BAILEY v. MCINTOSH COUNTY (Three Cases)

McIntosh County residents opposed a revised zoning ordinance that raised the maximum house size allowed in the historic Hog Hammock district on Sapelo Island. Under a provision of the Georgia Constitution called the Home Rule Provision, they petitioned the county probate court for a special election to repeal the ordinance, and the probate judge agreed to hold the vote. The county then sued in superior court to stop the referendum, arguing the ordinance was passed under a separate constitutional zoning power, not home rule, so it could not be repealed by referendum. The superior court agreed with the county and blocked the vote, though it also temporarily blocked enforcement of the ordinance while the case was appealed. The Supreme Court of Georgia disagreed with the superior court's core ruling. It held that the county's legislative authority to pass zoning ordinances actually comes from the Home Rule Provision, which does allow referendums, so the probate judge had authority to call the special election. The court reversed the order blocking the referendum but left in place the separate order pausing enforcement of the ordinance pending appeal.

The court held that a county's legislative power to enact zoning ordinances flows from the Home Rule Provision of the Georgia Constitution, not the separate Zoning Provision, so zoning ordinances are subject to the home rule referendum process, and the probate judge properly called the special election.

The ruling clarifies that Georgia counties adopt zoning ordinances using their home rule power, meaning residents statewide can use the constitutional referendum process to challenge local zoning decisions. It also lets Sapelo Island's Hog Hammock referendum on house-size limits proceed.

Reversed in part, affirmed in part across three consolidated appeals

1. The court first addressed whether the missing zoning ordinance in the record blocked review, concluding that because a home rule referendum petition need not attach or prove the underlying ordinance, the legal question of whether home rule referendum procedures apply could still be decided without a certified copy of the ordinance.
2. Reviewing the history of Georgia's constitutions since 1966, the court traced how the express power to pass zoning ordinances was originally separate from home rule power but was folded into the Home Rule Provision by the time the current 1983 Constitution was adopted, since the Zoning Provision no longer contains its own grant of ordinance-making authority.
3. Applying rules of constitutional interpretation that require reading the Georgia Constitution's provisions to work together and give meaning to every part, the court concluded that the Home Rule Provision's broad grant of legislative power to adopt ordinances 'relating to property, affairs, and local government' necessarily includes zoning ordinances, since zoning concerns the use of property.
4. Because the Home Rule Provision, unlike its 1966 predecessor, no longer excludes zoning power from its referendum procedures, the court held that county electors may petition to repeal a zoning ordinance the same way they can repeal any other home rule ordinance.
5. Applying this rule to the facts, the court found the probate judge acted within his authority in verifying the referendum petition and scheduling the special election, so the superior court's order blocking that election and issuing a writ of prohibition against the judge was legally incorrect.
6. On the separate injunction appeal, the court held that because the county, as the appellant, failed to place a certified copy of the ordinance in the appellate record, it could not show that the trial court's injunction pausing enforcement of the ordinance was erroneous.

• Sapelo Island zoning
• Hog Hammock referendum
• home rule provision
• McIntosh County
• special election