THE STATE OF SOUTH CAROLINA
In The Supreme Court
Edward H. Seabrook, Jr.
and Folly North
Partners, LLC, Respondents,
City of Folly Beach, a
Robert Linville, Fred
Holland, Jane Theiling,
Gered Lennon, Wallace
Benson, Vernon Knox,
and Allen Boyd, in their
official capacities as the
Mayor and as members
of the City Council of the
City of Folly Beach, Appellants.
Appeal From Charleston County
B. Hicks Harwell, Circuit Court Judge
Opinion No. 25018
Heard September 22, 1999 - Filed November 22, 1999
VACATED IN PART; APPEAL DISMISSED
James E. Reeves and Wendy J. Keefer, both of
Barnwell, Whaley, Patterson & Helms, of Charleston;
and Otis B. Peeples, Jr., of Peeples & Stringer, of
Charleston, for appellants.
William B.. Regan and Frances Cantwell, both of Regan &
Cantwell, of Charleston, for respondents.
Burnett, A.J.: This dispute arose over the City of Folly Beach's
decision to impose conditions upon the approval of Respondents' subdivision
plat. The circuit court granted Respondents' motion for summary judgment.
We vacate in part and dismiss this appeal as moot.
Respondents are the owner and contract purchaser, respectively, of a
pristine undeveloped tract of land located on the easternmost end of Folly
Beach (Seabrook tract). Appellants are the City of Folly Beach, the mayor,
and members of city council (collectively, "Folly Beach" or "city council").
Respondents applied to subdivide the Seabrook tract into nine parcels for
residential development. Respondents complied with all the specific
engineering criteria of the Folly Beach ordinance for subdivision plats, a fact
admitted by Folly Beach. The planning and zoning board recommended
approval of the application, and forwarded the application to the city council,
as required by city ordinance.
Folly Beach had before it competent (though admittedly "unofficial" and
not disinterested) evidence of severe erosion on the Seabrook tract. Current
erosion was estimated at 9.6 feet per year,, and seven of the nine proposed lots
fronted the erosion zone. Folly Beach preliminarily approved the plat, but
imposed three conditions:
(1) When erosion proceeds to the point where man made improvements,
including any habitable structures, are within ten (10) feet of the active
beach, those improvements must be removed by the owner;
(2) The critical line (i.e., the landward edge of the beach) must be
reestablished on the property and then redrawn on the subdivision plat
prior to final approval; and
(3) Any current or future property owner must be made aware of the
erosion rate of ten (10) feet per year and each of these conditions.
The issue before the lower court was whether Folly Beach had the
authority to impose conditions upon the development of the land. The circuit
court held that it did not, finding the actions of Folly Beach were arbitrary
and capricious, deprived Respondents of due process of law, and amounted to
a taking without just compensation under both the United States and the
South Carolina Constitutions.
Thereafter, Folly Beach voluntarily removed the conditions and granted
approval of the plat. In response, the court modified its order to reflect that
only a temporary taking had occurred. Folly Beach appealed. On appeal,
Respondents abandoned their temporary taking claim, conceding there is
insufficient factual evidence of value in the record for the trial court to have
found the actions of Folly Beach deprived Respondents of all economically
viable use of their land.
"A case becomes moot when judgment, if rendered, will have no
practical effect upon existing controversy." Mathis v. South Carolina State
Highway Dep't, 260 S.C. 344, 346, 195 S.E.2d 713, 715 (1973). "A court may
take jurisdiction, despite mootness, if the issue raised is capable of
repetition, yet evading review." Charleston County Sch. Dist. v. Charleston
County Election Comm'n, (S.C. Sup. Ct. filed Aug. 2, 1999) (Shearouse Adv.
Sh. No. 26 at 4) (internal quotations and citations omitted).
We conclude this appeal is moot. Folly Beach voluntarily removed the
conditions and approved Respondents' plat and Respondents have abandoned
their taking claim. Accordingly, a ruling on the pending issues will have no
practical effect on the parties to this appeal. Moreover, while the factual
scenario presented by this appeal is certainly capable of repetition, it does
not evade review, and would have been clearly reviewable had Folly Beach
not voluntarily removed the conditions and Respondents abandoned their
The questions raised in this case have been resolved by the issuance of
the development permit and the abandonment of Respondents' taking claim.
We therefore vacate that part of the circuit court's order finding a temporary
taking occurred and dismiss this appeal as moot.
Finney, CA, Toal and Moore, JJ., concur. Waller, AA, not