Captain's Quarters Motor Inn, Inc. v. South Carolina Coastal Council, 23538

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GREGORY
• Citation: 306 S.C. 488,413 S.E.2d 13
• Parties: CAPTAIN'S QUARTERS MOTOR INN, INC., and Tropical Winds, Inc., Respondents, v. SOUTH CAROLINA COASTAL COUNCIL and The City of Myrtle Beach, Defendants, of whom: South Carolina Coastal Council is Appellant. . Heard
• Docket Number: No. 23538,23538
• Decision Date: 07 October 1991

Page 13

413 S.E.2d 13 306 S.C. 488 CAPTAIN'S QUARTERS MOTOR INN, INC., and Tropical Winds,
Inc., Respondents,
v.
SOUTH CAROLINA COASTAL COUNCIL and The City of Myrtle Beach,
Defendants,
of whom:
South Carolina Coastal Council is Appellant. No. 23538. Supreme Court of South Carolina. Heard Oct. 7, 1991.
Decided Dec. 16, 1991.
Rehearing Denied Feb. 4, 1992.

C.C. Harness, Charleston, for appellant.

E. Windell McCrackin, Myrtle Beach, for defendants.

[306 S.C. 489] John P. Henry, Conway, for respondents.

GREGORY, Chief Justice:

This dispute arises from appellant Coastal Council's interpretation of S.C.Code Ann. § 48-39-290(C) codifying the 1988 Beachfront Management Act, 1988 S.C. Act No. 634, § 3. ¹ This statute allows a seawall located seaward of the setback line to be rebuilt at its original location after being damaged by a natural disaster only if it is determined to be "less than fifty percent damaged." Coastal Council determined respondents' seawalls were more than fifty percent damaged under its damage assessment criteria and refused permits to rebuild at the original locations. The trial court rejected Coastal Council's test for damage assessment and found respondents were entitled to rebuild. We affirm.

In the wake of Hurricane Hugo, which struck this State's coastline on September 21, 1989, Coastal Council developed a test to determine whether a seawall was less than fifty percent damaged as required by § 48-39-290(C). Under this test, only the above-grade portion of the shore-parallel wall, excluding the perpendicular wing walls and underground foundation, would be considered for damage assessment.

Page 14

The trial court concluded Coastal Council's interpretation of § 48-39-290(C) was invalid because: (1) the statute itself was clear and unambiguous; (2) Coastal Council's interpretation was arbitrary and capricious; and (3) Coastal Council's interpretation was not promulgated as a regulation.

Coastal Council offers several reasons to justify its damage assessment test. First, the legislature has made specific findings that the use of hard erosion control devices such as seawalls has increased the vulnerability of beachfront property and has contributed to the loss of the dry sand beach. 1988 S.C. Act No. 634, § 1(5). The legislature has also expressly recognized a policy to severely restrict the use of such hard erosion control devices and encourage their replacement with new erosion inhibiting techniques. 1988 S.C. Act No....