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Case over future of eroding Folly Beach land heads to appeal

Folly Beach Suit (copy)

Land like this spot in front of 1661 East Ashley Ave. on Folly Beach (center) is at the center of a lawsuit proceeding that could put more beachfront land into public hands. File/Brad Nettles/Staff

A lawsuit that sought to declare some beachfront land on Folly Beach was actually public property has been dismissed, and some defendants in the suit now want to be reimbursed for their legal fees. 

The groups that brought the case — the Coastal Conservation League, some landowners near the beach lots, nonprofit Save Folly Beach Inc. and the city of Folly Beach — are in the midst of appealing the dismissal. 

The lawsuit was designed as a test case of sorts, seeking clarity on whether fast-eroding land on the island could be privately owned at all. South Carolina considers any beach that's wet during an average high tide to be public property, a concept called the public trust doctrine.

The case, filed in February 2019, argued that a renourishment project, which sucks sand out of a river or off the ocean floor and spits it back onto the beach, shouldn't change which areas are in the public trust even as it temporarily adjusted where the high tide line landed.

It targeted eight private owners of what the city calls "super" beachfront lots, which erode to the point of partially being underwater in between the beach-building projects. Most beaches in South Carolina are eroding, but Folly Beach is among the worst, in part because jetties to keep the entrance to Charleston Harbor clear have blocked the natural flow of sand.

The owners were chosen based on having permits to build on the land or having made indications they might have pursued construction, although some have told The Post and Courier they did not have intentions to build.

The state of South Carolina was also a defendant. A spokesman for the S.C. Attorney General's Office declined to comment on pending litigation.

Charleston County Judge Mikell Scarborough ordered in May that the case be dismissed with prejudice, meaning the plaintiffs couldn't refile their claims later. He argued in his order that the plaintiffs didn't have standing to sue because the land, if it was found to be in public trust, belongs with the state instead. 

Michael Corley, an attorney with the S.C. Environmental Law Project who is representing the plaintiffs, said that's the root of the problem — South Carolina won't lay claim to the land by itself, leaving it vulnerable to development.

Corley said he think these claims are the only solution.

"If the state is not willing to do anything, does that mean that Folly and its residents have to live with this problem forever?" he said.

Meanwhile, two defendants have asked for their legal fees back, an amount that totals just over $76,000. 

Mary Shahid, an attorney for one of those defendants, declined to comment because a hearing on the request is coming up in early November. Rita Bolt Barker, an attorney for the other defendant asking for legal fees, did not respond to a phone call and email. 

Kerry Koon, attorney for defendant Vernon Staubes, said the technical legal arguments in the case made it one that was likely to head to appeal. 

"I and all the other attorneys on our side think that the dismissal was appropriate," he said. "We don’t have any choice but defending the appeal of course, but we’re pretty confident."

Two other beachfront owners, however, have settled the case. Landowners Amy Connelly and Debbie's Folly LLC, executed a land swap with the city, trading part of the oceanfront lots in exchange for the public right of way behind them. 

The mediations were ongoing as the other defendants tried to get the case dismissed, said Jeff Tibbals, an attorney for both owners. Corley said the arrangement achieved the ultimate goal of the suit: stopping construction on fast-eroding land.

"Even though we prevailed on the motion to dismiss, they wanted to go ahead and proceed with the settlement on moral and public interest grounds," Tibbals said. 

Reach Chloe Johnson at 843-735-9985. Follow her on Twitter @_ChloeAJ.

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