Posted on August 14, 2023
Folly Beach’s name may never seem more fitting than when one learns about a fresh legal battle playing out there — a battle that ultimately will decide if taxpayer-funded beach renourishment opens the door for public land to be converted back into private property whose owners may then build new homes on lots previously under water. The city and its allies should ensure this doesn’t happen.
Unfortunately, that will be a challenge because of Folly’s dynamic nature and unique history. More than a half century ago, Folly Beach had a road, Benke Drive, that ran between East Ashley and the ocean’s edge on the island’s easternmost end; this part of the beach was growing, and lots on both sides of Benke were platted and sold off. By the early 1980s, however, the sands shifted, and Benke was lost to erosion, and its lots were under water. A few years later, however, a sandbar migrated across Lighthouse Inlet and attached itself to the northern end of Folly, and some lots along Benke were high ground again. And the state baseline was drawn through the yet-undeveloped Benke Drive lots, allowing development on 28 of them.
Fourteen of these lots were built upon, and it’s no surprise that these homes — built between East Ashley and the beach — are among Folly’s most threatened, and the most likely to end up costing taxpayers once they fall into the ocean. The fate of the 14 remaining, undeveloped “super-beachfront” lots is now the subject of a fresh legal battle, as some owners have sought to capitalize on their freshly elevated status following the island’s 2018 beach renourishment.
To block them, the city of Folly Beach, the Coastal Conservation League, the nonprofit Save Folly Beach and several local homeowners filed a 2019 lawsuit challenging the ownership of this taxpayer-created land. Although a local judge ruled they did not have standing to bring such a challenge, the South Carolina Court of Appeals reversed that decision and ordered the case to proceed at the trial court level. That’s an auspicious step but likely only one of many to come before this matter is settled for good.
At the very least, we hope our courts continue to recognize that these groups should have standing to question this critical environmental decision. And it is critical, with implications far beyond the 14 lots on Folly Beach. As Amy Armstrong, executive director of the S.C. Environmental Law Project that represented the plaintiffs, explains: “As we have sea level rise and we have lands being converted to public trust land as they’re eroding away and going below the water, can you convert public land, with public money, into private property? It’s kind of crazy when you think about it in those terms.”
While this issue emerged first on Folly, the precedent set here will reverberate elsewhere as more coastal communities renourish their beaches more often due to sea level rise and stronger, more frequent storms. Our state’s Public Trust Doctrine says the state owns all land below the mean high water mark and holds this land in trust. A previous Supreme Court ruling has noted beachfront property owners take their title “at risk of loss to the State by natural forces,” but the courts haven’t settled what should happen when unnatural, sudden forces (like renourishment) shift our shoreline.
Locals realize Folly Beach actually received its current name (it originally was “Coffin Island”) from an old English word meaning “dense foliage,” not because of any association with a lack of good sense, prudence or foresight. But if we allow new homes to be built on its rapidly shifting sands right next to the water’s edge, the latter definition would fit all too well.