South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Folly Beach will enter legal effort to determine who owns fast-eroding land
February 12th, 2019

By Chloe Johnson, The Post & Courier

Folly Beach will join a legal challenge that could disrupt efforts to build on property vulnerable to being washed over by the ocean between sand replacement projects.

In a unanimous decision on Monday night, the city voted to join with the Coastal Conservation League, the nonprofit Save Folly Beach and five city residents in the suit.

“It’s to protect the beach for the citizens of the state of South Carolina and the visitors,” Mayor Tim Goodwin told the Post and Courier.

One landowner named as a defendant in the suit, Stephen Rawe, declined to comment in detail on the action when he was informed of it on Monday night. But he was not heartened by the information.

“That’s not good news,” he said.

The suit is not seeking financial damages, but rather clarity from the courts on Folly’s “super” beachfront lots. It argues that the lots shouldn’t be developed just because a renourishment project has helped stabilize land by returning sand to the beach, as happened last year. After that work, a spate of property owners starting pursuing the necessary steps to build, according to a draft of the legal pleading provided to the Post and Courier.

The document is expected to be submitted on Tuesday.

It argues that parts of that property can’t be privately owned at all, because any land seaward of the mean high water line on a beach is considered state-owned under a legal principle called the public trust doctrine.

Further, when renourishment happens, that doesn’t erase the natural mean high water line — it’s what other states would consider an “avulsion,” a sudden accumulation of sand that doesn’t change what’s public land and what’s private land, said Michael Corley, of the S.C. Environmental Law Project.

That’s not a concept recognized currently in South Carolina law, said Corley, who is the lead attorney on the Folly Beach suit. If a court does agree with the reasoning, it could effectively freeze development on many of the super beachfront properties, because it would remove part of more of the lots from private ownership.

“The riskiest beachfront development I’ve seen in my professional life was happening, and we knew there needed to be some legal intervention to prevent that,” he said.

Rawe said that the east end of Folly, where he owns land, was at one point growing as sand accreted there. Under the public trust doctrine, accreted land moves the property line seaward — giving private owners more land.

But since roughly 2001, Rawe said, the east end has been steadily eroding. The area is not included in the federally-funded renourishment work on the rest of the island, so he and others there have to pay to be included in work like the 2018 sand replenishment.

After that work was done, environmentalists challenged Rawe’s septic permit for his land. He said at the time he had no immediate plans to develop. The permit was ultimately upheld by the S.C. Department of Health and Environmental Control, Rawe said.

Separate of the suit, Folly is considering regulations to encourage land owners to avoid placing septic tanks, which service most of the island, in places where they might one day be covered by the ocean.

Beachfront property has long been a contentious battleground for landowners who want to protect their individual rights and policy makers or environmental groups concerned with preserving the public beach.

It was a conflict over land on the Isle of Palms that led to one of the most important U.S. Supreme Court precedents in property law — Lucas v. S.C. Coastal Council. That case determined that if regulations make private property valueless, it constitutes a “taking” of the land for which the owner would have to be compensated.

But SCELP’s approach in Folly effectively sidesteps Lucas, which serves sometimes as a boogeyman to local governments weighing land use regulations. If part or all of the super beach land is part of the public trust, it was never “taken” from a property owner because it never belonged to them to begin with, Corley said.

Folly serves, he added, as a “canary in the coal mine” for the types of issues that will likely face other municipalities down the road as beach erosion continues and the sea level continues to rise. The beach town erodes so quickly in part because of the jetties around Charleston Harbor, which disrupt the flow of sand that might otherwise naturally replenish the island’s shore.

For some residents, the case provides the potential for not just a wonky legal precedent, but a safeguard to development that they worry could land in the ocean. Troy Bode, who lives near the end of East Arctic Avenue, signed on as a plaintiff in the suit because he said the prospect of new development on a sandy lot near his home, which has already eroded since the renourishment last year, is “ludicrous.”

If homes are built on the super beachfront lots near Bode’s home, he said, “What’s it going to be like in another year?”

“There won’t be any beach for anybody.”

Source (external link)