About That Ruling On The Developable Area Of Jekyll…Your Move Legislature

Last week we brought you news that Georgia’s Attorney General Sam Olens issued an opinion requested of him from the Jekyll Island Authority as they work on a new master plan for the island.  At issue is how much of the land mass is protected from development.  Statute calls for 65% of the island to remain free from development, but what is “land” is the subject of debate.

Yesterday I wrote a column calling for emphasis in policy of protecting and improving Georgia’s nature preserves and parks, using the threat to expanded development at Jekyll as an example.  I “may” have left the impression that Attorney General Olens was helping to foster that development.

After a few discussions yesterday I was referred back to the 9 page opinion from Attorney General Olens (linked here: Jekyll opinion_20130626111807.pdf (1) ) on the matter, which in just the first few paragraphs includes the following:

“As everyone involved agrees, Jekyll Island is a state treasure that should be preserved in accordance with the wishes of the people, as expressed through the wishes of their elected representatives.

Emphasis was added to that last part, because it is clear that the Attorney General is interpreting what is written into law, and notes that there are a lot of words within the statute left undefined, or not defined according to the more strict guidelines that the Jekyll Island Authority has been working under.

But rather than try to make policy with this ruling, Olens instead continues a few sentences down with this:

“The current land area of the island, as set forth in the 1996 Master Plan, has been a matter of public record for seventeen years and the General Assembly has not seen fit to amend the applicable statutes, thereby tacitly approving that plan.  If the authority is considering modifying the 1996 Master Plan so as to increase substantially the measurable land area of the island…I would recommend that any such proposal be thoroughly evaluated in a public process and that final action be deferred until the General Assembly has been given the opportunity to weigh in…Indeed, taking into account the various proposals for measuring the island, the General Assembly could simply declare the size of the island or state precisely how much acreage is subject to development.

It is significantly more clear after reading the entire opinion that Olens is walking a line between what is legal (i.e., stated in current statute) and what is policy (the current approach to how and how much of Jekyll is protected).  The resolution of having those two meet shouldn’t come from a legal opinion or from a lengthy court battle.  It should come from the legislature.

I stand by yesterday’s column that Jekyll is one of Georgia’s many treasures that must be protected.  It is up to the legislature to ensure that this is done properly.

13 comments

  1. saltycracker says:

    Thought you had said that and agree there is no end to attempts to expand developable land. Conservation neighborhoods get to count undevelopable (at least without extraordinary expense) areas in order to increase density where they would not ordinarily get it.

    Charlie: last week:
    “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.”

    • saltycracker says:

      Nothing like the smell of asphalt on a warm sunny day on Jekyll….
      And acres of bright lights to ward away the scary starry nights…..

      • drjay says:

        something like the hard rock casino outside of tampa would not leave a very big footprint if a nice spot on the leeward side of the island could be found for it

        • saltycracker says:

          Right, huge windowless casinos overlooking and with runoff to the estuaries…..

          Casinos;
          Run Marta from the airport to Macon near the 75/16/475 areas and check that 100 mile GA population out plus overnighters in route to Fla ,….

  2. What’s the point of having an elected AG if you could just elect a computer to read the law. He says a bunch of stuff is undefined – define it for us. He faces the voters too.

    • Dave Bearse says:

      I think Olen’s approach OK—it’s an opinion that clearly invites the General Assembly to clarify matters. Ultimately it’s likely a court, not Olens opinion, that will apply. He’s putting the Jekyll Island Authority and General Assembly that uncertainty will be trouble.

  3. Footloose says:

    I think Charlie is correct in saying that AG Olens sincerely believes that the wording of the 65-35 statute allows for marsh to be considered as part of Jekyll’s land area when applying the 65-35 formula but also believes that the JIA shouldn’t take advantage of his ruling by adding a bunch of marsh acres to the island’s land area so as to grow the developable slice of the Jekyll pie. Unfortunately, Olens recommendation saying the JIA should consult the General Assembly on this thorny issue is unlikely to be heeded by the Authority, which means some legislators will have to take the bull be the horns and try to explain the meaning of the Jekyll statute with respect to how to measure the island’s land area and, from there, the number of acres subject to development. Of course, the 1,000 pound gorilla in the Jekyll room is Gov. Deal, who appoints the members of the JIA board. From what I’ve heard, Deal is already pushing the JIA to grow the development-eligible area of Jekyll, and that’s exactly what the JIA has been trying to do and will continue to do unless the General Assembly intervenes. The question is, do we have enough legislators with the integrity and spine to stand up to the power brokers who favor maxing out the development of Jekyll for reasons we can only imagine?
    And by the way, I think Olens is wrong in saying that marsh can be counted as land because the Jekyll statute failed to say otherwise. I’ll be the guys who wrote the Jekyll statute assumed that they didn’t have to define the obvious — marsh is NOT land any more than black is white or night is say!

    • saltycracker says:

      Tl
      You have missed some passionate developer pleas that marshes, swamps. Flooded and low areas must be counted as developable, albeit a bit more expensive, but they will leave it natural in return for more units on high ground.

      • saltycracker says:

        The last bunch to declare that marsh was not land were a bunch of Seminoles wading in what is now a Country Club in Naples, Fl. 🙂

    • dckyler says:

      It is true that the Attorney General (AG) passing the referee’s task onto the legislature is certainly better than rubber-stamping Jekyll Island Authority’s unprincipled attempt to sway a decision favoring as much as 600 acres of land becoming eligible for development by calling marsh “land.” But how is it even remotely possible that Georgia’s leading legal officer can assert that the 1971 state law limiting development on Jekyll to no more the 35% of its area may have intended for tidal marsh to be counted as “land above water at mean high tide”?

      As the AG knows, state and federal law has abundant sources that clearly define marshes as water, not land – including Georgia’s 1970 Coastal Marshlands Protection Act, but also law regulating navigation going back over 100 years, and the Clean Water Act, which Georgia’s Environmental Protection Division is legally bound to enforce. Moreover, a 1992 opinion of the state AG itself listed tidal marshes among features that are “waters of the state.”

      Considering this extensive legal history distinguishing marsh from land, there is only one possible explanation for the AG’s self-contradictory ruling: keeping the issue alive for a political battle in the General Assembly, where rationality is too often irrelevant. Whether the public interest can be defended in Georgia’s legislature is always a dicey proposition, made worse by powerful forces seeking to expand, and profit from, coastal development.

  4. Footloose says:

    DCKyler has a good point in suggesting that the State Legislature may not be up to the task of handling the Jekyll 65-35 problem. In a one-party state, and with the high probability of Gov. Deal having his hand in the Jekyll cookie jar, can we really expect the General Assembly to show the backbone needed to clean up the Jekyll mess? Can anyone tell me which GOP legislators are likely to step forward to clarify the intent and meaning of the 65-35 statute, as AG Olens has suggested?

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