County says Georgia slave descendants can't use referendum to challenge zoning changes
MCINTOSH COUNTY, Ga. - Zoning changes by a Georgia county that some residents say threaten one of the South’s last Gullah-Geechee communities of Black slave descendants can’t be challenged with a referendum, an attorney said Monday in a letter to the judge considering a petition by local voters.
Though Georgia’s state constitution allows citizens to force special elections on some decisions by county governments, it doesn’t give them the power to overturn county zoning decisions, wrote Ken Jarrard, an attorney representing McIntosh County commissioners.
Jarrard’s letter to McIntosh County Probate Court Judge Harold Webster comes a week after Black residents of Hogg Hummock filed a petition seeking a referendum on the commissioner’s decision last fall to weaken zoning restrictions that for decades helped protect the tiny Hogg Hummock community.
Located on largely unspoiled Sapelo Island, about 60 miles south of Savannah, Hogg Hummock was founded by formerly enslaved people who had worked on the plantation of Thomas Spalding. About 30 to 50 Black residents still live in modest homes along dirt roads in the community, also known as Hog Hammock.
Descendants of enslaved island populations in the South became known as Gullah or Geechee in Georgia. Their long separation from the mainland meant they retained much of their African heritage.
Debate over Sapelo Island rezoning
In McIntosh County, there is a debate over zoning on coastal Georgia's Sapelo Island. People indigenous to the 11-mile-long, 4-mile-wide island are concerned code adjustments would allow for larger buildings on the island and likely drive up property taxes. They say tax hikes make it even more difficult for the indigenous people to own and keep property on the island.
Hogg Hummock residents and their supporters submitted a petition on July 9 with more than 2,300 signatures at the McIntosh County courthouse. Organizers said they collected hundreds more signatures than needed to put the zoning issue before county voters.
Jarrard argued it would be "constitutionally improper" to allow voters to use a referendum to overturn a county’s zoning decision.
Georgia’s constitution empowers citizens to challenge "local acts or ordinances, resolutions, or regulations" by county governments in a referendum if a certain percentage of county voters — 20% in the case of McIntosh County — sign a petition.
Voters in coastal Camden County used that provision in 2022 to block their county government from building a launchpad for sending commercial rockets into space. The Georgia Supreme Court upheld that referendum last year, rejecting opponents’ arguments that the state constitution doesn’t allow citizens to veto decisions of county governments.
But Jarrard’s letter to the probate judge says the zoning decision in McIntosh County should be treated differently.
He said that’s because Georgia’s constitution states that referendum results are invalid if they clash with other constitutional provisions or with state law. The constitution gives Georgia counties sole authority over zoning, he said, and state law specifies the process for adopting and repealing zoning ordinances.
"Because that same general law declares that local governments have the exclusive power to zone property," Jarrard wrote, "the Referendum Clause process may not be used to overcome it."
Dana Braun, an attorney for the petition organizers, said McIntosh County’s attorneys have no legal standing to challenge it. He noted the Georgia Supreme Court in its decision upholding the 2022 spaceport vote ruled that the state constitution’s referendum provision doesn’t authorize a county government or anyone else to file any "form of opposition" challenging a petition before a probate judge.
"We do not believe that McIntosh County has the right to interject itself into this proceeding whether it be by a formal pleading or disguised as a letter to the Probate Judge," Braun said in an email.
Georgia gives 60 days for a probate judge to review a petition and decide if it meets the requirements for a special election. The organizers of the McIntosh County petition said the zoning issue could go before voters as early as September or October.
The zoning changes adopted in September doubled the size of houses allowed in Hogg Hummock. Residents say that will lead to property tax increases that they won’t be able to afford, possibly forcing them to sell land their families have held for generations.
County officials have argued the smaller size limit was not enough to accommodate a whole family. They said the limit also proved impossible to enforce.
Hogg Hummock landowners are also fighting the rezoning in court. A judge dismissed the original lawsuit on technical grounds, but it has since been amended and refiled.