South Carolina Environmental Law Project

Lawyers for the Wild Side of South Carolina

These SC houses are falling into the ocean as beaches erode. Who should remove them?
October 11th, 2019

By Chloe Johnson, Post & Courier

Almost a year on, a legal fight to set the road map for how South Carolina deals with imperiled beach houses has stalled.

The challenges that have popped up in the case beg the question of whether the state can really be compelled to deal with vulnerable oceanfront properties as sea levels rise and storms intensify.

At the same time, recent trends in state policy have moved South Carolina’s position from one of “retreat” — gradually encouraging homeowners to move away from the shore — to one of preservation, or doing everything possible to keep homes in place.

The legal case concerns five homes on Harbor Island, a gated retirement and vacation community at the eastern edge of Beaufort County. As parts of the island’s beach have eroded, the houses are now routinely underwashed by the ocean and have largely been left derelict, with pieces of the structures falling into the sea.

The Harbor Island Owners Association is arguing that the people who own the homes should remove them. Two other homes on the beachfront have already been demolished and two have been relocated, said Don Woelke, the manager of the association.

“We know that with sea level rise and the fact that nearly every beach in South Carolina is eroding, we’re going to see more houses that are located on the active beach,” said Amy Armstrong, the lead lawyer representing the association. “What we wanted to achieve is to get some precedent about what happens, who’s responsible when this happens, and how.”

The situation is relatively rare, though most beaches in South Carolina are gradually eroding. In other places, federally or locally funded renourishment programs suck sand off the ocean floor and spit it back onto the beach periodically; Harbor Island isn’t eligible for public funds because it doesn’t allow the general public access to its beach.

Beach renourishment, though, is a “mid-term solution to a long-term problem,” said Paul Gayes, a professor of marine science and geology at Coastal Carolina University. It’s also one that’s likely to become increasingly costly over time, as continuous storms are forcing beach towns to renourish more and more often.

“The likelihood is playing out that logically, you’re going to run into places that are not going to be able to sustain it,” Gayes said.

And that makes the Harbor Island example a peek into the future, when many places beyond the small, private island are likely to face the same issues.

Legal hurdles

The Harbor Island suit was filed in November 2018. For the S.C. Environmental Law Project — which is Armstrong’s group, the suit was an opportunity to strengthen the public trust doctrine, the legal concept that the beach is open to the public, and that the state has an interest in protecting it.

Under that logic, the plaintiffs argued that South Carolina should be responsible for removing the houses. But since then, a judge has ruled that SCELP was not specific enough in simply naming the state; it needed to sue a specific agency or official.

The nonprofit Law Project then pivoted to another tactic: forcing the homeowners themselves to pull houses off the beach.

It’s been a lengthy process, though Armstrong said it’s not unreasonable to expect a suit like this to be litigated over years. Several motions still need to be heard and no trial date has been set yet.

The homeowners named in the suit have largely denied that they’re liable for the house removal or asked to be dismissed, according to court records.

One couple, John and Judy Price, argued in filings that the Owners Association is actually responsible to protect the beach because it’s a “common area,” like other amenities on the island, and says state authorities recommended a renourishment project in 2017.

Chris Deters, an attorney for the Price family, said that rather than filing a suit, the owners’ association should have invested in an engineering solution to stop the erosion. Deters said it might be more wise to make a concession and allow for more public access, in exchange for public renourishment funding.

“The (owners association) is tone deaf to the threat our current environmental pattern presents to the coastal community,” Deters said.

The strongest response came in a filing by St. Helena attorney Bruce R. Hoffman, who is representing defendants Barbara and Patrick Shurtleff. Their filings argue that Armstrong herself has a conflict of interest and needs to be removed because she once spoke with Debra Hoffman, Bruce’s wife, about potentially representing them in a different case related to sand-trapping groins built on Hunting Island.

The Hoffmans also own a beachfront home on Harbor Island, though they are not named defendants. Armstrong said the assertion she should be removed is a “sideshow,” and that she never had an attorney-client relationship with the Hoffmans, and thus, no conflict in this case.

“We know the law in this area. We’ve been successful,” Armstrong said. “Of course they would like us to not be counsel.”

But Hoffman maintained that by simply consulting with beachfront property owners, even for a different case, Armstrong gleaned confidential information that should disqualify her from suing them now.

“I’m just doing what I think is best for my client and my client’s case,” Hoffman said.

‘We just wait’

For the other 600-odd homeowners on Harbor Island, the legal drama doesn’t change the fact that there are still houses in the beach falling into the water, piece by piece.

“There was no idea on how long it would actually take (when the case was first filed),” Woelke said. “This is a process, and we live with it, and we just wait.”

The houses on Harbor Island aren’t the only ones that have been overtaken by the sea. Beach communities in South Carolina have struggled with erosion and the impacts of strong storms for over a century.

Earlier this decade, abandoned cottages on and eroding section of nearby Hunting Island either fell into the ocean or were demolished. In that case, houses owned by the state park there were removed by public officials, but private homes were considered the responsibility of their owners, according to a 2013 report in the Beaufort Gazette.

The S.C. Department of Health and Environmental Control is responsible for telling the owners of vulnerable beach homes to remove them when they’re on active beach, spokeswoman Laura Renwick said, but few situations across the state have reached that level in recent years.

Meanwhile, more changes in state policy have flummoxed coastal policy experts, as a revision of the state’s beach management laws deleted the word “retreat.”

The change was part of the fallout after DHEC published new lines limiting beach development and rebuilding in late 2017; those lines, in some cases, barred property owners from rebuilding if their homes were damaged. They’ve since been revised.

While the changes might seem technical, Gayes said the alteration of state policy really means that South Carolina has taken the stance that it will not move beach houses where they are, regardless of rising sea levels.

Even with renourishment, he said, “At the end of the day, you’re buying time.”

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