IN THE SUPERIOR COURT OF CHATHAM COUNTY

STATE OF GEORGIA

TYBEE ALLIANCE, INC., )

TYBEE VACATION RENTALS, )
INC., TYBEE BEACH VACATION )
RENTALS & PROPERTY )
MANAGEMENT, LLC, VACTATION )
RENTAL PROS PROPERTY )
MANAGEMENT, LLC )
JOSH MORRIS, STEVEN BUCKNER, )
) Civil Action No. ________________
)
)
Plaintiffs, )
)
v. )
)
CITY OF TYBEE ISLAND, GEORGIA, )
THE MAYOR AND COUNCIL OF THE )
CITY OF TYBEE, and SHIRLEY )
SESSIONS, SHAWN GILLEN, JAY )
BURKE, MONTY PARKS, BARRY )
BROWN, BRIAN WEST, MICHAEL )
“SPEC” HOSTI, NACY DEVETTER, )
All in their individual and official )
capacities, )
)
Defendants. )

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

Plaintiffs Tybee Alliance, Inc., Tybee Vacation Rentals, Inc., Tybee Beach Vacation

Rentals & Property Management, LLC, Josh Morris, Steven Buckner, (hereinafter, “Plaintiffs”),

by and through counsel, file this Complaint against Defendants City of Tybee Island, Georgia,

The Mayor and Council of The City of Tybee, Shirley Sessions, Shawn Gillian, Jay Burke, Brian

West, Michael “Spec” Hostil, Nancy Devetter (hereinafter, the “City”) and show this Honorable

Court the following:

SUMMARY OF PETITION

1
 1.

Plaintiffs seek a declaratory judgment pursuant to O.C.G.A. § 9-4-1 et seq. declaring

certain sections of the City of Tybee Island’s Code of Ordinances regulating the use of

residential dwellings as Short-term Vacation Rentals, Code §§ 34-260 et seq., invalid and

unenforceable because the Code sections are not consistent with the Constitution, the Georgia

Code, and the City’s Charter. Plaintiffs also seek injunctive relief barring the individual

defendants from enforcing the invalid and unenforceable Code sections.

PARTIES AND JURISDICTION

2.

Plaintiff Tybee Alliance, Inc is a domestic nonprofit corporation whose members are

vacation rental owners, management agents, realtors and local residents who rent or wish to rent

residential dwellings located within the corporate municipal boundaries of Tybee Island,

Georgia, for a period less than 30 consecutive days, with a principal office of 1010 US Highway

80, Tybee Island, GA, 31328, and is subject to the jurisdiction of this Honorable Court.

3.

Plaintiff Tybee Vacation Rentals, Inc, is a domestic corporation that has a principal place

of business within the City and is engaged in the business of managing the rental of residential

dwellings located within the City for periods of less than 30 days for others with a principal

office of 1010 US Highway 80, Tybee Island, GA, 31328, and is subject to the jurisdiction of

this Honorable Court.

4.

Plaintiff Tybee Beach Vacation Rentals & Property Management, LLC is a domestic

Limited Liability Company that has a principal place of business within the City and is engaged

2
in the business of managing the rental of residential dwellings located within the City for periods

of less than 30 days for others with a principal office of PO BOX 2802, TYBEE ISLAND, GA,

31328-2802, and is subject to the jurisdiction of this Honorable Court.

5.

Plaintiff Vacation Rental Pros Property Management, LLC is a foreign corporation that

has a principal place of business in a location other than within the City and is engaged in the

business of managing the rental of residential dwellings located within the City for periods of

less than 30 days for others with a principial address of 200 executive way suite 200 Ponte Vedra

Beach, Florida 32082, and voluntarily subjects itself to the jurisdiction of this Honorable Court.

6.

Plaintiff Josh Morris is an Individual who resides in the City and owns a residential

dwelling therein, who rents or wishes to rent said dwelling for a period of less than 30

consecutive days, and is subject to the jurisdiction of this Honorable Court.

7.

Plaintiff Steven Buckner is an Individual who resides in the City and owns a residential

dwelling therein, who rents or wishes to rent said dwelling for a period of less than 30

consecutive days, and is subject to the jurisdiction of this Honorable Court.

8.

Defendant City of Tybee Island, Georgia is a municipal body politic and corporate,

chartered, organized, created, and validly existing under the laws of the State of Georgia, and is

subject to the jurisdiction of this Honorable Court, and may be served with Summons and

Complaint in this matter by delivering a copy of the same to The Mayor, Shirley Sessions, at 6

3
Moore Avenue, Tybee Island, Georgia 31328, and The City Manager, Shawn Gillen at 605 2nd

Avenue, Tybee Island, Georgia 31328.

9.

Defendant Shirley Sessions is both an individual who resides within the city with an

address of 6 Moore Avenue, Tybee Island, Georgia 31328, and is a duly elected official of The

City of Tybee Island, Georgia, who holds office pursuant to the City’s charter and is subject to

the jurisdiction of this Honorable Court, and may be served with Summons, and Complaint in

this matter by delivering a copy of the same to their address.

10.

Defendant Shawn Gillen is both an individual who resides within the city with an address

of 605 2nd Avenue, Tybee Island, Georgia 31328, and is an employee of The City of Tybee

Island, Georgia, who holds office pursuant to the City’s charter and is subject to the jurisdiction

of this Honorable Court, and may be served with Summons, and Complaint in this matter by

delivering a copy of the same to their address.

11.

Defendant Jay Burke is both an individual who resides within the city with an address of

10 North Campbell Avenue, Tybee Island, Georgia 31328, and is a duly elected official of The

City of Tybee Island, Georgia, who holds office pursuant to the City’s charter and is subject to

the jurisdiction of this Honorable Court, and may be served with Summons, and Complaint in

this matter by delivering a copy of the same to their address.

12.

Defendant Monty Parks is both an individual who resides within the city with an address

of 1014 Jones Avenue, Tybee Island, Georgia 3132, and is a duly elected official of The City of

4
Tybee Island, Georgia, who holds office pursuant to the City’s charter and is subject to the

jurisdiction of this Honorable Court, and may be served with Summons, and Complaint in this

matter by delivering a copy of the same to their address.

13.

Defendant Barry Brown is both an individual who resides within the city with an address

of 1216 2nd Avenue, Tybee Island, Georgia 31328, and is a duly elected official of The City of

Tybee Island, Georgia, who holds office pursuant to the City’s charter, and is subject to the

jurisdiction of this Honorable Court, and may be served with Summons, and Complaint in this

matter by delivering a copy of the same to their address.

14.

Defendant Brian West is both an individual who resides within the city with an address of

16 10th Street, Tybee Island, Georgia 31328, and is a duly elected official of The City of Tybee

Island, Georgia, who holds office pursuant to the City’s charter and is subject to the jurisdiction

of this Honorable Court, and may be served with Summons, and Complaint in this matter by

delivering a copy of the same to their address.

15.

Defendant Michael “Spec” Hosti is both an individual who resides within the city with an

address of 50 Solomon Avenue, Tybee Island, Georgia 31328, and is a duly elected official of

The City of Tybee Island, Georgia, who holds office pursuant to the City’s charter and is subject

to the jurisdiction of this Honorable Court, and may be served with Summons, and Complaint in

this matter by delivering a copy of the same to their address.

16.

5
 Defendant Nancy Devetter is both an individual who resides within the city with an

address of 22 Taylor Street, Tybee Island, GA 31328, and is a duly elected official of The City of

Tybee Island, Georgia, who holds office pursuant to the City’s charter and is subject to the

jurisdiction of this Honorable Court, and may be served with in this matter by delivering a copy

of the same to their address.

17.

Chatham County is the proper venue for this action pursuant to O.C.G.A. §14-2-510

This Court has subject matter jurisdiction over Plaintiffs’ claims for declaratory judgment

and injunctive relief.

VENUE

18.

Venue is proper in the Superior Court of Chatham County because the City of Tybee

Island, Georgia is in Chatham County.

FACTS

The Enactment and Amendment of the STVR Ordinance

19.

On May 26, 2016, The City codified regulations governing the use of residential dwelling

units as accommodations for lodging for a period less than 30 consecutive days, a use commonly

referred to as a “short-term vacation rental” or “STVR”, for the first time when it adopted

Ordinance No. 2016-07B. See Ord. No. 2016-07B, attached as Exhibit A and incorporated herein

by reference.

20.

6
 The City has amended its STVR Ordinance no less than eight (8) times since adoption,

through passage of the following: Ord. 16-2017-B (December 19, 2017); Ord. 09-2019 (May 29,

2019); Ord. 2019-15 (November 11, 2019); Ord. 2020-02 (February 27, 2020); Ord. 2021-01

(January 28, 2021); Ord. 23-2021 (September 9, 2021); Ord. 2021-29 (November 10, 2021); and

Ord. 07-2022 (June 23, 2022). See Exhibit B, compilation of amendments to the STVR

Ordinance, incorporated herein by reference.

21.

The City’s STVR Ordinance and the amendments thereto were enacted consistent with

the City’s municipal authority and legislative discretion, pursuant to the Constitution of the State

of Georgia and the City’s Charter. See Georgia Constitution of 1983, Art. IX, Sec. II, Para. II.

22.

The City’s stated purpose and intent in enacting its STVR Ordinance was “to establish

regulations for the use of residential dwelling units as short-term vacation rentals and to ensure

the collection and payment of hotel/motel fees and occupation tax certificate fees.” Sec. 34-

260(a).

23.

The City defines “Short-term Vacation Rental” as “an accommodation for transient

guests where, in exchange for compensation, a residential dwelling unit is provided for lodging

for a period of time less than thirty consecutive days. Such use may or may not include an on-site

manager. For the purposes of this definition, a residential dwelling shall include all housing types

and shall exclude bed and breakfast accommodations as they are defined by the City of Tybee’s

Land Development Code. This is also identified as ‘STVR’”. Sec. 34-260(b).

24.

7
 The STVR ordinance requires any person who wishes to engage in the city-defined

“Short-term Vacation Rental” use to first obtain an occupation tax certificate and register each

residential dwelling to be used as an STVR. Sec. 34-261(a).

25.

The City collects detailed information for each residential dwelling that is to be used as

an STVR, including: Address and PIN; owners’ names, addresses, emails and telephone

numbers; number of bedrooms, occupancy, and off-street parking spaces; name, address, and

telephone number of agent or emergency contact if applicable; proof of liability insurance; and

“any other information” as deemed necessary by the city manager or his or her designee.

26.

Annual registration is required to continue the use. Sec. 34-261. Sec. 34-261.

27.

Payment of a “Registration Fee” is required initially and with each annual registration,

along with payment of the required occupation tax each year. Sec. 34-262.

28.

Each residential dwelling registered for the STVR use is issued a unique property

identification number. Sec. 34-262(b); Sec. 34-265.

29.

Each STVR applicant is charged an initial regulatory fee based upon the occupancy of the

property to which the STVR application applies.

30.

Each STVR unit is also subject to an annual regulatory fee. Sec. 34-262.

31.

8
 In addition to the regulatory fee, each applicant is charged an additional “occupancy fee”

and/or “occupation tax annually, also based upon the occupancy of the property to which the

STVR application applies.

STATE LAW LIMITS ON MUNICIPAL POWER

32.

The City’s power to regulate and tax STVR Owners is necessarily limited by the State of

Georgia, from which said powers are derived:

Under OCGA § 36-35-3(a), municipal corporations have the power to adopt only
clearly reasonable ordinances, resolutions, or regulations ... for which no
provision has been made by general law and which are not inconsistent with the
Constitution or any charter provision applicable thereto. Municipal ordinances
inconsistent with a city's charter are invalid. A grant of power to a municipal
corporation must be strictly construed, and any reasonable doubt concerning the
existence of a power is resolved by the courts against the municipal corporation.
All municipal charters are strictly construed, and... powers which are not
expressly, or by necessary implication, conferred upon the corporation cannot be
exercised by it. Moreover, any discretion left to the municipal corporation must be
exercised in good faith.

Monticello, Ltd. v. City of Atlanta, 499 S.E.2d 157, 231 Ga.App. 382 (Ga. App. 1998) (internal

citations and punctuation omitted).

33.

The Georgia General Assembly is empowered to limit a city’s municipal authority, and

preempt local ordinances. “The doctrine of state preemption is based on the concept that statutes

of the state legislature control over county (or city) ordinances. [S]tate law may preempt local

law expressly, by implication, or by conflict.” Sturm, Ruger & Co., Inc. v. City of Atlanta, 253

Ga.App. 713, 717-718, 560 S.E.2d 525 (2002)

O.C.G.A. § 36-74-30(b) Preempts Tybee Ordinance Secs. 34-260 et seq.

9
 34.

O.C.G.A. § 36-74-30(b) is a statute validly enacted by the General Assembly. The statute

is within the legislative discretion of the General Assembly. See Georgia Constitution of 1983,

Art. III, Sec. IV, Para. I.

35.

O.C.G.A. § 36-74-30(b) became effective on July 1, 2003, was therefore in effect at the

time the City enacted Ordinance No. 2016-07B, and it remains in effect today.

36.

O.C.G.A. § 36-74-30(b) provides: “No local government is authorized to perform

investigations or inspections of residential rental property unless there is probable cause to

believe there is or has been a violation or violations of applicable codes, and in no event may a

local government require the registration of residential rental property. Conditions which

appear to be code violations which are in plain view may form the basis for probable cause.

O.C.G.A. § 36-74-30(b) (emphasis added).

37.

The City’s STVR licensing and registration scheme codified at Secs. 34-260 et seq.

(“STVR Ordinance”) requires operators to register and obtain a separate license for each

residential dwelling rental property it operates.

38.

The STVR Ordinance requires operators to re-register each residential dwelling rental

property annually.

39.

10
 Detailed information is collected by the City for each residential dwelling to be used as

an STVR.

40.

A unique identification number is issued for each residential dwelling to be used as an

STVR.

41.

O.C.G.A. § 36-74-30(b) directly eliminates the City’s legislative authority to pass an

ordinance requiring the registration of residential rental property.

42.

The City’s STVR Ordinance requires the registration of residential rental property.

43.

The General Assembly passed O.C.G.A. § 36-74-30(b) to address municipal authority in

the field of residential rental property registration.

44.

“The practical effect of the preemption doctrine is to preclude all other local or special

laws on the same subject.” Sturm, Ruger & Co., Inc. v. City of Atlanta, 253 Ga.App. at 718.

45.

As O.C.G.A. § 36-74-30(b) preempts the STVR Ordinance and the Ordinance is therefore

invalid and unenforceable.

O.C.G.A. § 48-13-9 Preempts the City’s STVR Regulatory Fee Requirement

46.

11
 O.C.G.A. § 48-13-9(a) is a statute validly enacted by the General Assembly. The statute

is within the legislative discretion of the General Assembly. See Georgia Constitution of 1983,

Art. III, Sec. IV, Para. I.

47.

O.C.G.A. § 48-13-9(a) provides: A local government is authorized to require a business

or practitioner of a profession or occupation to pay a regulatory fee only if the local government

customarily performs investigation or inspection of such businesses or practitioners of such

profession or occupation as protection of the public health, safety, or welfare or in the course of

enforcing a state or local building, health, or safety code, but no local government is authorized

to use regulatory fees as a means of raising revenue for general purposes; provided that the

amount of a regulatory fee shall approximate the reasonable cost of the actual regulatory activity

performed by the local government. O.C.G.A. § 48-13-9(a) (emphasis added)

48.

O.C.G.A. § 36-74-30(b) provides: “No local government is authorized to perform

investigations or inspections of residential rental property unless there is probable cause to

believe there is or has been a violation or violations of applicable codes…” O.C.G.A. § 36-74-

30(b) (emphasis added).

49.

O.C.G.A. § 48-13-9(a) directly eliminates the City’s legislative authority to pass an

ordinance requiring the payment of a regulatory fee by a business or practitioner the City does

not customarily investigate or inspect.

50.

12
 The City does not customarily investigate or inspect residential dwellings used as

STVRs.

51.

O.C.G.A. § 36-74-30(b) directly eliminates the City’s legislative authority to pass an

ordinance requiring investigation or inspection of residential rental property.

52.

“Short-Term Vacation Rentals” are “residential dwellings” that are rented by the City’s

own definition. See Tybee Code, Sec. 34-260.

53.

The General Assembly passed O.C.G.A. § 36-74-30(b) to address municipal authority in

the field of residential rental property investigation and inspection.

54.

The General Assembly passed O.C.G.A. § 48-13-9(a) to address municipal authority to

charge regulatory fees.

55.

As O.C.G.A. § 36-74-30(b) and O.C.G.A. § 48-13-9(a) preempt the STVR Ordinance and

the Ordinance is therefore invalid and unenforceable.

COUNT ONE

Declaratory Judgment Under O.C.G.A. §§ 9-4-1 et seq.

56.

Plaintiff incorporates by reference the preceding paragraphs numbered 1 through 55.

57.

13
 “In cases of actual controversy, the respective superior courts of this state have the

power, upon petition or other appropriate pleading, to declare rights and other legal relations of

any interested party petitioning for such declaration, whether or not further relief is or could be

prayed[.]” O.C.G.A. § 9-4-2(a).

58.

An action for declaratory judgment is a proper vehicle to determine the validity of a

municipal ordinance and to seek prospective relief from the enforcement of an invalid and

unconstitutional ordinance. O.C.G.A. § 9-4-7(b); City of Rincon v. Ernest Communities, LLC,

356 Ga.App. 84, 86, 846 S.E.2d 250 (2020); Dawson County v. Dawson Forest Holdings, LLC,

357 Ga.App. 451, 458, 850 S.E.2d 870 (2020); Lathrop v. Deal, 301 Ga. 408, 444, 801 S.E.2d

867 (2017).

59.

The STVR Ordinance is preempted by O.C.G.A. § 36-74-30(b), which provides in

relevant part: “in no event may a local government require the registration of residential rental

property.” O.C.G.A. § 36-74-30(b).

60.

The STVR Ordinance is also preempted by O.C.G.A. § 48-13-9(a), which provides in

relevant part:” A local government is authorized to require a business or practitioner of a

profession or occupation to pay a regulatory fee only if the local government customarily

performs investigation or inspection of such businesses or practitioners…”, and O.C.G.A. § 36-

74-30(b), which provides in relevant part: “No local government is authorized to perform

investigations or inspections of residential rental property unless there is probable cause…”

61.

14
 The Ordinance is therefore invalid and unenforceable.

62.

This case involves an actual controversy of a justiciable nature between the parties

concerning their respective rights and legal relations as governed by the City’s STVR Ordinance.

63.

A declaratory judgment by the Court, pursuant to O.C.G.A. §§ 9-4-1 et seq., that the

Ordinance is invalid and unenforceable would terminate the uncertainty or controversy giving

rise to this civil action.

64.

Plaintiffs need intervention by the Court to settle and afford relief from uncertainty and

insecurity with respect to its rights, status, and legal relations with respect to the Ordinance, and

the ends of justice require that the declaration be made.

COUNT TWO

Injunctive Relief

65.

Plaintiffs incorporates by reference the preceding paragraphs numbered 1 through 64.

66.

The individual members of the city council of the City of Tybee Island, Georgia, are

imbued, as a body, with all the powers of the government of the City, and therefore authorized to

take action pursuant to and otherwise exercise said powers. See Charter of the City of Tybee

Island, Georgia, Secs. 1.14 & 2.16.

67.

15
 The City, through the individual council members, acting as a body, is authorized to take

certain actions, including:

“(3) Building regulation. To regulate and to license the erection and construction of

buildings and all other structures; to adopt building, housing, plumbing, electrical, gas, and

heating and air conditioning codes; and to regulate all housing and building trades;” […]

“(22) Penalties. To provide penalties for violation of any ordinances adopted pursuant

to the authority of this charter and the laws of the State of Georgia;” […]

“(43) Other powers. To exercise and enjoy all other powers, functions, rights, privileges,

and immunities necessary or desirable to promote or protect the safety, health, peace, security,

good order, comfort, convenience, or general welfare of the city and its inhabitants; and to

exercise all implied powers necessary or desirable to carry into execution all powers granted in

this charter as fully and completely as if such powers were fully stated in this charter; and to

exercise all powers now or in the future authorized to be exercised by other municipal

governments under other laws of the State of Georgia; and no listing of particular powers in this

charter shall be held to be exclusive of others, nor restrictive of general words and phrases

granting powers, but shall be held to be in addition to such powers unless expressly prohibited to

municipalities under the constitution or applicable laws of the State of Georgia;” […]

See Charter of the City of Tybee Island, Georgia, Secs. 1.11.

68.

O.C.G.A. § 36-74-30(b) and O.C.G.A. § 48-13-9(a) preempt the STVR Ordinance and

the Ordinance is therefore invalid and unenforceable.

69.

16
 Plaintiffs pray for interlocutory and permanent injunction of the prospective enforcement

by the members of the City Council, in individual capacities, of the STVR Ordinance pursuant to

O.C.G.A. § 9-11-65 in accordance with the ruling of Dawson Cnty. Bd. of Comm'rs v. Dawson

Forest Holdings, LLC, 850 S.E.2d 870, 357 Ga.App. 451 (2020).

Wherefore, Plaintiffs demands judgment as follows:

1) that process issue as provided by law;

2) that the Court order a trial by jury as to all issues so triable;

3) that the Court enter temporary, preliminary and permanent injunctive relief

barring Defendants from enforcing the provisions of City of Tybee Land

Development Code sec.34-260, 34-261, 34-262, 34-265 ;

4) that the Court settle the actual and justiciable controversy between the parties and

enter a declaratory judgment to the effect that the STVR Ordinance is null and

void as a matter of law because it is preempted by O.C.G.A. § 36-74-30(b) and

O.C.G.A. § 48-13-9(a);

5) that the Court award Plaintiff an award of costs and expenses of litigation,

including reasonable attorney’s fees; and

6) that the Court grant Plaintiff such other and further relief as the Court deems

appropriate.

Respectfully submitted, this 5th day of October, 2022.

[SIGNATURE ON FOLLOWING PAGE]

17
 J. Patrick Connell
State Bar Number 353316
D. Jay Thaw, Jr.
State Bar Number 479033
Connell, Thaw & Ruberti, LLC
P.O. Box 8854
Savannah, GA 31401
Phone: (912) 470 7455
[email protected]
[email protected]

18