Another Beachhead?

By wreaking havoc along South Carolina's coast, Hurricane Hugo has crystallized the issue of beachfront management in that state. Environmentalists say the destruction demonstrates the folly of building near the ocean and the need for restrictions on construction. At the same time, opposition to South Carolina's Beachfront Management Act has intensified because the law is hampering the efforts of many property owners to rebuild after the storm.

Already on the defense in federal court, the South Carolina Coastal Council, which enforces the act, is likely to face a wave of lawsuits seeking compensation for losses imposed by construction restrictions. "The coastal council should have no authority to come out here and tell a man he can't resecure his piece of property," an indignant Myrtle Beach motel owner told the New York Times.

Passed in June 1988, the Beachfront Management Act establishes zones along the shore in which construction is prohibited or severely restricted. In the "dead zone," which extends 20 feet landward from an imaginary primary dune line, new construction is banned and homes or businesses destroyed by fire or storm may not be rebuilt.

But there is some hope for seaside residents who were hit twice this fall—once by Hugo and once by the beach law. In August, a state court of appeals set a precedent for compensating property owners affected by the law, awarding $1.2 million to two plaintiffs who were forbidden to build on oceanfront land they had purchased before the act was passed.

The law has also been challenged in federal district court by a group of Hilton Head residents whose oceanfront lots fall within the dead zone. Their suit, filed in Charleston, charges that enforcement of the beach law is an unconstitutional taking of property under the Fifth Amendment and a violation of due process under the Fifth and Fourteenth Amendments. Randall Chastain, a University of South Carolina law professor who helped argue the case, says the construction limits interfere with property rights to such an extent that they constitute confiscation without just compensation. Further, he says, the restrictions are so tenuously connected to the ostensible goals of the law that they cannot be justified even if they aren't deemed a taking.

Attorneys for the coastal council argue that the construction limits should not be considered a taking when land affected by the law retains some value. Chastain thinks the U.S. Supreme Court's decision in Nollan v. California Coastal Commission indicates otherwise. In that 1987 case, the commission refused to grant a Ventura County couple a construction permit for a beachfront lot unless they allowed people to walk along the seaward edge of their property to get from one public beach to another. The Court found that the requirement violated the Takings Clause.

Chastain maintains that South Carolina's law does not meet the Nollan test of substantially advancing a legitimate and substantial state interest. Whether or not District Court Judge Falcon Hawkins buys his argument, the case will almost certainly be appealed.

If the law is ultimately overturned, victims of Hugo will be able to rebuild dead-zone homes and businesses destroyed by the hurricane. And even if the law remains in effect, they may recover damages through their own suits.

The outcome of the case could have a significant influence on other coastal states. Chastain says South Carolina's law is the most restrictive of its kind in the nation. North Carolina and Florida have beachfront management laws, but they allow current structures to be rebuilt and permit some new construction.

The case also has implications for takings law in general, providing an opportunity to address issues left unresolved by Nollan. The attorneys for the coastal council are worried that the case might set a dangerous precedent by making government accountable for its actions. Says co-counsel C.C. Harness III, "Government could hardly survive if it had to pay damages for every change in the law." Precisely.