Attorneys for Georgia slave descendants urge judge not to throw out their lawsuit over island zoning

SAVANNAH, Ga. — Attorneys suing a Georgia county over zoning changes that they say threaten one of the South's last Gullah-Geechee communities of Black slave descendants asked a judge Tuesday to let them correct technical problems with their civil complaint to avoid having it dismissed.

A lawyer for coastal McIntosh County argued the judge must throw out the lawsuit because it clashes with a 2020 amendment to Georgia's state constitution dealing with legal immunity granted to state and local governments.

Residents of the tiny Hogg Hummock community sued in October after county commissioners voted to weaken zoning restrictions that for decades helped protect the enclave of modest homes along dirt roads on largely unspoiled Sapelo Island.

The zoning changes doubled the size of houses allowed in Hogg Hummock. Black residents say larger homes in the community will lead to property tax increases that they won’t be able to afford. Their lawsuit asks a judge to declare the new law discriminates “on the basis of race, and that it is therefore unconstitutional, null, and void.”

The legal arguments Superior Court Judge Jay Stewart heard Tuesday didn't touch on the merits of the case. Instead, they dealt purely with technical flaws in the lawsuit filed by attorneys from the Southern Poverty Law Center and whether those problems warrant a complete dismissal.

Georgia voters in 2020 amended the state constitution to weaken the broad immunity from lawsuits granted to the state and local governments. While the amendment enabled citizens to sue Georgia governments for illegal acts, it also stated that such lawsuits could no longer list individual government officers as defendants.

The lawsuit filed on behalf of the Hogg Hummock residents not only names McIntosh County as a defendant, but also its five individual commissioners.

Ken Jarrard, an attorney for McIntosh County, told the judge that such errors require an “absolute, ironclad dismissal as a matter of law” based on the Georgia Supreme Court's ruling in a similar case last year.

“It's a tough rule,” Jarrard said, “but it is the rule.”

Miriam Gutman, an attorney for the Sapelo Island residents, argued that they should be allowed to make changes to the lawsuit, namely dropping the five commissioners as defendants, to make it comply.

“Courts routinely allow amendments, sometimes numerous times on many different parts of a complaint, to move a case forward,” Gutman said.

Gutman asked the judge, if he decides to throw out the case, to dismiss it “without prejudice.” That would allow the Hogg Hummock residents to file a new lawsuit on the same issues.

The judge didn't make a decision Tuesday. He gave both sides until March 1 to file proposed orders reflecting how they would like him to rule.

“The significance of this case is not lost on me,” Stewart said from the bench. He added that he has visited Hogg Hummock “and I know what it means to the people who live there.”

Hogg Hummock, also known as Hog Hammock, sits on less than a square mile (2.6 square kilometers) on Sapelo Island, about 60 miles (95 kilometers) south of Savannah. Reachable only by boat, the island is mostly owned by the state of Georgia.

About 30 to 50 Black residents still live in Hogg Hummock, founded by former slaves who had worked the island plantation of Thomas Spalding. Descendants of enslaved island populations in the South became known as Gullah, or Geechee in Georgia. Their long separation from the mainland meant they retained much of their African heritage.

The residents' lawsuit accuses McIntosh County of violating Georgia laws governing zoning procedures and public meetings, as well as residents’ constitutional rights to due process and equal protection. It says county commissioners intentionally targeted a mostly poor, Black community to benefit wealthy, white land buyers and developers.

McIntosh County officials denied wrongdoing in a legal response filed in court.

Outside of court, Hogg Hummock residents have been gathering petition signatures in hopes of forcing a special election that would give McIntosh County voters a chance to override the zoning changes.