Several months ago the Athens-Banner Herald reported on an issue brought up in an Associated Press article involving the amount of developable land on Jekyll Island. The current state law, created in 1971, restricts development to just 35 percent of the island’s total land area. The law was designed to provide a true natural beach experience for Georgians by preserving the island’s pristine beaches, wetlands, and marshlands. Moreover, wetlands and marshlands provide countless environmental benefits including flood control, the mitigation of hurricane impact, and the natural filtration of pollutants. Levee failure represents our final failure.
One problem with this law is defining the term “land.” As is the case in many Georgia statutes, a critical word is left undefined. This opens the door for courts, local politicians, and interest groups to readily change the definition depending on their motives. If “land” includes the marshlands and wetlands then the amount of developable land increases dramatically.
To combat the problems related to having a malleable definition of “land,” a new Jekyll Island master plan, drafted by the Jekyll Island Authority, is attempting to depart from the percentage rule by asking the Georgia legislature to formally adopt a fixed-acreage standard. This would detach the amount of development from the definition of land. Based on the proposed fixed-acreage standard, an additional 66 acres are left to be developed. However, if the legislature does not adopt a fixed-acreage standard, the amount of developable land would jump to 326 acres. This is because, with the inclusion of marshland, the new master plan calculates the “land” area of Jekyll Island as being much greater than the previous number.
Conservationists, environmentalists, and many local residents (including Republican and Democratic state representatives) support the fixed-acreage limitation. It guarantees conservation by preventing the calculation of the amount of developable land from being at the whim of politicians, real estate developers, and those who would rather sacrifice Georgia’s vital coastal ecosystems for quick money. Though the supporters of the percentage idea of land development on Jekyll likely had great intentions, the reality is that the percentage can be manipulated to serve local economic interests instead of the statewide interests of protecting the land. Without a statutory definition, it’s easy for local interest groups and courts to massage the definition of “land” based on political or economic desires.
Though a fixed-acreage standard is a step in the right direction, the real problem is the lack of a concrete definition of “land.” We could create a statutory definition that includes wetlands and marshlands. Or better yet, we could avoid calling wetlands and marshlands “land” and just tie the percentage rule to the amount of statutorily-defined wetlands and marshlands without even mentioning land. This eliminates the ability of local interests and courts to bend the definition, and avoids conflict with other laws that do not define wetlands and marshlands as “land.” The percentage law would then make much more sense; if we base development on the amount of marshland it seems like there is some incentive for developers to maintain these critical ecosystems.
However, a problem with this approach is that if you allow development to occur based on a certain tabulation of wetlands and marshlands and then the number of wetlands and marshlands falls, the development remains. You can’t order businesses to close. The fixed-acreage standard has problems too. Though changing something statewide is always more difficult than locally massaging the definition of a word, the Georgia Legislature could always simply change the standard. The second problem with the fixed-acreage standard is its absolute limitation on economic development, which could theoretically mean less business competition and higher prices.
Perhaps a better move would be for Jekyll to ramp up the use of exactions by tightening development restrictions and exchanging development permits for mitigation efforts. Simply put, an exaction is something asked for by the government in exchange for a permit that would not ordinarily be allowed; but the government must ask for something that would rectify the reason why a permit wouldn’t be issued in the first place (see my article on the Supreme Court’s recent ruling on exactions, which takes a more in-depth look at exactions). Instead of drawing a strict line (that could always be changed) on the amount of developable acreage or using a percentage that could produce unwanted development, maybe we can achieve economic development and environmental development by requiring developers to spend money on preservation in exchange for a permit.
The strict-acreage approach is preferable to the percentage approach because it guarantees conservation, but maybe some room exists to explore more creative ways of tying development to the promotion and conservation of the wetlands and marshlands we all need and love. Ultimately developers and commercial property owners should already be investing in and protecting the environment because this is the entire reason why people go to Jekyll and subsequently spend money.
Please see a March 2014 article that provides updates on the Georgia Legislature’s plan for Jekyll Island.