In the Supreme Court of Georgia
Decided: September 30, 2025
S25A0446. BAILEY et al. v. MCINTOSH COUNTY et al. S25A0447. WEBSTER v. MCINTOSH COUNTY. S25A0448. MCINTOSH COUNTY v. WEBSTER et al.
ELLINGTON, Justice.
These appeals arise out of litigation surrounding a revised
zoning ordinance passed by the McIntosh County Board of
Commissioners (“Board”), which purportedly increased the
allowable maximum dwelling size in a historic district on Sapelo
Island (“Ordinance”). Several McIntosh County residents opposed
the revision and petitioned for a referendum to repeal the Ordinance
under the provision of the Georgia Constitution granting home rule
to counties (“Home Rule Provision”), and the McIntosh County
probate court granted their petition. McIntosh County (“County”),
however, filed the current action in superior court to stop the
probate court from proceeding with the referendum. The superior
court granted the County’s petition, but it also enjoined the County from enforcing the Ordinance during the pendency of the appeal of
the superior court’s ruling. For the reasons set forth below, we
conclude that the superior court erred in halting the referendum and
reverse, but we affirm the superior court’s injunction of the
Ordinance pending appeal.
On July 9, 2024, County residents Barbara Bailey, Christopher
Bailey, and Stanley Walker (collectively “the Intervenors”) filed a
verified petition pursuant to subsection (b)(2) of the Home Rule
Provision. See Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b)(2). 1 The
1 That subsection provides, in pertinent part:
[R]epeals of ordinances, resolutions, or regulations adopted pursuant to subparagraph (a) hereof may be initiated by a petition filed with the judge of the probate court of the county containing, in cases of counties with a population of 5,000 or less, the signatures of at least 25 percent of the electors registered to vote in the last general election; in cases of counties with a population of more than 5,000 but not more than 50,000, at least 20 percent of the electors registered to vote in the last general election; and, in cases of a county with a population of more than 50,000, at least 10 percent of the electors registered to vote in the last general election, which petition shall specifically set forth the exact language of the proposed amendment or repeal. The judge of the probate court shall determine the validity of such petition within 60 days of its being filed with the judge of the probate court. In the event the judge of the probate court determines that such petition is valid, it shall be his duty to issue the call for an election for the purpose of submitting such amendment or repeal to the registered electors of the county for their approval or rejection. Such call shall
2 petition asked the probate court to set a special election for a
referendum to allow County voters to determine whether the
Ordinance should be repealed (“Referendum Petition”).2 On July 23,
2024, McIntosh County Probate Judge Harold Webster entered an
order verifying the Referendum Petition and setting a special
election on the repeal issue for October 1, 2024 (“Referendum
Order”).
However, on July 22, 2024, the day before the Referendum
Order was entered, the County initiated the current litigation by
be issued not less than ten nor more than 60 days after the date of the filing of the petition. He shall set the date of such election for a day not less than 60 nor more than 90 days after the date of such filing.... If more than one-half of the votes cast on such question are for approval of the amendment or repeal, it shall become of full force and effect; otherwise, it shall be void and of no force and effect. The expense of such election shall be borne by the county, and it shall be the duty of the judge of the probate court to hold and conduct such election. Such election shall be held under the same laws and rules and regulations as govern special elections, except as otherwise provided herein. Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b)(2). 2 Another group of County electors, not including the Intervenors, filed a
prior, but apparently unsuccessful, petition for writ of mandamus, declaratory judgment, and injunctive and equitable relief in superior court in connection with the Ordinance. The superior court stated that it took judicial notice of the filings in that litigation , but that matter is not a part of these appeals and the filings in that litigation do not appear in the appellate records. 3 filing a “Verified Petition for Writ of Prohibition and Complaint for
Declaratory Relief” against Judge Webster in the County’s superior
court (“County’s Petition”). The County’s Petition asked the superior
court to prohibit Judge Webster from “exercising jurisdiction over
the Referendum Petition” and for a judgment “declaring the
Referendum Petition and any actions taken pursuant thereto to be
void.” The Intervenors subsequently filed a motion to intervene in
this action, which was granted without objection. The superior
court’s order also set a hearing for September 20, 2024, on the
County’s Petition.
Following that hearing, on September 25, 2024, the superior
court issued its order granting the County’s request for declaratory
relief and a writ of prohibition.3 The superior court found in its
3 During the course of this litigation, the County moved for permission
to add the Board of Elections and Registration of McIntosh County, along with the individual members of that board, (collectively the “Elections Board”) as party respondents. The superior court granted the County’s motion without objection. The County then filed an amended petition adding the Elections Board as respondents and asserting a new claim for a writ of mandamus against Judge Webster and the Elections Board to stop them from, inter alia, “[c]ontinuing to hold a special election.” In its order, the superior court issued a declaratory judgment and granted the County a writ of prohibition against
4 order that the Ordinance in this case was passed pursuant to the
grant of zoning power under Article IX, Section II, Paragraph IV of
the 1983 Georgia Constitution (“Zoning Provision”), and not under
the Home Rule Provision, which provides that “[t]he governing
authority of each county and of each municipality shall have
legislative power to adopt clearly reasonable ordinances,
resolutions, or regulations relating to its property, affairs, and local
government for which no provision has been made by general law
and which is not inconsistent with this Constitution or any local law
applicable thereto.” Ga. Const. of 1983, Art. IX, Sec. II, Par. I (a). In
contrast, the Zoning Provision provides: “The governing authority of
each county and of each municipality may adopt plans and may
exercise the power of zoning. This authorization shall not prohibit
the General Assembly from enacting general laws establishing
procedures for the exercise of such power.” Ga. Const. of 1983, Art.
the Elections Board and Judge Webster, but it did not address the claim for mandamus relief. Consequently, the mandamus issue is not before this Court, and the Elections Board did not appeal the superior court’s order. We express no opinion on whether it was proper to add the Elections Board as respondents in this proceeding. 5 IX, Sec. II, Par. IV. The superior court reasoned that to hold that the
Ordinance was adopted pursuant to the Home Rule Provision would
be to render the grant of power under the Zoning Provision “mere
surplusage.” The superior court determined that the Zoning
Provision addresses a long-existing grant of zoning power to
counties that predated the more general constitutional grant of
legislative power to counties provided under subparagraph (a) of the
Home Rule Provision. The superior court concluded, therefore, that
the County’s exercise of its zoning powers was not subject to the
referendum process under subsection (b)(2) of the Home Rule
Provision and that Judge Webster thus exceeded his jurisdiction by
verifying the Referendum Petition and setting a special election.
The Intervenors then filed an emergency motion for an
injunction to prevent enforcement of the Ordinance pending the
appeal, and the superior court granted that motion, enjoining
enforcement of the Ordinance pending further order of that court or
pending a ruling in this Court that would “negate” the injunction
(the “Injunction”).
6 In Case No. S25A0446, the Intervenors ask this Court to
reverse the superior court’s Order; in Case No S25A0447, Judge
Webster seeks the same relief, but on somewhat different grounds;
and in Case No. S25A0448, the County appeals the superior court’s
entry of the Injunction.
Case Nos. S25A0446 and S25A0447
1. On appeal, the Intervenors first contend that the County
lacks standing to contest the Referendum Petition. But “we held in
County of DeKalb v. City of Atlanta, 132 Ga. 727 (1909), that DeKalb
County had standing to bring an action to enjoin the City of Atlanta
from holding an election, the result of which would place all the
territory included within the corporate limits of the City of Atlanta
in either Fulton or DeKalb Counties.” Cherokee County v. City of
Holly Springs, 284 Ga. 298, 299 (2008). In explaining that decision,
we said that “[t]his Court thus recognized a county’s interest in
contesting the legality of a proceeding which seeks to annex property
within its jurisdiction.” Id. The Intervenors rely in part on that
longstanding precedent, yet we see no meaningful distinction from
7 that precedent here, where a county has contested the legality of a
proceeding that could result in the repeal of an ordinance, duly
enacted by that county, that regulates property within its territory.4
2. In their respective appeals, the Intervenors and Judge
Webster assert that the superior court erred in concluding that the
Ordinance is not subject to the referendum procedures of the Home
Rule Provision because counties exercise zoning powers under the
separate Zoning Provision such that the referendum procedures of
the Home Rule Provision do not apply to zoning ordinances.
(a) In analyzing the parties’ arguments in this regard, we
consider first whether the absence of the Ordinance in the appellate
record precludes our review. In its order granting the County’s
petition for declaratory relief and a writ of prohibition, the superior
4 In light of this longstanding precedent, we need not address the more
general question of how to assess the standing of counties (and other governmental entities) within the framework of constitutional standing set out in decisions like Sons of Confederate Veterans v. Henry County Bd. of Commissioners, 315 Ga. 39 (2022), and Wasserman v. Franklin County, 320 Ga. 624 (2025). We note, however, that those decisions addressed constitutional standing in the context of private litigants seeking redress for the violation of their rights. When governmental entities seek redress in court, they often do so to enforce the law or vindicate certain rights of their citizens, not the “rights” of the governmental entity itself. We leave for another day any questions about how to address a county’s standing in other contexts. 8 court stated that there was no copy of the Ordinance in the superior
court record in this litigation, and no copy of the Ordinance appears
in the appellate records before us. The absence of the Ordinance in
the appellate record may matter because under Georgia law, courts
are not permitted to take judicial notice of a county ordinance unless
proven by the litigants through the introduction of the original
ordinance or a properly certified copy into evidence. See Whitfield v.
City of Atlanta, 296 Ga. 641, 641 (2015) (“City and county ordinances
must be alleged and proven in order to be considered by the superior
and appellate courts of this State.” (citations omitted)); OCGA § 24-
2-221 (judicial notice may be taken of certified copy of ordinance).
But this rule does not answer the question of whether this
Court is required to have a certified copy of the Ordinance in the
record in order to consider the issue of whether the Ordinance was
subject to the referendum procedures of the Home Rule Provision.
To answer that question, we note first that this case requires
consideration of the probate court’s actions in reviewing and
verifying the Intervenors’ Referendum Petition under that
9 provision. As we explained in Camden County v. Sweatt, 315 Ga. 498
(2023), the filing of such a petition initiates a unique constitutional
procedure that “[is] not based on the violation of any private right,”
315 Ga. at 506 n.15, and that is not subject to the pleading
requirements of Georgia’s Civil Practice Act, OCGA §§ 9-11-1, et seq.
Rather, the filing of the petition “[is] based on the home rule power
conferred on counties … and the concomitant power conferred on
the electorate to amend or repeal an ordinance, resolution, or
regulation adopted by a county’s governing authority.” Sweatt, 315
Ga. at 506 n.15. The requirements for such a petition are set out in
the Home Rule Provision itself, as follows: (1) the petition must
contain the signatures of a specified percentage “of the electors
registered to vote in the last general election” depending on the
county’s population; and (2) the “petition shall specifically set forth
the exact language of the proposed amendment or repeal.” Ga.
Const. of 1983, Art. IX, Sec. II, Par. I (b)(2).5 Notably, there is no
5 The County does not contend that the Intervenors failed to comply with
these constitutional requirements. 10 requirement that the petitioners plead or prove the underlying
ordinance, resolution, or regulation for which repeal is sought.
Moreover, the Home Rule Provision does not provide for an appeal
or challenge to the grant of a petition for referendum, although the
Home Rule Provision does require that if “the judge of the probate
court determines that such petition was not valid, he shall cause to
be published in explicit detail the reasons why such petition is not
valid; provided, however, that in any proceeding in which the
validity of the petition is at issue, the tribunal considering such issue
shall not be limited by the reasons assigned.” Id.
Here, the appellate records demonstrate that the Intervenors
filed their verified petition in the probate court averring that they
were seeking a special election on the matter of a “revised zoning
ordinance,” and setting forth the exact language on which they
sought the referendum as follows: “Shall the Action of the Board of
Commissioners of McIntosh County, Georgia, amending the
McIntosh County Code of Ordinances Appendix C Sec. 219 HH Hog
Hammock District of the McIntosh County Zoning Ordinance be
11 repealed?” (Emphasis added.) Judge Webster’s Referendum Order
acknowledged that the Intervenors sought a special election in
connection with a revised zoning ordinance and set the special
election on the exact question contained in the Referendum Petition.
The County’s verified petition in this litigation challenging the grant
of the Referendum Petition acknowledged that it sought “a special
election for the purpose of submitting the County’s … zoning
decision to the registered voters of McIntosh County for their
approval or rejection.” The County initiated this litigation to stop
that special election, in part, on the ground that the Ordinance at
issue involved zoning, which the County contends is not subject to
the referendum procedures of the Home Rule Provision. Therefore,
the record establishes that the Intervenors sought, and the probate
court granted, a referendum under the special procedures of the
Home Rule Provision on the issue of whether a revised zoning
ordinance should be repealed.
We see no basis under the procedures set out in the Home Rule
Provision to have required the Intervenors to produce a certified
12 copy of the Ordinance in connection with the Referendum Petition
for the probate court to consider. Likewise, there is no basis for
requiring the parties to produce a certified copy of the Ordinance in
connection with the County’s superior court challenge to the
Referendum Order on the ground that the home rule referendum
procedures do not apply, particularly here where the record includes
the Referendum Order and Referendum Petition, both of which state
that the referendum under the Home Rule Provision was to allow
the electorate to consider a revised zoning ordinance. Thus, even
though a certified copy of the Ordinance does not appear in the
appellate records in these appeals, we conclude that we also can
consider the legal question whether the Ordinance is subject to the
constitutional referendum procedures in the Home Rule Provision,
and we limit our review accordingly. See Sweatt, 315 Ga. at 506–11
(addressing a similar legal issue regarding application of Home Rule
referendum procedures to county resolutions without review or
analysis of the resolutions themselves).
(b) Turning to the merits, we note that the Georgia
13 Constitution provides that the legislative power of the State is
vested in the General Assembly. See Ga. Const. of 1983 Art. III, Sec.
I, Par. I. But subparagraph (a) of the Constitution’s Home Rule
Provision, while recognizing the General Assembly’s legislative
power, directly grants counties the legislative power to adopt
ordinances, resolutions, and regulations. The full text of that
subparagraph provides:
The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or repealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof. The General Assembly shall not pass any local law to repeal, modify, or supersede any action taken by a county governing authority under this section except as authorized under subparagraph (c) hereof.
Ga. Const. of 1983, Art. IX, Sec. II, Par. I(a). Subparagraph (c) of the
Home Rule Provision prohibits a county’s exercise of its legislative
authority under subparagraph (a) and the exercise of the repeal
14 procedures under subparagraph (b) with regard to a list of eight
designated matters, but a county’s zoning power is not one of the
prohibited matters.6
Although counties are granted the power of zoning under a
separate paragraph of the 1983 Constitution, that paragraph
6 Subparagraph (c) provides:
The power granted to counties in subparagraphs (a) and (b) above shall not be construed to extend to the following matters or any other matters which the General Assembly by general law has preempted or may hereafter preempt, but such matters shall be the subject of general law or the subject of local acts of the General Assembly to the extent that the enactment of such local acts is otherwise permitted under this Constitution: (1) Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority. (2) Action affecting the composition, form, procedure for election or appointment, compensation, and expenses and allowances in the nature of compensation of the county governing authority. (3) Action defining any criminal offense or providing for criminal punishment. (4) Action adopting any form of taxation beyond that authorized by law or by this Constitution. (5) Action extending the power of regulation over any business activity regulated by the Georgia Public Service Commission beyond that authorized by local or general law or by this Constitution. (6) Action affecting the exercise of the power of eminent domain. (7) Action affecting any court or the personnel thereof. (8) Action affecting any public school system. Ga. Const. of 1983 Art. IX, Sec. II, Par. I (c). 15 contains no separate grant of legislative power to pass zoning
ordinances. Moreover, the Constitution grants counties a number of
other supplementary powers under other constitutional provisions,
see Ga. Const. of 1983, Art. IX, Sec. II, Pars. III and V, 7 but no
separate grant of legislative power appears in those paragraphs
expressly authorizing counties to adopt ordinances in the exercise of
the zoning power or any of the other listed powers granted them.8
7 Subsection (a) of Ga. Const. of 1983, Art. IX, Sec. II, Par. III, provides that counties, municipalities, and “any combination thereof” may exercise the following powers and provide the following services: “[p]olice and fire protection”; “[g]arbage and solid waste collection and disposal”; “[p]ublic health facilities and services”; “[s]treet and road construction and maintenance”; “[p]arks, recreational areas, programs, and facilities”; “[s]torm water and sewage collection and disposal systems”; “[d]evelopment, storage, treatment, purification, and distribution of water”; “[p]ublic housing”; “[p]ublic transportation”; “[l]ibraries, archives, and arts and sciences programs and facilities”; “[t]erminal and dock facilities and parking facilities”; “[c]odes, including building, housing, plumbing, and electrical codes”; “[a]ir quality control”; and “[t]he power to maintain and modify heretofore existing retirement or pension systems” as well as “the power to create and maintain retirement or pension systems for elected and appointed public officers and employees.” The governing authority of each county is also granted the authority to exercise the power of eminent domain as defined in Ga. Const. of 1983, Art. IX, Sec. II, Par. V. 8 We note, however, counties are granted limited legislative power to
create special districts for the provision of local government services and to levy and collect associated fees, assessments, and taxes by ordinance or resolution under Ga. Const. of 1983, Art. IX, Sec. II, Par. VI. The language of that provision, however, demonstrates that it has no application to the zoning power granted under the Zoning Provision. 16 In construing the Home Rule and Zoning Provisions of the 1983
Constitution, it is useful to first review the prior constitutional
provisions governing those powers. See Sweatt, 315 Ga. at 506
(beginning analysis of Home Rule Provision with a brief review of
the history of home rule); Ammons v. State, 315 Ga. 149, 161 (2022)
(“[N]o reasonable observer during the drafting and ratification of the
1983 Constitution would have understood the provisions of the
proposed new constitution to be understood without reference to the
construction of their predecessors.”). See generally Forsyth County
v. Ga. Transmission Corp., 280 Ga. 664, 668 (2006) (noting, in
context of a constitutional challenge to a county ordinance, that
“constitutional provisions must be presumed to have been framed
and adopted in the light and understanding of prior and existing
laws and with reference to them.” (citation and quotation marks
omitted)); Clarke v. Johnson, 199 Ga. 163, 166 (1945) (same, in
context of interpreting amendment to constitution).
As explained more fully below, that review shows an evolution
in the Georgia Constitution’s treatment of the county home rule and
17 zoning powers, both of which first were granted in the same 1966
constitutional amendment. The 1966 provision granting counties
zoning power also included an express grant of the power to enact
zoning ordinances. The constitutional grant of a separate, express
power to enact zoning ordinances continued until the adoption of the
current Georgia Constitution, which contains no specific grant of
that authority distinct from the general legislative power granted
counties in the Home Rule Provision. Moreover, although the
original 1966 home rule provision expressly excluded county zoning
power from its reach, that exclusion was eliminated in the
subsequent 1976 and 1983 Georgia Constitutions, removing any
explicit obstacle to a county’s use of the home rule legislative power
to pass zoning ordinances.
Counties were first granted home rule legislative power when,
in 1966, the state’s voters ratified a home rule amendment to the
Georgia Constitution of 1945 (“1966 Amendment”). See Sweatt, 315
Ga. at 506. The county home rule provision in the 1966 Amendment
contained similar language to that found in the current Home Rule
18 Provision, granting counties legislative power and setting out a
referendum procedure by which the county electorate could initiate
a procedure for repeal of legislative measures adopted pursuant to
that authority. See Ga. Const. of 1945 Art. XV, Sec. II, Par. I (1966).
A separate paragraph of the 1966 Amendment also directly granted
zoning power to counties for the first time,9 providing that “[t]he
governing authority of each county is empowered to enact for
unincorporated areas of the county appropriate planning and zoning
ordinances for public safety, historic, health, business, residential,
9 Prior to the 1966 Amendment, earlier versions of the Georgia Constitution granted the General Assembly authority to confer zoning power on counties. See Ga. Const. of 1945, Art. III, Sec. VII, Par. XXIII (providing the General Assembly with “the authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws”); Ga. Const. of 1877, Art. III, Sec. VII Par. XXVI (1937) (granting the General Assembly authority to grant zoning powers to counties and municipalities having a population of 1,000 or more). See also Matthews v. Fayette County, 233 Ga. 220, 223 (1974) (noting that “the 1966 Amendment gave counties direct authority to enact zoning and planning laws”); Johnston v. Hicks, 225 Ga. 576, 581 (1969) (holding that the ratification of that 1966 Amendment impliedly repealed the earlier constitutional provisions giving the General Assembly authority to confer zoning power on counties). Therefore, the superior court erred in finding with reference to counties that “[c]onstitutional zoning power existed long before the legislature and ultimately the people approved of even the idea of home rule.” Although earlier constitutional provisions granted counties the potential for zoning power if the legislature voted to grant it, counties received their constitutional grant of zoning power at the same time they received the grant of home rule legislative power, in the 1966 Amendment. 19 and recreational purposes.” Ga. Const. of 1945, Art. XV, Sec. II, Par.
III (1966) (emphasis added). In addition, the home rule paragraph
of the 1966 Amendment expressly provided that “[n]othing in this
Paragraph shall affect the provisions” of the amendment’s zoning
paragraph. Const. of 1945, Art. XV, Sec. II, Par. I(e) (1966).
Accordingly, the 1966 Amendment contained a separate and express
grant of legislative power to counties to adopt zoning ordinances and
expressly excluded zoning from the general grant of home rule
legislative power and the procedures by which the electorate could
petition for a referendum to overturn a county’s legislative
measures.
The 1976 Georgia Constitution restructured the constitutional
provisions governing counties, moving the grant of zoning power out
of the section of the Constitution addressing county home rule, see
Ga. Const. of 1976, Art. IX, Sec. II, and into a constitutional
provision granting a list of supplementary powers to counties in the
section addressing “General Provisions Applicable to Local
Governments.” See Ga. Const. of 1976, Art. IX, Sec. IV, Par. II (15).
20 The supplementary powers provision also gave counties a separate
grant of legislative power to facilitate the exercise of the listed
powers, including zoning, as follows:
Each county and municipality, and any combination thereof, shall have the authority to enact ordinances and to contract with each other in pursuance of this Paragraph and for the purpose of carrying out and effectuating the powers herein conferred upon such political subdivision and in order to provide such services.
See Ga. Const. of 1976, Art. IX, Sec. IV, Par. II (emphasis added).
Although the 1976 Constitution’s home rule provision contained
similar language to the home rule provision in the 1966
Amendment, it removed the amendment’s language expressly
preventing the provision’s application to the paragraph granting
zoning power. See Ga. Const. of 1976, Art. IX, Sec. II, Par. I.
Accordingly, under the 1976 Constitution, counties retained a
separate and express grant of legislative power to adopt zoning
ordinances, but the home rule provision no longer excluded the
zoning power from its application.
The ratification of the current constitution in 1983 returned
the Zoning Provision to the section addressing home rule, but as 21 noted above, that provision no longer states that the governing
authority “is empowered to enact” or has “the authority to enact”
zoning ordinances as in the 1966 Amendment and the 1976 Georgia
Constitution. Instead, the current Zoning Provision permits a
county to “adopt plans” and “exercise the power of zoning.” See Ga.
Const. of 1983, Art. IX, Sec. II, Par. IV. Moreover, as noted above,
the current Home Rule Provision does not prohibit the application
of its procedures, including the referendum process, to a county’s
zoning power. See Ga. Const. of 1983, Art. IX, Sec. II, Par. I(c).
Against this backdrop, we turn to the well-established rules of
constitutional construction to determine the meaning of the text of
the current Home Rule and Zoning Provisions. The original public
meaning of the text is our starting point, that is, “we look for the
meaning the people understood a provision to have at the time they
enacted it.” Sweatt, 315 Ga. at 509 (citation and quotation marks
omitted). “That meaning is in turn determined by considering the
common and customary usages of the words, as informed by their
context, including the broader legal backdrop — constitutional,
22 statutory, decisional, and common law — in which the text was
adopted.” Wasserman v. Franklin County, 320 Ga. 624, 628 (2025)
(citation and quotation marks omitted). Additionally, we also must
construe constitutional provisions to make the Constitution’s “parts
harmonize and to give a sensible and intelligent effect to each part,
as it is not presumed that the drafters intended that any part would
be without meaning.” Sweatt, 315 Ga. at 509 (citation and
punctuation omitted). Applying these principles, we determine
that, in the 1983 Constitution, unlike prior versions of the Georgia
Constitution, it is the Home Rule Provision, not the Zoning
Provision, that provides the express grant of legislative power
enabling a county to exercise its zoning power by ordinance. That
provision grants a county’s governing authority the “legislative
power to adopt clearly reasonable ordinances, resolutions or
regulations relating to its property, affairs, and local government for
which no provision has been made by general law and which is not
inconsistent with this Constitution or any local law applicable
thereto.” Although the Zoning Provision broadly grants zoning
23 powers to counties, that provision contains no express reference to
the legislative authority to enact ordinances. The legislative power
to enact ordinances, including those related to zoning, is instead
explicitly granted in the Home Rule Provision. And that grant is
broad enough to encompass a county’s exercise of its zoning power
as it grants a county power to adopt “ordinances, resolutions, or
regulations relating to its property, affairs, and local government,”
and zoning necessarily concerns the use of property within a
county’s territorial boundaries.10
10 We acknowledge that under subparagraph (a) of the Home Rule Provision, a county only has the power to adopt ordinances “for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto” and that the General Assembly has enacted a series of statutes known as the Zoning Procedure Laws (“ZPL”), see OCGA § 36-66-1, et seq. But the stated purpose of the ZPL, which expressly recognizes and confirms “the authority of local governments to exercise zoning power within their respective territorial boundaries,” is “to establish as state policy minimum procedures governing the exercise and means of judicial review of the exercise of that power.” OCGA § 36-66-2(a) (emphasis added). See also Ga. Const. of 1983, Art. IX, Sec. II, Par. IV (explaining that the grant of zoning power to counties “shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power”). The ZPL, therefore, does not affect the validity of any county ordinance so long as it is enacted in accordance with the ZPL’s minimum procedural requirements. See generally McClure v. Davidson, 258 Ga. 706, 710 (1988). Accordingly, the ZPL is not a general law that has made provision for the subject matter of any county zoning decision and thus it does not preclude the use of the home rule power to enact a zoning ordinance.
24 This reading does not otherwise diminish the extent of zoning
power granted to counties under the Zoning Provision or render that
provision mere surplusage. The power granted by the Home Rule
Provision encompasses more than enacting zoning ordinances, and
the power granted by the Zoning Provision is broader than merely
the power to enact zoning ordinances. The Zoning Provision itself
expressly includes the power to adopt zoning plans, and in enacting
procedures to be followed in the exercise of the zoning power, the
General Assembly defined the term “zoning” broadly to include other
actions by counties regulating the development and improvement of
property within the county. See, e.g., OCGA § 36-66-3 (defining the
term “zoning” under the Zoning Procedure Laws as “the power of
local governments to provide within their respective territorial
boundaries for the zoning or districting of property for various uses
and the prohibition of other or different uses within such zones or
Moreover, the ZPL is part of Article 36 of the Georgia Code addressing local governments, and OCGA § 36-70-5 in the same article provides that, with the exception of provisions prohibiting inactive municipalities from exercising zoning power, “nothing in this article shall limit or compromise the right of the governing body of any county or municipality to exercise the power of zoning.” 25 districts and for the regulation of development and the improvement
of real estate within such zones or districts in accordance with the
uses of property for which such zones or districts were
established”). 11
Moreover, the changes in the structure and the language of the
11 The County argues that the Home Rule Provision cannot apply to zoning ordinances because the Home Rule Provision and the Zoning Provision use different terminology in describing the General Assembly’s retention of authority with regard to the powers granted to counties under each provision. The Zoning Provision states the grant of zoning power to counties “shall not prohibit the General Assembly from enacting general laws establishing procedures for the exercise of such power” while the Home Rule Provision says that the grant of home rule power “shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof.” The County appears to argue that the terminology regarding zoning procedures in the Zoning Provision would be mere surplusage if the broader terminology describing the legislature’s retained authority in the Home Rule Provision applied to zoning ordinances. But although the Home Rule Provision describes the General Assembly’s retained authority more broadly, the Zoning Provision’s express grant of the power of zoning and planning to counties and municipalities, in and of itself, necessarily restricts the legislature’s retained power “to further define or to broaden, limit, or otherwise regulate” a local government’s exercise of its zoning and planning powers under the Home Rule Provision. Therefore, the language in the Zoning Provision reserving the General Assembly’s power to establish zoning procedures does not impose a lesser restriction on the legislature’s retained authority but rather clarifies that the Zoning Provision’s inherent restriction of the General Assembly’s authority over zoning and planning does not preclude it from passing general laws addressing such procedures. Accordingly, we reject the County’s argument.
26 1983 Constitution support this understanding of the two provisions.
The current constitution returns the grant of county zoning power
to the section addressing home rule, reversing the prior
constitution’s placement of that grant elsewhere; eliminates any
separate express grant of legislative power for enacting zoning
ordinances; and, unlike the 1966 Amendment, does not expressly
exclude the zoning power from the application of the Home Rule
Provision. Although the 1983 Constitution returned the grant of the
zoning power to its own separate paragraph, the absence of an
express exclusion for zoning in the Home Rule Provision is
significant to our analysis. Notably, the constitutional grant to
counties of the power of eminent domain also is placed in its own
separate paragraph in the current constitution, see Ga. Const. of
1983, Art. IX, Sec. II, Par. V, but subparagraph (c) of the Home Rule
Provision expressly prohibits the application of that provision’s
subparagraphs (a) and (b) to any “[a]ction affecting the exercise of
the power of eminent domain,” see Ga. Const. of 1983, Art. IX, Sec.
II, Par. I(c)(6). We conclude, therefore, that the placement of the
27 grant of zoning power in a separate paragraph did not remove that
power from the Home Rule Provision as demonstrated by
subparagraph (c)’s lack of any exclusion of the zoning power from
the procedures set out in subparagraphs (a) and (b) of that provision
and that although the County was exercising the broad zoning
powers granted in the Zoning Provision when it adopted the
Ordinance, it was doing so through the legislative power granted to
counties under the Home Rule Provision.
(c) We previously determined in Sweatt that subsection (b)(2)
of the Home Rule Provision authorizes a county’s electorate to
petition the County’s probate court for a special election to consider
the repeal of an ordinance, resolution, or regulation adopted
pursuant to subparagraph (a), see 315 Ga. at 508–12, and further
authorizes the county probate judge “to consider the [e]lectors’
[p]etition to determine whether it met the requirements under that
provision for obtaining a referendum on the issue,” id. at 511.
Moreover, subsection (b)(2) provides that where the probate judge
determines that such a petition is valid, “it shall be his duty to issue
28 the call for an election for the purpose of submitting such ... repeal
to the registered electors of the county for their approval or
rejection.” Ga. Const. of 1983, Art. IX, Sec. II, Par. I (b)(2) (emphasis
added). And, as explained above, nothing in the text of the Zoning
Provision in any way restricts a county electorate’s authority to seek
repeal of a zoning ordinance. The superior court therefore erred in
concluding that Judge Webster acted without authority in
considering the Referendum Petition and in setting a special
election for a referendum on the issue of whether the Ordinance
should be repealed. 12
Accordingly, we reverse the superior court’s order, which
granted the County declaratory relief to halt the referendum and
issued a writ of prohibition against Judge Webster based on a
finding that the Home Rule Provision did not apply. See Sweatt, 315
Ga. at 513 (reversing grant of declaratory relief preventing a special
election and grant of writ of prohibition against probate judge who
12 Given this conclusion, we need not reach the other arguments put forth
by Judge Webster in his Appellant’s brief. 29 acted within his jurisdiction under the Home Rule Provision in
setting the election because a writ of prohibition is intended “to
prevent a tribunal possessing judicial powers from exercising
jurisdiction over matters [outside] its cognizance”) (citation and
quotation marks omitted)).
Case No. S25A0448
In this appeal, the County seeks reversal of the superior court’s
orders imposing an injunction against the enforcement of the
Ordinance until further order of that court and pending the
Intervenors’ appeal. The County asserts that the injunction
improperly “alters the status quo” by not allowing the approval of
building permit applications “to construct residences at 3,000 square
feet irrespective of the outcome of the referendum election.” The
County further asserts that the superior court erred by misapplying
the standard for injunctions under OCGA § 9-11-62(c) and by
granting the injunction under that authority without evidentiary
support. The County also contends that the injunction violates the
separation of powers provision of the Georgia Constitution, see Ga.
30 Const. of 1983, Art. I, Sec. II Par. III, by enjoining a lawful zoning
ordinance where the legality of that ordinance is not at issue.
However, the County cannot prevail on these arguments as the
injunction on which they are based necessarily turns on the alleged
text of the Ordinance and its predecessor. Because those documents
are not included in the appellate record, we cannot take judicial
notice of them and thus we cannot consider the County’s arguments.
See, e.g., Edwards v. City of Warner Robins, 302 Ga. 381, 388 (2017)
(determining that where appellants failed to put a certified copy of
the relevant zoning ordinance provisions in the record, no competent
evidence supported assertion that the ordinance resulted in an
improper taking of their property); Whitfield, 296 Ga. at 641
(holding that the absence of ordinance in appellate record prevented
review of appellant’s claim that ordinance was unconstitutional);
Strykr v. Long County Bd. of Comm’rs, 277 Ga. 624, 626 (2004)
(declining to address appellant’s constitutional challenge to portions
of county ordinance because courts cannot consider arguments
addressing alleged language in an ordinance not proved).
31 Even though the Intervenors bore the burden with regard to
the injunction in the superior court, see Howard v. Smith, 226 Ga.
850, 852 (1970), 13 as the appellant, the County bears the burden on
appeal of showing error in the record. See Tavarez v. State, 319 Ga.
480, 483, n.4 (2024) (Any ambiguity or lack of evidence in the
appellate record does not help the appellant, who bears the burden
of showing error in the record on appeal.); McKoy v. State, 303 Ga.
327, 333 (2018) (It is “axiomatic that a conclusion that reversible
13 We express no opinion as to whether the superior court properly granted the injunction when the Ordinance apparently did not appear in the trial record in this litigation. We note that the superior court took judicial notice of another proceeding in its court with respect to the Ordinance, which may or may not have included a certified copy of that document, but the record from that case is not before this Court. See Petkas v. Grizzard, 252 Ga. 104, 106 (1984) (“court may take judicial notice of its own records in the immediate case or proceedings before it”) (citation and quotation marks omitted); State Dep’t of Revenue v. McCray, 215 Ga. 678, 680 (1960) (same); Roberts v. Roberts, 201 Ga. 357, 359 (1946) (same). Therefore, given the presumption of regularity, we cannot say that the superior court did not properly have the Ordinance before it in entering the injunction. See, e.g., Westmoreland v. State, 287 Ga. 688, 696–97 (2010) (determining that where this Court lacked information regarding the identification, or the circumstances surrounding the admission, of allegedly objectionable evidence, it “must apply the presumption of regularity and hold that the trial court discharged her duties properly”); Holmes v. Roberson-Holmes, 287 Ga. 358, 361 (2010) (recognizing that “[t]here is a presumption of regularity that attaches to all official acts, which includes judicial proceedings,” and applying that presumption where absence of hearing transcript in appellate record prevented resolution of issues surrounding evidence presented at hearing).
32 error occurred requires a showing of error and harm and that an
appellant has the burden of proving trial court error by the appellate
record.”) (citation and punctuation omitted)). Without proper proof
of the Ordinance or its predecessor, the County cannot show such
error. Therefore, the superior court’s injunction orders must be
affirmed.
Judgment reversed in Case Nos. S25A0446 and S25A0447. Judgment affirmed in Case No. S25A0448. All the Justices concur.