Ga. AG: Jekyll Island right to count marsh as land
The Associated Press
June 27, 2013


State law requires Jekyll Island officials to count marsh that stands above water at high tide as land when calculating how much of the state park is open to development, Georgia's attorney general said Thursday.

Olens' opinion rejects the conclusion of a task force appointed by the Jekyll Island Authority that said in April that the island long ago overstepped its maximum footprint for development. The group said Jekyll officials for decades wrongly included hundreds of acres of marsh in the island's total acreage as if they were dry land.

At issue is a 1971 law that mandates that only 35 percent of Jekyll Island's total land area can be used for hotels, golf courses and other development. While the law doesn't say how large the island is or define "land," Sam Olens ruled, nowhere does it say marsh can or should be excluded from the island's total acreage. And there's plenty of marsh that stands above mean high tide, the marker specified by law for measuring the island's boundaries.

"Excluding 'marsh' from Jekyll's measurement would constitute an inappropriate alteration of the statutory language," Olens said in his opinion.

Conservationists vowed to keep pushing for further limits on development on the island. Pierre Howard, president of the Georgia Conservancy, said ultimately "only the courts can interpret the law with full force and effect."

"Our opinion hasn't changed and our fight for Jekyll Island will continue," Howard, a former Georgia lieutenant governor, said in a statement.

The question over Jekyll Island's size arose as the authority works on a new master plan to guide future conservation, maintenance and development. The last such plan was done 17 years ago. It put the island's size at 4,226 acres and also found that 32 percent of the land had been developed.

The advisory group of island staff, conservationists and coastal residents said in its April report the island's total land area is smaller than previously believed — mostly because it removed hundreds of acres of marsh between the water and the island's western shore from the equation. The task force determined the island is 3,817 acres, a figure that's 409 acres less than the last total acreage used by the state authority. The new, smaller number would mean 38 percent of Jekyll Island has been developed — about 136 acres over the legal limit.

Olens effectively barred the Jekyll Island Authority from adopting the smaller acreage. But he also warned the authority against using measurements in its new master plan that would substantially increase the island's acreage without first giving Georgia citizens a chance to weigh in and state lawmakers an opportunity to consider amending the 1971 law.

Howard of the Georgia Conservancy and the Initiative to Protect Jekyll Island State Park, which both had seats on the task force, have said they're concerned island officials want to use the 2013 master plan to enlarge the amount of land open to new development. Documents the state authority sent to the attorney general included notes from a Jekyll Island staff member saying an alternate method of measuring the island "would result in Jekyll Island being 5,542.6 acres" — a number much larger than the 1996 land area and would yield more than 460 acres open to new construction.

"The practical effect of our opinion is the status quo," Olens said in a phone interview. "Normally we would just answer the legal question. But we feel Jekyll Island is so important, additional public input is appropriate" before any major change gets made.

Jekyll Island spokesman Eric Garvey said the authority still plans to implement a task force recommendation to classify as developed land the island's golf course ponds, dirt roads and bike paths that have previously been considered undeveloped. He said it's still too soon to say what the island's total acreage in the 2013 master plan will be.

"We have no plans to increase new development on the island," Garvey said. "And we don't have any plans to increase the developable acreage."

David Egan, co-founder of the Initiative to Protect Jekyll Island, predicted state lawmakers will be asked to write into the law exactly how many acres on Jekyll Island can be developed. If the authority truly doesn't want any new construction on undeveloped land, he said, then "the fixed number of acres should be the number of acres we have developed now."

Wealthy northern industrialists owned Jekyll Island and used it as a secluded winter getaway until 1947, when Georgia officials bought it and opened a state park there. The Georgia Legislature in 1971 passed the law mandating that 65 percent of the island remain undeveloped.

When the last master plan was completed in 1996, it found that 108 acres remained open to new construction. And no new acreage was consumed in a $50 million tourism makeover that included a new convention center, a beachside park and two convention hotels. All those projects are on land where old construction was razed.

Jekyll Island has cleared little if any undeveloped land for new construction in four decades. The newest lodging, golf courses and homes on the island all dated to the 1970s until new construction began seven years ago.