FOLLY BEACH, SC – The Plaintiffs in a lawsuit challenging ownership of land newly created through artificial beach renourishment found a path forward last week as the South Carolina Court of Appeals ruled in their favor. On Tuesday, August 2, the Court reversed and remanded a lower court’s dismissal of the lawsuit that held that the City of Folly Beach, Coastal Conservation League, Save Folly Beach and a group of local homeowners lacked standing and had no viable cause of action. In its opinion, the Court of Appeals disagreed, and acknowledged that this is a novel issue that needs to be addressed by the trial court.
“We hope the Court’s ruling helps put an end to the prolific abuse of standing as a means to prevent citizens from seeking redress of critical environmental and public health issues, particularly where, as here, the Plaintiffs clearly have economic, aesthetic, recreational and property interests at stake,” said Amy Armstrong, executive director of the South Carolina Environmental Law Project, who represented the Plaintiffs. “We are also pleased that the Court recognized that the question of ownership of public trust tidelands following a tax-payer funded renourishment project is a novel and important issue that needs to be addressed. We look forward to presenting our case before the trial court in the coming months.”
The lawsuit, filed by the South Carolina Environmental Law Project in February 2019, alleges that land that has become below the mean high water mark and is thus public trust property cannot be converted to private property though artificial renourishment. In essence, the suit asserts that artificial renourishment cannot create private, developable land from public property. Under South Carolina’s Public Trust Doctrine, the state owns all land below the mean high water mark and holds this land in trust for the benefit of all the citizens of the State. When private property borders a shoreline, the boundary between public trust property and private property is not fixed but moves as the shoreline accretes and erodes because of natural forces. Our Supreme Court has recognized that beachfront property owners possess title to land especially vulnerable to erosion and take title “at risk of loss to the State by natural forces.” However, no appeals court has directly answered the question about what happens when unnatural and sudden forces change the shoreline.
The issue came into the spotlight after Folly Beach’s late-2018 renourishment, when several registered owners of “super beachfront” property made efforts to pursue development before the inevitable erosion reverted the dry sand to beach and ocean. Some of these owners have constructed houses on these “super beachfront” lots, which are now, unsurprisingly, threatened by the ocean, interfering with public use and access, and causing serious beach management problems.
Folly Beach as it exists today is reliant on a repeating cycle of renourishment in order to protect existing development and the public beach. Like all renourishment projects, those on Folly are of limited durability. The project builds the elevation of the shoreline, temporarily converting ocean and beach into dry ground, until natural forces eventually reclaim the renourishment sand.
“The ruling makes several references to a related SC Supreme Court case (Braden’s Folly, LLC v. City of Folly Beach) that was recently decided in the city’s favor,” said Aaron Pope, City of Folly Beach Administrator. “The Supreme Court’s decision was based on the unique nature of severe erosion on Folly. It recognized the validity of management tools developed by past and present citizens, mayors, councils, legal counsel, and staff in the face of these extraordinary circumstances. We hope that the Courts will continue to recognize the distinct nature of Folly’s beaches and allow the state to rightfully claim these lands without regard to temporary renourishments.”
While the law of avulsion is well established in other states, no South Carolina appellate court has ever been asked to determine the ownership status of beachfront land created by renourishment. This case seeks to affirm an important principle of law that will be critical in protecting our public beaches, not just on Folly but all along our coastline.
“This is a substantial step in our ability to move forward in addressing an increasingly important issue,” said Emily Cedzo, Coastal Conservation League’s Director of Conservation Programs & Policy. “As more communities are renourishing more frequently in light of a rapidly changing climate, the need to protect our public trust resources for people and wildlife becomes ever more important.”
In January 2020, a Charleston judge heard motions on whether developers can build on super beachfront lots. In May 2020, the case was dismissed by the circuit court. On October 21, 2020, the clients took their fight to the court of appeals to prevent these risky and unwise oceanfront structures from being constructed on public beaches. On May 11, 2023, SCELP argued the case before the South Carolina Court of Appeals, leading to this week’s decision.
Now, the case will head back to circuit court, where we hope the court will finally answer this important question and preserve public beaches across our state.
"I appreciate this Court's decision and other recent decisions by the courts that show an understanding of the unique nature of Folly's public beach, it's highly erosional nature and the importance of keeping the tidal beach as public trust land,” said Matt Napier, representative from Save Folly Beach.
South Carolina Environmental Law Project
firstname.lastname@example.org, (843) 527-0078
Coastal Conservation League
email@example.com, (786) 766-5343
City of Folly Beach
firstname.lastname@example.org, (843) 588-2447