South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

SCELP Lawyers Complete Trial in Kiawah Land Dispute
Posted: January 31, 2014

In August, 2013 the Kiawah Island Property Owners Group (KPOG) and the Inlet Cove Homeowners Association (Inlet Cove) sought assistance from the South Carolina Environmental Law Project (SCELP) to represent them as intervenors in a lawsuit filed by Kiawah Resort Associates (KRA/KDP II) against the Kiawah Island Community Association (KICA) concerning disputed title to land adjacent to Captain Sams Spit on Kiawah Island.

The matter stretches back 20 years. In 1994 the developer of Kiawah Island (KRA/KDP II) entered into a development agreement with the Town of Kiawah Island. Among other items, the agreement specified KRA/KDP II would transfer a 10-mile long “beachfront strip” consisting of “scenic dunes and high land” to the KICA to become “common property” for the benefit of all Kiawah Island property owners. The Developer drew up the deed and transferred the property to the Community Association in December, 1995. In 1994 the westernmost portion of Kiawah Island, known as Captain Sams Spit, was undevelopable due to South Carolina’s Coastal setback line regulations. As part of the 1994 Development Agreement it was also specified that Captain Sams Spit would remain as open space / park land and be transferred to the Community Association by January 1, 2008.

In 1997 the Developer was transferring some property in the middle of the island to a private entity when the Developer noted it had “inadvertently” included some land in the “beachfront strip” that it believed was not supposed to be included. At that time a representative of the Developer also alerted the Developer’s partners of a possible “error” at the west (Captain Sams) end, but the partners made no attempt to investigate the matter.

The 1999 update of the South Carolina beachfront setback line moved the line at Captain Sams Spit oceanward due to sand accretion along the beachfront. This action made a significant portion of Captain Sams Spit developable according to state regulations, though not necessarily a prudent option.

In 2005 the Developer and the Town of Kiawah Island entered into a second Development Agreement. In this agreement the Town gave the Developer the right to build houses on Captain Sams Spit now that building was permitted by state regulations. In return the developer agreed not to build a hotel near the Spit.

When the Developer was seeking a mortgage on the Captain Sams Spit property in 2007 the issue of a possible “error” with the western end of beachfront strip was again brought up to the Developer’s partners but, again, no serious attempt at investigation or resolution was made.

It was only in 2011, after having the area in question surveyed in anticipation of developing Captain Sams Spit, that the Developer became concerned with the land it had transferred to the Community Association in 1995 as part of the beachfront strip because that area was in fact a 4.62 acre parcel of land adjacent to Captain Sams Spit that the Developer desired to provide roadway access to the Spit.

Because the KICA Covenants preclude sale or transfer of any “common property” without an affirmative vote by 75% of property owners, KICA refused to deed the land back to the Developer. In 2013, the Developer filed suit for return of the property. Fearing their interests might not be best served by the Community Association since the Developer also sits on KICA’s board, KPOG and Inlet Cove sought to intervene in the suit to protect their rights to keep the parcel.

Despite objection from the Community Association to the intervention, SCELP attorney Amy Armstrong made a strong case before Master-in Equity Judge Mikell Scarborough who granted the intervention request.

The case went to trial in early December, 2013 during two full days of court hearings before Judge Scarborough. Amy Armstrong and Jessie White vigorously represented KPOG and Inlet Cove at trial arguing the language in the 1994 Development Agreement and in the deed, written and signed by the Developer, transferring the property to KICA is clear and unambiguous. Only because Captain Sams Spit became developable property subsequent to the 1994 Agreement and title transfer, they argued, did the property become an issue for the Developer who now wants it back.

Additionally, SCELP presented evidence on behalf of KPOG and Inlet Cove that the parcel is indeed valuable to Kiawah property owners if only for its natural beauty and sanctuary for wildlife.

Final orders from all three parties are due to be sent to the Court soon and an opinion is expected a few months thereafter.