South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

The new battle for Capt. Sam’s Spit; beach setback rule contested
March 25th, 2015

BY BO PETERSON

KIAWAH ISLAND — The regulatory line that restricts how close to a beach you can build might be moved to make way for a controversial road to Capt. Sam’s Spit.

A bill that would delay freezing the beach setback at its current point until 2021 has been approved by a S.C. House committee, but a vote on the House floor has been delayed and stakeholders directed to try to reach a compromise.

A Senate subcommittee in January unanimously approved a similar freeze without the delay, moving the bill to the full Senate Agriculture and Natural Resources Committee. But the subcommittee left open the option that changes could be made to it. So far the full committee has not acted.

The spit is a wildlife-rich, 150-acre sand strip along Capt. Sam’s Inlet between Kiawah and Seabrook islands. It was left undeveloped while most of the rest of the island was built on, and is now one of the few undeveloped barrier island spits the public has ready access to because of the adjacent Beachwalker Park.

Kiawah Partners requested the delay, continuing to fight to build the road across the spit’s narrow neck, in order to build 50 homes on high ground on the spit.

The setback line is the point where property owners are restricted from developing any closer to the beach. Under current rules, it has been periodically redrawn to allow for erosion and accretion. Because the beach has been accreting, or gaining sand, the company wants the freeze delayed until after the next redrawing.

“We believe a significant change to the existing law should be implemented in a fair way, with advance notice to all, rather than being applied retroactively,” said Bill Hindman, public relations consultant for the developer. “Kiawah Partners is in favor of the change to the law and objects only to its effective date.”

Conservation interests are battling to push through the freeze without delay. The original bill would have done that, but was modified in committee to include the delay after testimony from both development and conservation interests.

“It is clear that the date change is a direct result of the request from Kiawah Partners and their desire to develop Capt. Sam’s, a highly dynamic and vulnerable spit of sand,” said Merrill McGregor of the Coastal Conservation League.

Coastal waters and tidelands are a public trust owned by the state, she said. “It is now up to the Legislature whether or not to honor this and protect our coastline or give short-term benefit to the new owners of Kiawah at the long-term expense of citizens.”

Currently, the freeze would have little effect on beaches other than Kiawah. Only Sullivan’s Island and, to a lesser extent, Isle of Palms have any accreting beach. Neither town opposed the freeze at the hearing. An official from Isle of Palms asked to keep it from affecting beach renourishment.

Delaying the rule change is one of a number of battles Kiawah Partners and conservation interests are waging in an ongoing legal and legislative campaign to build or prevent building on Capt. Sam’s.

Like other inlet areas, Capt. Sam’s is continually reshaped by waves and wind. Currently, it is eroding along the riverbank while the beach across the neck is gaining sand.

It’s prized for conservation and recreation because its cape beach is a feeding ground that, at times, draws seabirds by the thousands. Its inlet beaches are part of a rare strand-feeding ground, where dolphins drive schools of baitfish onto the beach and jump up after them to feed.

For Kiawah Partners, the spit is one of few remaining undeveloped beachfront properties left on the largely gated resort island. Company representatives have said building would take place along only 20 acres, and 85 percent of the spit is slated to be put under conservation easement.

The state Supreme Court in December ruled against granting a permit for a seawall and revetment for the access road. The court returned the case to the state Administrative Law Court, where it’s one of three lawsuits regarding the development with hearings pending.

The freeze is among a number of proposed changes to coastal rules back before the Legislature, after earlier proposals stalled in 2013. The changes are the work of a panel and then an ad hoc stakeholders committee that met for a total of seven years to propose new coastal regulations, partly because legal challenges to the current setback rule undermined its effectiveness.

Among other legal actions, Kiawah Partners is suing the island homeowners association to reclaim the deed to 4½ acres that sit along the path of its proposed access road to the spit. How the lawsuit is decided could derail plans for the development or put the fate of the acclaimed Beachwalker Park further in jeopardy.

The company might have little choice but to drop plans or move the proposed road, which could impinge on current Beachwalker Park facilities.

Charleston County holds a long-term lease to the park granted by developers in 1976 as a concession to win approval of their plan. Little known is that the lease doesn’t provide land; it provides for 180 parking spaces and beach access.

The planned road effectively would run between the parking and the beach through a stretch of maritime forest now crossed by a park boardwalk.

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