Folly Beach made the right decision to join the legal fight challenging the rights of owners of “super beachfront” lots to build on them.
Super beachfront lots, many platted in the 1940s and ’50s, are properties that were reclaimed by the ocean but have since re-emerged, thanks to taxpayer-funded beach renourishment. At Folly, there are about 50 of these lots. And because the island has long been exempted from state regulations that periodically establish a line in sand beyond which no seaward homes can be built, about 17 of the lots are arguably buildable. That should not be allowed.
Now that the beach city is working to codify its own beach and marshfront development regulations, it has decided to tackle the thorny issue of what do about super beachfront lots. The city was likely to eventually face lawsuits from super beachfront property owners, some of whom had begun pursuing development permits.
At the most basic level, the lawsuit argues that the lots became state property once they were overtaken by the ocean, which is sensible, and denying the former owners a building permit doesn’t constitute a government “taking” because they’re no longer the rightful owners.
Legally, that concept is known as “avulsion,” when boundaries are changed at the whim of nature. But it’s not a concept recognized by state law, something attorney Michael Corley of the South Carolina Environmental Law Project wants to change.
“Without these questions being answered, the public is losing part of its rights,” he said, adding that uncertainty breeds litigation. “Just because the high tide line has been artificially changed, that doesn’t mean the dividing line between what is public and private has changed.”
If successful, the lawsuit could result in limiting beachfront development elsewhere. That includes on Beaufort County’s Harbor Island where the surf laps at several storm-damaged homes, and the homeowners association is asking the state to declare them a nuisance.
At Folly, the overarching goal is keep homes off the beach, a public resource recognized under common law, and to put an end to legal wrangling over where beachfront homes can and cannot be built. The beach town is contractually committed to beach renourishment through 2042.
Because Charleston Harbor’s jetties block the natural flow of sand that would accrete on Folly Beach, the city is exempt for state regulations that would otherwise forbid development on beaches. That’s a big part of the problem. A few beachfront homes built after previous renourishments now obstruct part of the beach and are a potential public liability, not to mention the possibility of their septic tanks leaking into the surf.
Not all owners of super beachfront lots are named as defendants, Mr. Corley said, only those who are seeking development permits. The suit is important because it seeks to bring clarity to an issue that potentially affects all coastal communities, many of which rely on renourishment to maintain public beaches.
Emily Cedzo of the Coastal Conservation League, which is also a plaintiff in the suit along with several homeowners and the nonprofit Save Folly Beach, said clearing up the law surrounding beachfront property rights is necessary.
“For us, it’s really about protecting the public beach and its health,” she said. And with beach renourishment becoming more frequent and necessary, the issue isn’t going to go away.
Over the years, the owners of several super beachfront lots have donated their properties to the Folly Beach Nature Conservancy and gotten a tax write-off. That’s the right thing to do.
Building on the beach shouldn’t even be a question. The lawsuit should resolve that.