ATLANTA – The Georgia Supreme Court heard oral arguments Wednesday in cases that could decide in the near term whether large waterfront houses can be built on a sleepy island while in the long term reverberating far from the coast.
The dispute is over the preservation of the Gullah-Geechee way of life lived in small bungalows on Sapelo Island, where officials in McIntosh County have voted to allow the construction of larger houses.
But it’s also about whether Georgians everywhere can overrule their local governments on what is often a hotly contested topic: zoning.
The justices heard arguments in three cases Wednesday, but two are ancillary, concerning the local probate court judge who agreed to let voters hold a referendum to potentially overturn the county zoning decision.
The core case, Bailey et al. v. McInstosh County, asks whether the Georgia Constitution grants counties exclusive authority over zoning and, thus, immunity from referendums.
For the residents of Sapelo Island, it boils down to whether they can keep a longstanding zoning ordinance that restricts homes to a maximum of 1,400 square feet. They want to maintain a local culture that stretches back to the period when slavery ended for ancestors who then became small landowners and built modest houses.
The McIntosh County Commission voted to eliminate that size limit. Sapelo residents responded by securing approval from the probate court judge for a referendum on whether to restore the restriction. A superior court judge agreed to a county petition to halt the referendum but also paused enforcement of the zoning law pending the outcome of this appeal to the high court.
The state Supreme Court opened the door to challenging local government decisions by referendum two years ago by deciding that voters in Camden County could use one to prevent the purchase of land for a spaceport. The facility would have lobbed commercial rockets over the Cumberland Island National Seashore, prompting concerns about the health of the coastal marsh and about the quality of life for nearby residents.
In the McIntosh County case, the justices are tasked with deciding whether their authorization of that Camden County referendum also applies to zoning decisions.
To answer that question, they’ll have to interpret ambiguity in the state constitution.
“The referendum power applies to zoning ordinances because all potentially relevant legislative power for counties to pass ordinances, resolutions, and regulations emanates from the home rule section of the constitution,” said Philip M. Thompson, the attorney for the referendum proponents.
But Ken E. Jarrard, the attorney arguing for the county, said the state constitution grants counties special power over zoning that is separate from the constitutional basis for other local authority.
“The power of zoning and the home rule power are absolutely different, and there’s a reason that they are different,” he said. “It’s on purpose, it’s borne out in the evolution of the constitution.”
The paragraph of the constitution that is in question:
“The governing authority of each county and of each municipality may adopt plans and may exercise the power of zoning. This authorization shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power.”
Does that mean the state’s authority to intervene in local zoning matters is limited to procedure? And what is meant by home rule anyway?
“Generally speaking, anyone who uses the phrase ‘home rule’ generally isn’t entirely sure what they mean by that,” Chief Justice Nels S.D. Peterson quipped midway through Thompson’s presentation, eliciting guffaws in the courtroom.
Thompson, who’d used the term at least a dozen times by then, responded in kind, drawing a laugh from Peterson:
“Counsel at the podium included your honor.”
The high court did not make an immediate decision in the case. Rulings typically come one to five months after oral arguments.