404 S.E.2d 895 (S.C. 1991), 23342, Lucas v. South Carolina Coastal Council

Docket Nº:23342.
Citation:404 S.E.2d 895, 304 S.C. 376
Opinion Judge:TOAL, Justice:
Party Name:David H. LUCAS, Respondent. v. SOUTH CAROLINA COASTAL COUNCIL, Appellant.
Attorney:C.C. Harness, III, of S.C. Coastal Council, Charleston, for appellant. Gedney M. Howe, III; and Ellison D. Smith, IV, of Smith & Bundy, Charleston, for respondent. Samuel H. Altman, of Altman & Sturgis, P.A., Charleston, amicus curiae, for NCNB Bank of South Carolina, James S. Chandler, Jr., Pawl...
Case Date:February 11, 1991
Court:Supreme Court of South Carolina

Page 895

404 S.E.2d 895 (S.C. 1991)

304 S.C. 376

David H. LUCAS, Respondent.



No. 23342.

Supreme Court of South Carolina.

February 11, 1991

Heard April 2, 1990.

[304 S.C. 377] C.C. Harness, III, of S.C. Coastal Council, Charleston, for appellant.

Gedney M. Howe, III; and Ellison D. Smith, IV, of Smith & Bundy, Charleston, for respondent. Samuel H. Altman, of Altman & Sturgis, P.A., Charleston, amicus curiae, for NCNB Bank of South Carolina, James S. Chandler, Jr., Pawleys Island, amicus curiae, for Sierra Club and S.C. Wildlife Federation, Steven M. Rudisill, Rock Hill; and Ronald A. Zumbruy, Edward J. Connor, Jr., and Timothy V. Kassouni, of Pacific Legal Foundation, Sacramento, Cal., amicus curiae, for Pacific Legal Foundation.

TOAL, Justice:

This appeal concerns whether the enforcement and application of the 1988 Beachfront Management Act to the plaintiff-respondent's property is a taking of such property without just compensation.


David H. Lucas, the respondent, owns two vacant oceanfront lots in the Beachwood East Subdivision of the Wild Dunes development on the Isle of Palms in Charleston County, South Carolina. The Beachfront Management Act, S.C.Code Ann. § 48-39-10 et seq. (1989 Cum.Supp.) (hereinafter[304 S.C. 378] referred to as "Act") limits

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construction within the beach/dune system in a critical area, as defined by the Act. As applied to the two Lucas lots, the Act prohibits, through statutorily mandated setback lines, the construction of any permanent structure (including a dwelling), save a small deck or walkway.

Lucas instituted an action in the Court of Common Pleas, asserting that the restrictions on the use of his lots worked a taking of his property without just compensation. The lower court agreed and awarded Lucas $1,232,387.50 as just compensation for the "regulatory" taking. The South Carolina Coastal Council, the administrator of the Beachfront Management Act, now appeals. We reverse.


Although the regulatory takings question is a complex one, and although regulations affecting coastal property are especially problematic, 1 this appeal presents, in the end, what in our view is a relatively straightforward issue. The issue is whether governmental regulation of the use of property, in order to prevent serious public harm, amounts to a "regulatory taking" of property for which compensation must be paid. Lucas' position, which is dealt with more extensively below, is that if he is deprived of "all economically viable use" of his property, he must be compensated for it even if the regulation depriving him of such is a use-restriction regulation enacted to prevent serious public harm. Coastal Council's view, obviously, is that no compensation is due a landowner whose private use threatens serious public harm. We choose to characterize this issue as "straightforward" because, in the final analysis, Lucas' position and the [304 S.C. 379] position of our dissenting brothers, is the position of the dissent in Keystone Bituminous Coal Ass'n. v. DeBenedictis, 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472 (1987), while the Coastal Council's view is represented by the Keystone majority, and by our decision in Carter v. South Carolina Coastal Council, 281 S.C. 201, 314 S.E.2d 327 (1984). We choose not to overrule Carter, and we choose to follow the majority view rather than the dissent in Keystone.

Lucas concedes that the Beachfront Management Act is properly and validly designed to preserve the extremely valuable resource which is South Carolina's beaches. He concedes that the preservation of this existing public resource from harm is a "laudable goal." See Respondent's Brief, at p. 4. He admittedly fails to attack the validity of the Act, and therefore concedes the validity of the legislative declaration of its "findings" and "policy" embodied in Sections 1 and 2 of 1988 Act No. 634. 2 This Court is therefore in no position to question the legislative scheme or purpose. Section 1 of the Act reads:

SECTION 1. The General Assembly finds that:

(1) The beach/dune system along the coast of South Carolina is extremely

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important to the people of this State and serves the following functions:

(a) protects life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner;

(b) provides the basis for a tourism industry that generates approximately two-thirds of South Carolina's annual tourism industry revenue which constitutes a significant portion of the state's economy. The tourists who come to the South Carolina coast to enjoy the ocean and [304 S.C. 380] dry sand beach contribute significantly to state and local tax revenues;

(c) provides habitat for numerous species of plants and animals, several of which are threatened or endangered. Waters adjacent to the beach/dune system also provide habitat for many other marine species;

(d) provides a natural health environment for the citizens of South Carolina to spend leisure time which serves their physical and mental well-being.

(2) Beach/dune system vegetation is unique and extremely important to the vitality and preservation of the system.

(3) Many miles of South Carolina's beaches have been identified as critically eroding.

(4) Chapter 39, Title 48, Code of Laws of South Carolina, 1976, Coastal Tidelands and Wetlands, does not provide adequate jurisdiction to the South Carolina Coastal Council to enable it to effectively protect the integrity of the beach/dune system. Consequently, without adequate controls, development has been unwisely sited too close to the system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property. It is in both the public and private interests to protect the system from this unwise development.

(5) The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armoring devices have given a false sense of security to beach front property owners. In reality, these hard structures, in many instances, have increased the vulnerability of beach front property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry.

(6) Erosion is a natural process which becomes a significant problem for man only when structures are [304 S.C. 381] erected in close proximity to the beach/dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. This space can be provided only by discouraging new construction in close proximity to the beach/dune system and encouraging those who have erected structures too close to the system to retreat from it.

(7) Inlet and harbor management practices, including the construction of jetties which have not been designed to accommodate the long shore transport of sand, can deprive downdrift beach/dune systems of their natural sand supply. Dredging practices which include disposal of beach quality sand at sea also can deprive the beach/dune system of much-needed sand.

(8) It is in the state's best interest to protect and to promote increased public access to South Carolina's beaches for out-of-state tourists and South Carolina residents alike.

(9) Present funding for the protection, management, and enhancement of the beach/dune system is inadequate.

(10) There is no coordinated state policy for post-storm emergency management of the beach/dune system.

(11) A long-range comprehensive beach management plan is needed for the

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entire coast of South Carolina to protect and effectively manage the beach/dune system, thus preventing unwise development and minimizing man's adverse impact on the system.

(Emphasis added).

Section 2 of the Act reads:

SECTION 2. In recognition of its stewardship responsibilities, the policy of South Carolina is to:

(1) protect, preserve, restore, and enhance the beach/dune system, the highest and best uses of which are declared to provide:

(a) a barrier and buffer from high tides, storm surge, hurricanes, and normal erosion;

[304 S.C. 382] (b) a public area which serves as a major source of state and local revenue;

(c) habitat for indigenous flora and fauna;

(d) a place which harbors natural beauty;

(2) create a comprehensive, long-range beach management plan and require local comprehensive beach management plans for the protection, preservation, restoration, and enhancement of the beach/dune system. These plans must promote wise use of the state's beach front to include a gradual retreat from the system over a forty-year period;

(3) severely restrict the use of hard erosion control devices to armor the beach/dune system and to encourage the replacement of hard erosion control devices with soft technologies as approved by the Coastal Council which will provide for the protection of the shoreline without long-term adverse effects;

(4) encourage the use of erosion-inhibiting techniques which do not adversely impact the long-term well-being of the beach/dune system;

(5) promote carefully planned nourishment as a means of beach preservation and restoration where economically feasible;

(6) preserve existing public access and promote the enhancement of public access to assure full enjoyment of the beach by all our citizens including the handicapped;

(7) involve local governments in long-range comprehensive planning and management of the...

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