Kiawah Development Partners (KDP) applied for a permit for a 2,750-foot
revetment on the Kiawah River at the south end of Kiawah Island. The
purpose of the revetment would be to stop erosion and to stabilize the
shoreline so that KDP can build a road to develop the narrow spit of land
known as Captain Sam’s Spit.
OCRM denied most of the request, allowing only a 270-foot revetment
along the edge of the parking lot at Beachwalker Park, the only public access
on Kiawah. KDP appealed, and we appealed the 270' permit.
The key issues in the case:
(1) whether the structure violates the regulatory provisions which prohibit structures that impact public access to critical area;
(2) whether the revetment, which would be built on public trust tidal areas, violates the public trust doctrine;
(3) whether the structure violates regulations that limit revetments to 18 inches from the critical area line.
Chief ALJ Trip Anderson conducted a hearing in August 2009. On January 22, 2010, Judge Anderson reversed the denial and granted the full length of the revetment structure with some minor revisions. We filed a motion to reconsider and for stay with the ALC on February 2, 2010. On February 26, 2010, Judge Anderson issued an Amended Final Order and an Order denying our motion for reconsideration and denying our motion for stay.
We filed an appeal in the Court of Appeals on March 26, 2010 and simultaneously filed a Petition for Supersedeas stopping any construction activity. On April 22, 2010, we filed a Motion to Transfer the case to the Supreme Court, and that motion was granted. The Supreme Court also granted our Petition for Supersedeas on July 23, 2010, saving the spit from further construction until the case is heard in the Supreme Court. In that Order, the Supreme Court set an expedited briefing schedule.
The Court heard arguments on January 18, 2011 and issued its opinion on November 21, 2011. The Court’s opinion is a sweeping victory for Captain Sam’s Spit and for protection of our coastal resources.
The Supreme Court ruled that the ALJ’s decision contained “numerous errors of law.” The Court explained that the S.C. Coastal Zone Management Act requires that high priority be given to protecting "natural systems in the coastal zone” and that coastal areas such as this be used to “ensure the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable, maximum dollar benefits.” DHEC is required “to ensure the continued use of tidelands, submerged lands, and waters for public purposes,” and the public purpose and interest “encompasses that of the entire Spit, and the surrounding coastal zone.” The regulations demand denial of a structure like this that will have “any adverse effect on public access,” unless one of two exceptions apply – neither of which apply in this case.
The Court ruled that “by law, OCRM must take into account the impact of any critical area permit on upland sprawl, general overdevelopment, and pristine habitats.” This powerful language will be useful in future cases where permits are issued that would effect pristine areas or allow overdevelopment and sprawl in environmentally sensitive coastal areas. You can read the Court’s full opinion at http://www.sccourts.org/opinions/displayOpinion.cfm?aseNo=27065
