Sea Cabin v. City of North Myrtle Beach

• Decision Date: 29 July 1993
• Docket Number: Civ. A. No. 4:90-1411-2.
• Citation: 828 F. Supp. 1241
• Court: U.S. District Court — District of South Carolina
• Parties: SEA CABIN ON THE OCEAN IV HOMEOWNERS ASSOCIATION, Plaintiff, v. CITY OF NORTH MYRTLE BEACH, Mayor Phil Tilghman, Defendants.

828 F. Supp. 1241

SEA CABIN ON THE OCEAN IV HOMEOWNERS ASSOCIATION, Plaintiff, v. CITY OF NORTH MYRTLE BEACH, Mayor Phil Tilghman, Defendants.

Civ. A. No. 4:90-1411-2.

United States District Court, D. South Carolina, Florence Division.

July 29, 1993.

Richard H. Willis, Nelson, Mullins, Riley & Scarborough, Columbia, SC and Newman Jackson Smith, Nelson, Mullins, Riley & Scarborough, Charleston, SC, for plaintiff.

Louis Milton Cook, North Myrtle Beach, SC and Roy Dawson Bates, Columbia, SC, for defendants.

ORDER AND OPINION

MORGAN, District Judge.

PROCEDURAL BACKGROUND

Plaintiff Sea Cabin on the Ocean IV Homeowners Association ("Plaintiff") brought this action on June 28, 1990, seeking declaratory and injunctive relief from Defendants City of North Myrtle Beach ("City") and Mayor Phil Tilghman.¹ The gravamen of Plaintiff's complaint was that the City refused to grant the necessary permit to rebuild a pier owned and operated by Plaintiff and destroyed by Hurricane Hugo in September 1989. Specifically, the City conditioned the issuance of the requisite Pier Franchise Agreement ("Agreement") on Plaintiff's consent to open its pier to the public. On July 22, 1992, this Court granted partial summary judgment to Plaintiff, finding that the City's Agreement conflicted with a recent amendment to South Carolina's Beach Management Act.

Following a bench trial on May 17-18, 1993, this Court requested post-trial briefs on several matters and took the remaining issues under advisement. The Court has considered the parties' briefs and supporting authority and the case is now ready for decision.

THE PARTIES

1. Plaintiff is an unincorporated association comprised of the owners of certain ocean-front apartments in North Myrtle Beach, South Carolina. The apartments are identified in a Master Deed creating "Sea Cabin on the Ocean IV," and the homeowners jointly own the Sea Cabin Pier which is identified as a common element of the Master Deed.

2. Defendant City of North Myrtle Beach is a municipal corporation organized under the laws of South Carolina, and responsible for promulgating various city ordinances and franchises controlling the commercial use of the public beaches between the city's municipal boundary and the Atlantic Ocean.

FACTS

On May 15, 1952, the Army Corps of Engineers authorized one C.D. Nixon to construct a pier extending into the Atlantic Ocean at Cherry Grove Beach in North Myrtle Beach. Pl.Exh. 7. The construction of this pier was specifically authorized by Act No. 499 of the South Carolina General Assembly on May 13, 1952. Thereafter, a fishing pier was constructed, extending approximately 900 feet into the ocean.² On June 15, 1955, Nixon conveyed the ocean-front property to J.A. Goodson, "together with all ... appurtenances to the said premises...." Pl.Exh. 8. Between 1955 and 1980, the public was invited on to the pier to walk for free and to fish for a nominal fee. Goodson conveyed the property to the Sea Cabin Corporation, a developer, on January 24, 1980. Pl.Exh. 14. This deed conveyed the realty as well as "Appurtenances to the said Premises." Id. Sea Cabin Corporation conveyed "certain real property, buildings and improvements" to the Sea Cabin homeowner's association (e.g., the Plaintiff) on July 15, 1980. Pl.Exh. 15 at 1.

The Master Deed provides: "Each Apartment has appurtenant to it an undivided interest in the common elements.... Improvements which constitute common elements are ... the pier and pier building. ..." Id. at 350. On August 12, 1980, the parties executed a "Second Amendment to the Master Deed" that conveyed "the land, the buildings, all improvements and structures thereon and all easements, rights and appurtenances belonging thereto...." Pl. Exh. 16 at 345. The same day, the parties executed a Bill of Sale and Assignment whereby Sea Cabin Corporation transferred to Plaintiff "all of our right, title and interest, legal and/or equitable in and to any and all portions of the North Cherry Grove Fishing Pier...." Pl.Exh. 17 at 361.

After Plaintiff purchased the pier in 1980, it took various steps to halt the public's access to the pier. These steps included: placing a gate on the pier that could only be opened with a card-key issued to residents of the Sea Cabin condominium complex, periodically changing the card-key lock, posting a large "No Trespassing" sign on the gate and by calling the police when trespassers were spotted on the pier. After 1980, the only portion of the pier open to the public was a snack shop at that portion of the pier directly over the beach.

On or about September 22, 1989, Hurricane Hugo struck the Atlantic seaboard, causing significant damage to the South Carolina coast, including North Myrtle Beach. Plaintiff's pier was severely damaged by the storm, rendering some portions that survived the hurricane unsafe for its intended use. On March 6, 1990, the City adopted an ordinance declaring Plaintiff's pier, and all other piers damaged by Hurricane Hugo, to be public nuisances and requiring abatement of the nuisances. On April 9, 1990, the City enacted a second ordinance, section 5-14(b),³ which required the Plaintiff to enter into a "pier franchise agreement" or "pier license agreement" with the City before it would authorize the rebuilding of another pier. Pursuant to this ordinance, the City attached a non-negotiable requirement that the Plaintiff agree to open its pier to the public as a condition to receiving a permit to rebuild the pier. Plaintiff refused to acquiesce to the City's demand.

Plaintiff instituted this action on June 28, 1990,⁴ alleging that the actions taken by the City resulted in an unlawful taking of private property in violation of the Fifth Amendment of the Constitution of the United States Constitution and Article I, section 13 of the South Carolina Constitution.⁵ Plaintiff's complaint sought, inter alia, a declaratory judgment that (1) the City's actions constituted a taking of private property without just compensation and without due process of law, (2) the City was estopped from applying the ordinances to the Plaintiff's pier and (3) the pier was grandfathered from the ordinances complained of under the City's non-conforming use statute.⁶

Plaintiff moved for summary judgment on October 9, 1990, and the Court conducted a hearing on Plaintiff's motion on September 5, 1991. On July 22, 1992, the Honorable C. Weston Houck, United States District Judge, granted partial summary judgment to the Plaintiff. The Court found that section 5-14(b) was void, as it conflicted with section 48-39-290⁷ of the South Carolina Code.⁸ A bench trial was conducted on May 17-18, 1993. Plaintiff argued: it had title to the pier; had standing to bring suit for damages to the pier; the pier was open to the public prior to 1980, but denied the public had acquired rights in the pier through prescription or dedication; the pier was a private pier after 1980 and Plaintiff had taken substantial steps to keep it closed to the public; the state court rulings are not res judicata in this action; the pier was grandfathered under the City's non-conforming use statute; and that it was entitled to attorneys' fees and costs under 42 U.S.C. § 1988. The City countered that: Plaintiff never acquired title to the pier; the pier was public, or, in the alternative, that the public had acquired rights through prescription or dedication; the state court rulings are res judicata in this action; the pier is not grandfathered under the City's non-conforming use statute; and that Plaintiff is not entitled to attorneys' fees and costs as the City did not commit an unconstitutional taking of the pier.

ANALYSIS

1. Plaintiff's Property Interest in the Pier

a. Pier Is An Appurtenance

Both parties agree that if the pier is a common element of the horizontal property regime, the homeowners association has standing to bring an action for damages to the pier. See Roundtree Villas Ass'n v. 4701 Kings Corp., 282 S.C. 415, 321 S.E.2d 46 (1984). The Court FINDS, for the reasons discussed infra, that the pier is an appurtenance⁹ to the real estate above the mean high water mark that is indisputably owned by the Plaintiff.

The South Carolina Code expressly states that a dock may be an appurtenance to real property. The Code provides: "a privately owned dock is defined as any dock which is constructed on or appurtenant to property on which the person constructing the dock owns a leasehold interest in or title to or has obtained permission, express or implied, from the title owner to construct the dock." S.C.Code Ann. § 54-13-10 (Law.Co-op.1991) (emphasis added).¹⁰ This section contemplates that private docks include both those built over submerged land owned by the builder or those built over submerged land owned by another but with its terminus on property owned by the builder. In the later case, the dock is considered "appurtenant to property on which the person constructing the dock" has title to. Id. Hence, South Carolina recognizes that a dock or pier may be an appurtenance to the fastland.

Moreover, the United States Court of Appeals for the Fourth Circuit has held that a pier is considered an appurtenance to the real estate upon which it has its terminus, even when the pier extends out over land that is owned by the state. United States of America v. 62.61 Acres of Land, 547 F.2d 818, 821 (4th Cir.1977); United States v. Gray Line Water Tours, 311 F.2d 779, 780 (4th Cir.1962). Several state courts have reached the same conclusion—a pier is an appurtenance that passes with the realty at the time of conveyance. People's Counsel v. Marine Maryland Mfg. Co., Inc., 316 Md. 491, 560 A.2d 32, 36 (1989); Knight v. Ciarlone, 200 N.Y.S.2d 805 (Sup.Ct.1959). Other courts have found that a pier is an appurtenance to real estate for tax purposes, Everhart v. Commissioner, T.C.Memo 1982-396, T.C.M. (P-H) ¶ 82,396, 44 T.C.M. (CCH) 459 (1982), and that a boat slip in a marina is...