20 ELR 20393 | Environmental Law Reporter | copyright © 1990 | All rights reserved

Chavous v. South Carolina Coastal Council

No. D:89-0216-1 (D.S.C. October 13, 1989)

The court holds that amendments to the South Carolina Beachfront Management Act preventing construction within 20 feet of the coastal baseline constitute a taking of plaintiffs' property. The statutes create no-construction zones in the Town of Hilton Head Island that prevent plaintiffs from constructing a family vacation home. The plaintiffs are permitted to construct only a walkway to the beach or a small deck, neither of which is an economically viable use of such valuable property. The property owner is entitled to just compensation even though the statutes advance a legitimate state interest.

Counsel for Plaintiffs
Randall Chastain
Lourie, Curlee, Barrett & Popowski
1224 Pickens St., P.O. Box 12089, Capitol Station, Columbia SC 29211
(803) 799-9805

John V. Esposito
P.O. Box 5705, Hilton Head SC 29938
(304) 752-7300

Counsel for Defendants
C. C. Herness III, General Counsel
South Carolina Coastal Council
Saber Pl., Ste. 300, Charleston SC 29405
(803) 744-5838

William L. Want
P.O. Box 1088, 174 E. Bay St., Ste. 202, Charleston SC 29402
(803) 723-5148

[20 ELR 20393]

Hawkins, J.:


This is an action charging the defendants with violations of the fifth amendment to the United States Constitution. Specifically, the plaintiffs contend that the enactment of the 1988 amendments to Title 48, Chapter 39 of the Code of Laws of South Carolina, 1976 (48-39-270 through 48-39-360) violates the due process and just compensation provisions of the fifth amendment.1 Originally, the defendants denied all material allegations of the complaint; however, prior to trial, the parties stipulated to all of the relevant facts. Those stipulations are adopted as the factual findings of the court and they are incorporated into this order by reference. (See exhibits 12 and 32 attached.)2

On September 5, 1989, the parties appeared before this court, sitting without a jury, for oral argument on the legal issues. The court, having considered the stipulated facts and the proposed findings of fact and conclusions of law submitted by the parties, makes the following Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

Conclusions of Law

1. This court has jurisdiction over the parties to this action.

2. This court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331.

The Takings Clause Claim

3. As a preliminary matter, the court feels compelled to note that the plaintiff's claim under the takings clause is mature. The Supreme Court has stated that

[g]iven the "essentially ad hoc, factual inquir[y]" involved in the takings analysis, . . . we have found it particularly important in takings cases to adhere to our admonition that "the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary."

Pennell v. San Jose, U.S. , 108 S. Ct. 849 (1988). The facts of record reveal that although the plaintiffs have not petitioned for a change in the baseline or the setback line, such a request would be futile because the defendants have taken the position that those lines are not subject to change. (Ex. 1, Par. XXXVI.) Moreover, as evidenced by the South Carolina Supreme Court's refusal to accept questions certified to it by this court on July 21, 1989, there is significant uncertainty as to the availability of an inverse condemnation action in state court. Hence, the takings issue is ripe for resolution by this tribunal.

4. The final clause of the fifth amendment prohibits the taking of private property "for public use, without just compensation." U.S. Const. amend. V. When determining whether or not the terms of this prohibition have been transgressed, the Supreme Court has traditionally examined the character of the government action and the economic impact of that action on the property. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Penn Central Transportation Company et al. v. City of New York et al., 438 U.S. 104 [8 ELR 20528] (1978); Nollan v. California Coastal Commission, __ U.S. , 107 S. Ct. 3141 [17 ELR 20918] (1987). The Court has long adhered to the view that a particular land use regulation does not constitute "a taking if it 'substantially advance[s] legitimate state interests' and does not 'den[y] an owner economically viable use of his land.'" Nollan, __ U.S. at __, 107 S. Ct. at 3146.

5. It is immediately apparent that the plaintiffs have demonstrated an economic injury sufficient to invoke the protection of the takings clause. When considering this aspect of the takings inquiry, a court must draw the subtle "distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. Keystone Bitminous Coal Association v. DeBenedictis, U.S. , 107 S. Ct. 1232, 1247 [17 ELR 20440] (1987). In an action involving a facial challenge to the validity of regulatory activity, the Court has held that a statute regulating the use of private property effects a taking only if the mere enactment of the legislation denies an owner economically viable use of his land. Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 452 U.S. 264, 295-296 [11 ELR 20569] (1981) (citations omitted); Keystone, U.S. at , 107 S. Ct. at 11247 (citing Hodel).3 However, in an action contesting the enforcement of a statute, the inquiry focuses on the economic impact of a specific application of the regulation. Penn Central, 438 U.S. at 136.

6. The stipulated facts reveal that these plaintiffs have suffered a concrete injury as a result of the defendants' application of the statutes. The statutes prevent all new construction in the area twenty (20) feet landward of the baseline. (Ex. 1, Para. XXIV.) The plaintiffs' property is located within this no construction zone (Ex. 1, Para. XXXII), and the evidence indicates that the defendants have been denied permission to build a structure within this area (Ex. 2, Para. X).4 Since the plaintiffs have suffered adverse consequences as a result of the enforcement of the statutes, the court must determine if the application of the statutes allow[s] the plaintiffs to use their property in an economically viable manner.

7. Application of these principles to the instant action indicates that the enforcement of the statutes at issue amounts to an uncompensated taking. As the stipulated facts indicate, the Town of Hilton Head Island has been developed to offer residents and vacationers [20 ELR 20394] an exclusive resort environment. (Ex. 1, Para. XLIII.) The economic utility of this scheme is reflected in the growing popularity of the town among those visiting South Carolina. (Ex. 1, Para. XLIV.) Consistent with this concept, the plaintiffs purchased their property for the purpose of constructing a family vacation home. (Ex. 2, Para. VI.) However, under the current application of the statutes, the plaintiffs may only use their property to construct a walkway to the beach and/or a small deck. (Ex. 1, Para. XLI.) Clearly, this is not an economically viable use of such valuable real estate. (See Ex. 2, Para. V.) Hence, the plaintiffs are entitled to relief under the takings clause without regard to whether or not the statutes substantially advance a legitimate state interest.5


Accordingly, based upon the foregoing, it is

ORDERED, that the Clerk of Court enter judgment in favor of the plaintiffs as to the fifth amendment takings claim. It is

ORDERED FURTHER, that the amount of the judgment will remain unliquidated until the completion of supplemental proceedings on the issue of damages. It is

ORDERED FURTHER, that upon satisfaction of the judgment the plaintiffs will convey title to their property to the State of South Carolina.


1. the plaintiffs' complaint also contains a cause of action pursuant to 42 U.S.C. § 1983, but since that matter was not addressed during oral argument or in the plaintiffs' proposed findings and conclusions, the court considers that claim to have been abandoned.

2. The stipulations marked as Exhibit 1 contain references to the affidavits of Chris Jones, Dr. Per Bruun, Dr. Robert Dolan, Steven Linsday, and Steven Moore. (Ex. 1, Para. XLVI-L.) These affidavits contain conflicting expert testimony regarding various factual issues which are not addressed in the stipulations. Obviously, because the court has not had an opportunity to hear the testimony of these witnesses, their credibility cannot be evaluated at this time. Hence, this evidence will not be relied upon or incorporated into this order.

3. The distinction between the doctrine of ripeness and the concept of a facial challenge to legislative action merits some discussion. In this context, the ripeness inquiry is designed to ascertain whether or not the plaintiff has alternate means of obtaining the relief requested, such as seeking a variance or filing an inverse condemnation suit in state court. Naegele Outdoor Advertising, Inc. v. City of Durham, 844 F.2d 162, 175 (4th Cir. 1988). Conversely, the facial challenge concept allows the plaintiff to question the constitutionality of a statute without showing a concrete injury resulting from the enforcement of the statute. Keystone, U.S. at , 107 S. Ct. at 1246.

4. The record also demonstrates that the Beaufort County Tax Assessor has reduced the assessed value of the plaintiffs' properties by fifty percent (50%) as a result of the statutes at issue. (Ex. 2, Para. XVIII.) While this action may reflect some diminution in the plaintiffs' property values, this action in itself represents a benefit of the new law in that the plaintiffs' tax burden has been reduced. As for the plaintiffs' remaining allegations of injury such as reduction in the fair market value of their property, this situation is merely another aspect of the injury caused by enforcement of the construction prohibition.

5. Having concluded that the plaintiffs are entitled to relief under the takings clause of the fifth amendment, the court will not address the substance of their due process claim.

20 ELR 20393 | Environmental Law Reporter | copyright © 1990 | All rights reserved