Superior Court Senior Judge Gary McCorvey heard arguments Friday on McIntosh County’s challenge to an ongoing referendum about zoning on Sapelo Island’s Hogg Hummock, the last intact Gullah Geechee community on the coast.
Representing the county, Cumming-based attorney Ken Jarrard argued zoning decisions are not subject to the petition-driven referendum process outlined in the “Home Rule” provision of the state constitution. The constitution refers to county “ordinances, resolutions, or regulations” as subject to recall or amendment by referendum, but doesn’t specifically address zoning.
“There’s no jurisdictional basis for … anybody to challenge — using the referendum process — a zoning enactment that was accomplished by a separate, a completely separate, constitutional position,” Jarrard said.
Attorneys for the probate judge and the citizens who set the referendum in motion argue that because counties have the power to enact zoning ordinances, zoning is fair game for referendums, too.
“(T)he referendum power absolutely applies to all ordinances, resolutions or regulations passed by the county, because the Constitution plainly applies that power to the only delegation of legislative power to counties,” said Savannah-based attorney Philip Thompson, who along with Dana Braun, is representing intervenors Barbara Bailey, Christopher Bailey, and Stanley Walker, the named petitioners who filed the document containing more than 1,800 valid signatures in support of the referendum.
Attorney Kellye Moore of Perry-based Walker, Hulbert, Gray & Moore, is representing McIntosh County Probate Judge Harold Webster, who gave the go-ahead in July for the special election and who the county named as the defendant.
Even as the attorneys presented their cases, about 20 voters cast their ballots a block away from the courthouse at the Board of Elections office. Early voting began Sept. 9 for the Oct. 1 referendum. More than 600 people had voted by the time the hearing began.
Hogg Hummock area is inhabited by descendants of enslaved West Africans and is the last Gullah Geechee community on a Georgia barrier island. Zoning approved in September 2023 allows bigger, taller houses, which residents fear will force out Sapelo descendants in favor of wealthy developers.
Judge McCorvey seemed at first to favor the county’s argument, saying to attorneys of the defendant and intervenors, “I’m telling you, you got a hard hill to climb to convince me that zoning is subject to this. In a zoning case, don’t people have the right to appeal? So why would they need a special election?”
Braun responded saying an appeal must be based on legal missteps. Not so with a referendum.
“This is a referendum to the public to say ‘we don’t like the county taking this action’,” he said. “So it doesn’t have to be a legal reason for the vote to say ‘reverse that decision.’ But to appeal a zoning decision before the Superior Court, there’s going to have to be a legal reason why there’s an abuse of discretion, due process or anything else.”
McIntosh’s path to a referendum mirrors that of Camden County’s in 2022. Camden citizens petitioned for a vote to weigh in on a spaceport project many considered a boondoggle. Like McIntosh, Camden targeted its probate judge to stop the process. Camden residents ultimately voted by a nearly 3-1 margin to reverse the county’s decision to buy land for the spaceport, and won a subsequent Georgia Supreme Court case.
Attorneys Moore, Braun and Thompson worked on the Camden case supporting the referendum. They argued the Sapelo case is similar.
Several points sparked particular interest from the 77-year-old judge who joked with the more than 50 people in attendance about his title of Senior Judge. “That means I’m old,” he said. (He clarified that senior status is afforded to a retired Superior Court Judge with at least 10 years of service.)
One point came as the hearing was wrapping up. Thompson introduced a letter the county had written to the probate judge in July to dissuade him from moving forward with the referendum.
“The county did try to interfere in the probate court process,” Thompson said. “They sent a letter directly to the judge. Despite having no standing to interfere in the process, they still sought to persuade his honor to not validate the petitions. Intervenors submit this isn’t about any constitutional observation of authority or important issues of standing, or the county simply trying to make sure it’s doing its job … It’s the county acting as an advocate to try and defeat the petition.”
As he was leaving the courthouse, Stanley Walker said McCorvey’s early remarks during the hearing had him worried, but the letter, showing the county was trying to persuade by using “the good old boy networks,” seemed to change the tone.
McCorvey initially indicated he would rule by Monday. By the end of the two-hour hearing he said he would issue his decision before the Oct. 1 election.
He also said he expected whatever decision he made to be appealed and eventually end up before the state Supreme Court.
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