An effort by some Bulloch County residents to repeal and replace a Board of Commissioners resolution aimed at amending the county’s comprehensive plan and zoning laws is based in the same part of the Georgia Constitution as a referendum that rejected the purchase of land for a spaceport in Camden County.
The Camden County governments ’s appeal of a Probate Court judge’s certification of a petition by voters to call the March 8 spaceport referendum under a provision of Article IX of the state Constitution is now pending before the Georgia Supreme Court. Oral argument is slated for Oct. 6 during a session in Augusta.
That is one reason why Jeff Akins, staff attorney to the Bulloch County government, called the question of whether such a petition could place a referendum on a ballot here “a little bit murky.” The first question to him in a phone interview Friday was actually whether there is any reason the provision would not apply to the Bulloch County situation.
“Well, there’s a case before the Georgia Supreme Court right now that may answer that question,” Akins said.
The petition launched by the Bulloch County citizens group seeks a referendum to repeal the commissioners’ Aug. 16 resolution that imposed a 180-day moratorium on rezoning applications for residential subdivisions in the southeastern section of the county. Applications for subdivisions classified as R-80, in other words with lots measuring 1.8 acres are larger, are exempt.
As stated in the resolution, the purpose of the moratorium is to allow time for revising the county’s comprehensive plan, zoning ordinance, and subdivision regulations. The changes, yet to be fleshed out, are meant to control and accommodate growth resulting from an increasing influx of new residents expected as Hyundai Motor Group builds and powers up an 8,100-employee electric vehicle and battery plant at a regional site in northern Bryan County.
Paul Abel, a spokesperson for the Bulloch residents who launched the petition, said they aren’t opposed to the moratorium as such, but to its purposes.
“We want to stop the August 16 resolution, not the moratorium – the moratorium we love, that they’re not listening to these rezoning requests at the time – but it’s the stated reason in the resolution why they’ve instituted the moratorium, which is that they want to facilitate residential development in the agricultural land,” Abel said. “So we want to stop that.”
The subsection of the Georgia Constitution referred to by the Bulloch County petitioners is exactly the same as in the Camden petition. Article IX, Section 2, Paragraph 1 (b)(2) provides that an election to amend or repeal “ordinances, resolutions or regulations” adopted by a county governing authority can be initiated by a petition signed by enough local voters.
The required number of voter signatures varies by the size of counties. For a county with more than 50,000 residents, the signatures of at least 10 percent of the registered voters from the last general election are required.
In this “home rule” section of the Constitution, the paragraph allowing for referendum petitions refers back to the previous paragraph. That paragraph empowers each county’s governing authority – such as the Bulloch County Board of Commissioners – to adopt “clearly reasonable ordinances, resolutions, or regulations to its property, affairs, and local government” consistent with the Constitution and not already provided for “by general law.”
“The question is whether Subsection b-2 applies to actions of the Board of Commissioners, in other words the county governing authority, or whether it only applies to local acts of the General Assembly,” Akins said.
He acknowledged that the wording refers to “ordinances, resolutions or regulations” of the local governing board. But he also noted that the Georgia Supreme Court, in in a decision involving a nearby local government more than 20 years ago, gave a ruling contradicting the idea that a similar provision of state law allowed petitioners to call a referendum repealing the actions of a city council.
‘Kemp v. Claxton’
Leading up to the 1997-1998 case known as Kemp v. City of Claxton, some Claxton business owners and residents submitted petitions to reverse Claxton City Council resolutions that allowed the closing of two railroad crossings and supported a state plan for widening U.S. Highway 280.
As Akins noted, the provision affecting cities was in statute law, not directly in the state Constitution. But that law also referred to "amendments to or repeals of ordinances, resolutions, or regulations.”
“The language is almost identical to the language of the home rule provision in the Constitution that applies to counties,” he said.
Blocking the Claxton referendum effort in 1998, the Supreme Court ruled that the provision, specific to cities, allowing for repeal referendums applied only to provisions of a city charter. Charter amendments are localized legislation approved by the state Legislature.
“I guess my point is that it’s a little bit murky at this point, I think,” Akins said Friday. “And I also question whether their proposed referendum – even if they use the more expansive reading … I mean, assuming for the sake of argument that it did apply to local ordinances and resolutions, et cetera, I question whether what they’re proposing would still be authorized.”
More than repeal
The Bulloch citizens group’s proposed referendum wouldn’t just repeal the Aug. 16 resolution and revert the Smart Bulloch 2040 Comprehensive Plan to its Aug. 1, 2022 wording. It would also require a further referendum for any future amendment affecting the “Open Space” character areas defined in the plan and restrict rezoning of tracts of 10 or more acres from current AG-agricultural zones in these areas.
The first of these proposed provisions, stated as Paragraph A, would prohibit any amendments to the Open Space provisions “without the approval of a majority of the electors of the County.”
“Let’s say we put a referendum that just simply says the August 16 resolution is hereby repealed,” Abel said. “There’s nothing then that prohibits the Board of Commissioners if they were so inclined from – a month later, two months later, a year later, pick any period of time – just starting the process all over again, and I don’t think that’s what the intention of this provision in the Constitution was.”
Paragraph B would require than any application for rezoning a tract of 10 or more acres zoned AG-5 in the open space receive written consent from 67% of all landowners of property withing a one-mile radius. It would also limit any rezoning to R-80, the classification that allows for lots of 1.8 acres and larger.
“Quite frankly, one of the defects that we see in the current zoning regulation is that there really is no formal neighbor-approval process built into the regulations,” Abel said.
He wanted to be identified simply as a spokesman for the group. When asked, Abel acknowledged that he retired from a career as an attorney in another state.
For the referendum to be possible, the petitioners would first need to obtain the verified signatures of nearly 4,700 Bulloch County registered voters, since 46,634 were registered to vote in the November 2020 general election. Abel said they are aiming for 5,000, to allow for unverifiable signatures.