Esposito v. South Carolina Coastal Council

• Decision Date: 03 July 1991
• Docket Number: Nos. 89-1840,90-2367,s. 89-1840
• Citation: 939 F.2d 165
• Parties: , 60 USLW 2065, 21 Envtl. L. Rep. 21,249 John V. ESPOSITO, et al., Plaintiff-Appellant, v. The SOUTH CAROLINA COASTAL COUNCIL, a South Carolina governmental agency; John C. Hayes, III, Chairman of the South Carolina Coastal Council; H. Wayne Beam, Executive Director of the South Carolina Coastal Council, Defendants-Appellees. Natural Resources Defense Council; South Carolina Coastal Conservation League, Amici Curiae. Barney L. CHAVOUS; Odessa K. Chavous, Plaintiffs-Appellees, v. The SOUTH CAROLINA COASTAL COUNCIL, a South Carolina governmental agency, Defendant-Appellant, and John C. Hayes, III, Chairman of the South Carolina Coastal Council; H. Wayne Beam, Executive Director of the South Carolina Coastal Council, Defendants. Natural Resources Defense Council; South Carolina Coastal Conservation League, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 165

939 F.2d 165

33 ERC 1685, 60 USLW 2065, 21 Envtl.

L. Rep. 21,249

John V. ESPOSITO, et al., Plaintiff-Appellant, v. The SOUTH CAROLINA COASTAL COUNCIL, a South Carolina

governmental agency; John C. Hayes, III, Chairman of the

South Carolina Coastal Council; H. Wayne Beam, Executive

Director of the South Carolina Coastal Council,

Defendants-Appellees.

Natural Resources Defense Council; South Carolina Coastal

Conservation League, Amici Curiae.

Barney L. CHAVOUS; Odessa K. Chavous, Plaintiffs-Appellees, v. The SOUTH CAROLINA COASTAL COUNCIL, a South Carolina

governmental agency, Defendant-Appellant,

and

John C. Hayes, III, Chairman of the South Carolina Coastal

Council; H. Wayne Beam, Executive Director of the

South Carolina Coastal Council, Defendants.

Natural Resources Defense Council; South Carolina Coastal

Conservation League, Amici Curiae.

Nos. 89-1840, 90-2367.

United States Court of Appeals Fourth Circuit.

Argued July 18, 1990.

Decided July 3, 1991.

Nancy B. Tecklenburg, C.C. Harness, III, argued (William L. Want, on brief), South Carolina Coastal Council, Charleston, S.C., for defendant-appellant.

John V. Esposito, Randall M. Chastain, Hilton Head Island, South Carolina, for plaintiffs-appellees.

Robertson H. Wendt, Jr., Hollings & Nettles, P.A., Charleston, S.C., Nina M. Sankovitch, Natural Resources Defense Council, New York City, for amici curiae.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

WIDENER, Circuit Judge:

These consolidated cases deal with challenges to the judgments of the district court concerning claims that the defendants violated the fifth and fourteenth amendments of the United States Constitution. The district court in Esposito, No. 89-1140, rejected the plaintiffs' claim that South Carolina's Beachfront Management Act (Act) violated the due process and takings clauses of the fifth and fourteenth amendments. In Chavous, however, No. 90-2367, the district court entered judgment for the plaintiffs on their claim that the Act violated the takings clause and enjoined its enforcement. 745 F.Supp. 1168 (1990). We affirm the district court's judgment in Esposito, and vacate on account of mootness its judgment in Chavous.

I.

In 1988, the General Assembly of South Carolina enacted the Beachfront Management Act, which amended certain sections of Title 48, Chapter 39 of the Code of Laws of South Carolina. This legislation recited the Assembly's finding that "[m]any miles of South Carolina's beaches have been identified as critically eroding." 1988 Act No. 634, Sec. 1. The Assembly noted that the beach/dune system along the coast served as a storm barrier protecting lives and property, generated a substantial portion of the State's tourism revenues, provided a habitat for species of plants and animals, and offered a natural, healthy environment enhancing the well-being of the State's citizens. 1988 Act No. 634, Sec. 1(a)-(d). The legislation further stated that the beach/dune system had been threatened by the presence of unwise development "too close" to the beaches and by the use of certain hard erosion control devices that had actually increased the vulnerability of beachfront property to damage. 1988 Act No. 634, Sec. 1. The Assembly accordingly approved a "comprehensive, long-range beach management plan" entailing "a gradual retreat from the system over a forty-year period." 1988 Act No. 634, Sec. 2.

Among the numerous specific provisions enacted to effectuate this plan, we need discuss only those implicated by the present actions. The plaintiffs' claims arose through the operation of the statutory requirement that the defendant, South Carolina Coastal Council, establish certain lines in each county fronting the Atlantic Ocean. S.C.Code Ann. Sec. 48-39-280(D) (Supp.1989). The first of these lines was the "baseline." As applied to the property involved in these actions, the Act required that this line be drawn at "the location of the crest of an ideal primary oceanfront sand dune" or, in areas where the shoreline had been altered by the construction of erosion control or other manmade devices, "where the crest of an ideal primary oceanfront sand dune ... would be located if the shoreline had not been altered." S.C.Code Ann. Sec. 48-39-280(A)(1) (Supp.1989). The Act next directed that a "setback line" be calculated. In order to implement the statute's stated policy of retreat, this line was established "landward of the baseline ... at a distance which is forty times the average annual erosion rate," but "no less than twenty feet from the baseline." S.C.Code Ann. Sec. 48-39-280(B)(1) (Supp.1989). The Assembly provided that these requirements be implemented by "utilizing the best available information and data" and set out specific procedures to be followed by the South Carolina Coastal Council in establishing the various lines. S.C.Code Ann. Sec. 48-39-280(A) (Supp.1989).

The plaintiffs in both Esposito and Chavous are owners of real property located in the Town of Hilton Head, Beaufort County, South Carolina. The lots of the Esposito plaintiffs have been improved with residential dwellings. In terms of the provisions of the Act, most of these dwellings were situated at least partially seaward of the baseline or within what the plaintiffs call the "dead zone," an area extending twenty feet landward of the baseline. The Act stated that any habitable structure "destroyed beyond repair" by natural causes or fire could not be rebuilt seaward of the baseline or within the dead zone. S.C.Code Ann. Sec. 48-39-290(B) (Supp.1989). ¹ An administrative interpretation defined "destroyed beyond repair" to mean that "more than two thirds (66 2/3%) of the building components making up the structure are damaged to such a degree that replacement is required in order for the structure to be habitable, functional or sound." The Act also regulated attempts to make additions to existing structures and install recreational amenities. S.C.Code Ann Sec. 48-39-290(B) (Supp.1989). The plaintiffs claimed that by virtue of these restrictions, especially the prohibition on the reconstruction of their dwellings in the case of destruction beyond repair, South Carolina had unlawfully taken their private property without just compensation and violated the due process clause.

The Chavous plaintiffs, on the other hand, own a vacant lot with no improvements. Under the statutory scheme, approximately ninety percent of their lot was situated seaward of the baseline or within the dead zone. The Act stated that no part of a new habitable structure could be constructed seaward of the baseline or in the dead zone. S.C.Code Ann. Sec. 48-39-300 (Supp.1989). The plaintiffs claimed that this prohibition of construction amounted to an unlawful taking of their private property without compensation and a violation of due process.

Before considering the substance of these claims, we should take into account the effect of recent amendments to the Act upon our review. ² The plaintiffs' claims and the district court's judgments involved, of course, only the effects of the provisions of the 1988 version of the statute. The enactment of the 1990 Act during the pendency of this appeal, with its provisions for special permits and other changes that may affect the plaintiffs, does not relieve us of the need to address the plaintiffs' claims under the provisions of the 1988 Act. Even if the amended Act cured all of the plaintiffs' concerns, the amendments would not foreclose the possibility that a taking had occurred during the years when the 1988 Act was in effect. See Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 911 F.2d 1331, 1335 (9th Cir.1990). As the Supreme Court has recognized, "the government may elect to abandon its intrusion or discontinue regulations," but "no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 317, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250 (1987). We therefore must consider whether the 1988 Act effected a taking or due process violation during the period that it was in effect. ³

II.

The fifth amendment, which provides in relevant part that "private property [shall not] be taken for public use without just compensation," applies to the States through the fourteenth amendment. See Chicago Burlington and Quincy R.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897). As an initial matter, we note that the courts have traditionally upheld the validity of setback lines and similar land use regulations against constitutional challenges. E.g. Gorieb v. Fox, 274 U.S. 603, 47 S.Ct. 675, 71 L.Ed. 1228 (1927); Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923 (1909). The plaintiffs argue, however, that the present case is distinguishable from these prior decisions and we therefore review their claims in light of the more recent Supreme Court takings clause cases.

In Keystone Bituminous Coal Association v. DeBenedictis, 480 U.S. 470, 485, 107 S.Ct. 1232, 1241, 94 L.Ed.2d 472 (1987) (quoting Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980)), the Court stated that a land use regulation may constitute a taking if it "does not substantially advance legitimate state interests, ... or denies an owner economically viable use of his land." The district court in Esposito addressed the first prong of that takings test by holding that the State had "an important interest" in protecting its beaches and that the challenged statutes were "substantially related" to furthering this goal. The Esposito plaintiffs attack this conclusion, contending that the Act was neither based on a legitimate State interest nor substantially related to any proper State goal.

While the Court may not have...