Folly Super Beach Front Lots - Avulsion
At a time when oceanfront structures are imperiled on a large scale in our state, pursuit of development even closer to the sea should be an impossibility. Yet, incentives remain in place, both legally and economically, to encourage pursuit of quick profit through unsustainable oceanfront development. The results are often disastrous, both for the unlucky purchaser of such development and, especially, for anyone who enjoys using the public beach in the vicinity.
In no place on our coast is this crisis more apparent than on Folly Beach.
As a result of both natural and manmade forces, Folly Beach is one of the most sand‐starved and erosive beaches on South Carolina’s coast. This history of erosion has led to an unusual phenomenon and a new descriptive term: the “superbeachfront lot.” Especially on the northeast end of Folly, residential lots are platted seaward of existing oceanfront development. These relic properties were platted in Folly’s distant past but were claimed over time by erosion and sea level. While lot lines exist for these properties on paper, those lines typically encompass only ocean, wet beach, and/or oceanfront sand dunes.
Remarkably, though, efforts are now underway to develop a number of these ocean‐bound properties, precipitated by the latest major renourishment. Folly Beach as it exists today is reliant on a repeating cycle of renourishment in order to protect existing development and the public beach. Like all renourishment projects, those on Folly are of limited durability. The project builds the elevation of the shoreline, temporarily converting ocean and beach into dry ground, until natural forces eventually reclaim the renourishment sand. In the wake of Folly’s late‐2018 renourishment, several registered owners of superbeachfront property have stepped forward to claim ownership of newly created dry ground and to pursue development before the inevitable reversion to beach and ocean.
In response, we have engaged with the City of Folly Beach, the Coastal Conservation League, Save Folly Beach, and a group of local homeowners to develop a legal strategy to defeat these development efforts. In the absence of constructive legislative action to address this dilemma, our environmental laws must be wielded in new and creative ways in order to protect the public interest.
Our lawsuit challenges ownership of new land created artificially through renourishment, arguing that artificial renourishment cannot create private land from what was in public ownership. Under South Carolina’s Public Trust Doctrine, the state owns all land below the average highwater mark and keeps this land in trust for the benefit of all the citizens of the state. When private property borders a shoreline, the boundary between public trust property and private property is not fixed. Rather, our Supreme Court has recognized that beachfront property owners possess title to land especially vulnerable to erosion and take title “at risk of loss to the State by natural forces.”
In short, private properties bordering the beach and ocean will contract and expand as the average high tide mark shifts over time through natural forces. The lawsuit claims that superbeachfront property lost to the ocean over time is not put back in private hands as a result of an artificial renourishment.
The critical distinction under the law is between erosion, accretion, and avulsion. Erosion and accretion are natural, gradual processes through which sand is either lost or gained from the beach. These normal processes shift the boundary between private property and public trust property. In contrast, avulsions are singular events through which massive amounts of sand are gained or lost all at once. Avulsions, whether causing a loss of land (like a hurricane) or an increase in land (like a renourishment) do not shift the boundary between public and private property.
While the law of avulsion is well established in other states, no South Carolina appellate court has ever been asked to determine the ownership status of beachfront land created by renourishment. This case seeks to affirm an important principle of law that will be critical in protecting our public beaches, not just on Folly but all along our coastline.
In January 2020, a Charleston judge heard motions on whether developers can build on superbeachfront lots.
Unfortunately, in May 2020, our case was dismissed by the circuit court, but we haven't given up our resolve. Litigating novel principles of law is extremely difficult, especially when that law relates to complex concepts of science and engineering, like here.
On October 21, 2020, we took our fight to the court of appeals to prevent these risky and unwise oceanfront structures from being constructed on public beaches.
SCELP stands eager to move forward with appellate litigation, which is the venue in which most successes over the history of our organization have been secured.
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One of Folly Island's "super beach front" lots before the August 2018 renourishment