Descendants of enslaved Georgians in Sapelo Island take zoning fight to state Supreme Court
Gullah Geechee residents of Sapelo Island are taking their zoning concerns to the Georgia Supreme Court.
Attorneys for Barbara Bailey, Christopher Bailey and Stanley Walker last week filed a notice of appeal of the Sept. 25, 2024, order that stopped the already in-progress special election about a controversial zoning decision on Sapelo Island. The stop-the-vote order came after more than 800 McIntosh County residents had cast ballots in early voting.
Sapelo’s 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.
After the zoning passed, more than 2,300 of the county’s registered voters signed a petition calling for the referendum. Probate Judge Harold Webster in July approved the petition and instructed the Board of Elections to move forward with the special election. But on the same day, the McIntosh County Board of Commissioners, who had approved the controversial zoning change, challenged the validity of the election.
Superior Court Senior Judge Gary C. McCorvey agreed with the county that the Georgia Constitution’s home rule referendum provision can’t be used to undo zoning ordinances.
Walker and the Baileys are able to appeal because they intervened in support of the probate judge and his decision to proceed with the referendum. Attorneys Dana Braun and Philip Thompson of the Savannah firm Ellis Painter represent them.
“Appeal to the Supreme Court is appropriate as this appeal arises in a case involving the construction of the Constitution of the State of Georgia and thus the Supreme Court’s exclusive appellate jurisdiction,” the attorneys wrote in their notice of appeal. “In particular, this case concerns the construction and application of the Home Rule for Counties and Municipalities section of the Georgia Constitution and whether the Court properly determined that McIntosh County’s zoning ordinances are not subject to the Home Rule section’s referendum provision.”
Further down the coast, Camden County residents used the home rule referendum provision in 2022, in their case to revoke a county decision to buy land for a proposed spaceport. As in McIntosh, the Camden County Commission tried repeatedly to block its citizens’ votes.
In Camden’s case, Superior Court Judge Stephen Scarlett ruled in favor of the petitioners days ahead of the March 8, 2022, referendum in which 72% of participating voters cast their ballot in favor of repealing all resolutions of the County Board of Commissioners approving purchase of land on which to build a spaceport. But he also authorized an appeal that the Georgia Supreme Court heard after the election.
In a unanimous decision in February 2023, the state high court affirmed “Georgians’ constitutional petition-and-referendum power to veto legislative decisions by their county commissioners that go against the will of the people they were elected to represent,” the UGA First Amendment Clinic wrote at the time.
It’s unclear if halting the McIntosh referendum after voting began is a first in Georgia’s voting history. It’s unlikely to have happened before the state instituted early in-person voting in 2008, Braun said.
Charles Bullock, an expert on Georgia politics, said he couldn’t remember an election being called off after voting began. Even if the petitioners prevail in their appeal, it won’t be the same election, coming at a different time and possibly with other issues on the ballot, he said.
“They’ve changed the dynamics of it, if it gets rescheduled at all,” said Bullock, Richard B. Russell Professor of Political Science at the University of Georgia School of Public and International Affairs.
The Association of County Commissions of Georgia, which filed a friend of the court brief supporting Camden in its effort to nullify the spaceport-related vote, doesn’t know of a similar order either.
“ACCG wouldn’t have data on whether judges have halted local referenda votes in the past,” ACCG’s general counsel Larry W. Ramsey, Jr. wrote in an email to The Current.
He also noted that in 1998, the Georgia Supreme Court (in the Kemp case) “interpreted identical language (in a statute that applies to cities) to say that the referendum process is not available to repeal or amend city ordinances. If you read the Supreme Court’s Camden spaceport decision, you’ll see how that Court analyzed the issue in a very different way and, while not directly overruling the Kemp decision, pretty clearly suggests the Kemp Court got the analysis wrong.”
Referendums weren’t halted before because they weren’t begun.
“Of course in this particular context, there is no history to refer to because this citizen petition and referendum process wasn’t an option until the Supreme Court’s Camden spaceport decision,” Ramsey wrote.
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