AG agrees with Authority
The Brunswick News
By NIKKI WILEY
June 28, 2013
A citizen task force's recommendation that marsh should not be included in determining Jekyll Island's land area is not consistent with Georgia law and cannot be adopted, according to state Attorney General Sam Olens.
Olens released an official opinion Thursday, at the request of the Jekyll Island Authority, weighing in on an issue that has taken the spotlight in an updating of the state park's master plan.
At issue is a state law limiting development on the island to 35 percent of its land area and the differing opinions on what that land area is.
The task force discounted marsh in its calculation of landmass and said Jekyll Island is made up of 3,817 acres and is over its developable limit, at 38 percent. The Jekyll Island Authority, which operates the park, said the island is closer to 5,543 acres of land area and only 32 percent of it has been developed.
The standoff was over whether the task force could discount marsh in the calculation of land area, effectively ending development on the island if it did.
"... The answer to that question is relatively simple - while some may view the task force's recommendation as commendable from a policy perspective, it is not supported by the applicable statutes," Olens wrote in his opinion.
Olens said his office is limited to interpreting existing law, and existing law does not allow for a change in how land area is calculated, as the task force recommendation would require.
"Georgia law specifies that 'mean high tide' is the measurement that should be used to calculate the land area of Jekyll Island. Because the task force recommendation uses measurements other than mean high tide, its recommendations are inconsistent with Georgia law and cannot be used," Olens wrote.
"Additionally, the statutes governing Jekyll Island do not define 'land area.' Nothing in the law supports a finding that marshes should be treated differently than beaches, dunes, wetlands or other distinct features that are affected by the ebb and flow of the tides.
"Just because these features may be used in the calculation of the land area of the island if they fall above the mean high water mark, however, does not mean they are subject to development. The marshes, for example, are protected from development in accordance with various federal and state laws, including the Coastal Marshlands Protection Act. Likewise, the beaches on Jekyll Island are specifically protected by statute."
With the attorney general having been called in to resolve the dispute over what is land and what is marsh, interest groups have also joined the debate.
Steve Caley, senior attorney for GreenLaw, a non-profit environmental law firm, said he was disappointed with the opinion.
"The attorney general's opinion focuses on the portion of the statute that limits development above water at mean high tide. However, the statute's focus is on the 'land area' above mean high tide," Caley said. "Simply put, marsh is not land."
Georgia Conservancy also voiced support for the task force Thursday.
"While we are disappointed by the attorney general's opinion, we expected it from the outset. We recognize that the attorney general's opinion is not law and that only the General Assembly can make law and only the court can interpret the law with full force and effect," said Pierre Howard, president of the conservancy. "Our opinion has not changed, and our fight for Jekyll will continue."
Olens' opinion has not had an immediate effect on the master plan. Though it is an official opinion, it does not have the weight of law, and Olens notes it will not settle the issue and "that will be up to the legislature (or courts if litigation is pursued)."
Authority board members will meet July 15 to discuss how to proceed.
"As always our goal is to maintain strict compliance with the 65/35 law," said Eric Garvey, chief communications officer for the authority, referring to the provision that requires 65 percent of the island to remain undeveloped and allows 35 percent to be developed. Garvey said there are no plans for development beyond the current footprint on the island. "The new master plan will reflect what we all think is best for the island," he said.
* Reporter Nikki Wiley writes about government, business and other local topics. Contact her at firstname.lastname@example.org or at 265-8320, ext. 321.