BAILEY v. MCINTOSH COUNTY (Three Cases)

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.

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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

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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.

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