South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Stick to beach setback deadline
October 29th, 2017

The Post and Courier Editorial Board

Some of South Carolina’s most beautiful property is also some of its most challenging. Oceanfront lots with commanding views of the Atlantic and birds-eye views of pelicans and piping plovers are in the line of fire when there is a major storm.

Or a minor storm, normal beach erosion and simple sea level rise.

But a state deadline to implement revised lines that determine how close to the ocean a house can be built do not need to cause additional angst for property owners or for the public.

Indeed, the lines, based on more recent data about erosion and water levels, can warn property owners or would-be owners about building on sites that have been underwater or are most vulnerable to being damaged by erosion.

A large number of people — particularly property owners whose houses used to be in zones approved for building but are soon to be outside of those zones, either partially or altogether — are protesting the process. They say the Nov. 7 deadline for comments and the Dec. 7 implementation date don’t give them enough time to assess the proposed changes.

Both U.S. Rep. Mark Sanford and Gov. Henry McMaster agree, and they have asked DHEC, the state agency charged with implementing the changes, to slow things down.

It is unclear how DHEC could delay the process since the Legislature specified that the changes need to be in place by the end of 2017. Certainly, the Legislature, while not in session, should be aware of public concern and let DHEC and the public know if lawmakers have any options.

But calls to postpone the implementation for a year are unnecessary. After all, property owners already have a year to appeal to the state and make a case showing that the new lines are misplaced.

And even if the state rejects their appeals, people who want to build or repair outside of the approved zones can apply for a special permit to do so. According to DHEC statistics, since 1997, 72 such permits have been sought, and 71 have been awarded. The one that was rejected was to build a structure larger than the 5,000-square-foot maximum allowed.

Some would say, reasonably, that the process is too lenient, not too strict. The reason for the lines is to protect the beach, the public and coastal property owners. That hasn’t changed.

The Legislature did change the process in one helpful way: While the lines will continue to be redrawn every seven to 10 years as required by law, they will never move seaward. That’s because what the ocean giveth, the ocean taketh away. A spot that is on accreted land this year might be a tempting place to build, but it could be under water in five years.

Building there could be devastating to the public as well as homeowners. Debris from damaged or flattened houses can litter the public’s beaches and make them unsafe. Cleanups are expensive. And when houses are too close to the water, they can change the flow of water and cause other properties to erode.

Amy Armstrong, executive director and general counsel for the South Carolina Environmental Law Project, points out that “the sky isn’t falling” for ocean real estate. Indeed, beachfront property values have increased significantly since setback lines were first implemented in 1991. And, she says, the adjustments that are to be used beginning in 2018 don’t take into account damage from Tropical Storm Irma, which might have pushed the line landward in some instances.

Rep. Sanford contends that property owners are still trying to recover from storm damage and haven’t had time to focus on the lines being moved.

Certainly, DHEC must not be an obstacle to people in such situations. Any scientific data on which the changes were based should be easily available for public perusal.

And if public input is persuasive enough, DHEC should consider delaying implementation of the new lines by three weeks — on Dec. 31 instead of Dec. 7.

Meanwhile, some stakeholders are wisely submitting letters during the comment period advising DHEC that they intend to weigh in after they have analyzed the data. And individuals can claim extenuating circumstances even without a catastrophic event.

But the law as written allows a year for protests, according to DHEC. Delaying the legislatively imposed implementation date — if it could be done — would permit construction to continue even when good science determines it is too risky for property owners and the public alike.

DHEC has been holding public meetings to get feedback. And while some people were unaware of it, the Legislature approved these line changes, and the Dec. 31 deadline, back in the spring.

The state has wisely taken the stance that a general retreat landward for oceanfront construction is beneficial to the public, the state and property owners. A diverse committee of business and real estate interests, environmental groups, public servants and others worked on the issue for two years to come to a meeting of the minds.

The recommended deadline is not an unreasonable target. It is time to move forward.

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