Attorneys for McIntosh County will appear before the Georgia Supreme Court Wednesday to argue they rightfully thwarted an ongoing referendum last year.
Early voting was underway and more than 800 people had already voted when a judge stopped the referendum in September. The question before voters at the time was whether to repeal zoning adopted in 2023 that allowed larger houses in the Hogg Hummock neighborhood on Sapelo Island.
How to watch the Georgia Supreme Court
To watch the oral arguments live at 10 a.m. Wednesday, April 16, 2025, go to gasupreme.us
On the morning of the session, a banner will appear on the homepage that, when clicked, will take visitors to the live stream.
Hogg Hummock, an historic district of about 150 homes on Sapelo, is home to Gullah Geechee people whose ancestors were once enslaved in Coastal Georgia. Many feared that because the zoning ordinance more than doubled the allowable size of homes, those residents and homeowners would be forced off the island in favor of wealthy developers.
Sapelo descendants opposed to the new zoning mounted a two-pronged defense strategy. Working with the Southern Poverty Law Center, they filed suit against the county on the grounds that the zoning measure was unjust and discriminatory. That lawsuit is ongoing. Residents also invoked a rarely used provision of the Georgia Constitution that allows citizens to reverse actions of local government, much the same as they can recall elected officials. To do so they gathered enough signatures – more than the required 1,800 – to require a vote on the issue.
Probate Court Judge Harold Webster validated the petition and gave the go-ahead for the referendum to be held Oct. 1, but the county intervened, suing its own probate court judge to quash the process. Superior Court Senior Judge Gary McCorvey then agreed with the county that the referendum wasn’t legal and that it would waste taxpayer money. He stopped the voting midstream.
An appeal of McCorvey’s decision is what’s being heard by the Georgia Supreme Court Wednesday.
A court order issued in November bars the county from approving applications for building permits, issuing building permits, and enforcing building permits for Hogg Hummock unless those permits comply with the zoning in place prior to the controversial zoning change.
What each side will argue
Briefs filed in the case outline the oral arguments to expect on Wednesday. There are three related cases that will be argued as one case. They are: Bailey et. al. v. McIntosh County et. al., Webster v. McIntosh County, and McIntosh County v. Webster et. al.
Savannah attorneys Dana Braun and Philip Thompson, representing Barbara Bailey, Christopher Bailey and Stanley Walker, argue that the county had no right to challenge the referendum petition. And even if it had, their reasoning for doing so is flawed. They contend that the Georgia Constitution does allow citizens to force a referendum vote on zoning issues.
Cumming-based attorneys Ken Jarrard and Melissa Klatzkow, representing McIntosh County, argue that zoning regulations are not subject to the state constitution’s “Home Rule” provision that lays out the referendum process.
”The powers possessed by a local government under the Home Rule provision are subordinate to the General Assembly,” they write in their brief. “By contrast, the Zoning provision is in a separate section of the Constitution and vests the power of zoning exclusively in local governments. The General Assembly has no power to enact substantive zoning measures. As such, the power of zoning is not, and cannot be, subordinate to – and does not emanate from – the Home Rule provision.”
The county also argues that the same “Home Rule” provision did not give Judge Harold Webster the authority “to determine the validity of a petition by voters seeking a referendum to repeal an amendment to a zoning ordinance and to call for a special election on the referendum question.”
Webster’s attorneys, Perry-based Kellye Moore and Jordan Reab, disagree.
“Judge Webster’s order squarely aligns with those duties imposed on him by subparagraph (b)(2) of the Home Rule Paragraph,” they write in their brief. “Upon determining the petition was valid, Judge Webster issued the call for the special election on the referendum question to be submitted to the voters,” they write.
The Georgia Supreme Court will livestream the oral arguments beginning at 10 a.m. Wednesday April 16, 2025.
Mounting costs
McIntosh County has repeatedly objected to the cost of what it believes is an improper referendum.
“Funding a special election is expensive,” the county writes in its brief. “As recognized by the trial court, staffing the polls on election day alone would cost McIntosh County $20,000 or more – in addition to other “substantial” costs for the election.”
Yet the cost of overturning an election appears to be much greater. By the end of February, McIntosh had spent more than $120,000 in legal fees on the referendum case, invoices obtained through Georgia Open Records requests reveal.
The county has spent another $150,000 and counting on legal fees for the related case of Grovner v. McIntosh in which Sapelo descendants claim the new zoning violated the civil rights of the Sapelo community.
Echoes of spaceport case
The McIntosh case echoes a Camden County challenge to a citizen-led referendum there in 2022. In that case, Camden residents forced a referendum to cancel the county’s plans to buy property for a commercial spaceport. In a unanimous decision the high court sided with the citizens, affirming the validity of the vote, which overwhelmingly vetoed the spaceport.
In his concurring opinion in the Camden case, Camden v. Sweatt, Supreme Court Justice Charles Bethel warned the decision could encourage a rush of referenda.
“I worry that a considerable minority group or groups within a community will be empowered to regularly subject their local community to the expense of a series of referenda as a means of either protest or in an attempt to thwart the will of a fatigued majority in a low turnout election. I hope I am wrong.”
His fears haven’t materialized. McIntosh is the only county where voting in a citizen-driven referendum has proceeded since then.
The Camden case differed from McIntosh’s in that it did not involve a zoning issue, which is the focus of the county’s argument. But in many other respects, including the judges and attorneys involved, the two cases are similar.
All eight of the current Georgia Supreme Court justices also heard the Camden case. The ninth judge, Michael P. Boggs, recently stepped down from the court and his replacement has not yet been named.
The attorneys for the citizens in the McIntosh case, Dana Braun and Philip Thompson, also represented citizens in the Camden case. The attorneys representing McIntosh County were not involved in the Camden case.
Unlike in the Camden referendum case, the Association of County Governments of Georgia did not file a friend-of-the-court brief in support of the county. They indicated they were too busy this time.
“The press of business over the last several months at the General Assembly prevented us from preparing an amicus brief in the McIntosh case,” Larry Ramsey, general counsel for ACCG told The Current.
