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24878 - Wooten v. S.C. Coastal Council

Davis Adv. Sh. No. 3
S.E. 2d

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


WOOTEN v. S.C. COASTAL COUNCIL





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


1 A bulkhead is "a retaining wall designed to retain fill material but

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


WOOTEN v. S.C. COASTAL COUNCIL





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.


4 Several other states have also held similarly to our decision in

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.

p.8