IS THIS MARSH
OR IS IT LAND?
The Brunswick News
By NIKKI WILEY
The notion that soggy marsh could be considered to be land when measuring the size of Jekyll Island has some residents and environmentalists crying foul at the Jekyll Island Authority, and they're hoping that Georgia Attorney General Sam Olens will take their side.
In updating its master plan, as required by state law, the authority that operates the state park appointed seven task forces to take up a variety of issues. The most controversial of them being the 65/35 Task Force, named for the state law that requires that 65 percent of land on the island remain undeveloped and limiting development to the remaining 35 percent.
But determining what the island's land area is, though it may sound simple enough, had the task force debating the merits of varying types of measurements for the better part of a year. Its findings discounted marsh when measuring the island's land mass, essentially decreasing the size of the island from the measurement used in the last master plan of 1996 and putting the authority over its developable limit.
The task force says the island has already surpassed that 35 percent cap by 3 percentage points. The authority disputes that and contends the amount of land that has been develop is about 32 percent.
Task force members say total island land mass is 3,817 acres, not counting marsh. Counting marsh, the authority says it's 5,543 acres.
Now, those involved in the master plan process and state environmental groups are alleging a lack of transparency on the part of the authority after it quietly sent the task force's recommendations to Attorney General Olens' office seeking legal advice.
Brenda Costan, a member of a separate recreational planning task force, called the authority "reprehensible" for "ignor(ing) their recommendations" in an open letter.
The Georgia Conservancy, a statewide conservation group, says, "It is patently obvious that because the island is actually beyond the 35 percent statutory limit, and because the (Jekyll Island Authority) wants to develop beyond that limit, they are continuing to count marsh as land in order to achieve their development goals. The problem with their development goals is that they are not legal."
About 367 acres of marsh was included in the measurement of Jekyll's land mass in the 1996 master plan, though there was little rationale given for including salt marsh.
The authority maintains that marsh can be counted as land by precedent. Task force members say past master plans were inaccurate, and counting marsh as land could create a dangerous precedent for development along Georgia's coast.
Some say it would be a violation of the state's Coastal Marshlands Protection Act that defines marsh as "any intertidal area, mud flat tidal water bottom or salt marsh ... whether or not the tidewaters reach the littoral (shore) area through natural or artificial water courses."
Stanley Jennings, president of the Jekyll Island Citizens Association, says he thinks the authority could be headed for a heated court battle.
"We've taken the stand of 100 percent supporting the law of 65/35," Jennings said. "What it's going to come down into is interpretation of the law."
He doesn't want to see the authority tied up in a lawsuit, but former association president Jean Poleszak has a different take.
She was president of the citizen's group in the mid-1990s, when the authority first faced backlash during its master planning.
"All hell broke loose down here ... that's when 65/35 became known throughout the state," Poleszak said.
It seemed like a "kinder argument" then, she said, though it almost ended up in court at that time.
"My personal feeling is, go ahead and take it to court," Poleszak said, adding she wants to lay the issue to rest. "Courts are better at language than legislatures."
But what seems to have caused the most outcry is the authority's response to the findings of the task force it appointed.
An analysis written by an authority employee that was not presented to task force members previously was included in the task force's official recommendation that was sent to the attorney general's office.
Some people involved in the planning process say the authority is squandering public trust in a process that was "perceived by Jekyll Island stakeholders as the first real opportunity in a very long time to have meaningful public input into the future of Jekyll Island," Al Tate, member of the environmental planning task force, wrote in an open letter.
The after-the-fact analysis claimed a task force member had a conflict of interest because his non-profit foundation sought the legal counsel of Greenlaw, a Georgia environmental law firm, and he should not have been involved in the recommendation process, though he was appointed to the task force by the Jekyll Island Authority.
The authority has also claimed the task force's recommendations aren't in compliance with Georgia law and "despite guidance from the JIA" members "established their own interpretation," wrote John Hunter, director of historical resources and authority liaison for the master plan.
But that analysis differs from what Hunter said at an August 2012 meeting of the task force. In a memo distributed to all members, Hunter wrote, "... Jekyll Island Authority staff recommends ... the use of (Georgia Department of Nature Resources) regulatory (mean high water) measurement of 5.6 (feet adjusted to 4.89 feet) on the western shore to minimize the amount of marsh included," Hunter said this measurement would allow for consistency with the law - the same law the analysis given to the attorney general says the task force intentionally disregarded.
And that's just what the task force recommended. It's official recommendation is to use laser mapping technology to measure Jekyll's ocean side and the DNR marsh jurisdictional line to measure the marsh side.
Eric Garvey, chief communications officer, told task force members in a June 7 email that Hunter's analysis doesn't represent the authority's official position and the memo presented facts and Hunter's perspective.
He maintains the authority has no plans for construction beyond the current footprint of development.
David Egan, co-founder of the Initiative to Protect Jekyll Island and island resident, doesn't doubt Garvey's sincerity, but says plans can change.
"You may not have any plans now, but who knows what the conditions will be several years down the road?" Egan asked.
Garvey touts the current administration's "bold steps to ensure this protection" by creating the Georgia Sea Turtle Center, developing design guidelines that restrict new construction on the island and hiring a full-time director of conservation.
"You can expect this same commitment will be reflected in the new Jekyll Island master plan," Garvey said.
He says the authority has been good stewards of public land.
Since the law limiting developed was passed in 1971, Garvey says the authority has developed a total of 40.88 acres of previously undeveloped land.
Authority board member and former chairman Bob Krueger wants to change the way the amount of developable land on the island is determined. Because Jekyll is a barrier island with an ever-changing coast line due to erosion and accretion of beaches, percentages can change over time.
Krueger told board members at a May work session that determining a fixed number of acres that can - or cannot - be developed would lay to rest the issue. But state law requires that percentages be used in the delineation, and it's not clear if moving to the counting of acres would require legislative action.
All in all, most critics of the authority allege the same thing: The authority wants to include marsh in its landmass to skew the ratio of land allowed for development.
No one believes the state park is going to call for dump trucks of sand to come fill in marsh to build a five-star hotel or shopping mall, but some are worried that counting marsh as land would open more acres to development, primarily in Jekyll's maritime forest.
"If you rule out schizophrenia and amnesia, I think the only thing you're left with is, for whatever reason, the (Jekyll Island Authority) is trying to artificially grow the size of the island," Egan said.
Garvey adds that if a future board decides to push for more development, it won't be easy.
"If a future Jekyll Island Authority board sees it differently, they will have to change the master plan through the prescribed public and legislative review process," Garvey said. "And they'll need to be ready for a fight."
* Reporter Nikki Wiley writes about government, business and other local topics. Contact her at email@example.com, on Facebook or at 265-8320, ext. 321.