South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

Folly Beach land swap raises concerns about city’s environmental lawsuit
March 28th, 2019

By Chloe Johnson, The Post and Courier

FOLLY BEACH — A proposed beachfront land swap here between the city and two property owners has come into public view at an awkward moment — just as the city argues in a lawsuit that at least some of the land in question can’t be privately owned at all.

Negotiations surrounding two mostly sandy parcels at 1217 and 1219 E. Arctic Ave. started in January, Folly Beach officials said, as the property owners there were granted a permit to build a seawall.

The two pieces of land don’t face an asphalt road, but they are next to a public right of way remaining from an earlier time when the paved street extended all the way to East 13th Street.

City Administrator Spencer Wetmore and Mayor Tim Goodwin said negotiations began in an attempt to keep the new seawall as far from the ocean as possible. City officials suggested giving the remaining 50-foot right of way to the private property owners if they moved the opposite edge of their parcels away from the ocean by 50 feet.

The situation has sparked controversy on Folly, in part because of the pending lawsuit, filed about a month after land swap talks began. The legal action could set precedent for beachfront land across South Carolina. But the land swap has put the city in conflict with some fellow plaintiffs on the suit, including Troy Bode, who lives near the end of East Arctic.

“It’s contradictory to everything that Folly’s been doing as far as saving the beach and the marshes,” he said. “At a minimum they should let the avulsion lawsuit play out.”

The suit does not seek damages but argues a novel legal point — that any land seaward of the mean high waterline should be considered public property, and that a sudden addition or subtraction of sand, or avulsion, doesn’t change that line.

On the other hand, “it could not have implications if the lawsuit isn’t successful, and then we’re back to a seawall at the very front (of the properties),” Wetmore said, adding that the land swap “is a bird in the hand.”

“In a compromise, nobody’s happy,” Goodwin said. “Pigs get fat, and hogs get butchered.”

Since City Council initially approved closing the right of way in a meeting last month, residents wary of beachfront development have started an online petition opposing the move, which had more than 160 signatures on Thursday afternoon.

Opponents are primarily concerned that the agreement will make it easier to develop the properties, though city officials say that the parcel at 1219 E. Arctic would be merged with the property behind it, and there would not be enough space for another house. The petition also notes that development could block nearby homeowners’ beach views.

Billy Hennessy, who owns the property at 1217 through the holding company Debbie’s Folly LLC, said he didn’t have any immediate plans to develop his property. The parcel does have rights to install a septic system, however, meaning it has already cleared one of the biggest hurdles to development.

“I bought that property in 1999 and have done nothing to it but walk on it,” Hennessy said.

Hennessy’s land has been used, however, as a staging area for equipment in beach renourishment and groin rebuilding projects.

It’s unclear how the deal might affect the ongoing lawsuit. Attorney Michael Corley of the S.C. Environmental Law Project, which filed the complaint in February, said the land swap is a city matter, and his organization is not involved.

He has gotten several calls, he said, pointing out the contradiction of Folly Beach simultaneously negotiating a deal with land owners as they argue in court that the land of East Arctic can’t be held privately.

“That would be the troubling aspect. That’s what a lot of people say,” Corley said. “That’s not what I say but that’s what people have inquired of me. ... We’re staying out of it (the land swap) entirely.”

Ultimately, he said, one or both of the parcels could be removed from the legal action if the deal goes through.

“Even though me as a nerdy lawyer has the greater legal principle in mind, if this results in the donation of vulnerable beachfront property, then that’s a positive,” Corley said.

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