Big Win on Captain Sams Spit. Third Time's the Charm?
Posted: April 18, 2018
On April 18, the S.C. Supreme Court dealt a striking blow to the Kiawah developers by reversing the Administrative Law Judge's authorization of the 2,513 foot long bulkhead along the banks of the Kiawah River at Captain Sams Spit! Kiawah Development Partners wanted this vertical wall and an associated revetment in order to facilitate the development of this fragile and dynamic 150-acre barrier island habitat.
The Supreme Court unanimously ruled that the ALJ's authorization of the bulkhead structure was erroneous and contrary to all of the evidence indicating that the structure would fail and would eliminate the existing public trust shoreline and its uses. The Court affirmed the authorization of the 270 feet of bulkhead and revetment only in front of the parking lot at Beachwalker Park. As for what happens next, it is possible that KDP could petition the Court for rehearing, but such rehearing is entirely discretionary and we believe unlikely given the strong language of the Opinion that you can download below.
In his concurring opinion, Justice Few wrote: "the majority states "the ALC erred by approving the construction of 2,513 feet of vertical bulkhead, without a revetment, because this structure is not supported by substantial evidence." However, it is not the structure that is unsupported by the evidence. The structure, if it is ever built, will be supported by sand. In the legal analysis, it is the ALC's finding—2,513 feet of bulkhead without a revetment satisfies the public benefit requirement of subsection 48-39-30(D)—that is not supported by substantial evidence."
More likely, KDP will double down on their permits for the steel sheet pile wall, road, water and sewer lines and other infrastructure in connection with the development. Judge Anderson held a 7-day trial in that case in August, and we are awaiting his ruling on this newer round of permits. While the Supreme Court's ruling undoubtedly set very valuable precedent applicable to this case, different legal standards apply to each, leaving the pending permits decidedly undecided.
Download available Supreme Court 4.18.18