A divided South Carolina Supreme Court has denied developers permission to build a half-mile of coastal walls on Kiawah Island, a ruling that Chief Justice Jean Toal warned undermines checks on state agency decisions involving private property.
The developers sought a permit to put a bulkhead and revetment along an area called Captain Sam’s Spit so new homes could be built on the upscale resort island southwest of Charleston.
A bulkhead is an upright wall while a revetment is a slanting wall, usually covered with rocks, that serve to control erosion.
The Department of Health and Environmental Control originally denied the permit, allowing only a smaller 270-foot bulkhead to protect a Charleston County oceanfront park.
On appeal, an administrative law judge ruled the developers could build the entire bulkhead. But that decision was in turn reversed by the high court in its 3-2 decision.
Toal, who along with Justice John Kittredge dissented, noted that two decades ago the state balanced state agency regulatory authority by creating administrative law courts where neutral judges could hear appeals of agency decisions.
In the Kiawah case, she wrote, the Supreme Court majority reversed the administrative judge’s decision “on the grounds that he wrongly failed to defer to the decision of the DHEC staff.”
The court deferring to DHEC on both the facts and interpretation of the law “fundamentally undermines South Carolina’s longstanding approach to controlling unrestrained bureaucratic decisions regarding private property rights,” Toal wrote.
Justice Kaye Hearn, in the majority opinion, called Captain Sam’s Spit “undoubtedly one of this state’s natural treasures” and wrote the administrative law court made several errors of law.
She noted state law requires public tidelands to be used for the maximum benefit of the people. The administrative judge, she wrote, did not consider the extent to which the public would benefit from building the bulkhead as compared to leaving the land in its natural state.
She also wrote the judge erred in concluding there would be no impacts to upland areas as a result of putting in the bulkhead when a residential development was planned.
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