Sapelo civil rights case against McIntosh dismissed

A Superior Court judge last week dismissed a civil rights lawsuit related to the rezoning of Hogg Hummock on Sapelo Island. The dismissal does not change the result of the January referendum in which residents voted overwhelmingly to revoke zoning that allowed larger homes on Sapelo.

In a 12-page order, Senior Judge F. Gates Peed granted McIntosh County’s motion to dismiss, writing that relief sought by the plaintiffs — all Gullah Geechee residents of Hogg Hummock — was not appropriate in this case. He also outlined how two of the claims were not brought quickly enough.

The litigation, Bailey, et. al. v. McIntosh County, was first filed shortly after a chaotic public meeting in September 2023 which the county commission voted to increase the maximum square footage for Sapelo residences from 1,400 square feet of heated and cooled space to 3,000 square feet total. Residents sued the county claiming the measure was unjust and discriminatory. Represented by the Southern Poverty Law Center and Bondurant, Mixson & Elmore LLP, they alleged violations of their constitutional rights to due process and equal protection as well as violations of Georgia’s Open Meeting Law.

The residents brought suit against not only the county, but also the county commissioners individually. That proved to be a misstep with consequences for last week’s decision. In March 2024, the McIntosh Superior Court dismissed the original case because a Georgia constitutional amendment passed in 2020 allows only the state, county or municipality, not individuals, to be sued. 

The plaintiffs refiled in late May 2024, removing the county commissioners’ names.

Judge Peed cited the delay as a reason to dismiss the claim that Georgia’s Zoning Procedures Law had been violated. Such claims must be brought within 30 days of the zoning decision, Peed wrote. Similarly, the claims regarding violation of Georgia’s Open Meetings Act must be brought within six months of the decision. By late May, nearly eight months had passed.

The plaintiffs also brought their action under Georgia’s Declaratory Judgement Act, which Peed deemed inappropriate.

“Because Plaintiffs claims for declaratory relief rely on past conduct of the County, and because Plaintiffs have not sufficiently alleged that they are suffering from any uncertainty about heir own future conduct that would be resolved by a declaration by this Court, Plaintiffs have not stated a proper claim for relief under the Declaratory Judgment Act and their claims for declaratory relief must be and are dismissed,” he wrote.

The plaintiff have 30 days to file an appeal or to file a motion for reconsideration.

Miriam Gutman, senior attorney with the Southern Poverty Law Center, declined to comment on the order.

So did attorney Patrick D. Jaugstetter who represented the county.

“It is our policy not to comment publicly on pending litigation impacting our clients,” he told The Current GA.  

McIntosh County taxpayers have spent more than half a million dollars in legal fees in two lawsuits related to the controversial zoning decision. The other suit, brought by the county, challenged the legality of a referendum ultimately upheld by the state Supreme Court. In January, McIntosh residents voted by a 5-1 margin to revoke the controversial Hogg Hummock zoning.

But the referendum did not reinstate the previous zoning. The McIntosh County Commission is working on the details of the replacement zoning now. It’s held three listening sessions and has collected emails from residents who didn’t attend the in-person meetings.

Commissioner Davis Poole said last week’s order was “unexpected,” and will have no bearing on the zoning process moving forward.

“We’re working with the other side — Sapelo residents — to come up with viable solutions about zoning,” he said.

Josiah “Jazz” Watts was disappointed with the order, but still hopeful the zoning will be worked out.

“Speaking as a Sapelo community member & descendant, I think SPLC can continue to support the Hogg Hummock residents that are their clients, as well as our community at large,” he wrote in a text. “And that the county can continue to listen to residents and put forth an ordinance that reflects what the community wants; especially the long term residents that have been here from the beginning.

“I remain hopeful and encouraged by our Sapelo residents and descendants and the public support we continue to receive.”