Attorney general's opinion fails to quiet debate on Jekyll Island growthGeorgia Times-Union
By Terry Dickson
June 27, 2013
Read more at Jacksonville.com: http://jacksonville.com/news/georgia/2013-06-27/story/attorney-generals-opinion-fails-quiet-debate-jekyll-island-growth#ixzz2XT2IG2fP
The Jekyll Island Authority must continue to include marsh above the mean high tide in calculating the land on the state park that could be developed, Attorney General Sam Olens said in an opinion released Thursday.
Olens’ opinion is contrary to the wishes of most members of an appointed task force working on a new master plan for the island, the first since 1996. The group said that any marsh covered by any tide, not just the average tide, should be excluded from the measurement of the island’s size.
Use of that measure would have put the island’s size at 3,817 acres, 409 acres less than the number used by the governing Jekyll Island Authority.
Two members of the task force did not want the task force’s computation used for the master plan. They requested a “routine review’’ by the attorney general, which resulted in Olen’s opinion that said, “excluding ‘marsh’ from Jekyll’s measurement would constitute an inappropriate alteration of the statutory language.”
The measure of the island’s total land mass is important because of a 1971 law limiting development to 35 percent of the island’s land while leaving 65 percent undeveloped.
Using the old standards that Olens’ opinion endorses, the Jekyll Island Authority is about 100 acres under the development limit. Under its measure, the task force says the authority already is 136 acres over the limit and has been for years.
Conservationists were not persuaded by Olens’ opinion.
They vowed to keep pushing for further limits on development on Jekyll. 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 Jekyll Island Authority said the opinion will allow the formation of a master plan that follows the law.
“It’s good to get clarity on that issue,” Jekyll Island spokesman Eric Garvey said.
Garvey said again that the authority has no intention of developing any additional land.
“There were no plans to add any new development. We just want to provide a master plan that applies with the law,” he said.
It is the limitations on development that make Jekyll Island special, Garvey said, and the authority plans to keep it that way.
Backers of the task force’s efforts to confine the island’s land measurements to ground untouched by the tides say the plans of this authority board won’t be binding on future boards.
“Members of the board have suggested the authority may need more land in the future to support the island. They don’t want to hamstring future boards,” said Dave Kyler, executive director of the Center for a Sustainable Coast.
Kyler said there are plenty of other laws that clearly say marsh is not land.
“Wetlands are distinguished as water features and not land features in a lot of existing law,” he said. “Marsh ain’t land.”
Olens’ interpretation does not put any marsh in danger because of protections provided in other laws, including Georgia’s Marshland Protection Act enacted a year before the 65-35 limits. He asserts that using marsh to compute a larger size for the island, however, would allow for development of the uplands to go well beyond the 35 percent limit.
“If you want to change the 65-35, go to the legislature and get it changed. Don’t try to misconstrue the law,’’ Kyler said.
Steve Caley, a senior attorney with the Atlanta environmental firm GreenLaw, said Olens’ opinion was disappointing.
“The Attorney General’s opinion ignores the primary purpose of the Jekyll Island statute, which is to limit development of land on the island,’’ Caley said in a release.
The opinion gives the authority “a stamp of approval to artificially increase” Jekyll’s size by 1,726 acres, Caley said. That will expand the amount of land available for development by 604 acres “on this pristine treasure of a barrier island,’’ Caley said.
Olens said that his opinion won’t necessarily settle the issue, which will be up to the legislature or, if necessary, the courts.
Caley said he and others are waiting to see how the authority develops its master plan.
“In the meantime, we are evaluating all options that may be available to us,’’ Caley said.
In addition to his opinion, Olens handed out some advice.
In a letter to Jekyll Island Authority Executive Director Jones Hooks, Olens said the land area established in the 1996 master plan has been a matter of public record 17 years and the General Assembly has not seen fit to change the applicable laws.
If the authority has any plan to substantially increase the island’s measured land area above mean high tide, Olens wrote, such a proposal should be “thoroughly evaluated in a public process,’’ and no final action should be taken until the General Assembly has the opportunity to act on it.
This report contains material from the Associated Press.