Introduction

In Bailey v. McIntosh County (consolidated with Webster v. McIntosh County and McIntosh County v. Webster), the Supreme Court of Georgia resolved a consequential question at the intersection of local self-governance and land-use law: Are county zoning ordinances subject to elector-initiated repeal by referendum under Georgia’s constitutional Home Rule Provision?

The case arose from a controversial revision to the McIntosh County zoning ordinance increasing the maximum dwelling size in the historic Hog Hammock District on Sapelo Island. A group of county electors—Barbara Bailey, Christopher Bailey, and Stanley Walker—petitioned for a referendum to repeal the ordinance pursuant to the county Home Rule Provision (Ga. Const. 1983, Art. IX, Sec. II, Par. I(b)(2)). Probate Judge Harold Webster verified the petition and called a special election. McIntosh County then sought superior-court relief to halt the election and obtained a writ of prohibition and declaratory judgment, though the superior court also enjoined enforcement of the ordinance pending appeal.

In a unanimous opinion authored by Justice Ellington, the Supreme Court reversed the superior court’s order halting the referendum and affirmed the injunction preserving the pre-ordinance status quo during the appeal. This decision clarifies that counties enact zoning ordinances pursuant to the legislative power conferred by the Home Rule Provision and that such ordinances may be repealed through the Home Rule referendum process. It also reinforces important appellate practice rules governing proof of local ordinances in the record.

Summary of the Opinion

• Standing: The Court held that the County had standing to contest the legality of the referendum proceeding, relying on longstanding precedent recognizing a county’s interest in the legality of elections affecting its governance (County of DeKalb v. City of Atlanta (1909); Cherokee County v. City of Holly Springs (2008)).
• Home Rule v. Zoning Power: The Court held that, under the 1983 Georgia Constitution, the legislative authority to enact zoning ordinances derives from the Home Rule Provision (Art. IX, Sec. II, Par. I(a)), not from the separate Zoning Provision (Art. IX, Sec. II, Par. IV). Consequently, elector-initiated referenda authorized by the Home Rule Provision apply to zoning ordinances because zoning is not among the subjects excluded from Home Rule repeal procedures (Art. IX, Sec. II, Par. I(c)).
• Probate Judge’s Authority: Because the referendum procedure is constitutionally conferred and the probate judge’s role is defined by the Home Rule Provision, Judge Webster acted within his jurisdiction in verifying the petition and calling the special election. The superior court erred in issuing a writ of prohibition halting the referendum.
• Record and Injunction: The Supreme Court affirmed the superior court’s injunction against enforcing the ordinance pending appeal because the ordinance and its predecessor were not in the appellate record. Without a certified ordinance in the record, the Court could not assess the County’s claims that the injunction altered the status quo or violated separation of powers.

Analysis

Precedents and Authorities Cited

• Camden County v. Sweatt, 315 Ga. 498 (2023): Sweatt established that electors may use the Home Rule referendum to repeal ordinances, resolutions, or regulations adopted under Home Rule and that probate judges have authority to verify petitions and call elections. Bailey extends Sweatt expressly into the land-use arena, holding that zoning ordinances are among the measures adoptable under Home Rule and therefore repeal-able by Home Rule referendum.
• Cherokee County v. City of Holly Springs, 284 Ga. 298 (2008) and County of DeKalb v. City of Atlanta, 132 Ga. 727 (1909): These cases recognize a county’s interest and standing to contest the legality of election proceedings affecting its governance. The Court relied on these to affirm county standing without delving into newer private-right standing frameworks (e.g., Sons of Confederate Veterans (2022); Wasserman v. Franklin County, 320 Ga. 624 (2025)).
• Judicial Notice and Record Proof of Ordinances: Whitfield v. City of Atlanta, 296 Ga. 641 (2015); Edwards v. City of Warner Robins, 302 Ga. 381 (2017); Strykr v. Long County Bd. of Comm’rs, 277 Ga. 624 (2004). These decisions hold that courts cannot take judicial notice of local ordinances unless proven by original or certified copy; absent such proof, appellate review cannot reach arguments premised on ordinance text.
• Constitutional Interpretation: Ammons v. State, 315 Ga. 149 (2022); Wasserman v. Franklin County, 320 Ga. 624 (2025); Forsyth County v. Ga. Transmission Corp., 280 Ga. 664 (2006); Clarke v. Johnson, 199 Ga. 163 (1945). The Court applied original-public-meaning and structural harmony principles, reading the 1983 Constitution in light of its predecessors to give effect to each provision without surplusage.
• Zoning Procedures Law (ZPL) and Related Authority: OCGA § 36-66-1 et seq.; McClure v. Davidson, 258 Ga. 706 (1988). The ZPL sets “minimum” procedures for exercising zoning power and judicial review; it confirms local zoning authority and does not preempt or occupy the field so as to foreclose use of Home Rule to enact or repeal zoning ordinances.
• Appellate Burdens and Presumption of Regularity: Tavarez v. State, 319 Ga. 480 (2024); McKoy v. State, 303 Ga. 327 (2018) (appellant’s burden to show error); Westmoreland v. State, 287 Ga. 688 (2010); Holmes v. Roberson-Holmes, 287 Ga. 358 (2010) (presumption of regularity); Petkas v. Grizzard, 252 Ga. 104 (1984); State Dep’t of Revenue v. McCray, 215 Ga. 678 (1960); Roberts v. Roberts, 201 Ga. 357 (1946) (judicial notice of a court’s own records in the immediate case).
• Historical Zoning/Home Rule Cases: Matthews v. Fayette County, 233 Ga. 220 (1974) and Johnston v. Hicks, 225 Ga. 576 (1969) (1966 Amendment’s direct grant of zoning power and implied repeal of earlier delegations through the General Assembly).

Legal Reasoning

The Court’s reasoning proceeds along three coordinated lines: constitutional text and structure, constitutional history, and functional harmony between the Home Rule and Zoning provisions.

1) The operative grant of legislative authority is in the Home Rule Provision

The 1983 Constitution’s Home Rule Provision, Art. IX, Sec. II, Par. I(a), confers on county governing authorities “legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to [their] property, affairs, and local government,” subject to general law and constitutional limits. The separate Zoning Provision, Art. IX, Sec. II, Par. IV, empowers counties to “adopt plans and … exercise the power of zoning,” but—importantly—omits any independent grant of legislative authority to enact ordinances. In prior constitutions (1966 and 1976), the zoning grant expressly authorized ordinance enactment; in 1983 that language disappears. The Court reads this omission to mean that, under the current Constitution, the legislative vehicle for adopting zoning ordinances is the Home Rule Provision.

2) Zoning is not excluded from Home Rule repeal procedures

Subparagraph (c) of the Home Rule Provision catalogs eight areas that neither the county’s Home Rule legislative power nor the elector-initiated repeal procedure may reach (e.g., criminal law, eminent domain, courts, public schools). Zoning is not listed. By contrast, the 1966 Amendment expressly excluded zoning from Home Rule. The 1976 and 1983 constitutions removed that exclusion. The structural inference is clear: zoning ordinances, enacted under Home Rule, are subject to the Home Rule repeal mechanism.

3) The provisions are complementary, not duplicative

The superior court viewed the Home Rule reading as making the Zoning Provision surplusage. The Supreme Court disagreed: the Zoning Provision confers the substantive authority to engage in zoning and planning, while the Home Rule Provision supplies the general legislative mechanism to adopt ordinances carrying that authority into effect. The ZPL fits neatly into this framework by setting minimum procedures and review standards without preempting local authority or the Home Rule referendum remedy.

4) Probate judge’s role and the referendum petition

As Sweatt explains, the elector-initiated repeal mechanism is a unique constitutional process, not a civil action under the Civil Practice Act. The petition must contain (i) the required percentage of signatures, keyed to county population, and (ii) the exact language of the proposed amendment or repeal. It need not attach or prove the underlying ordinance. If the probate judge finds the petition valid, the judge must call the election. In Bailey, the petition and probate order identified the measure as a “revised zoning ordinance” and set the exact referendum question—more than sufficient for the judge to act within his conferred jurisdiction.

5) Record rules and the injunction appeal

On the County’s separate appeal from the injunction, the Supreme Court applied familiar record rules: appellate courts cannot take judicial notice of local ordinances; litigants must prove ordinances with originals or certified copies. Because neither the ordinance nor its predecessor appeared in the appellate record, the County could not demonstrate error—whether on status quo grounds, evidentiary sufficiency, or separation of powers—given the presumption of regularity and the appellant’s burden. The injunction was therefore affirmed.

Impact

• Direct Democracy in Land Use: Bailey squarely holds that county zoning ordinances are subject to elector-initiated repeal referenda. This extends Sweatt’s referendum framework into the core of local land-use governance and provides citizens a constitutional check on contentious zoning measures.
• Structural Clarification: The decision clarifies that the legislative authority for county ordinances—including zoning—flows through the Home Rule Provision. The Zoning Provision confers substantive power; Home Rule supplies the ordinance-making mechanism and the electorate’s repeal power.
• Limits and Preemption: While zoning ordinances are within Home Rule’s compass, they remain bounded by general law. The ZPL establishes minimum procedural requirements for adopting and reviewing zoning actions; counties must comply. The General Assembly retains authority (as the Constitution states) to set procedures for exercising zoning power.
• Litigation and Record Practice: Bailey reinforces that parties must place certified ordinances into the record when seeking appellate review tied to ordinance texts. Failure to do so is outcome-determinative, as seen in the affirmance of the injunction.
• Municipal Analogy: Although Bailey concerns counties, the Zoning Provision also applies to municipalities. The reasoning may influence future litigation concerning municipal home rule and referenda, though municipalities operate under their own home rule provision and any extension would require careful textual analysis.
• Administrative and Planning Implications: Counties may anticipate increased use of referenda in high-salience zoning disputes. This could influence public engagement strategies, legislative timelines, interim development controls, and risk assessments related to pending permits or projects potentially affected by repeal. Nothing in Bailey addresses vested rights or reliance interests; those questions will be governed by established Georgia doctrines and case-specific facts.

What the Court Did Not Decide

• The validity or wisdom of the McIntosh County ordinance itself was not adjudicated.
• The Court did not rule on the County’s mandamus claim against the Elections Board and Judge Webster; the superior court did not address it, and the Elections Board did not appeal.
• The Court expressly left for another day broader questions about governmental-entity standing under modern Article III–style frameworks, emphasizing that prior standing precedent sufficed here.
• The Court did not reach separation of powers arguments vis-à-vis the injunction because the record lacked the necessary ordinance text.

Complex Concepts Simplified

• Home Rule Provision (Counties): A constitutional grant of local legislative authority to counties to pass “clearly reasonable” ordinances, resolutions, or regulations concerning their property, affairs, and local government (Art. IX, Sec. II, Par. I). It also empowers electors to petition for a referendum to amend or repeal such measures, with eight specific subject-matter exclusions.
• Zoning Provision: A separate constitutional grant authorizing counties (and municipalities) to “adopt plans and exercise the power of zoning” (Art. IX, Sec. II, Par. IV). It recognizes the General Assembly’s ability to set procedures for exercising that power.
• Zoning Procedures Law (ZPL): State statutes (OCGA § 36-66-1 et seq.) establishing minimum procedures local governments must follow to exercise zoning power and the means of judicial review. It confirms local zoning authority and does not itself displace Home Rule.
• Elector-Initiated Referendum: Under Home Rule, electors may initiate repeal (or amendment) of county ordinances by petition to the probate court containing the requisite voter signatures and the exact language of the proposed repeal or amendment. If valid, the probate judge must call and conduct the special election within constitutional timelines.
• Writ of Prohibition: An extraordinary remedy preventing a judicial tribunal from acting outside its jurisdiction. It does not lie where the tribunal (here, a probate judge) acts within constitutionally conferred authority (as with a valid Home Rule referendum).
• Injunction Pending Appeal (OCGA § 9-11-62(c)): The trial court may grant or preserve injunctive relief to maintain the status quo while an appeal is pending. On appeal, the appellant bears the burden to show reversible error on the record.
• Judicial Notice of Local Ordinances: Georgia courts do not take judicial notice of city or county ordinances. Litigants must prove them by original or certified copy. Absent such proof, appellate courts cannot evaluate claims that depend on ordinance text.
• Original Public Meaning and Surplusage: Courts construe constitutional text according to its meaning at adoption and in harmony with the broader structure and history. Provisions should be read to give effect to each without rendering any part meaningless or redundant.

Conclusion

Bailey v. McIntosh County establishes a clear and durable rule of Georgia constitutional law: County zoning ordinances are enacted under the Home Rule Provision and are therefore subject to elector-initiated repeal by referendum. By anchoring legislative authority for zoning ordinances in Home Rule and recognizing no textual exclusion for zoning in the Home Rule referendum process, the Court both harmonizes the 1983 Constitution’s structure and extends the voter-initiated repeal mechanism recognized in Sweatt to the heart of local land-use regulation.

Procedurally, the decision underscores the probate judge’s constitutional role in verifying and calling Home Rule referenda and reiterates stringent record requirements for appellate review of ordinance-based disputes. Substantively, the ruling empowers local electorates to directly check zoning decisions while preserving the General Assembly’s authority to set procedural minima through statutes like the ZPL.

The immediate outcome is twofold: the referendum may proceed (the superior court’s prohibition is reversed), while the injunction preserving the pre-ordinance status quo stands due to record deficiencies on appeal. The broader significance is profound: Bailey brings zoning within Georgia’s constitutional framework of local democratic accountability, ensuring that when counties legislate on land use, their electorates retain a direct, constitutional tool to approve or repeal those decisions.