THE STATE OF SOUTH CAROLINA
In The Supreme Court
Victoria F. Wooten, Respondent,
v.
South Carolina Coastal
Council, n/k/a South
Carolina Department of
Health and Environmental Control,
Office of Ocean and
Coastal Resource
Management, Appellant.
Appeal From Horry County
J. Stanton Cross, Jr., Master-in-Equity
Opinion No. 24878
Heard November 18, 1998 - Filed January 18, 1999
REVERSED
Mary D. Shahid, Chief Counsel, of South Carolina
Department of Health and Environmental Control,
Office of Ocean and Coastal Resource Management,
for appellant.
Howell V. Bellamy, Jr., and Douglas M. Zayicek,
both of Bellamy, Rutenberg, Copeland, Epps,
Gravely & Bowers, of Myrtle Beach, for respondent.
p.6
MOORE, A.J.: This is a regulatory taking case. The master
found a taking had occurred and awarded respondent $59,000. We
reverse.
FACTS
On February 19, 1991, respondent Victoria Wooten (Wooten)
applied for a permit to build a bulkhead1 and place fill material on a lot
which she owned in Cherry Grove. The permit was denied by appellant
(Coastal Council)2 on May 21, 1991. On January 12, 1994, Wooten filed
this action in circuit court.
DISCUSSION
Where the State seeks to sustain regulation that deprives land
of all economically beneficial use, it "may resist compensation only if the
logically antecedent inquiry into the nature of the owner's estate shows
that the proscribed use interests were not part of his title to begin with."
Lucas v. South Carolina Coastal Council, 505 U.S. 1003) 1024, 112 S.Ct.
2886, 2899, 120 L.Ed.2d 798, 820 (1992). Coastal Council contends the
trial court erred in finding that Wooten's proscribed interests have
changed since she acquired the property entitling her to compensation.
We agree.
Wooten acquired, the property as a gift from her mother in
1988. The Coastal Management Zone Act (Act) was enacted in 1977.3
Specifically, Wooten contends Hurricane Hugo, erosion, and the denial of
her permit application changed her use interest after she had acquired the
property.
In Grant v. South Carolina Coastal Council, 319 S.C. 348. 461
not to withstand wave forces on an, exposed shoreline." S.C. Code Ann. §
48-39-270(l)(b)(Supp.1997).
2 The South Carolina Coastal Council is now known as the South
Carolina Department of Health and Environmental Control, Office of
Ocean and Coastal Resource Management.
3 S.C. Code Ann. § 48-39-130(C) (Supp.1997)(original version of
statute enacted in 1977).
p.7
S.E.2d 388 (1995), relying upon Lucas, supra, we held there is no
compensable regulatory taking when the property was subject to the
restriction on use when the property was acquired.4 In Grant,
Grant never had the right to fill critical area tidelands on his Folly Beach
property. In 1987, when Grant purchased his property, the Act forbade
his filling critical areas without a permit from Coastal Council. Therefore,
we found that Grant's right to use his property after Hurricane Hugo was
not altered from when he originally acquired title to it. Accordingly, we
held no taking occurred. Similarly, here, when Wooten acquired the lot in
1988, pursuant to the Act, she was required to obtain a permit prior to
building a bulkhead and filling critical areas.5
Wooten attempts to distinguish Grant. by stating when she
acquired the property she had a right to protect it from erosion.6
However, Wooten would have been required to obtain a permit even if she
wanted to build a bulkhead strictly for erosion control. In any event, she
testified she applied for a permit to fill a substantial portion of her
property to enable her to build a house and not merely to control erosion.
Had Wooten merely wanted to prevent erosion, she could have submitted a
plan for a retaining wall that would have been placed in a different area
and would not have included filling 85% of her lot.
We hold this case is controlled by our holding in Grant. The
proscribed use interests were not part of Wooten's title when she acquired
the property. Because we reverse on this ground, we need not address
appellant's remaining issues.
REVERSED.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ., concur.
Grant. See, e.g., Gazza v. New York Dep't of Envtl. Conservation, 679
N.E.2d 1035 (N.Y. 1997); Stevens v. City of Cannon Beach, 317 Or. 131,
854 P.2d 449 (1993); City of Virginia Beach v. Bell, 255 Va. 395, 498
S.E.2d 414 (1998), cert. denied, 67 U.S.L.W. 3096 (1998).
5 Mark Caldwell testified the majority of Wooten's lot was critical
area prior to the submission of her permit application.
6 The master attempted to distinguish Grant on the basis that
Coastal Council presented no evidence the land had ever been denied a
permit before. However, in Grant the land had not been denied a permit
before either.
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