Judge D. Jay Stewart heard oral arguments Tuesday in McIntosh County Superior Court on a motion to dismiss the complaint filed by Black residents of Sapelo Island over a controversial rezoning they fear will lead to higher taxes and ultimately force out the remaining members of the Gullah-Geechee community in Hogg Hummock.
Nine members of the community are named as plaintiffs in the suit, filed in October. They asked the court to undo zoning changes that more than double the size of homes on the island. The County Commission passed the rezoning in September in the same Darien courtroom where the hearing was held Tuesday.
McIntosh County and the five member McIntosh County Commissioners are named as defendants in the original complaint. The defendants filed a motion to dismiss in December.
Attorney Ken Jarrard, representing the defendants, argued the Sapelo plaintiffs erred when they named both the county and the county commissioners individually as defendants. A Georgia constitutional amendment voters passed in 2020 regarding the waiver of sovereign immunity allows only the state, county or municipality, not individuals, to be sued. Citing evolving case law, Jarrard argued the remedy for this error is dismissal of the case.
“McIntosh believes under the strength of the Georgia Constitution this case is subject to immediate, absolute, ironclad dismissal as a matter of law,” said Jarrard, of Cumming-based Jarrard & Davis, LLP.
Attorneys representing the plaintiffs filed a motion in December to amend their complaint to name only the county. Plaintiffs’ attorney Miriam Gutman of the Southern Poverty Law Center argued on Tuesday the case could be amended and that the county was interpreting the law too narrowly. She cited the Georgia Code on Civil Practice: “Amendment 9-11-15 says a party can amend as a matter of course and there would be no prejudice.”
Gutman requested that if Stewart dismisses the case he do so without prejudice so that it could be refiled.
Judge Stewart requested proposed orders from each side by March 1.
“The significance of the case is not lost on me,” he said. “I’ve been to Hogg Hummock; it’s one of the most beautiful places in the world.”
The record: Sapelo Island,Hog Hammock District: Coverage, detail, documents, recordings and other information around the rezoning efforts by McIntosh County.
Gutman said after the hearing that the county has accepted three to five applications for zoning permits on Sapelo since September and approved at least one despite the litigation.
“It’s our interpretation that considering a permit application is a legal proceeding, and so that should be stayed,” she said.
The nine plaintiffs in the case are: Georgette “Sharron” Grovner, Marvin “Kent” Grovner Sr., Lula B. Walker, Francine Bailey, Mary Bailey, Merden Hall, Florence Hall, Yvonne Grovner, and Ire Gene Grovner, Sr. Attorneys from Southern Poverty Law Center and Bondurant, Mixson & Elmore are representing them.
The five county commissioners named as defendants are: Kate Pontello Karwacki, David Stevens, Davis Poole, William E. Harrell, and Roger Lotson.
About 30 members and friends of the Hog Hummock community attended the hearing. Afterward, Susan Inman and Jazz Watts of One Hundred Miles noted that the effort to recall the zoning by petition is ongoing. That process requires 20% of registered voters in the county to sign a petition requesting a ballot measure on the issue. Watts and Inman said they are about 400 signatures short of the required 2,200 to move forward. There is no time limit on the signature collection.
“My father used to always tell me what St. Simons used to look like, and Hilton Head used to look like,” said Watts, who is Gullah-Geechee but doesn’t live permanently on Sapelo. “We see what happens, and it’s just like the writing’s on the wall. It’s just not necessary. You want to build that stuff? Go somewhere else. Must it be in a place that is so culturally significant, that’s listed on the Places in Peril, that’s on the National Register of Historic Places? Can we have one space that we can protect people from being pushed off?”