As sea levels continue to rise, and our beaches continue to erode, it was only a matter of time before we would face the dilemma of beachfront houses becoming permanently stranded on the active beach, or "beached" houses.
Deteriorating houses on the public beach are a threat to beachgoers and marine life alike. Siding, pipes, wires, appliances and other structural components are or will be slowly making their way into the ocean, potentially causing harm to people recreating in and on the beach, as well as marine life that may ingest these components. Moreover, the long-term implications of houses deteriorating on the beach and obstructing public use are significant, particularly given the fact that nearly all of SC’s beaches are eroding while sea levels are rising.
We have been contacted by the Harbor Island Owners Association (HIOA) regarding several houses that are presently on the active beach below the mean high water mark on Harbor Island. Siding, appliance fixtures, wires, and broken levels of porches are falling from the structures onto the active beach. These houses are, obviously, uninhabitable due to inundation by seawater, and have now become obstructions and impediments on the public beach, i.e., the wet beach below mean high water, as well as a hazard to humans and marine life.
"Beached" Houses Threaten Beachgoers and Marine Life
SCELP has been working on issues impacting Harbor Island – a severely erosion-threatened private gated community in Beaufort County – for the past several years. Our first case was a successful Endangered Species Act action seeking removal of plastic seawalls (Wave Dissipation Systems) from that beach, because the structures were blocking sea turtle nesting. Then, we represented the Coastal Conservation League in challenging a permit to locate a beach house entirely seaward of the jurisdictional baseline. That case resulted in a favorable settlement.
Now we are dealing with "beached" houses. Deteriorating houses on the public beach are a threat to beachgoers and marine life alike. Siding, pipes, wires, appliances and other structural components are or will be slowly making their way into the ocean, potentially causing harm to people recreating in and on the beach, as well as marine life that may ingest these components. Moreover, the long-term implications of houses deteriorating on the beach and obstructing public use are significant, particularly given the fact that nearly all of SC’s beaches are eroding while sea levels are rising.
Harbor Island homes after Hurricane Matthew.
Taking Action
On September 21, 2018 we formally asked the Attorney General to commence an action for removal of seven houses. The State could take action by either (1) issuing removal orders to the homeowners or (2) removing the houses and then seeking to recover the removal costs from the owners; but to date it hasn't done either.
The State notified HIOA that it did not intend to take action on November 28, 2018. The State clearly has authority to remedy this problem under both the public trust doctrine and the Public Waters Nuisance Abatement Act and if it does not step up to protect public property and our beaches we will.
On November 29, 2018 we filed a lawsuit asking the Beaufort County Circuit Court to order the State to remove six of these houses that have become located on the beach below the mean high water mark. You can read our complaint below.
With this initiative we aim at establishing a new and very significant precedent: the State’s mandatory duty to remove structures obstructing access to public trust resources and causing environmental harm to those resources. Such precedent would be extremely valuable in both the short and long term as not only we want to deter further bad choices on the part of homeowners, but also impress upon the State that the more of these houses it allows to be built too close to the ocean, the more they will be opening themselves up to exposure once those houses are on the active beach.
On January 25, 2019, we filed an amended complaint asking the Court to declare that those six houses are a public nuisance and must be removed. The new claim is brought under the Public Waters Nuisance Abatement Act (Act), which authorizes removal of “structures located on the public waters of the State which are used as places of temporary or permanent habitation, dwelling, sojournment, or residence.” We amended the complaint to allege that the Act requires removal of the houses at the owner’s expense, after giving the Attorney General 90 days’ notice to take action under the law on September 21.
Update
Following the demolition of one of the houses, we consented to the dismissal of a defendant on May 21, 2020. Recently, the owners of another house entered into a consent order and agreed to move their structure off the public beach within the next few months. The remaining houses are still on the public beach and the ocean continues to flow underneath them. We will continue to pursue removal of the remaining three houses as they pose a threat to those who seek to enjoy a walk along the beach and to the ocean as the houses continue to deteriorate.
