ELR Citation: ELR 20837
No(s). 23342 (S.C. Feb 11, 1991)

The court holds that the South Carolina Beachfront Management Act's prohibition of the construction of any permanent structure seaward of a setback line did not work a taking without just compensation of respondent landowner's use of two vacant oceanfront lots. The lower court found that a regulatory taking had occurred and awarded respondent $1.2 million in just compensation. Relying on the U.S. Supreme Court's decision in Keystone Bituminous Coal Association v. DeBenedictis, 17 ELR 20440, the court holds that no regulatory taking occurred because the law is necessary to prevent a serious public harm. The Beachfront Management Act was enacted to preserve the extremely valuable South Carolina beaches and dune systems. The court notes that it is bound by the Act's uncontested legislative findings that new construction contributes to the erosion of this valuable resource and that discouraging new construction near the beach/dune area is necessary to prevent a great public harm. Respondent's assertion that just compensation is due if a regulation deprives a landowner of all economically viable use of his property, regardless of any other consideration, is erroneous. The U.S. Supreme Court has not found a taking when a regulation is intended to prevent serious public harm. Although the fact that a state acts within its police powers is not dispositive, when a state merely regulates use to prevent a serious public harm, there is no taking.

Two dissenting justices would hold that the application of the Beachfront Management Act constitutes a taking. The dissent reads the case law to require a court faced with a regulatory taking issue to first review the public purpose of a regulation. Regulations with illegitimate or insufficient public purposes will be held unconstitutional, while regulations providing for the prevention of a nuisance will not require compensation. Other regulations not designed to prevent a nuisance may legitimately advance state interests and yet require compensation upon a showing of a loss of economically viable uses of land. The dissent would hold that the Beachfront Management Act does not have as its primary purpose the prevention of a nuisance. Respondent is thus entitled to compensation because the Act, while it advances a legitimate state interest, deprives respondent of economically viable uses of his land.

Counsel for Appellant
C.C. Harness III
South Carolina Coastal Council
4280 Executive Pl. N., Ste. 300, Charleston SC 29405
(803) 744-5838

Counsel for Appellees
Gedney M. Howe III
8 Chalmers St., P.O. Box 1440, Charleston SC 29402
(803) 722-8048

Ellison D. Smith IV
Smith & Bundy
49 Broad St., P.O. Box 579, Charleston SC 29402
(803) 577-6302