206 (a).

Page 5 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

The Ordinance requires the County to determine the customer class, land use, building square footage, parcel acreage, risk and other pertinent factors as may be needed for the fair, reasonable, and equitable allocation of the costs to deliver fire protection services. Sec. 78-206 €.

The Ordinance repeats again that the fire protection fee shall be reflective of the following three (3) important factors in the County's cost of providing fire protection services to individual properties, including (1) the acreage of each parcel of land; (2) the square footage of structures on each parcel; and (3) the assigned risk response factor. Sec.

78-206 (d).

· (26)

The Ordinance states that if applicable, the total fire protection fee for each property shall include two (2) charges; first a wildfire charge that shall be applied to all properties and shall be correlated to the cost to the fire department to respond to wildfires and second, a structure charge shall be applied to any properties upon which a structure is located. Sec. 78-206.

The Ordinance provides that high risk properties shall be subject to a risk rate modifier of 2.2 to be applied to the square footage of those buildings deemed to meet the unspecified high-risk criteria. Sec. 78-206 (f).

Page 6 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

(28)

The Ordinance holds the property or account holder as the responsible party for paying the fire charge. Sec. 78-209.

(29)

The Ordinance seems to envision a scenario where tenants of interest in real property, rather than owners will be subjected to the fee. However, there is no further

explanation for the manner in which that process would proceed. Sec. ^78-209.

On September 1, 2021, the Board of Commissioners of McDuffie County, Georgia adopted Resolution No. 21-08 (hereinafter "Resolution"). The Resolution is attached hereto marked as Exhibit "B".

The Resolution indicates that the County performed an analysis which properly assesses and defines the County's fire protection needs, goals, priorities as well as the funding strategy. See Resolution ^21-08.

The Resolution adopted the McDuffie County Fire Protection Service Fee Schedule (hereinafter "Schedule").

The Schedule places a cap at 75 acres of real property, per parcel.

The Schedule places a cap at 4,000 square feet for single-family residential customers.

Page 7 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

(35)

The Schedule places a cap at 100,000 square feet for non-single family residential customers.

A parcel of real property consisting of hundreds, or thousands of acres is charged the same rate as a parcel with 75 acres.

A large commercial warehouse, store, or residential apartment building consisting of more than a hundred thousand square feet is charged the same rate as a building with

100,000 square feet.

By the nature of the fee structure, small landowners are disproportionately subsidizing fire protection services throughout the county.

By nature of the fee structure, small to medium size commercial entities are disproportionately subsidizing fire protection services throughout the county.

(40)

By the nature of the fee structure, small single-family residential customers are disproportionately subsidizing fire protection services throughout the county.

The assessment of the mandatory so-called "fire fee" is in the nature of an illegal tax, rather than a reasonable fee based upon the expected cost to provide fire protection services to subject properties.

Page 8 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

McDuffie County placed the "fire fee" onto all real property tax bills throughout the county without regard to the specific relationship between the amount charged and the service provided.

The "fire fee" placed onto all real property tax bills throughout the county is not clearly described as a charge for a particular service provided.

At or around the same time the County enacted the "fire fee" they reduced the county millage rate to create the impression of cost-savings to county landowners.

CLAIMS FOR RELIEF COUNT ONE IMPROPER NOTICE

Plaintiffs incorporate and re-allege paragraphs 1-44 of this Complaint as if fully and expressly set forth herein.

The Ordinance and Resolution were adopted after two "public hearings."

Neither the August 24, 2021 "public hearing" nor the September 1, 2021 "public hearing" were properly advertised in the county's legal organ pursuant to Georgia law.

Page 9 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

The Ordinance and Resolution were adopted without proper notice to the citizens of McDuffie County, Georgia as required by Georgia law.

COUNTTWO

ILLEGAL TAXATION IN THE FORM OF FIRE PROTECTION FEES

Plaintiffs incorporate and re-allege paragraphs 1-48 of this Complaint as if fully and expressly set forth herein.

(50)

Defendant, in assessing the mandatory "fire fee" against Plaintiffs and similarly situated persons, has engaged in the assessment of illegal taxes, which, while claimed by

Defendant to be "service fees," are in fact, in part or in whole, in the nature of illegal taxes not authorized by the Georgia Constitution and/ or Georgia law.

Georgia Constitution Art. VII § I, Para. III provides in pertinent part: "All taxes shall be levied and collected under general laws and for public purposes only."

No general law of the Georgia General Assembly authorizes taxation based upon ownership of real propertY, on other than ad valorem basis.

Therefore, the illegal tax-like charges under the Ordinance and Resolution are illegal taxes in violation of the above-referenced constitutional provision.

Page 10 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

The distinction between a tax and a fee "is not one of names but of substance."

Richmond County Business Assn. v. Richmond County, 224 Ga. 854,856 (1), 165 S.E.2d.

(55)

The "fire fee" is mandatory.

(56)

The "fire fee" is a mechanism the County is using to raise general revenue for fire protection service.

The "fire fee" is not applied in a manner whereby the payment is based upon a particular property's contribution to the problem.

(58)

The "fire fee" is not calculated in a manner whereby a property owner is reasonably paying for services rendered or to be rendered.

The "fire fee" groups all parcel ofland 75 acres or more; 4,000 square feet of single- family residential space or more; and 100,000 square feet of non-single family residential space or more into one group without regard to the relationship of the property size to the services to be rendered.

Page 11 of 14

Paul W. Mccorkle, et. al. v. McDuffie County, Georgia

(60)

A large tract of timber land consisting of 75 acres, or more is charged at the same rate as 75 acres ofland or more used to raise livestock or plants without any consideration to the disproportionate costs in fighting fires on the different parcels.

(61)

Plaintiffs and/ or other similarly situated individuals who have paid illegal taxes are entitled to a refund of such payment pursuant to Georgia law.

COUNTTHREE

DECLARATORY AND INJUNCTIVE RELIEF (62)

Plaintiffs incorporate and re-allege paragraphs 1-61 of this Complaint as if fully and expressly set forth herein.

An actual controversy exists in this matter between Plaintiffs and Defendant with respect to the County's assessment of illegal taxes.

Plaintiffs are entitled to declaratory relief to declare the assessment of the so-called

"fire fee" to be illegal taxes.

Plaintiffs are further entitled to the corresponding injunctive relief to enjoin the County from the continued assessment and collection of illegal taxes.

Page 12 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

COUNTFOUR ATTORNEYS FEES

(66)

Plaintiffs incorporate and re-allege paragraphs 1-66 of this Complaint as if fully and expressly set forth herein .

Plaintiffs seek and are entitled to attorney's fees, costs of litigation, and court

.

costs pursuant to Georgia law.

(68)

Plaintiffs seek and are entitled to such other relief as this Court deems just, equitable, and proper.

WHEREFORE, Plaintiffs pray that the Court grant relief as follows:

(a) that process issue requiring Defendant to be and appear in Court to answer the allegations contained in Plaintiffs Complaint;

(b) That judgment be entered against Defendant an in favor of Plaintiffs in amounts serving to refund illegal taxes;

(c) That declaratory relief be entered against Defendant;

( d) That injunctive relief be entered against Defendant;

(e) That Plaintiffs be awarded their attorney's fees, costs oflitigation, and court costs pursuant to Georgia law; and

(f) For such other relief as is just, equitable, and proper.

Page 13 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

I 2.""h

Respectfully submitted this _ _ _ _ _ · day of

Ocl-o 6.v

Address:

Phone:

Facsimile:

Email:

561 Greene Street Second Floor Augusta, GA 30901

(706) 823-2001

B ~~ D ~ 4£

Attorney for Plaintiffs Georgia Bar No.: 378914

(706) 823-2007

brandondiallaw@gmail.com

Page 14 of 14

Paul W. McCorkle, et. al. v. McDuffie County, Georgia

STATE OF GEORGIA COUN1Y OF COLUMBIA

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VERIFICATION

I, PAUL W. MCCORKLE, Plaintiff in the above-styled action, after first being duly sworn, state on oath that the contents of the foregoing documents are true and correct to the best of my knowledge and belief.

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STATE OF GEORGIA COUNTY OF COLUMBIA

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VERIFICATION

I, JAMES S. MCCORKLE, Plaintiff in the above-styled action, after first being duly sworn, state on oath that the contents of the foregoing documents are true and correct to the best of my knowledge and belief.

Dated this

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STATE OF GEORGIA COUNTY OF COLUMBIA

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VERIFICATION

I, ROLAND LEON HICKMAN, Plaintiff in the above-styled action, after first being duly sworn, state on oath that the contents of the foregoing documents are true and correct to the best of my knowledge and belief.

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VERIFICATION

I, WILLIAM H. FLUKER, Plaintiff in the above-styled action, after first being duly sworn, state on oath that the contents of the foregoing documents are true and correct to the best of my knowledge and belief.

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WILLIAM H. FLUKER

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STATE OF GEORGIA COUN1Y OF COLUMBIA

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VERIFICATION

I, TEDDY LEWIS REESE, Plaintiff in the above-styled action, after first being duly sworn, state on oath that the contents of the foregoing documents are true and correct to the best of my knowledge and belief.

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TEDDY LE~ R.EESE

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this _ _l _ _ _ day of _ ~-...c..-=-=-...;::=-==___._ _ _ , 2021.

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