Attorney General Olens Issues Opinion On Jeckyll Island Authority

From a press release:

Today Attorney General Sam Olens released an Official Opinion responding to a request from the Jekyll Island Authority (JIA) on the question of whether the recommendation of the so-called “65-35 Task Force” can be legally considered by the JIA in determining the total land area of the island.

The Task Force, which was composed of volunteers and JIA staff, was asked among other things to make a recommendation for measuring the island that would assure compliance with the Georgia law which requires that only 35% of the land area of Jekyll Island be available for development and that 65% of the land area remain undeveloped.

In its proposal for measuring the island, the Task Force recommended:

  • ·         excluding all marsh from any measurement of the island;
  • ·         using the Mean Higher High Water mark as the measurement for the eastern shore; and
  • ·         using the 4.89’ Coastal Marshlands Protection Act jurisdictional boundary for the western shore.

After careful consideration and review, the Attorney General has opined that “while some may view the Task Force’s recommendation as commendable from a policy perspective, it is not supported by the applicable statutes.” Georgia law specifies that “Mean High Tide” is the measurement that should be used to calculate the land area of Jekyll Island. Because the Task Force recommendation uses measurements other than Mean High Tide, its recommendations are inconsistent with Georgia law and cannot be used.

Additionally, the statutes governing Jekyll Island do not define “land area.” Nothing in the law supports a finding that marshes should be treated differently than beaches, dunes, wetlands or other distinct features that are affected by the ebb and flow of the tides. Just because these features may be used in the calculation of the land area of the island if they fall above the Mean High Water mark, however, does not mean they are subject to development. The marshes, for example, are protected from development in accordance with various federal and state laws, including the Coastal Marshlands Protection Act. Likewise, the beaches on Jekyll Island are specifically protected by statute.

The Attorney General emphasized in the Opinion that his role is not to make a policy determination, but to provide a strictly legal answer to the JIA’s question by interpreting the statute as it is written. However, given the historic importance of Jekyll Island to the people of Georgia, as well as the potential for future litigation, the Attorney General has suggested to the JIA that no action be taken that would increase the land area of the island without an opportunity for the public and the General Assembly to provide input.

12 comments

  1. xdog says:

    So no one can build on the marshes but marshes above MHT can be used to calculate which 35 percent everyone can build on. Sounds like the developers win again.

    • pettifogger says:

      We’re not.

      Sincerely,

      Ducks Unlimited, Trout Unlimited, Quail Unlimited, Federation of Fly Fisherman, NFWF, QDMA, etc.

  2. Charlie says:

    Greenlaw is not amused:

    GreenLaw Disappointed in Attorney General Opinion on Jekyll Island

    June 27, 2013 (ATLANTA) – Today the Georgia Attorney General released his opinion on Jekyll Island’s 65-35 requirement. “We are disappointed with the Attorney General’s opinion which equates “marsh” with “land” for purposes of limiting development to 35% of the land area of Jekyll Island that lies above water at mean high tide,” said GreenLaw Attorney Steve Caley. “Simply put, marsh is not land.”

    GreenLaw strongly believes that the 65/35 law, rules of statutory construction and common sense demonstrate conclusively that marsh is not land for purposes of limiting development of the land area of Jekyll.

    The Attorney General’s opinion focuses on the portion of the statute that limits development above water at mean high tide. However , the statute’s focus is on the “land area” above water at mean high tide.

    Unfortunately, the Attorney General has given the Jekyll Island Authority a stamp of approval to artificially increase the size of the island by approximately 1,726 acres, thereby expanding the amount of developable land by an additional 605 acres on this pristine treasure of a barrier island.

    We will wait to see what the Jekyll Island Authority now does in its development of a master plan. In the meantime, GreenLaw and our clients are evaluating all options that may be available to us.
    ###

    GreenLaw is a non-profit law firm serving environmental and community organizations that have been adversely impacted by pollution. Since 1992, GreenLaw has achieved these goals by providing free, high-quality legal and technical assistance to environmental organizations and community groups throughout Georgia. For more information, visit http://www.greenlaw.org and follow @greenlaw_GA on Twitter.

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