South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Court rules against disputed Kiawah beach project
December 11th, 2014

COLUMBIA, SC — One of South Carolina’s most intense environmental battles during the past decade was decided Wednesday in the state Supreme Court, which ruled that coastal developers could not build a massive seawall on a flood-threatened sand spit near the ocean south of Charleston.

The seawall, proposed for a salty river at the back of the Kiawah Island spit, was intended to protect an area where about 50 high-end homes were planned on unstable property.

According to plans, the seawall would have been 9 football fields long and fortified by piles of rock along the Kiawah River. All told, the structure would have been about 40 feet wide and covered much of the sandy riverside shoreline that draws kayakers and beachcombers.

Amy Armstrong, the lead attorney challenging the seawall on behalf of conservation groups, called the ruling “fantastic’’ and a win for people who use public beaches.

“We can celebrate this,’’ said Armstrong, who is with the S.C. Environmental Law Project.

Attempts to reach Trenholm Walker, a Charleston lawyer representing the developers, were unsuccessful. Armstrong and Dana Beach, director of the S.C. Coastal Conservation League, said they can’t see how the homes could be built without the seawall that developers said they needed.

Beach said the Captain Sam’s area is too prone to erosion to develop, but is naturally beautiful and should be made available for the public to enjoy. Part of the spit is no wider than 450 feet. He said he plans to approach the developers, Kiawah Development Partners II, about selling an easement to the land so that it can remain natural.

“This further illustrates the obvious reality that there are places where there should be no building,’’ Beach said in an interview with The State newspaper. “These places are too unstable, too dynamic and too dangerous. Maybe the high profile of this case will cause more people to think about where they are buying and where they are building on the coast.’’

Wednesday’s 3-2 decision by the Supreme Court follows years of legal skirmishes between the league and Kiawah Development Partners II. The Supreme Court has made three different decisions on the case. The dispute stems from an appeal of a state Department of Health and Environmental Control decision against the seawall and rock revetment.

At one point, the dispute grew so hot that Armstrong and other conservationists said they were denied access to a boat launch on Kiawah Island not far from the project site. The development plan dates to at least 2005.

Wednesday’s Supreme Court decision hammered a lower court ruling that favored the developers. The court overturned the Administrative Law Court decision because it said:

• The public interest was not addressed properly in allowing for the seawall. The state’s coastal zone management law requires public tidelands to be for maximum public benefit, but the law court did not adequately examine whether the public would benefit from building the seawall.

“It was clear that only the developer, not the public, would benefit from the construction of this enormous bulkhead and revetment,” the court said.

• The lower court did not consider the impacts the seawall could have on the surrounding environment, not just the riverside beach.

• The lower court wrongly concluded that building the seawall and revetment would not affect public access to the beach along the river. It said the lower court did not look at whether a better alternative was to leave the area in a natural state, without the seawall.

The majority opinion repeatedly discussed the importance of the coastal environment to the public and the significance of Captain Sam’s Spit. The spit not only is near a county park popular with the public, but the area is frequented by birds, dolphins and other wildlife.

“Captain Sam’s Spit and the public tidelands along its margins are of great importance to the people of South Carolina,” the court said. “The tidelands present a bounty of benefits to the people ranging from environmental to recreational.

“Unlike much of our state’s coastline which is now armored and unnatural, the spit remains untouched by human alteration. The area, particularly the pristine sandy beach, is undoubtedly one of this state’s natural treasures.”

The area to be developed also is unstable. It has built up at times, but at other times has eroded. At one point in the 1940s, the spit did not exist because of erosion.

Wednesday’s Supreme Court ruling, in reversing the Administrative Law Court decision to approve permits for the seawall, technically sends the matter back to the lower court for review. But Armstrong and Beach said the high court’s decision was so resounding the lower court won’t have much room to rule differently.

The court’s ruling was made as battles are increasingly erupting over how to protect valuable beachfront real estate from rising seas and at the same time how people can develop land near the ocean. Last spring, developers of Captain Sam’s Spit asked the Legislature not to ban all development farther out on the beach. Lawmakers later refused to pass a bill to stop encroaching development on some beaches.

On Thursday, the S.C. Department of Health and Environmental Control board will consider reducing a $750,000 fine against a condominium association at the Isle of Palms, where an illegal seawall was built to protect buildings from the ocean. A DHEC committee indicated last month the fine would be reduced.

Seawalls are banned on oceanfront beaches in South Carolina, but allowed if they meet certain conditions along marshes and rivers just off the seashore, like in tidelands around Kiawah Island. Last spring, however, state legislators approved a new seawall on the beach at Debordieu near Georgetown, breaking with a quarter century of state policy against oceanfront seawalls.

Beach, whose group led the fight against the seawall and development, said the court decision is a victory for protecting the state’s coastline from unwise development. He praised Supreme Court Justice Kaye Hearn’s majority opinion.

“This is a monumentally important decision not only because it protects Captain Sam’s Spit, which Justice Hearn described as ‘one of the state’s natural treasures,’ but also because it broadly affirms the public’s primary interest in the marshes and tidelands that define and enrich the Lowcountry,” Beach said in an afternoon news release.

“Besides the positive implications of this ruling for wildlife and recreation, it also protects taxpayers from having to bail out the developers, who sought to build 50 houses on a dynamic, unstable sandbar. This is the end of the road for this ill-conceived project, and now is the time for all of us to work together to achieve permanent protection for this beautiful and unique place.”

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