Small victory for Kiawah Island Spit, but developers vow to move ahead

A victory for the S.C. Coastal Conservation League does not mean an end to the struggle to save the Kiawah Island Spit from development.  It does mean that a sea wall will not be built along Captain Sam’s Inlet, protecting this critical habitat for a number of species.  There is no doubt that this region will be hit by a hurricane in the years to come, and because of the highly erosive nature of the Spit, Kiawah Development Partners (KDP) is pushing to build a bulkhead here to stabilize this landform, or at least provide the illusion of stability.  The reality is that when a hurricane hits here, there will be damage, and local and federal emergency funds will go to the clean-up.  Additionally, fully cleaning up marshland could do more harm than good to the species that inhabitant this area.

South Carolina’s Coastal Zone Management Act (1977) and Beachfront Management Act (1988) regulate land use for “critical areas” such as the Kiawah Spit.  The case of Lucas vs. South Carolina Coastal Council sets a precedent here because it reasoned that “deprivation of all economically beneficial use is, from the perspective of a property owner, deprivation of the property itself” (according to the source linked above) and so the Beachfront Management Act constituted an illegal taking of property.  If KDP is to be stopped from developing this property, the courts will have to rule contrary to this precedence.

A portion of the original Kiawah Island development plan (the Spit is located in the lower left-hand corner, abscent of proposed development)

The full decision of the SC Supreme Court can be read here: http://www.sccourts.org/opinions/displayOpinion.cfm?caseNo=27065

Sam’s Spit sea wall denied, Developer vows to move ahead, by Bo Petersen, The Post and Courier, November 22, 2011, posted in full below:

KIAWAH ISLAND — One of the prized scenic getaways for boaters and beachcombers just got a big reprieve from development.

The state Supreme Court ruled Monday that a lower court was wrong to rule that a sea wall could be built along Capt. Sam’s Inlet. But the issue is not going away, the developer said.

The half-mile-long concrete sea wall would be built along the Kiawah River bank on the west end of the mostly gated Kiawah Island beach resort. It would protect a road from Charleston County’s Beachwalker Park to a 50-home development along an erosive sand cape called Capt. Sam’s Spit. The spit is a wildlife-rich stretch where, for example, dolphins can be seen feeding on baitfish by driving them onto the beach and jumping after them.

The 150-acre, teardrop-shaped strip of land also is a shorebird feeding ground. It is one of the few barrier island spits that the public has ready access to. It’s a getaway for thousands in the Charleston area each year, people who walk down the beach from the park or boat into the inlet and land on the edge of the spit.

The Supreme Court ruled that a state Administrative Law judge didn’t have authority to overrule a S.C. Department of Health and Environmental Control Board decision on the issue, and ruled the judge didn’t take account into the impact of building the wall on the public interest in the surrounding coastal area as well as the spit itself.

Conservation advocates called the ruling a decisive victory. The Kiawah Development Partners said they will continue to fight to build the wall.

“(The court) affirmed public use and access of critical (habitat) areas. (The developers) can’t do a development without the wall. They have to have something that protects that road. I think this ends the controversy,” said Amy Armstrong, of the South Carolina Environmental Law Project.

The Kiawah partnership will file a petition for a rehearing in the Supreme Court on other aspects of the case, the partnership said in a news release. “The Court’s opinion does not terminate the revetment application. If the (Supreme) Court does not grant a rehearing, the (Administrative Law Court) will once again consider whether the permit should be granted,” the release said.

Ruling reversed

The issue: Kiawah Development Partners wants to build a sea wall to protect a road to a 50-home development on the fragile sand cape of Capt. Sam’s spit.

What’s happened: The S.C. Supreme Court overturned a lower court ruling that allowed the wall to be built.

What’s next: Conservationists consider the ruling decisive. Developers say they plan to petition the court to rehear the case or to re-argue other aspects of it in the lower court.

The controversy has become one of those high-profile Lowcountry battles between property owners and conservationists over the “best use” of land along a changeable coastline, and the ruling could shift the balance of subsequent rulings in favor of conservation.

“It’s pretty fantastic for the environmental community. It affirms that, with the Coastal Zone Management Act, the General Assembly said we’ve got some really valuable resources in the state, we need to be proactive and protect them,” Armstrong said. “It’s a pretty incredible victory.”

The partnership news release called the ruling disappointing and agreed with Chief Justice Jean Toal’s dissent, “the court may not substitute its judgment for the judgment of the administrative law court as to weigh the evidence on questions of fact.”

The case is one of three in state courts involving the development project. The others are an appeal of a permit to build a small wall into the sand itself along Capt. Sam’s Inlet and a lawsuit alleging that blocking the development is a regulatory “takings” of private property without compensation.

Armstrong said she would expect the case about the smaller wall, if not the takings case, to be dismissed now.

The partnership has also applied for a permit to build a community dock along the inlet for the use of the prospective property owners. The S.C. Ocean and Coastal Resource Management division is expected to rule on that in January, and lawsuits might follow.

The spit drew hunters, anglers and boaters for generations before Kiawah was developed. Longtime Lowcountry families consider it a piece of their natural heritage. Sidi Limehouse, a farmer on nearby Johns Island and a member of Friends of Kiawah River, has called it a special place.

“I don’t see them building anything out there now. But we’ve got to procure the area for the people of South Carolina,” he said.

That, Limehouse said, would take a lot of money.

Reach Bo Petersen at 937-5744 or follow him on Twitter at www.twitter.com/bopete.

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