Tuesday, November 3, 2009
A Kiawah Island developer who lost an initial request to build a revetment surrounding the pristine southern tip of the island (i.e., dunes), a decision now on appeal, has now received the go-ahead by state regulators to submerge a wall into the dunes to protect utilities and roads should tidal flooding occur. Click here and here to find out about more about the developer's plans. (Historically, this portion of the island has waxed and waned with changing tidal patterns and hurricanes, is used by sea turtles for nesting, and is otherwise considered a pristine maritime ecosystem--an area initial developers of the island avoided for these same reasons.) Readers may recall that another South Carolina island, the Isle of Palms, played a role in the famous Lucas decision which tinkered with the Supreme Court's regulatory takings test previously established in Penn Central. In Lucas, the developer ultimately won, after the Supreme Court ruled that the state's refusal to allow him to build a beach house denied him all reasonable use of the property. Similar arguments are being hinted at again. Opponents like the Coastal Conservation League will likely exploit the opportunity to argue public costs and benefits--factors the Lucas court all but ignored in its balancing. The reasonableness of the developer's investment-backed expectation may be another distinguishing factor.
Will Cook, Charleston School of Law